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PALGRAVE STUDIES IN GREEN CRIMINOLOGY
Environmental Crime
and Restorative Justice
Justice as Meaningful Involvement
Mark Hamilton
Palgrave Studies in Green Criminology
Series Editors
Angus Nurse, School of Law, Middlesex University,
London, UK
Rob White, School of Social Sciences, University
of Tasmania, Hobart, TAS, Australia
Melissa Jarrell, Department of Social Sciences, Texas A&M
University - Corpus Christi, Corpus Christi, TX, USA
Criminologists have increasingly become involved and interested in envi-
ronmental issues to the extent that the term Green Criminology is now
recognised as a distinct subgenre of criminology. Within this unique area
of scholarly activity, researchers consider not just harms to the envi-
ronment, but also the links between green crimes and other forms of
crime, including organised crime’s movement into the illegal trade in
wildlife or the links between domestic animal abuse and spousal abuse
and more serious forms of offending such as serial killing. This series will
provide a forum for new works and new ideas in green criminology for
both academics and practitioners working in the field, with two primary
aims: to provide contemporary theoretical and practice-based analysis
of green criminology and environmental issues relating to the develop-
ment of and enforcement of environmental laws, environmental crim-
inality, policy relating to environmental harms and harms committed
against non-human animals and situating environmental harms within
the context of wider social harms; and to explore and debate new contem-
porary issues in green criminology including ecological, environmental
and species justice concerns and the better integration of a green crim-
inological approach within mainstream criminal justice. The series will
reflect the range and depth of high-quality research and scholarship in
this burgeoning area, combining contributions from established scholars
wishing to explore new topics and recent entrants who are breaking new
ground.
More information about this series at

http://www.palgrave.com/gp/series/14622
Mark Hamilton
Environmental Crime
and Restorative
Justice
Justice as Meaningful Involvement
Mark Hamilton
Faculty of Law & Justice
UNSW Sydney
Sydney, NSW, Australia
Palgrave Studies in Green Criminology

ISBN 978-3-030-69051-9 ISBN 978-3-030-69052-6 (eBook)
https://doi.org/10.1007/978-3-030-69052-6
© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature
Switzerland AG 2021
This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher,
whether the whole or part of the material is concerned, specifically the rights of translation, reprinting,
reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical
way, and transmission or information storage and retrieval, electronic adaptation, computer software,
or by similar or dissimilar methodology now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this
publication does not imply, even in the absence of a specific statement, that such names are exempt
from the relevant protective laws and regulations and therefore free for general use.
The publisher, the authors and the editors are safe to assume that the advice and information in this
book are believed to be true and accurate at the date of publication. Neither the publisher nor the
authors or the editors give a warranty, expressed or implied, with respect to the material contained
herein or for any errors or omissions that may have been made. The publisher remains neutral with
regard to jurisdictional claims in published maps and institutional affiliations.
Cover credit: Kevin Schafer/Getty
This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland
AG
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
Contents
1 Victims of Environmental Harm 1

References 14
2 Prosecution of Environmental Offending 21
Strict Liability 22
Motive Behind Offending 23
Guilty Pleas 24
Offenders 25
Reoffending 25
Victims 26
Offender and Victim Involvement in Prosecution 30
Sentencing of Environmental Offending 37
Fines 38
Reparative Orders 38
Publication Orders 50
Future References Orders 51
Restorative Justice Activity Orders 52
References 54
v
vi Contents
3 Justice as Procedure and Justice as Outcome 57

Justice as Procedure 59
Justice as Outcome 61
References 73
4 Restorative Justice 77
Definitions of Restorative Justice 78
Origins of Restorative Justice 80
Dissatisfaction with Modern Criminal Justice Systems 82
Intervention Points 86
Conference Participants 87
Central Tenets of Restorative Justice 88
Restorative Justice Conferencing as a Resolution Device 92
References 94
5 Restorative Justice in an Environmental Offending
Context: Theory and Practice 99
Victoria (Australia) 99
New South Wales (Australia) 103
New Zealand 105
Canada 106
United States 109
United Kingdom 113
Transnational Crime 114
Environmental Harm 114
References 117
6 Restorative Justice Conferencing in an Environmental
Offending Context: Case Studies 125
New Zealand Environmental Offending Context 125
The Use of Conferencing in a New Zealand
Environmental Offending Context 130
Interflow: A Case Study 137
New South Wales Aboriginal Cultural Heritage
Protection Context 141
Contents vii
Williams: A Case Study 141

Clarence Valley Council: A Case Study 148
References 154
7 The Benefits and Limitations of Restorative Justice
Conferencing 157
Benefits of Restorative Justice Conferencing 157
Limitations of Restorative Justice Conferencing 175
References 179
8 Overcoming the Barriers to Restorative Justice
Conferencing 181
A Legislative Framework 181
Judicial Oversight of Conferencing Outcomes 185
Stakeholder, Practitioner, and Judicial Knowledge 191
Suitability Criteria for Conferencing 195
Conference Facilitation and Follow Up 202
A Restorative Justice Unit Within the NSWLEC 205
Stakeholder Participation 207
References 209
9 Environmental Victims and Restorative Justice
Conferencing 213
Victim Identification 214
Victim Voice 220
Selection of Victim Representatives (Human Guardians) 223
Nature of Victim Voices 226
References 231
10 Justice as Meaningful Involvement and Its
Operationalisation Through Restorative Justice
Conferencing 235
Recognition 236
Participation 238
Capability 239
(Ir)Relevance of Distribution 241
Meaningful Involvement 243
viii Contents
Operationalisation of Justice as Meaningful Involvement 244

Achievement of a Tripartite Conceptualisation of Justice 247
Concluding Remarks and Future Directions 252
References 257
Index 261
About the Author
Mark Hamilton holds a Bachelor of Science (Psychology) and Bachelor

of Laws from the University of Wollongong, a Master of Environmental
Law and Master of Laws from the University of Sydney, a Master of Poli-
tics and Public Policy from Macquarie University, and a Doctor of Philos-
ophy (Law) from the University of New South Wales. He is currently a
teaching fellow within the Faculty of Law & Justice at the University of
New South Wales, Australia, teaching in the Criminology and Criminal
Justice, and Law Programs.
Mark has had considerable exposure to, and experience in, local
government, planning and environmental law. He was an operational
assistant at the Land and Environment Court of New South Wales in
2006 and 2007, before becoming Justice Sheahan’s tipstaff at that same
court in 2008. Between 2009 and 2012 Mark worked as a solicitor in a
local government and planning practice in a national mid-tier law firm
in its Sydney office. In that position Mark was involved in a range of
local government, planning, environmental and compulsory acquisition
matters. Mark has a strong interest in green criminology, environmental
victims, and restorative justice.
ix
List of Figures
Fig. 2.1 Environmental Service Order/Harm Occasioned

Nexus Characterisation 47
Photo 6.1 Rue Noyer, Akaroa, a street under which Walnut

Stream runs 137
Photo 6.2 Locality of the offending 138
Photo 6.3 Western side of Rue Noyer 138
Photo 6.4 Walnut Stream 138
Photo 6.5 Culvert on Western side of Rue Noyer 139
Photo 6.6 Culvert on Eastern side of Rue Noyer. Each of these
photos was taken by the author whilst on a holiday
in New Zealand on 16 December 2018 139
Fig. 8.1 Framework approach continuum 182

Fig. 8.2 Judicial treatment of restorative justice conference
outcome continuum 185
xi
List of Tables
Table 2.1 Reparative Orders under the Protection

of the Environment Operations Act 1997 (NSW) 40
Table 2.2 Environmental Service Order/Harm Occasioned
Nexus Characterisation 46
Table 3.1 Justice according to different people 58
Table 6.1 Data relating to the use of Restorative Justice Processes
in a New Zealand Environmental Offending Context 131
Table 10.1 Approaches to Harm under Green Criminology
and the Focus of Concern 237
xiii
1
Victims of Environmental Harm
Human interaction with, and exploitation of, the environment has led to
some devastating impacts on both humans and the environment (inclu-
sive of its constituent parts). These range from human health problems,
socially disadvantaged and poor communities living in degraded environ-
ments, species extinction, biodiversity loss, and potentially irreversible
climate change. These impacts arise from both legal and illegal activity.
‘Green criminology’ (Lynch 1990) is a broad concept under which fits
many different approaches which have at the core human/environment
interaction and a concern with the impact that human/environment
interaction has on both humans and the environment and also a concern
about what to do about those impacts (White and Heckenberg 2014:
8–15).
Green criminology is a distinctive perspective within criminology
which emerged in the early 1990s (Hall 2014b: 103) as recogni-
tion of the need to take environmental harm seriously (White and
Heckenberg 2014: 13). Notwithstanding, its emergence in the 1990s,
green criminology’s conceptual contours have a longer lineage (White
© The Author(s), under exclusive license to Springer Nature 1

Switzerland AG 2021
M. Hamilton, Environmental Crime and Restorative Justice,
Palgrave Studies in Green Criminology,
https://doi.org/10.1007/978-3-030-69052-6_1
2 M. Hamilton
2013; for an illumination of ‘the antecedents of green criminolo-

gies – before the term ‘green criminology’ was introduced’, see Goyes
and South (2017)). Green criminology is a means to traverse issues
relating to humans, flora, fauna, ecosystems, and the environment more
generally through the study of harm, crime, victimisation, law, envi-
ronmental justice, environmental regulation, morality, and philosophy
(Lynch and Stretesky 2014: 51).
Green criminology provides a ‘comprehensive conceptual umbrella’
(Ruggiero and South 2010: 247) under which to theorise and critique
environmental harm, which can be the result of both illegal and legal
activities (White and Heckenberg 2014: 13). Illegal activities are those
specified as unlawful under environmental protection legislation, such as
polluting a waterway (e.g. under the Protection of the Environment Oper-
ations Act 1997 (NSW), s 120 (‘POEO Act ’)). These illegal activities
can be colloquially referred to as ‘the unlawful’ (White and Hecken-
berg 2014: 3). Legal activities are those permitted under licence such
as the release of certain pollutants, in certain quantities, into the envi-
ronment. For example, an activity that would constitute water pollution
may nevertheless be carried on lawfully under an adeptly labelled ‘license
to pollute’ (as regulated, for example, under the POEO Act, ch 3). Other
lawful activities are simply those which are not prohibited; ‘the lawful
but awful’ (Passas 2005; see also, White and Heckenberg 2014: 3). The
legal/illegal dichotomy does not mean, despite the temptation to imply
such meaning, that the illegal polluting or clearing of native vegeta-
tion (or whatever illegal activity) does harm the environment whereas
polluting under licence or the clearing of native vegetation with consent
(or whatever legal activity) does not harm the environment. Both illegal
and legal activities harm the environment, collectively causing ‘environ-
mental harms’. What differentiates legal from illegal harms, and more
pertinently the acceptance of legal environmental harms, is the presump-
tion that some harm is necessary or unavoidable for society to function
and progress; ‘such harm is an inherent consequence of many indus-
trial activities which provide significant economic and social benefits’
(White 2016: 142). As Skinnider points out, ‘[t]he reality of our age
is that much of the economy is based on the exploitation of natural
resources’ (2013: 3). This ‘ecological-economic trade-off’ (Lampkin and
Wyatt 2019) provides that environmental regulation is a balancing of

