Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54

Land and Environment Court New South Wales

Medium Neutral Citation: Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 Hearing dates: 2 April 2019 Date of orders: 17 April 2019 Decision date: 17 April 2019 Jurisdiction: Class 5 Before: Moore J Decision: See orders at [160] Catchwords: SENTENCE – charge of unlawful clearing of native vegetation – plea of guilty – consideration of potential aggravating factors – substantial environmental harm a factor of aggravation – clearing carried out for financial gain a second factor of aggravation – consideration of defendant's subjective factors – defendant's lack of insight into his offending conduct demonstrates lack of contrition and remorse – no likelihood of reoffending – other subjective factors favourable to defendant – agreed remediation plan - consideration of other potentially relevant prosecutions – appropriate starting penalty just below the middle of the range – plea of guilty entered – not entered at earliest opportunity but of significant utilitarian value – discount of 22.5% on starting penalty appropriate – fine of $348,750 imposed Legislation Cited: Native Vegetation Act 2003, ss 3, 12 and 38 Crimes Sentencing Procedure Act 1999, ss 3A, 21A and 22 Criminal Procedure Act 1986, s 257B Fines Act 1996, ss 6 and 122 Cases Cited: Barbaro v The Queen, Saveio Zirilli v The Queen [2014] 253 CLR 58; [2014] HCA 2 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Rummery (2012) 192 LGERA 314; [2012] NSWLEC 271 Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSLEC 150 Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140 Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull [2017] NSWLEC 141 Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 Environment Protection Authority v Barnes (2006) NSWCCA 246 Environment Protection Authority v Middle Harbour Constructions Pty Limited (2002) 119 LGERA 440; [2002] NSWCCA 123 Environment Protection Authority v Orange City Council (Stein J – unreported, Land and Environment Court of New South Wales, 23 June 1995) Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Viva Energy Pty Ltd [2019] NSWLEC 13 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Markarian v R (2005) 229 CLR 357; [2005] HCA 25 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14 Category: Sentence Parties: Chief Executive, Office of Environment and Heritage (Prosecutor) Anthony Charles Boyle (Defendant) Representation: Counsel: Mr T Hammond, barrister (Prosecutor) Mr S Littlemore QC and Ms P Lane, barrister (Defendant)