Environment Protection Authority v Djura

Land and Environment Court (NSW)|2012-05-29|Before: Biscoe J, Mr P

Judgment 1The defendant Dr Peter Djura has pleaded guilty to offences under ss 57(1) and 48(1)(a) of the Contaminated Land Management Act 1997 (CLM Act) and is now being sentenced. 2Section 57(1) provides: An individual must not make any representation, or cause or allow any representation to be made, to the effect that the individual is accredited under this Part if he or she is not so accredited or while his or her accreditation is under suspension. 3Section 48(1)(a) provides: (1) An individual must not: (a) carry out a statutory site audit, or ... if the individual is not accredited under this Part or while his or her accreditation is under suspension. 4The maximum penalty for each offence is $66,000. 5The defendant entered a plea of guilty to both offences on 16 March 2012, being the first available opportunity. 6The defendant is the sole director and shareholder of a company, Pacific Meditech Pty Ltd (Pacific Meditech), through which he runs a small hazardous material consultancy business. He is not and has never been an accredited site auditor under the CLM Act. In May 2011, the defendant purported to carry out a statutory site audit of potentially contaminated land. Only accredited site auditors may carry out statutory site audits. The defendant also signed a site audit statement, in which he falsely claimed to be an accredited site auditor. 7In summary, the main submissions of the prosecutor are that: (a)the offences had the potential to undermine the integrity of the accredited site auditor scheme in place under the CLM Act, and (b)at the time he carried out the statutory site audit and signed the site audit statement, the defendant must have been aware that only an accredited site auditor could do so and that he was not so accredited.

Soil sampling on the Land 14Ms Chen, who oversaw the works on the Land, engaged Joe Ahmed of Union Engineering Pacific Group Pty Ltd (Union Engineering) as the site manager. At the request of Mr Ahmed, Pacific Meditech (including the defendant) carried out an asbestos assessment and air monitoring on the land in October 2010. This work did not involve soil sampling. Pacific Meditech was paid $1,650 by Union Engineering for this work. 15In November 2010, again at Mr Ahmed's request, Pacific Meditech was engaged by Union Engineering to conduct a site investigation for contamination by asbestos on the Land. Pacific Meditech carried out a visual inspection for asbestos and took soil samples from the Land for the purpose of testing for asbestos. Pacific Meditech prepared a report titled Site Audit and Soil Inspection, dated 19 November 2010 and provided it to Mr Ahmed. The November 2010 report was submitted to Council by either Mr Ahmed or Ms Chen. The November 2010 report was not signed by the defendant. In the opinion of the relevant Council officers, the November 2010 report did not satisfy the requirements of condition 32 of the Consent because it was not a site audit statement. 16In December 2010, Union Engineering received an email from Council stating that "A Detailed Site Investigation shall be carried out by a suitably qualified and experienced environmental consultant in accordance with the Department of Environment, Climate Change and Water contaminated sites guidelines. The report must be submitted to Council prior to commencement of construction works". 17In January 2011, Union Engineering requested Pacific Meditech to carry out site soil analysis using the samples taken by Pacific Meditech from the Land in November 2010. 18In January 2011, the defendant sent a number of the soil samples to MGT LabMark laboratories for testing, since Pacific Meditech did not have the capability to conduct the testing. MGT LabMark prepared a report dated 27 January 2011. 19In late January 2011 a copy of the November 2010 report was updated to include a copy of the MGT LabMark January 2011 report (the Updated Report). A copy of the Updated Report was provided to Union Engineering.

