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

Judgment

1On 9 August 2011 the appellant was convicted at Maclean Local Court of two offences against s 98(2)(a) of the National Parks and Wildlife Act 1974. On each of the two occasions to which the offences relate, the defendant shot and killed six birds, being Little Black Cormorants. He was convicted and sentenced to three months imprisonment for each offence, such sentences to be served concurrently.

2The defendant appeals against those sentences pursuant to s 31 of the Crimes (Appeal and Review) Act 2001. He submits that the penalty by way of imprisonment was "too severe" having regard to the circumstances relevant to be considered in respect of an offender for commission of those offences.

The charge: statutory provisions

3Section 98 of the National Parks and Wildlife Act relevantly provides:

" 98 Harming protected fauna, other than threatened species, endangered populations or endangered ecological communities

(1) ...

(2) A person shall not:

(a) harm any protected fauna, or

...

(b) use any substance, animal, firearm, explosive, net, trap, hunting device or instrument or means whatever for the purpose of harming any protected fauna.

Maximum penalty:

(a) 100 penalty units and, in a case where protected fauna is harmed, an additional 10 penalty units in respect of each animal that is harmed, or

(b) imprisonment for 6 months,

or both."

4Reference in the National Parks and Wildlife Act to harming an animal is, by s 5, defined to include shooting an animal. Further, it is not in contest that the Little Black Cormorant is "protected fauna" within the meaning of the Act.

The charge: the facts

5The appellant was the manager of a commercial tiger prawn farm conducted at Palmers Island, near Yamba on the banks of the Clarence River. That farm was owned by Fortune Enterprises Australia Pty Ltd ( the Company ).

6A large tree located on a neighbouring property to the Company's prawn farm was the roosting site for a flock of approximately 250-300 Little Black Cormorants. Those birds had proved to be troublesome in operating the prawn farm as they fed on the prawn stock. Electronic bird guards, wire strings over ponds, gas guns and other noise making devices proved ineffective to prevent access by the Little Black Cormorants to prawn stock. The Company estimated that the loss attributed to the Little Black Cormorants was about $216,000 per harvest cycle of 60 days.

7The appellant decided upon another measure to protect his employer's prawn stock from bird predation. On 27 November 2009 he drove to the large tree in which the Little Black Cormorants roosted on the neighbouring property. There he fired a number of shots from a shotgun using live ammunition. He was successful in killing six Little Black Cormorants on that day. He returned the following day with his shotgun, firing a number of shots with live ammunition into the roosting tree. Again, he was successful in killing six Little Black Cormorants. Subsequent veterinary examination of all birds indicated that they had died from shotgun pellets.

The appeal

8Part 4 of the Crimes (Appeal and Review) Act contains the statutory provisions governing the conduct of an appeal of the present kind. While provision is made in s 37 of that Act as to the manner in which an appeal against conviction is to be determined in this Court, there is no equivalent provision directed to an appeal against sentence. However, having regard to the other provisions of both Pt 3 and Pt 4 of that Act, an appeal to this Court against sentence is to be conducted by way of rehearing on the material before the Local Court, together with such further evidence as the parties may adduce on the hearing of the appeal ( Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141; JJ & ABS Investments Pty Ltd v Environment Protection Authority [2011] NSWLEC 199). Both the appellant and the respondent conducted the appeal on this basis.

9Oral evidence was received from the appellant. That evidence was directed to the personal circumstances of the appellant relevant to matters that might be considered in mitigation of the penalty. He had not been called to give evidence in the Local Court, his personal circumstances being the subject only of assertions contained in submissions made on his behalf in that Court.

10The prosecutor adduced evidence from Dr Gregory Clancy, an expert ecologist and ornithologist. His evidence was directed to identification of the birds killed by the appellant and also the effect upon a flock of Little Black Cormorants by the shooting or culling of birds from that flock. No objection was taken to this evidence by the appellant.

11The power of this Court when determining an appeal against sentence is found in s 39(2) of the Crimes (Appeal and Review) Act . By that section, the Court is empowered to set aside or vary the sentence imposed by the learned Magistrate or it may dismiss the appeal.

Additional evidence

Personal circumstances of the appellant

12The appellant was born in Hong Kong and migrated to Australia in 1999. He is married with two daughters who are aged 9 years and 10 years respectively. At the time of committing the offences to which he pleaded guilty, he was an employee of the Company earning $35,000 per year, inclusive of superannuation. He derived no other financial advantage from his employment whether by way of commission, bonus or otherwise.

13In circumstances to which reference will shortly be made, the appellant left that employment in 2010. He has completed studies at Griffith University and obtained a Bachelor of Commerce degree. Practising as an accountant is his preferred employment. For some time he was unemployed but during that time he undertook accounting work on a voluntary basis for the Queensland Colostomy Association. A reference from that organisation speaks highly of his capacity as an accountant, his willingness to work and his contribution to the Association.

14In August 2011 he obtained employment with a Brisbane accounting firm where he continues to work in an accounting capacity. He said that he is content in that work.

Prior offences

15On 31 March 2010 at the District Court in Brisbane, the appellant pleaded guilty to an offence against s 67(3) of the Quarantine Act 1908 (Cth). That offence involved the importation of shrimp feed contrary to the provisions of the Act. He was charged jointly with the Company.

16As a result of his plea to the offence under that Act, the appellant was sentenced to three years imprisonment with a non-parole period of six months, to be released after that time upon entering into a good behaviour bond in the sum of $1,000 for a further period of two years. He served six months of the sentence imposed upon him and thereafter entered into the good behaviour bond that was required.

17Although the present offence had been committed before the appellant's sentence to imprisonment, that offence had not been prosecuted until after his sentence for the Commonwealth offence had been served and the good behaviour bond entered. The Court Attendance Notice instituting proceedings for the present offence was not issued until mid 2011, his first attendance at court being required on 12 July 2011.

The Company is charged with an identical offence

18The Company was also charged with offences under s 98(2)(a) of the National Parks and Wildlife Act arising from the actions of the appellant on 27 and 28 November 2009. The charges against the appellant and the Company were heard together.

19Both the appellant and the Company entered a plea of guilty on the first return date of the Court Attendance Notice. Sentence was passed by the learned Magistrate upon both of them on 9 August 2011. In addition to being ordered to pay the legal costs and investigation costs, the Company was fined the sum of $8,800 for each offence, totalling $17,600. As I have already recorded, the appellant was sentenced to imprisonment for three months for each offence.

20In passing sentence upon each of the appellant and the Company, reference was made by the learned Magistrate to the conviction of each of them as a result of the offences by each of them against the Quarantine Act (Cth). For that offence the Company had been fined $40,000. The offence was categorised by the learned Magistrate as an "environmental regulatory offence". It would seem that he regarded this as being of the same genus as the present offences. To the extent to which each was directed to the protection of an aspect of the environment in this Country, that categorisation was accepted by both the appellant and respondent to the present appeal as being apt.

Reasons for sentence in the Local Court

21After stating the facts attending the commission of the offences on 27 and 28 November 2009 and identifying the provisions of s 98(2)(a) of the National Parks and Wildlife Act , including the maximum penalties for such an offence, the learned Magistrate moved to consider the seriousness of that offence. In that regard he said:

"[9] In my view the objective gravity of the offence is high having regard to the actions of the accused. The offence encompasses a range of harm, with death of an animal being the most harmful for obvious reasons ... . The offence encompasses a single animal, and here there were a total of 12 animals killed. Bentley v BGP Properties Pty Ltd [ 2006] NSWLEC key criteria for determining the objective seriousness of the offence are the state of mind of the offender, the foreseeability of the risk of harm and the reasons for the commission of the offence (at 163). In this case, the offender deliberately sought to kill the birds, in a pre-planned repeated attack, using live ammunition, there was a high foreseeability of harm, and the soul motivation was financial gain. For these reasons the offence is objectively serious.

