Plath v Chaffey

[2009] NSWLEC 196

Land and Environment Court

of New South Wales

CITATION:

Plath v Chaffey [2009] NSWLEC 196

PARTIES:

PROSECUTOR
Gordon Plath of the Department of Environment and Climate Change

DEFENDANT
Brian George Chaffey

FILE NUMBER(S):

50005, 50007, 50008, 50009, 50010 of 2009

CORAM:

Preston CJ

KEY ISSUES:

ENVIRONMENTAL OFFENCES :- harming threatened species of animals and protected fauna - collecting eggs of threatened species and protected fauna - sentence - offences of low to medium objective gravity - substantial environmental harm - intentional commission of offences - early plea of guilty - prior good character - remorse - assistance to authorities - limited means to pay fine - appropriateness of penalty being community service order

LEGISLATION CITED:

Crimes (Administration of Sentences) Act 1999, ss 3, 108
Crimes (Sentencing Procedure) Act 1999, ss 3A, 8, 21A, 22, 23, 86, 87, 90, 115
Criminal Procedure Act 1986, ss 257B, 257G
Fines Act 1996, ss 4, 6, 7, 10
National Parks and Wildlife Act 1974, ss 5, 98(2), 118A(1), 138(1)(b), 176(3)
Threatened Species Conservation Act 1995, s 10(4)

CASES CITED:

Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Environment Protection Authority v Taylor [No 4] [2002] NSWLEC 59; (2002) 120 LGERA 414
Garrett v Freeman (No 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1; (2009) 164 LGERA 287
Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Plath v Rawson [2009] NSWLEC 178
R v Janceski [2005] NSWCCA 288
R v Kelleher [2008] EWCA Crim 3055; [2009] 2 Cr App R (S) 25
R v Rahme (1989) 43 A Crim R 81
R v Said El Masri [2005] NSWCCA 167
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Weldon; R v Carberry [2002] NSWCCA 475; (2002) 136 A Crim R 55
R v Wisbey [2001] NSWCCA 434
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 207
Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

DATES OF HEARING:

15 June 2009; 5 August 2009; 16 September 2009; 13 October 2009

 
DATE OF JUDGMENT: 

30 November 2009

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr S T Flood (barrister)
SOLICITORS
Department of Environment and Climate Change

DEFENDANT
Mr D S Timmins (barrister)
SOLICITORS
Patterson, Byfield and Bryen

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

30 NOVEMBER 2009

50005, 50007-50010 of 2009

GORDON PLATH OF THE DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE V BRIAN GEORGE CHAFFEY

JUDGMENT

1 HIS HONOUR:

INTRODUCTION

Lord Howe Island is a small volcanic island in the Tasman Sea about 700km off the north coast of NSW. I t contains an enormous diversity of rare and endemic animals and plants. The bird life is one of its most notable features.

2 On 14 December 1982, Lord Howe Island Group was inscribed on the World Heritage List under the UNESCO Convention concerning the protection of the world cultural and natural heritage.

3 Many of the birds of Lord Howe Island are threatened species. All of the birds are protected fauna. Four of the threatened species on Lord Howe Island are sea birds known as Masked Booby, Red-tailed Tropicbird, Sooty Tern and White Tern. Two of the protected sea birds are the Common Noddy and Black Noddy.

4 By spring to early summer, these sea birds have returned to Lord Howe Island and are breeding at various locations around the island. The eggs laid are vulnerable to predation. Indeed, predation of eggs has been specifically identified for two of the threatened bird species as a threatening process for the survival or evolutionary development of the species.

5 In the breeding season of 2007, between 24 November and 1 December 2007, Mr Chaffey, an amateur bird enthusiast and oological (bird egg) collector visited Lord Howe Island. Mr Chaffey knew and was able to identify the various bird species and their eggs. Over the course of his week long visit, Mr Chaffey collected eggs from the nests of breeding birds of the four threatened species and the two protected fauna species. He removed the contents of the eggs whilst preserving the shell. He carefully packaged the blown eggs in his luggage. However, Mr Chaffey was apprehended at the airport with the eggs before he left the island.

6 Mr Chaffey’s actions in harming the eggs of the four threatened species of birds involved offences against s 118A(1) of the National Parks and Wildlife Act 1974 whilst his actions in harming the eggs of the two protected fauna species involved an offence against s 98(2)(a) of the National Parks and Wildlife Act.

7 Mr Chaffey has pleaded guilty to each of the five offences. The Court must now determine the appropriate sentences.

THE OFFENCES

The charges

8 Mr Chaffey is charged with four offences against s 118A(1)(a) of the National Parks and Wildlife Act in that, between about 24 November 2007 to 1 December 2007, on Lord Howe Island in the State of New South Wales, he harmed animals of a threatened species. The threatened species are identified in each of the four charges. They are: 50007/09, Sula dactylatra (Masked Booby); 50008/09, Phaethon rubricauda (Red-tailed Tropicbird); 50009/09, Sterna fuscata (Sooty Tern); and 50010/09, Gygis alba (White Tern).

9 The animals harmed are eggs of the threatened species. “Animal” is defined is s 5 of the National Parks and Wildlife Act to mean “any animal, whether vertebrate or invertebrate and at whatever stage of development …”. Hence, an egg of a vertebrate species such as a bird is an animal.

10 The manner of harm is particularised as being by “‘blowing’ the eggs, that is, by making a hole in the eggshell and removing the contents of the egg while preserving the shell”.

11 The number of animals harmed varied depending on the threatened species concerned. The particulars of the number of animals harmed are as follows:

Charge	Threatened species	Number of eggs
50007/09	Masked Booby	24
50008/09	Red-tailed Tropicbird	14
50009/09	Sooty Tern	33
50010/09	White Tern	13

12 Threatened species include endangered species and vulnerable species. The penalties for an offence against s 118A(1) of the National Parks and Wildlife Act vary depending upon whether the threatened species is classified as endangered or vulnerable. Each of the four species of birds harmed by Mr Chaffey was listed as a vulnerable species.

13 Mr Chaffey is also charged with one offence against s 98(2)(a) of the National Parks and Wildlife Act in that, between about 24 November 2007 and 1 December 2007, on Lord Howe Island in the State of New South Wales he harmed protected fauna. Two species of protected fauna were identified in the charge: Anous stolidus (Common Noddy) and Anous minutus (Black Noddy). “Protected fauna” is defined in s 5 of the National Parks and Wildlife Act to be “fauna of a species not named in Schedule 11”. Neither the Common Noddy nor the Black Noddy are named in Schedule 11. “Fauna” is defined to be “any mammal, bird, reptile or amphibian”. “Bird” is defined to be “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”. Hence, an egg of a bird of a species not named in Schedule 11 is protected fauna.

14 The manner of harm is particularised as “’blowing’ the eggs of birds being protected fauna, that is, by making a hole in the eggshell and removing the contents of the egg while preserving the shell”.

15 The number of protective fauna harmed is particularised as being six eggs of the Common Noddy and four eggs of the Black Noddy.

The facts of the offences

16 Mr Chaffey flew to Lord Howe Island on 24 November 2007. During the course of his week long stay, he took regular walks around the island. During these walks, Mr Chaffey collected bird eggs from a number of locations around the island including Blinky Beach, Lagoon Beach, North Bay and south of the airport on the island.

17 Mr Chaffey collected eggs from different locations including sand dunes, trees and nests. He walked along ledges on a sheer cliff face above the sea in order to reach some of the eggs. Mr Chaffey placed many of the eggs he collected in chicken egg cartons that he had brought with him to Lord Howe Island, and then placed the cartons containing the bird eggs into his backpack. Mr Chaffey placed some of the eggs in his pockets.

18 At the end of each egg collecting trip, Mr Chaffey took the eggs back to his holiday accommodation on the island and undertook the process of “blowing” the eggs. In undertaking this process, he used an old nail to drill a hole through the side of each egg, turned the egg upside down and blew air underneath the egg with a straw, causing air to rise to the top of the shell. This forced out the egg contents whilst preserving the eggshell. Mr Chaffey performed this process over a sink so that the egg contents were washed down the drain.

19 For each eggshell, Mr Chaffey then inserted water into the shell and shook it a few times to clean out any remaining contents. He left the eggshell on toilet paper to dry overnight.

20 Each morning Mr Chaffey wrapped up the eggshells he prepared the night before and placed them in styrofoam boxes that he had brought with him to the island. Mr Chaffey undertook the same process each night for the eggs he had collected during the day.

21 Mr Chaffey collected and destroyed the contents of the total of 96 eggs, 94 of which are the subject of the five charges.

22 Mr Chaffey was apprehended as a result of a tip-off. On 29 November 2007, the Department of Environment and Climate Change (“DECC”) office in Armidale contacted a DECC officer, Mr Ian Kerr, on Lord Howe Island, to advise him that they had received a tip-off that a person named Brian Chaffey was on Lord Howe Island and may be unlawfully collecting bird eggs. Mr Kerr made inquiries as to Mr Chaffey’s whereabouts on the island and was advised that he would be driven to Lord Howe Island airport on the morning of 1 December 2007. At about 8.00am on 1 December 2007, Mr Kerr and another DECC officer, Ms Sallyann Gudge, and a police officer, Senior Constable Richard Buckley, intercepted a car in the car park of Lord Howe Island airport. Mr Chaffey and the friend who had accompanied him on his visit to Lord Howe Island were passengers in the vehicle and were on their way to board a plane to return to Port Macquarie.

23 The officers conducted a search of the vehicle and Mr Chaffey identified and opened a large blue suitcase belonging to him. Inside the suitcase were three large styrofoam boxes. The boxes contained a total of 96 bird eggshells wrapped in what appeared to be tissue paper or toilet paper. In the course of questioning, Mr Chaffey stated the eggshells were “Sooty Tern, White Tern, Red-tailed Tropicbird and Common Noddy”. The officers seized the boxes of eggshells.

24 The seized boxes of eggshells were delivered to an expert ornithologist, Mr Walter Boles, employed in the Ornithology Section of the Australian Museum. Mr Boles’ expertise includes identification of birds, bird eggs and feathers. Mr Boles identified the species as to which the eggshells belong as being four vulnerable species, namely Sooty Tern, White Tern, Red-tailed Tropicbird and Masked Booby, and two species of protected fauna being Common Noddy and Black Noddy. All of the eggs identified by Mr Boles belonged to species that are indigenous to NSW.

25 Mr Chaffey had written two letters, namely “ST”, “CN” or “BN” in pencil on a number of the eggshells, adjacent to the hole through which the egg contents were removed. These letters were subsequently found by Mr Boles to correspond precisely with the species of the marked eggs: the eggs marked “ST” were identified as Sooty Terns, those marked “CN” were Common Noddies and those marked “BN” were Black Noddies.

