Environment Protection Authority v Floyd
[2004] NSWLEC 214
•05/21/2004
Land and Environment Court
of New South Wales
CITATION: Environment Protection Authority v Floyd [2004] NSWLEC 214 PARTIES: PROSECUTOR:
DEFENDANT:
Environment Protection Authority
FloydFILE NUMBER(S): 50053 of 2003 CORAM: Bignold J KEY ISSUES: Environmental Offences :- Director of company contravening Act-being occupier of land and permitting it to be used as a waste facility-whether sentence should have regard to existing significant civil liability imposed on Defendant-whether additional penalty offends rule against double jeopardy LEGISLATION CITED: Protection of the Environment Operations Act 1997, ss 144 and 169
Environmental Planning and Assessment Act 1979, ss 122-125, 127CASES CITED: Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277;
Blacktown City Council v Reid [2003] NSWLEC 120;
Blacktown City Council v Wilkie and Ors [2001]NSWLEC 162;
Gray v Motor Accident Commission (1998) 196 CLR 1;
Hawkesbury City Council v Mushroom Composters Pty Ltd (1997) 96 LGERA 12;
Pearce v The Queen (1998) 194 CLR 614;
Penrith City Council v 24/7 Waste Bins Pty Ltd [2002] NSWLEC 186;
R v Hoar (1981) 148 CLR 32;
R v Thompson (2000) 49 NSWLR 383;
Wilkie v Blacktown City Council (2002) 121 LGERA 444;
Witham v Holloway (1995) 183 CLR 525;
Workcover Authority of NSW v State Rail Authority of NSW (2002) NSWIRC 72DATES OF HEARING: 28/04/2004 DATE OF JUDGMENT: 05/21/2004 LEGAL REPRESENTATIVES: DEFENDANT:
PROSECUTOR:
Mr G Plath, Solicitor
Solicitor for Environment Protection Authority
Mr B Dennis, Solicitor
SOLICITORS
Dennis & Co
JUDGMENT:
IN THE LAND AND Matter No
: 50053 of 2003
ENVIRONMENT COURT Coram
: Bignold J
OF NEW SOUTH WALES
21 May 2004
ENVIRONMENT PROTECTION AUTHORITY
Prosecutor
v
CRAIG FLOYD (ALSO KNOWN AS MARK REID, CRAIG ADAM AND CRAIG ADAM FLOYD)
Defendant
JUDGMENT
A. INTRODUCTION
1. The Defendant has pleaded guilty to a charge of an offence against section 144(1) of the Protection of the Environment operations Act 1997 (the PEO Act) in that being a director of Graveyard Recycling Pty Ltd (ACN 094 059 417) which did contravene that provision between about 1 January 2001 and 13 July 2001, he is by virtue of the PEO Act s 169(1), taken to have contravened the same provision.
2. According to the particulars endorsed upon the Summons, the offence was committed by the Company as the occupier of land known as lot 2 in Deposited Plan 781151 situate at the corner of Grange Avenue and Richmond Road, Marsden Park by virtue of the Company permitting the land to be used as a waste facility where that land could not lawfully be used as a waste facility.
3. The Summons alleging the present charge against the Defendant was filed on 8 July 2003. No charge for an offence against the PEO Act, s 144(1) was laid against the Company which is now a defunct company. However, this fact does not preclude the laying of the charge against the Defendant or the conviction of the Defendant of such charge: vide the PEO Act, s 169(2).
4. The offence with which the Defendant is charged is founded upon the combined operation of the PEO Act, ss 144 and 169 which respectively provide as follows:
- 144 Permitting land to be used unlawfully as waste facility
(1) A person who is the owner or occupier of any land that cannot lawfully be used as a waste facility and who permits the land to be used as a waste facility is guilty of an offence.
Maximum penalty:
• in the case of a corporation—$250,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
• in the case of an individual—$120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
(2) In any proceedings for an offence under this section the defendant bears the onus of proving that the land concerned can lawfully be used as a waste facility.
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:
- (a) the corporation contravened the provision without the knowledge actual, imputed or constructive of the person, or
(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.
(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.
(4) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular intention, is evidence that the corporation had that intention.
5. The Dictionary to the PEO Act includes the following definitions of “waste” and “waste facility” which are relevant to s 144—
- waste (unless specially defined) includes:
(a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or
(b) any discarded, rejected, unwanted, surplus or abandoned substance, or
(c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, reprocessing, recovery or purification by a separate operation from that which produced the substance, or
(d) any substance prescribed by the regulations to be waste for the purposes of this Act.
A substance is not precluded from being waste for the purposes of this Act merely because it can be reprocessed, re-used or recycled.
waste facility means any premises used for the storage, treatment, reprocessing, sorting or disposal of waste (except as provided by the regulations).
B. THE RELEVANT FACTS
6. The Prosecutor tendered a Statement of Agreed Facts (Exhibit 1) from which is derived the following summary—
(a) At all material times the Defendant has been a director of the Company Graveyard Recycling Pty Ltd (which has become a defunct company) “the Company”.
(b) In about October 2000 the Defendant on behalf of the Company acquired a sublease of part of premises known as lot 2 DP 781151 situate at the corner of Grange Avenue and Richmond Road, Marsden Park owned by Mr Mario Constantine and in part used by him as a retail plant nursery and in part leased to Ms Misty Wilkie for the purpose of conducting a business of selling pebbles, pools and spas and sand and soil. The sub-lease to the Company was in respect of a part of the premises leased to Ms Wilkie.
(c) The Company thereafter and up to July 2001 received at the sub-leased premises approximately 18,000 cubic metres of waste (including demolition waste, wood, metal, plastic, soil, bricks, concrete and some asbestos). Very little of the wastes received at the sub-leased premises left the premises. The Defendant was actively engaged in the activities conducted by the Company at the sub-leased premises.
(d) The activities being conducted by the Company at the sub-leased premises came to the attention of the Blacktown City Council in December 2000. On 8 December 2000, Council Officers who were attached to the Regional Illegal Dumping Squad carried out an inspection of the premises, observing between 5-10 tonnes of waste materials deposited at the premises. Thereafter, Council Officers carried out further inspections of the premises on 4, 7 and 19 February 2001 by which time the amount of wastes deposited on the premises had grown substantially. On 19 February 2001, the Defendant was present during the Council inspection. He informed the Council officers that he was sorting the waste into landscape materials. When told that he would need to obtain the Council’s consent to operate a waste facility, the Defendant responded by saying that there already existed a Council approval for the use of the premises for a landscaping business. (In 1988, the Council had granted consent for the premises to be used as a landscaping supply business.)
