Environment Protection Authority v BMG Environmental Group Pty Ltd & Barnes [2012] NSWLEC 69 | Case summary

Environment Protection Authority v BMG Environmental Group Pty Ltd & Barnes [2012] NSWLEC 69 | Case summary | Zoe

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AGREED FACTS 9There is an agreed statement of facts as between the prosecutor and Mr Barnes. The evidence establishes the facts stated in that document as against BMG. In addition, Mr Barnes gave affidavit evidence and was cross-examined. The agreed facts include those set out below at [10] - [77]. 10BMG is a waste transport company based at Bathurst. Mr Barnes is a director and shareholder of BMG. He manages the day to day operations of BMG. Over the nine month charge period between 1 January 2009 and 23 September 2009, BMG either transported or arranged the transportation of over a million litres of untreated liquid waste to a farm near Bathurst named "Greenbank", where the waste was either deposited onto the ground or ploughed into the soil. The waste comprised mainly untreated septic tank waste and untreated grease trap waste. 11The application upon land of both septic tank and grease trap waste is subject to significant restrictions to prevent harm to the environment; in particular such waste must be treated prior to land application. No such treatment took place in this case. Neither BMG nor Mr Barnes took steps to ensure the dumping of this waste presented no risk of environmental harm. 12The defendants' conduct had the potential to cause serious harm, in particular because the disposal of raw sewage on agricultural land leads to a risk that disease-causing bacteria may enter the food chain (see the summary of expert evidence below). 13BMG was established in 1991; its principal place of business is 9 Whyalla Circuit, Kelso (an industrial suburb of Bathurst). Its directors throughout the charge period were Mr Barnes and Mr Jamie Luke Saba. Mr Barnes owns 50 per cent of the shares in BMG; the remaining shares are held across four shareholders. 14At all relevant times, BMG has held environment protection Licence No. 12529 under the POEO Act. This licence pertains to the treatment of waste at the NSW Liquid Recycling Centre (NSWLRC), a liquid waste processing facility located at 11 Whyalla Circuit, Kelso. The liquid waste treated at NSWLRC included grease trap and oily water waste. The NSWLRC does not and did not receive or treat septic waste. 15The NSWLRC was established by Mr Barnes in July 2006, operating through the corporate vehicle NSW Liquid Recycling Centre Pty Ltd - the shareholding of which is split with 50% held by Mr Barnes and the remainder held by five shareholders. The directors at all relevant times were Mr Barnes and Mr Saba. The manager of the Centre was Mr Steven Ryan. 16From July 2007 to June 2008, Sita Australia Pty Ltd, trading as Sita Environmental Solutions (Sita), leased the premises and business of the NSWLRC from BMG, and supervised Mr Ryan as manager of the Centre. From July 2008, BMG resumed operation of the NSWLRC with Mr Ryan continuing as manager. 17BMG and Sita are competitors in the waste management market, although for periods of time, including during the charge period, Sita contracted with BMG to collect waste from Sita's Canberra premises (detailed below). 18At all relevant times, BMG also held environment protection Licence No. 11778 under the POEO Act, which pertains to the road transport of waste. This licence applies to a total of eleven trucks, prime movers and trailers used by BMG. 19On or about 21 March 2007, Mr Barnes formed an unincorporated registered partnership with Raymond Ryan, called "A & R Freight", which was and is, a general freight business. As detailed below, A & R Freight transported part of the waste the subject of these charges to Greenbank. It did so on behalf of BMG upon the direction of Mr Barnes. 20Greenbank is an operational agricultural farming property of approximately two thousand acres located near Bathurst. The various lots which comprise Greenbank are owned by Ruth Sandry, Gavin Sandry and Leanne Sandry-Atkinson. Until his death in 2000, the property was owned by Peter Sandry (the father of Rowan and Gavin Sandry). The main activities on the farm are grazing cattle and sheep. Rowan Sandry manages the farming operations. Since 6 January 2000, no pollution control licence or environment protection licence has been in effect in respect of any of the property which comprises Greenbank. There is no development consent from the Bathurst Regional Council in respect of Greenbank for the disposal of waste. 21"Wimbledon Worms", a property near Bathurst owned by Mr Barnes, is a site upon which BMG also disposed of liquid waste during the charge period. BMG holds an environment protection licence in respect of the activity carried out on this property. Its activities in relation to liquid waste on this property are not the subject of any charges in these proceedings.

