Environment Protection Authority v Hunter

[2003] NSWLEC 32

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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: Environment Protection Authority DEFENDANT: Gregory Charles Hunter
FILE 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, unreported
DATES OF HEARING:	09/12/2002
DATE OF JUDGMENT:	02/17/2003
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr C McElwain (solicitor) SOLICITORS: Stephen Garrett DEFENDANT: Mr G J Bellew (barrister) SOLICITORS: Short Flynn & Co

JUDGMENT:

- 12 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50079 of 2002

Lloyd J

17 February 2003

Environment Protection Authority

Prosecutor
v

Gregory Charles Hunter

Defendant

JUDGMENT

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 facility (“the GTWT facility”) on land adjoining the West Ballina Sewerage Treatment Works, owned and operated by Ballina Shire Council (“the council”).

5 Summerland held a trade waste approval to discharge trade waste to the sewer from the Department of Land and Water Conservation and Ballina Shire Council. On 25 January 2001 the GTWT facility was complete, but not all the conditions of the development consent relating thereto had been fulfilled; it was not yet fully operational and was not permitted to discharge any waste to the adjacent Sewerage Treatment Plant. Summerland had accepted the delivery of grease trap waste to the GTWT facility prior to 25 January 2001 and this was contained in a tank on the premises.

6 On 25 January 2001 at the request of Mr Briffa, the defendant removed several thousand litres (between three and four tonnes) of grease trap waste from the tank at the GTWT facility and took it to a property owned by Mr I R Arthur. The defendant had previously telephoned Mr Arthur and said:

[The defendant]: Fred wants to do something about this waste. Do you wand a load of it? It stinks so we won’t dump it near the house but he tells me it can be used as a fertiliser because it has chemical properties in it.
[Mr Arthur] said: Yes, that’d be all right. We will try it out.

7 The defendant then telephoned Mr R J Date of Ballina Plant Hire to organise a second tipper truck. On the morning of 25 January 2001 the defendant went to the GTWT facility with Mr Date. They each had a tipper truck. The defendant lined each of the trucks with a plastic lining and Mr Date used a mini-excavator to move the contents of the tank into the trucks. Initially the substance was relatively solid but as the transfer process proceeded it became less so. Nevertheless the defendant was confident that the material could be transported without fear of spillage, particularly as the tray of each truck had been lined with plastic.

8 Both the defendant and Mr Date then transported the grease trap waste through the outskirts of Ballina to Mr Arthur’s property at Pimlico. During transportation, some of the waste spilt from the defendant’s truck onto the roadway at several locations, including road intersections of the Pacific Highway.

9 Mr Arthur’s property comprises 38 acres of land and has a house together with tourist facilities on it. Approximately four to five cubic metres of greasy waste material was spread over 12 to 14 square metres of that land.

10 Ballina Shire Council was alerted later that morning as to the spilt grease trap waste on the roads after receiving two telephone complaints from the public. A significant amount of greasy semi-solid grease trap waste was found lying in the middle of the road at the intersection of the Pacific Highway and Fishery Creek Road and at some other locations. At the intersection of Coolgardie Road and the Pacific Highway it was observed that cars were unable to grip the road surface and vehicle wheels were spinning on the greasy surface.

11 The defendant was interviewed later that day by officers of Ballina Shire Council. The defendant said that he had arranged for Mr Date’s tipper truck to take some grease trap waste from the GTWT facility to a property owned by Mr S Smith, an employee of Summerland. The defendant said that there was only one tipper truck involved. When asked why he had arranged the job and whether he thought the transport of grease trap waste through Ballina in tipper trucks would be noticeable the defendant responded by saying: “We were just trying to help out a mate. Sure we fucked up. So give us a slap on the wrist and a fine”. When another officer of Ballina Shire Council arrived and said that Mr Date claimed that two tripper trucks were involved, the defendant then admitted that the other truck involved was his. After further discussion, the defendant admitted that the grease trap waste did not go to Mr Smith’s property but to Mr Arthur’s property. Ballina Shire Council undertook the clean-up operations of the grease trap waste spilt onto roadways on the day of the incident.

12 Generally untreated grease trap waste has the following characteristics:

(a) It has a strong, pungent, sulphuric type odour, similar to rotten-egg gas;

(b) It contains a significant proportion of non-mineral grease (derived from plants and animals) and oil;

(c) It might contain a proportion of heavy metals such as aluminium, copper and zinc;

(d) It contains some complex organic matter such as food waste; and

(e) It contains some of the plant nutrients, in particular nitrogen and phosphorus.

