Environment Protection Authority v Gammasonics Institute for Medical Research Pty Ltd

[2019] NSWLEC 190

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Environment Protection Authority v Gammasonics Institute for Medical Research Pty Ltd [2019] NSWLEC 190
Hearing dates:	26, 27 and 28 November 2019
Date of orders:	11 December 2019
Decision date:	11 December 2019
Jurisdiction:	Class 5
Before:	Duggan J
Decision:	See paragraphs 91 to 94
Catchwords:	ENVIRONMENTAL OFFENCE – Sentence – Radiation Control Act – Radiation Control Regulation – transport of radioactive substance – non-compliance with security plans – plea of guilty – objective seriousness of the offence – harm includes remote events – monetary penalty imposed – principle of totality – no publication order
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Fines Act 1996 Radiation Control Act 1990 Radiation Control Regulation 2013
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234 Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71 Environmental Protection Authority v Australian Aged Dental Care Pty Ltd [2018] NSWLC 15 Environmental Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 EPA v Barnes [2006] NSWCCA 246 EPA v Sydney Water Corporation [2019] NSWLEC 100 EPA v Waste Recycling Corporation (2006) 148 LGERA 299 Harris v Harrison (2014) 86 NSWLR 422 He Kaw Teh v The Queen [1984-1985] 457 CLR 523 Markarian v The Queen [2005] 228 CLR 357 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Pearce v The Queen [1998] 194 CLR 610 Plath v Rawson (2009) 170 LGERA 253 R v Visconti [1982] 2 NSWLR 104
Category:	Sentence
Parties:	Environment Protection Authority (Prosecutor) Gammasonics Institute for Medical Research Pty Ltd (Defendant)
Representation:	Counsel: Ms J Walker (Prosecutor) Ms E Tringali (Defendant)   Solicitors: Environment Protection Authority (Prosecutor) James A Shevlin Solicitor (Defendant)
File Number(s):	2019/21129; 2019/21152 and 2019/21153
Publication restriction:	No

Judgment

Nature of the Charges to which the Defendant pleaded guilty

1. The Defendant, Gammasonics Institute for Medical Research Pty Ltd (the Defendant), undertakes research in the areas of radiation protection, measurement and detection.

2. The Defendant has pleaded guilty to the following offences:

1. Proceedings 2019/21129 (the Transport Security Charge) – that on or about 28 May 2016, the Defendant failed to comply with a ‘Source Transport Plan’ as required by s 14(6) of the Radiation Control Act 1990 (RC Act);

2. Proceedings 2019/21153 (the Transport Safety Charge) - that on or about 28 May 2016, the Defendant caused a radioactive substance to be transported in a manner inconsistent with the Australian Radiation Protection and Nuclear Safety Agency’s Code for the Safe Transport of Radioactive Material (2014) in breach of cl 36 of the Radiation Control Regulation 2013 (RC Regulation);

3. Proceedings 2019/21152 (the Source Security Plan Charge) – that between 28 May 2016 and 12 February 2018, the Defendant failed to have in place a Source Security Plan in breach of s 14(1) of the RC Act.

3. All three offences relate to the same ‘sealed radioactive source’, which is a fusion welded stainless steel capsule that contains caesium-137. This capsule is housed within a Nordion Gammacell 1000 container (the Irradiator). The Irradiator was designed to sterilise blood and was utilised in research and personnel training conducted by the Defendant.

Background facts

4. The parties prepared an Agreed Statement of Facts (ASOF) (Exhibit B). The agreed background history of the Irradiator is:

12.   Radiation activity is measured in an international unit called a becquerel. The becquerel counts how many particles are emitted per second by a radioactive source.

13.    The Australian Radiation Protection and Nuclear Safety Code of Practice for the Security of Radioactive Sources (Security Code of Practice) categorises radioactive sources by the ratio of the activity (A value) of the source to the dangerousness (D value) of the radionuclide. Depending on that ratio, the radioactive source is categorised from 1 to 5, with 1 being the most dangerous and 5 being the least dangerous.

14.    The Irradiator was manufactured in September 1986. At that time the radioactivity of the Cs-137 in the Irradiator was approximately 86.7 TBq (Terabecquerels). The radioactivity of Cs-137 reduces over time.

15.    On 28 May 2016, being the date on which the Irradiator was transported, the radioactivity of the Cs-137 in the Irradiator was approximately 43.3 TBq.

16.    On 28 May 2016, the Cs-137 in the Gammasonics’ Irradiator was a category 2 source under the Security Code of Practice.

17.    A category 2 source is a “security enhanced source” under the RC Act.

5. The Defendant took possession of the Irradiator in 2009 from the Victorian Red Cross Blood Bank, and, with approval from the Victorian EPA, transported to its Five Dock premises.

6. The Defendant holds a radiation management licence under the RC Act. The relevant facts relating to the licence were agreed as (ASOF [4]-[6] and [9]-[11]):

4. At all relevant times, Gammasonics held the management licence number 5061494 (Licence), granted to it by the EPA under s 6 of the RC Act. As the holder of the Licence, and the owner of regulated material, Gammasonics is the “person responsible” for the regulated material at the premises specified in the Licence schedule.

5.   At all material times Ms Vivien Munoz-Ferrada was the Radiation Safety Officer of Gammasonics with responsibility for radiation safety compliance.

6.   the type of “regulated material” specified in the Licence schedule is a Nordion Gammacell 1000 container that houses a “sealed source device” which contains a “sealed radioactive source” (Irradiator).

…

9.   From 19 May 2016 to 28 February 2017, the premises specified in the Licence schedule was 90 Queens Road, Five Dock (Five Dock Premises).

10.   On 28 May 2016, Gammasonics transported the Irradiator from the Five Dock Premises to 3/79 Mars Road industrial Park, Lane Cove NSW (Lane Cove Premises).

11. On 14 February 2017, Gammasonics requested that the EPA change the Licensed premises from the Five Dock Premises to the Lane Cove Premises. The premises specified in the License was updated on 28 February 2017.

The Transport offences – Offences 1 and 2

7. By letter dated 29 June 2015, the EPA informed the Defendant that it intended to audit its Security Plans. On 6 July 2015, the Defendant requested an extension to the audit, as it was intending to move to its new Lane Cove location and was seeking a new Source Security Plan and Security Transport Plan to be approved by a Radiation Security Assessor (ASOF [23]-[25]).

8. On 9 July 2015, the EPA conditionally agreed to the Defendants’ request for an extension on the basis that (ASOF [26]):

a.    If Gammasonics continued to house the Irradiator at the Five Dock Premises beyond the second week of September 2015, Gammasonics would need to provide an endorsed Security Plan for the Five Dock Premises to the EPA;

b.    The relevant Transport Security Plan for the Irradiator must be provided to the EPA seven days before the transportation occurred; and

c.    The Security Plan for the Lane Cove Premises was to be provided to the EPA by 30 September 2015.