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Disposal of waste at Greenbank 44At an unknown date before 1996, Mr Barnes came to a verbal agreement with Peter Sandry under which Mr Barnes could dispose of various food wastes on paddocks at Greenbank. After Peter Sandry's death in about 2000, the arrangement to use Greenbank to dispose of liquid waste continued. 45Between 2003 and 2009, the nature and quantity of the waste that BMG took to Greenbank changed. Initially, the waste consisted mainly of food waste from local factories, such as liquefied breadcrumbs and fish mixture, protein rich sludge from sausage skin manufacture and liquid resulting from pet food manufacture. However, by January 2009, the waste disposed of at Greenbank included: (a)untreated sewage, mostly from households which were not connected to the sewage system and which consisted of the waste products from toilets, sinks and laundries; (b)septic tank waste, which consisted of similar materials but was taken from tanks where it had been sitting for some months or more, which meant it was sludgier than the untreated sewage; and (c)untreated grease trap waste, which consisted of food waste, oils, fats and other waste from restaurants and fast food outlets. 46Rowan Sandry runs the farming operations at Greenbank. He had infrequent conversations with Mr Barnes regarding what paddocks BMG were "working on" and "the paddocks they would work on next". Occasionally, he gave directions to BMG drivers as to where they should dispose of the waste. He also occasionally asked drivers if the material was suitable for improving soil fertility, productivity and aeration - he was told it was. He had no further knowledge of the material brought on to the property by BMG. He estimated that BMG would bring around two truckloads of material to the property a day. 47He identifies paddocks in Greenbank where BMG applied waste during the charge period, noting that some of these areas were used exclusively for stock grazing and another area for growing oats which was grazed by cattle. Stock were not allowed into paddocks where waste had been spread for a couple of months to allow ploughing, sowing, and pasture reestablishment. As addressed in the expert evidence of Dr Eames (described below), this gives rise to a risk that pathogens (disease-causing organisms) were consumed by sheep and then passed on to humans. From what he had seen, he believed the work done by BMG to be beneficial to Greenbank. 48Gavin Sandry is part owner of Greenbank; he works full time as a security officer but also has responsibility, in partnership with his wife and his brother Rowan, for the farming activities at Greenbank. He estimated that BMG would bring around two truckloads of material to the property a day. He was not aware what material was being distributed by BMG, but from what he has seen, BMG's activities had been beneficial to Greenbank. 49Mr Peter Ryan is a neighbour of Greenbank. He observed about three BMG trucks a day, seven days a week, drive onto Greenbank and distribute their load using a "bio plough" by which liquid is injected about 3 inches into the ground by rippers which are fed liquid from tanks via hoses. He observed that these activities continued through 2009, but reduced significantly after November 2009.

