Hurstville City Council v Romanous Construction Pty Ltd; Hurstville City Council v Romanous Contractors Pty Ltd [2016] NSWLEC 24

Hurstville City Council v Romanous Construction Pty Ltd; Hurstville City Council v Romanous Contractors Pty Ltd [2016] NSWLEC 24

Both offences were of low objective seriousness because the asbestos was generally bonded, the risk to human health and safety was low although not trivial, there was no evidence of actual harm, and the Prosecutor did not prove beyond reasonable doubt that the defendants acted deliberately or recklessly. The defendants' guilty pleas, remorse, cooperation, remediation, absence of relevant prior convictions and low likelihood of re-offending justified reducing an initial penalty of $60,000 by 30% to $42,000 for each defendant, with publication and costs orders.

Jurisdiction
Australia
Judgment Date
24 March 2016
Procedural Posture
Class 5 Criminal Prosecution for Pollution of Land Contrary to S 142 A(1) of the Protection of the Environment Operations Act 1997 (nsw) / Sentencing After Pleas of Guilty by Both Defendants
Outcome
Both defendants were convicted and each ordered to pay a penalty of $42,000, publish a notice, and pay the Prosecutor's costs as agreed or assessed.
Legal Topics
['deposition of Fill Containing Bonded Asbestos' 'strict Liability Tier 2 Offences Under the Protection of the Environment Operations Act 1997 (nsw)' 'objective Seriousness' 'mitigating Factors' 'publication Orders']
['environmental Law' 'criminal Sentencing' 'pollution of Land'] ['deposition of Fill Containing Bonded Asbestos' 'strict Liability Tier 2 Offences Under the Protection of the Environment Operations Act 1997 (nsw)' 'objective Seriousness' 'mitigating Factors' 'publication Orders']

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Procedural Posture

Class 5 Criminal Prosecution for Pollution of Land Contrary to S 142 A(1) of the Protection of the Environment Operations Act 1997 (nsw) / Sentencing After Pleas of Guilty by Both Defendants

Legal Issues

  1. 1 ['What penalties should be imposed on Romanous Contractors Pty Ltd and Romanous Construction Pty Ltd for pollution of land by placing fill containing bonded asbestos.' 'The extent of actual or likely harm to human health and safety caused by the bonded asbestos in the fill.' "Whether the offences were deliberate, reckless or careless, and the relevance of the defendants' directors' states of mind." 'What mitigating factors applied, including guilty pleas, remorse, absence of prior convictions, cooperation and low likelihood of re-offending.' 'Whether publication orders under s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW) should be made.']

Ratio Decidendi

Both offences were of low objective seriousness because the asbestos was generally bonded, the risk to human health and safety was low although not trivial, there was no evidence of actual harm, and the Prosecutor did not prove beyond reasonable doubt that the defendants acted deliberately or recklessly. The defendants' guilty pleas, remorse, cooperation, remediation, absence of relevant prior convictions and low likelihood of re-offending justified reducing an initial penalty of $60,000 by 30% to $42,000 for each defendant, with publication and costs orders.

Court Disposition

Both defendants were convicted and each ordered to pay a penalty of $42,000, publish a notice, and pay the Prosecutor's costs as agreed or assessed.

Orders

  • ['In proceedings No 14/51018, Romanous Contractors Pty Ltd is convicted of the offence charged.' 'In proceedings No 14/51018, Romanous Contractors Pty Ltd is to pay a penalty of $42,000.' 'In proceedings No 14/51018, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, within 28 days...