Environment Protection Authority v Ghossayn

Case [2009] NSWLEC 181



Land and Environment Court


of New South Wales


CITATION: Environment Protection Authority v Ghossayn [2009] NSWLEC 181
PARTIES:

PROSECUTOR
Environment Protection Authority

DEFENDANT
George Ghossayn
FILE NUMBER(S): 50037 of 2008; 50038 of 2008
CORAM: Pepper J
KEY ISSUES:

PROSECUTION :- licenced waste facility - breach of s 126 of the Protection of the Environment Operations Act 1979 - guilty plea - air pollution - smouldering sub-surface fires and offensive odour - neighbouring property affected - sentencing considerations - defendant director with control over premises at all times - company with prior environmental convictions - only one director charged - forseeability of risk of harm - minimal environment harm - harm to regulatory regime - penalty

PROSECUTION :- waste facility without lawful authority - breach of s 144 Protection of the Environment Operations Act 1979 - guilty plea - failure to pay waste contributions to council - notice of suspension of facility - breach of notice of suspension - waste continued to be accepted despite suspension - s 10 of the Crimes (Sentencing Procedure) Act 1999 not appropriate - penalty
LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss 3A, 10, 21A and 22
Protection of the Environment Operations Act 1997 ss 3, 55, 88, 132, 126, 144, 169, 212 and 241
Waste Avoidance and Resource Recovery Act 2001 s 3
CASES CITED: Axer Pty Ltd v Environment Protection Authority (2001) 113 LGERA 357
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234
Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137
Dodds v R [2009] NSWCCA 191
Director of Public Prosecutions (Cth) v Said Khodor El Karhani (1990) 21 NSWLR 370
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Burrangong Meat Processors Pty Ltd [2003] NSWLEC 102
Environment Protection Authority v Caltex Refineries (NSW) Pty Limited [2006] NSWLEC 335
Environment Protection Authority v Coastal Recycled Cooking Oils Pty Limited [2008] NSWLEC 242
Environment Protection Authority v Fulton Hogan Pty Ltd [2008] 163 LGERA 345
Environment Protection Authority v Hogan [2008] NSWLEC 125
Environment Protection Authority v Werris Creek Coal Pty Ltd; Environment Protection Authority v Holley [2009] NSWLEC 124
Environmental Protection Authority v Obaid [2005] NSWLEC 171
Eurobodalla Shire Council v Leth [2007] NSWLEC 599
Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189
Kari & Ghossayn Pty Limited v Sutherland Shire Council (2006) 150 LGERA 231
Markarian v The Queen (2005) 228 CLR 357
PHAM v R [2009] NSWCCA 25
Pittwater Council v Scahill (2009) 165 LGERA 289
R v Kerr [2003] NSWCCA 234
Thorneloe v Filipowski (2001) 52 NSWLR 60
Veen v The Queen (1979) 143 CLR 458
DATES OF HEARING: 19 May 2009
 
DATE OF JUDGMENT: 

23 October 2009
LEGAL REPRESENTATIVES:

PROSECUTOR
Mr P Brown (solicitor)
SOLICITORS
Department…

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Environment Protection Authority v Ghossayn [2009] NSWLEC 181
Case
[2009] NSWLEC 181
Decision Date

CaseChat Overview and Summary

Environment Protection Authority v Ghossayn is a decision of the Land and Environment Court of New South Wales. The defendant pleaded guilty to two offences against ss 126(1) and 144 of the Protection of the Environment Operations Act 1997. The offences concern a waste facility located at 7-23 Clifton Avenue, Kemps Creek, in the Penrith Local Government Area. The defendant was a director of Kari & Ghossayn Pty Ltd, which operated a waste facility receiving mainly building and demolition waste on the site. The company had operated this facility since approximately 1981. The defendant was charged with a breach of s 126 of the Act for dealing with materials in such a manner as to cause air pollution. This was caused by the failure of the defendant to deal with those materials in a proper and efficient manner. The defendant was also charged with using land as a waste facility without lawful authority. The defendant had been served with a notice of suspension on 16 February 2007 but nevertheless continued to accept waste onto the site. The defendant submitted that there was no plan to stockpile waste, but that it was a matter of accident, inasmuch as Cell 2A was not completed before Cell 1 was full. The defendant relied on a number of mitigating factors, including his lack of prior convictions, his guilty plea, his cooperation with authorities, and the relatively minor harm caused by the commission of the offences. The Court held that the objective gravity of the offence was relatively low, but that the subjective circumstances of the defendant mitigated the sentence that was to be imposed. The Court considered the purposes for which a court may impose a sentence, including deterring others from committing similar offences, deterring the defendant from committing a similar offence in the future, and ensuring that the defendant is made accountable for his actions and is adequately punished for the offences he has committed. The Court held that a fine of $51,000 was appropriate, taking into account the totality principle.

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