13 Grease trap waste is typically collected and transported in enclosed tanker trucks. It is not suitable for use as a fertiliser and is unlikely to improve soil fertility or make the soil more productive for growing crops.

14 Although the grease trap waste was spilt onto public roads and deposited on land not far from residential premises, there was no environmental harm to any land or waterways. If there had been heavy rain either at or shortly after the time of the spills, then there would have been a higher likelihood of environmental harm. The waste was cleaned up by Ballina Shire Council on the same day using street-sweeping trucks and by covering the remaining residue with sand. However, the waste gave off a strong pungent odour which lingered for many days, despite the clean-up operations. Some residents were affected by the odour and had to keep their windows and doors shut. Road users were at risk from grease trap waste spilt on the roads. A notice was issued by Ballina Shire Council to Summerland to recover the costs of its clean-up in the sum of $3,685, which was subsequently paid.

15 The defendant had agreed to transport the waste for a contract fee of $50 per hour and he estimated that it would take him approximately three hours to complete the work. He thus stood to earn the sum of $150 in total for the work.

Considerations on Penalty

16 I turn, firstly, to the statutory considerations arising under s 241(1) of the PEO Act.

17 Although the waste was cleaned up from the public roads by Ballina Shire Council on the day of the offence, the waste gave off a strong pungent odour which lingered for many days. Local residents were affected by the odour, which could be smelt inside their homes even with all the doors and windows closed. At one property the residents kept doors and windows closed for about four to five days after the event.

18 There were potentially serious consequences as a result of the waste being spilt on roads, particularly at two different intersections on the Pacific Highway. The tyres of cars became coated in grease trap waste and this had the potential to cause accidents. If there had been heavy rain then there would have been a strong likelihood of environmental harm to nearby waterways.

19 The waste should not have been transported at all. In any event, even after agreeing to transport the waste the defendant used two open-top tipper trucks, with drop-down sides and rear, which are clearly not suitable for transporting semi-liquid grease trap waste. It is submitted on behalf of the defendant that he did not act in total disregard for the environment, to the extent that he lined the trucks before loading the waste. It must be self-evident, however, that the transport of foul-smelling semi-liquid waste in this manner was imprudent.

20 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.

(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence

21 The defendant had complete control, including the loading, transportation and disposal of the waste. Moreover the defendant arranged for Mr Date to supply a second truck and an excavator to perform the task. The defendant arranged with Mr Arthur to dump the waste on the latter’s property.

(e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee.

22 This consideration is not applicable.

Other considerations

23 The offence occurred on 25 January 2001. The summons was not issued until 13 August 2002, being more than 18 months later. In the submission of Mr G J Bellew, appearing for the defendant, there appears to be no explanation for the subsequent delay in commencing the prosecution. The investigation of the offence was carried out on the day the offence was committed and was completed shortly thereafter. Mr Bellew submits that in these circumstances the delay amounts to a powerful mitigating factor in terms of penalty. Reliance was placed on R v Liang (1995) 124 FLR 350 at 356, 82 A Crim R 39 at 45; R v Schwabegger [1998] VR 649; R v Todd [1982] 2 NSWLR 517 and R v Gay [2002] NSWCCA 6.

24 R v Liang is referred to by Vincent AJA (as he then was) in R v Schwabegger. Vincent AJA said:

Delay which is not attributable to the offender, of course, constitutes “a powerful mitigatory factor”: R v Liang and Li (1995) 82 A Crim R 39 at p45. It can have relevance at a number of levels. In R v Duncan (1982) 9 A Crim R 354 the Court of Criminal Appeal of Western Australia stated:
…
The very fact of the long delay in bringing the matter to Court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf. (at p 356-p 357)
Further, there is, in my opinion, a serious incongruity between the assertion that an offence is serious and that the courts must, through the sentences they impose, endeavour to limit its incidence, on the one hand, and such a leisurely progression of the criminal justice proceedings which follow its commission that literally years pass before the matter comes before the Court, on the other. For a number of reasons, the investigation and prosecution of criminal conduct should be conducted as quickly as is reasonably practicable if the objectives of the system are to be attained. Additionally, a legitimate sense of unfairness can develop when the criminal justice process proceeds in what can be perceived as too leisurely a fashion. Street CJ adverted to these considerations when he stated in R v Todd (1982) NSWLR 513:
Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence; to the circumstances that had been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of offences, calls for considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence – at times this can require what might otherwise be quite an undue degree of leniency being extended to the prisoner. (at p519)