9. The Transport Security Plan was endorsed by the Radiation Security Assessor on 10 September 2015. Ms Vivien Munoz-Ferrada was named as the ‘Responsible Person” in relation to the Transport Security Plan and it is agreed in ASOF [29]-[31] that:

29.    On 19 September 2015 Ms Vivien Munoz-Ferrada emailed a copy of Gammasonics’ Transport Security Plan to the EPA. Ms Munoz-Ferrada stated that Enlog would “be sending through paperwork to accompany this submission”. Ms Munoz-Ferrada requested that “urgent attention” be given to the application as Gammasonics had until 27 September 2015 to vacate its Five Dock Premises.

30.    On 21 September 2015 the EPA emailed Ms Munoz-Ferrada to:

a.    acknowledge receipt of the Transport Security Plan;

b.    remind her of the requirement to “ensure that people who have responsibilities under the [Transport Security] plan are briefed on them and are aware that they must follow the [Transport Security] plan”;

c.    remind her that once transportation to the Lane Cove Premises had occurred, the Security Plan would need to be prepared “as soon as possible”; and

d.    note that approval for “special arrangement” was need[ed] prior to transportation occurring.

31.    On 24 September 2015 Enlog Pacific Holdings Pty Ltd (Enlog), a hazardous cargo transportation company, enquired on Gammasonics’ behalf about seeking approval to transport under “special arrangement” (Application).

10. By letter dated 8 October 2015, the EPA refused the Defendants’ application for a “special arrangement” (ASOF [34]) for the reason that:

…the application did not contain details of any alternate transport packaging (container or overpack proposed for use in lieu of a type B(U) container. In addition any alternate packaging that is to be used instead of a type B(U) container needs to be engineered for purpose and independently certified.

11. Despite further discussions on 28 October 2015, the EPA did not receive any further application for a special arrangement: (ASOF [37]).

12. On 28 May 2016, the Irradiator was transported from the Five Dock premises to the new Lane Cove premises. In undertaking the transport of the Irradiator the Defendant failed to comply with the requirements of its Transport Security Plan, in particular (ASOF [45]):

No.	As proposed by Transport Security Plan	Non-compliance
1	Enlog was identified as the consignor responsible for transporting the Irradiator.	Towing Direct Pty Ltd trading as Direct Self Loaders transported the Irradiator in the DG Container hired from SCF.
2	Physical security measures included being transported on an enclosed truck with satellite tracking.	a. The Irradiator was transported in a dangerous goods container on an open flatbed Volvo HIAB truck. b. There is no evidence of additional security devices or locks placed on the DG Container. There is no evidence of any satellite tracking.
3	Gammasonics personnel with assigned responsibilities and with ID checks carried out.	a. Different personnel than those identified in the Transport Security Plan assisted with transporting the Irradiator. b. Dr Munoz-Ferrada, who supervised the loading and transport of the Irradiator, did not perform ID checks of the truck drivers.
4	Response arrangements: a. The carrier will notify the person responsible if there is a genuine threat to the source and will notify NSW police. b. Ms Munoz-Ferrada to supervise transport of Irradiator.	a. Mr Ramsay, the driver of the Carrier Truck, was not provided with a copy of the Transport Security Plan and was not capable of identifying what a threat to the Irradiator might have been nor that he was required to notify police in the event of a threat to the source. Mr Ramsay was not informed about the radioactive nature of the Irradiator. b. Ms Munoz-Ferrada did not supervise the transport of the Irradiator. Dr Munoz-Ferrada supervised the transport, whoever Dr Munoz-Ferrada was not familiar with the Security Transport Plan.
5	Security awareness: All staff/contractors to be briefed on security threat to the environment.	The nature of the item and its potential to harm people and/or the environment was not disclosed to SCF, Tristat, DSL, Combined Towing or any of the employees of those companies.
6	Transport route to be provided to driver.	The transport route was not provided to Mr Ramsay. Mr Ramsay followed Mr Wickham in the Forklift Truck.

13. Further, the Defendant failed to comply with the Safe Transport Code as (ASOF [46]):

The Safe Transport Code requires that a Type B(U) container be used to transport the Irradiator. The proposed “special arrangement” as submitted on behalf of Gammasonics, did not comply with the safety requirements of the Safe Transport Code. The EPA did not provide its approval for the proposed “special arrangement”.

The Source Security Plan offence – Offence 3

14. The EPA became aware that the Defendant no longer occupied the Five Dock premises on 24 January 2017. A Source Security Plan was required to be made in relation to the new premises pursuant to s 14(1)(a) of the RC Act. The ASOF recites the following agreed facts relating to this offence as:

49.    On 14 September 2017, Gammasonics stated that it had provided the Security Plan to an accredited radiation security assessor on 4 September 2015. That version of the Security Plan identified the Gammasonics’ address as the Lane Cove premises, is signed and dated by the Licence contact, Ms Vivien Munoz-Ferrada, but is not endorsed by an accredited security assessor. Email correspondence provided with the Security Plan indicated that accredited radiation security assessor Mr Chris La Greca wanted to meet with Gammasonics at the Lane Cove Premises before endorsing the Security Plan.

50.    On 14 November 2017 Gammasonics acknowledged that the Security Plan for the Lane Cove Premises had “not yet” been endorsed. On 28 November 2017 Ms Vivien Munoz-Ferrada, stated that the Security Plan was “about to be endorsed” but that “the security assessor wasn’t happy with the alarm system.

52.   By letter dated 20 March 2018, the EPA requested that Gammasonics provide a copy of the Security Plan with endorsement from an accredited radiation security assessor for the Lane Cove premises by 23 March 2018.

53.   On 21 March 2018, Gammasonics emailed a copy of the Security Plan with an endorsement date of 13 February 2018.

15. For a period of 20 months the Defendant housed the Irradiator without an endorsed Source Security Plan.

16. It was not asserted that the Lane Cove premises were incapable of being certified or that work was required to be carried out the enable certification. The evidence disclosed that the only “issue” the accredited certifier had with respect to the premises was a requirement that an existing wireless alarm be hardwired. Other than this explanation no further explanation has been provided to the EPA for this delay.

Nature of charges to which guilty pleas entered

17. The relevant statutory provisions creating the offences are:

RC Act – s 14(6)(d) – Offence 1

14(6)   Each person responsible for a security enhanced source must ensure that any security plan in respect of the source:

(a)   is made or amended in accordance with this section, and

(b)   is provided to the Authority:

(i)   at such times as the Authority or the regulations may require, and

(ii)   in the case of a source transport security plan, as soon as reasonably practicable after the plan is made or amended, and

(c)   is reviewed periodically or at such times and in such manner as may be prescribed by the regulations, and

(d)   is implemented and complied with.

