Director of Public Prosecutions v Kitanovski

[2018] VCC 2268

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00510

DIRECTOR OF PUBLIC PROSECUTIONS

v

MENDO KITANOVSKI

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	17 December 2018
DATE OF SENTENCE:	17 December 2018
CASE MAY BE CITED AS:	DPP v Kitanovski
MEDIUM NEUTRAL CITATION:	[2018] VCC 2268

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW SENTENCE

Catchwords: Contravention clean up notice – Section 62A(3) Environment Protection Act 1970 – Plea of guilty – Application to withdraw plea of guilty – Leave to withdraw plea refused – No relevant priors – Fine.

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Russell	Office of Public Prosecutions
The Accused was not represented

HIS HONOUR:

1The facts of this matter are set out in the Crown Opening, and also in my ruling today as to your change of plea application. Mr Kitanovski, you can remain seated. I think it is unfortunate in this matter that there has been so many court appearances and clearly, to a degree, it has been due to your reluctance to accept that you had to abide by what the EPA were lawfully requiring you to do; that is, to clean-up your property to their satisfaction, which means to a reasonable standard which doesn't infringe the Environment Protection Act (1970) Vic.

2I have no doubt that the last 12 months of toing and froing in relation to this matter has its genesis in your concern that you were going to be held to an impossibly high standard in terms of the clean-up.  You have also had fitness issues, medical issues, mechanical failings, which have hindered your ability to clean-up.  There is also a degree of frustration on your part that you feel you are being dealt with in a more severe manner than others in similar circumstances.

3Having considered the photographs you provided me from the Atwell matter, that does give me an idea of how serious this sort of offending can become.  But also, it reflects the fact that I am dealing with you for the contravention of a clean-up notice which is considerably less serious than what the photographs would suggest Mr Atwell's position was.

4I am also mindful of the fact that you were fined $10,000 under another regulatory regime by the Council, which nevertheless dealt with the same or similar subject matter. Although I note what Mr Russell has raised in relation to you continuing to receive deposits after receiving notices.  I also accept what you say about your financial circumstances, that they are strained.  I also accept that what emerged during the course of the application to change your plea, that this has caused considerable stress and strain upon you.  A number of your friends and associates have been concerned about you and no doubt, this was one of the reasons which contributed to you deciding to plead guilty.

5General deterrence is important, but the main importance of the offence is cleaning up the property and you are promising to me that you will do so, to a reasonable standard.  I am able to make an order upon convicting you, which is what I will do, which requires you to clean-up.  That requirement will necessarily involve time and money and in my view, it is a matter which also assists the principle of general deterrence.  I will fine you.  As I indicated to
Mr Russell, I consider this a lenient and modest fine in the circumstances,  taking into account all of the matters that I have set out. 

6In relation to the charge you are fined $3,500 with conviction and I make the order pursuant to s.64 of the Environment Protection Act, a copy of which has been handed up by the prosecution. I will sign and date that order now, which that requires you to comply with the order by 30 June 2019. A copy will be provided for you. It includes the following conditions; that you remove all industrial waste from the premises at 627-703 Plumpton Road, Plumpton. I pause to observe again that in my view, that means to a reasonable standard; (2), all removed industrial waste must be taken to facilities with government issued environmental approval to receive those wastes; (3), you are not to accept any industrial waste at the premises from the date of this order; (4), you are required to complete this task under such supervision by EPA, as may be necessary; (5), you are ordered to comply with this order by 30 June 2019 and you are ordered to provide proof of compliance with this order to the Environment Protection Authority together with receipts confirming that the industrial waste was delivered to facilities with government issued environmental approval to receive those wastes. Proof of compliance is required by 31 July 2019. I will date that today's date, 17 December 2018.

7MR RUSSELL:  Thank you, Your Honour.

8HIS HONOUR:  That is signed.  I will sign two copies, so there is a copy for
Mr Kitanovski.  Put one of those on the system.

9MR RUSSELL:  Thank you for your time, Your Honour.

10HIS HONOUR:  All right.  Mr Kitanovski, I do not think I am permitted to provide stays of fines anymore, but you can certainly make enquiries as to instalment plans or I believe there are still opportunities to even convert fines into community work.  But you can make all those enquiries with the Registry.

11HIS HONOUR:  Nothing else?

12ACCUSED:  Thank you, Your Honour.

13HIS HONOUR:  All right.  Ten thirty tomorrow.

14MR RUSSELL:  Thank you, Your Honour.

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