25 Similarly, Kenny JA held in R v Schwabegger that the primary judge had fallen into error in failing to give sufficient weight to the effect of the lengthy and unexplained delay between the detention and investigation of the offences with which the applicant was charged, and the date of the plea and sentence. Her Honour also said:

In R v Miceli (Court of Appeal, unreported, 23 June 1997) which was also an application for leave to appeal against sentence, Tadgell JA (with whom Winneke P and Charles JA agreed) considered the effect of a delay of about two years between the detection of and prosecution for an offence against s29D of the Crimes Act 1914 (Cth). At p6, his Honour said that:
There is no doubt that proper sentencing principles dictate that undue delay in the disposition of a charge should work in favour of a prisoner being sentenced. The remarks of Sir Laurence Street in R v Todd [1982] 2 NSWLR 517 at p519 and p520 have not infrequently been adopted by this court upon the point. …

26 In R v Schwabegger the charges were five counts of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth) by falsely representing income tax to the Commissioner of Taxation in five income tax returns. The Court regarded as extraordinary the unexplained delay between detecting the offences in 1990, or interviewing the applicant in May 1991, and charging him with the offences in 1997.

27 In R v Todd, Street CJ (Moffitt P and Nagle CJ concurring) said (at 519) that where there has been a lengthy postponement in sentencing, fairness requires that weight be given (inter alia) to the circumstance that the defendant has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach. The Chief Justice then continued (at 519-520):

…passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

28 In R v Todd there was a delay of five years between the commission of the offences (being armed robbery, assault with violence and intent to rob, and larceny of a motor vehicle) and the sentencing.

29 More recently, in R v Gay, Mason P (Hulme and Hidden JJ concurring) expressly agreed with Vincent AJA in Schwabegger. This was another tax fraud case. The defendant faced five charges against s 29D of the Crimes Act (Cth) for failing to declare part of his income in his personal tax returns and five other charges of being knowingly concerned in the failure by a company to declare part of its income in income tax returns. In that case the summonses instituting the proceedings were issued almost three years after the defendant made admissions in a police interview, upon which the prosecutions were based. Mason P said (at par [15]) that it is well established that fairness may require a court to reduce what might otherwise be an appropriate sentence. The President then continued:

The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach.

30 Mason P then referred to the judgment of Vincent AJA in R v Schwabegger and expressed his agreement therewith.

31 The prosecutor relies, on the other hand, on a judgment of the Industrial Relations Commission of NSW in court session (Wright P, Walton V-P and Peterson J) in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 463. In that case a prosecution had been brought for a breach of s 15(1) of the Occupational Health and Safety Act 1983 (NSW) being a failure to ensure the health, safety and welfare at work of the appellant’s employees. The proceedings were commenced five days before the expiration of the two-year limitation period for the commencement of a prosecution under that Act. The Commission did not believe that the case was one which required greater leniency because of the delay in bringing the prosecution. In a joint judgment, the Commission adopted (at 477) what was said by Peterson J in an earlier case, WorkCover Authority of NSW (Insp May) v Jewel Food Stores Pty Ltd (NSWIRComm, 1 May 1998, unreported). In that case, Peterson J, after referring to the judgment of Street CJ in R v Todd, said:

The facts in that case were that the accused had committed armed robberies in New South Wales and further armed robberies in Queensland in respect of which he was charged and convicted, spending a number of years in a Queensland penal institution. Upon his release he was charged in New South Wales in relation to the earlier offences. An immediate dissimilarity, in my view, can be seen with the facts of the present matter. The OHS [Occupational Health and Safety] Act provides for the institution of proceedings within 2 years of an offence. To have an offence at trial 2.5 years after the date of the offence does not introduce the notion, in the relevant sense, of staleness. Accordingly, undue or additional leniency is not available.

32 The joint judgment of the Commission then continues (at 478):

As Peterson J observes, proceedings in relation to an offence under the OH&S Act must be commenced within two years after the act or omission alleged to constitute the offence: see s 49(1). Where the legislature has provided a relatively short period in which a prosecution may be brought, it would, in our view, be an exceptional case in which leniency should be granted by reason of delay where the prosecution is commenced within that period. Furthermore, in Todd , Street CJ indicated (at 519) that the rationale for granting leniency in circumstances of delay is that the offender is left in a state of “uncertain suspense”. In light of this reasoning, it is unlikely that justification could be found for granting leniency where the case concerns a corporation of considerable size: see Comptroller-General of Customs v D’Auino Bros Pty Ltd (1996) 135 ALR 649 at 675.

