EPA v Barnes

Camilleri's Stock Feeds P/L v EPA (1993) 32 NSWLR 683 Axer P/L v EPA (1993) 113 LGERA 357 Bentley v BGP Properties P/L [2006] NSWLEC 34 EPA v Fernando & Anor [2003] NSWLEC 281 R v Mill (1988) 166 CLR 59 R v Holder (1983) 3 NSWLR 245 Pearce v The Queen (1998) 194 CLR 610 Johnson v The Queen (2004) 205 ALR 346 CASES CITED: R v Crombie [1999] NSWCCA 297 R v Doan (2000) 50 NSWLR 115 EPA v Obaid [2005] NSWLEC 171 R v Rahme (1989) 43 A Crim R 81 Smith v The Queen (1991) 25 NSWLR 1 R v Trevenna [2004] NSWCCA 43 R v George [2004] NSWCCA 247 EPA v Davis [2005] NSWLEC 643 R v Allpass (1993) 72 A Crim R 561

PARTIES: Environment Protection Authority (App) Phillip Gregory Barnes (Resp)

COUNSEL: S Rushton SC/J Giles - EPA (App) J Priestley (Resp)

SOLICITORS: S Garrett, sol - EPA (App) Walters Solicitors (Resp)

LOWER COURT JURISDICTION: Land and Environment Court of NSW

LOWER COURT DATE OF DECISION: 16 February 2006

LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWLEC 2

IN THE COURT OF CRIMINAL APPEAL 2006/525 2006/532

MASON P KIRBY J HOEBEN J

Thursday 17 August 2006 ENVIRONMENT PROTECTION AUTHORITY v PHILLIP GREGORY BARNES Judgment 1 MASON P: I agree with Kirby J. 2 KIRBY J: On 2 August 2005 the Environment Protection Authority ("the Authority") (the appellant) issued two Summonses against Phillip Gregory Barnes (the respondent). The Summonses were returnable in the Land and Environment Court of New South Wales. Each alleged an offence against s143(1)(a) of the Protection of the Environment Operations Act 1997 ("the Act"). Mr Barnes was said to have transported waste in February 2004 and again on 4 March 2004, to a place that could not lawfully be used as a waste facility. Particulars accompanying the Summonses described the waste in these terms: "Septic waste and/or matter containing significant human faecal contamination." 3 Having been served with each Summons, Mr Barnes, through solicitors, said at once that he would plead guilty to each offence. An Agreed Statement of Facts was prepared. The matter came before her Honour, Justice Pain, on 11 November 2005, for submissions on sentence. Having heard submissions, her Honour reserved her decision. On 16 February 2006, she provided reasons for the following orders: "1. In matter no 50028 of 2005 the Defendant is convicted of the offence with which he is charged.

In matter no 50028 of 2005 the Defendant is fined the sum of $4,000 to be paid to the Registrar of the Court.

In matter no 50029 of 2005 the Defendant is convicted of the offence with which he is charged.

In matter no 50029 of 2005 the Defendant is fined the sum of $500 to be paid to the Registrar of the Court.

The Defendant must pay the Prosecutor's costs of the proceedings against him in the amount of $15,000.

The Defendant must pay the Prosecutor's costs and expenses of investigation in the amount of $727.13 pursuant to s248(1) of the Protection of the Environment Operations Act 1997. ..."

Appeal by the Crown. 4 The Authority appeals against these orders, asserting a number of errors. Paraphrasing the submissions of the Authority, the following errors were identified: · First, that the penalties imposed were manifestly inadequate. · Secondly, that her Honour erroneously found that the environmental consequences were minimal or non existent. · Thirdly, that her Honour had no regard, or insufficient regard, to general and specific deterrence. · Fourthly, that her Honour was mistaken in her application of the totality principle. · Fifthly, that her Honour was in error in having regard to the fact that the prosecution may have been brought in the Local Court. · Sixthly, that when her Honour had regard to the respondent's means to pay, she misapplied the principle. 5 Before dealing with the submissions of the appellant, I should first describe the circumstances in which each offence occurred.

