Environment Protection Authority v Allan Andrew Keogh

LEGISLATION CITED: Environmental Offences and Penalties Act 1989 s 9, s 16 Clean Waters Act 1970 s 16(1)

EX TEMPORE JUDGMENT DATE: 08/26/1999

PROSECUTOR Ms J Kelly (Barrister)

SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Ms M Painter (Barrister)

SOLICITORS Peter Adams & Company

JUDGMENT: IN THE LAND AND MATTER No. 50088 of 1998 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 26/08/99

Environment Protection Authority Prosecutor v Allan Andrew Keogh Defendant JUDGMENT

In this matter the Court is requested by the defendant to give judgment immediately due to his current stress which is symptomatic of his medical condition. Accordingly, the Court will do so.

Since this matter first came before the Court in September 1998 there have been developments which have now overtaken the orders that were made on that date. In summary the Court ordered that the defendant be convicted of the offence as charged and fined $12,000. Such fine was due to be paid by 21 March 1999. The defendant agreed to an elaborate proposal for the lawful disposition of the waste on the property the subject of these proceedings. The defendant also agreed to pay the prosecutor's costs in the sum of $6,500.

It has become apparent that the defendant has no means presently available with which to pay the fine and the costs. This became apparent when the matter came before the Court on 13 July 1999. On that day, there was an application for a stay of the judgment which was delivered on 8 June 1999. The stay was refused but material was supplied to the Court which indicated the financial position of the defendant.

On 9 August 1999, this matter came back before the Court for mention. The Court considered it undesirable for there to be orders for the payment of the fine of $5,000 imposed in respect of the contempt for the failure to produce documents at Court since the defendant did not possess the means to pay it. Accordingly such order was revoked. I think it unsafe to leave the finding of contempt remaining and in the absence of objection from the prosecutor, the finding that the defendant was guilty of contempt of Court in failing to produce documents to the Court will also be revoked.

It is appropriate that the Court now approaches the matter, as it were afresh, having before it two convictions. One conviction results from a plea of guilty to the charge of non removal of the waste and the other results from a finding made in relation to the statement of charge filed on 9 November 1999, that the offence had been established.

The view which was held on 18 August 1999 graphically confirmed the pictorial evidence before the Court by way of photographs and video. The waste dump at the defendant's site is extensive. If anything, the dump appears more extensive than was depicted in the photographs. There is not only a substantial number of tyres on the property but also garbage, plastic and other debris.

The location and vegetation on the site suggests that the dumping of tyres has taken place over a considerable period of time. The location of the dump is not within the sight of any residences. The site has an aspect to a gravel quarry and accordingly it could not be said that the presence of the waste is causing any direct impact upon any other person. I mention these matters for the purpose only of demonstrating that if the defendant is allowed an extensive period to rectify and remediate the site it should not cause any inconvenience to any other member of the community.

The defendant has provided the Court with his proposal to remediate the site which is supported by a Mr Ralph Douglas Williams, a civil and structural engineer retained by the defendant to assist in the remediation. Upon Mr Williams' unchallenged testimony the realistic time required to remediate the site could be up to twelve months. The estimate includes any inclement weather.

The evidence establishes that Mr Keogh has had substantial financial difficulties over the past two to three years. In consequence, his ability to remediate the site is limited. The prosecutor has submitted that in proceedings such as the present the remediation of the site is of prime importance. In the circumstances I consider Mr Keogh's co-operation to effect such remediation essential. An immediate custodial sentence will serve no purpose other than to punish, which is but one of the functions of the contempt proceedings.

Mr Keogh's ability is further restricted by virtue of his health. Medical reports of Dr David Coulshad of 6 August 1999 and Dr Peter Collette of 6 August 1999 have been provided to the Court. In summary Mr Keogh has the disease of sleep apnoea which effects him as described in Dr Collette's report. Dr David Coulshad has commented upon the defendant's coronary artery disease and he observes that it is not clear whether Mr Keogh in fact has any coronary artery disease. The test results could be symptomatic of ' a false positive ' to use his term. However, Dr Coulshad concluded that it seemed very likely that the defendant was suffering from significant coronary artery disease. The report suggests that Mr Keogh is not electing to undergo any surgery at present and there is no suggestion that that will be necessary. Dr Coulshad concluded that he required further cardiac investigation but this could not be done whilst he remains at his current weight. Whilst there was no consultation with Dr Coulshad until 19 May 1999 namely shortly before the judgment in respect of the alleged contempts, I am prepared to accept that the medical condition of the defendant is such that a custodial sentence could be prejudicial to his health.