Meetings with Council and consultants 20On 22 February 2011, a meeting was held at Council to discuss the requirements of the Consent. In attendance were Ms Chen, Mr Ahmed and Council officers. The defendant did not attend. The Council officers gave Ms Chen and Mr Ahmed a list of accredited site auditors. 21Following this meeting, Mr Ahmed contacted the defendant and informed him that the Updated Report was not accepted by Council and that Council required a report from an accredited site auditor. 22The defendant then contacted Council. In late February 2011, he went to Council and met with Jeffery Lee, Environmental Health Coordinator at Council. Mr Lee informed the defendant of the requirement for a site audit by an accredited site auditor. At this meeting the defendant was provided with a blank Site Audit Statement. This was the first time that the defendant became aware that a site audit from an accredited site auditor was a requirement. At this meeting, Mr Lee also informed the defendant that Council might accept a detailed site investigation report from Pacific Meditech if it was prepared in accordance with EPA Guidelines. I interpolate that this information influenced the defendant's subsequent conduct. However, Mr Lee did not tell the defendant that Council would accept a site audit or site audit statement from a person who was not an accredited site auditor. 23On 9 March 2011 the defendant attended a meeting with Kylie Lloyd of environmental consultants WSP Environmental Pty Ltd (WSP). Ms Lloyd was an accredited site auditor. This meeting was also attended by Ms Chen, Mr Ahmed and Rebeka Hall of WSP. Ms Lloyd explained the work involved in a site audit by an accredited site auditor, including the need to follow the Guidelines. In the course of that discussion, the following was said (in words to this effect): Ms Lloyd said: Once the site investigation works have been conducted, a Site Auditor needs to review the works to ensure that they follow the NSW Department of Environment, Climate Change and Water approved guidelines showing that the site has been adequately characterised and remediated, if required. Once a validation report is provided showing the site is suitable, only then can a Site Audit Report and Site Audit Statement be prepared meeting Council's requirements. Only an accredited site auditor can sign off a site under the CLM Act. The defendant said: I think we can handle this project but we will need some assistance from someone who is EPA qualified. 24Ms Lloyd gave a quote of about $12,000 to $15,000 for WSP to conduct the site audit, although the defendant's recollection was that it was in the range of $17,000 to $20,000. 25After the meeting with WSP, the defendant discussed the situation with both Ms Chen and Mr Ahmed. In the course of the discussion the defendant said to Ms Chen (in words to this effect): I will have a think about it and see what we can and can't do. I think we need to redo the soil sampling according to EPA requirements by drilling to a depth of one metre and the samples be placed in special packaging in order to be sent to the NATA accredited laboratory. If I do this and rewrite the report we might be able to save you some money because the fellow at Council indicated to me that Council may accept an unaccredited report. In an interview with EPA officers Roberto Pupo and Arminda Ryan on 25 August 2011, the defendant further described that conversation as follows: ... I said to both of them [Ms Chen and Mr Ahmed], "You will need to take this team [WSP] on and pay the $17,000 - $20,000 to have the job redone," and she said to me, "I don't have the money to do that. I can't afford it." I said, "Well, the last thing we can do is we can re-assess the site, follow the guidelines to the best ability that we can, and then review the report", and that's exactly what we did. As I said to you, I still haven't obtained one penny from it. ... To be honest, I was the man in the middle. I had a lady that owned the property and a company that said, "Listen, we need you to do the job", and both of them were saying, "We don't have any $20,000 to do the entire job", and to be honest, I was the man in the middle. And I had coffee with Daisy and she was very concerned with pricing. So I said, "Daisy, look, you don't have to pay me a penny until that report is finished, right, and then accredited." I actually said that to her and she said, "Well, look, what we can do then is we'll review the report to your best abilities, send it back in and see what happens".

