Environment Protection Authority v Pal (No 3)

[2011] NSWLEC 194

Land and Environment Court

New South Wales

Medium Neutral Citation:

Environment Protection Authority v Pal (No 3) [2011] NSWLEC 194

Hearing dates:

9 November 2011

Decision date:

09 November 2011

Jurisdiction:

Class 5

Before:

Sheahan J

Decision:

1.Order No C2 of the court's orders made in matter 50026 of 2007 on 28 April 2009 is revoked, and in lieu thereof:

" The defendant is ordered to pay a fine of $31,500 ".

2.The fines imposed in matters 50025 and 50026 of 2007 are to be and remain cumulative.

3.There will be no order as to the costs of the application determined on 8 November 2011.

4.Exhibit A will remain in the court file for matter 50026.

Catchwords:

PROSECUTION: application to revoke community service order on grounds of medical assessment; other aspects of sentence to stand.

Legislation Cited:

Crimes (Administration of Sentences) Act 1999

Cases Cited:

Environment Protection Authority v Pal [2009] NSWLEC 35
Environment Protection Authority v Pal (No.2) [2009] NSWLEC 60

Category:

Sentence

Parties:

Environment Protection Authority (Prosecutor)
Kate Maree Pal (Defendant)

Representation:

Mr P Barley, Solicitor (Prosecutor)
Mr I Harrington of Probation and Parole Service (Defendant)
Legal Department, Office of Environment and Heritage (Prosecutor)
N/A (Defendant)

File Number(s):

50025 and 50026 of 2007

EXTEMPORE Judgment

1. The Campbelltown District Office of the Probation and Parole Service ('PPS') has asked the court to revoke a community service order ('CSO') I imposed on the defendant in these two prosecutions when I sentenced her, in final terms, on 28 April 2009.

1. For the history of the charges and of the sentencing hearing reference should be made to my judgments of 31 March 2009 ([2009] NSWLEC 35) and 28 April 2009 ([2009] NSWLEC 60).

1. In each matter individually I made a CSO, and imposed a fine, and an order for costs. In matter 50025 I set 135 hours and a fine of $13,500, and in matter 50026 315 hours and a fine of $31,500. I made it clear (in [140]ff of my first judgment) that in each case, and cumulatively, I had formulated a " sentencing package ".

1. As at today's date, Ms Pal has completed 390 hours of the total 450 hours, including all 135 hours in matter 50025. However, the second order (made in 50026), as extended, has expired 60 hours short, and she has paid none of the fine, and none of the costs.

1. Her personal circumstances and her health have deteriorated since she was sentenced. I noted some of her then situation, including her supportive family, in my first judgment (at [136]), but she informed the court this morning that her husband has now left her and their two children, 18 and 16, and she has suffered what she described as a " breakdown ".

1. The PPS records her community service performance as " satisfactory" , but her PPS " assigned officer ", Mr Ian Harrington, who made the revocation application, said her work is considered " exceptional ".

1. Mr Harrington sought a medical assessment after a number of absences due to illness. Dr Daniel Kim's report of 29 June 2011 ( Exhibit A ) comes to the firm conclusion that she is now unfit for further community service work. In her personal submission to me today she said she would try to complete the 60 hours, but Mr Harrington reaffirmed his application that would preclude that.

1. I am persuaded to revoke the balance of order pursuant to s 115(2B) and (3) of the Crimes (Administration of Sentences) Act 1999, conscious of the prosecutor's submission that the court must not dilute the general deterrence aspect of the sentences I imposed.

1. The section envisages that the order itself be revoked and that some degree of re-sentencing be considered, but I propose to simply delete the first part of Order C2 in matter 50026 (see judgment No 2 par [19]), so that it will from today read, simply:

The defendant is ordered to pay a fine of $31,500.

1. All other orders made in par [19] of that judgment will stand, as will par [22], which makes clear that the two fines are " cumulative ".

1. Exhibit A will remain in the court papers.

1. There will be no order as to the costs of this application.

1. I will issue a formal order, and publish these reasons, as judgment No 3 in these matters, later today.

Decision last updated: 09 November 2011