Environment Protection Authority v Hanna - [2013] NSWLEC 41 - NSWLEC 2013 case summary — Zoe

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Environment Protection Authority v Hanna

[2013] NSWLEC 41

Land and Environment Court (NSW)|2013-02-19|Before: Pain J, Craig J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2013-02-19

Before

Pain J, Craig J

Catchwords

(1986) 161 CLR 98 Chief Executive Officer, Department of Environment and Conservation v Szulc (No 2) [2011] WASC 315
(2006) 153 LGERA 126 Environment Protection Authority v Waste Recycling Processing Corporation [2006] NSWLEC 419
(2006) 148 LGERA 299 Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19
(1999) 198 CLR 435 Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210 R v J C E [2000] NSWCCA 498

Source

Original judgment source is linked above.

Catchwords

(1986) 161 CLR 98 Chief Executive Officer, Department of Environment and Conservation v Szulc (No 2) [2011] WASC 315(2006) 153 LGERA 126 Environment Protection Authority v Waste Recycling Processing Corporation [2006] NSWLEC 419(2006) 148 LGERA 299 Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19(1999) 198 CLR 435 Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210 R v J C E [2000] NSWCCA 498

Judgment (30 paragraphs)

[1]

Principal judgment Parties: Environment Protection Authority (Prosecutor) Dib Hanna Abdallah Hanna (Defendant) Representation: Mr A Giles (Prosecutor) Mr R Pickering (Defendant) Office of Environment and Heritage (Prosecutor) CK Lawyers (Defendant) File Number(s): 40811 of 2010

[2]

[4]

History of Class 4 proceedings in the Land and Environment Court 7On 7 October 2010, the EPA commenced Class 4 proceedings against Mr Hanna, seeking orders to restrain Mr Hanna from transporting waste to a place that could not lawfully be used as a waste facility for that waste. 8On 6 December 2010, Craig J made the following order: 1. An order that until further order, the Respondent be restrained from using a tipper truck with the NSW registration plate 'BF 57 FN' or 'BC 09 MO' or 'AH 40 GW' to transport building or excavation waste, comprising any of the following: clay, soil, brick, concrete, glass, tiles, timber or asbestos, to any place for which no development consent under the Environmental Planning and Assessment Act or environment protection licence under the Protection of the Environment Operations Act is held when such consent or licence is required for the receipt of that waste. 9On 12 January 2011, Sheahan J amended the order dated 6 December 2010 so that it read as follows: 1. An order that until further order, the Respondent be restrained from using a tipper truck with the NSW registration plate 'BF 57 FN' or 'BC 09 MO' or 'BH 39 RQ' to transport building or excavation waste, comprising any of the following: clay, soil, brick, concrete, glass, tiles, timber or asbestos, to any place for which no development consent under the Environmental Planning and Assessment Act or environment protection licence under the Protection of the Environment Operations Act is held when such consent or licence is required for the receipt of that waste. 10On 21 March 2011, Craig J made the following order by consent in these proceedings: 1. An order that the Respondent be restrained from transporting building or excavation waste, comprising any of the following: clay, soil, brick, concrete, glass, tiles, timber or asbestos, to any place for which no development consent under the Environmental Planning and Assessment Act or environment protection licence under the Protection of the Environment Operations Act is held when such consent or licence is required for the receipt of that waste. 11Mr Hanna and his then legal representative, Mr Farah of Farah Lawyers, were present in Court on 21 March 2011 for the making of the order by Craig J. 12Mr Hanna has pleaded guilty to a charge that in breach of the order, on 5 April 2012, he transported and deposited eight loads of waste containing asbestos fragments to the property known as 890 Henry Lawson Drive, Picnic Point when there was no environmental protection licence held for the receipt of that waste at those premises and such a licence was required to receive that waste.

