ACE Demolition & Excavation Pty Ltd v Environment Protection Authority

DS v R [2014] NSWCCA 267 Einfeld v Regina [2010] NSWCCA 87; 200 A Crim 1 Environment Protection Authority v ACE Demolition & Excavation Pty (No 2) (2023) 255 LGERA 44; [2023] NSWLEC 3 Environment Protection Authority v Afram [2022] NSWLEC 38 Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott (2016) 221 LGERA 24; [2016] NSWLEC 167 Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott (2016) 221 LGERA 24; [2016] NSWLEC 167 Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) (2020) 247 LGERA 23; [2020] NSWLEC 166 Environment Protection Authority v Mouawad (No 3) [2021] NSWLEC 16 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 EPA v Barnes [2006] NSWCCA 246 EPA v Ghossayn Group Pty Ltd [2023] NSWLEC 127 Gilmour v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399 Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 Harris v Natural Resources Access Regulator; Timmins v Natural Resources Access Regulator [2023] NSWCCA 16 Hayek v R [2016] NSWCCA 126 Hilstollo Pty Ltd v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hurmz v R [2017] NSWCCA 235 Johnson v The Queen [2004] HCA 15; 78 ALJR 616 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Leda Manorstead Pty Ltd v Secretary, Department of Planning and Environment [2022] NSWCCA 220 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Muniandy v R [2021] NSWCCA 305 Parker v R [2023] NSWCCA 234 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Pleasance v R [2016] NSWCCA 113 R v David Comber [2012] NSWSC 1502 R v Einfeld [2009] NSWSC 119 R v King [2009] NSWCCA 117 R v Pham (2015) 256 CLR 550; [2015] HCA 39 R v XX [2017] NSWCCA 9; 266 A Crim R 132 Royer v Western Australia [2009] WASCA 139 Sigalla v R [2021] NSWCCA 22 Thorn v R [2009] NSWCCA 294; 198 A Crim R 135 Vaovasa v R [2007] NSWCCA 253; 174 A Crim R 15 Texts Cited: D A Thomas, Principles of Sentencing (2nd ed 1979) Category: Principal judgment Parties: ACE Demolition & Excavation Pty Ltd (Appellant in each proceeding) Environment Protection Authority (Respondent in each proceeding) Representation: Counsel: J Potts SC and K Morris (Appellant) J Single SC and F Graham (Respondent)

Solicitors: Clayton Utz (Appellant) DP Anderson, Environment Protection Authority (Respondent) File Number(s): 2020/357465; 2020/357466; 2020/357467; 2020/357468 Publication restriction: Nil Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 5 Citation: [2023] NSWLEC 3 Date of Decision: 2 February 2023 Before: Moore J File Number(s): 2020/357465; 2020/357466; 2020/357467; 2020/357468

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, ACE Demolition & Excavation Pty Ltd, contracted with two developers to remove waste materials, including asbestos. At trial, the appellant pleaded guilty to four charges brought under s 144AA of the Protection of the Environment Operations Act 1997 (NSW) in respect of the provision of false or misleading weighbridge dockets and other documents that recorded the appellant's dealings with asbestos waste. Three of the charges concerned the offence under s 144AA(2) of knowingly supplying such information; the remaining charge concerned the less serious offence under s 144AA(1) of supplying such information as was false or misleading in a material respect. The maximum penalties in respect of these offences were $500,000 and $250,000. The primary judge imposed fines of $300,000, $270,000 and $240,000 for the three offences under s 144AA(2) and $133,650 for the fourth offence, under s 144AA(1). Mr Al Sarray, an employee of ACE who was described as the appellant's "contract manager", was found to have caused ACE's above offences. He was sentenced for two offences under s 144AA(2) and was fined $135,000 for each offence. The appellant raised three grounds of appeal. The first was that the primary judge erred in not properly accounting for the unlikelihood of the appellant reoffending, under s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999, by requiring proof that future offending would certainly not occur. The second was that the primary judge erred in concluding that 'harm' for the purposes of s 241 of the Protection of the Environment Operations Act 1997 and s 21A(3)(a) extended to "damage to the regulatory system itself", and is not confined to actual harm to the environment. The third was that the sentences were manifestly excessive, for five reasons - first as a result of grounds 1 and 2, second because the sentences were unreasonable or plainly unjust, third because of a defect in the process of intuitive synthesis when reaching starting points of $165,000 and $330,000 for each offence under ss 144AA(1) and 144AA(2) respectively, fourth because the primary judge did not apply the course of conduct principle to prevent double punishment for the same conduct, fifth because there was unjustifiable disparity between the sentence imposed upon the appellant and that imposed upon Mr Al Sarray. The Court, allowing the appeal, held: As to Ground 1

