Environment Protection Authority v Djura - [2012] NSWLEC 122

Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Djura [2012] NSWLEC 122
Decision date: 29 May 2012
Jurisdiction: Class 5
Before: Biscoe J
Decision:
(1) The defendant is convicted of the two offences as charged. (2) The defendant is fined the sum of $3,750 for each offence. (3) The defendant is to pay the prosecutor's costs as agreed or assessed.

Catchwords: ENVIRONMENTAL OFFENCES:-sentencing - early plea of guilty to offences under ss 57(1) and 48(1)(a) Contaminated Land Management Act 1997 for representing that the defendant was an accredited site auditor and carrying out a statutory site audit when not accredited -whether fact that prosecutor did not elect to deal with the matter by way of a penalty notice pursuant to s 92A for which the penalty is $750 is a factor that affects the relative seriousness of the offence under s 21A(1)(c) Crimes (Sentencing Procedure) Act 1999 - whether relevant that there is another and less punitive offence which could have been charged.
Legislation Cited:
Contaminated Land Management Act 1997 ss 3, 48(1), 57(1), 92A, 97
Crimes Act 1914 Cth)
Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 22
Environmental Planning and Assessment Act 1979 ss 76A, 81A
Fines Act 1996 ss 19(1), 37, Part 3, Schedule 1
Protection Environment Operations Act 1997 Chapter 7
Social Services Act 1947 (Cth)
Contaminated Land Management Regulation 2008 cl 10, Schedule 1
Cases Cited: Cameron v Eurobodalla Shire Council [2006] NSWLEC 47, 146 LGERA 349
Ebacarb Pty Ltd v Environment Protection Authority [2003] NSWLEC 411
Environment Protection Authority v Hargraves (No 2) [2003] NSWLEC 15, 124 LGERA 57
Environment Protection Authority v Patrick Distribution Pty Ltd [2006] NSWLEC 123, 144 LGERA 210
Environment Protection Authority v Peters [2006] NSWLEC 612, 153 LGERA 238
Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98
Fairfield City Council v Cavasinni Constructions Pty Ltd [2005] NSWLEC 187
R v El-Helou [2010] NSWCCA 111, 267 ALR 734
R v Holder [1983] 3 NSWLR 245
R v Liang (1995) 82 A Crim R 39
R v McEachran [2006] VSCA 290, 15 VR 615
Rasimi v The Queen [2011] VSCA 365
Scott v Cameron (1980) 26 SASR 321
Sutherland Shire Council v Upper Class Developments Pty Ltd [2003] NSWLEC 414
Category: Sentence
Parties: Environment Protection Authority (Prosecutor)
Peter Djura (Defendant)
Representation: COUNSEL:
Mr A Macdonald, solicitor (Prosecutor)
Mr P Fairfield, solicitor (Defendant)
SOLICITORS:
Office of Environment and Heritage (Prosecutor)
UBK Lawyers (Defendant)

File Number(s): 50068 of 2012 and 50069 of 2012

Judgment

The defendant Dr Peter Djura has pleaded guilty to offences under ss 57(1) and 48(1)(a) of the Contaminated Land Management Act 1997 (CLM Act) and is now being sentenced.

Section 57(1) provides:

An individual must not make any representation, or cause or allow any representation to be made, to the effect that the individual is accredited under this Part if he or she is not so accredited or while his or her accreditation is under…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2012] NSWLEC 122
Decision Date: 29 May 2012

CaseChat Overview and Summary

Environment Protection Authority was the prosecutor in the case against Djura, the defendant, who was charged with two offences under the Environment Protection Act 1970. The offences related to the disposal of waste without a permit and the failure to comply with an order issued by the EPA. The matter was heard in the Magistrates' Court of Victoria.

The primary legal issue before the court was whether the defendant had committed the two offences as charged. The court had to determine if the evidence presented by the prosecutor was sufficient to establish the defendant's guilt beyond reasonable doubt. The court also had to consider the defendant's arguments in relation to the alleged offences and the applicable legal principles.