[7]

5 April 2012: Transportation and dumping of waste at 890 Henry Lawson Drive 15On 5 April 2012, Mr Hanna gained entry to 890 Henry Lawson Drive, Picnic Point, by using a long, thin implement to loosen a clamp securing two fence panels together and forcing the fence open. Mr Hanna then entered the property and deposited a total of eight loads of waste containing asbestos as follows: (a)At 6:42am, Mr Hanna arrived at 890 Henry Lawson Drive driving the truck. The truck stopped and Mr Hanna got out of the truck, carrying an item in his left hand that was long, thin and straight. Mr Hanna gained entry to 890 Henry Lawson Drive, then reversed the truck into 890 Henry Lawson Drive, deposited a load of waste and left the property a short time later. (b)At 7:57am, Mr Hanna arrived at 890 Henry Lawson Drive driving the truck. Mr Hanna reversed the truck into 890 Henry Lawson Drive, deposited a load of waste and left the property a short time later. (c)At 8:41am, Mr Hanna arrived at 890 Henry Lawson Drive driving the truck. Mr Hanna reversed the truck into 890 Henry Lawson Drive, deposited a load of waste and left the property a short time later. (d)At 9:23am, Mr Hanna arrived at 890 Henry Lawson Drive driving the truck. Mr Hanna reversed the truck into 890 Henry Lawson Drive, deposited a load of waste and left the property a short time later. (e)At 10:24am, Mr Hanna arrived at 890 Henry Lawson Drive driving the truck. Mr Hanna reversed the truck into 890 Henry Lawson Drive, deposited a load of waste and left the property a short time later. (f)At 11:17am, Mr Hanna arrived at 890 Henry Lawson Drive driving the truck. Mr Hanna reversed the truck into 890 Henry Lawson Drive, deposited a load of waste and left the property a short time later. (g)At 12:00pm, Mr Hanna arrived at 890 Henry Lawson Drive driving the truck. Mr Hanna reversed the truck into 890 Henry Lawson Drive, deposited a load of waste and left the property a short time later. (h)At 1:30pm, Mr Hanna arrived at 890 Henry Lawson Drive driving the truck. Mr Hanna reversed the truck into 890 Henry Lawson Drive, deposited a load of waste and left the property a short time later. 16Mr Hanna also commenced reversing the truck into 890 Henry Lawson Drive at about 12:30pm on 5 April 2012, however when a four wheel drive vehicle towing a caravan approached and parked at the front of the property, Mr Hanna stopped reversing and immediately drove away from the property. 17The incidents detailed above were recorded by CCTV camera and provided to Bankstown City Council and the EPA by Mr Gerbino and Mr Daher.

[12]

Environmental Harm 27Mr Hanna unlawfully dumped eight loads of asbestos waste at 890 Henry Lawson Drive. 28The unlawful dumping of waste containing asbestos at a facility that is not licensed to accept asbestos waste has the potential to seriously affect human health. This risk is heightened in the circumstances of this matter, where the asbestos waste was dumped in a residential area. 29The NSW Health Department fact sheet entitled "Asbestos and Health Risks" sets out the possible dangers of asbestos, and states that: Breathing in asbestos fibres can cause asbestosis, lung cancer and mesothelioma....Asbestos fibres can pose a risk to health if airborne, as inhalation is the main way that asbestos enters the body...If asbestos fibres are in a stable material such as bonded in asbestos-cement sheeting such as fibro and in good condition they pose little health risk. However where fibro or other bonded asbestos sheeting is broken, damaged or mishandled fibres can become loose and airborne posing a risk to health. Disturbing or removing it unsafely can create a hazard. 30The WorkCover NSW "Working with Asbestos Guide" also notes: Evidence suggests that asbestos causes gastrointestinal and laryngeal cancers in humans, but to a far lesser extent than lung cancer. Usually, asbestos-related diseases have a delay or latency period of 20 to 40 years between first exposure and the onset of symptoms and detection of the disease. Asbestos-related diseases can appear or progress even after a person is no longer exposed... Asbestos is formed in fibre bundles and, as it is further processed or disturbed, the fibre bundles become progressively finer and more hazardous to health. The small fibres are the most dangerous. They are invisible to the naked eye and, when inhaled, penetrate the deepest part of the lungs... 31The removal of the waste is potentially even more dangerous if the nature of the waste is unknown and it is not dealt with in an appropriate way; that is by assessing the risk of clean up and the wearing of personal protective equipment including masks and protective overalls. The dangers to human health are greater when there is the possibility of asbestos fibres being released into the air. This is the case in circumstances where broken or damaged asbestos waste is being moved around. 32Even limited exposure to asbestos fibres may have dramatic (pathologic) consequences. That is why there are stringent safety measures in place for asbestos management (removal, transportation and disposal).