The site audit and the site audit statement 26The defendant was provided by Council with a blank Site Audit Statement. He downloaded various documents from the internet, including EPA Victoria soil sampling quality indicators and a guideline on the duty to report contamination under the CLM Act. 27On or about 24 May 2011, the defendant filled out a Site Audit Statement, numbered "PACMED 001" (the PACMED SAS). He also prepared two documents dated 25 May 2011: a one page document titled "Site audit summary" (the Site Audit Summary) and an 18 page document titled "Pacific Meditech Site Investigation - 1 West Lane, Carlton, New South Wales" (the Site Investigation Report. 28Part 3 of the PACMED SAS is headed "Auditor's declaration". The following text appears under that heading: I am accredited as a site auditor by the NSW Environment Protection Authority under the Contaminated Land Management Act 1997 (Accreditation No. .....). ... I am aware that there are penalties under the Contaminated Land Management Act 1997 for wilfully making false or misleading statements. 29The declaration was signed by the defendant and dated 24 May 2011. I note that the accreditation number was left blank. 30On 1 June 2011, the defendant provided the PACMED SAS, the Site Audit Summary and the Site Investigation Report to Council. 31The signing of the PACMED SAS constitutes the offence of falsely holding out to be an accredited site auditor under s 57(1) of the CLM Act. 32The preparation of the Site Audit Summary, Site Investigation Report and PACMED SAS and the submission of those documents to Council constitutes the offence of carrying out a statutory site audit when not accredited under s 48(1)(a) of the CLM Act.

Pacific Meditech and the defendant 33Pacific Meditech started carrying out hazardous material audits in about 2002. Such audits generally involve taking samples and photographs at premises such as schools, colleges and houses, in respect of toxic substances and chemicals such as asbestos, synthetic mineral fibres, lead and PCBs. The samples are tested, an assessment is made of the site and a report prepared. 34At the time of the offences, Pacific Meditech had four employees. Currently the defendant is the only employee of that company and intends to cease trading as of 30 June 2012. 35Since January 2002, the defendant has held an environment protection licence issued by the EPA in relation to the transportation of waste, including asbestos waste. 36The defendant is a highly qualified and experienced environmental scientist. He is held in high regard by his peers. He has done environment related work all his professional life including for such agencies as Beach Watch (now affiliated with the EPA). 37In late 2008 the defendant suffered a debilitating illness which has led to permanent and moderate impairment in cognitive function. On 4 March 2009, the Guardianship Tribunal made guardianship and financial management orders in respect of the defendant. Both orders came to an end on 21 August 2009 and the defendant has not been the subject of any such orders since then but his illness has had a significant impact both on his work and the financial viability of Pacific Meditech. 38The defendant currently earns approximately $60,000 per annum. He intends to close down Pacific Meditech by 30 June 2012 and he will experience a significant decline in his income once Pacific Meditech ceases trading. 39Pacific Meditech does not have significant assets. 40The defendant owns a home unit at Parramatta which is his principal place of residence. He has a half interest in the laboratory Pacific Meditech occupies at Pendle Hill. He has limited superannuation. He has few other assets. 41The defendant has no prior convictions. Pacific Meditech has never been fined or prosecuted in relation to any offences, including environmental offences. 42The defendant is a person of good character. He is a life governor and gold member of the Parramatta Police Citizens Youth Club. 43Pacific Meditech has paid $6,300 to MGT LabMark for the soil sample analysis and has not been reimbursed for those costs by either Ms Chen or Mr Ahmed. Neither Pacific Meditech nor the defendant have been paid by Ms Chen or Mr Ahmed for the site investigation work in respect of the Land. Apart from the initial asbestos air monitoring work at the Land, neither Pacific Meditech nor the defendant had previously carried out any work for Ms Chen and Mr Ahmed.

Explanation for Defendant's Conduct 44At the Council meeting in February 2011, the defendant became aware that a site audit from an accredited site auditor was a requirement. However, he apparently left this meeting with a belief, undoubtedly mistaken, based on what he was told by Mr Lee, that Council might accept a report from Pacific Meditech provided it could do the work: see [21] above. I think that this, together with pressure from the Owners and Union Engineering, provides at least part of the explanation as to why in March 2011 the defendant, in an attempt to assist the Owners to defray the cost of a site audit, foolishly offered to have a go at doing the report to see if what he did would be accepted by Council: see [24] above. It is also submitted on behalf of the defendant, as a factor explaining his conduct, that he was not cognisant that he was committing offences. I am unable to accept the submission without qualification. The auditor's declaration that he signed stated that he was accredited as a site auditor and that he was aware that there are penalties under the CLM Act for wilfully making false or misleading statements. However, I am inclined to think that the cognitive function impairment, which he had earlier suffered, clouded his judgment.

PURPOSES OF SENTENCING 45The purposes of sentencing are set out s 3A of the Crimes (Sentencing Procedure) Act 1999 (Sentencing Act), as follows: 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, (g) to recognise the harm done to the victim of the crime and the community. 46The purposes in paragraphs (a), (b), (e) and (f) are relevant in the present case.

Statutory context 47The Court may take into account the statutory context in which the offence was committed in determining the objective seriousness of the offence. The objects of the CLM Act are set out in s 3, which provides: (1) The general object of this Act is to establish a process for investigating and (where appropriate) remediating land that the EPA considers to be contaminated significantly enough to require regulation under Division 2 of Part 3. (2) Particular objects of this Act are: (a) to set out accountabilities for managing contamination if the EPA considers the contamination is significant enough to require regulation under Division 2 of Part 3; and (b) to set out the role of the EPA in the assessment of contamination and the supervision of the investigation and management of contaminated sites, and (c) to provide for the accreditation of site auditors of contaminated land to ensure appropriate standards of auditing in the management of contaminated land, and (d) to ensure that contaminated land is managed with regard to the principles of ecologically sustainable development. 48Of particular relevance is the object in s 3(2)(c). The purpose of the accreditation system set out in Part 4 of the CLM Act is to ensure that appropriate standards of contaminated land auditing are maintained. The site audit scheme is also set out in Part 4. The CLM Act establishes a rigorous scheme for accreditation of auditors, which includes an examination and an interview before the accreditation panel. This indicates the importance which Parliament attaches to accreditation as a site auditor. 49Site audits may be used to determine the extent of contamination of land, whether the land is suitable for specific uses and what remediation is necessary. The remediation and use of contaminated land has obvious importance for human health, in particular where, for example, it is proposed to use the land for residential purposes. 50There is a need to protect the integrity of the accredited site auditor scheme. The scheme is in place to ensure that risks to human health and the environment from contaminated land are properly identified and appropriate steps taken to remediate that land. If persons who are not appropriately qualified purport to carry out site audits, then the integrity of that system is undermined and there is a risk of harm through inappropriate use of land. The defendant's conduct undermined the integrity of the system.

Maximum penalty 51As stated, the maximum penalty for each offences is $66,000: ss 57(1) and 48(1)(a) of the CLM Act. The maximum penalty reflects the seriousness of the offence.

Relevant factors under the CLM Act 52Section 97 of the CLM Act sets out matters to be considered in imposing a penalty for offences under that Act: (1) In imposing a penalty for an offence against this Act or the regulations, a court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm already caused or likely to be caused by the commission of the offence, (b) the degree of risk that harm will be caused by the commission of the offence, (c) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (d) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence, (e) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (f) 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. 53This is not a case where the offences have caused environmental harm. The matters in paragraphs (a) to (d) of s 97(1) are therefore not relevant. Nor is paragraph (f) relevant. In respect of paragraph (e), the defendant had control of the causes that gave rise to the offences. He was the sole director of Pacific Meditech. He had dealings with the Owners of the Land and with Council. The defendant prepared the site audit summary, the site investigation report and signed the site audit statement.

Measures available to avoid committing the offences 54Even though there was no environmental harm, it is relevant to consider whether there were practical measures that could have been taken to have avoided committing the offence. The defendant could have avoided committing the offences by simply not signing the PACMED SAS and not submitting this together with the Site Audit Summary and Site Investigation Report to Council.