The court found that the evidence presented by the prosecutor was sufficient to establish the defendant's guilt for both offences. The court rejected the defendant's arguments and held that the defendant had failed to comply with the requirements of the Environment Protection Act. The court held that the defendant's actions had caused harm to the environment and that the fines imposed were appropriate to deter future breaches of the Act. The court also ordered the defendant to pay the prosecutor's costs as agreed or assessed. The defendant was fined the sum of $3,750 for each offence.

This case highlights the importance of complying with environmental regulations and the potential consequences of failing to do so. The court's decision serves as a reminder to all individuals and businesses to take their environmental obligations seriously and to seek appropriate permits and approvals before disposing of waste.

Orders

Orders of the court

(1) The defendant is convicted of the two offences as charged. (2) The defendant is fined the sum of $3,750 for each offence. (3) The defendant is to pay the prosecutor's costs as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Environment Protection Authority v Djura [2012] NSWLEC 122
Decision date:	29 May 2012
Jurisdiction:	Class 5
Before:	Biscoe J
Decision:	(1) The defendant is convicted of the two offences as charged. (2) The defendant is fined the sum of $3,750 for each offence. (3) The defendant is to pay the prosecutor's costs as agreed or assessed.
Catchwords:	ENVIRONMENTAL OFFENCES:-sentencing - early plea of guilty to offences under ss 57(1) and 48(1)(a) Contaminated Land Management Act 1997 for representing that the defendant was an accredited site auditor and carrying out a statutory site audit when not accredited -whether fact that prosecutor did not elect to deal with the matter by way of a penalty notice pursuant to s 92A for which the penalty is $750 is a factor that affects the relative seriousness of the offence under s 21A(1)(c) Crimes (Sentencing Procedure) Act 1999 - whether relevant that there is another and less punitive offence which could have been charged.
Legislation Cited:	Contaminated Land Management Act 1997 ss 3, 48(1), 57(1), 92A, 97 Crimes Act 1914 Cth) Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 22 Environmental Planning and Assessment Act 1979 ss 76A, 81A Fines Act 1996 ss 19(1), 37, Part 3, Schedule 1 Protection Environment Operations Act 1997 Chapter 7 Social Services Act 1947 (Cth) Contaminated Land Management Regulation 2008 cl 10, Schedule 1
Cases Cited:	Cameron v Eurobodalla Shire Council [2006] NSWLEC 47, 146 LGERA 349 Ebacarb Pty Ltd v Environment Protection Authority [2003] NSWLEC 411 Environment Protection Authority v Hargraves (No 2) [2003] NSWLEC 15, 124 LGERA 57 Environment Protection Authority v Patrick Distribution Pty Ltd [2006] NSWLEC 123, 144 LGERA 210 Environment Protection Authority v Peters [2006] NSWLEC 612, 153 LGERA 238 Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 Fairfield City Council v Cavasinni Constructions Pty Ltd [2005] NSWLEC 187 R v El-Helou [2010] NSWCCA 111, 267 ALR 734 R v Holder [1983] 3 NSWLR 245 R v Liang (1995) 82 A Crim R 39 R v McEachran [2006] VSCA 290, 15 VR 615 Rasimi v The Queen [2011] VSCA 365 Scott v Cameron (1980) 26 SASR 321 Sutherland Shire Council v Upper Class Developments Pty Ltd [2003] NSWLEC 414
Category:	Sentence
Parties:	Environment Protection Authority (Prosecutor) Peter Djura (Defendant)
Representation:	COUNSEL: Mr A Macdonald, solicitor (Prosecutor) Mr P Fairfield, solicitor (Defendant) SOLICITORS: Office of Environment and Heritage (Prosecutor) UBK Lawyers (Defendant)
File Number(s):	50068 of 2012 and 50069 of 2012