[189] There is a need to ensure that the appellant is made accountable for its actions and is adequately punished for the offences it has committed. This required the Court to ensure that the punishment for each offence adequately reflects the objective seriousness of the offences, whilst also taking account of the subjective circumstances of the appellant.
138 The purposes for which a Court may impose a sentence includes deterring the defendant from committing a similar offence in the future (s 3A(b) of the CSPA).
139 In relation to the s 126 offence, Mr Ghossayn submitted that there were extenuating circumstances surrounding the commission of the offence, namely, the delay in completing Cell 2A. In relation to the s 144 offence, Mr Ghossayn submitted that there was only about four days of waste taken after the relevant notice. Finally, in relation to both offences he submitted that it was costly for him to have a stockpile.
140 In respect of the practical measures that he could have taken in relation to the sub-surface fires, Mr Ghossayn submitted that there was no cross examination that he could have done anything more in this regard. On the contrary, he submitted, he did everything he could to avoid and eliminate them.
141 The defendant submitted that there needed to be some evidence enlivening the specific deterrence and in the present case there was none. In the alternative, the defendant submitted that the question of individual deterrence ought to be given very little weight as there was nothing to suggest that there was an ongoing problem with the defendant or the company, especially given the latter was in liquidation.
142 I am satisfied that individual deterrence remains a consideration in relation to Mr Ghossayn. First, while he has made some efforts to analyse and gain insight into his offending (he conceded that Cell 2A should have been finished earlier and that he was derelict in relation to timetabling), his propensity to blame others for the offences remains. Second, the defendant continues to participate in the operation and management of a number of other companies operating within the demolition, building, construction and waste industries. Specific deterrence is required to ensure that the defendant conducts the business of these companies without harm to the environment and in compliance with the regulatory regime.
Evenhandedness
143 A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the courts for offences such as the offence in question (Gittany at [179]-[183]).
144 The proper approach is for the Court to look at (Gittany at [182]):
[182] … whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: R v Morgan (1993) 70 A Crim R 368 at 371 and Capral Aluminium Ltd v Workcover Authority of NSW (2000) 49 NSWLR 610 at 641.
145 Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion (Axer at 365 and Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312).
146 Consistency in sentencing is an important object in a rational and fair system of criminal justice (Markarian at 390). Regard should be had to comparable cases to see if they disclose a general pattern of sentencing (Camilleri's at 701-702). However, sometimes it is difficult with environmental crimes to obtain guidance from decisions where sentences have been imposed for the same type of offence. This is because of the wide range of facts and circumstances comprising environmental offences and the need to tailor sentences to the individual circumstances of each case (Fulton Hogan at [197]).
147 Sentencing statistics for criminal matters dealt with by the Land and Environment Court are now available in graphical form on the Judicial Information Research System ('JIRS'). I sought to obtain JIRS statistics but the sample was of such limited breadth that little utility could be gained from them (Dodds v R [2009] NSWCCA 191 at [4]).
Section 126 Offence
148 In relation to the s 126 offence, the prosecutor took the Court in detail to three decisions by way of comparison. First, the decision of Coastal Recycled Cooking Oils Pty Limited concerned two offences for contravening a condition to maintain and operate all plant and equipment installed at the premises in proper and efficient manner contained in the defendant company's environmental protection licence. Pain J found that the odour resulting from the contravention was of limited duration in relation to both offences. For the March offence, a complaint was made at around 9.00am and the odour had dissipated by 1.00pm. For the May offence, the odour lasted for one and a half hours. In relation to both offences the defendant took prompt action to resolve the problem.
149 Pain J considered that the March offence warranted dismissal pursuant to the application of s 10 of the CSPA. Her Honour considered the offence trivial, the defendant was of good character, had worked to remedy the problems with its wastewater treatment system, including spending substantial amounts of money ($635,509.30) remedying the problems with the system, and there were extenuating circumstances in that an employee, who knew better, left the top off the balance tank after cleaning it. However, her Honour considered the second offence to be more serious. The odour was described by a neighbour as "absolutely putrid". Nonetheless, her Honour found that there was minimal environmental impact and the defendant's culpability was low. For the May offence, the Court considered that a penalty of $30,000 was appropriate, which was reduced to $18,000 in light of mitigating matters. The company was ordered to pay the $18,000 to an environmental project pursuant to s 250 of the POEOA (the maximum penalty was $1,000,000).
150 Second, in Environment Protection Authority v Burrangong Meat Processors Pty Ltd [2003] NSWLEC 102 the company, which operated an abattoir in Young, was charged with four offences. The first offence involved a breach of s 64(1) of the POEOA, namely, that it contravened a condition of its environmental protection licence in that it failed to operate its sewerage treatment system in a proper and efficient manner by overloading the system with effluent. This offence involved an excess of effluent being pumped through the system which produced offensive odours detectable in North Young. The other three offences involved a contravention of s 129(1) of the POEOA on the basis that the defendant was the occupier of premises at which a scheduled activity was carried out under the authority of a licence and which caused an offensive odour to emanate from the premises.
