A recent case examined

NSW man appeals jail sentence for poisoning birds

On 24 September 2010, Justice Pepper of the Land and Environment Court of NSW gave judgment in Betland v Environment Protection Authority [2010] NSWLEC 183.

The matter was a severity appeal against the sentence imposed by Giles LCM in Local Court proceedings where, at first instance, her Honour imposed a sentence that included four months full-time imprisonment for the offence of attempting to poison a bird in breach of Section 110 of the National Parks and Wildlife Act 1974. Section 11 of the Pesticides Act 1999 was also relevant to the proceedings.

At the time of the original sentencing in the Local Court, the defendant, Mr Betland, pleaded guilty to the offence and was not represented by a lawyer.

Mr Betland was convicted in relation to his carrying out of a business that involved bird eradication in his local area, namely, in a residential backyard and on the roof of a shopping centre. The method of eradication was by spreading bird seed laced with the poison, Fenthion.

Section 110 of the National Parks and Wildlife Act 1974 imposes a maximum fine of $3,300.  However, it also permits a maximum penalty of six months imprisonment.

Mr Betland exercised his right of appeal to the Land and Environment Court in relation to the severity of the local court sentence under Section 31(1) of the Crimes (Appeal and Review) Act 2001.

In allowing Mr Betland’s appeal and setting aside the Local Court’s imposition of a custodial sentence, Pepper J of the Land and Environment Court relevantly held:

  • There was no evidence before the trial court of the human risks to health of seed contaminated with Fenthion and, therefore, it was wrong of Giles LCM to impose a sentence premised on a perceived health hazard to members of the public.
  • The magistrate did not provide sufficient reasons in her judgment for the sentence imposed, particularly considering that it involved full-time custody.
  • Although some birds (including native species) were killed as a result of Mr Betland’s conduct (indeed that had been his intention and was what he was being paid for), the overall harm to the environment was at the low-end of the scale and this should have been reflected in the sentence imposed.

On appeal, the Land and Environment Court set aside the Local Court’s sentence of four months imprisonment and instead imposed a fine of $2,500 for the offence.

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