Environment Protection Authority v S J Perry
[2004] NSWLEC 715
•12/17/2004
Reported Decision: 135LGERA 431
Land and Environment Court
of New South Wales
CITATION: Environment Protection Authority v S J Perry [2004] NSWLEC 715 PARTIES: PROSECUTOR:
DEFENDANT:
Enviornment Protection Authority
S J PerryFILE NUMBER(S): 50038 of 2004 CORAM: Bignold J KEY ISSUES: Environmental Offences :- 3000 tonnes of used tyres abandoned by Corporation-Liability of Director of Corporation for offence committed by Corporation-Appropriate penalty-Clean-up-Order too financially burdensome to Defendant with limited financial means-penalty also to reflect Defendant's limited financial capacity.
LEGISLATION CITED: Protection of the Environment Operations Act 1997, ss 115, 169 CASES CITED: Millner v Raith (1942) 66 CLR 1;
Rahme (1989) 43 Aust Crim R 81DATES OF HEARING: 15/12/2004 DATE OF JUDGMENT: 12/17/2004 LEGAL REPRESENTATIVES: DEFENDANT:
PROSECUTOR:
Mr J Rushton SC
SOLICITORS
Department of Environment and Conservation
Mr J Maston, Barrister with Mr M Seymour, Barrister
SOLICITORS
Baldock Stacey and Niven
JUDGMENT:
17
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BIGNOLD J
17 December 2004
JUDGMENT50038 of 2004 ENVIRONMENT PROTECTION AUTHORITY v STANLEY JAMES PERRY
HIS HONOUR:
1 The Defendant has pleaded guilty to a charge that “as a director of K P Recycling Pty Ltd (ACN 094 910 817) between 1 May 2001 and 31 July 2001 inclusive, he committed an offence against the Protection of the Environment Operations Act 1997, s 115(1) by reason of s 169(1) of that Act, in that K P Recycling Pty Ltd did negligently dispose of waste in a manner that harmed or was likely to harm the environment”.
2 The particulars endorsed upon the Summons were as follows:
- (a) Corporation that contravened s 115(1) of the Act:C
- K.P. Recycling Pty Ltd
(ACN 094 910 817)
- at a property known as Lot 9, DP 7775454, Arthursleigh Lane, Gilgandra, New South Wales (the “premises”).
- Approximately 3000 tonnes of used tyres.
- The corporation negligently abandoned the waste it had previously stored at the premises.
- Abandoning the waste at the premises and, as a result, leaving the waste in such a state that it would harm or would be likely to harm the environment because:
(i) of the amount of the waste involved; and/or
(ii) the waste was stored too close to the boundary of the premises; and/or
(iii) the waste was not separated into stockpiles.
- (i) degradation of the environment;
(ii) land pollution, namely, the degradation of land because of the disposal of the waste on the land;
(iii) disposal of the waste in such a manner as to pose a risk of fire and air pollution
(iv) disposal of the waste in such a manner as to increase the likelihood of air pollution in the event of a fire;
(v) disposal of the waste in such a manner as to increase the amount of air pollution in the event of a fire;
(vi) disposal of the waste in such a manner as to increase the risk of harm to nearby residents from air pollution in the event of a fire;
(vii) disposal of the waste in such a manner as to increase the likelihood of and amount of water pollution resulting from attempts to extinguish any fire at the premises; and/or
(viii) disposal of waste in such a manner as to degrade the environment by providing conditions for the breeding of organisms such as mosquitos and rodents.
3 The Protection of the Environment Operations Act 1979, s 115 (the PEO Act) is in the following terms:
- 115 Disposal of waste—harm to environment
(1) Offence
If a person wilfully or negligently disposes of waste in a manner that harms or is likely to harm the environment:
- (a) the person, and
(b) if the person is not the owner of the waste, the owner,
- It is a defence in any proceedings against a person for an offence under this section if the person establishes that the waste was disposed of with lawful authority.
