Port Adelaide Salvage Pty Ltd v Wood - [2019] SASC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PORT ADELAIDE SALVAGE PTY LTD & ANOR v WOOD
[2019] SASC 106
Judgment of The Honourable Justice Lovell
28 June 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The first appellant pleaded guilty to undertaking a prescribed activity of environmental significance without the appropriate licence contrary to s 36(1) and cl 3(3) Pt A Sch 1 of the Environment Protection Act 1993. The second appellant, a director of the first appellant, pleaded guilty to a charge contrary to s 129(1) of the Act. Both appellants appeal against the fines imposed by the sentencing judge, contending that they are manifestly excessive.
Appeal against sentence of a judge of the Environment, Resources and Development Court - parity between co-offenders – whether the sentencing judge failed to have regard to the principle of parity – credit for guilty plea – post-offence misconduct
Held, allowing the appeal:
1. The sentencing judge failed to consider the principle of parity when sentencing the appellants resulting in the sentence being manifestly excessive.
2. The sentence is set aside and the appellants resentenced.
Environment Protection Act 1993 (SA) ss 36(1), 129(1), cl 3(3) Pt A Sch 1; Environment, Resources and Development Court Act 1993 (SA) s 30(4); Magistrates Court Act 1991 (SA); Sentencing Act 2017 (SA) ss 9, 10, referred to.
Resourceco Pty Ltd v Harvey (2007) 96 SASR 495; R v Jongewaard [2009] SASC 346; House v The King (1936) 55 CLR 499; Wong v The Queen (2001) 207 CLR 584; Hili v The Queen (2010) 242 CLR 520; R v Kreutzer (2013) 118 SASR 211; R v Morse (1979) 23 SASR 98; Markarian v R (2005) 228 CLR 357; R v McInerney (1986) 42 SASR 111; Postiglione v The Queen (1997) 189 CLR 295; Lowe v The Queen (1984) 154 CLR 606; R v MacGowan (1986) 42 SASR 580; R v Lagana [2012] SASCFC 135; Wood v EM Earthmovers Pty Ltd [2018] SAERDC 36, considered.

PORT ADELAIDE SALVAGE PTY LTD & ANOR v WOOD
[2019] SASC 106
LOVELL J:
Overview

The second appellant, Mr Corsaro, is a director of the first appellant, Port Adelaide Salvage Pty Ltd (‘Port Adelaide Salvage’).
The first appellant was charged with, and pleaded guilty before the primary judge to, a charge of undertaking a prescribed activity of environmental significance by operating a waste depot without the appropriate licence contrary to section 36(1) and clause 3(3) of Part A of Schedule 1 of the Environment Protection Act 1993 (SA).
The second appellant was charged with, and pleaded guilty before the primary judge to, being a director of the first appellant at the time of the commission of the offence mentioned above contrary to section 129(1) of the Environment Protection Act 1993 (SA).
The primary judge entered a conviction on each charge and fined both appellants. Both appellants appeal, contending that the fines imposed are manifestly excessive.
Background
Between August and November 2012, Mr Corsaro and employees or contractors engaged by Port Adelaide Salvage were observed by Environment Protection Agency (‘EPA’) officers disposing of 25 loads of mixed waste at a site at Highbury, operated by Mr Musolino. Mr Musolino and his wife are the directors of a company, EM Earthmovers Pty Ltd (‘EM Earthmovers’). This company had operated an unlicensed waste and recycling depot at the Highbury site specifically for the receipt, processing and storage of construction and demolition waste. Part of the site had been used as a clay quarry.
The amount of waste dumped by the appellants between the above-mentioned dates was estimated to be in excess of 100 tonnes.
EPA officers detected offending at the site in May 2012 and then commenced an investigation into the disposal of waste at the quarry. On 13 November 2012, after observing activity at the quarry, EPA officers entered the premises and approached Mr Corsaro and Mr Musolino.
When questioned, Mr Corsaro stated that he had a business agreement in place with Mr Musolino whereby Mr Corsaro was not charged for dumping waste at the quarry in exchange for splitting the profits of sale of recycled aggregate produced at the quarry. Mr Corsaro said that the business had not yet started. He told EPA officers that he had entered into this arrangement as it was too expensive to pay commercial fees to dump at other sites. Mr Corsaro told the EPA officers that he believed Mr Musolino had both the appropriate certification from the mines department to recycle the concrete and bricks and the requisite EPA licence. Mr Musolino had neither.
The basis of the guilty pleas by the appellants was that Port Adelaide Salvage and Mr Corsaro failed to make proper enquiries as to whether the quarry site was licensed to receive the waste. A sentence was imposed on the basis that there was an obligation on them to make enquiries to ensure that they were operating within the law.
