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.