economics and a healthy environment. Under such a balancing act, only
the few highly toxic pollutants will be eliminated, with the level of pollu-
tion permissible set by governments at levels acceptable to business and
the public (Wolf and Stanley 2011: 5–6). For this reason, green crimi-
nology’s key focus is environmental crime (White and Heckenberg 2014:
8) (i.e. illegal harms). Indeed, the focus of this book is on illegal (rather
than legal) harms.
Green criminology is not a theory as such (White 2008: 14), rather it
is a perspective (South 1998). This has meant that there is some debate
about what it actually means to ‘do’ green criminological research. Hall
opines that articulating just ‘what it means to ‘do’ green criminology
would be beneficial at this stage of the field’s development…’ (Hall
2017b: 25). Notwithstanding that green criminology is not a theory as
such, it does engage with theory. As Brisman (2014) points out, green
criminology has both intra- and extra-disciplinary theoretical engage-
ment. Intra-disciplinary theoretical engagement sees micro or individual
level, and macro or group level, criminological theories used to explain
environmental crime (Brisman 2014: 24–26). For example, strain theory
(Agnew 2011, 2012), rational choice and deterrence theories (Stretesky
2006), control theory (Du Rées 2001; Ray and Jones 2011), situa-
tional crime prevention and routine activities theory (Lemieux 2014;
Lemieux and Clarke 2009; Pires and Clarke 2011, 2012), and social
learning theory (Sollund 2011). Extra-disciplinary theoretical engage-
ment is green criminology engagement with theories and ideas outside
criminology (Brisman 2014: 26–28). For example, the Treadmill of
Production from environmental sociology (Long et al. 2012; Stretesky
et al. 2013a, b) and anthropologically-oriented, ethnographically-based
study (Kane 2012, 2013).
Despite its emergence in the early 1990s and having ‘achieved a signif-
icant degree of maturity and acceptance within broader criminological
discourse’ (Hall 2017a: 2), green criminology has been slow to engage
with victims of environmental crime. This may be because of the notion
of environmental crime (and harm) as a victimless crime (the environ-
ment rather than people) or a crime of equal distribution, i.e. impacting
people within a given locality equally (Hall 2014b: 103). In fact, some
4 M. Hamilton
if not many, saw and indeed may still see environmental crime as ‘soft’
crime and not ‘real’ crime; notions which are particularly attributable to
environmental crime being ‘consistently undervalued in law’ (White and
Heckenberg 2014: 9). Notions of environmental crime as not being real
crime may derive from the idea of environmental crime being ‘applied
to specific activities that are otherwise lawful or licensed [and hence
not]…intrinsically criminal or ‘bad” (White and Heckenberg 2014: 9). It
may also derive from the fact that environmental crime does ‘not always
produce an immediate consequence, the harm may be diffused or go
undetected for a lengthy period of time’ and in that sense, is ‘victimless’
(Skinnider 2011: 2). Traditionally, this has meant that environmental
crimes will go undetected or offenders will escape criminal prosecution,
meaning that victims are not recognised as such and do not receive
restitution for the harm they have suffered (Jarrell and Ozymy 2014:
563–564).
The notion of environmental crime as a mere administrative breach
has been rejected by the Chief Judge of the Land and Environment
Court of New South Wales (‘NSWLEC’) both judicially (Environment
Protection Authority v Waste Recycling and Processing Corp (2006) 148
LGERA 299, [226]) and academically (Preston 2007: 93). This tradi-
tional view of environmental crime as not real crime meant the devolving
of environmental crime to lower courts with a low value being placed on
environmental crimes and environmental harms (White and Heckenberg
2014: 256–257; White 2014: 87). In New South Wales, the creation
of the NSWLEC as a statutory environment and planning court begin-
ning operation in 1980 has gone some way to rebutting any assumption
that environmental crime is not real crime. The NSWLEC has the same
standing as the Supreme Court of New South Wales and its practice,
procedure and expertise has seen it recognised as a world-class example
of an environment court; it is ‘universally viewed as one of the very best
operationally independent’ environment courts (Pring and Pring 2016:
21). Acknowledgement of environmental crime as ‘real crime’ (Jarrell
and Ozymy 2012: 381–383) is the ever-increasing maximum penalties
which can be imposed on environmental offenders, up to $1 million
for individual offenders and/or 7 years imprisonment and $5 million for
corporations (POEO Act, s 119) and an ever-increasing range of alternate

sentencing options.
This traditionally low value placed on environmental crime and harm
has meant that ‘[h]istorically, research on environmental crime has lacked
the theoretical and methodological depth that has been undertaken for
other traditional crimes’ (Skinnider 2011: 2–3). It has also meant that
there is scant empirical evidence engaging with the needs of environ-
mental victims (both human, presently living and future generations,
and non-human) (Hall 2014b: 104). Writing in 2012 in an UK context,
but which is arguably reminiscent of the Australian actuality, Hall notes
that ‘there is at present a serious absence of empirical research in which
victims of environmental harm are questioned as to their needs and
expectations of a criminal justice (or other) system’ (Hall 2012a: 13;
an observation echoed in Hall 2014b: 104; see also, Hall 2013b, 2016:
206). Indeed, ‘the debate on how best to respond to environmental harm
has so far neglected to factor in the perspectives of the victims of those
harms and, in particular, their need for redress’ (Hall 2016: 203). Hall
notes the absence of victims of crime from academic and policy discus-
sions (2014b: 103–104; see also Hall 2012b, 2013a, 2014a; White and
Heckenberg 2014: 17). More recently, Hall describes the state of research
regarding environmental alternate dispute resolution (including restora-
tive justice) as ‘woefully lacking’ (2017a: 1). There is, however, a recent
and growing interest in the use of restorative justice for environmental
offending, including this book (see, for example, Al-Alosi and Hamilton
2019; Hamilton 2019a, b; Hamilton and Howard 2020).
Traditionally, ‘[v]ictims of environmental harm are not widely recog-
nised as victims of “crime” and thus are excluded from the traditional
view of victimology which is largely based on conventional construc-
tions of crime’ (Skinnider 2011: 2). Conventional constructions of crime
paint crime as a random but deliberate action of a person (evil, desperate,
or otherwise impaired) against an innocent and undeserving victim
(notions of Christie’s (1986) ‘ideal victim’ resonate) involving interper-
sonal violence or theft. Victimology’s default situation is crime involving
one, or small number of, offender(s) and victim (s) arising from one
6 M. Hamilton
event (or a small number) resulting in obvious and immediate phys-

ical, psychological and/or financial harm (Pemberton 2014: 66; see also
Pemberton 2009).
Victimhood, when it has been applied to environmental harm, has
been cast in anthropocentric terms. That is, the view that humans
are the centre of the universe and therefore the most important (for
an overview of the Anthropocene, see Steffen et al. 2011; Ruddiman
2013; Lewis and Maslin 2015). An early definition of ‘environmental
victims’ is provided by Williams (1996). Namely, ‘those of past, present,
or future generations who are injured as a consequence of change to
the chemical, physical, microbiological, or psychosocial environment,
brought about by deliberate or reckless, individual or collective, human
act or act of omission’ (Williams 1996: 21; 1997: 7). Even though,
in reality, there may never be a typical crime, as will be seen in the
next chapter, environmental crime is committed primarily by organi-
sational offenders (corporations and government entities) as a result of
an accident, rather than deliberate offending, resulting in a diversity
of victims (humans, environment, communities and commercial oper-
ators). Thus, a positive of the Williams (1996) definition is that it
contemplates future generations of humans as victims, Indeed, inter-
generational inequality may be the result of environmental offending
(Preston 2011) and harm (for an overview of the doctrine of inter-
generational equity, see Anstee-Wedderburn 2014). Another positive is
the acknowledgement that environmental harm can be perpetrated by
collectives of humans (such as corporations and governments) as well as
individuals. The main limitation of the definition is that it is restricted to
human victims (‘those of past, present or future generations…’ (Williams
1996: 21)), thereby not capturing the environment as a victim along
with non-human animals. Another limitation is that it is focussed on
deliberate and reckless action. As the next chapter highlights, environ-
mental offending is also committed accidentally. One further observation
is the notion of injury. The terminology of ‘injured’ suggests some phys-
ical, psychological, or economic consequence (i.e. injury). Any concept
of injury should extend to aesthetic and recreational loss. For example,
bushwalkers no longer able to look at the forest they traditionally hiked
through, or the swimmers no longer able to swim in a lagoon which is

now polluted.
Green criminologists ‘argue that environmental crime victims, and
research associated with environmental crime victim experience, remains
on the periphery of mainstream criminology’ (Johnson 2017: 89).
Johnson’s (2017) content analysis of undergraduate victimology course
syllabi obtained from the American Society of Criminology’s Divi-
sion of Victimology supports this notion. Specifically, eleven textbooks
informing the teaching of those courses were analysed. The following
items were searched in each book (via the table of contents and index)—
‘environmental crime’, ‘green crime’, ‘critical or radical crime’, and
‘environmental justice’. The analysis found that ‘discussion of green
crime occurred in only 3 of the 4288 pages of the eleven textbooks
in the sample’ (Johnson 2017: 100). Indeed, only 1 of the 11 books
contained green crime content, albeit only 3 pages. The author concludes
that ‘[b]ased on the examination of textbooks assigned for victimology
courses in higher education, it is evident that environmental victims
are underrepresented in Victimology research’ (Johnson 2017: 103).
Notwithstanding, green criminology and environmental victims are
starting to form part of undergraduate criminology courses in Australia.
For example, the first-year introduction to criminology subject (part
of the criminology and criminal justice programme) at the Univer-
sity of New South Wales, Australia, includes readings which encompass
environmental harms and non-human victims (see White et al. 2019:
104–105).
An emerging subdiscipline within green criminology which is
concerned with victims of environmental harm is green or environmental
victimology. White refers to this subdiscipline as ‘the study of the social
processes and institutional responses pertaining to victims of environ-
ment crime’ (White 2018: 239; see also 2015). The ‘novelty’ of the
research pertaining to the victims of environmental harm, as White labels
it, is twofold. Firstly, ‘human victims of environmental harm are them-
selves not widely recognised as victims of ‘crime” (White 2018: 240).
This is a hangover of the notion that environmental crime is not real
crime. Secondly, ‘within the category ‘environmental victim’, the non-
human entity is seldom considered worthy of attention’ (White 2018:
8 M. Hamilton
240). Green or environmental victimology aligns with the framework

of radical victimology (for an overview, see Mawby and Walklate 1994:
13–17), ‘which is broadly concerned with human rights, abuses of power,
and human suffering irrespective of whether the circumstances are within
the ambit of law’ (Williams 1996: 18).
This book is concerned with victims of environmental crime, the
traditional court processes that respond to such crime (prosecution), and
the applicability of restorative justice conferencing embedded in that
traditional court process. Although it draws on a four-year study based in
New South Wales, Australia (guided by the experience in New Zealand),
its application is wider—certainly to the Western world, but arguably
beyond. The study utilises adaptive theory (Layder 1998), which is a
continual intertwining of theory and empirical data resulting in new
theory or expansion or clarification of existing theories through each
engagement of theory and empirical data. It represents a middle ground
between inductive theories, which are concerned with the generation of
new theory emerging from the data, and deductive theories, which are
aimed at testing theories. It is the continual cycling between theories and
findings which is at the heart of adaptive theory.
Data for the study comes from three sources. Firstly, case law anal-
ysis. Key information was analysed from 175 NSWLEC pollution
offending judgments (110 water pollution and 65 breach of environ-
ment protection licence), which were handed down between 2000 and
31 August 2017 (Hamilton 2019b: Appendices 8 and 9). Collectively,
these two offences represent over one-third of total prosecutions before
the NSWLEC between 2000 and 2015 (Cain and Donnelly 2017:
Appendix C) and therefore used as a proxy for environmental offending.
Secondly, interviews with a purposive sample of 34 interviewees were
utilised (23 in Australia and 11 in New Zealand). The Australian
interviewees comprised a cross-section of the judiciary, legal profes-
sion and members of NGOs which have an interest in the prosecution
of environmental offending. The New Zealand interviewees comprised
stakeholders involved in restorative justice conferencing following envi-
ronmental offending in New Zealand. Thirdly, three case studies were
selected which highlight the use of restorative justice conferencing in an
environmental offending context (both in Australia and New Zealand)

and draw out the strengths, limitations, and challenges of that use.
This book will unfold over a further nine chapters. Chapter 2 will
introduce the reader to the prosecution of environmental offending
before the NSWLEC. It will outline the features of environmental
offending and its prosecution, such as the nature of the offence (strict
liability v mens rea); motive behind offending; guilty pleas; offenders;
sentencing options; reoffending; victims; and, offender and victim
involvement in prosecution. The analysis reveals that environmental
crime is committed primarily by organisational offenders (corporations
and government entities) as a result of an accident, rather than delib-
erate offending, resulting in a diversity of victims (humans, environment,
communities, and commercial operators). These characteristics have
ramifications for the use of restorative justice conferencing following
environmental offending.
Chapter 3 explores what justice looks like in the prosecution of envi-
ronmental offending before the NSWLEC (and by extension prosecution
in equivalent jurisdictions). This is because this book is concerned with
the prosecution of environmental offending (i.e. illegal activity) and how
it is dealt with by the NSWLEC. This is not to imply that prosecu-
tion is the only option available to a prosecutorial authority (such as
the Environment Protection Authority (‘EPA’)) when faced with envi-
ronmental offending. The way the EPA responds will depend on the
type of incident, supporting legislation, EPA policies, guidelines, and
resource considerations. An option is doing nothing at all. Another
option is the opening up of dialogue with the offender about their
or its conduct in an attempt to ensure compliance with the law; such
dialogue can be initiated face-to-face, on the telephone, or through a
letter. The EPA could send a warning letter outlining the consequences
of non-compliance with the law. A civil penalty could be pursued, for
example, the issuing of an infringement notice. Alternatives to prosecu-
tion may also be pursued, for example, civil enforcement proceedings
and enforceable undertakings. Civil enforcement proceedings may be
taken in preference to prosecution when ‘an environmental incident is
ongoing and there is a need to restrain the incident and stop any further
environmental damage;…the wider range of orders available in civil
10 M. Hamilton
enforcement proceedings compared to criminal prosecution; and…the

