IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	 Revised
Not Restricted
Suitable for Publication	
Case No. CR-21-00539

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
ROBERT LEO ITALIANO	

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JUDGE:	HER HONOUR GWYNN	
WHERE HELD:	Melbourne	
DATE OF HEARING:	20 July 2021	
DATE OF RULING:	17 August 2021	
CASE MAY BE CITED AS:	DPP v Italiano	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1156		

RULING
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Subject:		Criminal Law
Catchwords: 		Application to Remit	
Legislation Cited:		Sections 29 & 168 Criminal Procedure Act 2008; Environment Protection Act 1970; Sentencing Act 1991
Cases Cited:		DPP v Hazelwood & Ors [2020] VSC 279
Ruling:		Application refused	

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr P. Matthews	Office of Public Prosecutions	
			
For the Accused	Mr G. Livermore QC	Seyfarth Shaw	

HER HONOUR:

1	SKM Services Pty Ltd (SKM) occupies premises located at 90-110 Maffra Street, Coolaroo. 
2	SKM was an approved recycling facility in the business of processing recyclables, such as paper, cardboard, plastic and glass, which were then sorted into individual product grades and made available to end users for remanufacturing into new products.  SKM serviced some 14 local councils. 
3	At all material times, the single director of SKM was Robert Leo Italiano, the Applicant. 
4	SKM and Robert Leo Italiano were each charged with five offences under the Environment Protection Act 1970 as a result of events which unfolded at the premises in mid-July 2017. 
5	SKM is now in liquidation and did not participate in committal proceedings held on 16 March 2021.  SKM remains a party but is not likely to participate in any further hearings.  Both SKM and Robert Leo Italiano were committed for trial in the Melbourne County Court.  No trial date is yet set. 
6	Similarly, an indictment is yet to be filed. 
7	Robert Leo Italiano now makes application pursuant to s168 of the Criminal Procedure Act 2008 for the charges to be remitted to the Magistrates' Court.  Any trial of SKM would naturally follow. 
Background
8	For the purposes of this application, the circumstances of the alleged offending were set out in a document entitled 'Statement of Material Facts & Relevant Offences Provisions', undated. 
9	In short compass, at around 9 am on 13 July 2017, a fire broke out at SKM's premises in Coolaroo in a large rubbish heap.  The heap was approximately 25,000 square metres and made up from a mix of paper, plastics, scrap metal, glass and food scraps.
10	The fire spread quickly and was soon deemed to be 'out of control'.  The fire produced large amounts of smoke which spread to nearby areas. 
11	A state-wide emergency management response was triggered by the fire.
12	A relief centre was established at the Broadmeadows Aquatic Leisure Centre, given the size of the fire and the smoke generated.  The area around Dallas was the most impacted by the smoke.  At 8 pm on 13 July 2017 a 'Prepare to Evacuate' message was issued for Dallas.  By 10.45 pm this was elevated to an 'Evacuate Now' message.  Twenty-two people from 13 homes attended the relief centre in response. 
13	Witnesses describe the smell of the smoke as 'toxic', 'disgusting' and 'acrid'.  Effects reported included breathing difficulties, irritation to the eyes, burning in the chest, headaches, coughing and vomiting. 
14	Approximately 100 people were evacuated from their homes.  Whilst permitted to return home on 14 July 2017, some did not do so for several days.  Residents observed quantities of ash and smoke affected air.  A strong smell persisted.
15	Local businesses were also impacted.
16	The fire was brought under control in the afternoon of 15 July 2017 and fully extinguished approximately 10 days after it started.
17	The Environment Protection Authority (EPA) used air monitoring equipment in the areas surrounding the fire and conducted water sampling due to the large amounts of fire suppression materials that had to be deployed by the Metropolitan Fire Brigade (MFB) and Country Fire Authority.  It is this monitoring which is said to provide the evidence in support of the charges.
18	Expert evidence forms part of the prosecution case.  At this stage it is not known as to whether it will from part of any defence case.
