REGINA v MARK FOLEY

A risk-of-harm case does not automatically require movement to a lower harm category under the environmental offences sentencing guideline. The sentencing court may place harm at the higher end where the scale and dangerous nature of the pollution, contamination, effect on amenity and likely remediation costs justify that assessment. The appellate question is whether the sentence was manifestly excessive. A sentence within the applicable range, assessed against all aggravating and mitigating factors and the totality of the offending, will not be manifestly excessive merely because the harm was prospective rather than actual.

The applicant pleaded guilty before Johnson J to environmental offences involving the management of a quarry. Count 4 concerned permitting or negligently permitting the deposit of non-permitted waste, contrary to the Environmental Protection Act 1990. Count 16 concerned false or misleading waste transfer documentation. Following a Newton hearing, the sentencing judge rejected the applicant’s bases of plea and found deliberate offending and knowledge that the documentation was false.

The applicant received concurrent sentences of two years and three months’ imprisonment. He renewed an application for leave to appeal against sentence, arguing principally that the harm assessment for count 4 should have been lower because the case involved only a risk of harm.

The renewed application for leave to appeal against sentence was refused.

1. The relevant question was whether it was arguable that the sentence was manifestly excessive. The sentencing judge was well placed to assess the offending because he had presided over the three-day Newton hearing and considered the evidence, documentation and regulatory material.
2. The categorisation under the Sentencing Council Guideline on Environmental Offences for Individuals was not challenged. The starting point was 18 months’ custody, with a range of one to three years. The judge was entitled to place culpability at the top end despite the applicant’s health problems, partial delegation of day-to-day control and some misunderstanding about the permitted quantity of waste.
3. The judge had placed harm at the higher end, rather than the highest end. Although the case involved a risk of harm to human and animal health and flora rather than established actual harm, the Guideline did not require movement to the next lower category. Vast quantities of dangerous waste had been deposited across the site. The site remained highly contaminated, landfill gas was generated, leachate and offensive odours were present, the community was alarmed, and there had been a major adverse effect on amenity. Remediation was expected to cost many millions of pounds.
4. The judge had taken account of remorse, positive character references, chronic ill-health, delay and pandemic prison conditions, together with the applicant’s previous conviction, failure to respond to warnings, community impact, the site’s location near important water resources and concealment of the unauthorised activity. The dishonest submission of waste transfer notes was also a major interference with the regulatory regime. Considering the totality of the offending, the term of two years and six months before guilty-plea credit, reduced to two years and three months and imposed concurrently with the sentence on count 16, was not manifestly excessive.

• Court of Appeal (Criminal Division): The renewed application for leave to appeal against sentence was refused: [2021] EWCA Crim 1674.
• Sentencing court: The applicant pleaded guilty before Johnson J. Following a Newton hearing, concurrent sentences of two years and three months’ imprisonment were imposed.