Environment Protection Authority v Pal (No.2)

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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,…
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Details
Case
[2009] NSWLEC 60
Decision Date

CaseChat Overview and Summary

In this case, the Environment Protection Authority (EPA) sought to prosecute Kate Maree Pal for offences relating to waste management. The dispute was heard by the Land and Environment Court of New South Wales, with Justice Sheahan presiding. The primary legal issue before the court was whether the penalties imposed on Pal were correctly calculated and whether they should be applied globally or individually for each offence. The court had to consider the maximum penalties applicable at the time the offences were committed and whether the fines and community service should be apportioned individually or collectively.

The court examined the relevant legislation, the Crimes (Sentencing Procedure) Act 1999, and relevant case law, including Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority and Cabonne Shire Council v Environment Protection Authority. The court acknowledged that there was an error in the original judgment regarding the maximum fine applicable at the time of the offence, which was $250,000, not $500,000. The court also decided to apply the penalties individually for each offence rather than globally. After reviewing all the evidence and considering the principles of sentencing, Justice Sheahan decided to impose 135 hours of community service and a fine of $13,500 for one offence, and 315 hours of community service and a fine of $31,500 for the other offence. Each party was ordered to pay its own costs of the application.

In conclusion, the court granted the application to reopen the proceedings, vacated the original orders, and imposed new penalties on Pal for each offence individually. The fines and hours of community service were to be cumulative. The court emphasised that the penalties imposed reflected the seriousness of the offences and the need for deterrence, while also taking into account Pal's personal circumstances.

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