Relevant factors under the Sentencing Act 55Section 21A(1) of the Sentencing Act provides: In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. 56One of the mitigating factors is a plea of guilty: s 21A(3)(k), which has to be read with s 22. 57Section 21A(2)(o) provides that it is an aggravating factor that an offence was committed for financial gain. As the prosecutor submits, this factor is relevant because the defendant committed the offences in the course of carrying out consultancy work for which he anticipated being paid. However, I do not think that this motivated him to commit the offences. Factors explaining his conduct have been discussed above at [47]. The fact that he was not paid and that he incurred significant financial costs of $6,300 to a third party for laboratory testing for which he has not been reimbursed should be taken into account.

Is a penalty notice option relevant? 58The defendant submits that under s 21A(1)(c) of the Sentencing Act, as a "factor that affects the relative seriousness of the offence", the Court must take into account with respect to the s 48(1) offence that the prosecution could have elected to deal with that offence by way of a penalty notice issued pursuant to the provisions of s 92A of the CLM Act and cl 10 of the Contaminated Land Management Regulation 2008 (CLM Regulation). If that had happened, the prescribed penalty for a penalty notice that could have been imposed was the sum of $750: see Schedule 1 CLM Regulation. In support of its submission, the defendant cites Environment Protection Authority v Patrick Distribution Pty Ltd [2006] NSWLEC 123, 144 LGERA 210 at [44] - [46]. I do not accept the submission, and consider that the authority cited is distinguishable, for the following reasons. 59There is a line of authority that where there is another and less punitive offence which could have been charged and was as appropriate or even more appropriate to the facts alleged, this should be taken into account as a factor that affects the relative seriousness of the offence. In R v Liang (1995) 82 A Crim R 39, an appeal was lodged against what was alleged to have been a manifestly excessive sentence, based on a charge brought under Victorian legislation for fraud against a Commonwealth corporation. The Victorian legislation was based on Commonwealth legislation but had a heavier maximum penalty. It was argued on appeal that the Commonwealth legislation was more appropriate, since it was against a Commonwealth authority that the crime had taken place. In the majority, Winneke P held at 44 that: although it is for the prosecuting authority in its absolute discretion to determine which particular charge it will lay against an accused person, it is none the less relevant and proper for the judge on sentence to take into account as a relevant sentencing principle the fact that there was another and less punitive offence which not only could have been charged but indeed was as appropriate or even more appropriate to the facts alleged against the accused. 60Winneke P held that the sentence was excessive, and imposed a lesser one. His Honour applied the decision of Scott v Cameron (1980) 26 SASR 321. That case involved social security fraud under the Crimes Act 1914 (Cth). The maximum penalty under that legislation was imprisonment for two years. The charges could have been bought under the Social Services Act 1947 (Cth), under which the maximum penalty was a fine of $100 or imprisonment for six months. White J held that the court's discretion in sentencing is not to be fettered by the prosecutor's choice of charge "at least in those cases where the facts are such that the prosecution could have been equally appropriately brought under one section or the other": at 325. 61In Fairfield City Council v Cavasinni Constructions Pty Ltd [2005] NSWLEC 187 there was a prosecution under s 76A(1)(b) of the EPA Act, which states that development that needs consent must not be carried out unless the development has development consent. The penalty provided was up to 10,000 penalty units ($1.1million). Section 81A(2) of the EPA Act provides that the erection of a building must not be commenced until a construction certificate has been issued for that work. The maximum penalty at the time was 300 penalty units ($33,000). Talbot J noted that the facts equally supported the lesser charge which the prosecutor had elected not to pursue and that the matter was one of fairness to the defendant: at [17]. Ultimately, his Honour held that because of the concession of the prosecutor, the Court could take into account the lesser penalty, without finally deciding as a matter of law whether the Court was entitled to do so: at [21]. 