Environment Protection Authority v Nechakoski - [2002] NSWLEC 61

Reported Decision: (2002) 120 LGERA 426

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Nechakoski [2002] NSWLEC 61

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Nechakoski

FILE NUMBER(S): 50080 of 2001 and 50081 of 2001

CORAM: Pearlman J

KEY ISSUES: Environmental Offences :- unlawful transporting of waste - charge under Waste Minimisation and Management Act 1995 - charge under Protection of the Environment Operations Act 1997 - plea of guilty - appropriate penalty having regard to different maximum penalties available - environmental harm - wetland

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 10(3)
Environmental Offences and Penalties Act 1989 s 8DA
Protection of the Environment Operations (Savings and Transitional) Regulation 1998 cl 17
Protection of the Environment Operations Act 1997 s 143(1)
Waste Minimisation and Management Act 1995 s 63(1)

CASES CITED: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Queen v O'Neill [1979] 2 NSWLR 582;
R v Holder (1983) 3 NSWLR 245;
R v Jurisic (1998) 45 NSWLR 209

DATES OF HEARING: 04/04/2002

DATE OF JUDGMENT:
05/03/2002

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr D Jordan (Barrister)
SOLICITORS
Environment Protection Authority
DEFENDANT
Mr M H Baird (Barrister)
SOLICITORS
Palmieri

JUDGMENT:

IN THE LAND AND 50080 of 2001 and 50081 of 2001
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 3 May 2002

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

JOHN NECHAKOSKI

Defendant

JUDGMENT

Introduction

1. The defendant, Mr J Nechakoski, has pleaded guilty to two charges of transporting waste to a place that could not lawfully be used as a waste facility for that waste.

2. A complicating factor in this case is that the applicable legislative regime changed during the commission of the offence. This resulted in the defendant being charged with two offences, one under s 63(1) of the Waste Minimisation and Management Act 1995 (“the Waste Act”), and the other under s 143(1) of the Protection of the Environment Operations Act 1997 (“the POEO Act”). Whilst the nature of the offence is identical under each Act, the penalty for each offence is different.

Factual background

3. The parties prepared an agreed statement of facts from which the following background is derived.

4. The defendant carries on a demolition and earthmoving business that trades under the name “J & M Spero Demolition”, and has done so for about 25 years.

5. In early 1999, the defendant entered into a contract for the demolition of structures and the removal of materials from the St Joseph’s Nursing Home site at Sandgate. At around the same time, the defendant also had a contract for the demolition of an old bowling club in Mayfield.

6. Between 20 April 1999 and 30 June 1999, and on 7 July 1999, the defendant instructed his employees and contractor to transport the demolition waste from these two properties to a property located at 65 Nelson Bay Road, Fullerton Cove (“the site”) owned by the defendant’s cousin, Mr T Sorcevski. A total of around 5,288 tonnes…

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: [2002] NSWLEC 61
Decision Date: 05/03/2002

CaseChat Overview and Summary

The defendant, Mr John Nechakoski, pleaded guilty to two charges of transporting waste to a location that could not lawfully be used as a waste facility. The charges stemmed from two separate pieces of legislation: the Waste Minimisation and Management Act 1995 and the Protection of the Environment Operations Act 1997. The defendant transported approximately 5,288 tonnes of mixed demolition waste to a property owned by his cousin in Fullerton Cove. The site was zoned as a Rural Flood Plain and required development consent for waste placement, which was not obtained. The court had to determine the appropriate penalties for the two offences, considering the maximum penalties available under each Act and the mitigating factors presented by the defence.

The court considered various factors in determining the penalty, including the extent of environmental harm, the foreseeability of the harm, and the defendant’s cooperation and previous good character. The experts testified on the environmental harm caused by the waste deposition, with the court finding that the site was likely a seasonally flooded wetland, and the waste had flattened trees, smothered vegetation, and impacted flora and fauna. The court determined that the defendant could have reasonably foreseen the harm and that the offence was a sustained course of action. The court also acknowledged mitigating factors such as the defendant's early guilty plea, full cooperation, and extensive community work.

The court decided to apply the principle of totality, considering the overall criminality of the two offences against the relative amounts of waste transported under each Act. The offence under the Waste Act, involving 95% of the waste, was deemed more serious than the offence under the POEO Act, which involved the remaining 5%. The court imposed a penalty of $21,000 for the offence under the Waste Act and $10,000 for the offence under the POEO Act, taking into account the mitigating factors and the principle of totality. The court also ordered the defendant to pay the prosecutor’s costs and return the exhibits.

Orders