Lee v Office of Environment and Heritage [2012] NSWLEC 9

Land and Environment Court New South Wales

Medium Neutral Citation: Lee v Office of Environment and Heritage [2012] NSWLEC 9 Hearing dates: 12 December 2011 Decision date: 03 February 2012 Jurisdiction: Class 6 Before: Craig J Decision: 1. Appeal allowed. 2. The sentences of imprisonment imposed in the Local Court at Maclean on 9 August 2011 are set aside. 3. In respect of the offence under s 98(2)(a) of the National Parks and Wildlife Act 1974 committed by the appellant on 27 November 2009 the appellant is fined the sum of $7,200. 4. In respect of the offence under s 98(2)(a) of the National Parks and Wildlife Act 1974 committed by the appellant on 28 November 2009, the appellant is fined the sum of $5,000. 5. Exhibits may be returned. Catchwords: APPEAL - offences against s 98(2)(a) National Parks and Wildlife Act 1974 - shooting twelve Little Black Cormorants - sentence of imprisonment imposed by Local Court - appeal against sentence - principles of sentencing - relevance of prison sentence imposed for another environmental offence committed in Queensland - latter sentence only imposed after commission of the offences in the present proceedings but prior to prosecution being instituted for those offences - principles of totality and parity - appeal allowed - fine imposed Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 National Parks and Wildlife Act 1974 Quarantine Act 1908 (Cth) Cases Cited: DEC v Sanita-Lani (17 May 2006, Sutherland Local Court, unreported) Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102 Garrett on behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492 JJ & ABS Investments Pty Ltd v Environment Protection Authority [2011] NSWLEC 199 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 R v Todd [1982] 2 NSWLR 517 Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Category: Principal judgment Parties: Chung Yan Lee (Appellant) Office of Environment and Heritage (Respondent) Representation: COUNSEL Mr P O'Connor (Appellant) Ms P Lenehan (Solicitor) (Respondent) SOLICITORS Conroy Stewart Spagnolo (Appellant) Office of Environment and Heritage (Respondent) File Number(s): 60707 of 2011