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EPA investigations 50In March 2009, the EPA commenced an investigation into BMG's activities. EPA officers undertook surveillance of BMG vehicles and made inquiries with the Roads and Traffic Authority about BMG truck movements. The following was relevantly observed: (a)on 22 May 2009, a BMG tanker truck was observed collecting liquid waste and driving to a point within several kilometres of Greenbank, whereupon surveillance ceased; (b)on 29 July 2009, a BMG tanker truck was observed driving to and parking across the road from the NSWLRC for about an hour, then driving to Greenbank where the vehicle was observed driving across the property backwards and forwards; (c)on 25 August 2009, a BMG tanker truck was observed driving to the Tahmoor premises from which G & G Waste operates. It collected liquid waste from an orange tank (which appeared to have the capacity for about 20,000 or 30,000 litres). The truck then travelled to Greenbank and drove through the property to a paddock in the northern part of the property; (d)also on 25 August 2009, another BMG tanker truck was observed parked on the right hand side of the road next to Greenbank, next to a "ground injection unit". Waste was being pumped from the tanker into the unit, and the unit was then driven around the paddock; and (e)on 9 ,10 and 11 September 2009, trucks from G & G Waste were observed collecting liquid waste from various premises and depositing it into white and orange tanks at the Tahmoor premises of G & G Waste. Subsequently, an A & R Freight prime mover truck collected waste from these tanks; it was observed driving towards NSWLRC, where it was parked on the street overnight opposite the NSWLRC. The following morning, the truck was followed to Greenbank, where it was observed driving around a paddock in circles, with a liquid spilling from the back. 51On 23 September 2009, EPA officers conducted a search of BMG's business address at Bathurst, the NSWLRC, the premises of G & G Waste, and Greenbank. The officers seized documents including financial records, and also copied the hard drives of computers at the NSWLRC. 52On the same date, EPA officers undertook an inspection of the land at Greenbank and took soil and waste samples. Upon the request of EPA officers, Rowan Sandry pointed out a paddock where waste had been recently applied by BMG. At that paddock, the EPA officers relevantly observed an area upon which appeared to have been spread large deposits of fatty looking material. All the grass appeared to have died back in this area and it was devoid of vegetation. EPA officers also observed a contour bank on the northern side of this paddock, upon which there was a sludge-like deposit which appeared septic in nature on account of the odour and various associated items including feminine hygiene products, toilet freshener baskets, toilet brushes, condom wrappers and pill cards. Photographs and samples were taken. In other parts of the paddock, the EPA officers observed additional areas which had received both waste of a septic tank nature and fatty material similar in nature to that already observed. 53Later that day, at about 2.30 pm, whilst the EPA officers were still at Greenbank, they observed a BMG tanker truck (Registration No AI 28 QY) turn into the laneway that led to Greenbank. A sample was taken from the tanker. 54EPA officers returned to Greenbank on 24 September 2010 and conducted further inspections, including the septic area identified the previous day. Various samples and photographs were taken of this area and other paddocks where waste appeared to have been spread. EPA officers observed this waste appeared to be made up of grease trap waste and septic waste, the latter identifiable by reference to material usually associated with untreated septic waste, namely plastic fragments, toilet bowl cages, rags, and feminine hygiene products. 55At about 12.45 pm, whilst the EPA officers were still at Greenbank, they observed the same BMG tanker truck as the previous day (Registration No AI 28 QY) drive through the paddock they were inspecting. It was observed to drive towards a tractor and piece of farm machinery used to inject material into the soil. Material from the tanker was being transferred into the injection unit when the EPA officers arrived. A sample was taken from the tanker. 56EPA officers conducted interviews with Mr Barnes and various of the BMG truck driver. Under caution, the interviewees relevantly stated that: (a)Barnes oversees the operations at NSWLRC - he has the 'final say'; (b)Barnes has seen and understands 'basically' the Waste Classification Guidelines; (c)Barnes was the manager of the Greenbank operation - that is BMG either transported or arranged for A & R Freight to transport septic tank waste, untreated sewage and untreated grease trap waste to Greenbank; (d)Barnes personally transported waste to Greenbank, and directed the BMG drivers to do so; (e)if no BMG trucks were available, an A & R Freight truck would do it. Barnes made the decisions about which trucks to use; (f)all sewage/septic waste not taken to the Council Treatment Works was taken to Greenbank; (g)the sewage and septic waste was either taken directly to Greenbank or the tanker was parked overnight and delivered the following day. In neither case was the sewage and septic tank waste treated in any way prior to disposal; and (h)some of the grease trap waste may have been treated at the NSWLRC prior to disposal at Greenbank. 57The disposal of waste at Greenbank ceased on or shortly after 23 September 2009, the date on which EPA officers conducted a detailed site inspection of, inter alia, Greenbank and the NSWLRC.

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Dr Byleveld's evidence 62Dr Paul Byleveld has a PhD in immunology, microbiology and nutrition. He is the Manager of the Water Unit within the Environmental Health Branch of the NSW Department of Health. He addressed the harm to humans by the disposal of untreated sewage upon the land, such as that which occurred at Greenbank. 63Dr Byleveld noted that sewage presents a significant potential health hazard to humans because sewage contains infectious enteric pathogens (micro-organisms capable of causing disease, including bacteria, viruses, protozoa and worm eggs) and bacterial endotoxins. Pathogens in sewage waste may remain infectious for months until the pathogens die due to heat, sunlight (UV irradiation), desiccation or microbial activity. He detailed the illnesses that may be caused by such pathogens. Dr Byleveld also noted that sewage may also contain potentially harmful chemicals derived from domestic, agricultural, industrial and commercial activity. 64Dr Byleveld referred to a number of published studies which have found that sewage workers experience more ill health (nose irritation, tiredness, diarrhoea) than other workers, which is likely to be due to contact with pathogens and exposure to airborne bacterial endotoxins. The latter is known for inflammatory properties and has been related to toxin pneumonitis and airway inflammation. 65Dr Byleveld concluded that the land application of sewage pumpout waste has the potential to harm the health of those applying the waste to the land and to those working or living on the land. He also noted that insects and other animals with access to sewage can spread pathogens on their bodies, presenting a health risk if the insects or animals come into contact with humans or food. 66Human sewage may contain infectious enteric pathogens (bacteria, including Salmonella and E coli) and parasites such as tapeworm and cryptosporidium. Many of these pathogens are not present in animal faeces. The pathogens present in human sewage may cause illnesses such as gastroenteritis and hepatitis.

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MR BARNES' EVIDENCE 79Mr Barnes gave affidavit evidence and was cross-examined. 80Mr Barnes is 61 years of age, married with children. He has lived in the Bathurst area almost all his life, went to school there and obtained the School Certificate. Since leaving school he has for the most part worked for himself doing farm contract labour, share farming and earth moving. In 1990 he started a worm composting business, Wimbledon Worms, which became the defendant BMG. In about the early to mid 2000s, BMG, apparently through a subsidiary, bought a property in the industrial area of Kelso and built an oily water and grease trap facility on it, obtained development consent for waste storage and treatment, and obtained a licence to run it from the EPA. In 2002 Mr Barnes inquired of the local council whether development consent was necessary to apply liquid and semi-liquid organic waste from food processing factories, grease traps and pet food manufacturers to (inter alia) Greenbank. The council replied that development consent was not required for the application of organic material to land for agricultural purposes, but said such application was required to be in accordance with the EPA's Environmental Guidelines: Use and Disposal of Biosolids Products (EPA Guidelines), and in conformity with the POEO Act. 81Until 2006 BMG only accepted organic food material. In 2006 BMG started to accept grease trap waste, and in 2008 it started to accept septic tank effluent. 82Mr Barnes' evidence included the following: (a)At the time of the offences he mistakenly believed that BMG was lawfully entitled to deposit treated grease trap waste and biosolids, being treated septic tank sludge, at Greenbank because they fell within exemptions to the EPA licensing requirements. (b)BMG attempted to treat all the grease trap waste at NSWLRC, its treatment plant at 11 Whyalla Circuit, before depositing it at Greenbank by passing it through screens to remove most of the rubbish. The evidence establishes that significant rubbish nevertheless ended up deposited at Greenbank. In oral evidence Mr Barnes said that this was because the screening size was too big and that they are now changing to a smaller screen. There is some difficulty reconciling Mr Barnes' evidence with the agreed facts at [10] and [61] above indicating that the grease trap waste the subject of the charge was untreated. Although the evidence is not clear, doing the best I can it appears that the grease trap waste deposited at Greenbank presented as untreated because the screening size was too big. (c)BMG obtained all its biosolids that went to Greenbank from G & G Waste at Tahmoor on the latter's assurance that it was septic tank sludge. Therefore he did not believe that it was raw sewage. I note that in fact it was raw (untreated) sewage. (d)In cross-examination he said that his mistaken belief was based on a brief reading of EPA Guidelines in 2002 when BMG's business was confined to processing food material and the like. In that context, in correspondence with the local council, the council directed him to those Guidelines. When BMG's business later expanded or changed to accept septic waste and grease trap waste, he assumed that BMG could do the same with that material as it had been doing with food factory waste. (e)In re-examination, he claimed to have read "The biosolids exemption 2008" issued pursuant to cll 51 and 51A of the Protection of the Environment Operations (Waste) Regulation 2005 when BMG began to accept sewage waste in 2008. He admitted that after reading this biosolids general exemption, a general condition of which (cl 7.1) referred to the EPA Guidelines, he did not go back and delve further into those guidelines. He said that it was from reading these materials that he came to form the belief that the sewage waste BMG was to deposit at Greenbank was subject to the general exemption in relation to certain licensing requirements under the POEO Ac. (f)The evidence indicates that BMG did deposit some of the waste from G & G Waste at the Council Treatment Works: see [59] above. Mr Barnes' explanation in cross-examination for these deliveries was that he was told by the driver on those occasions that it was raw sewage. He said that in future he would not rely on the word of others as to whether sewage to be collected was treated, but would be putting in place a different system, for which he had two consultants, of signing off on each load that comes in and a better testing setup. 83If Mr Barnes had gone back to the EPA Guidelines, he would have seen that septic tank sludge (septage) and grease trap wastes were excluded from the guidelines by cl 1.2.2, and that they also imposed stringent conditions on the disposal of septic waste. He denied that he was aware of this from as early as 2002. I am not satisfied that he was aware. However, in my view, he was grossly negligent, bordering on reckless, in not checking properly whether the deposit of this material was lawful pursuant to the general exemptions. 84The biosolids general exemption applies only to biosolids as defined. The general exemption defines "biosolids" as "the organic product that results from sewage treatment processes (sometimes referred to as sewage sludge) in accordance with the Act". The EPA Guidelines similarly define it as "Primarily an organic solid product produced by the municipal sewage treatment process, previously referred to as sewage sludge. Solids become biosolids when they come out of a digester or other treatment process and can be beneficially used". The agreed facts establish that all the sewage/septic tank waste BMG deposited at Greenbank was untreated. Therefore, the biosolids general exemption could not have applied. 85Mr Barnes also stated in his affidavit that he believed the grease trap waste BMG deposited at Greenbank was covered by a general exemption relating to such waste. "The treated grease trap waste exemption 2008", issued pursuant to the same Regulation, only applies to treated grease trap waste as defined. It could not have sanctioned the conduct of the defendants in relation to that type of waste as the agreed facts establish that the grease trap waste deposited at Greenbank was untreated. Mr Barnes' own evidence indicates that it presented as untreated because it had been inadequately treated: the screen used was too small.

