27 His Honour's reference in par 22 to a penalty "in the lower end of the mid range as is urged by the defendant" appears to be a slip. The respondent had submitted that the case fell in "the lower end of the low to mid range" as classified by Stein J in Environment Protection Authority v Orange City Council (1995) NSWLEC 103, that is, in the lower end of the range of 10 per cent to 30 per cent of the maximum penalty. The appellant's submission to his Honour is not recorded, but no doubt it suggested a lesser categorisation.
28 Although it was not a ground of appeal in its own right, the appellant submitted there was error in so far as his Honour took into consideration as a matter of significance what he referred to in par 21 as "the fact that the offence was committed intentionally."
29 By this his Honour seems to have taken up what he said in the first two sentences of par 18, that the events of 1 September 1999 were not the result of an accident and Mr Whiley's actions were deliberate. The person charged with the offence was the appellant, not Mr Whiley. It would be material to consider the education and instruction given to Mr Whiley and the procedures put in place by the appellant in order to guard against disposal of septic waste other than in a proper manner. That Mr Whiley's actions were deliberate would, however, be a consequence of deficiencies in these respects, material because reflecting on the appellant but not itself a matter counting against the appellant in arriving at the penalty to be imposed. To illustrate the point, if an employer had done everything it could possibly have done to guard against an employee wrongly disposing of polluting matter, it could hardly be held against the employer that the employee, for reasons of his own, deliberately did so.
30 In the present case, when Mr Whiley was a reliable employee, when he had been instructed that septic waste was to be deposited in the authorised septic disposal pits, when there was no evidence of a prior incident, and when Mr Whiley's conduct was found to have been utterly out of character, what was the significance of the fact that Mr Whiley's actions were deliberate? It meant that he disposed of the septic waste at the Cargo landfill site intentionally, as distinct from its escaping because of a malfunction of the tanker or some other event which could be categorised as an accident. It was material so far as the appellant's education and instruction may have been deficient in impressing on Mr Whiley that he must not act in such a way. Perhaps his Honour had that in mind in par 19 of his reasons, but he appears to have misled himself by translating it in par 21 to "the fact the offence was committed intentionally." It is quite clear that the offender, that is, the appellant, did not commit the offence intentionally.
31 Apart from the matter of intention, Cowdroy J regarded as significant that Mr Whiley had not been instructed or otherwise educated so that the seriousness of environmental penalties and offences was made known to him, and that he was given a free rein.
32 Mr Whiley was instructed that he should dispose of septic waste only at the authorised septic disposal pits, and the environmental reason for that would have been clear. He was given a free rein in that it was left to him to programme his pump-out and disposal activities, but he was not given a free rein in the sense that he was without instruction as to the disposal of the septic waste. In the absence of evidence of other incidents in the period from (say) the end of 1990 to September 1999, the inference is Mr Whiley understood there was good reason for the disposal of the septic waste only at the authorised septic disposal pits, and that he acted accordingly. As his Honour said, his conduct was utterly out of character. If his Honour did have in mind what was said by Mr Whiley at the meeting and in the report to which I have earlier referred, acceptance of Mr Whiley's explanation is not easy to reconcile with his Honour's conclusion that, contrary to Mr Whiley's assertion, he had been instructed that only the three sites were to be used.
33 No doubt the appellant could have done more. It could have given instructions of the kind to which his Honour referred, and although his Honour did not mention it perhaps it could have given instruction to Mr McMillan which would have brought intervention when seeing the tanker disposing of its contents at the Cargo landfill site. Nonetheless, the question is whether the applicant acted culpably, for present purposes or whether it acted reasonably, I do not think it acted unreasonably. I am unable to see the same significance in the matters mentioned above as apparently seen by his Honour.
34 In the circumstances of this case, I consider that the gravity of the appellant's offence is low. There are then a number of considerations in its favour. The appellant had not previously been charged with any similar offence. It promptly reported the incident to the respondent. It took all appropriate action to contain and clear up the pollution, and it co-operated with the respondent in the inquiries which followed. Although there was no evidence of it, there must have been some cost to the appellant in what it did to contain and clear up the pollution. The appellant pleaded guilty at the earliest opportunity. There was, in the words of Mr Haege, no actual or lasting environmental harm, and from the report of Mr Haege the potential for environmental harm was minimal. Taking these matters into consideration as well, in my opinion the penalty which Cowdroy J came to was manifestly excessive.
