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Environment Protection Authority v Hanna

Environment Protection Authority v Hanna

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Case Copied 23 June 2010 40 min read

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Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Hanna [2010] NSWLEC 98
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
PROSECUTOR
Environmental Protection Authority
DEFENDANT
Dib Hanna Abdallah Hanna

FILE NUMBER(S): 50001, 50002, 50003, 50004 of 2010

CORAM: Craig J

KEY ISSUES: ENVIRONMENTAL OFFENCES :- sentence - breach of s 143 of the Protection of the Environment Operations Act 1997 - dumping of demolition waste on public and private land without consent - deliberate and premeditated actions - seriosness of the offence - waste contaminated by asbestos - prior conviction for same offence - general and specific deterrence - totality principle

LEGISLATION CITED: Crimes Sentencing Procedure Act 1999
Environmental Trust Act 1998
Protection of the Environment Operations Act 1997
Protection of the Environment Operations (Waste) Regulation 2005
Waste Minimisation and Management Act 1995 (repealed)

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority [1993] 32 NSWLR 683; (1993) 82 LGERA 21
Capral Aluminium Ltd v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Nechakoski [2002] NSWLEC 61; (2002) 120 LGERA 426
Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Ltd [2005] NSWLEC 175
Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Hoare v The Queen (1989) 167 CLR 348
Pittwater Council v Scahill [2009] NSWLEC 12; (2009)165 LGERA 289
R v Dodd (1991) 57 A Crim R 349
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Wheeler [2000] NSWCCA 34
The Hills Shire Council v Suciu (No 3) [2009] NSWLEC 192
Veen v The Queen [1979] HCA 7; 143 CLR 458
Veen v The Queen (No 2) (1988) 164 CLR 465

DATES OF HEARING: 21 June 2010

EX TEMPORE JUDGMENT DATE: 23 June 2010

LEGAL REPRESENTATIVES:
PROSECUTOR
J C Giles, Barrister with D Hughes, Barrister
SOLICITORS
Department of Environment, Climate Change and Water
DEFENDANT
G Prichard, Solicitor as Agent for Kacir Safi Halligan;
P J Safi,
SOLICITORS
Kacir Safi Halligan

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

CRAIG J

23 JUNE 2010
10/50001,2,3,4 ENVIRONMENT PROTECTION AUTHORITY v DIB HANNA ABDALLAH HANNA

EX TEMPORE JUDGMENT

1 HIS HONOUR: The defendant, Dib Hanna Abdallah Hanna pleads guilty to four offences under s 143 of the Protection of the EnvironmentOperations Act 1997 (the POEO Act). He is now being sentenced for these offences.

2 The offences to which the defendant has pleaded guilty occurred on four separate occasions between July and October 2009. Each involved the depositing of demolition…

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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Details

Case: [2010] NSWLEC 98
Decision Date: 23 June 2010

CaseChat Overview and Summary

The defendant, Dib Hanna Abdallah Hanna, has pleaded guilty to four offences under section 143 of the Protection of the Environment Operations Act 1997, involving the illegal dumping of demolition waste on public and private land. The court considered the objective gravity of the offences, which included the harm to the environment, the deliberate and premeditated nature of the actions, and the need for both specific and general deterrence. Aggravating factors included prior convictions for similar offences, while mitigating factors included the relatively modest clean up costs and the defendant's late plea of guilty. The court determined that an aggregate penalty of $104,000 was appropriate, taking into account the totality principle. The court also ordered the defendant to pay the penalty to the Environmental Trust and to publish a notice of conviction in local newspapers.

Orders