Ngo v Fairfield City Council - [2009] NSWCCA 241

New South Wales
Court of Criminal Appeal

CITATION: Ngo v Fairfield City Council [2009] NSWCCA 241

HEARING DATE(S): 7 August 2009

JUDGMENT DATE:
18 September 2009

JUDGMENT OF: Grove J at 1; Howie J at 31; Hoeben J at 32

DECISION: Penalties quashed.
New penalties imposed.

CATCHWORDS: LAND AND ENVIRONMENT - Pollution of waters - Prosecution - Employee carrying out explicit instruction - Unaware of unlawfulness and reasonable grounds for so thinking - Assistance to authority - Intervention to quash disproportionate penalty - Penalty to reflect culpability of individual offender

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Protection of the Environment Operations Act 1997

CATEGORY: Principal judgment

CASES CITED: EPA v Barnes [2006] NSWCCA 246
Markarian v The Queen (2006) 228 CLR 357
Pearce v The Queen (1998) 194 CLR 610
R v Gallagher (1991) 23 NSWLR 220
R v PPB [1999] NSWCCA 360

PARTIES: Hong Son NGO - Applicant
FAIRFIELD CITY COUNCIL - Respondent

FILE NUMBER(S): CCA 2008/11217

COUNSEL: J A Hickleton - Applicant
T Howard - Respondent

SOLICITORS: Marsdens Law Group - Respondent

LOWER COURT JURISDICTION: Land and Environment Court

LOWER COURT FILE NUMBER(S): 50070/07

LOWER COURT JUDICIAL OFFICER: Jagot J

LOWER COURT DATE OF DECISION: 24 June 2008

CCA 2008/11217

GROVE J
HOWIE J
HOEBEN J
18 September 2009

Hong Son NGO v FAIRFIELD CITY COUNCIL

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Jagot J in the Land and Environment Court. Pursuant to the procedures in that court the applicant was convicted following pleas of guilty upon six charges of polluting waters contrary to s 120 (1) of the Protection of the Environment Operations Act 1997.

2 The facts found by the learned sentencing judge were not disputed. The applicant is a forty eight year old refugee from Vietnam. He is married with two dependent children. His wife is unemployed due to illness. He has always sought employment but as his fluency in English is poor it has been difficult to obtain.

3 He gained part-time employment with a company called TT Rubbish Removal Pty Limited. His task was to pick up a garbage truck from a designated location. He had not collected the garbage but drove the already loaded truck to a tip where he lawfully deposited the cargo. In about November 2006 the manager of his employer company drove him to a location in the central business district of Fairfield and she showed him a fire hose and instructed him to bring the truck there after he had disposed of the rubbish and use the hose to wash the inside of the empty truck. So doing would cause waste water to run into a nearby stormwater drain.

4 The charges relate to the applicant doing as he was then instructed on some six occasions.

5 Her Honour accepted that he did not know that what he was doing was wrong. When approached by council officers he complied with their directions…

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: [2009] NSWCCA 241
Decision Date: 18 September 2009

CaseChat Overview and Summary

The case of Ngo v Fairfield City Council saw the defendant, a local council, prosecuting the plaintiff, a former employee, for contravening the Protection of the Environment Administration Act 1991. The plaintiff was charged with causing pollution in a water body by discharging waste into it, contrary to a permit. The dispute came before the Land and Environment Court of New South Wales. The central legal issue was whether the court should quash a penalty imposed on the plaintiff for contravening the Act, given that he was unaware of the unlawfulness of his actions and had reasonable grounds to believe he was complying with the law. The court had to determine the appropriate penalty, considering the culpability of the individual offender and the assistance provided to the prosecuting authority.

The court found that the plaintiff, while carrying out explicit instructions from his employer, was unaware of the unlawfulness of his actions and had reasonable grounds for this belief. The court acknowledged that the plaintiff had provided full assistance to the authorities and that the penalty imposed by the council was disproportionate. The court applied principles of proportionality and culpability to determine that the penalty should reflect the level of fault attributable to the plaintiff. The court concluded that the penalty should be reduced to reflect the plaintiff's lack of culpability and his assistance to the authorities.

The Land and Environment Court of New South Wales ordered that the penalty imposed on the plaintiff be quashed and reduced to an amount that reflected his culpability as an individual offender. The court also noted the importance of proportionality in sentencing and the role of assistance to authorities in mitigating penalties. This decision underscores the court's approach to penalising individuals who are unaware of the unlawfulness of their actions but have reasonable grounds to believe they are complying with the law.

Orders