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 and he has continued to cooperate and assist them. There was no suggestion that he was other than truthful when they approached him and he was truthful in subsequent formal interviews. He said that he had assumed that his employer had any necessary approval and that thought was confirmed somewhat by his observations of a council cleaning truck leaking waste water in the same area. There was some exchange between the Bench and Bar during the hearing of the appeal as to whether that observation was different from what the applicant was doing. The evidence was that he released a valve in the floor of the truck in order to allow the wash water to drain from the truck. I am unable to perceive any essential difference between that type of occurrence and the leaking of waste water from a council truck.

6 It is an agreed fact that not only was the applicant prosecuted but proceedings were also brought against his employer and the manager of the company. Each of these received the same penalty as the applicant although they were ordered to pay a larger amount of legal costs.

7 Significantly, although her Honour found that the applicant could have reasonably foreseen that there was likely harm, it was on the basis, upon which I offer no view, that it was said to be common (and presumably judicial) knowledge that stormwater drains drain to creeks, rivers and the sea. However, it was also a specific finding by her Honour that there was no harm done to the creek into which the present relevant drain led and further that the applicant was acting under the directions of his employer and was complying with the employer’s orders. The applicant gained no benefit from the offences. It was not suggested that he himself had made some determination to take some “shortcut” in order to perform his duty. In short, he was carrying out a direction of his employer which he did not think was wrong. Given the evidence of what he had seen in relation to the council truck, there would not appear to be any reasonable basis for him to believe otherwise.

8 Her Honour accepted that, given his limited finances, a fine and an order for costs would require him to sell his home due to the unlikelihood of his being able to obtain any significant loan. His home had been purchased in about 1993 or 1994 for $117,000 and was encumbered by a mortgage of about $45,000.

9 Her Honour assessed a penalty of a fine to be paid by the applicant of $25,000 for the first offence and $1,000 for each of the subsequent offences. He was ordered to pay costs limited to the filing fees (as sought by the prosecution) of $4,110. The figure of $25,000 was derived from a finding that for each offence a fine of no less than 10 percent of the maximum ($250,000) should be imposed. However the reduction of fine on five of the charges was made in order, it was said, to have regard to the principle of totality.

10 Her Honour then proceeded to apply “the full discount” of 25 percent for the early guilty plea and stated that this resulted in a total fine of $22,500. Obviously this figure was reached by applying the discount to the total fines of $30,000 in respect of the six charges.

11 Her Honour then made express orders which included these:

“The defendant is convicted of the offences charged.
2. The defendant is fined the sum of $22,500.”

The emphasis on the plural has been added.

12 As was observed in the joint judgment (McHugh, Hayne and Callinan JJ) in Pearce v The Queen (1998) 194 CLR 610 at par 45:

“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”

13 However, in the present context the remarks of Kirby J (Mason P and Hoeben J concurring) in EPA v Barnes [2006] NSWCCA 246 at par 50 are pertinent:

“Where there are multiple offences, each punishable by a custodial sentence, the totality principle may find expression through the complete or partial accumulation of sentences, or through making all or some of the sentences concurrent (cf Pearce v The Queen (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at 624 (par 45)). However, there is obviously no room for partial accumulation or concurrence in the case of fines. If the sentencing Judge believed that the totality principle required an adjustment to the fines which may otherwise be appropriate, the amount of each fine had to be altered, applying the sentencing principles suggested in Johnson v The Queen (2004) 205 ALR 345.”

14 Whilst Pearce was obviously dealing with sentences involving custody, it should be noted that the joint judgment in Johnson (Gummow, Callinan and Heydon JJ) contained this caution at par 26.

“ Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining a time be served. To do that, is not to do what the joint judgment of Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender.”

The emphasis appears in the judgment.

15 As can be seen in the foregoing extract from the orders made, her Honour imposed a total sentence for the six offences whereas (and it does not require the authority of Pearce for the conclusion) it was erroneous not to impose penalty in respect of each charge. No reference was made to any statutory authority enabling a single imposition on multiple charges.

16 Although it is well recognized that sentencing judges must be accorded flexibility in sentencing approach, in the absence of some rare circumstance assessing sentence by looking at the maximum penalty and making a proportional reduction from it is inappropriate: Markarian v The Queen (2006) 228 CLR 357 at par 31.

17 No rare circumstance can be discerned in the present case, nor was any suggested, and in my view it was erroneous to assess penalty by reference to a proportion against the maximum penalty.

