Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Limited

[2005] NSWLEC 175

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Limited [2005] NSWLEC 175

PARTIES:

No. 50024 of 2004

PROSECUTOR:
Environment Protection Authority

DEFENDANT:
Kenneth Warren Pannowitz

No. 50025 of 2004

PROSECUTOR:
Environment Protection Authority

DEFENDANT:
Steepleton Pty Limited

FILE NUMBER(S):

50024 of 2004 and 50025 of 2004

CORAM:

Lloyd J

KEY ISSUES:

Prosecution :- plea of guilty - penalty - mitigation

Environmental Offences: unlawful transport of demolition waste - risk of harm - serious offence - general deterrence - specific deterrence - principle of even-handedness - totality principle

LEGISLATION CITED:

Criminal Procedure Act 1986 (NSW), s 253(2)
Crimes (Sentencing Procedure) Act, ss 3A, s 21A(2), 22
Clean Air Act 1961, s 27(5)
Environmental Offences and Penalties Act 1989 (NSW)
Fines Act 1996, s 6
Protection of the Environment Operations Act 1999 (NSW), ss 3(d)(iii), 3(g) 143(1)(a), 143(3A) and (3B), 144(1), 169(1), 241, s 250(1)(a)
Waste Minimisation and Management Act 1995 (NSW), s 63(1)
Water Management Act 2000, s 256(1)
Occupational Health and Safety (Demolition Licensing) Regulation 1996

CASES CITED:

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357;
Camilleri's Stock Feed Pty Limited v Environment Protection Authority (1993) NSWLR 683;
Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 61;
Environment Protection Authority v Nechakoski (2002) 120 LGERA 426;
Environment Protection Authority v Robinson [2004] NSWLEC 629;
Environment Protection Authority v Sorcevski [2002] NSWLEC 115;
Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66;
Hannah v Wonah Pty Ltd (1992) 34 AILR 333;
Inspector Petar Ankucic v William George Young [2004] NSWIRComm 184;
Latoudis v Casey (1990) 170 CLR 534;
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464;
R v H (1980) 3 A Crim R 53;
R v Holder [1983] 3 NSWLR 245;
R v Oliver (1980) 7 A Crim R 174;
R v Rushby [1977] 1 NSWLR 594;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
R v Visconti (1982) 2 NSWLR 104;
Walden v Hensler (1987) 163 CLR 561;
WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney [1977] NSWIRComm 44

DATES OF HEARING:

13/12/2004; 14/12/2004 and 31/03/2005

 
DATE OF JUDGMENT: 

04/22/2005

LEGAL REPRESENTATIVES:

PROSECUTOR:
D A Buchanan SC and D J Galpin (barrister)
SOLICITOR:
Stephen Garrett
Environment Protection Authority

DEFENDANTS:
T M Healey (barrister) and A E Bright (barrister)
SOLICITORS:
Lambton Law

JUDGMENT:

- 27 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

LLOYD J

Thursday, 22 April 2005

LEC Nos. 50024 & 50025 of 2004

ENVIRONMENTAL PROTECTION AUTHORITY v PANNOWITZ; ENVIRONMENT PROTECTION AUTHORITY v STEEPLETON PTY LIMITED [2005] NSWLEC 175

JUDGMENT

Introduction

1 LLOYD J: In proceedings No. 50025 of 2004, Steepleton Pty Limited (“Steepleton”) has pleaded guilty to the offence that, between about 1 January 2001 and 30 June 2001, at or near Phoenix Park in New South Wales, it committed an offence against s 143(1)(a) of the Protection of the Environment Operations Act 1997 (“the POEO Act”) in that it did transport waste to a place that could not lawfully be used as a waste facility for that waste.

2 In proceedings No. 50024 of 2004, Mr Kenneth Warren Pannowitz has pleaded guilty to the offence that, between about 1 January 2001 and 30 June 2001, at or near Phoenix Park in New South Wales, he committed an offence against s 143(1) of the POEO Act in that, being a director of Steepleton, a corporation which contravened the said provision, he contravened the same provision as a result of the operation of s 169(1) of the Act.

3 On 18 August 2004, the defendants entered a plea of not guilty to their respective charges. However, both defendants changed their plea to a guilty plea at the commencement of the hearing on 13 December 2004.

4 Section 143(1) of the POEO Act states:

If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste:
(a) the person, and
(b) if the person is not the owner of the waste, the owner,
are each guilty of an offence.


The maximum penalty under that section is $250,000 for a corporation and $120,000 for an individual.

5 Section 169(1) of the POEO Act states:

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:

(a) the corporation contravened the provision without the knowledge actual, imputed or constructive of the person, or
(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.
….

Agreed Facts

6 Steepleton has carried on a demolition business since 1999 and holds a demolition licence under the Occupational Health and Safety (Demolition Licensing) Regulation 1996. Its business involves carrying out demolition work and disposing of the resulting building and demolition waste.

7 At all relevant times, Mr Pannowitz was the sole director, proprietor and manager of Steepleton. He was intimately involved in the daily running of the company and its business. At January 2001, Mr Pannowitz had over 18 years experience in residential, commercial industrial and high rise demolitions, including associated experience in the disposal of the waste thereby generated.

