Environment Protection Authority v Buchanan

Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 R v Barri [2004] NSWCCA 221 CASES CITED: R v Burnes [2007] NSWSC 298 R v Falls [2004] NSWCCA 335 R v Palu [2002] NSWCCA 381

TEXTS CITED: Judicial Commission of New South Wales, Sentencing Bench Book, (Release 10, October 2008) [1-455]

DATES OF HEARING: 25 November 2007 26 November 2007

PROSECUTOR Ms R Pepper with Ms L Wilson SOLICITOR LEGAL REPRESENTATIVES: Department of Environment and Climate Change DEFENDANT Mr J Rowe SOLICITOR Dib Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

50074 of 2007 Environment Protection Authority v Buchanan

EX TEMPORE JUDGMENT 1 Her Honour: The Defendant has pleaded guilty to a charge that she failed to comply with a condition of an environmental protection licence under s 64(1) of the Protection of the Environment Operations Act 1997 (the POEO Act) in relation to premises at St Mary's in Sydney, New South Wales (the premises).

2 A dispute between the parties has arisen concerning whether additional evidence can be tendered by the Prosecutor in addition to the Statement of Agreed Facts signed by the parties on 20 November 2008 and Statement of Agreed Environmental Harm signed by the parties on 24 November 2008 tendered by the Prosecutor at the commencement of this sentence hearing. The evidence in dispute is two affidavits of Dr Bone dated 13 December 2007 and 23 July 2008. He provided detailed reports to the Prosecutor about the state of the premises following his inspection on 27 April 2007. That date is outside the offence dates of 29 September 2006 to 12 April 2007. His evidence is sought to be relied on by the Prosecutor because it supplements (I note extensively) what is in both agreed statements of fact. The agreement on environmental harm is in general terms but admits potential for significant harm, inter alia.

3 I do not have before me all the extensive correspondence and emails between the parties over the many months this matter has been prepared for the sentence hearing. The Prosecutor's counsel said that it was always the Prosecutor's intention to rely on Dr Bone's evidence if a fulsome agreement on relevant facts particularly environmental harm was not obtained, relying on a letter to the Defendant's solicitor of 18 November 2008. The Defendant's solicitor made clear in a letter to the Prosecutor also dated 18 November 2008 that by agreeing to the statements of agreed facts there would be no agreement to additional evidence being called by the Prosecutor. 4 The Defendant's counsel also said in Court that the Defendant had no notice of what additional evidence the Prosecutor would seek to rely on before the hearing. That was disputed by the Prosecutor whose counsel maintained it had always been the position that it would rely on additional material. The Prosecutor maintained that it has been clear for several months what additional material would be relied upon. I do not need to resolve that issue.