26 On some of the eggshells, Mr Chaffey had written a number between 1 and 12 near the hole through which the egg contents were removed. Some numbers were used more than once. Mr Boles identified all of the eggs with numbers written on them as being Masked Boobies. Mr Chaffey used the numbers to identify eggs that were collected from the same nest. Thus, the numbers indicated that Mr Chaffey took Masked Booby eggs from a total of 12 nests.

OBJECTIVE GRAVITY OF THE OFFENCES

27 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 offences

28 A fundamental consideration of relevance to environmental offences is the degree by which, having regard to the maximum penalties provided by the statute in question, the offender’s conduct would offend against the legislative objectives expressed in the statutory offence. The nature and legislative objectives of s 118A of the National Parks and Wildlife Act, and the statutory scheme, have been considered in a series of cases including Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [51]-[71], [168] and [169]; Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [90]; Garrett v Freeman(No 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1; (2009) 164 LGERA 287 at [52], [58]-[61] and Plath v Rawson [2009] NSWLEC 178 at [50]-[55]. I adopt the discussion in those cases. That discussion is equally applicable to the offence provision of s 98(2)(a) of the National Parks and Wildlife Act.

29 The actions of Mr Chaffey in harming animals of threatened species and protected fauna without first applying for, then obtaining, approval under the National Parks and Wildlife Act, offended against the legislative objectives expressed in the statutory offences and thwarted the achievements of the objects of the Act, including ecologically sustainable developments. In respect of four of the charges, the animals were of vulnerable species and also were components of populations of those species of conservation significance. The animals of both the threatened species and protected fauna were components of a world heritage area. Mr Chaffey’s conduct has caused actual environmental harm.

Maximum penalty

30 The maximum penalty for an offence against s 118A(1) of the National Parks and Wildlife Act varies depending upon whether the animal harmed is an endangered species or a vulnerable species. For vulnerable species, the maximum penalty is 500 penalty units ($55,000) and an additional penalty of 50 penalty units ($5,500) for each animal that is harmed, or imprisonment for one year or both: s 118A(1).

31 For protected fauna, the maximum penalty is 100 penalty units ($11,000) and an additional penalty of 10 penalty units ($1,100) in respect of each animal harmed, or imprisonment for six months or both.

32 The additional penalties provided for both vulnerable species and protected fauna ensure proportionality between the sentence imposed and the harm caused: Plath v Rawson at [62]-[63].

Harm to the environment

33 The objective seriousness of the offence is affected by the objective harmfulness of the offender’s actions. The causing of “substantial” injury, loss or damage by commission of the offence is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. Harmfulness in the context of the commission of an offence against s 118A(1) or s 98(2)(a) of the National Parks and Wildlife Act involves the adverse impacts on the threatened species or protected fauna, their habitats, or ecological processes and functioning.

34 The statement of agreed facts between the prosecutor and Mr Chaffey sets out the environmental harm caused by Mr Chaffey’s conduct:

“39. Lord Howe Island is a World Heritage Area. Lord Howe Island Group was inscribed on the World Heritage List in 1982. One of the World Heritage criteria for which the island was listed is:

‘Provide habitats where populations of rare and endangered species of plants and animals still survive.
Lord Howe Island Group is an outstanding example of an oceanic island of volcanic origin with a unique biota of plants and animals and important and significant natural habitats for in-situ conservation of biological diversity, including those containing species of plants and animals of outstanding universal significance from the point of view of science and conservation. The World Heritage values include:
• ‘ … the diversity of bird taxa comprising 164 bird species, including species of conservation significance with many endemics;
• seabird breeding habitats which, together, comprise one of the major breeding sites in the south-west Pacific, including for species of conservation significance; …’

40. The environmental harm resulting from the offences was the harm to individual animals of threatened species and protected fauna. The harm to the threatened species and protected fauna was permanent as the animals were killed.

41. Under s 10(4) of the Threatened Species Conservation Act1995 (“ TSC Act "), a species is eligible to be listed as vulnerable 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.’
42. The criteria for listing a species as vulnerable are set out in the Threatened Species Conservation Regulation2002 , and relate to reduction in population size, restricted geographic distribution of species, low numbers of mature individuals of species and highly restricted geographic distribution of species.

43. The four species which are the subject of the s 118A(1)(a) offences have been listed as vulnerable species since the TSC Act came into force on 1 January 1996.

44. Around Australia, the Red-tailed Tropicbird has disappeared from several previous breeding localities. On Lord Howe Island, there were estimated to be around 200 breeding pairs in 2000. This is probably the largest breeding concentration of the Red-tailed Tropicbird in the world.

45. As at 2000, the small Australian population of the Masked Booby was breeding at only five localities, the southernmost of which is Lord Howe Island. The local subspecies of Masked Booby is also vulnerable globally. In 2000 it was estimated that 200-300 of these birds occurred on Lord Howe Island.

46. It has been estimated that in 2000 there were 60-100 breeding pairs of White Terns on Lord Howe Island, and in 2001 there were 57,620 breeding pairs of Sooty Terns on Lord Howe Island.

47. Predation of eggs by predators has been specifically identified as a “threatening process” under the TSC Act for the Masked Booby and Sooty Tern. A threatening process is a process that threatens, or may have the capability to threaten, the survival or evolutionary development of species, populations or ecological communities. The removal of eggs by human collectors has similar effects on the species whose eggs are taken as the removal of eggs by predators.

48. If the removal and destruction of eggs were carried out on a sustained basis on Lord Howe Island, it would be expected to pose a significant threat to the local population of those species. If carried out on a sustained basis on a broader scale, it would be expected to have a noticeable deleterious effect on each species as a whole.”

35 It can be seen from this statement that the harm caused by Mr Chaffey’s conduct to the four threatened species the subject of the charges in proceedings 50007-50010 of 2009 can be classified as being “substantial” for the purposes of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act. However, Mr Chaffey’s conduct did not cause “substantial” harm to the protected fauna the subject of the charge in proceedings 50005 of 2009.

State of mind of offender

36 The offences against s 118A(1) and s 98(2) of the National Parks and Wildlife Act are both strict liability offences and mens rea is not an element of either offence. The person does not need to know that the animal concerned is of, or is part of, a threatened species or protected fauna to commit an offence against s 118A(1) or s 98(2).

37 Nevertheless, the state of mind of a person at the time of committing an offence against s 118A(1) or s 98(2) can have the effect of increasing the objective seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious that one not so committed: see Plath v Rawson at [98] and cases therein cited.

38 In this case, Mr Chaffey intentionally committed the offences. Mr Chaffey has considerable knowledge as a bird enthusiast and was able to identify each of the bird species and their eggs that are the subject of the charges. Mr Chaffey has considerable knowledge of birds and has held collections of birds and bird eggs for many years. He has studied eggs and oological material and is able to identify many species of birds by their eggs.

39 Mr Chaffey was issued a licence on 22 July 2005 under the National Parks and Wildlife Act to hold an existing oological (bird egg) collection. Mr Chaffey had read and understood the conditions on which the licence to hold the oological collection had been issued. Two of the conditions were:

“6. The licensee will not undertake any additional collecting activities.

7. The licensee shall not acquire any other oological material from any source without the prior written consent of the Director General of DEC.”

40 The licence to hold the oological collection will expire upon the death of Mr Chaffey, subject to compliance with the licence conditions. Mr Chaffey had intended to assign legal ownership of the oological collection to the CSIRO.

41 At the time of the offences, Mr Chaffey held two other licences under the National Parks and Wildlife Act. One of these licences permitted him to hold a collection of birds. The other licence permitted him to enter specified nature reserves in the Armidale area for the purposes of carrying out bird banding activities in connection with the Australian Government’s Australian Bird and Bat Banding Scheme (“ABBBS”). The ABBBS manages the collation of information on threatened and migratory bird and bat species.

42 None of the licences held by Mr Chaffey permitted him to collect, possess or harm birds or their eggs on Lord Howe Island.

43 Mr Chaffey also took with him a copy of a bird book by I Hutton, Birds of Lord Howe Island Past and Present. Mr Chaffey admitted to being able to identify each of the four threatened bird species and two protected fauna species and their eggs.

44 Mr Chaffey’s actions in collecting the birds, blowing the eggs, storing the eggs, and concealing the eggs for transportation, reveal an intentional commission of the offences.

Reasons for committing the offence

45 The criminality involved in the commission of an offence is to be measured not only by the seriousness of what occurred but also by reference to the reasons for its occurrence: see Garrett v Williams at [120] and cases therein cited.

46 Mr Chaffey said he collected the eggs to add to his existing oological collection which would ultimately be passed to the CSIRO in Canberra. He denied collecting the eggs to start a new oological collection for himself or to sell the collected eggs to other collectors. The prosecutor has not proven, beyond reasonable doubt, that Mr Chaffey committed the offences for any reason other than the reason given by Mr Chaffey.

47 Mr Chaffey’s reason, however, is not innocent. Mr Chaffey knew from the conditions of his licence to hold his existing oological collection that he was not to undertake any additional collecting activities and was not to acquire any other oological material from any source without the prior written consent of the Director General of DECC. Hence, Mr Chaffey knew that collecting the eggs on Lord Howe Island to add to his existing oological collection was in breach of the conditions of the licence. Furthermore, Mr Chaffey knew that he had no other legal entitlement to collect the eggs. He knew it was illegal to collect the eggs without permission.

48 Hence, Mr Chaffey’s reason for collection of the eggs was unlawful to his knowledge.

Foreseeability of risk of harm

49 Mr Chaffey said that, at the time he collected the eggs, he did not think that his conduct would cause harm to the bird species concerned. He said there were vast numbers of the birds there. He said he did not think at the time he collected the eggs that taking the eggs of the threatened bird species might be inconsistent with their conservation.

50 I find that Mr Chaffey could reasonably have foreseen that his conduct of collecting bird eggs of threatened species and protected fauna would cause harm to the environment, including the bird species concerned. Indeed, Mr Chaffey later conceded in his oral evidence that taking the eggs, for some of the species there was only one egg, from a clutch of a threatened bird species is not consistent with the conservation of the species.

51 Having regard to Mr Chafffey’s knowledge about birds and conservation, he should reasonably have foreseen that environmental harm would be caused by collecting the eggs of the bird species concerned.

Practical measures

52 Mr Chaffey could have and should have not collected the eggs at all. No environmental harm would then have been caused.

