Fairfield City Council v Hong Son Ngo

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Fines Act 1996 Protection of the Environment Operations Act 1997

PROSECUTOR Mr T Howard SOLICITORS Marsdens Law Group LEGAL REPRESENTATIVES: DEFENDANT Ms J Hickleton SOLICITORS Nguyen & Co Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: 1 The defendant, Hong Son Ngo, has entered guilty pleas to six charges that he committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 (the POEO Act). Section 120(1) makes it an offence for a person to pollute any waters. The maximum penalty for each offence is $250,000 (s 123(b)).

2 The facts were not in dispute. Mr Ngo is employed by TT Rubbish Removal Pty Ltd. He started working for TT Rubbish Removal in January 2005. His job involved picking up garbage trucks from a designated location, driving the truck to a tip where the rubbish could lawfully be deposited, depositing the rubbish, and driving the truck back to the designated location. He works four or five nights a week performing these duties. About a month before the offences in question (which occurred between 7 and 15 December 2006) Mr Ngo was directed by the manager of TT Rubbish Removal to also clean the garbage trucks before returning them. The manager drove him to a location in Spencer Lane in the main part of the Fairfield CBD. She showed him a fire hose on the eastern side of the lane at the rear of a building and a stormwater drain on the western side of the lane. She told him that, after he had deposited the rubbish, he should wash the inside of the truck using the fire hose and then tip the wastewater remaining in the truck into the stormwater drain.

3 On 4 December 2006 a Council officer observed liquid at the bottom of the drain containing solids and a grease-trap odour coming from the drain. The Council installed CCTV cameras. On each of the following occasions the Council observed Mr Ngo drive a garbage truck into Spencer Lane, open a valve at the rear of the truck and deposit the wash wastewater from the truck into the drain: · 8 December 2006 at 6.11am; · 9 December 2006 at 1.28am and 3.26am; · 11 December 2006 at 3.32am; · 13 December 2006 at 5.50am.

4 Council officers attended at the lane on 15 December 2006. They saw Mr Ngo drive a garbage truck into the eastern part of the lane. He used the fire hose to hose the inside of the truck. He then drove around to the drain, opened the valve and drained the wash wastewater into the drain. The stormwater drain in Spencer Lane ultimately flows into Orphan School Creek. The Council officers approached him and directed him to stop what he was doing. Mr Ngo complied. Mr Ngo was given a warning and then interviewed. Mr Ngo showed his driver's licence and confirmed his employment details. He co-operated with the officers of the Council by explaining that his actions as recorded above generally occurred on each occasion. Mr Ngo telephoned his work twice for assistance in removing the truck without further depositing any wastewater into the drain. One of the Council officers observed the rear area of the truck. The wash wastewater had a white greasy layer on the surface of the water in which he observed crab legs, a crab nipper, a part of a broom handle, fragments of a polystyrene box, a small plastic takeaway food container, and a washcloth. The wastewater smelt like seafood waste. Based on some measurements the officer calculated that about 150 to 200 litres of water remained in the rear compartment of the truck. The manager then arrived and the truck was removed. In addition to the interview on site Mr Ngo participated in interviews on 15 February and 6 March 2007. The information he gave in those interviews was consistent with that which he gave on site. Mr Ngo said he did not know the acts were wrong as he assumed his manager had obtained the approvals required and had also seen a Council cleaning truck leak wastewater in the same area.

5 Mr Ngo was born in Vietnam. He is 48 years old. He fled Vietnam about 20 years ago and spent time in a refugee camp in Indonesia before becoming an Australian citizen. He is married with two children. His children are at school and are in their mid to later teens. He is not a fluent speaker of English. His wife does not work and has no real prospects of employment in the near future due to a back injury (for which she is awaiting surgery) and her poor English. Mr Ngo has always sought work but has sometimes had difficulty obtaining work (including a four year period of unemployment). He and his wife own a home (which they bought in about 1993 or 1994 for $117,000). They have a mortgage of $45,000. He earns $320 per week net working for TT Rubbish Removals. His family receives income and child support of $400 per week. From the total of $720 per week, they pay $150 per week on the mortgage leaving $570 per week for all other expenses.

6 Mr Ngo has no prior convictions. He entered his guilty pleas at the first opportunity.

7 The Council seeks an order for costs limited to its filing fees ($4,110).

8 Mr Ngo's counsel submitted that he had limited prospects of employment other than at TT Rubbish Removals. He had fully co-operated with the Council at all times. He had provided and was continuing to provide assistance to the Council in its actions to enforce the law. This places his current employment at risk. He had entered his pleas of guilty at the first opportunity. Given his limited finances a fine and order for costs would practically require him to sell his home due to the unlikelihood of obtaining any significant loan. Mr Ngo had obtained no benefit whatsoever from the offences. He gained nothing from the company having saved money by cleaning its trucks by this unlawful method. He was directed to clean out the trucks by his employer. He had no bargaining power in that relationship. In any event, he did not know what he was doing was wrong. He was a person of good character and had shown his remorse. He was extremely unlikely to re-offend. General deterrence was relevant, but his counsel submitted that all of these factors were relevant to applying notions of general deterrence in the particular case. Mr Ngo's counsel requested that the Court consider an order under s 10 of the Crimes (Sentencing Procedure) Act 1999. That section provides as follows: ( 1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

9 Section 10(1)(b) thus provides a power separate from s 9 to dismiss a charge and impose a requirement for a good behaviour bond (noting that Mr Ngo's counsel also requested a good behaviour bond be considered rather than a fine).

10 Section 241(1) of the POEO Act identifies matters that must be considered on sentence. As to each matter: · Under s 241(1)(a), the offences caused actual harm to the stormwater drainage system by introducing wastewater and some solids. The Council does not allege any harm to the creek but, in terms of likelihood, the system drains to the creek.

· Under s 241(1)(b), Mr Ngo could have taken practical measures to avoid the offences simply by not carrying out the acts.

· Under s 241(1)(c), Mr Ngo could have reasonably foreseen the harm and likely harm as I accept it is common knowledge that stormwater drains drain to creeks, rivers and the sea.

· Under s 241(1)(d), Mr Ngo had control over the causes of the offences subject to the fact he was acting under directions of his employer.

· Under s 241(1)(e), Mr Ngo was complying with orders from his employer. The Council acknowledged the significance of this fact.

11 The Council also acknowledged that the offences were part of a series of closely related events, calling into play the totality principle that the aggregate sentence should not exceed the defendant's overall criminality.

12 All of the factors relied on by Mr Ngo's counsel are relevant mitigating circumstances under ss 21A(3) and 22 of the Crimes (Sentencing Procedure) Act. Nevertheless, the offences were objectively serious. They involved the draining of waste wash water from the activity of hosing out the rear compartment of a garbage truck down an open grate in a public street in the middle of the Fairfield CBD. The wastewater included solid matter and food waste left over from the rubbish lawfully tipped elsewhere. Regulations preventing these types of actions are critical to the orderly and healthy functioning of our urban environment. The community depends on people not to carry out these types of acts for its continued well being. They are of basic and fundamental importance particularly in an urban environment. It is usually difficult to detect those responsible for these types of acts. They tend to be carried out, as here, in the middle of the night and the early hours of the morning. Such actions simply cannot be tolerated. The lack of actual harm to the creek does not change the fact that the defendant, acting under instruction, used the public stormwater system as a form of garbage receptacle. I consider that it would be inconsistent with the objects of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act to apply s 10 to the facts of this case despite all the strong mitigating factors in Mr Ngo's favour. The offences in this case demand that substantial weight be given to the objects of adequate punishment, deterrence of others, protection of the community, and denunciation of Mr Ngo's conduct.

13 I have also given substantial weight to the strong mitigating factors in Mr Ngo's favour, including his limited means (s 6 of the Fines Act 1996), the costs order sought by the Council, his full and continued co-operation, the unfortunate circumstances by which he came to commit these offences by reason of his employer's directions, his good character and lack of prior convictions.

14 I have not found the earlier decisions referred to by the parties of any particular assistance because of the particular combination of facts in the present case.

15 Leaving aside the totality principle I consider that a fine of no less than 10% of the maximum should be imposed for each offence. Having regard to the totality principle the aggregate amount that would result, however, would be excessive in all of the circumstances. Accordingly, I impose a 10% fine ($25,000) for the first offence and a further $1000 for each subsequent offence. I give Mr Ngo the full discount available for his early guilty pleas (a reduction of 25%). This results in a total fine of $22,500. I consider Mr Ngo should be ordered to pay the Council's costs fixed in the sum of $4,110.

16 Accordingly, I make the following orders: (1) The defendant is convicted of the offences charged.

(3) The defendant is ordered to pay the Council's costs fixed in the sum of $4110.

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