Terrey v Department of Environment, Climate Change and Water

[2011] NSWLEC 141

NSW Land and Environment Court

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Environmental offences
4. › Appeal against severity of sentence
5. › Breach of licence condition under National Parks and Wildlife Act 1974 (NSW)
6. › Failure to collect dead Grey-headed Flying-foxes
7. › Whether fine of $2,000 excessive
8. › Objective seriousness low
9. › Fine reduced to $1,000
10. › National Parks and Wildlife Act 1974 (NSW), ss 120, 133(4), 175(1)(b), 194
1. Criminal Law
2. › Sentencing
3. › Dismissal of charges without conviction
4. › Section 10 order
5. › Whether appropriate for strict liability environmental offence
6. › Prior official warning
7. › No contrition or remorse
8. › Order declined
9. › Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
1. Statutory Interpretation
2. › Crimes (Appeal and Review) Act 2001 (NSW)
3. › Section 37
4. › Nature of appeal against sentence
5. › Whether s 37 applies only to appeals against conviction
6. › Amendment inserting words 'against conviction'
7. › Whether s 37(2) limitation on fresh evidence applies to sentence appeals
8. › Crimes (Appeal and Review) Act 2001 (NSW), ss 31, 37

Quick Take

Section 37 of the Crimes (Appeal and Review) Act 2001 (NSW), as amended in 2009, applies only to appeals against conviction and not to appeals against sentence. The limitation on adducing fresh evidence in s 37(2) does not apply to severity appeals to the Land and Environment Court. Prior decisions of the LEC to the contrary (Fletcher v Byron Shire Council (No 2) and Nguyen v Canterbury City Council) are plainly wrong. A s 10 order will rarely be appropriate for strict liability environmental offences, particularly where the offender has received a prior official caution and shows no contrition.