Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114

Land and Environment Court New South Wales

Medium Neutral Citation: Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 Hearing dates: 30 July 2019 Date of orders: 09 August 2019 Decision date: 09 August 2019 Jurisdiction: Class 5 Before: Preston CJ Decision: The Court orders: (1) Jeffrey Thomas Brummell is convicted of the offence against s 12(1) of the Native Vegetation Act 2003 as charged. (2) Mr Brummell is fined $248,000. (3) Pursuant to s 122(2) of the Fines Act 1996, one half of the fine imposed by order (2) is to be paid to the Chief Executive of the Office of Environment and Heritage (the prosecutor). (4) Pursuant to s 257B of the Criminal Procedure Act 1986, Mr Brummell is to pay to the Registrar of the Land and Environment Court, for payment to the prosecutor, the prosecutor's costs of the proceedings in the amount of $48,000. Catchwords: OFFENCES AND PENALTIES – sentence – clearing of native vegetation – objective seriousness of offence – substantial environmental harm caused – clearing negligent – clearing for financial gain – foreseeable risk of environmental harm – practical measures to prevent risk of harm – control over causes – offence in low-middle range – subjective circumstances of the offender – no prior convictions – prior good character – relatively early guilty plea – genuine remorse for offence and consequences – assistance to authorities – appropriate fine – moiety of fine – costs Legislation Cited: Biodiversity Conservation Act 2016 Crimes (Sentencing Procedure) Act 1999 ss 21A, 22, 23 Environmental Planning and Assessment Act 1979 s 126 Environmental Planning and Assessment Amendment Act 2014 Environmental Planning and Assessment (Offences and Enforcement) Regulation 2015 Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 Fines Act 1996 s 122 Fines and Penalties Act 1901 Native Vegetation Act 2003 ss 3, 6, 12, 22, 23, 24, 25, 44 Threatened Species Conservation Act 1995 Cases Cited: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 Boughey v The Queen (1986) 161 CLR 10 Bradlaugh v Clark (1883) 8 App Cas 354 Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull (2017) 227 LGERA 290; [2017] NSWLEC 140 Chief Executive, Office of Environment and Heritage v Orica Pty Ltd [2015] NSWLEC 109 Director General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 Director General, Department of Environment and Climate Change v Rummery (2012) 192 LGERA 314; [2012] NSWLEC 271 Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 Hawkesbury City Council v Foster and Mushroom Comproters Pty Ltd (1997) 97 LGERA 12 NSW Sugar Milling Cooperative Ltd v Environment Protection Authority (1992) 75 LGRA 320 Orpen v Haymarket Capital Ltd (1931) 145 LT 614 Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154 Category: Principal judgment Parties: Chief Executive of the Office of Environment and Heritage (Prosecutor) Jeffrey Thomas Brummell (Defendant) Representation: Counsel: Ms A Bonnor (Prosecutor) Mr R Ranken (Defendant)