lower burden of proof in civil enforcement proceedings compared to
criminal prosecution’ (Hamilton 2016: 494; for an example, see Great
Lakes Council v Lani (2007) 158 LGERA 1). An enforceable under-
taking is a commitment by a party alleged to have caused environmental
offending in response to such offending. Such undertakings are volun-
tary, legally binding and made between the EPA and offending party
(NSW EPA 2017: 2). The decision to prosecute will involve an assess-
ment as to whether ‘the available evidence establishes a prima facie case’
and it is in the public interest to commence a prosecution (NSW EPA
2020: 6).
Prosecution in an environmental offending context achieves a binary
concept of justice, consisting of justice as procedure and justice as
outcome. Justice as procedure is concerned with the fairness of the
prosecution process embedded in notions such as the rule of law; an
independent, impartial, and accountable decision-maker; adversarialism;
open court; and an enforceable outcome. Justice as outcome is concerned
with the fairness of the court outcomes reflected in a court sentence
which achieves the statutory purposes of sentencing, is a proportionate
expression of punishment and is consistent with other sentences handed
down in comparable cases. This binary conceptualisation of justice is
being achieved by prosecution before the NSWLEC despite minimal to
no offender and victim voice (the ability to express personally, or through
a representative, the effect or cause of the offending), interaction (the
ability to engage in face-to-face dialogue about the offending), and input
(the ability to provide input into the sentencing process).
Restorative justice at its simplest is a facilitated dialogue between
stakeholders to crime or conflict. Restorative justice is touted as the
mechanism through which to facilitate offender and victim voice, inter-
action and input which is missing in the prosecution of environmental
offending before the NSWLEC. Chapter 4 will introduce the reader to
the concept of restorative justice through outlining the rise of restora-
tive justice as a reaction to dissatisfaction with modern criminal justice
systems. Some of the prominent voices of dissatisfaction are Christie
(1977), Zehr (2015a, b) and Braithwaite (1989). Christie argues that
crime has been transformed from a conflict between offender and victim,
to a conflict between offender and the state which means that offenders
and victims lose out on resolving their own conflict. Similarly, Zehr
argues that modern prosecution excludes relevant stakeholders meaning
that victim needs are not met, and the offender is not made truly
accountable for their offending. Braithwaite argues that modern prosecu-
tion processes and punishment are stigmatising for an offender which can
lead to reoffending. This chapter will also explore the origins of modern
restorative justice being an encounter in Kitchener, Ontario, Canada in
1974. Various definitions of restorative justice will be explored as well
as the central tenets of restorative justice—crime is a violation of people
and relationships, responses to crime should be inclusive, and responses
to crime should heal and put things right. Finally, restorative justice
as a resolution device will be explored. Four elements of that resolu-
tion device are communication, education, resolution, and reintegration.
Successful deployment of this resolution device can lead to the repair
of the harm occasioned by offending, repair of relationships damaged
by offending, and provide the way for the offender and victim to move
forward with their lives.
The purpose of Chapter 5 is twofold. Firstly, it will explore the liter-
ature proffering the potential of restorative justice for environmental
offending, noting that such literature is scant and underdeveloped.
Secondly, the chapter will explore some of the existing uses of restora-
tive justice for environmental harm. These include the use of restorative
justice for the formulation of enforceable undertakings to circumvent the
need for a prosecution (Hallam Road , Victoria, Australia); as a diversion
from prosecution (Alternative Environmental Justice, Canterbury, New
Zealand; Community Justice Forums, British Columbia, Canada); and
as embedded in prosecution (for the fictitious crime of ecocide, UK;
environmental offending, New Zealand; Aboriginal cultural heritage
offending, New South Wales, Australia).
This book is concerned with the back-end model of restorative justice
conferencing. That is, conferencing embedded within the prosecution of
environmental offending and not as an alternative to it. Chapter 6 will
explore three case studies of conferencing in this context—Canterbury
Regional Council v Interflow (NZ) Limited [2015] NZDC 3323 (‘Inter-
flow’) (Canterbury, New Zealand), a case involving water pollution;
12 M. Hamilton
and Garrett v Williams (2007) 151 LGERA 92 (‘Williams’) and Chief

Executive, Office of Environment and Heritage v Clarence Valley Council
(2018) 236 LGERA 291 (‘Clarence Valley Council ’) (New South Wales,
Australia), cases involving Aboriginal cultural heritage. These New South
Wales cases are the only examples of restorative justice conferencing in
the prosecution of environmental offending in Australia.
Chapter 7 will explore the benefits and limitations of restorative justice
conferencing drawing on the use of the back-end model in New Zealand
(including Interflow) and the NSWLEC experience in Williams and
Clarence Valley Council . The primary benefit of restorative justice confer-
encing is the offender and victim voice, interaction and input it provides
into the prosecution process. It is the voice, interaction and input missing
from the prosecution of environmental offending before the NSWLEC
and is needed for justice as meaningful involvement to be achieved.
Other benefits include the opportunity for apology and forgiveness, and
better outcomes which are more innovative and targeted to repair the
harm occasioned by the offending. The use of Environmental Service
Orders will be used as an example. Conferencing may be educational for
offenders, victims, and other stakeholders, which is a benefit of confer-
encing. Such education may lead an offender to making improvements
to their/its practice and procedure to ensure offending will not happen
again in the future, which is also a benefit of conferencing. Providing
the opportunity for an offender to make amends for offending, as well
as repairing their/its reputation and relationships are further benefits of
restorative justice conferencing.
Conferencing is not without limitations and Chapter 7 will outline
those limitations. Limitations include the fact that the conference is
not adversarial. It will be demonstrated that this is actually a misunder-
standing of the purpose of conferencing. Conferencing is not actually
meant to be adversarial, rather it is designed to be cooperative. Confer-
encing does not detract from the adversarial nature of court proceedings
in which it is embedded and is part of the reason why justice as procedure
is still achieved through conferencing. Another misconception of confer-
encing which could be thrown up as a limitation is the notion that it is a
soft option for offenders. This misconception will be challenged. Confer-
encing could lead to inconsistency in sentencing and non-proportionate
punishment and therefore could challenge the notions of justice as

outcome. There are protocols that can be put in place to ensure this is
overcome and they will be explored. Conferencing can be more expen-
sive, take longer and require more energy than traditional prosecution
and this could be considered a limitation.
In order to reap the benefits of conferencing and for conferencing to
operationalise justice as meaningful involvement and thereby achieve a
tripartite conception of justice, a matter must actually get to confer-
encing. The purpose of Chapter 8 is to explore some of the barriers to
conferencing. One of the main barriers to conferencing, and arguably
the reason for the embryonic state of conferencing before the NSWLEC,
is the lack of a necessary architecture for conferencing. That architecture
requires a legislative framework, consideration as to the judicial oversight
of conferencing outcomes, proliferation of stakeholder, practitioner and
judicial knowledge of conferencing, consideration of the selection criteria
for participation in conferencing, the actual facilitation of conferencing
and follow up, and the potential of a restorative justice unit within the
NSWLEC and the role it would fulfil.
Chapter 9 is dedicated solely to environmental victims and restorative
justice. It seeks to address two pertinent problems, being the problem of
victimisation (i.e. ‘court recognition of nonhuman interests (e.g., intrinsic
rights, values and status of the nonhuman in court proceedings) and
non-human agency (e.g., active role of the nonhuman victim in legal
processes)’) and the problem of expertise (i.e. ‘issues of evidence and
expertise from the point of view of identifying who speaks for and on behalf
of whom’) (White 2016: 143, 146; emphasis original).
Chapter 10 questions the sufficiency of a binary conceptualisation of
justice, given that it can be achieved in the prosecution of environmental
offending with minimal to no offender and victim voice, interaction,
and input. Drawing from various approaches to harm under green crim-
inology (environmental justice, ecological justice, climate justice, species
justice, and earth jurisprudence/deep ecology) a third conceptualisation
of justice is devised—justice as meaningful involvement. Justice as mean-
ingful involvement comprises three facets important to those various
approaches to justice under the green criminology umbrella. Namely,
14 M. Hamilton
recognition (the acknowledgement that human/environment interac-

tion can have harmful effects on both humans and the environment
alike), participation (the inclusion of a wide range of people, opera-
tors, communities, the environment (and its constituent parts) and even
countries in decisions involving human/environment interaction that
may impact on them) and capability (the ability of those harmed by
human/environment interaction to retain (or have restored) that which is
essential to their/its functioning). The chapter will explore how restora-
tive justice conferencing can operationalise and thereby achieve justice
as meaningful involvement (comprised of recognition, participation, and
capability) by providing offender and victim voice, interaction, and input
into the prosecution of environmental offending. Vital for the accep-
tance of restorative justice conferencing amongst the legal profession,
government, and judiciary is the fact that it does not displace justice as
procedure and justice as outcome, thereby leading to the achievement of
justice as a tripartite formulation—procedure, outcome, and meaningful
involvement.
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2
Prosecution of Environmental Offending
Environmental offending encompasses activity which can be broadly

grouped into three categories: pollution, harming, and destruction.
Pollution involves some discharge to land, air, or water. An example of
pollution is the discharge of contaminants into a river or the ocean.
Harming pertains to flora (plants) and fauna (animals). An example
of harming is the clearing of native vegetation. Destruction relates to
the damaging or destroying of Aboriginal cultural heritage residing in
Aboriginal objects and places.
This chapter introduces the reader to the prosecution of environ-
mental offending. It does so through the analysis of 175 Land and Envi-
ronment Court of New South Wales (‘NSWLEC’) judgments handed
down between 2000 and 31 August 2017 (‘analysis period’) pertaining
to the sentencing of water pollution (n = 110) and breach of envi-
ronment protection licence offending (n = 65) which can be used as
a proxy for the sentencing of environmental offending by the NSWLEC
(Hamilton 2019). The analysis reveals that environmental offending in
New South Wales is predominantly strict liability, mainly committed by
© The Author(s), under exclusive license to Springer Nature 21

Switzerland AG 2021
M. Hamilton, Environmental Crime and Restorative Justice,
Palgrave Studies in Green Criminology,
https://doi.org/10.1007/978-3-030-69052-6_2
22 M. Hamilton
organisational offenders in the context of accidental rather than inten-

tional offending. The majority of offenders enter a guilty plea. Any
reoffending which does occur appears to be a function of the size of,
and scope of work undertaken by, an offender rather than some delib-
erate attempt to break the law. The victims of environmental offending
include humans (currently living and future generations), communities
(Indigenous and non-Indigenous), the environment (and its constituent
parts—flora, fauna, and ecosystems), and commercial operators. In the
sentencing of environmental offending, the NSWLEC is relying less on
its traditional use of fines and more on reparative orders, predominantly
environmental service orders. The most recently enacted order, restora-
tive justice activity order, was not used during the analysis period. The
NSWLEC relies heavily on publication orders and to a lesser extent,
future references orders. In the prosecution and sentencing of environ-
mental offending, offenders and victims have limited to no opportunity
for voice, interaction, and input.
These characteristics of environmental offending have implications
for justice as procedure and justice as outcome (Chapter 3) and justice
as meaningful involvement (Chapter 10). Such characteristics also have
importance for the application of restorative justice conferencing to
environmental offending (Chapters 8 and 9), and accordingly will be
explored in this chapter.
Strict Liability
Water pollution and breach of environment protection licence offending
are ‘strict liability’. Although strict liability offences require proof of the
physical activity constituting the offence (the ‘actus reus’), they do not
require proof of mens rea, which is a mental element such as intention,
wilfulness, or negligence. Strict liability comprises the majority of envi-
ronmental offences sentenced by the NSWLEC. For example, Cain and
Donnelly (2017: Appendix C) analyse the sentencing of environmental
offending by the NSWLEC between 2000 and 2015, in which there
were 442 strict liability offence prosecutions compared to 9 Tier 1 (mens
rea) offence prosecutions.
Strict liability offences generally prohibit a person from doing some-

thing or prohibit some action. For example, a ‘person who pollutes any
waters is guilty of an offence’ (water pollution) (Protection of the Environ-
ment Operations Act 1997 (NSW), s 120(1) (‘POEO Act ’) and in terms
of a breach of environment protection licence, ‘[i]f any condition of a
licence is contravened by any person, each holder of the licence is guilty
of an offence’ (POEO Act, 64(1)). It matters not whether the activity
was done deliberately for the purpose of making the charge out. The
fact that environmental offending in New South Wales is strict liability
has ramifications for understanding the motive behind the offending and
the reason for the entering of a guilty plea. Both of these aspects will be
considered now.
Motive Behind Offending