- In this section:
dispose of waste includes to dump, abandon, deposit, discard, reject, discharge or emit anything that constitutes waste, and also includes to cause or permit the disposal of waste.
owner of waste includes, in relation to waste that has been disposed of, the person who was the owner of the waste immediately before it was disposed of.
waste includes any unwanted or surplus substance (whether solid, liquid or gaseous). A substance is not precluded from being waste merely because it may be reprocessed, re-used or recycled.
4 The Dictionary to the PEO Act includes the following relevant definitions—
- harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.
environment means components of the earth, including:
(a) and, air and water, and
(b) any layer of the atmosphere, and
(c) any organic or inorganic matter and any living organism, and
(d) human-made or modified structures and areas,
and includes interacting natural ecosystems that include components referred to in paragraphs (a)–(c).
pollution means:
(a) water pollution, or
(b) air pollution, or
(c) noise pollution, or
(d) land pollution.
land pollution means the degradation of land because of the disposal of waste on the land.
5 Section 118 of the PEO Act provides the following general defence to tier 1 offences (the present charge is for a tier 1 offence):
- 118 General defence for tier 1 offences
It is a defence in any proceedings against a person for an offence under this Part if the person establishes:
(a) that the commission of the offence was due to causes over which the person had no control, and
(b) that the person took reasonable precautions and exercised due diligence to prevent the commission of the offence.
6 Section 119 prescribes the maximum penalty for tier 1 offences—namely a penalty not exceeding $1,000,000 in the case of a corporation and a penalty not exceeding $250,000 or 7 years imprisonment or both, in the case of an individual.
7 Section 169 which is the basis for the Defendant’s admitted liability in respect of the present charge provides as follows:
- 169 Offences by corporations
(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.
(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.
(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.
(4) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular intention, is evidence that the corporation had that intention.
8 The competing submissions on sentence for the admitted offence ranged from (i) the Prosecutor’s case for the imposition of a significant penalty plus the making of an order pursuant to s 245 of the PEO Act requiring the Defendant to remove from the Gilgandra premises where they are stored some 3,000 tonnes of used tyres and to transport those types to a waste facility authorised to receive that type of waste; to (ii) the Defendant’s case for the imposition of a more modest fine which is commensurate to the Defendant’s limited capacity to pay that fine.
9 The PEO Act, s 245 which appears in Pt 8.3 (“Court Orders in connection with offences”) is in the following terms:
- 245 Orders for restoration and prevention
The court may order the offender to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow):
(a) to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence, or
(b) to make good any resulting environmental damage, or
(c) to prevent the continuance or recurrence of the offence.
10 It is to be noted in respect of an order made under s 245 that such an order may be made “in addition to any penalty that may be imposed” (s 244(2)) and that it is a separate offence (created by s 251) if a person “fails to comply with” such an order with a prescribed maximum penalty of “$60,000 for each day the offence continues”.
11 For the reasons hereafter given, I am of the opinion that in the circumstances of this case, especially in view of the Defendant’s lack of financial means, that it is not appropriate to make the order sought under s 245 because it would be likely to impose on the Defendant an insurmountable and crippling financial burden of hundreds of thousands of dollars and it is likewise appropriate to considerably reduce the fine that otherwise would have been warranted (commensurate with the seriousness of the admitted offence, and having regard to the objective circumstances of the commission of the offence and the Defendant’s subjective culpability and personal circumstances) on account of the Defendant’s present limited financial means.
12 Before setting forth my reasons for concluding what is the appropriate sentence in this case, I intend to first recite the relevant facts concerning the admitted offence and then the facts concerning the Defendant’s subjective culpability and personal circumstances.
13 But before so proceeding, I should make a few observations concerning the present charge and the Defendant’s liability under it. Firstly, it is to be noted that the Summons preferring the charge was not filed until 30 April 2004 nearly three years after the commission of the offence.
14 Secondly, it is to be noted that the Defendant’s liability to the present charge is a status liability in that it is a liability imposed upon him as a director of the corporation that contravened the PEO Act.
15 Thirdly, it to be noted that the present charge was brought in circumstances where no charge has been brought against the corporation K P Recycling Pty Ltd (KP) (presumably because that company went into liquidation soon after the commission of the offence in mid 2001).
16 The liability created by s 169 which the Defendant has admitted is a liability that he as a Director of K P “is taken to have contravened the same provision” that was contravened by KP.
17 Speaking of a similar provision contained in the Commonwealth Defence Act 1903, Starke J in Millner v Raith (1942) 66 CLR 1 at 5 said:
- The provisions (of the similar provision) are complementary to (sections creating specific offences).
They make a director or person concerned in the management of a body corporate responsible as a principal for any act or fact specified in those sections merely because of his relation to the body corporate.
18 This decision is cited in Peter Gillies’ “Criminal Law” (4th ed 1997) at p 149 in support of the following statement in his chapter 6 (“The Criminal Liability of Corporations”):
- It has occasionally been provided in a statute creating criminal liability in a company, that when an offence is committed by a company every person being a director or person concerned in the management of the company shall be guilty of this offence unless that person proves certain matters of exculpation
19 However, as noted at pp 166/167 in Bates and Lipman “Corporate Liability for Pollution” (1998) modern environmental protection legislation in Australia has almost uniformly created liability in corporate officers “solely by virtue of their position in the organisation” for environmental offences committed by their corporations.
20 A similar legislative pattern has emerged in modern English environmental protection legislation—see for example the Environmental Protection Act 1990, s 157(1) which provides:
- 157(1) Where an offence under any provision of this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
21 Speaking of a similar provision contained in the English Fire Precautions Act 1971 (s 23) imposing separate liability on a “director, manager, secretary or other similar officer of the body corporate” for an offence committed by the body corporate “attributable to any neglect on the part of” those nominated persons, the English Court of Appeal in R v Boal (1992) 3 AllER 177 said at 181:
- It follows from all this that the appellant was only properly imperilled by s 23 if, as the assistant general manager of the shop, he had the management of the whole affairs of the company , was intrusted with power to transact the whole of the affairs of the company , and was managing in a governing role the affairs of the company itself . The intended scope of s 23 is, we accept, to fix with criminal liability only those who are in a position of real authority, the decision-makers within the company who have both the power and responsibility to decide corporate policy and strategy. It is to catch those responsible for putting proper procedures in place; it is not meant to strike at underlings.
22 The liability imposed by the PEO Act, s 169 is imposed textually in more absolute terms than are the similar English provisions (although the differences are probably considerably narrowed by dint of the exculpations from that liability expressly provided by s 169(1)).
23 The relevant facts principally are sourced in the Statement of Agreed Facts (Exhibit 1) which was tendered at the outset of the hearing. From the contents of that Statement I extract the following factual summary:
- (i) In the second half of 2000 the Defendant first became acquainted with the then existing business of receiving used vehicle tyres for storage and recycling that had been commenced at Gilgandra by Mr Noel Keerie in January 2000;
(ii) The business was being conducted on a rural parcel of land owned by the Gilgandra Shire Council and leased to Mr Keerie’s Company, En-Tyre Rubber Works Pty Ltd and situate some 8 kilometres from the Gilgandra township. Mr Keerie’s Company had obtained development consent under the Environmental Planning and Assessment Act 1979 from the Council on 6 December 1999 for the establishment on the Council’s land of a “ tyre storage and processing plant ”. Conditions of consent included conditions that had been recommended by the Environment Protection Authority. Condition (xi) required that a “$ 20,000 bond be paid to Council in cash or bank guarantee ” for the stated reason:
- to ensure that funds are available to manage tyres left on site in the event that activities relating to the land use cease
- The lease contained the following condition:
12.3 When this lease ends, unless the tenant becomes a tenant of the property under a new lease the tenant must—
- 12.3.1 return the property to the landlord in the state and condition that this lease requires the tenant to keep it in; and
12.3.2 have removed any goods and anything that the tenant fixed to the property and have made good any damage caused by the removal.
