Environment Protection Authority v Davis

CASES CITED: Waldon v Hensler (1987) 163 CLR 561

DATES OF HEARING: 03/02/2005 EX TEMPORE JUDGMENT DATE : 02/03/2005

PROSECUTOR: Ms J Coburn (solicitor) SOLICITOR: Stephen Garrett

DEFENDANT: Ms M L Sneddon (barrister) SOLICITORS: Hannigans

JUDGMENT:

• 1 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ENVIRONMENT PROTECTION AUTHORITY v DAVIS [2005] NSWLEC 643

EX TEMPORE JUDGMENT 1 His Honour: The defendant, Geoffrey James Davis, pleads guilty to an offence against s 143(1)(a) of the Protection of the Environment Operations Act 1997 in that he transported waste to a place that could not lawfully be used as a waste facility for that waste.

2 The relevant facts may be briefly described and in this respect the Court has been assisted by an agreed statement of facts.

3 The offence occurred on or about 20 February 2004 at or near Uki in the State of New South Wales. The offence arose out of the discharge of septic tank waste onto the ground at the Uki recreation ground on the banks of the Tweed River. I should note that Mr Davis has pleaded guilty to this offence and did so at the earliest opportunity and has at all relevant times fully co-operated with the prosecutor.

4 The waste was septic tank waste that had been collected from two residential properties on that day. The defendant owns and operates a business known as Kyogle Pumping Services. As part of that business the defendant pumps out septic tanks at residential premises. He holds an environmental protection licence for the transport of waste. The licence stipulates that he is authorised to transport waste in a particular vehicle. That vehicle is a truck that has a tank on the tray which holds approximately 4,000 litres of liquid.

5 The defendant had consent to dispose of the septic tank waste into the council's sewer at Kyogle. In May 2003 he was told that he could no longer dispose of septic tank waste into the council's sewerage system. Accordingly, in November 2003 an interim arrangement involving Kyogle Council and Rouse Water in Lismore was made whereby the defendant could discharge waste at the Rouse water facility for six months at a reduced disposal rate, the six-month period expiring in May 2004.

6 At about 10 am on 20 February 2004 an officer then of the Department of Infrastructure Planning and Natural Resources, Mr Peter Boyd, was driving along the Kyogle Road into the village of Uki. He saw the defendant's truck in the recreation ground close to the banks of the river. He approached the defendant who said that he was having a morning tea break. According to the affidavit of Mr Boyd he, Mr Boyd, said: "I work in river management. In a creek survey in December 2003 I came across what appeared to be some dumped sewage in Burnetts Creek adjacent to the Sutherland Way near Woodenbong". 7 He then asked the defendant, "Do you know of any operators who might do that sort of thing?". The defendant said, "One operator in Kyogle is known to do that sort of thing but no way I would do it".

8 Mr Boyd then walked around the truck and saw dark brown coloured liquid dripping from a pipe underneath the truck and on to the ground and down the river bank. He then approached the defendant and asked, "What do you think has gone on next to your truck and down the river bank?". The defendant replied, "Yeah, okay, you got me". Mr Boyd then said, "What have you done here?". The defendant replied, "I didn't want to take the load over the hill to Kyogle, thought I'd offload some here, I was having some morning tea and then I thought it was too big to go over 55 kilometres to Kyogle". He said he had picked it from two houses and estimated about 2,000 litres from each house. The capacity of the truck was 4,000 litres.

9 Mr Boyd saw the defendant dip a stick into the opening of the tank and the defendant then said, "I think it's about half full". Mr Boyd said, "So how much sewage do you think you've offloaded down the river bank?". The defendant replied, "About 2,000 litres".

10 Mr Boyd also says that there was an obvious path of sewage from directly below the truck to a dry section of river channel below. The drier section of river channel with sewage in it was about 1 metre away from the flowing river channel.