[10] There is likely to have been some, relatively minor, long-term harm caused to the immediate environment. The 12 birds killed are part of a flock of 250 to 300 birds which roost in that tree. However, as pointed out in the prosecution's submissions, there would be harm to the local population and the social structure of the flock, as well as a flow-on effect to the estuarine ecosystem."

22His Honour then addressed the need for general deterrence in assessing penalty, stating that "[i]f substantial sentences do not follow apprehension for the deliberate flouting of environmental laws by killing wildlife the public may well feel that the courts are standing idly by." He then acknowledged the entitlement of the appellant to a discount by reason of his early plea of guilty, made reference to the sentence imposed upon him in Queensland for the offence against the Quarantine Act (Cth) and briefly summarised those subjective circumstances of the appellant that had been the subject of submission by the appellant's solicitor.

23Imposition of the appropriate penalty was then addressed. Having indicated his intention to impose a monetary penalty totalling $17,600 by way of fine upon the Company, his Honour then directed his reasons to the appellant. He said (at [24]):

"As for Mr Lee, I have considered all other alternatives to imprisonment and in my view each is inappropriate given the seriousness of the offence and the need for general deterrence. I would have sentenced the defendant to four months imprisonment, however, applying the discount of 25% that is reduced to three months. I have considered alternatives to full time custody, and in particular a suspended sentence. However, in my view such a sentence would not reflect the seriousness of the offence."

24The sentence of three months imprisonment for each offence was then pronounced.

25The reasons for sentence did not reflect any consideration of the principles of parity. They did not reflect consideration of penalties imposed in any other case for offences of the same or similar kind. Furthermore, no reference is made to the principle of totality.

26The summons commencing the present appeal was filed on the day upon which the sentence was pronounced in the Maclean Local Court. As a consequence of the filing of the summons, the appellant was granted bail pending determination of this appeal.

The appellant's submissions

27The essential submission made on behalf of the appellant was that the sentence of imprisonment "was too severe". It sought to sustain that submission on five broad bases:

(i) the objective seriousness of the offences was overstated as long term harm was only minor and the learned Magistrate had wrongly attributed motivation for the offences as financial gain for the appellant;

(ii) insufficient consideration was given to the personal circumstances of the appellant;

(iii) reasons for imposition of a prison sentence were not adequately explained so as to conform to the requirements of s 5(2) of the Crimes (Sentencing Procedure) Act 1999 ( the CSP Act );

(iv) in the context of the chronology of relevant events that had occurred, insufficient weight had been given to the appellant's term of imprisonment for the "environmental regulatory offence" against the Quarantine Act (Cth) and the prospect of rehabilitation consequent upon the imposition of that sentence; and

(v) no consideration had been given to the principle of parity which, properly applied, would have demonstrated that the sentence imposed was disproportionate to that imposed in other cases for offences of comparable gravity.

The prosecutor's submission

28While the prosecutor took issue with some of the detail of the submissions made on behalf of the appellant, there were three submissions made pertinent to the issues raised in this appeal. They were:

(i) that the objective gravity of the offences committed by the appellant should be regarded as being at the upper end of the mid-range of offences under s 98(2)(a) of the National Parks and Wildlife Act ;

(ii) that the offence against the Quarantine Act (Cth) for which the appellant was imprisoned in Queensland should be seen as an aggravating factor; and

(iii) notwithstanding these matters, an appropriate penalty was a monetary penalty reflecting the serious nature of the offence.

The prosecutor expressly disavowed support for a custodial sentence.

Sentencing principles

29The purposes of sentencing are identified in s 3A of the CSP Act. They include the imposition of adequate punishment for the offence, deterrence, rendering the offender accountable for his actions and denunciation of the conduct in committing the offence. As the High Court observed in Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458, a basic principle is that the sentence reflect both the objective circumstances of the offence and the personal or subjective circumstances of the appellant. Ultimately the imposition of sentence involves an instinctive synthesis having regard to all these matters ( Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357).