It was accepted that Port Adelaide Salvage saved approximately $30,000 by not paying commercial dumping fees.
Mr Musolino and his company, EM Earthmovers, were also charged with offences relating to the dumping of the waste. Eventually the charge against Mr Musolino did not proceed, most likely due to his ill health. EM Earthmovers was convicted and fined $24,000; this sentence reflected a 30% discount for an early plea of guilty.
Port Adelaide Salvage was fined $44,000 and Mr Corsaro $18,000.
The appellants contended (amongst other grounds) that the disparity in the fine imposed on EM Earthmovers compared with the fines imposed on them is indicative of the failure by the primary judge to apply the principle of parity to the sentencing task.
Legal principles
Section 30(4) of the Environment, Resources and Development Court Act 1993 (SA) provides that an appeal from criminal proceedings conducted before the Environment, Resources and Development (‘ERD’) Court is to be conducted as if it was an appeal from the Magistrates Court. Therefore, it is the Magistrates Court Act 1991 (SA) which determines where an appeal lies.[1]
[1] Resourceco Pty Ltd v Harvey (2007) 96 SASR 495.
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[2] where Doyle CJ said:[3]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy”.
(Footnotes omitted)
[2] [2009] SASC 346.
[3] [2009] SASC 346 at [40].
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[4] does the appeal court have the power to quash the sentence passed below.
[4] (1936) 55 CLR 499.
Manifest excess is a conclusion. Appellate intervention on the ground that a sentence is manifestly excessive is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, as the plurality said in Wong v The Queen:[5]
… intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.
[5] [2001] HCA 64 at [58]; (2001) 207 CLR 584 at 605.
As the High Court said in Hili v The Queen,[6] “that is a conclusion that does not admit of lengthy exposition”.
[6] [2010] HCA 45 at [59]; (2010) 242 CLR 520 at 539.
As was said in R v Kreutzer[7] by Kourakis CJ,[8] if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[7] [2013] SASCFC 130; (2013) 118 SASR 211.
[8] [2013] SASCFC 130 at [10]; (2013) 118 SASR 211 at 214-215.
The approach to be adopted when considering the question of manifest excess was discussed in Hili v The Queen[9] where the Court said:[10]
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
…
But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.
(Footnotes omitted and emphasis added)
[9] [2010] HCA 45 at [59]; (2010) 242 CLR 520 at 539.
[10] (2010) 242 CLR 520, 538-539 at [59]-[60]; see also R v Cecchin [2017] SASCFC 109 at [44]-[46] (Lovell J).
Factors to be considered when deciding the question of whether a sentence is manifestly excessive include the maximum penalty for the offence, the standards of sentencing customarily observed for that offending, where the criminal conduct sits in the scale of seriousness of crimes of that type and the personal circumstances of the offender.[11]
[11] R v Morse (1979) 23 SASR 98.
This Court, on appeal, is not to interfere with a sentencing discretion unless an error was made in the exercise of that discretion.[12] Similarly, this Court is not to interfere merely because it would have exercised its discretion in a manner different from the way in which the sentencing judge did.[13]
[12] House v The King (1936) 55 CLR 499.
[13] Markarian v R (2005) 228 CLR 357.
Grounds of Appeal
The appellants raised three grounds of appeal. First, the primary judge erred in considering that the appellants were not entitled to credit for their pleas of guilty; second, that the primary judge impermissibly had regard to post-offence misconduct; third, that the primary judge failed to have regard to the principle of parity between the defendants.
Credit for guilty plea
Both appellants pleaded guilty on the morning the trial was to commence. As such, under the Sentencing Act 2017 (SA), they were entitled to a discount of up to 10% for the plea if the primary judge was satisfied there was good reason to do so.
The primary judge, when sentencing, stated “the timing of the pleas of guilty in this matter do not entitle the defendants to any reduction in the fine to be imposed”. The appellants submitted that the primary judge did not consider the statutory scheme which permitted her to allow up to a 10% discount for the plea. In considering that she had no discretion, the appellants submitted that the primary judge was in error.
The respondent submitted that the primary judge’s remark was simply a conclusion she reached after considering the exercise of her discretion. That is, the primary judge considered there was no good reason to apply any discount because of the circumstances of the plea.
The remark of the primary judge, when looked at in isolation, is ambiguous. However, the primary judge, after making that remark, immediately discussed the reasons, or lack of reasons, for the late plea. A fair reading of the primary judge’s remarks suggests that she did consider the exercise of the discretion but exercised it against the appellants. The primary judge was entitled to form that view on the evidence before her.
I would dismiss this ground of appeal.