- Anything not removed becomes the property of the landlord who can keep it or remove and dispose of it and charge to the tenant the cost of removal making good and disposal.
- That Licence authorised the use of the Gilgandra premises by the carrying out of scheduled activities comprising “ Waste facilities—tyres ” subject to specified conditions including the following:
Waste
L5.1 The licensee must not cause, permit or allow any waste generated outside the premises to be received at the premises for storage, treatment, processing, reprocessing or disposal or any waste generated at the premises to be disposed of at the premises, except as expressly permitted by the licence.
L5.2 This condition only applies to the storage, treatment, processing, reprocessing or disposal of waste at the premises if those activities require an environment protection licence.
L5.3 Except as provided by any other condition of this licence, only inert in the form of tyres may be stores or transferred, recovered b way of separating or processing at the premises.
L5.4 The total quantity of inert waste in the form of tyres stored or transferred, recovered by way of separating or processing at the premises must not exceed 2500 tonnes at any one time.
L5.5 Not limiting condition L5.4, the amount of tyres less than 1.2 metres in diameter must not exceed 200 tonnes.
- (v) On 24 October 2000 Licence No 10635 was varied by the Environment Protection Authority following a request made by Mr Keerie in March that year. The variation included an increase of the limit on the storage of used tyres at any one time from 2,500 tonnes to 5,000 tonnes. In the “ background ” recitals to the Variation of the Licence it is disclosed that Mr Keerie had informed the EPA officers of his obligation under a Court order obtained by the Great Lakes Council to remove by the end of 2000 all stored tyres (some 2,000 tonnes) at premises in Coolongolook which Mr Keerie had previously operated.
(vi) In mid 2000 Mr Keerie had entered into negotiations with Brambles Industrial Mining Services with the prospect of supplying Brambles with thousands of tonnes of crumbed or chipped used rubber tyres for use as stemming in drill holes when carrying out mine blasting. Those negotiations had included the supply by Mr Keerie of chipped rubber which was successfully trialled by Brambles at their mine sites. Brambles representatives inspected the Gilgandra premises and 16 November 2000 they addressed the Gilgandra Council indicating that they hoped to use Mr Keerie’s Gilgandra operation because of its locational advantage to Brambles. Brambles intention was to utilise the Gilgandra premises as the processing plant with used tyres coming in for processing before going out to Brambles for use at their Mines.
- However, Brambles wanted to do business with a person with more business acumen than that possessed by Mr Keerie. It was at that point that the Defendant came on the scene and for the remainder of the year 2000 the Defendant also attended meetings with Brambles representatives and KP was formed as a corporate entity with the Defendant and Mr Keerie being its directors. The Defendant had no previous interest or experience in the used tyre recycling business.
In the course of those meetings and negotiations, the Defendant prepared a draft business plan for the supply from the Gilgandra operation of Brambles needs. The plan was well received by Brambles which responded by informing KP on 10 January 2001 that Brambles would wish to continue to form a strategic partnership with KP with an initial need for chipped tyre supply at the rate of 28,000 tonnes per annum.
(viii) By letter received by the Council on 22 December 2000, the Defendant, as Director of KP, advised that “Entyre Recycled Constructions has now formed into a company” of which the Defendant and Mr Keerie were directors. Thereafter, monthly rental payments were made by KP until default in the payment of rent occurred in June 2001;
(ix) In January 2001, the Defendant became aware that Mr Keerie was in financial difficulty and was in the process of having himself declared bankrupt. On 18 January 2001, Mr Keerie ceased being a Director of KP and the Defendant thereafter became the sole Director. Mr Keerie continued at the Gilgandra premises as an employee of KP and was chiefly responsible for the day to day operation. The Defendant only twice attended the Gilgandra premises.
