Environment Protection Authority v Grafil Pty Limited Environment Protection Authority v Mackenzie [2022] NSWCCA 268

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Environment Protection Authority v Grafil Pty Limited Environment Protection Authority v Mackenzie [2022] NSWCCA 268 Hearing dates: 6 June 2022 Date of orders: 09 December 2022 Decision date: 09 December 2022 Before: Gleeson JA at [1] Bellew J at [2] Hamill J at [144] Decision: In respect of the appeal brought against the first respondent, Grafil Pty Ltd: (1) The appeal is allowed. (2) The first respondent, Grafil Pty Ltd, is fined the sum of $100,000.00. (3) The orders of the sentencing judge in respect of the conviction of Grafil Pty Limited, and the payment by Grafil Pty Limited of 25% of the appellant's legal costs of the proceedings as agreed or assessed, and the payment of 25% of the appellant's investigation costs, being a sum of $46,772.00, are confirmed. In respect of the appeal brought against the second respondent, Robert Bruce Mackenzie, the appeal is dismissed. Catchwords: CRIMINAL LAW – Offences – Appeal – Sentence – Appeal by Environmental Protection Authority against sentence imposed upon a company (the first respondent) and its director (the second respondent) for an offence of using land as a waste facility without authority – Where first respondent was not fined but was ordered to pay the appellant's legal and investigative costs – Where the charge against the second respondent was dismissed without conviction – Errors established as to the assessment of moral culpability of the offending and the role of general deterrence – Serious and extended offending – No basis on which to exercise the residual discretion to decline to intervene – First Respondent re-sentenced and fined – Charge against second respondent dismissed CRIMINAL LAW – Investigation of offending by statutory authority – Criticisms made of the authority by the sentencing judge as to the manner in which the investigation was carried out – Necessity to distinguish between detecting an offence and obtaining evidence in support of it and conducting an investigation in a way which encourages or facilitates the offending – Where the conduct of the appellant in the present case fell into the former category – Suggestions that the appellant acted improperly and/or beyond the proper boundaries of its role not supported Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Code Act 1899 (Qld) Environmental Planning and Assessment Act 1979 (NSW) Fauna Conservation Act 1974 (Qld) Protection of the Environment Operations Act 1997 (NSW) Protection of the Environment Operations (Waste) Regulation 2005 (NSW) Protection of the Environment Operations (Waste) Regulation 2014 (NSW) Waste Avoidance and Resource Recovery Act 2001 (NSW) Cases Cited: Axer Pty Ltd v Environmental Planning Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Edwards v R [2021] NSWCCA 57 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Custom Chemicals Pty Limited [2016] NSWLEC 146 Environment Protection Authority v Edward Gilder [2018] NSWLEC 119 Environment Protection Authority v Geoff Robinson Pty Limited; Environment Protection Authority v Robinson [2011] NSWLEC 14 Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2018] NSWLEC 99 Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (2019) 101 NSWLR 245; [2019] NSWCCA 174 Environment Protection Authority v Grafil; Environment Protection Authority v Mackenzie (No 4) [2021] NSWLEC 123 Environment Protection Authority v Hanna [2010] NSWLEC 98 Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Grafil Pty Ltd v Environment Protection Authority; Mackenzie v Environment Protection Authority [2020] HCATrans 17 (14 February 2020) Mulato v R [2006] NSWCCA 282 Paterson v R [2021] NSWCCA 273 R v Birtles [1969] 1 WLR 1047 R v Lau [2022] NSWCCA 131 R v Mandica & Spakianos (1980) 4 A Crim R 34 R v Miria [2009] NSWCCA 68 R v Piccin (No. 2) [2001] NSWCCA 323 R v Radich [1954] NZLR 86 R v Rushby (1977) 1 NSWLR 594 Taouk v R (1992) 65 A Crim R 387 Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 Veen v The Queen (No.2) (1988) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54 Category: Principal judgment Parties: Environment Protection Authority – Appellant Grafil Pty Limited – First Respondent Robert Bruce Mackenzie – Second Respondent Representation: Counsel: M G Tedeschi KC and P English – Appellant T G Howard SC and C R Ireland – First and Second Respondents