35 The respondent acknowledged, indeed volunteered, that because the penalty will turn on the facts of the individual case comparison with other decisions will usually be of limited utility. Notwithstanding this, it provided a 73 page document tabulating over 100 cases in which the Land and Environment Court, and in a few instances this Court, had imposed penalties for offences under s 120 of the Act and its predecessor s 16 of the Clean Waters Act 1970. It referred specifically to some seven previous decisions. This exercise proved the validity of the respondent's initial concession. The appellant, which in oral argument indicated agreement with the thrust of the concession, was more restrained, providing four instances of previous cases. Indiscriminate reference to other cases is of no utility and should be discouraged. Even discriminating reference is likely to be of no utility because the facts in cases such as the present will almost always be peculiar to the individual case. I consider that is so in the present appeal.
36 The respondent submitted that Cowdroy J had appropriately implemented the legislative intention in the doubling of the maximum penalties for pollution of water under the Act when it replaced the Clean Waters Act in 1997. There was an implicit suggestion that this Court should endorse such an approach.
37 The courts must, of course, recognise the maximum penalty provided for an offence, and with an increase in the maximum penalty there will come the imposition in some cases of higher penalties (see R v Slattery (1996) 90 A Crim R 519 at 524). It does not follow, as the respondent's submissions appeared to suggest, that every offence for which a fine of $X would have been imposed under s 16 of the Clean Waters Act should result in a fine of $2X under s 120 of the Act. Offences of low criminality remain offences of low criminality even if the maximum penalty is increased, and the increase can readily be recognised as operating as a deterrent to wilful disregard of statutory obligations. It remains necessary to address the facts of the particular case, with due regard to the current maximum penalty and the seriousness of the offence and to the need for deterrence thereby indicated together with all other relevant matters. We were referred in this regard to par 33 of the judgment of Pearlman CJ of the LEC in Environment Protection Authority v Timber Industries Ltd (2001) NSWLEC 25, a passage of which both the appellant and the respondent indicated acceptance, and I would respectfully endorse what her Honour said in that passage.
38 Taking account of the increase in the current maximum penalty, apart from the appellant's early plea of guilty I consider that the appropriate penalty would be a fine of $15,000. There should be a discount for the early plea of 25 per cent. The resulting fine is $11,250. I propose orders that the sentence of a fine of $75,000 imposed by Cowdroy J be quashed and that in lieu thereof the appellant be fined $11,250.
39 There was some discussion of the position as to costs, in which it appeared to be accepted that as a result of the amendments made by the Courts Legislation Amendment Act 2000 this Court had no power to make an order as to costs. There was no real argument on the matter, and the appellant indicated that it was content to proceed on that basis. Accordingly, I propose that there be no order as to costs. The appellant also accepted that no order should be made disturbing the order for costs below.
40 HULME J: I agree with the orders proposed and with the reasons of the presiding Judge. I would, however, add a few comments of my own.
41 Counsel for the respondent to the appeal submitted that the requirements of deterrence justified a fine of, as the starting figure, $100,000 in this case. That submission seemed to ignore the fact that deterrence is not the sole factor to be taken into account when a court feels obliged to impose a penalty.
42 The fine in this case demonstrates that his Honour can have paid no adequate regard to the lack of personal fault on the part of the appellant and the lack of reason for the appellant to take steps additional to those which had proved adequate over a period of ten years to avoid the problem which has led to these proceedings. His Honour must also have paid insufficient attention to the lack of actual or potential harm of any significant proportion.
43 I have no doubt that in the circumstances of this case the fine which this court proposes to impose will be of significance so far as the appellant is concerned. While penalties far higher may be appropriate to large commercial organisations, recognition has also to be paid to the position of an individual defendant in criminal proceedings. Although the court has not been provided with any detailed financial information concerning the appellant, the material which is before the court also indicates that a fine of the order imposed below, even on this ground alone, was excessive.
44 ADAMS J: I agree with the reasons of the presiding Judge and with the order that his Honour proposes.
45 GILES JA: The orders will therefore be as I have proposed.