Environment Protection Authority v Green; Environment Protection Authority v Whites Haulage Pty Limited; Environment Protection Authority v Whites Timber Products Pty Ltd

[2024] NSWLEC 19

Land and Environment Court

New South Wales

Medium Neutral Citation:

Environment Protection Authority v Green; Environment Protection Authority v Whites Haulage Pty Limited; Environment Protection Authority v Whites Timber Products Pty Ltd [2024] NSWLEC 19

Hearing dates:

13 March 2024

Date of orders:

13 March 2024

Decision date:

13 March 2024

Jurisdiction:

Class 5

Before:

Pain J

Decision:

See below in [12].

Catchwords:

CRIMINAL PROCEDURE – sentence hearing – notices of motion seeking orders that sentence hearing in multiple matters be heard jointly granted

Legislation Cited:

Local Land Services Act 2013 (NSW)

Cases Cited:

Dwayhi v R; Bechara v R (2001) 205 A Crim R 274; [2011] NSWCCA 67

Environment Protection Authority v Snowy Hydro Ltd [2007] NSWLEC 822

Category:

Procedural rulings

Parties:

Environment Protection Authority (Prosecutor)
Michael James Green (Defendant, 2023/296757)
Whites Haulage Pty Limited (Defendant, 2023/296779)
Whites Timber Products Pty Ltd (Defendant, 2023/296768)

Representation:

Counsel:
H El-Hage SC (Prosecutor)
S Hall SC (Defendant, 2023/296757)
Dr S Smith (Defendant, 2023/296779, 2023/296768)

Solicitors:
Environment Protection Authority (Prosecutor)

File Number(s):

2023/296757-002, 2023/296779-002, 2023/296768-002

ex tempore JUDGMENT

1. Three Defendants have separately pleaded guilty to identical charges under the Local Land Services Act 2013 (NSW) arising from forestry activities on Mr Green’s land carried out by Whites Haulage Pty Ltd and Whites Timber Products Pty Ltd in 2021. The same notice of motion has been filed by the Prosecutor in each matter seeking orders that the sentencing hearings in all matters be heard jointly over two days and additional procedural orders that evidence in one hearing be evidence in another inter alia. Two separate sentencing hearings have already been allocated by the Court in 2023 with Mr Green’s hearing on 15 April 2024 and the two companies’ hearing on 31 May 2024.

2. The affidavit of Mr Caleb O’Brien solicitor dated 20 Feb 2024 read by the NSW Environment Protection Authority (EPA) identifies the procedural history with Mr Green pleading guilty on 17 November 2023 and the corporate Defendants on 15 December 2023 the last day of court term. On that day the Court was asked to make a note on the court file that the same judge hear both sentencing hearings.

3. The EPA’s notice of motion is dated 20 February 2024. The EPA was ready to proceed on the return date of the notice of motion on 1 March 2024. As the Defendants were not all ready to proceed the hearing of 13 March 2024 was allocated.

4. The EPA submits that the three offences arise from the same substratum of facts so that there is a large body of facts common across the three proceedings. Key differences on the version of the facts in relation to the responsibility of Mr Green on one hand and the corporate Defendants on the other for the activities which have given rise to the offences exist. Separate sentence hearings will increase the risk of conflicting findings on these key matters giving rise to the prospect of disparate sentences or hinder the ability of the Court to determine the extent of each offender’s responsibility and/or control over the offending conduct.

5. The Defendants oppose the notices of motion because of delay in making these applications by the EPA, the additional costs that are likely to be incurred if two days are allocated rather than the one day currently allocated to each Defendant and for Mr Green his expectation that his matter having been set down in November 2023 that it be dealt with in terms of the hearing in April 2024. Prejudice if orders are made requiring that the evidence in one proceeding be evidence in another and providing for the use of records of interview (ROIs) by the Defendants will also be occasioned to the Defendants.

Consideration

6. There is a large amount of common likely to be agreed facts which informs the circumstances of the offences. The main disputed matter is how instructions were provided and who is responsible for cutting down so many trees in breach of the Private Native Forestry Code of Practice for Southern NSW 2008which applied to the forestry activity the subject of the charges. That concerns the matter of culpability and will be an important element in the sentencing exercise the judge at hearing will need to make findings about.

7. The EPA has clarified for the first time in the course of argument that it intends to call the two directors of Whites Haulage Pty Ltd and Whites Timber Products Pty Ltd in Mr Green’s matter and will call Mr Green in the Whites Haulage Pty Ltd and Whites Timber Products Pty Ltd matters. It is anticipated that there will need to be viva voce evidence with cross-examination rather than reliance on ROIs. Given this circumstance I do not consider that it can be assumed that one day is sufficient for either sentencing hearing currently allocated.

8. The authorities identified in Environment Protection Authority v Snowy Hydro Ltd [2007] NSWLEC 822 at [4] and the observation made at [5] that these authorities establish that whenever possible it is highly desirable that co-offenders be sentenced by the same judge at the same time in order to facilitate the comparison of conduct apply here. The avoidance of disparity in sentencing is served in doing so. Similar observations are made in Dwayhi v R; Bechara v R (2001) 205 A Crim R 274; [2011] NSWCCA 67 at [44]-[45]. These principles apply in this matter suggesting that the matters should be sentenced together subject to consideration of the history of the matters to date.

9. The EPA no longer presses orders 4 and 7 in the notices of motion that the evidence in one matter be evidence in another and that the Defendants are given leave to tender ROIs, which addresses the procedural concerns giving rise to prejudice highlighted by the Defendants. The EPA will agree separate statements of fact with each Defendant in relation to which it is likely there will be substantial overlap.

10. Given that the EPA is no longer pressing orders that evidence in one matter be evidence in another the utility of vacating two current hearing dates to relist all matters on two days needs to be weighed up with the delay in making these applications given that the circumstances were known to the EPA on 15 December 2023 when the corporate Defendants pleaded guilty. The EPA obviously cannot control when pleas of guilty are entered and I note that this occurred on the last day of court term just before the law vacation. Mr Green was not before the Court on 15 December 2023 as he clearly was not required to be. It is not apparent that the applications made now could have been made on the last day of the court term. I do not consider the delay is such that the making of orders sought by the EPA is precluded.

11. Further, I am hopeful that dates can be found in May 2024 so that Mr Green in particular will not be greatly prejudiced by delay in the resolution of his matter.

12. Weighing up all these matters, and given that disputed central issues relating to culpability require that oral evidence be adduced it is highly desirable that the matters be heard together before the same judge and I will make necessary orders to give that effect.

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Decision last updated: 15 March 2024