Environment Protection Authority v Hunter - [2003] NSWLEC 32

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

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…

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 Hunter

Details

AGLC: Environment Protection Authority v Hunter [2003] NSWLEC 32
Case: [2003] NSWLEC 32
Decision Date: 02/17/2003

CaseChat Overview and Summary

In the case of Environment Protection Authority v Hunter, the defendant, Gregory Charles Hunter, was prosecuted for transporting waste in an unlawful manner. Hunter pleaded guilty to the charge of transporting waste to a place that could not lawfully be used as a waste facility for that waste, in violation of section 143(1)(a) of the Protection of the Environment Operations Act 1997. The court had to decide on the penalty to be imposed on the defendant, considering factors such as the harm caused by the spillage, the defendant's control over the situation, and the delay in bringing the prosecution. The court found that the delay in commencing the prosecution was a powerful mitigating factor in terms of 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. The court decided on a penalty of $15,000, which was discounted by 35 per cent for the mitigating factors.

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