19	Smoke contains very fine suspended particles known as PM 2.5, the particles being less than 2.5 microns in diameter.  Monitoring by the EPA revealed the smoke produced by the fire at SKM contained PM 2.5 particles.  As part of the prosecution case, evidence is to be called from Dr Martina Dennekemp, epidemiologist, that the levels of the particles in this smoke was such that 'it is highly likely that the exposure to PM 2.5 from the fire at SKM's recycling plant was harmful to human health.'  She describes a range of health impacts, including adverse effects on both respiratory and cardiovascular symptoms.
20	Dr Mohammednoor Altarawneh, chemical engineer, opines that the levels of PM 2.5 detected were much higher than what can be described as safe and that there were health impacts from exposure, including a range of respiratory effects.  He opined that it is 'almost certain' that other hazardous pollutants were formed.
21	There had been previous fires at the same premises which required the attendance of the MFB and the EPA in 2010 (two fires), 2012, 2013, and 2015 (two fires).  In the lead-up to 13 July 2017, there were fires at the premises on 20 February 2017, 28 February 2017, 4 June 2017, and two other dates in 
July 2017.  The statement of material facts refers to the fire of 28 February 2017 as being large, involving significant resources for each of the MFB and EPA and as raising concerns as to the potential toxicity of smoke generated and contaminated fire water run-off.
22	The prosecution allege SKM negligently caused or permitted an environmental hazard in the accumulation of a large quantity of flammable and/or toxic material despite this previous history. 
23	Both parties referred me to the decision of DPP v Hazelwood & Ors [2020] VSC 279, primarily for comparative purposes in relation to the type of charge, circumstance and sentencing. 
24	In that particular case, the Hazelwood open-cut coal mine was situated in the Latrobe Valley.  It experienced fires in the mine which ignited on 9 February 2014 and burned for some 45 days.  The origin of the fires lay in embers from local and serious bushfires falling across the open cut pit of the mine.  Fire quickly took hold, becoming uncontrollable, in what was described as extreme conditions.  
25	The smoke emitted polluted the atmosphere around the town of Morwell.  Four entities were charged as a result, each with three offences of polluting the atmosphere pursuant to s41 of the Environment Protection Act 1970.  Each offender was found guilty by jury of the three charges with which they were charged.  
26	On the finding of guilt, the court found that the culpability and responsibility of the offenders to be at the lower end.  Each of the four offenders were fined an aggregate of $95,000.  
The Legislation
27	The intended prosecutions against SKM and the applicant are against s41(1)(a), 41(1)(b), 41(1)(e), s27A(1)(c) and s59E(d) of the Environment Protection Act 1970.
28	In short compass these are:
(a)	Charge 1 – s41(a) – causing pollution to the atmosphere such that it is noxious or offensive to the senses of human beings;
(b)	Charge 2 – s41(b) - causing the atmosphere to be polluted and harmful or potentially harmful to human beings;
(c)	Charge 3 – s41(c) - causing pollution of the atmosphere such that it was detrimental to the beneficial use of the atmosphere;
(d)	Charge 4 – s27A(1)(c) - permitting large amounts of smoke to create an environmental hazard; and
(e)	Charge 5 – s59E - the reckless or negligent manner in which the recycled materials were being handled and stored caused pollution to the atmosphere that resulted in a substantial risk of a serious threat to public health.
29	I am told that Charges 1 to 3 are discrete offences.  Charge 5 is said to be an aggravated form of Charge 4, but it was not made clear to me whether Charges 4 and 5 are said to be alternatives to each other.  
30	Section 66B(1) and (1A) of the Environment Protection Act 1970 provide that if a corporation contravenes any provision of the Act, then each person who is a Director or is concerned in the management of the corporation is also guilty of the offence which relates to the contravention and liable to the penalty for that offence.  Therefore, subject to certain exceptions, a Director is deemed to have committed any offence under the Act which has been committed by the corporation. 
