Environment Protection Authority v Pal (No.2)

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v Pal (No.2) [2009] NSWLEC 60

PARTIES:

PROSECUTOR
Environment Protection Authority

DEFENDANT
Kate Maree Pal

FILE NUMBER(S):

50025 of 2007; 50026 of 2007

CORAM:

Sheahan J

KEY ISSUES:

PROSECUTION :- application to reopen; offender re-sentenced in each matter, rather than globally;

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999

CASES CITED:

Aref Rahme (1989) 43 A Crim R 81
Cabonne Shire Council v EPA [2001] NSWCCA 280, (2001) 115 LGERA 304
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Environment Protection Authority v Barnes [2006] NSWCA 246
Environment Protection Authority v Pal [2009] NSWLEC 35
Erceg and Virgin v District Court and Anor [2003] NSWCA 379, (2003) 143 A Crim R 455

DATES OF HEARING:

28 April 2009

EX TEMPORE JUDGMENT DATE:

28 April 2009

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr P Barley of Department 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

28 April 2009

50025 of 2007

50026 of 2007 Environment Protection Authority v Pal (No.2)

EXTEMPORE JUDGMENT

Introduction

1 His Honour: I delivered my principal judgment in these two matters on 31 March and imposed penalties on Ms Pal for the two waste offences to which she had pleaded guilty at the commencement of her trial – see Environment Protection Authority v Pal [2009] NSWLEC 35.

2 Both parties have now jointly asked me to reopen the proceedings under s43 of the Crimes (Sentencing Procedure) Act 1999 (“the Act”), and having heard from their legal representatives I propose to grant their application and deal with the matter immediately.

3 The basis of the application is set out in a letter from the Prosecutor dated 7 April 2009 in the following terms:

“ The parties bring to your attention paragraph 13 of your Honour’s judgment in which your Honour states that it is ‘common ground that the maximum penalties against which Ms Pal is to be sentenced are four years imprisonment and/or a fine of $500,000’. The parties jointly and respectfully suggest that the maximum fine that could have been imposed on the defendant in respect for each of the two offences was $250,000 – this being the maximum fine available at the time the offences were committed and before the maximum fine was increased to $500,000 on 1 May 2006.
In this respect, I refer your Honour to paragraph 14 of Mr Rushton’s written submissions, in which he states that the maximum fine applicable at the time of the offence was $250,000.Section 19 of Crimes (Sentencing Procedure) Act 1999 provides that penalty increases only apply to offences committed after the increase comes into effect. This would not have an effect on the custodial element of the penalty as the jurisdictional limit of two years’ imprisonment remained the same.
In addition, principally for the sake of clarity and to avoid future potential misunderstandings,…