Environment Protection Authority v Carbon MF Pty Ltd; Environment Protection Authority v Fair [2023] NSWLEC 120

Environment Protection Authority v Carbon MF Pty Ltd; Environment Protection Authority v Fair [2023] NSWLEC 120

The defendants committed mid-range objective seriousness offences under the Protection of the Environment Operations Act 1997 (NSW) by storing and failing to clean up large numbers of waste tyres, in deliberate disregard of legal requirements and clean-up notices, for financial gain and with disregard to foreseeable environmental and public safety risks, justifying substantial monetary penalties, a publication order, and a moiety to the prosecutor. Financial incapacity justified reduction of fines for the bankrupt individual defendant, but not for the corporate defendant, in order to maintain general deterrence.

Parties
Prosecutor: Environment Protection Authority; Defendant: Carbon MF Pty Ltd; Defendant: Mark Fair
Jurisdiction
Australia
Judgment Date
09 November 2023
Procedural Posture
Criminal Environmental Prosecution (sentencing) / Sentencing After Guilty Pleas
Outcome
Defendants convicted and monetary penalties imposed, together with orders for costs, publication, payment of investigative costs, and a moiety to the EPA.
Legal Topics
Pollution of Land, Unlawful Storage of Waste Tyres, Non Compliance With Clean Up Notice, Executive Liability, Sentencing Principles, Capacity to Pay Fine
Environmental Law Criminal Law Pollution of Land Unlawful Storage of Waste Tyres Non Compliance With Clean Up Notice Executive Liability Sentencing Principles Capacity to Pay Fine

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Parties

Environment Protection Authority

Prosecutor

Carbon MF Pty Ltd

Defendant

Mark Fair

Defendant

Procedural Posture

Criminal Environmental Prosecution (sentencing) / Sentencing After Guilty Pleas

Legal Issues

  1. 1 Appropriate sentence for offences under the Protection of the Environment Operations Act 1997 (NSW), including pollution of land, unlawful storage of waste tyres, and failure to comply with a clean-up notice; executive and special executive liability; assessment of aggravating and mitigating circumstances; application of the capacity to pay a fine under the Fines Act 1996 (NSW); entitlement to a moiety for the prosecutor

Ratio Decidendi

The defendants committed mid-range objective seriousness offences under the Protection of the Environment Operations Act 1997 (NSW) by storing and failing to clean up large numbers of waste tyres, in deliberate disregard of legal requirements and clean-up notices, for financial gain and with disregard to foreseeable environmental and public safety risks, justifying substantial monetary penalties, a publication order, and a moiety to the prosecutor. Financial incapacity justified reduction of fines for the bankrupt individual defendant, but not for the corporate defendant, in order to maintain general deterrence.

Court Disposition

Defendants convicted and monetary penalties imposed, together with orders for costs, publication, payment of investigative costs, and a moiety to the EPA.

Orders

  • Carbon MF Pty Ltd convicted of offences under s 91B and s 142A(1) of the POEO Act and fined $262,500 for each offence.
  • Mark Fair convicted of offences under s 142A(1) by virtue of s 169(1) and s 91B by virtue of s 169A(2) of the POEO Act and fined $39,375 and $18,000 respectively.