8 In June 2000, Steepleton contracted with Drayton Building and Construction Pty Limited (“Draytons”) to demolish buildings and paving at a former bus depot at 174 and 175 High Street, Maitland (“the Blue Ribbon site”). The terms of the contract required Steepleton to lawfully dispose of the demolition waste from both lots. In early 2001, Mr Pannowitz, acting on behalf of Steepleton, entered into an agreement with Mr Robinson to dispose of demolition waste from the second lot, 175 High Street, on the latter’s property at 150 Hinton Park Road, Phoenix Park. Drayton’s records show that the waste, including bricks, concrete, dirt, soil, steel, roof tiles, crushed timber and plasterboard, was placed on the property between February and March 2001. Steepleton received $18,000 (exclusive of GST) for this work.

9 Mr Robinson accepted the demolition waste at his property for use as landfill in constructing a cattle mound. As such, Mr Robinson was using his premises as a waste facility within the meaning of the POEO Act. The landfill was placed on land that was within 40 metres of the Paterson River, adjacent to a levee bank of that river, and within a floodway liable to inundation during a flood event. The parties have agreed that Mr Robinson’s use of the property was unlawful due to the his failure to obtain:

· Development consent from Maitland City Council;
· An environment protection licence from the Environment Protection Authority (the “EPA”); and
· An approval from the Minister administering the Water Management Act 2000 under s 256(1) of that Act.

10 Mr Pannowitz and Steepleton knew that Mr Robinson required these approvals to receive demolition waste and to construct a cattle mound on his property. Mr Pannowitz was aware of the environmental laws and knew that Mr Robinson’s land was flood-prone. In an interview conducted on 29 November 2001, Mr Pannowitz told the EPA the following regarding a conversation with Mr Robinson (answer 27):

He rang me, Alan Robinson. He – I said to him, “Have you got approval to take the stuff?” He said, “Yes. … I’ve talked to council on it,” and I said, “Well, you make sure you have your approval” before we took it. He said, “There is not a problem to take this stuff to the site”.

11 Mr Pannowitz informed Mr Robertson that the land was flood prone, to which Mr Robinson replied that he had been to the Public Works Department. Mr Pannowitz (and Steepleton) made no further enquiries to ascertain whether Mr Robinson had obtained the relevant approvals. Mr Pannowitz did not seek to see a copy of the approvals, nor did he contact the prosecutor, Maitland City Council, or the Department of Public Works (which is now part of the Department of Infrastructure, Planning and Natural Resources). Further, Steepleton did not obtain written notice from Mr Robinson pursuant to sub-s 143(3A) of the POEO Act.

12 On several occasions between January 2001 and June 2001, Mr Pannowitz attended Mr Robinson’s property with a bobcat, which he used to create a mound from the demolition waste. Steepleton provided approximately 120 tonnes of topsoil to cover and compact the mound.

13 The receipt of waste at Mr Robinson’s property stopped in June 2001. A survey of the mound, conducted on 19 July 2002, determined that the waste received at the property was:

· 2.15 metres above the natural ground level at its highest point;
· 2026 cubic metres in volume; and
· 1539 square metres in area.

14 Steepleton did not transport all of the material comprising the mound. Some of the material was already present on the property, and other transporters also brought some material.

The Evidence

Dr Barbara Baginska

15 Dr Barbara Baginska, a Senior Environmental Scientist employed by the prosecutor, gave both affidavit and oral evidence. In her first affidavit, dated 21 November 2002, Dr Baginska stated that she inspected the mound on Mr Robinson’s premises on 19 July 2002. She observed that the waste pile was adjacent to the levee bank of the Paterson River, had a levelled top and was partially covered with a thin layer of soil with regrowth appearing in some places. Dr Baginska stated that the waste pile was uncompacted and prone to erosion during heavy rainfall. In such an event, waste and topsoil would be washed into an unnamed tributary that flows into the Paterson River. Dr Baginska stated that this could lead to smothering of aquatic vegetation and organisms, decreased light penetration, loss of habitat for aquatic organisms and aesthetic damage to the river. In a further affidavit dated 6 December 2004, Dr Baginska stated that the unnamed tributary is located 300 metres from the mound. During examination in chief, Dr Baginska said that due to the presence of soil cover and the compaction of the mound, the erosion of soil and movement of it to the river is now unlikely to occur. In cross-examination, Dr Baginska admitted that during a flood event water would be likely to flow in the same direction as the floodwaters, towards the Paterson River rather than to the unnamed tributary.

16 Mr Peter Wallace stated in his affidavit, dated 12 December 2002, that between 1996 and 2002 he worked for Mr Pannowitz as an owner-driver, and later a sub-contractor driver, on a casual basis. In early 2001, Mr Wallace was contracted to drive a truck owned by Steepleton to dispose of the demolition material from the Blue Ribbon site. Mr Wallace stated that whilst working on the Blue Ribbon site in early 2001, he was approached by Mr Robinson and a labourer from Steepleton, and had the following conversation with Mr Robinson:

Mr Robinson said: “I have a farm at Phoenix Park. I need to build a pad in front of my shed so that when the paddock floods the cows have dry ground to go to.”
I said: “Is it okay to dump it there, has it been approved?”
Robinson said: “Yes it’s okay.”
I said: “Well, you’d better ring Ken and make sure it’s all right with Ken.”
He said: “I’ve spoken to Ken and Ken said you can take it out there.”
I said: “What type of stuff do you want out there?”
He said: “Anything that is demolition material, I don’t want any asbestos or anything toxic. Any crushed timber, concrete, bricks, dirt, gyprock plaster or anything like that is okay.”

17 On the first day that he went to Mr Robinson’s property, Mr Wallace observed that there was already a mound of material located on it. In his affidavit, Mr Wallace stated that he deposited waste at Mr Robinson’s premises five days a week for several months and estimated that he dumped about 80 loads of waste at the premises. Of those, 70 loads were with the rigid tipper truck with an average of 8 tonnes per load (the capacity ranging from 3-4 tonnes for loose material up to 12 tonnes if loaded with concrete, bricks and dirt) and 10 loads were with a semi-trailer truck with an average load of 15 tonnes (the capacity ranging from 8-22 tonnes).

18 During cross-examination, Mr Wallace conceded that the number of loads mentioned in his affidavit was a rough estimate and the actual figure could have been as low as 50 loads.

19 In his affidavit, Mr Wallace noted that he saw other Steepleton drivers dumping material on Mr Robinson’s premises. However, Mr Wallace also witnessed a driver, employed by a man he knew as Spero, dumping material on the premises. He also saw a Maitland City Council truck on the premises adjacent to a couple of tonnes of tar which he assumed had been dumped by the truck.

20 In the process of depositing the waste, Mr Wallace noticed that the pile had been flattened out, but also stated that he never saw Mr Pannowitz on the premises.

21 In a further affidavit dated 13 December 2004, Mr Wallace stated that Mr Pannowitz also directed him to transfer demolition waste from the Newcastle Herald premises at Allantown to Mr Robinson’s premises. He transported 3 to 5 loads, which mainly consisted of concrete blocks, 8 feet by 10 feet.

Mr Paul Fletcher

22 Mr Paul Fletcher stated in his affidavit dated 13 December 2002, that he resided at the premises owned by Mr Robinson under an oral rental arrangement from 1 May 2001 until 17 August 2001. Mr Fletcher undertook repairs and renovations on the house in the two weeks prior to taking up residency. He first witnessed waste being dumped on the premises during that time. After that time, he observed trucks dumping material on a daily basis. The trucks were usually six wheelers, but Mr Fletcher also occasionally observed semi trailers on the premises. Mr Fletcher stated that between mid April to mid July 2001 he saw trucks and semi trailers arriving at the premises five times per day, five days per week. He noted that the dumping stopped when there was a period of heavy rain, and when Claire Hendley from Maitland Council inspected the premises.

23 Mr Fletcher conversed with the drivers on several occasions. In an exchange with a driver named Peter, Mr Fletcher stated that “Panno” was mentioned as being the driver’s boss. Mr Fletcher stated that he spoke with Peter (Mr Wallace) on several occasions and ascertained that he was working for “Panno” and that the waste he was dumping on the site had come from the Greenhills shopping centre at East Maitland. Another driver indicated that the waste he was dumping had come from the Blue Ribbon site.

24 Mr Fletcher observed that the dumping settled down, and stopped for a while after Mr Pannowitz received a letter from the prosecutor. However, Mr Fletcher claimed that some dumping did occur after this.

25 In his affidavit, Mr Fletcher stated that after a period of heavy rain he received a phone call from Mr Robinson who said, “Maitland Council are coming around to drop off some stuff on the site. If I get Maitland Council to dump there, then they won’t prosecute me”, to which Mr Fletcher replied, “The land is too wet”. Mr Fletcher subsequently observed two people from Maitland City Council on the premises but did not see them bring any material onto the site.

26 During cross-examination, Mr Fletcher said that the front gate to the property was left unlocked by Steepleton’s drivers on several occasions.

Mr Roberto Antonio Pupo

27 Mr Roberto Antonio Pupo, a Specialist Investigator for the prosecutor, interviewed Mr John Kasch and Mr Noel Robert Lane, both employees of Maitland City Council. The records of those interviews are annexed to Mr Pupo’s affidavit.

28 The record of interview on 25 October 2001 with Mr Kasch relevantly states (pages 5-6):

A.31 He said he would get back to me. Mr Robinson then, in about – couple of hours later rang me up and he said, “Matey”, he said, “If you want to just drop some fill there”, he said, “I want as much as you can possibly get me,” and I said, “Fine, okay, have you got a development application”, he said, “Yes, I have”, I (indistinct). I then went and seen Noel Lane. I said to Noel, “Mate, instead of us taking it all to the tip, which is – you know, about four times the distance, if this man has got a development application to commence work, why don’t we take it there?” He said, “Okay, well, you show me John”. So we drove down to (Indistinct) Park Road, this is 150 – whatever, I can’t think – 151 or whatever.
Q.32 150 ---
A. 150. We drove down there (indistinct) the site we talked to the man himself and he said, look, he’ll take as much as he can. He said, “Do you have any good road base,” and I said, “yes, we will”, because we were taking gravel and stuff like that out off the road, “we could probably (indistinct) you a road surface”. He said, “Well, I’ll take as much as you can give me”. After that I was out of the deal. Noel kept working, I hadn’t spoke to him any more about it and I – nothing more was mentioned about it. It started to rain and we said he couldn’t take the stuff down here, he said, “It’s too wet”, he said, “We’re going to take everything to the tip”, I said, “That’s fine”. And then basically, after that it just come to a head where somebody asked me who put all the stuff down there and I said, “Well, I haven’t got a clue”. ….

29 Further, the record of interview on 25 October 2001 with Mr Lane relevantly provides (at pages 10-11):

Q.70 It is normal practice to go to sites to determine whether you’re able to take some of council (indistinct) to then [sic]?
A. If – if – well, there are people around that ring council and advertise, et cetera for fill and that sort of thing, and if it’s a more cost effective – if it’s a more – or seems to be, or we think it might be a more cost effective way for our job, rather than – well, to reduce the haulage distance basically, we’ll investigate it, yes, we’ll go and have a look where it’s to go and then our practice is to go and check to see whether it’s permissible as far as the DA goes and what the DA is all about with our council, or people in council to determine then whether it’s even an option or – or we just forget about it. Because that’s determined by the DA and what the DA says, what type of material we’ve got to have if they have got to have fill anywhere.
…..
Q.73 McHugh. Did you advise him that you’d had a talk with a person on-site and they --
A. I told him we were investigating the possibility of being able to use that site but as – well, it was raining and that sort of thing, I said, we’d have to check out the possibility and check out that it was okay (indistinct). So as a result of it, it turned out that we never done any more about it. We never used it.
….

30 I conclude from the record of interview with Mr Kasch and the record of interview with Mr Lane that the evidence does not support the suggestion that the Council dumped any material on Mr Robinson’s land.

31 Mr Terence John Muir, a Specialist Investigator employed by the prosecutor, interviewed Mr Pannowitz on 29 November 2001. The record of interview shows that Mr Pannowitz made several statements concerning the quantity of waste taken to the site. He initially stated that his drivers delivered 40 to 50 loads to Mr Robinson’s premises, but later suggested there might have been 60 or 70 loads taken to the site. The record of interview contains the following relevant statements relating to the costs or benefits of the waste disposal (at pages 15-16):

Q.105 As part of you tender you would have created documents to show to him the costs of waste disposal. Would that be right?
A. No, not all – no, no, not all – only if you ask for it, right? We don’t – we never show that. We do now but we never show it there. We just say, “Well, if you – if you’ve got an approval for a tip site” – or you know it’s got to go to Maitland Council - or you know it’s got to go to Boral, that’s what we do. See, we hold a contract with Pacific Power, we supply them all the bricks now, The asbestos goes to the – whichever tip will take it or, in that particular area there now, we’ve been taking it to Collex out of Maitland area and to – what’s the name – Green Valley – what’s the name of that tip there?
Q.106 Mount Vincent.
A. Mount Vincent tip, we take it there and – and if we do it in Newcastle it goes to Newcastle, it goes to Wangi, Awaba, wherever it goes to and all the receipts are in our office for all the – all the tipping we do. And most of the builders are starting to come around now to – to know this and we tell them that if it’s not approved landfill site and they’re not prepared to pay the money, we’re not prepared to go.
Q.107 Pay what money?
A. The tip fees.
Q.108 So when you took this material to Mr Robinson’s place, was there any exchange of money?
A. No.
Q.109 Did he pay for the waste?
A. No.
Q.110 Did you pay him to allow your drivers to take it there?
A. No.
Q.111 Why’s that, mate?
A. Well, we’re doing him a service and he’s doing us a service.
Q.112 What service are you doing him?
A. Well, we’re building him a cattle mound to save his cattle being drowned.
Q.113 What service is he doing you?
A. Well, he’s providing us a tipping spot that’s handy to where we’re going to, and he’s providing the builder, otherwise we’d have to charge them X-amount of dollars extra for taking it to the tip.
Q.114 So would it be fair to say that you company saved money by taking the fill to Mr Robinson’s place?
A. Well not only our company, all companies save money by doing that. It’s logical, right?
Q.115 Yes.
A. And it’s logical for the in-goer because the in-builder and the owner of the property is saving money, isn’t he, and he’s doing a service for a man that’s – that’s lost stock in the flood and that. …
….
Q.117 No. Well, to go to Mt Vincent I just thought you might know what the tonnage weight was.
A. Well, I don’t know because – because some loads – as I explained to you, if he had crushed up timber it could be 4 tonne. If he had sold bricks it could be 12 tonne. I don’t know. So – so most tips are saying if you put the bricks in now, which you’ve probably been around the tips, you know that they’re trying to put channels in for recrushing. If we run it to Boral it’s $14 a tonne if we sort it on site.
Q.118 Yes.
A. But he come to the site again and he said, “Look, just crush it all up and take it to my place”. …

32 According to the affidavits of the following employees of Maitland City Council:

· Mr John McKeough, dated 29 November 2004;
· Mr Phillip James Saxby, dated 8 December 2004;
· Mr David John Lawrence, dated 8 December 2004;
· Mr Bradley Timmins, dated 8 December 2004;
· Mr John Payne, dated 8 December 2004;
· Mr Raymond Paul Ian Barber, dated 8 December 2004;
· Mr Wayne Sanson, dated 8 December 2004; and;
· Mr Michael James Lindsay, dated 8 December 2004 ,

none of these employees transported any material from the council’s excavations at Close Street, Morpeth, or any other material, to Mr Robinson’s premises.

