Environment Protection Authority v Grafil Pty Limited Environment Protection Authority v Mackenzie [2022] NSWCCA 268

Environment Protection Authority v Grafil Pty Limited Environment Protection Authority v Mackenzie [2022] NSWCCA 268

The sentencing judge erred in characterising the offending as of low seriousness and in finding no moral culpability; the offence involved the unlicensed use of land as a waste facility over many months and a large volume of waste, including asbestos, absent regulatory control. General deterrence is a central sentencing consideration for environmental offences and should not have been excluded. The appeal in respect of Grafil Pty Limited is allowed, a fine imposed and prior orders for costs confirmed. The appeal against Mackenzie is dismissed, taking into account his diagnosis of depressive disorder and significant subjective circumstances making general deterrence less relevant.

Jurisdiction
Australia
Judgment Date
09 December 2022
Procedural Posture
Criminal Appeal / Appeal on Sentence From Land and Environment Court to Court of Criminal Appeal
Outcome
Appeal against Grafil Pty Limited allowed; fine imposed and prior cost orders confirmed. Appeal against Robert Bruce Mackenzie dismissed.
Legal Topics
['sentencing' 'environmental Offences' 'general Deterrence' 'moral Culpability' 'strict Liability Offences']
['criminal Law' 'environmental Law'] ['sentencing' 'environmental Offences' 'general Deterrence' 'moral Culpability' 'strict Liability Offences']

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Procedural Posture

Criminal Appeal / Appeal on Sentence From Land and Environment Court to Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the moral culpability of the respondents' 'Whether the sentencing judge erred in finding that general deterrence had no role to play in sentencing' 'Whether the sentences imposed were manifestly inadequate']

Ratio Decidendi

The sentencing judge erred in characterising the offending as of low seriousness and in finding no moral culpability; the offence involved the unlicensed use of land as a waste facility over many months and a large volume of waste, including asbestos, absent regulatory control. General deterrence is a central sentencing consideration for environmental offences and should not have been excluded. The appeal in respect of Grafil Pty Limited is allowed, a fine imposed and prior orders for costs confirmed. The appeal against Mackenzie is dismissed, taking into account his diagnosis of depressive disorder and significant subjective circumstances making general deterrence less relevant.

Court Disposition

Appeal against Grafil Pty Limited allowed; fine imposed and prior cost orders confirmed. Appeal against Robert Bruce Mackenzie dismissed.

Orders

  • ['The appeal against Grafil Pty Ltd is allowed.' 'Grafil Pty Ltd is fined the sum of $100,000.00.' "Orders requiring Grafil Pty Ltd to pay 25% of the appellant's legal costs as agreed or assessed and 25% of the appellant's investigation costs ($46,772.00) are confirmed." 'The appeal against Robert Bruce Mackenzie is...