Cabonne Shire Council v Environment Protection Authority
[2001] NSWCCA 280
•4 July 2001
Reported Decision:
(2001) 115 LGERA 304
[2001] ACL Rep 180 NSW 80
New South Wales
Court of Criminal Appeal
CITATION: Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280 FILE NUMBER(S): CCA 60855/00 HEARING DATE(S): 4 July 2001 JUDGMENT DATE:
4 July 2001PARTIES :
Cabonne Shire Council - Appellant
Environment Protection Authority - RespondentJUDGMENT OF: Giles JA at 1; Hulme J at 40; Adams J at 44
LOWER COURT JURISDICTION: Land and Environment Court LOWER COURT FILE NUMBER(S) : LEC 50047/00 LOWER COURT JUDICIAL
OFFICER :Cowdroy J
COUNSEL : I S Lloyd QC - Appellant
D A Buchanan SC - RespondentSOLICITORS: Minter Ellison - Appellant
Stephen Garrett - RespondentCATCHWORDS: SENTENCING - pollution of waters - fine effectively of 30% of maximum penalty before discount for early plea - gravity of offence low - sentence manifestly excessive - much reduced fine substituted - observations on effect of legislature's increase of maximum penalty. LEGISLATION CITED: Clean Waters Act 1970;
Courts Legislation Amendment Act 2000;
Criminal Appeal Act 1912;
Protection of the Environment Operations Act 1997.CASES CITED: Camilleri's Stock Feed Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Environment Protection Authority v Orange City Council (1995) NSWLEC 103;
Environment Protection Authority v Timber Industries Ltd (2001) NSWLEC 25;
Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661;
R v Slattery (1996) 90 A Crim R 519.DECISION: Sentence of a fine of $75,000 imposed by Cowdroy J quashed; in lieu thereof the appellant be fined $11,250.
IN COURT OF
CRIMINAL APPEAL
LEC 50047/00
CCA 60855/00
GILES JA
HULME J
ADAMS J
Wednesday 4 July 2001
1 GILES JA: On 1 September 1999 raw sewage disposed of by the appellant's sewage carter at a landfill site flowed from the site down a dry gully line. On 16 August 2000 the respondent as prosecutor brought proceedings in the Land and Environment Court alleging that the appellant had thereby committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 (“the Act”) in that it polluted waters. The appellant pleaded guilty to the charge. On 30 November 2000 Cowdroy J determined that it should be fined $75,000, and ordered that it be convicted, fined in that amount, and pay the respondent's agreed costs of $7000.
2 The appellant appeals against the sentence on the ground that it is manifestly excessive.
3 An appeal lies by the combined operation of ss 5AA and 5AB of the Criminal Appeal Act 1912. Prior to the amendments made by the Courts Legislation Amendment Act 2000 such an appeal was by way of rehearing on the evidence before the trial court, subject to fresh, additional or substituted evidence by leave (see Camilleri's Stock Feed Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683). The amendments omitted sub-ss (3) and (3A) of s 5AA, which had provided for an appeal of that nature. In the light of the observations of the court in Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661, which clearly enough brought the amendment, it was intended that an appeal under s 5AA become an appeal of the same nature as that for which s 5 of the Criminal Appeal Act provides, described in HistolloPty Ltd v Director-General of National Parks and Wildlife Service as an appeal "in the strict sense".
4 The orders below having been made after 25 September 2000, the date on which the amendment commenced, this appeal is an appeal in the strict sense. The respondent did not contend that the leave requirement in the case of an appeal against sentence in s 5(1)(c) of the Criminal Appeal Act was applicable, but if leave be required I consider that it should be granted.
5 It is accordingly necessary that the appellant establish error on the part of Cowdroy J. It is not enough that this Court would itself have imposed a different sentence. The Court will intervene if an error of principle or a mistake of fact or law is established whereby his Honour's sentencing discretion miscarried, or if the sentence is so excessive that the exercise of the discretion must have been affected by error. Conversely, even if error is established the sentence will not be varied unless the Court considers that some other sentence was warranted.