62In Environment Protection Authority v Patrick Distribution Pty Ltd Pain J, after reviewing the above authorities, held that under s 21A(1)(c) of the Sentencing Act it was appropriate to take into account the existence of a lesser charge and penalty as a relevant factor in determining the relative seriousness of the offence and the penalty: at [46]. 63R v McEachran [2006] VSCA 290, 15 VR 615 is consistent with this line of authority. There is authority to the contrary: R v El-Helou [2010] NSWCCA 111, 267 ALR 734 where the point was briefly addressed without reference to authority at [90]. It appears that the issue is about to be revisited by the Victorian Court of Appeal which granted leave to amend the grounds of appeal to raise this point in Rasimi v The Queen [2011] VSCA 365. 64I consider that the line of authority of which Patrick Distribution is representative (even if the line has not been disturbed) is distinguishable and does not support the defendant's submission that regard should be had to the penalty notice amount of $750 for a s 48(1) offence if the prosecution had elected to proceed by way of a penalty notice. 65Section 92A of the CLM Act provides for penalty notices as follows: 92A Penalty notices (1) An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against this Act or the regulations, being an offence prescribed by the regulations as a penalty notice offence. (2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person can pay, within the time and to the person specified in the notice, the amount of the penalty prescribed by the regulations for the offence if dealt with under this section. (3) A penalty notice may be served personally or by post. (4) If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence. (5) Payment under this section is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence. (5A) Despite subsection (4), an authorised officer, whether or not the officer by whom the penalty notice has been served: (a) may withdraw the notice within 28 days after the date on which the notice was served, and (b) must withdraw the notice immediately if directed to do so by the EPA. (5B) The following provisions have effect in relation to an alleged offence if a penalty notice for the alleged offence is withdrawn in accordance with subsection (5A): (a) the amount that was payable under the notice ceases to be payable, (b) any amount that has been paid under the notice is repayable to the person by whom it was paid, (c) further proceedings in respect of the alleged offence may be taken against any person (including the person on whom the notice was served) as if the notice had never been served. (6) The regulations may: (a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and (b) prescribe the amount of penalty payable for the offence if dealt with under this section, and (c) prescribe different amounts of penalties for different offences or classes of offences. (7) The amount of a penalty prescribed under this section for an offence is not to exceed the maximum amount of penalty that could be imposed for the offence by a court. (8) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences. (9) In this section, authorised officer means a person of a class prescribed by the regulations who is authorised in writing by the Chairperson of the EPA as an authorised officer for the purposes of this section. 66Clause 10 of the CLM Regulation provides: 10 Penalty notices For the purposes of section 92A of the Act: (a) each offence arising under a provision specified in Column 1 of Schedule 1 is prescribed as a penalty notice offence, and (b) the prescribed penalty for such an offence is the amount specified in relation to the offence in Column 2 of Schedule 1 (in respect of an individual) or in Column 3 of Schedule 1 (in respect of a corporation). 67Relevantly, Schedule 1 prescribes an offence against s 48(1) - but not s 57(1) - as a penalty notice offence for which it prescribes a penalty of $750. 