31	The Crown case at present is that the aggravated pollution charge, the subject of s59E, or Charge 5, arises from SKM negligently causing or permitting an environmental hazard resulting in a substantial risk or a serious threat to public health and that, Robert Leo Italiano, as Director, is also guilty of that offence (and the others as presently charged) by virtue of s66B.  It is Charge 5 which is submitted to be the most serious, as reflected in the potential penalties which attach.
32	The applicant has provided a useful chart of available maximum penalties for an individual and a corporation for each of the offences presently charged in each of the Magistrates' and the County Court. 
33	A penalty unit at the relevant time was $158.57.
34	Section 113 of the Sentencing Act 1991 limits the sentencing power of a Magistrates' Court to one of two years' imprisonment if a person is convicted of an indictable offence in a summary hearing.  Sections 112A and 113D legislate the penalties for the maximum fine for an indictable offence heard summarily and allow for an increased maximum fine for a body corporate.  
35	Offences against the provisions of s41 of the Environment Protection Act 1970 each carry a maximum penalty of 2400 penalty units against a corporation in each court.  The maximum penalty against an individual is the same in the County Court, but jurisdictionally limited in the Magistrates' Court to 500 penalty units.
36	Offences against the provisions of s27(2A) carry the same maximum penalties to which I have just referred.
37	The more fundamental difference by way of maximum penalties lies with offences against s59E.  In the County Court, offences against s59E carry a maximum penalty of 2500 penalty units or seven years' imprisonment or both in the case of an individual and, in the case of a body corporate, a maximum fine of 10,000 penalty units.  In the Magistrates' Court, the maximum penalty is 500 penalty units and/or two years' imprisonment for an individual and 2500 penalty units for a corporation.  
38	The maximum penalties are reflective of how parliament regards the seriousness of such offending. 
The application
39	Section 168 of the Criminal Procedure Act 2008 reads relevantly as follows:
(1)     At any time except during trial, the Supreme Court or the County Court may order that a proceeding for a charge for an indictable offence that may be heard and determined summarily be transferred to the Magistrates' Court if—
      	  (a)     the accused consents to the transfer; and
(b)     the court considers that the charge is appropriate to be determined summarily, having regard to—
            	  	(i)     in the case of the Magistrates' Court, the matters in section 29(2); 
(2)     Subject to section 168A, the court must not transfer a charge that the Magistrates' Court has refused to hear and determine summarily unless there has been a significant change in the charges against the accused or in the prosecution case against the accused.
(3)     If an order is made under this section, the transferred charge must be heard and determined summarily.    	
40	There has been no previous application on behalf of Robert Leo Italiano for the matter to remain in the jurisdiction of the Magistrates' Court.  Thus, the matters which fall to be considered pursuant to this application are those contained in s29 of the Criminal Procedure Act 2008. 
41	Section 29 relevantly reads:
(1)     The Magistrates' Court may hear and determine summarily a charge for an offence to which section 28(1) applies if—
(a)     the court considers that the charge is appropriate to be determined summarily, having regard to the matters in subsection (2); and
       	 (b)     the accused consents to a summary hearing.
(2)     For the purposes of subsection (1)(a), the Magistrates' Court must have regard to—
        	(a)     the seriousness of the offence including—
              		(i)     the nature of the offence; and
(ii)     the manner in which the offence is alleged to have been committed, the apparent degree of organisation and the presence of aggravating circumstances; and
(iii)     whether the offence forms part of a series of offences being alleged against the accused; and
              		(iv)     the complexity of the proceeding for determining the charge; and
(b)     the adequacy of sentences available to the court, having regard to the criminal record of the accused; and
       	(c)     whether a co-accused is charged with the same offence; and
        	(d)     any other matter that the court considers relevant.
(5)     If a body corporate and a natural person are jointly charged with an indictable offence which may be heard and determined summarily, the Magistrates' Court must not hear and determine the charge summarily against either of the accused unless—
       	 (a)     each of them consents to a summary hearing; or
(b)     if the body corporate fails to appear in the proceeding, the natural person consents to a summary hearing and the court proceeds under section 82 to hear and determine the charge in the absence of the body corporate.
42	Section 82 provides for a summary hearing without the consent of a corporate accused where that corporate accused has failed to appear in answer to a summons.  
