Jones v Glenorchy City Council
[2006] TASSC 27
•24 April 2006
[2006] TASSC 27
CITATION: Jones v Glenorchy City Council [2006] TASSC 27
PARTIES: JONES, Warren George
v
GLENORCHY CITY COUNCIL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 1/2006
DELIVERED ON: 24 April 2006
DELIVERED AT: Hobart
HEARING DATE: 30 March 2006
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Review of sentence – Penalty manifestly inadequate.
Aust Dig Magistrates [272]
Environment and Planning – Pollution – Waste disposal – Offences – Particular offences – Allowing a pollutant to be deposited in a place or position where it could reasonably be expected to cause material environmental harm – Liability of municipal council – Penalty manifestly inadequate.
Environmental Protection Authority v Tenterfield Shire Council [2000] NSWLEC 229; R v Dowie [1989] Tas R 167; Plastic Fabrications Pty Ltd v The Crown [1999] TASSC 95, referred to.
Environmental Management and Pollution Control Act1994 (Tas), ss5, 50, 51, 51A, 53, 55.
Sentencing Act 1997 (Tas), s3.
Aust Dig Environment and Planning [422]
REPRESENTATION:
Counsel:
Appellant: L A Mason
Respondent: P Ikedife
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Simmons Wolfhagen
Judgment Number: [2006] TASSC 27
Number of paragraphs: 43
Serial No 27/2006
File No LCA 1/2006
WARREN GEORGE JONES v GLENORCHY CITY COUNCIL
REASONS FOR JUDGMENT TENNENT J
24 April 2006
This is a notice to review a sentence imposed by a magistrate on the respondent in respect of a breach of the Environmental Management and Pollution Control Act 1994 ("the Act"), s51A(2). On 12 December 2005, a magistrate imposed a fine of $2,500 for the breach. The ground of review was that in all the circumstances the penalty imposed was manifestly inadequate. The respondent is a body corporate. The penalty provided for this offence for a body corporate was a fine not exceeding $120,000.
The Act, s51A(2), provides:
"A person must not deposit a pollutant, or cause or allow a pollutant to be deposited, in a place or position where it could reasonably be expected to cause material environmental harm."
The breach alleged was:
"That the Glenorchy City Council between on or about 1st and on or about 20th March, 2004 caused a pollutant, ie; approximately 3000 kilolitres of untreated sewerage, to be deposited in a place where it could reasonably be expected to cause material environmental harm, ie; Abbotsfield Rivulet and the Derwent River at Beedhams Bay, CONTRARY TO Section 51A(2) of the Environmental Management and Pollution Control Act 1994."
The facts
At all relevant times the respondent, the Glenorchy City Council ("the Council"), was responsible for collecting and treating sewerage in its municipality. Between the dates on the complaint, approximately 3 million litres of untreated sewerage overflowed from pipes for which the Council was responsible and flowed into Beedhams Bay on the Derwent River.
Members of the public were placed at risk by the spill. There was a boat ramp in the bay and the Austins Ferry Yacht Club was within 750 metres of the spill. School groups kayaked in the area. The overflow was caused by a blockage in a sewerage pipe. The blockage was caused by a root ball which had formed from trees about 50 metres from a particular manhole, washing down to a junction of pipes at the manhole. It blocked the sewerage pipe and sewerage then overflowed, not out through the manhole cover, but into storm water pipes that ran below it. The untreated sewerage then flowed out of the storm water outlet into the bay. The overflow began on about 2 March.
Early in March, a Claremont resident noticed the smell from the overflow over a period of about a week. On 10 March, he went down to a nearby jetty on the river and saw toilet paper, faeces and condoms in the water and on the foreshore. He did not, however, immediately notify the Council. On 2 March, a local service station proprietor noticed the smell and reported it to the Council. A Council officer investigated but found no obvious cause for the smell. In the absence of any obvious cause, it was assumed that the smell emanated from some work on a sewerage/storm water connection being done nearby. The complainant was told to call back if the smell worsened.
