Citation: Hanna v Environment Protection Authority [2019] NSWCCA 299
Court: Court of Criminal Appeal, NSW
Date: 20 December 2019
Judges: Macfarlan JA at [1]; Walton J at [48]; Bellew J at [105]
Background
The appellant operated a demolition and tipper-hire business in Greater Sydney, advertising the delivery of clean topsoil to residential properties. Instead, he deposited contaminated building and demolition waste, including material containing or likely to contain asbestos, on four separate residential properties. He was convicted of five offences under s 144AB(2) of the Protection of the Environment Operations Act 1997 (NSW), which targets repeat waste offenders, and he had prior waste convictions dating from 2014.
The appellant pleaded guilty to five charges and agreed to the court taking into account three further offences that the prosecutor discontinued. Preston CJ of the Land and Environment Court imposed an aggregate sentence of three years' imprisonment with a non-parole period of two years and three months. Indicative sentences of one year (after a 20% guilty plea discount) were specified for each of the five principal offences.
The appellant sought leave to appeal against the sentence on three grounds: that the sentencing judge erred in taking additional admitted offences into account; that the judge erred on special circumstances and family hardship; and that the proceedings miscarried because his counsel failed to place his visa status and its consequences before the sentencing court.
Legal Issues
- Whether the common law principle permitting admitted offences to be taken into account in sentencing is limited to a single identified charged offence, or whether it can operate across multiple principal offences
- Whether the sentencing judge erred in the assessment of special circumstances by failing to consider relevant matters in combination
- Whether family hardship is a matter that may independently be taken into account at sentencing
- Whether the sentencing proceedings miscarried due to counsel's failure to put before the court evidence and argument about the mandatory visa cancellation consequences of the sentence under the Migration Act 1958 (Cth) and their effect on the appellant and his family
Decision
Ground 1: Taking additional offences into account. The Court of Criminal Appeal rejected the argument that the common law principle only permits additional admitted offences to be taken into account against a single, identified charged offence. The court held that the principle is not so confined and that the sentencing judge was entitled to take the three admitted offences into account across the five principal offences as part of an instinctive synthesis of total criminality.
Ground 2: Special circumstances and family hardship. The court dismissed both limbs of this ground. No error was established in the judge's treatment of special circumstances. On family hardship, the court noted that the issue had not been fully developed below and that, in any event, the evidence did not rise to the level of exceptional circumstances or very significant hardship to a third party required by the relevant authorities.
Ground 3: Counsel incompetence and visa cancellation. The court refused to admit most of the fresh evidence the appellant sought to tender, including a legal opinion on migration consequences. It accepted that some evidence on visa status was admissible to resolve the ground but found that the mandatory visa cancellation provisions involve an administrative discretion arising after sentence is imposed, making the consequences speculative at the sentencing stage. The court applied the principle, drawn from authorities including Hickling v The State of Western Australia, that the possibility of future administrative action following sentence does not vitiate the sentencing exercise. No miscarriage was established.
Orders Made
- Leave to appeal against sentence granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that the common law principle permitting sentencing courts to take into account offences admitted by an offender is not limited to a single identified charged offence; it may operate across multiple principal offences as part of a global sentencing synthesis.
- Mandatory visa cancellation under the Migration Act 1958 (Cth), triggered by the length of a sentence, is an administrative consequence that arises after sentencing; its speculative nature means it does not ordinarily affect the sentencing exercise itself.
- Family hardship, to be taken into account at sentencing as an independent mitigating factor, must amount to exceptional circumstances or very significant hardship to a third party on the applicable authorities; general evidence of family disruption does not automatically meet this threshold.
- A failure by trial counsel to raise migration consequences at sentencing did not constitute the kind of incompetence capable of vitiating the proceedings where the underlying issue was, in any event, too speculative to have affected the sentence.
- Points not raised or fully developed in the court below face significant obstacles on appeal, particularly where the argument rests on evidence not placed before the sentencing judge and where no adequate explanation is given for that omission.
Legislation and Cases Referenced
Legislation:
- Protection of the Environment Operations Act 1997 (NSW), ss 142A(1), 143(1), 144AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 44
- Crimes (Sentencing Procedure) Regulation 2017 (NSW), cl 4
- Migration Act 1958 (Cth)
- Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Cases:
- Hickling v The State of Western Australia (2016) 260 A Crim R 33; [2016] WASCA 124
- Kristensen v R [2018] NSWCCA 189
- Lee v R [2019] NSWCCA 15
- Nudd v The Queen (2006) 225 ALR 161; [2006] HCA 9
- R v Birks (1990) 19 NSWLR 677
- R v Chi Sun Tsui (1985) 1 NSWLR 308
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Alkhair v R (2016) 255 A Crim R 419; [2016] NSWCCA 4
- AC v R [2016] NSWCCA 107
- Ali v R [2014] NSWCCA 45
- Carter v R [2018] NSWCCA 138