Chief Executive of the Office of Environment and Heritage v Kurstjens; Chief Executive of the Office of Environment and Heritage v Topview Brisbane Pty Ltd [2017] NSWLEC 54

Chief Executive of the Office of Environment and Heritage v Kurstjens; Chief Executive of the Office of Environment and Heritage v Topview Brisbane Pty Ltd [2017] NSWLEC 54

Given the defendants' reckless clearing of native vegetation causing moderate environmental harm, without approval, in direct contravention of the Native Vegetation Act 2003, and having regard to both objective gravity (including harm, foreseeability, and motivation for commercial gain) and subjective factors...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
12 May 2017
Procedural Posture
Criminal (environmental Offence/sentencing) / Sentence Following Guilty Pleas
Outcome
Conviction and fines imposed; costs ordered.
Legal Topics
['unlawful Clearing of Native Vegetation' 'sentencing Principles' 'environmental Harm' 'executive Liability for Corporate Offences']
['environmental Law' 'criminal Law'] ['unlawful Clearing of Native Vegetation' 'sentencing Principles' 'environmental Harm' 'executive Liability for Corporate Offences']

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Summary, issues, holding and outcome

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Procedural Posture

Criminal (environmental Offence/sentencing) / Sentence Following Guilty Pleas

Legal Issues

  1. 1 ['What is the appropriate sentence for unlawful clearing of native vegetation under the Native Vegetation Act 2003?' 'How should the court assess the gravity of environmental harm and the subjective/objective circumstances?' 'How to apportion fines between a one-person company and its director/officer?']

Ratio Decidendi

Given the defendants' reckless clearing of native vegetation causing moderate environmental harm, without approval, in direct contravention of the Native Vegetation Act 2003, and having regard to both objective gravity (including harm, foreseeability, and motivation for commercial gain) and subjective factors (guilty pleas, cooperation, no record), a total fine representing around 20-25% of the statutory maximum is warranted, apportioned 3:1 between the individual (Kurstjens) and the company (Topview), to avoid double punishment and reflect relative culpability. Costs are also ordered as agreed.

Court Disposition

Conviction and fines imposed; costs ordered.

Orders

  • ['In matter 2016/153869: Defendant Gerardus Kurstjens convicted and fined $118,125.' 'In matter 2016/155307: Defendant Topview Brisbane Pty Ltd convicted and fined $39,375.' "Defendants jointly and severally to pay Prosecutor's costs of $185,000."]