Kelleher, R v

A custodial sentence for unlawful commercial waste disposal is not confined to cases satisfying every condition identified in earlier sentencing advice. The later increase in statutory maxima requires caution when applying advice which treated custody as exceptional. Custody may be justified where offending is deliberate, repeated, large-scale, organised, financially motivated or highly profitable, even though the waste did not create a real risk to health or long-term environmental damage. In an exceptionally serious conspiracy involving numerous substantive offences, a judge may adopt the available maximum for a single offence as the starting point if the overall criminality warrants it.

The appellant pleaded guilty at the Inner London Crown Court to conspiracy unlawfully to deposit controlled waste contrary to section 33 of the Environmental Protection Act 1990. He and a co-accused had organised an 18-month commercial fly-tipping operation at 15 sites, using false identities and devices to conceal the activity.

The appellant, who had no previous convictions, received 14 months’ imprisonment. He appealed by leave of the full court, contending that the judge’s two-year starting point was excessive and that insufficient weight had been given to his mitigation and to the absence of dangerous waste or lasting environmental harm.

1. Appeal dismissed. The 14-month sentence was neither manifestly excessive nor wrong in principle.
2. The maximum sentence for the conspiracy was two years. Section 3 of the Criminal Law Act 1977 restricted the conspiracy sentence to the maximum available for the relevant substantive offence under section 33(8) of the Environmental Protection Act 1990.
3. The court accepted that the Sentencing Advisory Panel’s advice correctly identified relevant aggravating and mitigating factors. However, its stated custody conditions could not be treated as exhaustive. Parliament’s subsequent equalisation of the maximum penalties for controlled and special waste by the Clean Neighbourhoods and Environment Act 2005 showed that substantial custodial sentences could be appropriate even where waste did not present a real risk to health or long-term environmental harm. That statutory change required caution when using the earlier advice for pre-2005 offending.
4. Custody may therefore be appropriate for deliberate, repeated, large-scale, highly organised, financially motivated and highly profitable unlawful waste depositing, or for offending combining those features. The present operation had all those characteristics. It caused substantial clean-up costs, involved systematic concealment, continued after police interview, and was organised by the appellant rather than a supposed third party.
5. The judge was entitled to use two years as the starting point. The prosecution had proceeded on a conspiracy count rather than 15 substantive counts, each potentially capable of attracting a consecutive sentence. The guilty plea was very late and merited limited credit. The judge also properly reduced the sentence for good character and the personal burdens of conviction and custody, and differentiated the appellant’s sentence from that of his co-accused.

• Court of Appeal (Criminal Division) — dismissed the appellant’s sentence appeal and upheld the 14-month term of imprisonment.
• Inner London Crown Court — following a guilty plea to conspiracy unlawfully to deposit controlled waste, sentenced the appellant to 14 months’ imprisonment on 12 June 2008.