Sentencing Considerations

33 Section 241(1) of the POEO Act sets out the matters that the Court is to take into consideration in imposing a penalty for an offence under the Act.

241 Matters to be considered in imposing penalty
(1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):

(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence,
(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,
(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
(e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee.

(2) The court may take into consideration other matters that it considers relevant.

I shall consider each of these considerations in turn.

(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence

34 There was no actual harm caused by the commission of the offences and due to the vegetation now covering and stabilising the mound there is currently no risk of harm to the environment by way of erosion of the mound.

35 However, the evidence of Dr Baginska shows that between 30 June 2001 and 19 July 2002 there was clearly a potential risk of harm as the cattle mound was relatively uncompacted and there was a risk of soil erosion during heavy rain. In particular, at that time there was some risk that suspended solids mobilised during heavy rainfall would enter an unnamed tributary approximately 300 metres to the north-east of the mound, and would then flow into the Paterson River and eventually the Hunter River. Once in the watercourse, the material would be likely to cause silting, which could potentially adversely affect aquatic life in the watercourse by decreasing light penetration and smothering vegetation and thus also damaging the habitat and feedings grounds for other organic organisms. In addition, the siltation may also extend to visual harm by altering the aesthetic value of the river. I find, however, that the risk was relatively small since the tributary is some 300 metres from the mound over relatively flat ground and there would be some settling out of suspended material before reaching the tributary.

(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm

36 Mr Pannowitz and Steepleton were aware of the environmental laws and knew that Mr Robinson required specific approvals to receive demolition waste and to construct a cattle mound on his property. Having spoken to Mr Robinson, both defendants believed he held the appropriate approvals to receive demolition waste at his property but made no further inquiries to verify the approvals. In addition, both defendants also knew that Mr Robinson’s land was flood prone and of the need to properly compact and stabilise the mound to prevent the risk of environmental harm.

37 During the dumping of waste on the land, Mr Pannowitz spread the material out 3 or 4 times using Steepleton’s backhoe. However, in the record of interview dated the 29 November 2001, he conceded that this measure was insufficient to prevent the likely environmental harm that would occur in the event of erosion caused by heavy rainfall and “only the trucks [compacted the material] when they go back over the top of it”.

38 Mr Pannowitz and Steepleton ceased depositing waste at Mr Robinson’s property in June 2001 and Steepleton provided 120 tonnes of topsoil to cover and compact the mound. However, as noted above, a risk of environmental harm still existed from June 2001 to July 2002 as the cattle mound remained relatively uncompacted and there was a risk of soil erosion during heavy rain.

39 The prosecutor submits that given the defendants’ experience in the demolition industry and knowledge of the relevant environmental laws, to practically avoid this risk of harm, they should not have contributed to the construction of the landfill in the first place, or else they should have ensured that the waste was properly compacted and the mound stabilised at a much earlier stage than 2004 when Dr Baginska conducted her second inspection.

40 It is clear that the defendants’ actions were insufficient to prevent the risk of environmental harm that would have occurred in the event of a flood.

(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence

41 Given the proximity of the mound to the levee bank, the unnamed tributary and the Paterson River, Mr Pannowitz and Steepleton could have reasonably foreseen the environmental harm that could occur in the event of heavy rainfall. In fact, in the record of interview dated 29 November 2001, Mr Pannowitz admitted that he knew that the land was flood prone and of the need to properly compact and stabilise the mound to prevent the potential risk of environmental harm during a flood. Mr Pannowitz’s and Steepleton’s foreseeability of this risk is also relevant to assessing their culpability and the seriousness of the offence: Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay)(2000) 49 NSWLR 61at 81; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch’ng)(1999) 90 IR 464 at 476.

(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence

42 Mr Pannowitz and Steepleton had complete control over the events giving rise to the offences. That is, they were both in full control of the transportation of the waste to Mr Robinson’s property. Despite their considerable experience in the demolition industry and knowledge of the legal requirements relating to the use of land as a waste facility, they decided to transport the waste based on Mr Robinson’s assurances regarding the lawfulness of using the site as a waste facility, and in doing so committed these offences. I accept the prosecutor’s submission that Mr Robinson’s assurances were insufficient and too vague and varying to be properly relied upon and the defendants should have undertaken various other checks, including checking the status of the land with the local council. Thus, I find that at all relevant times both Mr Pannowitz and Steepleton had full control over the commission of the offences.

(e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee

43 This is not a relevant consideration in this case as Mr Pannowitz and Steepleton had complete control over the transport of the waste to Mr Robinson’s property.