[14]

Prior convictions and penalty notices issued to Mr Hanna 34Mr Hanna has eight prior convictions for illegally transporting waste to a place that could not lawfully receive that waste contrary to s 143 of the Protection of the Environment Operations Act 1997 (POEO Act): (a)On 2 September 2009, Mr Hanna was convicted in the Liverpool Local Court of three offences of illegally transporting waste to a place that could not lawfully receive waste contrary to s 143 of the POEO Act. Those offences occurred on 17 December 2008, 26 February 2009 and 24 March 2009. A total fine of $26,000 was imposed, together with an order that the defendant pay $14,000 for clean up of the waste which he had unlawfully deposited. (b)On 29 April 2010, Mr Hanna was convicted in the Hornsby Local Court of one offence of illegally transporting waste to a place that could not lawfully receive waste contrary to s 143 of the POEO Act. The offence occurred on 14 December 2009. A fine of $5,000 was imposed, together with an order that the defendant pay the prosecutor's costs of $400. (c)On 23 June 2010, Mr Hanna was convicted in the Land and Environment Court of four offences of illegally transporting waste to a place that could not lawfully receive waste contrary to s 143 of the POEO Act. Those offences occurred on 6 July 2009, 30 September 2009, 15 October 2009 and 16 October 2009. Mr Hanna was fined $104,000 to be paid to the Environmental Trust, ordered to place a publication notice in the Liverpool Leader and Blacktown Advocate newspapers, ordered to pay clean up costs of $8,282.60 and ordered to pay the prosecutor's costs of $21,000: Environment Protection Authority v Hanna [2010] NSWLEC 98. 35Mr Hanna has also previously been issued with 22 penalty notices as follows: (a)31 May 2007 - Unlawfully transport asbestos/hazardous waste greater than 1 cubic metre - $1,500 penalty notice issued by the Office of Environment and Heritage. (b)8 July 2008 - Transport waste to a place not a lawful facility for that waste - $750 penalty notice issued by Blacktown City Council. (c)10 February 2009 - Unlawfully transport asbestos/hazardous waste greater than 1 cubic metre - $1,500 penalty notice issued by Penrith City Council. (d)13 February 2009 - Neglect/failure to comply with requirement under Chapter 7 of the POEO Act - $500 penalty notice issued by Liverpool City Council. (e)19 March 2009 - Failure to comply with clean-up notice - $750 penalty notice issued by Penrith City Council. (f)2 April 2009 - Failure to comply with clean-up notice - $750 penalty notice issued by Penrith City Council. (g)13 May 2009 - Failure to comply with requirements relating to waste transporting - $500 penalty notice issued by Liverpool City Council. (h)8 June 2009 - Failure to comply with a clean-up notice - $750 penalty notice issued by Penrith City Council. (i)23 June 2009 - Failure to pay clean-up notice fee - $500 penalty notice issued by Bankstown City Council. (j)8 September 2009 - Failure to pay clean-up notice fee - $500 penalty notice issued by Penrith City Council. (k)9 September 2009 - Failure to pay clean-up notice fee - $500 penalty notice issued by Penrith City Council. (l)14 October 2009 - Failure to comply with requirements relating to waste transporting - $500 penalty notice issued by Penrith City Council. (m)15 October 2009 - Failure to pay clean-up notice fee - $500 penalty notice issued by the Office of Environment and Heritage. (n)2 December 2009 - Failure to comply with requirements relating to waste transporting - $500 penalty notice issued by Penrith City Council. (o)14 December 2009 - Failure to pay clean-up notice fee - $500 penalty notice issued by the Office of Environment and Heritage. (p)21 December 2009 - Failure to pay clean-up notice fee - $500 penalty notice issued by the Office of Environment and Heritage. (q)4 January 2010 - Failure to comply with clean-up notice - $750 penalty notice issued by Penrith City Council. (r)12 February 2010 - Failure to comply with requirements relating to waste transporting - $500 penalty notice issued by Penrith City Council. (s)22 February 2011 - Failure to comply with requirements relating to waste transporting - $500 penalty notice issued by Penrith City Council. (t)22 February 2011 - Failure to comply with requirements relating to waste transporting - $500 penalty notice issued by Penrith City Council. (u)28 February 2011 - Failure to pay clean-up notice fee - $500 penalty notice issued by Ku-ring-gai Council. (v)23 March 2012 - Neglect/failure to comply with requirement under Chapter 7 of the POEO Act - $500 penalty notice issued by Penrith City Council. 36Mr Hanna has not paid the fines or other costs as set out in par 34 and 35 above. However, Mr Hanna has entered into a payment plan with the State Debt Recovery Office to discharge a number, but not all, of the fines and other costs set out in par 34 and 35 above. Under the payment plan, Mr Hanna has been paying $300 per month towards part of his outstanding debt. Mr Hanna has been making these payments since September 2011, and they are scheduled to continue until 2072.

