Environment Protection Authority v Barrett - [2003] NSWLEC 182

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Barrett [2003] NSWLEC 182

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Justin Andrew Barrett

FILE NUMBER(S): 50101 of 2002

CORAM: Bignold J

KEY ISSUES: Prosecution :- Penalty and costs

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s9
Fines Act 1996, ss4, 6
Land and Environment Court Act 1979, s52
Protection of the Environment Operations Act 1997, ss116(1), 119, 120,
Roads and Rail Transport (Dangerous Goods) Act 1997, s35

CASES CITED: Environment Protection Authority v Coggins [2003] NSWLEC 111;
Environment Protection Authority v Hopley [2003] NSWLEC 112;
Latoudis v Casey (1990) 170 CLR 534

DATES OF HEARING: 06/08/2003

DATE OF JUDGMENT:
08/06/2003

LEGAL REPRESENTATIVES:

APPLICANT:
S Rushton QC
SOLICITOR:
Environment Protection Authority
RESPONDENT:
D Evenden (Solicitor)
Legal Aid NSW

JUDGMENT:

- 11 -

IN THE LAND AND 50101 of 2002

ENVIRONMENT COURT Bignold J

OF NEW SOUTH WALES 6 August 2003

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

JUSTIN ANDREW BARRETT

Defendant

Judgment

JUDGMENT

1 The Defendant has pleaded guilty to a charge that on or about 8 February 2002 at Wetherill Park he negligently caused a substance to escape in a manner that harmed or was likely to harm the environment, contrary to s116(1) of the Protection of the Environment Operations Act 1997 (the POEO Act).

2 The offence created by s116 is a Tier one offence under the POEO Act for which the maximum penalty prescribed by s119 is a penalty not exceeding $250,000 or 7 years imprisonment, or both, in the case of a convicted person who is an individual.

3 Section 116(1) provides as follows:

116.

Leaks, spillages and other escapes

(1) If a person wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) in a manner that harms or is likely to harm the environment:

(a) the person, and

(b) if the person is not the owner of the substance, the owner,

are each guilty of an offence.

4 The circumstances of the commission of the admitted offence and the environmental consequences of it are detailed in the Statement of Agreed Facts (Exhibit 1).

5 The spillage incident so detailed has been the subject of five separate charges – three against the present Defendant and two against Mr Hopley the Defendant’s employer at the time of the incident.

6 In addition to the charge of the offence against s116(1) of the POEO Act both the Defendant and his employer were charged with an offence against s120 of the POEO Act (“polluting waters”) and an offence against s35 of the Roads and Rail Transport (Dangerous Goods) Act 1997 (“transport dangerous goods without a licence”).

7 At the commencement of the hearing Senior Persecuting Counsel informed the Court that the Prosecutor proposed to only proceed against the Defendant with the one admitted charge and that the other two charges laid against him should be dismissed with no order as to costs.

8 The same charges…

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 Barrett

Details

AGLC: Environment Protection Authority v Barrett [2003] NSWLEC 182
Case: [2003] NSWLEC 182
Decision Date: 08/06/2003

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority (EPA) prosecuted Justin Andrew Barrett for an environmental offence under the Protection of the Environment Operations Act 1997. The central issue was determining an appropriate penalty for Barrett, given his culpability and personal circumstances. Barrett pleaded guilty to negligently causing a substance to escape in a manner that harmed or was likely to harm the environment. The spillage of the pesticide Electra 225 into Prospect Creek resulted in the death of thousands of aquatic organisms.

The court considered several factors in determining the penalty. While the environmental harm was significant, Barrett's culpability was reduced due to his unfamiliarity with the forklift and the employer's pressure. The court also considered Barrett's young age, lack of prior environmental offences, remorse, and financial difficulties. The prosecutor recommended a community service order, while the defence recommended a good behaviour bond. The court ultimately decided a two-year good behaviour bond was the most appropriate penalty, taking into account the offence's objective seriousness, Barrett's limited culpability, and his personal circumstances.

Regarding costs, the prosecutor sought an order for Barrett to pay costs. However, the court exercised its discretion not to impose additional financial burden on Barrett, given the overlap in the prosecutions and the potential detriment to his rehabilitation prospects. The court made no order as to costs.

Orders