JUDGMENT

1. LEEMING JA: The appellant ACE Demolition & Excavation Pty Ltd pleaded guilty to four charges brought under s 144AA of the Protection of the Environment Operations Act 1997 (NSW). All concerned weighbridge dockets and other documents recording dealings with waste which were provided to third parties and purported to represent waste removed by ACE from two development sites, at Zetland and Wolli Creek. Three of the charges were the offence under s 144AA(2) of knowingly supplying information about waste in the course of dealing with waste which was false or misleading in a material respect. The remaining charge was the less serious offence under s 144AA(1) of supplying information about waste in the course of dealing with waste which was false or misleading in a material respect. The maximum penalties for the offences, in the case of a corporation, were $500,000 and $250,000 (more recently, each maximum penalty has been doubled). The primary judge imposed fines of $300,000, $270,000, $240,000 and $133,650 for the three offences under s 144AA(2) and the fourth offence under s 144AA(1) respectively: Environment Protection Authority v ACE Demolition & Excavation Pty (No 2) (2023) 255 LGERA 44; [2023] NSWLEC 3.
2. This Court was told that the fines imposed were the largest ever imposed by the Land and Environment Court of offences under s 144AA(1) or (2).
3. ACE appeals as of right, pursuant to s 5AA read with s 5AB of the Criminal Appeal Act 1912 (NSW). ACE made no challenge to further orders that (a) the respondent (EPA) be paid one half of each fine, pursuant to s 122(2) of the Fines Act 1996 (NSW), (b) ACE pay the EPA's costs as agreed or assessed pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 (NSW), and (c) ACE publish a notice in a form annexed to his Honour's reasons for judgment in a newspaper and a trade journal, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act.
4. The payment of the fines and the publication of the notice have been stayed on terms that ACE pay a sum of money into court. The stay will be discharged by this Court's orders, and the terms of the notice will need to be altered in light of this Court's judgment.
5. There were conceded arithmetical errors made by the primary judge, which, if all other grounds failed, this Court could correct to save the parties from the need to re-apply under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW), as described in Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10 at [19]-[27]. However, as will be seen, this Court's intervention and resentencing, in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42], is required in any event.

Procedural background

1. The primary judge recorded at [10] that ACE had originally pleaded not guilty, but on the first day of the trial it changed its plea on one charge contrary to s 144AA(1) to guilty. The trial proceeded on all other charges. The materials supplied to this Court do not include the record of a trial, but his Honour stated at [38] that it occupied eight days between 25 July and 3 August 2022, and at [42] that the documentary evidence was "extensive". The page numbering suggests tens of thousands of pages of electronic documents were tendered, while ACE's submissions at trial complained of a wholesale tender of electronic documents unaccompanied by appropriate discipline and discrimination. I mention this only because it has some bearing on the assistance given by ACE at the sentencing hearing.
2. After the close of evidence at trial, and during an adjournment for the purpose of preparing written submissions, the parties advised that it had been agreed that ACE would also plead guilty to the three charges laid against it under s 144A(2) of the Protection of the Environment Operations Act and that the EPA would withdraw the charges against Mr Sami Allam, the sole director and shareholder of ACE.
3. The sentencing hearing occupied most of 23 August 2022, with around 2000 pages of documents tendered in addition to the agreed statement of facts, which was reproduced in full by his Honour at [18]. The primary judge imposed sentence on 2 February 2023, publishing relatively lengthy reasons for judgment at the same time.