Relevant factors

30Aggravating and mitigating factors relevant to be considered are stated in s 21A of the CSP Act. In the present case, also relevant to be considered are the provisions of s 194 of the National Parks and Wildlife Act . Although that section in its present form was inserted into the Act after the commission of the offences in the present case, the requirements of the section nonetheless remain applicable to these proceedings ( Director-General, Department of Environment, Climate Change and Water v Forestry Commission (NSW) [2011] NSWLEC 102).

Objective factors

31I have already identified the maximum penalty for an offence against s 98(2)(a). That translates, in the present case, to a pecuniary penalty of $17,600 for each offence or imprisonment for six months or both. That maximum penalty has significance in determining the objective gravity of the offence.

32A further pointer to the seriousness of the offence is the extent to which the conduct in question offends the legislative objects expressed in the National Parks and Wildlife Act . By s 2A, those objects include the conservation of nature including habitat and ecosystems as well as biological diversity at the community, species and genetic levels. When one has regard to those objects as well as the specific provisions of s 98, it is important that the sentence imposed demonstrates the community's abhorrence of crimes against the environment or components of it, such as protected fauna.

33In the context of s 194(1) of the National Parks and Wildlife Act there are a number of matters to be considered. Relevantly, these include:

"(a) the extent of the harm caused or likely to be caused by the commission of the offence,

...

(d) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence,

(e) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,

...

(h) whether the offence was committed for commercial gain."

Extent of harm

34In shooting and killing 12 Little Black Cormorants, the appellant plainly caused harm. In addition to that harm, the evidence of Dr Clancy was to the effect that the culling of a number of birds may disrupt the social structure of these flocks and reduce the efficiency of foraging. There was the possibility that birds killed could have nestlings waiting in nests to be fed with the result that they may die of starvation. He also opined that the Little Black Cormorant was a natural part of the estuarine ecosystem and was "likely to play an important role in maintaining the stability of [that] system". No doubt it was evidence of that kind that caused the learned Magistrate to make the observation that he did in [10] of his reasons for sentene which I have earlier quoted.

Foreseeability of harm and control over causes

35There can be no doubt that when the appellant attended the roosting site of the Little Black Cormorant flock, he intended harm of some kind. At the very least it was his intention to disturb the flock. By shooting live ammunition into the roosting site it must clearly have been foreseen that a bird or a number of birds would be injured or killed. Whether he intended to kill the precise number of birds that died is not to the point. He clearly had sole control over the cause of harm that was occasioned to these birds.

Commercial gain

36As I have recorded, the learned Magistrate considered that the "sole motivation" of the appellant in committing the offence was "financial gain". However, to suggest that the appellant gained any direct financial advantage from his actions does, in my opinion, overstate the position.

37I have already referred to the circumstance that the appellant was on a fixed salary and that he derived no other financial advantage beyond payment of that wage. He gained no extra from conducting himself in the manner in which he did in November 2009 other than to do what he must have believed to be the case, namely to advantage his employer. There is no evidence to suggest that, had he not taken the action that he did, his employment would be jeopardised. No matter how ill-conceived was his conduct, financial gain to himself was not, on the evidence, an available inference to be drawn against him.

38In the circumstances, I do not regard the concept of financial gain to the appellant as one informing the objective severity of the offence.

General Deterrence

39The learned Magistrate rightly identified the need for the imposition of a significant penalty in order to demonstrate that courts take seriously a breach of environmental laws and thus the need to impose a penalty which has the prospect of deterring others from committing a similar offence. The observations to this effect by his Honour at [11] of his reasons on sentence are, with respect, apposite.

40However, apart from general deterrence, there is also the need to consider specific deterrence as an ingredient of the appropriate penalty to be imposed. In the present case that would not seem to be a significant factor. At the time at which the sentence was imposed, the appellant had long since ceased his association with the Company and with aquaculture generally, having returned to his preferred employment as an accountant in an urban environment. It was submitted on his behalf that the need to reflect in the penalty to be imposed an element for specific deterrence was unnecessary. The prosecutor agreed that this was the case. I accept the position mutually agreed between the parties in respect of this element.

Assessment of objective gravity

41Undoubtedly, the offences with which the appellant was charged are serious. Having regard to the matters to which I have referred, I accept the description of objective gravity advanced by the prosecutor as being appropriate, that is, "mid-range" of objective gravity, albeit at the upper end of that scale. I differ from the higher level of objective gravity implicit in the decision of the learned Magistrate, essentially because I am not satisfied that the offence was committed for personal financial gain. His Honour took a different view. The evidence, to my mind, does not support that view, at least at a level that satisfies me beyond reasonable doubt that such was his purpose. As I have earlier said, no matter how ill-conceived was the appellant's approach to protect the aquacultural activities that he was managing, it was not motivated by a desire to achieve personal profit.

Subjective circumstances

42It is necessary that a proportionate sentence be one that reflects the personal circumstances of the appellant as well as both mitigating and aggravating circumstances that pertain to the appellant and commission of the offences. Those latter factors include the timing of his plea of guilty, expressions of contrition and remorse, his good character, any assistance given to regulatory authority and his financial means to pay a monetary penalty, if the imposition of such a penalty be appropriate. They also require consideration of any prior offences for which the appellant has been convicted.

43I have earlier recited the present personal circumstances of the plaintiff as a married man with two young children, having obtained tertiary qualifications and working in his preferred employment as an accountant. It is not suggested that since conviction for any of the offences to which reference is made in these reasons, he has not otherwise been a man of good character.

44He entered a plea of guilty at the first opportunity, namely the initial return date of his Court Attendance Notice. This would entitle him to a discount of 25 per cent for the utilitarian value of his early plea.

45Further, he has, in evidence before me, expressed remorse for the commission of the offences to which he has pleaded guilty. He indicated that having carried out the actions that he did on 27 and 28 November 2009 he did not feel "that what he had done was right". He said that he felt very sorry for what he had done. His evidence in this regard was not challenged by the prosecutor.

46A matter that assumed some importance on the hearing of the appeal was the significance to the present matter of the sentence of imprisonment that had been imposed upon the appellant in the Queensland District Court following commission of the offence by him under s 67(3) of the Quarantine Act (Cth). It was submitted on behalf of the appellant that the sentence served by him following commission of that offence should have been taken into account in imposing sentence as an application of the principle of totality and recognising the benefit of rehabilitation that the serving of the Queensland sentence had upon him ( R v Todd [1982] 2 NSWLR 517; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59). The prosecutor did not accept that the principles there stated had application to the present case.

47As I have earlier recorded, the learned Magistrate did refer to the appellant's conviction and prison sentence imposed by the Queensland District Court. However, it would appear that such conviction and sentence was considered only as evidence of a prior conviction and therefore only adversely to the appellant.

48In order to consider the appellant's submissions in this regard, it is necessary to notice the sequence of events concerning both the Queensland prosecution and the present prosecution. The offence under the Quarantine Act (Cth) was committed in 2006. However the trial and ultimate plea of guilty in respect to that offence was not heard until 31 March 2010. As I have earlier indicated, it was then that an effective sentence of six months imprisonment was imposed and then served followed by the entry into a good behaviour bond for two years.

49The present offences were committed in 2009. However, the proceedings were not instituted until mid 2011. As I have said, the appellant was not sentenced until 9 August 2011. As would be obvious, the offences under the National Parks and Wildlife Act were committed before the appellant came to trial in respect of the offences under the Quarantine Act (Cth). However, at the time at which proceedings in the present matter were heard and the sentence imposed, the appellant had already served the sentence of six months and was, at the time, subject to the good behaviour bond into which he had entered.

