Environment Protection Authority v BMG Environmental Group Pty Ltd & Barnes
[2012] NSWLEC 69
•03 April 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Environment Protection Authority v BMG Environmental Group Pty Ltd & Barnes [2012] NSWLEC 69 Hearing dates: 28 March 2012 Decision date: 03 April 2012 Jurisdiction: Class 5 Before: Biscoe J Decision: (1) Each defendant is convicted of the offence against s 115(1) of the Protection of the Environment Operations Act 1997 as charged; (2) Each defendant is fined $100,000; (3) Defendants jointly and severally liable to pay prosecutor's costs of $175,000 comprising legal costs in the sum of $143,631and investigation costs of $31,369.
Catchwords: ENVIRONMENTAL OFFENCES:-sentencing - negligently disposing of untreated sewage, septic tank waste and untreated grease trap waste in a manner that harmed or was likely to harm the environment contrary to s 115(1) of Protection of the Environment Operations Act 1997 - late plea of guilty - appropriate penalty Legislation Cited: Clean Waters Act 1970 s 16
Crimes (Sentencing Procedure) Act 1999 ss 3A, 8, 21A, 22 22A(2)(g), Part 7
Criminal Procedure Act 1986 ss 257B, 257G
Environmental Offences and Penalties Act 1989 s 5(1)
Fines Act 1996 s 6
Protection of the Environment Operations Act 1999 ss 114, 115, 119, 143(1), 169, 241, 248, Dictionary
Crimes (Sentencing Procedure) Regulation 2010 cl 23
Protection of the Environment Operations (Waste) Regulation 2005 cll 51, 51ACases Cited: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34, 145 LGERA 234
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Gardner [1997] NSWLEC 169
Environment Protection Authority v Gardner [1997] NSWLEC 212
Environment Protection Authority v Pal [2009] NSWLEC 35
Environment Protection Authority v Wattke [2010] NSWLEC 24
Hoare v The Queen [1989] HCA 33, 167 CLR 348
Lowe v The Queen [1984] HCA 46, 154 CLR 606
Markarian v The Queen [2005] HCA 25, 228 CLR 357
Muldrock v The Queen [2011] HCA 39, 85 ALJR 1154
Pittwater Council v Scahill [2009] NSWLEC 12, 165 LGERA 289
Plath v Rawson [2009] NSWLEC 178, 170 LGERA 253
R v El Masri [2005] NSWCCA 167
R v Thomson [2000] NSWCCA 309, 49 NSWLR 383
R v Way [2004] NSWCCA 131, 60 NSWLR 168
Veen v The Queen [No 2] [1988] HCA 14, 164 CLR 465
Yang v R [2012] NSWCCA 49Texts Cited: Environment Protection Authority, Environmental Guidelines: Use and Disposal of Biosolid Products (1997) Category: Sentence Parties: Environment Protection Authority (Prosecutor)
50369 of 2011
50370 of 2011
BMG Environmental Group Pty Ltd (Defendant)
Allan Charles Barnes (Defendant)Representation: COUNSEL:
Mr S Rushton SC and Ms S Callan (Prosecutor)50369 of 2011
N/A (Defendant)50370 of 2011
Mr I Lloyd QC and Mr D P Wilson (Defendant)
SOLICITORS:
Office of Environment and Heritage (Prosecutor)50369 of 2011
50370 of 2011
N/A (Defendant)
N/A (Defendant)
File Number(s): 50369-70 of 2011
CONTENTS
Paragraphs
THE CHARGES
LEGISLATION
AGREED FACTS
MR BARNES' EVIDENCE
SENTENCING PRINCIPLES
OBJECTIVE SERIOUSNESS OF THE OFFENCE
SUBJECTIVE CIRCUMSTANCES OF THE OFFENDERS
DETERRENCE
PARITY BETWEEN OFFENDERS
CONSISTENCY IN SENTENCING
COMMUNITY SERVICE ORDERS
COSTS
MEANS TO PAY
APPROPRIATE PENALTY
ORDERS
1- 4
5 - 8
9 - 78
79 - 85
86- 91
92 - 111
112 - 119
120
121
122 - 127
128 - 135
136 - 139
140
141 - 143
144
Judgment
THE CHARGES
About a week before the trial was due to start in March 2012, pleas of guilty were entered by BMG Environmental Group Pty Ltd (BMG) and its director Allan Charles Barnes to the following charges laid by summons filed in May 2011 by the Environment Protection Authority (EPA) against:
- BMG for contravening s 115(1) of the Protection of the Environment Operations Act 1997 (POEO Act) by negligently disposing of untreated sewage, septic tank waste and untreated grease trap waste in a manner that harmed or was likely to harm the environment, at a farm called "Greenbank", near Bathurst, from about 1 January to 23 September 2009; and
- Mr Barnes for the same alleged offence under s 115(1) of the POEO Act, by reference to s 169(1) of the POEO Act
It is now necessary to sentence the offenders. An offence against s 115(1) is a "tier 1" offence, the most serious category of offence under the POEO Act: s 114(1).
The prosecutor has withdrawn charges against each of the offenders concerning s 143(1) of the POEO Act (matters no. 50371 and 50372 of 2011).
Mr Barnes was represented but BMG was not represented at the sentencing hearing.
LEGISLATION
Sections 115 and 169 of the POEO Act relevantly provide:
115 Disposal of waste-harm to environment
(1) Offence
If a person wilfully or negligently disposes of waste 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 waste, the owner,
are each guilty of an offence.
169 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:
...
"Environment" is broadly defined in the Dictionary in the POEO Act as meaning components of the earth, including:
(a) land, air and water, and
(b) any layer of the atmosphere, and
(c) any organic or inorganic matter and any living organism, and
(d) human-made or modified structures and areas,
and includes interacting natural ecosystems that include components referred to in paragraphs (a)-(c).
"Harm" to the environment is defined as including "any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution".
Pursuant to s 119 of the POEO Act, the maximum penalty in relation to BMG is $2,000,000 and in relation to Mr Barnes is $500,000 or four years imprisonment or both - although by reason of s 214(2), the maximum term of imprisonment which this Court can impose in respect of the offence is two years. The prosecutor also seeks orders that the offenders pay the prosecutor's legal and investigation costs.
AGREED FACTS
There is an agreed statement of facts as between the prosecutor and Mr Barnes. The evidence establishes the facts stated in that document as against BMG. In addition, Mr Barnes gave affidavit evidence and was cross-examined. The agreed facts include those set out below at [10] - [77].
BMG is a waste transport company based at Bathurst. Mr Barnes is a director and shareholder of BMG. He manages the day to day operations of BMG. Over the nine month charge period between 1 January 2009 and 23 September 2009, BMG either transported or arranged the transportation of over a million litres of untreated liquid waste to a farm near Bathurst named "Greenbank", where the waste was either deposited onto the ground or ploughed into the soil. The waste comprised mainly untreated septic tank waste and untreated grease trap waste.
The application upon land of both septic tank and grease trap waste is subject to significant restrictions to prevent harm to the environment; in particular such waste must be treated prior to land application. No such treatment took place in this case. Neither BMG nor Mr Barnes took steps to ensure the dumping of this waste presented no risk of environmental harm.
The defendants' conduct had the potential to cause serious harm, in particular because the disposal of raw sewage on agricultural land leads to a risk that disease-causing bacteria may enter the food chain (see the summary of expert evidence below).
BMG was established in 1991; its principal place of business is 9 Whyalla Circuit, Kelso (an industrial suburb of Bathurst). Its directors throughout the charge period were Mr Barnes and Mr Jamie Luke Saba. Mr Barnes owns 50 per cent of the shares in BMG; the remaining shares are held across four shareholders.