(x) From late 2000 until June 2001, KP acquired and brought many used tyres to the Gilgandra premises, with the result that by June 2001 some 3,000 tonnes of used tyres were stored at the premises. KP received $350,000 gross in payment for the tyres which it brought to the Gilgandra premises during this period.
(xi) By letter dated 24 April 2001 addressed to Mr Keerie the EPA again varied Licence No 10635 by imposing a further qualification on the condition limiting the quantity of stored tyres to “not more than 5,000 tonnes at any one time”.
- This qualification was expressed in the following additional condition:
L5.6 Any tyres received at the premises….in excess of 3,000 tonnes must be sourced only from the premises at…..Coolongolook”.
- The reasons for this unilateral change in the relevant condition were set forth in the EPA’s accompanying letter and are encapsulated in the following background recitals to the Variation of the License:
(a) KEERIE; NOEL & SUSAN t/as ENTYRE RECYCLED CONSTRUCTIONS (“the licensee”) is the holder of environment protection licence 10635 for Scheduled Activity – Premises Based (“the licence”) under the Protection of the Environment Operations Act 1997 (“the POEO Act”).
(b) The licensee currently has two separate licensed Used Tyre Processing or Disposal facilities, these being environment protection licence 10635, Arthursleigh Lane Gilgandra (“Gilgandra”) and environment protection licence 6187, 13041 Pacific Highway Coolongolook NSW (“Coolongolook”). The licensee was required by a court order to remove all tyres from the Coolongolook premises by the 31 December 2000.
(c) On the 24 October 2000 the EPA amended environment protection licence 10635 by changing the tyre storage limit on the licence from 2,500 to 5,000 tonnes. This amendment was on the understanding that the increase in tyre storage volume for Gilgandra was to accommodate those tyres required to be relocated from Coolongolook, thus enabling the licensee to comply with the court order.
(d) On the 6 March 2001 the EPA was advised that none of the tyres at Coolongolook appeared to have been removed. Furthermore, during an inspection of the Gilgandra premises by the EPA on the 8 March 2001, Terry Knowles and Carmen Dwyer of the EPA were advised by the licensee that approximately 2,500 were stored at the Gilgandra premises.
(e) In order to ensure that the Gilgandra premises has sufficient capacity to accommodate Coolongolook tyres and thus enable the removal of tyres from the licensees premises at “Coolongolook”, the EPA via this notice varies environment protection licence 10635 by restricting the amount of tyres obtained from sources other than Coolongolook and stored at the Gilgandra premises at any one time to 3000 tonnes.
In addition the EPA will require the licensee to submit to the EPA records of all tyres or tyre product delivered to and from the Gilgandra premises in order to demonstrate that tyres obtained from sources other than Coolongolook do not exceed the 3,000 tonne limit, and that the removal of tyres from the Coolongolook premises is occurring. This requirement is to remain in place until such time as all tyre and tyre products at the “ Coolongolook ” premises have been removed.
- As at 27 June 2001, the licensee is to accept no further tyres at the premises until such time as all tyres presently stored at the premises have been recycled, reprocessed and/or removed from the premises.
- The background recitals to this Variation note that the EPA had been advised that Mr and Mrs Keerie had been declared bankrupt on 14 June 2001 and that the Commonwealth Bank of Australia was in the process of repossessing various plant and equipment from the Gilgandra premises.
(xiv) In May 2001, the Defendant had decided that KP’s business would need to come to an end and in June 2001 the Defendant took steps to abandon the Gilgandra operation by dismissing employees and contractors and by removing and equipment owned by Pivot Equipment Pty Ltd (another Company owned and controlled by the Defendant) which had been leased to KP during its involvement in the Gilgandra operation. Thereafter, KP abandoned the Gilgandra premises including the abandonment of the 3,000 tonnes of used tyres stored at the premises.
(xv) Following KP’s abandonment of the Gilgandra premises, the Council terminated the lease and re-entered the premises and upon the advice from the NSW Fire Brigade, the Council and the EPA spent many days sorting and separating the used tyres abandoned at the Gilgandra premises to minimise any fire risk posed by their existence. This tidy-up process involved the weighing and counting of the stored tyres, the tonnage of which was calculated at more than 3,200 tonnes.