Factual background

1. ACE provided demolition and excavation services in the construction industry, including the removal and disposal of waste from construction sites. Waste is classified depending on the extent to which it is contaminated. One common category of waste is ACM or Asbestos Containing/Contaminated Material. Waste was delivered to various facilities, including those operated by SUEZ Recycling & Recovery Pty Ltd (SUEZ), Dial A Dump Industries Pty Ltd and Dial A Dump (EC) Pty Ltd (DADI) and Besmaw Pty Ltd, also known as Holt Estate 1861.
2. Mr Al Sarray was described as "the contract manager and/or construction manager" and was second-in-charge. The four charges related to documents supplied by or at the direction of Mr Al Sarray, on 18 April 2017, 2 June 2017, 12 June 2017 and 2 December 2017. They concerned excavation works at two large sites in Zetland, developed by Top Pacific Group Pty Ltd, and Wolli Creek, developed by Westbourne Constructions Pty Ltd. A condition of development consent for the Zetland site was "all excavated materials at the site must be tracked from cradle-to-grave and sufficient documentation provided in the validation report to allow the site auditor to check the movement and management of these materials". A condition of the development consent for the Wolli Creek site was the production of a Waste Management Plan, and that plan required "Trucking docket records … to be kept on site to check that fill is going to the nominated landfills".
3. ACE contracted with a subsidiary of Top Pacific Group to (among other things) excavate and dispose of material from the Wolli Creek site. The value of the contract was $3,600,000. ACE also contracted with Westbourne to carry out works at the Zetland site, including the excavation and removal of materials. The contract value was $19,000,000. (In each case, the agreed statement of facts referred to a contract "value" which I understand to be a reference to the contract price, as opposed to a measure of ACE's profit.)
4. In January and February 2017, ACE submitted invoices to the Top Pacific Group subsidiary. The invoice submitted by ACE on 25 January 2017 stated that it was for, amongst other things, the excavation of 50% of ACM impacted fill. The invoice of 23 February 2017 included an amount of $1,407,000 for "Bulk Excavation - ACM impacted fill", which was the entirety of the contract amount for that category of work. Neither invoice was accompanied by dockets identifying where the excavated material had been disposed. Those invoices were partly paid, but the contract administrator advised in March that further payments would only be released once further documents were provided by ACE. Following subsequent request for dockets, ACE supplied 70 weighbridge dockets for the disposal of waste material at the SUEZ facility and 148 weighbridge dockets for the disposal of material at the DADI facility. In fact, the SUEZ dockets had been generated by ACE for the disposal of material from a site at Terrey Hills, and each receipt included a "Cust ref" as "H57" which was ACE's internal code for the Terrey Hills site. Most of the DADI receipts had been altered. It was an agreed fact that: Mr Al Sarray carried out alterations on PDF files containing DADI weighbridge dockets, specifically by changing the "Order No." entry on 114 genuine DADI weighbridge dockets from a suburb other than Wolli Creek to "wolli creek".

Applicable legislative provisions

1. Section 3A of the Crimes (Sentencing Procedure) Act provides: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."
2. Section 21A relevantly provides: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors … (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, ... (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, ... (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), ... (k) a plea of guilty by the offender (as provided by section 22), … (m) assistance by the offender to law enforcement authorities (as provided by section 23), ..."
3. By s 22, where an offender has pleaded guilty to an offence the court must take into account that fact, the time at which the plea was entered or indicated, and the circumstances in which it was indicated, and may accordingly reduce the sentence it otherwise would have imposed. Section 23(1) provides that "A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence".

Reasons of the primary judge

1. The primary judge identified the procedural background and relevant legislative provisions, and three affidavits parts or all of which were read at the sentencing hearing. None of the deponents was cross-examined. Significantly for present purposes, Ms Nicole Anthony, ACE's Administration Manager, explained the steps which ACE had taken with a view to ensuring that the conduct would not recur, and also identified steps that ACE offered to take in the future pursuant to an enforceable undertaking (the EPA did not accept the undertaking). Ms Anthony said that her company had already spent $178,849.20 (a) identifying the employee and taking disciplinary action including "removal from key sections", (b) alerted senior management and placed them on notice of the need for greater oversight, (c) reassigned two full time employees, (d) provided training to personnel concerning the submission of documentation, (e) addressed all staff as to their duty of care and the company's expectations of them, (f) revised internal protocols concerning documentation handling, (g) improved procedures and training, and (h) "put in place processes to complete daily variance reporting on actual tipping vs Waste Locate consignment summary, as a means of internally auditing compliance". So far as I can see from the materials in the appeal books, there was no identification of how the $178,849.20 was spent between those eight categories of activity. The undertaking proffered to the EPA proposed spending a further $175,000 on training, monitoring and reporting obligations. These considerations bore upon ground 1 which challenged the failure to find that Ace was unlikely to reoffend.
2. His Honour addressed the harm to the regulatory scheme caused by the offending conduct at [48]-[70], on the basis that notwithstanding the absence of any demonstrated actual harm to the environment, and without speculating on the waste classification of what was actually disposed of by ACE, the breaches undermined the waste regulatory framework and were "significant but not to the extent of constituting a factor of aggravation for the purposes of s 21A(2) of the Sentencing Procedure Act": at [60]. His Honour was also of the view that the offending conduct undermined the development control framework (ie conditions of consent regulating the removal and disposal of waste) and once again concluded that the harm was significant but not to the extent of constituting a factor of aggravation: at [70]. His Honour expressed the view at [54] that: It is to be noted that undermining a regulatory regime can, by itself, constitute an element of harm for criminal sentencing purposes (Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9 ‑ Budvalt).

Ground 1

1. Ground 1 was that the primary judge erred in regarding the likelihood of ACE reoffending as "neutral" for sentencing purposes, and should have taken the fact that ACE was unlikely to breach s 144AA(2) into account as a mitigating factor.
2. The Court is required, by reason of s 21A(3)(g) of the Crimes (Sentencing Procedure) Act, to take into account by way of mitigating factor if it is established to the civil standard that "the offender is unlikely to re-offend". His Honour's assessment of this factor at [94]-[96] has been reproduced above. Despite his Honour being satisfied that ACE "is unlikely to breach s 144AA(2)" following the measures undertaken by it, he concluded: I cannot be satisfied that there has been sufficient reorganisation of the Company's record‑keeping systems (including obtaining dockets from drivers) to be certain that future inadvertent provision of false and misleading information concerning waste, during the course of dealing with waste, would not arise.
3. ACE advanced two submissions in support of this ground. 1. The first was that, in respect of the imposition of sentence for the three counts contrary to s 144AA(2), it was entitled to the benefit of the favourable finding in the first sentence of [94] that ACE was unlikely to breach s 144AA(2) in the future. 2. The second was that the primary judge had erroneously applied an unduly onerous approach in respect of the offending under s 144AA(1). The question was not whether his Honour was satisfied to the civil standard that it was certain that there would not be future inadvertent provision of false and misleading information about waste. The question was whether his Honour was satisfied, to the civil standard, that future reoffending under s 144AA(1) was unlikely.
4. On each basis, ACE contended that this was a material error in that a mandatory relevant consideration was not taken into account.
5. The EPA made two points in response. The first, by reference to R v King [2009] NSWCCA 117 at [60], was that reoffending for the purposes of s 21A(3)(g) was not confined to the particular offence for which sentence was being imposed but was reoffending in general, and reoffending in general extended to the strict defence under s 144AA(1). The second submission was that his Honour was to be taken to have said that the company could not be certain that it was complying with the law as opposed the Court being certain.

