Environment Protection Authority v Hogan - [2008] NSWLEC 125

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Hogan [2008] NSWLEC 125

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
David Hogan

FILE NUMBER(S): 50038 of 2007

CORAM: Jagot J

KEY ISSUES: Prosecution :- sentence - person concerned in management of corporation that used premises as a waste facility when licence suspended - person taken to have contravened the same provision - mitigating factors on sentence - late entry of a guilty plea - utilitarian value of plea

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Protection of the Environment Operations Act 1997

CASES CITED: Environmental Protection Authority v HTT Huntley Heritage Pty Ltd (2003) 125 LGERA 333
R v O'Neill (1979) 2 NSWLR 582
R v Olbrich (1999) 199 CLR 270

DATES OF HEARING: 26 - 27 March 2008

DATE OF JUDGMENT:
31 March 2008

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr S T Flood
SOLICITORS
Environment Protection Authority
DEFENDANT
Mr D Hogan (in person)
SOLICITORS
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

31 March 2008

50038 of 2007

ENVIRONMENT PROTECTION AUTHORITY
Applicant

DAVID HOGAN
Respondent
JUDGMENT

1 The defendant, David Hogan, has pleaded guilty to the following charge:

…from about 12 May 2006 until about 21 June 2006, in Schofields in the said State, as a person concerned in the management of a corporation, namely Riverstone Earthmoving Pty Ltd, he committed an offence against section 144(1) of the Protection of the Environment Operations Act 1997…by reason of section 169(1) of the Act, in that the corporation, being the occupier of land, used it as a waste facility without lawful authority.

2 Under s 144 of the Protection of the Environment Operations Act 1997 (the POEO Act) a person who is the owner or occupier of any land and who uses the land, or causes or permits the land to be used, as a waste facility without lawful authority is guilty of an offence. A “waste facility” is defined in the Dictionary to the POEO Act as meaning “any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations)”.

3 The maximum penalty for contravention of s 144 of the POEO Act in the case of an individual is $250,000 and, for a continuing offence, a further penalty of $60,000 for each day the offence continues.

4 Section 169 of the POEO Act provides that:

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:
(a) (Repealed)
(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.
(2) A person may…

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.

Continue reading Environment Protection Authority v Hogan

Details

AGLC: Environment Protection Authority v Hogan [2008] NSWLEC 125
Case: [2008] NSWLEC 125
Decision Date: 31 March 2008

CaseChat Overview and Summary

David Hogan has been convicted in the Land and Environment Court of New South Wales for an offence under the Protection of the Environment Operations Act 1997 (POEO Act). Mr Hogan, as a person concerned in the management of Riverstone Earthmoving Pty Ltd, used land as a waste facility when the licence had been suspended. The court had to determine the appropriate penalty for Mr Hogan's involvement in the offence. The court considered factors such as the defendant's culpability, the potential for environmental harm, and the late entry of the guilty plea. The court found that the defendant's culpability was not trivial, given the significant potential for environmental harm in the waste management industry and the inadequate environmental management systems in place. The court also took into account the late entry of the guilty plea and its utilitarian value. The court ultimately decided on a penalty of $18,000, deducting 10% in recognition of the late plea, and ordered the defendant to pay the prosecutor's costs.

The court also addressed the defendant's belief that virgin excavated natural material (VENM) was not waste, which the court found to be in error. The court emphasised the importance of understanding the system of environmental regulation in New South Wales and the responsibilities of directors and those concerned in the management of corporations. The court concluded that the defendant's limited understanding of his responsibilities made it difficult to accept the guilty plea as a full and proper expression of remorse and contrition. The court found that the defendant's culpability was not trivial, given the potential for environmental harm in the waste management industry and the inadequate environmental management systems in place. The court also took into account the late entry of the guilty plea and its utilitarian value. The court ultimately decided on a penalty of $18,000, deducting 10% in recognition of the late plea, and ordered the defendant to pay the prosecutor's costs.

Orders