5 In submissions the Defendant's counsel referred to the role of the Prosecutor as being to provide assistance and to ensure that the Court does not fall into appellable error. He also referred to rule 71 of the New South Wales Barristers' Rules (made under s 57A of the Legal Profession Act 1987 by the New South Wales Bar Council), and rule A71 of the Revised Professional Conduct and Practice Rules 1995 (made by the Council of the Law Society of New South Wales under s 57B of the Legal Profession Act 1987) which state that a Prosecutor must not seek to persuade the Court to impose a vindictive sentence or a sentence of a particular magnitude. Counsel also referred to a number of Court of Criminal Appeal decisions which have expressed concern about reliance on additional material in addition to a statement of agreed facts in sentence hearings, per Howie J (Levine and Hidden JJ concurring) R v Palu [2002] NSWCCA 381 at [21], Greg James J in R v Barri [2004] NSWCCA 221 at [57], Dunford J in R v Falls [2004] NSWCCA 335 at [3]-[5] and Adams J at [37]. The Defendant argued that as both the statements of agreed fact "cover the field" in dealing comprehensively with every aspect of the offence there is no necessity for any supplementary material to be provided. 6 I note the Prosecutor had little time to prepare for argument as this issue arose without notice at the hearing. The Prosecutor argued there was no practice rule suggesting that additional evidence could not be relied on and it was entirely appropriate to supplement the Statement of Agreed Facts in this case with Dr Bone's affidavits to give the Court an adequate picture of the offence. The Prosecutor referred to Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 and Fullerton J in R v Burnes [2007] NSWSC 298. I note that there was no statement of agreed facts in Pace Farm Eggs, which concerned the award of costs in that circumstance and that case does not assist in this matter. Finding 7 In R v Palu Howie J (Levine and Hidden JJ concurring) criticised the Crown for failing to assist the Court in the proper presentation of the evidence where facts are in dispute and said, inter alia at [21]: … If a statement of facts is to be tendered, it should both support the charge for which the offender is to be sentenced and accord with the offence charged. It should not contain facts that would aggravate the offence in breach of the principle in The Queen v De Simoni (1981) 147 CLR 383. If it purports to be an agreed statement of facts so that it is intended to provide the factual basis upon which the parties wish the court to sentence the offender, the facts should be sufficient to permit the court to exercise its discretion and the Crown should not tender other material which might supplement or contradict the facts set out in the agreed statement. If other material is placed before the court which relates to the facts of the offence, then the parties should understand that the court is not bound by the tendered statement of facts or any agreement made between the parties as to the basis upon which the offender is to be sentenced: Altham (1992) 62 A Crim R 126; Chow v DPP , above at 606. All too frequently, or so it seems to me, uncertainty, confusion and, sometimes, error arises because of the failure of the parties, and in particular the Crown, to clearly identify the material upon which the facts of the matter are to be gleaned by the sentencing court. So it was in the present case. 8 In R v Barri Greg James J said in obiter at [57] - [58]: I add for myself, that the practice that was adopted in this case before the sentencing judge of tendering an agreed statement of facts by consent and the Crown then tendering volumes of miscellaneous statements and other material, which material on an analysis may well contain material additional to or contradictory of that in the agreed statement of facts, is likely to lead, as here, to challenges.

The practice is entirely inconvenient. It is not to be expected that a busy sentencing judge with a busy list will have any opportunity to read through that material and reconcile it with the agreed statement of facts, nor, as here and in many other cases, are submissions made on the volumes of material such as to assist the trial judge to detect and draw to the attention of the parties any conflict. If the material is not to be read and used to ascertain the facts, it should not be tendered. If it is, it should accord with the agreed facts or if not, the judge assisted with an explanation as to how the difference might be reconciled. This is not to say that the Crown should not responsibly agree to succinct statements of facts encompassing the matters that could have been proved in evidence illustrating the offender's criminality. But it is to say that the tender of volumes of primary material can operate to inconvenience a proper sentencing process, embarrass the result, or subvert appropriate admissions and a plea. It is to be hoped this practice will not be followed in future. 9 In R v Falls Dunford J said at [3], [5], [37] and [38]: 3 In particular, I agree with Howie J that the sentencing proceedings were unsatisfactory because of the tender by the Crown in addition to the Statement of Agreed Facts, of other materials, some of which were contradictory of such Agreed Facts …

5 I agree with Howie J that by setting out in his Remarks on Sentence the facts virtually in accordance with the Agreed Statement of Facts, the learned sentencing judge indicated that he was sentencing the applicant on the basis of those facts and disregarding the evidence of the applicant in so far as it was inconsistent with, or additional to, those Agreed Facts, and implicitly rejecting the propositions that his only purpose was to have a conversation with her and that he withdrew from the attempt for any reason other than that the complainant screamed and ran away.

37 Where, as here, there is an agreed statement of facts placed before the sentencing judge, and there is also material either inconsistent with, or in amplification of, some aspect of the facts in that statement, the sentencing judge should not act upon that material without having brought it to the attention of the parties during the course of submissions so that the parties can deal with it. If the judge determines to sentence the offender on a factual basis other than in accordance with the agreed statement of facts, clearly the judge should refer to that matter during the course of the remarks on sentence. But if the sentencing judge determines to sentence the offender on the basis of the agreed facts, ignoring the material inconsistent with, or in amplification of those facts, then in my view there is no requirement for the judge to refer to the other material either during submissions or in the course of the remarks. Neither party can complain if the sentencing judge acts upon their formal agreement as to what are the relevant facts.