Control over causes

53 Mr Chaffey collected the eggs and had complete control over the causes of environmental harm.

Conclusion on objective circumstances

54 Having regard to the nature of the offences; the maximum penalties; the actual environmental harm, that is substantial for four of the offences; Mr Chaffey intentionally undertaking the conduct constituting the offences, with knowledge of its unlawfulness, and concealing his conduct; Mr Chaffey undertaking the conduct for a reason which he knew he was not permitted to do; the foreseeability of risk of harm to the environment by reason of commission of the offences; the existence of practical measures to avoid the risk of harm; Mr Chaffey’s control over the causes of harm to the environment, the offence should be considered to be of low to medium objective gravity or seriousness.

SUBJECTIVE CIRCUMSTANCES OF THE DEFENDANT

55 Within the limits set by reference to the objective gravity of the offences, the Court may take into account the favourable factors personal to the offender. Factors to be considered are: lack of prior criminality; prior good character; plea of guilty to the offences; contrition or remorse; and assistance to authorities.

Prior offences

56 Mr Chaffey stated to the prosecutor, his counsel and the Court that he had no prior convictions. In fact, this was not correct. Mr Chaffey was convicted for a Federal offence of obtaining benefit by deception. He was convicted by the Armidale Local Court on 2 March 1993. He was released after six weeks imprisonment to an unsupervised recognisance.

Prior good character

57 Prior good character can have both a negative and a positive aspect: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 207 at [27]. The negative aspect of good character can refer to the absence of prior convictions and otherwise not having previously engaged in other criminal conduct: Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [25]. The positive aspect of good character can include a history of prior good works and contribution to the community: Ryan v The Queen at [27].

58 As far as the negative aspect of good character, as noted above, Mr Chaffey has been convicted of a prior offence. He is, therefore, not a person with an absence of prior convictions.

59 As far as the positive aspect of good character, Mr Chaffey does have a history of good works and contribution to the community. Six character references were tendered. They were from persons who have met and worked with Mr Chaffey in various capacities: as a member of the Armidale and New England Show Society, as a member of the Armidale Caged Bird Club, as a breeder of birds, as a rescuer and carer of native birds and reptiles with the NSW Wildlife Information and Rescue Service (“WIRES”), as a bird bander with the Australian Bird and Bat Banding Scheme, and as a person working in aged care, including at a nursing home. The character referees speak of his interest and knowledge about birds, both caged and wild, and his care and concern for them. They also speak of his caring and compassionate nature in helping aged persons.

60 Mr Chaffey also gave evidence about his volunteer work with ComputerBank New England Inc which is a non profit organisation assisting disadvantaged groups and individuals to access computers at low cost. Mr Chaffey said he had won a NSW Seniors’ Week Premier’s Community Award.

61 In the circumstances, I find that Mr Chaffey is a person of otherwise good character, which is another mitigating factor: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999.

Pleas of guilty

62 Mr Chaffey pleaded guilty to each of the five offences: s 21A(3)(k) and s 22 of the Crimes (Sentencing Procedure) Act. He is entitled to a discount on sentence for the utilitarian value of his pleas of guilty to the criminal justice system. In assessing the utilitarian value of the pleas, the timing of the pleas is a critical factor: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [154]-[160].

63 In this case, Mr Chaffey did not enter pleas of guilty until the first date of the sentence hearing on 16 June 2009. This was some three months after the first date on which Mr Chaffey was ordered to appear before the Court on 6 March 2009. On that occasion, the proceedings were adjourned to a date in April. On 17 April 2009, Mr Chaffey, by his counsel, indicated to the Court that he would plead guilty to five of the ten charges against him and seek to negotiate withdrawal of the other five charges. The matters were fixed for a sentence hearing on this basis. On the date fixed for the sentence hearing, 16 June 2009, Mr Chaffey, by his counsel, formerly entered pleas of guilty to each of the five charges in proceedings 50005, 50007-50010 of 2009. Immediately afterwards, the prosecutor withdrew the charges in proceedings 50006, 50011-50014 of 2009.

64 It can be seen that there was an indication by Mr Chaffey that he would enter guilty pleas to the charges that are the subject of this sentence hearing within a month and a half after the first date he was ordered to appear before the Court. Pleas of guilty were forthcoming at the sentence hearing as indicated.

65 In the circumstance, the discount for the utilitarian value of the pleas of guilty should not be reduced for the delay in entering the pleas of guilty. The discount should be quantified at 25%.

Contrition and remorse

66 Apart from the utilitarian value of a plea of guilty, general contrition or remorse is a mitigating factor. However, s 21A(3)(i) of the Crimes (Sentencing Procedure) Act states that remorse shown by the offender for the offence will only be a mitigating factor if:

“(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both) …”.

67 The existence of genuine contrition or remorse is also relevant to the weight to be given in sentencing to individual deterrence and the prospects of rehabilitation of the offender: R v Thomson at [116]. Contrition by an offender can be associated with insight by the offender into the reasons for, or factors contributing to, the offending conduct. If an offender has insight into the offending conduct, there is a reduced risk of re-offending and a reduced need for a sentence to be imposed for the purpose of individual deterrence: R v Wisbey [2001] NSWCCA 434 at [31].

68 In this case, Mr Chaffey has accepted responsibility for his actions. At the airport, Mr Chaffey identified his luggage and admitted collecting the eggs that were in his luggage. He identified the bird species for the eggs. Mr Chaffey voluntarily participated in a record of interview with the prosecutor and he admitted committing the offences.