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SENTENCING PRINCIPLES 86It is a function of the Court to take into account the purposes of criminal punishment when determining the appropriate penalty: Muldrock v The Queen [2011] HCA 39, 85 ALJR 1154 at [61]. The overlapping and, at times, conflicting purposes of sentencing are identified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) , which makes no attempt to rank them in order of priority. Section 3A relevantly provides: The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, 87In imposing a penalty, the Court is required to take into account each of the matters referred to in s 241 of the POEO Act, and may take into consideration other matters that it considers relevant. Section 241 provides that: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (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, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant. 88Section 21A(1) of the CSP Act specifically requires the Court to take into account, in addition to the relevant aggravating and mitigating factors listed in subsections (2) and (3), any other objective or subjective factor that affects the relative seriousness of the offence, and any other matters that are required or permitted to be taken into account by the Court under any other Act or rule of law. Some of the listed aggravating and mitigating factors are objective and some are subjective but the section does not categorise them in that way. Factors which are elements integral to the offence are not to be taken, of themselves, as aggravating factors: s 21A(2). Section 21A envisages a broad ranging and flexible enquiry. It is taciturn about how the specifically listed aggravating and mitigating factors might operate for it says that the fact that any such factor is relevant and known to the Court does not require the Court to increase or reduce the sentence: s 21A(5). 89Most of the aggravating factors and some of the mitigating factors listed in s 21A are irrelevant to environmental offences. Two aggravating factors potentially relevant to environmental offences are that the damage caused by the offence was substantial and that the offence was committed for financial gain. Potentially relevant mitigating factors in environmental offences include that the damage caused by the offence was not substantial, the offender does not have any record (or significant record) of previous convictions, the offender was a person of good character, the offender is unlikely to offend, the offender has good prospects of rehabilitation, the remorse shown by the offender (subject to conditions), and a plea of guilty (as provided in s 22). 90The Court has to identify all the factors relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock at [26], following Markarian v The Queen [2005] HCA 25, 228 CLR 357 at [51]. This process has been called "instinctive synthesis". 91The ultimate control on the judicial sentencing discretion is that the sentence must be proportionate to the seriousness of the offence considered in light of its objective circumstances: Hoare v The Queen [1989] HCA 33, 167 CLR 348 at 354; Muldrock at [60]. It is only within the outer limit of proportionate punishment that the interplay of other relevant favourable and unfavourable factors will point to what is the appropriate sentence in all the circumstances of the particular case: Veen v The Queen [No 2] [1988] HCA 14, 164 CLR 465 at 472 - 473, 491. The objective circumstances of the offence and the purposes of punishment also inform the lower limit of sentencing discretion, a bottom line beneath which a sentence cannot legitimately be set: Plath v Rawson [2009] NSWLEC 178, 170 LGERA 253 at [46].

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OBJECTIVE SERIOUSNESS OF THE OFFENCE 92In determining objective seriousness, the traditional view has been that the Court may have regard to a broad range of factors: the maximum penalty, the nature of the offence, the extent of the harm caused to the environment, the state of mind of the offender, the offender's reasons for committing the offence, the foreseeability of risk of harm to the environment, the practical measures to avoid harm to the environment, and the offender's control over the causes: eg Pittwater Council v Scahill [2009] NSWLEC 12, 165 LGERA 289 at [51]. 93Two of these factors - the sometimes related state of mind of the offender and the offender's reasons - are personal to the offender at the time of the offence. However, in numerous cases in this Court such personal factors have been regarded as objectively affecting the seriousness of the offence: eg Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34, 145 LGERA 234 at [162]. The underlying reason for this view is their direct causal connection with the commission of the offence. The most authoritative statement of this rationale is to be found in R v Way [2004] NSWCCA 131, 60 NSWLR 168. The Court of Criminal Appeal said at [86]: Some of the relevant circumstances which can be said "objectively" to affect the "seriousness" of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 33 FLR 433 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence. 94The Court of Criminal Appeal said at [118] that the objective seriousness of the offence is to be considered in the light of the facts which relate directly to its commission, including any facts explaining why the offence was committed. 95These principles in Way have recently been thrown into question as a result of Muldrock v The Queen [2011] HCA 39, 85 ALJR 1154 where the High Court said at [27]: The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. 96The Court of Criminal Appeal said in Yang v R [2012] NSWCCA 49 at [28]: ...the High Court of Australia in Muldrock v The Queen ...at [27] appears to have rejected the notion propounded in R v Way ...at [86] that matters personal to an offender, including a mental illness, can be said to affect the objective seriousness of an offence. I have said, "appears to have rejected", because it has not been universally accepted. 97The Court in Yang proceeded to survey the NSW authorities after Muldrock, which have expressed conflicting views as to whether Muldrock has limited the range of factors to be considered in determining objective seriousness by excluding factors personal to the defendant. The Court in Yang found it unnecessary to decide that issue: at [37]. 98Muldrock was not the subject of submissions by the parties in the present case. Since Muldrock was specifically concerned with mental disability and since the Court of Criminal Appeal has not held that Muldrock has swept away the relevant principle in Way, I propose to adhere to the traditional view that the offender's state of mind and reasons for committing the offence are relevant to objective seriousness. Even if they are not, they remain relevant on sentence in an assessment of moral culpability: Yang at [30].