At all relevant times, BMG has held environment protection Licence No. 12529 under the POEO Act. This licence pertains to the treatment of waste at the NSW Liquid Recycling Centre (NSWLRC), a liquid waste processing facility located at 11 Whyalla Circuit, Kelso. The liquid waste treated at NSWLRC included grease trap and oily water waste. The NSWLRC does not and did not receive or treat septic waste.
The NSWLRC was established by Mr Barnes in July 2006, operating through the corporate vehicle NSW Liquid Recycling Centre Pty Ltd - the shareholding of which is split with 50% held by Mr Barnes and the remainder held by five shareholders. The directors at all relevant times were Mr Barnes and Mr Saba. The manager of the Centre was Mr Steven Ryan.
From July 2007 to June 2008, Sita Australia Pty Ltd, trading as Sita Environmental Solutions (Sita), leased the premises and business of the NSWLRC from BMG, and supervised Mr Ryan as manager of the Centre. From July 2008, BMG resumed operation of the NSWLRC with Mr Ryan continuing as manager.
BMG and Sita are competitors in the waste management market, although for periods of time, including during the charge period, Sita contracted with BMG to collect waste from Sita's Canberra premises (detailed below).
At all relevant times, BMG also held environment protection Licence No. 11778 under the POEO Act, which pertains to the road transport of waste. This licence applies to a total of eleven trucks, prime movers and trailers used by BMG.
On or about 21 March 2007, Mr Barnes formed an unincorporated registered partnership with Raymond Ryan, called "A & R Freight", which was and is, a general freight business. As detailed below, A & R Freight transported part of the waste the subject of these charges to Greenbank. It did so on behalf of BMG upon the direction of Mr Barnes.
Greenbank is an operational agricultural farming property of approximately two thousand acres located near Bathurst. The various lots which comprise Greenbank are owned by Ruth Sandry, Gavin Sandry and Leanne Sandry-Atkinson. Until his death in 2000, the property was owned by Peter Sandry (the father of Rowan and Gavin Sandry). The main activities on the farm are grazing cattle and sheep. Rowan Sandry manages the farming operations. Since 6 January 2000, no pollution control licence or environment protection licence has been in effect in respect of any of the property which comprises Greenbank. There is no development consent from the Bathurst Regional Council in respect of Greenbank for the disposal of waste.
"Wimbledon Worms", a property near Bathurst owned by Mr Barnes, is a site upon which BMG also disposed of liquid waste during the charge period. BMG holds an environment protection licence in respect of the activity carried out on this property. Its activities in relation to liquid waste on this property are not the subject of any charges in these proceedings.
Waste collected from Transpacific Industries Pty Ltd at Wagga Wagga
In July 2007, BMG commenced collecting liquid waste, including septic waste and grease trap waste, from the premises of Transpacific Industries Pty Ltd (TPI) at 2 Saxon Street, Wagga Wagga. To that point, TPI had been using the services of Sita. TPI changed to BMG because it was dissatisfied with the service provided by Sita, and the price offered by BMG was cheaper.
The septic waste comprised sewage waste collected by TPI from holding tanks at premises that do not have access to a sewage system. The grease trap waste was collected by TPI from grease trap collection pits in premises such as restaurants, cafés, fast food outlets and motels in and around Wagga Wagga. After this septic waste and grease trap waste was collected by TPI, it was held in a storage tank at TPI's premises. It was not treated by TPI in any way.
When the liquid waste storage tanks at TPI's Wagga Wagga premises were nearing capacity, a manager or driver at TPI would call Stephen Ryan, an employee of BMG, to arrange collection by BMG. A BMG truck would collect the waste. Upon pick up, the truck driver would provide a ticket to TPI. BMG would later send confirmation of the amount received after the truck was weighed on the weighbridge at NSWLRC.
During the charge period, BMG removed approximately 117,500 litres of septic waste and approximately 298,000 - 303,720 litres of grease trap waste from TPI's Wagga Wagga premises.
Waste collected from Sita Australia Pty Ltd at Hume
From late 2007 and throughout the charge period, Sita contracted with BMG to collect waste from Sita's premises at 41 Alderson Place, Hume, ACT.
Sita collected grease trap and oily water liquid waste from premises such as shopping centres, fast food outlets, cafés, restaurants and motels. It deposited the liquid waste in its storage tanks. Sita did not carry out any treatment of this waste, which was subsequently always collected by BMG. When each load of waste was picked up by BMG, Sita would be given a docket by the driver. The docket would be in the name of either BMG, NSWLRC or A & R Freight. Sita would later be invoiced by NSWLRC.
Throughout the charge period, BMG collected a total of approximately 1,688,430 - 1,173,000 litres of grease trap waste and oily water liquid from Sita's Hume premises.
Waste collected from Vanglen Services at Jindabyne
Vanglen Services is a waste collection business based at Jindabyne. It is run by Vance Bottom and Glenis Bradshaw. Vanglen Services collects grease trap waste, septic waste and grey water in the Snowy Mountains area. The grease trap waste is collected from premises such as motels, restaurants, ski lodges, cafés and shops.
In October 2007, Vanglen Services arranged with Steve Ryan for BMG to pick up the grease trap waste collected by Vanglen Services. Throughout the charge period, BMG collected a total of 40,500 litres of grease trap waste and A & R Freight, a total of 59,800 litres of grease trap waste. Vanglen Services did not transport any waste to BMG's premises or to the NSWLRC.
Waste collected from Transpacific Industries Pty Ltd at Bathurst
Transpacific Industries Pty Ltd operates a waste collection business based at 22 Upfold Street, Bathurst (TPI Bathurst). TPI Bathurst also operated under the name "Cleanaway Bathurst".
Since about 2008, liquid waste, including grease trap waste, collected by TPI Bathurst has been sent to the NSWLRC.
TPI Bathurst collects grease trap waste from premises such as clubs, motels, fast food outlets, hospitals and restaurants. The waste contained oil, grease, water, food sludge and solid contaminants, such as disposable gloves and plastic. Every Tuesday, a TPI Bathurst tanker would collect grease trap waste from various premises and take it directly to the NSWLRC. When the waste was dropped off, the NSWLRC would provide TPI Bathurst with a weighbridge ticket and an EPA docket.
Throughout the charge period, TPI Bathurst transported a total of approximately 395,260 litres of grease trap waste to the NSWLRC.
Waste collected from G&G Waste at Tahmoor
G & G Waste Services (G & G Waste), is a father and son partnership based in Tahmoor NSW, which is to the west of Sydney in the Wollondilly Shire. It is a waste collection business which pumps out untreated sewage from household septic systems in the Macarthur, Campbelltown and Picton areas. G & G Waste did not carry out any treatment of this waste.
The septic tank effluent collected by G & G Waste is disposed of at Campbelltown City Council's depot at Kentlyn.
The septic tank sludge collected by G & G Waste was previously disposed of at a location in St Marys, but G & G Waste commenced using BMG in about 2009 because it was cheaper. The arrangement was on an "as needs basis" - when G & G Waste required sludge to be collected, Mr George Twist (the son, aged 50) would call Mr Barnes and in due course a truck from BMG or A & R Freight would arrive and remove the septic sludge. The driver of the truck would provide a docket.
Throughout the charge period, BMG collected nearly 500,000 litres of septic sludge from G&G waste.
Investigations by the EPA, described below, indicated the septic sludge collected by G & G Waste to be the source of a large proportion of the waste deposited at Greenbank during the charge period.
Disposal of septic waste at Council facility
Bathurst Regional Council (Council) operates the Bathurst Waste Water Treatment Works (Council Treatment Works). The Council Treatment Works receives septic waste, being waste from household septic tank systems. At all relevant times, the Council Treatment Works received septic waste from, among others, BMG and NSWLRC.