(e) On 13 February 2001, officers of the Environment Protection Authority attended the premises and observed a stock-pile of wastes of approximately 9,000 cubic metres, comprising mainly construction and demolition wastes, wood, metal, plastic, soil, concrete and bricks. They spoke to the Defendant who informed them that the Company was sorting waste for recycling purposes with an estimated annual throughput of approximately 40,000 tonnes of waste.
They informed the Defendant that he “would probably need to apply for an environment protection licence and the Council’s consent”. This conversation was followed up by a letter from the Environment Protection Authority (EPA) advising the Defendant and the Company that it was an offence under the PEO Act “to carry on any scheduled activity without the appropriate environment protection licence”. After reciting the definition of “waste facility” contained in the PEO Act, the letter proffered the following advice:
- It is the opinion of the EPA, therefore, that the activity currently being carried out requires an environment protection licence. It is also understood that the activities on site require development consent from Blacktown City Council and that at this point in time, consent has not been granted. Under the Environmental Planning and Assessment Act 1979, any development which requires both the consent of Council and a licence from the EPA, falls into the Integrated Development Assessment (IDA) classification and must be assessed accordingly, including public exhibition of the application and a coordinated assessment between Council and the EPA. This process must be completed and a valid development consent issued by Council before the EPA is able to issue an environment protection licence.
The continued operation of this facility without the proper approval and licence is a serious matter and the EPA requires that you undertake the preparation and submission of the appropriate applications as a matter of urgency. Failure to do so may result in the EPA pursuing further action under the POEO Act. Enclosed for your information is an application form and guide to licensing.
(f) By letter dated 14 March 2001, the EPA advised the Defendant and the Company that it was aware that no development application had been lodged with the Council and that their operation of the waste facility did not comply with the Council’s local environmental plan and that in these circumstances “it was not to accept or approve an application for a licence under the Protection of the Environment Operations Act 1997, and therefore the continued operation of this facility is in direct contravention of the Act”. The letter enclosed a draft clean-up notice pursuant to the PEO Act, s 91 and called for responsive comments by 16 March 2001.
(g) On that day, Solicitors acting for the Company advised the EPA that there were currently before this Court civil enforcement proceedings instituted by the Blacktown City Council against the Company and that the Council’s application for interim injunction had been refused by the Court on 6 March 2001 and that it was not expected that the hearing of the Council’s claim to permanent relief would occur for several weeks and that in these circumstances, it was submitted that it was “entirely inappropriate and premature to issue the threatened notice until after the hearing”.
(h) On 19 March 2001 the EPA issued a Clean-up Notice pursuant to the PEO Act, s 91. The Notice directed the Company “to take the following clean-up action:
- 1. Immediately cease accepting any type of waste at the premises, until such time that a valid Environment Protection Licence has been issued ”.
- By letter dated 6 April 2001, the Solicitors acting for the Company advised the EPA that it was never the intention of the Company to process more than the prescribed limit of 30,000 tonnes of waste per annum and that the Company intended to maintain the activity at a production level below the prescribed limit so that the premises would be operated as “ non-scheduled ” premises. Accordingly, they requested that the Clean-up Notice be withdrawn.
(i) On 23 March 2001, officers of the EPA and the Council again attended the premises and spoke to the Defendant who was present. They observed that the stockpiled waste deposited at the premises had grown substantially being now some 7-9 metres high against the western boundary of the premises with the steep face of the stockpile some 8-10 metres higher than the concrete block retaining wall erected on the boundary of the premises. They observed a gap in the concrete wall on the western boundary caused by 2 concrete blocks being dislodged from the wall. Waste had fallen through this gap into an unnamed creek adjacent to the wall.
(j) During that inspection, the EPA and Council Officers observed a screener operating at the premises to segregate waste for the purpose of producing products for resale such as sand or fill material. Small pieces of asbestos sheeting (5cm x 5cm) were observed in the screenings stockpile. One of the EPA officers collected six or seven of such pieces and showed them to the Defendant who declared that they were fibreboard and that asbestos was not accepted at the premises. On receipts issued by the Company to waste transporters and suppliers, the words “No asbestos” are endorsed and the Company did not deliberately accept asbestos at the premises.
(k) On 4 April 2001, Council Officers again attended the premises. They observed the screener was no longer present and the stockpiled waste had grown substantially covering some five or six times the surface area that it had occupied at the time of the Council Officers’ inspection on 19 February 2001. They observed sediment and waste had escaped from the premises via the gap in the concrete block wall on the western boundary and had entered the adjacent unnamed creek. The Officers took samples from the creek upstream and downstream of the location of the gap in the concrete block wall.
(l) On 7 May 2001, an EPA officer again attended the premises accompanied by Dr Pells, a consulting engineer, who had been commissioned to assess the stability of the stockpile of waste. On the same day, a further draft Clean-Up Notice pursuant to the POE Act, s 91 was sent to the Company.
(m) On 9 May 2001 a Clean-Up Notice pursuant to the POE Act, s 91 was issued by the EPA to the Company. After reciting the facts that the EPA regarded as a “pollution incident” that had occurred or was occurring at the premises, the Notice directed the Company to take the specified clean up action which included various actions in relation to “asbestos waste” and until the asbestos waste was properly removed from the premises, the cessation of the receipt at the premises of any waste materials, and the carrying out of repairs to the perimeter walls and the preparation of a plan of action by a suitably qualified engineer to ensure that there was no risk of waste materials escaping from the premises and to determine the maximum height and angles of repose of the stock piles of waste to ensure their safety.
(n) The various clean up actions were required to be undertaken by various specified dates ranging from the date of service of the Notice (9 May 2001) to 29 June 2001. The Clean-Up Notice was not complied with by the Company in any respect.
(o) On subsequent inspections of the premises undertaken by either Council or EPA Officers on 10th May, 16th May and 2 July 2001, there were observations of continuing activity at the premises involving the further receipt and storage of wastes.
(p) On 13 July 2001, a pre-planned search of the premises was undertaken by a co-ordinated group comprising EPA, Council and Sydney Water Officers and local Police Officers. At the time of the search there were two Company employees present but not the Defendant. He arrived at the premises after the search had been undertaken and informed the employees that he was packing up the site and moving the operation to another site at St Marys.
