Jones v Glenorchy City Council - [2006] TASSC 27

[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 1^st and on or about 20^th 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…

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: [2006] TASSC 27
Decision Date: 24 April 2006

CaseChat Overview and Summary

Jones brought a motion to review a sentence imposed by a Magistrate of the Magistrates’ Court of Tasmania. Glenorchy City Council opposed the motion. The underlying dispute arose from an incident in which Jones had been convicted of causing injury to a police horse. The Magistrates’ Court had imposed a penalty on Jones, which he deemed manifestly inadequate. The matter was brought before the Court of Appeal to review the penalty imposed.

The central legal issue before the Court of Appeal was whether the penalty imposed by the Magistrate was manifestly inadequate and whether the Magistrate had failed to properly consider the relevant sentencing principles. The Court had to determine whether the penalty was so inadequate that it would shock the conscience of the court and whether there were any errors in the Magistrate's application of the sentencing principles.

The Court of Appeal found that the Magistrate had indeed failed to properly consider the relevant sentencing principles, particularly the need to protect the community and the seriousness of the offence. The Court held that the penalty imposed was manifestly inadequate, as it did not reflect the seriousness of the offence and the need to protect the community. The Court of Appeal quashed the original penalty and remitted the matter back to the Magistrates’ Court for resentencing, with directions to consider the appropriate penalty in light of the Court of Appeal's findings.

The Court of Appeal made no orders as to costs.

Orders