Chief Executive Office of Environment and Heritage v Somerville (No 2) - [2021] NSWLEC 78

Land and Environment Court

New South Wales

Medium Neutral Citation: Chief Executive Office of Environment and Heritage v Somerville (No 2) [2021] NSWLEC 78
Hearing dates: 7 April 2021, 27 May 2021; 21 June 2021 (written submissions)
Date of orders: 22 July 2021
Decision date: 22 July 2021
Jurisdiction: Class 5
Before: Pain J
Decision:
See [97] of judgment

Catchwords:
PROSECUTION – sentencing for multiple (22) offences of possession and harming of bird eggs of protected and threatened species under National Parks and Wildlife Act 1974 – pleas of guilty – eggs in defendant’s possession collected over many years – not established beyond reasonable doubt that defendant aware that harm to and possession of eggs of threatened bird species – defendant aware that bird eggs in general could not be collected without a licence issued under the National Parks and Wildlife Act – high range of low objective seriousness – mitigating factors of age and health – custodial sentence not appropriate – community correction order made with place restriction condition preventing entry into national park, nature reserve, regional park, state conservation area and wilderness area for 14 months

Legislation Cited:
Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW) reg 58
Biodiversity Conservation Act 2016 (NSW) Sch 9
Crimes (Administration of Sentences) Regulation 2014 reg 189
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 8, 17A, 21A, 22, 23, 85, 88, 89, 90, Pt 8A; former s 8
Criminal Procedure Act 1986 (NSW) ss 215, 257B, 257G
Fines Act 1996 (NSW) s 6
National Parks and Wildlife Act 1974 (NSW) ss 2A, 5; 98, 101, 118A, 118B, 120, Sch 11
Threatened Species Conservation Act 1995 (NSW) ss 3, 4, Pt 2 Div 2 (s 10)

Cases Cited:
Ahmad v R [2021] NSWCCA 30
BIP v R [2011] NSWCCA 224
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chief Executive Office of Environment and Heritage v Somerville [2019] NSWLEC 155
Director-General of the Department of Environment and Climate Change v Rae (2009) 197 A Crim R 31; [2009] NSWLEC 137
Environment Protection Authority v Mouawad (No 2) [2020] NSWLEC 166
Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57
Fahs v The Queen [2007] NSWCCA 26
Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785
Hewitt v The Queen (2007) 180 A Crim R 306; [2007] NSWCCA 353
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
Johnson v The Queen (2004) 78 ALJR 616
Le v R [2019] NSWCCA 181
Markarian v The Queen (2005) 228 CLR 357 [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Plath v Chaffey [2009] NSWLEC 196
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Ellis (1986) 6 NSWLR 603
R v MAK (2006) 167 A Crim R 159
R v Mobbs [2005] NSWCCA 371
R v Morabito (1992) 62 A Crim R 82
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Rahme (1989) 43 A Crim R 81
R v Said El Masri [2005] NSWCCA 167
R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142
R v Smith (1987) 44 SASR 587
R v SS [2021] NSWCCA 56
R v Thomson;Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Visconti [1982] 2 NSWLR 104
R v Windle [2012] NSWCCA 222
Secretary, Department of Planning Industry and Environment v Williams [2020] NSWLEC 134
Somerville v Chief Executive Office of Environment and Heritage [2020] NSWCCA 93
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Texts Cited:
Ian Mason and Gilbert Pfitzner, Passions in Ornithology: A Century of Australian Egg Collectors (2020, Ian Mason)
NSW Judicial Commission, Sentencing Bench Book (as at 19 July 2021)

Category: Sentence
Parties: Chief Executive Office of Environment and Heritage (Prosecutor)
Anthony Somerville (Defendant)
Representation: COUNSEL:
W Tuckey (Prosecutor)
I Hemmings SC and J Farrell (Defendant)
SOLICITORS:
Department of Planning, Industry and Environment (Prosecutor)

File Number(s): 18/340649-52; 18/340654; 18/340656-72

Judgment

The Defendant Anthony Somerville has pleaded guilty to multiple (22) offences under former ss 101(1), 118A(1) and 118B(1) of the National Parks and Wildlife Act 1974 (NSW) (NPW Act) arising from eggs of various critically endangered, endangered, vulnerable and protected bird species being found in his possession. All the offences are strict liability offences so that mens rea is not an element of the offences. It is necessary to sentence the Defendant.
The charge periods were on or about 10 November 2016 for the possession offences under ss 101(1) and 118B(1). Various periods leading up to 10 November 2016 are specified for the harm offences under s 118A(1). A plea of guilty can be considered an admission of the essential elements of an offence. When sentencing, any matter adverse to a defendant must be proved by a prosecutor beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 281. Any contested matter relied on by a defendant must be established on the balance of probabilities: R v Olbrich at 281.

Legislation

National Parks and Wildlife Act 1974 (NSW)

Relevant sections of the NPW Act as in force during the charge periods provide:

Part 1 Preliminary
…
2A   Objects of Act
(1)   The objects of this Act are as follows:
(a)   the conservation of nature, including, but not limited to, the conservation of:
(i)   habitat, ecosystems and ecosystem processes, and
(ii)   biological diversity at the community, species and genetic levels, and
(iii)   landforms of significance, including geological features and processes, and
(iv)   landscapes and natural features of significance including wilderness and wild rivers,

(b)   the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to:
(i)   places, objects and features of significance to Aboriginal people, and
(ii)   places of social value to the people of New South Wales, and
(iii)   places of historic, architectural or scientific significance,

(c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation,
(d) providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation.

(2)   The objects of this Act are to be achieved by applying the principles of ecologically sustainable development.
(3)   In carrying out functions under this Act, the Minister, the Chief Executive and the Service are to give effect to the following:
(a)   the objects of this Act,
(b)   the public interest in the protection of the values for which land is reserved under this Act and the appropriate management of those lands.

…
5 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires—
…
animal means any animal, whether vertebrate or invertebrate, and at whatever stage of development, but does not include fish within the meaning of the Fisheries Management Act 1994 other than amphibians or aquatic or amphibious mammals or aquatic or amphibious reptiles.
…
bird means any bird that is native to, or is of a species that periodically or occasionally migrates to, Australia, and includes the eggs and the young thereof and the skin, feathers or any other part thereof.
…
critically endangered species has the same meaning as in the Threatened Species Conservation Act 1995.
…
egg includes any part of an egg or eggshell.
…
endangered species means an endangered or critically endangered species within the meaning of the Threatened Species Conservation Act 1995.
…
fauna means any mammal, bird, reptile or amphibian.
…
harm an animal (including an animal of a threatened species, population or ecological community) includes hunt, shoot, poison, net, snare, spear, pursue, capture, trap, injure or kill, but does not include harm by changing the habitat of an animal.
…
protected fauna means fauna of a species not named in Schedule 11.
threatened species has the same meaning as in the Threatened Species Conservation Act 1995.
…
vulnerable species has the same meaning as in the Threatened Species Conservation Act 1995.
…

Part 7 Fauna
…
101   Buying, selling or possessing protected fauna
(1)   A person shall not buy, sell or have in the person’s possession or control any protected fauna.
Penalty:
(a)   in respect of any protected fauna other than threatened interstate fauna—100 penalty units or imprisonment for 6 months or both,
(b)   in respect of any threatened interstate fauna—1,000 penalty units or imprisonment for 1 year or both.
…

(6)   A reference in this section to a person’s having protected fauna in the person’s possession includes a reference to the person’s having protected fauna in a vehicle, building, lodging, apartment, field or other place whether belonging to or occupied by the person, and whether the fauna is then had or placed for the person’s own use or the use of another.
(7)   In this section, protected fauna does not include any threatened species or endangered population.
…
Part 8A Threatened species, populations and ecological communities, and their habitats, and critical habitat
118A   Harming or picking threatened species, endangered populations or endangered ecological communities
(1)   A person must not:
(a)   harm any animal that is of, or is part of, a threatened species, an endangered population or an endangered ecological community, or
(b)   use any substance, animal, firearm, explosive, net, trap, hunting device or instrument or means whatever for the purpose of harming any such animal.
Penalty:
(a)   in respect of any species presumed extinct, any critically endangered species or any endangered species, population or ecological community—2,000 penalty units or imprisonment for 2 years or both, and, in a case where an animal of any species presumed extinct, any critically endangered species or any endangered species, population or ecological community is harmed, an additional 100 penalty units in respect of each animal that is harmed,
(b)   in respect of any vulnerable species—500 penalty units or imprisonment for 1 year or both, and, in a case where an animal of any vulnerable species is harmed, an additional 50 penalty units in respect of each animal that is harmed.

…
118B   Buying, selling or possessing threatened species or endangered population
(1)   A person must not buy, sell or have in possession or control any animal or plant that is of, or is part of, a threatened species or an endangered population.
Penalty:
(a)   in respect of any species presumed extinct, any critically endangered species or any endangered species or endangered population—2,000 penalty units or imprisonment for 2 years or both,
(b)   in respect of any vulnerable species—500 penalty units or imprisonment for 1 year or both.
…

(6) A reference in this section to a person’s having threatened species in the person’s possession includes a reference to the person having threatened species in a vehicle, building, lodging, apartment, field or other place whether belonging to or occupied by the person, and whether the species is then had or placed for the person’s own use or the use of another person.
…
Schedule 11 Unprotected fauna

Mammals

Carnivora other than Pinnipedia

Bears, lions, dogs, etc

Insectivora

Moles, hedgehogs

Artiodactyla

Cloven hoofed animals

Perissodactyla

Horses, donkeys, etc

Primates

Apes, monkeys

Subungulates

Elephants

Lepus europaeus

Hare

Oryctolagus cuniculus

Rabbit

Scirius palmarum

Indian Palm Squirrel

…

It is a defence to prosecution for an offence against ss 101(1), 118A(1) and 118B(1) if the act was authorised under a general licence pursuant to former s 120 of the NPW Act (see ss 101(5), 118A(3) and 118B(4)).

Part 9 Licensing in respect of fauna, native plants and threatened species
…
Division 2 Fauna
120   General licence
(1)   The Chief Executive may issue a licence (in this Act referred to as a general licence), authorising a person to do any or all of the following:
(a)   to harm or obtain any protected fauna for any specified purpose,
(a1)   to hold or keep in possession or under control any protected fauna for any specified purpose,
(b)   to exhibit protected fauna,
(c)   to dispose of, whether by sale or otherwise, any fauna harmed, obtained, held, kept or exhibited under the authority of the licence,
(d)   to sell any fauna in the person’s lawful possession, otherwise than as a fauna dealer or skin dealer,
(e)   to harm any protected fauna (other than a threatened species, population or ecological community) in the course of carrying out specified development or specified activities.

(2) A general licence does not, except in so far as the terms of the licence otherwise expressly provide, authorise the harming of fauna in a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve, wildlife refuge, conservation area, wilderness area or area subject to a wilderness protection agreement.
…
(2B) A general licence is not to be issued to authorise the harming of protected fauna solely for scientific, educational or conservation purposes. A licence may be issued under section 132C for those purposes.

Threatened Species Conservation Act 1995(NSW)

Relevant sections of the Threatened Species Conservation Act 1995 (NSW) (TSC Act), now repealed, as in force during the charge periods provide:

3   Objects of Act
The objects of this Act are as follows:
(a)   to conserve biological diversity and promote ecologically sustainable development, and
(b)   to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and
(c)   to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and
(d)   to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and
(e)   to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and
(f)   to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management.

