SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA:  This is an application for leave to appeal against sentences imposed with respect to a series of offences against the Environmental Protection Act 1994 ("the Act").  Throughout these reasons, except where otherwise expressly stated, I will use the section numbers as they appear in Reprint No 4 of that Act;  there has been no relevant change to the wording of the sections, but the numbering has changed since the indictment was drawn.  The indictment also included charges based on the same facts against the company, Universal Abrasives Pty Ltd ("the company") and one Hobson, but there has been no appeal with respect to the sentences imposed on those others.

2. Eight counts on the indictment involved the applicant. He was an "executive officer" within the meaning of that expression as defined in Schedule 3 of the Act. Section 493(1) provides that an executive officer of a corporation must ensure "that the corporation complies with this Act". Then subs (2) provides:

"If a corporation commits an offence against a provision of this Act each of the executive officers of the corporation also commits an offence, namely, the offence of failing to ensure the corporation complies with this Act.

Maximum penalty – the penalty for the contravention of the provision by an individual."

That section also provides that evidence that a corporation committed an offence against the Act is evidence that each of the executive officers committed the offence of failing to ensure that the corporation complies with the Act.

3. The offences with which the applicant was charged can be summarised as follows:

Count 6 – On 28 September 1998 at Bulimba the applicant being an executive officer of the company did fail to ensure that the company complied with s 438 of the Act in that on that date the company did wilfully and unlawfully cause material environmental harm, namely that heavy metals and Tributyltin entered a storm water drain which exited into waters and had a potential adverse effect on the environment which was not trivial or negligible in nature.

Count 7 -  On 28 September 1998 at Bulimba the applicant being an executive officer of the company did fail to ensure that the company complied with s 438(1) of the Act in that the company wilfully and unlawfully caused environmental harm namely heavy metals and Tributyltin were stored externally at those premises in close proximity to a storm water drain which exited into waters and had a potential adverse effect on an environmental value which was not trivial or negligible.

Count 8 – On 28 September 1998 the applicant being an executive officer of the company did fail to ensure that the company complied with s 70 of the Act as inserted by the Amending Act No 7 of 1997 in that the company being the holder of an environmental authority did wilfully contravene a condition of the authority in that an impermeable bund of 150 mm in height to the external chemical regulated waste stock piles was not provided.

Count 9 – On 28 September 1998 at Bulimba the applicant being an executive officer of the company did fail to ensure that the company complied with the aforesaid s 70 in that the company being the holder of an environmental authority did wilfully contravene a condition of the authority namely allowing waste water to be collected within a bunded area and discharged into the storm water drainage system.

Count 10 – On 28 September 1998 at Bulimba the applicant being an executive officer of the company did fail to ensure that the company complied with the aforesaid s 70 in that the company being the holder of an environmental authority did wilfully contravene a condition of the authority in that at all times while the environmentally relevant activity was open at least one person who was responsible for the control and operation of the facility was not present.

Count 14 – That between the first day of June 1997 and the 30th day of September 1999 at Thornlands the applicant being the executive officer of the company did fail to ensure that the company complied with s 437 of the Act in that the company did wilfully and unlawfully cause serious environmental harm, namely between 1 June 1997 and 30 September 1999 placing material containing Tributyltin adjacent to a waterway and in such a manner that it was able to leach and wash into the waterway.

Count 15 – On 11 February 1999 at Thornlands the applicant being an executive officer of the company did fail to ensure that the company complied with s 361 of the Act in that it wilfully contravened an Environmental Protection Order to the effect that all regulated waste that had been buried on the land must be removed from the land and transported to a facility that could lawfully deal with the regulated waste on or before 10 February 1999.

Count 16 – On 15 April 1999 at Thornlands the applicant being an executive officer of the company did fail to ensure that the company complied with s 361 of the Act in that it wilfully contravened an Environmental Protection Order to the effect that all regulated waste stockpiled on the land must be removed from the land and transported to a facility that could lawfully deal with the regulated waste by 14 April 1999.

Section 437(1) of the Act, referable to Count 14 on the indictment, provided for a maximum penalty of 4,165 penalty units or 5 years imprisonment.  Section 438 of the Act provided for a maximum penalty of 1,665 penalty units or 2 years imprisonment.  Section 361 of the Act provided for a maximum penalty of 2,000 penalty units or 2 years imprisonment.  Section 70 of the 1997 Act provided for a maximum penalty of 2,000 penalty units or 2 years imprisonment.

4. The applicant pleaded not guilty and the matter went to trial. The jury returned verdicts of guilty on all counts. The sentences imposed were as follows:

Count 6: fine $100,000

Count 7: 9 months imprisonment

Count 8: 9 months imprisonment

Count 9: 9 months imprisonment

Count 10: 9 months imprisonment

Count 14: 18 months imprisonment

Count 15: 18 months imprisonment

Count 16: 18 months imprisonment

It was ordered that all terms of imprisonment be served concurrently.  There was also a declaration that the applicant had spent 29 days in custody which was declared to be time already spent under the sentence.

