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Court of Criminal Appeal 16 May 2000

Environment Protection Authority v Attard

[2000] NSWCCA 242

Other

Citation: Environment Protection Authority v Attard [2000] NSWCCA 242
Court: Court of Criminal Appeal, New South Wales
Date: 16 May 2000
Judge(s): Mason P, Sperling J, Smart AJ

Background

The respondent operated a small poultry slaughtering and processing factory at Arndell Park. Waste water from the factory was discharged into a plastic holding tank, which when full, overflowed into a dam on the property. The dam and tank were periodically pumped out by tanker.

On 28 April 1998, a weakness in the dam wall allowed contaminated water to leak onto adjoining property and into a drainage system connected to a creek flowing into the Hawkesbury River. An inspector observed this on the afternoon of that day. The following morning, the inspector informed the respondent of the leak. Despite the respondent's attempts to pump out the dam that day, the leak continued into the evening.

The respondent pleaded guilty in the Land and Environment Court to two charges of polluting waters under the Clean Waters Act 1970, prosecuted through the Environmental Offences and Penalties Act 1989. Cowdroy J found both offences proved but declined to record a conviction, instead making an order under s 556A of the Crimes Act 1900. The Environment Protection Authority appealed that outcome as inadequate.

  • Whether the sentence imposed by Cowdroy J, specifically the making of a s 556A order without recording a conviction or imposing a fine, was manifestly inadequate for two water pollution offences.
  • Whether the sentencing judge had failed to follow established Land and Environment Court sentencing practice, which limits s 556A orders to exceptional circumstances in environmental offence matters.
  • Whether identifiable errors of principle caused the sentencing discretion to miscarry.

Decision

Sperling J, with whom Mason P and Smart AJ agreed, held that the sentence was manifestly inadequate. The court found that the sentencing judge had failed to give sufficient weight to the respondent's ongoing obligation to monitor the dam and prevent contaminated water from escaping. That failure was particularly significant given that there had been two previous penalty notices, one of which related to a prior dam leak.

The court did not consider it necessary to resolve all grounds of appeal, as manifest inadequacy alone was sufficient to set aside the sentences. A s 556A order, which results in no conviction and no penalty, was held to be far too lenient for offences of this kind, which warranted a pecuniary penalty.

In resentencing, the Court of Criminal Appeal applied the principle of double jeopardy, which required a conservative approach given that the respondent faced a second sentencing for the same conduct. The court also applied the totality principle, ensuring the combined penalties reflected the respondent's aggregate criminal responsibility across both offences rather than treating each in isolation.

At the original hearing, both parties had proceeded on the basis that a fine was the appropriate penalty and had debated only the quantum. The Court substituted a total fine of $3,000, split across the two offences.

Orders Made

  • Appeal upheld.
  • Original sentence quashed.
  • Respondent resentenced: a fine of $2,000 for the offence committed on 28 April 1998, and a fine of $1,000 for the offence committed on 29 April 1998.
  • The costs order made in the court below was preserved.

Key Takeaways

  • A s 556A order recording no conviction and imposing no penalty was held to be manifestly inadequate for water pollution offences where the defendant had prior penalty notices, including one relating to the same dam.
  • The Court of Criminal Appeal confirmed that the Land and Environment Court applies a principle that s 556A orders are available only in exceptional circumstances in environmental offence proceedings, and departure from that practice without justification may constitute a sentencing error.
  • Where an appellate court resentences following a successful prosecution appeal, the double jeopardy principle requires a conservative approach to the new penalty.
  • The totality principle applies in environmental prosecutions involving multiple offences arising from related conduct, requiring the combined sentence to reflect overall culpability rather than simply aggregating individual penalties.
  • Each environmental offence sentence turns on its own facts; reference to comparable cases is informative but not determinative.

Legislation and Cases Referenced

Legislation:
- Environmental Offences and Penalties Act 1989 (NSW)
- Clean Waters Act 1970 (NSW), s 16(1)
- Criminal Appeal Act 1912 (NSW), s 5D(1A)
- Crimes Act 1900 (NSW), s 556A

Cases:
- Cowdroy J's sentencing decision, Land and Environment Court, 3 September 1999 (unreported)
- Reference made during submissions to an unreported matter involving a defendant referred to as Michaelangelo Teuma (not formally cited as a binding authority)