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Environment Protection Authority v Ramsey Food Processing Pty Ltd

Environment Protection Authority v Ramsey Food Processing Pty Ltd

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Case Copied 24 February 2010 62 min read

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Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Ramsey Food Processing Pty Ltd

FILE NUMBER(S): 50073; 50074; 50075 of 2008

CORAM: Biscoe J

KEY ISSUES: ENVIRONMENTAL OFFENCES :- sentencing considerations - offence of polluting waters of a creek and tributary - offence of occupier failing to notify appropriate regulatory authority of the pollution incident as soon as practicable after becoming aware of it - pollutant untreated effluent from defendant's abattoir which escaped as result of a split pipe and a valve being open

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A
Fines Act 1996, s 6
Protection of the Environment Operations Act 1997, ss 120, 148

CASES CITED: Azzopardi v R (2001) 205 CLR 50
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34, 145 LGERA 234
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Boral Australia Gypsum Ltd [2009] NSWLEC 26
Environment Protection Authority v Ghossayn [2009] NSWLEC 181
Environment Protection Authority v Hanson Precast Pty Ltd [2008] NSWLEC 285
Environment Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831
Environment Protection Authority v Ramsey Food Processing Pty Ltd [2003] NSWLEC 82, 125 LGERA 369
Environment Protection Authority v Snowy Hydro Pty Ltd [2008] NSWLEC 264, 162 LGERA 273
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419, 148 LGERA 299
Markarian v The Queen [2005] HCA 25, 228 CLR 357
Ngo v Fairfield City Council [2009] NSWCCA 241, 169 LGERA 56
R v Thomson [2000] NSWCCA 309, 49 NSWLR 383
RPS v R (2000) 199 CLR 620
Veen v R (1979) 143 CLR 458
Weissensteiner v R (1993) 178 CLR 217

DATES OF HEARING: 1 - 4 September 2009
7 - 9 September 2009
1 - 2 December 2009
8 December 2009
10 December 2009

DATE OF JUDGMENT:
24 February 2010

LEGAL REPRESENTATIVES: PROSECUTOR:
Mr D Jordan
SOLICITORS:
Environment Protection Authority

DEFENDANT:
Mr A Djemal
SOLICITORS:
Hannigans

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

24 February 2010

50073 of 2008
50074 of 2008
50075 of 2008

ENVIRONMENT PROTECTION AUTHORITY v RAMSEY FOOD PROCESSING PTY LTD

JUDGMENT

1 HIS HONOUR: The defendant, Ramsey Food Processing Pty Ltd, has pleaded guilty to, and is now being sentenced for, three offences.

2 Two of the offences are against s 120 of the Protection of the Environment Operations Act 1997 (POEO Act) for polluting the waters of, respectively, the Musk Valley Creek and the Musk Valley Creek Western Tributary at South Grafton between Monday 8 and Friday 12 October 2007. The pollutant was untreated effluent from the defendant’s abattoir which escaped as a result of a split pipe and a valve being open.

3 The third offence is against s 148(4) in that, being the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 23
Decision Date: 24 February 2010

CaseChat Overview and Summary

Ramsey Food Processing Pty Ltd pleaded guilty to polluting Musk Valley Creek and its tributary with untreated abattoir effluent and to failing to notify the Environment Protection Authority (EPA) of the incident. The offences occurred in October 2007. The Land and Environment Court of New South Wales found the company guilty and sentenced it to fines totalling $130,000 and ordered it to publish a notice of the offences. The Court also ordered the company to pay the EPA’s costs and investigation expenses. The company had pleaded guilty to the offences, but the prosecutor submitted that the utilitarian value of the plea of guilty should be discounted because the defendant had not called as witnesses two of its employees who were on the ground at the time of the incident and the company’s chief executive officer did not accept that the company’s operations had caused the pollution incident. The Court concluded that the utilitarian value of the plea of guilty was 10 per cent less than usual for an early plea, but not zero. The Court found the objective seriousness of the pollution offences to be low to medium and the objective seriousness of the failure to notify offence to be medium. The Court found that the company had previously been convicted of polluting the creek in 2003 and that it had taken steps to avoid a repetition of the incident. The Court noted that the company had expressed remorse, but was not satisfied that the company had shown real remorse. The Court also found that the company had not complied with its obligation to report the pollution incident to the EPA as soon as practicable, and had deceived an EPA investigator who was investigating complaints of an unpleasant smell. The Court concluded that the offences were serious and warranted a significant penalty. The Court found that the offences warranted a significant penalty and ordered the company to pay fines totalling $130,000 and to publish a notice of the offences. The Court also ordered the company to pay the EPA’s costs and investigation expenses.

Orders