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
PROSECUTOR Mr P Brown (solicitor) SOLICITORS Department…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
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.