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Reported Decision: 124 LGERA 73
Land and Environment Court
of New South Wales
CITATION: Environment Protection Authority v Hunter [2003] NSWLEC 32 PARTIES: PROSECUTOR:
DEFENDANT:
Environment Protection Authority
Gregory Charles HunterFILE NUMBER(S): 50079 of 2002 CORAM: Lloyd J KEY ISSUES: Prosecution :- unlawful transport of grease trap waste - plea of guilty - mitigation - delay in bringing proceedings - fairness - penalty LEGISLATION CITED: Crimes Act 1914 (Cth) s 29D
Fines Act 1996 s 6
Land and Environment Court Act 1979 s 52(2)
Occupational Health and Safety Act 1983 (NSW) s 15(1) and 49(1)
Protection of the Environment Operations Act 1997 s 143(1)(a), s 216(1) and s 241(1)CASES CITED: Comptroller- General of Customs v D' Auino Bros Pty Ltd (1996) 135 ALR 649;
Harvey v Gogel [2002] SAERDC 101;
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 463;
Mills v The Queen (1986) 26 CCC (3d) 481 (SCC);
R v Gay [2002] NSWCCA 6;
R v Liang (1995) 124 FLR 350, 82 A Crim R 39;
R v Miceli, NSWCA, 23 June 1997, unreported;
R v Schwabegger [1998] VR 649;
R v Thomson (2000) 49 NSWLR 383;
R v Todd [1982] 2 NSWLR 517;
WorkCover Authority of NSW (Insp May) v Jewel Food Stores Pty Ltd, NSWIRComm, 1 May 1998, unreportedDATES OF HEARING: 09/12/2002 DATE OF JUDGMENT:
02/17/2003LEGAL REPRESENTATIVES: DEFENDANT:
PROSECUTOR:
Mr C McElwain (solicitor)
SOLICITORS:
Stephen Garrett
Mr G J Bellew (barrister)
SOLICITORS:
Short Flynn & Co
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
50079 of 2002
17 February 2003Lloyd J
- Prosecutor
- Defendant
- Introduction
1 The defendant, Gregory Charles Hunter, has pleaded guilty to a charge that, on or about 25 January 2001 at or near Ballina in the State of New South Wales, he committed an offence against s 143(1)(a) of the Protection of the Environment Operations Act 1997 (“the PEO Act”) in that he did transport waste to a place that cannot not lawfully be used as a waste facility for that waste.
- The facts
2 The relevant facts are derived from an agreed statement of facts and from an affidavit sworn by the defendant. Those facts may be briefly described as follows.
3 The defendant is a licensed builder by trade and is a director of Hunter & Hunter Pty Ltd, building contractors. For a number of years prior to the offence being committed he had been working full-time as a building contractor in and around Ballina. During the course of the year 2000 he experienced a downturn in the building trade and started to supplement his income by hiring out his bobcat and tipper truck on a “one off” contract basis.
4 In 2000 the defendant was hired by Mr A F Briffa of Summerland Pumping Services (“Summerland”) to undertake building work on the establishment of a grease trap waste treatment…
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- AGLC
- Environment Protection Authority v Hunter [2003] NSWLEC 32
- Case
- [2003] NSWLEC 32
- Decision Date
CaseChat Overview and Summary
The court's reasoning was based on several legal principles. Firstly, the court considered the statutory considerations arising under section 241(1) of the PEO Act. The court found that the harm or likely harm described above was clearly foreseeable. Moreover, throughout the process of transporting the waste the defendant was aware of spillages onto the roads but continued with his course of conduct. Secondly, the court considered the delay in bringing the prosecution. The court found that the delay amounted to a powerful mitigating factor in terms of penalty. The court relied on several cases to support its decision, including R v Liang, R v Schwabegger, R v Todd, and R v Gay. The court found that unexplained delay in bringing prosecution proceedings, which causes prejudice to a defendant, amounts to a mitigating factor when considering the question of sentence or penalty. The court also took into account the defendant's limited capacity to pay a substantial fine, his early plea of guilty, and the legitimate sense of unfairness relating to the delay between the date of the offence and the commencement of the prosecution.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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