Minister administering the Ports Corporatisation and Waterways Management Act 1995 v Hakim (No 4) [2005] NSWLEC 344

Minister administering the Ports Corporatisation and Waterways Management Act 1995 v Hakim (No 4) [2005] NSWLEC 344

The excavation offence warranted a lower range fine because much of the excavation would have been approved by Waterways if a Pt 3A permit had been sought, but the 6 February 2004 excavation was more serious because the defendant knew a permit was required and none had issued. The stop work order offence was more culpable because the defendant had received the order, knew excavation was to resume, and failed to ensure excavation stopped, causing avoidable environmental damage. Mitigating factors reduced the penalties, and the totality principle justified reducing the fine for the stop work order offence because the offences occurred in a close time frame and involved shared environmental...

Jurisdiction
Australia
Judgment Date
08 July 2005
Procedural Posture
Environmental Offences Prosecution / Penalty Assessment After Findings of Guilt
Outcome
Defendant convicted and fined on both charges; ordered to pay the prosecutor's costs; exhibits returned.
Legal Topics
['excavation Without a Pt 3 a Permit' 'failure to Comply With Stop Work Order' 'environmental Harm' 'mitigating Factors' 'totality Principle']
['environmental Law' 'criminal Sentencing' 'planning Law'] ['excavation Without a Pt 3 a Permit' 'failure to Comply With Stop Work Order' 'environmental Harm' 'mitigating Factors' 'totality Principle']

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Procedural Posture

Environmental Offences Prosecution / Penalty Assessment After Findings of Guilt

Legal Issues

  1. 1 ['What penalties should be imposed for making an excavation on protected land contrary to s 22B of the Rivers and Foreshores Improvement Act 1948.' 'What penalty should be imposed for failing to comply with a stop work order under s 22D of the Rivers and Foreshores Improvement Act 1948.' 'Whether the unlawful excavation caused significant environmental harm and how that harm affected penalty.' 'Whether mitigating factors, including good character, low likelihood of re-offending, willingness to remediate, reliance on the builder and Sydney Water instructions, reduced penalty.' 'Whether the totality principle required reduction of the aggregate fines.']

Ratio Decidendi

The excavation offence warranted a lower range fine because much of the excavation would have been approved by Waterways if a Pt 3A permit had been sought, but the 6 February 2004 excavation was more serious because the defendant knew a permit was required and none had issued. The stop work order offence was more culpable because the defendant had received the order, knew excavation was to resume, and failed to ensure excavation stopped, causing avoidable environmental damage. Mitigating factors reduced the penalties, and the totality principle justified reducing the fine for the stop work order offence because the offences occurred in a close time frame and involved shared environmental...

Court Disposition

Defendant convicted and fined on both charges; ordered to pay the prosecutor's costs; exhibits returned.

Orders

  • ['The defendant is convicted of charge no 50057 of 2004 and is fined $15,000.' 'The defendant is convicted of charge no 50058 of 2004 and is fined $25,000.' "The defendant pay the prosecutor's costs of charges 50057 of 2004 and 50058 of 2004." 'The exhibits be returned.']