The Applicant's submissions
43	Clearly, by virtue of the application being made, the accused, Robert Leo Italiano, consents to summary jurisdiction.  Pursuant to s82 of the Criminal Procedure Act, to which I have just referred, the consent of SKM will not be required.
44	I have been provided with detailed written submissions dated 6 July 2020, to which I have had recourse.
45	Without doing the written submissions any justice, essentially it is argued that:
(a)	Legislative provision has been made purposely, and the Magistrates' Court is well equipped to deal with indictable matters which are triable summarily;
(b)	Charge 5 should be viewed as the most serious charge and is put on the basis of negligently permitting an environmental hazard which resulted in a substantial risk of a serious risk to public health, rather than alleging recklessness, thereby putting the objective gravity in a lesser category;
(c)	It is not suggested that SKM caused the fire that caused the pollution; 
(d)	The applicant is caught by the deeming effect of s66B of the Environment Protection Act, but no acts of negligence are particularised against him personally;
(e)	Further, it is submitted that the applicant has no prior criminal history; and
(f)	The penalty provisions are the same in each court other than for Charge 5. 
46	To the written submissions, the applicant has attached a schedule detailing various offences and sentences imposed by previous courts as located on the EPA website.  It is submitted that these matters give some indication of previous sentencing outcomes and therefore provide some guidance for potential penalty which, it is submitted, would indicate that the Magistrates' Court could easily impose an adequate sentence.
47	The applicant also submits that Justice Keogh of the Supreme Court, presiding in Hazelwood & Ors, made a number of rulings which may be of assistance to a judicial officer determining the prosecution of SKM and the applicant.

Prosecution submissions 
48	The application made on behalf of Robert Leo Italiano to remit the charges back to the Magistrates' Court is opposed. I note that if the order is made, the case against SKM will naturally follow. 
49	The prosecution has provided detailed written submissions dated 19 July 2021 which were augmented by oral submissions at a hearing of the application to remit held 20 July 2021.  Again, I have had recourse to those submissions.
50	Photographs of the scene were also provided.
51	Essentially, again, without doing the written submissions any justice, it is argued that:
(a)	the alleged offending is serious;
(b)	that any trial will be complex; and
(c)	the community impact of the offending means it is the community which should determine guilt or otherwise through the jury and trial system. 
52	The complexity is said to lie in the need to call some 45 witnesses in circumstances where, given their absence, there will be no admissions from SKM, as they will not be present.  To some extent, I struggle with this submission, subject to witnesses whom Mr Italiano would seek to cross-examine, the evidence of uncontested witnesses could be read in or led through the investigating officer.  Otherwise, I do accept that any trial is likely to be of some length and this appears to be an agreed position.
53	It is further submitted that any trial is likely to last some four weeks, involve expert evidence - which in itself is complex - and that complex legal issues may be involved.  The prosecution draw my attention to the simple fact that no court has had to consider the elements of the offence against s59E particularly.  Hazelwood did not consider that charge, nor the charge of permitting an environmental hazard contrary to s27A.  Potential defences available to the applicant under s66B(1A) were also not part of the case in Hazelwood, thus it is submitted to be of limited assistance .  
54	Further, it is argued that should there be a findings of guilt, particularly in relation to the offence against s59E, then the sentencing powers of the Magistrates' Court are inadequate.
55	It is submitted that the circumstances of the alleged offending by SKM and its Director, particularly as it relates to Charge 5, is more serious than the charges faced by those accused in Hazelwood.  Hazelwood was charged under s41 of the Environment Protection Act 1970, which carried a maximum penalty, as I have already outlined, of 2400 penalty units for a corporation.  Section 59E, by comparison, carries a maximum penalty of 10,000 penalty units.
56	For an individual, s41 carries a maximum penalty of 2400 penalty units.  For an individual, s59E carries 2500 penalty units and/or seven years' imprisonment by way of maximum penalty. 