On 15 March, the man who had seen the raw sewerage in the bay contacted the Department of Primary Industries, Water and Environment ("DPIWE") about the spill. An officer from DPIWE investigated the matter himself but did not immediately contact Council staff. He found the raw sewerage and, sometime after 5pm the same day, he rang the Council. However his mobile went flat during the call and he had not told the Council officer to whom he spoke where the spill was. The Council officer was unable to locate the DPIWE officer and so went out that night to search for the source of the spill. He checked pump stations and manholes and found no evidence of a problem. At 7.30am the following morning, Council staff resumed their search. An hour later they found the blockage and had it cleared an hour after that.
The Council then took some further steps. It erected a sign at Beedhams Bay, flushed fresh water through the storm water system out into the bay, cleaned the shore area, sampled the areas to check for pollutant, and issued a media release advising of the spill and the steps taken to remedy it. The cost to the council of the cleanup was some $3,500 to $4,000.
A report was prepared by a Dr Misrachi, a senior medical advisor with the Department of Health and Human Services and manager of the Statewide Communicable Diseases Prevention Unit, Public and Environmental Health Service. He referred to a number of potential health risks for the community from the spill.
Plea in mitigation
The Council provided an explanation as to how this situation could arise without their knowing about it. In what I might describe as the normal course of events, were there a blockage such as the one in this case, the overflow of sewerage would escape through the nearest manhole cover. It would then be immediately obvious. However, in this case, there were storm water pipes running below the manhole cover. Therefore, instead of the sewerage going out the manhole cover, it went into the storm water pipe and was carried down to the bay.
The Council had a sewer mapping system. Counsel for the Council acknowledged that the storm water overflow pipes, which had been instrumental in this matter, did not show on the system. The Council was unaware of their existence. There were something in the order of 8,700 manholes in the Council's municipality and a number in the vicinity of where the smell was initially reported. The only way the Council would have been able to check at which manhole the problem existed, particularly in the face of there being another plausible explanation for the smell when the service station proprietor reported the matter, was to check each manhole. It was said this was not feasible. Council was highly reliant on public complaints to determine when there was a sewerage blockage.
The Council had responsibility for some 389 kilometres of sewerage pipes. It had in place procedures and methods for cleaning and improving these. There was a pipe foaming program to guard against the very problem which occurred here. There was a specific cleaning program to deal with low gradient pipes which were prone to blockage. Pipes were added to a priority list if a need for cleaning was demonstrated. The particular line in this case was such a low gradient pipe. It was not, however, on the priority list because there had not been a problem with it in several years. Some low gradient pipes were known to silt up and, as such, were placed on an annual cleaning roster. This particular section had now been added to that.
Generally the Council was obliged to use a priority cleaning system because it would cost millions of dollars to clean the entire system annually. The Council's budget for sewerage pipe maintenance was $267,000. After the incident, the Council audited all its storm water pipes and connections with sewers. Where the storm water pipes could be removed, they were. Where they could not be, alarm procedures were put in place.
The Council had engaged consultants to review how best to provide an adequate sewerage system for its ratepayers and improved its computerised database to allow for identification of, and attention to, problems in the future. The Council engaged an expert to review the consequences of the spill and assess its consequences. He concluded that:
"Overall, in my opinion, there only appears to be very limited, possibly none, evidence at this stage that material environmental harm has been caused by the accident – by the incident."
There were no reports of actual illness in humans or demonstrable adverse effects on flora or fauna.
The Council had previously had two infringement notices for breaches of this legislation. These were close in time, but 9 years ago. In each case the Council paid the notice.
Scheme of legislation
The Act, ss50 to 53, created a series of offences. Those created by ss50, 51 and 51A were indictable offences which could be dealt with summarily by consent. The terminology employed in the Act clearly showed that these offences were on a sliding scale, depending on their seriousness. Section 50 dealt with "serious environmental harm". Section 51 dealt with "material environmental harm". Both dealt with actual harm. While s51A referred to both "serious" and "material environmental harm", it dealt with activities which could "reasonably be expected to cause" such harm and not the causing of actual harm.
