In brief

The case of Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205 concerned a sentencing hearing in the Land and Environment Court of New South Wales (L&E Court) for an offence committed by the Clarence Valley Council (Council) against section 86(1) of the National Parks and Wildlife Act 1974 (NSW) (NPW Act).

The L&E Court convicted the Council of the offence of harming an object the Council knew was an Aboriginal object for the purposes of the NPW Act, and held that the objective seriousness of the offence was within the moderate to high range for the reasons that: 

The L&E Court ordered the following: 

  • that in accordance with section 205(1)(a) of the NPW Act, the Council publicise its offending and the consequences and the orders of the L&E Court in respect thereof in various State and local newspapers, a national Indigenous newspaper, and on the Council's website and Facebook; 

  • that in accordance with section 205(1)(b) of the NPW Act, the Council notify specified bodies of its offending and the consequences and the orders of the L&E Court in respect thereof, and publish the same in Council's annual report; 

  • that in accordance with section 205(1)(d) of the NPW Act, the Council pay $300,000 to the Grafton Ngerrie Local Aboriginal Land Council to be used to fund a study in relation to the keeping of, and research into, local Aboriginal heritage items, and a series of one-day healing festivals;

  • that in accordance with section 205(1)(f) of the NPW Act, the Council establish cultural skills development workshops for its staff that deal in matters which may affect cultural heritage; 

  • that the Council, in any future reference to the payment of the monetary amount ordered, include the words prescribed by the L&E Court (see [130]), to acknowledge that the funding arose out of the Council's harming of a culturally modified tree in breach of the NPW Act.

Facts and circumstances 

The culturally modified tree the subject of harm by the Council (Scar Tree) was located in the Council's local government area until its removal by the Council in May 2016. 

The Scar Tree was registered on the Aboriginal Site Register in 1995 as a culturally modified tree, and was identified as an Aboriginal object for the purposes of the NPW Act in 2005. 

In 2013, the Council was issued with a penalty notice by the Office of Environment and Heritage (OEH) for the Council's harming of an Aboriginal object by lopping the crown of the Scar Tree. In 2015 the Council marked the Scar Tree in its annual stump grinding list which resulted in the Scar Tree's removal in May 2016. 

One day after the Council's removal of the Scar Tree, it self-reported to the OEH that it had harmed an Aboriginal object by removing the Scar Tree. The Council pleaded guilty to the prosecution then brought by the Chief Executive of the OEH for the offence against section 86(1) of the NPW Act. 

Determining the appropriate sentence 

The L&E Court, in determining the appropriate sentence for the offence, ultimately had regard to the past and continued conduct of the Council relevant to the Council's harming of the Scar Tree in light of the purposes for which a sentence may be imposed. 

Sentencing purpose

The L&E Court observed the purposes for which the L&E Court can impose a sentence found in section 3A of the CSP Act, and held that the purposes of retribution, prevention, reparation, and restoration were relevant in determining the appropriate sentence for the Council.

Objective seriousness 

The objective seriousness of the offence, in light of the nature of section 86 and its place within the statutory scheme was a relevant consideration of the L&E Court. 

After looking at the statutory scheme and the degree by which the Council's conduct offended the object of the NPW Act, the L&E Court concluded that the Council: 

  • had undermined the express object in section 2A(1)(b) of the NPW Act, namely, the conservation of places, objects, and features of Aboriginal people;

  • had hindered section 2A(1)(c) of the NPW Act by removing the Scar Tree as its removal precludes the opportunity to foster appreciation, understanding, and enjoyment of its cultural heritage; and 

  • had acted inconsistent with the principles of ecologically sustainable development in section 2A(2) of the NPW Act by causing inter-generational inequity. 

The L&E Court considered that the "fifty fold" increase in 2010 of the penalty for offences harming or desecrating Aboriginal objects or places, reflected the seriousness with which the legislature, and therefore the community, view the protection and conservation of Aboriginal cultural heritage and offences which harm Aboriginal cultural heritage. 

When determining the objective seriousness of the Council's removal of the Scar Tree, the L&E Court looked at the matters in section 194 relevant to imposing a penalty for an offence against the NPW Act. The sentencing matters the L&E Court had specific regard to, were the following:

  • section 194(1)(a) in relation to the extent of the harm caused or likely to be caused by the removal of the Scar Tree; 

  • section 194(1)(d) in relation to the extent to which the Council could have reasonably foreseen the harm caused or likely to be caused by the removal of the Scar Tree; 

  • section 194(1)(c) in relation to the Council's failure to take practical measures to prevent, control, abate, or mitigate the harm caused by the removal of the Scar Tree. 

The Council, despite making undertakings to do so after receiving a penalty notice in 2013, did not take steps to improve its systems relating to Aboriginal cultural heritage. 

The L&E Court concluded that the Scar Tree was of high significance to the Aboriginal people that had an association with it and that the Council was in a position to have reasonably foreseen the harm caused or likely to be caused by removing the Scar Tree. The Court's premise for this was that the Council had previously received the penalty notice for lopping the Scar Tree and had knowledge of the emotional harm that lopping had caused for Aboriginal people. It was therefore reasonably foreseeable that if further harm was caused to the Scar Tree that further emotional harm would ensue. 

Circumstances of the Council 

The L&E Court took into account, within the limits of the objective seriousness of the offence, the following mitigating factors: 

  • the Council's lack of prior convictions (see section 21A(3)(e) of the CSP Act); 

  • the Council's guilty plea (see sections 21A(3)(k) and 22(1) of the CSP Act); 

  • the Council's demonstrated remorse (see section 21A(3)(i) of the CSP Act); 

  • the Council's cooperation with the OEH during the investigation and the preparation of the agreed statement of facts, and the Council's conduct during the sentence hearing (see section 21(3)(m) of the CSP Act); 

  • the Council's unlikeliness to reoffend (see section 21A(3)(g) of the CSP Act). 

Conclusion 

In light of the objective seriousness of the offence, the circumstances specific to the Council, and the purposes of sentencing, the L&E Court held that a combination of different sanctions, as outlined in its orders, were the appropriate penalty for the Council's harming of an Aboriginal object.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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