An offender’s state of mind gives insight into the motives behind
offending. That is, whether the offending was committed intention-
ally, negligently, recklessly or by accident. It is a circumstance which
goes to the objective seriousness of the offence (Bentley v BGP Proper-
ties Pty Ltd (2006) 145 LGERA 234, [163]; Gittany Constructions Pty
Ltd v Sutherland Shire Council (2006) 145 LGERA 189, [110]; Plath
v Rawson (2009) 170 LGERA 253, [48]). ‘A strict liability offence that
is committed intentionally, negligently or recklessly will be objectively
more serious than one not so committed’ (Director-General of the Depart-
ment of Environment and Climate Change v Rae (2009) 168 LGERA 121,
[42]).
During the analysis period, 59.18% of breach of environment protec-
tion licence offending was accidental, 24.49% was intentional and
16.33% was committed negligently (Hamilton 2019: Fig. 3). Analysis
of the motive behind water pollution offending was not possible because
of the principle elucidated in R v De Simoni (1981) 147 CLR 383, which
prevents the court considering the offender’s state of mind behind water
pollution offending under s 120 of the POEO Act (Environment Protec-
tion Authority v P&M Quality Smallgoods Pty Ltd; Environment Protection
Authority v JBS Australia Pty Ltd [2017] NSWLEC 89, [51]–[52] (‘P&M
24 M. Hamilton
Quality Smallgoods’)). That is because there is a more serious alternative

to the s 120 water pollution offence where mens rea elements such as
wilfulness and negligence are a component. That offence is contained
within s 116 of the POEO Act which makes it an offence for the wilful
or negligent leak, spill or escape of a substance which harms or is likely
to harm the environment.
Understanding an offender’s motives behind committing an offence is
important to the suitability assessment relating to that offender’s partici-
pation in restorative justice conferencing. An offender who committed
an offence deliberately may not take responsibility for that offending
and may not exhibit contrition and remorse over that offending. Such
offenders may not be suitable for conferencing. Conversely, in situations
of accidental offending, an offender may reason that there is no utility
in them attending a conference because the offending was accidental.
However, in such situations it can be explained to the offender that a
conference can still have some benefits because conferencing fulfils an
educative function whereby an offender can discover the inadequacies in
the systems that may have led to the offending, meaning they can rectify
those inadequacies to prevent future offending (Chapter 8).
Guilty Pleas
Strict liability offences are strongly associated with guilty pleas. Across
the analysis period, 95.63% of environmental offending proceeded by
way of guilty plea compared to 4.37% which were contested (Hamilton
2019: Fig. 4). There may be a number of reasons why an offender pleads
guilty to offending, including:
• Inevitability of conviction, especially in a strict liability context where

the actus reus is sufficient to make out the offence;
• To avail a discount on penalty from 10–25% (R v Thomson; R v
Houlton (2000) 49 NSWLR 383, 419 [160]);
• The strength of the prosecution case;
• To avoid the cost of defending the charge(s);
• The desire to get the matter finalised quickly (Al-Alosi and Hamilton
2019: 1484–1485); and,
• Acknowledgement of guilt.
This myriad of reasons makes it difficult to conclude that an offender’s

admission of guilt makes them automatically suitable for restorative
justice conferencing. Chapter 8 details the suitability assessment process
for conferencing.
Offenders
Across the analysis period, 79.14% of offenders were corporations,
13.37% were government entities (comprising state-owned statutory
corporations, local councils, and government departments) and 7.49%
were individuals (Hamilton 2019: Fig. 5). The fact that the majority
of offenders in a New South Wales environmental offending context
are organisational offenders (corporations and government entities) has
implications for the assessment of offender suitability for participating
in conferencing, and for how organisational offenders are represented at
conferencing. Both of these aspects will be considered in Chapter 8.
Reoffending
27.36% of water pollution offenders had previous convictions, whilst
the comparable figure for breach of environment protection licence
offenders was 35.19% (Hamilton 2019: Fig. 6). Low rates of reof-
fending (1–2 previous convictions) accounts for roughly 70% of reof-
fending. Moderate reoffending (3–9 previous convictions) accounts
for roughly 10–20% of reoffending, whilst high reoffending (10 or
more previous convictions) accounts for roughly 10–15% of reof-
fending (Hamilton 2019: Fig. 7). In terms of all offenders charged with
offending: 18.87% (water pollution) and 25.93% (breach of environ-
ment protection licence) offenders have 1–2 previous convictions; 5.66%
(water pollution) and 3.70% (breach of environment protection licence)
26 M. Hamilton
offenders have 3–9 previous convictions; and, 2.83% (water pollution)

and 5.56% (breach of environment protection licence) offenders have 10
or more previous convictions (Hamilton 2019: Fig. 6).
The presiding judge will consider the nature and size of the
offending entity, the number of people it employs, and the number of
discharge points authorised by an environment protection licence when
considering the history of previous convictions (Environment Protection
Authority v BHP Steel (AIS) Pty Ltd [2000] NSWLEC 19, [59]). Indeed,
the four corporations with ten or more previous convictions are substan-
tial operators—Caltex Refineries, BHP BlueScope Steel, BHP Steel and
Orica, which suggests that reoffending is a function of the size and scope
of works rather than deliberate attempts to break the law. Such a sugges-
tion, supported by case law, mediates against a notion that the offender
was callous or lacked care which should have been remedied after the first
conviction. Having said that, one must be open minded when consid-
ering the reasons for reoffending and each case is potentially different.
Reoffending may be a product of the size of the operation, it may be a
product of the dangerousness of the operation, it may be a product of the
Environment Protection Authority (‘EPA’) discovering more offending
because of closer scrutiny following past offending, it may be a product
of poor practice and procedure, and it may be a product of lack of care or
callousness despite the size of an operator/operation and the inferences
the court draws from that size.
Victims
Of central concern to the prosecution of environmental offending is
the actual or likely harm to the environment (POEO Act, s 241(1)(a)).
The language of actual or likely harm filters through a prosecution and
judgement rather than the language of ‘victim’ and ‘victimhood’. That
harm was triangulated with interviews with those with connections to
such offending and the prosecution thereof. This lent itself to qualitative
data rather than quantitative data which was used to characterise aspects
of the offending as set out above. The triangulation provided a fuller
understanding of the victims of environmental offending.
Interviews, triangulating the cases, elicited a wide range of possible

‘victims’ of environmental offending. Victims can include where a person
is physically (INT-34, 20 June 2018: P 2, L 46) or psychologically
injured by an environmental offence. For example, ‘pollution by the
emission of odours, which affect people in the vicinity…’ (INT-23, 19
September 2017: P 1, L 31), i.e. ‘those suffering from the effects of fumes
caused by air pollution’ (INT-22, 12 September 2017: P 1, L 9–10).
Such effects could include headaches, nausea, coughing, and vomiting.
Another example is where an individual drank polluted river water (INT-
34, 20 June 2018: P 3, L 90–91). Incidentally, this sort of direct human
injury is the closest, conceptually, it comes to ‘victimhood’ as understood
in mainstream offending—a direct human victim of injurious behaviour.
Yet the fit is not exact because the injury caused to those individuals does
not constitute the offence but rather is a consequence of the offence, the
pollution of the air and water. Hence, an air pollution or water pollution
incident is still an offence even when there are not people injured by the
incident.
Victimhood also includes where a person’s ability to use an element of
the environment is impacted, including the ability to use one’s own ‘land
or…property…’ (INT-34, 20 June 2018: P 2, L 45–46). For example,
‘[p]eople who are land holders or who use [the] environment or an aspect
of the environment, which is affected by the offending’ (INT-23, 19
September 2017: P 2, L 32–34), could be considered victims of the
offending. Another example is downstream uses of a river (INT-24, 09
October 2017; P 1, L 22–23) who may draw water from that river or
who fish or swim in that river and are no longer able to do so. Hence,
commercial operators may be victims of environmental offending. Take
for example a farmer no longer able to draw water to irrigate crops
from a polluted river or a tour company no longer able to take visi-
tors on lake tours because of the pollution in that lake. This category
of human victims is cast in anthropocentric terms because it is the effect
the harmed environment has on humans which is the basis of the victim-
hood. Collectives of people, not just individuals, were also identified as
potential victims of environmental offending. This includes neighbours
(INT-19, 21 August 2017: P 1, L 29; INT-22, 12 September 2017: P 1,
28 M. Hamilton
L 6), citizens (INT-25, 18 October 2017: P 1, L 22), communities (INT-

2, 16 March 2017: P 2, L 61–67; INT-6, 29 March 2017: P 2, L 51–52;
INT-19, 21 August 2017: P 1, L 29–30; INT-22, 12 September 2017:
P 1, L 8; INT-24, 09 October 2017; P 1, L 22–23; INT-26, 19 October
2017: P 1, L 22), the public (INT-34, 20 June 2018: P 2, L 43), and the
world community. The world community is victim where, for example,
a matter of world heritage is impacted (INT-22, 12 September 2017: P
1, L 11).
Non-living humans (i.e. future generations of humans) were viewed
by some interviewees as potential victims of environmental offending
(INT-1, 13 March 2017: P 11, L 347–349; INT-2, 16 March 2017: P
3, L 80–91; INT-3, 20 March 2017: P 9, L 367–P 10, L 373; INT-
4, 23 March 2017: P 6, L 208–P 7, L 216; INT-6, 29 March 2017:
P 2, L 56–57; INT-19, 21 August 2017: P 3, L 112–114; INT-24, 09
October 2017: P 2, L 35–38; INT-25, 18 October 2017: P 2, L 36–40;
INT-34, 20 June 2018: P 2, L 59–60). For example, where threatened
or endangered species are impacted by environmental offending future
generations are victims (INT-22, 12 September 2017: P 1, L 13–14)
and the reason being that those future generations may or will not get to
experience those species of flora or fauna.
Various examples of flora and fauna (INT-24, 09 October 2017: P 1,
L 30) were identified as victims of environmental offending including
animals (INT-1, 13 March 2017: P 10, L 339–341; INT-2, 16 March
2017: P 2, L 72–P 3, L 82) (e.g. koalas, snakes, lizards, and rats) (INT-
4, 23 March 2017: P 6, L 189–190). In terms of flora, plants (INT-1,
13 March 2017: P 11, L 343–346), trees (INT-2, 16 March 2017: P 2,
L 73–P 3, L 75), the environment generally (INT-34, 20 June 2018: P
2, L 39) and the earth were identified as potential victims. The earth,
and the countries that make up the earth, can be victims of environ-
mental offending. This is because environmental offending can result
in transnational crime (White 2008, 2011). That is, offending in one
country can harm the environment in another country. An example of
this is the cumulative results of air pollution and water pollution which
enters the ocean. The ecosystem, and ‘the elements that go to make up
that ecosystem’ is also a victim of environmental offending (INT-34, 20
June 2018: P 2, L 52–53).
Despite the consensus that environmental offending can result in a

wide range of victims, there was qualification by one interviewee who
characterised flora and fauna as ‘non-traditional victims’ (INT-25, 18
October 2017: P 1, L 23–24). To talk about diversity within flora and
fauna being potential victims of environmental offending is:
a very non-traditional view of victims because, victims are ordinarily

people. It’s different enough to consider future victims. Or victims in
the future. I’d imagine its quite controversial to say also that it’s flora,
fauna and biodiversity. (INT-25, 18 October 2017: P 1, L 27–30)
It is apparent from this conversation that there is a tension or uneasiness,

at least with this interviewee, to view those injured by environmental
offending as ‘victims’ (as one would refer to victims of mainstream
offending) rather than simply those affected by the offending. The differ-
ence is important because victimhood implies a subjective experience
which cannot be explained away in terms of effects or consequences.
Indeed, modern environmental offending prosecution is focussed on
consequences or effects of offending rather than subjective experiences
of victimhood.
Notwithstanding such caution, it is positive that many of the inter-
viewees identified such a wide range of victims, albeit conceptually,
because as will be highlighted it is the victims’ subjective experience of
victimhood which plays a large role in restorative justice conferencing.
The diversity of victims of environmental offending—humans
(currently living and future generations), communities (Indigenous and
non-Indigenous), the environment (inclusive of its constituent parts)
and commercial operators—has implications for who can represent those
victims at conferencing, where representatives are used—how those
representatives are selected, and, the nature of victim voices. These
aspects will be canvassed in Chapter 9.
30 M. Hamilton
Offender and Victim Involvement

in Prosecution
To aid assessment of offender and victim involvement in prosecution, the
following criteria are used:
• Voice—the ability to express personally (or through a representative)

the effect or cause of the offending;
• Interaction—the ability to engage in face-to-face dialogue about the
offending; and,
• Input —the ability to provide input into the sentencing process.
An offender’s voice is influenced by the NSWLEC Class 5 Practice

