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Plath v Rawson

Plath v Rawson

Case [2009] NSWLEC 178 28 October 2009

Breach of Contract

Unjust Enrichment

Statutory Construction

Equitable Estoppel

Judicial Review

Environmental Law

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Reported Decision: (2009) 170 LGERA 253

Land and Environment Court

of New South Wales

CITATION: Plath v Rawson [2009] NSWLEC 178

PARTIES:
PROSECUTOR
Gordon Plath
DEFENDANT
Lance Rawson

FILE NUMBER(S): 50077-50083 of 2007

CORAM: Preston CJ

KEY ISSUES: ENVIRONMENTAL OFFENCES :- picking threatened plant species - sentence - offence of medium objective gravity - conduct offended against legislative objects - substantial environmental harm - conduct deliberate and in reckless disregard for whether lawful or not, but without actual knowledge that plants were threatened species - offences committed to earn a fee - foreseeable risk of harm - practical measures to avoid harm - control over causes of harm - subjective circumstances of offender - lack of prior criminality - prior good character of less weight - plea of guilty of less utilitarian value because of delay and contested factual basis for sentencing - lack of contrition and remorse for conduct or consequences - minimal assistance to authorities - appropriateness of imprisonment, community service order and fine - combination of community service and fine - totality principle - adjustment of individual sentences - means to pay - reduction in amount of fine - prosecutor's costs

LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999, ss 3, 108, 115
Crimes (Sentencing Procedure) Act 1999, ss 3A, 8, 21A(2)(g), 21A(3), 22, 23(1), 86, 87, 90
Criminal Procedure Act 1986, ss 257B, 257G
Fines Act 1996, ss 3, 4(1), 6, 7, 10
National Parks and Wildlife Act 1974, ss 2A, 118A(2), 118D(1), 137, 138, 176
Protection of the Environment Administration Act 1991, s 6(2)
Threatened Species Conservation Act 1995, s 3

CASES CITED: Bentley v BGP Properties [2006] NSWLEC 34; (2006) 145 LGERA 234
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; 82 LGERA 21
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Dempsey v The Queen [2002] QCA 45; (2002) 127 A Crim R 113
Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137
Douar v The Queen [2005] NSWCCA 455; (2005) 159 A Crim R 154
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Coggins [2003] NSWLEC 111; (2003) 126 LGERA 219
Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997)
Environment Protection Authority v Pal [2009] NSWLEC 35
Environment Protection Authority v Pal (No 2) [2009] NSWLEC 60
Environment Protection Authority v Taylor [No 4] [2002] NSWLEC 59; (2002) 120 LGERA 414
Environment Protection Authority v White (1996) 92 LGERA 264
Filipowski v Hemina Holdings S.A.; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104
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
Garrett v Williams [2007] NSWLEC 56
Gittany v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Graham v The Queen [2009] NSWCCA 212
Hardt v…

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 Rawson

Details

AGLC: Plath v Rawson [2009] NSWLEC 178
Case: [2009] NSWLEC 178
Decision Date: 28 October 2009

CaseChat Overview and Summary

In the case of Plath v Rawson, the Land and Environment Court of New South Wales was tasked with sentencing Lance Rawson for multiple offences against the National Parks and Wildlife Act 1974. Rawson, a farmhand, had pleaded guilty to picking plants of threatened species on a property at Terranora. The court considered various legal issues, including the objective gravity of the offences, the harm caused to the environment, and the subjective circumstances of the offender. The court found that the offences were of medium objective gravity due to the nature of the offences, the high maximum penalties, the substantial environmental harm, and the deliberate conduct of Rawson. Despite Rawson's lack of prior criminality and good character, the court found that the plea of guilty had less value due to the delay and contested factual basis for sentencing. The court sentenced Rawson to a combination of fines and community service orders, taking into account the totality principle and Rawson's financial means. The court also ordered Rawson to pay the prosecutor's costs, excluding those related to the unsuccessful aggravating facts.

Orders