"Serious environmental harm" and "material environmental harm" were defined in the Act, s5, as:
"5 Environmental harm
(1) For the purposes of this Act, environmental harm is any adverse effect on the environment (of whatever degree or duration) and includes an environmental nuisance.
(2) For the purposes of this Act, the following provisions are to be applied in determining whether environmental harm is material environmental harm or serious environmental harm:
(a) environmental harm is to be treated as serious environmental harm if ¾
(i)it involves an actual adverse effect on the health or safety of human beings that is of a high impact or on a wide scale; or
(ii)it involves an actual adverse effect on the environment that is of a high impact or on a wide scale; or
(iii)it results in actual loss or property damage of an amount, or amounts in aggregate, exceeding ten times the threshold amount;
(b) environmental harm is to be treated as material environmental harm if ¾
(i)it consists of an environmental nuisance of a high impact or on a wide scale; or
(ii)it involves an actual adverse effect on the health or safety of human beings that is not negligible; or
(iii)it involves an actual adverse effect on the environment that is not negligible; or
(iv)it results in actual loss or property damage of an amount, or amounts in aggregate, exceeding the threshold amount."
Additionally, in relation to ss50, 51 and 51A, each section created two offences. The first required proof of intent, the second did not. For each offence under ss50, 51 and 51A, a penalty was provided for a body corporate and a natural person. Section 53 provided for two offences, one of wilfully and unlawfully causing an environmental nuisance and another of unlawfully causing such a nuisance. The penalty for offences under this section was much lower than that for the earlier ones. The respondent in this matter was charged under s51A(2)(a), the penalty being a fine not exceeding $120,000. For the much lesser offence dealt with by s53, the penalty was a fine not exceeding between $10,000 and $30,000.
The range of penalties demonstrated that the intention of Parliament was that courts should treat all prosecutions under this legislation seriously. It was clear that Parliament intended some offences to be treated more seriously than others. The present offence was not at the bottom of the scale.
The Act, s55, provided for a defence to the present charge in subs(1)(c) if it were proved that:
"… the alleged offence did not result from any failure on the defendant's part to take all reasonable and practicable measures to prevent the commission of the offence or offences of the same or a similar nature."
The Council did not avail itself of that defence. It must follow that by its plea of guilty, and notwithstanding the matters put in mitigation, it conceded that to some extent it did not take all reasonable and practical measures to prevent this spill. Had it done so, no doubt the plea would have been not guilty.
Onus
Counsel for the applicant acknowledged the onus it carried to satisfy the Court of error. Counsel submitted that in this case I should be satisfied that the outcome was so far beyond the limits of the learned magistrate's discretion that the sentence itself demonstrated an error had occurred.
Submissions
Counsel for the applicant submitted that there were four matters to which the learned magistrate had to have regard in determining what was an appropriate sentence. These were, the level of culpability, any evidence of remorse or contrition, the degree of harm or potential harm to the environment and the community, and the need for deterrence. She further submitted that the learned magistrate's reasons appeared to show he considered all these matters. However he gave too little weight to personal and general deterrence. She pointed out that the fine imposed represented some 2 per cent of that which could have been imposed. She also submitted that it appeared the learned magistrate had used as a benchmark a sentence he had imposed shortly before this one, in respect of a spill by the Kingborough Council.
As to the level of culpability of the Council, it was submitted it held a position of responsibility in relation to members of the public to ensure the sewerage system worked without hazard to them. That culpability was not negated by the fact that its information system did not record the existence of storm water pipes, that it would be costly to audit pipes and that it was reliant on public complaints. The learned magistrate appeared to address the issue but then failed to give adequate weight to the issue of culpability when considering the issue of deterrence.
As to remorse and contrition, there was no argument the Council did an exemplary job cleaning up and that the learned magistrate accepted that and the evidence of remorse indicated by the plea of guilty. He also accepted the work the Council had since done to ensure there was no recurrence of this problem However that needed, she submitted, to be balanced against the level of culpability.
As to the effect of the spillage, the learned magistrate accepted there was a risk as identified by Dr Misrachi but that it was not high. He noted there was no evidence of any actual illness. He also noted the pollution was gross in its content and accepted there was a measurable effect on the environment. He accepted the offence as significant.
It is of note that the learned magistrate commented, when considering the consequences of the spillage, that there was no actual harm caused. The offence provision does not require proof of actual harm, only that an activity could have reasonably been expected to cause such harm. The Council, by its plea, accepted that the spill could reasonably have been expected to cause environmental harm. The fact that there was no actual harm should not have been a mitigating factor but appeared to have been accepted as such.
All of the considerations outlined were relevant to the exercise of the learned magistrate's discretion. It was submitted, however, that deterrence should play a significant role. Counsel for the applicant referred the Court to a line of authority in New South Wales. It was conceded the authorities dealt with different legislation. However it was submitted that they demonstrated deterrence must play a significant role in cases such as the present.
In Environmental Protection Authority v Tenterfield Shire Council [2000] NSWLEC 229, Lloyd J discussed at par35 of his reasons, the issue of a body such as a council being penalised more lightly because its ratepayers would ultimately bear the responsibility for any penalty. Lloyd J said, at par49:
"Talbot J, in an ex tempore judgment said:
'Mr Ayling has put to the Court that consideration should, in that regard, be given to the fact that the ultimate liability for penalty must come from the quasi public purse which the council administers. Nevertheless, the Court recognises that the penalty should be such that it signifies the seriousness with which the law and the Court, in enforcing the law, regards offences of this type and deters not only councils, but any other authority or enterprise or individual which, from time to time, has cause to dispose of liquids which may have toxic consequences in rivers and watercourses, from doing so without due regard to their responsibilities under legislation such as the Clean Waters Act.
Further, the penalty should be such that the council's constituents are alerted to the performance of their public servants and electorate representatives who might be held accountable for their failure to comply with the law in some other way by other means at other times. As Mr Ayling recognised in his submissions, it becomes a question of balancing all of those factors. (Environment Protection Authority v Casino Council, NSWLEC, 21 November 1997, unreported).'
Lloyd J then went on to say, at par50:
"I am prepared to adopt the approach of Talbot J in the Casino Council case. The primary consideration is, as I have noted, the absolute prohibition contained in the Clean Waters Act. It is to ensure that waters will not be polluted. In the present case the incident was preventable, as the means which the council has subsequently taken demonstrate. The council, as a public body, should be setting an example to other potential polluters in the preventing of pollution, rather then being itself a polluter. The fine to be imposed must also be sufficient to act as both a specific and a general deterrent to the commission of similar offences."
These authorities were not put forward as being indicative of appropriate ranges of penalties, but only in relation to general sentencing considerations in environmental matters where public bodies were involved.
Counsel for the applicant also referred to R v Dowie [1989] Tas R 167 where Wright J said at 86:
"For these reasons I find the so called 'tariff' approach to sentencing of little value, particularly where cases supposedly illustrative of the tariff are few, or the relevant facts are not directly comparable. A court may frequently be aided by the provision of statistical data as to sentences previously imposed in this State, especially if it illuminates the dispositions made where a particular type of relationship exists (see Tracey & Ors v The Queen 38/1987), but in my view, it cannot allow such material to overshadow or displace its own evaluation of the gravity of the offence before it in light of all the known facts and circumstances."
It was submitted that principle was relevant here and demonstrated the learned magistrate gave far too much weight to the penalties imposed in the three cases, including the Kingborough Council one, to which he was referred.
Counsel for the respondent did not dispute the characterisation of the factors the learned magistrate had to take into account. She took the Court through the very detailed submissions in mitigation given before the learned magistrate. She submitted the mitigatory factors were extensive.