5. The applicant was a director of the company and described as the "dominant force" behind it. The company began operations in early 1996. Part of its business involved the collection, stockpiling, and cleaning of spent sandblasting material from shipyards. Commonly the hulls of large ships are painted with a paint containing Tributyltin which is extremely effective at killing marine organisms and is slowly released from the paint. Periodically the ships are dry docked to have the old paint removed by sandblasting and fresh paint applied. The company collected the spent blasting material with the intention of cleaning it and re-selling the cleaned material for re-use in blasting. The spent blasting material contained quantities of Tributyltin and other chemicals which would be harmful if released into the environment.

6. Up to about the end of 1998 the company's operations were conducted at Bulimba. In about March 1997 the company was notified that it required a licence under the Act to carry on the activity in question. It did not obtain the necessary licence and on 25 February 1998 it was charged with carrying on a relevant activity without a licence. That matter was dealt with summarily in the Magistrates Court. Reasons were delivered on 29 September 1998. The magistrate found the offence proved but for various reasons declined to record a conviction against the applicant. Each of the company, Hobson and the applicant was fined; the fine imposed on the applicant was $2000.

7. On 28 September 1998, that is the day before that decision was handed down by the magistrate, inspectors visited the company's premises at Bulimba and there noted the matters which ultimately gave rise to Counts 6 to 10 inclusive on the indictment. By that date a provisional licence under the Act had been issued and a number of the counts dealt with failures to comply with the conditions thereof.

8. Shortly thereafter the company lost the lease on the premises at Bulimba and its commercial activities were transferred to a site at Thornlands near Eprapah Creek. It appears that stockpiles of contaminated material were dumped on the Thornlands property without the knowledge of the Environmental Protection Agency ("the Agency") constituted pursuant to the Act. Some of the contaminated material was buried. The property at Thornlands was adjacent to Eprapah Creek, an area of high environmental value. Subsequently officers of the Agency visited the Thornlands site and issued Orders requiring the proper removal of the materials including the material that had been buried. There was a failure to comply with each of two such Orders duly given.

9. Testing ultimately revealed that Tributyltin had leached into the creek and significant levels of it were there detected. Dr M R Mortimer, a principal environmental officer with the Agency gave evidence that "sediments from the creek indicated that there was quite high concentration of Tributyltin in Eprapah Creek at the upper end adjacent to the premises".

10. This is one of the first occasions on which the court has been called upon to consider the appropriate level of sentence where there has been a conviction after trial for an offence against s 437(1) of the Act. From a general perspective the nature of the contaminating substance and the nature of the environment into which it has escaped, or has the potential to escape, will be material considerations and affect the gravity of the offence. The degree of culpability will also depend upon whether the conduct in question was negligent or wilful. Even where the conduct was wilful there is a range of culpability; the term is defined in Schedule 3 of the Act as meaning intentionally or recklessly or with gross negligence. An offence after a previous conviction, or an offence after the offender had been put on notice of the possibility of a serious offence against the Act, would ordinarily attract a significantly higher penalty.

11. In this particular case the learned sentencing judge emphasised in his sentencing remarks the following matters:

1. the waste material contained Tributyltin which was extremely toxic to marine life;

2. the company was involved in a commercial operation, undercutting by a large margin competitors who were complying, or endeavouring to comply, with the requirements of the Act;

3. many warnings had been issued and the applicant took deliberate advantage of a conciliatory approach by the Agency;

4. the applicant appreciated the risk of the toxins getting into the Brisbane River and pushed on regardless;

5. the applicant did not intend to harm the environment at Thornlands but knew of the serious risks and was therefore reckless;

6. the potential for damage was very large;

7. a deterrent sentence was necessary;

8. the applicant displayed no remorse;

1. the level of offending in this case was more serious than in other matters where offenders had been prosecuted under the Act;

10. the applicant had been dealt with in September 1998 for an offence against the Act but that had not deterred him.

 Each of those matters was of real significance when it came to determining the appropriate sentence in this case.

12. Though there was evidence that actual damage was caused by the toxic waste at Thornlands the learned sentencing judge sentenced on the basis of potentiality for harm rather than the occasioning of actual harm. It was stated that the applicant was impecunious. In consequence orders for clean-up costs under the Act were illusory. His Honour imposed a fine on Count 6 without a default period, thereby enabling the fine to be registered as a judgment and pursued if the applicant ultimately had funds which could satisfy that amount. The learned judge specifically disavowed imposing terms of imprisonment because the applicant was unable to pay a fine; in his view the seriousness of the offences called for the imposition of custodial sentences. The conviction for the eight offences called for the application of the principle that the penalty imposed should reflect the totality of the criminality; that is a concept discussed by this Court in R v Gilles, ex parte Attorney-General [2000] QCA 503;  CA No 156 of 2000, 12 December 2000.  That concept in the context of offences against environmental law was also discussed, particularly by Kirby P, in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 703‑704.

