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Plath v Chaffey

Plath v Chaffey

Case [2009] NSWLEC 196 30 November 2009

Harm to the Environment

Environmental Offences

Mens Rea & Intention

Strict Liability

Community Service Order

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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

2 On 14 December…

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 Plath v Chaffey

Details

AGLC: Plath v Chaffey [2009] NSWLEC 196
Case: [2009] NSWLEC 196
Decision Date: 30 November 2009

CaseChat Overview and Summary

The matter before the Land and Environment Court of New South Wales involved a case where Brian George Chaffey was charged with five offences under the National Parks and Wildlife Act 1974 for collecting and destroying eggs of threatened species and protected fauna on Lord Howe Island. The charges were brought by Gordon Plath, on behalf of the Department of Environment and Climate Change. The Court needed to determine the appropriate penalties for the offences, taking into account the objective gravity of the offences, the subjective circumstances of the offender, and the purposes of sentencing.

The Court found that the offences were of low to medium objective gravity, given the intentional nature of the offences, the substantial environmental harm caused, and the various aggravating factors. However, the Court also considered the subjective circumstances of the offender, including his lack of prior criminal history, his good character, his early guilty pleas, and his remorse, albeit with limited insight into his offending conduct. The Court also took into account the offender's limited financial means.

Considering the purposes of sentencing, the Court determined that a community service order was the most appropriate penalty for the offences, as opposed to a fine or imprisonment. The Court calculated the number of hours of community service work for each offence based on an instinctive synthesis of the objective and subjective circumstances, taking into account the totality principle. The Court also ordered the offender to pay the prosecutor's costs, to be paid into the National Parks and Wildlife Fund.

In conclusion, the Court found the offender guilty of all charges and sentenced him to perform a total of 80 hours of community service work, with the hours to be served consecutively. The offender was also ordered to pay the prosecutor's costs, the amount of which was to be determined in accordance with the Criminal Procedure Act 1986.

Orders