Environment Protection Authority v Barnes

Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357; Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Ebacarb Pty Ltd v Environment Protection Authority [2003] NSWLEC 411; Environment Protection Authority v Barrett [2003] NSWLEC 182; Environment Protection Authority v Davis [2005] NSWLEC 643; CASES CITED: Environment Protection Authority v Fernando & Anor [2003] NSWLEC 281; Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Limited [2005] NSWLEC 175; Mill v R (1988) 166 CLR 59; R v Crombie [1999] NSWCA 297; R v Doan (2000) 50 NSWLR 115; R v Sharma (2002) 54 NSWLR 300; R v Thomson; R v Houlton (2000) 49 NSWLR 383; Veen v The Queen [No. 2] (1988) 164 CLR 465

PROSECUTOR: Ms S Wright (solicitor) SOLICITORS: LEGAL REPRESENTATIVES: Environment Protection Authority DEFENDANT: Mr J Priestley (barrister) SOLICITORS: Walters

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

50028-29 of 2005 Environment Protection Authority v Barnes

JUDGMENT 1 Her Honour: The Defendant, Phillip Gregory Barnes, has pleaded guilty to two charges of transporting waste to a place that cannot lawfully be used as a waste facility for that waste contrary to s 143(1)(a) of the Protection of the Environment Operations Act 1997 ("the POEO Act").

2 The summonses, filed on 2 August 2005, allege that in February 2004 and on 4 March 2004 the Defendant dumped 7,000 litres and 4,000 litres, respectively, of septic waste from a tanker truck which is designed to collect and transport septic waste onto the same location of a property located at 218 Borton Road, Tullera ("the site"). The site is a rural property used for cattle grazing approximately 72ha in size.

3 As the Defendant has pleaded guilty it may be assumed that the Prosecutor has proved to the requisite standard the essential elements of the offence. The maximum penalty for each of the offences against s 143(1)(a) of the POEO Act is $120,000 for an individual. Background 4 A statement of agreed facts was filed by the parties. The Defendant is employed by Rico Family Trust but effectively works for a business that trades as Richmond Waste Services ("Richmond Waste"). Richmond Waste carries out waste collection jobs in the Lismore local government area.

5 The Defendant's duties include collecting septic, grease and oil waste from various properties in the Lismore local government area and transporting that waste for disposal. All septic waste collected within the Lismore local government area would usually be disposed of at a Lismore City Council ("the Council") waste water treatment plant. The parties agreed that the waste transported by the Defendant was septic waste and/or matter containing significant human faecal contamination.

6 In February 2004, the Defendant pumped out approximately 7,000 litres of septic waste from septic tanks on a number of residential properties within the Lismore local government area. The Defendant then drove to the site in order to dispose of the septic waste. The Defendant dumped approximately 7,000 litres of septic waste on the site in an area between a shed and cattleyards. In his record of interview, the Defendant estimated that the waste flowed approximately 10m to 15m along the ground from the point of discharge.

7 After the Defendant had dumped the septic waste on the property, Mr Jeffrey Larsson and Mr Timothy Larsson, owners of the site, went to the property to do some maintenance. They saw the septic waste as sludge on the ground around the cattleyards ("the sludge"). The sludge was thin and brown. A few days later Mr Jeffrey Larsson observed the same sludge again. The sludge covered an area of wet ground approximately 30sq m in size.

8 On 4 March 2004, the Defendant pumped out approximately 4,000 litres of septic waste from properties in the Lismore local government area into a vehicle. The Defendant then drove to the site and disposed of the septic waste in the area between the shed and the cattleyards at some time between approximately 12.30pm and 2.00pm. The septic waste that was dumped on 4 March 2004 was dumped in approximately the same location on the property as the septic waste dumped in February 2004. The Defendant estimated in his record of interview that the septic waste dumped on 4 March 2004 flowed along the ground at the property about 10m from the point of discharge.

9 On 6 March 2004, Mr Timothy Larsson observed more sludge in the location between the shed and the cattleyards which was thicker than it had been in February. Mr Jeffrey Larsson observed, close to where he had first seen the sludge in February 2004, a larger area of wet ground and sludge. The surface area of the sludge was between approximately 30 and 40sq m.