The Offences. 6 Two businesses, Richmond Waste Services and Summerland Environmental Services, operated in partnership. They collected and disposed of waste. The waste came from septic tanks, grease traps and oil tanks in the Lismore, Bangalow, Byron Bay area. It was taken to treatment facilities within that area. The respondent, Phillip Barnes, was a tanker driver. 7 Mr Barnes was given a list of jobs each day by his supervisor. He drove a truck with a capacity of 7,000 litres. At the end of each day he was required to complete a worksheet, identifying each job, the time taken and the litreage of waste material carried. Ordinarily the waste was taken to the Lismore City Council waste treatment plant. The plant operated between the hours of 8.00 am and 3.00 pm, Monday to Thursday. Emptying the tanker took about 30 minutes. The tanker drivers were obliged to arrive at the treatment plant no later than 2.30 pm. If, however, the plant closed before the driver could discharge his load, there was a storage facility at the Richmond Waste Services depot. It had limited capacity. It was possible for the driver to empty his load into the storage facility, to be disposed of on another day. 8 On an unspecified day in February 2004, Mr Barnes accumulated 7,000 litres of septic waste from the Lismore area. Instead of taking the load to the treatment plant, he drove to a remote and deserted property at Tellera, outside Lismore. The property was 72 hectares. It was zoned "rural". It was surrounded by other rural properties, including a macadamia farm. Mr Barnes entered the property, stopping near certain cattle yards. He connected the discharge pipe and released the valve, allowing the 7,000 litres of septic waste to escape and settle on the surrounding land. He then left the property. 9 The property was owned by two brothers. The brothers went to the property every two weeks or so to perform maintenance. On one such visit, one of the brothers noticed "sludge" near the cattle yards. The surrounding grass had been flattened. The "sludge" included debris such as condoms, panti-liners and the like. There was also an unpleasant odour. 10 On Thursday 4 March 2004, Mr Barnes returned to the property. Again he pumped out septic waste. On this occasion he discharged about 4,000 litres. 11 On 6 March 2004, one of the brothers again visited the property. He noticed that the sludge was thicker and that it covered a larger area. On 8 March 2004, he reported the matter to the Lismore City Council. That afternoon an Environmental Officer from the Council went to the property. He saw the sludge. It covered an area of about 20 square metres. He took photographs. He noticed a gully, which was not far from the cattle yards. The gully passed through sloping land to a dam 100 metres beyond. The sludge was about five metres from the gully. 12 The Council asked the Richmond Waste Services to produce its records in respect of the collection and disposal of waste. The records revealed a number of irregularities, which were drawn to the company's attention. The issue was taken up with Mr Barnes by his supervisor. Mr Barnes immediately acknowledged that he had illegally dumped two loads at the location which I have described. The supervisor, however, said nothing to the Lismore City Council. 13 On 5 April 2004, the Lismore City Council placed the matter in the hands of the Environment Protection Authority. That Authority made an inspection. The sludge was still apparent near the cattle yards. Samples were taken. They were sent to a laboratory for examination. Ultimately, Mr Barnes was invited to participate in a record of interview. Again, he immediately acknowledged his responsibility, stating the following: "With the dumping at the treatment works in Lismore, we've only got a window of opportunity between 8.00 am and 3.00 pm. After 3.00 pm, the treatment works are closed and I need an empty truck for the morning because I state [sic] at - generally, 6.00 or 7.00 am and, if I've got a full truck from the day before, I can't go on and do any more jobs until 8 o'clock, until I've dumped ... that's why this illegal dumping took place, because of no access to dumping facilities." 14 Mr Barnes said that he had been under pressure to get a certain amount of work done, such that he cut corners. The fee for a 7,000 litre load at the treatment plant was $120, which his employer paid. He said that he had not been directed to by-pass the treatment plant. It was solely his decision to do so. 15 The respondent's father, Mr John Barnes, was a director of Richmond Waste Services. He managed that aspect of the partnership's work. In an affidavit filed during the sentencing proceedings, Mr Phillip Barnes said this: "6. At the time I committed the two offences I was under significant pressure at work. My father is a director of one of the companies that owns the business for which I work and this is a well known fact at my work place. His company is not the majority owner and he does not as a result have overall unqualified control of the business, nor the way it is run. His involvement certainly does not lead to me being treated in any favourable way compared to other employees and I do not as a result have a 'soft' job. Whether this is some explanation for the way I was being treated at the time by my supervisor Mr Shepherd or not I do not know. What I do know however is that in the period leading up to the committing of the two offences my work load had increased markedly and I had been told by Mr Shepherd that if I could not get the work done he would get someone else who could." 16 On 25 June 2004, the Authority issued a notice to clean up the septic waste. On 2 July 2004, the clean up was undertaken, removing both the waste and part of the topsoil. The Authority later confirmed that the area had been cleaned up to its satisfaction and that of the owners. 17 The statement of Agreed Facts described in some detail the properties of the septic waste and its potential to cause "significant harm to the environment and public health" unless managed appropriately. The statement said this: "95. There are two main pathways of environmental harm possible from the dumping of the septic waste in the manner described. The first is the transport of components of the septic waste into nearby water courses and storages by rainfall. The second is the transfer of disease causing organisms (pathogens) to humans or stock through either direct contact or through vectors such as insects, rodents or domestic animals." 96. The slope the sludge was on led down to a dam, which was approximately 100 metres downhill from where the sludge was. There were two distinct flow paths leading away from the main area of sludge downhill towards a gully and the area of sludge was between 5 and 20 metres away from the gully." 18 It added: "100. If a rainfall event occurred which resulted in surface runoff before the site was cleaned up there would be an increased likelihood of the following occurring in downstream water courses and storages due to nutrient addition from the septic waste: · Algae or nuisance plants clogging water pumping or filtration systems; · Algae covering the bed of water courses and reducing habitat quality for fish and invertebrates; · Algae and/or nuisance plants creating odours and unsightly appearances leading to loss of recreational amenity; · Certain algae species releasing toxins into the water rendering it unfit for consumption; · Large amounts of biomass being degraded by bacteria, depleting the oxygen concentration in the water leading to events like fish kills." 19 Pathogens can also be transmitted through direct contact. The waste was near a cattle yard. The property was visited periodically by the owners and others. The agreed statement, however, included the following paragraphs: "80. There is no evidence that the waste reached the dam. 81. There is no evidence that there were any cattle in the area where the waste was dumped during the period that the waste remained on the property." 20 Against that background, let me turn to the grounds of appeal, postponing ground 1 until the end.

