Harm
9 While air pollution can be transient and less lasting than some other types of pollution, incidents of air pollution have a cumulative effect on, and incrementally contribute to the gradual deterioration of, the environment. Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299.
10 Pollution of the type caused here takes the form of visible smoke or haze, plus increased toxicity in the atmosphere. These offences were committed at a well-known location in respect of which there is widespread community concern about pollution, and its consequences for the environment in general, and for both public and individual health.
11 The Environment Protection Authority expert Susan Quigley, to whose evidence no objection was taken nor challenge offered, stressed how urgent and important it is for the community to achieve a 25% reduction in the incidence of the oxides of nitrogen and of volatile organic hydrocarbons, both of which are disproportionately sourced from diesel vehicle emissions, when compared with petrol vehicle emissions. She opines that there is no safe level of human exposure to diesel emissions and that the use of diesel technology is increasing. Mr Heraghty (Managing Director of the defendant company) deposes to his understanding of these issues (see par 58 of his affidavit and the annexed scientific study).
12 Specifically, Ms Quigley says (in her affidavit 25 September 2009, par 27, as amended by affidavit 15 October 2009, par 2) that, when the subject offences were committed, the defendant's emissions:
" a. would be likely to contribute to air pollution in the Sydney region;
b. would be likely to contain oxides of nitrogen and fine particles;
c. would be likely to contribute to the formation of photochemical smog;
d. would be likely to react with other pollutants to form particles;
e. would be odorous, visibly offensive and contribute to haze levels in the Sydney region;
f. would contribute to soiling and premature deterioration of buildings in the Sydney region;
g. would likely absorb other potentially carcinogenic compounds such as polycyclic aromatic hydrocarbons;
h. may contribute to a range of respiratory, cardiovascular and cancer related morbidity and mortality as well as other health problems."
Foreseeability, control and practical measures
13 Judging by Mr Heraghty's own evidence, the defendant appears to have been well aware that many of its vehicles could infringe the standards required to minimise air pollution. It had at its disposal all the necessary authority, and the means, to achieve a better outcome. Yet it had over the years received many infringement notices, and been prosecuted five times, for smoky vehicle incidents, prior to these five incidents. Whatever remedial measures and testing, etc. it undertook prior to January 2007, did not prevent these incidents from occurring.
Reasons for the offence
14 These offences clearly resulted from insufficient relevant investment in the most environmentally efficient vehicles, maintenance programmes, and driver education. Mr Heraghty's evidence asserts the leadership role the defendant company seeks to take in its industry, and the court believes that such leadership requires optimum performance in the area of minimising emissions, even if at a large capital cost, and/or at the cost of foregone financial gains.
15 There is no evidence of any real change in the company's policy or performance since early 2007 to give the court confidence there is a significant reduction in the risk of further similar offences, despite Mr Alexander's assertion, from the bar table and in his written submissions, that the defendant has a clean record since March 2007.
Deterrence
16 Clearly both general and specific deterrence must inform the court's decision on penalty in this matter.
17 The heavy vehicle industry has to improve its performance, and so does this major player in it.
The defendant's record
18 The defendant admits to having paid 29 infringement notices for emission offences in the period 15 November 1991 to 3 October 2006. The last few of those notices imposed fines of $400 each. I note this factual evidence, conscious of s338 of the Criminal Procedure Act 1986.
19 However, more relevantly, the defendant acknowledges five court appearances on smoky vehicle charges between 8 November 2002 and 19 January 2007, concerning incidents which occurred between 28 October 1996 and 11 October 2005 (Exhibit P1). Three of those charges involved the same vehicle in a three month period, but none concerned any of the four vehicles involved in these five charges. On 6 March 2003 the company was twice fined $3,500, and on 19 January 2007 (in the period covered by the five present offences) the company was fined $8,000.
20 The court accepts that this record has to be viewed against the background of the size of the defendant's operation, its growth and details being fulsomely set out in Mr Heraghty's evidence - 60 trucks, 70,000 truck movements per annum, extensive rail infrastructure and other investment, and 166 employees.
Mitigating features of the case
21 The defendant relies on what Mr Alexander described as its institution of a "responsible system of monitoring and testing its trucks for compliance with the required standards dealing with truck emissions".
22 It also submits that, although it defended the charges, it ran the liability hearing in a constructive way and "did not waste valuable court time".
23 The defendant company states its remorse in Mr Heraghty's affidavit and apologises for its behaviour. It is a matter of regret that there is no really positive evidence of its efforts to rectify, in a lasting and ongoing way, the problems underlying these 2007 failures. The court can take judicial notice of concerns about air quality in the M5E tunnel, but they do not exculpate the company from its role in aggravating these problems.
24 The court notes and accepts Mr Heraghty's evidence about the company's intention to step up replacement of older vehicles, and its involvement in various relevant programmes run by the RTA and by the industry.
25 The court also notes the various statements of commendation and support for both Mr Heraghty and his company from a range of industry and community leaders and organisations.
26 This defendant is a large and successful enterprise, and it must pay its penalty for past infractions and do better in the future.
27 In terms of penalty both parties have referred me to the judgment of Bignold J in Environment Protection Authority v Bruce Panucci Transport Pty Ltd (2003) 131 LGERA 119, which predated the advent of Test Method 31, but involved the same offence and maximum penalty, a late plea of guilty, and observation of offending emissions for 20 seconds. His Honour was satisfied that the defendant would work harder in the future to ensure it did not reoffend.
28 His Honour imposed a sentence of 50% of the maximum and applied a discount of 25%.
29 Applying the principle of totality, and taking into account the imposts represented by a costs order and by orders I propose to make under Part 8.3, I have determined that the defendant should pay in each of the five matters a fine of $20,000 less a discount of 20%, meaning total fines of $80,000. I will not impose any higher fine in respect of the second offence by vehicle UMA 803.
30 The defendant has agreed to the making of several of the orders the prosecutor seeks under Part 8.3. Orders 7, 8, 9 and 10 of what follows were not opposed, but the defendant resists: