Clarity on the recording of convictions following EHP prosecutions
by Olivia Williamson
In February 2016, the Department of Environment and Heritage Protection (EHP) released revised Enforcement Guidelines.
The Enforcement Guidelines have been updated to provide clarity with respect to the recording of convictions following the prosecution of an offence under the legislation administered by the EHP.
While acknowledging that a decision about whether a conviction is recorded lies entirely with the discretion of the Magistrate or Judge presiding over the particular case, new section 9.7 of the Enforcement Guidelines now sets out factors relevant to whether the EHP will ask the court to record a conviction.
Factors relevant to when the EHP will ask the court to record a conviction are where:
- there is a wilful element to the offence;
- the nature of the offence is serious (including the provision of false or misleading information or documentation to the EHP);
- the defendant has been the subject of previous prosecutions of a similar offence in Queensland or another jurisdiction; or
- there is a commercial gain as a result of the offence.
Factors where the EHP may ask the court to record a conviction include where:
- the defendant is a corporation;
- the defendant failed to notify the EHP of an offence where it was required to do so by legislation or other document (such as an environmental authority);
- the defendant has a compliance history with EHP; or
- there is rehabilitation required as a result of the offence.
Whether a conviction is recorded will always depend on the individual circumstances of the case and the factors that the court must consider under section 12(2) of the Penalties and Sentences Act 1994 (namely, the nature of the offence, the offender’s character and age and the impact that recording a conviction will have on the offender). It is however helpful to have the EHP’s approach clarified for consistency in its compliance activities and greater certainty when it comes to the EHP’s and the public’s expectations.
For more information, please contact HopgoodGanim Lawyers' Planning & Environment team.
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