Ground 2

1. This ground asserted error in concluding that the factors in s 241(1)(a)-(c) constituted an "adverse impact of significance", and in concluding that ACE was not entitled to the mitigating factor in s 21A(3)(a) where it was conceded that there was no harm to the environment. There are thus two components to ACE's complaint.
2. The first turns on s 241 of the Protection of the Environment Operations Act, which is reproduced above. It was agreed that there was no evidence of actual harm to the environment caused by the offending. It also appears that the evidence was silent as to any likelihood of future harm to the environment. His Honour was satisfied that the offending conduct was significant insofar as it caused "damage to the regulatory regime itself". His Honour recorded a concession at [59] on behalf of ACE that "we don't suggest that [the sending of four emails] had no consequence for the regulatory environment. [Nor do we suggest that the emails] didn't go to the site auditors."
3. The maximum fine of $500,000 confirms that ACE's offending is regarded by the Legislature as serious. The regulatory framework is important, not least because if the regulatory framework is, or is perceived to be, evaded by competitors in the industry, that may lead to a cascading effect of future offending. Those matters need to be taken into account, including by way of general deterrence, when imposing sentence. They are plainly relevant, and it does not greatly matter whether they are taken into account through s 241(1) or 241(2).
4. At two places, at [72] and [76], his Honour expressed the view that the harm to the regulatory system was harm for the purposes of s 241 of the Protection of the Environment Operations Act, although his Honour also made it plain that he did not regard the harm to be of such significance to amount to a factor of aggravation. His Honour recorded that the harms "constitute[d] an adverse impact of significance (but not to the extent necessary to constitute a factor of aggravation for the purposes of s 21A(2) of the Sentencing Procedure Act)". No explanation was given for why the harm was "significant" but not "substantial" for the purposes of s 21A(2). His Honour relied, at [54], upon Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9, for the proposition that "undermining a regulatory regime can, by itself, constitute an element of harm for criminal sentencing purposes". No precise reference in that decision was supplied.

Ground 3

1. As noted above, this ground asserted manifest excess, but had five sub-grounds. The second was traditional, and asserted that the fines were unreasonable or plainly unjust.
2. The first, third, fourth and fifth sub-grounds alleged patent error. The first was that the sentence was manifestly excessive because of "the matters raised in grounds 1 and 2". Those grounds have been addressed above.
3. The third sub-ground was principally directed to the failure to undertake the "mandated process of intuitive synthesis", although this subground also overlapped with the complaint about parity which is addressed below. This was said to turn about the means by which his Honour reached starting points of $330,000 and $165,000. That was not inconsistent with a process of instinctive synthesis. The course adopted by his Honour has been summarised above. In substance, his Honour had regard to most objective and subjective factors when arriving at those starting points, from which he said that he deducted 10% (in fact, just over 9%) for the late guilty plea and then one or two further deductions of $30,000 (or in the case of the lesser offence, $15,000) having regard to totality. But there is no difficulty in transparently recording the undiscounted starting point for the fines imposed for each offence, from which a discount is applied for the guilty pleas. And it is clear that considerations of totality are to be brought to bear at the end of the process: "a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed" must then "review the aggregate sentence and consider whether the aggregate is 'just and appropriate'": Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70, endorsing Thomas, Principles of Sentencing (2nd ed 1979), p 56. After citing Mill, in Pearce v The Queen (1998) 194 CLR 610 at 623-624; [1998] HCA 57, McHugh, Hayne and Callinan JJ said: To an offender, the only relevant question may be 'how long', and that may suggest that the sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. [Emphasis added].

