Environment Protection Authority v Clarence Valley Metal Recyclers Pty Ltd [2023] NSWLEC 96

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Clarence Valley Metal Recyclers Pty Ltd [2023] NSWLEC 96 Hearing dates: 28 August 2023 Date of orders: 22 September 2023 Decision date: 22 September 2023 Jurisdiction: Class 6 Before: Moore J Decision: See orders at [99] to [102] Catchwords: APPEALS – Defendant pleaded guilty in the Local Court to three offences in breach of the Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulation 2017 (the Regulation) – guilty pleas entered at earliest opportunity – offences arose out of the Defendant fraudulently claiming refunds pursuant to the Regulation for containers for which refunds had previously been claimed by others – Defendant's offending conduct found by the Local Court to be in the mid-range – offences were committed for financial gain – penalty of $15,000 imposed by the Local Court for each offence – Prosecutor's appeal against sentences imposed – Prosecutor complains Local Court sentencing process miscarried as sentences were manifestly inadequate – held Local Court sentencing process miscarried as sentences were manifestly inadequate – Prosecutor's appeals upheld – appropriate to resentenced Defendant – sentencing limit of $110,000 for each offence in the Local Court – no comparable sentencing information available as these were the first offences charged for breaches of the Regulation – appropriate starting penalty for each offence of $72,000 – Defendant entitled to 25% discount for early guilty pleas – Prosecutor accepts that all three offences arose from a single course of offending conduct – appropriate to adjust the overall penalties to reflect totality and accumulation of penalties to be imposed on the Defendant – Defendant resentenced – Defendant ordered to pay the Prosecutor's costs of the appeal as agreed or assessed – Prosecutor seeks moiety of penalties – appropriate to order moiety of penalties (50%) to be paid to the Prosecutor Legislation Cited: Corporations Act 2001 (Cth), s 198A(2) Crimes (Appeal and Review) Act 2001, ss 42(2) and 48(1)(b) Crimes (Sentencing Procedure) Act 1999, ss 21A and 23 Criminal Procedure Act 1986, ss 257B and 257G Fines Act 1996, ss 6 and 122 Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulation 2017 Cases Cited: Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 Environment Protection Authority v Barnes (2006) NSWCCA 246 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 House v The King (1936) 55 CLR 499 Markarian v R (2005) 229 CLR 357; [2005] HCA 25 Pearce v The Queen (1998) 194 CLR 610 R v Ferguson [2022] NSWCCA 147 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Principal judgment Parties: Environment Protection Authority (Appellant) Clarence Valley Metal Recyclers (Defendant) Representation: Counsel: Ms T Epstein, barrister (Appellant) Mr M Walsh (Director of the Defendant)