When One Man’s Trash is Not Another Man’s Treasure

In August 2019, Mr Michael McGuinness deposited four insulation panels on premises located in Dry Creek, neighbouring a scrap yard. The panels were placed against the dividing fence.

The incident was reported to the City of Port Adelaide Enfield (the Council) who investigated the matter and, after reviewing CCTV footage depicting the Defendant, determined to issue the Defendant an expiation notice for an alleged offence against Section 22(1)(b) of the Local Nuisance and Litter Control Act 2016 (the Act).

The Defendant elected to be prosecuted and the Council subsequently filed an Information and Summons in the Environment, Resources and Development Court. Norman Waterhouse represented the Council in the proceedings.

Throughout the course of the proceedings, the Defendant claimed the panels were ‘goods’ that were to be purchased by the owner of the scrap yard. It was the Defendant’s position that he had not intended to deposit the panels on land in contravention of the Act. Further, the Defendant claimed he had since removed the panels and thus could not be prosecuted for the offence.

Ultimately, shortly before the matter was to proceed to trial, the Defendant determined to enter a plea of guilty to the one count of contravening the Act.

Decision

Newly appointed Judge Kimber heard this matter on 2 September 2020 and delivered his sentence that same day.

His Honour considered, and gave weight to, the personal circumstances of the Defendant, his remorse, his lack of prior offending and the fact he ultimately removed the litter. These factors lead to no conviction being recorded against the Defendant, however, he was ordered to pay $6,000 to the Council by way of costs and penalties. A victims of crime levy was also payable by the Defendant.

Take Home Message

In this case, a successful conclusion was reached in circumstances where the subjective intention of a defendant in carrying out the littering will not relevant for the purposes of determining whether he had, in fact, committed an offence against the Act. However, in so far as their resources allow, councils should continue to examine the surrounding circumstances associated with any littering offence they investigate in order to gain a clear picture as to the rationale for the offending. Solid investigative work by the Council ultimately led to a conviction in this matter.

For more specific information on any of the material contained in this article please contact Paul Kelly on +61 8 8210 1248 or pkelly@normans.com.au; or Dale Mazzachi on +61 8 8210 1221 or dmazzachi@normans.com.au; or Viviana Paradiso on +61 8 8210 1292 or vparadiso@normans.com.au.