Plath v Chaffey

Plath v Chaffey - [2009] NSWLEC 196 - NSWLEC 2009 case summary — Zoe

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Lord Howe Island is a small volcanic island in the Tasman Sea about 700km off the north coast of NSW. I t contains an enormous diversity of rare and endemic animals and plants. The bird life is one of its most notable features. 2 On 14 December 1982, Lord Howe Island Group was inscribed on the World Heritage List under the UNESCO Convention concerning the protection of the world cultural and natural heritage. 3 Many of the birds of Lord Howe Island are threatened species. All of the birds are protected fauna. Four of the threatened species on Lord Howe Island are sea birds known as Masked Booby, Red-tailed Tropicbird, Sooty Tern and White Tern. Two of the protected sea birds are the Common Noddy and Black Noddy. 4 By spring to early summer, these sea birds have returned to Lord Howe Island and are breeding at various locations around the island. The eggs laid are vulnerable to predation. Indeed, predation of eggs has been specifically identified for two of the threatened bird species as a threatening process for the survival or evolutionary development of the species. 5 In the breeding season of 2007, between 24 November and 1 December 2007, Mr Chaffey, an amateur bird enthusiast and oological (bird egg) collector visited Lord Howe Island. Mr Chaffey knew and was able to identify the various bird species and their eggs. Over the course of his week long visit, Mr Chaffey collected eggs from the nests of breeding birds of the four threatened species and the two protected fauna species. He removed the contents of the eggs whilst preserving the shell. He carefully packaged the blown eggs in his luggage. However, Mr Chaffey was apprehended at the airport with the eggs before he left the island. 6 Mr Chaffey's actions in harming the eggs of the four threatened species of birds involved offences against s 118A(1) of the National Parks and Wildlife Act 1974 whilst his actions in harming the eggs of the two protected fauna species involved an offence against s 98(2)(a) of the National Parks and Wildlife Act. 7 Mr Chaffey has pleaded guilty to each of the five offences. The Court must now determine the appropriate sentences.

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The facts of the offences 16 Mr Chaffey flew to Lord Howe Island on 24 November 2007. During the course of his week long stay, he took regular walks around the island. During these walks, Mr Chaffey collected bird eggs from a number of locations around the island including Blinky Beach, Lagoon Beach, North Bay and south of the airport on the island. 17 Mr Chaffey collected eggs from different locations including sand dunes, trees and nests. He walked along ledges on a sheer cliff face above the sea in order to reach some of the eggs. Mr Chaffey placed many of the eggs he collected in chicken egg cartons that he had brought with him to Lord Howe Island, and then placed the cartons containing the bird eggs into his backpack. Mr Chaffey placed some of the eggs in his pockets. 18 At the end of each egg collecting trip, Mr Chaffey took the eggs back to his holiday accommodation on the island and undertook the process of "blowing" the eggs. In undertaking this process, he used an old nail to drill a hole through the side of each egg, turned the egg upside down and blew air underneath the egg with a straw, causing air to rise to the top of the shell. This forced out the egg contents whilst preserving the eggshell. Mr Chaffey performed this process over a sink so that the egg contents were washed down the drain. 19 For each eggshell, Mr Chaffey then inserted water into the shell and shook it a few times to clean out any remaining contents. He left the eggshell on toilet paper to dry overnight. 20 Each morning Mr Chaffey wrapped up the eggshells he prepared the night before and placed them in styrofoam boxes that he had brought with him to the island. Mr Chaffey undertook the same process each night for the eggs he had collected during the day. 21 Mr Chaffey collected and destroyed the contents of the total of 96 eggs, 94 of which are the subject of the five charges. 22 Mr Chaffey was apprehended as a result of a tip-off. On 29 November 2007, the Department of Environment and Climate Change ("DECC") office in Armidale contacted a DECC officer, Mr Ian Kerr, on Lord Howe Island, to advise him that they had received a tip-off that a person named Brian Chaffey was on Lord Howe Island and may be unlawfully collecting bird eggs. Mr Kerr made inquiries as to Mr Chaffey's whereabouts on the island and was advised that he would be driven to Lord Howe Island airport on the morning of 1 December 2007. At about 8.00am on 1 December 2007, Mr Kerr and another DECC officer, Ms Sallyann Gudge, and a police officer, Senior Constable Richard Buckley, intercepted a car in the car park of Lord Howe Island airport. Mr Chaffey and the friend who had accompanied him on his visit to Lord Howe Island were passengers in the vehicle and were on their way to board a plane to return to Port Macquarie. 23 The officers conducted a search of the vehicle and Mr Chaffey identified and opened a large blue suitcase belonging to him. Inside the suitcase were three large styrofoam boxes. The boxes contained a total of 96 bird eggshells wrapped in what appeared to be tissue paper or toilet paper. In the course of questioning, Mr Chaffey stated the eggshells were "Sooty Tern, White Tern, Red-tailed Tropicbird and Common Noddy". The officers seized the boxes of eggshells. 24 The seized boxes of eggshells were delivered to an expert ornithologist, Mr Walter Boles, employed in the Ornithology Section of the Australian Museum. Mr Boles' expertise includes identification of birds, bird eggs and feathers. Mr Boles identified the species as to which the eggshells belong as being four vulnerable species, namely Sooty Tern, White Tern, Red-tailed Tropicbird and Masked Booby, and two species of protected fauna being Common Noddy and Black Noddy. All of the eggs identified by Mr Boles belonged to species that are indigenous to NSW. 25 Mr Chaffey had written two letters, namely "ST", "CN" or "BN" in pencil on a number of the eggshells, adjacent to the hole through which the egg contents were removed. These letters were subsequently found by Mr Boles to correspond precisely with the species of the marked eggs: the eggs marked "ST" were identified as Sooty Terns, those marked "CN" were Common Noddies and those marked "BN" were Black Noddies. 26 On some of the eggshells, Mr Chaffey had written a number between 1 and 12 near the hole through which the egg contents were removed. Some numbers were used more than once. Mr Boles identified all of the eggs with numbers written on them as being Masked Boobies. Mr Chaffey used the numbers to identify eggs that were collected from the same nest. Thus, the numbers indicated that Mr Chaffey took Masked Booby eggs from a total of 12 nests.