Over the next few days, the Defendant and employees of the Company packed up and removed equipment from the premises and quit the premises abandoning the wastes that had been deposited there.
(q) During the period of the offence, wastes were received at the premises at a rate and volume far greater than could have been screened and separated. Approximately 20 truck loads were received every business day from waste transporters who had been informed by the Defendant that they could lawfully dispose of wastes at the premises. After the screener was removed from the premises in May 2001, sorting of waste was carried out by hand (mainly separating out metals and concrete) with the remaining wastes being added to the stockpiles. A crusher was never deployed at the premises to produce aggregate etc.
(r) The activities conducted by the Company at the premises were not lawful for the following reasons—
(i) the activities comprised a “ scheduled activity ” under the PEO Act which required the grant of an environmental protection licence under that Act and no such licence was ever granted in respect of the premises;
(ii) the development consent of the Council was required under the Environmental Planning and Assessment Act 1979 (the EP&A Act) for the development undertaken by the Company and no such consent was granted;
(iii) neither Mr Mario Constantine, the owner of the premises, nor Ms Wilkie, the lessee of the premises, had permitted the use of the premises being made by the Company; and
(iv) the EPA’s Clean-Up Notice had required the cessation of the use of the premises for the receipt of wastes.
(s) Environmental harm (including potential harm) cause by the commission of the offence included the following:
(i) the opinion of Dr Pell that there was a high risk of the failure of the stock pile and the boundary concrete block wall during an intense rain event;
(ii) the probability that waste would enter and pollute the unnamed creek adjacent to the western boundary wall in the event of the failure of the wall and the stock pile with the risk of localised flooding in the event of the creek being filled and dammed with the escaping waste materials;
(iii) even if there were no such failure of the boundary wall or stockpile (none has actually occurred), there is a likelihood that loose waste materials will continue to slough off the waste stock pile into the creek, thereby polluting it and threatening aquatic vegetation and organisms; and
(iv) the risk to human health and the environment posed by the existence at the premises of small pieces of asbestos (observed in the screenings stockpile) and on the ramp to the stockpile over which heavy vehicles pass with the risk of breaking the pieces and releasing into atmosphere asbestos fibres.
7. The Statement of Agreed Facts also includes references to two other matters concerning separate civil and criminal proceedings in this Court brought against the Company and the Defendant, at times prior to the commencement of the present proceedings against the Defendant.
8. The civil proceedings relate to the same use made of the premises as are the subject matter of the present proceedings. The criminal proceedings relate to the Defendant’s unlawful use of the St Marys premises for the purpose of storing and sorting wastes in the period between 12 September 2001 and 22 February 2002. (It was the St Mary’s premises to which the Defendant relocated when he and the Company quit the Marsden Park premises soon after 13 July 2001).
9. The course and outcome of the civil proceedings are recorded in pars 70 to 74 of the Statement of Agreed Facts as follows:
- 70. In about February 2001 Blacktown City Council took proceedings in the Land and Environment Court against Misty Wilkie, the defendant and Graveyard Recycling Pty Ltd alleging the illegal use of the premises as a waste facility These were Land and Environment Court proceedings number 40255 of 2001 (Council’s proceedings). EPA officers assisted Council in this action by providing eye witness and expert testimony. Initially Council sought and interim injunction to prevent the future acceptance at the premises of waste but it was initially unsuccessful. In July 201 Council did obtain an interim injunction. Before the proceedings were ultimately heard Mario Constantine was joined as a respondent. In December 2001 Her Honour Chief Justice Pearlman found against the defendant and Misty Wilkie and orders were made prohibiting the use of the premises as a tip or recycling yard and requiring the waste at the premises to be removed. Misty Wilkie later successfully appealed the orders made against her.
71. After Pearlman CJ made the orders against the defendant in December 2001, the defendant failed to comply with the orders. Eventually Council took contempt proceedings against the defendant for failure to comply with the court’s orders.
72. Following the Council taking contempt proceedings against the defendant for failing to clean-up the premises as ordered by the Land and Environment Court, the Court jailed the defendant on 16 December 2002 for a period of 2 months for contempt of court. The court had previously given the defendant numerous opportunities to clean up the premises and remove the waste. In the later half of 2002, Floyd returned to the premises and made a minimal effort to comply with the court orders. He moved the waste that covered the small pile of screened soil and a couple of truck loads of waste were removed from the premises.
73. On 1 May 2003 council initiated further contempt proceedings against the defendant as after his release from jail he had continued to fail to comply with the original court orders. Pearlman CJ found that the original court orders continued to apply and that the defendant was again in contempt of court for failing to comply with the orders. Her Honour sentenced the defendant to imprisonment for a further period of 6 months but suspended that sentence on the basis that the defendant Floyd remove 50 tonnes of waste per month from the premises see Blacktown City Council v Reid [2003] NSWLEC 120.
74. For about the last year the defendant has complied with the orders of Pearlman CJ and is removing waste at the rate of 50 tonnes per month under the supervision of Blacktown City Council.
10. There are some additional details of the civil proceedings which should be noted from the terms of the several judgments delivered in those proceedings. Firstly, although the Council’s claim to interlocutory injunction had been refused by Lloyd J on 6 March 2001 Pearlman CJ in adjourning the final hearing granted an interlocutory injunction on 10 July 2001 restraining Ms Wilkie, the Company and the Defendant from using the premises as “a tip or the like” and from bringing “soil, sand and other waste materials onto the site”: Blacktown City Council v Wilkie and Ors [2001] NSWLEC 162.
11. I interpose that it may be inferred that the decision of the Company and the Defendant to quit the Marsden Park premises and to relocate his business at the St Marys premises was doubtless influenced, if not dictated, by the existence of that interlocutory injunction.
12. Next, it is to be noted that when the final hearing resumed on 30 July 2001, Pearlman CJ granted leave to the legal representatives of the Company and the Defendant to withdraw from the proceedings as they had been unable to locate their clients, who did not appear (and did not thereafter participate in the proceedings).
13. Next, it is to be noted that Pearlman CJ found that the use being made of the premises by the Company and the Defendant was most aptly characterised as a “tip” or “recycling yard” being innominate uses under the zoning table to the relevant local environmental plan and accordingly were uses that were “permissible with development consent”. Her Honour held that that use, so characterised, did not fall within the ambit of whatever development had been authorised by the 1988 development consent granted by the Council and held that the current use was being carried out without the requisite development consent.