The Council uses a triplicate docket system to record the quantity of septic waste received at the Council Treatment Works. The dockets contain the date, customer name and the quantity of septic waste delivered.
The Council did not maintain precise records of the quantities of septic waste received at the Council Treatment Works. Typically, the quantity of septic waste was communicated to the Council employees by the drivers of the vehicles delivering the waste. Whilst there may have been small discrepancies between the stated and actual quantities, any significant understating of the quantity delivered would be identified by the Council employees at the time.
Throughout the charge period, a total of approximately 161,200 litres of septic waste was received at the Council Treatment Works from NSWLRC. The Council Treatment Works have no record of receiving any septic waste from BMG or A & R Freight during the charge period. After the sentencing hearing the prosecutor explained in writing that this volume of 161,200 litres is for the period 8 January 20009 to 30 September 2009 whereas the charge period is 1 January 2009 to 23 September 2009; and that this explains why this volume differs from the volume of 141,700 litres referred to below at [59].
Disposal of waste at Greenbank
At an unknown date before 1996, Mr Barnes came to a verbal agreement with Peter Sandry under which Mr Barnes could dispose of various food wastes on paddocks at Greenbank. After Peter Sandry's death in about 2000, the arrangement to use Greenbank to dispose of liquid waste continued.
Between 2003 and 2009, the nature and quantity of the waste that BMG took to Greenbank changed. Initially, the waste consisted mainly of food waste from local factories, such as liquefied breadcrumbs and fish mixture, protein rich sludge from sausage skin manufacture and liquid resulting from pet food manufacture. However, by January 2009, the waste disposed of at Greenbank included:
(a) untreated sewage, mostly from households which were not connected to the sewage system and which consisted of the waste products from toilets, sinks and laundries;
(b) septic tank waste, which consisted of similar materials but was taken from tanks where it had been sitting for some months or more, which meant it was sludgier than the untreated sewage; and
(c) untreated grease trap waste, which consisted of food waste, oils, fats and other waste from restaurants and fast food outlets.
Rowan Sandry runs the farming operations at Greenbank. He had infrequent conversations with Mr Barnes regarding what paddocks BMG were "working on" and "the paddocks they would work on next". Occasionally, he gave directions to BMG drivers as to where they should dispose of the waste. He also occasionally asked drivers if the material was suitable for improving soil fertility, productivity and aeration - he was told it was. He had no further knowledge of the material brought on to the property by BMG. He estimated that BMG would bring around two truckloads of material to the property a day.
He identifies paddocks in Greenbank where BMG applied waste during the charge period, noting that some of these areas were used exclusively for stock grazing and another area for growing oats which was grazed by cattle. Stock were not allowed into paddocks where waste had been spread for a couple of months to allow ploughing, sowing, and pasture reestablishment. As addressed in the expert evidence of Dr Eames (described below), this gives rise to a risk that pathogens (disease-causing organisms) were consumed by sheep and then passed on to humans. From what he had seen, he believed the work done by BMG to be beneficial to Greenbank.
Gavin Sandry is part owner of Greenbank; he works full time as a security officer but also has responsibility, in partnership with his wife and his brother Rowan, for the farming activities at Greenbank. He estimated that BMG would bring around two truckloads of material to the property a day. He was not aware what material was being distributed by BMG, but from what he has seen, BMG's activities had been beneficial to Greenbank.
Mr Peter Ryan is a neighbour of Greenbank. He observed about three BMG trucks a day, seven days a week, drive onto Greenbank and distribute their load using a "bio plough" by which liquid is injected about 3 inches into the ground by rippers which are fed liquid from tanks via hoses. He observed that these activities continued through 2009, but reduced significantly after November 2009.
EPA investigations
In March 2009, the EPA commenced an investigation into BMG's activities. EPA officers undertook surveillance of BMG vehicles and made inquiries with the Roads and Traffic Authority about BMG truck movements. The following was relevantly observed:
(a) on 22 May 2009, a BMG tanker truck was observed collecting liquid waste and driving to a point within several kilometres of Greenbank, whereupon surveillance ceased;
(b) on 29 July 2009, a BMG tanker truck was observed driving to and parking across the road from the NSWLRC for about an hour, then driving to Greenbank where the vehicle was observed driving across the property backwards and forwards;
(c) on 25 August 2009, a BMG tanker truck was observed driving to the Tahmoor premises from which G & G Waste operates. It collected liquid waste from an orange tank (which appeared to have the capacity for about 20,000 or 30,000 litres). The truck then travelled to Greenbank and drove through the property to a paddock in the northern part of the property;
(d) also on 25 August 2009, another BMG tanker truck was observed parked on the right hand side of the road next to Greenbank, next to a "ground injection unit". Waste was being pumped from the tanker into the unit, and the unit was then driven around the paddock; and
(e) on 9 ,10 and 11 September 2009, trucks from G & G Waste were observed collecting liquid waste from various premises and depositing it into white and orange tanks at the Tahmoor premises of G & G Waste. Subsequently, an A & R Freight prime mover truck collected waste from these tanks; it was observed driving towards NSWLRC, where it was parked on the street overnight opposite the NSWLRC. The following morning, the truck was followed to Greenbank, where it was observed driving around a paddock in circles, with a liquid spilling from the back.
On 23 September 2009, EPA officers conducted a search of BMG's business address at Bathurst, the NSWLRC, the premises of G & G Waste, and Greenbank. The officers seized documents including financial records, and also copied the hard drives of computers at the NSWLRC.
On the same date, EPA officers undertook an inspection of the land at Greenbank and took soil and waste samples. Upon the request of EPA officers, Rowan Sandry pointed out a paddock where waste had been recently applied by BMG. At that paddock, the EPA officers relevantly observed an area upon which appeared to have been spread large deposits of fatty looking material. All the grass appeared to have died back in this area and it was devoid of vegetation. EPA officers also observed a contour bank on the northern side of this paddock, upon which there was a sludge-like deposit which appeared septic in nature on account of the odour and various associated items including feminine hygiene products, toilet freshener baskets, toilet brushes, condom wrappers and pill cards. Photographs and samples were taken. In other parts of the paddock, the EPA officers observed additional areas which had received both waste of a septic tank nature and fatty material similar in nature to that already observed.
Later that day, at about 2.30 pm, whilst the EPA officers were still at Greenbank, they observed a BMG tanker truck (Registration No AI 28 QY) turn into the laneway that led to Greenbank. A sample was taken from the tanker.
EPA officers returned to Greenbank on 24 September 2010 and conducted further inspections, including the septic area identified the previous day. Various samples and photographs were taken of this area and other paddocks where waste appeared to have been spread. EPA officers observed this waste appeared to be made up of grease trap waste and septic waste, the latter identifiable by reference to material usually associated with untreated septic waste, namely plastic fragments, toilet bowl cages, rags, and feminine hygiene products.
At about 12.45 pm, whilst the EPA officers were still at Greenbank, they observed the same BMG tanker truck as the previous day (Registration No AI 28 QY) drive through the paddock they were inspecting. It was observed to drive towards a tractor and piece of farm machinery used to inject material into the soil. Material from the tanker was being transferred into the injection unit when the EPA officers arrived. A sample was taken from the tanker.
EPA officers conducted interviews with Mr Barnes and various of the BMG truck driver. Under caution, the interviewees relevantly stated that:
(a) Barnes oversees the operations at NSWLRC - he has the 'final say';
(b) Barnes has seen and understands 'basically' the Waste Classification Guidelines;
(c) Barnes was the manager of the Greenbank operation - that is BMG either transported or arranged for A & R Freight to transport septic tank waste, untreated sewage and untreated grease trap waste to Greenbank;
(d) Barnes personally transported waste to Greenbank, and directed the BMG drivers to do so;
(e) if no BMG trucks were available, an A & R Freight truck would do it. Barnes made the decisions about which trucks to use;
(f) all sewage/septic waste not taken to the Council Treatment Works was taken to Greenbank;
(g) the sewage and septic waste was either taken directly to Greenbank or the tanker was parked overnight and delivered the following day. In neither case was the sewage and septic tank waste treated in any way prior to disposal; and
(h) some of the grease trap waste may have been treated at the NSWLRC prior to disposal at Greenbank.