13. Taking into account the offence found by the magistrate in September 1998, the uncovering of the offences by the inspectors at Bulimba on 28 September 1998, and the extremely serious nature of the offence the subject of Count 14, I am of the view that a sentence of 18 months imprisonment reflects the totality of the applicant's criminality. Against the background of what happened earlier, the conduct of the applicant at Thornlands was reckless in the extreme; many would even regard it as contemptuous of the applicable law. There was an extremely serious risk of harm to the very sensitive Eprapah Creek environment. Given the previous history, that must have been appreciated by the applicant. Not even the most basic safeguards were taken nor was any compliance with the Act attempted. When the orders to remove the material were given they were ignored. That happened twice. As already noted there was absolutely no remorse shown; rather as time went on the applicant continued to avoid obligations imposed by the Act.

14. Reference was made by counsel on either side to the sentence imposed by Judge Dodds on Roger Sykes in the District Court at Maroochydore on 20 June 2000 (Indictment 47 of 2000). Sykes was found guilty by the jury of wilfully and unlawfully causing serious environmental harm – the offence against s 437(1). He was the operator of a caravan park who was faced with a problem of disposal of sewerage effluent when the absorption trenches in the park failed. Over a period of some 3½ years he caused over 4 million litres of untreated effluent to be poured over adjacent land. It created a foul mess, affected the flora and fauna in the nearby national park, and created at least the potential for disease to be contracted by people who visited the area. In the course of his sentencing remarks Judge Dodds made it clear that he was dealing with more than a simple isolated instance. He indicated that the penalty must make it clear to others who may be tempted for financial gain or other reasons to create serious environmental harm that heavy punishment would follow. The judge indicated that had the prosecution not submitted that the penalty should be wholly suspended he would have ordered the offender to serve some actual time in custody. But because of the prosecution's submission he imposed a sentence of 18 months imprisonment and wholly suspended it for a 2 year period.

15. The factors enumerated above clearly indicate that this case was much more serious than that of Sykes.  The head sentence of 18 months in Sykes indicates that such a sentence is not inappropriate here.

16. Counsel for the applicant contended that the learned sentencing judge here erred because he placed emphasis on actual environmental harm when that was not the prosecution case.

17. In the course of his sentencing remarks the learned sentencing judge did observe:

" . . . the Bulimba charges did not rely upon actual but, rather, potential damage.  The Thornlands charges left open for the jury to consider that there was actual damage and it seems to me, the inference was open to the jury, and I find that there was actual damage caused to the environment at Epraprah but the precise extent of that damage and nature of it is unable specifically to be determined".

But having said that, he specifically recorded in his sentencing remarks that the "Crown sought only to establish the potentiality of harm" and in consequence he did not deal with the applicant "on the basis of actual environmental harm because that was not sought to be proven".

18. I am of the view that the learned sentencing judge was entitled to make the observations he did and I am satisfied he did not sentence on the basis that the conduct of the applicant had caused actual environmental harm.

19. Another principal submission advanced by counsel for the applicant was that the learned sentencing judge erred in distinguishing a number of cases, many from New South Wales, where lesser penalties had been imposed for environmental offences. The legislation is different in each State and these cases must, perhaps more so than other criminal cases, be assessed on their own rather unique facts. As already noted the toxicity of the contaminating substance and the nature of the environment will be important factors which will vary from case to case.

20. Counsel for the applicant sought to gain some comfort from the non-custodial sentence imposed by the magistrate in Williams v Malaysia International Shipping and Syed Naeem Jafar;  the sentence handed down in the Cairns Magistrates Court on 6 February 2001.  This was the conviction arising out of the ship "Bunga Teratai Satu" running aground on Sudbury Reef near Cairns.  Though the environmental damage caused was greatly in excess of that occasioned by the conduct in question here, the conduct was less culpable because it essentially involved a one-off instance of gross negligence.  I do not find the case of any assistance in determining the appropriate level of sentence here.

21. Major environmental offences, particularly when there is a high degree of criminality involved because of the repetitive nature of the conduct, will call for the imposition of custodial sentences. Here, as already noted, the conduct of the applicant was negligent in the extreme showing virtual contempt for the law. The head sentence of 18 months imprisonment was towards the top, if not at the top of the range, for conduct of the type in question, but in all the circumstances I am not persuaded that it was manifestly excessive.

22. In all the circumstances the application for leave to appeal should be refused.

23. JONES J:   I have read the reasons for judgment proposed by Williams JA.  I agree with those reasons and the order that the application for leave to appeal be refused.

24. DOUGLAS J:  I have read the reasons of Williams JA and agree for those reasons that the application for leave to appeal should be refused.