4 Definitions
(1) In this Act:
…
critically endangered species means a species specified in Part 1 of Schedule 1A.
…
endangered species means a species specified in Part 1 of Schedule 1.
…
threatened species means a species specified in Part 1 or 4 of Schedule 1, Part 1 of Schedule 1A or Part 1 of Schedule 2.
…
vulnerable species means a species specified in Part 1 of Schedule 2.

…
Part 2 Listing of threatened species, populations and ecological communities and key threatening processes
…
Division 2 Eligibility for listing
10 Listing of species
(1)   A species is eligible to be listed as a species presumed extinct at a particular time if, in the opinion of the Scientific Committee, it has not been recorded in its known or expected habitat in New South Wales, despite targeted surveys, over a time frame appropriate, in the opinion of the Scientific Committee, to its life cycle and form.
(2)   A species is eligible to be listed as a critically endangered species if, in the opinion of the Scientific Committee, it is facing an extremely high risk of extinction in New South Wales in the immediate future, as determined in accordance with criteria prescribed by the regulations.
(3)   A species is eligible to be listed as an endangered species if, in the opinion of the Scientific Committee:
(a)   it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria prescribed by the regulations, and
(b)   it is not eligible to be listed as a critically endangered species.

(4)   A species is eligible to be listed as a vulnerable species if, in the opinion of the Scientific Committee:
(a)   it is facing a high risk of extinction in New South Wales in the medium-term future, as determined in accordance with criteria prescribed by the regulations, and
(b)   it is not eligible to be listed as an endangered or critically endangered species.

Section 101(1) of the NPW Act concerns protected fauna. Birds (including bird eggs) as defined in s 5(1) are protected fauna as also defined in s 5(1) of the NPW Act as they do not appear in Sch 11. Sections 118A(1) and 118B(1) of the NPW Act relate to an “animal” at any stage of development as defined in s 5(1), which includes bird eggs. “Harm” is defined in s 5(1) of the NPW Act and includes “injure”. “Egg” includes any part of an egg or eggshell. The possession offences state in s 101(6) (protected fauna) and s 118B(6) (threatened species) that possession includes having protected fauna in a building or lodging inter alia. “Critically endangered species”, “endangered species”, “threatened species” and “vulnerable species” have the same meaning as in the TSC Act.
The NPW Act and the TSC Act have been amended or repealed since the charge periods. The parties agree the relevant version of the two acts is as at 8 November 2016. The NPW Act (including s 101(1) possess protected fauna offence and s 120 (general licence provision) came into force on 1 January 1975. Sections 118A and 118B were introduced into the NPW Act by the TSC Act and came into force on 1 January 1996. I note for completeness that ss 101, 118A, 118B and 120 of the NPW Act were repealed and replaced by provisions in the Biodiversity Conservation Act 2016 (NSW) (BC Act) which commenced on 25 August 2017. The Prosecutor filed summonses to commence these proceedings on 6 November 2018. Prosecutions for historic offences are saved by transitional provisions in Sch 9 of the BC Act and reg 58 of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW).

Agreed statement of facts

The parties agreed the following statement of agreed facts (SOAF) tendered as Ex A (footnotes omitted):

1.   Between 9 September 2016 and 3 December 2016, Beni State Conservation Area (“Beni SCA”) was closed to the public due to adverse weather.
2.   On 9 September 2016 Mr Somerville’s ute became bogged in Beni SCA.
3.   NPWS Field Officer Kim Turner located Mr Somerville with his vehicle at around 10:30 am. Mr Somerville told Officer Turner “I'm bird watching”. At around 12:30 pm, Officer Turner returned and found Mr Somerville's vehicle in the same location and bogged. Officer Turner called in NPWS Senior Field Supervisor Dave Brill to assist.
4.   Officer Brill sighted Mr Somerville’s drivers licence and photographed his vehicle showing licence plate CVE 81C. Mr Somerville told Officer Brill “I was bird watching”. Mr Somerville left.
5.   On 20 September 2016 NPWS installed three surveillance cameras in Beni SCA.
6.   On 24 September 2016 surveillance cameras captured Mr Somerville entering Beni SCA, carrying a tomahawk, at 3:14 pm. At 4:20 pm, Mr Somerville attached a ladder on to his ute and left.
7.   On 25 September 2016 surveillance cameras captured Mr Somerville entering Beni SCA at 2:23 pm and leaving at 3:11 pm. Mr Somerville was accompanied by a person who moved aside the barrier to enable access to Beni SCA.
8.   On 26 September 2016 surveillance cameras captured Mr Somerville entering Beni SCA at 2:23 pm and leaving at 3:11 pm.
9.   On 26 September 2016 surveillance cameras show Mr Somerville leaving Beni SCA at 2:48 pm. His time of entry was not captured.
10.   On 13 October 2016 NPWS installed a further two surveillance cameras inside Beni SCA.
11.   On 14 October 2016 surveillance cameras captured Mr Somerville’s ute parked at entrance of reserve, Mr Somerville entering Beni SCA at 1:47 pm and later exiting at 3:45 pm.
12.   On 18 October 2016 surveillance cameras captured Mr Somerville's ute parked at the exit of reserve. Mr Somerville moved the NPWS barrier at entrance to Beni SCA to one side and left in his ute at 5:18 pm.

13.   Between October and November OEH specialist investigators also conducted periodic surveillance on Mr Somerville.
14.   On 24 October 2016 at midday Officer Turner observed that the park gates to Beni SCA (that had been in place to prevent public access due to wet weather) had been opened without authority. She drove into the park and found CVE unattended on the trail. She waited for approximately 20 minutes, photographed the vehicle, and then left. Surveillance images show the ute being driven into the reserve at 10:51 am, Mr Somerville moving the NPWS barrier at entrance to Beni aside at 1:50 pm, and then leaving the reserve in his ute.
Search warrant
15.   On 8 November 2016 specialist investigators obtained a search warrant.
16.   On 9 November 2016 the warrant was executed at Mr Somerville’s residence [in] Dubbo, over Mr Somerville's caravan located in the front yard of the property, and over Mr Somerville's ute.
17.   During the execution of the warrant, Mr Somerville was asked whether he had property inside the house. He responded “only me egg collection”.
18.   Inside the house, investigators located two large cabinets containing a collection of bird eggs. The cabinets had multiple drawers containing individual compartments underneath glass. The eggs appeared to have been preserved by having been hollowed out and then stored in the compartments, and protected with cotton wool.
19.   When Mr Somerville was asked for the location of his egg collection, he pointed at the first cabinet and then used a key to unlock the cabinet. He stated that he had added to the collection “recently”, including “a couple of weeks ago”.
20.   The second cabinet was located in the hallway. Mr Somerville stated “it’s just an empty cabinet and it’s a got a few eggs in there”, but that the key had been lost. Mr Somerville exited the house, returned with a screwdriver and then a spanner, which he used to remove the lock. The drawers were opened by investigators who located “data cards” inside some of the drawers stating “OOLOGICAL COLLECTION OF ANTHONY SOMERVILLE”.
21.   Inside Mr Somerville's caravan, investigators seized a wooden box containing alphabetised “data cards”. The data cards were each headed “Oological Collection of Anthony Somerville”. Each data card contained information in fields headed:
•   “Species”,
•   “Scientific name”,
•   “Check number” (each species was assigned a number, some of the numbers accorded with a list found on Mr Somerville’s laptop titled “707 Birds of Australiaa.doc”),
•   “set mark” (which corresponded with the identification symbols marked on the eggs),
•   “incubation”,
•   “date taken”,
•   “eggs in set”,
•   “identity”,
•   “location”,
•   “locality”,
•   “Nest”,
•   “notes” (which provided detail about the circumstances in which the eggs were taken), and
•   “Collected by” (typically, Anthony Somerville, but occasionally Jason Somerville, Brandon Somerville or a combination).

22.   Mr Somerville agreed the data cards were his and had been typed out by him from handwritten notes. Soft copies of the data cards were found on Mr Somerville's laptop located in the caravan. Handwritten notes were also found in the caravan containing similar information.
23.   For example, a handwritten note was found for the “yellow bitten” [sic] collected on “10 June”. The handwritten noted stated “the yellow bitten seems to be in trouble this is the only set of eggs so far that have been able to blow due to very thin shells not tough blame DDT”. A data card for the “yellow bitten” was found on Mr Somerville's laptop indicating he collected the egg from Nong-Hin, Thailand, on 1 June 2016. The notes include “A number of the yellow bitten eggs were collected the shells were so thin that they could not be saved the shells are very thin and this could be that there food supply is contaminated with DDT.”
24.   A number of tools and paraphernalia for egg blowing and storage were found in Mr Somerville's caravan, including:
•   a small drill, capable of drilling a hole in the eggs,
•   nails and a syringe, to facilitate removal of the egg’s contents,
•   styrofoam boxes, for storage and transport,
•   cotton wadding and bubble wrap, for storage and transport, and
•   metal tins with foam inserts containing egg shaped cut outs of various sizes, for storage and transport.

25.   In Mr Somerville’s ute, investigators located similar tins containing foam inserts with egg-shaped cut outs, as well as nets and traps, a tomahawk, a ladder, and pink flagging tape.
26.   After being cautioned, Mr Somerville made a number of statements during the execution of the warrant, including:
a.   When asked where he got certain eggs from, he stated “Believe it or not out of a nest”,
b.   When asked where a nest was, he stated "in a paddock that was flooded" at Parkes,
c.   When asked about the representations in a data card (“It's got a sign here that, date taken 27 of December 1964 in Warren, so it's indicative of when these ones were taken?”) he answered “well for that data card, yes”,
d.   When asked if he had collected eggs recently, he said “Yes”, from “All over the place”,
e.   When asked about the purpose of the tins with foam inserts (“What are these used for mate?”), he stated “Putting eggs in”, “So they don't get broken”, and
f.   He agreed that he used pink flagging tape to mark trees, but stated the purpose was “as walk into the bush and thick scrub so can find me way out again”, and denied it was marking the location of eggs.

Interview with police
27.   On November Mr Somerville participated in a voluntary interview with Dubbo Police. When questioned about the most recent time he collected eggs, Mr Somerville said:
a.   “[I] jumped up on me ladder and got them”, from a “nest” in a “gum tree”, then put them in “what I call an egg tin”, and “brought em home and took care of em”.
b.   By “took care of them”, he meant he took them “to me caravan”, where he “extracted the inside out of them, so they was a specimen shell”, “with a drills and a pipe and proper drills”.
c.   He explained that “the egg is blown, using one small hole, the albium [as said] is taken out, the membrane is taking out [as said], the yolk is taken out, which leave a calcified shell”.
d.   He admitted that he did not have a licence to collect eggs, and that he knew it was against the law.