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CONSISTENCY IN SENTENCING 122A relevant consideration is the ascertainment of a general pattern of sentencing for offences such as the offence under consideration. The object is even-handedness in sentencing. 123This Court has only had occasion to consider sentences for an offence such as this on a limited number of occasions. 124In Environment Protection Authority v Wattke [2010] NSWLEC 24 each offender pleaded guilty to offences under s 115 of the POEO Act for the negligent disposal of some 4.8 megalitres of, inter alia, untreated septic and greasetrap waste, over a 5-6 month period. The offenders were a director and the manager, respectively, of the company involved. Pain J held at [102] that the offences were serious and towards the medium to upper end of the possible spectrum of sentencing given the objective circumstances, but noted that it was not the worst case because the environmental harm was largely confined to a single, albeit large, property. Pain J referred to both of the authorities set out below, noting in particular that the case of Environment Protection Authority v Gardner [1997] NSWLEC 212 was markedly more serious than the offences before her. Ultimately in respect of the s 115(1) charges her Honour made an order that each defendant undertake 460 hours of community service (pursuant to s 8 of the CSP Act) imposed a fine of $50,000 and ordered that each pay the prosecutor's costs. The prosecutor's legal costs and investigation costs were estimated to total approximately $140,000 and her Honour took those costs into account in setting the amount of the fine, citing Environment Protection Authority v Barnes [2006] NSWCCA 246: at [97]. 125Wattke was a more serious case than the present case because the material dumped (over a not dissimilar period) approached 5 million litres including into watercourses and creeks, the waste included highly toxic chemicals, and there was substantial actual harm of a lasting nature. 126In Environment Protection Authority v Pal [2009] NSWLEC 35, the defendant was a "landfill consultant", the principal of an earth-moving business, and also director of a haulage company. She pleaded guilty to two charges under s 115(1) of the POEO Act of negligently disposing of waste in a manner that harmed or was likely to harm the environment at two different properties. The defendant was engaged to undertake fill operations on two sites, and had full control of those sites. There was no cogent evidence of remorse. Sheahan J extended a 10 per cent discount for the plea and sentenced the offender to 450 hours community service, and a fine of $45,000, as well as ordering the offender pay the prosecutor's costs. In fixing the amount of the fine, his Honour took into account an assertion that the defendant was impecunious as well as the liability for the prosecutor's costs. 127In Environment Protection Authority v Gardner [1997] NSWLEC 212 (conviction) and Environment Protection Authority v Gardner [1997] NSWLEC 169 (sentencing), there was a more serious charge of wilful disposal of waste for activities that took place over many months. At trial the defendant was found guilty of the tier 1 offence of wilfully disposing of waste in a manner which was likely to harm the environment under s 5(1) of the Environmental Offences and Penalties Act 1989, which is identical to s 115(1) of the POEO Act. The defendant operated a caravan park and was discovered to have constructed a concealed system of by-pass plumbing in order to discharge effluent from the caravan park directly into the Karuah River, rather than incur costs for pump-out and road-tanker disposal as required by the Port Stephens Council. The illegal pumping and discharge into the river had occurred for a period of 118 weeks, and caused viral contamination to sediments near the outlet pipe, and posed a grave health risk to the community. In the judgment on sentence (Environment Protection Authority v Gardner [1997] NSWLEC 169) Lloyd J restated that he found beyond reasonable doubt that the defendant knew his activities were illegal and would harm or were likely to harm the environment. Evidence was adduced as to prior good character, and the defendant acknowledged his responsibility in the commission of the offence. There were multiple aggravating features in that the offence was not an isolated or single act of pollution, the offence was committed for financial gain, the defendant went to great lengths to conceal illegal activity, the harm affected the community as a whole and the defendant was aware of causing environmental harm by his actions but showed little remorse. Lloyd J considered a possible sentence of community service or periodic detention, but recognised that such orders suggest a strong degree of leniency and are outwardly less severe in denunciation of a crime as compared with a full time custodial sentence. Lloyd J sentenced the defendant to 12 months imprisonment with a non-parole period of nine months, to pay a penalty of $250,000 (the maximum fine at that time), and to pay the prosecutor's costs of $170,000.

[46]

COMMUNITY SERVICE ORDERS 128The Court's power to order a community service order is contained in s 8 of the CSP Act which provides: 8 Community service orders (1) Instead of imposing a sentence of imprisonment on an offender, a court may make a community service order directing the offender to perform community service work for a specified number of hours. (2) The number of hours specified in a community service order in relation to an offence must not exceed 500, or the number of hours prescribed by the regulations in respect of the class of offences to which the offence belongs, whichever is the lesser. (3) This section does not apply to an offender to whom the Children (Community Service Orders) Act 1987 applies. (4) This section is subject to the provisions of Part 7. 129The opening words of s 8(1) do not confine the availability of community service orders to cases which otherwise would be visited by the imposition of a sentence of imprisonment: R v El Masri [2005] NSWCCA 167 at [32]. 130Referring to s 8(2), the maximum number of hours of community service which may be imposed upon Mr Barnes is 500 hours, on the basis of the maximum custodial penalty imposed in respect of the offence under s 115 of the POEO Act. This is by reason of cl 23 of the Crimes (Sentencing Procedure) Regulation 2010 which provides: 23 Maximum number of hours of community service work For the purposes of section 8 (2) of the Act, the prescribed number of hours is: (a) 100, for offences for which the maximum term of imprisonment provided by law does not exceed 6 months, or (b) 200, for offences for which the maximum term of imprisonment provided by law exceeds 6 months but does not exceed 1 year, or (c) 500, for offences for which the maximum term of imprisonment provided by law exceeds 1 year. 131Section 8(4) indicates that the power is subject to the provisions of Part 7 (ss 84-93) of the CSP Act, which sets out the sentencing procedures for community services orders. Section 8(4) indicates that Part 7 applies in circumstances in which a court is considering, or has made, a community service order. 132Section 86, within Part 7, imposes restrictions on the court's power to make a community service order. In particular, the Court must have before it an "assessment report" (usually undertaken by a probation and parole officer) as to the suitability of the offender for such an order. Section 86 states: 86 Suitability of offender for community service work (1) A community service order may not be made with respect to an offender unless the court is satisfied: (a) that the offender is a suitable person for community service work, and (b) that it is appropriate in all of the circumstances that the offender be required to perform community service work, and (c) that arrangements exist in the area in which the offender resides or intends to reside for the offender to perform community service work, and (d) that community service work can be provided in accordance with those arrangements, and (e) (Repealed) (2) In deciding whether or not to make a community service order, the court must have regard to: (a) the contents of an assessment report on the offender, and (b) such evidence from a probation and parole officer as the court considers necessary for the purpose of deciding whether to make such an order. (3) A court may, for any reason it considers sufficient, decline to make a community service order despite the contents of an assessment report. (4) A court may make a community service order only if an assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person for community service work. (5) If a court makes a community service order in respect of an offender, the offender must, as soon as practicable (having regard to sections 92 and 93) after the order is made, sign an undertaking to comply with the offender's obligations under the order. If the offender refuses to sign such an undertaking, the offender may be brought before the court and the court may revoke the community service order and impose such other sentence as it considers appropriate. 133The assessment report to which the court must have regard, pursuant to s 86(2), is obtained by way of a referral, as set out in ss 88 -89: 88 Referral of offender for assessment Before a court sentences an offender, the court may refer the offender for assessment as to the suitability of the offender for community service work.