Note (2018) which dictates practice and procedure of criminal prose-
cution. The Practice Note requires evidence to be presented in written
form, e.g. affidavit or expert report. Offenders can put on written
evidence pertaining to relevant sentencing considerations. For example,
a manager or director of an organisational offender may put on an affi-
davit outlining the circumstances of the offending including the reasons
for the offending. Hence the offender’s ‘story’ behind the offending can
come through affidavit evidence (INT-1, 13 March 2017: P 13, L 410–
416) addressing sentencing considerations. The offender’s story may also
come through ‘the discovery-type processes that are available to prose-
cutors’ (i.e. investigation and interviewing) and reflected in prosecutor
statements filed with the court (INT-24, 09 October 2017: P 5, L 164–
P 6, L 167). Further, an offender’s story behind offending can come
through a Statement of Agreed Facts (‘SOAF’) (INT-22, 12 September
2017: P 3, L 98–103). A SOAF is prepared jointly between the pros-
ecutor and offender and reflects the matters in agreement between the
two. Things such as the events leading up to the offending, the quantity
of pollutants discharged and, mitigation and remediation of the harm
occasioned can be included in the agreed statement. The agreed state-
ment circumvents the need for the parties to tender evidence and have
the court make findings on every factual matter.
Offenders do have the opportunity to present evidence orally before
the court, provided affidavit evidence has been filed first. However,
this is generally when the prosecution requires an offender for cross-

examination to clear up ambiguity in a written statement, or to try and
discredit the witness or their evidence. There may be times when an
offender can make an oral statement following affidavit evidence outside
the context of cross-examination with the permission of the judge. I infer
from interviews that this is not common practice but could not ascertain
the circumstances when it would be allowed. One interviewee disclosed
that they had been in environmental prosecutions ‘where directors, or
managing directors put on statements, or jumped in the witness box and
said, we feel pretty bad about this …’ (INT-25, 18 October 2017: P 7,
L 238–240). Feeling bad about the offence can be evidence of contri-
tion and remorse which is a sentencing consideration. An interviewee
confirmed that the NSWLEC will allow oral statements (e.g. by way of
apology) by an offender during a prosecution provided affidavit evidence
has been filed first (INT-24, 09 October 2017: P 6, L 187–191); apology
can be evidence of contrition and remorse. Another interviewee ques-
tioned the need for an oral apology given the NSWLEC requirement for
affidavit evidence (INT-26, 19 October 2017: P 4, L 129–135).
Notwithstanding the opportunity for an offender to present the story
of offending orally, in the opinion of an interviewee a ‘lawyer would
always try and keep their client out of the witness box’ (INT-2, 16 March
2017: P 8, L 268). Indeed, as another interviewee explains, sometimes
when offenders ‘get in the [witness] box you can understand why they
would’ve been better not to, because they make it worse for themselves’
(INT-3, 20 March 2017: P 13, L 524–526).
The voice afforded to a victim of environmental offending is influ-
enced by whether that victim is the environment (or a component
of the environment), a community, commercial operator, or a human
(currently living or future generation). Voice is also influenced by the
actual or likely harm to the environment, and the prosecution’s role
in establishing that harm through prosecution witnesses. Prosecution
witnesses could be EPA employees, EPA retained experts or individuals
(or their communities) impacted by the offending. These witnesses give
a voice to the victims of environmental offending to varying degrees.
However, the effectiveness of the voice given to victims faces some
challenges.
32 M. Hamilton
Firstly, it is the role of the prosecution, through prosecution witnesses,

to lead evidence to establish the harm to the environment. In the case of
a water pollution incident, for example, the harm may be to a river, fish,
river gulls, and wetlands to which the river flows. These are components
of the environment and can be considered “victims” of the offending
even though that terminology is not used in the prosecution of envi-
ronmental offending. The harm to the environment may also impact on
Indigenous communities to whom the river is sacred, individuals who
swam in the river and commercial operators who rely on the river to
generate an income. These communities, individuals, and operators are
also victims of the offending by dint of the harm to the environment
which has impacted on them. The effectiveness of the voice given to
these victims is contingent on the prosecution actually identifying them,
as it is the prosecution that leads evidence on the harm to the environ-
ment. It is not the role of the court to seek out the evidence relating to
the harm to the environment, as one of the interviewees points out:
The court is a responsive organisation, so it responds to the evidence

that’s adduced before it. If the prosecutor chooses, for whatever reason,
not to adduce evidence of the victims, then that won’t be before the court.
(INT-3, 20 March 2017: P 10, L 377–380)
Some harm to the environment might be easier to identify than other

harm. In an environmental incident, an obvious fish kill is easy to iden-
tify but more remote harm is more difficult to identify—cultural connec-
tion, lost recreation, and commercial activities, for example. Arguably the
more remote the harm or the less obvious the harm the harder it is to
identify and therefore give a voice to. This issue will be referred to as the
identification issue.
The second issue facing the voice given to victims of environmental
offending is the inclusion issue and it flows from the fact that it is the
prosecutor’s role to lead the evidence to establish the harm to the envi-
ronment. Not all victims will be required to give evidence in order to
establish that harm. An ecologist may provide a report canvassing the
effects of the environmental harm. This means that all aspects of the
harm are lumped together meaning that some of the details of the harm
to different components of the environment are lost. It also means that

the individual stories of human loss—connection to a river, recreational
loss to swimmers, and commercial loss to businesses using the environ-
ment are not presented by those suffering that loss because it is subsumed
in the expert evidence going to the actual harm to the environment. In
this sense, everything is ‘funnelled through the prosecution’ (INT-34, 20
June 2018: P 5, L 151).
Thirdly, evidence given by experts, either scientific evidence by envi-
ronmental experts (ecologists, biologists, etc.) or lay evidence (given
about perception or sensation—‘they saw it and they felt it and they
smelt it and heard it…’ (INT-6, 29 March 2017: P 15, L 551–552)
is corralled into the rubric of actual or likely harm to the environment.
Witness statements are not like Victim Impact Statements where a victim
gets to express the subjective experience of victimhood. Interestingly, the
legislation which regulates Victim Impacts Statements in NSW does not
apply to proceedings before the NSWLEC (Crimes (Sentencing Procedure)
Act 1999 (NSW), Part 3, Division 2 (‘Crimes (SP) Act ’)). Additionally,
Victim Impact Statements would not capture environmental offending
because such statements are to be prepared by ‘primary victims’ or family
of the primary victim in the case of death (Crimes (SP) Act, s 28). A
‘primary victim’ is ‘a person against whom the offence was committed,
or…a person who was a witness to the act of actual or threatened
violence, the sexual offence, the death or the infliction of the physical
bodily harm concerned, being a person who has suffered personal harm
as a direct result of the offence’ (Crimes (SP) Act, s 26). An environmental
offence is directed at the environment rather than a person. Witness
statements are a forensic tool to evidence actual or likely harm to the
environment. Hence, there is ‘no avenue for someone to put their hand
up and say, Hey, I’d like to come along and present evidence on how this has
affected me’ outside of that person being called as a prosecution witness
(INT-34, 20 June 2018: P 4, L 102–104). This issue will be referred to as
the sanitisation issue. This issue has links to ‘discursive subject positions’,
a phenomenon of interest to postmodern criminology. Individual stories
are repackaged ‘into the language of the courts – ‘legalese” (Bernard et al.
2016: 277). The legalese, so to speak, in environmental offending is the
rubric of actual or likely harm to the environment. Legalese, otherwise
34 M. Hamilton
known as ‘[t]he language of the court system expresses and institution-

alizes a form of domination over the victim, and this is one reason
why victims are so often dissatisfied with the courts’ (Bernard et al.
2016: 277). Although this observation is not directed at environmental
offending per se, it can equally apply to the victims of environmental
offending.
Fourthly, when the prosecution and defence agree on the extent of
actual or likely harm to the environment much of the evidence will be
sanitised to remove any subjective experience of harm (which incidentally
already occurs to varying degree by the focus on actual or likely harm and
the reality that harm to non-humans and future generations of humans
is made objective by others because the subjective experience of harm
cannot be articulated by those individual victims). As one interviewee
points out:
Often, what happens when the prosecutor and the defendant agree facts,
is it does get it watered down, so a lot of the adjectives get dropped out,
a lot of the anguish of it becomes a bit more anodyne, and say, 30 people
smelt it and got affected in a variety of ways including dizziness, nausea,
headache, et cetera. It takes some of the personal expressions of harm
from the victims away. (INT-3, 20 March 2017: P 11, L 417–421)
Hence, the agreement on a SOAF compounds the sanitisation issue.

Fifthly, procedure as reflected in the NSWLEC (2018) Class 5 Prac-
tice Note, which pertains to criminal prosecution, requires evidence to
be in written form; expert reports from experts, and affidavits from lay
witnesses. Oral presentation to supplement written statements is avail-
able but confined to situations where there is some ambiguity or dispute
over evidence, or where the defence wishes to cross-examine a witness.
Cross examination can be a tool used in an endeavour to discredit a
witness or their evidence. If a witness is given an opportunity to orally
speak, it is limited in scope and is not an opportunity to express subjec-
tive notions of victimhood outside of the scope of the consequences of
the actual or likely harm to the environment. This can be referred to as
the cross-examination issue.
Another random document with
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the woman, her deep interest in his work, her participation in it
(Séraphita and some kindred labour, whatever be its defects, would
never have existed but for that influence of this mystic Northerner),
gave the attachment, as far as Balzac was concerned, something of
the features of an attachment of consolation. His early adoration, as I
hold, his boyish passion, was for Madame de Berny. And, in maturer
years, his ideal, his very dream of beauty and of charm, was
Madame de Castries—Madame de Castries set, so to put it, in the
best of her backgrounds: Madame de Castries at Aix-les-Bains.
Never, I think, in Balzac’s life was that experience, or the force of it,
equalled. But in Evelina de Hanska, whether as friend or wife, he
discovered and obtained a steady rest—a rest the more assured, it
may be, because she entertained for him feelings of a deeper
devotion than any that were extended by that admirable and almost
lifelong comrade, his friend, his sister’s friend, the blameless and the
wise Madame Zulma Carraud.
An idealist, anyhow, Balzac was at the beginning; an idealist he
remained to the end. The ‘amitiés d’épiderme,’ as he excellently
called them, attracted him but little. In my short book about him, in
the ‘Great Writers’ Series, I tried to show that what he sought for and
obtained was the intimacy of the heart. Gautier knew this. And one-
sided indeed must be those people—whether the word of their
choice is intended for blame or for praise—who, judging either by life
or work, think that Balzac is properly described as ‘materialist’ or
‘realist,’ alone or chiefly. The Real, which is not always the hideous,
he was strong enough to face; yet Romance was essential to him. It
is time, now, that the sentimental and soi-disant Romantic began to
understand that in Balzac there were depths of feeling and of poetry
to which they could never approach; and time also that those
tiresome disciples of mere ugliness in literary theme and literary
treatment, who account him their yet insufficient master, were
informed, roundly, that whatever the lessons he may half-incidentally
have taught them, nothing of Balzac’s greatness can ever fairly be
claimed as supporting or justifying the narrow limitations of their
sordid sect and creed.
(The Bookman, March 1894.)

