The sentencing of environmental offences involving non-human environmental entities in the NSW Land and Environment Court

This thesis examines the way in which the New South Wales Land and Environment Court (NSWLEC) approaches the task of determining criminal sentences for offenders who breach environmental laws involving non-human environmental entities such as flora and fauna. The project examines a select sample of cases involving environmental crimes that fall within the jurisdiction of the New South Wales Land and Environment Court (NSWLEC). The focus of the enquiry is to determine the nature and scope of specialist knowledge used in sentencing, specifically the unique sentencing regimes and rationale construed and implemented by this Court, with a view to determining whether and how ecocentrism influences the Court’s reasoning. The thesis addresses two major questions, namely: (i) How does the NSWLEC identify, assess and quantify harm in regards to nonhuman environmental entities such as trees, landscapes and animals in matters where the harm is deemed serious enough to be prosecuted under criminal law?; and (ii) How does the NSWLEC apportion sentence as part of its role in future deterrence and thereby respond to the damage to, death of, or destruction or degradation of the non-human environmental entity? Each question implies a vital role for the Court in evaluating and elaborating on the seriousness of the harm. While legislation sets the definitions and limits of harm and the available penalties relevant to that harm, it is up to the Court to determine the specific nature of the harm and translate this into an appropriate sentence. The overarching theoretical question that informs the analysis is the way in which the NSWLEC draws upon an ecocentric approach in determining seriousness of harm and seriousness of offence. The thesis examines the reasons given for sentence in cases before the NSWLEC relating to the Native Vegetation Act 2003 (NSW) and the National Parks and Wildlife Act 1974 (NSW) within the temporal scope of decisions published between the years 2000 and 2013. The relevant Acts are selected because they include provisions that refer specifically to harm directed at flora and fauna. Only those cases involving offences committed against or involving non-human environmental victims, specifically flora or fauna come within the scope of this study. The findings reveal that an ecocentric approach informs the Court’s view of and response to environmental harm to non-human environmental entities. This is both illuminated and explained in the research, by synthesising (from across the relevant judgments) the most frequent indicia used by the NSWLEC, in assessing the seriousness of the harm and the gravity of the offence, and then distilling these into thematic determinants