6 The appellant had a local government area in excess of 6000 square miles. The duties of one of its employees, Mr Gregory Whiley, included pumping out septic tanks using a tanker owned by the appellant. The nature of his duties and the size of the local government area meant Mr Whiley worked alone and had a large degree of autonomy in the performance of his duties. Bookings for pumping out septic tanks were taken by the appellant's administrative staff at its Cudal engineering office. Mr Whiley was told of the bookings, and he arranged to pump out the septic tanks at times fitting in with his overall work programme.
7 The appellant had three landfill sites with septic disposal pits, at Canowindra, Eugowra and Manildra. It also had a landfill site at Cargo, but that site did not have provision for septic waste disposal. The Cargo landfill was located on fairly steep, irregular ground. At its western end there was an embankment, below which a gully line ran in a generally westerly direction on the land of the adjoining owner. The gully was normally dry, but carried water during periods of heavy rainfall. The site was kept locked when not open, but was opened on some days of the week by a part-time operator employed by the appellant, Mr Peter McMillan.
8 On 1 September 1999 Mr Whiley undertook a number of pump-out jobs for which bookings had been taken. He first pumped out the septic tank of Mr Darren Frecklington, filling the tanker. Mr Darren Frecklington was the son of Mr Dudley Frecklington, who was Mr Whiley's cousin and also an employee of the appellant as a plant operator. Accompanied by Mr Dudley Frecklington, Mr Whiley drove the tanker to the Cargo landfill site. He backed it to the rear of the site, where there was a pit used for rubbish disposal, and pumped out the sewage onto the ground. The sewage flowed down the embankment and into the gully. Mr Whiley then drove to Mr Dudley Frecklington's shop, where he pumped out the septic tank, although not filling the tanker, and returned to the Cargo landfill site and emptied the contents on to the ground as before. He then pumped out the septic tank at Mr Dudley Frecklington's residence. Mr Frecklington's neighbour also asked that his tank be pumped out, although he had not made a booking, and that was done. Mr Whiley drove to the Cargo landfill site and emptied the tanker's contents as before. He then undertook other pump-out jobs and disposed of the waste at the other septic disposal pits at the authorised landfill sites.
9 The Cargo landfill site was open as it was one of its regular opening days. Mr McMillan saw Mr Whiley emptying the tanker on at least one of these occasions. It is not clear whether Mr McMillan knew that the contents were septic waste. He did not investigate or become aware of the escape of sewage.
10 In the result, between 10 a.m. and 2 p.m. on 1 September 1999 approximately 13,500 litres of raw sewage was disposed of at the Cargo landfill site. The sewage flowed along the gully for about 100 to 120 metres. The gully was dry at the time. There was nonetheless pollution of water for the purposes of the Act because the effect of the definitions in the Act was to encompass placing polluting matter in a dry watercourse or in a position where it would be likely to fall, descend or be washed into a watercourse or water body at a lower level. As has been noted, the gully carried water during periods of heavy rainfall, and it was connected to Cargo Creek about 1.9 kilometres to the west. Cargo Creek became a perennial watercourse approximately 3.5 kilometres downstream from the connection, and then flowed into Canomodine Creek about 7 kilometres further downstream.
11 An anonymous complaint to a councillor was conveyed to the appellant's Director of Environmental Service, Mr Robert Stewart, who immediately went to the Cargo landfill site. He arrived there a little after 3 p.m. on 1 September 1999. He took prompt steps to prevent the sewage from moving further down the gully. He arranged for a truck and employees of the appellant to attend the site at a little after 5 p.m. Hydrated lime was spread over the waste, a coffer dam was constructed at the furthest extent of its spread, and hay bales were placed at intermediate points. On the morning of 2 September 1999 Mr Stewart contacted Mr Mark Clyne, an environment protection officer employed by the respondent, and reported the matter. Mr Clyne attended at the Cargo landfill site on 3 September 1999. The respondent undertook inquiries into the incident, and Cowdroy J recorded that the appellant and its officers had co-operated from the outset with the respondent in establishing the facts surrounding the discharge of the sewage.
12 How did it come about that Mr Whiley did not take the sewage to one of the authorised septic disposal pits, but disposed of it at the Cargo landfill site?
13 Mr Whiley was regarded by the appellant as a responsible and reliable employee, and Cowdroy J described him as reliable. There was no evidence of any prior incident of the same nature. There was a degree of dispute over whether Mr Whiley had been instructed he could only deposit septic waste at the authorised septic disposal pits at Canowindra, Eugowra and Manildra. Cowdroy J accepted evidence called by the appellant to the effect that Mr Whiley was instructed orally that only those three sites were to be used, and concluded that Mr Whiley was aware of the requirement that septic waste was to be deposited in the authorised places. His Honour described the instruction as given some years ago, and the evidence placed it at late 1990 or early 1991. He observed that Mr Whiley's conduct "appears to have been utterly out of character", by which I take him to have meant that Mr Whiley acted contrary to instruction, practice and good sense on an isolated occasion.
14 Cowdroy J did not make a clear finding as to why Mr Whiley acted out of character. After the observations mentioned, however, he went on:
- " ... there is no evidence that prior to 1 September 1999 he was ever instructed or otherwise educated so that the seriousness of environmental penalties and offences were made known to him. Mr Whiley was given a 'free rein' which has led undoubtedly to these offences for which the defendant must bear the ultimate responsibility."
15 It may be that his Honour had in mind what was said by Mr Whiley at a meeting with Mr Stewart on 3 September 1999 and in a report explaining the incident. The file note of the meeting included:
- "Bob reiterated that there are only 3 dumping sites in the Council area - Greg said he was aware of this - the reason he dumped at the Cargo tip was that he was trying to save time. He said that he knew of the dumping sites but didn't think that it would hurt to dispose of the waste at Cargo.
- Greg said he was aware of the requirement of not polluting a watercourse however he didn't think that the dry gully would be regarded as a watercourse."
16 The report included:
"Although I was aware that Council had designated disposal sites, I was not aware of the consequences associated with the disposal of waste at the Cargo site. I was keenly aware of the work load that I had to complete in the day and thought that by using the Cargo disposal centre I would achieve all the jobs I wanted to in the day.
I now understand the seriousness of my actions as explained by Bob Stewart."I am aware that we are unable to pollute waterways but I was unaware that a dry gully would fall into this category. I honestly was not aware of the seriousness of my actions or the penalties under the law.
17 Following the incident Mr Stewart prepared a written statement of septic tank truck procedures, which included the specific statement that all septic tank effluent was only to be disposed of at approved locations at Canowindra, Eugowra and Manildra. Mr Whiley was required to attend a workshop relating to the operations of the Act held on 10 August 2000.
18 Section 241 of the Act requires that in imposing a penalty for an offence against the Act the court take into consideration a number of matters so far as they are relevant. The matters are:
- “(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence,
- (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,
(e) whether, in committing the offence the person was complying with orders from an employer or supervising employee.”(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
19 Cowdroy J did not specifically enumerate or address these matters, but dealt with them in the course of his reasons.
20 As to (a), his Honour referred to reports of Ms Stephanie Wallace prepared on behalf of the respondent and Mr Martin Haege prepared on behalf of the appellant, and set out in part the conclusions to which they came. Ms Wallace referred to high contamination at a sampling site close to the landfill site and contamination typical of septic waste water at a sampling site 120 metres down the gully. She said the probable environmental effect was the threat of serious harm to livestock through pollutant contamination of livestock water supply, and there was a potential to contaminate watercourses downstream and thus "possibly a potential threat to fresh water quality and aquatic eco systems." Mr Haege considered that the containment and neutralising measures taken by the appellant were effective in mitigating any harm, that there was no actual or lasting harm to the environment, and that the potential of which Ms Wallace spoke had not come about. On my reading of his reasons, his Honour accepted this last position.
21 Although not part of the conclusions set out by his Honour, Mr Haege also explained that the extent of potential harm suggested by Ms Wallace was minimal, because the heavy rainfall necessary for the gully to carry water would bring substantial dilution and because any receiving water was far distant from the source of the pollution. He pointed out that the total quantity of sewage involved was insignificant to the catchment area in comparison to naturally occurring nitrogen and phosphorous export.
22 As to (b), his Honour accepted the appellant had been "responsive once the incident came to its attention" and referred to its "commendable conduct" following the incident. Although he did not say so expressly, he clearly enough proceeded on the basis the appellant had done everything appropriate as a response.
23 As to (c), it is implicit in his Honour's reasons that he considered that the appellant - for the offence as charged it rather than Mr Whiley being the person who committed the offence - could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence. That was at least part of the reason it instructed that sewage should only be disposed of in the authorised septic disposal pits.
24 As to (d), his Honour's consideration seems to have been encapsulated in the passage earlier set out in which he referred to Mr Whiley being given a free rein.
25 It was accepted in the appeal that (e) was not relevant.
26 Cowdroy J noted that the maximum penalty for the offence is a fine of $250,000. His Honour's ultimate reasoning to the penalty of $75,000 was in the following paragraphs of his reasons, which paragraphs include the observation and the following passage to which I have already referred:
19. Mr Whiley's conduct appears to have been utterly out of character there is no evidence that prior to 1 September 1999"18. In this case the Court can conclude that the events of 1 September 1999 were not the result of an accident. Mr Whiley's actions were deliberate. They were repeated on three occasion. In Axer Pty Limited v. Environment Protection Authority (unreported 22 November 1993 NSW CA) Mahoney JA observed that businesses must be arranged so as to ensure that pollution offences will not occur. Whilst such principle does not necessarily have automatic application the Court must take into consideration the circumstances in each case.
he was ever instructed or otherwise educated so that the seriousness of environmental penalties and offences were made known to him. Mr Whiley was given a 'free rein' which has led undoubtedly to these offences for which the defendant must bear the ultimate responsibility.
- 20. The plea of guilty is to be taken into consideration as is the commendable conduct of the defendant following the
incident of 1 September 1999. That consideration has been referred to recently by the Court of Criminal Appeal in R v Thomson and R . Coulton [2000] NSW CCA 309 and also in R v Winchester (1992) 58 A Crim Reports 345 at 350. Further the council has not been charged with any similar offence and the antecedent history can be taken into consideration: see Veen v R (2) (1988) 164 CLR 465 at 477.
- 21. Taking all these matters into consideration the Court finds that the discharge of raw sewage into an unauthorised place warrants a penalty which reflects the gravity of the offence. Also taken into consideration is the fact that the offence was committed intentionally.
- 22. In these circumstances the Court but for the plea of guilty would have imposed a fine of $100,000. The plea of guilty and the defendant's co-operation merits mitigation of up to 25 percent. The Court does not consider that the penalty should be in the lower end of the mid range as is urged by the defendant or in the low range. The appropriate penalty, making allowance of 25 percent for the plea of guilty, is $75,000, which represents approximately 30% of the maximum fine. The parties have agreed as to the amount of costs."
27 His Honour's reference in par 22 to a penalty "in the lower end of the mid range as is urged by the defendant" appears to be a slip. The respondent had submitted that the case fell in "the lower end of the low to mid range" as classified by Stein J in Environment Protection Authority v Orange City Council (1995) NSWLEC 103, that is, in the lower end of the range of 10 per cent to 30 per cent of the maximum penalty. The appellant's submission to his Honour is not recorded, but no doubt it suggested a lesser categorisation.
28 Although it was not a ground of appeal in its own right, the appellant submitted there was error in so far as his Honour took into consideration as a matter of significance what he referred to in par 21 as "the fact that the offence was committed intentionally."
29 By this his Honour seems to have taken up what he said in the first two sentences of par 18, that the events of 1 September 1999 were not the result of an accident and Mr Whiley's actions were deliberate. The person charged with the offence was the appellant, not Mr Whiley. It would be material to consider the education and instruction given to Mr Whiley and the procedures put in place by the appellant in order to guard against disposal of septic waste other than in a proper manner. That Mr Whiley's actions were deliberate would, however, be a consequence of deficiencies in these respects, material because reflecting on the appellant but not itself a matter counting against the appellant in arriving at the penalty to be imposed. To illustrate the point, if an employer had done everything it could possibly have done to guard against an employee wrongly disposing of polluting matter, it could hardly be held against the employer that the employee, for reasons of his own, deliberately did so.
30 In the present case, when Mr Whiley was a reliable employee, when he had been instructed that septic waste was to be deposited in the authorised septic disposal pits, when there was no evidence of a prior incident, and when Mr Whiley's conduct was found to have been utterly out of character, what was the significance of the fact that Mr Whiley's actions were deliberate? It meant that he disposed of the septic waste at the Cargo landfill site intentionally, as distinct from its escaping because of a malfunction of the tanker or some other event which could be categorised as an accident. It was material so far as the appellant's education and instruction may have been deficient in impressing on Mr Whiley that he must not act in such a way. Perhaps his Honour had that in mind in par 19 of his reasons, but he appears to have misled himself by translating it in par 21 to "the fact the offence was committed intentionally." It is quite clear that the offender, that is, the appellant, did not commit the offence intentionally.
31 Apart from the matter of intention, Cowdroy J regarded as significant that Mr Whiley had not been instructed or otherwise educated so that the seriousness of environmental penalties and offences was made known to him, and that he was given a free rein.
32 Mr Whiley was instructed that he should dispose of septic waste only at the authorised septic disposal pits, and the environmental reason for that would have been clear. He was given a free rein in that it was left to him to programme his pump-out and disposal activities, but he was not given a free rein in the sense that he was without instruction as to the disposal of the septic waste. In the absence of evidence of other incidents in the period from (say) the end of 1990 to September 1999, the inference is Mr Whiley understood there was good reason for the disposal of the septic waste only at the authorised septic disposal pits, and that he acted accordingly. As his Honour said, his conduct was utterly out of character. If his Honour did have in mind what was said by Mr Whiley at the meeting and in the report to which I have earlier referred, acceptance of Mr Whiley's explanation is not easy to reconcile with his Honour's conclusion that, contrary to Mr Whiley's assertion, he had been instructed that only the three sites were to be used.
33 No doubt the appellant could have done more. It could have given instructions of the kind to which his Honour referred, and although his Honour did not mention it perhaps it could have given instruction to Mr McMillan which would have brought intervention when seeing the tanker disposing of its contents at the Cargo landfill site. Nonetheless, the question is whether the applicant acted culpably, for present purposes or whether it acted reasonably, I do not think it acted unreasonably. I am unable to see the same significance in the matters mentioned above as apparently seen by his Honour.
34 In the circumstances of this case, I consider that the gravity of the appellant's offence is low. There are then a number of considerations in its favour. The appellant had not previously been charged with any similar offence. It promptly reported the incident to the respondent. It took all appropriate action to contain and clear up the pollution, and it co-operated with the respondent in the inquiries which followed. Although there was no evidence of it, there must have been some cost to the appellant in what it did to contain and clear up the pollution. The appellant pleaded guilty at the earliest opportunity. There was, in the words of Mr Haege, no actual or lasting environmental harm, and from the report of Mr Haege the potential for environmental harm was minimal. Taking these matters into consideration as well, in my opinion the penalty which Cowdroy J came to was manifestly excessive.
