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Court of Criminal Appeal 17 October 2018

Turnbull v Chief Executive of the Office of Environment and Heritage

[2018] NSWCCA 229

Other
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE APPEAL APPEAL AGAINST SENTENCE WHERE OFFENCES OF A SIMILAR NATURE

Citation: Turnbull v Chief Executive of the Office of Environment and Heritage [2018] NSWCCA 229
Court: NSW Court of Criminal Appeal
Date: 17 October 2018
Judge(s): Payne JA, Simpson AJA, Wilson J

Background

The appellant purchased a rural property near Moree in northern New South Wales in January 2012, intending to convert grazing land to cropping by clearing native vegetation. Between August 2012 and January 2013, he carried out or authorised the clearing of 103.6 hectares of native vegetation, including over 1,000 trees and shrubs and habitat for threatened fauna such as koalas. He pleaded guilty in the Land and Environment Court to clearing native vegetation without authority, contrary to s 12(1) of the now-repealed Native Vegetation Act 2003 (NSW), which carried a maximum penalty of $1,100,000.

A related but separate charge was brought against another individual, Cory Turnbull, who had cleared 316 hectares and over 3,700 trees on a different property. Both men pleaded guilty, both contested significant factual elements of the prosecution case, and their penalty hearings were conducted jointly before Preston CJ of the Land and Environment Court.

The primary judge imposed a fine of $315,000 on the appellant and $393,750 on Cory Turnbull, each reflecting a 12.5% reduction for their respective guilty pleas. The appellant challenged both fines on appeal, arguing that the disparity between them was unjust and that his own fine was manifestly excessive.

  • Whether the parity principle in sentencing applied where two offenders committed separate but similar offences under the same statutory provision, rather than acting jointly in the commission of a single offence.
  • Whether, if the parity principle applied, the difference between the two fines created an unjustified sense of grievance in the appellant.
  • Whether the fine of $315,000 imposed on the appellant was manifestly excessive or unreasonable having regard to comparable sentencing decisions.

Decision

Ground 1: Parity

Simpson AJA noted at the outset that the appellant and Cory Turnbull were not co-offenders in the strict sense: they were charged separately and had not acted jointly. The parity principle, established by the High Court in Lowe v The Queen (1984), allows an appellate court to intervene where a manifest disparity between sentences engenders a justifiable sense of grievance. The Court of Criminal Appeal accepted, consistently with Green v The Queen (2011) and Jimmy v The Queen (2010), that the principle is not confined to co-offenders and can apply more broadly to offenders sentenced for similar offences.

Even accepting that the principle could apply here, the Court found no unjustified disparity. The differences in the fines reflected real differences in the scale of the offending: the appellant cleared roughly one-third the area cleared by Cory Turnbull and approximately one-third the number of trees. The starting point fine for Cory Turnbull was 25% higher than the starting point for the appellant, a margin the Court regarded as a reasonable and considered reflection of those differences. The appellant's proposed method of comparison, calculating the penalty per hectare or per tree, was dismissed as simplistic and fallacious, giving undue weight to a single factor among the many properly assessed by the primary judge.

Ground 2: Manifest Excess

The appellant relied on a number of earlier sentencing decisions to argue that the fine was out of range. The Court reiterated the High Court's observation in Hili v The Queen (2010) that consistency in sentencing means consistency in applying legal principles, not numerical equivalence across decisions. Nothing in the material presented persuaded the Court that the fine fell outside an appropriate range for the offence.

Both grounds of appeal were rejected and the appeal was dismissed.

Orders Made

• Dismiss the appeal against sentence

Key Takeaways

  • The parity principle in sentencing extends beyond strictly defined co-offenders. As confirmed by both the High Court in Green v The Queen and the Court of Criminal Appeal here, it can apply where two offenders are sentenced for similar but technically separate offences, provided their culpability and antecedents are otherwise comparable.
  • In dismissing the parity ground, the Court of Criminal Appeal emphasised that a 25% increment in the starting fine, reflecting significantly greater environmental harm, constituted adequate and rational differentiation between the two offenders.
  • Simplistic mathematical comparisons, such as calculating a fine on a per-hectare or per-tree basis, do not constitute a valid basis for establishing unjustified disparity. Sentencing requires consideration of the full range of relevant factors, as the High Court affirmed in Wong v The Queen (2001).
  • Consistency in sentencing requires consistency in the application of legal principles, not identical numerical outcomes across comparable cases. Citing earlier decisions does not establish manifest excess unless the sentence falls outside an appropriate range when those principles are correctly applied.
  • Deliberateness, premeditation, awareness of illegality, and the irremediable nature of environmental harm are all material to the objective gravity of native vegetation offences, and a primary judge is entitled to weigh them heavily even where the offender has no prior record and enters a guilty plea.

Legislation and Cases Referenced

Legislation
- Native Vegetation Act 2003 (NSW), s 12(1) (now repealed)
- Environmental Planning and Assessment Act 1979 (NSW), s 126(1)
- Criminal Appeal Act 1912 (NSW), s 5AB

Cases
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 463; [2011] HCA 49
- Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150
- Turnbull v Director-General, Office of Environment and Heritage (2014) 212 LGERA 163; [2014] NSWLEC 84