Environment Protection Authority v Ramsey Food Processing Pty Ltd - [2003] NSWLEC 82 - NSWLEC 1986 case summary — Zoe

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Environment Protection Authority v Ramsey Food Processing Pty Ltd

[2003] NSWLEC 82

Land and Environment Court (NSW)|1986-11-06|Before: Cowdroy J, Smart J, Mr P, Lloyd J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

1986-11-06

Before

Cowdroy J, Smart J, Mr P, Lloyd J

Source

Original judgment source is linked above.

Judgment (33 paragraphs)

[1]

CITATION : Environment Protection Authority v Ramsey Food Processing Pty Ltd [2003] NSWLEC 82 revised - 30/04/2003 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Ramsey Food Processing Pty Ltd FILE NUMBER(S) : 50093 of 2002 CORAM: Cowdroy J KEY ISSUES: Environmental Offences :- water pollution - wastewater treatment system - penalty - mitigation - late plea of guilty - expenditure to prevent pollution - negligence irrelevant to strict liability offences LEGISLATION CITED: Protection of the Environment Operations Act 1997, s 120(1), s 120(2), s 123, s 241, s 245(c) Crimes (Sentencing Procedure) Act 1999, s 22 Axer Pty Limited v Environment Protection Authority (2001) 113 LGERA 357; Cameron v R (2002) 76 ALJR 382; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Environment Protection Authority v Anning (1998) 100 LGERA 354; Environment Protection Authority v Brazel (2002) 119 LGERA 72; Environmental Protection Authority v Timber Industries Ltd [2000] NSWLEC 39; Environmental Protection Authority v TransGrid [2003] NSWLEC 18; Lim Chin Aik v The Queen [1963] AC 160; CASES CITED: Mathews v Goulburn Wool Processors Pty Limited (Smart J, Supreme Court NSW, 6 November 1986, unreported); Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66; R v Olbrich (1999) 199 CLR 270; R v Storey [1998] 1 VR 359; R v Thomson; R v Houlton (2000) 49 NSWLR 383; Regina v O'Neill [1979] 2 NSWLR 582; State Pollution Control Commission v Tiger Nominees Pty Ltd and Another (1991) 72 LGRA 337; Thorneloe v Filipowski (2001) 52 NSWLR 60; Woodward (for and on behalf of the State Pollution Control Commission of New South Wales) v Cleary Brothers (Bombo) Pty Ltd (1984) 54 LGRA 409 DATES OF HEARING: 10/03/2003 11/03/2003 DATE OF JUDGMENT: 04/28/2003

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[15]

12 Environmental Protection Officers, Peter Lynch and Robyn Smith, and Craig Lamberton, the EPA Director for Coastal Regions, attended the abattoir on 3 and 4 October 2001 to investigate the offence. The following observations were made by them:- (i) At the western perimeter of the abattoir, the waters in the creek were discoloured and the surface of the creek had extensive coverage of green algae. (ii) On the western bank of the creek pools of brown, putrid smelling liquid radiating out from the pipeline were observed where the pipeline entered the ground. The effluent from the pipeline " was following a descending trail into the creek." (see affidavit of Craig Lamberton sworn 10 May 2002). Slit fences made of shade cloth material were in the trailing path of this liquid and "retained large quantities of grey sludge." (see affidavit of Craig Lamberton sworn 10 May 2002). The effluent was not actually observed flowing into the creek by the EPA officers but it was noted that the effluent " had moved both through, over and around those slit fences and on down to the edge of the Creek" and that some of the effluent "had entered the Creek below the path leading down past the slit fences." (see affidavit of Robyn Smith sworn 13 March 2002). (iii) Fat and other material was seen floating on the surface of the creek downstream. (iv) A dead cow was located on the eastern bank of the creek " in the mouth of the concrete stormwater pipe leading from the premises." (see affidavit of Craig Lamberton sworn 10 May 2002). The state of decomposition of the cow indicated its presence for a significant period of time. 13 The EPA officers took samples from various points along the creek. Samples were taken near the stop valves, at a point immediately adjacent to entry of the effluent into the creek and at a location 10 metres upstream. 14 EPA officers returned to the abattoir on 4 October 2001. Robyn Smith and Ian Greenbank, a Senior Regional Operations Officer in the North Coast Region, met with Mrs Renee Park (nee Mortimer), an employee of the defendant, Mr Terry Brown of Rural Irrigation Supplies and Mr Max Murray, apparently another employee of the defendant. 15 Mr Brown had attended at the abattoir in response to a request that urgent repairs were needed to rectify a break in the pipeline. In his affidavit Mr Brown deposed:- "The break was in the junction point where the wastewater pipeline crosses over the Creek and heads up the hill towards the effluent treatment ponds." 16 The EPA officers observed that there were "hundreds of cudgeons" (see affidavit of Robyn Smith sworn 13 March 2002) present in the creek 50 metres upstream from the point at which the effluent entered the creek. The waters of the creek gave the appearance of being anaerobic at a point 150 metres downstream from the pipeline crossing. Moreover no signs of aquatic life were noticed and bubbles were seen coming up from the surface of the creek suggesting that the material in the creek "was fermenting or rotting and releasing a gas." (see affidavit of Robyn Smith sworn 13 March 2002). 17 During their inquiries, the EPA officers became aware of an incident which had occurred 18 months earlier when pumps had been used to remove pollution from the creek. The break in the pipeline was in a different location to the fracture relating to the present offence.

[21]

24 The conclusion of Ms Ajani's affidavit further demonstrates that harm was likely to be caused to the environment by the effluent discharge. Ms Ajani deposed:- The concentrations of oxygen demanding materials, total suspended solids and nutrients at the point of effluent discharge at the premises were above the ANZECC (2000) guidelines or other indicative values for the protection of aquatic ecosystems. The BOD/COD levels determined for the samples collected at the point of discharge and below the discharge are significantly in excess of those found in raw effluent or waters receiving effluent. Ultimately, this kind of discharge could result in anaerobic conditions, loss of aquatic life and a strong offensive odour. Similarly, the TSS concentrations at the point of discharge or below the discharge, coupled with the high levels of grease and oil, would reduce the visual clarity and light penetration in the creek therefore reducing photosynthesis and primary production, the basis of many aquatic food chains. In addition, the high ammonia concentrations as measured at the point of discharge would most likely cause death to a range of aquatic organisms (depending on the duration of exposure). Overall these concentrations would mostly likely [sic] an environmental effect on the water quality, and consequently the aquatic flora and fauna in the receiving waterway. The seriousness of the environmental effect from this wastewater would be proportional to the quantity and duration of the discharge. Ms Ajani's evidence establishes that there was contamination of creek waters caused by the effluent which had "the effect of degrading the environment" and that potential harm to the environment was caused . 25 The Court accepts the defendant's submissions that the "extent" of the likely harm was contained to the defendant's premises. Furthermore the concentration of the effluent was diminishing at a distance of approximately 450 metres from the discharge point. The creek was not flowing at the date of the offence and any likely harm to marine life in the creek was substantially curtailed to the ponds in the vicinity of the abattoir. The defendant's remedial measures further reduced harm and lessened the impact of the effluent. Measures to prevent, control abate or mitigate that harm: s 241(1)(b) 26 The Court is obliged under s 241(1)(b) to consider:- (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm. 27 The defendant had no reliable system of regular inspection of its wastewater system. The defendant relied upon the farm manager, Mr Nowlan, to make general observations of the pipeline, but he was not required to report to management. The EPA submits that if a more defined system had existed the fracture of the pipeline would have become more readily apparent. 28 As a result of the prior incident the defendant should have been aware that surveillance of the pipeline was needed to avoid environmental harm. The evidence does not reveal that anything significantly changed in the defendant's surveillance system since April 2000. The precaution of observing the pipeline on a reasonably regular basis should have been taken. Reasonable foreseeability: s 241(1)(c) 29 Section 241(1)(c) requires the Court to consider: (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence

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35 Gaudron, Gummow and Callinan JJ in Cameron acknowledged that a plea of guilty is relevant to mitigation of penalty and stated at p 384:- It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice. 36 The timing of the plea has a significant bearing upon the amount of discount to be in recognition of the guilty plea from the defendant's penalty (see Thomson per Spigelman CJ at p 418). Kirby J confirmed such principle in Cameron wherein His Honour stated at p 394:- In many cases such feelings of repentance will continue and manifest themselves in an early plea of guilty that is adhered to at the trial. Obviously, the timing of any plea has a large bearing on the credit that should be given to the prisoner [R v Holder [1983] 3 NSWLR 245; R v Bulger [1990] 2 Qd R 559]. A plea of guilty at the last moment (as on the day set down for trial) will ordinarily attract a smaller discount in sentence than one that is entered at the first reasonable opportunity [cf Dodge (1988) 34 A Crim R 325 at 331; Heferen (1999) 106 A Crim R 89 at 92 [12]; R v Thomson (2000) 49 NSWLR 383 at 414-15 [132]; 115 A Crim R 104 at 134]. But even a belated plea will normally attract a discount. 37 The Court is unable to accept any element of contrition in view of such a late plea of guilty sufficient to warrant a significant discount of the penalty. The defendant's late guilty plea is also of little utilitarian value. Spigelman CJ stated in Thomson at p 415 that the rationale for reducing the penalty from a utilitarian perspective is to save "…considerable expenditure…incurred by the prosecution and the defence in preparing the case…" in addition to preparing witnesses, and court and judicial resources. In this instance, the costs and time necessarily incurred by the prosecutor in proving the offence had already been incurred prior to the change of plea to guilty. 38 Spigelman CJ in Thomson held at p 418 that the appropriate range for a discount for a plea of guilty is from 10 to 25 per cent. The Court will grant the defendant a 10 per cent discount of the penalty in recognition of the plea of guilty.

[27]

40 In Camilleri's Stock Feeds and Environmental Protection Authority v Timber Industries Ltd [2000] NSWLEC 39 the Court held that expenditure towards remediation of environmental damage caused by the offences was a mitigating factor. In this instance the defendant has not provided evidence of any expenditure incurred following the offence. That is, it cannot be said that "the defendant's hip pocket nerve has already been touched by this incident" (see Timber Industries at par 31). Accordingly the Court does not consider that such expenditure qualifies as a mitigating factor relevant to penalty. Reliance upon advice of third parties 41 The defendant submitted that it relied upon the advice of competent third parties to maintain the pipeline, and that it was dependent upon Mr Brown to effect repairs. Mr Brown testified that he would have expected the joiner which he installed in April 2000 to remain serviceable indefinitely. The defendant submits that on this basis that it is not guilty of any negligence which resulted in this charge. 42 The offence pursuant to s 120(1) of the POEO Act is one of strict liability: Woodward (for and on behalf of the State Pollution Control Commission of New South Wales) v Cleary Brothers (Bombo) Pty Ltd (1984) 54 LGRA 409 per Cripps J at 413; Pace Farm Egg Products at par 56. In State Pollution Control Commission v Tiger Nominees Pty Ltd and Another (1991) 72 LGRA 337 at p 342 Hemmings J (referring to s 16 of the repealed Clean Waters Act 1970 which is now embodied s 120 of the POEO Act) said:- It is well-established that s 16 creates an offence of strict liability in respect of which mens rea, knowledge or negligence are not ingredients. Accordingly the issue of negligence is not an element of the offence, and is irrelevant. 43 In matters involving strict liability offences it is pertinent for the Court to consider whether the defendant could have prevented the offence. That is, could the defendant have done something "directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control…" to avert the offence (see the judgment in Lim Chin Aik v The Queen [1963] AC 160 delivered by Lord Evershed at p 174). The rationale was explained by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at pp 74-75:- Even in the case of an offence of strict liability, no pubic purpose is served by recording a conviction or imposing a penalty in circumstances where the relevant accused could not, as a matter of practical reality, have done something to ensure that the offence or, in the case of a result offence, the adverse consequences of the conduct, did not occur.