Consistency in Sentencing
133A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question (Gittany at [179]-[182] and Rae at [69]). The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range (Gittany at [182]).
134Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion ( Axer at 365 and Cabonne Shire Council at 312).
135Moreover, as the High Court has recently reminded sentencing courts in Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465 (at [53]-[54], footnotes omitted and emphasis added):
53. Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax evasion as well as cases of customs and excise fraud and social security fraud. Care must be taken, however, in using what has been done in other cases.
54. In Director of Public Prosecutions (Cth) v De La Rosa , Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added) ...
136As was noted in Unomedical (No 3), this is the first case that deals with a breach of s 128(2) of the Act (at [23]). Thus, as the prosecutor correctly submitted, there does not readily exist comparable cases that the Court may have regard to in ascertaining a general pattern of sentencing.
137The predecessor to s 128(2) of the Act was s 15(2) of the Clean Air Act 1961 ("the CAA") for scheduled premises and s 19(2) of that Act for non-scheduled premises. Section 19(2) of the CAA was similarly untested.
138The only case dealing with a breach of s 15(2) of the CAA was State Pollution Control Commission v A C Hatrick Chemicals Pty Ltd (1992) 76 LGRA 346, where the defendant company was convicted of two offences, including a charge under s 15(2) of the CAA that the defendant did not conduct a process in or upon such premises by such practical means as was necessary to prevent or minimise air pollution in that it permitted the emission of a pungent odour from the premises. The company was fined $35,000 in circumstances where it had pleaded not guilty and where there were practical steps able to be taken in order to prevent the odour from escaping the premises (the maximum penalty was $125,000).
139However, given that the statutory scheme and the maximum penalty were sufficiently different under the CCA, that case offers only limited assistance, in my view, to the present sentencing task before the Court.
140Albeit concerned with breaches of s 129 of the Act, the Court notes, by way of comparison, the sentences imposed for air pollution offences in relation to the emission of offensive odours.
141Unomedical submitted that because offensive odour cases only apply to scheduled premises and include a subjective element of "harmfulness" or "unreasonable interference", any penalty that the Court imposes in this case should be considerably lower. I do not necessarily accept this to be the case.
142The Court has also had regard to sentences imposed for breaches of environmental protection licences that resulted in air pollution. In my opinion, these cases are instructive notwithstanding that Unomedical was not operating under such a licence at the time of the commission of the offence and, therefore, no emission standard, and thus breach of that standard, applied to it.
143First, in Environment Protection Authority v Nationwide Oil [2002] NSWLEC 201 the defendant company breached s 129(1) of the Act by allowing an odour to be emitted from its premises due to a spill of light gas oil, contrary to a condition of an environment protection licence. The defendant also breached s 120(1) of the Act. The maximum penalty under the Act at the time for each offence was $250,000. In taking into account the totality principal and the discount for an early guilty plea, the defendant was fined $50,000 for the s 129(1) breach, with a total fine of $80,000 for both offences. The defendant also agreed to pay the prosecutor's costs in the amount of $17,000.
144Second, in Environment Protection Authority v Illawarra Coke Co Pty Ltd [2002] NSWLEC 21; (2002) 118 LGERA 451 the defendant was the occupier of premises at which a scheduled activity was carried on under an authority conferred by an environment protection licence. It caused the emission of an offensive odour on three separate occasions. The defendant was therefore charged with three breaches of s 129(1) of the Act. The maximum penalty at the time was $250,000. The odour was described as offensive and when particularly strong degraded the amenity of the environment causing headaches, nausea and irritating eyes and throats. The defendant was fined a total of $70,000 for all three breaches in circumstances where the defendant had one previous conviction, pleaded guilty at an early stage and cooperated with the authorities. The defendant was also ordered to pay the prosecutor's costs in the sum of $25,000.
145Third, in Environment Protection Authority v Burrangong Meat Processors Pty Ltd [2003] NSWLEC 102 the company, which operated an abattoir in Young, was charged with four offences. The first offence involved a breach of s 64(1) of the Act, namely, that it contravened a condition of its environment protection licence by failing to operate its sewerage treatment system in a proper and efficient manner. This offence involved an excess of effluent being pumped through the system that produced offensive odours. The other three offences involved contraventions of s 129(1) of the Act on the basis that the defendant was the occupier of premises at which a scheduled activity was carried on under the authority of a licence and which caused an offensive odour to emanate from the premises. The Court considered that a fine of $50,000 was warranted for each offence, which was then reduced to a total penalty of $58,875 for all four offences taking into consideration the totality principle and mitigating factors, which included that the defendant had pleaded guilty and had agreed to pay $930,000 to undertake works aimed at minimising pollution. In imposing the penalty the Court took into account the fact that the defendant had a high level of culpability, the offences were foreseeable and there were practical measures that the defendant could have put into place to prevent the offences from occurring.
146Fourth, in Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 the defendant pleaded guilty to an offence against s 129(1) of the Act being the emission of an offensive odour from occupied premises at which a scheduled activity, being a livestock slaughtering rendering plant, was carried on under the authority of a licence. The maximum penalty under the Act at the time was $250,000. The defendant was ordered to carry out a specified project under s 250(1)(c) of the Act being the provision of a park at the cost of $32,000 and to pay the prosecutor's costs in the sum of $40,000. The penalty was imposed in circumstances where there were practical steps that the defendant could have taken to prevent the emission of the odour, the offence was foreseeable, the defendant had control over the causes of the offence, the defendant pleaded guilty and the defendant had one prior conviction.
147Fifth, in Environment Protection Authority v Shoalhaven Starches [2006] NSWLEC 685 the defendant was the occupier of premises at which scheduled activities were carried on under the authority of a licence and was found guilty of emitting offensive odours from waste water ponds on the premises in contravention of s 129(1) of the Act. The maximum penalty under the Act at the time was $250,000. In addition to being ordered to pay the prosecutor's costs in the amount of $235,000, the defendant was fined the sum of $125,000, ordered to place a publication notice and to carry out an environmental audit. This penalty was imposed in circumstances where the defendant pleaded not guilty, the odour was not toxic, the emission of the odour was reasonably foreseeable and the defendant had prior convictions.
148In relation to a breach of s 124(b) of the Act, sixth, in Environment Protection Authority v Caltex Refineries (NSW) Pty Ltd [2006] NSWLEC 335 the defendant company pleaded guilty and the Court therefore considered that a fine of $77,000 was an appropriate penalty (the maximum penalty was $250,000). The defendant was also ordered to pay the prosecutor's costs in the sum of $81,311. The offence involved the spillage of a waste by-product from the refinery that had a rotten egg odour and in turn caused black smoke to be emitted from the refinery's furnace, which induced symptoms of nausea, headaches and diarrhoea. The Court found that there were practical measures that could have been taken to prevent the incident, the harm was foreseeable and the defendant had inadequate risk assessment processes in place. The Court also took into account mitigating factors including an early guilty plea, an expression of contrition, and the defendant's cooperation with authorities.
149Seventh, in Environment Protection Authority v Coastal Recycled Cooking Oils Pty Limited [2008] NSWLEC 242 on two occasions the defendant company breached a licence condition concerning its waste water system resulting in the emission of an odour from a storage tank contrary to s 64(1) of the Act. The first offence was dismissed pursuant to s 10 of the CSPA because it was a first offence, trivial in nature, the problem was remedied and it caused minimal amenity impact. However, the second offence was considered to be more serious. The odour emitted was highly offensive, but it was found to cause minimal environmental impact. A fine of $30,000 was ordered, which was reduced to $18,000 in light of the following mitigating factors: the defendant's good character; its remorse; its early guilty plea; the absence of prior convictions; its cooperation with authorities and its efforts at remediation. The fine was directed towards an environmental project pursuant to s 250 of the Act.
150Eighth, in Environment Protection Authority v Ghossayn [2009] NSWLEC 181 the defendant was the director of a company and pleaded guilty to offences against s 144 and s 126(1) of the Act. In relation to the offence against s 126(1) of the Act, namely, that the occupier of premises dealt with materials at those premises in a way that resulted in air pollution, the defendant was fined $60,000 which was reduced due to mitigating factors to $42,000, with the total fine for the two offences being $51,000 (the maximum penalty for an individual at the time was $250,000 for each offence). The defendant was also ordered to pay the prosecutor's costs of the proceedings in the sum of $40,000. The penalty was imposed in circumstances where the environmental harm was assessed as low but continued for a long duration, there were practical measures the defendant could have taken to avoid the harm, the risk was foreseeable, the defendant had control over the causes, there was a financial imperative for the commission of the offence, the defendant had prior convictions, there was a plea of guilty, and the defendant cooperated with authorities.
151Ninth, in Environment Protection Authority v Transpacific Industries Pty Limited; Environment Protection Authority v Transpacific Refiners Pty Limited [2010] NSWLEC 85 the defendant pleaded guilty to two offences under s 64(1) of the Act and one offence under s 66(2) of the Act. In relation to the two offences against s 64(1), the defendant was fined $6,500 and $9,750. This was in addition to being fined $14,000 for the offence against s 66(2) of the Act, ordered to place a publication notice and ordered to pay the prosecutor's costs of the proceedings in the sum of $40,000 (the maximum penalty was $1,000,000 for both offences). The offences against s 64(1) concerned breaches of a licence condition relating to the emission of certain gaseous substances into the atmosphere on two occasions. The penalty was imposed in circumstances where the potential environmental harm was considered to be negligible, the risk of harm was foreseeable, the defendant had control over the causes, the defendant had no prior convictions, the defendant was of prior good character, there was an early plea of guilty, the defendant expressed contrition and remorse and the defendant cooperated with the authorities.
152Finally, in Transpacific Industries Pty Limited , I summarised the decisions of Environment Protection Authority v Causmag Ore Company Pty Limited [2009] NSWLEC 164, including the dust emissions cases cited therein (at [71]-[75] of Causmag ), and Environment Protection Authority v Forgacs Engineering Pty Limited [2009] NSWLEC 64 where the fines imposed were $20,000 and $45,000 respectively (the maximum penalty was $1,000,000 in both cases) (at [135] and [139]):
135. ...A number of dust emission cases were reviewed by Pain J in Environment Protection Authority v Causmag Ore Company Pty Limited [2009] NSWLEC 164 (at [71]-[75]), which was itself a dust emission case. The breach in that case concerned a failure to maintain plant in a proper and efficient condition by failing to repair, and/or replace filter bags and/or fabric filters that had become damaged or deteriorated. In addition to a publication order, the Court fined the defendant the sum of $20,000 in circumstances where the defendant pleaded guilty at an early opportunity, expressed contrition and remorse, cooperated fully with the prosecutor, was of good corporate character, was found to be unlikely to reoffend, had prior convictions similar to the offence charged and was suffering considerable financial difficulties. The maximum penalty was $1,000,000.
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139. In Environment Protection Authority v Forgacs Engineering Pty Limited [2009] NSWLEC 64, the defendant was ordered to pay $45,000 (the maximum penalty was $1,000,000) to Newcastle City Council for the purpose of replacing timber decking over mangroves. A publication order and costs order were also imposed by the Court. The proceedings concerned a failure by the defendant to prevent the emission of particles from a ship repair business in breach of its licence conditions. There was both actual harm due to amenity impacts and potential ecological harm. The defendant pleaded guilty at the earliest opportunity and a number of other mitigating factors were present.