50The delay in instituting the prosecution for the present offences was not explained. However, it is relevant that, at the time of imposing the sentence for these offences, the appellant had already served a term of imprisonment for an offence of the same genre imposed only after the commission of the present offences. Clearly, the prior conviction must be noticed and is relevant to the imposition of sentence. Equally the comparability of the present offences with the Commonwealth offences, and the sequence in which the offences and punishment occurred do indicate that principles in the nature of the totality principle are properly invoked.

51The extent to which offences of the same genus have been committed in different States was the subject of observation in both Todd and Mill. In Todd , Street CJ said (at 519):

"Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

52In the same case, Moffitt P said (at 521):

"The circumstances that one offence is committed in one State and another offence is committed in a different State should not deter the courts of this State, at least so far as administratively possible, from imposing a sentence or from participating in the imposition overall of sentences, including a minimum sentence, which would be imposed, if all the offences were dealt with by one court in this State. The criminality and the other elements which go to determine sentences do not depend upon which side of the border some of the offences are committed."

53In Mill , the plurality said (at 66):

"The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences."

54Although there was a separation of about three years between the time of commission of the offence under the Quarantine Act (Cth) and the offences under the National Parks and Wildlife Act , their categorisation as being of the same genre and the sequence in which both offences were prosecuted and sentences imposed, seem to me to invoke consideration of principles of the kind identified in Todd and Mill . Fairness would require that in imposing sentence for the present offences, consideration should, at the very least, have been given to the circumstance that the appellant had served a sentence for the Commonwealth offence and the process of rehabilitation consequent upon the serving of that sentence considered.

55The evidence given by the appellant was that the sentence of imprisonment of six months that he had served was salutary. He described gaol as "distressing". Part of that distress was a result of separation from his family which he said was "not good" and which he did not wish to repeat.

56I accept the appellant's evidence that the term of imprisonment served before being sentenced for the present offences was salutary and had contributed to his rehabilitation. That rehabilitation is made manifest by the severance of his employment with the Company - an employment which seemed to involve the only two transgressions of the law with which he had been involved. The pursuit of a career in accounting in an urban environment would also appear to be reflective of a process of rehabilitation. He has removed himself from involvement in an aquacultural activity and undertaking for what he described as his preferred employment.

Parity

57The principle of even-handedness or parity in sentencing, requires that a sentencing court have regard to the general pattern of sentencing for offences of the kind under consideration. This said, care must be taken in undertaking that task as the wide divergence of facts and circumstances leading to the imposition of a penalty in a given case will almost invariably militate against direct comparison.

58In this context, no case was cited by either party in which a sentence of imprisonment had been imposed, either by this Court or by a Local Court, for an offence under s 98(2)(a) of the National Parks and Wildlife Act. As I have earlier recorded, no reference to the principle of parity was made in the judgment below.

59In Garrett on behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492 the defendant pleaded guilty to a charge under s 98(2)(a) to causing the death of approximately 27 Welcome Swallows and injuring a further 51 when he sprayed an area with a substance intended to deter birds of a different species from perching and roosting in a car park. Although the environmental harm was determined as being objectively serious, mitigating factors resulted in a pecuniary penalty of $9,000 plus costs being imposed. This reflected a 40 per cent discount by reason of those mitigating factors which included an early plea of guilty and cooperation with the investigating authority.

60In DEC v Samita Lani (17 May 2006, Sutherland Local Court, unreported), the defendant was convicted and fined for spearing a Hawksbill Turtle both in the head and in a flipper. These injuries necessitated the euthanising of the turtle. The defendant was fined $2,500 and ordered to pay costs. Once again, the penalty reflected the mitigating factors considered for the appellant including an early guilty plea, expression of contrition, absence of prior record and, apparently, the limited means of the defendant who was responsible for a large number of dependants.

