LIEMAREFF v BALDRY - [2016] SASC 152

Supreme Court of South Australia
(Miscellaneous Appeal: Civil)
LIEMAREFF v BALDRY
[2016] SASC 152
Judgment of The Honourable Justice Doyle (ex tempore)
19 September 2016
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING AND DEVELOPMENT PROSECUTIONS - SENTENCING
The appellant was convicted on his pleas of guilty of two counts of unlawful disposal of waste. The maximum penalty for each count was $120,000 or imprisonment for two years. A Judge fined the appellant $30,000, which was reduced by 40 per cent on account of his early pleas of guilty to $18,000. The appellant appealed on the grounds that the Judge failed to have regard to a relevant comparable sentencing decision; the sentence imposed was manifestly excessive; and the Judge failed to have regard to his contrition.
Held per Doyle J:
1. No error in the Judge’s approach or sentence has been established.
Environment Protection (Waste to Resources) Policy 2010 (SA) clause 10; Environment Protection Act 1993 (SA) s 34; Criminal Law (Sentencing) Act 1988 (SA) ss 10, 16, 18A, referred to.
Wood v Ashurst [2016] SAERDC 8; House v The King (1936) 55 CLR 499; Markarian v R (2005) 228 CLR 357, considered.

LIEMAREFF v BALDRY
[2016] SASC 152
Civil
DOYLE J (ex tempore):

The appellant was convicted on his pleas of guilty of two counts of unlawful disposal of waste. Both counts involved contraventions of clause 10(1) of the Environment Protection (Waste to Resources) Policy 2010 (SA), and hence offences under s 34(1) of the Environment Protection Act 1993 (SA).
The appellant was sentenced by a Judge of the Environment, Resources and Development Court. Her Honour imposed a single penalty in respect of both counts, utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). Her Honour identified a starting point of a fine in the amount of $30,000, which her Honour reduced by 40 per cent to reflect the appellant's early pleas of guilty.
In this appeal against his sentence, the appellant relies upon three grounds:
1.   The Judge failed to have regard to a relevant comparable sentencing decision, namely Wood v Ashurst;[1]
2.   The sentence imposed was manifestly excessive; and
3.   The Judge failed to have regard to the appellant’s contrition.
[1]    Wood v Ashurst [2016] SAERDC 8.
During the course of oral argument, I granted the appellant an extension of time within which to bring this appeal, and also leave to amend its grounds of appeal to include the third of the above grounds of appeal.
Background
The following summary of the relevant facts is taken largely from the sentencing remarks of the Judge, and is not controversial.
The rear of the appellant's residential property abuts the Black Hill Conservation Park (the Park).
In December 2014, the appellant arranged for an in-ground swimming pool to be developed in his rear yard. Between Friday 5 December and Sunday 8 December, and again between Friday 12 December and Sunday 14 December 2014, soil from…

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 LIEMAREFF v BALDRY

Details

AGLC: LIEMAREFF v BALDRY [2016] SASC 152
Case: [2016] SASC 152
Decision Date: 19 September 2016

CaseChat Overview and Summary

In the matter of LIEMAREFF v BALDRY, the appellant was appealing a sentence imposed for environmental offences related to the unauthorised disposal of soil in a conservation park. The appellant had engaged a contractor to excavate soil from his property for the construction of a swimming pool, and subsequently arranged for this soil to be dumped in the Black Hill Conservation Park without permission. This action resulted in significant environmental harm and led to the imposition of a sentence by the trial judge. The appellant contested the severity of the sentence, arguing it was manifestly excessive and not adequately justified by the circumstances of the case.

The key legal issues before the court were whether the sentence imposed by the trial judge was manifestly excessive, and whether the judge had failed to properly consider relevant sentencing principles and precedents, specifically the case of Wood v Ashurst. The appellant argued that the judge should have given more weight to certain mitigating factors and the precedent set by Wood v Ashurst, which involved similar but not identical environmental offences.

The court found that the third ground of appeal, concerning the manifest excess of the sentence, was not substantiated. The court reasoned that there was no indication the trial judge had not considered the Wood v Ashurst case, and that such cases provide a general guide rather than a strict precedent for sentencing. The court concluded that the trial judge had appropriately exercised her discretion in determining the sentence, taking into account the nature and circumstances of the offence, as well as the appellant’s conduct and personal circumstances. The appeal was therefore dismissed.

The court did not find merit in the appellant's argument that the sentence was manifestly excessive or that the trial judge had failed to consider relevant mitigating factors and precedents adequately. The reasoning and outcome of the appeal reflect the court's view that the sentence imposed was within the appropriate range for the type of environmental offence committed.

