EPA v Ramsey Food Processing Pty Ltd (No.2) - [2010] NSWLEC 175

Land and Environment Court

of New South Wales

CITATION: EPA v Ramsey Food Processing Pty Ltd (No.2) [2010] NSWLEC 175
This decision has been amended. Please see the end of the judgment for a list of the amendments.

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

FILE NUMBER(S): 50069 of 2009

CORAM: Sheahan J

KEY ISSUES: ENVIRONMENTAL OFFENCES :- No appearance by Defendant - ex parte hearing - sentencing principles - had pleaded not guilty but put on no evidence - actual environmental harm, but minor - prompt mitigation - poor record - possible impecuniosity - audit ordered in lieu of imposing fine - publication order - costs - investigation expenses

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Protection of the Environment Operations Act 1997

CASES CITED: EPA v George Weston Foods Ltd [2010] NSWLEC 120
EPA v Pal [2009] NSWLEC 35
EPA v Ramsey Food Processing Pty Ltd [2003] NSWLEC 82, 125 LGERA 369
EPA v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23
EPA v Ramsey Food Processing Pty Ltd [2010] NSWLEC 150

DATES OF HEARING: 17 September 2010

EX TEMPORE JUDGMENT DATE: 17 September 2010

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr D Jordan, Barrister
SOLICITORS
Department of Environment, Climate Change and Water
DEFENDANT
No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

17 September 2010

50069 of 2009 Environment Protection Authority v Ramsey Food Processing Pty Ltd (No.2)
EXTEMPORE JUDGMENT

Introduction

1 His Honour: The defendant company is to be sentenced today, following its conviction on 10 August 2010 for a “pollution of waters” offence under s 120(1) of the Protection of the Environment Operations Act 1997 (‘POEO Act’), committed on 3-4 December 2008.

2 It is also on notice (see Exhibits P11, P13, P14, P15, P17, and P18) that the court may well make other orders against it today under s 250(1) of that Act in respect of environmental auditing, and publication of the conviction and any sentence. The prosecutor no longer seeks a further order requiring the defendant to fund an environmental or other community project.

3 The company entered a plea of Not Guilty to the charge on 11 June 2010, but has failed to appear or be represented when the substantive trial was listed on 9-10 August 2010, when the matter was mentioned on 10 September 2010, and again today.

4 The defendant company has filed no evidence at all in these proceedings, and has not responded to the prosecutor’s invitation to engage with it in ensuring that the premises are audited.

5 On 6 August 2010, the eve of the liability hearing, the defendant wrote to the court in the following terms:

“ Your Honour

Ramsey Food Processing Pty Ltd is in a pecunious (sic) financial position and unable to afford the services of legal practitioners. An application was made to the Department of Environment Climate Change and Water to transfer the licence and dispute giving all particulars to 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 175
Decision Date: 17 September 2010

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard the case of EPA v Ramsey Food Processing Pty Ltd (No.2), where the defendant company was convicted of a "pollution of waters" offence under section 120(1) of the Protection of the Environment Operations Act 1997. The defendant, Ramsey Food Processing Pty Ltd, was found guilty of discharging a mixture of animal tallow and waste water into Musk Valley Creek, resulting in environmental harm. The key issues for the court to decide included sentencing principles, the objective and subjective circumstances of the offence, and the defendant's poor record in environmental matters.

In deciding the appropriate penalty, the court considered the objective seriousness of the offence, the offender's record, and the defendant's cooperation with authorities. The court found that the objective seriousness of the offence was relatively low, but the defendant's poor record and failure to engage with the prosecutor were significant factors. The court decided to order an environmental audit of the defendant's premises in lieu of imposing a fine, as the defendant had failed to cooperate with the prosecutor in this regard.

The court also ordered the defendant to pay the prosecutor's costs and investigation expenses, as well as to place and pay for an advertisement in both the Sydney Morning Herald and the Grafton Daily Examiner to publicise the offence. The defendant was given a deadline to provide evidence of compliance with these orders.

In summary, the Land and Environment Court of New South Wales found Ramsey Food Processing Pty Ltd guilty of the pollution offence and ordered an environmental audit of the company's premises, as well as publication of the conviction and payment of costs and expenses. The court chose to order an audit instead of a fine, given the defendant's poor record and failure to engage with the prosecutor.

Orders