11 On or about 25 February 2004, a significant rainfall event occurred in the region which caused the river level in the Tweed River to rise by 2.1 metres. This increase in river water level made it likely that the waste seen by Mr Boyd in the dry section of river channel would have mixed with the river water with the potential to cause environmental harm to the Tweed River. The Tweed River is the source of water supply for the town of Uki.

12 On 30 April 2004, the defendant participated in a record of interview in which he admitted that he had discharged septic tank waste on to the recreation ground at Uki and down the hill. The defendant stated on that occasion that he believed the amount of waste discharged was more likely to be in the quantity of 1,000 to 1,500 litres rather than the 2,000 litres agreed by him at the time of the offence.

13 At the interview the defendant was asked if he had read his environmental protection licence to which he replied, "I have read the licence two and a half years ago, probably not thoroughly but, yeah, I know it's a no-no"

14 In the record of interview the defendant explained what happened in the following terms: "When I pulled up and had morning tea I pulled up under the shade of a tree. I had morning tea. I got out of the truck. It was a hot day. I walked around. For some unknown reason I walked over to the edge of where there's just rubbish there and I had this brain explosion, I keep calling it the brain explosion and I moved the truck over about 3 feet from where I was originally parked and discharged the tap for probably 30 seconds, walked to the rear of the vehicle and that's when Peter Boyd walked up". 15 The evidence discloses that the site where the discharge of the septic tank waste occurred is about 400 metres upstream from the inlet point for the water treatment plant at Uki. The Uki water treatment plant draws water for domestic purposes in Uki directly from the Tweed River. The expert evidence which I accept is that septic tanks provide preliminary treatment for the waste water stream. They do not remove nutrients and the waste water is not disinfected and it is highly infectious.

16 In the present case the domestic septic tank waste that was discharged from the truck and was seen in the dry section of river channel on 20 February 2004 was very likely to have been in contact with and mixed with the river water on 25 February 2004 due to the substantial rainfall and rise in the river level. The domestic septic tank waste thus discharged would have had the potential to cause environmental harm in the Tweed River.

17 I have noted that the defendant has co-operated fully with the prosecutor. He has expressed his apologies in a written statement tendered to the Court. He says that he had been under a lot of pressure from various local authorities in obtaining a suitable disposal site for septic tank effluent and the cost of disposing effluent has escalated resulting in a downturn in his business. This in turn has caused a severe drop in income. He says that he has been extremely upset and depressed over the incident and assures the Court that this kind of thing would not occur again.

18 There is also a reference from Mr Gary J Noonan who is an accountant who states that he is aware of the charges against the defendant. He has know the defendant for twenty years in both a professional and personal capacity. The defendant is well respected and is community-minded and is regarded highly by his peers. The defendant has four young children aged twelve, ten, eight and three and no doubt he and his wife have to bear the costs of raising those children.

19 The defendant's income is not great. He conducts the business in partnership with his wife and the last years for which tax returns are available the business showed a profit of just under $20,000. In addition to this modest income the defendant and his wife own an investment property which is negatively geared and shows a negative return annually of just under $7,000. They live on a rural property which is subject to a mortgage of $160,000, on which they grow berries and limes. This is an activity which in common with many rural activities is very much dependent upon the climate and returned, I understand, last year some $10,000. The defendant has some $10,000 in savings but this will be more than swallowed up by the legal costs that he has to pay not only to the prosecutor but to his own legal representatives.

20 I should note that the defendant has agreed to pay the prosecutor's costs in the sum of $9,000 and, of course, will have to bear his own costs which will probably be in a similar amount.

21 Section 241(1) of the Protection of the Environment Operations Act sets out the matters that the Court is to take into consideration in imposing a penalty for an offence under the Act. Firstly, the Court must consider the extent of harm caused or likely to be caused to the environment by the commission of the offence.