Orders

Orders of the court

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Background

Background to the litigation

During the course of oral argument, I granted the appellant an extension of time within which to bring this appeal, and also leave to amend its grounds of appeal to include the third of the above grounds of appeal.Background The following summary of the relevant facts is taken largely from the sentencing remarks of the Judge, and is not controversial. The rear of the appellant's residential property abuts the Black Hill Conservation Park (the Park). In December 2014, the appellant arranged for an in-ground swimming pool to be developed in his rear yard. Between Friday 5 December and Sunday 8 December, and again between Friday 12 December and Sunday 14 December 2014, soil from the excavation of the swimming pool was deposited in the abutting park. The appellant did not have permission to deposit the soil in that park. The quantity of soil deposited or dumped was between 100 and 200 tonnes. A large quantity of this soil was deposited along the southern bank of a dry watercourse running through the Park. The soil was dumped on top of native vegetation and then levelled out and spread over about 50 to 60 metres along the length of the watercourse, creating a new bank to the watercourse about five metres in width. Soil was also deposited and levelled out in the area of the Park directly adjacent to the rear of the appellant's property. The appellant was sentenced on the agreed basis that he engaged a contractor, known to him only as “Jack”, to excavate and remove this soil for a fee of $4,500. While there was no further detail, or any documentation, of the arrangement with Jack, it was agreed that he carried out this work and deposited the soil as described above. The appellant personally hired the bobcat that was used in carrying out some parts of the relevant work. While the appellant had apparently assumed that Jack would remove the soil rather than dumping it, he noticed that the soil had been deposited in the Park on 7 December 2014. He conceded that he should at that point have insisted that the soil be removed, but did not do so. He also accepted that the levelling out of the soil adjacent to the rear of his property occurred at his direction. The Judge concluded that the appellant's conduct in entering into the arrangement with Jack, and then subsequently failing to stop the dumping of the soil from his property into the Park, was motivated by a desire to limit the expenditure on his swimming pool. The dumping of the soil in the park was observed by a nearby resident and reported to the Environmental Protection Agency (EPA). The EPA issued an Environment Protection Order (EPO). In obedience with this order, the appellant obtained a report from Eco Management Services Pty Ltd, in consultation with EPA officers. The report set out a remediation plan and cost the appellant $3,000. The appellant arranged for reputable contractors to remove this soil from the watercourse in accordance with the plan and at a cost of $14,000. The appellant then obtained a soil report in compliance with the request from the EPA, which established that the soil was not contaminated. That report cost $3,000. The plan also required some planting in the Park. The Judge noted that the appellant intended to comply with this aspect of the plan in the appropriate season. The cost of this planting has not been quantified.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE J

In my view, this third ground of appeal has not been made out.The decision in Wood v Ashurst In Wood v Ashurst, the defendant pleaded guilty to two counts of contraventions of clause 10(1) of the same Policy, in contravention of s 34(1) of the Environment Protection Act. The offences involved the defendant depositing general waste at a location on McIntyre Road, Dawesley, without the owner's permission, and on the same day other general waste at a location on Pyrites Road, Dawesley, again without the owner's permission. On both occasions the total waste disposed of was in excess of 20 kg with the total quantity being approximately 64 tonnes. The waste included hard rubbish in addition to soil and came from excavation work carried out on the defendant's own property. The second lot of waste included some asbestos, although the defendant did not know this was the case. The defendant in that case was issued an EPO, compliance with which cost him some $13,000. The sentencing judge in that case utilised s 18A of the Sentencing Act to impose a single fine of $12,000 which was reduced to $7,200 on account of the defendant's pleas of guilty. The appellant contends that the offending in Wood v Ashurst was objectively more serious, and the offender's personal circumstances less conducive to reduction in sentence. The appellant further contends that the Judge erred in not mentioning this decision and in not taking it into account. The first point to make is there is no reason to assume from the mere absence of express reference to the penalty imposed in Wood v Ashurst that the Judge did not have appropriate regard to that decision. Her Honour was taken to the decision during the course of submissions and in my view it can be assumed that her Honour had regard to the submissions that were made as to the relevance of this authority. Secondly, and in any event, there was, in my view, no obligation upon her Honour to make express reference to this decision in her sentencing remarks, let alone engage in a close analysis or comparison of the offending and offender in that case. Comparable sentences are relevant, in my view, only as a general guide to the appropriate range of sentences and there is no reason to think that the Judge did not take this decision into account in this general way. In my view, the second ground of appeal is misconceived. The relevance of the Wood v Ashurst decision was the general assistance it provided in determining the appropriate range of sentence that might be imposed in the circumstances of the present case. I now turn to address that matter under the manifest excess ground of appeal.Manifest excess As to manifest excess, the appellant contends that the Judge's starting point of $30,000 was manifestly excessive in light of the following list of positive or mitigating circumstances: that the offending involved a single course of conduct; the offending was not premeditated or concealed and was physically carried out by someone else; the soil was not contaminated and caused no lasting damage; the appellant, who is of limited means and has family responsibilities, has incurred significant reparation expenses; the offending was out of character; and the appellant was and is contrite, cooperative with investigators, and is not at risk of reoffending.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE J

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