Environment Protection Authority v Green; Environment Protection Authority v Whites Haulage Pty Limited; Environment Protection Authority v Whites Timber Products Pty Ltd [2024] NSWLEC 19

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Green; Environment Protection Authority v Whites Haulage Pty Limited; Environment Protection Authority v Whites Timber Products Pty Ltd [2024] NSWLEC 19 Hearing dates: 13 March 2024 Date of orders: 13 March 2024 Decision date: 13 March 2024 Jurisdiction: Class 5 Before: Pain J Decision: See below in [12]. Catchwords: CRIMINAL PROCEDURE – sentence hearing – notices of motion seeking orders that sentence hearing in multiple matters be heard jointly granted Legislation Cited: Local Land Services Act 2013 (NSW) Cases Cited: Dwayhi v R; Bechara v R (2001) 205 A Crim R 274; [2011] NSWCCA 67 Environment Protection Authority v Snowy Hydro Ltd [2007] NSWLEC 822 Category: Procedural rulings Parties: Environment Protection Authority (Prosecutor) Michael James Green (Defendant, 2023/296757) Whites Haulage Pty Limited (Defendant, 2023/296779) Whites Timber Products Pty Ltd (Defendant, 2023/296768) Representation: Counsel: H El-Hage SC (Prosecutor) S Hall SC (Defendant, 2023/296757) Dr S Smith (Defendant, 2023/296779, 2023/296768)

Solicitors: Environment Protection Authority (Prosecutor) File Number(s): 2023/296757-002, 2023/296779-002, 2023/296768-002

ex tempore JUDGMENT 1. Three Defendants have separately pleaded guilty to identical charges under the Local Land Services Act 2013 (NSW) arising from forestry activities on Mr Green's land carried out by Whites Haulage Pty Ltd and Whites Timber Products Pty Ltd in 2021. The same notice of motion has been filed by the Prosecutor in each matter seeking orders that the sentencing hearings in all matters be heard jointly over two days and additional procedural orders that evidence in one hearing be evidence in another inter alia. Two separate sentencing hearings have already been allocated by the Court in 2023 with Mr Green's hearing on 15 April 2024 and the two companies' hearing on 31 May 2024. 2. The affidavit of Mr Caleb O'Brien solicitor dated 20 Feb 2024 read by the NSW Environment Protection Authority (EPA) identifies the procedural history with Mr Green pleading guilty on 17 November 2023 and the corporate Defendants on 15 December 2023 the last day of court term. On that day the Court was asked to make a note on the court file that the same judge hear both sentencing hearings. 3. The EPA's notice of motion is dated 20 February 2024. The EPA was ready to proceed on the return date of the notice of motion on 1 March 2024. As the Defendants were not all ready to proceed the hearing of 13 March 2024 was allocated. 4. The EPA submits that the three offences arise from the same substratum of facts so that there is a large body of facts common across the three proceedings. Key differences on the version of the facts in relation to the responsibility of Mr Green on one hand and the corporate Defendants on the other for the activities which have given rise to the offences exist. Separate sentence hearings will increase the risk of conflicting findings on these key matters giving rise to the prospect of disparate sentences or hinder the ability of the Court to determine the extent of each offender's responsibility and/or control over the offending conduct. 5. The Defendants oppose the notices of motion because of delay in making these applications by the EPA, the additional costs that are likely to be incurred if two days are allocated rather than the one day currently allocated to each Defendant and for Mr Green his expectation that his matter having been set down in November 2023 that it be dealt with in terms of the hearing in April 2024. Prejudice if orders are made requiring that the evidence in one proceeding be evidence in another and providing for the use of records of interview (ROIs) by the Defendants will also be occasioned to the Defendants.