69 Mr Chaffey gave evidence, both by affidavit and orally, in which he expressed remorse. He says that he is “extremely embarrassed and ashamed” for his actions. Mr Chaffey acknowledged, in his oral evidence, that his conduct in collecting the eggs was not consistent with conservation of the bird species.

70 Based on this evidence, I find that Mr Chaffey is remorseful for his actions.

71 However, Mr Chaffey has not provided any satisfactory explanation as to what caused him to collect the eggs whilst he was on Lord Howe Island. He consistently answered, in response to questions in oral evidence, that he didn’t know why he collected the eggs. This reveals a lack of insight by Mr Chaffey into his offending conduct, which may have implications for the risk of Mr Chaffey re-offending and the prospects of rehabilitation.

Assistance to authorities

72 Mr Chaffey did assist in answering questions of the investigating officers at the airport when he was apprehended with the eggs he had collected. He 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: see s 23(1) of the Crimes (Sentencing Procedure) Act 1999.

Capacity to pay fines

73 A sentencing court is also required to consider the financial means of an offender to pay a fine. Section 6 of the Fines Act 1996 provides:

“In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.”

74 Once a determination has been made that a fine should be imposed, the correct procedure in assessing the appropriate amount of the fine is to determine it by reference to the gravity of the offence for which it is imposed. If the court is satisfied the offender would be unable to pay the amount determined, the court may reduce the amount of the fine to take account of the offender’s means and impecuniosity: R v Rahme (1989) 43 A Crim R 81 at 86-87.

75 Mr Chaffey is 62 years old. He is unemployed. He has no significant assets. He does not own any real estate, shares or have any benefit accruing to him from any trust. He has a bank account with the New England Credit Union. The balance varies over time but on 22 May 2009 it was only $89.17. He owns a 1990 Pajero vehicle worth about $1,500.00. On the other hand, he has no liabilities, such as a mortgage.

76 His sole source of income is an Australian Government Newstart Allowance of just over $400.00 per fortnight. He lives in rented accommodation in Armidale for which he pays $120.00 per fortnight. His power bills range from $62.00 per month in summer to $112.00 per month in winter. His telephone bill ranges from $98.00 to $138.00 per month.

77 Mr Chaffey is in poor health. He suffers from an enlarged prostate. He had surgery in May 2009. He has diabetes and a heart condition. He takes medication regularly. The cost of Mr Chaffey’s medication is around $93.00 per month.

78 In summary, Mr Chaffey has no material assets and little net income and no prospect of acquiring new assets or income. He would be unable to pay a fine of any material amount.

THE APPROPRIATE PENALTIES

Purposes of sentencing

79 In fixing the appropriate penalty for the offences, the Court needs to consider the purposes of sentencing relevant to the offences and the offender in the case. The purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act of relevance in this case are punishment (a), denouncement (f) and accountability (e); deterrence, both general and individual (b); and recognition of harm done to the environment and the community (g).

Appropriateness of imprisonment

80 The prosecutor submitted that consideration needs to be given to a sentence of imprisonment. As noted above, the maximum penalty for the offences against s 118A(1)(a) of the National Parks and Wildlife Act in respect of vulnerable species includes imprisonment for one year either by itself or in addition to a fine. The maximum penalty for the offence against s 98(2) of the National Parks and Wildlife Act in respect of protected fauna includes imprisonment for six months either by itself or in addition to a fine.

81 I considered the circumstances when a sentence of imprisonment might be an appropriate penalty for environmental offences in Plath v Rawson at [175]-[187]. I adopt that discussion.

82 The circumstances of the offences and of Mr Chaffey in this case do not cross the custody threshold. There is not the necessary combination of both serious damage or risk of serious damage together with a very high degree of culpability on the part of the offender.

83 Mr Chaffey’s conduct was intentional, and involved deception in hiding the blown eggs. However, the prosecutor has not proven beyond reasonable doubt that the conduct constituting the offences was premeditated and planned before Mr Chaffey travelled to Lord Howe Island. Mr Chaffey’s evidence was that he was only motivated to collect the eggs upon seeing them whilst he was walking around the island. Only once he was on the island and saw the eggs did he decide to collect, blow and package them and conceal them to take home to add to his collection. I have not found that Mr Chaffey committed the offence for profit.

84 Mr Chaffey’s conduct did cause actual environmental harm, which for the four offences involving vulnerable species can be classified as “substantial” for the purposes of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act. However, it cannot be said to involve a high level of seriousness.

85 Mr Chaffey’s conduct was confined to his week long visit to Lord Howe Island. There was no repetition of egg collecting on other occasions and it was not part of any planned or organised criminal activity.

86 Finally, there is an alternative to imprisonment that is appropriate to the circumstances of the offences, the offender and the purposes of sentencing. In this case, this is a community service order.

Appropriateness of a community service order

87 A community service order may be imposed instead of a sentence of imprisonment: see s 8 of the Crimes (Sentencing Procedure) Act. A community service order can be imposed in circumstances where a sentence of imprisonment can be imposed but may not be appropriate in the particular circumstances: R v Said El Masri [2005] NSWCCA 167 at [32]. A community service order is therefore available for the offences against s 118A(1) of the National Parks and Wildlife Act and for the offence against s 98(2) of the National Parks and Wildlife Act.

88 “Community service work” is defined in s 3 of the Crimes (Administration of Sentences) Act 1999 as “any service or activity approved by the Minister, and includes participation in personal development, educational or other programs.”

