AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 20 December 2019

Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis

[2019] NSWCCA 312

Other
CRIME ENVIRONMENT AND PLANNING APPEALS APPEAL AGAINST SENTENCE INADEQUACY ENVIRONMENT AND PLANNING

Citation: Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312
Court: NSW Court of Criminal Appeal
Date: 20 December 2019
Judge(s): Brereton JA; Harrison J; Bellew J

Background

An abattoir operator near Picton held an environment protection licence requiring it to take regular effluent and soil samples, have them independently analysed, and report the results to the Environment Protection Authority (EPA). Between May and November 2017, the company submitted quarterly reports and an annual return containing false information, including fabricated certificates of analysis purporting to have been issued by a well-known laboratory. When the EPA investigated and issued a statutory notice requiring the company to produce information and records, the company's response also included false information, falsified invoices, and falsified bank records.

The company faced six charges under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) for supplying false or misleading information in a material respect. The general manager faced five corresponding charges under a special executive liability provision in the same Act. Both respondents pleaded guilty in the Land and Environment Court, were convicted, and ordered to pay costs. The company was convicted without any further penalty. The general manager was fined a total of $12,000.

The EPA appealed to the Court of Criminal Appeal against both respondents, arguing the sentences were manifestly inadequate. During the sentencing proceedings below, the primary judge had also excluded affidavit evidence from another employee, relying on the De Simoni principle (which, broadly stated, prevents a court from sentencing an offender for a more serious offence than the one for which they were convicted).

  • Whether the sentencing judge erred in assessing the seriousness of the corporate offences without regard to the state of mind of the company's relevant employees
  • Whether s 169C of the POEO Act attributes an individual employee's state of mind directly to the corporation for sentencing purposes
  • Whether the De Simoni principle, or an analogous principle, prevented the primary judge from taking into account the general manager's state of mind when sentencing him
  • Whether the primary judge's exclusion of the employee's affidavit evidence was correct
  • Whether, despite any errors identified, the Court should exercise its discretion to intervene and re-sentence either respondent

Decision

Corporate state of mind. The Court held that, in the sentencing context, the relevant consideration is the criminal culpability of the corporation itself. A corporation's blameworthiness in this context lies in its failure to put in place adequate measures to supervise or control the activities of its officers and employees. Section 169C of the POEO Act does not automatically attribute an individual employee's state of mind to the corporation. It makes such evidence relevant to the corporation's state of mind, but does not make it conclusive. Where directors gave evidence inconsistent with having the alleged state of mind, the fact that one or two employees held that state of mind was insufficient to establish that the corporation shared it. The sentencing judge therefore did not err in her assessment of the company's culpability.

The De Simoni principle and the general manager. The De Simoni principle prevents a court from sentencing an offender as though guilty of a more serious offence carrying a higher maximum penalty. The Court found that ss 169 and 169B of the POEO Act carry the same maximum penalty, so the De Simoni principle simply did not arise in this case. Further, taking an offender's state of mind into account during sentencing does not involve punishing the offender for conduct extraneous to the charged offence. No analogous principle therefore prevented the sentencing judge from considering the general manager's state of mind. On this point, the Court found the primary judge erred in excluding the affidavit evidence.

Discretion to intervene. Despite identifying an error in excluding the evidence, the Court declined to intervene. It found there was insufficient prospect that remitting the matter would result in a substantially greater sentence, and the sentence imposed on the general manager was not so inadequate as to warrant the Court's intervention. Both appeals were dismissed.

Orders Made

  • Appeal in Environment Protection Authority v Wollondilly Abattoirs Pty Ltd (Nos 2018/145824–145828, 145882): dismissed
  • Appeal in Environment Protection Authority v Davis (Nos 2018/145865–145869): dismissed

Key Takeaways

  • Under s 169C of the POEO Act, evidence of an individual employee's state of mind is relevant to, but does not automatically establish, the corporation's state of mind for sentencing purposes. Where directors gave contrary evidence, the fact that subordinate employees acted deliberately did not prove the corporation did.

  • A corporation's criminal culpability in environmental offences is assessed by reference to its own failure to supervise or control its officers and employees, not simply by attributing the mental state of those individuals to the entity.

  • The De Simoni principle operates by reference to maximum penalties. Where two offences carry the same maximum penalty, the principle does not prevent a sentencing court from considering a more serious version of the conduct when assessing the offender's culpability.

  • Considering an offender's state of mind as part of sentencing for the offence charged does not amount to punishing the offender for a different or more serious offence. The Court of Criminal Appeal confirmed that no analogous principle to De Simoni bars this approach.

  • In dismissing both appeals, the Court of Criminal Appeal exercised its discretion against intervention despite finding a specific error in the exclusion of evidence, on the basis that a substantially greater sentence was not a sufficiently likely outcome on remittal.

Legislation and Cases Referenced

Legislation
- Protection of the Environment Operations Act 1997 (NSW), ss 66(2), 168, 169, 169A, 169B, 169C, 193
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Appeal Act 1912 (NSW), ss 5D(1), 5D(1A), 6(3), 8(1), 12(2), 17(1)

Key Cases
- Director General, Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270
- Cabonne Shire Council v Environmental Protection Authority (2001) 115 LGERA 304; [2001] NSWCCA 280
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- Davies v R [2019] NSWCCA 45
- McCullough v R (2009) 194 A Crim R 439; [2009] NSWCCA 94
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
- Cassidy v The Queen (2012) 220 A Crim R 420; [2012] NSWCCA 68