Ground 2: Environmental Harm. 21 Under the Act, the Court is obliged by s241(1) to consider a number of matters when imposing a penalty in respect of an offence under the Act. The matters include the following: "s241(1)(a) The extent of the harm caused or likely to be caused to the environment by the commission of the offence," 22 Under the heading, "Evidence in relation to environmental harm", her Honour referred to the material that had been "dumped", namely septic waste. She said this: "19. There was no evidence tendered of actual harm to the environment. In addition, the statement of agreed facts stated that there was no evidence that the waste reached the dam or that any cattle were in the area at the time the sludge remained on the site. 20. In relation to possible harm caused by the waste, the statement of agreed facts stated that the transport of pollutants from the septic waste deposit into nearby water courses and storages would be very likely if a rainfall event occurred which resulted in surface runoff. The most common impact of nutrient addition to waterways and storages is the stimulation of growth of algae and nuisance plants in excess of natural levels. In addition, pathogen contamination of downstream water courses and storages would be likely due to transport of the pathogens in the septic waste. If contaminated water courses and storages were used for domestic or stock water supply there would be an increased likelihood of disease to humans or stock." 23 Her Honour then referred to s241(1)(a) and set out a summary of the competing submissions by the prosecution and the defendant. She said this: "22. The Prosecutor argued that while there was no evidence of actual harm there was a likelihood of environmental harm given the proximity of the spill to a dam located about 100m downhill from where the waste was dumped. In the event of a rainfall event there was potential for the waste to flow into a gully leading into the dam. If septic waste did enter the dam, this would be likely to result in the contamination of downstream water courses by pathogens contained in the septic waste. This in turn could result in the increased likelihood of transmission of pathogens to livestock and humans. Defendant's submissions. 23. The Defendant submitted that there was no evidence of actual or long term harm and that the harm likely to be caused to the environment was minimal given the small area covered by the waste and the remediation works undertaken by the Defendant and the Defendant's employer. The Defendant argued that as the sludge had been left on the site for a period of approximately four months before the Prosecutor issued a clean up notice, and there was no evidence of actual harm over this time, this suggested that there was little likelihood of harm." 24 The appellant asserted that her Honour was in error. She had overlooked the actual environmental harm before the area was cleaned up. Apart from that harm, the defendant had created the likelihood of further harm (which her Honour did recognise) which, "through happenstance", had not come about. 25 The appellant pointed to the wide definition of the "environment" in the dictionary to the Act, as well as the definition of the term "harm to the environment". Any alteration to the environment which had the effect of degrading the environment was "environmental harm". Septic waste dumped as sludge, which remained for five months before removal, was environmental harm, degrading the environment. More than that, it was, according to the appellant, "water pollution" as that term is defined by the Act. The definition included not only the entry of pollutants into water, but their placement in locations where they were "likely to descend" or be washed into water. Here, there was the potential for the sludge to be washed down the gully into the dam. Should the dam overflow, there was the danger that water courses feeding the surrounding area, may be contaminated. 26 The respondent, in answer to these submissions, drew attention to a number of matters. First, the prosecutor before her Honour said this: (T4/5) "... We accept there's no actual harm but we say there was likely harm in this case, and your Honour will see that as referred to in the agreed statement of facts, environmental facts, the chance of that was very likely, particularly in relation to the sludge getting into the dam and the gully." 27 Secondly, as to water pollution, the waste did not reach the water. That much was acknowledged. No water testing was performed by the Authority. Thirdly, there was no confusion on the part of her Honour as to what had occurred. She did not mistake the date of sentence as the relevant date from the viewpoint of considering actual harm (rather than the date of the offence and its aftermath). 28 In my view there was no error. Her Honour described in some detail the sludge, where it was located and the hazard it presented because of its proximity to the gully and the dam. She did not say, in terms, that whilst ever it remained, it degraded the environment and was a potential hazard, including a potential water pollutant. However, that much was obvious. It may be inferred that she recognised that this was so. The reference in her remarks to "actual harm" (para [19]) as opposed to "possible harm" (para [20]) was a reference to long term harm. Indeed, it will be noticed that, when referring to the respondent's submissions, her Honour used the expression "actual or long term harm" (para [23]). She recognised, appropriately, that it was relevant to determine whether there had been any lasting environmental harm (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701). Her Honour did not, in my view, overlook the degradation that had occurred before the remedial work was undertaken on 2 July 2005. 29 I would dismiss ground 2.