The disposal of waste at Greenbank ceased on or shortly after 23 September 2009, the date on which EPA officers conducted a detailed site inspection of, inter alia, Greenbank and the NSWLRC.
Calculations of total waste deposited
During the charge period, BMG deposited waste at Greenbank at a rate of about two trucks per day.
This included approximately 1,125,200 litres of untreated sewage and septic tank waste, calculated on the following basis having regard to indications from BMG employees that all sewage/septic waste not taken to the Council Treatment Works was taken to Greenbank (all figures approximate):
BMG
508,000 L
A&R Freight
641,400 L
NSWLRC
117,500 L
Sub total
1,266,900 L
Less quantity disposed at the Council's Treatment Works
- 141,700 L
__________Estimated total untreated sewage/septic waste received:
1,125,200 L
The volume of untreated grease trap waste deposited at Greenbank was up to approximately 1,671,990 litres, calculated on the following basis having regard to the MYOB purchase and sales records which indicate that no grease trap waste or treated grease trap waste was sent to third parties and Council records indicating that it received no grease trap waste (all figures approximate):
BMG
3,360 L
A&R Freight
0 L
NSWLRC
3,249,630 L
Sub total
3,252,990 L
Less quantity treated at NSWLRC:
- 1,581,000 L
____________Estimated total untreated grease trap waste received:
1,671,990 L
Environmental harm
As noted above, on 23 September 2009, EPA officers took soil and waste samples from Greenbank. Further soil samples were taken by EPA officers and Dr Cattle (a soil scientist at the EPA) on 15 February 2010.
Dr Byleveld's evidence
Dr Paul Byleveld has a PhD in immunology, microbiology and nutrition. He is the Manager of the Water Unit within the Environmental Health Branch of the NSW Department of Health. He addressed the harm to humans by the disposal of untreated sewage upon the land, such as that which occurred at Greenbank.
Dr Byleveld noted that sewage presents a significant potential health hazard to humans because sewage contains infectious enteric pathogens (micro-organisms capable of causing disease, including bacteria, viruses, protozoa and worm eggs) and bacterial endotoxins. Pathogens in sewage waste may remain infectious for months until the pathogens die due to heat, sunlight (UV irradiation), desiccation or microbial activity. He detailed the illnesses that may be caused by such pathogens. Dr Byleveld also noted that sewage may also contain potentially harmful chemicals derived from domestic, agricultural, industrial and commercial activity.
Dr Byleveld referred to a number of published studies which have found that sewage workers experience more ill health (nose irritation, tiredness, diarrhoea) than other workers, which is likely to be due to contact with pathogens and exposure to airborne bacterial endotoxins. The latter is known for inflammatory properties and has been related to toxin pneumonitis and airway inflammation.
Dr Byleveld concluded that the land application of sewage pumpout waste has the potential to harm the health of those applying the waste to the land and to those working or living on the land. He also noted that insects and other animals with access to sewage can spread pathogens on their bodies, presenting a health risk if the insects or animals come into contact with humans or food.
Human sewage may contain infectious enteric pathogens (bacteria, including Salmonella and E coli) and parasites such as tapeworm and cryptosporidium. Many of these pathogens are not present in animal faeces. The pathogens present in human sewage may cause illnesses such as gastroenteritis and hepatitis.
Dr Eamens' evidence
Dr Graeme Eamens is the Principal Research Scientist within the Microbiological Disease and Diagnostics Research Group, which is within the Department for Industry and Investment. Dr Eames identified the following potential harm to animals and humans by the disposal of untreated sewage upon the land, such as that which occurred at Greenbank:
(a) Raw sewage contains high concentrations of enteric (intestinal) pathogenic (disease-causing) bacteria. These can be transferred to lamb, sheep and cattle grazing on land where raw sewage has been applied, potentially causing illness in such animals which can in turn be transferred to humans who consume their meat. There was also a risk of such disease being spread by insects.
(b) Both pathogenic and non-pathogenic enteric bacteria in raw sewage can act as a vehicle for genes that are resistant to one or more antibiotics. These can be consumed by animals and in turn passed on to humans, in both cases rendering them more resistant to antibiotic treatment of a range of bacterial diseases.
(c) Raw sewage contains pathogenic organisms other than bacteria. These include parasites (such as worms) and protozoa (single-celled organisms). These can be picked up by animals and passed on to humans, potentially causing illness to both the animals and humans.
(d) Toxic substances from raw sewage, such as nickel, chromium and lead, can build up in grass and cause illness in both animals which consume that grass and humans who consume those animals.
Dr Cattle's evidence
Dr Julie Cattle, a soil scientist from the EPA, analysed the soil samples collected from Greenbank and assessed the harm to the environment of the disposal of untreated sewage and grease trap waste upon Greenbank.
Dr Cattle detected faecal coliforms and E coli at elevated concentrations in five of the samples.
Dr Cattle noted that the application of oil and grease on land can have a variety of harmful effects on the soil. It can lead to waterlogging and clogging of pores, causing increased surface runoff and erosion, and can lead to anaerobic conditions which inhibit plant growth, cause compaction, increase soil density and increase the risk of soil erosion. Dr Cattle concluded that for these reasons, the soil characteristics of several sites at Greenbank had been adversely changed by the disposal of the waste. She also opined that pathogens in the septic waste constituted the main risk to the environment and human health posed by the waste. Finally, Dr Cattle expressed the view that there is a risk to native wildlife such as birds from pathogens from the septic tank waste and untreated sewage.
Proper treatment of liquid waste
While biosolids (the treated component of sewage) may be applied to land to improve soil health, the sewage must have undergone treatment such as lime stabilisation, composting, air drying, or aerobic or anaerobic digestion. Such biosolids are also tested to ensure that the levels of pathogens will not cause a risk. No such treatment or testing took place in this case.
Although grease trap waste may be applied to land, it must be treated beforehand. That treatment must include screening to remove physical contaminants and removal of the fats and oils. Again, no such treatment took place here to this type of waste, the subject of the charges.
Financial benefit
BMG saved considerable money by disposing of the waste in the way that it did at Greenbank. It neither paid, nor was paid, money to dispose of waste at Greenbank.
Disposing of the waste lawfully, for example by taking it to a sewage treatment plant, could have been more expensive for BMG. Analysis by forensic accountants of the financial records of BMG and related entities indicates that BMG could have obtained a financial benefit of approximately $227,000 by disposing of the waste at Greenbank instead of disposing of it lawfully.
Clean up notice
The EPA has not issued a clean up notice for Greenbank for the following reasons.
As noted above, Greenbank is about a thousand hectares and investigations did not reveal where, precisely, the various waste streams were disposed of on the property.
Investigations indicated the untreated grease trap waste was disposed of in random locations on the property and it was often injected into the ground, sometimes up to 450mm below the ground surface. Whilst expert opinion indicates that it will take considerable time for the untreated grease trap waste to break down, the EPA considered that the damage caused by digging up the property to locate and remove all this waste, the risk of exposing further pathogens to the atmosphere, and the cost of attempting such a clean up, were disproportionate to the risk of ongoing harm by the waste remaining where it is and allowing it to break down naturally.
In relation to the untreated sewage, expert opinion indicates that untreated sewage will break down more quickly than untreated grease trap waste. However, again, the EPA considered that the damage caused by digging up the property to locate and remove all this waste, the risk of exposing further pathogens to the atmosphere, and the cost of attempting such a clean up, were disproportionate to the risk of ongoing harm by the waste remaining where it is and allowing it to break down naturally.