151 Pain J found that whilst there was no evidence of medical treatment being required, considerable discomfort was caused to the residents' amenity by the harm, although it was not long lasting. Pain J considered that the defendant had a high level of culpability. There were practical measures available but which were not implemented in a context where the defendant increased production knowing the effluent system was inadequate. Her Honour also found that the offences were foreseeable (referring to the fact that some two years prior to the offences the defendant was or should have been aware of the problems caused by its operation). The factors in mitigation included an early plea of guilty and the defendant's agreement to pay $930,000 to undertake works aimed at minimising pollution. Pain J considered that a penalty of $50,000 (the maximum penalty for each of the four offences was $250,000) was warranted for each offence, which was reduced having regard to mitigating matters and the totality principle as follows:
(a) October offence: $32,500;
(b) first November offence: $16,250;
(c) second November offence: $2,000; and
(d) third November offence: $8,125.
152 Third, in Environment Protection Authority v Caltex Refineries (NSW) Pty Limited [2006] NSWLEC 335 the defendant company operated a large fuel refinery at Kurnell. It was charged with causing air pollution contrary to s 124(b) of the POEOA between 17 and 21 October 2004. The offence involved the overflow of a tank which resulted in the overflow of a waste by product from the refinery, which had a rotten egg odour. A high level alarm system did not detect the overflow. As a result, black smoke was emitted from the refinery's furnace. The smoke lasted nine minutes and action was taken immediately. Thirty one people made complaints, which included symptoms of nausea, headaches and diarrhoea. Since the incident, the defendant had taken action to ensure that it did not reoccur.
153 The Court found that while the harm was reasonably serious it was short term with no evidence of any long lasting impacts or that medical assistance was sought by any of the complainants. The Court found that there were practical measures which could have been taken to prevent the incident, the harm was foreseeable and that the defendant had inadequate risk assessment processes in place. The Court also took into account mitigating factors including an early guilty plea, the expression of contrition by the refinery's manager, the defendant's cooperation and that it responded quickly to the incident, cleaned up promptly and voluntarily implemented an environmental management system. The Court therefore considered a penalty of $110,000 was appropriate, which was reduced to $77,000 (the maximum penalty was $250,000).
154 The defendant submitted that the above decisions all concerned behaviour far more culpable than that engaged by himself and that an appropriate penalty ought to be less than that imposed in Coastal Recycled Cooking Oils.
155 While there is some merit in this submission, the evidence discloses significant points of distinction from Coastal Recycled Cooking Oils. First, in the present case, despite the one complaint during the charge period, the air pollution was more persistent; second, it cannot be said that the defendant took prompt action to resolve the problem of the emissions; and third, unlike Coastal Recycled Cooking Oils, the defendant had knowledge of the breach of s 126 while the contravention was occurring.
Section 144 Offence
156 In relation to the s 144 offence, the defendant looked at the criteria for s 10 of the CSPA, namely, the character of the offence and its triviality and submitted that the application of s 10 and the imposition of a bond would be suitable in the circumstances of the commission of the offence and would more adequately fulfil any need for specific deterrence.
157 In support, the defendant relied on the decision in Thorneloe v Filipowski (2001) 52 NSWLR 60 (at [146]-[158] and see the recent discussion in Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 at [142]-[151]). In that case the Court of Criminal Appeal held that where there is a comparatively minor pollution by a first offender and where it is difficult to identify any effective step which the offender could have done that did not require virtual perfection, these considerations should be given weight in any application to have the charge dismissed under s 10 of the CSPA. The defendant argued that on the facts of the present case, he could not have taken any effective step absent perfection to avert the breach of s 144.
158 I disagree. It is true that, according to his evidence, Mr Ghossayn entrusted the task of communicating the notice of suspension to Mr Saab, to Ms Wang who did not carry out his instructions. However, not only were these persons employees of K&G, over whom the defendant had control (cf Environment Protection Authority v Werris Creek Coal Pty Ltd; Environment Protection Authority v Holley [2009] NSWLEC 124 at [142]), but because the defendant was aware of the urgency and seriousness of the notice it was beholden upon him to ensure that K&G's staff complied with its contents. In short, the defendant should have been more vigilant in ensuring that no further waste was accepted onto the site.
159 Moreover, that waste was deposited after the service of the notice of suspension was not a singular event, unlike the pollution event which occurred in Filipowski (where the Master of a vessel was successfully prosecuted as a result of a small amount of oil discharged into the waters of Botany Bay caused by the failure of the chief officer to adequately monitor a faulty gauge during the loading of fuel). Rather, between 16 and 21 February 2007 approximately 57 truck loads of waste were disposed of at the site. This comprised approximately 686 tonnes of waste for which the defendant received $29,000. This constitutes, in my view, a more than "trivial" offence (s 10(3)(b) of the CSPA).
160 Furthermore, as discussed above, considerably less than perfection was required to ensure that the suspension notice was communicated to, and therefore complied with by Mr Saab. Accordingly, I do not consider that the facts surrounding the commission of the s 144 offence warrant the application of s 10 of the CSPA.
161 The prosecutor specifically referred the Court by way of comparison to the following three cases in respect of contraventions against s 144 of the POEOA. First, in Hogan Jagot J considered a fine of $20,000 to be appropriate, which was discounted to $18,000 in light of mitigating factors (the maximum penalty was $250,000). The case involved a contravention of s 144 of the POEOA by the defendant, as a person concerned with the management of a corporation, Riverstone Earthmoving, by virtue of s 169 of the POEOA. The defendant used land as a waste facility without lawful authority from 12 May to 21 June 2006 following a notice of suspension being issued by the EPA. Matters considered by Jagot J as relevant to sentence included:
(a) although the defendant was general manager of the corporation and concerned with its management, he had no financial interest in the corporation (the sole director and shareholder was another person);