R v Moore - [2001] QCA 431

SUPREME COURT OF QUEENSLAND

CITATION: R v Moore [2001] QCA 431

PARTIES: R
v
MOORE, Leslie Phillip
(applicant)

FILE NO/S: CA No 162 of 2001
DC No 1606 of 2001

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 12 October 2001

DELIVERED AT: Brisbane

HEARING DATE: 5 October 2001

JUDGES: Williams JA, Jones and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal refused

CATCHWORDS:
ENVIRONMENT LAW – WASTE DISPOSAL – applicant was an executive officer of a company found guilty of failing to comply with the Environmental Protection Act 1994 (Qld) – the company collected and stored spent materials containing the biocide Tributyltin without the required licence – later company acquired licence but failed to comply with the conditions thereof – the company failed to comply with clean up orders from the Environmental Protection Agency – where judge sentenced on the basis of potentiality for harm rather than actual harm – where applicant did not intend to harm environment but knew of the serious risks involved – whether sentence of 18 months for the applicant excessive – principles of sentencing under s 437(1) discussed

Environmental Protection Act 1994 (Qld) s 70, s 361,

s 437(1), s 438, s 438(1)

Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, considered

R v Gilles; Ex Parte: Attorney General [2000] QCA 503; CA No 156 of 2000, 12 December 2000, considered

R v Sykes ; District Court at Maroochydore; Indictment No 47 of 2000, 20 June 2000, distinguished

Williams v Malaysia International Shipping and Syed Naeem Jafar; Cairns Magistrates Court, 6 February 2001, distinguished

COUNSEL: S Keliher for the applicant
BG Campbell for the respondent

SOLICITORS: Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: This is an application for leave to appeal against sentences imposed with respect to a series of offences against the Environmental Protection Act 1994 ("the Act"). Throughout these reasons, except where otherwise expressly stated, I will use the section numbers as they appear in Reprint No 4 of that Act; there has been no relevant change to the wording of the sections, but the numbering has changed since the indictment was drawn. The indictment also included charges based on the same facts against the company, Universal Abrasives Pty Ltd ("the company") and one Hobson, but there has been no appeal with respect to the sentences imposed on those others.

Eight counts on the indictment involved the applicant. He was an "executive officer" within the meaning of that expression as defined in Schedule 3 of the Act. Section 493(1) provides that an executive officer of a corporation must ensure "that the corporation complies with this Act". Then subs (2) provides:

"If a corporation commits an offence against a provision of this Act each of the executive officers of the corporation also…

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 R v Moore

Details

AGLC: R v Moore [2001] QCA 431
Case: [2001] QCA 431
Decision Date: 12 October 2001

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Moore, the defendant was an executive officer of a company that had been found guilty of contravening the Environmental Protection Act 1994 (Qld). The company was responsible for collecting and storing spent materials containing the biocide Tributyltin without the required licence. Although the company later acquired the necessary licence, it failed to adhere to the conditions specified therein. Furthermore, the company neglected to comply with clean-up orders issued by the Environmental Protection Agency. The presiding judge sentenced the defendant to 18 months imprisonment, basing the decision on the potential for harm rather than actual harm caused. The defendant did not intend to harm the environment but was aware of the serious risks involved.

The primary legal issue before the court was whether the 18-month sentence for the defendant was excessive. The court had to consider the principles of sentencing under section 437(1) of the relevant legislation. The judge's decision to focus on the potential for harm rather than actual harm was based on the defendant's knowledge of the serious risks involved in their actions and their position as an executive officer of the company. The court needed to balance the potential harm against the defendant's lack of intent to cause actual harm, as well as their remorse and cooperation with authorities.

The court determined that the 18-month sentence was appropriate, taking into account the potential for significant environmental harm and the defendant's position within the company. The court emphasised the importance of holding individuals accountable for environmental offences and the need for deterrence. The court held that the sentence was proportionate to the seriousness of the offence and the defendant's role in the company. The court also noted that the defendant's lack of intent to cause harm did not excuse their responsibility for the potential environmental damage caused by their actions.

No further orders were made, and the application for leave to appeal was refused.

Orders

Orders of the court

Application for leave to appeal refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Moore [2001] QCA 431
PARTIES:	R v MOORE, Leslie Phillip (applicant)
FILE NO/S:	CA No 162 of 2001 DC No 1606 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	12 October 2001
DELIVERED AT:	Brisbane
HEARING DATE:	5 October 2001
JUDGES:	Williams JA, Jones and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused
CATCHWORDS:	ENVIRONMENT LAW – WASTE DISPOSAL – applicant was an executive officer of a company found guilty of failing to comply with the Environmental Protection Act 1994 (Qld) – the company collected and stored spent materials containing the biocide Tributyltin without the required licence – later company acquired licence but failed to comply with the conditions thereof – the company failed to comply with clean up orders from the Environmental Protection Agency – where judge sentenced on the basis of potentiality for harm rather than actual harm – where applicant did not intend to harm environment but knew of the serious risks involved – whether sentence of 18 months for the applicant excessive – principles of sentencing under s 437(1) discussed Environmental Protection Act 1994 (Qld) s 70, s 361, s 437(1), s 438, s 438(1) Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, considered R v Gilles; Ex Parte: Attorney General [2000] QCA 503; CA No 156 of 2000, 12 December 2000, considered R v Sykes ; District Court at Maroochydore; Indictment No 47 of 2000, 20 June 2000, distinguished Williams v Malaysia International Shipping and Syed Naeem Jafar; Cairns Magistrates Court, 6 February 2001, distinguished
COUNSEL:	S Keliher for the applicant BG Campbell for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent