Director of Public Prosecutions v Vinter Avenue Pty Ltd

[2018] VCC 1149

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

AT MELBOURNE
CRIMINAL JURISDICTION

AP 18-1224

DIRECTOR OF PUBLIC PROSECUTIONS

v

VINTER AVENUE PTY LTD

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 July 2018
CASE MAY BE CITED AS:	DPP v Vinter Avenue Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VCC 1149

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Respondent	Mr S. Keating
For the Applicant	Mr B. Murphy QC with Ms T. Skvortsova

Pages 1 - 3

 

 

1HER HONOUR:  The matter before me are two charges pursuant to ss.227A(1)(b) and 53C(1)(a) of the Environment Protection Act against Vinter Ave Pty Ltd.  I do not propose to recite the facts which are set out in the prosecution opening read in open court this day.  Both offences are strict liability offences, which is the basis upon which the defendant company has pleaded. 

2I heard evidence upon the plea from a director of the company, Mr Young.  I accept his evidence in its entirety.  He was a person, in my view, who takes responsibility for the offending and a person who takes his responsibilities under the Act seriously. 

3The company took steps to engage professional assistance.  The company was unfamiliar with the process involved in remediation of this kind of waste.  That does not change their responsibilities but is relevant in terms of determination of the level of their offending.  The defendant company relied upon the professional advice the received.  In my view, having heard the evidence of Mr Young, there was nothing sinister in the profit share arrangement as explained by him.

4Albeit that it was an email, the advice identified a process.  There is no suggestion that the defendant company was seeking, in effect, to flout the regulations.  It understood that remediation would occur by sifting of the site. 

5I accept for the purposes of sentencing, however, that general deterrence must be given primacy.  The legislation is designed to protect our community.  Specific deterrence can, in this case, be given less weight in light of the fact that the defendant company has no priors.  I do not accept that they were trying to enhance profit by deliberately or recklessly not complying with the relevant legislation.  I note that $1m has subsequently been spent to remediate the site. 

6I must take into account just punishment and denunciation of conduct which can, and often does, have serious consequences for members of our community.  The actions of the defendant company as regards
non-compliance occurred in circumstances where they failed to sufficiently investigate the basis upon which they were being informed that remediation could occur in the way which was suggested by others. 

7It is relevant, in my view, that the defendant company was unaware of the existence of Mr Watson, who, it seems, acted on a criminal basis and deliberately sought to flout the regulations, presumably with some expectation of gain.

8In relation to this matter, I am sentencing on the basis that the defendant company has breached its strict liability obligations under the legislation.  Further enquiries should certainly have been made, but I do not accept for the purposes of sentencing that there was any profit motivation as regards the non-compliance.

9In all the circumstances of this matter, in relation to Charges 1 and 2, the defendant company is convicted and fined an aggregate of $75,000.  I make the order pursuant to s.77AC(2) in the terms of the draft.

10The defendant company is ordered to pay costs in the sum of $21,345.65. 

11I grant a stay of one month in relation to payment of both fines and costs.

12Is there anything else I need to do?

13MS KEATING:  Just the publication order, Your Honour.

14HER HONOUR:  I have mentioned that. 

15MS KEATING:  Done?

16HER HONOUR:  Yes.

17MS KEATING:  I'm sorry.  I beg your pardon.

18HER HONOUR:  I have indicated that it is in the terms of the draft ‑ ‑ ‑

19MS KEATING:  If Your Honour pleases.

20HER HONOUR:  ‑ ‑ ‑ which I have amended by putting in the relevant sums.  So that can be returned.  Yes, thank you.

21MR MURPHY:  May it please Your Honour.

22MS KEATING:  If the court pleases.

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