Environment Protection Authority v Bruce Panucci Transport Pty Ltd (ACN 003 681 016)

[2003] NSWLEC 244

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Reported Decision: 131 LGERA 119

Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority v Bruce Panucci Transport Pty Ltd (ACN 003 681 016) [2003] NSWLEC 244
PARTIES:	PROSECUTOR: Environment Protection Authority DEFENDANT: Bruce Panucci Transport Pty Ltd (ACN 003 681 016)
FILE NUMBER(S):	50117 of 2002
CORAM:	Bignold J
KEY ISSUES:	Environmental Offences :- vehicle emitting excessive air impurities-plea of guilty
LEGISLATION CITED:	Clean Air (Motor Vehicles and Motor Vehicle Fuels) Regulation 1997, cl 27(1)
CASES CITED:	Environment Protection Authority v Vicary Corporation Pty Limited (1997) 96LGERA 46
DATES OF HEARING:	30/06/2003
EX TEMPORE JUDGMENT DATE :	06/30/2003
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr T Howard, Barrister SOLICITORS Environment Protection Authority DEFENDANT: S Duggan, Barrister SOLICITORS J Walsh and Partners

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter No . . 50117 of 2002

Coram : Bignold J

30 June 2003

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

v

BRUCE PANUCCI TRANSPORT PTY LTD (ACN 003 681 016)

Defendant

JUDGMENT

1. The Defendant has pleaded guilty to a charge of an offence against cl 27(1) of the Clean Air (Motor Vehicles and Motor Vehicle Fuels) Regulation 1997 in that on or about 21 November 2001 at Liverpool Road, Bass Hill, it committed an offence against that Regulation in that being the owner of a motor vehicle it did cause the vehicle to be used when it emitted excessive air impurities.

2. According to the particulars annexed to the Summons, the vehicle registration number is RWO-218, New South Wales. The type of vehicle was a Hino tabletop truck. the type of air impurity emitted is medium black-dark black smoke. The type of engine is diesel. The duration of the emission of air impurity is twenty seconds. The time of the offence was 4.15 in the afternoon. The manner of breach was that the Defendant (1) caused the vehicle to be used when it emitted excessive air impurities and/or; (2) failed to prevent the emission of excessive air impurities when the vehicle was being used.

3. The Summons in this matter was filed in Court on 19 November 2002, almost a year after the offence was alleged to have been committed. Initially the Defendant had entered a plea of not guilty to the charge and the case was listed for two days commencing today on the basis that the charge would be defended. The matter had come before the Court in the conventional manner on an earlier occasion when the Defendant indicated that it would wish to defer pleading to the charge until it had received all of the evidence filed by the Prosecutor in support of the charge and on 13 January this year the Defendant entered the plea of not guilty.

4. The Defendant’s Solicitor wrote to the Registrar of the Court and to the Prosecutor last week to inform the Court and the Prosecutor of the intention of the Defendant to change its plea to a plea of guilty and when the matter came before me today Counsel for the Defendant sought leave and obtained leave to change the plea from a plea of not guilty to a plea of guilty.

5. In his evidence the Managing Director of the Defendant company indicated that he had given instructions in about April of this year to the company’s Solicitors to inform the Court and the Prosecutor of the change of plea and he had expected that that advice would have been relevantly transmitted soon after the instructions were given. As it turned out, as I say, it was not until recently that those instructions were in fact communicated.

6. With the change of plea the Defendant has cooperated with the Prosecutor in the presentation of the case inasmuch as the Defendant has subscribed to the Statement of Agreed Facts (Exhibit 1) which was tendered in the proceedings today. In addition to the statement of agreed facts, which I will come to later, other evidence was given at the hearing including a certificate under s 177 of the Evidence Act 1995 by Mr Andrew John Graham, the Manager of the Motor Vehicle Enforcement Unit of the Environment Protection Authority (that was Exhibit 2) together with the affidavit of Susanne Quigley sworn 31 January 2003, she being the Manager of the Environment Protection Authority Scientific Services and Research Unit. Her affidavit was received as Exhibit 4.

