Transport for NSW v East Coast Wharf Constructions Pty Ltd; Transport for NSW v King [2020] NSWLEC 112

Land and Environment Court New South Wales

Medium Neutral Citation: Transport for NSW v East Coast Wharf Constructions Pty Ltd; Transport for NSW v King [2020] NSWLEC 112 Hearing dates: 1 and 23 September 2020 Date of orders: 16 October 2020 Decision date: 16 October 2020 Jurisdiction: Class 5 Before: Moore J Decision: See orders at [296] to [300] Catchwords: PROSECUTION - prosecutions commenced by three Summonses against each of a corporate and an individual defendant - individual Defendant prosecuted under special executive liability provision of the Protection of the Environment Operations Act 1997 for the offending conduct of the corporate Defendant - "not guilty" pleas entered by each Defendant to each charge - Prosecutor agrees not to pursue Summons alleging Tier 1 offence by each Defendant - each Defendant then pleads guilty to the two remaining Tier 2 charges laid against that Defendant - sentencing hearing held PENALTIES - corporate Defendant to be convicted -guilty plea entered to two remaining charges - need to provide for both specific and general deterrence - indicative starting sentences of $40,000 and $90,000 - plea of guilty not entered at earliest opportunity but of more than minor utilitarian value - discount of 10% on starting penalties - impact of imposition of order for payment of Prosecutor's costs - consideration of totality and accumulation of penalties - total fine of $105,000 imposed PENALTIES - individual Defendant to be convicted -guilty plea entered to two remaining charges - need to provide for both specific and general deterrence - indicative starting sentence of $12,000 and $27,000 - discount of 10% for the guilty pleas - impact of imposition of order for payment of Prosecutor's costs - consideration of totality and accumulation of penalties - total fines of $28,000 imposed PUBLICATION ORDER - Prosecutor seeks publication order - Prosecutor proposes publication in Afloat Magazine, Daily Telegraph and the Manly Daily publications - Defendants resist the making of any publication order - appropriate to make a publication order - notice to be published ordered in Plain English terms, terms differing from those sought by the Prosecutor - appropriate to order publication of notice in Afloat Magazine, and the Manly Daily but not in the Daily Telegraph - method of specification of effecting publication in newspaper now only published online - publication order expressly created by the Protection of the Environment Operations Act 1997 as being in addition to, and not in substitution for, any element of the appropriate penalty to be imposed on each Defendant - not appropriate to reduce the penalty imposed on each Defendant as a consequence of making a publication order Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3, 21A, 22 and 23 Criminal Procedure Act 1986, ss 257B and 257G Fines Act 1996, s 6 Protection of the Environment Operations Act 1997, ss 115(1), 143(1), 144(1), 250(1)(a) and Dictionary Protection of the Environment Operations (Waste) Regulation 2014 Cases Cited: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Caralis v Smyth (1988) 65 LGRA 303 Environment Protection Authority v Albiston [2020] NSWLEC 80 Environment Protection Authority v Alcobell Pty Ltd; EPA v Campbell [2015] NSWLEC 123 Environment Protection Authority v Dib Hanna Abdallah Hanna [2018] NSWLEC 80; 235 LGERA 114 Environment Protection Authority v Edward Glider [2018] NSWLEC 119 Environment Protection Authority v Foxman Environmental Development Services; Environment Protection Authority v Botany Building Recyclers Pty Ltd; Environment Protection Authority v Foxman (No 2) [2016] NSWLEC 120 Environment Protection Authority v Hughes [2019] NSWLEC 108 Environment Protection Authority v Laison [2015] NSWLEC 89 Environment Protection Authority v Rands [2019] NSWLEC 23 Environment Protection Authority v Terrace Earthmoving Pty Ltd [2016] NSWLEC 158 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 EPA v Barnes [2006] NSWCCA 246 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v O'Neill (1979) 2 NSWLR 582 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Shoalhaven City Council v Knight [2019] NSWLEC 138 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54 Wollongong City Council v Eldridge [2017] NSWLEC 35 Texts Cited: COVID-19 Pandemic Arrangements Policy Category: Sentence Parties: Transport for NSW (Prosecutor) East Coast Wharf Constructions Pty Ltd (Defendant in Matters 344508 and 344550 of 2018) Benjamin Peter King (Defendant in Matters 344556 and 344557 of 2018) Representation: Counsel: Mr E Muston SC/Ms B Anniwell, barrister (Prosecutor) Ms K Hawes, solicitor (Defendants)