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 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.
It would appear that there has been no lasting damage to the Park, although as the Judge pointed out, this was due in part to the EPO.
The sentence imposed
As the Judge noted, a contravention of clause 10(1) of the Policy by the disposal of more than 20 kg of waste was a category A offence which, pursuant to s 34(1)(a)(ii) of the Environment Protection Act, carried a maximum penalty with respect to a natural person of $120,000 or imprisonment for two years, or both. As this penalty was applicable to both counts, the appellant was exposed to a total maximum fine of $240,000.
The appellant is a 37-year-old man. He is married with three children. He operates a car wholesaling business. Based upon documents provided by the appellant's accountant, the Judge accepted that the household expenses of the appellant and his wife were approximately equal to their combined taxable income.
The Judge observed that the appellant had no relevant prior convictions, and that the appellant relied upon three character references describing his offending as out of character. The Judge noted the submission of the appellant's counsel to the effect that there was no need for personal deterrence, because the appellant was already sufficiently aware of the gravity of the offence and had incurred significant expense as a result of it. However, it was acknowledged that general deterrence remained important in regulatory offences such as the present one.
The Judge rejected the submission that the appellant should be fined without any conviction being recorded, pursuant to s 16 of the Sentencing Act. In this respect the Judge accepted that the appellant was unlikely to commit any similar offence again. However, the Judge held that the offences in question were far from trifling, and that there was nothing in the appellant's character, antecedents, age or physical or mental condition that would trigger the use of s 16. The Judge also rejected a submission to the effect that the risk a conviction posed to the appellant's retention of his second-hand motor vehicle dealer's licence constituted extenuating circumstances sufficient to trigger the use of s 16. The Judge accordingly recorded a conviction in respect of each of the offences. This aspect of the sentence was not challenged on appeal.
With the agreement of the parties, the Judge held that it was appropriate to impose a single penalty under s 18A of the Sentencing Act. Her Honour took into account that the quantity of the waste disposed of was between 100 and 200 tonnes and that it was disposed of in a Conservation Park. Her Honour also took into account the expense to which the appellant had been put in remediating the situation.
The Judge concluded:
Having regard to all of the submissions and material put by both counsel, a fine is the appropriate penalty, and an appropriate starting point is $30,000.
The Judge reduced this figure by 40 per cent to reflect the appellant's early guilty pleas, such that the resultant fine was $18,000.
Analysis
It is convenient to commence my analysis by addressing the grounds alleging specific or process errors in the sentencing process, namely ground 3 (which alleges a failure to have regard to the appellant's contrition) and ground 1 (which alleges a failure to have regard to the comparable decision in Wood v Ashurst) before then addressing the ground 2 allegation of manifest excess in the sentence imposed.
Failure to have regard to contrition
As to the failure to have regard to contrition, counsel for the appellant made submissions before the Judge in relation to both the circumstances of the offending and the appellant's personal circumstances. In contending that submissions were made as to contrition, the appellant relies upon the following submission made to the Judge:
The degree to which the defendant has shown contrition and made reparation, the defendant pled guilty at the earliest opportunity, he has given every cooperation to the investigators, he has not cavilled in any way with making reparation. He has accepted the protection order, he has carried out the protection order and he remains standing by on the command of the park staff to do the replanting. I have addressed you on cooperation.
The appellant complains that despite this submission, and despite contrition being a relevant consideration under s 10(1)(g) of the Sentencing Act, her Honour's sentencing remarks do not make express reference to contrition.
In addressing this submission it is important to bear in mind the role of sentencing remarks. While the remarks should fulfil the function of informing the defendant and other readers of the basic reasons for arriving at the penalty imposed, they need not be detailed or exhaustive. Generally speaking, it is enough that they outline the significant features of the offending and offender relied upon by the judge in arriving at the penalty imposed.
In my view, the mere failure to use the word 'contrition' or make express reference to this as a stand alone issue is not, of itself, significant. There are two reasons for that applicable to this case.
The first is that the judge did conclude her sentencing remarks by stating that she had regard to “all of the submissions and material put by both counsel”. This can be taken to include the submission that I have extracted above. The failure of sentencing remarks to make specific or individual reference to every matter relied upon in submissions does not, without more, constitute or disclose error.
Secondly, and more significantly, as the submission extracted above makes plain, the issue of contrition is one that takes its colour and content from the actions that support or demonstrate that contrition. Here those actions were the appellant's early pleas of guilty and his cooperation in carrying out the reparation work at his own expense. Those matters were significant features relevant to the sentence to be imposed, however they were expressly taken into account by the Judge as significant features.
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.
The appellant accepts, as he must, that his appeal on the ground of manifest excess is subject to the strictures of House v The King[2] as affirmed by the High Court in Markarian v The Queen.[3]This requires a conclusion that the penalty imposed was plainly unjust or unreasonable and thus outside the range of penalties that might reasonably have been imposed in this case.
[2] House v The King (1936) 55 CLR 499 at 504-505.
[3] Markarian v The Queen (2005) 228 CLR 357 at [25].
It is not necessary for me to repeat all of the matters essayed by the Judge in her sentencing remarks. While there were several mitigating circumstances in relation to both the offending and the offender, as set out in the list of matters above, the Judge had regard to these factors. However, it was also relevant that the maximum fine was $120,000 in respect of each offence, thus indicating the seriousness of the offending. Not only does general deterrence loom large in offending of the type that occurred here but also of significance in this case was the very large quantity of waste disposed of, the sensitivity of the environment where it was disposed of, and the extent of the potential impact of the offending (as demonstrated by the extent of the work necessary to remove the waste and remediate the environment).
I have had regard to the penalty imposed in Wood v Ashurst and a number of other comparable cases set out in the schedule provided by the respondent on the appeal. While it may fairly be observed that the penalty imposed in the present case is on the high side relative to the penalties imposed in those cases, I do not regard those authorities, either individually or collectively, as establishing that the penalty imposed in the present case fell outside the range of penalties that might reasonably have been imposed. To the contrary, having regard to the matters relied upon by the Judge as summarised above, I consider the penalty imposed was within the range of penalties that might reasonably have been imposed in the circumstances of this case.
I therefore dismiss the allegation of manifest excess in the second ground of appeal.
Conclusion
For the reasons I have given, none of the grounds of appeal have been made out and the appeal must be dismissed. I dismiss the appeal.