She did not dispute that the Court should not apply a tariff when sentencing. but referred to the Sentencing Act 1997, s3(c), where a purpose of that act is set out as being to "… promote consistency in the sentence of offenders."
She submitted the learned magistrate was entitled to at least have regard to sentences imposed in similar matters. In the present situation the only other prosecution under the same section was that against the Kingborough Council in August 2005, a matter dealt with by the same magistrate. It was noted that that case also involved a sewerage spill, but one of about 6 million litres (double that in the present case) and the penalty imposed was $9,000. The learned magistrate made some comments in his reasons about factors which were different between the two cases. However it is, in my view, somewhat difficult to know the extent to which the learned magistrate had regard to the details of that case. While he made some comments in his reasons about that case, it was also apparent he had taken steps to access the court file. That file was not part of the record in the present case.
Counsel for the respondent submitted that s51A contemplated an enormously wide range of ramifications which might flow from an offence. There could have been a significant effect on the environment, or none, as was the case here. In those circumstances the learned magistrate was entitled to view the matter as being at the very low end of the scale. The Court was referred to Plastic Fabrications Pty Ltd v The Crown [1999] TASSC 95 where, at par16, in response to a not dissimilar proposition put by the Crown as that advanced by counsel for the Crown in this case where she said the penalty represented only 2 per cent of the maximum, Underwood J (as he then was) said in relation to the section there being considered that it:
"… proscribes the widest possible range of conduct over the widest possible range of workplaces by the widest possible range of employers and a proportional application of the maximum penalty is unlikely, in any one case, to provide an appropriate response to the magnitude of the wrongful conduct".
In relation to the legislation he was dealing with, Underwood J's view was clearly correct. It would also be relevant to legislation where the same considerations apply. However, with respect, I am not persuaded s51A(2) has quite as wide a set of ramifications. The section obviously contemplates prosecutions where no actual harm occurred but where it might have. Sections 50 and 51 are the sections which contemplate offences where actual harm has occurred. Had actual harm occurred, it is unlikely a prosecution would have been mounted under s51A(2). While the type of pollutant, the circumstances in which it might be deposited, and the consequences, may vary significantly, the range does not appear to be as broad as that contemplated by Underwood J. It was, however, sufficiently wide that a mathematical approach should not be a determinative factor in a sentence such as the present.
In substance, counsel for the respondent submitted the learned magistrate correctly took into account all relevant factors and balanced them appropriately in determining the sentence he imposed.
Conclusion
There can be little doubt, having regard to the learned magistrate's detailed reasons, that he considered all the factors he was obliged to consider. The challenge by counsel for the applicant was to the relative weight that the learned magistrate gave to those factors. It was submitted that insufficient weight was given to the culpability of the respondent, the need for any sentence to reflect the seriousness of the offence, and the need for deterrence, both personal and general. It was submitted too much weight was given to the penalties imposed in other cases, in particular that in the Kingborough Council case. It was submitted that the sentence ultimately imposed was so low that by that very fact a demonstrable error occurred in the sentencing process. With respect, I must agree.
The penalty for the relevant offence was a fine not exceeding $120,000. There were other offences created by the Act of a lesser nature which attracted penalties of up to $30,000. This offence was serious, it involved an admission by the Council that it had not taken all reasonable measures to ensure the spill did not occur and it resulted in a flurry of activity by the Council to ensure the problem did not recur. Part of that activity was activity the Council could have taken before, which would have prevented the spill. The reasons for not undertaking that activity before appeared to be budgetary. This was in circumstances where the Council had two previous infringement notices under the Act, albeit a number of years before.
The potential for harm was significant. There was a clear need for a sentence which would act as a deterrent, both to the Council and to others. The sentence imposed here could not have had any such effect given the level at which it was pitched.
The notice to review will succeed and the sentence imposed by the learned magistrate will be set aside. I will hear counsel as to whether they wish for a resentence in this Court or for the matter to be returned to the learned magistrate.
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