7. In addition there were certificates of prior conviction which I shall return to later in these reasons.

8. Additionally, by its Summons the Prosecutor sought in addition to conviction and penalty the making of an order pursuant to s 250 of the Protection of the Environment Operations Act 1997 requiring the Defendant to publish details of the conviction and penalty, if any, imposed against it in respect of the present charge. That order, for reasons I will come to presently, was opposed by the Defendant based upon principally the evidence of Mr Panucci to the effect that such a publication order would be apt to be prejudicial to the core business conducted by the Defendant as the conveyor or transporter of dangerous goods in respect of which activity it is necessary for the Defendant to be appropriately licensed under the Dangerous Goods Act and Code by the Environmental Protection Authority.

9. The relevant clause creating the offence which the Defendant admits is cl 27 of the Clean Air (Motor Vehicles and Motor Vehicle Fuels) Regulation 1997 which provides as follows: “An owner of a motor vehicle who uses the motor vehicle or causes or allows it to be used is guilty of an offence if it emits excessive air impurities. Maximum penalty in the case of a corporation 400 penalty units or in the case of an individual 200 penalty units.” A penalty unit is of course provided for in the Interpretation Act at $110 so that the maximum penalty in this present case where the Defendant is a corporation of 400 penalty units is $44,000.

10. Clause 27(2) of the Regulation provides as follows: “For the purpose of this clause a motor vehicle emits ‘excessive air impurities’ if it emits air impurities in circumstances described in s 154(2) of the Act.” That is a reference to s 154(2) of the Protection of Environment Operations Act 1997.

11. It is to be noted that the Regulations creating the offence with which the Defendant has been charged in the present case were repealed on 1 September 2002 pursuant to s 10(2) of the Subordinate Legislation Act 1989. On the same day a new Regulation was proclaimed to commence under the Protection of the Environment Operations Act, namely the Protection of the Environment Operations (Clean Air) Regulation 2002 and that Regulation re-enacts provisions erstwhile found in the now-repealed Regulation including by way of comparison with the cl 27 of the 1997 Regulation (being the offence creating provision relevant to the present case) cl 9 of the 2002 Regulation.

12. The now-repealed 1997 Regulation was, upon the enactment of the Protection of the Environment Operations Act 1997, deemed to be a Regulation in force under the 1997 Act pursuant to the provisions of cl 11(1) of Schedule 5 to that Act which relevantly provides “A Regulation made under an Act repealed by this Act is, on that repeal taken to be a Regulation made under this Act to the extent that it may be made under this Act”. It is common ground that the Protection of Environment Operations Act 1997 relevantly repealed the Clean Air Act 1961 which was the parent Act under which the 1997 Regulation was made and it is also common ground that the Regulation making power contained in s 323 of the 1997 Act relevantly enables Regulations to be made such as are now found in the 2002 Regulation that I have referred to by virtue of the provisions of Schedule 2 item 4 subpar (6). The liability incurred under the now-repealed 1997 Regulations is sustained by virtue of the provisions of the Interpretation Act 1987 which also sustain the entitlement for the Prosecutor to bring the present proceedings.

13. It is by that somewhat circuitous legislative route that one arrives at the safe conclusion that the Defendant has properly admitted guilt to a charge properly brought under the 1997 repealed Regulation as detailed in the Summons that I have earlier referred to. The Prosecutor relies upon the fact in particular in the present case - and this is dealt with in pars 5, 6 and 7 of the Statement of Agreed Facts - of three prior convictions of the 1997 Regulation or its predecessor in respect of the same diesel engine truck the subject of the present charge, one offence having been committed on 14 March 1997, the next offence having been committed on 17 August 1998 and the latest offence having been committed on 14 August 2001.