57	The prosecution also seek to highlight that the circumstances in Hazelwood & Ors were vastly different.  Not only in terms with what was charged but particularly, the circumstances – it was accepted by the judicial officer that the parties in Hazelwood were overwhelmed by an extraordinary event, that is bushfire.  It is submitted that whilst the community impact was wider than that alleged against SKM and the applicant, the form of culpability was in fact less. 
58	In the case against SKM and, by extension, Mr Italiano, it is put that he negligently continued to allow flammable and toxic materials to accumulate on site despite a history of fires.   
59	The prosecution point to the simple fact that Hazelwood & Ors proceeded in the Supreme Court and that 'it would be extraordinary if the more serious offence charged in the present case were nevertheless deemed suitable for hearing in the Magistrates' Court.'     
Ruling
60	The Environment Protection Act 1970 is purposed in providing legislative framework for the protection of the Victorian environment.  In that sense, it is social legislation.  It has a view to protecting the environment for the benefit of all, now, as well as into the future.  The purposes are set out in s1K and do include enforcement for better protecting the environment and its economic and social uses and, importantly, influencing the attitude and behaviour of persons whose actions may have adverse environmental impacts.
Complexity
61	On the information currently known to me at this time, the matter will have some complexity at trial - a description which encapsulates the relatively untested nature of Charge 5, particularly; expert evidence as to the impact of the alleged pollution; and the elements of the charges, particularly those in Charges 4 and 5, and the judicial directions required as to any defence to be relied upon. 
62	The applicant has indicated that there is challenge to most of the prosecution case in what is agreed to be a somewhat novel area of law.
Sentencing outcomes
63	Only very limited guidance can be gained from previous sentences for EPA offences as provided by the applicant.  Other than the Hazelwood matter, all other matters referred to were prosecuted in the Magistrates' Court. 
64	Whether or not the Magistrates' Court has adequate sentencing power is somewhat difficult to determine, given no court has yet had to sentence for an offence prosecuted under s59E.  I accept, however, that it carries significant potential penalty.  On sentencing, any court will have to consider aspects of double punishment, necessarily totality, and how to fix penalty where there is both a corporation and an individual offender. 
65	There would have to be findings of guilt against SKM for the applicant to be found guilty - that is the legislated pathway.  SKM would then fall to be sentenced accordingly, regardless of the fact that it is in liquidation.  Sentencing would adhere to relevant principles, including proportionality, totality and the seriousness of the offending, the harmfulness of the pollution and the maximum penalty.  An assessment of the gravity cannot properly be undertaken until such time that evidence is called and any sentencing court in a position to make such an assessment.  Allowance should be made for that unknown in this application.
66	Likewise, should the applicant fall to be sentenced, it will be based on the assessment of the objective gravity of the offending, his culpability for it, and the harm which resulted.  General deterrence would have to be paramount against each accused.  Despite the charges being outcome based, and whilst early days, the previous fires, and the response by SKM and the applicant may have relevance on sentence.  That is also yet to be determined.   
67	I accept that the available penalties in the Magistrates' Court could appear limiting on any finding of guilt.  
68	The adequacy of the Magistrates' Court sentencing powers is only one factor which falls for consideration and is, of course, not determinative. 
69	Section 29 allows reference to 'any other matter that the Court deems relevant.'
70	One of those factors is delay.
71	It is submitted that the matter is likely to be dealt with more expeditiously in the Magistrates' Court, given the backlog of trials in the County Court which has arisen in circumstances of the COVID-19 pandemic.  Neither party had made any enquiry of the Magistrates' Court (Sunshine) or the County Court as to likely listing dates, but I accept the submission, in a general sense, that it is likely to be dealt with in the Magistrates' Court before the County Court.  I have got no real idea as to that time frame.  I would accept that any trial of SKM and the applicant would not have any particular priority in terms of a listing date in the County Court but matters that are “trial ready’ are being listed relatively quickly.  
72	The delay aspect is the only factor which augurs in favour of the application.  And again, I am not adequately informed.  
73	On the information that is known to me, the application to remit charges against Robert Leo Italiano, and axiomatically, SKM, is refused.  
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