Other Considerations on Penalty

44 Section 241(2) of the POEO Act states that the Court may take into consideration other matters that it considers relevant.

45 The primary consideration in sentencing is the objective gravity or seriousness of the offence: Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-81; Lawrenson Diecasting at 474. A number of factors indicate the seriousness of the offences in question.

46 Firstly, the actual or likely consequences of a breach may be taken into account in assessing the gravity of the offence: Hannah v Wonah Pty Ltd (1992) 34 AILR 333; WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney [1977] NSWIRComm 44 at [10]. In this case, parliament has prescribed the penalty of $120,000 as the maximum penalty for a breach of s 143 of the POEO Act. This is a very clear factor evidencing the “public expression” by parliament about the seriousness of the offence (R v H (1980) 3 A Crim R 53 at 65) and indicating the gravity of the offence as perceived by the community (Camilleri’s Stock Feed Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698, Kirby P, with whom Campbell and James JJ agreed). As such, the questions now to be determined are firstly, what is the relative seriousness of Mr Pannowitz’s and Steepleton’s offences in relation to a worst case for which the maximum penalty is provided, and secondly, what penalties should be imposed which approximately correlate upon the scale of penalty set by the legislature from zero to the maximum: Camilleri’s Stock Feed Pty Limited at 698.

47 In addition, the following circumstances highlight the seriousness of the offences in this case. Mr Pannowitz and Steepleton transported a significant quantity of waste to Mr Robinson’s property. Through their considerable experience in the demolition industry, they were both aware of the legal requirements relating to the use of land as a waste facility and also recognised that Mr Robinson’s land was flood prone. Despite this knowledge and in spite of Mr Robinson’s vague and unreliable assurances regarding the lawfulness of using the site as a waste facility, they decided to transport the waste. Moreover, they also followed Mr Robinson’s directions to dump the waste in an environmentally sensitive location, within 40 metres of the bank of the Paterson River, where the risk of environmental harm was clearly foreseeable. The potential harm to the environment resulting from siltation included damage to aquatic vegetation and organisms. Finally, in committing these offences, Mr Pannowitz and Steepleton obtained a financial advantage as they failed to incur expenses that other lawful operators need to meet. In particular, as appears from the admissions made by Mr Pannowitz described in par [31] above, they deliberately avoided the costs of disposing of the waste at an alternative licensed waste facility, such as the Maitland City Council’s Mount Vincent tip. All of these factors highlight the seriousness of the offence.

48 General deterrence is also a major consideration in the imposition of penalties for environmental offences: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 per Mahoney J at 359; Camilleri’s Stock Feeds Pty Ltd at 701; Capral Aluminium. Notably, the prescription of a $120,000 penalty for a breach of s 143(1) of the POEOAct, is not merely to indicate the seriousness with which pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur: Axer at 359.

49 Therefore, a penalty for a breach must be sufficient to draw attention to the seriousness of such offences to ensure that Mr Pannowitz and Steepleton, and others, are encouraged to comply with the law and that the environment is not exposed to risk of harm. For strict liability offences, however, care must be taken to ensure that the penalty imposed does not cause the offender to shoulder an unfair burden of community education: Walden v Hensler (1987) 163 CLR 561 at 570.

50 Section 143 of the POEO Act prohibits the transportation of waste to a place that cannot lawfully be used as a waste facility for that waste. That provision reinforces the need for approval of the use of land as a waste facility and for transporters to verify that such approval has been obtained by the landowner or occupier. In particularly, sub-ss 143(3A) and (3B) of the POEO Act shows the legislative intention that waste transporters should take very particular care to inquire as to the basis for lawfulness of a particular site to take waste:

143 Unlawful transporting of waste
….
(3A) Defence—approved notice It is a defence in any proceedings for an offence under this section if the defendant establishes that:

(a) an approved notice was, at the time of the alleged offence, given to the defendant by the owner or occupier of the place to which the waste was transported or was displayed at the place, and
(b) the approved notice stated that the place could lawfully be used as a waste facility for the waste, and
(c) the defendant had no reason to believe that the place could not lawfully be used as a waste facility for the waste.

(3B) However, it is not a defence in such proceedings for the defendant to establish that the defendant relied on the advice (other than advice in the form of an approved notice) given by the owner or occupier concerned to the effect that the place could, at the time of the alleged offence, be lawfully used as such a waste facility.
….

51 The offence created under s 143 also serves the objectives of waste minimisation and waste avoidance: POEO Act, sub-ss 3(d)(iii) and 3(g). The penalty, therefore, should reflect the need to ensure future compliance with those objectives.

52 Specific deterrence aims to deter the offender from repeating the environmental offence that has been committed. The prosecutor submits that there is such a risk in this instance and Mr Pannowitz and Steepleton need to be made aware that, when working in an area where environmental laws and approvals operate to protect the environment, those laws and approvals must be complied with.

53 Mr T M Healey, appearing for the defendant, submits, however, that there is no risk of Mr Pannowitz or Steepleton re-offending as the prosecution of these charges has been sufficient deterrence and subsequently, since the charges were laid in 2001 and neither of the defendants have breached any environmental laws.