68The Fines Act 1996 Part 3 and Schedule 1 provide the machinery for the penalty notice system under the CLM Act and many other Acts, including enforcement of penalty notices by orders of the State Debt Recovery Office. Section 19(1) summarises the penalty notice process as follows: (a) Breach of statutory provision A person is alleged to have committed an offence under a statutory provision for which a penalty notice may be issued (see Division 2 and Schedule 1). (a1) Determine whether to give official caution rather than penalty notice The appropriate officer determines whether to issue a penalty notice or whether an official caution would be more appropriate (see Division 1A). (b) Issue of penalty notice If it is determined that it is not appropriate to give an official caution, a penalty notice is issued under the relevant statutory provision. The notice requires payment of a specified monetary penalty, unless the person alleged to have committed the offence elects to have the matter dealt with by a court (see Division 2 and Schedule 1). (b1) Internal review A reviewing agency may conduct a review of the decision to issue the penalty notice. If a review is conducted, the agency may withdraw the penalty notice or confirm the decision and issue a penalty reminder notice (see Division 2A). (c) Penalty reminder notice If the penalty is not paid, a penalty reminder notice is issued. The person who is alleged to have committed the offence may elect to have the matter dealt with by a court (see Division 3). (d) Enforcement order If payment of the specified monetary penalty is not made and the person does not elect to have the matter dealt with by a court, a penalty notice enforcement order may be made against the person (see Division 4). If the person does not pay the amount (including enforcement costs) within 28 days, enforcement action authorised by this Act may be taken in the same way as action may be taken for the enforcement of a fine imposed on a person after a court hearing for the offence (see Part 4). (e) Withdrawal of enforcement order A penalty notice enforcement order may be withdrawn if an error has been made (see Division 4). (f) Annulment of enforcement order A penalty notice enforcement order may, on application, be annulled by the State Debt Recovery Office or, if the Office refuses the application, by the Local Court. If the order is annulled, the alleged offence is to be heard and determined by the Local Court (see Division 5). 69Section 37 provides: If a person duly elects to have the matter dealt with by a court, proceedings against the person in respect of the offence may be taken as if a penalty notice or penalty reminder notice had not been issued. 70The purpose of penalty notice provisions, judging by the relatively small amounts that they require to be paid, is to provide a simple, administrative procedure for punishing offences which are perceived to be of low objective seriousness, as an alternative to launching a prosecution. 71In the present case, no penalty notice was issued to the defendant for an offence against s 48(1) of the CLM Act. I cannot see that it is relevant to take into account the mere fact that there was a discretion to issue such a notice and its prescribed amount. Further, there is no penalty notice provision for an offence against s 57(1) of the CLM Act, with which the defendant is also charged. 72Is the amount of a penalty notice relevant in a different case where a penalty notice is issued but not paid and instead the defendant elects to have the matter dealt with in court where he pleads guilty? The authorities are divided. It was held to be irrelevant in Ebacarb Pty Ltd v Environment Protection Authority [2003] NSWLEC 411 at [8] per Talbot J; Sutherland Shire Council v Upper Class Developments Pty Ltd [2003] NSWLEC 414 at [37] per Pain J who was influenced by the terms of s 37(1) of the Fines Act; and Cameron v Eurobodalla Shire Council [2006] NSWLEC 47, 146 LGERA 349 at [35] per Preston CJ. However, the amount of an issued penalty notice was held to be relevant in Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 at [4] - [6] per Lloyd J. His Honour considered that the word "may" rather than "shall" in s 37 suggested that the penalty notice was not necessarily an irrelevant consideration, but on the contrary it may be one of a number of considerations that the Court may take into account. In the present case, it is unnecessary to express an opinion on this question since no penalty notice was issued.