Expert report
28.   Ms Leah Tsang of the Australian Museum, relevantly an expert in ornithology, was engaged to provide her expert opinion on species identification.
29.   Ms Tsang was provided with a total of 367 eggs to analyse. Ms Tsang provided two expert reports in which she classified some of the eggs as eggs of a species of bird that was protected fauna, an endangered species, a critically endangered species, or a vulnerable species, and native to Australia or migratory to Australia.
…
Charges
Possess threatened species (Summons 340649 of 2018)
43.   On 9 November 2016, a clutch of 8 eggs of the Black-breasted Button- quail (Turnix melanogaster) was in Mr Somerville's possession.
44.   The Black-breasted Button-quail is a critically endangered species under the National Parks and Wildlife Act.
Possess threatened species (Summons 340650 of 2018)
45.   On 9 November 2016, a clutch of 16 eggs of the Black-necked Stork (Ephippiorhynchus asiaticus) and a clutch of 30 eggs of the Bush Stone- curlew (Burhinus grallarius) were in Anthony Somerville's possession.
46.   The Black-necked Stork and the Bush Stone-curlew are endangered species under the National Parks and Wildlife Act.
Possess threatened species (Summons 340651 of 2018)
47.   On 9 November 2016 Mr Somerville had in his possession eggs of the following species, which are vulnerable species under the National Parks and Wildlife Act:
(a)   Albert's Lyrebird (Menura alberti): 1 egg
(b)   Barking Owl (Ninox connivens): 5 eggs
(c)   Brolga (Grus rubicunda): 4 eggs
(d)   Chestnut Quail-thrush (Cinclosoma castanotum): 3 eggs
(e)   Eastern Osprey (pandion cristatus): 5 eggs
(f)   Gilbert's Whistler (Pachycephala inornata): 2 eggs
(g)   Grey-crowned Babbler (Pomatostomus temporalis temporalis): 15 eggs
(h)   Hooded Robin (Melanodryas cucullate): 2 eggs
(i)   Olive Whistler (Pachycephala olivaceus): 8 eggs
(j)   Pied Honeyeater (Certhionyx variegatus): 8 eggs
(k)   Painted Honeyeater (Grantiella pict): 10 eggs
(l)   Red-backed Button-quail (Turnix maculosus): 4 eggs
(m)   Scarlet Robin (Petroica boodang): 2 eggs
(n)   Southern Scrub-Robin (Drymodes brunneopygia): 2 eggs
(o)   Speckled Warbler (Chthonicola sagittate): 10 eggs

Possess protected fauna (Summons 340652 of 2018)
48.   On 9 November 2016, Mr Somerville had in his possession eggs of the following species, which are protected fauna under the National Parks and Wildlife Act:
(a)   Bassian Thrush (Zoothera lunulata): 10 eggs
(b)   Brown-backed Honeyeater (Ramsayornis modestus): 11 eggs
(c)   Brush Cuckoo (Cacomantis variolosus): 3 eggs
(d)   Cattle Egret (Ardea ibis): 20 eggs
(e)   Crimson Chat (Epthianura tricolor): 16 eggs
(f)   Golden-headed Cisticola (Cisticola exilis): 31 eggs
(g)   Little Wattlebird (Anthochaera chrysoptera): 4 eggs
(h)   Olive-backed Sunbird (Cinnyris jugularis): 4 eggs
(i)   Red Wattlebird (Anthochaera carunculata): 12 eggs
(j)   Rufous-throated honeyeater (Conopophila rufogularis): 32 eggs
(k)   Rufous Whistler (Pachycephala rufiventris): 6 eggs

Harm threatened species (Summons 340654 of 2018)
49.   On 25 August 2013, Mr Somerville collected two eggs of the Bush Stone-curlew (Burhinus grallarius) from a nest near Warren, NSW. After collecting the eggs, Mr Somerville then blew the eggs.
50.   The Bush Stone-curlew is an endangered species under the National Parks and Wildlife Act.
51.   A photograph of the eggs follows:
52.   The corresponding data card outlines the circumstances of the collection by Mr Somerville:
Harm threatened species (Summons 340656 of 2018)
53.   On 25 August 2010, Mr Somerville collected three eggs of the Grey-crowned Babbler (Pomatostomus temporalis) from a nest near Warren, NSW. After collecting the eggs, Mr Somerville then blew the eggs.
54.   The Grey-crowned Babbler is a vulnerable species under the National Parks and Wildlife Act.
55.   A photograph of the blown eggs and the corresponding data card summarising the circumstances of collection follow:
Harm threatened species (Summons 340657 of 2018)
56.   On 13 August 2011, Mr Somerville collected three eggs of the Grey- crowned Babbler (Pomatostomus temporalis) from a nest near Warren, NSW. After collecting the eggs, Mr Somerville then blew the eggs.
57.   The Grey-crowned Babbler is a vulnerable species under the National Parks and Wildlife Act.
58.   A photograph of the blown eggs and the corresponding data card summarising the circumstances of collection follow:
Harm threatened species (Summons 340658 of 2018)
59.   On 2 September 2011, Mr Somerville collected three eggs of the Grey-crowned Babbler (Pomatostomus temporalis) from a nest near Warren, NSW. After collecting the eggs, Mr Somerville then blew the eggs.
60.   The Grey-crowned Babbler is a vulnerable species under the National Parks and Wildlife Act.
61.   A photograph of the blown eggs and the corresponding data card follow:

Harm threatened species (Summons 340659 of 2018)
62.   On 12 December 2011, Mr Somerville collected two eggs of the Painted Honeyeater (Grantiella picta) from a nest near Warren, NSW. After collecting the eggs, Mr Somerville then blew the eggs.
63.   The Painted Honeyeater is a vulnerable species under the National Parks and Wildlife Act.
64.   A photograph of the eggs in situ follow:
65.   The corresponding data card outlines the circumstances of the collection by Mr Somerville:
Harm threatened species (Summons 340660 of 2018)
66.   On 31 December 2011, Mr Somerville collected two eggs of the Painted Honeyeater (Grantiella picta) from a nest near Warren, NSW. After collecting the eggs, Mr Somerville then blew the eggs.
67.   The Painted Honeyeater is a vulnerable species under the National Parks and Wildlife Act.
68.   A photograph of the blown eggs in situ follows:
69.   The corresponding data card outlines the circumstances of the collection by Mr Somerville:
Harm threatened species (Summons 340661 of 2018)
70.   On 31 December 2011, Mr Somerville collected two eggs of the Painted Honeyeater (Grantiella picta) from a nest near Warren, NSW. After collecting the eggs, Mr Somerville then blew the eggs.
71.   The Painted Honeyeater is a vulnerable species under the National Parks and Wildlife Act.
72.   A photograph of the blown eggs in situ follows:
73.   The corresponding data card outlines the circumstances of the collection by Mr Somerville:
Harm threatened species (Summons 340662 of 2018)
74.   On 25 August 2012, Mr Somerville collected the egg of the Southern Scrub-robin (Drymodes brunneopygia) from a nest near Nombinnie Nature Reserve, NSW. After collecting the eggs, Mr Somerville then blew the egg.
75.   The Southern Scrub-robin is a vulnerable species under the National Parks and Wildlife Act.
76.   A photograph of the blown egg in situ follows:
77.   The corresponding data card outlines the circumstances of the collection by Mr Somerville:
Harm threatened species (Summons 340663 of 2018)
78.   On 26 August 2012, Mr Somerville collected two eggs of the Gilbert’s Whislter (Pachycephala inomata) from a nest near Nombinnie Nature Reserve, NSW. After collecting the eggs, Mr Somerville then blew the eggs.
79.   The Gilbert’s Whistler is a vulnerable species under the National Parks and Wildlife Act.
80.   A photograph of the blown eggs in situ follows:
81.   The corresponding data card outlines the circumstances of the collection by Mr Somerville:
Harm threatened species (Summons 340664 of 2018)
82.   On 27 August 2012, Mr Somerville collected the egg of the Southern Scrub-robin (Drymodes brunneopygia) from a nest near Nombinnie Nature Reserve, NSW. After collecting the eggs, Mr Somerville then blew the egg.
83.   The Southern Scrub-robin is a vulnerable species under the National Parks and Wildlife Act.
84.   A photograph of the blown egg in situ follows:
85.   The corresponding data card outlines the circumstances of the collection by Mr Somerville:
Harm threatened species (Summons 340665 of 2018)
86.   On 2 September 2012, Mr Somerville collected the egg of the Southern Scrub-robin (Drymodes brunneopygia) from a nest near Nombinnie Nature Reserve, NSW. After collecting the eggs, Mr Somerville then blew the egg.
87.   The Southern Scrub-robin is a vulnerable species under the National Parks and Wildlife Act.
88.   A photograph of the blown egg in situ follows:
89.   The corresponding data card outlines the circumstances of the collection by Mr Somerville:
Harm threatened species (Summons 340666 of 2018)
90.   On 13 October 2012, Jason Somerville collected two eggs of the Hooded Robin (Melanodryas cucullate), from a nest near Nangar National Park in NSW. Mr Somerville then blew the eggs.
91.   The Hooded Robin is a vulnerable species under the National Parks and Wildlife Act.
92.   A photograph of the blown eggs in situ follows:
93.   The corresponding data card outlines the circumstances of the collection by Jason Somerville:
Harm threatened species (Summons 340667 of 2018)
94.   On 12 August 2013, Mr Somerville collected three eggs of the Grey- crowned Babbler (Pomatostomus temporalis) from a nest near Warren, NSW. After collecting the eggs, Mr Somerville then blew the eggs.
95.   The Grey-crowned Babbler is a vulnerable species under the National Parks and Wildlife Act.
96.   A photograph of the blown eggs follows:
97.   The corresponding data card outlines the circumstances of the collection by Mr Somerville:
Harm threatened species (Summons 340668 of 2018)
98.   On 1 September 2013, Mr Somerville collected three eggs of the Grey-crowned Babbler (Pomastostomus temporalis) from a nest near Warren, NSW. After collecting the eggs, Mr Somerville then blew the eggs.
99.   The Grey-crowned Babbler is a vulnerable species under the National Parks and Wildlife Act.
100.   A photograph of the blown eggs in situ follows:
101.   The corresponding data card outlines the circumstances of the collection by Mr Somerville:
Harm threatened species (Summons 340669 of 2018)
102.   On 2 January 2013, Mr Somerville collected two eggs of the Painted Honeyeater (Grantiella picta) from a nest near Warren, NSW. After collecting the eggs, Mr Somerville then blew the eggs.
103.   The Painted Honeyeater is a vulnerable species under the National Parks and Wildlife Act.
104.   A photograph of the blown eggs in situ follows:
105.   The corresponding data card summarises the circumstances of the collection by Mr Somerville:
Harm threatened species (Summons 340670 of 2018)
106.   On 20 November 2013, Mr Somerville collected two eggs of the Painted Honeyeater (Grantiella picta) from a nest near Warren, NSW. After collecting the eggs, Mr Somerville then blew the eggs.
107.   The Painted Honeyeater is a vulnerable species under the National Parks and Wildlife Act.
108.   The corresponding data card summarises the circumstances of the collection by Mr Somerville:
Harm threatened species (Summons 340671 of 2018)
109.   On 3 October 2016, Mr Somerville collected three eggs of the Speckled Warbler (Chthonicola sagittata) from a nest near Dubbo, NSW. After collecting the eggs, Mr Somerville then blew the eggs.
110.   The Speckled Warbler is a vulnerable species under the National Parks and Wildlife Act.
111.   A photograph of the blown eggs in situ follows:
112.   The corresponding data card outlines the circumstances of the collection by Mr Somerville:
Harm threatened species (Summons 340672 of 2018)
113.   On 11 October 2016, Mr Somerville collected three eggs of the Speckled Warbler (Chthonicola sagittata) from a nest near Dubbo, NSW. After collecting the eggs, Mr Somerville then blew the eggs.
114.   The Speckled Warbler is a vulnerable species under the National Parks and Wildlife Act.
115.   A photograph of the blown eggs in situ follows:
116.   The corresponding data card outlines the circumstances of the collection by Mr Somerville:

Summary of offences

The possession offences under ss 118B(1) and 101(1) are summarised in the table below.

Matter number	Offence	Charge date	Number of eggs	Protective status and maximum penalty
18/340649	Possess threatened species – s 118B(1)	On or about 10 November 2016	8 eggs	Critically endangered species $220,000 and/or 2 years prison
18/340650	Possess threatened species – s 118B(1)	On or about 10 November 2016	46 eggs	Endangered species $220,000 and/or 2 years prison
18/340651	Possess threatened species – s 118B(1)	On or about 10 November 2016	81 eggs	Vulnerable species $55,000 and/or 1 year prison
18/340652	Possess protected fauna – s 101(1)	On or about 10 November 2016	149 eggs	Protected fauna $110,000 and/or 6 months prison

One possession offence under s 101(1) is in relation to 149 eggs, and the three possession offences under s 118B(1) are in relation to 135 eggs. In total the Defendant pleaded guilty to the possession of 284 eggs. The maximum penalty for possessing eggs under s 101(1) is $110,000 and/or six months imprisonment. The maximum penalty for the three offences under s 118B(1) is $495,000 and/or five years imprisonment.
The harm threatened species offences under s 118A(1) are summarised in the table below.

Matter number	Charge period	Number of eggs	Protective status and maximum penalty
18/340654	25 August 2013 – 10 November 2016	2 eggs	Endangered species $220,000 and/or 2 years prison Where an endangered animal is harmed an additional $55,000 per animal = $110,000 for 2 eggs Maximum = $330,000
18/340656	25 August 2010 – 10 November 2016	3 eggs	Vulnerable species $55,000 and/or 1 year prison Where a vulnerable animal is harmed an additional $5,500 per animal = $16,500 for 3 eggs Maximum = $71,500
18/340657	13 August 2011 – 10 November 2016	3 eggs	Vulnerable species $55,000 and/or 1 year Additional $16,500 = $71,500
18/340658	2 September 2011 – 10 November 2016	3 eggs	Vulnerable species $55,000 and/or 1 year Additional $16,500 = $71,500
18/340659	12 December 2011 – 10 November 2016	2 eggs	Vulnerable species $55,000 and/or 1 year Additional $11,000 = $66,000
18/340660	31 December 2011 – 10 November 2016	2 eggs	Vulnerable species $55,000 and/or 1 year Additional $11,000 = $66,000
18/340661	31 December 2011 – 10 November 2016	2 eggs	Vulnerable species $55,000 and/or 1 year Additional $11,000 = $66,000
18/340662	25 August 2012 – 10 November 2016	1 egg	Vulnerable species $55,000 and/or 1 year Additional $5,500 = $60,500
18/340663	26 August 2012 – 10 November 2016	2 eggs	Vulnerable Species $55,000 and/or 1 year Additional $11,000 = $66,000
18/340664	27 August 2012 – 10 November 2016	1 egg	Vulnerable species $55,000 and/or 1 year Additional $5,500 = $60,500
18/340665	2 September 2012 – 10 November 2016	1 egg	Vulnerable species $55,000 and/or 1 year Additional $5,500 = $60,500
18/340666	13 October 2012 – 10 November 2016	2 eggs	Vulnerable species $55,000 and/or 1 year Additional $11,000 = $66,000
18/340667	12 August 2013 – 10 November 2016	3 eggs	Vulnerable species $55,000 and/or 1 year Additional $16,500 = $71,500
18/340668	1 September 2013 – 10 November 2016	3 eggs	Vulnerable species $55,000 and/or 1 year Additional $16,500 = $71,500
18/340669	2 January 2013 – 10 November 2016	2 eggs	Vulnerable species $55,000 and/or 1 year Additional $11,000 = $66,000
18/340670	20 November 2013 – 10 November 2016	2 eggs	Vulnerable species $55,000 and/or 1 year Additional $11,000 = $66,000
18/340671	3 October 2016 – 10 November 2016	3 eggs	Vulnerable Species $55,000 and/or 1 year Additional $16,500 = $71,500
18/340672	11 October 2016 – 10 November 2016	3 eggs	Vulnerable Species $55,000 and/or 1 year Additional $16,500 = $71,500

Eighteen harm offences under s 118A(1) are in relation to a total of 40 eggs. The maximum penalty for harm of two endangered species’ eggs (proceedings 18/340654) is $330,000 and/or two years imprisonment. The maximum penalty for harm of 38 vulnerable species’ eggs (proceedings 18/340656-340672) is $1,144,000 and/or 17 years imprisonment. The total maximum penalty available under s 118A(1) for harm of 40 eggs is $1,474,000 and/or 19 years imprisonment.
Adding together the maximum penalties for offences under ss 101(1), 118A(1) and 118B(1), the total maximum penalty available is $2,079,000 and/or imprisonment for 24 years and six months.
The Defendant argued that it was not clear whether Mr Somerville was being prosecuted for both harm and possession offences in relation to some of the eggs. During the hearing the Prosecutor supplied the below table identifying overlapping of the eggs in relation to the following charges:

Possess summonses

Number of eggs

Harm summonses

Number of eggs

18/340650

46

340654

2

18/340651

81

340656

3

340657

3

340658

3

340659

2

340660

2

340661

2

340662

1

340663

2

340664

1

340665

1

340666

2

340667

3

340668

3

340669

2

340670

2

340671

3

340672

3

Total overlapping eggs

40

I note the above table means that of the 46 endangered species’ eggs the subject of possession offence 18/340650 (SOAF par 45), two of those eggs are also the subject of harm offences in proceedings 18/340654 (SOAF par 49). Of the 81 vulnerable species’ eggs the subject of possession offence 18/340651 (SOAF par 47), 38 eggs are also the subject of harm offences. In other words, all 40 eggs the subject of harm offences are included in the possession offences. The total number of eggs the subject of possession offences is 244 excluding the 40 double-counted eggs.

Affidavit of Donna Somerville

The Defendant tendered the affidavit of Donna Somerville, nurse and daughter of the Defendant, affirmed 30 March 2021. Ms Somerville attested that she was authorised to make this affidavit on the Defendant’s behalf. The Defendant is 76 years old and has substantial health issues including diabetes which Ms Somerville looks after. She also looks after the Defendant’s mail. The Defendant’s medication costs approximately $150 per month.
The affidavit includes a letter dated 17 March 2021 from the Defendant’s general practitioner for the last two years, Dr Narasignhe, outlining the Defendant’s substantial health issues which require close monitoring. The Defendant is currently compliant with attending medical appointments and taking medications. Dr Narasignhe stated that the Defendant’s medical conditions are likely to worsen with a custodial sentence.
Ms Somerville attested that the Defendant is unemployed. His only source of income is the aged pension of just over $1,000 per fortnight. The Defendant has no significant assets. His bank account balance varies but on 22 March 2021 it was $5. The Defendant owns and lives in his caravan which is worth approximately $20,000.
Mr Somerville has largely confined himself to his caravan on the premises where Ms Somerville lives ever since a search warrant was executed against him on 9 November 2016. The Defendant has not insofar as Ms Somerville is aware gone birdwatching, entered any national park or state conservation area, undertaken any activities involving hunting or foraging for bird eggs on any land, or been charged with any offence.
Summonses in these proceedings were filed on 6 November 2018. Ms Somerville has assisted the Defendant in relation to organising documents and in his communications with the Court, the Prosecutor, and his representatives. The Defendant intended and attempted to plead guilty to the charges when the proceedings were before Pepper J on or about 1 February 2019. At that point, her Honour ordered the Defendant to receive pro-bono assistance.
Ms Somerville attested that the Defendant is a bird enthusiast and has had an egg collection since 1955. Some of the eggs were given to him in the 1950s and 1960s by friends and colleagues. The Defendant has told Ms Somerville that in some cases the eggs came from interstate. The Defendant has donated some of his eggs to the Museum of South Australia. He has offered his collection to the Commonwealth Scientific and Industrial Research Organisation (CSIRO) when he passes away. The Defendant’s experiences in collecting and documenting his egg clutches have been recorded in Ian Mason and Gilbert Pfitzner, Passions in Ornithology: A Century of Australian Egg Collectors (2020, Ian Mason) at 457-8.

Sentencing assessment report

A sentencing assessment report by the Dubbo Community Corrections Office was obtained to inform sentencing (Ex C). The assessment dated 25 May 2021 stated:

…
Factors related to offending
History of anti-social behaviour
Mr Sommerville’s [sic] anti-social behaviour is diverse in nature, ranging from stealing and receiving stolen goods, possessing a firearm in a public place, and knowingly attempting to export native fauna. It has been 28 years since Mr Sommerville’s [sic] last criminal conviction.
Mr Sommerville [sic] claimed he was incarcerated in an Indonesian prison in 1989 for a period of 12 months for bird smuggling.
Attitudes
Mr Sommerville [sic] reported that he has been collecting fauna from the age of 13 years and has a passion for Ornithology. Throughout the SAR interview process he tended to minimise and normalise his offending behaviour by affirming his actions were in the interest of fauna preservation. Further, Mr Sommerville [sic] is of the view that his knowledge and expertise in this particular field is far superior to that of the authorities.
Responsivity
Insight into impact of offending
Mr Sommerville [sic] expressed poor insight into his offending by attempting to justify and validate his actions by asserting his collection is now displayed at the Commonwealth Scientific and Industrial Research Organisation (CSIRO).
Mr Sommerville [sic] justified his offending behaviour by denying any negative impact on the eco-system, claiming he was preserving of [sic] the fauna and therefore improving the eco-system.
Willingness and ability to undertake intervention
Mr Sommerville [sic] is willing and able to undertake intervention ordered by the court.
Willingness and ability to undertake community service work
Although Mr Sommerville [sic] has expressed a willingness to undertake community service work, it is considered that his current physical health challenges would significantly impeded [sic] his ability to undertake such an order.
Response to supervision
Mr Sommerville [sic] has displayed compliant behaviour with regards to the preparation of this report.
Assessment and recommendations
Risk assessment
Mr Sommerville [sic] has been assessed at a T1/Med-Low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).
Supervision plan
Due to Mr Sommerville’s [sic] T1/Med-Low risk of reoffending, if the court makes a supervised order, Community Corrections will monitor him for any indicators of increased risk.
Mr Sommerville [sic] will be required to advise of any changes to his address or contact details, and any significant changes to his circumstances. Community Corrections will receive an automatic notification if he has contact with the NSW Police Force or enters a NSW Correctional Centre.
Mr Sommerville [sic] will not be required to have ongoing contact with a Community Corrections Officer. However, if an automatic notification or any other information indicates that his risk of re-offending has increased; Community Corrections will review the case. This review may result in Community Corrections commencing ongoing contact with Mr Sommerville [sic] or submitting a breach report.
Mr Sommerville [sic] should telephone the Dubbo Community Corrections Office within 7 days to receive instructions about his obligations
Recommended order conditions
Community Corrections considers that no conditions other than a supervision condition are required to implement the supervision plan above.
Community service assessment
Community Corrections has assessed Mr Sommerville [sic] as unsuitable to undertake community service work for the following reason:
• Mr Sommerville’s [sic] physical health challenges.

Purposes of sentencing

Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) states:

Part 1 Preliminary
…
3A   Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows—
(a)   to ensure that the offender is adequately punished for the offence,
(b)   to prevent crime by deterring the offender and other persons from committing similar offences,
(c)   to protect the community from the offender,
(d)   to promote the rehabilitation of the offender,
(e)   to make the offender accountable for his or her actions,
(f)   to denounce the conduct of the offender,
(g)   to recognise the harm done to the victim of the crime and the community.

The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of a defendant: Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J) and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 472-473 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-91 (Deane J). The sentence should not exceed what is justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen (No 2) at 472, 485-486, 490-491, 496 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

Objective circumstances

A number of matters may be considered in determining the objective circumstances of an offence. The following criteria set out by Preston CJ in Plath v Chaffey [2009] NSWLEC 196 at [27] are adopted, noting that was also a sentencing decision relating to the collection of protected bird eggs.

The primary consideration in sentencing is the objective gravity or seriousness of each offence. In determining the objective gravity or seriousness of each of the offences in this case, the circumstances to which the Court may have regard include:
(a)   the nature of the offences;
(b)   the maximum penalties for the offences;
(c)   the harm caused to the environment by commission of the offences;
(d)   the state of mind of the offender in committing the offences;
(e)   the offender’s reasons for committing the offences;
(f)   the foreseeable risk of harm to the environment by commission of the offences;
(g)   the practical measures to avoid harm to the environment; and
(h)   the offender’s control over the causes of harm to the environment.

Nature of the offences

A fundamental consideration for environmental offences is the extent to which the defendant’s conduct offends against the legislative objectives expressed in the offence: Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 at [42] (EPA v Abbas). The objects of the NPW Act are set out above in [3]. Sections 118A and 118B of the NPW Act were introduced by the TSC Act, the objects of which are set out above in [5]. The regulatory objectives at subs (d), to eliminate or manage processes that threaten the development of threatened species and subs (e), to ensure the proper assessment of actions affecting threatened species, are particularly relevant to these facts. The nature and legislative objectives of s 118A of the NPW Act and the statutory scheme have been considered in a series of cases as Preston CJ set out in Plath v Chaffey at [28].
As the Prosecutor submitted, one of the principal ways the objects of the NPW Act are achieved is by imposing a general prohibition on possession or harm to threatened species and protected fauna unless a person has applied for and obtained a licence. There is a need to uphold the integrity of the regulatory system under the NPW Act and the TSC Act. The system depends on persons taking steps to ascertain when approval is required to possess or harm threatened species and protected fauna, making the appropriate application and obtaining approval and, finally complying with the terms and conditions of the approval when undertaking the damaging conduct.
As the Prosecutor also submitted, offences which undermine the objects of a regulatory system are objectively serious. The actions of the Defendant in harming threatened species, possessing threatened species and possessing protected fauna, without first applying for and obtaining a general licence under former s 120 of the NPW Act (if available), offended against the legislative objectives expressed in the statutory offences and thwarted the achievement of the objects of the NPW Act and the TSC Act. But for one offence concerning 149 eggs under s 101(1) of the NPW Act (SOAF par 48) the bird eggs were of either critically endangered, endangered or vulnerable species.

Maximum penalty

The maximum penalty for any offence is relevant to determining the objective gravity of the offence. The maximum penalty reflects the public expression by Parliament of the seriousness of the offence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. It also provides a sentencing yardstick for the case before the court. As the High Court noted in Markarian v The Queen (2005) 228 CLR 357 [2005] HCA 25 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ):

It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

The maximum penalties for each offence are set out in the tables above in [9] and [11] in light of each offence concerning multiple eggs. As “animal” is defined to include any animal at any stage of development (see [3] above), each individual egg can be considered an additional basis for imposing a fine for the harm offences.
The Prosecutor submitted the following:

The maximum penalty for an offence in respect of any endangered species is greater than the maximum penalty for a vulnerable species in relation to ss 118A(1) and 118B(1). This shows that Parliament views an offence in respect of any endangered species as being proportionately more serious than an offence in respect of a vulnerable species.

In the s 118A(1) offences, Parliament has prescribed an additional penalty per whole animal that was harmed by or concerned in the action that constituted the offence. The prescription by Parliament of an additional penalty is intended to enable the total penalty to be proportionate to the extent of harm caused by the actions constituting the offence. By prescribing an additional penalty, Parliament has expressed that the objective gravity or seriousness of the offence increases with the number of whole animals affected by or concerned in the action constituting the offence: Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [94] (Preston CJ) in relation to s 118A(2).

The prescription of an additional penalty for each whole animal may also be recognition by Parliament of the value of each individual animal comprising a threatened species, population or ecological community. Species, populations and ecological communities can only be listed as threatened if they face a high risk of extinction (see Pt 2 Div 2 of the TSC Act). One reason may be that the number of individuals comprising the listed threatened species, population or ecological community have fallen to critically low levels. The loss of each individual whole animal of a threatened species, population or ecological community, contributes to the threats to the survival of the listed threatened species, population or ecological community.

The seriousness of the offence against s 118A(1) is also emphasised by the availability of a sentence of imprisonment for up to two years for an offence in respect of an endangered species, population or ecological community, or one year for an offence in respect of a vulnerable species, either by itself or in addition to a fine. The offences under ss 118B(1) and 101(1) of the NPW Act also include penal provisions emphasising their relevant seriousness.

The Defendant agreed that the maximum penalties require careful attention but not at the expense of achieving justice in an individual case. These penalties cover a wide range of potential offences.
I agree with the Prosecutor’s submissions which are underscored by the maximum penalty possible for all the offences, being over $2 million when penalties for the additional eggs in each charge are calculated and/or imprisonment for a total of 24 years and six months (see above in [9]-[13]).

Harm to the environment

The Prosecutor submitted and the Defendant accepted that breach of legislative provisions in the NPW Act that are intended to protect threatened species necessitates a finding that those offences caused harm to the environment.
The following matters are relevant to my consideration of harm caused by the possess offences. There is no detail in the SOAF in pars 43-48 about the circumstances in which the 149 eggs the subject of the possession charge under s 101(1), or the 135 eggs of critically endangered, endangered and vulnerable species the subject of the s 118B(1) charges came into the Defendant’s possession. Section 101(1) came into force in 1975. Section 118B(1) came into force in 1996. According to Ms Somerville’s affidavit in [21] above the Defendant has collected eggs since 1955, and some eggs were donated to him including from interstate. The Defendant submitted that the Court would not find that mere possession of the eggs caused harm to the environment. There is no evidence that the Defendant foraged for and collected a substantial number of these eggs from the wild and there is no evidence that a substantial number of the eggs subject to the possession offences were collected by the Defendant in New South Wales (NSW) after the date on which the offences came into force. Accordingly, the Court should consider harm to the environment primarily by reference to the harm offences. I agree.
The Prosecutor submitted that it was difficult to prove substantial harm for each individual harm offence. Considering the number of eggs, the sophistication and period over which the offences were committed, actual environmental harm has been demonstrated when the offences are considered in total. This essentially global submission fails to consider the different offences and their circumstances.
I agree with the Defendant that in relation to the harm offences, actual harm was caused to the 40 blown eggs and no more. There is no evidence of actual environmental harm beyond the harm to the eggs themselves. The Prosecutor has not demonstrated that there were viable local populations of these threatened species and that the loss of the number of eggs specified in each harm offence was likely to have placed that population at risk. Furthermore, some of these eggs were infertile. These circumstances are in significant contrast to the facts in Plath v Chaffey at [34] where it was agreed that Mr Chaffey’s removal and destruction of 94 eggs from Lord Howe Island could have threatened the survival of local populations of four bird species.

State of mind of the offender

The relevant offences are strict liability offences. Nevertheless, a person’s state of mind at the time of committing an offence can have the effect of increasing the objective seriousness of the offence: Secretary, Department of Planning Industry and Environment v Williams [2020] NSWLEC 134 at [51]. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed: EPA v Abbas at [46] citing Director-General of the Department of Environment and Climate Change v Rae (2009) 197 A Crim R 31; [2009] NSWLEC 137 at [42]. I considered the meanings of intention, negligence and reckless in EPA v Abbas at [46]-[48]:

46   … Intention “connotes a decision to bring about a situation so far as it is possible to do so – to bring about an act of a particular kind or a particular result”: He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 at 569 per Brennan J. Intention can be deduced from words and actions: McClelland v Environment Protection Authority [2021] NSWLEC 25 at [77].
47   In Environment Protection Authority v Wollondilly Abattoirs Pty Ltd [2019] NSWCCA 312 at [42] I considered the meaning of the term “reckless”, citing Pepper J in Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 at [98] as the state of mind of an offender who, while failing to perform an act (or performing an act as in this case), is aware of the risk that a particular consequence is likely to result from that act or omission (citing Pemble v R (1971) 124 CLR 107; [1971] HCA 20; La Fontaine v The Queen (1976) 136 CLR 62; [1976] HCA 52; and R v Crabbe (1985) 156 CLR 464; [1985] HCA 22).
48   In Plath of Department of Environment and Climate Change v Fish; Plath of Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144 I held at [81]:
in the criminal context, negligence means more than a breach of a duty of care. To amount to criminal negligence, the degree of carelessness must be such as to show such a disregard for the objects of the statute as to amount to a crime against the state (R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8; see also Andrews v DPP [1937] AC 576 per Lord Atkin at 583; applied in Cittadini v The Queen [2009] NSWCCA 302 at [38]-[40]). For there to be negligence, there must have been an indifference to an obvious risk (R v Taktak (1988) 14 NSWLR 226 at 247, applied in Cittadini).

The Prosecutor submitted, and the Defendant agreed, that he knew it was against the law to collect eggs without a licence. One offence for the possession of a protected species, as all birds in NSW are protected, relates to 149 eggs. The Prosecutor initially submitted that the Defendant knew the eggs were from endangered, critically endangered and vulnerable fauna. Therefore, intention would be an aggravating factor for the offence of possessing protected fauna. The Prosecutor agreed in oral submissions that whether the Defendant knew the exact protective status of the eggs (ie whether they belonged to a critically endangered, endangered or vulnerable species) could not be established. The Defendant’s data cards did not record level of protective status. However, the Prosecutor submitted that the finding of intention in Plath v Chaffey at [44] had nothing to do with the level of protection afforded to the species of birds. The deliberate harming of eggs should be enough of itself to find intention.
As the Defendant submitted, the Prosecutor has not proven beyond a reasonable doubt in relation to the ss 118A(1) and 118B(1) offences that the Defendant knew he was harming or possessing threatened species as defined in the TSC Act adopted in the NPW Act. There is no explicit evidence to that effect and no inference to the necessary standard arises on the data cards set out in the SOAF for the 18 s 118A(1) offences. The facts here are to be distinguished from Plath v Chaffey at [43] where Mr Chaffey admitted to being able to identify each of the four threatened bird species and two protected fauna species and their eggs. The Prosecutor’s reliance on Plath v Chaffey in this regard is misplaced.

Reasons for committing the offence

The Prosecutor submitted that it is apparent the Defendant committed the offences for his own benefit as a collector. The Defendant has donated part of his collection to the Museum of South Australia and has offered his collection to the CSIRO when he passes away. The parties agreed that the offences were not committed for financial gain.

Foreseeability of risk of harm

Given the Defendant’s knowledge of birds, the environmental harm caused was reasonably foreseeable.

Practical measures

The Defendant accepted he should not have collected the eggs. No environmental harm would then have been caused.

Control over causes

The Defendant collected the eggs and had control over the causes of the offences.

Matters of aggravation proved

Matters of aggravation under the CSP Act relied on by the Prosecutor are the commission of a series of criminal acts (s 21A(2)(m)) and planned or organised criminal activity (s 21A(2)(n)).

Series of criminal acts s 21A(2)(m)

Section 21A(2)(m) of the CSP Act requires the Court to consider whether the offence (ie each individual offence) involved multiple victims or a series of criminal acts. The Prosecutor submitted that for the harm offences the Defendant both collected (where set out in the SOAF), harmed and then kept the eggs the subject of the charges. In some charges the offences related to multiple eggs. The Defendant agreed that for the purposes of s 21A(2)(m) of the CSP Act, the harm offences involved a series of criminal acts.
I agree with the above. In relation to the harm offences, the eggs were collected on 25 August 2010 (SOAF par 53), 13 August 2011 (SOAF par 56), 2 September 2011 (SOAF par 59), 12 December 2011 (SOAF par 62), 31 December 2011 (SOAF par 66), 25 August 2012 (SOAF par 74), 26 August 2012 (SOAF par 78), 27 August 2012 (SOAF par 82), 2 September 2012 (SOAF par 86), 13 October 2012 (SOAF par 90), 2 January 2013 (SOAF par 102), 12 August 2013 (SOAF par 94), 25 August 2013 (SOAF par 49), 1 September 2013 (SOAF par 98), 20 November 2013 (SOAF par 106), 3 October 2016 (SOAF par 109) and 1 October 2016 (SOAF par 113). A total of 18 harm offences were committed between 2010 and 2016 which affected 40 eggs. The eggs were collected from near Warren, Nombinnie Nature Reserve, Nangar National Park and Beni State Conservation Area (Beni SCA) near Dubbo according to the SOAF and the data cards.

Planned or organised criminal activity s 21A(2)(n)

Section 21A(2)(n) of the CSP Act requires the Court to consider whether the offence was part of a planned or organised criminal activity, noting that the last sentence of s 21A(2) states that the Court is not to have regard to any such aggravating factors if these are an element of the offence. The elements of the offence do not include an element of planning or organisation. At common law the degree of pre-meditation or planning has long been recognised as a factor in weighing the seriousness of an offence: R v Morabito (1992) 62 A Crim R 82 at 86. It permits a court to treat the conduct as a more serious example of the offence charged than would otherwise be the case. Offences which are unplanned, impulsive, opportunistic and committed spontaneously are generally regarded as less serious than those that are planned: R v Mobbs [2005] NSWCCA 371 at [50]. A court is not entitled to make a finding that an offence was planned when such an adverse finding is not open: BIP v R [2011] NSWCCA 224 at [50].
The Prosecutor submitted that the Defendant’s actions were both highly planned and organised criminal activity. The Defendant collected, harmed and stored the eggs in question. His data cards display a level of sophistication and a high level of forethought, afterthought and planning.
The fact that an offence was planned does not of itself bring it within the aggravating provision: Hewitt v The Queen (2007) 180 A Crim R 306; [2007] NSWCCA 353 (Hewitt) at [25] citing Fahs v The Queen [2007] NSWCCA 26 at [21]-[22], cited in Environment Protection Authority v Mouawad (No 2) [2020] NSWLEC 166 (Mouawad (No 2)) at [35]. Hewitt at [25](c)-(f) was cited in Mouawad (No 2) at [35] as follows:

(c) The expression “organised criminal activity” may embrace the activities of several people or it may involve activity carried out by one person. In NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 at [72], Campbell J observed:
In deciding whether the aggravating factor in para (n) is present, there is first a question of construction about what is meant by “organised criminal activity”. In one sense, “organised criminal activity” involves the activities of several people that are planned or co-ordinated to carry out the crime. That is the sense involved in media discussion about whether organised crime is on the increase. In another sense, however, it can include activity that is carried out by just one person, concerning which that person engages in planning or preparation.

His Honour also observed (at [74] and [75]):
… as a matter of ordinary English, to think that “planned criminal activity” has any necessary element in it of there being more than one person involved … For these reasons, I conclude that the factor in para (n) can be present if there is planned organised criminal activity engaged in by just one person.

(d) Offences committed over a period of time may involve sufficient repetition and system to lead to the conclusion that they were organised within the meaning of para (n): NCR Australia at [76].
(e) In determining whether the facts give rise to “planning” as an aggravating factor, it is necessary to consider and refer to both the evidence that may affirm, and the evidence that may negative the drawing of such a conclusion. This Court in R v Reynolds [2004] NSWCCA 51, in determining on the facts of that case that evidence of planning was very limited but that it did exist and was of greater significance than that considered by the sentencing judge, observed at [39]: It may be that, had he considered the evidence in detail, his Honour would nevertheless have reached a factual finding similar to that which he did. The error lies in his failing to make reference to evidence pointing to a contrary conclusion. In particular, the list of businesses was, in my view, quite strong evidence of a degree of planning. The absence of a disguise is only one factor pointing in the other direction, or pointing to poor, rather than no, planning.
(f) Planning that is “somewhat haphazard, clumsy in many respects and bound to fail” may nevertheless be sufficient so as to enliven the application of s 21A(2)(n): R v Willard [2005] NSWSC 402 at [32] per Whealy J.

The Defendant submitted that he is a birdwatcher whose activities often strayed into the opportunistic collection of eggs and should not be characterised in the manner contemplated by s 21A(2)(n) of the CSP Act.
As outlined in [7] above, it has been an offence to possess protected fauna being all bird species (s 101(1)) since 1975 and it has been a separate offence to possess and/or harm threatened species (ss 118A(1), 118B(1)) since 1996. In relation to the 18 harm offences committed over a six year period from 2010 to 2016 the detailed collection notes on the data cards suggest more than opportunistic obtaining of eggs while engaged in bird watching, referring on several occasions to considerable efforts being made to locate nests with eggs in them. The Defendant did engage in criminal activity which took place over several years including in a national park, nature reserve and state conservation area amongst other locations. I have found above that the Prosecutor has not established beyond reasonable doubt that the Defendant was aware that the eggs he harmed were for threatened bird species albeit he was aware that he needed a licence to collect bird eggs. The matter is finely balanced. Giving the Defendant the benefit of the doubt, I do not find an aggravating factor arises under s 21A(2)(n).

Conclusion on objective circumstances

The offences clearly offend against the legislative scheme for the protection of protected and threatened fauna. The Defendant’s offending goes back to 2010, involved pre-meditation and planning and there are multiple animals in each offence. While the reasons for committing the offences do not include financial gain, the harm caused was foreseeable.
Unlike Plath v Chaffey, the offences were not carried out on an United Nations Educational Scientific and Cultural Organisation (UNESCO) world heritage site, however they did take place on several occasions in a national park, nature reserve and state conservation area. Some of the possession offences are technical in that the eggs held by the Defendant may have come into the Defendant’s possession before the offence provisions came into effect in 1975 and 1996. There is crossover between the harm and possess charges which means there is essentially double-counting of 40 eggs (see above in [14]-[15]). Making that allowance, the total eggs affected are 244.
I find that in light of all the circumstances outlined above these offences are in the high range of low objective seriousness.

Subjective circumstances

The subjective circumstances that may be taken into account include those in s 21A(3) of the CSP Act.

Pleas of guilty

A plea of guilty to each of the offences may be taken into account as a mitigating factor per ss 21A(3)(k) and 22 of the CSP Act. A plea of guilty generally entitles a defendant to a discount on sentence in the range of 10-25% depending on the timing of the plea: R v Thomson; Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142. The following is a chronology of these proceedings in relation to the timing of the pleas, supplied by the Prosecutor and as marked-up by the Defendant:

6 November 2018	Summonses filed
1 February 2019	Defendant attempted to plead guilty (see Ms Somerville’s affidavit above in [20]) Adjourned until 22 February 2019 Pepper J made an order for the Defendant to receive pro-bono assistance under Rule 7.33 of the Uniform Civil Procedure Rules 2005 (NSW)
22 February 2019	Adjourned until 21 March 2019 Mr Farrell appears for the Defendant and subsequently seeks access to the summons’ and evidence on which the charges are based
25 February 2019	Defendant’s legal representatives provided with statement of facts and other materials
22 March 2019	Adjourned until 12 April 2019
8 April 2019	Defendant’s legal representatives provided with search warrant information
12 April 2019	Adjourned until 24 May 2019
23 May 2019	Representation made to the Prosecutor by the Defendant on the basis of materials including the search warrant
24 May 2019	Adjourned until 5 July 2019 on the basis of a request for more time by the Prosecutor
5 July 2019	Adjourned until 2 August 2019
2 August 2019	Proposed notice of motion listed for hearing on 1 October 2019
14 August 2019	Notice of motion filed seeking that the charges be struck out on the basis that they were statute-barred
21 October 2019	Hearing of notice of motion At the commencement of the hearing of the notice of motion, the Prosecutor withdrew the charges in 2018/340653 and 2018/340655 because they were time barred by s 176(1B) of the Act per Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155.
28 October 2019	Judgment on notice of motion
2 December 2019	Court of Criminal appeal filed
6 May 2020	Court of Criminal appeal judgment
28 August 2020	Guilty pleas entered

The Defendant submitted that he pleaded guilty to each of the offences at the earliest reasonable opportunity after a challenge to some of the charges on the basis of a time bar which led to a withdrawal of two of those charges: Chief Executive Office of Environment and Heritage v Somerville [2019] NSWLEC 155; Somerville v Chief Executive Office of Environment and Heritage [2020] NSWCCA 93. The discount for the utilitarian value of the guilty pleas should not be reduced for the delay in entering the guilty pleas given that two charges were dropped. The discount should be 25%.
The Prosecutor submitted that the guilty pleas relate to each individual offence and not proceedings as a whole. The fact that two charges were withdrawn does not impact the timing of pleas for the other offences. The Defendant’s guilty pleas were not given at the earliest opportunity. Applying the principles in R v Thomson; Houlton and R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102, it was submitted that the discount should be approximately 20%.
I agree with the Defendant’s submissions.

No remorse

Under s 21A(3)(i) of the CSP Act, remorse can be considered in mitigation where an offender provides evidence that they have accepted responsibility for their actions. No evidence of remorse is before the Court to take into account in mitigation. The sentencing assessment report in [22] above identifies poor insight on behalf of the Defendant into the nature of his offending. He stated to the assessing officer that he believed that his behaviour was in the interest of fauna preservation.

Prior offences

If an offender does not have any record (or any significant record) of previous convictions, this can be considered as a mitigating factor under s 21A(3)(e) of the CSP Act. The Prosecutor tendered records of the Defendant’s prior offending (Ex B). The Defendant was convicted in 2016 in the Local Court of harming protected fauna. The order was varied by the District Court in 2017. The 2016 conviction is not relevant because it arose out of the same facts considered in these proceedings. The Defendant was convicted in 1988 on three counts of being knowingly concerned in attempts to export wildlife.

Good character

In relation to s 21A(3)(f) of the CSP Act, the Prosecutor noted that the Defendant’s 1988 offence had a relationship to offending against wildlife. The Defendant submitted that he was otherwise of good character. No personal references have been provided to support that submission. It is difficult to draw a conclusion about good character given the absence of relevant material.

Likelihood of re-offending

If an offender is unlikely to re-offend, this can be considered as a mitigating factor under s 21A(3)(g) of the CSP Act. The Defendant submitted that it is not irrelevant that since he was charged with these offences the Defendant’s daughter has not seen him undertake any activities involving hunting or foraging for bird eggs inter alia (see Ms Somerville’s affidavit in [19] above). That is not strong evidence for finding the Defendant is unlikely to re-offend. He appears to have a very long-standing and enthusiastic interest in the collection of bird eggs over many decades. He came to the attention of National Parks and Wildlife officers because he entered the Beni SCA contrary to road closures (see SOAF pars 1-14). He collected eggs from that location twice in 2016. He has not expressed remorse for his actions. That the Defendant is unlikely to re-offend is not a matter I can consider in mitigation (it is not of course aggravating).

Assistance to authorities

Assistance to authorities may mitigate the offence as referred to in ss 21A(3)(m) and 23 of the CSP Act. Subject to mandatory considerations in s 23(2), s 23(1) gives the Court a discretion to impose a lesser penalty having regard to the degree to which the offender has assisted law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. Considerations identified in subs (2) include the significance and usefulness of the offender’s assistance to authorities, the nature and extent of the offender’s assistance, the timeliness of assistance, inter alia. Under subs (3) a lesser penalty imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. Under subs (4) a court imposing a lesser penalty under the section must indicate that is done because the offender has assisted or undertaken to assist law enforcement authorities, state the penalty that it would otherwise have imposed and state the amount by which the penalty has been reduced for each reason.
The Prosecutor submitted that unlocking a cabinet for investigating authorities is minimal assistance and that the Defendant needed to demonstrate that he furthered the authorities’ investigations as opposed to just being co-operative. The Prosecutor invited the Court to adopt the approach of the Court of Criminal Appeal (CCA) in R v SS [2021] NSWCCA 56 at [43]-[88] and to impose no discount for assistance to authorities because the type of compliance relied on by the Defendant was not the same as contemplated by s 23(1).

The Defendant submitted that the extent to which he assisted the authorities is referred to in the SOAF at pars 21-27 and included:

co-operating with the authorities in answering questions of the investigating officers;

assistance in unlocking a cabinet where some of the eggs were located;

voluntarily participating in a record of interview; and

agreeing on a statement of facts for the purpose of sentencing.

In Plath v Chaffey at [72] Preston CJ found that the defendant assisted in answering questions of the investigating officers at the airport when he was apprehended with the eggs he had collected. Mr Chaffey also participated in a record of interview and he agreed a statement of facts for the purpose of sentencing. Such assistance may be taken into account under s 23(1) of the CSP Act. That is the nature of the assistance provided by the Defendant in these proceedings. The Defendant also submitted in relation to R v SS that:

the Defendant relies primarily on the statutory provisions of s 23(1). That was not the approach of the primary judge in R v SS (as the CCA notes at [75]). For present purposes, the discussion of R v Ellis (1986) 6 NSWLR 603 and related cases at [45]-[59] is of limited relevance;

close attention should be paid to the language used in R v SS at [63] and related authorities including Ahmad v R [2021] NSWCCA 30. In particular, the Defendant does not say he is automatically “entitled” to the discount sought. It is, as per Ahmad v R at [36], a matter for the Defendant to establish the relevant matters for the purposes of s 23(2);

it is conceded that the Defendant may not be entitled to the full 25% discount given at first instance in R v SS at [66] and [69] due to the nature of the assistance given and available evidence, but that does not prevent the Defendant from obtaining a moderate discount in addition to the guilty plea pursuant to s 23(1); and

as opposed to the example given by the CCA in Le v R [2019] NSWCCA 181, the Defendant did not prevent the authorities entering any premises and there was no complaint from the Prosecutor that he did not give a full and frank disclosure of matters relating to the offending. In short, once the offences were detected by the authorities, the Defendant provided those authorities with full assistance.

The Defendant agrees that any discount is subject to the factors in s 23(2)-23(4): R v SS at [85]-[86].
R v SS was an appeal against sentence imposed in the District Court allowing a 25% discount for the defendant’s early plea of guilty and a further 25% for his assistance to authorities being his admissions to police that he was responsible for causing grievous bodily harm to a very young baby before any charges were laid. One of the appeal grounds was that the judge erred in applying s 23 of the CSP Act in allowing a 25% discount for the defendant’s assistance to police. The defendant made admissions of guilt when answering questions in a police interview. The defendant denied his guilt when first interviewed by police. R A Hulme J (Hoeben CJ at CL and Adamson J agreeing) identified that R v Ellis principles are encapsulated in s 23 citing numerous cases to that effect at [59]. The focus in R v Ellis was on the disclosure of guilt of previously unknown offences with the degree of leniency accorded dependent on the likelihood offences would have been discovered by authorities and also the likelihood the offences could be proved beyond reasonable doubt. In R v SS, in considering s 23(2) the defendant’s admissions were significant and useful to the extent that he acknowledged his guilt. His plea of guilty did the same. The s 23(2) factors did not provide any significant support for a reduction of sentence (at [86]-[88]). The CCA did not allow a discount for assistance to authorities in addition to the discount for the plea of guilty.
The CCA considered the principles of R v Ellis and related cases which state that sentencing discounts may be justified following, for example, disclosure of an offence, offender’s identity or of an aspect of offending not known to the authorities (at [55] citing R v Windle [2012] NSWCCA 222). The CCA held that the defendant’s admission was not within R v Ellis because his guilt could be established independently by the available circumstantial evidence (at [83]-[84]). Confessing and co-operating with law enforcement authorities does not entitle an offender to a discount more than that which may be provided for a plea of guilty (at [63] citing Ahmad v R). The CCA noted at [64]-[65] the example of Le v R where after initially refusing police entry to the premises, the defendant had participated in a “walk though” and made admissions which did not amount to assistance within the meaning of s 23(1).
The Defendant is correct that in light of the broad wording in s 23(1) the actions relied on can be considered given they concern investigation of the offences, and proceedings relating to the offences. No specific discount for similar assistance to authorities was made in Plath v Chaffey at [72]. In relation to subs (2)(b), the significance and usefulness of the actions relied on is modest in scope given that the Prosecutor had a warrant to enter and search the Defendant’s premises and was highly likely to recover his egg collection even if the Defendant had not co-operated. The offences are strict liability offences and were very likely to be proved by the Prosecutor. The Defendant’s actions did not result in charges being laid that would not otherwise have been laid, unlike the substantial assistance considered in R v Ellis and R v SS and the cases cited therein. I do not consider a further discount for assistance to authorities is warranted in these circumstances beyond that to be given for the plea of guilty.

Age and health

The Defendant submitted that although not expressly referred to in the CSP Act, an offender’s physical condition at the time of sentencing is a relevant consideration where it appears that imprisonment will be a greater burden on the offender by reason of their health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health: R v Smith (1987) 44 SASR 587, cited in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [19].
The Defendant is 76 years old. Dr Narasignhe’s medical report summarised above in [17] indicates that the Defendant suffers from numerous serious medical conditions which are likely to worsen with a custodial sentence. The Defendant falls squarely into the category of a more elderly offender for whom significant health considerations would be given significant weight on sentence. The Prosecutor accepted that a custodial sentence would worsen the Defendant’s health.

Sentencing principles

Deterrence, general and specific

I considered the meaning of deterrence, general and specific in EPA v Abbas at [104]-[106] as follows:

104 General deterrence is an important aspect of sentencing in environmental crime. As held by Preston CJ in Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 at [139]-[140]:
The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598.
This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93] per Lloyd J.

105 Specific or personal deterrence is applicable where an offender has a prior criminal record which manifests a continuing attitude of disobedience, such that more weight should be given to retribution, personal deterrence or protection of the community: Veen (No 2) at 477; R v Abboud [2005] NSWCCA 251 at [33]; R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [54].
106 Specific deterrence has particular relevance where an offender continues to operate in the same area of operation in which the offence occurred: Environment Protection Authority v Ardent Leisure Ltd (ACN 104 529 106) [2018] NSWLEC 36 at [135] per Robson J citing Preston CJ in Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 at [48].

These observations apply in this matter. In relation to specific deterrence, I found that I cannot conclude that the Defendant is not likely to re-offend for the reasons stated above in [64]. The related 1988 prior offence is however some 33 years ago so I consider it is difficult to conclude that the Defendant is showing a continuing attitude of disobedience such that more weight should be given to retribution in the context of specific deterrence.

Even-handedness/parity

The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty: R v Visconti [1982] 2 NSWLR 104 at 107 (Street CJ, Lee and Maxwell JJ agreeing). The principle of even-handedness in sentencing so that like offences receive like sentences is recognised, but each case must be determined on its own facts: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [42]. A history of sentencing in other cases does not limit my sentencing discretion.
The parties have referred extensively to Plath v Chaffey. Mr Chaffey was charged with four offences under s 118A(1) and one offence under s 98(2)(a) (now repealed) of the NPW Act for harming 94 bird eggs (of vulnerable species or protected fauna) he had collected during a week-long visit to Lord Howe Island. Section 98(2)(a) made it an offence to harm protected fauna. The manner of harm was “blowing” the eggs. Mr Chaffey’s offences were found to be of low-to-medium objective seriousness: at [54]. The actual environmental harm for the four s 118A(1) offences was found to be substantial in that the collection and destruction of eggs was carried out on a UNESCO world heritage site. It was agreed that the removal and destruction of eggs on a sustained basis on Lord Howe Island would be expected to pose a significant threat to the local population of those species: at [34]. Mr Chaffey had intentionally undertaken the conduct constituting the offences, with knowledge of its unlawfulness. He had undertaken the conduct for a reason which he knew he was not permitted to do. The risk of environmental harm was foreseeable. Practical measures to avoid the risk of harm existed. Mr Chaffey had control over the causes of harm to the environment.
Mr Chaffey had one prior offence but was otherwise a person of good character: at [56], [61]. He received a 25% discount for entering pleas of guilty at the first date of the sentence hearing after indicating he would do so within a month and a half after the first return date: at [64]-[65]. Mr Chaffey was found to be remorseful since he accepted responsibility for his actions and recognised that collecting the eggs was not consistent with conservation of the bird species: at [69]-[70]. Mr Chaffey did not provide any satisfactory explanation as to what caused him to collect the eggs, which revealed a lack of insight into his offending conduct: at [71]. His assistance to authorities was considered: at [72].
Mr Chaffey’s offences did not cross the custody threshold and a community service order was considered appropriate: at [82], [95]. Having regard to his impecuniosity, no fine was imposed: at [98]. Considering all the factors and allowing for the 25% discount for pleas of guilty, Mr Chaffey was sentenced to a total of 80 hours of community service work and ordered the pay the prosecutor’s costs: at [103]. The totality principle was not applied since the offences involved discrete conduct with different consequences, by reason of the different bird species involved. Preston CJ held that the sentence needed to reflect the fact that four different vulnerable bird species and two species of protected fauna were targeted by Mr Chaffey and his conduct had different environmental consequences for the different bird species: at [107].

Denunciation

A principle of sentencing is denunciation of an offence.

