Environment Protection Authority v Pal (No.2)

[2009] NSWLEC 60

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, the parties respectfully request that whatever penalties and orders your Honour finally imposes should be applied with reference to each individual charge rather than globally as is presently the case.”

4 It must be remembered that the s43 review process is not an appeal against either leniency or excessiveness in the sentence. The Prosecutor drew my attention to the remarks of McColl JA in the Court of Criminal Appeal in Erceg and Virgin v District Court and Anor [2003] NSWCA 379, (2003) 143 A Crim R 455. The s43 process is designed to facilitate the correction of error in the sentencing process without the necessity of bringing an appeal. See McColl JA at [102], quoting Badgery-Parker J in R v Tangen (unreported, 21 June 1996) at 5, where His Honour noted that error of the type represented by par [13] of my judgment is “apt to occur”, and that the reopening enables the sentencing judge to better produce or explain the result he or she intended. In doing so the court “may have regard to all the circumstances relevant to the imposition of the penalty” (McColl JA at [109]).

5 The error I made was not in arriving at the penalty itself, but in what I said in par [13]. While I acknowledge what is contained in s19 of the Act and in par 14 of the Prosecutor’s written submissions, the statement made in par [13] of the judgment about “common ground” was based on my understanding – it seems misunderstanding – of the oral submissions made by counsel on both sides of the matter (see Mr Rushton at T25.9.08, p2, L24-27, and Mr Ryan p18, L40-43). I am happy to rectify that error, and to now better explain the decision I arrived at.

The penalties imposed

6 After the hearing, I examined all the evidence, in many different ways, over a lengthy period of reservation.

7 I concluded (at [140] of my judgment) that a community service order was “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 …”, and I ended the judgment as follows:

144. Given the assertion of impecuniosity, the likely amount of the prosecutor’s costs and expenses, the circumstances of the case, and the “totality” principle, I have decided that Ms Pal’s penalty should involve a substantial number of hours of community service – more than in White [Environment Protection Authority v White (1996) 92 LGERA 264] and Coggins [Environment Protection Authority v Coggins [2003] NSWLEC 111; (2003) 126 LGERA 219] , to reflect relative culpability and the absence of any remediation – and a fine far lower than Ms Pal’s degree of culpability would normally attract.

145. The R v Thomson [R v Thomson; R v Houlton (“R v Thomson”) [2000] NSWCCA 309; (2000) 49 NSWLR 383] discount of 10% will be applied to a sentence of 500 hours community service and a fine of $50,000, and I will make the usual order as to costs and investigation expenses, but set a lengthy time within which to pay those costs to the prosecutor.

146. The Orders of the court will, therefore, be:

1. The defendant is convicted of the two offences with which she has been charged.
2. The defendant is sentenced to 450 hours community service, and ordered to pay a fine of $45,000.
3. The defendant is to report, within seven days of today’s order, to the Campbelltown District Office of the Probation and Parole Service, to conclude arrangements for her community service.
4. The defendant is ordered to pay the just and reasonable costs and investigation expenses of the prosecutor, as agreed or as assessed according to law, within three years of today’s date.
5. All the exhibits may be returned to the parties, except Exhibit P28.”

8 In the absence of any specific submissions on the question of apportionment as between the two properties and the respective charges, and in view of the fact that the hearing was conducted on the basis of a single “course of conduct” over two properties (T25.9.08, p17, L35-6), I decided to sentence Ms Pal in a “global” way, applying the principle of “totality” to the “calculations” I used to arrive at my figures (see [79], and Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, at 703-4).

9 The maximum number of hours of community service the court could impose in this case was 1,000 (subject to any discount), and not 500 as Mr Ryan submitted today, so I make clear that I did not assess Ms Pal’s culpability as the worst possible case, but, as I said in [135], she committed “a very serious negligence offence, deserving of severe punishment”, and the court had to fashion an appropriate “sentencing package”, without a remediation order.

10 In Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280, (2001) 115 LGERA 304, to which the Prosecutor also referred today, Giles JA dealt with the sentencing approach where maximum penalties are increased by the legislature. At [37] His Honour reminds sentencing judges to address “criminality” in terms of the facts of the particular case at hand, with due regard to factors including, but not limited to, the current maximum penalty, the seriousness of the offence, and the need for deterrence.

