Harvey v Carlin No ERD-02-359 [2002] SAERDC 133 (20 June 2002)

Last Updated: 1 June 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Reasons For Penalty Delivered By Her Honour Judge Trenorden

Hearing

20/06/2002.

Catchwords and Materials Considered

ENVIRONMENT PROTECTION

Complaints under Environment Protection Act - transport of asbestos without an environmental authorisation - failing to comply with the direction of an authorised officer - guilty pleas - convicted on Count 2 - good behaviour bond.

• Environment Protection Act 1993 ;
• Criminal Law (Sentencing) Act S16, referred to.

Representation

Complainant: MAXWELL ROBERT HARVEY
Counsel: MR K SOETRATMA - Solicitors: CROWN SOLICITOR'S OFFICE

Defendant: GRANT ANDREW CARLIN
Counsel: MS D ESZENYI - Solicitors: CAMATTA LEMPENS

ERD-02-359

Judgment No. [2002] SAERDC 133

20 June 2002

Settled - Judge C Trenorden - 20 June 2002 - and Internet version

JUDGE TRENORDEN

NO.359/2002

THURSDAY, 20 JUNE 2002 AT 11.49 A.M.

MAXWELL ROBERT HARVEY

V

GRANT ANDREW CARLIN

HER HONOUR IN SENTENCING SAID:

Mr Carlin, you have pleaded guilty to two serious offences; serious because they involved the transporting of a very dangerous substance, asbestos, and I think you know yourself how dangerous that can be. I accept, first of all, that this is your first offence.

I accept that the offence, certainly count no.1, occurred out of ignorance and that you had made an effort and I applaud your attempts to find out what you needed to do to transport asbestos in a situation where that has never been, as I understand, part of the work that you do. However, to a degree you were misled or you did not make the enquiries of the right people, and you did commit an offence. I accept that this is not the usual work that you engage in, that your work is tree-felling and work associated with the removal of trees and the grinding of stumps.

I accept that you wanted to do the right thing. Although you had caused the asbestos to be transported in your vehicle after receiving a warning from the inspector, it was because you had allowed yourself to be persuaded by your mate who held a New Zealand Dangerous Goods Licence. You did approach the inspector after this had taken place, and admitted that you had, in effect, done the wrong thing.

So I accept that, first of all, the offence happened out of ignorance and that you had endeavoured to do the right thing. However at the end of the day your error, your significant error, was to continue to transport the material or cause it to be transported in your vehicle after having been warned by the inspector.

You have pleaded guilty to both counts; I accept that you are guilty on the facts put to me.

Your counsel has submitted that I should, pursuant to s16 of the Criminal Law (Sentencing) Act, not convict you and she has made submissions to me in relation to your personal circumstances. First of all, let me say that I find that the set of circumstances presented to me presents a very, if I might say, sad picture as far as you are concerned.

With respect to count 1, I accept that a case is made out, that this is not the kind of offence that Parliament had in mind, I accept the submissions of your counsel and, therefore, I will accede to the request not to convict on that charge. So there will be no conviction on count 1. I reached the decision to record no conviction in respect of count 1 on these grounds: First of all your good character, the fact that you have no priors, the fact that you, from all accounts, appear to be a law-abiding citizen who knows the law in relation to the area of your work, and, I am satisfied, are unlikely to commit an offence of this nature again. I find the offence trifling in the sense that the circumstances of this offence are not the kind of offence Parliament had in mind when enacting s36 of the Environment Protection Act.

Count 2, however, gives me more difficulty. Count 2 was the failure to comply with the direction of the authorised officer and, clearly, you did fail to comply.

The same kind of submissions made in respect of count 1 cannot apply to count 2 and, therefore, as difficult as I find it, I must convict you on count 2 and so a conviction will be recorded.

When I come to penalty, again I have a difficult task to perform. The maximum penalty for a natural person, for you, in this situation with respect to count 1 is $60000. Certainly, this offence is very much at the lower end of the scale, so I wouldn't contemplate anything towards $60000. With respect to count 2, the maximum penalty is $4000.

I have decided to accede to your counsel's request and aggregate the offences, as I can do pursuant to s18A of the Sentencing Act. I have had regard to your financial situation, which clearly is not good, and in the circumstances will require you by way of penalty, to enter into a bond to be of good behaviour for a period of 12 months. Now, the conditions of that bond would be - first of all, it would be on your own recognisance in the amount of $200 - secondly, that you are required to be of good behaviour for 12 months. That means that if there is any other breach particularly of the Environment Protection Act or any similar-type offences within that period, you will be called up to Court and the Court could then go back to imposing a penalty, a monetary penalty, upon you. So that is what I propose to do.

Can I say to you that in the future you should check with the EPA before you check with other contractors about the appropriate means of transporting goods which you understand to be dangerous so that you don't find yourself in this situation again. I accept it was purely out of ignorance, as I have said, but you will, if you agree to enter into this bond, then be required to do the right thing, to act according to the law particularly during that period of the bond. Do you accept - will you enter into a bond?

MR CARLIN: Absolutely.

ADJOURNED: 11.59AM