18 The grounds of appeal expressly complained of the failure of the sentencing judge to allow a discount for assistance to authority in the prosecution of his employer and the company manager. Her Honour referred to the applicant’s “full and continued cooperation” but there was no indication that this was reflected in the sentences.

19 There is no obligation upon a sentencing judge separately to quantify a discount for assistance: R v Gallagher (1991) 23 NSWLR 220 but it is obviously desirable that there be transparency so that an offender can perceive that he has received appropriate consideration and it is prudent to reveal the terms of any discount: R v PPB [1999] NSWCCA 360.

20 Of course, when there is a promise of future assistance, there are provisions whereby, in default of compliance, the benefit may be removed and the existence of such provisions is confirmatory of the need for some transparency in regard to the issue.

21 Her Honour observed that regulations of the type here breached are critical to the orderly and healthy functioning of urban environment and that the community depends upon people not to carry out these types of acts for its continued wellbeing. These observations are manifestly correct. However she also commented that it was usually difficult to detect those responsible for these types of acts because they tend to be carried out, as in the present case, in the middle of the night and the early hours of the morning. The location to which the applicant had been directed by his employer was described as being in the central business district. Whilst on occasions he was there in the night hours, on others it was obviously daylight in December. There was no suggestion that the applicant was behaving in a clandestine fashion or in any way seeking to cloak his activity. He acted in accordance with the fact that he believed that what he was doing was lawful. He was liable to conviction because the offence is one of strict liability.

22 Nevertheless, and perhaps particularly in cases of strict liability it is important that there be an appropriate assessment of the culpability of the offender. Her Honour stated that the offences were objectively serious and she referred to the fact that the waste water was directed into a stormwater drain, but in making such an assessment of the level of seriousness there should have been taken into account the mental state of the applicant which, as has been noted, was that of a belief that what he was doing was not unlawful.

23 As already observed, her Honour’s statement of the necessity of regulation towards achieving the objectives of protection of the environment and the wellbeing of the community could not be doubted. Nevertheless, the institution of prosecution for the purpose of imposing conviction and penalty also provokes a necessity, and that necessity is to render an individual justice reflecting the culpability of the offender.

24 In this instance, the liability of the applicant was derived from a strict liability which was created by the legislation. A subjective culpability was not demonstrated. In summary, he performed a task in compliance with an express direction from his employer in a manner which accorded with that direction, he did not know that what he was required to do by that direction was wrong nor was it shown that he had cause to believe otherwise and, in the event, no actual harm was caused.

25 It is axiomatic that penalty should not only reflect the gravity of an offence, it must also reflect the circumstances of the offender. It was not disputed, as her Honour expressly mentioned in her remarks, that a fine or an order for costs would as a matter of practicality, force this applicant to sell his home. An enforced sale of his home would be a grossly excessive consequence of the strict liability of the applicant for an offence committed in subjectively innocent circumstances.

26 It would not be possible to require the applicant to enter a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 as that is only available in lieu of an option of imprisonment which is not within the ambit of penalty for these offences.

27 A dismissal of the charges without proceeding to conviction pursuant to s10 of that Act would fail to recognize appropriately the legislative will which finds expression in the creation of the offence.

28 In my view, fines should be imposed but they should be set at a level which should not result in the drastic consequence of a forced sale of the applicant’s home. In making an assessment, the capacity of the applicant to have time to pay a fine and/or to make payments by instalments pursuant to an application under the Fines Act 1996 is noted.

29 It is frequently the case that the culpability of an offender can be perceived to elevate as offences are repeated. In the present instance, the circumstances in which the applicant committed all of the offences were the same, namely that he was doing as he was told without any consciousness of wrongdoing. When approached by the prosecutor’s officers he was in the course of committing a sixth offence, and, consistent with the candour that he manifested throughout, he told them of his previous identical actions. I therefore do not consider it would be appropriate to discriminate between the penalties on each charge.

30 I propose the following orders:

(1) Application for leave to appeal against sentence granted, and the appeal allowed.
(2) Penalty imposed in the Land and Environment Court quashed.
(3) In lieu thereof, on each of the six charges prosecuted in the Land and Environment Court, the applicant fined the sum of $500 making a total of fines of $3,000.
(4) The applicant ordered to pay the costs of prosecution at first instance fixed in the sum of $4,110.

31 HOWIE J: I agree with Grove J.

: I agree with Grove J and the orders he proposes.

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