It is extremely rare that a prosecution for an environmental offence in New South Wales results in a custodial sentence. In fact, there have only been two occasions where an environmental offender has been incarcerated: 1) In Environmental Protection Authority v Charles Anthony Leslie Gardner (1997) NSWLEC 169, the defendant was imprisoned for 12 months for pumping hundreds of thousands of litres of untreated sewage from a concealed system of pipes into the Karuah River; 2) In Environment Protection Authority v Keogh (2000) NSWLEC 273, the defendant was sent to jail for 2 months on a charge of contempt after he failed to comply with Court orders that required him to clean up a site where he had dumped thousands of used tyres.
A recent prosecution brought by the NSW Office of Environment and Heritage under the National Parks and Wildlife Act nearly became the third case to be concluded with a jail term for the defendant. In that case, Lee v Office of Environment and Heritage (2012) NSWLEC 9, the defendant was actually sentenced to a prison term of 6 months in the Maclean Local Court. The prison sentence was set aside, and a monetary penalty was substituted, only following an appeal to the Land and Environment Court. The Land and Environment Court's decision was handed down on 3 February 2012: http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=156713.
The offence that was committed by the defendant was surely a serious one. The defendant had been employed as the manager of a commercial tiger prawn farm that was situated on the banks of the Clarence River. A flock of 250 - 300 Little Black Cormorants (a protected species under the Act) roosted in a large tree on a neighbouring property and fed on the prawns, resulting in large financial losses to the owner of the breeding operation. In a misguided attempt to protect the shrimp, the defendant, on two separate occasions in November 2009, fired a shotgun into the roosting tree. Each incident caused the deaths of 6 of the cormorants.
The primary considerations that led the Land and Environment Court (per Justice Craig) to allow the defendant's appeal against the severity of the sentence appeared to be twofold. First, Justice Craig concluded that the defendant did not derive any direct financial advantage from his actions. On this issue, His Honour departed from the findings of the magistrate in the Local Court, who had determined that the defendant's sole motivation for committing the offence had been to achieve monetary gain. Justice Craig reached his determination on the basis that the defendant had not obtained nay monetary reward from his employer for killing the birds.
The second principal ground which prompted Justice Craig to vacate the sentence of imprisonment was that the defendant had recently served a prison term for an offence against the Commonwealth Quarantine Act that he had committed in 2006, before the defendant had killed the cormorants (again the killing of the cormorants occurred in November 2009).
The offence against the Quarantine Act involved the illegal importation into Australia of shrimp feed. The defendant served a prison sentence of 6 months for that offence and was released before the prosecution for killing the cormorants was commenced. Justice Craig held that the magistrate in the Local Court proceedings had not accorded sufficient weight to the "rehabilitative effect" that the prison sentence for the Quarantine Act offence would have occasioned.
Additional factors which led Justice Craig to substitute a monetary penalty (of $7,200) for a term of imprisonment in this case included the defendant's subjective circumstances, particularly the fact that he had left the employ of the shrimp farm and taken up employment as an accountant and was thus unlikely to re-offend; that he was a married man with two young children; and that he had entered a plea of guilty at an early opportunity and had expressed remorse for the commission of the offence. Principles of parity were also taken into account in the determination of sentence, as the Court's review of prior prosecutions indicated that the pattern of sentencing for offences involving harm to protected wildlife had generally resulted in fines rather than imprisonment (see e.g. Garrett on behalf of the Director General of the Department of Conservation and Environment v House (2006) NSWLEC 492 (27 Wellcome Swallows fatally poisoned, fine of $9,000).
The defendant was indeed fortunate to escape a prison sentence, as it is difficult to imagine a more wanton and deliberate act than firing a shotgun at a large flock of protected birds. As Justice Craig observed in his judgement, it was clearly foreseeable that the defendant's conduct would result in injury or death to a number of birds. If the defendant had killed a larger number of birds - which was certainly a possible outcome of his conduct of firing a shotgun at the tree where the flock of cormorants was roosting - and surely, if he had committed this offence after serving the prison sentence for the Quarantine Act offence - he would almost certainly have received a more severe sentence from the Court.
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