Betland v Environment Protection Authority - [2010] NSWLEC 183

Reported Decision: 175 LGERA 317

Land and Environment Court

of New South Wales

CITATION: Betland v Environment Protection Authority [2010] NSWLEC 183

PARTIES:
APPELLANT
Mr Russell Betland
FIRST RESPONDENT
Environment Protection Authority
SECOND RESPONDENT
Department of Environment Climate Change and Water

FILE NUMBER(S): 60007 of 2010

CORAM: Pepper J

KEY ISSUES: CRIMINAL LAW :- appeal against imposition of four month custodial sentence by lower court - appeal upheld on the basis that there was no evidence justifying imprisonment - instead defendant fined $2,500 - applicable sentencing factors

LEGISLATION CITED: Crimes (Appeal and Review) Act 2001 ss 31(1), 37(1)
Crimes (Sentencing Procedure) Act 1999 ss 3A, 86(4)
National Parks and Wildlife Act 1974 ss 2A, 110
Pesticides Act 1999 s 11
National Parks and Wildlife Regulation 2002 cl 59(1)

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Environment Protection Authority v Gardner [1997] NSWLEC 212
Environment Protection Authority v Gardner [1997] NSWLEC 169
Environment Protection Authority v Wattke, Environment Protection Authority v Geerdink [2010] NSWLEC 24
Garret on behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6
Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289
Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Thomson v Hawkesbury City Council [2009] NSWLEC 151
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Zhou v Auburn City Council; Chen v Auburn City Council [2009] NSWLEC 75

DATES OF HEARING: 23 September 2010

EX TEMPORE JUDGMENT DATE: 24 September 2010

LEGAL REPRESENTATIVES:
APPELLANT
Ms L Rowan
SOLICITORS
N/A
RESPONDENTS
Mr P Barley (solicitor)
SOLICITORS
Environment Protection Authority

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

24 September 2010

60007 of 2010 Russell Betland v Environment Protection Authority and Department of Environment Climate Change and Water

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: By amended summons filed 6 August 2010, Mr Russell Betland appeals against the severity of a sentence imposed by Giles LCM of the Local Court in proceedings brought by the Environment…

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.

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Details

Case: [2010] NSWLEC 183
Decision Date: 24 September 2010

CaseChat Overview and Summary

In Betland v Environment Protection Authority, the appeal was against the severity of the sentence imposed by the Local Court on Mr Russell Betland for three offences: two breaches of the Pesticides Act 1999 and one contravention of the National Parks and Wildlife Act 1974. The Local Court imposed fines and a four-month custodial sentence for the third offence. Mr Betland appealed the custodial sentence on the grounds that it was excessive and not supported by the evidence. The Land and Environment Court allowed the appeal, setting aside the custodial sentence and imposing a fine of $2,500 instead. The Court found that the Local Court's reasons for the custodial sentence were inadequate and that the sentence was manifestly excessive given the lack of evidence regarding the risk to human health and safety. The Court considered the objective gravity of the offence, Mr Betland's state of mind, and the subjective circumstances, including his plea of guilty at the first available opportunity and his genuine remorse. The Court also considered the principles of deterrence, consistency in sentencing, and the totality principle in determining the appropriate penalty.

Orders