33 The prosecutor similarly relies upon the fact that the period within which the present offence must be prosecuted under the PEO Act is three years (s 216(1)). It is submitted that the commencement of prosecution some 18 months before the expiry of the limitation period is not evidence of delay. The judgments of the Court of Appeal in Todd and in Gay are, of course, binding upon me. I thus fully accept the principle explained by Street CJ in Todd and by Mason P in Gay. But the question remains as to whether it can be said in the present case that there was so lengthy a delay that as to lead to a lack of fairness to the defendant.

34 It seems clear that the periods of delay in the cases relied upon by Mr Bellew were considerable. In Liang the delay was about three years. In Schwabegger it was nearly four years. In Todd it was five years. In Gay it was about three years.

35 The defendant in the present case has been working as a building contractor in Victoria for the last 18 months. It is thus apparent that about six months after the offence he moved to Victoria. He says that he did so because there was more work there. The investigation of the offence was carried out on the day it occurred and was completed within a few weeks after that. This is an uncomplicated case involving simple facts with full admissions having been made on the day of the offence by the defendant, by Mr Date and by Mr Briffa of Summerland. It is reasonable to expect that when the defendant had heard nothing further before moving to Victoria six months later, and then re-established himself in Victoria, that the incident was forgotten. It would have no doubt come as a complete surprise to the defendant to be served with the summons in Victoria some 12 months after having moved there.

36 Although the PEO Act allows three years for the commencement of proceedings for an offence under the Act, that does not mean that prosecution may proceed at a leisurely pace. Some prosecutions are no doubt complicated and cannot be commenced until there has been a lengthy investigation. That is not the case here. The authorities, in particular those that are binding upon me, require that consideration be given to the situation of the defendant. In Lawrenson Diecasting, the full bench of the Industrial Relations Commission declined to extend leniency where the case concerned a corporation of considerable size. This is not the case here, where the defendant is an individual carrying on a small business as a building contractor. A legitimate sense of unfairness could be felt when, some 12 months after having re-established himself in Victoria, the defendant was served with summons relating to the event that occurred some 18 months earlier. These circumstances suggest that a degree of leniency should be extended to the defendant.

37 A delay of six months in the commencement of proceedings for a similar offence was accepted as a mitigating factor by the Environment Resources and Development Court of South Australia in Harvey v Gogel [2002] SAERDC 101.

38 In Canada, prejudice to a defendant caused by delay in prosecuting a matter was considered to be relevant by Lamer J (as he then was) in Mills v The Queen (1986) 26 CCC (3d) 481 (SCC) at 538-539. I agree 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.

39 The defendant earned a taxable income of $60,000 from his building activities in the financial year ending 30 June 2002. He is in a de facto relationship with three children, the youngest two of whom are financially dependent upon him. The defendant thus has a limited capacity to pay a substantial fine, a matter which the Court is required to take into consideration under the Fines Act 1996 (s 6). The defendant has not previously been convicted of any offence under the PEO Act, nor of any similar offence, although he has volunteered information that he does have convictions for unrelated matters.

40 The defendant indicated his plea of guilty at the earliest available opportunity, being the first occasion on which the matter was before the Court. The timing of the plea is the primary consideration in determining the extent of discount on sentence on a plea of guilty (R v Thomson (2000) 49 NSWLR 383 at 419).

41 In R v Thompson the Court of Criminal Appeal held that the utilitarian value of a plea of guilty should generally be assessed in the range of 10 to 25 per cent discount on sentence, with a total maximum discount of up to 35 per cent encompassing all relevant matters.

42 Although the defendant did not notify the prosecutor of the incident, nor did not attempt to clear up the material spilt on the roadways, and when first questioned, made a series of statements that were not true, I am prepared to allow him the maximum discount of 35 per cent in this instance, after allowing as mitigating factors the 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.

43 The maximum penalty for this offence is, in the case of a corporation, $250,000; and in the case of an individual, $120,000. The appropriate penalty for an offence of this seriousness is, in my opinion, $23,000, which should be discounted by 35 per cent for the mitigating factors to which I have referred.

44 The orders of the Court are:

(1) The defendant is convicted of the offence as charged.
(2) The defendant must pay a penalty in the sum of $15,000.
(3) The defendant must pay the prosecutor’s costs in accordance with s 52(2) of the Land and Environment Court Act 1979.
**********

I hereby certify that the preceding 44 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate

Dated: 17 February 2003