GEORGE ELIOT
The accounts of George Eliot’s earlier life, which are in general
circulation, are in some respects imaginary. ‘George Eliot’—Mary
Ann Evans—was not the daughter of a poor clergyman, nor was she
ever ‘adopted’ by a wealthy one. She was the daughter of a land
surveyor in the Midland Counties, and was brought up at her father’s
home, her mother dying when Mary Ann Evans was still a child. Nor
was she ever the ‘pupil’ of Mr. Herbert Spencer, nor a frequent writer
in the Westminster Review. She made the acquaintance and the
friendship of Mr. Spencer when she was a woman, and already the
mistress of the abstruse subjects in which she then chiefly delighted.
She was for a time joint-editor of the Westminster with Dr. Chapman;
but her writings in that Review were neither numerous nor generally
important. After a residence of some years in Coventry—where she
learned profoundly the features of the ‘Midlands,’ which she
afterwards described—Mary Ann Evans came to London. At twenty-
six years old she translated Strauss’s Life of Jesus, and seven years
later, Feuerbach’s Essence of Christianity; but her efforts at creative
writing were wisely delayed. Her apprenticeship to Literature and
Philosophy was elaborate and laborious; her training was extensive
and deep. It was not until 1858 that Scenes of Clerical Life betrayed
the presence of a new artist in Fiction—an artist of fresh gifts, but of
undeveloped art.
The narratives of the ‘Sad Fortunes of the Reverend Amos
Barton,’ of ‘Janet’s Repentance,’ and of ‘Mr. Gilfil’s Love-Story’—the
Scenes of Clerical Life, in other words—impressed certain readers,
and deserved to impress them; but not even the pathos of Mrs.
Barton’s death would have given the writer lasting reputation had the
book continued to stand alone. On re-perusal, the imperfections of
its mechanism are too apparent; the novelist had not learned the art
of proportion, nor the art of selection and rejection. Some little books,
no bigger than the Scenes of Clerical Life, have been enough to
secure for their authors an enduring fame. Nothing more than the
Vicar of Wakefield could have been required to keep Goldsmith’s
memory green. Sterne, desiring to be immortal, was under no
obligation to write anything more, after he had written the
Sentimental Journey. But the Scenes of Clerical Life, admirably fresh
and spontaneous as they were, gave no such position to their author.
It was not a young woman, but it was a woman young in her art, who
was at work in them.
With Adam Bede it was otherwise. Adam Bede, published about
the beginning of 1859, was seen at once to be more than a touching,
and more than a popular, story. It was an achievement of complete
art, and had the power of complete art, ‘to teach a truth obliquely,’
nor ‘wrong the thought’—as Mr. Browning has subtly put it—‘nor
wrong the thought, missing the mediate word.’ It was at bottom a
work of noble teaching. In it the novelist described with fidelity, but
with poetic fidelity, scenes and characters the like of which she
thoroughly knew; and the world recognised both the truth and the
charm of the portrayal, and if it did not take to the young Squire, it
took about equally to the two most strongly contrasted heroines that
ever figured in one volume—to the preaching woman, Dinah Morris,
with her exalted and patient spirit, and to the giddy Hetty, who had
no virtue but the virtue of fascination.
It was chiefly to provincial society, or to the humbler society of
the country-side, that George Eliot kept in her earlier works; and it
was there that she was ever best. The elaborate Dutch painting of
Silas Marner dealt sympathetically with the religious life of obscure
sects; The Mill on the Floss portrayed the humours of the lower
middle class, and gave us a delightful study of the passionate and
lovable ‘Maggie’; Felix Holt dealt with country politics, though its best
interest lay in the development of three wonderful characters—the
agreeable Esther, the perplexed Felix, and the Dissenting minister
who, in that old-world corner of England where the scene lay, had
even in our own generation the dignity and quietude of an ancient
Puritan emigrating beyond seas. Immense and always tender study
of actual life was evident in these novels; and yet it did not require
the publication of such a tour de force as Romola, which, in 1863,
followed The Mill on the Floss and Silas Marner, to prove that the
only novelist of quite the first rank who had arisen since Dickens and
Thackeray was most powerful in work inspired by meditation and
learning, rather than by observation, and that in that respect, as of
course in many others, she differed absolutely from Dickens, whose
strength lay in the observation of humanity, and from Thackeray,
whose strength lay in the observation of ‘good society.’ If some
works of George Eliot’s, of later date than Romola, remind us too
often that their author, like the character in Faust, had schrecklich
viel gelesen—that George Eliot was burdened with her learning—
Romola is a conspicuous example of the ‘talent that forms itself,’ not
exactly ‘in solitude,’ yet by profound and continuous meditation. Like
all the greater works of its writer, it is a study of the heart. And in
Romola the subtle wit of Italy is displayed, with curious variety of
power, by a writer who had shown herself mistress, long before, of
the blunter English humour.
But such a success as that of Romola—the success of an
historical novelist for whom history is alive and is not a mere
tradition, mere decorative background—is hardly to be made more
than once. Romola may live at least as long as Esmond—in Esmond
the tour de force is, if anything, more apparent; the machinery creaks
sometimes yet more audibly in the working. In any case George Eliot
did wisely to bring her imagination back to England, and to the shires
‘which we the heart of England well may call,’ and, having given us
Felix Holt, to give us Middlemarch. Middlemarch, perhaps, has two
faults as a work of art, but they are faults which evidence, at all
events, the range of its writer’s mind. It is not properly one story, but
several stories. The desire to put forth in a single colossal work—and
Middlemarch is of the length of two three-volume novels—a picture
of the whole of provincial life, touched at points, and disturbed, by
the problems of our time, resulted in the creation of a book in which
the many threads of narrative were often but slightly blended.
Middlemarch is not a cabinet picture; it is a vast panorama. Again, in
Middlemarch there was visible, for the first time in George Eliot’s
career, some relaxation—or worse than relaxation—of literary style.
Though on the whole it is justly allowed to be a noble piece of
English writing, it is in expression less lucid and felicitous than the
earlier novels; and the germs of a style charged too much with
scientific similes are found to be of increased growth in Daniel
Deronda. In George Eliot’s earliest fiction, though it was written in
mature years, her art was not developed. In her latest, it was not
concealed.
But between the two—between the Scenes of Clerical Life and
Daniel Deronda—there lie some half-dozen romances, prolix,
indeed, and dull at times, yet in some ways almost perfect in the
most serious order of literary work. And, moreover, the presence of
sheer mental power, the power chiefly of analysis and of synthesis,
is almost as evident in Daniel Deronda as in the better fictions. The
study of modern Jewish life and character in that formidable novel
was of such a nature as to lead a leader of Jewish Society to pay a
tribute to its knowledge and its sympathy. That study was directed,
not only by insight, but by a continuous desire to do justice to the
subject selected—to the minds chosen for dissection. The wide and
deep interest in the fortunes of humanity, which characterised
George Eliot, and which increased with her learning and her years—
as her art somewhat declined—can never have been more apparent
than in Daniel Deronda. The interest was sometimes, it is true,
evidenced by way of an exalted pity; and seeing how removed that
pity seemed from all that aroused it, the saying was remembered by
certain critics that pity is akin to contempt. Those critics had
understood George Eliot but superficially. All through her later works
—and not in Daniel Deronda and Middlemarch alone—there is
visible an increasing personal sense of the inevitableness of
mistake, of a ‘waste of force’ in human life; and that gave to the
labour of even this bright intellect a sadness which was scarcely
bitterness at all.
George Eliot, during many years, was occasionally busy with
what is formally poetry—informally, of course, much of her best
prose was poetry, and poetry of a higher order. In some of her verse
—in Jubal and the Spanish Gypsy—she touched on the careers and
characters of people whom she would hardly have brought into her
novels, and in one or other of her poems she expressed with a
fulness and intensity not found in her prose fiction that love of music
and that sympathy with the aspirations of the musical artist which
she shared with the great writer of Abt Vogler. The docile public
received her poems with at least sufficient appreciation—a part of
which may fairly be set down to the remembrance of those triumphs
as a novelist which, for the time, she had laid aside. But her poems
were, in the main, like Raphael’s departure from the art of his more
constant practice—like the sonnets of Michael Angelo—the
evidences of an artist’s aspiration towards a field of success which
shall have the charm of what is new and unfamiliar. They were that,
and hardly more. It is, of course, on the romances of George Eliot
that her fame will rest, and on them not because of any reflection
they present of the manners of our time—these, in truth, they left to
other novelists—but because of the earnestness and profundity of
their dealing with problems of the age, and problems of our nature. A
future generation may find, and, indeed, not a few judges, most
worthy to be listened to, declare already, that much of her sad
philosophy is itself a mistake as great as any which her genius
discovered in the world she lived in. But if George Eliot’s analysis of
life betrays some deeply rooted faults, it will at least always be
admitted that it was that of a grave and gifted inquirer. If the work
which began with the Scenes of Clerical Life, and ended, not
auspiciously, with Theophrastus Such, has great deficiencies, it was
wrought, at all events, by a serious artist, a free and wonderful spirit.
(Standard, 24th December 1880.)