(xvi) The Statement of Agreed Facts in paragraphs 33 to 38 summarises the adverse environmental effects created by the abandonment of some 3,000 tonnes of used tyres. These paragraphs include the particulars of harm to the environment endorsed upon the Summons that I have earlier recited. The risk of fire and the consequences of that risk being realised are elaborated upon in pars 35 to 38 of the Statement of Agreed Facts.
24 Having summarised the objective facts concerning the commission of the admitted offence, I now shall consider the evidence in mitigation advanced on behalf of the Defendant concerning his personal circumstances and subjective culpability.
25 The Defendant gave evidence in his written Statement (Exhibit A) and orally upon which he was cross-examined.
26 So far as concerns his subjective culpability in the commission of the admitted offence there is no doubt that he personally as the sole Director of KP was responsible for the decision to quit the Gilgandra operation, and thereby abandon some 3,000 tonnes of used tyres, most of which had been brought to the premises by KP during its conduct of the business.
27 Doubtless, the Defendant took that decision because the business venture that he had briefly engaged in had failed to live up to the promise that it had when he was induced by Mr Keerie, an old friend and former employee of the Defendant to join the enterprise.
28 Defence Counsel has naturally focussed upon the events subsequent to the Defendant becoming involved in the Gilgandra business which collectively led to the failure of the business venture, namely:—
- (i) Mr Keerie’s bankruptcy;
(ii) the limit imposed by the EPA upon Licence No 10635 by reference to the removal of tyres from the failed Coolongolook operation of Mr Keerie; and
(iii) the non-fulfilment of the Brambles prospective contract.
29 That these adverse business vicissitudes (whether or not they were reasonably foreseeable is beside the point) were the cause of the Defendant’s decision to abandon the Gilgandra business may readily be accepted. So may the failure of the venture involving KP be readily traced to these business vicissitudes. But whereas these facts may explain how the admitted offence came to be committed they in no way justify or excuse its commission. The commission of the offence by KP was the consequence of the failed business venture. As the sole director of KP, the Defendant may have had no other business choice than to abandon the Gilgandra premises and the business. But these facts are essentially extraneous to the Defendant’s liability under the PEO Act, s 169.
30 Accordingly, the Defendant’s subjective culpability in the commission of the offence must, I think, be regarded as significant. He was the sole Director of KP and it was his decision to abandon the Gilgandra premises. In this sense, and quite apart from his status liability in terms of the PEO Act, s 169, he must be regarded as wholly and actively responsible for the decision. That the decision was constrained by virtue of his realisation of the total failure of the business venture may readily be accepted, but the decision was both knowing and volitional both at the level of personal and business decision making. I accept that the Defendant personally lost some $150,000 in the failed business venture of KP in the Gilgandra operation.
31 The personal circumstances of the Defendant now need to be noted. He is 62 years old and has worked all of his life since leaving school at the age of 14 years. For the past 25 years he has been the Manager of Pivot Equipment Pty Ltd which is engaged in the business of sales and servicing of earthmoving equipment. He has been married three times and has two adult children and two grandchildren.
32 The Defendant is in a poor state of health and suffers from a number of serious medical conditions.
33 His current financial position is that he does not own any property. He sold his shares in Pivot Equipment Pty Ltd to his present wife for $10,000 to obtain funds to pay for his legal fees and fairly recently transferred to his wife the family home in which they reside. Senior Prosecuting Counsel criticised this move as designed to divest himself of assets. There can be no criticism in the fact that any husband transfers to his wife the family home even in circumstances to preserve it as the family home. He has no personal bank account and his joint bank account with his wife owes some $240,0000 to the bank. He is leasing his vehicle upon which he owes more than its value. He earns $57,000 per annum plus a car allowance of $12,000 per annum as Managing Director of Pivot Equipment Pty Ltd.