10 On 8 March 2004, Mr Andrew Edwards, an Environmental Projects Officer with the Council received a complaint from Mr Jeffrey Larsson and attended the site. Mr Edwards paced out the area where the sludge had been dumped at approximately ten paces by eight paces. The sludge covered an area of approximately 20sq m.

11 In early April 2004 the Council became aware of irregularities between the records held by Richmond Waste and the records held by Council in relation to the amount of septic waste disposed of at the Council's waste water treatment plant. The Council communicated this irregularity to Richmond Waste. Subsequently, the Defendant admitted to his employers that he had dumped two loads of waste illegally and that could be the reason for the irregularities. The matter was not reported to the Council or the Prosecutor by the Defendant or any person related to Richmond Waste.

12 On 2 June 2004 the Defendant attended voluntary interviews in relation to the offences and admitted committing the offences. When asked in a record of interview why he dumped the waste in February 2004 the Defendant stated: With the dumping at the treatment works in Lismore, we've only got a window of opportunity between 8.00am and 3.00pm. After 3.00pm, the treatment works are closed and I need an empty truck for the morning because I state [sic] at - generally, 6.00 or 7.00am and, if I've got a full truck from the day before, I can't go on and do any more jobs until 8 o'clock, until I've dumped … that's why this illegal dumping took place because of no access to dumping facilities. 13 In relation to the 4 March 2004 offence the Defendant stated that the reason for dumping the waste was to save time and money. He stated that at that time he was under pressure to get a certain amount of work done and had to cut corners to meet the demands of his workload. The Defendant stated it would have cost approximately $120 to dispose of a 7,000 litre load at the Council's waste water treatment plant. 14 In the record of interview the Defendant stated that he was not told by anyone to dump the waste on either occasion. It was solely his decision to do so. The Defendant also stated that he realised what he was doing was wrong. He further stated that he dumped the waste in this particular location because it was isolated and out of the way. 15 On 25 June 2004 the Prosecutor issued a clean up notice to the Defendant's employer to clean up the septic waste that had been disposed of at the site. 16 On 2 July 2004 the Defendant's employer sent a letter to the Prosecutor outlining the steps taken to clean up the septic waste. The Prosecutor has confirmed with the property owners that the site had been cleaned up to their satisfaction in accordance with the clean up notice.

17 On 2 August 2005, the Prosecutor filed summonses in relation to the dumping of waste on the site in February 2004 and 4 March 2004. On 13 September 2005, the Defendant's lawyers advised the Prosecutor that the Defendant would be pleading guilty to both matters.

Evidence in relation to environmental harm 18 On 19 May 2004, two samples of the sludge were taken by the Prosecutor's officers from the dumped material. Investigations by the officers confirmed that it was septic waste.

19 There was no evidence tendered of actual harm to the environment. In addition, the statement of agreed facts stated that there was no evidence that the waste reached the dam or that any cattle were in the area at the time the sludge remained on the site.

20 In relation to possible harm caused by the waste, the statement of agreed facts stated that the transport of pollutants from the septic waste deposit into nearby water courses and storages would be very likely if a rainfall event occurred which resulted in surface runoff. The most common impact of nutrient addition to waterways and storages is the stimulation of growth of algae and nuisance plants in excess of natural levels. In addition, pathogen contamination of downstream water courses and storages would be likely due to transport of the pathogens in the septic waste. If contaminated water courses and storages were used for domestic or stock water supply there would be an increased likelihood of disease to humans or stock.

Finding 21 It is necessary to consider the factors specified in s 241 of the POEO Act. Section 241(1)(a) - the extent of the harm caused or likely to be caused to the environment by the commission of the offence Prosecutor's submissions 22 The Prosecutor argued that while there was no evidence of actual harm there was a likelihood of environmental harm given the proximity of the spill to a dam located about 100m downhill from where the waste was dumped. In the event of a rainfall event there was potential for the waste to flow into a gully leading into the dam. If septic waste did enter the dam, this would be likely to result in the contamination of downstream water courses by pathogens contained in the septic waste. This in turn could result in the increased likelihood of transmission of pathogens to livestock and humans.