[15]

Pre-sentence report 37The EPA filed a pre-sentence report from the Probation and Parole Service dated 19 February 2013.This is headed "Negligent disposal of waste in a manner likely to harm environment". While not accurate in that the charge is contempt, the parties agree nothing arises from this circumstance. The report identifies family and social factors many of which are also contained in the affidavit sworn by Mr Hanna in these proceedings. 38In relation to Mr Hanna's attitude to the offences, the Probation and Parole Service report states: that the full facts of the offender's charges were not provided to this Service. However, Mr Hanna claimed he believed the soil was free of any contaminates [sic] and that he had been given permission by an acquaintance to dispose of the soil on the land at Picnic Point. He claimed that he regretted his offending behaviour and has "learnt his lesson" however he appeared to lack insight into his offence and justified him [sic] position by stating that placing the waste at an appropriate waste facility was expensive so he usually canvas [sic] alternatives where possible. ... The offender has been assessed as suitable for a Community Service Order as per the requirements of s 86(1) of the Crimes (Sentencing Procedure) Act 1999 and has signed an undertaking as required by s 86(5) of this Act. 39Mr Hanna swore an affidavit dated 15 February 2013. He was born in Lebanon in 1975 and was educated to age 16 after which he worked as a panel beater. He moved to Sydney in 2000 and married his wife in 2003. They have three children, a girl aged eight and twin boys aged three. He is happily married and has a happy family life. He is the sole earner for his family by running a transport, excavation, building, waste and rubbish business. This has operated for eight years with two tip trucks. His wife administers the business because English is his second language and he has limited understanding of written English. He acknowledges his record of offences. He was not in court for the first two proceedings at which he was sentenced as he did not then understand the court process. His understanding following these proceedings on 21 March 2011 was that simply he was not to dump waste where he was not to dump waste as that is what his lawyer explained to him on that occasion. 40Mr Hanna attests that his lawyer did not explain what could happen if he breached the order. He now understands the consequences of doing so and that he could be sent to prison for breaching the order. He is frightened of going to prison. He has had many visits from rangers in relation to his business. He is unaware of the clean up order sent to him by the Council. His wife does not pass letters to him as he cannot read these well. He believes she was not aware of the order either. He has entered into an arrangement to pay debts with the Office of State Revenue in August 2012 to pay $250 per month for debts then totalling a little over $50,000. The debt has since increased with more fines being added. He owes $213,000 as of 1 February 2013. He has entered into an arrangement to repay $300 per month. This will take until 2072. He realises he has placed a huge financial burden on his family which he very much regrets. 41Mr Hanna acknowledges that he dumped eight loads of waste at the property on 5 April 2012. He said he was approached a few weeks before at a petrol station by a person who asked him if he owned the truck and the person said that he usually located approved dumping sites. He has tried to telephone that person to call him to come to Court but he has not been able to get in touch with him. He regrets his offending. He clearly understands now that there are rules and laws associated with dumping so that people's property and wellbeing can be protected. He understands that his actions on 5 April 2012 breached a court order and he is sorry for disrespecting the Court and its authority. 42Mr Hanna was cross-examined by the EPA's counsel. He stated that he did not know anything about the order made against him in Court on 21 March 2011. When shown his affidavit at par 13 and 14 where he stated he did understand that the order meant he could not dump waste where he was not supposed to dump waste, he stated that he understood when the court order was made that he was not to dump waste where not approved but did not know how serious the risk of breaching the order was, as now explained to him. He thought the most that could happen to him was a fine at the time the order was made. He agreed the EPA's counsel had every right to say that no-one had told him he was allowed to dump waste at the property. He knew he was breaching the order on 5 April 2012 but did not realise the risks of doing so. He was paid to dispose of waste from another location. He denied he did not go to an approved waste facility because this was too expensive as he thought the waste was clean and it cost a little more than $50 to dispose of it in a correct place. 43Mr Hanna knows the owner of the property had to pay over $13,000 to remove waste from it. When asked why he had made no effort to remove the waste from the property he said he had not received the paperwork to remove it. He said if nobody told him to remove it, was he supposed to go on his own initiative? He appeared to agree that he was sorry because he now knows how serious the consequences beyond a fine for breaching a court order are. He has not paid the owner any money and has not received a bill for this. He said if someone sends him the bill he would take responsibility for it. He could not pay before as he did not know who the owner was. 44Mrs Rebecca Hanna swore an affidavit dated 16 February 2013. Mrs Hanna attests to Mr Hanna being a good husband and father. Her husband does not speak English very well and can barely read it. As she was born in Australia and English is her first language she takes care of business administration. There have been many visits from council rangers and fines for dumping of waste improperly. The situation has become difficult for her and she has not read letters that are about all the fines for a long time because it is upsetting. She is unaware of a clean up order made on 22 July 2012.

[17]

Purpose of sentencing for contempt 46I agree with and adopt most of the EPA's submissions on the purpose of sentencing for contempt with which Mr Hanna's counsel did not disagree. 47The underlying purpose of the exercise of the power of the Court to punish for contempt is to protect the effective administration of justice by demonstrating that the Court's order will be enforced: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 106-107. The Court's discretion is to impose a penalty necessary to "protect the effective administration of justice by demonstrating that the Court's orders will be enforced": Mudginberri at 107. 48In Environment Protection Authority v Ableway Waste Management Pty Limited [2005] NSWLEC 469, Lloyd J held at [28]: The function of punishment for contempt serves two purposes: (a) the enforcement of the process and orders of the court, and (b) punishment as vindication of the authority of the court: Mudginberri at 108. Thus, in addition to its coercive purpose, punishment also serves the purposes of deterring both the contemnor, and others who might be so minded, from flouting the authority of the court. Non-compliance with an order or judgment of the court necessarily constitutes an interference with the administration of justice: Witham v Holloway (1995) 183 CLR 525 at 533-534. Any punishment must, therefore, show that obedience to a court's order is important and should reflect its gravity. 49In the present circumstances the function of the law of contempt is also protective of the environment and the public generally. That is because the order which has been breached was plainly designed to prevent harm to the environment. That the sentence vindicates that broader public purpose is a relevant consideration: ASIC v Matthews [2009] NSWSC 285 (2009); 71 ACSR 279 at [24]-[25] (Barrett J). 50The Crimes (Sentencing Procedure Act) 1999 (the CSP Act) applies to sentencing in contempt matters (Attorney-General for NSW v Whiley (1993) 31 NSWLR 314 at 320-321). The purposes of sentencing are specified in s 3A as follows: 3A Purposes of sentencing 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. 51Section 21A of the CSP Act identifies aggravating, mitigating and other factors which the court is to take into account in the course of sentencing an offender. 52Wood v Staunton (No 5) (1996) 86 A Crim R 183 identified a number of relevant factors when considering a charge of contempt, which have been applied on many occasions by judges in this Court and other superior courts. The factors set out in Wood v Staunton at 185 include: (a)The seriousness of the contempt proved; (b)Whether the contemnor was aware of the consequences to himself of what he did; (c)The actual consequences of the contempt on the relevant trial or inquiry; (d)Whether the contempt was committed in the context of serious crime; (e)The reason for the contempt; (f)Whether the contemnor has received any benefit by indicating an intention to give evidence; (g)Whether there has been any apology or public expression of contrition; (h)The character and antecedents of the contemnor; (i)General and personal deterrence; (j)Denunciation of the contempt. 53The EPA submitted that the following matters were relevant sentencing considerations: (a)The seriousness of the contempt proved; (b)That the contemnor was aware of the consequences to himself of his conduct; (c)The actual consequences of the contempt; (d)The reason or motive for the contempt; (e)That the contemnor has received, or sought to receive, a benefit or gain from the contempt; (f)The absence of a timely expression of genuine contrition or an apology by the contemnor; (g)The character and antecedents of the contemnor and the likelihood of re-offending; (h)The contemnor's personal circumstances; (i)The need for deterrence, both general and specific, from similar disobedience; (j)The need for denunciation of the contemptuous conduct; (k)The relevant matters in aggravation under s 21A(2) of the CSP Act; (l)The relevant matters in mitigation under s 21A(3) of the CSP Act; and (m)The capacity (or more accurately incapacity) of the contemnor to pay a fine. 54I agree with the EPA's submission that the contempt is serious given Mr Hanna's record of eight previous convictions for breaches of s 143 of the POEO Act and over 20 penalty infringement notices arising largely from transporting waste. His conduct in breaching the order was deliberate. Entry to the premises was forced. No attempt to purge the contempt has been made. Mr Hanna knew his conduct was in breach of the order. In Registrar of the Court of Appeal v Maniam No 2 (1992) 26 NSWLR 309 at 314 Kirby P identified different classes of contempt, the most serious being contumacious where intentional disobedience involves conscious defiance of the court's authority. The contempt is contumacious, which Mr Hanna's counsel accepts. 55As the EPA submitted, the cross-examination of Mr Hanna demonstrated that he knew: (i) The effect of the court order was to prohibit dumping of waste at property not authorised to receive waste (ii) When dumping the waste at the property there was not relevant authority to do so for that site, and (iii) He was breaching a court order when he dumped the waste at the property. 56The contempt resulted in harm to the environment as defined in the POEO Act given the potential for serious harm to the environment and to human safety. The evidence indicates that the stockpiles contained various materials including material that appeared to contain asbestos. The volume of waste of 79.58 tonnes was substantial. Mr Hanna says he was unaware that the waste contained asbestos. Items potentially containing asbestos are identifiable in the photographs of the waste attached to the SOAF. This should have been obvious to Mr Hanna given the length of time he has spent in the business of transporting waste. Mr Hanna's actions resulted in the disposal of waste including asbestos in a residential area. An offence committed without regard for public safety is an aggravating feature of the offence, per s 21A(2)(i) of the CSP Act. 57The evidence establishes that the motive was financial gain an aggravating feature of the offence per s 21A(2)(o) of the CSP Act. Mr Hanna admitted that he was paid $250 per load of the waste dumped in breach of the order. Had he taken the waste to an approved facility he would have incurred a cost in doing so. His oral evidence that he did not save much per load and he thought the waste was clean is difficult to accept in light of his other deliberate actions of breaking the fence and depositing eight loads of waste in knowing breach of the Court's order. Mr Hanna gained a benefit from the contempt given that he obtained the work of clearing eight loads of waste at $250 per load. The clean-up cost of $13,200 incurred by the owner reflects some of the cost saved by Mr Hanna in dumping the waste.

[25]

Proportionality of sentencing 69As contempt is a common law offence there is no statutorily defined maximum penalty. The consideration of similar offences where these exist can assist in sentencing in a principled and proportionate way although I note contrary observations in the Sentencing Bench Book, Judicial Commission of NSW at [20-155] on p 9540 - 9541, "No tariff of sentences for contempt" due to the great variation in circumstances giving rise to a charge of contempt. The Court has generally imposed a fine as a penalty in contempt proceedings. A custodial sentence has been imposed in this Court in very few cases of contempt. 70The EPA provided examples of cases where this Court, and one case in the Western Australian Supreme Court, has considered it appropriate to impose a suspended custodial sentence or a community service order: (a)In Environment Protection Authority v Pannowitz (No. 2) [2006] NSWLEC 797; (2006) 153 LGERA 126, the contempt arose when the contemnor disobeyed an order requiring him to publish a notice in a newspaper containing details of a previous offence. Taking into account the circumstances, including the contemnor's inability to pay a large fine, the Court sentenced the contemnor to 300 hours community service. (b)In Blacktown City Council v Reid [2003] NSWLEC 120, the contempt arose from the repeated failure by the contemnor to comply with an order of the Court to remove waste located at a site and transfer the waste to a licensed waste management facility. Taking into account the circumstances, including a previous sentence of two months imprisonment for an earlier contempt, the Court sentenced the contemnor to six months imprisonment, suspended for a period of six months on the condition that the contemnor remove 50 tonnes of waste per calendar month from the site. (c)In Environment Protection Authority v Allan Andrew Keogh [1999] NSWLEC 128 and Environment Protection Authority v Allan Andrew Keogh [1999] NSWLEC 231, the contempt arose from (i) the failure to comply with an order restraining the contemnor from depositing waste unlawfully at an Orchard Hills site; and (ii) the failure to comply with a subpoena to produce documents. The Court sentenced the contemnor to two months imprisonment for each charge of contempt, suspended for a period of 12 months to enable the contemnor to carry out remediation of the site. (d)In Chief Executive Officer, Department of Environment and Conservation v Szulc (No 2) [2011] WASC 315; (2011) 185 LGERA 216 the Supreme Court of Western Australia imposed sentences of nine months and fifteen months imprisonment, to be served concurrently, for two breaches of an injunction. The defendant had previously been sentenced to three months imprisonment for an earlier breach of the same injunction. 71The circumstances of this contempt are less serious than in Reid and Szulc where the respective defendants had already been sentenced for an earlier charge of contempt. The option in Reid and Keogh of imposing a suspended sentence on condition that the contemnor remove the waste is not available here as the waste has been removed.

[27]

Custodial or non-custodial sentence appropriate? 74It is necessary to consider whether a custodial sentence should be applied to Mr Hanna. Section 5 of the CSP Act requires that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate; see also R v Zamagias [2002] NSWCCA 17 at [25]. Subsection (2) requires the giving of reasons for imposing a custodial sentence if a court sentences an offender to imprisonment for six months or less. Once a term of imprisonment is determined, the court may consider whether an alternative to full-time imprisonment is available by way of suspended sentence, home detention or interim correction order. A custodial sentence includes home detention for a sentence of imprisonment for 18 months or less (s 6 CSP Act) and an intensive correction order (ICO) served in the community for a sentence not more than two years (s 7 CSP Act). Such sentencing orders cannot be made in relation to specified crimes, none of which are relevant to this matter. 75Suspended sentences are identified in s 12: 12 Suspended sentences (1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order: (a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and (b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence. (2) An order under this section may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order. (3) Subject to section 99 (1), Part 4 does not apply to a sentence of imprisonment the subject of an order under this section. (4) An order under this section may be made after a court has decided not to make a home detention order in relation to the sentence of imprisonment. 76An alternative to imprisonment is the imposition of a community service order as a non-custodial sentence: 8 Community service orders (1) Instead of imposing a sentence of imprisonment on an offender, a court may make a community service order directing the offender to perform community service work for a specified number of hours. (2) The number of hours specified in a community service order in relation to an offence must not exceed 500, or the number of hours prescribed by the regulations in respect of the class of offences to which the offence belongs, whichever is the lesser. 77Under cl 23 of the Crimes (Sentencing Procedure) Regulation 2010, the limit on the duration of a community service order is 500 hours where the maximum term of imprisonment exceeds one year, as in this case. Mr Hanna has been assessed as suitable for a community service order by the Probation and Parole service, in accordance with s 86(4). He has signed an undertaking as required by s 86(5). 78If a sentence of imprisonment is imposed, the EPA submitted that a period of one to three months is appropriate. This could be suspended as provided for in s 12 of the CSP Act but only for the period of imprisonment and such suspension the EPA considers is not sufficient punishment. 79Mr Hanna's counsel submits that a suspended sentence is to be regarded as a real sentence and as punishment for the offence: R v J C E [2000] NSWCCA 498; (2000) 120 A Crim R 18 at [25]; R v Foster [2001] NSWCCA 215; (2001) 33 MVR 565 at [36]; R v Zamagias [2002] NSWCCA 17 at [31]. If the Court is minded that the only appropriate sentence in this case is one of imprisonment, the Court ought to suspend such a sentence pursuant to the provisions of s 12. 80Mr Hanna's counsel submitted there are a number of reasons why suspension of any sentence of imprisonment would be appropriate in the circumstances. Whilst it is conceded that "the offence of contempt is particularly fact dependent", previous cases serve "to identify the appropriate range of sentences." Consideration of the cases cited by the EPA reveals that in all instances where a sentence of less than two years imprisonment was considered appropriate, the provisions of s 12 (suspended sentence) were made available. Even in Szulc, in which the term of imprisonment was not suspended, the total term imposed did not exceed two years, despite the contemnor having previously served a sentence of imprisonment for the offence of contempt. 81Mr Hanna is the father of three young children. He is the sole income earner residing in a mortgaged home with his wife and children. He has, since entering a time to pay arrangement, been making monthly payments towards the monetary penalties imposed for previous breaches of s 143 of the POEO Act. A sentence of imprisonment that is not suspended will obviously make it impossible for Mr Hanna to generate any income. The absence of income will place in jeopardy the wellbeing of his young family, threaten their occupancy of the family home, and prevent payment of money towards fines already incurred. 82But for his repeated breaches of s 143 of the POEO Act, Mr Hanna is essentially an otherwise law abiding citizen. It is notable that these proceedings are the first occasion upon which Mr Hanna has been to Court where his liberty is in jeopardy. Any sentence of imprisonment, without suspension, would result in Mr Hanna entering custody for the first time. For that reason, it is submitted, the Court would consider it appropriate to suspend any sentence of imprisonment imposed. As Windeyer J observed in Cobiac v Liddy (1969) 119 CLR 257 at 269: The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. 83A community service order would also be appropriate.

[29]

Costs 86The EPA is entitled to a costs order under s 257B of the Criminal Procedure Act 1986. The EPA seeks its costs on an indemnity basis. The award of costs on an indemnity basis is opposed as such an order is futile given Mr Hanna's financial position. 87Whether an award of costs is made on an indemnity basis is within the exercise of discretion of a judge. In Canterbury City Council v Mihalopoulos [2012] NSWLEC 72 I considered this issue at [46] as follows: As observed in GE Dal Pont, Law of Costs, 2nd ed (2009) LexisNexis Butterworths, indemnity costs may be awarded in contempt proceedings as a matter of judicial discretion. White J in ASIC v Sigalla (No 4) [2011] NSWSC 62 at [49] suggests these are commonly awarded. Dal Pont states at 547 - 549 (footnotes omitted): In EMI Records Ltd v Ian Wallace Ltd Megarry VC observed that special costs orders are needed in cases of contempt because 'nothing should be done to deter a person from bringing a contempt to notice of the court; and the risk of having to bear any of the costs will often be a real deterrent'. Contempt proceedings, it is reasoned, serve a public interest, such that a person who successfully brings these proceedings should not be left out of pocket. It has been judicially remarked, to this end, that it is a 'common or usual practice' to order that the contemnor pay costs on an indemnity basis, and the case law reveals multiple examples of indemnity costs awards in this context. But there is no 'rule' that successful contempt proceedings necessarily attract indemnity costs orders, as this would be inconsistent with the exercise of the curial costs discretion. A relevant consideration is whether, aside from the costs order, a penalty has been imposed for the contempt. If no other penalty is imposed, the court may be more inclined to employ 'a heavy order for costs as a means of imposing something in the nature of a sanction'. If, say, significant fines have been imposed, the 'penal' or 'deterrent' aspect of a special costs order may have less justification. Also relevant is the plaintiff's conduct and level of success. ... That the contemnor has subsequently purged the contempt will not by itself guard against a special costs order if the contemnor's conduct has already caused the opponent to incur costs in bringing contempt proceedings. 88The above extract confirms there is no "rule" concerning the awarding of indemnity costs in contempt cases. Given the lack of utility served by making an indemnity costs order I will decline to make a costs order on that basis.

Environment Protection Authority v Hanna

At a glance

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Before

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Judgment (30 paragraphs)

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Cases Cited (29)

Cited By (5)