Ground 3: Deterrence. 30 The appellant contended that her Honour had no regard, or insufficient regard, for deterrence, general and specific. Reference was made to s3A of the Crimes (Sentencing Procedure) Act 1999, where the purposes of a sentence are identified and include the following: "s3A(b) to prevent crime by deterring the offender and other persons from committing similar offences," 31 Deterrence, especially in the context of environmental offences, is a matter of some importance. In Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357, Mahoney JA said this: (at 359) "The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded, but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur." 32 In Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (supra), Kirby P (Campbell and James JJ agreeing) made the following comment in the context of the objects of pollution control legislation: (at 701) "The objects of the Act and its provisions would require a substantial sentence to punish the appellant, to deter others and to encourage full compliance with the Act by the appellant and others." 33 More recently, the Chief Judge of the Land and Environment Court, Preston J, in Bentley v BGP Properties Pty Limited [2006] NSWLEC 34, said this: "139. The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597 to 598. 140. This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at paras 85 and 93 per Lloyd J. 141. The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and important components of it such as threatened species, must be complied with." 34 In the present matter, her Honour dealt with the issue under the heading, "Deterrence", in these terms: "34. The Prosecutor has argued that general deterrence is an important consideration in sentencing (see Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 per Badgery-Parker J at 367; Camilleri's per Kirby P at 701). The Prosecutor particularly focused on the nature of the many operators working in the waste industry (see Environment Protection Authority v Fernando & Anor [2003] NSWLEC 281 per Talbot J at [21]). 35. I consider it is unlikely that this Defendant will offend again and do not consider specific deterrence is a factor. I would characterise the offences as uncharacteristic aberrations rather than evidence of a continuing attitude of disobedience of the law (see Veen v The Queen [No 2] (1988) 164 CLR 465 at 477). While the Prosecutor relied on Fernando where specific deterrence was a particular factor taken into account in determining sentence I do not consider the culpability of this Defendant is of the same character as the defendant in that case." 35 The appellant complains, first, that her Honour simply recited the submissions, but made no finding, nor statement as to the place of deterrence in her reasoning. It was said that, to the extent that it may be suggested that the need for deterrence was reflected in the penalties she imposed, the level of penalty was "so low as to provide encouragement to those involved in the industry to take the risk of committing such offences", the fine becoming simply a cost of the business. 36 Secondly, the appellant submitted that it was inappropriate to leave out of account specific deterrence on these facts. Her Honour's finding that the offence was an "uncharacteristic aberration" had "an air of unreality". Many environmental offenders were, according to the appellant, first offenders, just as drug couriers and fraudsters were often persons of previous good character. Specific deterrence was needed to quell the temptation to reoffend. Reference was made to Environment Protection Authority v Fernando & Anor [2003] NSWLEC 281, where Talbot J said this: "21. There is a real case for demonstrating the need for general deterrence in the punishment of Chester Fernando. That need is in addition to the important aspect of deterrence to Chester Fernando as an individual. The nature of the business in which he is employed is such that temptation can be expected to arise regularly, even if the Court can be satisfied that Chester Fernando realises that his actions were irresponsible and stupid ... There is no doubt that Chester Fernando knew that what he was doing was contrary to law, dangerous and deceitful." 37 The respondent answered these submissions by stating that her Honour was well aware of the importance of general deterrence. Reference was made to the following exchange between counsel for Mr Barnes and her Honour: (T26) "PRIESTLEY: ... In terms of general deterrence your Honour in some respects it seems to me that is possibly the major question for your Honour. If you accept everything that I've said. HER HONOUR: I agree with that, that is the major question for me I think." 38 The complaint by the appellant concerning the amount of the fine overlooked, according to the respondent, the significant costs which he was ordered to pay. Further, it was inaccurate, in the context of this prosecution, to speak of the fine as simply "a cost of the business". That may be appropriate where the person prosecuted owns the business or had been encouraged by his employer to engage in illegal activity. However, that was not this case. Mr Barnes was a truck driver. He did not own the business. He was not encouraged by his employer. The respondent submitted that her Honour's findings on specific deterrence were open and justified on the evidence. 39 Weighing these arguments, again I do not believe that there was error. I accept that her Honour was conscious of the importance of general deterrence, although she did not say so in terms. However, I also accept that it was desirable that her Honour include in her remarks a statement that, in the context of environmental offences, general deterrence was important. The penalties which the Court ultimately imposed should operate as a deterrent to others who may be tempted to engage in similar conduct. I will postpone for the moment, whether the penalties were in fact adequate to serve the needs of general deterrence, until I deal with ground 1 below. 40 Moving to specific deterrence, the findings made by her Honour were open and, indeed, unsurprising. Mr Phillip Barnes was born on 13 July 1973. In February/March 2004 he was 30 years old. He had worked in the waste industry for nine years, driving a tanker. He said that he had never previously offended. There was no evidence that he had. He had never been convicted of an environmental offence nor, indeed, of any criminal offence. He was a person of good character. He was a member of the Army Reserve. He was highly regarded by those who knew him. Once the issue was drawn to his attention, he immediately acknowledged his responsibility. He said that he would not reoffend. 41 The case relied upon by the Crown of Environment Protection Authority v Fernando & Anor (supra) was rather different, as I will explain in the context of ground 1 below. 42 I would dismiss ground 3.

