Great Lakes Council v Mood (No 2) - [2008] NSWLEC 68

Land and Environment Court

of New South Wales

CITATION: Great Lakes Council v Mood (No.2) [2008] NSWLEC 68

PARTIES: PROSECUTOR
Great Lakes Council
DEFENDANT
John Raymond Mood

FILE NUMBER(S): 50032 of 2007

CORAM: Sheahan J

KEY ISSUES: Prosecution :- providing information to Council knowing it was false or misleading in a material respect; plea of guilty; sentencing; costs

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s.19(1), s.21A, s.22, s.23
Criminal Procedure Act 1986 s.257G
Fines Act 1996
Protection of the Environment Operations Act 1997 s.193(1), s.211, s.241

CASES CITED: Chow v Director of Public Prosecutions and Another (1992) 28 NSWLR 593
EPA v Caltex Australia Petroleum Pty Limited [2007] NSWLEC 647
Environment Protection Authority v Hargraves [2002] NSWLEC 113
Environment Protection Authority v Hargraves (No.2) (2003) 124 LGERA 57
Environment Protection Authority v Mark Peters [2006] NSWLEC465
Environment Protection Authority v Mark Peters (2006) 153 LGERA238
Great Lakes Council v Mood [2007] NSWLEC 705
R v O'Neill [1979] 2 NSWLR 582
R v Thomson; R v Houlton (2000) 49 NSWLR 383

DATES OF HEARING: 11-12 February 2008

DATE OF JUDGMENT:
22 February 2008

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr T Howard
SOLICITORS
Stacks
DEFENDANT
Mr R Lancaster
SOLICITORS
Barraclough Jones

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Justice Sheahan

22 February 2008

50032 of 2007

GREAT LAKES COUNCIL v JOHN RAYMOND MOOD (No.2)

JUDGMENT
Introduction

1 His Honour: John Raymond Mood pleaded guilty on 17 August 2007 to a charge that on or about 27 September 2006 at Tuncurry, he committed an offence against s.211(2) of the Protection of the Environment Operations Act 1995 (“POEO Act”) by furnishing information, in purported compliance with a requirement made under Chapter 7 of that Act, knowing that it was false or misleading in a material respect.

2 When the matter came on for hearing, Counsel for the Prosecutor asked me to dismiss, by consent and without any order as to costs, other proceedings brought by Council against Mr Mood (matter 50031 of 2007).

3 This prosecution, which was commenced on 16 May 2007, concerns the provision by Mr Mood, through his solicitors, on 27 September 2006, of responses to nine questions put to him in a notice served on him pursuant to s.193(1) of the POEO Act, dated 12 September 2006 (Exhibit P1), regarding events which occurred on or shortly after 27 May 2005.

4 While recording all the above dates it is relevant to note also that Mr Mood’s solicitors, on 7 July 2005, had responded to an earlier s.193(1) notice, dated 20 June 2005, concerning basically the same subject matter.

5 The questions posed in both the notices concerned the “demolition of a cottage”, or of “a dwelling and other buildings”, located on a property at 35 Parkes Street Tuncurry (“No.35”), purchased, by a company controlled by Mr Mood, on 23 March 2005. The questions Council posed in the 12 September 2006 notice, and the answers proffered to them by Mr…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2008] NSWLEC 68
Decision Date: 22 February 2008

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was tasked with sentencing John Raymond Mood on a charge of providing false or misleading information to the Great Lakes Council, knowing it was false or misleading in a material respect, in contravention of section 211(2) of the Protection of the Environment Operations Act 1997. The central issue for the Court was to determine an appropriate penalty for Mood, taking into account his plea of guilty, his character, and the mitigating and aggravating factors of his offence. The Court considered the maximum penalty for this offence, the culpability of the defendant, and the objective of general deterrence in environmental matters. The Court concluded that although the offence was serious, the defendant's plea of guilty, good character, and lack of prior convictions were mitigating factors that should be taken into account. The Court decided to impose a fine of $56,250, which represented 25% of the maximum penalty of $250,000, discounted by a further 20% for the defendant's early guilty plea. The Court also ordered Mood to pay the prosecutor's costs, excluding those associated with a separate matter dismissed by another judge.

Orders