Plath v O'Neill - [2007] NSWLEC 553

Land and Environment Court

of New South Wales

CITATION: Plath v O'Neill [2007] NSWLEC 553

PARTIES:
50009 of 2007
PROSECUTOR:
Gordon Plath
DEFENDANT
Timothy Alan O'Neill
50010 of 2007
PROSECUTOR:
Gordon Plath
DEFENDANT:
Lisa O'Neill
50011 of 2007
PROSECUTOR:
Gordon Plath
DEFENDANT:
Lisa O'Neill
50012 of 2007
PROSECUTOR:
Gordon Plath
DEFENDANT:
Timothy Alan O'Neill

FILE NUMBER(S): 50009; 50010; 50011; 50012 of 2007

CORAM: Biscoe J

KEY ISSUES: Prosecution :- pleas of guilty to knowingly causing damage to an aboriginal object without first obtaining consent of Director-General and knowingly aiding, abetting, counseling or procuring damage to an aboriginal object without first obtaining such consent - appropriate sentence

LEGISLATION CITED: Crimes Act 1900, s 351B(2)
Crimes (Sentencing Procedure) Act 1999, ss 3A(b), 10, 21A(2)(g)
Environmental Planning and Assessment Act 1979, s 126
National Parks and Wildlife Act 1974, ss, 2A(1)(b)(i), 86(b), 87, 90(1), 175(2)
Protection of the Environment Operations Act 1997, s 119

CASES CITED: Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349;
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Garrett v Williams (2007) 151 LGERA 92 ;
R v Thomson (2000) 49 NSWLR 383

DATES OF HEARING: 10 August 2007

DATE OF JUDGMENT:
31 August 2007

LEGAL REPRESENTATIVES:
PROSECUTOR:
Mr M Kelly, solicitor
SOLICITORS
Department of Environment and Climate Change
DEFENDANTS:
Mr J Priestley, barrister
SOLICITORS
Somerville Laundry Lomax

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

31 August 2007

50009 of 2007
GORDON PLATH v TIMOTHY ALAN O’NEILL

50010 of 2007
GORDON PLATH v LISA O’NEILL

50011 of 2007
GORDON PLATH v LISA O’NEILL

50012 of 2007
GORDON PLATH v TIMOTHY ALAN O’NEILL

JUDGMENT

1 HIS HONOUR: The defendants Lisa O'Neill and her husband Timothy Alan O'Neill have entered pleas of guilty in relation to four breaches of the National Parks and Wildlife Act 1974 (NPW Act) as follows:

NPW Act

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 O'Neill

Details

AGLC: Plath v O'Neill [2007] NSWLEC 553
Case: [2007] NSWLEC 553
Decision Date: 31 August 2007

CaseChat Overview and Summary

In Plath v O'Neill, the defendants, Lisa and Timothy O'Neill, were convicted of damaging and disturbing an Aboriginal midden on their property, in contravention of the National Parks and Wildlife Act 1974 (NSW). The Land and Environment Court was required to decide the appropriate sentence for the defendants' actions. The court considered various factors, including the maximum penalties for the offences, the objective seriousness of the offences, the environmental harm caused, the defendants' state of mind, and the need for deterrence. The court also took into account the subjective circumstances of the defendants, such as their good character, early guilty plea, and remorse. The court rejected the prosecutor's submission that the defendants should be imprisoned and instead fined each defendant $400 for the offences, and ordered them to pay the prosecutor's costs. The court found that the defendants' actions, while wrong, were a desperate reaction to the financial difficulties they were facing and the impact of the midden's discovery on their property's value.

Orders