RC Act – s 14(1) – Offence 3

14(1)   Each person responsible for a security enhanced source must ensure that a plan is made that addresses:

(a)   the security of the source (a source security plan), and

(b)   if the source is to be transported, the security of the source during transport (a source transport security plan).

Maximum penalty: 1,500 penalty units in the case of a corporation or 250 penalty units in any other case.

RC Regulation – Offence 2

36   Transport of radioactive substances

A person must not cause any radioactive substance to be transported otherwise than in accordance with the requirements of the document published by the Australian Radiation Protection and Nuclear Safety Agency entitled Code of Practice for the Safe Transport of Radioactive Material, as in force from time to time.

Maximum penalty: 400 penalty units (in the case of a corporation) and 200 penalty units (in any other case).

Sentencing principles

The purposes of sentencing

18. In determining the appropriate sentence it is necessary to have in mind the purposes for which a sentence may be imposed. As provided for in the Crimes (Sentencing Procedure) Act 1999 (CSP Act) these purposes are:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows –

(a)   to ensure that the offender is adequately punished for the offence,

(b)   to prevent crime by deterring the offender and other persons from committing similar offences,

(c)   to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

(e)   to make the offender accountable for his or her actions,

(f)   to denounce the conduct of the offender,

(g)   to recognise the harm done to the victim of the crime and the community.

Statutory matters required to be taken into account in sentencing

19. For the purposes of sentencing in this matter the following factors as provided for in s 21A of the CSP Act are relevant:

21A   Aggravating, mitigating and other factors in sentencing

(1)   General In determining the appropriate sentence for an offence, the court is to take into account the following matters –

(a)   the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b)   the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c)   any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

…

(2)   Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows –

(d)   the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

…

(3)   Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows –

(f)   the offender was a person of good character,

(g)   the offender is unlikely to re-offend,

…

(i)   the remorse shown by the offender for the offence, but only if –

(i)   the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

...

(k)   a plea of guilty by the offender (as provided by section 22 or Division 1A),

…

(4)   The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5)   The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

Objective seriousness of offences

20. The determination of an appropriate sentence is to be undertaken bearing in mind that:

A sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its subjective circumstances: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [162].

21. The primary factor to be considered in sentencing is the objective seriousness of the offences. The objective seriousness of the offence fixes both the upper and lower limits of proportionate punishment: the upper, as a sentence should never exceed that which can be identified as proportionate to the gravity of the particular crime; and the lower, as an allowance for the subjective considerations can never produce a punishment that does not reflect the objective seriousness of the offence: EPA v Waste Recycling Corporation (2006) 148 LGERA 299 at [139]-[140].

22. The objective gravity of the offence is to be judged by two principal components: the precise acts or omissions of the offender; and, the consequences of those acts or omissions: Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71 at [22].

Nature of offences and maximum penalty

23. Each of the offences arises under the provisions of the RC Act (or the Regulation made pursuant to that Act) that includes as its stated objects:

3   Objects of Act

(1)   The objects of this Act are as follows:

(a)   to secure the protection of persons and the environment from exposure to ionising and harmful non-ionising radiation to the maximum extent that is reasonably practicable, taking into account social and economic factors and recognising the need for the use of radiation for beneficial purposes,

(b)   to protect security enhanced sources from misuse that may result in harm to people or the environment,

(c)   to promote the radiation protection principles.

(2)   The radiation protection principles are as follows:

(a)   justification of a practice by assessing that the benefits of the practice involving exposure to ionising radiation outweigh any detriment,

(b)   optimisation of protection by ensuring that each of the following is kept as low as reasonably achievable taking into account economic and social factors:

(i)   the magnitude of individual doses of ionising radiation,

(ii)   the number of people exposed to ionising radiation,

(iii)   the likelihood of exposure to ionising radiation,

(c)   dose and risk limitation by setting dose limits or imposing other measures so that the health risks to any person exposed to ionising radiation is kept below levels that are generally considered to be unacceptable.

(3)   A person is to take the radiation protection principles into consideration when exercising functions under this Act or under a licence.

24. These objects identify the balance that has been struck between the beneficial use of radiation and the potential risks of such radiation. In striking that balance the objects identify the provision of security of radioactive sources as a fundamental goal. The security of radioactive sources is aimed at the protection of people and the environment against the inherent risks of radioactive material and its misuse. The regime of licensing and the preparation of the required plans are intended to provide that desired security and protection.

Strict liability offences

25. The three offences in these proceedings were submitted by both parties to be strict liability offences. The determination as to whether a particular offence is a strict liability offence requires a consideration of whether, by the creation of the offence, the Parliament intended to displace the presumption that mens rea (criminal intent) is an essential element of the crime. In doing so regard is to be had to: the statutory language; the subject matter with which the statute deals; and, whether the imposition of a strict liability will assist in the enforcement of the provision, that is, whether there is something that the offender could have done to prevent the criminal act may indicate that Parliament intended that all actions should be taken to ensure compliance and therefore the legislature intends that all breaches (whether intentional or not) should be penalised: He Kaw Teh v The Queen [1984-1985] 457 CLR 523 at 528-530.

26. The circumstances of these legislative provisions indicate that Parliament intended that the liability be strict. The RC Act is protective, a person is able to control the compliance with its provisions and it is unlikely that any breach of the subject provisions will be “a luckless victim” and the nature of the substance and the consequences of the risks sought to be managed are serious. For all of those reasons I agree that the relevant offences with which the Defendant is charged are strict liability offences.

27. Therefore, it is relevant that each of the offences are strict liability offences and carry the maximum penalty for a corporation of $165,000 for the two breaches of s 14 of the RC Act and $44,000 for a breach of cl 36 of the RC Regulation.

28. The strict liability nature of the offence and the quantum of the maximum penalty are indicators of the public expression by Parliament of the seriousness of the offence and the gravity of the offences as perceived by the community: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 at 698.

29. It is also relevant to observe that whilst the quantum of the maximum penalty is relatively low, in the context of environmental crimes, I accept that this is an indication of the relative seriousness which Parliament considers the subject offences. However, I also note that generally environmental crimes that carry a heavy penalty are intended to cover the field, in a single offence provision, for both minor and very serious criminal activities. The RC Act does not take this approach. The RC Act makes separate provision where the offence causes serious harm with knowledge. Section 24 of the RC Act provides:

24   Increased penalty for offence causing serious harm

(1)   This section applies when a person is convicted of an offence against a provision of this Act and it is proved beyond reasonable doubt that the person knew that its commission was likely to cause serious harm to a person, animal or thing or the environment by exposure to radiation.