Re-exercising the sentencing discretion

1. Section 144AA(2) was inserted into the Act on 1 October 2013. In Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott (2016) 221 LGERA 24; [2016] NSWLEC 167, the first prosecution for offences under the new section, Preston CJ of LEC observed at [65]: The mens rea offence of knowingly supplying false or misleading information about waste in s 144AA(2) is a more serious offence than the strict liability offence of simply supplying false or misleading information about waste in s 144AA(1), as revealed by the two-fold greater maximum monetary penalties for both corporate and individual offenders and the penalty of imprisonment for an individual offender for the offence in s 144AA(2). These higher maximum penalties were said by the then Minister for the Environment and Minister for Heritage in the Second Reading Speech of the Protection of the Environment Operations Amendment (Illegal Waste Disposal) Bill 2013 (NSW), which introduced the offence under s 144AA(2), to be to 'ensure that the penalties for waste levy evasion schemes are consistent with penalties in other legislation for fraudulent activities' (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 May 2013 at 21356).
2. In EPA v Barnes [2006] NSWCCA 246, Kirby J, with the agreement of Mason P and Hoeben J said at [31]-[33]: Deterrence, especially in the context of environmental offences, is a matter of some importance. In Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357, Mahoney JA said this: (at 359) "The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded, but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur." In Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (supra), Kirby P (Campbell and James JJ agreeing) made the following comment in the context of the objects of pollution control legislation: (at 701) "The objects of the Act and its provisions would require a substantial sentence to punish the appellant, to deter others and to encourage full compliance with the Act by the appellant and others." More recently, the Chief Judge of the Land and Environment Court, Preston J, in Bentley v BGP Properties Pty Limited [2006] NSWLEC 34, said this: "139. The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597 to 598. 140. This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at paras 85 and 93 per Lloyd J. 141. The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and important components of it such as threatened species, must be complied with."

Assistance to law enforcement authorities?

1. ACE is entitled to a benefit reflecting the utilitarian value of its guilty pleas, albeit after there had been an eight day trial. That was assessed, perhaps generously, by the primary judge at 10% applicable to all four charges, and I shall proceed on the same basis. However, the primary judge also took into account, as a mitigating factor, the assistance provided by ACE in agreeing to facts upon which it was to be sentenced, stating at [131]-[132] as follows: I am satisfied that, relevantly, the Company's agreement to the extensive Agreed Statement of Facts on Sentence does evidence positive assistance given to the Prosecutor and, by giving that assistance to the Prosecutor, also demonstrates assistance to the administration of justice as there has been no need, during the course [of] the sentencing hearing, to undertake any investigation of, or determination concerning, matters of fact which might otherwise have been put in contest by the Company. This is a factor to be weighed in the Company's favour in my instinctive synthesis later described.
2. Save for the reference to the agreed statement of facts being "extensive" there is no evaluation of the extent to which the agreement reduced the areas in contest between ACE and the EPA.
3. Section 21A(3)(m) provides that a mitigating factor "to be taken account in determining the appropriate sentence for an offence" is "assistance by the offender to law enforcement authorities (as provided by section 23)". The bracketed words shed light on this factor's scope. Section 23(2) identifies mandatory considerations to be taken into account when evaluating assistance provided to law enforcement authorities, including the "significance and usefulness of the offender's assistance", the "truthfulness, completeness and reliability of any information or evidence provided by the offender" and "the nature and extent of the offender's assistance or promised assistance". This speaks to the familiar sort of assistance to law enforcement authorities by implicating accomplices, giving evidence as a Crown witness, or disclosing guilt which is otherwise unknown, as considered in R v Ellis (1986) 6 NSWLR 603. It is quite distinct from assistance to a prosecutor for the purposes of sentencing.
4. That accords with what was said in R v David Comber [2012] NSWSC 1502, when dealing with a submission that participating in a recorded interview should count as assistance for the purpose of s 21A(3)(m). Bellew J said at [80]-[81]: Counsel submitted that because the offender had agreed to take part in a record of interview where he made admissions in relation to the offence, and because he agreed to assist the authorities in recovering the credit cards and identification documents belonging to the deceased, his actions in this regard constituted assistance of the kind which s 23 was directed. I do not accept this submission. In my view, the assistance to which this section is primarily directed is the type of assistance considered in cases such as R v Ellis (1986) 6 NSWLR 603 and R v Cartwright (1989) 17 NSWLR 243. Acceptance of the submission advanced on behalf of the offender would give rise to a situation where each and every offender who had taken part in a record of interview would be entitled to the benefit of a lesser penalty by virtue of the provisions of s23. In my view, that is not how the section ought be construed.

