Harrison v Baring Pays/Territoire Australie Type de cour Autres Date Mai 15, 2012 Source UNEP, InforMEA Nom du tribunal Land and Environment Court of New South Wales Juge Pain. Numéro de référence [2012] NSWLEC 117 Langue Anglais Sujet Questions juridiques, Eau Mot clé Infractions/sanctions Mise en application Approvisionnement en eau Prélèvement d'eau Responsabilité/indemnisation Résumé The Defendant Mr Baring has been charged with ten offences under the Water Management Act 2000 (the WM Act) in relation to the watering of a wheat and a canola crop each on two separate occasions in 2008 on a property called Baring Park east of Condobolin on the Lachlan River. The Prosecutor is employed in the NSW Office of Water and commences this action pursuant to the common informer provisions in s 14 of the Criminal Procedure Act 1986. The Defendant did not appear and was not represented at the hearing. The relevant provisions of the WM Act are s 341(1)(a) which provides that it is an offence to take water from a water source otherwise than in accordance with an access licence, and s 343(1)(a1)(i) which provides that it is an offence to the use of a water supply work to take water otherwise than in accordance with an access licence. The offences are strict liability offences. Section 363 provides for charges against a director of a company if the person knowingly authorised or permitted the act or omission constituting the offence. The Defendant is the sole director of that company which has also been deregistered by ASIC. The Prosecutor has established on the evidence the elements of each of the ten offences (50856 50865 of 2011) beyond reasonable doubt. In particular he has established that water was taken from the Lachlan River on the four occasions the subject of the various offences as particularised in the evidence in relation to each of the charges in the SOF set out above. The Defendant's role in knowingly authorising and permitting the use of water on the four occasions has also been proved in relation to each of the charges. The Court found that Mr Baring knowingly authorised the taking of the water from the Lachlan River on 4 occasions and permitted the use of that water on 4 occasions. Further, at the time the water was taken, the water meters on the property held by Baring Park Pty Ltd were not functioning and as a result, Mr Baring was also found guilty of 2 failures to notify the Office of Water of the broken meters. When considering factors relevant to the sentencing of Mr Baring, the Court found that: the distribution of a vital public resource underpins the scheme for water licensing and access, hence the taking of the water constituted a breach of public trust; the State was precluded from effectively monitoring water taken, due to the broken meters; the circumstances of the offence were in the moderate to serious range; and in this circumstance, a general deterrent was a particularly important consideration in sentencing for the offences. The Court further commented that, during severe water shortages, most if not all licence holders are likely to experience significant reductions in their expected water allocations and most, if not all, farmers are likely to come under significant financial pressure because of lack of water. Texte intégral COU-159831.pdf