Defendant's submissions 23 The Defendant submitted that there was no evidence of actual or long term harm and that the harm likely to be caused to the environment was minimal given the small area covered by the waste and the remediation works undertaken by the Defendant and the Defendant's employer. The Defendant argued that as the sludge had been left on the site for a period of approximately four months before the Prosecutor issued a clean up notice, and there was no evidence of actual harm over this time, this suggested that there was little likelihood of harm. Section 241(1)(b) - the practical measures that may be taken to prevent, control, abate or mitigate that harm 24 There were simple measures that could have been taken to prevent the incident and potential harm to the environment. The Defendant could, for example, have avoided dumping the waste at the site. The waste could have been disposed of at a wastewater treatment plant or stored in the holding tank at the premises of Richmond Waste. In response to a clean up notice issued to the Defendant's employer, the site has now been remediated. Section 241(1)(c) - the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence 25 The Defendant conceded that he knew at the time of the offence that it was not in the interests of the environment for the septic waste to be dumped on the site. Section 241(1)(d) - the extent to which the person who committed the offence had control over the causes that gave rise to the offence 26 The parties agreed that the Defendant had complete control over the causes which gave rise to the offence. Section 241(1)(e) - whether, in committing the offence, the person was complying with orders from an employer or supervising employee 27 It is clear from the statement of agreed facts that the Defendant was not acting under orders of an employer when he committed the offences.

Consideration of penalty Prosecutor's submissions 28 The Prosecutor argued the offences were deliberate and deceitful in the sense that they were carried out in a way to try to avoid detection and to save time and money. The Prosecutor conceded that the Defendant did not personally save money, nor was the amount of money saved large in any event, being a disposal fee of $120.

Defendant's submissions 29 The Defendant submitted he had been acting under duress because he was concerned about his employment prospects if he did not fulfil his obligations as required by his supervisor. He accepts that what he did was quite wrong but felt under pressure to perform well in a company where his father was an owner as he did not want to be perceived as getting special favours.

Sentencing considerations 30 The primary consideration in sentencing is the objective gravity or seriousness of the offence. In assessing the seriousness of a crime, regard must be had to the culpability of the defendant and the individual circumstances which led to the commission of the offence. There is no doubt that the offence was deliberate and undertaken completely on the Defendant's own initiative when he knew what he was doing was wrong. The offence is serious although it was clearly the result of foolishness on the Defendant's part rather than being contumelious.

Proportionality 31 The sentence must be proportional to the gravity of the crime. The Court is also to have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, Kirby P (with whom Campbell and James JJ agreed) stated at 698 that: The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum.

32 Further Kirby P stated at 701 that: …the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty.

33 Considering all the factors under s 241(1) of the POEO Act I consider the offence is reasonably serious but that the environmental consequences are minimal to non-existent.

Deterrence 34 The Prosecutor has argued that general deterrence is an important consideration in sentencing (see Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 per Badgery-Parker J at 367; Camilleri's per Kirby P at 701). The Prosecutor particularly focused on the nature of the many operators working in the waste industry (see Environment Protection Authority v Fernando & Anor [2003] NSWLEC 281 per Talbot J at [21]).

35 I consider it is unlikely that this Defendant will offend again and do not consider specific deterrence is a factor. I would characterise the offences as uncharacteristic aberrations rather than evidence of a continuing attitude of disobedience of the law (see Veen v The Queen [No. 2] (1988) 164 CLR 465 at 477). While the Prosecutor relied on Fernando where specific deterrence was a particular factor taken into account in determining sentence I do not consider the culpability of this Defendant is of the same character as the defendant in that case.

Evenhandedness 36 While it is a sentencing principle that similar offences should receive similar penalties, as emphasised in Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 each case must also depend on its own facts. The Prosecutor relied on the judgments of Fernando, Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Limited [2005] NSWLEC 175 and Environment Protection Authority v Davis [2005] NSWLEC 643.