89 The maximum number of hours specified in a community service order is 500 or the number of hours prescribed by the regulations in respect of the class of offences to which the offence belongs, whichever is the lesser: s 8(2) of the Crimes (Sentencing Procedure) Act. Clause 22 of the Crimes (Sentencing Procedure) Regulation 2005 provides that the prescribed maximum number of hours for offences for which the maximum term of imprisonment does not exceed 6 months, is 100 hours and for offences for which the maximum term of imprisonment exceeds 6 months but does not exceed one year, is 200 hours. In this case, this means the maximum number of hours that can be specified in a community service order is 100 hours for the offence against s 98(2) of the National Parks and Wildlife Act (which has a maximum term of imprisonment of 6 months) and 200 hours for each of the four offences against s 118A(2) of the National Parks and Wildlife Act in respect of vulnerable species (which have a maximum term of imprisonment of one year).

90 An offender must not be directed to perform more than eight hours of community service work in any one day or participate in a development program for more than five hours in any one day, except by agreement between the offender and the assigned officer: cl 213 of the Crimes (Administration of Sentences) Regulation 2008.

91 Concurrent or cumulative community service orders may be imposed as long as the total number of hours does not exceed 500: s 87 of the Crimes (Sentencing Procedure) Act.

92 The court may impose conditions on a community service order: s 90(1) of the Crimes (Sentencing Procedure) Act. The standard conditions set out in the regulations apply to a community service order: s 108(a) of the Crimes (Administration of Sentences) Act. The conditions imposed by the court must not be inconsistent with the standard conditions imposed by the regulations: s 90(4) of the Crimes (Sentencing Procedure) Act.

93 If a community service order is breached the court has power to sentence the offender for the original offence and exercise any power which it could have exercised had the order not been made: s 115 of the Crimes (Administration of Sentences) Act.

94 Section 86 of the Crimes (Sentencing Procedure) Act regulates the Court’s power to make community service orders. Section 86 provides:

“(1) A community service order may not be made with respect to an offender unless the court is satisfied:
(a) that the offender is a suitable person for community service work, and
(b) that it is appropriate in all of the circumstances that the offender be required to perform community service work, and

(c) that arrangements exist in the area in which the offender resides or intends to reside for the offender to perform community service work, and

(d) that community service work can be provided in accordance with those arrangements, and

(e) (Repealed)
(2) In deciding whether or not to make a community service order, the court must have regard to:
(a) the contents of an assessment report on the offender, and

(b) such evidence from a probation and parole officer as the court considers necessary for the purpose of deciding whether to make such an order.

(3) A court may, for any reason it considers sufficient, decline to make a community service order despite the contents of an assessment report.

(4) A court may make a community service order only if an assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person for community service work.

(5) If a court makes a community service order in respect of an offender, the offender must, as soon as practicable (having regard to sections 92 and 93) after the order is made, sign an undertaking to comply with the offender’s obligations under the order. If the offender refuses to sign such an undertaking, the offender may be brought before the court and the court may revoke the community service order and impose such other sentence as it considers appropriate.”

95 I consider a community service order is appropriate in the circumstances of these offences and this offender. I am satisfied of each of the matters in s 86(1) of the Crimes (Sentencing Procedure) Act and have considered the contents of the pre-sentence assessment report on Mr Chaffey provided by the NSW Department of Corrective Services, Probation and Parole Service: see s 86(2) of the Crimes (Sentencing Procedure) Act. The Service has provided three pre-sentence assessment reports dated 24 July 2009, 14 September 2009, 13 October 2009. In the final report, the Service states that Mr Chaffey is a suitable person for community service work, as required by s 86(1)(a) and s 86(4) of the Crimes (Sentencing Procedure) Act. The Service states:

“The offender has been assessed as suitable for a Community Service Order as per the requirements of s 86(1) of the Crimes (Sentencing Procedure) Act 1999 and has signed an undertaking as required by s 86(5) of this Act. If such an order is made, the offender should report to the District Manager of the Armidale District Office within 10 working days.”

96 Arrangements exist in the area in which Mr Chaffey resides for him to perform community service work. A number of options for community service work were identified including work at the McCrossin’s Mills Museum at Uralla and the showground at Armidale: see s 86(1)(c) and (d) of the Crimes (Sentencing Procedure) Act.

97 A community service order is appropriate in all of the circumstances of this case: s 86(1)(b) of the Crimes (Sentencing Procedure) Act. There is a need in sentencing for reparation to the community for the environmental harm caused by Mr Chaffey’s conduct in collecting the eggs. A community service order contains a requirement for reparation to the community: see R v Kelleher [2008] EWCA Crim 3055; [2009] 2 Cr App R (S) 25 at [23].

Appropriateness of fine

98 Ordinarily, a fine would be an appropriate penalty for the offences in this case. However, having regard to Mr Chaffey’s impecuniosity, a fine would serve no useful purpose in addition to a community service order for the offences against s 118(1) and s 98(2) of the National Parks and Wildlife Act.

The appropriate penalties

99 I consider that the appropriate penalty for each of the offences against s 118A(1) and s 98(2) is to impose a community service order alone.

100 The number of hours of community service work for each offence should be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of the offence and offender: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [37], [39], [66] and [73].

101 Accordingly, I have taken into account each of the objective circumstances of the offence and of Mr Chaffey, the low to medium objective gravity of each offence, as mitigated by the relevant subjective circumstances of Mr Chaffey. As between the offences, the classification of the bird species concerned (vulnerable species or protected fauna), the number of animals (eggs) affected, and the degree of environmental harm caused to the populations of bird species concerned, affect the number of hours of community service work.