The defendant has given evidence again today. His answers are, as I have indicated, puzzling in many respects. His professed ability to adhere to any plan of remediation does not inspire confidence when all previous undertakings to carry out the very remediation have not been fulfilled. His answers in many instances were pure obfuscation. In one way the defendant may be his own worst enemy in that he appears incapable of helping himself.

In relation to his means the defendant provided evidence which he acknowledges is approximate. It does not make sense that his alleged expenses grossly exceed his estimated income on a weekly basis. This is but one of the inconsistencies which permeates throughout the whole of Mr Keogh's evidence.

I am satisfied that the imposition of a further monetary penalty will serve no purpose. That does not mean to say that he will not be penalised in view of the costs order that will be made. I am also satisfied that an immediate custodial sentence will serve no purpose.

The Court takes into consideration in accordance with the principles stated in Camilleri Stockfeed Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683, that the defendant has pleaded guilty to one charge. His contrition inherent in such plea should be taken into consideration.

The Court takes also into consideration the fact that whilst Mr Keogh did not plead guilty to the second statement of charge, the circumstances and events arise out of the same factual circumstances, namely the operation of what the Court has found is an illegal waste dump. For this reason the Court will apply the totality principle as was stated by Street CJ in R v Holder (1983) 3 NSWLR 245 at 260. Whilst that principle has usually been applied in respect of monetary penalties, the Court will have regard to both offences with which the defendant has been found guilty.

The prosecutor has indicated that a period of time should be allowed to Mr Keogh to enable him to remediate the site and thereby purge his contempt. The prosecutor also acknowledges that the period would need to be extensive for this purpose.

In the circumstances it is appropriate the Court is cognisant of the prosecutor's submissions. The Court proposes to permit Mr Keogh a final opportunity to purge his contempt in respect of each offence by demonstrating that he will carry out his proposed program of remediation. However, that will be upon a condition and the Court will impose a custodial sentence which will come into effect as a last resort.

It will be a matter for the defendant to satisfy the prosecutor that the site has been remediated to its satisfaction. The Court considers it appropriate Mr Keogh be permitted twelve months for the removal of all tyres and baled plastic. Whilst this is longer than he anticipated it is in accordance with the estimate of Mr Williams.

In the period allowed to Mr Keogh for this purpose, the Court does not consider it appropriate that it monitor the progress but rather leave it to the defendant and to the prosecutor to monitor the progress. That progress will be firstly for the removal of tyres, secondly for the removal of baled plastic.

In respect of the charge filed on 6 April 1999 the Court orders that the defendant serve a period of imprisonment of two months in consequence of a contempt as found by the Court in its judgment of 6 June 1999, being the charge in respect of which the defendant has pleaded guilty. The period of imprisonment is suspended for a period of twelve months to enable remediation of the site. The defendant may apply to the Court at any time in the period of twelve months to purge his contempt by demonstrating that he has remediated the site by complying with the Court's order of 21 September 1998.

In respect of the charge for which Mr Keogh pleaded not guilty, namely the statement of charge filed 9 November 1998, the defendant is sentenced to a period of imprisonment of two months to be served concurrently with the above sentence. Such period of imprisonment is suspended for a period of twelve months. The defendant may apply to the Court at any time within the ensuing twelve months to demonstrate that he has remediated the site by the removal of soil and bricks which were brought to the property after the date of the Court's order as found in the judgment of 8 June 1999. In the event that the defendant shows the site has been remediated then the period of imprisonment need not be served.

The Court has heard argument on all issues including costs and makes the following orders:

(1) The finding of contempt arising from the defendant's failure to produce documents in answer to a subpoena is revoked. (2) The defendant pay the prosecutor's costs of the proceedings which took place on 21 September 1998 in the sum of $6,500; (3) The defendant pay the costs of each of the contempt proceedings the subject of the statement of charge of 6 April 1999 and of 9 November 1998. (4) The costs of $6,500 and the costs of the contempt proceedings are to be paid on or before 2 October 2000. (5) The fine of $12,000 imposed by the judgment of 21 September 1998, is not to be enforced until a date on or after 2 October 2000.

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