Garrett v Freeman (No. 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1

Garrett v Freeman (No. 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1

The appropriate penalties for the proven environmental offences were determined by weighing the objective seriousness of deliberately causing damage to threatened species' habitat and constructing roads in wetlands without proper permit or environmental assessment, against the absence of actual demonstrated harm to species, the later remediation efforts, and the principle of totality. The court held that general deterrence and protection of statutory environmental assessment systems required substantial fines, but acknowledged mitigation for remediation, remorse, and prior good character. Discount was given for early guilty pleas. Separate fines were set for Mr Freeman and the Council...

Parties
Prosecutor: Stephen Garrett; Defendant: Geoffrey Noel Freeman; Prosecutor: Peter Carter; Defendant: Port Macquarie-Hastings Council
Jurisdiction
Australia
Judgment Date
06 February 2009
Procedural Posture
Criminal (prosecution for Environmental Offences) / Sentencing Judgment Following Findings of Guilt and Guilty Pleas
Outcome
Convictions entered for all counts. Fines imposed for each proven offence. Orders made for payment of prosecution costs.
Legal Topics
Sentencing (environmental Offences), Habitat Destruction (threatened Species), Strict Liability, Penalty Assessment, Totality Principle, Remediation, General and Specific Deterrence
Environmental Law Criminal Law Administrative Law Sentencing (environmental Offences) Habitat Destruction (threatened Species) Strict Liability Penalty Assessment Totality Principle +2 more

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Parties

Stephen Garrett

Prosecutor

Geoffrey Noel Freeman

Defendant

Peter Carter

Prosecutor

Port Macquarie-Hastings Council

Defendant

Procedural Posture

Criminal (prosecution for Environmental Offences) / Sentencing Judgment Following Findings of Guilt and Guilty Pleas

Legal Issues

  1. 1 What is the appropriate penalty for causing damage to the habitat of threatened species contrary to s 118D(1) of the National Parks and Wildlife Act 1974?
  2. 2 What is the appropriate penalty for carrying out reclamation work without a permit contrary to s 200 of the Fisheries Management Act 1994?
  3. 3 How should the totality principle and remediation efforts affect sentencing for related environmental offences?

Ratio Decidendi

The appropriate penalties for the proven environmental offences were determined by weighing the objective seriousness of deliberately causing damage to threatened species' habitat and constructing roads in wetlands without proper permit or environmental assessment, against the absence of actual demonstrated harm to species, the later remediation efforts, and the principle of totality. The court held that general deterrence and protection of statutory environmental assessment systems required substantial fines, but acknowledged mitigation for remediation, remorse, and prior good character. Discount was given for early guilty pleas. Separate fines were set for Mr Freeman and the Council...

Court Disposition

Convictions entered for all counts. Fines imposed for each proven offence. Orders made for payment of prosecution costs.

Orders

  • Mr Freeman convicted on two counts, fined $38,000 and $19,000 respectively, to pay $167,500 prosecution costs.
  • Port Macquarie-Hastings Council convicted on three counts under NP&W Act, fined $26,000, $13,000, $6,500 respectively, to pay $114,000 prosecution costs.