14. At par 36 of her judgment [2001] NSWLEC 269, Pearlman CJ found that “the bulk of the material deposited upon the site was actually so deposited by, or at the direction of, Mr Reid and/or Graveyard Recycling in the operation of a business upon the site which Mr Reid called a recycling business”.
15. At par 72 of her judgment, Pearlman CJ held that the Company and the Defendant “together have the primary and direct responsibility for the illegal use of the site, and they together bear the primary and direct responsibility for the potential consequences of that illegal use”.
16. The permanent relief granted by Pearlman CJ included declarations and prohibitory and mandatory injunctions made separately against Ms Wilkie (the first Respondent), the Defendant (the second Respondent) and the Company (the third Respondent). The mandatory orders made against the three named respondents were in the following terms:
- (5) I order the second respondent and the third respondent to remove from the site the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste presently situated on the site and have it transferred to a licensed waste management facility. The removal of such waste shall commence within seven days of the date of this order and shall be completed within five weeks of the date of this order.
- This order shall remain on foot and with full force and effect whether or not order 6 has come into operation.
This order is contingent upon the second and third respondents failing fully to comply with order 5 of these orders within the time therein specified. Accordingly, this order is postponed until the expiration of that time, and, unless there has been full compliance by the second and third respondents with order 5 within that time, this order shall operate and be of full force and effect after that time.
17. In the course of her reasons for judgment, Pearlman CJ considered the interplay between the EP&A Act and the PEO Act in respect of the illegal use made by the Defendant and the Company of the premises and in respect of the legitimacy of any mandatory relief to remedy the breach of the EP&A Act. The relevant passages which are at pars 67 to 70 inclusive, bear repetition in the present context:
- 67. The second matter to consider is the submission made by Ms Byrne that no order requiring the removal of the waste material should be made because, firstly, the jurisdiction to regulate that removal rests solely in the EPA and not the council, and, secondly, that, since the council is not in a position to enforce such an order, that would lead to uncertainty in the order itself. As I understood this submission, it proceeded on the following basis. The deposit of the waste material on the site constitutes a scheduled activity under par (1)(d) of the definition of “waste facilities” in sch 1 of the Protection of the Environment Operations Act 1997 (“the POEO Act”). Accordingly, a licence was required to deposit the waste material and, pursuant to s 6(1) of the POEO Act, the EPA is the appropriate regulatory authority. That regime was recognised by the EPA in the clean up notice dated 9 May 2001 which it served upon the second and third respondents. Ms Byrne submitted that, therefore, it is for the EPA to regulate the removal of the waste material, and the council lacks any power to do so. Furthermore, the removal of the waste material on the site requires its transfer, in respect of which, once again, the EPA is the regulatory authority. Therefore, an order of the Court requiring the removal of the waste material would be inherently uncertain, since the EPA’s involvement is required, and an order casting an obligation on a party to proceedings which is uncertain in its terms is to be avoided, having regard to the serious consequences of any failure to comply with such an order.
68. I reject this submission. In my opinion, it is misconceived. These proceedings are brought by the council under s 123 of the EP&A Act, which confers upon any person an entitlement to bring proceedings for an order to remedy or restrain a breach of that Act. The breach which I have found to be established is a breach of s 76A(1) of the EP&A Act (that is, carrying out development without having obtained the requisite development consent). The POEO Act deals with another regime altogether, in that it provides for the control and regulation of certain scheduled activities. It does not operate to control or regulate the requirements under the EP&A Act for the proper management and development of land. The two regimes are complementary. So much is recognised by s 50(2) of the POEO Act which provides that a licence in respect of development that cannot be carried out without development consent must not be granted unless development consent has been obtained.
69. Under s 124 of the EP&A Act, the Court has a wide discretion, where it is satisfied that a breach of the EP&A Act has been committed, to make such order as it thinks fit to remedy or restrain the breach. The discretion enables the Court to frame orders in the light of all the factors falling within the purview of the dispute (F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 at 313). Accordingly, the Court is empowered in its discretion to make an order requiring the remedying of the breach by the removal of the waste material.
70. Nor is there anything inherently uncertain in such an order. The order which the council seeks requires the removal of the waste material to a licensed waste facility. Compliance with such an order will not constitute a breach of s 143 of the POEO Act, nor does it require a licence under the POEO Act. Such an order is clear in its terms, and would not leave the parties obliged by it in any doubt as to what was required to comply with it.
18. It is now necessary to refer to Pearlman CJ’s judgment finding the Defendant guilty of contempt by virtue of his continuing disobedience of the mandatory order requiring him to remove the stored wastes from the Marsden Park premises and punishing him for that contempt (Blacktown City Council v Reid [2003] NSWLEC 120).
19. The judgment recites an earlier finding by the Court that the present Defendant was guilty of contempt of the order requiring him and the Company to remove the stored wastes from the Marsden Park premises and the Court’s sentencing him to two months’ imprisonment and the fact that that sentence was successively suspended for a total period of nearly six months before the sentence took effect and the Defendant served a period of imprisonment for two months from 17 December 2002.
20. A few months after serving that sentence of imprisonment, the Defendant was charged by the Council with ongoing contempt. Having found the Defendant guilty, Pearlman CJ said the following at pars 27 and 28:
- 27 In accordance with the foregoing, I have concluded that I should commit the second respondent to prison for a period of six months, but that I should suspend that sentence for a period of six months, upon the terms sought by the council except as to the amount of waste to be removed each month, which should be fixed at 50 tonnes instead of 500 tonnes.
28 My formal orders are as follows:
- (1) I find the second respondent guilty of contempt of this Court for continuing to disobey order 5 made by this Court in these proceedings on 6 December 2001 in that the second respondent has failed as at 7 February 2003 to complete the removal from the land known as part lot 2 in DP 781151 on the corner of Grange Avenue and Richmond Road, Marsden Park (“the site”) the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site (“the waste”) and the transfer of the waste to a licensed waste management facility in accordance with order 5.
(2) I punish the second respondent, Mark Reid (also known as Craig Floyd) by committal to prison for a period of six months.
(3) I suspend order 2 pursuant to Part 55 rule 13(3) of the Supreme Court Rules 1970 for a period of six months on the following terms:
- (a) The second respondent remove from the site a minimum of 50 tonnes of the waste per calendar month;
(b) The second respondent give at least four business hours’ (ie four hours between 9 am and 5 pm Monday to Friday excluding public holidays) prior notice to an officer of the applicant nominated by the applicant to the second respondent care of Dennis & Co, solicitors (“the nominated officer”) on a telephone number nominated by the applicant to the second respondent care of Dennis & Co, solicitors, of the removal of any of the waste from the site so that the nominated officer can attend the site and personally sight the waste being removed.
(c) The second respondent and the nominated officer shall each write on the same document at the site, at the time of removal of each load of waste from the site, the date and time of each load of waste taken from the site, their respective estimates of the amount of waste by tonne of waste removed in each load, and the basis upon which such estimate has been made. The nominated officer shall retain the original document and bring it to the site each time the second respondent has given prior notice in accordance with paragraph (b) of these terms and shall provide a photocopy of the document to the second respondent care of Dennis & Co, solicitors, within 48 hours of each specified load of waste removed from the site.
(d) Only waste recorded as removed from the site on the document referred to in paragraph (c) of these terms shall be included in the calculation of 50 tonnes referred to in paragraph (a) of these terms.
(5) I grant liberty to either party to apply on three days’ notice.
21. I interpose that given the fact that the suspension of the sentence of six months of the Defendant is conditional upon him removing each month a minimum of 50 tonnes of the wastes stored at the Marsden Park premises, it will take something like 30 years for the 18,000 cubic metres quantity of waste to be removed at that monthly rate. Moreover, it is to be recalled that the mandatory order made by Pearlman CJ requires that the waste be removed to “a licensed waste management facility”. In this respect, the Solicitor for the Defendant has informed the Court that substantial fees are payable when disposing of the wastes at licensed waste management facilities.
22. In the criminal proceedings brought against the Defendant and another Company controlled by him (Penrith City Council v 24/7 Waste Bins Pty Ltd [2002] NSWLEC 186), the Defendant and his Company each pleaded guilty to an offence against the EP&A Act, s 125(1) in that they had carried out the activity of storing and sorting waste materials at premises situate at St Marys between 12 September 2001 and 22 February 2002 without the necessary development consent having been obtained under the EP&A Act.
23. Lloyd J convicted both Defendants and imposed a fine of $95,000 on the present Defendant and a fine of $5,000 on the Company.
24. In addition, orders were made, by consent, pursuant to the EP&A Act, s 124 requiring the present Defendant to remove much of the stored wastes from the St Marys premises and to dispose of them at premises lawfully able to accept the materials.
25. It was submitted by the Prosecutor that the civil and criminal proceedings against the Defendant that have been recited were relevant considerations to the sentence to be imposed in the present case—the outcomes in the civil proceedings explaining why the Prosecutor was not seeking any restoration order pursuant to the PEO Act, s 245 and the outcome in the criminal proceedings being relevant in rebuttal of any plea for leniency of sentence (see Workcover Authority of NSW v State Rail Authority of NSW (2002) NSWIRC 72).
C. COMPETING SUBMISSIONS ON SENTENCE
26. The Prosecutor submitted that the offence involved a deliberate, serious and significant contravention of the PEO Act, s 144 by the Company and by virtue of the PEO Act, s 169, by the Defendant. The objective facts pertaining to the admitted offence included—
(a) a very large quantity of waste had been deposited at the premises (18,000 cubic metres);
(b) the Company and the Defendant had continued with their unlawful activities notwithstanding the early intervention by Council and EPA investigations and in deliberate defiance of the asserted statutory authority of the Council and the EPA;
(c) environmental harm had been caused by the activity in that an unsightly mountain of waste had been stockpiled on the land and remained on the land and some of the stockpiled material had escaped into the adjacent unnamed creek, thereby polluting it; and
(d) there had been a risk of greater environmental harm to the unnamed creek by dint of the potential failure of the retaining wall and/or the stockpile of waste.
27. The Prosecutor submitted that the fact that the Defendant had subsequent to the admitted offence engaged in similar conduct at the St Marys premises leading to a charge of an offence against the EP&A Act in respect of which charge he had been convicted and fined $95,000 established a pattern of unlawful behaviour on the part of the Defendant which rebutted any suggestion for leniency of sentence that might be made in the present case or any finding that the admitted offence was an uncharacteristic aberration of conduct on the part of the Defendant.
28. Although the Defendant had ultimately pleaded guilty to the charge and was, on that account entitled to some reduction in penalty, the plea was not entered at the earliest opportunity and was more a recognition of the strength of the Prosecutor’s case against him than any expression of contrition.
29. The Prosecutor submitted that there was no evidence of contrition on the part of the Defendant and he had not volunteered any clean-up of the premises after he vacated them in July 2001 and relocated his business at the St Marys premises, and was only engaged in the removal of the waste because constrained so to act by the orders made against him in the civil proceedings.
30. The Prosecutor submitted that the objective and subjective elements and circumstances of the admitted offence called for a substantial penalty effecting both general and specific deterrence.
31. In respect of the quantum of penalty, the Prosecutor acknowledged the relevance of the capacity of the Defendant to pay a fine (vide the Fines Act 1996, s 6) but noted that no evidence of the financial resources available to the Defendant had been adduced, save for that had been said by the Defendant’s Solicitor in the course of his address on sentence.
32. In addition to the imposition of a fine, the Prosecutor sought a publication order against the Defendant pursuant to the PEO Act, s 250. Such orders have frequently been made by this Court in cases of convictions of environmental offences.
33. The Defendant’s Solicitor submitted that the Court would not impose a substantial fine on the Defendant for the following reasons:
(i) the Defendant had already received substantial punishment in the civil proceedings (the sentence of two months imprisonment that was served and the suspended sentence of six months that hangs over his head imposed upon the Defendant for disobedience of the Court’s mandatory order requiring him to remove all of the stored wastes from the Marsden Park premises);
(ii) in addition to those punishments for contempt of the Court’s orders, the Defendant was subject to the onerous obligation to comply with the mandatory order made against him in the civil proceedings and was complying with the Court’s orders suspending the sentence of six months imprisonment by the removal of the waste from the Marsden Park premises at a minimum rate of 50 tonnes per month which would be a continuing obligation for the next 30 years and one that involved significant financial expense in the payment of fees for disposing of the wastes at a licensed waste facility;
(iii) the Defendant had limited financial means—he was earning $800 per week and working at the weekends to earn sufficient money to enable him to comply with his ongoing monthly obligations under the orders made against him in the civil proceedings;
(iv) the Defendant was married with a wife and three dependent children to support; and
(v) the Defendant had agreed to pay the Prosecutor’s legal costs of the proceedings in the agreed sum of $16,000.
34. Although the facts of the Defendant’s lack of financial means to pay a substantial fine if imposed in the present case were not the subject of evidence, I note that no objection was raised by the Prosecutor in response to the submissions made by the Defendant’s Solicitor. (The Defendant was in Court throughout the hearing.) I also note that similar facts were adduced in the evidence heard by Pearlman CJ in the last of the contempt proceedings in the civil proceedings and were accepted by her Honour (without any challenge from the Blacktown City Council in that case)—see par 23 of her judgment [2003] NSWLEC 120.
35. Moreover, the Fines Act, s 6 requires the Court “in the exercise of a discretion to fix the amount of any fine” to consider:
(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration.
36. In respect of the requirements of the Fines Act, s 6, I am satisfied that the Defendant does not have the present means to satisfy a substantial fine if imposed in respect of the present admitted offence.
37. In addition to the Defendant’s liability to pay the Prosecutor’s costs in these proceedings (agreed at $16,000), the Defendant has existing financial liabilities to pay the costs of the civil proceedings determined by Pearlman CJ, the costs of the prosecutor in the criminal proceedings brought against him in respect of his unlawful activities conducted at the St Marys premises, the fine of $95,000 imposed by Lloyd J in respect of his conviction of the Defendant in these proceedings in addition to the substantial and ongoing financial costs and expenses of complying with the mandatory order made against him in the civil proceedings and the remedial order made against him in the criminal proceedings determined by Lloyd J which costs and expenses are likely to far exceed the combined legal costs orders and fine imposed against the Defendant in the earlier civil and criminal proceedings. (In the judgment of the Court of Appeal in respect of Ms Wilkie’s appeal against Pearlman CJ’s judgment against her, Davies AJA noted that the cost of removing the waste in accordance with the rectification order was “likely to be very expensive” and that the only figure that had been mentioned in the evidence was $2 million see Wilkie v Blacktown City Council (2002) 121 LGERA 444 at 451.
38. In my opinion, the comparison of these existing unfulfilled very substantial financial obligations with the Defendant’s total lack of any available or prospective means to satisfy these obligations, necessarily severely constrains the quantum of fine that can realistically be imposed in the present case. (The Prosecutor did not suggest any punishment other than a fine and there are no other realistic sentencing options in this case.)
39. But for the existence of this constraining circumstance and the question of the relationship between the present proceedings and the civil proceedings under which the Defendant has incurred significant personal and financial obligations (the implications of which question I shall presently elaborate), I would have readily accepted the thrust of the Prosecutor’s submissions on what would be the appropriate sentence in the present case. In particular, I would have found that the appropriate fine was one that was commensurate with my evaluation of the objective of subjective seriousness of the admitted offence also assessed in the light of the fact that almost immediately after committing the present offence, the Defendant re-offended in respect of the relocation of his business to the St Marys premises at which he also operated unlawfully a waste storage facility (in terms of environmental planning law). The relevance of this subsequent offence and the Defendant’s conviction of it is compendiously stated in the Judicial Commission’s “Sentencing Manual” (2001) in the following passage at 298:
- Alternatively, the offender may commit a further offence and be convicted for that offence between the time of commission of and time of sentence for the instant offence, a situation with which the following principle deals.
It is well settled that the conduct of a defendant subsequent to the time of being found guilty may be taken into consideration, either by way of aggravating or mitigating the otherwise appropriate punishment. In general, this is done for the offender’s benefit, in order to extenuate the offence; but it is also done, if required, to aggravate it. In the latter situation the court will always take care not to inflict a greater punishment than the principal offence itself will warrant: Boney (Glen) (unreported, NSW CCA, 22 July 1991), pp 3-4 per Grove J, citing The King v Withers (1789) 3 TR 428 per Kenyon LCJ.
40. However, as I have already held, the constraining effect of the Fines Act, s 6 requires a mitigated outcome in terms of quantum of fine to be realistically imposed in the present case. Accordingly, instead of imposing a fine in the order of 50 to 60 percent of the maximum penalty (ie in the order of $60,000 - $70,000) which would otherwise be justified, a considerably reduced fine is required (ie in the order of $20,000).
41. This leads me to consider whether that reduced level of fine should be further reduced based upon considerations flowing from the relationship between the present proceedings and the concluded civil proceedings under which the Defendant has incurred a very onerous obligation that is likely to be fulfilled only by many years of continuous effort and expense on the Defendant’s part under pain of failure of that obligation activating the presently suspended sentence of six months imprisonment.
42. The question though raised by me in the course of the Prosecutor’s address, was not fully explored at the hearing, but despite this, I think that the question is important and requires some exploration and discussion in the present case.
43. As I have earlier noted, the parties in the Statement of Agreed Facts (Exhibit 1) revealed the history and outcomes of the civil proceedings which involved the Defendant and the Company and their use of the Marsden Park premises as a waste storage facility in the first half of 2001, being the same matters that are the subject of the present proceedings where the present charge was laid after the civil proceedings had been concluded in this Court, including the two decisions of Pearlman CJ finding the Defendant guilty of contempt of Court by virtue of his disobedience of the mandatory order requiring the removal of the wastes from the Marsden Park premises and punishing him on two separate occasions with sentences of imprisonment (the latter sentence being for six months imprisonment which was, and remains, suspended on conditions requiring the Defendant to remove a minimum monthly quantity of waste).
44. There are, however important and obvious differences between the two sets of proceedings. Firstly, the earlier proceedings were civil (although the related contempt proceedings were at least quasi criminal if not criminal—see Witham v Holloway (1995) 183 CLR 525 which was regarded by Mason P in Hawkesbury City Council v Mushroom Composters Pty Ltd (1997) 96 LGERA 12 at 20 as having “largely removed the distinction between civil and criminal contempt”) whereas the present proceedings are criminal. Secondly, the earlier civil proceedings involved a breach of the EP&A Act and the present proceedings involve a contravention of the PEO Act, s 144. However, the offence against s 144 at least in part, relies upon a breach of the EP&A Act, as founding a principal attribute or constituent of the “unlawfulness” of the use of the Marsden Park premises as a waste facility. (Although par 68 of the Statement of Agreed Facts (that I have earlier summarised in par 6 subpar (r)) states a number of reasons for the asserted fact that the Company’s use of the Marsden Park premises was relevantly “unlawful”, the totality of the evidence, properly analysed, (see my later discussion) strongly suggests that the principal reason for the “unlawful” status of the use was the absence of the requisite development consent under the EP&A Act).
45. Thirdly, the civil proceedings which were brought by the Blacktown Council did not involve the EPA as a party (although officers of the EPA gave evidence), whereas the present proceedings have been brought by the EPA.
46. In a case (and the present case may be such a case) where the only basis for the use of land as a waste facility relevantly being “unlawful” is unlawfulness in terms of the EP&A Act (either because such a use of land is prohibited development (see s 76B) or is development that may be carried out only with development consent (see s 76A) and no such consent has been granted) it is apparent that the offence created by the PEO Act, s 144 will be committed on the same facts as would constitute the offence that is created by the EP&A Act, s 125. (It is clear that on the facts of the present case, the Defendant could have been prosecuted for an offence against the EP&A Act, s 125 instead of being proceeded against in the civil proceedings.)
47. Moreover, both the EP&A Act and the PEO Act contain comprehensive provisions for the civil enforcement of such a contravention or breach of either Act: see respectively the EP&A Act, s 124 and the PEO Act, s 252.
48. Significantly, the EP&A Act, contains express provision concerning the relationship between (i) civil enforcement of a breach of the Act; and (ii) the summary criminal enforcement of such a breach. This is found in s 127(7) and (8) which provide as follows:
- (7) A person shall not be convicted of an offence against this Act or the regulations where the matter constituting the offence is, at the date upon which the conviction would, but for this subsection, be made:
- (a) the subject of proceedings under section 123, which proceedings have not been concluded, or
(b) the subject of an order made under section 124.
49. This express provision effects a significant legislative departure from the general law where a single act may create both civil and criminal liability and where both liabilities may be enforced against the wrongdoer, by evincing a legislative policy that gives preference and primacy to civil enforcement to achieve the restraint or remedy of a breach of the Act over criminal sanctions for that breach. Obviously where a breach of the Act has been committed and is not susceptible to civil remedy, criminal sanction may be the only option for enforcement.
50. Interestingly, although the PEO Act adopts substantially the same pattern for civil and criminal enforcement of breaches of the Act, it contains no counterpart to the EP&A Act, ss 127(7) and (8). However, the PEO Act includes the following provision, the operation of which has not been adverted to or explored in the present proceedings:
- 322. Effect of this Act on other rights, remedies and proceedings
(1) This Act does not limit or affect any right, remedy or proceeding under any other Act or law.
(2) No proceedings taken under this Act interfere with or lessen any right or remedy under any other Act or law, but no person is, by virtue of this subsection, liable to be punished twice for the same offence.
(3) A reference in this section to a right includes, for example, a right to restrict or prevent, or obtain damages in respect of, pollution.
51. Subsection (2) incorporates an aspect of the rule against double jeopardy.
52. The effect of these provisions of the EP&A Act is that the outcome of the civil proceedings against the Defendant that were determined by Pearlman CJ would have precluded conviction of the Defendant of an offence against the EP&A Act in respect of the same subject matter, namely a relevant breach of that Act (cf ss 122 and 125).
53. However, no such or counterpart preclusion applies to a conviction of an offence against the PEO Act, s 144 even if that offence relies exclusively upon the EP&A Act for establishing the element of “unlawfulness” of the use of land as a waste facility, and even if the single act constitutes both an offence against that section and an offence against the EP&A Act, s 125. (There is no reason why the same act may not be prohibited by two separate statutes and involve an offence under each of them: see Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277 at 282.)
54. However, although it may be accepted that the outcome of the civil proceedings against the Defendant does not stand in the way of conviction for the offence charged in the present case (as it would have done if the charge had been, as it could have been, of an offence against the EP&A Act, s 125), this does not mean that the outcome of the civil proceedings, especially insofar as they involve the imposition of civil and criminal sanctions on the Defendant (the latter sanctions being entirely referable to his disobedience of the civil mandatory orders) are not relevant to the question of sentence to be imposed for the admitted offence.
55. In my opinion, to sentence the Defendant in the present case without any regard being given to the outcomes of the civil proceedings in terms of the liabilities imposed upon the Defendant thereunder (including the two sentences of imprisonment as punishments for proven contempts of Court by virtue of disobedience of the mandatory order requiring the Defendant to remove the wastes from the Marsden Park premises) would involve a real risk of “double punishment” for the same act.
56. The concept of “double punishment” is expounded in the several judgments that were delivered in the decision of the High Court of Australia in Pearce v The Queen (1998) 194 CLR 614. The judgments refer to the earlier decision of the High Court in R v Hoar (1981) 148 CLR 32 where the joint judgment stated at 38 that “there is a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act”.
57. The joint judgment in Pearce contains the following statement of principle at 623:
- To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
58. To similar effect, is the following statement at 629 in the judgment of Gummow J again citing R v Hoar:
- However, the principles involved in the notion of double jeopardy also apply at the stage of sentencing. They find expression in the rule of practice, if not a rule of law , against duplication of penalty for what is substantially the same act.
59. I readily appreciate that Pearce involved an indictment preferring separate counts of separate criminal offences (of inflicting grievous bodily harm) in respect of a single incident whereas the present case does not involve separate criminal charges. Why then, do I conclude that the principle of double punishment has application in the present case?
60. In Gray v Motor Accident Commission (1998) 196 CLR 1, the joint judgment of the High Court held at 14 that as a matter of principle, exemplary damages may not be awarded in circumstances where the tortfeasor had already been sentenced to a substantial term of imprisonment for actions which also gave rise to the appellant’s claim in tort. The following two reasons supporting that principle were given:
- First, the purposes for the awarding of exemplary damages have been wholly met if substantial punishment is exacted by the criminal law. The offender is punished; others are deterred. There is, then, no occasion for their award.
Secondly, considerations for double punishment would otherwise arise. In R v Hoar (1981) 148 CLR 32, Gibbs CJ, Mason, Aickin and Brennan JJ said that there is a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act. That practice or rule would be breached by an award of exemplary damages in the circumstances described.
61. Earlier, at pp 7 and 8, the joint judgment had observed the non-existence in our legal system of any “sharp cleavage” between the criminal law on the one hand and the law of torts on the other.
62. In passing, it is to be noted that in the earlier criminal proceedings brought against the Defendant in respect of his unlawful use of the St Marys premises, Lloyd J imposed a fine of $95,000 on conviction of the Defendant of an offence against the EP&A Act, s 125 and also made (albeit by consent) a mandatory order pursuant to the EP&A Act, s 124 requiring him to remove wastes stored on the land.
63. The particular significance of Gray to the present case is that the High Court invoked the practice or rule against double punishment in a civil case (albeit one involving the award of exemplary damages).
64. In my judgment, the various orders made against the Defendant in the civil proceedings (including the sentences of imprisonment for his disobedience of the Court’s mandatory order requiring him to remove wastes from the Marsden Park premises), involved considerations of punishment of the Defendant for his wrongdoing under the EP&A Act. It follows that to the major extent to which the present charge of an offence against the PEO Act, s 144 relies upon wrongdoing under the EP&A Act to relevantly constitute the “unlawfulness” of the Company’s use of the premises as a waste facility, further punishment of the Defendant would involve “double punishment” for that wrongdoing.
65. The result of the foregoing analysis of the relevance to sentence, of the outcomes against the present Defendant of the civil proceedings is that he should not be further punished in respect of the unlawfulness of his (or the Company’s) use of the Marsden Park premises as a waste facility to the extent that that unlawfulness derives from the breach of the EP&A Act, for which act he has already been dealt with (including punitively) in the civil proceedings brought against him under the EP&A Act.
66. This leaves in tact the other reasons or bases for the “unlawfulness” of that use that are stated in par 68 of the Statement of Agreed Facts, but for the reasons given these other reasons are not nearly as cogent and influential as is the reason that the requisite development consent under the EP&A Act had not been granted. For example, the reason that permission for such use had not been given by the property owner Mr Constantine or the sub-lessor Ms Wilkie in my opinion does not render the Company’s use of the premises relevantly “unlawful”. Again, the reason that the EPA Clean-up Notice was not complied with, though rendering the continuing use relevantly unlawful, only covers the unlawful activity that occurred after 9 May 2001, (when the Notice was served) which in the result, excludes the prior waste receival activity undertaken at the premises which constituted the creation of the great majority of the waste stockpile. In this respect, I think it clear that the 9 May 2001 Clean-up Notice superseded the earlier Notice given on 19 March 2001 not only as a matter of timing but also substantively by asserting an entirely different basis for the necessity for the activity being undertaken, to be licensed by an environmental protection licence.
67. The final proffered foundation for the “unlawfulness” of the use of the Marsden Park premises as a waste facility is the absence of the requisite environmental protection licence under the PEO Act. More precisely the PEO Act, s 48(2) provides that “a person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence unless the person is…..the holder of a licence that authorizes that activity to be carried on to those premises”.
68. Although the Statement of Agreed Facts includes the fact that an environmental protection licence was required (but not obtained) for the Company’s use of the Marsden Park premises, it does not precisely identify the basis for that requirement and there are at least three different bases for it, asserted in the evidence. However, it is not necessary to delve into this matter, since for present purposes it is sufficient to note the terms of s 50 of the PEO Act which provide as follows:
- Timing of licensing of development requiring consent under EP&A Act
(1) Licensing of development controlled under EP&A Act
This section applies to development that cannot be carried out without development consent under the Environmental Planning and Assessment Act 1979. This development is called controlled development in this section.
(2) Licence to be concurrent
A licence that relates to controlled development must not be granted by the appropriate regulatory authority, unless development consent has been granted for the controlled development. However, this section does not prevent the consideration of a licence application by the appropriate regulatory authority before development consent is granted.
(3) Existing use
Without limiting the above, this section does not apply to the extent that development consent is not necessary under the Environmental Planning and Assessment Act 1979 because of an existing use.
(4) Definitions
In this section:
- development has the same meaning as in the Environmental Planning and Assessment Act 1979 .
development consent means consent under Part 4 of the Environmental Planning and Assessment Act 1979.
existing use has the same meaning as in Division 10 of Part 4 of the Environmental Planning and Assessment Act 1979.
69. It is clear from this provision (which was relevantly commented on by Pearlman CJ in the passage I have earlier recited from her judgment in the civil proceedings) that no environmental protection licence could have been granted by the EPA to the Defendant or the Company because the waste receival activity being carried on at the Marsden Park premises had not received development consent under the EP&A Act. Although Pearlman CJ considered the environmental protection licensing system to be a complementary regime to the planning control imposed by the EP&A Act, s 50 also demonstrates a degree of dependency of the licensing system on the operation of the planning controls under the EP&A Act.
70. Since for the reasons given the Defendant has already been punished in the civil proceedings for carrying on the activity at the Marsden Park premises without the requisite development consent under the EP&A Act, it follows that no further punishment for that act should be reflected or included in the penalty to be imposed for the admitted offence.
71. In the light of the foregoing analysis of the facts of the present case and the relevant legal matrix (which attaches great significance to both the facts and the legal matrix of the absence of the requisite development consent under the EP&A Act) the reduced level of penalty that I have already held to be appropriate in the present case (by virtue of the requirements of the Fines Act, s 6) should be further significantly reduced to a penalty in the order of some $12,500, in order to separate out of the penalty for the present offence all elements concerning, or relying upon, the absence of the requisite development consent under the EP&A Act.
72. A final adjustment in the order of 20 per cent to this further reduced level of penalty, reflecting the utilitarian value of the plea of guilty, in my judgment, is justified (see R v Thompson (2000) 49 NSWLR 383) even though that plea did not evince any contrition by the Defendant. This results in a penalty of $10,000, which in my judgment is the appropriate penalty to be imposed on the Defendant.
73. Since the quantum of that penalty is, for the reasons I have given, considerably less than the level of penalty that the objective and subjective factors of the admitted offence would otherwise have justified (but for my giving effect to the Fines Act, s 6 and the rule against double punishment) I do not think it appropriate to make a publication order pursuant to the PEO Act, s 250, lest it create (in the absence of consideration of these detailed reasons) a misleading impression in respect of the gravity of the admitted offence and its proper punishment.
D. CONCLUSIONS AND ORDERS
74. For all of the foregoing reasons, I make the following orders—
1. The Defendant is convicted of the offence as charged.
2. A fine of $10,000 is imposed in respect of the conviction.
3. The Defendant shall pay the Prosecutor’s legal costs in the agreed amount of $16,000.
4. Exhibits be returned.
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I HEREBY CERTIFY THAT THE PRECEDING 74 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE N R BIGNOLD.
Associate
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