Impermissible regard to post-offence misconduct
The prosecution put before the primary judge the fact that Port Adelaide Salvage had been convicted and fined for removing asbestos without a licence or atmospheric testing. That offending occurred on 28 November 2012. The primary judge was aware that the conviction post-dated this offending as she specifically mentioned that fact. The primary judge took the conviction into account as “illustrating an undesirable attitude to regulation”. The appellants complain that the primary judge was not entitled to use the subsequent conviction in that manner.
The respondent relied upon the principles distilled from the Court’s decision in R v McInerney.[14] The Court held that there is no rule of law precluding a sentencing court from considering a subsequent offence, although the use to be made of such a conviction is more restricted than the use of a prior conviction.
[14] (1986) 42 SASR 111.
Depending on the circumstances of the case, a subsequent conviction may be used to demonstrate that:
·a defendant has not otherwise led a law-abiding life between the subject offence and sentence;
·the subject offending is not isolated;
·a greater need for personal deterrence than would otherwise have been contemplated may be required; and
·leniency is not justified.
The primary judge was entitled to have regard to the subsequent offending. She was entitled to rely on it to show an “undesirable attitude to regulation”. As the respondent submitted, the conviction was relevant to show the offending was not isolated and to the extent of personal deterrence required.
I would dismiss this ground of appeal.
Parity
The parity principle requires that where multiple offenders are involved, offenders should, wherever possible, receive a sentence which, while reflecting any essential differences, will bear a close relationship with their co-offender(s). The principle is based on an aspect of equal justice, namely that like should be treated alike.[15] It is desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence.[16] Just as consistency in punishment is a fundamental element in any fair system of criminal justice, inconsistency in punishment is calculated to lead to an erosion of public confidence in the integrity of the administration of justice, if it is seen to be unfair.
[15] Postiglione v The Queen (1997) 189 CLR 295.
[16] Lowe v The Queen (1984) 154 CLR 606.
As between co-offenders, different sentences may reflect different degrees of culpability and different personal circumstances. If there are relevant differences between the co-offenders, due allowance should be made for them. A proper comparison of two sentences involves a consideration of all components of sentencing.[17] After making due allowance for differences there should not be a marked disparity which gives rise to “a justifiable sense of grievance”.
[17] Postiglione v The Queen (1997) 189 CLR 295.
While it must be borne in mind that there is no principle of law that states sentences must strictly compare any distinctions, the sentences imposed should fairly reflect the differences in the respective degrees of culpability and the circumstances of the offenders and any disparity between sentences should be explained by the sentencing judge.[18]
[18] R v MacGowan (1986) 42 SASR 580 per King CJ.
Satisfaction by an appellate court that a disparity between sentences exists does not, of itself, mean that the appeal must be allowed. The effect of an unjustifiable disparity enlivens a discretion, but not an obligation, in the appellate court to intervene.[19] The principle of parity and its relevance to sentencing is preserved by section 10 of the Sentencing Act 2017 (SA). However, the court must bear in mind section 9 of the Sentencing Act 2017 (SA) which states that the primary purpose of the sentence is the protection of the public. The discretion is to be exercised in the context of the Sentencing Act 2017 (SA).[20]
[19] R v Lagana [2012] SASCFC 135.
[20] R v MacGowan (1986) 42 SASR 580 per King CJ.
A proper comparison of two sentences involves a consideration of all components of the sentence.[21] The test is an objective one, namely whether an “impassive representative of the community, the objective bystander”[22] would consider that the sentence imposed upon the defendant gives rise to a justifiable sense of grievance and an appearance of injustice.
[21] Postiglione v The Queen (1997) 189 CLR 295.
[22] Lowe v The Queen (1984) 154 CLR 606 at 613.
The primary judge had sentenced EM Earthmovers some months before she sentenced the two appellants. The charge against Mr Musolino, a director of EM Earthmovers, was withdrawn. The primary judge in her sentencing remarks[23] in that matter noted that Mr Musolino had cancer and was seriously ill. No doubt that was relevant to the prosecution’s decision not to proceed with the charge against him personally.
[23] Wood v EM Earthmovers Pty Ltd [2018] SAERDC 36.
The primary judge made no reference to the question of parity in her sentencing remarks. The primary judge relied upon the same statement of agreed facts that had been tendered on the earlier sentencing of EM Earthmovers when sentencing the appellants. As discussed earlier, the charge against Mr Musolino did not proceed. His company, EM Earthmovers, was convicted and fined $24,000 after a 30% discount was applied for an early plea of guilty.

Port Adelaide Salvage was fined $44,000 and Mr Corsaro $18,000.
The appellants submitted that there was no difference in culpability between Port Adelaide Salvage and EM Earthmovers. The appellants relied on the salient features of the agreed factual basis for the pleas of guilty for both the appellants and also EM Earthmovers.