22 In the present case there is no evidence of actual environmental harm. The harm was only potential. Nevertheless, the risks were considerable. The Tweed River, as I have noted, is the source of water supply for the town of Uki. Septic tank waste is highly infectious and it must be accepted that the risk was great. It is fortunate for the defendant that there is no evidence of actual environmental harm.

23 The next matter to consider in imposing a penalty is whether any practical measures were taken to prevent, control, abate or mitigate that harm. In the present case the defendant was fully in charge of the operations and he could and should have disposed of the septic tank waste at the approved facility. It is clear that in doing what he did he was solely responsible for his actions.

24 The next consideration is the extent to which the defendant could have reasonably foreseen the harm that he caused or was likely to cause as a result of his actions. I accept his explanation in the record of the record of interview that he had a "brain explosion", as he put it. Nevertheless, he deliberately moved the truck closer to the bank and opened the valve and allowed the waste to discharge on to the ground. It would have been self- evident to him of the potential harm that could have been caused by that act.

25 The next relevant factor is the extent to which the person who committed the offence had control over the causes which gave rise to the offence. In the present case it is the defendant and the defendant alone who had complete control over the vehicle and tank and thus over the cause of the offence.

26 The primary consideration in sentencing is the objective gravity or seriousness of the offence. A number of factors highlight the seriousness of the offence in this instance. These might be described as aggravating factors. In the present case there is the quantity of waste involved - in the range of 1,500 to 2,000 litres. There is the deliberate nature of the offence. There is the fact that the defendant had consent to dispose of the waste at an approved disposal point. There is the fact that the defendant in doing what he did was saving himself both time and money, money saved in not having to travel to Lismore and pay for the tipping. And there is the nature of the waste itself and the fact that the Tweed River here is a source of drinking water.

27 General deterrence is also a major consideration in the imposition of penalties. The penalty must be sufficient to compel attention to others so that others are discouraged from committing like offences. For strict liability offences, however, care must be taken to ensure that the penalty imposed does not cause this particular defendant to shoulder an unfair burden of community education: see Waldon v Hensler (1987) 163 CLR 561 at 570.

28 There is also the question of specific deterrence which aims to deter the offender from repeating the offence. In the present case I am satisfied that there is no such risk. In other words, I am satisfied Mr Davis is not likely to be a repeat offender.

29 The principle of even-handedness requires the Court to consider any pattern in sentencing for the particular offence in order to pursue a consistent approach in the imposition of penalties. There is always, however, a difficulty in applying this principle because of the wide divergence of facts and circumstances in each case. There are a number of subjective and mitigating factors relevant in the present case. These include the fact that the defendant has fully co-operated with the prosecutor; has no previous convictions under the legislation administered by the prosecutor; has expressed his contrition for his actions and has apologised to the Court for them; and has entered an early plea of guilty in the proceedings.

30 The Court is also required to consider the means of the defendant in fixing the amount of fine: Fines Act 1996, s 6. I have noted briefly the defendant's financial position. It must be said that the defendant's income is not great and that his means are equally not great, more particularly so in the light of the legal costs that he has agreed to pay and will be obliged to pay.

31 The maximum penalty for this offence fixed by the legislature is $120,000. That is a reflection by the legislature of the seriousness by which Parliament regards offences of this nature. However, I accept the submission of Ms M L Sneddon, who appears for the defendant, that the penalty should be at the low end of the range. The purpose of imposing penalties is principally twofold: firstly, to ensure that the offender is adequately punished and, secondly, deterrence for similar offences.

32 Having regard in particular to the defendant's modest means to pay any fine as required by the Fines Act, I consider that an appropriate penalty in this case is $8,000. I am prepared to discount this sum having regard to all relevant matters by $3,000, to $5,000. Accordingly, the Court make the following orders: (1) The defendant is formally convicted of the offence as charged. (2) The defendant is fined an amount of $5,000. (3) The defendant is ordered to pay the prosecutor's costs of $9,000. (4) The exhibits may be returned. I hereby certify that the preceding 32 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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