Ground 4: The Totality Principle. 43 Her Honour, in her remarks, said this: "Totality 41. The Prosecutor accepted that the principle of totality ought to apply as the two offences were committed close together. That principle provides that the aggregate of the two fines should be considered to see if these reflect the overall seriousness of the offences. The individual fines should be reduced if just and appropriate (see Mill v R (1988) 166 CLR 59 at 62-63). I agree that the totality principle ought to apply." 44 R v Mill, stated that the totality principle was a recognised principle of sentencing when sentencing for a number of offences. It had been accurately and succinctly stated in Thomas, Principles of Sentencing, 2nd ed. (1979), in these terms: (at 56-57) "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.'" (omitting references) 45 In R v Holder (1983) 3 NSWLR 245, Street CJ described the principle as follows: (at 260) "... 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 straightforward 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. ..." 46 The plaintiff, in written submission, also drew attention to the following statement by Kirby P in Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (supra), which is relevant in the context of the imposition of fines: (at 704) "The principle of totality is applicable where the penalty imposed is by way of fine: see R v Sgroi (1989) 40 A Crim R 197 at 203. However, it may be that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation: see R v Brown (1982) 5 A Crim R 404 at 407." 47 The offences were, according to the appellant, serious. There was deceit in their execution. They were separated by a significant time. Her Honour failed, according to the appellant, to provide reasons why it was "just and appropriate" to reduce the penalties that would otherwise apply. The appellant, in written submissions, added the following: (at 19) "52. ... Her Honour's bland statement that 'the totality principle ought to apply' was, with the greatest respect, meaningless and did not adequately explain at all the huge discrepancy in the two penalties imposed. The only common feature to the offences was that large quantities of septic waste were dumped and that the dumping occurred at the same location. Only in a very general sense could it be said that the offences ought to have been regarded as the same activity." 48 Counsel for Mr Barnes, in response, rejected the prosecution's description of the offences and the circumstances in which they were committed. Whilst the behaviour of the respondent was wrong, it should be regarded as low on the scale of seriousness. The time difference between the two offences was uncertain, but could have been as little as four days. It could not be described as "significant". The prosecutor at the sentencing hearing, as her Honour said, acknowledged that the totality principle should be applied. 49 Dealing with these arguments, the totality principle clearly had application. Her Honour was sentencing for two offences. It was not simply a matter of fixing a fine for each offence. Her Honour was obliged to review the aggregate and consider whether it was just and appropriate, as a reflection of the criminality overall. That may require some moderation of the sentences imposed in respect of each offence. 50 Here, the fine in respect of count 1 ($4,000) was significantly different from that in respect of count 2 ($500). However, the disparity by itself does not suggest error. Where there are multiple offences, each punishable by a custodial sentence, the totality principle may find expression through the complete or partial accumulation of sentences, or through making all or some of the sentences concurrent (cf Pearce v The Queen (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at 624 (para 45)). However, there is obviously no room for partial accumulation or concurrence in the case of fines. If the sentencing Judge believed that the totality principle required an adjustment to the fines which may otherwise be appropriate, the amount of each fine had to be altered, applying the sentencing principles suggested in Johnson v The Queen (2004) 205 ALR 346. 51 I would dismiss ground 4.

Ground 5: Local Court Proceedings. 52 Under the Act, more serious offences (termed "Tier 1 Offences" under Pt 5.2), must be dealt with either summarily before the Land and Environment Court or upon indictment before the Supreme Court (s214(1)). Other offences may be dealt with either summarily in the Local Court or summarily before the Land and Environment Court (s215(1)). Where proceedings are instituted in the Local Court, the maximum penalty is subject to the jurisdictional limits of that Court (s215(2)), relevantly $22,000. 53 Here the offences were not Tier 1 offences. They could (at the option of the prosecution) be dealt with either in the Local Court or in the Land and Environment Court. The issue before her Honour was whether that fact was a relevant consideration which may operate to mitigate the appropriate sentence. Her Honour determined that it was, referring to R v Crombie [1999] NSWCCA 297. In that case the prosecution elected to bring proceedings on indictment in the District Court, rather than summarily in the Local Court. Wood CJ at CL (Simpson J agreeing), said this: "14. It was common ground, as the sentencing statistics bear out, that, had the matter been dealt with in the Local Court, then it is likely that it would have attracted a significantly lesser sentence than that which was imposed by his Honour. 15. This Court has acknowledged that the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge ... 16. None of those decisions go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment ..." 54 Her Honour also referred to R v Doan (2000) 50 NSWLR 115, where Grove J (Spigelman CJ and Kirby J agreeing), referred to the principle in Crombie and said this: "42. ... The cases reveal that the circumstance can, rather than should, be a matter of mitigation. All offenders in the relevant situation would have lost the chance of being dealt with within the restrictions applicable in the summary court and for that reason that chance should not be ignored. The significance of the loss of that chance would undoubtedly vary from case to case and in some cases it would contribute to mitigation, in others, not. I see no reason to depart from the approach taken in those cases but they are authority for the proposition that it is a matter to be taken into account and not a universal factor for reduction of sentence." 55 Having set out the authorities, her Honour said this: "50. A number of Supreme Court decisions have applied Doan . I consider that in the circumstances of this case, it is appropriate that I have regard to the fact that the Prosecutor could have initiated proceedings in the Local Court as a mitigating factor in sentencing. 51. The parties agreed as a sentencing principle that even if the matter were in the Local Court the maximum penalty of $120,000 would still be applicable and a matter to which the Local Court must have regard in sentencing, despite the jurisdictional limits applying in the Local Court (see Doan per Grove J (with whom Spigelman CJ and Kirby J agreed) at [35]; Ebacarb Pty Ltd v Environment Protection Authority [2003] NSWLEC 411 per Talbot J at [9]-[11])." 56 The appellant asserted that her Honour was in error, first, in assuming that the maximum fine that could be imposed by the Local Court ($22,000) was the maximum penalty, rather than the jurisdictional limit of that court. However, such a submission overlooks her Honour's express words in para [51] above. 57 The appellant, secondly, suggested that before the principle could be applied, her Honour had to determine that she would otherwise have applied a penalty exceeding $22,000 and that it was, nonetheless, appropriate for the prosecution to bring the case in the Local Court. 58 It was said, in reply on behalf of Mr Barnes, that there was no error. It was open to her Honour to determine that the matter could have been presented in the lower court. The submissions continued in these terms: (at 9/10) "35. ... Because of the prosecutor's choice, the respondent has been required to travel to Sydney, involving time off work and expense, and also suffer the spectre of the proceedings with a life ruining possibility of $240,000 of fines hanging over his head. Furthermore, costs incurred are likely to be greater in the higher court than in the lower court. The sentencing judge was quite right in both principle and on the facts to give these matters recognition." 59 I do not believe that there was error. There are some cases where "the objective and subjective criminality of the offender" (to borrow the phrase of Wood CJ at CL in R v Crombie) makes it entirely appropriate that the matter be dealt with in the higher court, in which case the fact that it may also be dealt with in the Lower Court will be irrelevant. Where the sentencing judge, however, believes that the matter was capable of being dealt with in the Local Court, that fact may be regarded as a matter in mitigation. 60 Here, it was, I believe, open to her Honour, in the circumstances of these offences and this offender, to regard the matters as capable of having been dealt with in the Local Court. It was therefore appropriate that her Honour should regard this aspect as a matter in mitigation. 61 I would dismiss ground 5.

