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Hanna v Environment Protection Authority

Hanna v Environment Protection Authority

Case [2019] NSWCCA 299 20 December 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hanna v Environment Protection Authority [2019] NSWCCA 299
Hearing dates: 4 November 2019
Date of orders: 20 December 2019
Decision date: 20 December 2019
Before: Macfarlan JA at [1];
Walton J at [48];
Bellew J at [105]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeal – sentencing – offender agreed to court taking into account three offences of transporting waste to facility that cannot be used as a waste facility when sentencing him for principal offences – statutory Form 1 procedure not utilised – common law principle permitting additional offences admitted by offender to be taken into account in sentencing process – whether common law only authorises an additional offence to be taken into account in respect of a single, identified, charged offence

CRIME – appeal – sentencing – non-parole period – special circumstances – whether sentencing judge erred in not considering matters relied upon in combination – whether hardship to offender’s family may be taken into account – points not taken in court below
CRIME – appeal – whether sentencing miscarried because of incompetence of offender’s counsel – mandatory visa cancellation provisions in Migration Act engaged as a result of sentence – evidence and argument not put before sentencing judge as to mandatory cancellation of visa and its effects on the offender and his family
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 44
Crimes (Sentencing Procedure) Regulation 2017 (NSW), cl 4
Criminal Law Consolidation Act 1935-1980 (SA), s 170
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Probations and Parole Act 1983 (NSW)
Protection of the Environment Operations Act 1997 (NSW), ss 142A(1), 143(1), 144AB
Cases Cited: AC v R [2016] NSWCCA 107
Ali v R [2014] NSWCCA 45
Alkhair v R (2016) 255 A Crim R 419; [2016] NSWCCA 4
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Australian Health & Nutrition Association Pty Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61
Carter v R [2018] NSWCCA 138
Guden v R (2010) 28 VR 288; [2010] VSCA 196
Hickling v The State of Western Australia (2016) 260 A Crim R 33; [2016] WASCA 124
Kristensen v R [2018] NSWCCA 189
Lee v R [2019] NSWCCA 15
Loftus v R [2019] VSCA 24
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Nudd v The Queen (2006) 225 ALR 161; [2006] HCA 9
O’Connor v R [2017] NSWCCA 300
R v Arrowsmith (2018) 333 FLR 415; [2018] SASCFC 47
R v Birks (1990) 19 NSWLR 677
R v Chi Sun Tsui (1985) 1 NSWLR 308
R v Fordham (1997) 98 A Crim R 359
R v Hull [2016]…

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.

Continue reading Hanna v Environment Protection Authority

Details

AGLC: Hanna v Environment Protection Authority [2019] NSWCCA 299
Case: [2019] NSWCCA 299
Decision Date: 20 December 2019

CaseChat Overview and Summary

In Hanna v Environment Protection Authority, the respondent sought an appeal against a decision made by the sentencing judge. The appeal centred on the sentencing of the offender, who was found guilty of three offences related to the transportation of waste to a facility that was not authorised to be used as a waste facility. The respondent argued that the sentencing judge did not consider certain factors, including the statutory Form 1 procedure, the common law principle of taking additional offences into account, and the potential impact of mandatory visa cancellation provisions on the offender and his family. The respondent contended that the sentencing process miscarried due to the incompetence of the offender's counsel, as these factors were not presented to the sentencing judge.

The legal issues before the court included whether the common law principle allowing additional offences to be considered in sentencing only applied to a single, identified, charged offence, and whether the sentencing judge erred by not considering certain matters in combination, including the potential hardship to the offender’s family. The court also had to determine if the sentencing process miscarried due to the alleged incompetence of the offender's counsel, and if the mandatory visa cancellation provisions in the Migration Act, which resulted from the sentence, were properly considered. The respondent's points regarding the sentencing judge’s consideration of these factors were not raised during the original sentencing hearing.

The court found that the sentencing judge had considered the relevant factors, including the statutory Form 1 procedure and the common law principle of taking additional offences into account. The court held that the common law principle does permit additional offences admitted by the offender to be considered in the sentencing process. It was determined that the sentencing judge did not err in not considering the points regarding special circumstances and hardship to the offender's family, as these matters were not taken in the original sentencing hearing. The court further concluded that the sentencing process did not miscarry due to the alleged incompetence of the offender's counsel, and that the mandatory visa cancellation provisions were not adequately argued before the sentencing judge. Consequently, the appeal was dismissed.

Orders