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 2000PARTIES :
Environment Protection Authority v Peter Charles AttardJUDGMENT 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
P H Lander
(Appellant)
(Respondent)SOLICITORS: Steven Garrett
John Orford & Associates
(EPA)
(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 APPEALCCA60550/99
CCA60551/99MASON P
SPERLING J
SMART AJTuesday 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…
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- AGLC
- Environment Protection Authority v Attard [2000] NSWCCA 242
- Case
- [2000] NSWCCA 242
- Decision Date
CaseChat Overview and Summary
The central legal issue in the appeal was whether the sentence imposed by the Land and Environment Court was manifestly inadequate. The Court had to consider the objective facts of the case and the sentencing principles applicable to environmental offences. The appeal hinged on whether the sentence failed to achieve the objectives of general deterrence and punishment, and whether the sentencing judge erred in applying section 556A of the Crimes Act 1900.
The Court of Criminal Appeal found that the sentence was indeed inadequate. The Court considered that Attard's responsibility for ensuring that contaminated water did not escape from the dam was significant, particularly given previous penalty notices related to leaks from the dam. The Court held that a sentence under section 556A was too lenient given the seriousness of the offences and the need for deterrence. The Court substituted the sentence with a total fine of $3,000, consisting of $2,000 for the offence on 28 April 1998 and $1,000 for the offence on 29 April 1998, while preserving the order for costs.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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