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Garrett v Williams

Garrett v Williams

Case [2007] NSWLEC 56 20 February 2007

Environmental Offences

Unconscionable Conduct

Causation

Compensatory Damages

Aggravated & Exemplary Damages

Sentencing

Specific Performance

Environmental Law

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Land and Environment Court

of New South Wales

CITATION: Garrett v Williams [2007] NSWLEC 56

PARTIES:
PROSECUTOR:
Stephen Garrett
DEFENDANT:
Paul Douglas Williams

FILE NUMBER(S): 50003 of 2006; 50004 of 2006; 50005 of 2006

CORAM: Lloyd J

KEY ISSUES: Environmental Offences :- picking endangered ecological community - plea of guilty - aggravating factors- done for commercial reasons of proposed development - misleading investigation - withholding relevant information and records - prior criminal record - sentencing considerations - premeditated and deliberate conduct - objective seriousness of offence

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 3A, s 8(2), s 21A(2)(g), s 21A(2)(m), s 21A(3)(k), s 22, s 86(1)(e)
Crimes (Sentencing Procedure) Regulation 2000 cl 23
Fines Act 1996 s 6
National Parks and Wildlife Act 1974 s 5, s 118A(2), s 118D, s 138(1)(b)(vii), s 175B
Protection of the Environment Operations Act 1997
Threatened Species Conservation Act 1995 Sch 1

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357;
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234;
Bentley v Gordon [2005] NSWLEC 695;
Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349;
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610;
Carlino v Leichhardt Council (2005) 144 LGERA 235;
Carmody v Brancourts Nominees Pty Ltd; Carmody v Brancourt [No. 2] [2003] NSWLEC 84;
Director General of National Parks and Wildlife v Wilkinson & Anor; Director General of the Department of Land and Water Conservation v Wilkinson & Anor [2002] NSWLEC 171;
Environment Protection Authority v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739;
Environment Protection Authority v Gardner, NSWLEC, 7 November 1997, Lloyd J, unreported;
Environmental Protection Authority v Barnes [2006] NSWCCA 246;
Fletcher Construction Australia Ltd v Workcover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66;
Garrett v Williams [2006] NSWLEC 785;
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189;
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 464;
R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249;
R v Milford Haven Port Authority [2000] JPL 943;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
State Pollution Control Commission v T J Bryant Pty Ltd, NSWLEC, 11 June 1991, Stein J, unreported;
Veen v The Queen (No.2) (1988) 164 CLR 465

DATES OF HEARING: 02/11/2006 and 30/01/2007

DATE OF JUDGMENT:
20 February 2007

LEGAL REPRESENTATIVES:
PROSECUTOR:
E L Fullerton SC
SOLICITOR:
Stephen Garrett
Department of Environment and Conservation
DEFENDANT:
I S Lloyd QC
SOLICITORS:
Minter Ellison

JUDGMENT:

- 20 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Tuesday, 20 February 2007

LEC Nos. 50003 of 2006; 50004 of 2006 and 50005 of 2006

STEPHEN GARRETT v PAUL DOUGLAS WILLIAMS [2007] NSWLEC 56

JUDGMENT

Introduction

1 HIS HONOUR: The defendant,…

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 v Williams

Details

AGLC: Garrett v Williams [2007] NSWLEC 56
Case: [2007] NSWLEC 56
Decision Date: 20 February 2007

CaseChat Overview and Summary

The case of Garrett v Williams was heard in the Land and Environment Court of New South Wales. The defendant, Paul Douglas Williams, pleaded guilty to three offences against section 118A(2) of the National Parks and Wildlife Act 1974, which prohibits the picking of plants that are part of an endangered ecological community. The offences related to the clearing of vegetation from certain endangered ecological communities on a property owned by Serenity Cove Business Park Pty Ltd, of which Williams was the sole director and secretary. The court had to determine the appropriate penalty for the offences.

The court considered various factors in determining the penalty, including the objective seriousness of the offence, the subjective circumstances of the defendant, and general deterrence. The court found that the defendant had deliberately and knowingly committed the offences for commercial reasons related to a proposed development, and had hindered the investigation by providing misleading information and withholding relevant records. The clearing had caused significant environmental harm to the endangered ecological communities on the site. The court also considered the principle of totality, which required adjusting the penalty to reflect the total criminality involved in the three offences.

The court ultimately determined that an appropriate penalty for each offence was a fine of $154,000, discounted for the utilitarian value of the plea of guilty. The aggregate fine for the three offences was adjusted to $330,000. In addition to the fines, the court ordered the defendant to perform 400 hours of community service and pay the prosecutor's costs of $85,000. The fines were to be paid into the National Parks and Wildlife Fund.

Orders