14. All prior convictions occurred at places within Metropolitan Sydney. In respect of each such offence convictions and penalties were imposed with the penalties being respectively (in order of the offences) $600, $1200 and $8000. In addition to those three prior convictions of the present Defendant in respect of the same truck the Defendant has also been issued on three occasions in 1996 with penalty infringement notices in respect of the same or similar offence with which the Defendant is currently charged, those three occasions being on 3 June, 20 September and 13 November, all in 1996.

15. The Statement of Agreed Facts indicates (and this is detailed more amply in the affidavit of Mr Panucci) that the Defendant company is a transport company operating in New South Wales specialising in the transport of shipping containers throughout Metropolitan Sydney. As amplified by Mr Panucci, the core business conducted by the Defendant is the transport of dangerous goods. The Defendant has a fleet of 12 vehicles comprising trucks, vans and utilities in which it carries out its business and on any given day the Defendant’s vehicles may spend up to sixteen hours on the road.

16. On the date of the admitted offence an environment protection officer was travelling by car through Bass Hill en route to Queanbeyan when he observed about 4.15 in the afternoon while travelling along the Liverpool Road the Defendant’s truck travelling in front of his car when he made the following observations, and I am quoting from par 4 of the Agreed Statement of Facts that “The truck was travelling west along a level stretch of ground at a speed of about sixty km an hour, medium black-dark black smoke was discharging from the vertical offside exhaust pipe of the truck continuously for twenty seconds and after the smoke had discharged from the exhaust pipe a plume of smoke travelled behind the exhaust pipe for three or four metres”.

17. The evidence of Miss Susan Quigley deposes to matters pertaining to air pollution, particularly in the Sydney, Illawarra and Newcastle regions, including evidence obtainable from the published scientific literature (including the 1994 New South Wales Government Metropolitan Air Quality Study) of the health and environmental effects of car emissions and in particular diesel exhaust emissions.

18. I do not need to recite that evidence in any great detail because it is conveniently summarised in a reported judgment of Lloyd J of this Court in Environment Protection Authority v Vicary Corporation Pty Limited (1997) 96LGERA 46 and I simply note that his Honour’s reasons for judgment generally reflect the evidence deposed to by Miss Quigley in her affidavit.

19. The evidence led on behalf of the Defendant was in the form of an affidavit sworn by Mr Panucci who has taken over the Defendant’s business and conducted it since 1982 when his father, who founded the business in about 1947, died in 1982 and Mr Francesco Panucci has from 1982 been responsible for the management of the business conducted by the Defendant company, he having been earlier employed in the business.

20. His evidence deposes to action taken by the Defendant over the years in relation to this particular truck, which under cross-examination he frankly conceded was a frequent offender since the three penalty infringement notices were issued in 1996 and by virtue of the three prior convictions of offences in 1997, 1998 and 2001 earlier referred to. In fact when put to him that the Defendant was relevantly a “recidivist” offender (with that term having been explained to him by the cross-examiner) Mr Panucci frankly conceded that it was, so far as concerns that particular truck, an answer which was both candid and straightforward. Indeed, it would be difficult to see what other answer could reasonably have been tendered in response to the facts of the present case. However, Mr Panucci’s evidence is relied upon to indicate that the Defendant has adopted a responsible approach to its environmental obligations of being engaged in the road transport industry and particularly in that part of the industry that deals with dangerous goods for which there are detailed codes of behaviour and regulation with onerous obligations imposed upon transporters carrying dangerous goods.

21. As Counsel for the Defendant equally frankly put it, in her helpful submissions to the Court, the evidence of Mr Panucci, if accepted, would lead to the conclusion that notwithstanding all of the efforts by the Defendant to correct problems that manifested themselves the vehicle in question was a “lemon”. It is to be noted that according to the evidence the vehicle was purchased new by the Defendant in 1984 or 1985 and the first of the problems that at least came to the attention of the Environment Protection Authority manifested themselves in 1996 when the vehicle was some twelve or eleven years old and thereafter had manifested themselves again in 1997, 1998 and 2001.