Comparable sentences

1. I turn to decisions to which the parties drew this Court's attention. In Environment Protection Authority v Afram [2022] NSWLEC 38, there were three offences contrary to s 144AA(1) and a single offence of land pollution based on the illegal dumping of asbestos contaminated waste. For the three offences contrary to s 144AA(1), fines of $67,500, $30,000 and $15,000 were imposed, while the illegal dumping offence attracted a fine of $127,500. Those fines incorporated a discount of 25% for the offender's plea. Other aggravating circumstances included that Mr Afram had a prior fraud conviction, the offending was planned and deliberate and resulted in substantial financial gain for the company of which he was a director, and there was actual harm to the environment. Aside from the plea, there were no other mitigating circumstances. Pain J found the s 144A(1) offending to be "in the low end of high objective seriousness" at [96]. The differential fines represented different numbers of false weighbridge dockets (199 in the case of the first offence, 138 in relation to the second and 47 in relation to the third). The maximum penalty at the time of the offending was $120,000.
2. In Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) (2020) 247 LGERA 23; [2020] NSWLEC 166, Pain J imposed fines on the corporate defendant totalling $450,000 for two breaches of s 144AA(2). The company did not appear at the sentencing proceedings. The individual offender, Mr Mouawad, was sentenced to a term of imprisonment for 12 months, but subsequently determined that it was to be served by way of an intensive correction order incorporating an obligation to perform 250 hours of community service: Environment Protection Authority v Mouawad (No 3) [2021] NSWLEC 16. The offending involved one forged spreadsheet purporting to document 83 truckloads of ACM, and 29 forged waste disposal documents. Mr Mouawad had prior convictions for unlawfully transporting waste, and for obtaining a financial advantage by deception, had engaged in a calculated planned deception (including purchasing a thermal printer to create the false documents), and entered a guilty plea very late, and subsequently sought leave, without success, to withdraw his plea. Her Honour concluded that there was potential for harm to the environment, but since the location of most of the asbestos-contaminated waste was not known, there was merely the potential for harm (at [22]-[25]).

Totality

1. I turn to totality. The primary judge found that the three offences involving Mr Al Sarray's fraudulent provision of information formed part of a single course of conduct, and was satisfied on the balance of probabilities that the fourth offence was carried out by Mr Al Sarray and was part of the same course of conduct: at [89]-[90]. His Honour regarded that finding as favourable to ACE, as is reflected by his application of the civil standard in respect of the fourth offence. I should proceed on the same basis.
2. EPA v Barnes [2006] NSWCCA 246 at [43]-[50] contains an extensive analysis by Kirby J writing for this Court on the applicable principles, confirming that the principle of totality applied to fines. The principle was applied at [50]: Here, the fine in respect of count 1 ($4,000) was significantly different from that in respect of count 2 ($500). However, the disparity by itself does not suggest error. Where there are multiple offences, each punishable by a custodial sentence, the totality principle may find expression through the complete or partial accumulation of sentences, or through making all or some of the sentences concurrent (cf Pearce v The Queen (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at 624 (para 45)). However, there is obviously no room for partial accumulation or concurrence in the case of fines. If the sentencing Judge believed that the totality principle required an adjustment to the fines which may otherwise be appropriate, the amount of each fine had to be altered, applying the sentencing principles suggested in Johnson v The Queen (2004) 205 ALR 346.
3. In EPA v Ghossayn Group Pty Ltd [2023] NSWLEC 127 at [128], Preston CJ of LEC said: The totality principle applies where an offender has committed, and is to be sentenced for, multiple offences. The effect of the totality principle is to require the court in passing a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is "just and appropriate" and reflects the total criminality before the court: Mill v the Queen (1988) 166 CLR 59 at 62-63; [1998] HCA 70; Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57 at [49]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [196]. In the case of a sentence of a fine, if the Court believes the totality principle requires an adjustment to the individual fines that would otherwise be appropriate, the amount of each fine can be altered: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [50].