35 The respondent acknowledged, indeed volunteered, that because the penalty will turn on the facts of the individual case comparison with other decisions will usually be of limited utility. Notwithstanding this, it provided a 73 page document tabulating over 100 cases in which the Land and Environment Court, and in a few instances this Court, had imposed penalties for offences under s 120 of the Act and its predecessor s 16 of the Clean Waters Act 1970. It referred specifically to some seven previous decisions. This exercise proved the validity of the respondent's initial concession. The appellant, which in oral argument indicated agreement with the thrust of the concession, was more restrained, providing four instances of previous cases. Indiscriminate reference to other cases is of no utility and should be discouraged. Even discriminating reference is likely to be of no utility because the facts in cases such as the present will almost always be peculiar to the individual case. I consider that is so in the present appeal.
36 The respondent submitted that Cowdroy J had appropriately implemented the legislative intention in the doubling of the maximum penalties for pollution of water under the Act when it replaced the Clean Waters Act in 1997. There was an implicit suggestion that this Court should endorse such an approach.
37 The courts must, of course, recognise the maximum penalty provided for an offence, and with an increase in the maximum penalty there will come the imposition in some cases of higher penalties (see R v Slattery (1996) 90 A Crim R 519 at 524). It does not follow, as the respondent's submissions appeared to suggest, that every offence for which a fine of $X would have been imposed under s 16 of the Clean Waters Act should result in a fine of $2X under s 120 of the Act. Offences of low criminality remain offences of low criminality even if the maximum penalty is increased, and the increase can readily be recognised as operating as a deterrent to wilful disregard of statutory obligations. It remains necessary to address the facts of the particular case, with due regard to the current maximum penalty and the seriousness of the offence and to the need for deterrence thereby indicated together with all other relevant matters. We were referred in this regard to par 33 of the judgment of Pearlman CJ of the LEC in Environment Protection Authority v Timber Industries Ltd (2001) NSWLEC 25, a passage of which both the appellant and the respondent indicated acceptance, and I would respectfully endorse what her Honour said in that passage.
38 Taking account of the increase in the current maximum penalty, apart from the appellant's early plea of guilty I consider that the appropriate penalty would be a fine of $15,000. There should be a discount for the early plea of 25 per cent. The resulting fine is $11,250. I propose orders that the sentence of a fine of $75,000 imposed by Cowdroy J be quashed and that in lieu thereof the appellant be fined $11,250.
39 There was some discussion of the position as to costs, in which it appeared to be accepted that as a result of the amendments made by the Courts Legislation Amendment Act 2000 this Court had no power to make an order as to costs. There was no real argument on the matter, and the appellant indicated that it was content to proceed on that basis. Accordingly, I propose that there be no order as to costs. The appellant also accepted that no order should be made disturbing the order for costs below.
40 HULME J: I agree with the orders proposed and with the reasons of the presiding Judge. I would, however, add a few comments of my own.
41 Counsel for the respondent to the appeal submitted that the requirements of deterrence justified a fine of, as the starting figure, $100,000 in this case. That submission seemed to ignore the fact that deterrence is not the sole factor to be taken into account when a court feels obliged to impose a penalty.
42 The fine in this case demonstrates that his Honour can have paid no adequate regard to the lack of personal fault on the part of the appellant and the lack of reason for the appellant to take steps additional to those which had proved adequate over a period of ten years to avoid the problem which has led to these proceedings. His Honour must also have paid insufficient attention to the lack of actual or potential harm of any significant proportion.
43 I have no doubt that in the circumstances of this case the fine which this court proposes to impose will be of significance so far as the appellant is concerned. While penalties far higher may be appropriate to large commercial organisations, recognition has also to be paid to the position of an individual defendant in criminal proceedings. Although the court has not been provided with any detailed financial information concerning the appellant, the material which is before the court also indicates that a fine of the order imposed below, even on this ground alone, was excessive.
44 ADAMS J: I agree with the reasons of the presiding Judge and with the order that his Honour proposes.
45 GILES JA: The orders will therefore be as I have proposed.
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