61Statistics produced from the JIRS database in respect of matters prosecuted in the Local Court for offences under s 98(2)(a) reveals that of 13 cases determined, in five of those a bond of some kind was imposed, while in eight of them a fine only was imposed.

62None of these matters provide a sound basis upon which to draw any precise view as to the level of sentence or fine appropriate to be imposed in the present case. However, they do support the submission of the appellant that for the majority of cases, including the present case, the imposition of a fine, reflecting the seriousness of the particular offence, more readily accords with the pattern of sentencing in earlier cases. Although not directly comparable, there are, so it seems to me, a number of similarities between the facts and circumstances of the present case and those considered by this Court in House .

63Also to be considered in this context is the penalty imposed upon the Company for the actions of the appellant on 27 and 28 November 2009. The Company was charged with the identical offences and the penalty imposed upon it was, as I have earlier indicated, a total sum of $17,600 together with legal costs and investigation fees. While I accept that the offences for which the Company was charged resulted from the actions of the appellant, the fact of the fine and its quantum is, so it seems to me, relevant in applying the principle of parity.

The appropriate penalty

64I have earlier identified the principle that requires the imposition of a penalty by applying an instinctive synthesis, having regard to the objective seriousness of the offence and the subjective circumstances surrounding the commission of the offence. Taking into account those matters that I have identified, I respectfully disagree in the determination of the learned Magistrate that a term of imprisonment is the only appropriate penalty to be imposed. In my opinion, that penalty is excessive.

65The appropriate penalty is a fine in the sum of $9,600 for each offence (in the context of a maximum of $17,600), discounted for the early plea of guilty by 25 per cent, resulting in a penalty of $7,200. The imposition of such a penalty for each offence is, however, subject to the application of the totality principle.

66As I have determined that a sentence of imprisonment is not appropriate, it is unnecessary to address the appellant's argument directed to the provisions s 5(2) of the CSP Act.

Totality

67The totality principle is a principle of sentencing to be applied when sentencing an offender who has committed more than one offence. When reviewing the aggregate penalty assessed by reference to a penalty for the individual offences, a court is required to consider whether it is "just and appropriate" to impose that penalty as reflecting the total criminality of the appellant referable to the offences charged. It is a principle appropriate to be applied whether the sentence involved is the imposition of a term of imprisonment or the imposition of a fine.

68If I was to impose the fine that I considered appropriate for each of the offences with which the appellant has been charged then the aggregate penalty would be a sum of $14,400. Given that the offences involve exactly the same actions on the part of the appellant and were undertaken on consecutive days, I think it appropriate to regard those actions as comprising a single course of conduct. In that context, it seems to me appropriate that the penalty for the offence committed on 28 November be reduced to the sum of $5,000. The total penalty payable by the appellant will therefore be the sum of $12,200.

Capacity of the appellant to pay

69It was submitted on behalf of the appellant that his capacity to pay a pecuniary penalty was limited. Section 6 of the Fines Act 1996 requires that in exercising the discretion to fix a fine, a court is required to consider "such information regarding the means of the accused as it is reasonably and practicably available to the court for consideration".

70The only information available to the Court as to the capacity of the appellant to pay a fine was the fact that in his current employment he is in receipt of a salary of $800 per week. No evidence was given or other information made available to the Court as to his assets and liabilities so as to demonstrate the need for any reduction in penalty otherwise appropriate to be imposed in accordance with the provisions of the Fines Act. That was so, notwithstanding that in written submissions prepared in advance of the hearing of the appeal, the appellant's counsel indicated the submission that would be made in relation to the appellant's capacity to pay.

71In the circumstances, I am not prepared to reduce the penalties otherwise appropriate to be imposed. I note that if time is required by the appellant to pay the fine, application can be made to the Registrar of this Court pursuant to s 10 of the Fines Act .

Orders

72For the reasons that I have indicated, I intend to uphold the appeal. The principles of sentencing to which I have referred in their application to the circumstances of this case do not support the imposition of a term of imprisonment.

73The orders that I make are therefore as follows: