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Environment Protection Authority v Barnes

Environment Protection Authority v Barnes

Case [2006] NSWLEC 2 16 February 2006

Environmental Protection

Unlawful Disposal of Waste

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Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Barnes [2006] NSWLEC 2

PARTIES: ROSECUTOR:
Environment Protection Authority
DEFENDANT:
Phillip Gregory Barnes

FILE NUMBER(S): 50028 of 2005

CORAM: Pain J

KEY ISSUES: Prosecution :- guilty plea - unlawful disposal of septic waste - mitigating circumstances

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 22
Criminal Procedure Act 1986 s 253
Fines Act 1996 s 6
Protection of the Environment Operations Act 1997 s 143, s 241, s 248

CASES CITED: Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357;
Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304;
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Ebacarb Pty Ltd v Environment Protection Authority [2003] NSWLEC 411;
Environment Protection Authority v Barrett [2003] NSWLEC 182;
Environment Protection Authority v Davis [2005] NSWLEC 643;
Environment Protection Authority v Fernando & Anor [2003] NSWLEC 281;
Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Limited [2005] NSWLEC 175;
Mill v R (1988) 166 CLR 59;
R v Crombie [1999] NSWCA 297;
R v Doan (2000) 50 NSWLR 115;
R v Sharma (2002) 54 NSWLR 300;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
Veen v The Queen [No. 2] (1988) 164 CLR 465

DATES OF HEARING: 11/11/05

DATE OF JUDGMENT:
02/16/2006

LEGAL REPRESENTATIVES: PROSECUTOR:
Ms S Wright (solicitor)
SOLICITORS:
Environment Protection Authority
DEFENDANT:
Mr J Priestley (barrister)
SOLICITORS:
Walters

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

16 February 2006

50028-29 of 2005 Environment Protection Authority v Barnes
JUDGMENT

1 Her Honour: The Defendant, Phillip Gregory Barnes, has pleaded guilty to two charges of transporting waste to a place that cannot lawfully be used as a waste facility for that waste contrary to s 143(1)(a) of the Protection of the Environment Operations Act 1997 (“the POEO Act”).

2 The summonses, filed on 2 August 2005, allege that in February 2004 and on 4 March 2004 the Defendant dumped 7,000 litres and 4,000 litres, respectively, of septic waste from a tanker truck which is designed to collect and transport septic waste onto the same location of a property located at 218 Borton Road, Tullera (“the site”). The site is a rural property used for cattle grazing approximately 72ha in size.

3 As the Defendant has pleaded guilty it may be assumed that the Prosecutor has proved to the requisite standard the essential elements of the offence. The maximum penalty for each of the offences against s 143(1)(a) of the POEO Act is $120,000 for an individual.

Background

4 A statement of agreed facts was filed by the parties. The Defendant is employed by Rico Family Trust but effectively works for a business that trades as Richmond Waste Services (“Richmond Waste”). Richmond Waste carries out waste collection jobs in the Lismore local government area.

5 The Defendant’s duties include collecting septic, grease…

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 Barnes

Details

AGLC: Environment Protection Authority v Barnes [2006] NSWLEC 2
Case: [2006] NSWLEC 2
Decision Date: 02/16/2006

CaseChat Overview and Summary

Phillip Gregory Barnes has pleaded guilty to two charges of transporting waste to a place that cannot lawfully be used as a waste facility for that waste in breach of s 143(1)(a) of the Protection of the Environment Operations Act 1997. The charges relate to the disposal of septic waste onto a rural property in the Lismore local government area. The maximum penalty for each offence is $120,000 for an individual. Pain J considered the objective gravity of the offence, the culpability of the defendant, and mitigating factors, including the defendant's guilty plea, contrition, and limited means to pay a substantial fine. The court also considered the environmental consequences of the offences, which were minimal to non-existent. Pain J ordered the defendant to pay a fine of $4,000 for the first offence and $500 for the second offence, to pay the prosecutor's costs of the proceedings in the amount of $15,000, and to pay the prosecutor's costs and expenses of investigation in the amount of $727.13 pursuant to s 248(1) of the Protection of the Environment Operations Act 1997.

Orders