54 I accept that the risk of Mr Pannowitz and Steepleton re-offending is low. However since they continue to work in an area in which laws enacted to protect the environment operate, the penalty should reflect some element of specific deterrence.

55 A further consideration is the principle of even-handedness, which requires the Court to consider any pattern in sentencing for the particular offence in order to pursue a consistent approach in the imposition of penalties. As Street CJ stated in R v Visconti (1982) 2 NSWLR 104, quoting a passage from his earlier judgment in R v Oliver (1980) 7 A Crim R 174 (at 107):

Full weight is to be given to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature. That collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand.

56 In Axer, however, Badgery-Parker J acknowledged the difficulty in applying this principle (at 365):

There is always a difficulty in attempting to compare the penalty in one case with the penalty in another because of the wide divergence of facts and circumstances; that task is difficult enough when one has the full text of all the relevant judgments and more difficult where the material is provided in this summary form.

57 In this case, the prosecutor invites the court to consider the decisions of the Court in Environment Protection Authority v Robinson [2004] NSWLEC 629, Environment Protection Authority v Nechakoski (2002) 120 LGERA 426 and Environment Protection Authority v Sorcevski [2002] NSWLEC 115 in applying the principle of even-handedness to the determination of penalty in this instance.

58 In Robinson, Mr Robinson was convicted under s 144 of the POEO Act, in that, being the owner of the land also the subject of this case, he allowed Mr Pannowitz and Steepleton to dispose of demolition waste on the land and thus unlawfully used the land as a waste facility. The Court imposed a fine of $8,000.

59 The prosecutor submits that Robinson may be considered and distinguished, as the cases before the Court are more serious. I agree with his submission. Mr Robinson was not a person under the sort of duty which, by sub-ss 143(3A) and (3B) of the POEO Act, the legislature has placed on people who transport waste for disposal. In addition, he was not employed in the waste transporting industry and did not have the defendants’ experience in disposing of waste.

60 The case of Nechakoski is more analogous to the cases currently before the Court. Similarly, it involved the unlawful transport of demolition waste to flood prone land that could not lawfully be used as a waste facility. In addition, the Court also noted the financial advantage Mr Nechakoski gained by disposing of the waste at a site which could not lawfully receive demolition waste and avoiding the waste disposal fees which would otherwise have been payable. Importantly, in that case, however, there was both actual and likely harm to the environment, which including significant actual harm to the habitat of certain frogs.

61 The facts in Nechakoski were complicated as the applicable legislative regime changed during the commission of the offence. Consequently, the defendant was charged with two offences, one under s 63(1) of the Waste Minimisation and Management Act 1995 (the “WMM Act”) and the other under s 143(1) of the POEO Act. Substantively, both charges were the same, however, the penalty for each offence differed with the maximum penalty for an individual breaching the WMM Act being $60,000 as opposed to $120,000 under the POEO Act. The Court viewed the offences as “relatively serious” and the defendant was fined $21,000 for the WMM Act offence and $10,000 for the POEO Act offence taking into account the absence of any prior antecedents, his early plea of guilty, contrition and cooperation with the EPA. Mr Sorcevski, the landowner, in that case, was penalised a similar amount (total of $8,500) to the fine received by Mr Robinson in this case: Sorcevski.

62 The prosecutor concedes that given the facts surrounding the offences before the Court, the principle of totality should be applied in determining the appropriate penalties. The totality principle usually applies where a single defendant has been charged with two or more offences: R v Holder [1983] 3 NSWLR 245. However, given that the defendant, Mr Pannowitz controlled the defendant, Steepleton, and that Steepleton was essentially a one person company, I accept this concession and find that the defendants should not be sentenced as if they were two entirely separate entities. As such, it is appropriate for the Court to apply the principle of totality and consider the overall criminality involved in both the offences and, where appropriate, reduce the individual penalties so that they reflect the totality of both Mr Pannowitz’ and Steepleton’s criminality: Camilleri’s Stock Feeds at 703; R v Holder at 260.

63 Finally, several subjective factors, both aggravating and mitigating, are also relevant considerations in determining an appropriate penalty, but are secondary to the factors relating to the seriousness of the offence: R v Rushby [1977] 1 NSWLR 594 at 597; Fletcher Constructions at 77; Lawrenson Diecasting at 474-475. This is because the objective features of an offence relate to the facts concerning the offence, whereas the subjective features relate to the facts concerning the offender: Inspector Petar Ankucic v William George Young [2004] NSWIRComm 184 at par [38].

64 The Court must consider any aggravating factors as set out in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), including any previous convictions of the defendant. Relevantly, Mr Pannowitz has a prior conviction for an offence under the Environment Offences and Penalties Act 1989 (NSW) for wilfully delaying an authorised officer of the EPA in the exercise of his powers under the Clean Air Act 1961 (NSW), contrary to s 27(5) of the Clean Air Act 1961 (NSW). He was fined $500 and ordered to pay the prosecutor’s costs.