22. Prosecuting Counsel invited me to find that the Defendant had not instituted a responsible system of monitoring and testing the particular truck for compliance with the required standards dealing with vehicle emissions and in particular relied upon the following statement made in par 21 of Mr Andrew Graham’s certificate (Exhibit 2) when under the heading “Testing for Compliance with Clean Air (Motor Vehicles and Motor Vehicle Fuels) Regulation 1997” Mr Graham says, and I quote par 21:

The commonly used free acceleration test (stationary vehicle test) to test for exhaust smoke is totally inadequate as it does not simulate the conditions that exist when the vehicle is under load. As it can be difficult for the driver to observe exhaust smoke from inside the cab the vehicle should be driven on the road under varying conditions of load and speed and observations made from behind, preferably from a following vehicle. The vehicle should be road tested at regular intervals and after servicing

23. Mr Panucci’s evidence indicates that the testing conducted by the Defendant company is of the stationary vehicle test variety which test is denounced in the passage from Mr Graham’s certificate that I have just read although paradoxically Mr Graham also notes that it is the commonly used free acceleration test. When asked by the Court whether Mr Graham was referring to industry practice Prosecuting Counsel intimated that no such inference could be drawn and he was not in a position on the evidence to amplify or explain Mr Graham’s statement.

24. I of course must accept that response but I am left with the evidence of Mr Graham which, in the absence of amplification and explanation, leaves unanswered questions like the one that I posed and also more importantly whether the Environment Protection Authority in the quest of the achievement of its legislative charter had been engaged in any educative role in ensuring that transport vehicles involved in the transport industry were tested and monitored by an appropriate test and not one which Mr Graham had denounced as being totally inadequate. Again the evidence simply is not available on that matter and one is simply left to wonder.

25. Prosecuting Counsel put the submission that the Defendant should be adjudged by the Court to be engaged in a process of testing and monitoring of its trucks in a “reactionary mode rather than a proactive mode”. This was explained by Prosecuting Counsel as being attested by the facts of the present case involving a history of the same truck the subject of the present charge, namely that it was only after penalty infringement notices were issued or summonses were issued that the Defendant company reacted by testing the particular truck.

26. This submission was also put to Mr Panucci under cross-examination and he denied that the company was involved in a reactionary mode of servicing and testing the vehicle or its vehicles. He regarded the company as being involved in responsible testing of its vehicles.

27. There are two things that I would want to say in relation to that submission. Firstly, and importantly, it is to be noted that Mr Panucci’s evidence indicates that the several occasions that the particular truck was in for testing or servicing by repair and the like (including reconstructing the engine and ultimately substituting a reconditioned engine for the existing engine) do not accord with the thesis that it was only after the Defendant was put on notice of committed offences that it was engaged in such activities.

28. An attempt was made in cross-examination (but which ultimately failed) to establish that the Defendant was aware of the August 2001 offence at the time it had repairs and testing undertaken of the particular truck and at the end of the submissions Prosecuting Counsel sought leave to re-open the case to tender a letter which had not been put to Mr Panucci in cross-examination dealing with the question of prior notice by the Defendant of the present charge by way of letter. Leave to re-open was opposed and in my view it came too late in the day to be sanctioned and accordingly leave was refused.

29. Accordingly, the evidence as it stands, does not support a finding beyond reasonable doubt that the Defendant only responded and reacted to problems after it had been put on notice that offences had been committed.

30. The second matter that I should refer to is the fact that the Defendant which has been engaged in the road transport business for nearly 60 continuous years, currently has a fleet of 12 vehicles and it is significant that it is the one truck only that has been the subject of not only the present charge but the three prior convictions and the three prior penalty infringement notices. This fact itself suggests that the Defendant’s fleet of trucks are properly maintained save for this one particular truck which has been the sole source of problems for the Defendant in the past.

31. I should add, before coming to the question of penalty, Mr Panucci’s evidence also indicates action taken by the Defendant in respect of both its drivers of its trucks and its operations manager to keep a log book, as it were, of the state of the trucks each day that they are taken out onto the road including an appropriate notation on the question of vehicle emissions.

32. The maximum penalty provided for the offence admitted by the Defendant as I have noted is $44,000. This is to be contrasted with the general penalty operating under the Environmental Offences and Penalties Act applicable in the case of the Vicary Corporation charge where in the case of the corporation Defendant the maximum penalty was $125,000.

33. Although I have found that the Prosecution has not established beyond reasonable doubt the asserted failures on the part of the Defendant to maintain a system of monitoring and testing of its vehicles to give the requisite level of confidence of observance of the standards of the Regulations by the Defendant’s fleet of vehicles, I nonetheless accept Prosecuting Counsel’s submissions that this offence is a serious offence inasmuch as it deals with a serious and widespread problem which is inevitably encountered given the extremely high level of motor transport upon which our modern society relies. Although the maximum penalty of $44,000 which is the penalty under the 2002 counterpart provision is considerably less than the previous general penalty applying to a multitude of offences under the earlier laws, it is a penalty specifically imposed for a specific offence and not for a wide spectrum of offences (such as the earlier penalty was framed).

34. The degree of culpability on the part of the Defendant is I think, notwithstanding the evidence of Mr Panucci as to the method whereby the Defendant seeks to test its vehicles, nonetheless in my opinion to be adjudged as high and serious, simply by virtue of the track record of this particular truck. It is true that it is the sole offending truck in a fleet of currently 12 vehicles which the Defendant operates but it is a repeat offender truck and one which the Defendant must be taken to be well aware of as a problem vehicle.

35. In fact as Defence Counsel frankly put it, despite the efforts of the Defendant to bring it up to scratch it is a “lemon”. It might be that it is also an old lemon, having been in existence since 1984, and it may be, notwithstanding the submissions put by Defence Counsel that one does not in the transport industry put out to pasture expensive capital such as operative trucks, that the Defendant will have to seriously reconsider its position in relation to this rather regularly offending truck.

36. In all the circumstances, I have come to the conclusion that the offence should be regarded as a serious offence and the degree of culpability of the Defendant be regarded as serious, simply because it has failed to contain a problem which has broken out consistently since 1996 despite its best efforts to provide against repeat offences.

37. I accept in mitigation of the offence the Defendant’s entry of a plea of guilty after an initial not guilty plea and I accept Mr Panucci’s genuine contrition on behalf of the Defendant. I also accept that according to its best lights the company has been attempting to test and monitor the environmental performance of its trucks but the fact remains that this one offending truck is, as I have said in the course of the case, the black sheep in the fleet and difficult though the decision may be the Defendant I think has to grapple with that problem of recidivism on the part of that particular offending truck in a more efficient way than it has managed to do so to date.

38. It may be that Mr Graham’s denunciation of the stationary vehicle test will gain currency. One hopes it will, in the industry, and I am sure that the Defendant is now on notice of the inadequacy of that stationary test.

39. I have considered the particular provisions of s 241 of the POE Act in coming to the view that I have already expressed about the seriousness of the offence and the level of culpability of the Defendant. I accept Defence Counsel’s submission that in considering the question of harm to the environment the Court is required to assess that matter from the perspective of the commission of this offence and this offence alone and it is obvious that the emission of the smoke for twenty seconds as observed in this case would have caused but fleeting environmental consequences and probably in the light of the ambient air quality in the Sydney region, of negligible proportions.

40. So far as concerns measures to prevent, control, abate or mitigate, although I accept Mr Panucci’s evidence of what the company has done responsibly, I have also found that it is not good enough given the track record of this particular truck and of course the foreseeability of harm referred to in par (c) s 241 must also be regarded as reasonably foreseeable again in view of its track record from 1996 through to 2001 and of course the Defendant is relevantly in control over the causes in the sense that it desires to maintain its vehicular fleet in the appropriate environmental performance mode and that in truth the onus is on the Defendant in that respect.

41. In all the circumstances, I have come to the conclusion that the appropriate penalty in the present case is a conviction of the offence as charged and the imposition of a penalty, but in the circumstances of this case I do not think it is just or reasonable that I make the order under s 250 of the Act.

42. In that respect, I accept Defence Counsel’s submissions that the recording in the public arena of this particular offence under a now-repealed Regulation is apt to be confusing at best, but in particular, I accept her submissions based upon Mr Panucci’s evidence that at the present time the company is delicately positioned in relation to a major contract which it has erstwhile enjoyed and is at the point of tendering in relation to the carriage of dangerous goods and that there could be an unwitting confusion in the minds of its potential customers if they were to see that the Defendant is in trouble with the Environment Protection Authority.

43. The appropriate penalty is one that must visit this serious offence with the level of culpability that I have ascribed to the Defendant in a manner which exerts both general and particular deterrence. The penalty of $16,500 that I propose to impose represents 50 per cent of the maximum fine, being reduced by 25 percent to reflect a global reduction reflecting the benefits of the change of plea to guilty, the cooperation with Prosecuting Counsel, the contrition expressed by the Defendant and its resolve to ensure that its trucks do not re-offend.

44. For the foregoing reasons therefore I make the following orders:
1. The Defendant is convicted of the offence as charged.
2. A penalty of $16,500 is imposed in respect of the conviction.
3. The Defendant is ordered to pay the Prosecutor’s legal costs in the agreed sum of $12,000.
4. The exhibits to remain on the Court papers.

DUGGAN: Your Honour, I have been instructed to make an application for time to pay just in light of the fact that your Honour is making the order on the last day of this financial year - just to enable my client to get his financial affairs in order - of three months.

BENCH: Yes, Ms Duggan. Mr Howard?

HOWARD: Your Honour, I certainly have no objection to that but I do alert your Honour to I think the proper course being that that go to the--

HIS HONOUR: Section 7 of the Fines Act.

HOWARD: Yes, that’s a matter that’s got to go to the Registrar.

HIS HONOUR: With your leave Mr Howard, if Ms Duggan finds this satisfactory, I might add a note to the order to the effect that the Prosecutor has no objection to the Defendant having three months to pay the fine. I appreciate that that is not the procedure under the Fines Act but it might delay enforcement action if you--

HOWARD: May it please the Court.

HIS HONOUR: You have no objection to that course?

HOWARD: I’m content for that, your Honour. It’s only a mechanical procedure which requires the Registrar rather than your Honour to grant that time and I have no objection to that course whatsoever.

HIS HONOUR: Is that satisfactory, Ms Duggan?

DUGGAN: That is satisfactory, your Honour, yes.

HIS HONOUR: If you wanted to secure it entirely you would have to fill in more forms and go to the Registrar under the Fines Act. They have taken the power away from the judges to give time to pay or payment by instalments but in a recent case I simply added that note, Ms Duggan. If that is satisfactory I will add it to this particular order.

DUGGAN: I would invite your Honour to do that. That would be helpful.

HIS HONOUR: No objection, Mr Howard?

HOWARD: May it please the Court. Your Honour, of course the Registrar will have to deal with the application and I note that with respect your Honour’s notation would be quite appropriate but the Registrar would obviously have to determine that matter and that wouldn’t disturb the discretion of the Registrar but it won’t be opposed.

HIS HONOUR: Thank you very much, Mr Howard.

45. I would add the following note to the aforesaid orders. Note, the Prosecutor raises no objection to the payment of the fine at the end of three months.