Legal Research
Cases
Environment Protection Authority v Attard

Environment Protection Authority v Attard

Case [2000] NSWCCA 242 16 May 2000

Criminal Liability

Environmental Offences and Penalties

Sentencing

Double Jeopardy

Aggravated & Exemplary Damages

Criminal Law

Environmental Law

No judgment structure available for this case.

Type to search within this case.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Environment Protection Authority v Attard

Details

AGLC: Environment Protection Authority v Attard [2000] NSWCCA 242
Case: [2000] NSWCCA 242
Decision Date: 16 May 2000

CaseChat Overview and Summary

The Court of Criminal Appeal heard an appeal by the Environment Protection Authority against a sentence imposed by the Land and Environment Court on Peter Charles Attard. Attard was found guilty of two offences under the Environmental Offences and Penalties Act 1989, relating to the pollution of waters contrary to the Clean Waters Act 1970. The Land and Environment Court found the offences proven but ordered that no conviction be recorded due to the application of section 556A of the Crimes Act 1900. The Environment Protection Authority appealed the sentence, arguing it was inadequate.

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