34 Other mitigating factors operating in favour of the Defendant is the fact that he has pleaded guilty to the charge at an early stage in the proceedings, this is his first offence, he has expressed considerable regret for the commission of the offence and there is no prospect of repeat offences since he has no intention of ever returning to any involvement in the used tyre recycling business (which he only reluctantly entered as a complete novice at the behest of his old friend Mr Keerie, when KP was formed).
35 It is also to be noted that the Defendant is a person of good character both business wise and personally, as is attested by the character evidence adduced at the trial.
36 Senior Prosecuting Counsel submitted that the solution to the environmental problem created by the abandonment of the tyres when the Defendant quit the Gilgandra premises (which problem remains in existence to this day—more than three and a half years later) should not be left to the limited resources of the Gilgandra Shire Council and its ratepayers but that responsibility for the creation of the environmental problem should be sheeted home to the Defendant as the wrongdoer. Upon this basis, he submits that the appropriate penalty is the imposition of a significant fine and the making of a clean-up order pursuant to the PEO Act, s 245.
37 In my judgment, these submissions, which if accepted, would result in the creation of a huge financial burden that is so wholly disproportionate to the Defendant’s capacity to satisfy such a burden as to visit him with punitive oppression. In so concluding, I must not be taken to be spurning the suggestion that an environmental wrongdoer should be made responsible for environmental rehabilitation where that is possible and practical. As a general proposition, it is workable and reasonable curial response to a finding of environmental wrongdoing.
38 But in the present case, in the light of the evidence concerning the Defendant’s limited financial means, the prospect of his being able to comply with the s 245 Order sought by the Prosecutor is worse than hopeless and it would border on being financially oppressive because of the massive financial costs involved in complying with such an order.
39 These same considerations must also inform the quantum of penalty that is appropriate to be imposed on the Defendant: see Rahme (1989) 43 Aust Criml R 81 and the Fines Act 1996, s 6 which is in the following terms:
- Consideration of accused’s means to pay
In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:
(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and
(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
40 An additional factor to be taken into consideration in determining the amount of the penalty is the fact that the Prosecutor has sought the usual costs order against a convicted defendant, namely that the Prosecutor’s reasonable costs be paid. In this respect, the parties’ Solicitors have jointly notified the Court that the Prosecutor has recently provided to the Defendant’s Solicitors his estimate of costs in the sum of $85,000 but is prepared to settle for the lesser amount of $65,000 if that is agreed to by the Defendant. The question of costs is still being negotiated by the parties but I am asked to consider the foregoing facts as the likely extent of liability under the costs order sought by the Prosecutor.
41 In all of the circumstances, I have concluded that putting aside the mitigating factors that I have mentioned (which operate in favour of the Defendant) a penalty in the order of $100,000 would be called for in this case based upon the objective seriousness of the offence and the Defendant’s subjective culpability in its commission (albeit that culpability is to be appreciated via the Defendant’s status liability created by the PEO Act, s 169). When full allowance is given to the mitigating factors a global reduction of 40 percent is in my view entirely justified, which would produce a penalty of $60,000.
42 Lastly, in the exercise of sentencing discretion, this amount is to be re-assessed in the light of the requirements of the Fines Act s 6 (cf Rahme), as I have found them to exist in the present case.
43 So re-assessed, I think that the penalty should be reduced to $30,000, which when combined with the likely outcome of the usual costs order I propose to make in favour of the Prosecution means that the Defendant, with very limited financial capacity, will be facing a total financial obligation of nearly $100,000 (quite apart from his own legal costs) which he has incurred in his capacity of being a Director of a short-lived failed business corporation.
44 For all of the foregoing reasons, I make the following orders—
- 1. The Defendant is convicted of the offence as charged.
2. A penalty of $30,000 is imposed in respect of that conviction.
3. The Defendant is to pay the Prosecutor’s reasonable legal costs in accordance with the provisions of the Criminal Procedure Act 1986 , s 253.
4. Exhibits be returned.
1
2
1