(1) at the time of the offence the defendant had a successful business, and a comfortable lifestyle, with a home on some acreage, motor vehicle, etc,
(2) during the charge period she invoiced her relevant customers approximately $348,000,
(3) she paid her gatekeeper on this job nothing,
(4) she still owes her bulldozer driver $40,000,
(5) she owes her solicitor an undisclosed amount in fees (despite appearing for herself, apparently until granted legal aid),
(6) she may have personally met some fees for senior counsel in late 2007, and
(7) following some kind of " breakdown ", she has not earned an income for at least two years.
116 Impecuniosity is asserted, but the defence sought to prove it only by Ms Pal's sketchy and uncorroborated evidence, and to explain that failing by complaining that the prosecutor seized all her records. In fact, the EPA returned to her copies of everything it took, and the court would expect someone with her banking/finance/accounting experience to be able to better explain to the court how her financial position could deteriorate so badly. Her responses to questions on this issue during cross-examination were evasive.
117 In Environment Protection Authority v Douglass (No.2) [2002] NSWLEC 94, Lloyd J had to deal post-conviction with an offender against whom the prosecutor sought a fine (the prescribed maximum being $60,000 for the offence charged), a costs order in the agreed sum of $49,517, and an order for a payment of $1.17M for "mitigation of harm to the environment".
118 His Honour came to the view that the offence was so serious that the penalty should be 75% of the maximum, but noted that the defendant had no fixed place of abode, and only casual employment. His only assets were his seriously degraded land, his second-hand vehicle, and his tools of trade.
119 His Honour said that general deterrence was an important objective of any penalty and other orders, and proceeded to impose a fine of $45,000, the costs order, and the mitigation costs order, recognising, in terms, that bankruptcy proceedings may flow from enforcement action.
120 In Bentley the defendant company had gone into liquidation, but the reasons for its failure were not in evidence, and in Capdate the presiding judge knew only that the defendant company was no longer trading. See also Environment Protection Authority v Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147. The courts had more information available in Barnes, and so did I in Environment Protection Authority v Waight (No.3) ("Waight") [2001] NSWLEC 126. See also the judgments of the Court of Criminal Appeal in Aref Rahme (1989) 43 A Crim R 81 (to which I will return).
121 The principle, therefore, is that impecuniosity cannot be urged upon the court successfully as a justification for not imposing the appropriate penalty, and not making other appropriate orders to which a financial cost is inevitably attached, such as "remediation" orders under s245 of the POEO Act (headed "orders for restoration and prevention").
122 There is, however, an equally important principle that a court should not make orders which can be clearly seen to be "futile" in all the circumstances. See Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2004] FCA 1510 per Allsop J at [70]; and ACCC v Chen [2003] FCA 897 per Sackville J at [45].
123 Mr Ryan submitted (T Day 6, 25.9.08, p31, LL22-29) that:
" If your Honour makes a remediation order, well you're just setting the defendant up for a fall, in my submission. She, and as I say, this is unchallenged - she simply doesn't have the money, and there's no reason to believe that she does. She's not working, she's out of the business, the business is gone, she's not doing any other business, she just doesn't have the money, because the money to do it, I accept, would be very great indeed. So that it wouldn't be appropriate in my submission to make a remediation order in this case, in those circumstances ."
124 He acknowledged, however, that this court could grant time to pay any costs order it makes, and that his client could make application under the Fines Act for time to pay any fine the court might impose.
125 On the other hand, the prosecutor submits that this is a serious matter calling for serious punishment, but he has proceeded on the assumption that the court would probably find it "futile" (not his chosen word) to make a remediation order in this case, given the lack of any real evidence of means.
Discussion
126 There is strong evidence to make out all the particulars of both negligence and harm pleaded in the charges (see [11] and [12] above), and clearly the defendant should be convicted on both charges.
127 Ms Pal is not charged with deliberately dumping what she describes as "shit" or "crap". She saw her obligation to Turner and Galea not as providing only "VENM" for their purposes, but as not bringing on to their lands, or leaving on them, any inappropriate materials (see [56] par 39). She marketed her services on the basis of taking great care to locate, and always "validate", appropriate sources of appropriate fill, and she says she was, certainly in the early stages of the job, diligent about it. In the later stages, some inappropriate materials "slipped through", and she accepts she is "ultimately responsible" for "system failures" which allowed inappropriate "mixed" fill to be spread on the two properties.
128 She refutes the prosecutor's allegation that she knowingly admitted "mixed" waste to the subject lands, and failed to separate it out, even though she charged suppliers higher rates to cover the cost of the sorting processes.
129 "Validation" is the certification of the contents of waste according to the prosecutor's code or classification system (explained in [20] above), and Ms Pal denies the allegation that "most" of the waste she organised to be delivered was not validated, or not correctly validated (T Day 1, 28.07.08, p11, LL10-11). However, few validations were produced by her or found by the prosecutor. Ms Pal infers that many were lost by Camden Council, and she also relies on evidence that her husband sometimes carried out precautionary checks on loads.
130 At the end of the day, however, the evidence is that 90,000 tonnes or 62,000m3 of unsatisfactory waste has left 9ha of beautiful rural residential land in a "shambolick" (sic) state (T Day 6, 25.09.08, p2, L5) which must be addressed, with 20% significantly contaminated, and demolition waste spread also throughout the other 80%. The photographic evidence of the test trenches show no evidence of any (genuine) separation efforts, and $1.7M in statutory levies has been evaded.
Penalty
131 The difficult task of fashioning the "right" combination of penalties and other orders in criminal cases is well canvassed in the two judgments in Aref Rahme, in which Finlay J usefully surveys many authorities.
132 In that case the Court of Criminal Appeal was determining an appeal against the severity of a sentence imposed in respect of a drug cultivation offence to which the appellant had pleaded guilty. The offender had sought periodic detention and a "very substantial fine" in order to avoid a term of full-time imprisonment such as would normally be imposed. No limitation on the amount of the fine was put to the sentencing judge, despite making His Honour aware of the offender's limited means. His Honour set the fine by reference to the profit which would have flowed from the success of the criminal venture, and imposed a term of imprisonment of 18 months to be served by periodic detention.
133 Finlay J (with whom Studdert J agreed) reduced the fine from $22,000 to $5,000 on the grounds of limited means. In dissent, Smart J said that, while capacity to pay was an important consideration, a reduction in the fine component of the sentence took it below the "range of sound discretionary judgment" in sentencing (at 90), and made it "inappropriately light" (at 91).
134 Each case turns on its own peculiar facts, and in each case the sentencing judge has to arrive at a "sentencing package" which meets the prescribed objectives ([75]-[78]), and, hopefully, the imperative of environmental remediation as well.
135 I agree with the prosecutor that Ms Pal has committed and admitted a very serious negligence offence, deserving of severe punishment. She has exhibited no real remorse, and accepted no real responsibility for the serious consequences of her negligence. Her plea of guilty is based on an admission only that she was "not diligent enough" and some things in the nature of "system failures" resulted in unfortunate consequences which were beyond her control. Everything "bad" at the Turner and Galea properties is said to be someone else's fault.
136 I am conscious there are some sad personal circumstances affecting the defendant. She has experienced some health problems, and, if one accepts her evidence, some quite serious financial problems, losing her landfill business and her home, in circumstances not fully explained. Not all of her problems can be sheeted home to these charges. Her future prospects would appear to be only fair, but she is only 42 years of age, a respected citizen, a caring mother, and a woman of sober habits and community orientation, with a supportive family and a good work ethic. The High Court has warned us that justice must be tempered with mercy (Cobiac v Liddy (1969) 119 CLR 257, at 269).
137 A term of imprisonment does not appear to me to be appropriate in this case, even if suspended; periodic detention has also been ruled out by the Probation and Parole Service; and it seems to me that a bond serves no useful purpose in punishing or deterring her, or in warning her former industry that breaches of important regulatory controls will be severely punished by this court.
138 The prosecutor submits that a community service order may send a "bad message" to the landfill industry; it might be seen as a "minor punishment", or a "mere slap on the wrist" by those inclined to flout the law.
139 However, community service orders have previously been made in environmental offences prosecuted in this court - see, for example, Environment Protection Authority v White ("White") (1996) 92 LGERA 264, and Environment Protection Authority v Coggins ("Coggins") [2003] NSWLEC 111; (2003) 126 LGERA 219.
140 I have concluded that such an order is appropriate to all the circumstances of this case, provided that it is accompanied by both a fine, and an order that the defendant pay the prosecutor's costs, as occurred in both White and Coggins.
141 It is desirable to include a remediation order in the "sentencing package" in a case like this - see, for example, Waight - but I reluctantly accept the apparent futility of my making any order under s245 of the POEO Act in this case. The defendant made no offer or proposal in this regard.
142 I note Mr Barley's estimate (in his affidavit of 23 September 2008) that the prosecutor's legal costs and investigation expenses are likely to exceed $184,000, and his evidence that his offer to settle with the defence the amount of costs and disbursements "at a very significant discount" was rebuffed.
143 In this court the maximum punishment for each of these charges is a fine of $500,000, plus a two year term of imprisonment. Under s8 of the Crimes (Sentencing Procedure) Act 1999 and cl 22 of the Crimes (Sentencing Procedure) Regulation 2005, that maximum translates to $500,000 plus 500 hours community service, for each charge.
144 Given the assertion of impecuniosity, the likely amount of the prosecutor's costs and expenses, the circumstances of the case, and the "totality" principle, I have decided that Ms Pal's penalty should involve a substantial number of hours of community service - more than in White and Coggins, to reflect relative culpability and the absence of any remediation - and a fine far lower than Ms Pal's degree of culpability would normally attract.
Conclusion
145 The R v Thomson discount of 10% will be applied to a sentence of 500 hours community service and a fine of $50,000, and I will make the usual order as to costs and investigation expenses, but set a lengthy time within which to pay those costs to the prosecutor.
Orders
146 The Orders of the court will, therefore, be: