Parity
124The principle of even-handedness, or parity in sentencing, requires the Court to have regard to the general pattern of sentencing for offences of the kind under consideration. However, care must be taken in undertaking that task. There is inevitable difficulty in attempting to compare the penalty in one case with the penalty in another by reason of the wide divergence of facts and circumstances that will properly inform the penalty in each. A further basis for discrimination in applying other sentences is the prospect that those sentences themselves may be aberrant and therefore not an appropriate basis for determination of the range of appropriate penalties in subsequent cases ( Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [75]).
125Between them, the parties identified three cases of relevance to be considered when determining an appropriate penalty. In Environment Protection Authority v Caltex Refineries NSW Pty Ltd [2008] NSWLEC 194, Lloyd J was required to consider the appropriate penalty to be imposed upon the defendant following a plea of guilty to a charge of breaching a licence condition, contrary to s 64(1) of the POEO Act. An odour described as a "foul sulphurous odour" had been emitted from the defendant's oil refinery for a period of 6 days between 23 December and 29 December 2006. According to the charge, this occurred because of the failure of the defendant to maintain and operate equipment in a proper and efficient condition and manner, contrary to a condition in its environment protection licence. His Honour determined that the breakdown of equipment that caused the emission was not foreseeable and that the offence was of low objective seriousness. The defendant had a number of prior convictions for the commission of environmental offences. The defendant had co-operated in investigating the charge and agreed to pay the prosecutor's costs. His Honour determined the appropriate penalty to be $120,000, reduced to $78,000 by reason of the mitigating circumstances favourable to the defendant.
126Breach of an environment protection licence was also the subject of the charge in Environment Protection Authority v BlueScope Steel (AIS) Pty Ltd [2004] NSWLEC 400. By reason of a failure of equipment in the defendant's steel making plant, raw coke oven gas was emitted from its plant over a period of about 3 hours. The escaping contaminants contained hydrogen sulphide, hydrogen cyanide, ammonia and other volatile organic compounds together with solid particles. Of those gases, hydrogen sulphide was said to be the most acutely toxic.
127The condition breached in BlueScope Steel was, once again, a condition requiring that plant and equipment be maintained in a proper and efficient condition. Talbot J found (at [59]) that there was no actual environmental harm occasioned by the material that escaped but that it "had the potential to cause mild irritation and potentially lethal consequences". The offence was described as unintended, but the occurrence was not unforeseen. The offence was further described by his Honour (at [63]) as "not in the most serious category, nor is it trivial or inconsequential."
128Talbot J recognised a number of mitigating circumstances that weighed in favour of the defendant. They included its co-operation with the prosecutor, the readiness with which it addressed the problem giving rise to the incident and the priority it had given to environmental performance in carrying out its large-scale industrial activities. It also had a record of conviction for prior environmental offences.
129In the result, BlueScope Steel was fined $70,000 in addition to payment of the prosecutor's costs, as it had agreed to do. It is not possible to discern from his Honour's reasoning what the gross penalty was nor the discount applied to that figure before determining the net penalty of $70,000.
130The third matter calling for consideration under this head is the decision of Pepper J in Environment Protection Authority v Transpacific Industries Pty Ltd; Environment Protection Authority v Transpacific Refiners Pty Ltd [2010] NSWLEC 85. The first defendant was charged with two offences and the second defendant with one offence. One of the two offences with which the first defendant was charged and the offence with which the second defendant was charged was contravention of s 64(1) of the POEO Act. The licence condition in each case prescribed limits upon concentration of specific pollutants able to be emitted from the premises. Those limits were exceeded on each of the occasions which gave rise to the charges brought against the respective defendants.
131The Transpacific companies reprocessed used lubrication oil enabling the end product to be used again as a lubricant. The treatment or refining process resulted in the emission of gases that included volatile organic compounds as well as hydrogen sulphide and carbon monoxide. Included among the volatile organic compounds that were emitted was benzene, described as a principal toxic air pollutant. On each of the occasions that led to the two charges, sampling of gaseous emissions from Transpacific's premises indicated levels of volatile organic compounds well in excess of the limit stipulated in the conditions attaching to the environment protection licence. In particular, those emissions contained approximately 31 per cent benzene on each occasion. Notwithstanding this level, it was agreed by the prosecutor that there was no evidence of actual environmental harm.
132Having heard competing evidence as to the potential for harm from the measured emissions, her Honour determined (at [38]) that the potential risk of harm "was so minimal as to be negligible." Neither of the defendants had any prior convictions for environmental offences. Taking into account the objective gravity that her Honour had assigned to the commission of the offences, together with the subjective and mitigatory circumstances that applied, her Honour determined that an appropriate penalty for the first offence would be $10,000 and for the second offence $15,000. To each of these prospective penalties a discount of 35 per cent was applied yielding net fines of $6,500 and $9,750 respectively. These fines reflected application of the totality principle as the offences related to the operation of the same premises. The offences occurred while the defendants were endeavouring to modify the facility in an endeavour to achieve the emission limits.
133In the present matter, the prosecutor categorises the offence as being of moderate seriousness. It emphasises comparability between circumstances in which the present offence was committed and the circumstances pertaining in both Caltex and BlueScope Steel , perhaps with emphasis on the latter. In my opinion there are difficulties in seeking direct application of the penalties imposed in those cases to that which is appropriate in the present case.
134The description of the offence in BlueScope Steel as being of "moderate seriousness" appropriately summarises the manner in which Talbot J described the offence in that case. It yielded a penalty of $70,000. The description by Lloyd J of the offence in "Caltex" was one of "low objective seriousness" yet a penalty of $78,000 was imposed. Each of the defendants in those cases was able to attract similar mitigating circumstances and each had a record of prior convictions for environmental offences.
135The defendant identifies as most relevant on the question of parity, the decision of Pepper J in Transpacific . It identifies the absence of actual environmental harm in that case as well as the minimal or low potential for harm arising from the emission of gases beyond the limit stipulated by condition. The defendant also draws attention to the fact that Transpacific had no recorded prior convictions for environmental offences. In respect of all of those matters it identifies their direct comparability with the present case. Indeed, it draws attention to the fact that, on the evidence in Transpacific , the emission of volatile organic compound, particularly benzene, would appear to be at least as significant, if not more significant, than the emission of ethylene oxide in the present case.
136Consideration of these three cases demonstrates the need to be discriminating when seeking to apply a statistical approach to penalty derived from those cases. Clearly, none of the three cases is directly comparable to that which I am considering. Different descriptors applied to a particular offence committed against s 64 will no doubt have a bearing upon the determination of the penalty ultimately imposed as will the particular circumstances, both objective and subjective, that pertain in each case.
137Clearly, the duration of the emission in the present case is far less than that considered in Caltex : 4 hours compared to 6 days. The duration is closer to that which was the subject of consideration in BlueScope Steel but all the other circumstances brought to bear upon the penalty imposed in that case would seem to involve a higher level of criminality than that which I attribute to the present defendant. As I have earlier indicated, the present offence is of low to moderate objective seriousness: the level of the defendant's criminality, taking into account all factors, is low.
138In short, the three cases to which the parties have collectively referred are of only limited assistance in determining the appropriate penalty in the present case. While the facts and circumstances identified in Transpacific may seem closer to those circumstances demonstrated to exist in the present case, there were undoubtedly other considerations that were seen to justify the imposition of penalties at the level imposed for a breach of s 64 of the POEO Act. I do not identify circumstances in the present case that would justify a penalty at that level.