(2)   When this section applies, the maximum penalty that may be imposed in respect of the offence concerned is increased to 10,000 penalty units in the case of a corporation or 1,500 penalty units or imprisonment for 2 years, or both, in any other case.

30. The inclusion of such provision indicates a legislative intent that the maximum penalty for the offence with which this Defendant is charged does not include the “full range” of possible breaches, but is rather intended to provide a maximum in for all circumstances other than those provided for in s 24. Therefore any penalty is to be considered in a range that does not include a knowing causing of actual harm.

HARM – The extent of the harm caused or likely to be caused by the commission of the offence

31. It is to be noted that where a Prosecutor contends that a particular sentencing consideration should be treated as an aggravating feature it must establish by evidence, beyond reasonable doubt the presence of such aggravating factor. Where a Defendant contends for the presence of a mitigating factor in sentencing it must establish the presence of such factor on the balance of probabilities: EPA v Sydney Water Corporation [2019] NSWLEC 100 at [131].

32. There is no evidence of actual harm as a consequence of any of the offences. However, it is contended that there was a risk of harm as a consequence of the offences and that such a risk was an aggravating feature of the activity undertaken. The risk of harm was identified as being:

1. If the container was damaged during transportation there was a risk to public health described by Mr Brent Rogers in his report (Exhibit F Tab 5 at [36]-[37]) in the following terms:

36.   Based on the numbers in Table 2, a lethal dose of radiation could occur to a person situated about a meter from the source if exposed for a period between 80 to 90 minutes.

37.   However, if a person were to have direct contact such a source, based on the numbers if Table 2, they would receive a likely lethal dose in just a few seconds. As such nay persons coming in contact with the source would like experience death without quick and aggressive medical intervention. Such a source having been placed in a shielded pot and removed, could be used for nefarious means as well.

It was also observed that there was an example of an actual event in Goinia, Brazil in 1986 that related to the same source of radiation albeit with a different housing of the radioactive material, which produced a public health consequence similar to that anticipated in this case: Exhibit F Tab 5 [29]-[31] (The Public Health Risk).

2. There was a risk that the radioactive material could come into the possession of unauthorised persons and that such a “bad actor” could posed a public security risk and consequential harm from utilisation of the material for nefarious purposes such as the creation and detonation of a “dirty bomb”: Affidavit of Mr Potapof sworn 15 October 2019 at [10]-[11]. The evidence also disclosed that the Irradiator was rejected by Wollongong University as:

…there was a concern about a possible terrorist threat by students who would have access to the Irradiator. Accordingly, the University Executive decided that the Irradiator should not be brought on to the University campus …

(Affidavit Dr Munoz-Ferrada sworn 22 July 2019 at [21])

(The Public Safety Risk).

3. There was a risk that if at the point of transportation where the road crossed a bridge that traverses the Parramatta River the container was breached radioactive material could find its way into the river system with consequential risks to the environment: Exhibit F Tab 5 [42]-[44] (The Risk to the Environment).

33. Each of The Public Health Risk and The Risk to the Environment requires the coincidence of an accident and the accident being of sufficient seriousness that it results in the container being breached. This was accepted not to be a natural consequence of all of the foreseeable accidents, whilst it was a risk, it was not a high risk. The Public Safety Risk requires a bad actor to steal the material during transport and utilise it for nefarious purposes. Again, this was accepted to be a risk but not one that could be characterised as a high risk.

34. In considering the possibility of “harm” in the context of environmental crime and planning law it has traditionally been said that in assessing the likely harm regard is to be had to the prospective harm as being: a real chance or possibility and not remote. As Lloyd J observed in Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 at [44]:

In considering the harm likely to be caused to the environment, it is to be noted that the word “likely” in this context has been held to mean “a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance” (Mathews v Goulburn Wool Processors, NSWSC, Smart J, 6 November 1986, unreported); “only a real chance or possibility, and not more probably than not” (State Pollution Control Commission v Blayney Abattoirs Pty Ltd (1991) 72 LGERA 221 at 224); and “does not mean ‘probable’. It means ‘a real possibility’” (New South Wales Sugar Milling Co-operative Ltd v State Pollution Control Commission (1991) 73 LGRA 86 at 100, affirmed by the Court of Criminal Appeal on other grounds, (1992) 75 LGRA 320).

35. In the legislative context of the RC Act the harm that is sought to be avoided, however, includes prospective harm that would fall into the “remote” category. This is part of the clear legislative intent as identified in the objects of the RC Act that include phrases such as protecting persons and the environment to the “maximum extent that is reasonably practicable”. The risks that the RC Act was seeking to address was emphasised in the Second Reading Speech where, after observing the positive benefits to the community from the use of radioactive substances (particularly for medical purposes) it was said:

But we have an obligation to ensure that they do not get into the wrong hands.

To safeguard against these radioactive sources falling into the wrong hands, a security background and identity checking scheme will be introduced, similar to those that are already in place for unsupervised access to explosives and precursor chemicals.

The Security Code requires that a "person responsible" for a security enhanced radioactive source take actions to ensure the source is secure.

The person responsible will be required to ensure that physical security measures are taken so that attempts to gain unauthorised access or remove a source are detected and responded to. They will be required to prepare and implement a security plan which demonstrates how the requirements of the security code are satisfied.

These plans must be approved by a Radiation Security Assessor who will be accredited by the Department of Environment, Climate Change and Water [DECCW] for this purpose.

Abandoning a dangerous radioactive source will also be made a specific offence for the first time.

Failure to comply with these security requirements will be an offence, as will be the provision of false or misleading information in relation to security plans and other matters, such as applications for licences and responding to notices.

36. For these reasons I find that the risk sought to be managed by the RC Act and its Regulations are risks that include ones that are on the spectrum of risk that would include remote risks and those that are less than a real chance or possibility. I therefore consider that in the context of these offences it is open to consider risks that may be determined to be remote as relevant to the sentencing exercise. However, I also consider that in sentencing it is relevant to treat the more possible the risk with greater weight than the less possible.

37. In the circumstances of this case I weigh in my consideration The Public Health and The Public Safety Risks as being important possible consequences of the offences. The relative importance of these risks is reinforced by the catastrophic consequences that would occur if the risk became reality. I consider these potential harmful consequences have been established as a feature that adds to the objective seriousness of the offences.

38. I take into account, but give less weight to The Environmental Risk as it requires a coincidence of a number of elements, each of which are individually quite remote, and that would be required to operate in concert to produce the risk of entry in the Parramatta River. Further, the evidence relating to the consequences that would follow from the material entering the River are of a more speculative and less compelling nature.