39 … I also believe it to be unsatisfactory for an offender to give evidence as to the facts and circumstances of the offence where the Crown, with the consent of the defence, has tendered what purports to be an agreed statement of facts. Either the document tendered is an agreed factual basis upon which the court is to sentence the offender or it is not. … In R v Falls the defendant was seeking to tender additional facts. 10 In addition to the cases referred to by the Defendant's counsel, the Judicial Commission of New South Wales, Sentencing Bench Book, (Release 10, October 2008) [1-455] states: The wisdom of tendering the entire Crown brief in addition to the agreed statement of facts where a charge bargain has occurred has been doubted by the court in R v H [2005] NSWCCA 282 at [58] and R v Bakewell (unrep, 27/6/96, NSWCCA). This is because it runs a risk that the sentencer will take into account facts that will aggravate the offence contrary to the De Simoni principle. There is also a danger that the judge will breach the De Simoni principle where the parties choose to supplement an agreed statement of facts with additional material: R v FV [2006] NSWCCA 237 at [41]. In FV the complainant's statement was used as an elaboration of the agreed statement of facts. The court held it provided an insight into her ordeal and supplemented, rather than contradicted, the agreed statement. However, if a judge decides to assign a higher degree of culpability to the offender than disclosed in the agreed facts, he or she should give the offender an opportunity to address the judge's view: R v Uzabeaga (2000) 119 A Crim R 452 at [38]. …

11 The utilitarian value of guilty pleas is well recognised because the cost of a disputed trial is avoided. That value is further enhanced by the use of statements of agreed facts. It enables an efficient use of the Court and parties' time by conducting sentence hearings on the basis of those agreed facts with a view to avoiding a hearing on disputed facts in a contested hearing as if no guilty plea had been entered.

12 This Court as in other courts with criminal jurisdiction encourages the use of statements of agreed facts in sentence hearings but these are not compulsory. It is also not uncommon for additional material not referred to in a statement of agreed facts to be tendered and relied on by either party. While concern is raised by the Court of Criminal Appeal, for example in the obiter comments of Greg James J in Barri, about the use of additional material there is no rule which says that material is not admissible. Whether that material can or should be admitted is a matter for the sentencing judge to determine. The cases relied on by the Prosecutor do not deal directly with these issues. The Court of Criminal Appeal decisions referred to by the Defendant's counsel provide some assistance. The decision of Fullerton J in R v Burnes at [27] relied on by the Prosecutor does not provide additional assistance for these particular circumstances. 13 The justification for Dr Bone's evidence, according to the Prosecutor, is that it is for the Court's assistance in fully understanding the issues relevant to sentence on environmental harm. Whether material which supplements what is agreed in both general and specific terms in the statements of agreed facts is necessary depends on the particular circumstances of each case. In this matter the Defendant argued that she has entered into the statements of agreed fact on the basis that would be the entirety of the evidence. For that reason she has made important admissions in both statements of agreed facts. I agree that is clear from reading the statements. To allow the Prosecutor to adduce additional material to supplement that Statement of Agreed Facts undermines the integrity of the negotiated process in arriving at the two statements of agreed facts in this case. I accept that it is also prejudicial to the Defendant to allow in Dr Bone's material in these circumstances.

14 The preparation of any statement of agreed facts is generally by negotiation and it is desirable that most, if not all, of the essential matters which are to be the basis for sentence would be included. From the Defendant's point of view, having made serious admissions in this case as part of that negotiation process to then discover that the Prosecutor wishes to supplement the Statement of Agreed Facts with additional material that does have the potential in my view to aggravate what it is the Statement of Agreed Facts is unfair. That additional, extensive, material could potentially lead me into error as identified in the Court of Criminal Appeal cases referred to by the Defendant and in R v FV as referred to in the Sentencing Bench Book because of the potential for aggravation of the offence contrary to the statements of agreed fact. In the particular circumstances of this case I will exercise my discretion to exclude Dr Bone's two affidavits. 15 Statements of agreed facts are to be encouraged and the contention of the Prosecutor's counsel that not to allow additional material in this matter may have a "chilling" effect on their use would be of concern if that came to pass. Given the role of the Prosecutor outlined above by the Defendant, no doubt accepted by the Prosecutor, I do not consider that outcome is likely for a Prosecutor mindful of its duties as Prosecutor. As already stated, ultimately each case must depend on its own facts in any event. I am not intending to make any statement of general principle concerning statements of agreed facts and whether reliance on additional material is appropriate in making this determination.

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