CITATION:
Bentley v Gordon [2005] NSWLEC 695

PARTIES:

PROSECUTOR
Jason Robert Bentley
DEFENDANTS
Hugh Charles Gordon

FILE NUMBER(S):
50070 of 2005

CORAM:
Preston CJ

KEY ISSUES:
Prosecution :- Picking a threatened species of plant - Plea of guilty - Objective circumstances - Seriousness of environmental harm - Defendant's state of mind - Reasons for committing the offence - Mitigating circumstances.
Environmental Offences.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
s 3A ((a), (b), (e), (f) and (g)), s 4(1), s 17, s 18(1)
s 19(1), s 21A(2)(g), s 21A(3)(e), s 21A(3)(i), s 22
s 23(1), cl 45(2) of schedule 2
Criminal Procedure Act 1986 pt 5 of Chapter 4, s 254
Fines Act 1996
Land and Environment Court Act 1979 s 41, s 21(i)
National Parks and Wildlife Act 1974 s 5, s 118A(2)
s 118A(2)(b), 118A(3), s 175(1), 176(1)
Threatened Species Conservation Act 1995 s 4, s 14

CASES CITED:
Axer Pty Limited v Environment Protection Authority [1993] 113 LGERA 357;
Camilleri’s Stock Feeds Pty Limited v Environment Protection Authority [1993] 32 NSWLR 683;
Director General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171;
Environment Protection Authority v Ampol [1995] NSWLEC 16 (22 February 1995);
Environment Protection Authority v Brir Pty Limited [1995] NSWLEC 15 (22 February 1995);
Environment Protection Authority v Capdate Pty Limited [1993] 78 LGERA 349;
Hansford v His Honour Judge Neesham [1995] 2 VR 233;
Hoare v R [1989] 167 CLR 348;
Ibbs v R [1987] 163 CLR 447;
Law v Deed [1970] SASR 374;
Lloyd J.R v Jobson [1989] 2 QR 464;
Majury v Sunbeam Corporation Ltd (1974) 1 NSWLR 659;
Mickelberg (1994) 13 A Crim R 365;
Neal v R (1982) 149 CLR 305;
R v Cameron [2002] 209 CLR 339;
R v Gallagher (1991) 23 NSWLR 220;
R v H [1980] 3 A Crim R 53;
R v Morabito (1992) 62 A Crim R 82;
R v Oliver [1987] A Crim R 174;
R v Rushby [1977] 1 NSWLR 594;
R v Sharma [2002] 54 NSWLR 300;
R v Thomson (2000) 49 NSWLR 383; 115 A Crim R 104;
Veen v R No 1 [1979] 143 CLR 458;
Veen v R No 2 [1988] 164 CLR 465;
Wong v R [2001] 207 CLR 584

DATES OF HEARING: 21.11.05, 22.11.05

EX TEMPORE JUDGMENT DATE:
11/22/2005

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr PM Strickland SC
SOLICITORS
Department of Environment and Conservation
DEFENDANTS
Mr Hugh Gordon (in person)
SOLICITORS
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Preston J

Tuesday 22 November 2005

50070 of 2003 J R BENTLEY V H C GORDON

JUDGMENT
HIS HONOUR:

A threatened species of plant is destroyed

1 Black-eyed Susan is the common name of a species of plant. It is a slender, spiralling shrub with mature stems to 80 centimetres long. It may form single clumps with a number of flowering stems that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bentley v Gordon

Details

AGLC: Bentley v Gordon [2005] NSWLEC 695
Case: [2005] NSWLEC 695
Decision Date: 11/22/2005

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Court heard a case involving the destruction of a threatened species of plant, Tetratheca juncea, on a site at Redhead. The defendant, Hugh Charles Gordon, who was the project manager for the site, pleaded guilty to picking the plant contrary to the National Parks and Wildlife Act 1974. The Court needed to determine the appropriate sentence for the offence. The maximum penalty for this offence was 500 penalty units or imprisonment for one year or both. The Court found that the objective circumstances of the offence, including the seriousness of the environmental harm and the defendant's state of mind, warranted a sentence at the higher end of the scale. The Court considered the personal mitigating factors, including the defendant's lack of prior criminality, his guilty plea, and his expression of contrition and remorse. However, the defendant's failure to take remedial action to rehabilitate the site was noted. The Court concluded that the appropriate sentence was a fine of $30,000 and the defendant was ordered to pay the prosecutor's costs of $10,000.

Orders