39. The fact that the offence relates to the actual transport of radioactive material is a situation where inherent risks are exacerbated. The transportation from the premises along public roads exposes the container to risks such as accident and theft which are less likely if the contravener remained on the premises. The failure to comply with a plan specifically designed to ameliorate these transport risks is a serious omission.

40. I also take into account that absent the breaching of the container in which the radioactive material is stored (which would lead to the exposure of the radioactive material) and absent the taking of the radioactive material by a bad actor the risk of harm was low. Further, the Defendant did turn its mind to the safety of the transport measures it undertook on the relevant day. I do not accept that this mitigates against the objective seriousness commission of the offence but it does demonstrate that the Defendant was aware of the risks and sought in a manner to minimise the risks. These factors as outlined by the Defendant in its submissions included:

17.   The Irradiator was transported on 28 May 2016 and whilst not complying with the legislative requirements the subject of these offences, Gammasonics took a number of precautions in the transportation of the Irradiator including that:

a.   it was undertaken in the early morning of a weekend, when there were minimal number of people and road users about;

b.   the transportation of the Irradiator was monitored by Dr Munoz-Ferrada who had expertise and experience in radiation safety;

c.   the self-shielding Irradiator was placed in a Dangerous Good Container which was approved under the Dangerous Goods regulations AS3780/ AS 1940 Class 3, 4, 6, 8 and 9;

d.   the self-shielding Irradiator was transferred onto the Dangerous Goods Container on the back of the Carrier Truck using a forklift, then secured into place on the Carrier Truck with ratchet straps and the self-locking Dangerous Goods Container doors were closed;

e.   Dr Munoz-Ferrada drove directly behind the Carrier Truck, responsible for transporting the Irradiator and could thus see if any potential hazard was posed by the Irradiator, given it was in an open truck (such a benefit not being available in the closed truck required under the legislation);

f.   Dr Munoz-Ferrada drove a utility vehicle owned by Gammasonics, bearing number plate “ZKT 398” behind the truck transporting the Irradiator;

g.   the utility vehicle had a GPS tracking device installed which recorded the route travelled using satellite tracking;

h.   the utility vehicle had a large radioactivity label clearly marked on the exterior of the vehicle in yellow and black;

i.   Mr Craig Ramsay, an employee of DSL, who drove the Carrier Truck held a National Licence to Perform High Risk Work at that time;

j.   an additional support person was also present (although not required). Mr Poljak of Sigma Delta Services, additionally attended the removal of the Irradiator as a “support person” his proposed role to put witches hats on the ground in case of traffic issues was not necessary;

k.   the short journey from Five Dock to Lane Cove took less than 20 minutes; and

l.   once at the Lane Cove Premises, a forklift was used to unload the Irradiator.

41. And expanded in [24] in the following manner (footnotes omitted):

24.   It is submitted that in determining the objective seriousness of the offences the Court ought to have regard to the circumstances surrounding the offence and transportation of the Irradiator as set out in paragraphs 15 and 17 together with the following:

a.   The radioactive source was contained in a permanently sealed capsule, which is designed to prevent radioactive material from escaping or being released from encapsulation under normal usage and probable accident conditions.

b.   The Irradiator was self-shielding which contains sufficient thickness of shielding to prevent gamma photons from escaping into the environment, with such devices being safely placed in laboratories where people work, without additional shielding required.

c.   The Irradiator vessel has appropriate security to prevent accidental opening of the aperture and as such, the addition of further shielding would be of little or no benefit in reducing inadvertent external exposure to radiation.

d.   The ambient dose of radiation measured in February 2015 was the equivalent of what an individual would receive in a commercial jet plane travelling at 1012 kilometres.

e.   The likelihood of a member of the public being exposed to a dose of radiation that would approach accepted guidelines from the transport are exceedingly small.

f.   The level of risk posed by the source to life, property or the environment, whether in its immediate vicinity or long term or during transportation of one hour if the irradiator was to remain intact, whilst contained in the self-shielding irradiator was minimal.

g.   If an incident were to ensue whilst the Irradiator was in transit due to the management and responsiveness of Australian Authorities in relation to radioactive incidents, it would be well managed to limit any potential harm.

h.   The likelihood of a terrorist detonating a “dirty bomb” (i.e. a conventional explosive device that contains a large amount of various long-lived radioactive materials that would cause widespread contamination in the blast area and regions where the contaminated materials would be carried by wind and water flows) is extremely unlikely. The State has taken suitable precautions by stockpiling various agents (such as Lugol’s Iodine and Prussian Blue) that can “block” physiological uptake of the radioactive materials into the organs of the body once ingested or inhaled, to manage such an event. The Australian experience is one of thorough preparedness for potentially dangerous future events.

i.   The Irradiator contains a sealed source of radioactivity, which is sealed in a capsule which is designed to prevent the radioactive material from escaping or being released from encapsulation under normal usage and probable accident conditions, where probably accident conditions are defined from the International Atomic Energy Agency (IAEA): Document IAEA/PI/A.98/13-32051.

j.   The Defendant’s director has given evidence that “the welding of the Irradiator containing the source, ensures its increased security from terrorists as it would be very difficult to break into the unit due to the welding which acts as a deterrent.”

k.   The Defendant’s director has given evidence that “The Irradiator has the necessary tungsten and lead encapsulation (2 tonnes) of shielding material. This prevents any radioactive material from leaking from the Irradiator.”

Reasons for committing the offence

42. The Defendant submits at DS [15] (footnotes omitted) that the reasons for committing the offence are:

15.   Prior to May 2016, Gammasonics circumstances included the following:

c.   the premises then occupied by Gammasonics had been sold and the new owners gave Gammasonics 2 weeks’ notice to vacate the building prior to the internal structures of the building being demolished;

d.   the incoming purchaser of the Five Dock Premises was not agreeable to any modification of this strict timeframe;

e.   Dr Munoz-Ferrada was concerned as to the safety of the Irradiator remaining in the Five Dock premises when demolition works were undertaken as this would pose a risk in relation to the Irradiator which he sought to be avoided;

f.   As such the Irradiator could not stay on the premises;

g.   A Source Security Transport Plan, as required under section 14 of the Act was in place;

h.   Dr Munoz-Ferrada, Vivien and Bruna an employee of Gammasonics, had “overlooked” dealing with the subject of the offences. The Defendant’s evidence as to the reason for this was the stress and financial detriment caused by: the nervous breakdown of Vivien due to her company dealing with a financial problems, which Dr Munoz-Ferrada assisted her in dealing with; the sale of a property owned by Dr Munoz-Ferrada’s superannuation in financially assist his then wife; and the otherwise busy work schedule of Dr Munoz-Ferrada including overseas travel;

i.   The unavailability of Type B(U) containers or approved alternatives in Australia;

j.   The unaffordability of appropriate and legally complaint Type B(U) containers sourced from overseas; and

k.   Attempts to have an alternative transport container designed by Dr Munoz-Ferrada approved by the EPA under a “Special Arrangement” were not approved by the EPA and the EPA being no longer interested in approving such a container following the departure of a former Director of the EPA in 2015.