Conclusion

1. Although I shall proceed on the basis of the same favourable findings as made by his Honour, subject to the matters addressed above (unlikely to re-offend, absence of harm, but no separate assistance to the authorities), this Court is required to exercise the sentencing discretion afresh in accordance with Kentwell. I would approach the matter slightly differently from the approach taken by the primary judge. In substance, there was a simplistic defrauding of two developers which had engaged ACE to remove waste materials. The first and second charges were of the same nature, and should attract the same penalty. The third and lesser offence, committed ten days after the second, was part of the audit process for the Wolli Creek site, and was committed by sending documents to Mr Gerges at El Australia, but involved sending many of the same documents. There should be a reduction in the fine, reflecting the facts that the documents applied to the same site and had previously been sent. The fourth offence, which involved the creation of the Second Holt Run Group, was also sent to Mr Gerges, but this time involved the creation of a new document purporting to be from Besmaw recording 622 truckloads of waste from the Wolli Creek site. Thus, although there was a single course of conduct, the nature of the offending changed with the fourth offence. Rather than creating false documents in respect of separate amounts of excavated material, the fourth offence reflected a different form of fraud, created with the intent of satisfying the site auditor concerning the earlier fraudulent documents, and involving a much larger amount of waste.
2. Those considerations lead me to follow the approach of the sentencing judge and apply the same fine to the first and second offences, but impose for the third offence a proportionally smaller fine (even allowing for the lesser penalty for the strict liability offence), and to impose a somewhat larger fine for the fourth offence, which was different in nature, later in time, and applied to a very large amount of waste. That slightly differentiated course remains consistent with the conclusion that all of the offending was at the "high end of the mid-range of objective seriousness".
3. I put to one side any financial benefit to ACE of the offending. The prosecution has proceeded on the basis that it is entirely unknown (a) what actually happened to the ACM waste taken by ACE from the Zetland and Wolli Creek sites, and (b) what fees (if any), were paid by ACE for its disposal. It may be assumed that the contract prices for which ACE and the developers agreed reflected an assessment of the fees to be paid for the removal and disposal of ACM, as opposed to other forms of waste, and hence it would follow that if the waste was not in fact disposed of by reference to its true character, substantially smaller fees would have been incurred. However, all this must be placed to one side for the purposes of sentencing. In making those observations, I am not to be taken to be implying any necessary failing on the part of the investigation and prosecution conducted by the EPA; the materials in this Court do not permit any meaningful views to be expressed in that respect, and it may be that it was practically impossible for the EPA to investigate those matters. If the EPA had alleged and established beyond reasonable doubt that ACE had made substantial gains from its contraventions of s 144AA, that would have led to substantially greater fines.

Orders

1. The appeal must be allowed, the existing fines quashed and fines in accordance with the foregoing imposed. It will be necessary to make corrections to the form of the publication to reflect this Court's decision. The orders I propose seek to achieve that. The parties have not been heard as to that, and if there is any difficulty with those adjustments, the orders I propose will permit them to apply in that respect and in relation to any other ancillary orders (for example, concerning money paid into Court). The existing stay must be discharged, but ACE should have a further 28 days to pay the balance of the fines and cause the notice to be published, and the orders I propose will entitle it to do so. It was common ground that no order for costs in this Court should be made.
2. I propose the following orders in each appeal (357465, 357466, 357467 and 357468 of 2020):
3. Appeal allowed.
4. Quash order 3 made on 2 February 2023 and in lieu thereof, impose fines of: (a) $216,000 in the case of each of 357465 and 357466 of 2020; (b) $90,000 in the case of 357467 of 2020, and (c) $252,000 in the case of 357468 of 2020.
5. Alter Annexure B by (a) inserting a new sentence at the end of the first paragraph "On 9 February 2024 the Court of Criminal Appeal allowed an appeal." and (b) delete "$943,650" and replace with "$774,000".
6. Discharge the stay of the orders for payment of the fines and publication of a notice with effect from 28 days of today.
7. Liberty to apply in respect of the form of Annexure B within 14 days of today.
8. GARLING J: I agree with the orders proposed by Leeming JA, and with his Honour's reasons.
9. CAVANAGH J: I agree with Leeming JA. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2024