> Reported Decision : 124 LGERA 57 Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Hargraves [No. 2] [2003] NSWLEC 15 PROSECUTOR: Environment Protection Authority PARTIES : DEFENDANT: Yolanda Hargraves FILE NUMBER(S) : 50120 of 2001 & 50121 of 2001 CORAM: Lloyd J KEY ISSUES: Environmental Offences :- penalty - materially false or misleading information - purpose of sections 203 and 211 of the Protection of the Environment Operations Act 1997 - principle of totality - total criminality LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 203(1), s 211 and s 241 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Environment Protection Authority v Hargraves [2002] NSWLEC 113; Ex parte Green Environmental Industries Limited [2000] 2 AC 412; CASES CITED: Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610; R v Carr [2003] NSWCCA 434; R v Holder [1983] 3 NSWLR 245; R v Place (2002) 189 ALR 431 DATES OF HEARING: 17/10/2002 DATE OF JUDGMENT: 02/13/2003 PROSECUTOR: Mr D A Buchanan SC SOLICITORS: Stephen Garrett LEGAL REPRESENTATIVES: DEFENDANT: Mr C M Harris (Barrister) SOLICITORS: MatthewsFolbigg JUDGMENT: - 8 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50120 of 2001 50121 of 2001 Lloyd J 13 February 2003 Environment Protection Authority Prosecutor v Yolanda Hargraves Defendant JUDGMENT [No. 2] Introduction 1 On 11 July 2003 after a four-day hearing I found the defendant, Yolanda Hargraves, guilty of two offences against s 211(2) of the Protection of the Environment Operations Act 1997 ("the PEO Act"). That section states: A person who furnishes any information or does any other thing in purported compliance with a requirement made under this Chapter [Ch 7], knowing that it is false or misleading in a material respect is guilty of an offence. 2 The detailed facts and circumstances which gave rise to the offence are set out in my previous judgment and need not be repeated (Environment Protection Authority v Hargraves [2002] NSWLEC 113). It is sufficient to note that an authorised officer of the prosecutor, Mr R J Harrison, had served a notice under s 193 of the PEO Act requiring Pyonex Pty Limited, a corporation of which the defendant and her husband are directors, to produce records of the amount of waste deposited at a landfill site. As a result of information received by Mr Harrison which suggested that the records thus produced were wrong, the defendant was required by Mr Harrison to answer questions pursuant to s 203(1) of the PEO Act. It is the defendant's answers to questions asked of her during the course of that interview which are the subject of these charges. 3 In my previous judgment I found that the records created by the defendant were fictitious and were designed to deceive the council, which owned the landfill site. I further found that the defendant had a clear motive to deceive the council, that is, financial gain. I found that in the interview with Mr Harrison the defendant did not tell the truth in answering the questions which gave rise to these charges, that she knew that the information that she gave in her answers was false, that she had a clear motive to deceive Mr Harrison, and that the information was material (being required for the purpose of the Act). I also found that, in giving her evidence to the Court, the defendant was deliberately evasive and untruthful. In other words, I was satisfied beyond a reasonable doubt that the defendant lied to the council by creating false and "bogus" records relating to the amount of landfill which was deposited by Pyonex Pty Limited at the landfill site, the defendant lied to Mr Harrison in the interview with him, the defendant lied to the Court in giving her evidence, the defendant did so on each occasion knowingly, and the defendant did so with the intention of deceiving the council, deceiving Mr Harrison and deceiving the Court. 4 The defendant can only be punished, however, for a breach of s 211 of the PEO Act, in which she lied to Mr Harrison. She did so to conceal the fact that she was generating false records of vehicle load weights. The defendant partly explained her conduct in her evidence before me on the question of penalty. In her affidavit which was read she states (inter alia): At the time that I was writing up the delivery dockets which were put into evidence in these proceedings, I did not believe that the amount of waste being deposited at the landfill was of any significance so far as the Environmental Protection Authority was concerned. I believed that, because of the exemption given to Oberon Council, there was no limit to the amount of waste which could be deposited at the landfill and that there was no levy payable, and no licence required, whatever the amount of landfill that was deposited there. … I continued to have these beliefs. … I did not think that it was important because of these beliefs. 5 The defendant also gave evidence before me on the question of penalty. She appeared to remain of the belief that she did not do anything wrong. She gave the following evidence: Q. And do you tell us that that was what was in your mind on that day when you were answering questions from Mr Harrison? A. Well I knew I didn't destroy the environment or pollute or anything like that. I felt like I had done nothing wrong. 6 In relation to her statement in her affidavit which I have set out in par [4] above, the defendant gave the following evidence. Q. What is it that you're trying to tell us when you say, "I did not think it was important."? A. Because I didn't do any actual pollution. I didn't think that the issue – I didn't do it, there was no pollution involved or anything, I didn't damage the environment, that's why I didn't think it was such a dramatic thing. Q. And so do you mean to say because you did not think that you had damaged the environment it did not matter whether or not you told the truth to the investigators? A. No, I told the truth to the best that I thought I was correct, I was doing everything right. Now I still gave answers that I believed were right. 7 The last statement suggests that the defendant still does not accept the findings set out in my previous judgment. The evidence that the defendant knew and must have known that the answers she gave during her interview with Mr Harrison were untruthful, is compelling. The defendant cannot be believed when she stated that she gave answers that she believed were right. The impression I have is that the defendant is unrepentant and still does not believe that she has done anything wrong. There is a complete lack of insight into her offending, there is no genuine contrition and there is no remorse. These considerations suggest that the penalty to be imposed should be both a specific as well as a general deterrent. 8 Section 241 of the PEO Act sets out certain matters to be considered in imposing a penalty. The matters set out in sub-s (1) are not presently relevant since no environmental harm was caused. Sub-section (2), however, provides that the Court may take into consideration other matters that it considers relevant. 