102 Considering each offence by itself, the appropriate number of hours of community service work for each offence would be as follows:

CHARGE	ANIMAL	CSO
50005/09	Common Noddy and Black Noddy (PF)	4
50007/09	Masked Booby (V)	42
50008/09	Red-tailed Tropicbird (V)	28
50009/09	Sooty Tern (V)	23
50010/09	White Tern (V)	10
TOTAL	107 hours

103 Allowance needs to be made for the utilitarian value of Mr Chaffey’s pleas of guilty which I have assessed at 25%. The number of hours of community service work (with rounding) for each offence after discount become:

CHARGE	ANIMAL	DISC CSO
50005/09	Common Noddy and Black Noddy (PF)	3
50007/09	Masked Booby (V)	32
50008/09	Red-tailed Tropicbird (V)	21
50009/09	Sooty Tern (V)	17
50010/09	White Tern (V)	7
TOTAL	80 hours

104 Because there are multiple offences the totality principle is applicable. The effect of the totality principle is to require 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] HCA 57; (1998) 194 CLR 610 at [49].

105 To reflect the fact that a number of sentences are being imposed, an appropriate result may be reached, in relation to the community service orders, either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate for each offence: Plath v Rawson at [221] and cases therein cited.

106 Care must be taken, however, to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender’s conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence: Plath v Rawson at [222] and cases therein cited.

107 In this case, I do not consider that the totality principle requires an adjustment of the aggregate sentence or the individual sentences. Although the offences were committed over the week of Mr Chaffey’s visit to Lord Howe Island, they involve discrete conduct with different consequences, by reason of the different bird species involved. Using his knowledge of birds, Mr Chaffey deliberately collected eggs of different bird species to add to his oological collection. The individual sentences and the aggregate sentence need 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.

108 To adjust the individual sentences and the aggregate sentence by making the community service orders run concurrently or partially concurrently or to lower the individual sentences, would fail to reflect these differences in conduct and consequences, as well as the totality of the criminality involved: R v Weldon; R v Carberry [2002] NSWCCA 475; (2002) 136 A Crim R 55 at [46]-[48].

109 I also consider it appropriate for there to be an order under s 257B of the Criminal Procedure Act 1986 that Mr Chaffey pay the prosecutor’s costs. In doing so, I have considered Mr Chaffey’s limited means to pay the costs: see s 6 and s 4(1)(a) and (f) of the Fines Act. Nevertheless, I consider the prosecutor ought to be compensated for the costs of bringing the prosecutions, which are in the public interest, notwithstanding that Mr Chaffey is of modest means: Environment Protection Authority v Taylor [No 4] [2002] NSWLEC 59; (2002) 120 LGERA 414 at [45]. The parties have not been able to agree upon an amount of the prosecutor’s costs. The amount of such costs will need to be determined in accordance with s 257G of the Criminal Procedure Act. Any costs paid by Mr Chaffey pursuant to the costs order should be paid into the National Parks and Wildlife Fund, in accordance with s 176(3) of the National Parks and Wildlife Act.

ORDERS

110 I make the following orders:

50005/09

1. The defendant is convicted of the offence as charged.

2. The defendant is sentenced to perform 3 hours of community service work.

3. The defendant is to report to the Armidale District Office of the NSW Probation and Parole Service on the corner of Dumaresq and Faulkner Streets, Armidale NSW 2350, within 10 working days to enable administration.

50007/09

1. The defendant is convicted of the offence as charged.

2. The defendant is sentenced to perform 32 hours of community service work, to run consecutively after the hours of community service work ordered in 50005/09.

3. The defendant is to report to the Armidale District Office of the NSW Probation and Parole Service on the corner of Dumaresq and Faulkner Streets, Armidale NSW 2350, within 10 working days to enable administration.

50008/09

1. The defendant is convicted of the offence as charged.

2. The defendant is sentenced to perform 21 hours of community service work, to run consecutively after the hours of community service work ordered in 50007/09.

3. The defendant is to report to the Armidale District Office of the NSW Probation and Parole Service on the corner of Dumaresq and Faulkner Streets, Armidale NSW 2350, within 10 working days to enable administration.

50009/09

1. The defendant is convicted of the offence as charged.

2. The defendant is sentenced to perform 17 hours of community service work, to run consecutively after the hours of community service work ordered in 50008/09.

3. The defendant is to report to the Armidale District Office of the NSW Probation and Parole Service on the corner of Dumaresq and Faulkner Streets, Armidale NSW 2350, within 10 working days to enable administration.

50010/09

1. The defendant is convicted of the offence as charged.

2. The defendant is sentenced to perform 7 hours of community service work, to run consecutively after the hours of community service work ordered in 50009/09.

3. The defendant is to report to the Armidale District Office of the NSW Probation and Parole Service on the corner of Dumaresq and Faulkner Streets, Armidale NSW 2350, within 10 working days to enable administration.

All matters

1. The defendant is to pay the prosecutor’s costs, the amount of such costs to be determined in accordance with s 257G of the Criminal Procedure Act 1986.

2. The costs are to be paid to the prosecutor for payment, upon recovery, into the National Parks and Wildlife Fund, in accordance with s 176(3) of the National Parks and Wildlife Act 1974.