Ground 6: Means to Pay. 62 The affidavit of Mr Barnes, filed before her Honour, described his financial circumstances in these terms: "13. My only substantial asset is my home which I own jointly with my wife. Aside from that we own a 1994 Toyota Corolla with a value I would estimate at about $3000, and a 2002 Ford Falcon which I would value at $17,000. Our major liability is the mortgage over our home for $200,000 to the St George Bank. My wife and I have no significant savings. 14. My financial circumstances could be summarised as follows: (a) My average weekly income $650.00 net; (b) My wife's weekly income is $540.00 net; (c) Average weekly outgoings including mortgage of $1,000.00; (d) House purchased in March 2005 for $430,000.00; (e) Motor vehicles with estimated value of $20,000.00; (f) Mortgage taken out in March 2005 $200,000.00." 63 Under the heading, "Means of the Defendant to pay", her Honour said this: "43. Under s6 of the Fines Act 1996 , in the exercise of its discretion to fix the amount of any fine, the Court is required to consider such information regarding the means of the accused as is reasonably and practicably available for the Court's consideration and such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. The Defendant submitted that he has very limited means to pay a substantial fine. The Defendant is 32 years old, married with a $200,000 mortgage and a weekly net salary of about $650. His wife also works. He has some equity in a house which is owned jointly with his wife. His disposable income after expenses are paid is about $100 per week. I accept that he has limited ability to pay a substantial fine." 64 Whilst acknowledging that the means of the offender were relevant, the appellant asserted two errors. First, whilst the respondent earned a modest wage, he and his wife had significant equity in their home. Secondly, and in any event, there were a number of considerations, some pointing in different directions, in respect of which her Honour was required to strike an appropriate balance. Whilst limited means was one matter, others included deterrence and denunciation. The limited means of Mr Barnes should not cause the Court to impose a low or nominal fine that would not operate appropriately as a deterrent to others and to Mr Barnes himself (cf Lloyd J in Environment Protection Authority v Obaid [2005] NSWLEC 171). 65 The respondent answered these submissions by stating that the home, recently acquired, was jointly owned by the offender and his wife. He had a half share only and, in any event, there was no warrant, on these facts, to bring about his economic ruin. 66 In dealing with these arguments, it may be helpful to enlarge upon the principles. Under the Common Law, the principles were described by Finlay J (Studdert J agreeing) in R v Rahme (1989) 43 A Crim R 81, as follows: (at 86/7) "It is clear I think that what is required where the court is contemplating the imposition of a financial penalty is a decision of whether or not the appellant has the means. I note for example the case of Fox (1987) 9 Cr App R 110 at 114: 'But what should be the proper approach in the present case? It seems to us that before deciding whether to impose a financial penalty, the trial judge had to decide whether or not this appellant had the means.' Scarman LJ in Jamieson (1975) 60 Cr App R 318, after agreeing with the observation concerning the imposition of a fine of substance in the particular offence there under consideration, which was a prevalent offence, and making it plain that the courts do deal severely with such offences, observed: 'But there are two other principles to be observed when imposing a sentence such as this. The first is that a sentence must always be linked with the particular circumstances of the offender as well as the particular circumstances of the offence. Indeed, a sentence derives its character or justice or injustice from a combination of those two sets of factors.' That case is authority for the broad proposition that once a determination has been made that a fine should be imposed the correct procedure in assessing the appropriate amount of the fine is to determine it by reference to the gravity of the offence for which it is imposed. If the court is satisfied that the offender would be unable to pay the amount determined it may reduce it to take account of the offender's means and impecuniosity." 67 In Smith v The Queen (1991) 25 NSWLR 1, the accused was called as a witness in a murder trial. At the time he was called he was already serving a life sentence for murder himself. He refused to give evidence and was charged and convicted of contempt. The trial Judge imposed a fine of $60,000. In an appeal against that fine, the Court by majority (Mahoney and Meagher JJA, Kirby JA dissenting) said that, whilst the fine should not be excessive, in some circumstances a large fine will be appropriate, notwithstanding the offender's limited capacity to pay. 68 The Fines Act 1996 includes the following provision: " s6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount." 69 Ordinarily the fine is payable within 28 days. The Court may, upon application, extend that time. 70 Here, her Honour did not mistake the principle to be applied. Mr Barnes had limited means to pay a substantial fine (and costs). That is not to say that he could not have paid more than the fines imposed, especially were he given time to pay. The real issue concerns ground 1, and whether the penalties imposed were manifestly inadequate. I now turn to that issue. 71 I would, however, dismiss ground 6.