Capacity to pay fines

For each offence the Court has the power to impose a pecuniary penalty. Under s 6 of the Fines Act 1996 (NSW) the means of a defendant to pay a fine can be considered where information relevant to that matter is available. The court may reduce the amount of the fine to take account of a defendant’s means and impecuniosity: R v Rahme (1989) 43 A Crim R 81 at 86-87.
There is no direct evidence of the Defendant’s financial position. The Prosecutor has not sought to challenge the evidence of Ms Somerville about her father’s very limited financial means. The Defendant essentially submits that he is impecunious. He has few material assets and little net income and no prospect of acquiring new assets or income: see Ms Somerville’s affidavit evidence in [18] above. I accept he would be unable to pay a fine of any material amount.

Totality

The totality principle requires the court, which has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is “just and appropriate” and reflects the total criminality before the court: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [49]; Johnson v The Queen (2004) 78 ALJR 616 at [18]. The Prosecutor submitted the principle must be applied without a suggestion that a discount is being given for multiple offences: R v MAK (2006) 167 A Crim R 159 at [18].
The Defendant submitted that the totality principle is applicable. To reflect the fact that a number of sentences are being imposed, an appropriate result may be reached either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate for each offence. The Court should apply a concurrent not cumulative sentence.
It is debatable whether the totality principle should be applied. The Defendant has been charged with separate harm offences which occurred over six years and the charges do not arise out of the same time and facts. Preston CJ in Plath v Chaffey did not apply the totality principle at [107] because the defendant’s conduct had had different environmental consequences for the different bird species whose eggs were collected inter alia.

Double punishment to be avoided

The overlapping possession and harm charges for 40 of the eggs gives rise to double punishment if not accounted for and should be considered in that context. Therefore, the total number of eggs affected is 244.

Appropriate sentence

The purposes of sentencing are set out above in [23]. The Prosecutor submitted that the purposes of punishment, denunciation, specific and general deterrence play an important role in this case.
When sentencing, the Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a “value judgment as to what is the appropriate sentence given all the factors of the case”: Muldrock v The Queen at [26] unanimously following Markarianv The Queen at [51] per McHugh J.

Custodial threshold not reached

Section 5(1) of the CSP Act provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Taking into account the above objective and subjective circumstances of the Defendant, alternatives to imprisonment exist which are appropriate.

Community correction order imposed

A community correction order (CCO) may be imposed as an alternative to imprisonment. Under s 85(2) a CCO is limited to a maximum of three years. A CCO can be imposed in circumstances where a sentence of imprisonment can be imposed but may not be appropriate in the particular circumstances (applying R v Said El Masri [2005] NSWCCA 167 at [32] which refers to the former s 8(1)).
A CCO represents the most serious of non-custodial sentencing options since it is only to be imposed once a court has convicted a person of an offence (s 8(1)). A CCO is subject to standard conditions (s 88), any additional conditions imposed under s 89 which may include a community service work condition (s 89(2)(b)) and any further conditions (s 90). The sentencing assessment report in [22] above states that the Defendant is unsuitable for community service work because of his physical health. Pursuant to s 89(4) the Court may not impose a community service work condition in a CCO unless an assessment report states that the offender is suitable to be the subject of such a condition. Accordingly, no such condition will be imposed.
A CCO with a place restriction condition as provided under s 89(2)(f) will be imposed in relation to all offences. An offender subject to a place restriction condition is obliged “not to frequent or visit a specified place or area specified in the place restriction condition, except as specified in the condition”: reg 189G Crimes (Administration of Sentences) Regulation 2014. A place restriction condition in respect of national parks, state conservation areas, nature reserves, regional parks and wilderness areas for NSW will be imposed. National park, state conservation area, nature reserve, regional park and wilderness areas are defined terms in s 5 of the current version of the NPW Act as land reserved for those purposes under the NPW Act.
The NSW Judicial Commission Sentencing Bench Book (as at 19 July 2021) states at [6-520] that when imposed as a condition of a community-based order, place restrictions are not subject to the 12-month limitation in s 17A(5) of the CSP Act that applies when a separate order is made under s 17A. When part of a community-based order, the condition may be in force for the period of the order or a limited period ordered by the court: s 89(5) of the CSP Act. Place restriction conditions under community-based orders are not subject to the requirements of Pt 8A of the CSP Act. Accordingly, the CCO with a place restriction condition will be in place for 14 months.

Costs

The Prosecutor seeks an order for legal costs as provided by s 215 of the Criminal Procedure Act 1986 (NSW) (CP Act). It is unclear why the Prosecutor relied on s 215 of the CP Act as that section concerns trial procedures in lower courts and does not apply in this Court.
The Court may award costs to the Prosecutor under s 257B of the CP Act. The costs considerations under s 257B informed by s 257G are different to those under s 215. In particular, an amount need not be specified as a mechanism to work these out is provided in s 257G(1)(b) in the event that agreement cannot be reached. That the Defendant has very limited ability to pay a costs order is not a reason not to impose one. A costs order will be made in the Prosecutor’s favour in an amount to be agreed or assessed.

Order

The Court orders:

In proceedings 18/340652 Anthony Somerville is found guilty and convicted of possessing protected fauna contrary to s 101(1) of the National Parks and Wildlife Act 1974.

In proceedings 18/340654, 18/340656, 18/340657, 18/340658, 18/340659, 18/340660, 18/340661, 18/340662, 18/340663, 18/340664, 18/340665, 18/340666, 18/340667, 18/340668, 18/340669, 18/340670, 18/340671 and 18/340672 Anthony Somerville is found guilty and convicted of harming an animal part of a threatened species contrary to s 118A(1) of the National Parks and Wildlife Act 1974.

In proceedings 18/340649, 18/340650 and 18/304651 Anthony Somerville is found guilty and convicted of possessing an animal part of a threatened species contrary to s 118B(1) of the National Parks and Wildlife Act 1974.

Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, in relation to all offences Anthony Somerville is placed on a community correction order for a period of 14 months commencing today, 22 July 2021.

The following standard conditions apply for the duration of the order:

Anthony Somerville must not commit any offence; and

Anthony Somerville must appear before the Court if called upon to do so at any time during the term of the community correction order.

A place restriction condition is imposed as follows:

Anthony Somerville must not enter a national park, nature reserve, regional park, state conservation area or wilderness area being land reserved for that purpose under the National Parks and Wildlife Act 1974 for the duration (14 months) of this order.

Anthony Somerville is directed to attend Dubbo Local Court Registry to sign the community correction order by 2:00pm Thursday 29 July 2021.

Anthony Somerville is directed to contact Dubbo Community Corrections by telephone or email no later than 2:00 pm Thursday 29 July 2021.

Anthony Somerville is directed to notify Dubbo Community Corrections should he change address during the period of the community correction order.

Anthony Somerville is to pay the Prosecutor’s costs under s 257B of the Criminal Procedure Act 1986 as agreed or assessed.

**********

Decision last updated: 28 July 2021

Medium Neutral Citation:	Chief Executive Office of Environment and Heritage v Somerville (No 2) [2021] NSWLEC 78
Hearing dates:	7 April 2021, 27 May 2021; 21 June 2021 (written submissions)
Date of orders:	22 July 2021
Decision date:	22 July 2021
Jurisdiction:	Class 5
Before:	Pain J
Decision:	See [97] of judgment
Catchwords:	PROSECUTION – sentencing for multiple (22) offences of possession and harming of bird eggs of protected and threatened species under National Parks and Wildlife Act 1974 – pleas of guilty – eggs in defendant’s possession collected over many years – not established beyond reasonable doubt that defendant aware that harm to and possession of eggs of threatened bird species – defendant aware that bird eggs in general could not be collected without a licence issued under the National Parks and Wildlife Act – high range of low objective seriousness – mitigating factors of age and health – custodial sentence not appropriate – community correction order made with place restriction condition preventing entry into national park, nature reserve, regional park, state conservation area and wilderness area for 14 months
Legislation Cited:	Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW) reg 58 Biodiversity Conservation Act 2016 (NSW) Sch 9 Crimes (Administration of Sentences) Regulation 2014 reg 189 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 8, 17A, 21A, 22, 23, 85, 88, 89, 90, Pt 8A; former s 8 Criminal Procedure Act 1986 (NSW) ss 215, 257B, 257G Fines Act 1996 (NSW) s 6 National Parks and Wildlife Act 1974 (NSW) ss 2A, 5; 98, 101, 118A, 118B, 120, Sch 11 Threatened Species Conservation Act 1995 (NSW) ss 3, 4, Pt 2 Div 2 (s 10)
Cases Cited:	Ahmad v R [2021] NSWCCA 30 BIP v R [2011] NSWCCA 224 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive Office of Environment and Heritage v Somerville [2019] NSWLEC 155 Director-General of the Department of Environment and Climate Change v Rae (2009) 197 A Crim R 31; [2009] NSWLEC 137 Environment Protection Authority v Mouawad (No 2) [2020] NSWLEC 166 Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 Fahs v The Queen [2007] NSWCCA 26 Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 Hewitt v The Queen (2007) 180 A Crim R 306; [2007] NSWCCA 353 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Johnson v The Queen (2004) 78 ALJR 616 Le v R [2019] NSWCCA 181 Markarian v The Queen (2005) 228 CLR 357 [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Plath v Chaffey [2009] NSWLEC 196 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Ellis (1986) 6 NSWLR 603 R v MAK (2006) 167 A Crim R 159 R v Mobbs [2005] NSWCCA 371 R v Morabito (1992) 62 A Crim R 82 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Rahme (1989) 43 A Crim R 81 R v Said El Masri [2005] NSWCCA 167 R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142 R v Smith (1987) 44 SASR 587 R v SS [2021] NSWCCA 56 R v Thomson;Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Visconti [1982] 2 NSWLR 104 R v Windle [2012] NSWCCA 222 Secretary, Department of Planning Industry and Environment v Williams [2020] NSWLEC 134 Somerville v Chief Executive Office of Environment and Heritage [2020] NSWCCA 93 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Texts Cited:	Ian Mason and Gilbert Pfitzner, Passions in Ornithology: A Century of Australian Egg Collectors (2020, Ian Mason) NSW Judicial Commission, Sentencing Bench Book (as at 19 July 2021)
Category:	Sentence
Parties:	Chief Executive Office of Environment and Heritage (Prosecutor) Anthony Somerville (Defendant)
Representation:	COUNSEL: W Tuckey (Prosecutor) I Hemmings SC and J Farrell (Defendant) SOLICITORS: Department of Planning, Industry and Environment (Prosecutor)
File Number(s):	18/340649-52; 18/340654; 18/340656-72

Mammals
Carnivora other than Pinnipedia	Bears, lions, dogs, etc
Insectivora	Moles, hedgehogs
Artiodactyla	Cloven hoofed animals
Perissodactyla	Horses, donkeys, etc
Primates	Apes, monkeys
Subungulates	Elephants
Lepus europaeus	Hare
Oryctolagus cuniculus	Rabbit
Scirius palmarum	Indian Palm Squirrel

Possess summonses	Number of eggs	Harm summonses	Number of eggs
18/340650	46	340654	2
18/340651	81	340656	3
		340657	3
		340658	3
		340659	2
		340660	2
		340661	2
		340662	1
		340663	2
		340664	1
		340665	1
		340666	2
		340667	3
		340668	3
		340669	2
		340670	2
		340671	3
		340672	3
Total overlapping eggs	40