37 In Fernando, the defendants pleaded guilty to offences under s 143(1)(a) of the POEO Act for dumping 46 containers of hazardous waste and flammable chemicals. In considering penalty, Talbot J considered general deterrence in the punishment of Mr Fernando. The circumstances indicated that in the course of committing the offence, Mr Fernando's conduct was deliberate and dishonest, placing the seriousness of the offence at the highest end. Justice Talbot imposed a fine of $60,000 notwithstanding that he was also meeting the costs of cleanup jointly and severally with his co-defendant.

38 In Pannowitz, the defendants pleaded guilty to offences under s 143(1)(a) of the POEO Act for dumping of a significant amount of demolition waste on land within 40m of the Paterson River. Initially, the defendants pleaded not guilty to the offences but entered guilty pleas at the commencement of the hearing. In that case, the first defendant was sole director of the second defendant company. In considering the circumstances of the offence, Lloyd J took into consideration the significant quantity of waste transported, the sensitive nature of the site and the financial advantage procured by the defendants by deliberately avoiding the costs of disposing of the waste at an appropriate waste facility. Justice Lloyd imposed a fine of $20,000 on the first defendant and $40,000 on the second defendant company.

39 In Davis, the defendant pleaded guilty to an offence under s 143(1)(a) of the POEO Act for disposing of approximately 1,500 litres to 2,000 litres of septic waste at recreation grounds on the banks of the Tweed River. In that case, the defendant was the owner and operator of the business and was caught red-handed dumping waste directly onto a river bank. In considering penalty Lloyd J had regard to the defendant's early plea of guilty, that there was no evidence of actual environmental harm, and the explanation of the incident provided by the defendant that he had a "brain explosion". After considering these factors Lloyd J imposed a fine of $5,000 on the defendant.

40 As each case must be determined on its own facts none of these cases can be considered directly applicable to this matter. I consider, however, that this case is less serious than Fernando and Pannowitz. The penalty in Davis appears to reflect the peculiar circumstances of that case and I do not consider that to be a particularly relevant guide. However, the level of culpability in Davis is more analogous to this case than Fernando or Pannowitz.

Totality 41 The Prosecutor accepted that the principle of totality ought to apply as the two offences were committed close together. That principle provides that the aggregate of the two fines should be considered to see if these reflect the overall seriousness of the offences. The individual fines should be reduced if just and appropriate (see Mill v R (1988) 166 CLR 59 at 62 - 63). I agree that the totality principle ought to apply.

Mitigating factors 42 There are a number of mitigating factors that should be taken into account to reduce any penalty.

Means of the Defendant to pay 43 Under s 6 of the Fines Act 1996, in the exercise of its discretion to fix the amount of any fine, the Court is required to consider such information regarding the means of the accused as is reasonably and practicably available for the Court's consideration and such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. The Defendant submitted that he has very limited means to pay a substantial fine. The Defendant is 32 years old, married with a $200,000 mortgage and a weekly net salary of about $650. His wife also works. He has some equity in a house which is owned jointly with his wife. His disposable income after expenses are paid is about $100 per week. I accept that he has limited ability to pay a substantial fine.

Guilty plea 44 The Defendant pleaded guilty to the charges at the first return date and indicated to the Prosecutor that he would do so prior to the first return date by his solicitor's letter dated 13 September 2005. A plea of guilty entitles the Defendant to a discount in penalty under s 22 of the Crimes (Sentencing Procedure) Act 1999 in the range of 10 - 25 per cent (see R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300). I consider the maximum discount of 25 per cent should apply.

Other mitigating factors 45 I accept the Defendant has shown contrition and remorse and fully cooperated with the Prosecutor in its investigations including admitting the offences in two records of interview.

46 The Defendant has relied on three testimonials which demonstrate his good character and which were made in full knowledge of the offences before the Court. The Defendant is a longstanding and active member of the Australian Army Reserve.

47 The Defendant has been engaged in driving trucks and collecting waste for nine years and has no previous convictions. I accept the offence was not a common occurrence and that the Defendant is ordinarily a law abiding citizen (see Veen).

