Environment Protection Authority v Hochtief AG

Environment Protection Authority v Hochtief AG - [2006] NSWLEC 200 - NSWLEC 2006 case summary — Zoe

[134]

61 The reply from Mr Schenk later that day was that they would install a telephone at CP 42 with a flashing light on it. The last paragraph stated: CP 42 we can only excavate without interruption of the TBM production on that long weekend. Before we stop the works we should have confirmation that the reason for complaint is the CP Excavation (and not vehicles from the street or anything else what [sic] might create noise) and the noise is audible. Please let me know, what is the procedure in that case." 62 This evidences, I think, that Mr Schenk thought that the long weekend presented a particularly good opportunity to excavate CP 42 without interruption, and that there should be no stopping of work because of a complaint, unless there was confirmation that the reason for the complaint was the CP 42 excavation. Beyond that, in my view, the e-mails do not significantly advance the prosecutor's case. The prosecutor's submissions 63 The prosecutor submitted that I should find beyond reasonable doubt that the offences were intentional because there was an arrangement between Mr Schenk and Mr Kuipers that he would continue to hammer outside the licensed hours until a call was received on the telephone at CP 42. Reliance was placed on the evidence of Mr Kuipers as to the arrangement; his diary entry; the evidence of Messrs Kuipers and Price as to their Sunday morning conversation; the failure of Mr Zimmermann to pass on Mr So's Saturday complaint; Mr Kuiper's evidence that he was told to proceed on the Monday morning; and the fact that Mr Schenk saw on the Monday morning that CP 42 had been broken through and (it was submitted) must then have known that hammers had been used. The defendant's submissions 64 The defendant submitted that the Court should not find beyond reasonable doubt that there was any agreement between Mr Kuipers and Mr Schenk that Mr Kuipers would carry on hammering beyond 1:00 pm on the Saturday until a noise complaint was received. It was also submitted that the Court should not find beyond reasonable doubt that it was critical to the joint venture that the excavation works on CP 42 be completed over the long weekend. I accept the last submission that it was not "critical", although I think that Mr Schenk hoped or expected that, with hammering, CP 42 would be completed over the long weekend.

[152]

83 Generally, the timing of a plea of guilty is the primary consideration determining the utilitarian benefit of a guilty plea and, therefore, where in the discount range a particular case should fall. But it is not the only consideration. Other considerations are complexity of issues; difficulty in assembling evidence; and the potential length and complexity of a fully contested trial. In the present case these other considerations do not seem to be as weighty as in some other criminal cases, including criminal cases outside the jurisdiction of this Court. These other considerations were identified in Thomson (above) at 418 [154] - [158], where it was said: 154. There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. 155. The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. 156. Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the "discount" will be reflected in a step down in the hierarchy of sentencing options. 157. There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate: see, eg, R v Stabler (1984) 6 Cr App R (S) 129 at 131; R v Costen (1989) 11 Cr App R (S) 182 at 184. 158. There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate. This includes situations in which a life sentence can be and is imposed, notwithstanding the plea: see, eg, R v Kalache [2000] NSWCCA 2; see especially per Sully J (at [38]-[42]).

[156]

[35] The appellant's next submission invited the Court to reject sequential or two-tiered approaches to sentencing taking as their starting point the maximum penalty available, and to state as a universal rule to the extent that legislation does not otherwise dictate, that a process of instinctive synthesis is the one which sentencing courts should adopt. [36] No universal rules can be stated in those terms. As was pointed out earlier, much turns on what is meant by a 'sequential or two-tiered' approach and, likewise, the 'process of instinctive synthesis' may wrongly be understood as denying the requirement that a sentencer give reasons for the sentence passed. So, too, identifying 'instinctive synthesis' and 'transparency' as antonyms in this debate misdescribes the area for debate. [37] In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed… [39] …Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of 'instinctive synthesis', as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression 'instinctive synthesis' may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.

[158]

[30] Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing , Stockdale and Devlin [27] observe that: 'A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century or because it has more recently been set at a high catch-all level. At other times the maximum may be highly relevant and sometimes may create real difficulties. A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].' [31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, [28] and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case… [32]…True it is that his Honour did not overlook the objective facts, or indeed any other matters relating to penalty, but having started where he did, at a maximum, and then making deductions from it, he did not make, even in a provisional way, an assessment of the sentence called for by the objective facts. It might or might not be appropriate for a trial judge to state such a provisional view. A judge would rarely be in error in not doing so. It is, after all, a provisional position only. 87 Following Markarian, the Thomson guideline for guilty pleas has continued to be applied and upheld by the NSW Court of Criminal Appeal. For instance, in R v MacBain [2005] NSWCCA 358, the Court of Criminal Appeal considered a situation where the trial judge had allowed a 25 percent discount on sentences that he otherwise would have imposed, in recognition of the utilitarian value of early pleas of guilty. The trial judge did not expressly record a discrete discount relating to the factor of remorse. The Court of Criminal appeal held that there was no error in that approach. Another example is Moore v R [2005] NSWCCA 407, where the trial judge gave the accused a discount for an early plea of guilty, and a further 35 percent discount for surrendering himself to the police, allowing a total discount of 60 percent on the sentence which he otherwise would have received. The Court of Criminal Appeal, after referring to Markarian, dismissed the accused's appeal. It was held that the trial judge did not follow an unduly mathematical approach to sentencing, and had made clear that he was concerned, when applying discounts, to ensure that the end result produced an adequate sentence when looked at against the whole of the facts, rather than a simple mathematical answer.

[162]

91 The totality principle has to be taken into account in the present case. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 704, Kirby P, with whom Campbell and James JJ agreed, held that the principle of totality is applicable where a penalty imposed is by way of a fine. The totality principle requires that a total fine for more than one offence does not exceed what is called for in the whole of the circumstances. In Camilleri the court had regard to the close time frame of three offences, which suggested that they were to be seen as connected and to be punished accordingly. Therefore, a reduction should be made so as properly to reflect the total criminality. The court cited the dictum of Street CJ in R v Holder [1983] 3 NSWLR 245 at 260 that: 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. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straight forward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences. As has been said more than once in this Court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order. Additional agreements and evidence relating to penalty 92 During the hearing, the following two matters were agreed: (a) the defendant will pay the prosecutor's costs of the proceedings agreed in the sum of $79,000; and (b) pursuant to the Protection of the Environment Operations Act 1997 , s 250, the Court should make a publication order in the form (if approved by the Court) set out later in this judgment, requiring the defendant to publish an advertisement concerning its guilt and the penalty in the Financial Review and the Sydney Morning Herald. 93 The Agreed Facts set out earlier summarise the unchallenged affidavit evidence, which was also read in the case, of nearby residents Mr So and Mr and Mrs Blackie that unlawful hammering caused actual harm through noise and vibration to the extent of preventing sleep, greatly diminishing normal activities and driving Mr So to move elsewhere over the long weekend. 94 I accept the unchallenged affidavit evidence of Riku Taurianen read in the defendant's case, which, among other things, evidences the defendant's concern and regret in relation to this incident and the steps that it has taken to ensure that such an incident does not recur. Mr Taurianen is the Project Manager Tunnelling for the construction of the Epping to Chatswood component of the Parramatta Rail Link project by the joint venture. His evidence included the following: (a) The defendant developed and implemented an Environmental Management System for the project in 2002. It also developed a Community Involvement Plan which defined the policies, processes and procedures for managing relations with the community and stakeholders during, amongst other works, excavation of CP 42. In accordance with its provisions, a complaints line was established for the duration of construction. The presence and operation of the complaints line was notified to local residents and public authorities. Under its provisions, local residents were to be notified in relation to proposed works which could affect the local community, such as noisy work, 14 days prior to work commencing. It required that during construction a verbal response be made to the complainant within two hours of the complaint being received on the complaints line. As part of its safety procedures, the defendant installed fixed line underground telephone lines with flashing lights on top of the phones in the tunnels of the project at every second cross-passage to allow communications between the surface and underground.

At a glance

Court

Decision date

Before

Source

Judgment (190 paragraphs)

Parties

Cases Cited (21)

Cited By (9)