Environment Protection Authority v Snowy Hydro Ltd

[2007] NSWLEC 822

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v Snowy Hydro Ltd and Ors [2007] NSWLEC 822

PARTIES:

PROSECUTOR
Environment Protection Authority

DEFENDANT in 50039 of 2007
Snowy Hydro Limited

DEFENDANT in 50040 of 2007
FRH Group Pty Limited

FILE NUMBER(S):

50039 of 2007 and 50040 of 2007

CORAM:

Preston CJ

KEY ISSUES:

Practice and Procedure :- criminal offences - sentencing - co-offenders - joint sentencing hearing - whether should be ordered

Environmental Offences:- sentencing - co-offenders - joint sentencing hearing - whether should be ordered

LEGISLATION CITED:

Protection of the Environment Operations Act 1997 s 120

CASES CITED:

Lowe v The Queen (1984) 154 CLR 606;
R v Horne [2004] NSWCCA 8;
R v Diep [2000] NSWCCA 472;
Goddard v R [1999] WASCA 281;
R v Christianos (1983) 34 SASR 316;
R v Weekes & Ors (1982) 74 Cr App R 161;
R v Chan Kwok Hung [1996] 4 HKC 559;
HKSAR v Lam Chi Keung, unreported, Hong Kong Court of Appeal, (Power V-P, Liu and Stuart-Moore JJA), 9 December 1998

DATES OF HEARING:

6 December 2007

EX TEMPORE JUDGMENT DATE:

6 December 2007

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr T Howard (Barrister)
SOLICITORS
Department of Environment and Climate Change

DEFENDANT in 50039 of 2007
Mr D Buchanan SC with him Mr D Jordan (Barrister)
SOLICITORS
Baker & McKenzie Solicitors

DEFENDANT in 50040 of 2007
Mr I Lloyd QC
SOLICITORS
Minter Ellison Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

6 DECEMBER 2007

50039 OF 2007 and 50040 OF 2007

ENVIRONMENT PROTECTION AUTHORITY V SNOWY HYDRO LIMITED and FRH GROUP PTY LIMITED

JUDGMENT

1 HIS HONOUR: The prosecutor moves on a notice of motion that proceedings brought against two defendants for offences under s 120 of the Protection of the Environment Operations Act 1997 relating to a set of events at the Jindabyne Dam on the Snowy River, be the subject of a joint sentence hearing.

2 Both defendants have pleaded guilty to the charges, however there are different versions of certain facts as to what occurred and hence of the culpability of each of the defendants.

3 The defendant in proceedings 50040/07, FRH Group Pty Limited, consents to the prosecutor’s motion that there be a joint sentence hearing. The other defendant in proceedings 50039/07, Snowy Hydro Limited, does not consent.

4 Both the prosecutor’s counsel and the senior counsel for FRH Group Pty Limited, have referred the court to the relevant authorities. They are Lowe v The Queen (1984) 154 CLR 606 at 617; R v Horne [2004] NSWCCA 8 at [48]; R v Diep [2000] NSWCCA 472 at [16]; Goddard v R [1999] WASCA 281 at [23] and [34]; R v Christianos (1983) 34 SASR 316 at 317; R v Weekes & Ors (1982) 74 Cr App R 161 at 166; R v Chan Kwok Hung [1996] 4 HKC 559 at 562; HKSAR v Lam Chi Keung, unreported, Hong Kong Court of Appeal (Power V-P, Liu and Stuart-Moore JJA), 9 December 1998 at p. 6 and Blackstone’s Criminal Practice 2008, Oxford University Press, 2008 at D19.8 and D19.9.

5 These authorities establish the desirability, wherever possible, of co-offenders being sentenced by the same judge at the same time in order to facilitate the proper comparison of their respective conduct and antecedents, and so as to avoid the real problem of disparity in sentences.

6 Both the prosecutor and FRH Group Pty Limited submit those principles are highly relevant in the facts of this case.

7 Senior counsel for Snowy Hydro Limited, although acknowledging the desirability as a general principle that co-offenders should be sentenced by the same judge at the same time, submitted that in the circumstances of this case, considerations of time, cost and effort suggest that it is in the interests of justice to conduct separate sentence hearings.

8 Essentially, the argument is that if the prosecutor wishes to establish a version of the facts that is contrary to that being put by Snowy Hydro Limited, there would need to be considerable evidence called by the prosecutor to establish not only those matters that are aggravating circumstances, but also other facts which relate to the account of the events that the prosecutor wishes the court find. This would not be possible by a statement of agreed facts about these matters, rather it will have to be done by evidence. Snowy Hydro Limited foreshadows making an application that such evidence should be in admissible form. It submits that, as a consequence, there would be considerable time, cost and effort involved in preparing this evidence and in running the joint sentence hearing.

9 In my opinion, whilst I acknowledge that considerable time, cost and effort may be involved in the prosecutor preparing its evidence, perhaps in admissible form, as to not only the aggravating facts but also other facts that the prosecutor wishes the court to take into account, nevertheless, the very real benefits that derive for the administration of justice from a joint sentence hearing still outweigh these negative aspects of increased time, cost and effort. It would not be in the interest of justice to have two separate trials with the distinct possibility that there would be disparate findings of fact, and hence disparate sentences between the co-offenders.

10 For these reasons, I conclude that the prosecutor’s motion that there be a joint sentence hearing for each of the proceedings 50039/07 and 50040/07 should be granted.

11 This will now require a timetable and appropriate directions to be made for the preparation of evidence for the joint sentence hearing. For that purpose, I will adjourn the proceedings until 9.30am on 7 December 2007 at which time the party’s legal representatives can propose appropriate directions, hopefully by consent, but otherwise with competing short minutes of order and I will rule upon the appropriate directions that should be made.

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