Byron Shire Council v. Michael Hume Fletcher

Abstract

The defendant, Michael Hume Fletcher, had pleaded guilty to an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 that between 7 July and 14 July 2004 the defendant had carried out development - namely cutting down, removing, and/or wilfully destroying about fifty trees - without prior development consent granted by the prosecutor and as required under cls 9 and 52 of Byron Local Environmental Plan 1988. The relevant facts were not in dispute. They were derived from an agreed statement of facts, parts of two affidavits read by consent, and some additional documentary material which had been tendered. The defendant was an earthmover by trade and had operated as an earthmover for thirteen years. He had cleared other sites similar to the land. The trees removed formed part of a wet sclerophyll forest. The species tallow wood (Eucalyptus microcorys) was a primary browse species for koala, fauna listed as a vulnerable species under Sch 2 of the Threatened Species Conservation Act 1995. The court emphasized that a basic principle of sentencing law was that the sentence had to reflect both the objective circumstances of the offence and the personal or objective circumstances of the defendant. The first of the objective circumstances relevant to determining the gravity of the crime was the maximum statutory penalty. The maximum penalty available for an offence reflected the public expression of Parliament of the seriousness of the offence. What was necessary in each case was to determine what was the appropriate penalty taking into account all relevant matters, being the matters prescribed by statute and any aggravating or mitigating circumstances of the offences. A second objective circumstance relevant to determining the seriousness of the crime was the objective harmfulness of the defendant’s actions. The culpability of the defendant depended, in part, on the seriousness of the environmental harm. In environmental matters the Court had previously exercised its discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty. The court then analyzed a third objective circumstance relevant to determining the seriousness of a crime, the state of mind of the offender at the time of the offence. The state of mind could have the effect of increasing the seriousness of that crime. For that reason, it became an aggravating feature of the offence and was taken into consideration when assessing the objective gravity or circumstances of the offence. The extent to which the offences were foreseen, negligent, or the consequence of conduct which was intended, would also be relevant. Here, the defendant did not deliberately breach the law. The defendant was not aware that development consent was required to carry out the clearing activities and did not carry out the clearing in defiance of the law. The court also stressed that when imposing a penalty in this particular case, it was most important to ensure that that penalty sent a message to the general community that before any activity was taken which may cause the demise of any tree development consent had to be obtained from the local council. Finally, the court examined the personal mitigating factors as subjective circumstances of the defendant. They included the nature or characteristics of the defendant and the defendant’s response to the charge. In conclusion, taking each of the objective circumstances of the crime and the subjective circumstances of the defendant into account, the court held that the appropriate sentence was a fine in the amount of $20,000.

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References

Cites

Axer Pty Ltd v. Environment Protection Authority

Jurisprudence | National - higher court | Australia | Nov 22, 1993

Keyword: Offences/penalties, Hazardous substances, Pesticides

Source: UNEP, InforMEA