Garrett, Stephen v Langmead, Patsy - [2006] NSWLEC 627

Land and Environment Court

of New South Wales

CITATION: Garrett, Stephen v Langmead, Patsy [2006] NSWLEC 627

PARTIES:
PROSECUTOR
Stephen Garrett
DEFENDANT
Patsy Langmead

FILE NUMBER(S): 50006 of 2006

CORAM: Talbot J

KEY ISSUES: Prosecution :- application of s 10 Crimes (Sentencing Procedure) Act in circumstances where significant costs paid in respect of a minor offence.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
National Parks and Wildlife Act 1974
Rural Fires Act 1997
Threatened Species Conservation Act 1995

CASES CITED: Bentley v BGP Properties [2006] NSWLEC 34;
Bentley v Gordon [2005] NSWLEC 695;
Byron Shire Council v Fletcher (2005) 143 LGERA 155;
Carmody v Brancourts Nominees (No 2) [2003] NSWLEC 171;
EPA v Waste Recycling and Processing Corporation [2006] NSWLEC 419;
Veen v R (No 2) (1998) 164 CLR 465

DATES OF HEARING: 19/09/2006

EX TEMPORE JUDGMENT DATE: 09/19/2006

LEGAL REPRESENTATIVES: PROSECUTOR
Mr D Anderson (solicitor)
SOLICITORS
Department of Environment and Conservation

DEFENDANT
Mr I Lloyd QC

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

19 September 2006

50006 of 2006 Garrett, Stephen v Langmead, Patsy
EX TEMPORE JUDGMENT

1 Talbot J: In this matter the defendant, Patsy Langmead, is charged that between 6 and 8 February 2004 at her property 430 Murrays Flat Road Goulburn she committed an offence against s 118A(2) of the National Parks and Wildlife Act 1974 in that she picked plants that were part of an endangered ecological community. The endangered ecological community is particularised. It is clear from the facts that have been enunciated throughout the hearing of these proceedings that the picking of plants occurred when parts of the property were cleared in three different areas.

2 The Court has been assisted by an agreed statement of facts and it is important, I think, to deal with some of the more salient parts of the facts in order to comprehend the nature of the offence and the extent to which the Court should have regard to the way in which the defendant, who has entered a plea of guilty, should be dealt with.

3 The defendant has been the sole owner of the subject property since 12 January 2004, which is a few days immediately prior to the commission of the offence. She nevertheless had an interest in the property one way or another, with various members of her family in the period prior to becoming the sole proprietor. In October 2003 a development application was lodged with the Mulwaree Shire Council seeking development consent to construct a kit home on the property, which the defendant intended to use as her home.

4 On 28 January 2004 the council issued a letter addressed to the defendant confirming its decision to refuse development consent. A copy of that letter is in evidence, but it appears not to be disputed that the defendant did not receive the letter at or about the time that it was generated and that if it did…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Garrett, Stephen v Langmead, Patsy

Details

AGLC: Garrett, Stephen v Langmead, Patsy [2006] NSWLEC 627
Case: [2006] NSWLEC 627
Decision Date: 19/09/2006

CaseChat Overview and Summary

The case of Garrett v Langmead was heard in the Land and Environment Court of New South Wales. The defendant, Patsy Langmead, was charged with violating section 118A(2) of the National Parks and Wildlife Act 1974, by picking plants from an endangered ecological community on her property. The court had to decide whether to convict and sentence Langmead or dismiss the charge under section 10 of the Crimes (Sentencing Procedure) Act 1999. The court considered several factors, including the seriousness of the offence, the harm caused to the environment, the state of mind of the offender, and the means and circumstances of the offender.

Langmead had pleaded guilty to the charge and had no prior criminal record. She claimed that she was unaware that the plants she was clearing were part of an endangered ecological community and that she believed she was clearing a noxious weed as directed by the council. The court accepted her plea of guilty and her remorse for the offence. The court also took into account her age, financial situation, and the small area affected by the offence. The court decided to dismiss the charge without conviction, under section 10 of the Crimes (Sentencing Procedure) Act, and ordered Langmead to pay the prosecutor's costs in the sum of $20,000, to be paid by 19 March 2007.

Orders