MY FEW THINGS
‘My few things!’ In the very title there is conveyed, I hope, some
apology for writing of them. If I accept the invitation to do so, it is partly
because I must needs know more of what they are—they are ‘but poor
few,’ in Shakespeare’s phrase—than any one else can know; partly
again because, as I am pleasantly informed, it may be interesting to
certain readers to be told, for a change, not what can be amassed—
amassed and perhaps neglected—by a millionaire who gives several
thousand guineas for a modern painting, but what can be got together
with merely ‘joyful trouble,’—with pains, and waiting, and love of the
things, and only a little money—by a simple man of Letters, who
happens to have been concerned, to some extent, with other arts than
his own; and partly also because, connected with the few things that
one has, there are associations, not few but many.
A little blue-grey drawing—an early drawing of Varley’s, which has
nothing but the lasting virtues of Economy and Style—was the first
artistic thing that ever belonged to me. It came to me—like a prized
Morland mezzotint, many years later—from the portfolio of my great-
grandfather, who was, as I am told, a friend of Turner’s earliest patron,
Dr. Munro. But it is prints, not drawings, that, since I began to collect a
little, I have chiefly brought together.
In a collection of prints there is something less indefinite,
something more systematic, than in a collection of drawings. The
things, if they are good, have the advantage of being known, of being
more or less recognised—not, indeed, by the large public, but at least
by the people with whom, on matters of Art, it is most interesting to
come into contact. Prints are classed and catalogued. Each print by a
particular master has, in the collector’s mind, a direct bearing on the
component parts of that master’s work. Again, fine drawings, although
cheap in relation to the prices paid for modern paintings, are dear in
comparison with many prints to which the adjective ‘fine’ could
scarcely be denied; for, while here and there an ‘Adam and Eve’ of
Dürer is sold under the hammer for many hundred pounds, that is the
exception absolutely; and while, at Sotheby’s or Christie’s, on eventful
sale days, two thousand pounds may be the ransom of a Rembrandt
etching, that is not only because it is fine, but because that particular
etching—or that particular ‘state’ of it—is excessively rare. It has been
chronicled; it has been read of; it has profited by the existence of the
accurate catalogue of the work of the Master—it is a certified thing.
But, with knowledge gradually acquired, with diligence exercised in the
right place, a print extremely fine, extremely desirable, may still be
bought for a few pounds. It will be much fuller of Art than any drawing
which ordinary good fortune is to enable you to get for the same outlay.
And I say this as one who loves drawings—as one who,
notwithstanding his theories, even ventures to live with a few of them;
but, if I have a preference in the matter of collecting—well, I suppose it
is for prints.
About a print, every point is interesting. Apart from subject, apart
too from technical treatment of the copper, there is the delightful
question, How does your own impression compare with other
people’s? And, again, the paper. The true print-lover can talk about
different papers—old French, old Dutch, old English, Japanese—as
the connoisseur of clarets talks of Pontet Canets and Pichon
Longuevilles.
... But my Solander-box is all this time unopened!
I suppose the first print that I ever bought was a ‘Liber’ print of
Turner’s. The Burlington Fine Arts Club had held a wonderfully
important exhibition of them—there were Mr. J. E. Taylor’s, Mr. Henry
Vaughan’s, Mr. Gambier Parry’s finest impressions; illustrative,
thoroughly, of that which Turner meant to do; of the means, to some
extent, by which he did it. And having by that time discovered what I
most cared for in the set, and made, no doubt, the politic compromise
—learning to bring my needs within the limits of a lean purse—I got my
friend, Stopford Brooke, to choose from amongst several impressions
of ‘Hind Head Hill,’ that happened then to be at Colnaghi’s (for it was
soon after the great Turner Sale), the one he thought the best; and
from amongst an equal number of impressions of ‘Severn and Wye,’
that happened to be at Mrs. Noseda’s, similarly, the best. ‘I chose well
that day,’ said Stopford Brooke, many years afterwards, noticing those
prints on my wall. No such opportunities of choice, as existed then, are
likely again to be afforded.
Those were the days when, if I bought at all, it was—at first at least
—‘for the wall’ and not ‘for the folio’—to use a phrase of Halsted’s.
Halsted meant by it to distinguish between the buyer who, from the
very nature of things, must promptly be satisfied (since you can neither
multiply ‘walls’ nor enlarge them), and the buyer to whom the infinite
was open—that infinite in which Solander-box succeeds Solander-box,
folio succeeds folio, and drawer succeeds drawer. His, perhaps, is the
more dangerous case; but the collector who can display on his walls all
his possessions—who can stop buying when the mere purposes of
furnishing are answered—is simply not a collector. Halsted scorned
him.
The mention of this aged dealer’s name brings back to me
recollections. I saw Mr. Halsted in almost the latest of his days, when
he was a less prominent but probably a more interesting figure, in the
world of Art and Connoisseurship, than he had been in his prime. In his
prime, his shop was in Bond Street; but when it was my privilege to go,
a humble learner, sitting at the feet of a dealer who had known ‘Mr.
Turner,’ and had been for at least one generation surrounded by his
work, Halsted, elderly, deliberate of speech, slow and almost halting of
movement, large, angular—a craft somewhat difficult to ‘bring round’ or
to ‘change the course’ of, within the scanty waters of his back shop—
had his abode—his mart at all events—in Rathbone Place, by the
French blanchisseuse de fin and a little Swiss café. He was half
retired; and there in the back shop he would cause you to sit down, in
a perfect light under the window, and would show you what you had
asked for, if he had it—for, in those days, he bought nothing; he was
engaged merely in selling, in the most leisurely of manners, and at
prices which were never open to any suggestion of abatement, the
remains of his old stock. Standing over you—a little away from you—
with something of a soldierly sternness, like a sergeant in a barrack-
yard, he rolled out, slowly, story after story of Mr. Turner, of Sir John
Hippesley, whom he had influenced to admire the ‘Liber,’ by placing
before his eyes a ‘Severn and Wye,’ at breakfast-time, and then of Mr.
Turner again. You bought something, of course; but the best of it is,
you never were sorry for it afterwards, for Halsted’s eye was faultless:
his knowledge, though he was old, was in advance of his day. I cherish
as impressions which had received his imprimatur—if one may use the
word of things he had thought worthy to buy and to sell—an
‘Oakhampton Castle,’ a ‘Hindoo Worshippers,’ and I forget for the
moment what else. These two, I remember, bear the stamp of passage
through the collection of the famous Mr. Stokes—the first ‘Liber’
collector—and of his niece, Miss Constance Clarke.
One thing amusing about a visit to Halsted’s was the occasional
presence of his brother. You went to the shop perhaps once by
chance, and Halsted was away. In his place was an inferior sort of
person, courteous and good-natured, but humbly conscious of his own
inferiority. You could do no business with him. If I remember rightly, he
was not even allowed to have the keys. The fine prints were quite
inaccessible. Yet this was, after all, but one of the inferior brother’s
manifestations. He had another phase—another facet. Chancing, one
summer evening, to walk northwards, through Camden Town, I
suddenly beheld the brother standing on what proved to be his own
doorstep, free of heart and with no one to say him nay. He, too, had a
shop, it appeared, and here it was, come upon unexpectedly: a print
shop of the third order—you wondered who they were, in Camden
Town or anywhere else, who bought the cheap things which alone it
contained.
Only one other of the old-fashioned dealers, the dealers of another
generation, did I ever see. That was the aged Mr. Tiffin, once busy in
the Strand, but, when I called upon him to inspect the remains of his
possessions, living chiefly retired, slow and deaf, in the small
bourgeois comfort of a villa at Canonbury. There—not to much
practical purpose—I sought him out. He too was a figure of the elder
world, and as such he dwells in the memory.
But I have wandered from the prints of the ‘Liber Studiorum,’ of
which indeed, though one of the warmest admirers of them, I possess
but a handful. Amongst them I greatly cherish one impression—the gift
of a friend whose benefactions to the National collections are
remarkable, and whose knowledge of Turner is profound. It is an early
‘state’ of the subject known as ‘Inverary Pier, Loch Fyne, Morning’—
one of those plates engraved from end to end by Turner’s own hand.
This impression was given by the Master to Lupton, the mezzotint
engraver of the ‘Solway Moss,’ and, a generation ago, my friend had
bought it from him. Another admirable student of Turner’s art sent me
once more than one of those etchings which, in Turner’s case, are the
interesting preparations for the finished ‘Liber’ plate. The rare ‘Isis’ is
amongst them.
Amongst the Turner prints that I have bought, I have always been
guided rather by fineness of impression than by priority of ‘state.’ Thus,
side by side with a First State of the ‘London from Greenwich’ I do not
fear to place a late one of ‘The Frontispiece, with the Rape of Europa.’
The impression must have been printed the moment the plate had
profited by Turner’s retouch. As for the costly curiosities known as
‘engraver’s proofs’—working proofs, in fine, struck off to see how the
plate was progressing—speaking broadly and roughly, I do not believe
in them. They have their own interest, of course, as illustrating the
means by which the effect was obtained; but, in quality, they yield to an
impression taken when the effect had just been got, or, in the case of a
fine Second or later State, to an impression taken when the effect, lost
in the interval by wear, had just been regained.
No one who appreciates Turner can quite confine himself to the
‘Liber,’ though the ‘Liber’ is the most comprehensive expression of that
infinite genius. Accordingly, in my drawers there may be found, no
doubt, pieces from one or other of his engraved publications:
something, it may be, from the ‘Rivers of England’—amongst them the
‘York’ and the ‘Ripon,’ which are not his indeed, but his friend Girtin’s—
something from the ‘Southern Coast’; and, from the ‘England and
Wales,’ that exquisite ‘Yarmouth,’ which, like the ‘Clovelly’ and the
‘Portsmouth’ (both of them in the ‘Southern Coast’) exemplifies old
William Miller’s marvellous faculty of rendering the sky effects, the
aerial perspective, of Turner’s maturest art. One has heard of Turner’s
compliments to John Pye, over ‘Pope’s Villa,’ and they were not
undeserved; but how great should his recognition have been of the
Scottish Quaker, simple of nature, subtle of gift, for whom no passage
of Turner’s brush-work was too intricate or too baffling! But let us turn
to earlier Masters.
Only well-to-do people can buy, in any large numbers and in those
fine impressions which alone rightly represent their subjects, the
etchings of Rembrandt; but it is a wonder, and almost a shame, that so
few well-to-do English people take advantage of their opportunities; for,
as a result of their not doing so, or doing so at the best in so scanty a
measure, a most undue proportion of the fine Rembrandts which have
been the ornaments of English collections have within the last few
years crossed the seas, and are now lodged—where they are justly
appreciated—in Paris, Berlin, Vienna, Baltimore, New York. Where,
amongst us in England, are the successors of Dr. Wellesley, of Sir
Abraham Hume, of Mr. Holford, of my kind, delightful friend, Richard
Fisher? We want a new race of collectors of the highest class of
ancient prints; the old is dying out; the young is too modest or too
timid: it is afraid to spend its money, though its money could hardly be
spent more economically. Looked at even from the financial point of
view—as the great auctions prove—nothing is better justified than the
investment of important sums in the prints by the Masters. Rembrandt
is for all Time. Every year—taking the wide world over—there is an
increase in the number of people sensible enough to desire and
determine to possess themselves of some representation of his work.
Nothing but small means has prevented my buying in abundance
Rembrandt’s incomparable landscapes, so well aware am I that
Landscape Art reaches its topmost level in the best of Rembrandt’s
work—in his ‘Cottage with Dutch Hay-Barn,’ say, and in his ‘Landscape
with a Tower.’ His Sacred Subjects, with all their virtues of ‘sincerity
and inwardness,’ commend themselves less to us. His Portraiture,
upon the other hand, combines every artistic charm with every human
interest. A few examples I have—a mere handful, but good
impressions they must always be; and the two which, from their
subjects, are least unworthy of mention, are, I suppose, a First State of
the ‘Clément de Jonghe,’ the Amsterdam print-seller, which has a
picturesqueness less obvious, but a character more subtle, than in the
plate’s later states; and an early and fortunate impression from that
group of studies, executed, I am convinced, in different years, and
containing as its chiefest and latest ornament an energetically
sketched portrait of Rembrandt himself, in that advanced middle life of
his, which gave us, perhaps, the greatest number of the fine fruits of
his genius. To certain of the commentators on Rembrandt, this rare
little plate—a masterly collection of croquis, and nothing besides—is
not, I fancy, quite sufficiently known; though our admirable English
amateur, Wilson—who wrote in 1836—and the latest deceased of the
great French collectors and commentators, Monsieur Dutuit, of Rouen,
do it conspicuous justice. My impression belonged, a generation or two
ago, to the Arozarena collection. I got it, with some other things, at that
fascinating shop in Paris, whose outside is so simple and so
unassuming, whose inside is stuffed with treasures—the shop a door
or two from the Quai Malaquais, up the dark and narrow ‘Rue des
Saint-Pères,’ at which, from the morning to the evening hours, sits
placidly at his desk ‘Monsieur Jules’—Clément’s successor, once
Clément’s assistant—the learned ‘Marchand d’Estampes de la
Bibliothèque Nationale.’
Even the smallest of collectors may have a ‘speciality’—and I
suppose my speciality to be the comparatively humble one of Méryon
and of Whistler—or, perhaps, of modern etchings generally—but (let
me say it for myself as well as for others) it is at one’s peril that one is
specialist alone. Things are seen then out of all proportion; bias and
prejudice take the place of judgment—a mere fanaticism flourishes,
where there ought to be a growing critical capacity, alert and lively. On
that account, in my small cabinet, a Whistler or a Méryon is liable to be
confronted with an Italian of the Renaissance, a German of the day of
Dürer. Zoan Andrea’s ‘Dance of Damsels,’ after a design of
Mantegna’s, a Coat of Arms of Beham’s, an ornament of Aldegrever’s,
instructively remind me of a delicacy earlier than Whistler’s, and of a
burin sobre et mâle that was wielded three hundred years before
Méryon’s. But while, in collecting, I venture to discountenance the
exclusive devotion to a particular master, I am almost as strongly
against the acquisition of isolated examples of very many men. If a
man is worth representing at all, represent him at the least by a little
handful of his works. Collect one or two masters largely, and obtain of
others small but characteristic groups.
* * * * *
I am fond of my few French prints of the Eighteenth Century. It is
easy to dispose of them (a common way in England)—the works, I
mean, of all that Eighteenth Century School—by calling them light,
trifling, even indiscreet in certain of their revelations of a life that
seldom aimed to be austere; but, in reality, the prints of the ‘Dix-
Huitième’ represent all phases of the thoughts and ways of French
society—its deeds and its ideals—from the childhood of Louis Quinze
to the Revolution; and, if you read French contes and comedy, memoir
and criticism, these things, from Watteau to Chardin, from Chardin to
Fragonard, are their true illustrations. For myself, I do but mourn that I
have so few of them: not a single Moreau, for instance—not the ‘Sortie
de l’Opéra,’ with the love-letter conveyed in the nosegay, nor ‘C’est un
Fils, Monsieur!’ in which a well-favoured young woman bounces into
the library of the fortunate collector, with the news that he is also, as it
seems, a parent. The insular pre-Raphaelite speaks of the French
Eighteenth Century as ‘the bad period.’ It is ‘the bad period’ to people
who are too rigid to grasp its grace. The narrowly learned, as Walter
Savage Landor reminds us—‘the generality of the learned,’ he is even
severe enough to say—‘are apt to conceive that in easy movement
there is a want of solidity and strength.’ Now, ‘easy movement,’
spontaneous elegance, is the very characteristic of the Art of France,
as it is of its delightful people; and not to recognise, not to enjoy that, is
merely to be under the sway of pedantry, antiquarian or academic.
French Eighteenth Century Art, like Dutch Art of the Seventeenth
Century, like the Art of Titian and of Velasquez, reflected Life—much of
the charm of Life—and unless it be that Life itself and Beauty have no
interest for us, we cannot afford to pass that Art superciliously by.
Wonderfully small, however, is the amount of sympathy that I am
privileged to expect from English collectors of the older type, in my
enjoyment of a sometimes faulty, but an often bewitching, school. A
score of French prints, some of them recording the high elegance of
Watteau, the pleasant gallantry of Baudouin or Lavreince, the sober
homeliness and the grave truth of Chardin (whose lessons were
Wordsworthian in their way)—these various things, which I shall still
venture to cherish, are wont to be ‘sat upon’ by the antiquary; much as
a certain little table-case of Battersea enamels, dainty and aglow with
colour, like flowers on a wintry day (puce and gold and rose du Barry,
that no time and no winter fades), is ‘sat upon’ by some of my friends
who behold indescribable virtues in every product of Japanese design.
We have all of us got our limits—I remember, though, that in France,
two of the men most prominent and influential in their love for the
artistic work of their own country in its famous ‘Dix-Huitième,’ had been
almost the first to welcome the inventions of the Japanese. These men
were Philippe Burty and Edmond de Goncourt—but then it is
lamentably true that they ignored Rembrandt and Dürer, as far as any
practical interest in them was concerned.
The mention of the Frenchmen brings me once more face to face
with two striking personalities. Burty was a critic in journalism, and an
Inspecteur des Beaux Arts besides—an enthusiast, a connoisseur, a
real curieux. When I knew him he had already done much in France for
the popular recognition of Etching. His flat upon an outer boulevard—
the Boulevard des Batignolles—told charmingly of the refinement and
variety of his tastes. Some kakemonos and tsubas hung on the walls;
but here there was an etching, and there an ivory. And he had a little
coin de tapisserie, as he smilingly said, ‘like Erasmus at the Louvre’—
he was thinking of the background of Holbein’s picture. In his deep
French bookcases, well-bound volumes were ranged, a second row
behind the first, and when the glass doors were opened and a few
vacant places discovered, Burty’s favourite cat—the cat of the literary
man, moving with quietude, treading with grace—curved about in the
bookcase, sleek and smooth, harmless, careful, almost appreciative.
One Sunday afternoon, when, I remember, as the result of an
accident, we had failed to see Zola, Philippe Burty drove me down to
Auteuil—to the Villa Montmorency, with its wild poetic garden—to
spend a couple of hours with Edmond de Goncourt and his treasures.
Jules, the beloved brother, was already dead, and Edmond,
surrounded by his collections, lived lonely at Auteuil, in the house
arranged for both. Stately and distinguished, melancholy, and yet
interested, a descendant of the old noblesse, with many memories in
the dark brown eyes that lay under black eyebrows and silver-grey
hair, Edmond de Goncourt moved about amongst his portfolios, saying
a word here, and there directing a glance. The history of his life
surrounded him—the treasures he and his brother had amassed and
studied, before the ‘Dix-Huitième’ was fashionable, and very much as
a recreation from those ‘noires études de la vie contemporaine’—the
words are his own—which had given us Germinie Lacerteux and
Manette Salomon. No such collection of that fascinating French ‘Dix-
Huitième’ as belongs to Edmond de Goncourt has ever been made.
His Maison d’un Artiste is a book which is written for the most part
about it, and in comparison with its treasures my humble score of
chosen prints—chiefly, after all, by the Eighteenth Century’s more
serious masters—becomes absolutely insignificant. Still, they remind
me, pleasantly enough, of a delightful period, a delightful people, and
of an art that was masterly when it was Watteau’s, more lightly
gracious when it was Pater’s, and, when it was Chardin’s, was sedate
and simple and almost austere.
Sketches in oil or water-colour by Cotman and James Ward, by
Thomas Collier and Charles Green, Edwin Hayes, Alfred East,
Shannon, Linton, Fulleylove, Carl Haag, Wyke Bayliss, Francis James
—I need not finish the list, and it would be foreign to the present
purpose to enlarge on the men—do something, one may hope, to
prevent one’s bowing the knee at only a single shrine. But is that
indeed my danger?—I, who confess to have felt at times the force of
quite another temptation—the temptation to be busy at last in getting
together things with which the pictorial Art that I love has nothing to do.
A comely little piece or so of ‘Blue and White’; a bit of Worcester, with
the square mark; a Nantgarw plate, with its ‘Billingsley rose’; a plate of
Frankenthal, bought in the Corratorie at Geneva, at a shop where, two
generations ago, they had sold things of that fabric to none other than
Balzac (who declared, through his Cousin Pons, that Frankenthal
would one day be as much sought after as Sèvres)—these things, I
say, the thin end of the wedge, things that are nothing by themselves,
remind me that, in gathering china, Man may be happy. And so a few
books—the earliest obtained being the Lyrical Ballads of 1798, relieure
Janséniste, a green coat by Riviere, and the Rogers with the Turner
illustrations, in ‘original boards,’ now, alas! disposed to crack—assure
me of the charm that must lurk for my luckier brethren in the seriously
gathering together of First Editions or of famous ones.
Let us pass to the examples of the Revival of Etching. About forty
Méryons, about seventy Whistlers, are mine. The one artist has been
much more prolific than the other, and thus, while, as regards Méryon,
the possession of even ‘forty’ prints allows the collector to be fairly well
provided for, as regards Whistler, the ‘seventy’ represent scarcely a
third part of that etcher’s catalogued work. Mr. H. S. Theobald has
more Whistlers than I have; so has Sir John Day; Mr. B. B. Macgeorge,
of Glasgow, has, I know, more Méryons; while, of both these masters,
distinctly larger collections than my own rest in the hands of Mr.
Samuel P. Avery and of Mr. Howard Mansfield, of New York.
Nearly all the finer plates of Méryon—those in which, to use his
own phrase, he ‘engraved Paris,’ with a fidelity so affectionate, yet with
an imagination so tragic—were wrought between the year 1850 and
the year 1854. Bracquemond was the only important figure in the
group to whom the Revival of Etching is due, who was working at that
time. Whistler, Seymour Haden, Jules Jacquemart, and Legros, were
all of them a little later; Whistler’s first dated plate—and he was quite
among the earliest of these artists—being of the year 1857.
In looking through my Méryons, it interests me to find that a good
many that are in my Solander-box to-day, belonged, long since, to
distinguished Frenchmen who were Méryon’s contemporaries. Thus, a
First State of the ‘Saint-Etienne-du-Mont’ was given by Méryon to
Bracquemond. My impressions of the ‘Abside’ and the ‘Stryge’
belonged to Aglaüs Bouvenne, who catalogued Bonington,
appreciated Méryon, and, in comparatively recent years, wrote some
reminiscences of him. A ‘Rue des Toiles, à Bourges’ has on it Méryon’s
dedicatory inscription, addressed to Hillemacher the painter. A curious
proof of the ‘Partie de la Cité de Paris,’ before the introduction of the
towers, which were never really in the actual view, though Méryon
chose to see them there, came from the friend of Méryon’s youth, a
friend who spoke over his grave—M. de Salicis. Some others of the
prints have been Philippe Burty’s. The final trial proof of the ‘Tourelle,
dite “de Marat,”’ and one or two other subjects, of which I spare the
reader the details, were originally bought of Méryon by M. Wasset, a
man the public wots not of, but a collector full of character: the ‘Cousin
Pons,’ I dare to call him, of my own earlier day.
Let me, in a paragraph devoted to himself alone, recall M. Wasset
to my memory. An employé—secrétaire, it may be—at the Ministry of
War, he lived, when I mounted to his flat, one winter’s night (how many
years ago!) in a dark, winding, narrow street, of the Rive Gauche,
between the Seine and St. Sulpice—the Rue Jacob. The Cousin Pons,
did I say, this gentleman resembled? But Pons was gourmet as well as
connoisseur—M. Wasset knew no passion but the collector’s. He
dined modestly—by subscription, it was understood—at the Café
Procope, in the Quarter—was abonné for repasts taken there, in a
haunt once classic, now dull and cheap. His rooms in the Rue Jacob,
low and small, were stuffed full with his collections. Bric-à-brac he had,
even more than prints. Strange beings who dredged in the River,
brought him ancient jewellery, and seventeenth-century watches, that
had slept their Rip Van Winkle sleep in the mud of the Seine. I see the
venerable collector now, his sombre and crowded rooms lit with a
single lamp, and he, passing about, spare, eager, and trembling, with
bowed figure; garrulous, excited as with wine, by the mere sight and
handling of his accumulated possessions. A few years afterwards—
urged thereto by the greatest of Parisian printsellers, Clément, who is
now no more—he had a sale, in the Rue Drouot, of his hundreds of
prints, of which the Méryons, of course, formed but a small part. Other
treasures—then ardently desired—he was to purchase with the
proceeds. Is his heart, one wonders, with those treasures now—in the
dark Paris street? Or, the hands that trembled so, fifteen years since—
have they relaxed their hold, for ever, of the things that were meat and
drink, that were wife and child, to him?
Méryon, I remember, took me by storm as a great artistic
personality, and, since he conquered me immediately, I have always
been faithful to him. In that there is no sort of virtue; for has he not now
become, thus early, almost everywhere, where prints are loved, an
accepted classic? To appreciate Whistler—even at all to enjoy him—
requires a longer education. There are even some things that at first
one resents. A touch of charlatanry lurks, one at first supposes, in the
Bond Street ‘arrangement in yellow and white,’ and in the velarium
under which we were invited to gather when the master held sway in
Suffolk Street. But, in time, that impression passes. Then, one accepts
the man whole—takes him as he is—genius like his has a certain
licence to be abnormal. And though it pleases Mr. Whistler, in sundry
catalogues and joyous little books about the ‘art of making enemies,’ to
represent from time to time that I, among a hundred others, do not
appreciate him, that is only because he would have us believe he is a
victim to the interesting monomania of persecution, and I, forsooth,
when this is his mood, am called upon to figure as one of those who
would pursue and vex him. Peace! peace! Now that he has ‘done
battering at England’ (I will not vouch precisely for the phrase), I am, it
seems, an ‘enemy’ no more. So much the better!
I take it, he and Méryon are quite the greatest of the etchers this
century has seen, and if so (since of great true etchers the Eighteenth
Century was barren), they are the greatest since the days of Claude
and Rembrandt. To no one who has studied any group of their plates
for a single quarter of an hour, can it be necessary to insist upon the
essential unlikeness of these two remarkable men. Unity of impression
—almost a test of excellence, the one note dominant, the rest
subordinated—that is found, I know, and found almost equally, in the
work of both. But by what different measures has it been maintained!
Whistler, in so much of his work, has shown himself the flexible,
vivacious, and consummate sketcher, the artist whose choice of
economical and telling ‘line’ is faultless and perhaps well-nigh
immediate. Méryon, upon the other hand, has been remarkable for
building up, with learned patience worthy of Albert Dürer, little by little,
his effects; so that when the thing is done, and that sombre vision of
his has become a realised performance, he has not so much made a
drawing upon a plate, as erected a monument (for so it strikes one)
from base to coping-stone. Such work has at least the permanence of
the very monuments it records. An œuvre de longue haleine—a task
severe and protracted—is each one of Méryon’s important coppers.
Yet all the length of Méryon’s labour witnesses to no relaxing hold of
his first thought, and in the great complexity of ordered line there is
revealed no superfluous, no insignificant stroke.
Each man is discovered in his work. In Méryon’s ‘Abside’ say, in
the ‘Pont Neuf,’ in the ‘Saint-Etienne-du Mont,’ is his brooding spirit,
his patient craftsmanship, his temperament intense and profound. He
was poor; he was often weary; he spent himself on his work. In
Whistler’s ‘Garden,’ in his ‘Piazzetta,’ in his ‘Florence Leyland,’ in the
‘Large Pool,’ in that wonderful tiny thing, ‘The Fruit Shop,’ there is the
boyish freshness, the spirit of enjoyment, which he has known how to
preserve till the present time. Whistler has never been tired, or, if he
has, he and his work have parted company at that moment. Wonderful
as is his gift of observation and handling, his plates are a lark’s song.
As you see the man before you, elastic, joyous, slim, and débonnair,
having never known the heavy and sad wisdom of our modern youth,
nor the cares of our middle age, his appearance almost persuades you
that all his exquisite craftsmanship, practised now for forty years, is but
the blameless recreation of an hour snatched from life’s severer tasks
—the task of sipping duly, à l’heure de l’absinthe, one’s apéritif, on the
Boulevard; of pulling on the River, in the long June days; of
condensing every rule of life into perhaps three epigrams, effective at a
dinner-party. Who would not envy this possessor of a craft fantastic,
airy, and immortal! Though Mr. Whistler may entertainingly insinuate
that long life has been denied to his friendships, he will agree with me,
I know, when I assert that it is secured to his etchings.
That my print-drawers contain but four or five etchings by Seymour
Haden is at once my misfortune and my reproach. As one looks at
them one conjures up visions of bygone sales at Sotheby’s, when as
yet Mr. Wilkinson, benign and aged, sat in the chair, to wield the ivory
hammer—what opportunities neglected, of which the more diligent
have availed themselves! For I cannot accept Seymour Haden’s too
modest estimate of the value of his own work. Labour so energetic and
decisive is not destined to be prized by one generation alone, and in
esteeming it comparatively lightly, his connoisseurship, accurate
enough when it is concerned with Claude and Rembrandt, Méryon and
Whistler—all of whom, in his time, he has loved and collected—is for
once at fault.
I am somewhat poor again in those etchings which are the creation
of the austere genius of Legros. Popular they will never be, for Legros
is almost alone among men of genius in not belonging to his own day
—in receiving well-nigh no influence from the actual hour. He is a
belated Old Master—but a ‘master’ always: never an affected copyist,
who pranks ‘in faded antique dress.’ Had he but humoured the
affectations of the time, it is quite possible that the time would at all
events have talked about him, and, denied actual popularity, he might
yet have been solaced by an æsthetic coterie’s hysterical admiration.
But that has not been for Legros. As it is, with his gravely whispered
message, his general reticence, his overmastering sense of Style, his
indifference to attractive truths of detail, his scorn of the merely clever,
he is placed at a disadvantage. But his work remains; not only the
etchings, of which Messieurs Thibaudeau and Poulet-Malassis
catalogued a hundred and sixty-eight as long ago as 1877, but the
grave pictures in which the peasant of the Boulognais devoutly
worships, or in which the painted landscape is as the landscape of a
dream, and the vigorous oil portraits—not one of which, perhaps,