43. Whilst I accept this recitation of factors is the explanation of the circumstances that led the Defendant to the commission of the offences, I do not consider that those factors (either alone or in combination with each other) operate to reduce the objective seriousness of the offences for the reasons that follow.

Personal and financial situation of Defendant’s principal officers

44. The Defendant’s principle officers found themselves in profound financial and emotional turmoil at the time of the commission of the offences. As a result it was accepted by the Director that (T91 line 49 – T92 line 3):

… Well, put in the way, it was in the hard basket. We didn’t want to talk about things that immediately we were going to produce a problem to trying to save the business. And the irradiator was left probably for the last minute - we were worried the business will be, the building will sold first and when the time comes, we negotiate with the owners of the building. And I guess, that, what I actually think fail, that the building was sold but the owner was not flexible enough to give us, say, a 6 months or 8 months.

45. This lack of focus on the subject matter of the offences is understandable, it is not excusable. The custody of radioactive materials imposes upon the custodian a high degree of responsibility to ensure its safe holding and transport. As a consequence it is a matter which should be the subject of strict attention at all times. The necessity for this attention is reinforced by the requirement to have a license, and where appropriate have approved plans for the Security of the Source and its Transport. These are obligations that arise and remain, notwithstanding the personal circumstances of the custodian. Where an individual is unable to properly discharge his or her obligations it is incumbent upon that individual (or in this case the Defendant) to ensure that the obligations are being met by some individual that has such capacity.

Sale of the premises and short time to remove the Irradiator

46. The Defendant should have been aware from the time of the sale of the Five Dock premises that it would be necessary to relocate the Irradiator. The two week notice period was at the end of that process and caused the timetable for removal to become tight because no appropriate arrangements had been made before that time. Clearly this matter was in the mind of the Defendant as it had taken steps to obtain a Transport Security Plan approval and had sought alternative measures approval.

Absence of Approved container in Australia or affordable alternative

47. The RC Act makes provision for alternative means of transporting radioactive material other than strictly in accordance with the RC Act or RC Regulation such as the approval of “special arrangements” (as referred to above) or an exemption in an emergency or other situation as provided for in s 38A of the RC Act. Alternatively, at least in respect of the Transport Security Charge, the Defendant could have amended its Security Transport Plan (with approval) to reduce the areas of non-compliance that occurred.

48. The evidence before me indicates that whilst the Defendant made some attempt to seek approval of a special arrangement, the attempts made were not exhaustive nor undertaken within a realistic time frame.

Failure to obtain a Source Security Plan for the Lane Cove premises

49. None of the factors identified by the Defendant specifically address this offence. The evidence discloses that the premises were capable of having the Plan that had been prepared accredited subject to installing a hardwired alarm. This was not a complaint about the absence of an alarm (a wireless alarm was in place) or that the premises either could not be made suitable or were not suitable until further substantial work was undertaken. The work required was minor. The Defendant had removed Ms Munoz-Ferrada from her position as Radiation Safety Officer and nominated Dr Munoz-Ferrada in that position. Therefore, the incapacity of Ms Munoz-Ferrada to appropriately discharge her duties did not influence this delay. The length of delay in obtaining the necessary plan is an aggravating feature.

State of mind of the offender

50. The three offences are strict liability offences, accordingly, the state of mind of the offender, is not a matter that is required to be established for the offences to be proven. However, the state of mind can be a matter that increases the objective seriousness of the offence, for example where it is undertaken knowingly, or for commercial gain.

51. It is not disputed that in this case all of the offences were knowingly committed. That fact is a matter I have taken into consideration in the matrix of reasons why the offence was committed (referred to above) and do not consider that this factor warrants a finding of an additional aggravating circumstance.

52. The Prosecutor, however, submits with respect to the third offence that the state of mind of the offender is an aggravating circumstance and that the Court would find that the failure to have in place an approved Source Security Plan for the Irradiator at the Lane Cove Premises would be found to be negligent. The Prosecutor identified the basis for this assertion in its oral submissions on sentence (T 138-140) as relating to three factors, namely:

1. That the Defendant knew that a Source Security Plan was required;

2. It was within the Defendant’s power to obtain accreditation for the plan and to do such things as were required at the premises to bring it into compliance;

3. The Defendant knew from at least November 2017 that the only matter the accreditor required was that the Defendant provide a hardwired alarm system (as opposed to its current wireless system) and for a period of seven months it failed to take steps to carry out that work.

53. Both the knowledge of the Defendant as to the requirement for a Source Security Plan and the absence of a reasonable explanation for the delay in obtaining such plan have been taken into account by me in the determination of the objective serious of the offending as it relates to the causes of the offending and the state of mind of the offender. To consider it again in this context would be penalising the Defendant twice for the same factor and therefore I decline to take it into account in this context. As to the failure to hardwire the alarm, I do not consider this an aggravating feature. The fact that the premises were capable of accreditation without significant work being required and the fact that an alarm was in place, albeit not hardwired, are factors that mitigate in the consideration of the seriousness of the consequences of the Defendant’s conduct for the reasons outlined above, rather than aggravate it. However, I do find that the unexplained length of the delay in obtaining an accredited plan was an aggravating feature.

Control over causes

54. The Defendant had control over the causes for the commission of the offences in that it elected, due to the circumstances outlined above, to transport the Irradiator contrary to the provisions of its own Security Transport Plan, to use a container other than the container authorised by the Regulations and to install the Irradiator at the Lane Cove Premises without the necessary Source Security Plan.

55. I find that the factors relied upon by the Defendant as to the reasons why the offence was committed does not affect the Defendant’s control over the cause of the offences. I consider the fact that the Defendant did not exercise the relevant control to be an aggravating feature that increases the objective seriousness of the offending.

Conclusions on objective seriousness

56. For the reasons outlined, I find that the offending in all three of the charges is in the moderate range.

Subjective circumstances of offender

Contrition and remorse

57. The Defendant has expressed remorse in both the affidavit evidence of its Director and in his oral evidence. I accept that the Defendant’s expression of contrition and remorse is genuine.

58. It is noted that the Director did indicate in oral evidence (T75 line 47 – T76 line 2) that:

WITNESS: Can I elaborate a little bit? I can see you all know your law, but you don't know nothing about radiation, okay. The way we looked at it, from our point of view, if we are putting somebody in danger we would know before you because we are there to protect as well. And in our opinion, and in our assessment, in our understanding, we did not break the law. We only break the code of practice that's been imposed by the state.