Conclusion on objective seriousness 73In my opinion, taking into account all of the above matters, the offence is in the low range of objective seriousness.

DETERRENCE 74General deterrence is important. In light of the fact these are the defendant's first offences and that the defendant proposes to discontinue his consultancy business in June 2012, there is no need for specific deterrence.

SUBJECTIVE FACTORS 75Relevant mitigating subjective factors listed in ss 21A(3) and 22 of the Sentencing Act include the following:

the offence was not part of a planned or organised criminal activity;
the defendant does not have any record of previous convictions;
the defendant is a person of good character;
the plea of guilty by the defendant was entered at the earliest available opportunity. Accordingly, the defendant is entitled to a 25 per cent discount on penalty;
the defendant has shown remorse and has provided evidence that he has accepted responsibility for his actions; and
the defendant cooperated with the prosecutor in the course of the investigation.

Means to pay 76The defendant suffers significant health issues. An illness he suffered in 2008 has led to a diagnosis of permanent and moderate impairment in cognitive function. The defendant's illness and its aftermath has had a debilitating effect on the viability of the Pacific Meditech business to the point where the defendant is the only remaining member of staff and intends to shut the business. The defendant has also recently been diagnosed with prostate cancer and is to undergo a procedure this Wednesday with respect to this condition. 77The defendant's financial position is best described as vulnerable. Although he owns the home unit in which he resides and a half interest in the commercial premises at Pendle Hill, he has no other significant assets. His income of $60,000 per annum is to be substantially lowered by the closure of Pacific Meditech. I conclude that his means to pay even a relatively low fine on top of the prosecutor's costs and his own legal costs is affected by these matters, and should be taken into account on penalty.

Equal justice in sentencing? 78Contrary to the defendant's submission, I do not think it is relevant that the Owners and Union Engineering in whose name and for whose benefit the offending documents were prepared have not been charged by the prosecution (even assuming that there was an offence with which they could have been charged).

COMPARABLE CASES 79According to the prosecutor's records and the JIRS statistics website, these are the first prosecutions instituted for offences under the CLM Act. 80The following false or misleading information cases were identified by the prosecutor, but I think that they are of marginal comparability. The cases of Environment Protection Authority v Peters [2006] NSWLEC 612, 153 LGERA 238, and Environment Protection Authority v Hargraves (No 2) [2003] NSWLEC 15, 124 LGERA 57 involved the provision of false and misleading information to the EPA, although in both cases the provision of such information occurred in the course of an investigation by the EPA into possible offences by the defendant. 81In Environment Protection Authority v Peters, the defendant submitted to the EPA certificates relating to the use of a certain pesticide in termite control. The certificates falsely stated the type and rate of pesticide used by the defendant's company. Jagot J found that 300 to 400 certificates were systematically falsified in order to conceal the fact that the relevant pesticide had been used in breach of the Pesticides Act 1999. The certificates were provided in response to a statutory notice to provide information and documents, served by the EPA on the defendant. Her Honour found that the offence fell at the upper end of the range and fined the defendant $80,000, from a maximum of $120,000. The defendant in the present case, by submitting the relevant documents to Council, was not trying to conceal misconduct by him, as was the case with the defendant in EPA v Peters. 82In Environment Protection Authority v Hargraves (No 2), the defendant produced to the prosecutor a number of dockets relating to a landfill site run by her company. The dockets contained false information concerning the quantity of waste received at the landfill. By falsifying that information, the defendant's company was able to reduce substantially the fees it was to pay to the local council, which owned the landfill. The dockets were provided to the prosecutor in the course of an investigation. Lloyd J convicted the defendant of two offences of furnishing information to the prosecutor in purported compliance with Chapter 7 of the Protection of the Environment Operations Act 1997, knowing that it was false or misleading in a material respect. His Honour fined the defendant $15,000 for each offence (from a maximum of $120,000).

COSTS 83The defendant is to pay the prosecutor's costs. One working day before the sentencing hearing, the prosecutor sought the defendant's agreement that the amount of those costs is $12,000. The defendant reasonably requires more time to form an assessment as to whether this amount is reasonable. I propose to take the amount sought by the prosecutor into account on penalty.

TOTALITY 84In R v Holder [1983] 3 NSWLR 245 at 260 Street CJ described the principle of totality as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. 85The principle of totality is a relevant factor in this case. The two offences are closely linked. Both took place at around the same time and generally involved the same course of conduct. I propose to apportion the total fine reflecting overall criminality equally between the two offences.

PENALTY 86In my opinion, the appropriate penalty is a fine. I would assess the fine at $10,000 before discounting by 25 per cent for the early plea of guilty. Accordingly, I propose to fine the defendant the total amount of $7,500, which I will apportion equally between the two offences.

ORDERS 87The orders of the Court are as follows: (1)The defendant is convicted of the two offences as charged. (2)The defendant is fined the sum of $3,750 for each offence. (3)The defendant is to pay the prosecutor's costs as agreed or assessed. (4)The exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2012

Social Services Act 1947(Cth)

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