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Environmental Crime and Restorative

Justice: Justice as Meaningful

Spheres of Transnational Ecoviolence: Environmental

Gender, Power and Restorative Justice: A Feminist

Justice, Crime, and Ethics (Ebook PDF)

Gender, Crime and Justice Lizzie Seal

(eTextbook PDF) for Multiculturalism, Crime, and

Crime and Justice: Learning through Cases 3rd Edition,

Indigenous Justice 1st ed. Edition Jennifer Hendry

(eBook PDF) Crime and Criminology (Aspen Criminal

More information about this series at

Palgrave Studies in Green Criminology

Cover credit: Kevin Schafer/Getty

1 Victims of Environmental Harm 1

3 Justice as Procedure and Justice as Outcome 57

Williams: A Case Study 141

Operationalisation of Justice as Meaningful Involvement 244

Mark Hamilton holds a Bachelor of Science (Psychology) and Bachelor

Fig. 2.1 Environmental Service Order/Harm Occasioned

Photo 6.1 Rue Noyer, Akaroa, a street under which Walnut

Fig. 8.1 Framework approach continuum 182

Table 2.1 Reparative Orders under the Protection

© The Author(s), under exclusive license to Springer Nature 1

2013; for an illumination of ‘the antecedents of green criminolo-

Wyatt 2019) provides that environmental regulation is a balancing of

corporations (POEO Act, s 119) and an ever-increasing range of alternate

event (or a small number) resulting in obvious and immediate phys-

through, or the swimmers no longer able to swim in a lagoon which is

240). Green or environmental victimology aligns with the framework

environmental offending context (both in Australia and New Zealand)

enforcement proceedings compared to criminal prosecution; and…the

and Garrett v Williams (2007) 151 LGERA 92 (‘Williams’) and Chief

punishment and therefore could challenge the notions of justice as

recognition (the acknowledgement that human/environment interac-

Braithwaite, J. (1989). Crime, Shame and Reintegration. New York: Cambridge

Hall, M. (2014b). Victims of Environmental Crime: Routes for Recognition,

International Handbook of Green Criminology (pp. 379–393). London and

Pires, S. F., & Clarke, R. V. (2012). Are Parrots CRAVED? An Analysis of

Environmental offending encompasses activity which can be broadly

© The Author(s), under exclusive license to Springer Nature 21

organisational offenders in the context of accidental rather than inten-

Strict liability offences generally prohibit a person from doing some-

Motive Behind Offending

Quality Smallgoods’)). That is because there is a more serious alternative

• Inevitability of conviction, especially in a strict liability context where

This myriad of reasons makes it difficult to conclude that an offender’s

offenders have 3–9 previous convictions; and, 2.83% (water pollution)

Interviews, triangulating the cases, elicited a wide range of possible

L 6), citizens (INT-25, 18 October 2017: P 1, L 22), communities (INT-

Despite the consensus that environmental offending can result in a

a very non-traditional view of victims because, victims are ordinarily

It is apparent from this conversation that there is a tension or uneasiness,

Offender and Victim Involvement

• Voice—the ability to express personally (or through a representative)

An offender’s voice is influenced by the NSWLEC Class 5 Practice

this is generally when the prosecution requires an offender for cross-

Firstly, it is the role of the prosecution, through prosecution witnesses,

The court is a responsive organisation, so it responds to the evidence

Some harm to the environment might be easier to identify than other

to different components of the environment are lost. It also means that

known as ‘[t]he language of the court system expresses and institution-

Hence, the agreement on a SOAF compounds the sanitisation issue.

(The Bookman, March 1894.)