59. It was submitted by the Prosecutor that such a statement indicates that the Defendant is neither contrite nor remorseful. I do not accept that submission. I had the opportunity to observe the Director under cross-examination. Whilst I note that he appears to be very intelligent, his English expression is challenged particularly when trying to express complex or emotional matters. I consider the statements (extracted above) to be an attempt to assure the Court that whilst he knowingly broke the law he did not do so a manner that was also in reckless disregard for safety. Rather, he sought to explain that to the extent the Defendant was acting in breach of the law it did so with a genuine attempt to provide as safe a transportation of the radioactive material as could be attained in the circumstances of the transport. I repeat that I do not accept this as a justification for the commission of the offences, but I also do not consider these statements diminish what I find to be the genuinely held contrition expressed by the Defendant through its Director.

60. This approach is consistent with the balance of the Director’s affidavit and oral evidence and the submissions made by the Defendant as to the likelihood of harm referred to at paragraphs [39]-[40] above.

Early plea of guilty – s 22 and s 21A(3)(k) CSP Act

61. In this matter pleas of guilty were entered on the first return of the Summonses. The Prosecutor and the Defendant both submit that the full discount for the utilitarian value of the early plea should be afforded to the Defendant in each proceeding. I accept this submission and will apply the full 25% discount for the utilitarian value of the early pleas.

Prior convictions – s 21A(2)(d) CSP Act

62. The Defendant has no prior convictions. The Defendant submits that this matter is a matter in mitigation that I should give weight to in the determination of an appropriate penalty.

63. It was submitted by the Prosecutor that, whilst I am required to take this fact into account as a mitigating factor pursuant to s 21A(2)(d) of the CSP Act, the weight I should attribute to this factor should be slight. It was submitted that because of the nature of the offence that it would be unlikely a person charged would have prior convictions. It was further submitted that such a consideration is generally treated as being less significant in “environmental crimes” for the reasons set out in the often cited observations of Preston CJ in Plath v Rawson (2009) 170 LGERA 253 at [148] (Plath):

148.   Environmental offences are another illustration of a class of offences committed by person who, typically, are of prior good character. They very rarely have previously engaged in other criminal conduct and mostly do not have any prior convictions for environmental offences. The prevalence of the commission of environmental offences by persons of otherwise good character, and the importance of the sentence for environmental offences achieving the purpose of general deterrence, makes the fact that the offender is of otherwise good character of less relevance than it might be in sentencing for other types of offences.

64. My attention was directed to the recent decision of Pepper J in Environmental Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 where her Honour raised whether in all environmental crimes the proposition in Plath was still apt. Whilst I acknowledge her Honour’s observations at [242]-[245], I do not consider that the concerns raised by her Honour are applicable to the offences the subject of these proceedings. Section 5 of the RC Act provides for a licensing regime that requires a person to be “fit and proper” where such a finding includes a consideration of the person’s criminal record as it pertains to that Act. It is therefore far more likely that an offender will have no record of prior criminal conduct. Further, the capacity for a license to be cancelled upon certain events, including a conviction under the Act (s 13 RC Act), also limits the likelihood of a person having past convictions. For that reason, I find the observations in Plath applicable to the circumstances of these offences and therefore whilst I take this factor into account I give it little weight.

65. I do, however, consider that with respect to matters other than past criminal history, the Defendant is of good character. The regard with which the Defendant is held in the area of the use, management and radiation research and technology is well evidenced in the affidavit of Dr Munoz-Ferrada (sworn 22 July 2019). I consider this element of good character as a mitigating factor in the sentencing process.

Deterrence retribution and denunciation

Specific deterrence

66. It is submitted that as the Defendant remains active in the field of radiation management including the transportation of radioactive materials that there is a need for specific deterrence in the sentence. It was also submitted that the circumstances surrounding the commission of the offence indicate a need for the Defendant to be deterred from allowing circumstances to override the inherent obligations it has in the security and management of radioactive materials. I agree with this submission and consider that the sentence should reflect an element of specific deterrence to ensure that the Defendant remains vigilant in the observance of its obligations under the RC Act.

General deterrence

67. In Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234 at [139]-[141] the relevant sentencing principle of general deterrence in environmental crime was stated by Preston CJ in the following terms:

139 The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598.

140 This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354 and Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 at [85] and [93] per Lloyd J.

141   The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and important components of it such as threatened species, must be complied with.

68. The provisions of the RC Act seek to provide a similar protective regime for persons and the environment. I consider the observations in BGP to be appropriately analogous to the circumstances under the RC Act such that an element of general deterrence should be part of the sentencing considerations.

69. In this case I consider that the element of general deterrence to be of particular significance in light of the evidence in this sentence hearing indicating that the cost of compliance with a Security Transport Plan that requires a type B(U) container can require the expenditure of not insignificant cost.

Consistency in decision making

70. The principle of even handedness requires that the Court consider if there is any sentencing pattern for like offences in order to ensure that there is a consistent approach to penalty. This approach, however, must also acknowledge that care must be taken in comparing cases where the circumstances of and facts relating to the offences may be quite different: R v Visconti [1982] 2 NSWLR 104; Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at [365].

71. The Prosecutor provided only one prior conviction that had been recorded for a prosecution under the RC Act: Environmental Protection Authority v Australian Aged Dental Care Pty Ltd [2018] NSWLC 15. The Prosecutor acknowledged, and I accept, that the facts of that decision were vastly different than the subject offences- involving, in effect, the taking of dental X-rays of school children by a person not licensed to do so – and, therefore, was of little utility to the determination of penalty in this case.

The Offence Could Have Been Prosecuted in the Local Court

72. The Defendant submitted that I should take into account the fact that the EPA could have elected to commence these proceedings in the Local Court where its exposure to the higher penalty conferred upon the Land and Environment Court would have been removed. Section 25 of the RC Act provides a jurisdictional limit on penalty (and limits the availability of some alternative order) to 200 penalty units ($22,000).

73. In Harris v Harrison (2014) 86 NSWLR 422 at [92] and [96]-[97] Simpson J observed:

92 … a significant matter, is that the offence could have been prosecuted in the Local Court, where the maximum applicable monetary penalty was $22,000. It is well established that that may be a relevant sentencing consideration: R v Crombie [1999] NSWCCA 297; R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115.

…

96   Given the known circumstances of the offence, and the assessment of the offence as one of low objective gravity, her Honour’s attention should have been drawn to the fact that the offence could have been prosecuted in the Local Court, and to the maximum penalty there available.

97    Notwithstanding the respondent’s desire to have some parameters established by a superior court, this was an offence that should have been treated as one suitable to be prosecuted in the Local Court, with its limitation on penalty. It is a pity that neither counsel thought to inform her Honour of these circumstances.

