Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129

Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129

The Court held that s 10 was not appropriate because the offence was not small or trivial, the clearing continued after departmental contact and relevant advice, the defendant had full control of the offending operation and could have avoided unacceptable harm by seeking approval or advice, and general deterrence required conviction. The offence was of moderate objective gravity, caused environmental harm at the lower end of medium, and warranted a fine of $160,000 before a 25% guilty plea discount, resulting in a $120,000 fine plus costs and appropriate investigation expenses.

Jurisdiction
Australia
Judgment Date
04 June 2012
Procedural Posture
Class 5 Prosecution for Environmental Offence Under S 12(1) of the Native Vegetation Act 2003 / Sentencing After Brian Clifford Powell's Plea of Guilty; Related Charges Against Cleo's Unitisation Pty Limited Dismissed by Consent
Outcome
Charges against Cleo's Unitisation Pty Limited dismissed by consent with no order as to costs; Brian Clifford Powell found guilty, convicted and fined $120,000, with costs and appropriate investigation expenses ordered.
Legal Topics
['clearing of Native Vegetation Without Approval' 'native Vegetation Act 2003' 'property Vegetation Plan' 'koala Habitat' 'strict Liability Environmental Offences' 'section 10 Dismissal' 'costs and Investigation Expenses']
['environmental Law' 'criminal Law' 'sentencing'] ['clearing of Native Vegetation Without Approval' 'native Vegetation Act 2003' 'property Vegetation Plan' 'koala Habitat' 'strict Liability Environmental Offences' 'section 10 Dismissal' 'costs and Investigation Expenses']

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Procedural Posture

Class 5 Prosecution for Environmental Offence Under S 12(1) of the Native Vegetation Act 2003 / Sentencing After Brian Clifford Powell's Plea of Guilty; Related Charges Against Cleo's Unitisation Pty Limited Dismissed by Consent

Legal Issues

  1. 1 ['Whether a conviction should be recorded or the offence dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999' 'Assessment of the objective seriousness of clearing native vegetation without development consent or a property vegetation plan' 'Assessment of environmental harm caused by clearing River Red Gum vegetation including mature and hollow-bearing trees' "Whether the defendant's plea, cooperation, character and asserted misunderstanding warranted mitigation beyond the guilty plea discount" 'Whether costs and investigation expenses should be ordered']

Ratio Decidendi

The Court held that s 10 was not appropriate because the offence was not small or trivial, the clearing continued after departmental contact and relevant advice, the defendant had full control of the offending operation and could have avoided unacceptable harm by seeking approval or advice, and general deterrence required conviction. The offence was of moderate objective gravity, caused environmental harm at the lower end of medium, and warranted a fine of $160,000 before a 25% guilty plea discount, resulting in a $120,000 fine plus costs and appropriate investigation expenses.

Court Disposition

Charges against Cleo's Unitisation Pty Limited dismissed by consent with no order as to costs; Brian Clifford Powell found guilty, convicted and fined $120,000, with costs and appropriate investigation expenses ordered.

Orders

  • ['In matters 50359 and 50518 of 2011, the charges against the defendant company are dismissed, by consent, with no order as to costs.' 'In matter 50358 of 2011, Brian Clifford Powell is found guilty, and convicted, of the offence charged in the summons.' "The defendant Powell is fined a sum of $120,000, and ordered...