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Prior good character 57 Prior good character can have both a negative and a positive aspect: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 207 at [27]. The negative aspect of good character can refer to the absence of prior convictions and otherwise not having previously engaged in other criminal conduct: Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [25]. The positive aspect of good character can include a history of prior good works and contribution to the community: Ryan v The Queen at [27]. 58 As far as the negative aspect of good character, as noted above, Mr Chaffey has been convicted of a prior offence. He is, therefore, not a person with an absence of prior convictions. 59 As far as the positive aspect of good character, Mr Chaffey does have a history of good works and contribution to the community. Six character references were tendered. They were from persons who have met and worked with Mr Chaffey in various capacities: as a member of the Armidale and New England Show Society, as a member of the Armidale Caged Bird Club, as a breeder of birds, as a rescuer and carer of native birds and reptiles with the NSW Wildlife Information and Rescue Service ("WIRES"), as a bird bander with the Australian Bird and Bat Banding Scheme, and as a person working in aged care, including at a nursing home. The character referees speak of his interest and knowledge about birds, both caged and wild, and his care and concern for them. They also speak of his caring and compassionate nature in helping aged persons. 60 Mr Chaffey also gave evidence about his volunteer work with ComputerBank New England Inc which is a non profit organisation assisting disadvantaged groups and individuals to access computers at low cost. Mr Chaffey said he had won a NSW Seniors' Week Premier's Community Award. 61 In the circumstances, I find that Mr Chaffey is a person of otherwise good character, which is another mitigating factor: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999.

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Contrition and remorse 66 Apart from the utilitarian value of a plea of guilty, general contrition or remorse is a mitigating factor. However, s 21A(3)(i) of the Crimes (Sentencing Procedure) Act states that remorse shown by the offender for the offence will only be a mitigating factor if: "(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both) …". 67 The existence of genuine contrition or remorse is also relevant to the weight to be given in sentencing to individual deterrence and the prospects of rehabilitation of the offender: R v Thomson at [116]. Contrition by an offender can be associated with insight by the offender into the reasons for, or factors contributing to, the offending conduct. If an offender has insight into the offending conduct, there is a reduced risk of re-offending and a reduced need for a sentence to be imposed for the purpose of individual deterrence: R v Wisbey [2001] NSWCCA 434 at [31]. 68 In this case, Mr Chaffey has accepted responsibility for his actions. At the airport, Mr Chaffey identified his luggage and admitted collecting the eggs that were in his luggage. He identified the bird species for the eggs. Mr Chaffey voluntarily participated in a record of interview with the prosecutor and he admitted committing the offences. 69 Mr Chaffey gave evidence, both by affidavit and orally, in which he expressed remorse. He says that he is "extremely embarrassed and ashamed" for his actions. Mr Chaffey acknowledged, in his oral evidence, that his conduct in collecting the eggs was not consistent with conservation of the bird species. 70 Based on this evidence, I find that Mr Chaffey is remorseful for his actions. 71 However, Mr Chaffey has not provided any satisfactory explanation as to what caused him to collect the eggs whilst he was on Lord Howe Island. He consistently answered, in response to questions in oral evidence, that he didn't know why he collected the eggs. This reveals a lack of insight by Mr Chaffey into his offending conduct, which may have implications for the risk of Mr Chaffey re-offending and the prospects of rehabilitation.