74. In this case, in light of my findings that the objective seriousness of all of the offences is of moderate seriousness, I do not consider the fact that the matter could have been prosecuted in the Local Court, where a lower jurisdictional limit would have applied, as being of significance to the determination of an appropriate sentence.

Legal costs

75. The parties advised me that whilst there had been no agreement between them as to the quantum of costs the Prosecutor estimated that its solicitor-client costs were in the order (estimate only) of between $90-95,000 in total for the three offences. The parties agreed that I should consider this estimate as the maximum extent of the Defendant’s liability for costs in the sentencing exercise.

76. The Defendant submitted that as it has been accepted that an order that requires the Defendant to pay the Prosecutor’s legal costs, the quantum of those costs is a matter that is permitted to be taken into consideration in the determination of the appropriate penalty: EPA v Barnes [2006] NSWCCA 246 at [88], that the quantum of the costs liability in this matter should be taken into account in these proceedings. I agree that the quantum of costs in this matter is of an order that warrants this matter being taken into account.

Totality principle

77. The principle of totality is relevant in the present case where both offences with which the Defendant has been charged and which it has pleaded guilty arise from the same identical facts and circumstances.

78. The principle has been concisely described by the majority of the High Court in Pearce v The Queen [1998] 194 CLR 610 at p 623 [40] as:

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.

79. As outlined above, the Transport Security Charge and the Transport Safety Charge offences that relate to the transport of the material have the elements of each offence being co-incident with respect to the conduct and circumstances giving rise to the commission of each offence and the consequence of each offence such that the application of the sentencing principle of totality is appropriate to be applied in the circumstances of this case.

80. It was accepted by the Defendant that the Source Security Plan Charge relating to the housing of the Irradiator in its new Lane Cove premises does not attract a consideration under the totality principle and should be determined without reference to it.

Capacity to pay

81. Section 6 of the Fines Act 1996 provides:

6   Consideration of accused’s means to pay

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a)   such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b)   such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

82. In this case the Defendant asserts that it has limited capacity to pay a substantial fine. However, apart from assertions from its accountant as to the income available to the Defendant and its Director (Affidavit of Dr Munoz-Ferrada sworn 21 November 2019, Annexure D and E) I have no evidence relating to the Defendant’s available assets, liabilities or other financial information to enable an assessment of capacity. The Defendant was given the opportunity to place further evidence before me which was declined.

83. I do not consider that I have sufficient information to permit me to find that the Defendant has a limited capacity to pay such that it would affect the determination of the appropriate sentence in this matter.

Publication order

84. In addition to any penalty imposed the Court may make further orders as identified in s 23B of the RC Act. In this case I am asked to make an order pursuant to s 23B(1)(a).

23B   Additional orders

(1)   Orders The court may do any one or more of the following:

(a)   order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person,…

85. The Prosecutor submits that such an order is appropriate in the circumstances of this case to perform the function of general deterrence.

86. The Defendant opposes the making of the publication order on the grounds that:

1. The Defendant has been of past good conduct. In particular, it has previously moved the specific Irradiator the subject of these offences, lawfully;

2. The Defendant’s sole business relates to the handling, use and management (including transportation) of radioactive materials and to publicise the conviction will have financial and reputational consequences that will operate as an extra curial punishment that would render the consequence of the sentence disproportionate to the objective and subjective criminality disclosed by the offences;

3. The publication has the real risk of affecting the personal reputation and financial well-being of its director, who, as an individual, has practised in the field his entire professional career. Further, the publication of the conviction and the Director’s known association with the Defendant will prejudice the work he does outside of the scope of employment with the Defendant;

4. The EPA could have charged the Director personally, but it elected not to do so. Care should be taken to ensure that the punishment does not extend to the individual in this case where the Defendant is a separate responsible entity;

5. The number of practitioners in the field of endeavour related to the subject matter of these offences is small and the need for general deterrence is limited.

87. I agree with the Defendant that it is inappropriate in the circumstances of these offences to order that the conviction be publicised by an order made under s 23B(1)(a). In this case I have particular regard to the fact that the conviction will be publicised by the Court judgment and by the Prosecutor in accordance with its usual practices. I further consider that the risk to the reputation and livelihood of the individual that has not been charged or convicted will likely suffer with the publication where his connection to the Company is widely known. Care should be taken to limit punishment where it will serve to affect third parties, particularly where the purpose of that punishment is intended to operate as a general deterrence.

88. Further, in this case the Prosecutor was unable to identify any circumstances that would tend to indicate that non-compliance with the relevant provisions of the RC Act was a continuing and common issue that would benefit from publication to serve as a general deterrent. I also have taken into consideration (as outlined above) the issue of general deterrence in the formulation of the sentence in this matter and I consider that element of deterrence will be adequately addressed in the sentence without the need for a publication order.

Appropriate sentence

89. The appropriate sentence is to be derived by an “instinctive synthesis” of all of the relevant factors in order to determine an appropriate proportionate sentence: Markarian v The Queen [2005] 228 CLR 357.

90. Taking into account the objective seriousness of the charges and the factors identified above I have determined that the appropriate sentence in this case includes the imposition of a monetary penalty (in additional orders relating to legal costs) in the following amounts:

1. The Transport Security Charge – Includes discount for early plea, application of the principle of totality and subjective considerations: $70,000.

2. The Transport Safety Charge – Includes discount for early plea, application of the principle of totality and subjective considerations: $12,000.

3. The Source Security Plan Charge – Includes discount for early plea and subjective considerations: $50,000.

Orders

91. In proceedings 2019/21129 the Court makes the following Orders:

1. The Defendant is convicted as charged;

2. The Defendant is fined the sum of $70,000;

3. The Defendant is to pay the Prosecutor’s legal costs of the proceedings in the amount as may be determined under s 257B of the Criminal Procedure Act 1986.

92. In proceedings 2019/21153 the Court makes the following Orders:

1. The Defendant is convicted as charged;

2. The Defendant is fined the sum of $12,000;

3. The Defendant is to pay the Prosecutor’s legal costs of the proceedings in the amount as may be determined under s 257B of the Criminal Procedure Act 1986.

93. In proceedings 2019/21152 the Court makes the following Orders:

1. The Defendant is convicted as charged;

2. The Defendant is fined the sum of $50,000;

3. The Defendant is to pay the Prosecutor’s legal costs of the proceedings in the amount as may be determined under s 257B of the Criminal Procedure Act 1986.

94. The exhibits are returned.

**********

Amendments

13 December 2019 - At [92] replace 2019/21152 with 2019/21153.

At [93] replace 2019/21153 with 2019/21152.

Decision last updated: 13 December 2019