MR BARNES' EVIDENCE
Mr Barnes gave affidavit evidence and was cross-examined.
Mr Barnes is 61 years of age, married with children. He has lived in the Bathurst area almost all his life, went to school there and obtained the School Certificate. Since leaving school he has for the most part worked for himself doing farm contract labour, share farming and earth moving. In 1990 he started a worm composting business, Wimbledon Worms, which became the defendant BMG. In about the early to mid 2000s, BMG, apparently through a subsidiary, bought a property in the industrial area of Kelso and built an oily water and grease trap facility on it, obtained development consent for waste storage and treatment, and obtained a licence to run it from the EPA. In 2002 Mr Barnes inquired of the local council whether development consent was necessary to apply liquid and semi-liquid organic waste from food processing factories, grease traps and pet food manufacturers to (inter alia) Greenbank. The council replied that development consent was not required for the application of organic material to land for agricultural purposes, but said such application was required to be in accordance with the EPA's Environmental Guidelines: Use and Disposal of Biosolids Products (EPA Guidelines), and in conformity with the POEO Act.
Until 2006 BMG only accepted organic food material. In 2006 BMG started to accept grease trap waste, and in 2008 it started to accept septic tank effluent.
Mr Barnes' evidence included the following:
(a) At the time of the offences he mistakenly believed that BMG was lawfully entitled to deposit treated grease trap waste and biosolids, being treated septic tank sludge, at Greenbank because they fell within exemptions to the EPA licensing requirements.
(b) BMG attempted to treat all the grease trap waste at NSWLRC, its treatment plant at 11 Whyalla Circuit, before depositing it at Greenbank by passing it through screens to remove most of the rubbish. The evidence establishes that significant rubbish nevertheless ended up deposited at Greenbank. In oral evidence Mr Barnes said that this was because the screening size was too big and that they are now changing to a smaller screen. There is some difficulty reconciling Mr Barnes' evidence with the agreed facts at [10] and [61] above indicating that the grease trap waste the subject of the charge was untreated. Although the evidence is not clear, doing the best I can it appears that the grease trap waste deposited at Greenbank presented as untreated because the screening size was too big.
(c) BMG obtained all its biosolids that went to Greenbank from G & G Waste at Tahmoor on the latter's assurance that it was septic tank sludge. Therefore he did not believe that it was raw sewage. I note that in fact it was raw (untreated) sewage.
(d) In cross-examination he said that his mistaken belief was based on a brief reading of EPA Guidelines in 2002 when BMG's business was confined to processing food material and the like. In that context, in correspondence with the local council, the council directed him to those Guidelines. When BMG's business later expanded or changed to accept septic waste and grease trap waste, he assumed that BMG could do the same with that material as it had been doing with food factory waste.
(e) In re-examination, he claimed to have read "The biosolids exemption 2008" issued pursuant to cll 51 and 51A of the Protection of the Environment Operations (Waste) Regulation 2005 when BMG began to accept sewage waste in 2008. He admitted that after reading this biosolids general exemption, a general condition of which (cl 7.1) referred to the EPA Guidelines, he did not go back and delve further into those guidelines. He said that it was from reading these materials that he came to form the belief that the sewage waste BMG was to deposit at Greenbank was subject to the general exemption in relation to certain licensing requirements under the POEO Ac.
(f) The evidence indicates that BMG did deposit some of the waste from G & G Waste at the Council Treatment Works: see [59] above. Mr Barnes' explanation in cross-examination for these deliveries was that he was told by the driver on those occasions that it was raw sewage. He said that in future he would not rely on the word of others as to whether sewage to be collected was treated, but would be putting in place a different system, for which he had two consultants, of signing off on each load that comes in and a better testing setup.
If Mr Barnes had gone back to the EPA Guidelines, he would have seen that septic tank sludge (septage) and grease trap wastes were excluded from the guidelines by cl 1.2.2, and that they also imposed stringent conditions on the disposal of septic waste. He denied that he was aware of this from as early as 2002. I am not satisfied that he was aware. However, in my view, he was grossly negligent, bordering on reckless, in not checking properly whether the deposit of this material was lawful pursuant to the general exemptions.
The biosolids general exemption applies only to biosolids as defined. The general exemption defines "biosolids" as "the organic product that results from sewage treatment processes (sometimes referred to as sewage sludge) in accordance with the Act". The EPA Guidelines similarly define it as "Primarily an organic solid product produced by the municipal sewage treatment process, previously referred to as sewage sludge. Solids become biosolids when they come out of a digester or other treatment process and can be beneficially used". The agreed facts establish that all the sewage/septic tank waste BMG deposited at Greenbank was untreated. Therefore, the biosolids general exemption could not have applied.
Mr Barnes also stated in his affidavit that he believed the grease trap waste BMG deposited at Greenbank was covered by a general exemption relating to such waste. "The treated grease trap waste exemption 2008", issued pursuant to the same Regulation, only applies to treated grease trap waste as defined. It could not have sanctioned the conduct of the defendants in relation to that type of waste as the agreed facts establish that the grease trap waste deposited at Greenbank was untreated. Mr Barnes' own evidence indicates that it presented as untreated because it had been inadequately treated: the screen used was too small.
SENTENCING PRINCIPLES
It is a function of the Court to take into account the purposes of criminal punishment when determining the appropriate penalty: Muldrock v The Queen [2011] HCA 39, 85 ALJR 1154 at [61]. The overlapping and, at times, conflicting purposes of sentencing are identified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) , which makes no attempt to rank them in order of priority. Section 3A relevantly provides:
The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
In imposing a penalty, the Court is required to take into account each of the matters referred to in s 241 of the POEO Act, and may take into consideration other matters that it considers relevant. Section 241 provides that:
241 Matters to be considered in imposing penalty
(1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):
(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence,
(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,
(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
(e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee.
(2) The court may take into consideration other matters that it considers relevant.
Section 21A(1) of the CSP Act specifically requires the Court to take into account, in addition to the relevant aggravating and mitigating factors listed in subsections (2) and (3), any other objective or subjective factor that affects the relative seriousness of the offence, and any other matters that are required or permitted to be taken into account by the Court under any other Act or rule of law. Some of the listed aggravating and mitigating factors are objective and some are subjective but the section does not categorise them in that way. Factors which are elements integral to the offence are not to be taken, of themselves, as aggravating factors: s 21A(2). Section 21A envisages a broad ranging and flexible enquiry. It is taciturn about how the specifically listed aggravating and mitigating factors might operate for it says that the fact that any such factor is relevant and known to the Court does not require the Court to increase or reduce the sentence: s 21A(5).
Most of the aggravating factors and some of the mitigating factors listed in s 21A are irrelevant to environmental offences. Two aggravating factors potentially relevant to environmental offences are that the damage caused by the offence was substantial and that the offence was committed for financial gain. Potentially relevant mitigating factors in environmental offences include that the damage caused by the offence was not substantial, the offender does not have any record (or significant record) of previous convictions, the offender was a person of good character, the offender is unlikely to offend, the offender has good prospects of rehabilitation, the remorse shown by the offender (subject to conditions), and a plea of guilty (as provided in s 22).
The Court has to identify all the factors relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock at [26], following Markarianv The Queen [2005] HCA 25, 228 CLR 357 at [51]. This process has been called "instinctive synthesis".
The ultimate control on the judicial sentencing discretion is that the sentence must be proportionate to the seriousness of the offence considered in light of its objective circumstances: Hoare v The Queen [1989] HCA 33, 167 CLR 348 at 354; Muldrock at [60]. It is only within the outer limit of proportionate punishment that the interplay of other relevant favourable and unfavourable factors will point to what is the appropriate sentence in all the circumstances of the particular case: Veen v The Queen [No 2] [1988] HCA 14, 164 CLR 465 at 472 - 473, 491. The objective circumstances of the offence and the purposes of punishment also inform the lower limit of sentencing discretion, a bottom line beneath which a sentence cannot legitimately be set: Plath v Rawson [2009] NSWLEC 178, 170 LGERA 253 at [46].
OBJECTIVE SERIOUSNESS OF THE OFFENCE
In determining objective seriousness, the traditional view has been that the Court may have regard to a broad range of factors: the maximum penalty, the nature of the offence, the extent of the harm caused to the environment, the state of mind of the offender, the offender's reasons for committing the offence, the foreseeability of risk of harm to the environment, the practical measures to avoid harm to the environment, and the offender's control over the causes: eg Pittwater Council v Scahill [2009] NSWLEC 12, 165 LGERA 289 at [51].
Two of these factors - the sometimes related state of mind of the offender and the offender's reasons - are personal to the offender at the time of the offence. However, in numerous cases in this Court such personal factors have been regarded as objectively affecting the seriousness of the offence: eg Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34, 145 LGERA 234 at [162]. The underlying reason for this view is their direct causal connection with the commission of the offence. The most authoritative statement of this rationale is to be found in R v Way [2004] NSWCCA 131, 60 NSWLR 168. The Court of Criminal Appeal said at [86]:
Some of the relevant circumstances which can be said "objectively" to affect the "seriousness" of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 33 FLR 433 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence.
The Court of Criminal Appeal said at [118] that the objective seriousness of the offence is to be considered in the light of the facts which relate directly to its commission, including any facts explaining why the offence was committed.
These principles in Way have recently been thrown into question as a result of Muldrock v The Queen [2011] HCA 39, 85 ALJR 1154 where the High Court said at [27]:
The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.
The Court of Criminal Appeal said in Yang v R [2012] NSWCCA 49 at [28]:
...the High Court of Australia in Muldrock v The Queen ...at [27] appears to have rejected the notion propounded in R v Way ...at [86] that matters personal to an offender, including a mental illness, can be said to affect the objective seriousness of an offence. I have said, "appears to have rejected", because it has not been universally accepted.
The Court in Yang proceeded to survey the NSW authorities after Muldrock, which have expressed conflicting views as to whether Muldrock has limited the range of factors to be considered in determining objective seriousness by excluding factors personal to the defendant. The Court in Yang found it unnecessary to decide that issue: at [37].
Muldrock was not the subject of submissions by the parties in the present case. Since Muldrock was specifically concerned with mental disability and since the Court of Criminal Appeal has not held that Muldrock has swept away the relevant principle in Way, I propose to adhere to the traditional view that the offender's state of mind and reasons for committing the offence are relevant to objective seriousness. Even if they are not, they remain relevant on sentence in an assessment of moral culpability: Yang at [30].
Maximum penalty
The maximum penalty serves as an indication of the relative seriousness of an offence, and an increase in the maximum penalty indicates that the penalty for that offence should be increased: Muldrock at [31]. As noted above at [8], the maximum penalty in relation to BMG is $2,000,000. The maximum penalty in relation to Mr Barnes is $500,000 or two years imprisonment or both. These high maximum penalties for offences of disposing of waste are, to a significant extent, intended to act as a deterrent. Compliance with the law becomes cheaper than offending. Crime becomes economically irrational.
Nature of the offence
Having regard to the maximum penalties, the seriousness of the conduct is informed by the degree to which it offends the legislative objectives. The objects of the POEO Act are stated in s 3 and relevantly include:
(a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,
...
(d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following:
(i) pollution prevention and cleaner production,
(ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,
(iia) the elimination of harmful wastes,
(iii) the reduction in the use of materials and the re-use, recovery or recycling of materials,
(iv) the making of progressive environmental improvements, including the reduction of pollution at source,
(v) the monitoring and reporting of environmental quality on a regular basis,
One of the principal means by which these objects are achieved is through the prohibition upon disposing of waste in a manner that is harmful to, or likely to harm, the environment. In the present case, the offences thwarted the attainment of the objects of the POEO Act and undermined the integrity of its regulatory system to a substantial degree.
Extent of actual or likely environmental harm: s 241(1)(a) POEO Act (s 21A(2)(g) CSP Act)
The offences to which BMG and Mr Barnes have pleaded guilty are that they negligently disposed of waste in a manner that harmed or was likely to harm the environment. What was the extent of the harm? Three expert witnesses concluded that there was potential harm to the environment but only one, Dr Cattle, concluded that there was any actual harm: viz the soil characteristics of several sites had been adversely changed: see [61] - [70] above. I accept the expert evidence. However, there is evidence from owners of Greenbank that the material deposited there was or could be beneficial: see [47] - [48] above. I also accept that evidence. Overall, I assess the extent of actual harm as low and the extent of likely harm as moderate.
Practical measures: s 241(1)(b) POEO Act
The offenders could have taken practical measures to prevent the harm by disposing of the waste at licensed facilities. This is not contentious.
Foreseeability of risk of harm: s 241(1)(c) POEO Act
The offenders could have reasonably foreseen the harm likely to be caused to the environment by the commission of the offences. This is not contentious.
Control of causes: s 241(1)(d) POEO Act
The offenders had control of the causes that gave rise to the offences. This is not contentious.
Reason for committing offence; whether offence committed for financial gain: s 21A(2)(o) CSP Act
The reason for committing an offence may bear on its objective seriousness. A statutory aggravating factor is if the offence was committed for financial gain: s 21A(2)(o) CSP Act. The prosecutor submits that these offences were committed for financial gain.
BMG obtained considerable financial gain by disposing of waste at Greenbank rather than paying fees at licensed facilities readily available to BMG: see [73] - [74] above. Such savings gave BMG a competitive advantage in being able to undercut competitors who did not engage in such conduct.
Although Mr Barnes denied in his affidavit that he had a profit motive in receiving septic waste from G & G Waste, in cross-examination he acknowledged that he had a profit motive in that he was trying to keep people employed, but he said he also had other motives.
I am prepared to accept Mr Barnes' evidence that at the time he believed - mistakenly, as he now accepts - that he was entitled to engage in this conduct because he believed it came within exemptions to EPA licensing requirements.
However, in my opinion, as discussed earlier, he was grossly negligent, bordering on reckless, in not checking whether this conduct was unlawful: see [80] - [85] above.
Conclusion as to objective seriousness
Mr Barnes submits that the offences are in the range of low to middle level of objective seriousness. Having regard to the factors addressed above, I accept the prosecutor's submission that the offences are of moderate objective seriousness.
SUBJECTIVE CIRCUMSTANCES OF THE OFFENDERS
Within the limits set by the objective of the offence, the Court may take into account relevant mitigating factors personal to the offenders (s 21A(3) CSP Act).
A number of such subjective factors operate in favour of the offenders: they have pleaded guilty albeit late, they do not have any record of previous convictions save for a minor record in the case of Mr Barnes, they are of good character, they are unlikely to re-offend, they have good prospects of rehabilitation, and they have shown remorse in accordance with the statutory requirement. Some of these factors require elaboration.
Guilty Plea: ss 21A(3)(k) and 22 CSP Act
A plea of guilty entitles the offenders to a discount in penalty in the range of 10-25 per cent: R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 at [152]. In the present case, whilst the offenders ought to have the benefit of the Court taking their guilty pleas into account, the pleas were entered less than a week before the trial was due to start. Thus, the discount to be afforded for the utilitarian value of the pleas of guilty should be reduced from the maximum of 25 per cent. Mr Barnes' submission is that the discount should be 15 per cent. The prosecutor does not make a submission that it should be lower. It appears that the pleas of guilty, albeit very late, saved more than a week of hearing time which had been set aside for the trial. On balance, I am prepared to accept the submission that the discount should be 15 per cent.
Good character: s 21A(3)(f) CSP Act
A number of character references were tendered in Mr Barnes' case from a variety of references. They are broadly to the effect that he is of good character and well regarded. I accept that that is so.
Record of Prior Convictions: s 21A(3)(e) CSP Act
The offenders do not have any record of previous convictions except for the following matter relating to Mr Barnes. On 12 November 1996, Wimbledon Worms Pty Ltd, a company owned and controlled by Mr Barnes, was convicted for water pollution (contrary to s 16 of the Clean Waters Act 1970) arising from the application of waste to land at Greenbank. The circumstances of this offence are not known to me and only a relatively small fine of $2,500 was imposed. I do not regard this record as particularly serious.
Remorse: s 21A(3)(i) CSP Act
Section 21A(3)(i) of the CSP Act states that a mitigating fact to be taken into account is:
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
There is evidence, which I accept, of remorse by Mr Barnes that satisfies these conditions.
Assistance to law enforcement authorities: s 21A(3)(m) CSP Act
On the evidence, the only clear assistance to law enforcement authorities seems to have been Mr Barnes' agreement to a statement of facts, albeit it was very late.
DETERRENCE
One of the purposes for which a Court may impose a sentence on an offender is to prevent crime by deterring the offender and other persons from committing similar offences: s 3A(b) CSP Act. I consider that there is a need for such deterrence in this case.
PARITY BETWEEN OFFENDERS
Both offenders are charged with the same offences arising from the same circumstances. Inconsistency in sentencing could give rise to a justifiable sense of grievance. Therefore, other things being equal, there should be parity of punishment as between offenders: Lowe v The Queen [1984] HCA 46, 154 CLR 606 at 610 - 611. I think that the conduct of Mr Barnes in relation to the commission of the offences should be equated with that of BMG. In the circumstances of these offences, both offenders present overall with approximately comparable objective and subjective features. They should be treated on an equal basis so that there is parity of sentencing between them. There is no contrary submission.
CONSISTENCY IN SENTENCING
A relevant consideration is the ascertainment of a general pattern of sentencing for offences such as the offence under consideration. The object is even-handedness in sentencing.
This Court has only had occasion to consider sentences for an offence such as this on a limited number of occasions.
In Environment Protection Authority v Wattke [2010] NSWLEC 24 each offender pleaded guilty to offences under s 115 of the POEO Act for the negligent disposal of some 4.8 megalitres of, inter alia, untreated septic and greasetrap waste, over a 5-6 month period. The offenders were a director and the manager, respectively, of the company involved. Pain J held at [102] that the offences were serious and towards the medium to upper end of the possible spectrum of sentencing given the objective circumstances, but noted that it was not the worst case because the environmental harm was largely confined to a single, albeit large, property. Pain J referred to both of the authorities set out below, noting in particular that the case of Environment Protection Authority v Gardner [1997] NSWLEC 212 was markedly more serious than the offences before her. Ultimately in respect of the s 115(1) charges her Honour made an order that each defendant undertake 460 hours of community service (pursuant to s 8 of the CSP Act) imposed a fine of $50,000 and ordered that each pay the prosecutor's costs. The prosecutor's legal costs and investigation costs were estimated to total approximately $140,000 and her Honour took those costs into account in setting the amount of the fine, citing Environment Protection Authority v Barnes [2006] NSWCCA 246: at [97].
Wattke was a more serious case than the present case because the material dumped (over a not dissimilar period) approached 5 million litres including into watercourses and creeks, the waste included highly toxic chemicals, and there was substantial actual harm of a lasting nature.
In Environment Protection Authority v Pal [2009] NSWLEC 35, the defendant was a "landfill consultant", the principal of an earth-moving business, and also director of a haulage company. She pleaded guilty to two charges under s 115(1) of the POEO Act of negligently disposing of waste in a manner that harmed or was likely to harm the environment at two different properties. The defendant was engaged to undertake fill operations on two sites, and had full control of those sites. There was no cogent evidence of remorse. Sheahan J extended a 10 per cent discount for the plea and sentenced the offender to 450 hours community service, and a fine of $45,000, as well as ordering the offender pay the prosecutor's costs. In fixing the amount of the fine, his Honour took into account an assertion that the defendant was impecunious as well as the liability for the prosecutor's costs.
In Environment Protection Authority v Gardner [1997] NSWLEC 212 (conviction) and Environment Protection Authority v Gardner [1997] NSWLEC 169 (sentencing), there was a more serious charge of wilful disposal of waste for activities that took place over many months. At trial the defendant was found guilty of the tier 1 offence of wilfully disposing of waste in a manner which was likely to harm the environment under s 5(1) of the Environmental Offences and Penalties Act 1989, which is identical to s 115(1) of the POEO Act. The defendant operated a caravan park and was discovered to have constructed a concealed system of by-pass plumbing in order to discharge effluent from the caravan park directly into the Karuah River, rather than incur costs for pump-out and road-tanker disposal as required by the Port Stephens Council. The illegal pumping and discharge into the river had occurred for a period of 118 weeks, and caused viral contamination to sediments near the outlet pipe, and posed a grave health risk to the community. In the judgment on sentence (Environment Protection Authority v Gardner [1997] NSWLEC 169) Lloyd J restated that he found beyond reasonable doubt that the defendant knew his activities were illegal and would harm or were likely to harm the environment. Evidence was adduced as to prior good character, and the defendant acknowledged his responsibility in the commission of the offence. There were multiple aggravating features in that the offence was not an isolated or single act of pollution, the offence was committed for financial gain, the defendant went to great lengths to conceal illegal activity, the harm affected the community as a whole and the defendant was aware of causing environmental harm by his actions but showed little remorse. Lloyd J considered a possible sentence of community service or periodic detention, but recognised that such orders suggest a strong degree of leniency and are outwardly less severe in denunciation of a crime as compared with a full time custodial sentence. Lloyd J sentenced the defendant to 12 months imprisonment with a non-parole period of nine months, to pay a penalty of $250,000 (the maximum fine at that time), and to pay the prosecutor's costs of $170,000.
COMMUNITY SERVICE ORDERS
The Court's power to order a community service order is contained in s 8 of the CSP Act which provides:
8 Community service orders
(1) Instead of imposing a sentence of imprisonment on an offender, a court may make a community service order directing the offender to perform community service work for a specified number of hours.
(2) The number of hours specified in a community service order in relation to an offence must not exceed 500, or the number of hours prescribed by the regulations in respect of the class of offences to which the offence belongs, whichever is the lesser.
(3) This section does not apply to an offender to whom the Children (Community Service Orders) Act 1987 applies.
(4) This section is subject to the provisions of Part 7.
The opening words of s 8(1) do not confine the availability of community service orders to cases which otherwise would be visited by the imposition of a sentence of imprisonment: R v El Masri [2005] NSWCCA 167 at [32].
Referring to s 8(2), the maximum number of hours of community service which may be imposed upon Mr Barnes is 500 hours, on the basis of the maximum custodial penalty imposed in respect of the offence under s 115 of the POEO Act. This is by reason of cl 23 of the Crimes (Sentencing Procedure) Regulation 2010 which provides:
23 Maximum number of hours of community service work
For the purposes of section 8 (2) of the Act, the prescribed number of hours is:
(a) 100, for offences for which the maximum term of imprisonment provided by law does not exceed 6 months, or
(b) 200, for offences for which the maximum term of imprisonment provided by law exceeds 6 months but does not exceed 1 year, or
(c) 500, for offences for which the maximum term of imprisonment provided by law exceeds 1 year.
Section 8(4) indicates that the power is subject to the provisions of Part 7 (ss 84-93) of the CSP Act, which sets out the sentencing procedures for community services orders. Section 8(4) indicates that Part 7 applies in circumstances in which a court is considering, or has made, a community service order.
Section 86, within Part 7, imposes restrictions on the court's power to make a community service order. In particular, the Court must have before it an "assessment report" (usually undertaken by a probation and parole officer) as to the suitability of the offender for such an order. Section 86 states:
86 Suitability of offender for community service work
(1) A community service order may not be made with respect to an offender unless the court is satisfied:
(a) that the offender is a suitable person for community service work, and
(b) that it is appropriate in all of the circumstances that the offender be required to perform community service work, and
(c) that arrangements exist in the area in which the offender resides or intends to reside for the offender to perform community service work, and
(d) that community service work can be provided in accordance with those arrangements, and
(e) (Repealed)
(2) In deciding whether or not to make a community service order, the court must have regard to:
(a) the contents of an assessment report on the offender, and
(b) such evidence from a probation and parole officer as the court considers necessary for the purpose of deciding whether to make such an order.
(3) A court may, for any reason it considers sufficient, decline to make a community service order despite the contents of an assessment report.
(4) A court may make a community service order only if an assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person for community service work.
(5) If a court makes a community service order in respect of an offender, the offender must, as soon as practicable (having regard to sections 92 and 93) after the order is made, sign an undertaking to comply with the offender's obligations under the order. If the offender refuses to sign such an undertaking, the offender may be brought before the court and the court may revoke the community service order and impose such other sentence as it considers appropriate.
The assessment report to which the court must have regard, pursuant to s 86(2), is obtained by way of a referral, as set out in ss 88 -89:
88 Referral of offender for assessment
Before a court sentences an offender, the court may refer the offender for assessment as to the suitability of the offender for community service work.
89 Assessment of suitability
(1) When an offender is referred for assessment, the Probation and Parole Service is to investigate and report to the court on the matters referred to in section 86 (1).
(2) The regulations may make provision for or with respect to the conduct of investigations and the preparation of reports for the purposes of this Part.
Finally, if the Court does make a community service order, it must comply with ss 92 and 93, which provide:
92 Explanation of community service order to offender
(1) Having made a community service order in relation to an offender, a court must ensure that all reasonable steps are taken to explain to the offender (in language that the offender can readily understand):
(a) the offender's obligations under the community service order, and
(b) the consequences that may follow if the offender fails to comply with those obligations.
(2) A community service order is not invalidated by a failure to comply with this section.
93 Preparation and service of written notice of community service order
(1) As soon as practicable after making a community service order, a court must cause written notice of the order to be given to the offender and to the Commissioner of Corrective Services.
(2) The notice must include the following information:
(a) the place at which, or person to whom, the offender must present himself or herself, in person, for the purpose of enabling the administration of the order to be commenced,
(b) the period within which the offender must so present himself or herself.
(3) A community service order is not invalidated by a failure to comply with this section.
The prosecutor draws my attention to the possibility of a community services order against Mr Barnes but does not submit that one should be made. Mr Barnes submits, and I accept, that in all the circumstances one should not be made.
COSTS
The Court is empowered to order an accused person to pay to the registrar of the Court, for payment to the prosecutor, such costs as the Court specifies or as may be determined under s 257G: s 257B Criminal Procedure Act 1986. The Court is also empowered, if it appears to the Court that a regulatory authority has reasonably incurred costs and expenses during the investigation of the offence, to order the offender to pay the regulatory authority those costs and expenses in such amount as is fixed by the Court: s 248(1) POEO Act. Two procedural differences between the two provisions may be noted. First, the former requires, but the latter does not, that payment be to the registrar of the Court. Secondly, the latter requires, whereas the former permits but does not require, that the Court fix the amount.
The amount of costs can be taken into account as part of the consideration of the amount of the fine: Environment Protection Authority v Barnes [2006] NSWCCA 246. In that case the Court of Criminal Appeal regarded costs as part of the penalty because, in dismissing a Crown appeal against sentence, they said at [88]:
As a matter of first impression, the fines imposed appeared unduly lenient, suggesting error. However, the fines were part only of the penalty. Mr Barnes was obliged to pay substantial costs. Her Honour made it clear that, but for that fact, the fines she would have imposed would have been much higher.
The prosecutor and Mr Barnes agree that the amount of the prosecutor's costs and expenses total $175,000 comprising legal costs of $143,631 and investigation costs and expenses of $31,369, and that a costs order of some sort should be made against Mr Barnes.
The prosecutor submits that since Mr Barnes alone was the person involved in the offending conduct and having regard to the evidence as to BMG's potential financial difficulty, Mr Barnes should be ordered to pay all the costs and that no cost order should be made against BMG. Mr Barnes submits that I should order him to pay half the costs and BMG the other half, and that I should deduct his costs liability against the fine that I would otherwise have ordered him to pay. I do not think that is appropriate. It would mean that the prosecutor would bear the risk of being unable to recover costs to the extent that either BMG or Mr Barnes became insolvent and was unable to pay its or his share of the costs. In fact, there is some evidence suggesting a risk of insolvency of BMG as a result of these proceedings. Given that the case and the evidence against BMG and against Mr Barnes are virtually identical, I think that they should be jointly and severally liable for the prosecutor's total costs in the sum of $175,000. In concluding that BMG should also have a liability for costs, I take into account that Mr Barnes is a 50 per cent shareholder of BMG and therefore is potentially affected financially to the extent of 50 per cent of any costs that it pays. I am also not persuaded that taking costs into consideration should necessarily equate to an equivalent deduction from the fine that would otherwise be imposed.
MEANS TO PAY
Section 6 of the Fines Act 1996 requires the Court to consider such information regarding the offender's means to pay as is reasonably and practicably available for consideration when assessing the amount of a fine. There was only fleeting reference in Mr Barnes' submissions to s 6 and no submission in that regard was developed. I am unable to say that means to pay has a role in this case.
APPROPRIATE PENALTY
In my opinion, it is appropriate in the circumstances of the case to fine the offenders, and order them to pay the prosecutor's legal and investigation costs on a joint and several liability basis. The amount of the fine should be determined by an instinctive synthesis of all the relevant factors. There is approximate parity between the offenders and although the statutory maximum fine for a corporation is four times the maximum for an individual, there is no submission that the amount of the fine should be greater for BMG than for Mr Barnes. Accordingly, I proceed on the basis that the amount of the fine should be the same for both offenders in the circumstances of this case.
I consider that the appropriate amount of the fine for each defendant is $200,000 before taking into account the amount of the prosecutor's costs for which they will be made liable. That sum of $200,000 should be discounted by 15 per cent to take account of the utilitarian value of the plea of guilty. This results in a fine of $170,000 each. After taking into account the amount of costs, I propose to fine each offender $100,000.
I propose to take the amount of costs into consideration in calculating the amount of the fine.
ORDERS
The orders of the Court in each of the two matters are as follows:
1. The offender is convicted of the offence against s 115(1) of the Protection of the Environment Operations Act 1997 as charged.
2. The offender is fined $100,000.
3. The offender is to pay to the registrar of the Court, for payment to the prosecutor, the prosecutor's legal costs in the sum of $143,631, subject to Order 5.
4. The offender is to pay to the prosecutor the prosecutor's investigation costs and expenses in the amount of $31,369, subject to Order 5.
5. The offender is jointly and severally liable with the offender in the other matter for the legal costs and investigation costs and expenses referred to in Orders 3 and 4 to the intent that the prosecutor cannot recover more than $143,631 legal costs for both matters and $31,369 investigation costs for both matters from both offenders.
6. The exhibits may be returned.
Decision last updated: 16 November 2012
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