Offence also maintainable in the Local Court 48 The Defendant has argued that I should take into account the fact that the Prosecutor has elected to pursue a matter in this Court which could more appropriately have been dealt with in the Local Court where the maximum fine would be $22,000. The Defendant relied on the case of R v Crombie [1999] NSWCA 297. In that case, the Court of Criminal Appeal considered whether the prosecutor's election to bring indictment proceedings in the District Court rather than summarily in a Local Court was a mitigating factor in sentencing. Justice Wood (with whom Simpson J agreed) stated at [14] - [16] that: It was common ground, as the sentencing statistics bear out, that, had the matter been dealt with in the Local Court, then it is likely that it would have attracted a significantly lesser sentence than that which was imposed by his Honour.

This Court has acknowledged that the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge…

None of those decisions go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment…

49 In R v Doan (2000) 50 NSWLR 115, Grove J (with whom Spigelman CJ and Kirby J agreed) referred to the principles discussed in Crombie and stated at [42] that: The cases reveal that the circumstance can, rather than should, be a matter of mitigation. All offenders in the relevant situation would have lost the chance of being dealt with within the restrictions applicable in the summary court and for that reason that chance should not be ignored. The significance of the loss of that chance would undoubtedly vary from case to case and in some cases it would contribute to mitigation, in others, not. I see no reason to depart from the approach taken in those cases but they are authority for the proposition that it is a matter to be taken into account and not a universal factor for reduction of sentence.

50 A number of Supreme Court decisions have applied Doan. I consider that in the circumstances of this case, it is appropriate that I have regard to the fact that the Prosecutor could have initiated proceedings in the Local Court as a mitigating factor in sentencing. 51 The parties agreed as a sentencing principle that even if the matter were in the Local Court the maximum penalty of $120,000 would still be applicable and a matter to which the Local Court must have regard in sentencing, despite the jurisdictional limits applying in the Local Court (see Doan per Grove J (with whom Spigelman CJ and Kirby J agreed) at [35]; Ebacarb Pty Ltd v Environment Protection Authority [2003] NSWLEC 411 per Talbot J at [9] - [11]).

Costs 52 The Defendant has relied on Environment Protection Authority v Barrett [2003] NSWLEC 182 in seeking that there be no order as to costs. Alternatively the Defendant seeks an order that costs be limited. This is opposed by the Prosecutor. Under s 253 of the Criminal Procedure Act 1986 the Court can award costs and it is common practice that this be done in this Court. In Barrett, the defendant pleaded guilty to negligently causing a spill, a Tier 1 offence pursuant to the POEO Act carrying a potential penalty of imprisonment. I consider the circumstances in Barrett are quite different to those before me and that it is appropriate that I make an order for costs in the Prosecutor's favour in some form. I do consider the amount of costs ought to be taken into account because if substantial they will clearly impact on the ability of the Defendant to pay a fine.

53 The Defendant has now agreed to pay the Prosecutor's legal costs of both proceedings in the amount of $15,000. The Prosecutor also made an application for its costs and expenses reasonably incurred during the course of its investigation pursuant to s 248(1) of the POEO Act. The Defendant agreed he should pay the Prosecutor's costs of investigation in the amount of $727.13. In the context of this case, given the admission of guilt made by the Defendant in the record of interview with the Prosecutor on 2 June 2004 (see par 12 above) and the early pleas of guilty advised by his lawyers on 13 September 2005 (see par 17 above), these costs are substantial and I take this into account. Had the costs not been so great I would have imposed a much higher penalty.

54 In all the circumstances I think that the Defendant's penalty for the first offence should be $4,000 and for the second offence $500. Orders 55 The Court orders that:

1. In matter no. 50028 of 2005 the Defendant is convicted of the offence with which he is charged.
2. In matter no. 50028 of 2005 the Defendant is fined the sum of $4,000 to be paid to the Registrar of the Court.
3. In matter no. 50029 of 2005 the Defendant is convicted of the offence with which he is charged.
4. In matter no. 50029 of 2005 the Defendant is fined the sum of $500 to be paid to the Registrar of the Court.
5. The Defendant must pay the Prosecutor's costs of the proceedings against him in the amount of $15,000.
6. The Defendant must pay the Prosecutor's costs and expenses of investigation in the amount of $727.13 pursuant to s 248(1) of the Protection of the Environment Operations Act 1997.
7. The exhibits may be returned.

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