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Appropriateness of imprisonment 80 The prosecutor submitted that consideration needs to be given to a sentence of imprisonment. As noted above, the maximum penalty for the offences against s 118A(1)(a) of the National Parks and Wildlife Act in respect of vulnerable species includes imprisonment for one year either by itself or in addition to a fine. The maximum penalty for the offence against s 98(2) of the National Parks and Wildlife Act in respect of protected fauna includes imprisonment for six months either by itself or in addition to a fine. 81 I considered the circumstances when a sentence of imprisonment might be an appropriate penalty for environmental offences in Plath v Rawson at [175]-[187]. I adopt that discussion. 82 The circumstances of the offences and of Mr Chaffey in this case do not cross the custody threshold. There is not the necessary combination of both serious damage or risk of serious damage together with a very high degree of culpability on the part of the offender. 83 Mr Chaffey's conduct was intentional, and involved deception in hiding the blown eggs. However, the prosecutor has not proven beyond reasonable doubt that the conduct constituting the offences was premeditated and planned before Mr Chaffey travelled to Lord Howe Island. Mr Chaffey's evidence was that he was only motivated to collect the eggs upon seeing them whilst he was walking around the island. Only once he was on the island and saw the eggs did he decide to collect, blow and package them and conceal them to take home to add to his collection. I have not found that Mr Chaffey committed the offence for profit. 84 Mr Chaffey's conduct did cause actual environmental harm, which for the four offences involving vulnerable species can be classified as "substantial" for the purposes of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act. However, it cannot be said to involve a high level of seriousness. 85 Mr Chaffey's conduct was confined to his week long visit to Lord Howe Island. There was no repetition of egg collecting on other occasions and it was not part of any planned or organised criminal activity. 86 Finally, there is an alternative to imprisonment that is appropriate to the circumstances of the offences, the offender and the purposes of sentencing. In this case, this is a community service order.

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Appropriateness of a community service order 87 A community service order may be imposed instead of a sentence of imprisonment: see s 8 of the Crimes (Sentencing Procedure) Act. A community service order can be imposed in circumstances where a sentence of imprisonment can be imposed but may not be appropriate in the particular circumstances: R v Said El Masri [2005] NSWCCA 167 at [32]. A community service order is therefore available for the offences against s 118A(1) of the National Parks and Wildlife Act and for the offence against s 98(2) of the National Parks and Wildlife Act. 88 "Community service work" is defined in s 3 of the Crimes (Administration of Sentences) Act 1999 as "any service or activity approved by the Minister, and includes participation in personal development, educational or other programs." 89 The maximum number of hours specified in a community service order is 500 or the number of hours prescribed by the regulations in respect of the class of offences to which the offence belongs, whichever is the lesser: s 8(2) of the Crimes (Sentencing Procedure) Act. Clause 22 of the Crimes (Sentencing Procedure) Regulation 2005 provides that the prescribed maximum number of hours for offences for which the maximum term of imprisonment does not exceed 6 months, is 100 hours and for offences for which the maximum term of imprisonment exceeds 6 months but does not exceed one year, is 200 hours. In this case, this means the maximum number of hours that can be specified in a community service order is 100 hours for the offence against s 98(2) of the National Parks and Wildlife Act (which has a maximum term of imprisonment of 6 months) and 200 hours for each of the four offences against s 118A(2) of the National Parks and Wildlife Act in respect of vulnerable species (which have a maximum term of imprisonment of one year). 90 An offender must not be directed to perform more than eight hours of community service work in any one day or participate in a development program for more than five hours in any one day, except by agreement between the offender and the assigned officer: cl 213 of the Crimes (Administration of Sentences) Regulation 2008. 91 Concurrent or cumulative community service orders may be imposed as long as the total number of hours does not exceed 500: s 87 of the Crimes (Sentencing Procedure) Act. 92 The court may impose conditions on a community service order: s 90(1) of the Crimes (Sentencing Procedure) Act. The standard conditions set out in the regulations apply to a community service order: s 108(a) of the Crimes (Administration of Sentences) Act. The conditions imposed by the court must not be inconsistent with the standard conditions imposed by the regulations: s 90(4) of the Crimes (Sentencing Procedure) Act. 93 If a community service order is breached the court has power to sentence the offender for the original offence and exercise any power which it could have exercised had the order not been made: s 115 of the Crimes (Administration of Sentences) Act. 94 Section 86 of the Crimes (Sentencing Procedure) Act regulates the Court's power to make community service orders. Section 86 provides: "(1) A community service order may not be made with respect to an offender unless the court is satisfied: (a) that the offender is a suitable person for community service work, and (b) that it is appropriate in all of the circumstances that the offender be required to perform community service work, and (c) that arrangements exist in the area in which the offender resides or intends to reside for the offender to perform community service work, and