EM Earthmovers conducted the unlicensed waste and recycling depot at the time of this offending and had been unlicensed for a period of three years before being detected by the authorities in August 2012. Port Adelaide Salvage and Mr Corsaro were sentenced on the basis of dumping 25 loads of waste over the charged period. Neither the appellants nor EM Earthmovers were sentenced on the basis that they knew that the conduct was illegal; both were sentenced on the basis that they failed to make reasonable enquiries.
The agreed facts established that both entities entered into an arrangement to dump waste at the site. The respondent submitted that there was a distinction in the culpability of the offending as EM Earthmovers was a passive participant in the offending. That is, they merely allowed the illegal disposal of waste to occur on the Highbury site, as opposed to the dumping of the waste by Mr Corsaro and Port Adelaide Salvage. I do not accept that that is a reason for distinguishing the culpability of the defendants. Clearly the acts of the appellants could not have occurred without the opportunity being presented to them by Mr Musolino and EM Earthmovers. They both participated in the scheme, they relied on each other to achieve a benefit and there was a plan to make a profit in due course. Clearly, the two appellants and EM Earthmovers were equally culpable in this venture.
The dominant purpose of the offending from EM Earthmovers perspective was to fill the quarry on-site, but they were also sentenced on the basis that they, over the years, had made money from the sale of crushed bricks. EM Earthmovers obtained a benefit in having the fill for the site provided. It is unknown how much EM Earthmovers saved by having the fill dumped on their site. Mr Corsaro and Port Adelaide Salvage saved the commercial dumping fees.
The respondent submitted that the financial benefits under the arrangement were greater for the appellants than EM Earthmovers. I reject that as being a point of distinction, as EM earthmovers was sentenced on the basis that they had obtained a benefit, although perhaps not quite as great as the appellants, in selling the crushed brick. Further the offending to which EM Earthmovers pleaded guilty was set against the background that the offending had been occurring for the previous three years. They also obtained the benefit of the fill for the quarry. Any difference in benefit was insignificant.
Whilst the appellants concede that they had an agreement with Mr Musolino to sell recycled aggregate at the quarry and jointly share the resulting proceeds, that was clearly a factor common to them and EM earthmovers.
During the sentencing submissions on behalf of EM Earthmovers, counsel for EM Earthmovers tendered a bundle of material including medical reports relevant to the health of Mr Musolino. As mentioned earlier, the charge against Mr Musolino personally had been withdrawn. It is difficult to see the relevance of the health of Mr Musolino in relation to the responsibility of the company. The primary judge took those matters into account when considering sentence. If the primary judge used the health of Mr Musolino as a factor distinguishing EM Earthmovers and Port Adelaide Salvage, which appears likely, she was in error.
The primary judge stated:
Port Adelaide Salvage is a small company which effectively operates at the direction of Mr Corsaro, and Mr Corsaro earns his income through the business activities of Port Adelaide Salvage. A penalty imposed on Port Adelaide Salvage will have an impact on Mr Corsaro beyond the impact that a fine on a large company would have on one of its many directors. I take this into account in sentencing.
The same factual situation arose with Mr Musolino and EM Earthmovers but there was no charge against Mr Musolino. The fines imposed on both appellants becomes relevant on that basis when considering parity.
I consider the disparity difficult to justify. I am satisfied that the sentencing discretion has miscarried. The sentences against both appellants should be reduced to mitigate that disparity. The only significant countervailing consideration was the health of Mr Musolino which was unrelated to the offending, and this, of itself, does not rectify the appearance of injustice.
I would allow the appeal and resentence both appellants.
Resentence
I do not intend to set out all the matters relied on by the primary judge. I have taken all those matters into account. In particular, I have had regard to the primary purpose of sentencing, as mandated by the Sentencing Act 2017 (SA), which is to protect the safety of the community.
In relation to Port Adelaide Salvage, I would start from the same starting point adopted by the primary judge in relation to the offending of EM Earthmovers. I take into account the plea of guilty. I consider there is good reason to consider a discount of up to 10% for the late plea of guilty.
I enter a conviction. But for the plea of guilty, I would have fined Port Adelaide Salvage $35,000. To take into account the plea, I reduce the fine to $32,000.00.
In relation to Mr Corsaro, I enter a conviction. But for his plea of guilty, I would have fined him $6000. To allow for his plea, I reduce that to $5,500.
There was no appeal from the order for costs made by the primary judge. The appellants remain liable to pay the costs in the sum of $3,850 for which they are jointly and severally liable. Each appellant remains liable for the victims of crimes levy of $160 each.
Orders
The appeals are allowed. The sentences in relation to each appellant is set aside.
The first appellant is resentenced. It is convicted and fined $32,000.00.
The second appellant is resentenced. He is convicted and fined $5,500.00.