65 In addition, the Court must also consider whether a plea of guilty has been entered and the timing of such a plea: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22. The Court may discount the penalty according to the utilitarian value of the plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 418 per Spigelman CJ. In this case, both defendants have entered pleas of guilty to the charges, thus saving the Court and the community time and money. However, the pleas were entered at the last minute, just before commencement of a hearing of the charges on the 13 December 2004. The defendants had previously entered pleas of not guilty on the 18 August 2004. Consequently, the utilitarian value of the defendants’ pleas is reduced.

66 The following mitigating factors are also relevant in this instance. Mr Pannowitz and Steepleton co-operated with the prosecutor in agreeing to the production of a statement of agreed facts and Mr Pannowitz took part in a record of interview with the EPA. Mr Healey, appearing for the defendant, also submits that Mr Pannowitz’s contrition has been expressed through his plea of guilty. No evidence was adduced of the defendant’s financial means or character.

Penalty

67 The Court is required to consider the means of the defendant in fixing the amount of the fine: Fines Act 1996, s 6. However, as noted above, no evidence was adduced of the defendants’ means and no submission was made that the defendants would not be able to meet any appropriate fine. Accordingly, as the offence is serious the penalty should reflect the objective seriousness of the offence as the primary consideration and must also take account of the need for general deterrence, together with the various considerations discussed above.

68 The maximum penalty under the POEO Act for a breach of s 143 by a corporation is $250,000 and by an individual it is $120,000. The purpose of imposing penalties is to ensure that the offender is adequately punished for the offence and for the prevention and deterrence of similar offences: Crimes (Sentencing Procedure) Act, s 3A. Having regard to all the circumstances of this case and the factors considered above, I find that an appropriate penalty for Steepleton is $50,000 and for Mr Pannowitz is $25,000, being a total of $75,000. These amounts are to be discounted by 10% for the utilitarian value of their pleas of guilty: R v Thomson; R v Houlton at 419. I also allow a further discount of 10% taking into account all other relevant matters including the co-operation of Mr Pannowitz and Steepleton with the prosecutor. This results in a total penalty of $60,000. In addition, in applying the principles in Latoudis v Casey (1990) 170 CLR 534, it is also appropriate that the defendant pay the prosecutor’s costs.

69 In addition to this penalty, the prosecutor seeks a publication order against both defendants pursuant to sub-s 250(1)(a) of the POEO Act. Relevantly, there is a real need for general deterrence in relation to this matter as demolition waste to often used for the construction of agricultural mounts in flood prone land, particularly in the Hunter Valley. The legislation places transporters of waste under a heavy duty to ensure that the place to which their waste is taken is a lawful waste facility. As such, I find that a publication order is necessary to achieve the required general deterrence. It is important that both the public and specifically the waste industry, should be informed that a prosecution was undertaken for a breach of this duty and that the Court convicted and fined the defendants for their offences.

Court Orders

70 The Court makes the following orders:

No. 50024 of 2004

1) The defendant is convicted of the offence as charged;

2) The defendant is fined an amount of $20,000.

3) Order that the defendant pay the prosecutor’s costs in accordance with s 253(2) of the Criminal Procedure Act 1986; and

4) The exhibits may be returned.

No. 50025 of 2004

1) The defendant is convicted of the offence as charged;

2) The defendant is fined an amount of $40,000;

3) Pursuant to sub-s 250(1)(a) of the Protection of the Environment Operations Act 1997, within four (4) weeks of the date of this order, the defendant cause a notice to be placed once in the terms set out in Annexure “A” hereto -

a) In the Newcastle Herald , Saturday edition on page 3, at least a quarter page in size; and
b) In the Waste Management and Environment magazine at least a quarter page in size.

4) Order that the defendant pay the prosecutor’s costs in accordance with s 253(2) of the Criminal Procedure Act 1986; and

5) The exhibits may be returned.

I hereby certify that the preceding 70 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate:

Dated: 22 April 2005
**********

ANNEXURE A

PUBLICATION ORDER

Pursuant to Part 8.3 of the Protection of the Environment Operations Act 1997 (NSW)

[Steepleton Pty Ltd logo]

“On 21 April 2005 Steepleton Pty Limited and Kenneth Warren Pannowitz (a Director of Steepleton Pty Limited) were convicted and fined $40,000 and $20,000 respectively in the Land and Environment Court of New South Wales for transporting waste to a place that could not lawfully be used as a waste facility for that waste. This is an offence against section 143(1)(a) of the Protection of Environment Operations Act 1997 (NSW). The offences involved the unlawful transport of between 1310-1661 tonnes of predominantly building and demolition waste to premises at Phoenix Park. The disposal of the waste at the premises was unlawful because there was:

(a) no environment protection licence issued by the Environment Protection Authority of the New South Wales for the waste facility;
(b) no development consent from the local council (Maitland City Council); and
(c) no approval from the Minister administering the Water Management Act 2000 (NSW) for a structure adjacent to a levee bank designed to prevent flooding from a tributary of the Hunter River.


Steepleton Pty Limited and Kenneth Warren Pannowitz were prosecuted by the Environment Protection Authority and were ordered by the Land and Environment Court to place this notice in the Newcastle Herald and Waste Management and Environment magazine .

[DEC logo] The Environment Protection Authority is now part of the Department of Environment and Conservation.