[49]

COSTS 136The Court is empowered to order an accused person to pay to the registrar of the Court, for payment to the prosecutor, such costs as the Court specifies or as may be determined under s 257G: s 257B Criminal Procedure Act 1986. The Court is also empowered, if it appears to the Court that a regulatory authority has reasonably incurred costs and expenses during the investigation of the offence, to order the offender to pay the regulatory authority those costs and expenses in such amount as is fixed by the Court: s 248(1) POEO Act. Two procedural differences between the two provisions may be noted. First, the former requires, but the latter does not, that payment be to the registrar of the Court. Secondly, the latter requires, whereas the former permits but does not require, that the Court fix the amount. 137The amount of costs can be taken into account as part of the consideration of the amount of the fine: Environment Protection Authority v Barnes [2006] NSWCCA 246. In that case the Court of Criminal Appeal regarded costs as part of the penalty because, in dismissing a Crown appeal against sentence, they said at [88]: As a matter of first impression, the fines imposed appeared unduly lenient, suggesting error. However, the fines were part only of the penalty. Mr Barnes was obliged to pay substantial costs. Her Honour made it clear that, but for that fact, the fines she would have imposed would have been much higher. 138The prosecutor and Mr Barnes agree that the amount of the prosecutor's costs and expenses total $175,000 comprising legal costs of $143,631 and investigation costs and expenses of $31,369, and that a costs order of some sort should be made against Mr Barnes. 139The prosecutor submits that since Mr Barnes alone was the person involved in the offending conduct and having regard to the evidence as to BMG's potential financial difficulty, Mr Barnes should be ordered to pay all the costs and that no cost order should be made against BMG. Mr Barnes submits that I should order him to pay half the costs and BMG the other half, and that I should deduct his costs liability against the fine that I would otherwise have ordered him to pay. I do not think that is appropriate. It would mean that the prosecutor would bear the risk of being unable to recover costs to the extent that either BMG or Mr Barnes became insolvent and was unable to pay its or his share of the costs. In fact, there is some evidence suggesting a risk of insolvency of BMG as a result of these proceedings. Given that the case and the evidence against BMG and against Mr Barnes are virtually identical, I think that they should be jointly and severally liable for the prosecutor's total costs in the sum of $175,000. In concluding that BMG should also have a liability for costs, I take into account that Mr Barnes is a 50 per cent shareholder of BMG and therefore is potentially affected financially to the extent of 50 per cent of any costs that it pays. I am also not persuaded that taking costs into consideration should necessarily equate to an equivalent deduction from the fine that would otherwise be imposed.

Environment Protection Authority v BMG Environmental Group Pty Ltd & Barnes

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Judgment (52 paragraphs)

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Cases Cited (18)

Cited By (3)