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(5) If a court makes a community service order in respect of an offender, the offender must, as soon as practicable (having regard to sections 92 and 93) after the order is made, sign an undertaking to comply with the offender's obligations under the order. If the offender refuses to sign such an undertaking, the offender may be brought before the court and the court may revoke the community service order and impose such other sentence as it considers appropriate." 95 I consider a community service order is appropriate in the circumstances of these offences and this offender. I am satisfied of each of the matters in s 86(1) of the Crimes (Sentencing Procedure) Act and have considered the contents of the pre-sentence assessment report on Mr Chaffey provided by the NSW Department of Corrective Services, Probation and Parole Service: see s 86(2) of the Crimes (Sentencing Procedure) Act. The Service has provided three pre-sentence assessment reports dated 24 July 2009, 14 September 2009, 13 October 2009. In the final report, the Service states that Mr Chaffey is a suitable person for community service work, as required by s 86(1)(a) and s 86(4) of the Crimes (Sentencing Procedure) Act. The Service states: "The offender has been assessed as suitable for a Community Service Order as per the requirements of s 86(1) of the Crimes (Sentencing Procedure) Act 1999 and has signed an undertaking as required by s 86(5) of this Act. If such an order is made, the offender should report to the District Manager of the Armidale District Office within 10 working days." 96 Arrangements exist in the area in which Mr Chaffey resides for him to perform community service work. A number of options for community service work were identified including work at the McCrossin's Mills Museum at Uralla and the showground at Armidale: see s 86(1)(c) and (d) of the Crimes (Sentencing Procedure) Act. 97 A community service order is appropriate in all of the circumstances of this case: s 86(1)(b) of the Crimes (Sentencing Procedure) Act. There is a need in sentencing for reparation to the community for the environmental harm caused by Mr Chaffey's conduct in collecting the eggs. A community service order contains a requirement for reparation to the community: see R v Kelleher [2008] EWCA Crim 3055; [2009] 2 Cr App R (S) 25 at [23].

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104 Because there are multiple offences the totality principle is applicable. The effect of the totality principle is to require the Court, which has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is "just and appropriate" and reflects the total criminality before the Court: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [49]. 105 To reflect the fact that a number of sentences are being imposed, an appropriate result may be reached, in relation to the community service orders, either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate for each offence: Plath v Rawson at [221] and cases therein cited. 106 Care must be taken, however, to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence: Plath v Rawson at [222] and cases therein cited. 107 In this case, I do not consider that the totality principle requires an adjustment of the aggregate sentence or the individual sentences. Although the offences were committed over the week of Mr Chaffey's visit to Lord Howe Island, they involve discrete conduct with different consequences, by reason of the different bird species involved. Using his knowledge of birds, Mr Chaffey deliberately collected eggs of different bird species to add to his oological collection. The individual sentences and the aggregate sentence need to reflect the fact that four different vulnerable bird species and two species of protected fauna were targeted by Mr Chaffey and his conduct had different environmental consequences for the different bird species. 108 To adjust the individual sentences and the aggregate sentence by making the community service orders run concurrently or partially concurrently or to lower the individual sentences, would fail to reflect these differences in conduct and consequences, as well as the totality of the criminality involved: R v Weldon; R v Carberry [2002] NSWCCA 475; (2002) 136 A Crim R 55 at [46]-[48]. 109 I also consider it appropriate for there to be an order under s 257B of the Criminal Procedure Act 1986 that Mr Chaffey pay the prosecutor's costs. In doing so, I have considered Mr Chaffey's limited means to pay the costs: see s 6 and s 4(1)(a) and (f) of the Fines Act. Nevertheless, I consider the prosecutor ought to be compensated for the costs of bringing the prosecutions, which are in the public interest, notwithstanding that Mr Chaffey is of modest means: Environment Protection Authority v Taylor [No 4] [2002] NSWLEC 59; (2002) 120 LGERA 414 at [45]. The parties have not been able to agree upon an amount of the prosecutor's costs. The amount of such costs will need to be determined in accordance with s 257G of the Criminal Procedure Act. Any costs paid by Mr Chaffey pursuant to the costs order should be paid into the National Parks and Wildlife Fund, in accordance with s 176(3) of the National Parks and Wildlife Act.

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