Ground 1: Were the Penalties Manifestly Inadequate? 72 The appellant submitted that the real issue on this appeal was whether environmental crimes were to be treated as real crimes, and appropriate penalties imposed. The maximum penalty, in the case of an individual, in respect of an offence under s143(1)(a) of the Act, was $120,000 for each offence. The level of penalty, therefore, in respect of count 1 was 3.3% ($4,000) of the maximum penalty and 0.42% ($500) in respect of count 2. Both fines were said to be manifestly inadequate. 73 Enlarging upon this submission, the appellant said this, in written submissions: (p3) "11. ... It was the Appellant's case before her Honour that the offences were not insignificant and that a substantial monetary penalty was warranted. The offences involved the unlawful dumping of some 11,000 litres of septic waste containing significant faecal contamination. Her Honour was asked by the Appellant to take into account the following matters, in particular (AB 107): (a) the offences were deliberate and deceitful; (b) the unlawful conduct was repeated by the commission of the second offence; (c) the Respondent knew that what he was doing was wrong; (d) the offences were entirely avoidable; namely, the septic waste could have been disposed of in a lawful manner; (e) the waste was dumped on private land and the Respondent trespassed on to that land to dump the waste; (f) the Respondent/the property did not have any of the required consents or approvals to dispose of the waste lawfully at the property; (g) the waste was dumped in a place where it was obvious humans or cattle might frequent; (h) the volumes of waste dumped were fairly significant, namely, 7,000 litres and 4,000 litres respectively (11,000 litres total); and (i) the Respondent took no action to notify anyone of the offence." 74 Deterrence and denunciation were important. 75 The respondent submitted however, that properly understood, the offences of Mr Barnes were not particularly serious. Taking account of the subjective circumstances, the penalties imposed by her Honour were within the available discretionary range. Even were the Court to take the view that there had been error, in that the fines were too lenient, it was submitted it should not intervene having regard to the principles to be applied in respect of Crown appeals. 76 Before examining these arguments, I should describe more fully what was said by her Honour in her remarks on sentence. Having set out the circumstances in which the offences were committed, a number of matters in mitigation were identified. Some have been referred to already. First, Mr Barnes had pleaded guilty at the first available opportunity. He was entitled to a 25% discount. Secondly, he had shown contrition and remorse. He had, from the outset, made full and frank admissions and co-operated fully with the prosecution. Thirdly, he was a person of good character, with no criminal record. He was unlikely to re-offend. Fourthly, in her Honour's judgment, the offences could have been prosecuted in the Local Court. Finally, Mr Barnes was a person of limited means. Although he owned a home with his wife, it was subject to a substantial mortgage. 77 Having identified these matters, favourable to Mr Barnes, her Honour then dealt with costs and determined the appropriate penalty. She said this: "52. The Defendant has relied on Environment Protection Authority v Barrett [2003] NSWLEC 182 in seeking that there be no order as to costs. Alternatively the Defendant seeks an order that costs be limited. This is opposed by the Prosecutor. Under s253 of the Criminal Procedure Act 1986 the Court can award costs and it is common practice that this be done in this Court. In Barrett , the defendant pleaded guilty to negligently causing a spill, a Tier 1 offence pursuant to the POEO Act carrying a potential penalty of imprisonment. I consider the circumstances in Barrett are quite different to those before me and that it is appropriate that I make an order for costs in the Prosecutor's favour in some form . I do consider the amount of costs ought to be taken into account because if substantial they will clearly impact on the ability of the Defendant to pay a fine. 53. The Defendant has now agreed to pay the Prosecutor's legal costs of both proceedings in the amount of $15,000. The Prosecutor also made an application for its costs and expenses reasonably incurred during the course of its investigation pursuant to s248(1) of the POEO Act. The Defendant agreed he should pay the Prosecutor's costs of investigation in the amount of $727.13. In the context of this case, given the admission of guilt made by the Defendant in the record of interview with the Prosecutor on 2 June 2004 (see par 12 above) and the early pleas of guilty advised by his lawyers on 13 September 2005 (see par 17 above), these costs are substantial and I take this into account . Had the costs not been so great I would have imposed a much higher penalty. 54. In all the circumstances I think that the Defendant's penalty for the first offence should be $4,000 and for the second offence $500." (emphasis added) 78 The assertion by the appellant that the penalty imposed was "a miniscule proportion of the maximum penalty" is not entirely accurate. The individual fines (which total $4,500) had, in each case, been discounted by 25% to take account of the pleas of guilty. But, more than that, the costs of $15,727.13 were an important aspect of the punishment of Mr Barnes. Quite apart from his own costs, he was required, by reason of his breaches of the law, to pay slightly in excess of $20,000. 79 Sentencing, as McHugh, Hayne and Callinan JJ remarked in Pearce v The Queen (supra: para 46), is not a process that leads to a single correct answer arrived at by some process admitting mathematical precision. It is, as the appellant recognised, an exercise of discretion by the sentencing Judge. The issue on this appeal is whether the penalties imposed were within the proper exercise of that sentencing discretion. Reference was made, in the course of argument, to a number of decisions by the Land and Environment Court. The decisions related to offences prosecuted by the Authority under the same provision. They were said to provide insight. One must be wary of endeavours to match one case with another. Inevitably each case depends upon its own facts. No single case establishes a tariff (cf R v Trevenna [2004] NSWCCA 43, per Barr J, para [99]; R v George [2004] NSWCCA 247). That said, the cases were drawn to her Honour's attention and it is instructive to examine them in the context of her decision. 80 The first was a matter of Environment Protection Authority v Fernando & Anor (supra). The prosecution was under s143(1)(a) of the Act in respect of the dumping of waste. The company operated a cleaning business under the Fernando Trust. Mr Fernando managed that business. In January 2002, the company quoted on a contract to collect and dispose of drums of hazardous and inflammable chemicals, and to undertake certain cleaning work. It underquoted and, instead of disposing of the chemicals appropriately, they were taken by Mr Fernando to a remote location and dumped. There were 16 containers in all. The matter came to the notice of the Environment Protection Authority. It asked to speak to Mr Fernando. He denied that he knew anything about the dumping. He altered the appearance of the vehicle which had been used in the dumping, removing the signs written on the side of the vehicle, and replacing its tyres. Ultimately, once confronted with the evidence, he acknowledged his responsibility. 81 Talbot J determined that there was need to fix a penalty which would serve the needs of general deterrence and deter Mr Fernando as an individual. The company was ordered to pay $5,000. Mr Fernando was ordered to pay $60,000. Both were made jointly and severally liable for the prosecution costs. 82 There are obvious differences between that case and the offences committed by Mr Barnes. First, there was a clear identify of interests between the company and Mr Fernando, which was reflected in the fines imposed by the sentencing Judge. Mr Barnes, on the other hand, was not the owner of the waste disposal business. He drove a tanker. Secondly, there were differences in the waste which was dumped. Thirdly, there were important differences in attitude. Mr Barnes immediately accepted responsibility. Mr Fernando, on the other hand, went to great lengths to conceal his involvement before ultimately accepting responsibility. His Honour, appropriately, regarded the offences of Mr Fernando as much worse than those of Mr Barnes. 83 The second case bears a superficial similarity to the facts in this prosecution. It was a matter of Environment Protection Authority v Davis [2005] NSWLEC 643. Mr Davis owned and operated a business collecting waste from residential septic tanks. He had a licence to transport that waste, using a vehicle which had a capacity of 4,000 litres. By arrangement, he was obliged to dispose of the waste at a particular facility. On 20 February 2004, an officer of a government department was driving past a recreation area in Kyogle. He saw Mr Davis' truck. It was parked within the recreation area close to the banks of a river. The officer stopped. He saw Mr Davis discharging about 2,000 litres of sewerage onto the river bank. There was significant rain after the incident, which washed some of the sewerage into the river. 84 Mr Davis was later interviewed. He had been caught red-handed. He acknowledged his offence. He said he had a "brain explosion". He later pleaded guilty. He had a limited income and lived on a rural property in respect of which there was a mortgage of $160,000. His equity in that property was not stated. He had approximately $10,000 in savings. The sentencing Judge, Lloyd J, said this: "26. The primary consideration in sentencing is the objective gravity or seriousness of the offence. A number of factors highlight the seriousness of the offence in this instance. These might be described as aggravating factors. In the present case there is the quantity of waste involved - in the range of 1,500 to 2,000 litres. There is the deliberate nature of the offence. There is the fact that the defendant had consent to dispose of the waste at an approved disposal point. There is the fact that the defendant in doing what he did was saving himself both time and money, money saved in not having to travel to Lismore and pay for the tipping. And there is the nature of the waste itself and the fact that the Tweed River here is a source of drinking water. 27. General deterrence is also a major consideration in the imposition of penalties. The penalty must be sufficient to compel attention to others so that others are discouraged from committing like offences. For strict liability offences, however, care must be taken to ensure that the penalty imposed does not cause this particular defendant to shoulder an unfair burden of community education: see Waldon v Hensler (1987) 163 CLR 561 at 570." 85 His Honour accepted Mr Davis was unlikely to re-offend. Specific deterrence was unnecessary. His Honour ultimately made an order in these terms: "32. Having regard in particular to the defendant's modest means to pay any fine as required by the Fines Act , I consider that an appropriate penalty in this case is $8,000. I am prepared to discount this sum having regard to all relevant matters by $3,000, to $5,000. Accordingly, the Court makes the following orders: 1. The defendant is formally convicted of the offence as charged. 2. The defendant is fined an amount of $5,000. 3. The defendant is ordered to pay the prosecutor's costs of $9,000. ...". 86 In argument before Pain J the prosecution sought to distinguish the Davis case, first, because there had been one offence not two, and secondly, because the amount of waste was significantly greater in the case of Mr Barnes (11,000 litres) compared to Mr Davis (2,000 litres). Thirdly, it was said that Mr Barnes had trespassed upon private land in order to dump the waste, whereas Mr Davis was within a public recreation area. 87 I should have thought, however, that dumping sewerage upon the banks of a river in a public recreation area, where it was likely to flow into the river and did in fact do so, was rather worse than the crimes committed by Mr Barnes. 88 Returning to the penalty imposed upon Mr Barnes. As a matter of first impression, the fines imposed appeared unduly lenient, suggesting error. However, the fines were part only of the penalty. Mr Barnes was obliged to pay substantial costs. Her Honour made it clear that, but for that fact, the fines she would have imposed would have been much higher. 89 Even taking account of costs, I am left with the impression that the penalties imposed upon Mr Barnes were very lenient. I would have expected, as a minimum, fines totalling $10,000. That is a sum which is obviously more than $4,500, but not significantly more. This being a Crown appeal, the fact of double jeopardy is recognised (R v Allpass (1993) 72 A Crim R 561), that is, Mr Barnes is before this Court facing sentence again in respect of the same offences, and the possibility that the penalties imposed by her Honour may be increased. On a Crown appeal there is a discretion not to intervene. 90 Here, although arguably there was error; in the circumstances, I believe this Court should not intervene.

Order. 91 I therefore propose that the appeals should be dismissed. 92 HOEBEN J: I agree with Kirby J.

17/08/2006 - Omissions corrected. - Paragraph(s) Paras 1 and 92

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