Environment Protection Authority v Hargraves (No 2) - [2003] NSWLEC 15

Reported Decision: 124 LGERA 57

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Hargraves [No. 2] [2003] NSWLEC 15

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Yolanda Hargraves

FILE NUMBER(S): 50120 of 2001 & 50121 of 2001

CORAM: Lloyd J

KEY ISSUES: Environmental Offences :- penalty - materially false or misleading information - purpose of sections 203 and 211 of the Protection of the Environment Operations Act 1997 - principle of totality - total criminality

LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 203(1), s 211 and s 241

CASES CITED: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Environment Protection Authority v Hargraves [2002] NSWLEC 113;
Ex parte Green Environmental Industries Limited [2000] 2 AC 412;
Mill v The Queen (1988) 166 CLR 59;
Pearce v The Queen (1998) 194 CLR 610;
R v Carr [2003] NSWCCA 434;
R v Holder [1983] 3 NSWLR 245;
R v Place (2002) 189 ALR 431

DATES OF HEARING: 17/10/2002

DATE OF JUDGMENT:
02/13/2003

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr D A Buchanan SC
SOLICITORS:
Stephen Garrett
DEFENDANT:
Mr C M Harris (Barrister)
SOLICITORS:
MatthewsFolbigg

JUDGMENT:

- 8 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50120 of 2001
50121 of 2001

Lloyd J

13 February 2003

Environment Protection Authority

Prosecutor

Yolanda Hargraves

Defendant

JUDGMENT [No. 2]

Introduction

1 On 11 July 2003 after a four-day hearing I found the defendant, Yolanda Hargraves, guilty of two offences against s 211(2) of the Protection of the Environment Operations Act 1997 (“the PEO Act”). That section states:

A person who furnishes any information or does any other thing in purported compliance with a requirement made under this Chapter [Ch 7], knowing that it is false or misleading in a material respect is guilty of an offence.

2 The detailed facts and circumstances which gave rise to the offence are set out in my previous judgment and need not be repeated (Environment Protection Authority v Hargraves [2002] NSWLEC 113). It is sufficient to note that an authorised officer of the prosecutor, Mr R J Harrison, had served a notice under s 193 of the PEO Act requiring Pyonex Pty Limited, a corporation of which the defendant and her husband are directors, to produce records of the amount of waste deposited at a landfill site. As a result of information received by Mr Harrison which suggested that the records thus produced were wrong, the defendant was required by Mr Harrison to answer questions pursuant to s 203(1) of the PEO Act. It is the defendant’s answers to questions asked of her during the course of that interview which are the subject of these charges.

3 In my previous judgment I found that the records created by the defendant were fictitious and were designed to deceive the council, which owned the landfill site. I further found that the defendant had a clear motive to…

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: [2003] NSWLEC 15
Decision Date: 02/13/2003

CaseChat Overview and Summary

In the case of Environment Protection Authority v Hargraves [No. 2], the Environment Protection Authority (EPA) prosecuted Yolanda Hargraves, a director of Pyonex Pty Limited, for two offences under the Protection of the Environment Operations Act 1997 (PEO Act). The charges stemmed from Hargraves providing materially false or misleading information to an EPA investigator during an interview conducted under s 203(1) of the PEO Act. The central legal issues revolved around the application of the principle of totality and the appropriate penalty for the defendant's conduct.

The court considered the gravity of the offence, noting that the maximum penalties for such violations are substantial, reflecting the seriousness of environmental offences. The court also acknowledged the principle of totality, which requires that the total penalty should reflect the overall criminality of the defendant's actions rather than merely summing individual penalties for each offence. In applying this principle, the court recognised that the two offences arose from the same interview, thereby necessitating a reduction in the aggregate penalty to avoid double punishment for a single act.

The court found Hargraves' conduct to be deliberate and without remorse, highlighting her lack of insight into the seriousness of her actions. Despite her claim of good character and improved record-keeping practices, the court determined that the penalty should serve both as a specific and general deterrent. Ultimately, the court decided on a penalty of $15,000 for each offence, adjusted to reflect the total criminality involved, while also ordering Hargraves to pay the prosecutor's costs.

In summary, the court's judgment underscored the importance of truthful information in environmental compliance and the need for penalties that appropriately reflect the totality of the offending behaviour. The court's decision aimed to deter similar conduct in the future while considering the specific circumstances of the case.

Orders