11 The totals I arrived at were 500 hours community service and a fine of $50,000, and I then applied the 10% discount ([145]) to those totals to arrive at the orders set out above.

12 In arriving at the amount of the fine imposed I had regard to:

(i) the asserted financial and other personal circumstances of the defendant (pars [114]-[125] of my judgment);
(ii) the sworn estimate of the prosecutor’s costs and expenses across both matters, a financial burden commonly placed upon a convicted offender in a case like this ([142]) (see Environment Protection Authority v Barnes [2006] NSWCA 246);
(iii) the regrettable futility in this case of making a remediation order, which would normally involve another financial burden on a convicted offender ([121]-[125], [134], [141]); and
(iv) the principles laid down by the Court of Criminal Appeal (per Finlay J) in Aref Rahme (1989) 43 A Crim R 81 (“ Rahme ”) ([131]-[133]),

rather than to any maximum amount prescribed.

13 The resultant fine, as I noted in my judgment (at [144]), is indeed “far lower than Ms Pal’s degree of culpability would normally attract”.

14 Like the $5,000 fine set on appeal by the Court of Criminal Appeal in Rahme, without any elaboration or explanation on that court’s part, the $50,000 fine here is more abstract or arbitrary, rather than some arithmetical derivative of any maximum prescribed by statute at a relevant time. The trial judge in Rahme had explained in some detail how he arrived at the fine of $22,000, but Finlay J said of its reduction to $5,000 on appeal only this (at 89):

“ The appellant has, I consider, made good the submission that the fine of $22,000 was excessive having regard to the appellant’s disclosed means and capacity to pay. I have come to the view that for this reason the court should interfere by a substantial reduction of that fine even though by so doing the totality of the sentence will be more lenient than the appellant may be thought entitled to expect. I would propose accordingly that the court intervene to the extent of ordering that the imposition of a fine of $5,000 be substituted for the $22,000 imposed by his Honour.”

15 I took then, and I still take, the view that the defendant’s culpability as between the two properties as charged could be apportioned generally in proportion to the respective volumes of waste proven to the satisfaction of the court ([49]), namely 18,000/44,000 cubic metres as between matters 50025 (Galea) and 50026 (Turner). That conclusion would lead to a sentence apportionment of 30/70 percent Galea/Turner, 150/350 hours and $15,000/$35,000, subject to the 10% discount.

16 I see no reason whatever to move from any of the constituent or total figures I arrived at in sentencing Ms Pal.

17 However, as requested, I will vacate the global orders I made on 31 March 2009, and proceed to make new orders in each case, and, separately, some general orders.

18 I also consider that each party should pay its own costs of this application, and I will include an order to that effect.

Conclusion

19 Therefore, I today make the following orders:

A. Generally:
1. The parties’ joint application to reopen the proceedings under s43 of the Crimes (Sentencing Procedure) Act 1999 is granted pursuant to s43(2) of that Act, and the third paragraph of par [13] of my principal judgment is withdrawn.

2. The orders of 31 March 2009 covering both matters are vacated.

3. Each party is to pay its own costs of this application.

4. All the exhibits from the trial may be returned to the parties, except Exhibit P28 .

B. In Matter 50025 of 2007:
1. The defendant is convicted of the offence charged in the summons.
2. The defendant is sentenced to 135 hours community service and ordered to pay a fine of $13,500.
3. The defendant is to report, not later than seven days after today’s order, to the Campbelltown District Office of the Probation and Parole Service, to conclude arrangements for her community service.
4. The defendant is ordered to pay the just and reasonable costs and investigation expenses of the prosecutor, as agreed or as assessed according to law, covering the period ended 31 March 2009, within three years of today’s date.

C. In Matter 50026 of 2007:
1. The defendant is convicted of the offence charged in the summons.
2. The defendant is sentenced to 315 hours community service and ordered to pay a fine of $31,500.
3. The defendant is to report, not later than seven days after today’s order, to the Campbelltown District Office of the Probation and Parole Service, to conclude arrangements for her community service.
4. The defendant is ordered to pay the just and reasonable costs and investigation expenses of the prosecutor, as agreed or as assessed according to law, covering the period ended 31 March 2009, within three years of today’s date.

20 I will publish these reasons later today.

21 [The Prosecutor addressed].

22 His Honour: I make clear that both the fines and the hours of community service imposed today are to be cumulative.