9 The purpose of statutory provisions such as s 203 and s 211 is to enable investigators of the Environment Protection Authority to determine whether there has been compliance with or contravention of relevant environment protection legislation. It is important that a person who is required to answer questions speak the truth and that the information which such a person supplies is not misleading. 10 In Ex parte Green Environmental Industries Ltd [2000] 2 AC 412 the House of Lords considered the provision of s 71(2) of the Environmental Protection Act 1990 (UK) which is as follows: For the purposes of the discharge of their respective functions … (b) a waste regulation authority, may, by notice in writing served on him, require any person to furnish such information specified in the notice as the … authority … reasonably considers … it needs… 11 Non-compliance, without reasonable excuse, amounted to an offence. Lord Hoffman went on to explain (at 420) that the powers were created - not merely for the purpose of enabling the authorities to obtain evidence against offenders but for the broad public purpose of protecting the public health and the environment. Such information is often required urgently and the policy of the statute would be frustrated if the persons who knew most about the extent of the health or environmental hazard were entitled to refuse to provide any information … 12 I accept the submission on behalf of the defendant that she is otherwise of good character, that the information which she supplied in the interview which is the subject of these charges represents a small portion of the total information that she supplied and that the defendant's method of record keeping has now been changed. 13 Nevertheless the offences are serious. This is evident in the maximum penalty for an offence against s 211 of the PEO Act - $250,000 in the case of a corporation and $120,000 in the case of an individual. (The seriousness of the offence such as this is recognised by the penalties imposed in other jurisdictions: for example, the Canadian Environmental Protection Act 1999 provides, for an offence of providing false or misleading information with respect to any matter related to that Act or the regulations, a penalty of $1 million (Pt 10 s 273).) 14 The two offences arose in the course of the same interview. They are thus to be seen as connected and punished accordingly, so that the principle of totality applies. The principle was explained by Street CJ in R v Holder [1983] 3 NSWLR 245 at 260: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straight-forward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences. As has been said more than once in this Court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order. 15 The statement of Street CJ in Holder was quoted with approval by Kirby P in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 703-4 (Campbell and James JJ concurring). Kirby P went on to state that the principle of totality is applicable when the penalty imposed is by way of fine. In that case the defendant had been charged with three offences that were seen as being connected. It was held that in applying the principle of totality, the penalties should reflect the total criminality of the defendant. 16 In Mill v The Queen (1988) 166 CLR 59, the High Court adopted (at 63) the following statement of the principle in Thomas, Principles of Sentencing, 2nd ed. (1979) pp 56-7 (omitting references): The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [']; 'when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'. 17 The High Court went on to say that the principle may be achieved "by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed". 18 In Pearce v The Queen (1998) 194 CLR 610, Mill was followed and the manner of its application was explained by McHugh, Hayne and Callinan JJ (at 623-624). Their Honours held that an approach which has regard only to the total effective sentence is likely to mask error, and continued: A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. Their Honours went on to observe that the defendant in that case should not be doubly punished under separate counts for a single act. 19 In applying the principles explained in Mill and Pearce, as I understand them, I must not fix an appropriate total penalty for all the offences and then apportion that total. The sentencing court is required to fix an appropriate penalty for each offence and then, applying the principle of totality, ask whether the aggregate penalty is just and appropriate, that is, whether the penalties properly reflect the total criminality of the defendant and then make an adjustment accordingly. 20 The correct approach to the application of the totality principle is further explained by the Court of Criminal Appeal of South Australia (Doyle CJ, Prior, Lander and Martin JJ, Gray J concurring) in R v Place (2002) 189 ALR 431 at 456-457: The [totality] principle was again considered by the High Court in Postiglione v R (1997) 189 CLR 295; 145 ALR 408. McHugh J spoke of ensuring that the aggregation of sentences appropriate for each offence "is a just and appropriate measure of the total criminality involved": at CLR 308. Kirby J described the principles of "parity" and "totality" as "in the nature of checks" to be applied after reaching a conclusion as to the appropriate sentence having regard to the objective criminality and personal and other matters of mitigation. His Honour said it was "then" that the sentencing judge must consider whether the resulting sentence needs further adjustment by reason of parity or totality: at CLR 340-1. See also R v Carr [2003] NSWCCA 434. 21 In my opinion, having regard to all of the above-mentioned considerations it is appropriate that a penalty of $20,000 be imposed for each offence. Since both offences arose out of the same interview, however, these penalties will be reduced to $15,000 to reflect the total criminality. 22 The formal orders of the Court are: No. 50120 of 2001 1. The defendant is convicted of the offence as charged. 2. The defendant must pay a penalty of $15,000. 3. The defendant must pay the prosecutor's costs in accordance with section 52(2) of the Land and Environment Court Act 1979. 4. The exhibits may be returned. No. 50121 of 2001 1. The defendant is convicted of the offence as charged. 2. The defendant must pay a penalty of $15,000. 3. The defendant must pay the prosecutor's costs in accordance with section 52(2) of the Land and Environment Court Act 1979. 4. The exhibits may be returned. ********** I hereby certify that the preceding 22 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate Dated: 13 February 2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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