Environment Protection Authority v Attard

[2000] NSWCCA 242

CITATION:	Environment Protection Authority v Attard [2000] NSWCCA 242
FILE NUMBER(S):	CCA 60550/99; 60551/99
HEARING DATE(S):	16 May 2000
JUDGMENT DATE:	16 May 2000
PARTIES :	Environment Protection Authority v Peter Charles Attard
JUDGMENT OF:	Mason P at 1, 17, 19; Sperling J at 2; Smart AJ at 18

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	50026 of 1999
LOWER COURT JUDICIAL OFFICER :	Cowdroy J

COUNSEL :	S J Rushston (Appellant) P H Lander (Respondent)
SOLICITORS:	Steven Garrett (EPA) John Orford & Associates (Respondent)
LEGISLATION CITED:	Environmental Offences and Penalties Act 1989; Criminal Appeal Act 1912; Clean Waters Act 1970.
DECISION:	Appeal upheld, sentence quashed, further orders made - see paragraph 16.

IN THE COURT OF
CRIMINAL APPEAL
CCA60550/99
CCA60551/99

MASON P
SPERLING J
SMART AJ

Tuesday 16 May 2000


ENVIRONMENT PROTECTION AUTHORITY v Peter Charles ATTARD
JUDGMENT


1    MASON P : I ask Mr Justice Sperling to deliver the first judgment.

2    SPERLING J : This is an appeal pursuant to s5D(1A) of the Criminal Appeal Act 1912 against the sentence pronounced by Cowdroy J, a judge of the Land and Environment Court of New South Wales, on 3 September 1999. On that date the respondent pleaded guilty of two offences against the Environmental Offences and Penalties Act 1989, being that on 28 and 29 April 1998 he polluted waters contrary to s16(1) of the Clean Waters Act , 1970. His Honour found each of the offences proved but ordered that no conviction be recorded in respect of such offences pursuant to s556A of the Crimes Act 1900.

3 Section 5D(1A) of the Criminal Appeal Act 1912 provides that the Environment Protection Authority may appeal to this court against any sentence pronounced by the Land and Environment Court in any proceedings for an environment offence, if those proceedings have been instituted by the Environment Protection Authority. The subsection further provides that this Court may impose such sentence as to it may seem proper. There is no dispute that s5D(1A) applies in this case.

4    On 16 September 1999, the appeal was instituted by two notices of appeal, one referrable to each offence. There is one ground of appeal specified in the notices, namely that the sentence in respect of each offence was inadequate.

5 The recent submissions filed by the appellant and as elaborated at the hearing of the appeal include the following points: first, that the sentence was manifestly inadequate having regard to objective facts and subjective considerations; secondly, that the sentencing judge failed to follow the sentencing practices of his own court that it is only in exceptional circumstances that s556A will be applied; and, thirdly, that there identified errors of principle causing the sentencing discretion to miscarry.

6    At the sentence hearing, counsel for the appellant addressed on the facts and submitted that a penalty should be imposed which would be a general deterrence to others in similar situations. Counsel for the respondent also addressed on the facts. He then referred to a matter of Michaelangelo Teuma in which a fine of $6,000 was imposed. Counsel for the respondent said, “I'll be submitting that, to use the vernacular, your Honour would come in under Mr Teuma, for this is not the same flagrant breach”. It is apparent that both counsel addressed on the basis that the appropriate sentence was a fine. The only question was how much.

7    The defendant conducted a poultry slaughtering and processing factory at Arndell Park. Waste water was discharged into a plastic holding tank. When that overflowed, the waste was discharged into a dam. The tank and the dam were periodically pumped out into a tanker.

8    On 28 April 1998, the water level in the dam had risen to a point where a weakness in the dam wall allowed contaminated water to leak from the dam. On that date, at about 4.30pm, an inspector observed contaminated water flowing from the dam wall into adjoining property and then into a drainage system. From there the contaminated water found its way into a creek system which flows into the Hawkesbury River. That was the first offence.

9    At 6.55am on 29 April 1998, the inspector spoke to the respondent and brought the leak to his attention. Up to that point in time the respondent had been unaware of the leak. That day the respondent commenced to pump out the dam into the tanker but his efforts were insufficient to be effective. The leak was observed by the inspector still in evidence late in the afternoon of that day. That was the second offence.

10    Although the factory had continued to operate on 29 April, no further waste products were discharged into the dam until it had been emptied.

11    The respondent’s business was a small one, employing some twenty people on a permanent, part-time and casual basis. The respondent’s taxable income for the year ended 30 June 1998 was a modest $38,187.

12    In my view, the sentencing judge failed to have regard or sufficient regard to the respondent’s obligation to keep a close watch on the dam to ensure that no contaminated water was escaping from it, whether by overflow or leakage. In that connection it is relevant that there were two previous penalty notices, one of which applied to a leak in the dam.

13 It is unnecessary to decide this case on any basis other than the assertion that the penalty sentence was manifestly inadequate. The offences warranted a pecuniary penalty. In my view, a sentence pursuant to s556A was manifestly too lenient. The sentences accordingly should be set aside.

14    Because of the principle of double jeopardy, the sentence now to be determined must be conservative. The Court must have regard to the principle of totality, ensuring that the combined sentences for the two offences reflect the aggregate criminal responsibility for what occurred.

15    Both counsel have referred to other cases as a guide to what would be an appropriate penalty in this case. While such other cases are informative, each case must turn on its own facts and I don’t see a close analogy between the present case and any one of the cases that have been referred to.

16    I would substitute a fine in a total amount of $3,000. The orders which I propose are as follows:

1. Appeal upheld;
2. Sentence quashed;
3. Re-sentence the respondent as follows: in relation to the offence committed 28 April 1998, substitute a fine of $2,000 and, in relation to the offence committed 29 April 1998, substitute a fine of $1,000;
4. The order for costs below is preserved.


17    MASON P : I agree.

18    SMART AJ : I also agree.

19    MASON P : The orders of the court will be as indicated by Mr Justice Sperling.

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