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Environment Protection Authority v Pal

Environment Protection Authority v Pal

Case [2009] NSWLEC 35 31 March 2009

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Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Pal [2009] NSWLEC 35
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Kate Maree Pal

FILE NUMBER(S): 50025 of 2007; 50026 of 2007

CORAM: Sheahan J

KEY ISSUES: PROSECUTION :- Tier 1 offence, plea of guilty, negligent disposal of waste, actual and likely environmental harm, totality principle, absence of contrition, capacity to pay fine etc, futility of orders, sentencing principles and options, need for general deterrence, community service

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Protection of the Environment Operations Act 1997
Crimes (Sentencing Procedure) Regulation 2005

CASES CITED: ACCC v Chen [2003] FCA 897
Aref Rahme (1989) 43 ACrimR 81
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234
Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683
Cobiac v Liddy (1969) 119 CLR 257
Environmental Protection Authority v Barnes [2006] NSWCA 246
Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349
Environment Protection Authority v Coggins [2003] NSWLEC 111 (2003) 126 LGERA 219
Environment Protection Authority v Douglass (No.2) [2002] NSWLEC 94
Environment Protection Authorityv Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147
Environment Protection Authority v Waight (No.3) [2001] NSWLEC 126
Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299
Environment Protection Authority v White (1996) 92 LGERA 264
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2004] FCA 1510
L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157
Mill v The Queen (1988) 166 CLR 59
R v JRD [2007] NSWCCA 55
R v O’Neill [1979] 2 NSWLR 582
R v Thomson; R v Houlton [2000] NSWCCA 309 (2000) 49 NSWLR 383
Smith v The Queen (1991) 25 NSWLR 1
Veen v R (1979) 143 CLR 458 and Veen v R (No.2) (1988) 164 CLR 465

DATES OF HEARING: 28-31 July 2008, 24-25 September 2008

DATE OF JUDGMENT:
31 March 2009

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr S Rushton SC (with Mr M Friedgut at the early stages)
SOLICITORS
Mr P Barley of Depatment of Environment and Climate Change
DEFENDANT
Mr T Ryan
SOLICITORS
Osborne Bricknell Howell

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

31 March 2009

50025 & 50026 of 2007 Environment Protection Authority v Pal
JUDGMENT

Introduction

1 His Honour: The defendant, Kate Maree Pal describes herself as having worked for many years as a “landfill consultant” (rather than the prosecutor’s description “Waste Broker”). She was the principal of a business known as Sydney Earthmoving Solutions, and a director, with her husband Mark, of the company Mattori Haulage Pty Ltd which owned and traded under that business name. (The company was first registered in 1995 and the business name in 1997, but Mr and Ms Pal ceased operating their…

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 Pal

Details

AGLC: Environment Protection Authority v Pal [2009] NSWLEC 35
Case: [2009] NSWLEC 35
Decision Date: 31 March 2009

CaseChat Overview and Summary

Kate Pal has pleaded guilty to two charges under section 115(1) of the Protection of the Environment Operations Act 1997. The court must now decide what penalty to impose. The charges allege that she negligently disposed of waste in a manner that harmed or was likely to harm the environment. The offences occurred at two properties in Cobbity. Pal was in control of the sites, and despite her having control, offending waste materials were dumped at the properties. The court has concluded that the estimates of 44,000 and 18,000 cubic metres respectively have been proven beyond reasonable doubt. The court has also concluded that the nature and quality of the waste can be seen in many photographs among the evidence. The court must fashion the "right" combination of penalties and other orders in criminal cases, and must take into account s241 of the POEO Act, and ss 3A, 5, and 21A of the Crimes (Sentencing Procedure) Act 1999, among which provisions there can be overlap. The court has concluded that a term of imprisonment does not appear to be appropriate in this case, even if suspended. The court has concluded that a community service order is appropriate to all the circumstances of this case, provided that it is accompanied by both a fine, and an order that the defendant pay the prosecutor's costs. The court has ordered that Pal is to be sentenced to 450 hours community service, and ordered to pay a fine of $45,000.

Orders