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[2014] NSWLEC 152
Land and Environment Court (NSW)
2014-07-23
Preston CJ
Original judgment source is linked above.
ong [2013] NSWLEC 187 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Morton v R [2014] NSWCCA 8 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v AB [2011] NSWCCA 229 R v Allpass (1993) 72 A Crim R 561 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Dodd (1991) 57 A Crim R 349 R v Geddes (1936) 36 SR (NSW) 554 R v McGourty [2002] NSWCCA 335 R v McNaughton [2006] NSWCCA 242; (2006) 163 A Crim R 381 R v Morgan [2013] EWCA Crim 1307 R v Nichols (1991) 57 A Crim R 391 R v Oliver (1980) 7 A Crim R 174 R v Rahme (1989) 43 A Crim R 81 R v Rushby [1977] 1 NSWLR 594 R v Scott [2005] NSWCCA 152 R v Sellafield Limited and R v Network Rail Infrastructure Limited [2014] EWCA Crim 49 R v Southern Water Services Ltd [2014] EWCA Crim 120 R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Tuan Anh Tran [2011] NSWSC 1480 R v Wheeler [2000] NSWCCA 34 R v Whyte (2002) 55 NSWLR 252 R v Wisbey [2001] NSWCCA 434 R v Campbell [2014] NSWCCA 102 R v Cotterill [2012] NSWSC 89 Ryan v The Queen (2001) 206 CLR 267 SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 The Hills Shire Council v Kinnarney Civil and Earthworks Pty Ltd and Kinnarney (No 2) [2012] NSWLEC 95 The Hills Shire Council v Suciu (No 3) [2009] NSWLEC 192 Veen v The Queen (No 2) (1988) 164 CLR 465 Williams v R [2012] NSWCCA 172 Category: Principal judgment Parties: Bankstown City Council (Applicant) Mr Dib Hanna Abdallah Hanna (Respondent) Representation: Mr M L Wright (Barrister) (Prosecutor) Mr S J Stanton (Barrister) (Defendant) Marsdens Law Group (Prosecutor) CK Lawyers (Defendant) File Number(s): 50875-50878 of 2013 Publication restriction: Nil
Judgment 1Mr Hanna has repeatedly over the last seven years unlawfully transported and dumped building waste. He has been issued with at least 29 penalty notices and prosecuted in courts at least 11 times for offences involving the unlawful transporting and dumping of waste, failing to pay fees for cleaning up waste that he has dumped, failing to comply with requirements made of him in the investigation of unlawful transporting and dumping of waste, or obstructing an authorised officer exercising powers to investigate unlawful transporting or dumping of waste. 2On 5 April 2012, Mr Hanna again unlawfully transported and dumped building waste on vacant private land and a public park at Henry Lawson Drive, Picnic Point. Bankstown City Council prosecuted him for four offences, two for each property, being, first, transporting waste to a place that cannot be used as a waste facility for that waste, contrary to s 143 of the Protection of the Environment Operations Act 1997 ('POEO Act') and, secondly, polluting land, contrary to s 142A of the POEO Act. 3Mr Hanna has pleaded guilty to each of the offences. A sentence hearing has been held on 23 July 2014. The Court's task is to determine and to impose the appropriate penalties for these latest offences committed by Mr Hanna. 4At the time of Mr Hanna committing these offences, the POEO Act only prescribed the penalty of a fine for the offences. Imprisonment was not a sentencing option. The maximum penalty for both the offence of unlawfully transporting waste and the offence of polluting land was $250,000 for an individual. 5In determining the appropriate amounts of the fines for these offences, I have had regard to the purposes of sentencing. Of particular relevance to the circumstances of these offences and this offender are the purposes of:
The offences committed by Mr Hanna 10Mr Hanna committed offences under s 143 and s 142A of the POEO Act. Section 143(1) provides: If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported: (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence. 11"Waste" is defined in the Dictionary to the POEO Act to include: (a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or (e) any substance prescribed by the regulations to be waste. 12For the purposes of para (e) of this definition of waste, the Protection of the Environment Operations (Waste) Regulation 2005 ('the Waste Regulation') prescribes a substance as "waste" if the substance: (a) is not otherwise included as waste within the meaning of the Act, and (b) is reasonably capable of being applied to land at a scheduled waste facility, and (c) is received by a waste facility to which section 88 of the Act applies: cl 3A of the Waste Regulation. 13The defendant bears the onus of proving that the place to which the waste was transported can lawfully be used as a waste facility for that waste: s 143(2) of the POEO Act. 14It is a defence in any proceedings for an offence under s 143(1) if the defendant establishes that: (a) an approved notice was, at the time of the alleged offence, given to the defendant by the owner or occupier of the place to which the waste was transported or was displayed at the place, and (b) the approved notice stated that the place could lawfully be used as a waste facility for the waste, and (c) the defendant had no reason to believe that the place could not lawfully be used as a waste facility for the waste: s 143(3A) of the POEO Act. 15However, it is not a defence for the defendant "to establish that the defendant relied on the advice (other than advice in the form of an approved notice) given by the owner or occupier concerned to the effect that the place could, at the time of the alleged offence, be lawfully used as such a waste facility": s 143(3B) of the POEO Act. 16It is a defence to any proceedings for an offence under s 143(1) if the defendant establishes that the waste transported by the defendant was not deposited by the defendant or any other person at the place to which it was transported: s 143(3C) of the POEO Act. 17An "approved notice" means a notice, in a form approved by the Environment Protection Authority: (a) stating that the place to which the notice relates can lawfully be used as a waste facility for the waste specified in the notice, and (b) that contains a certification by the owner or occupier of the place that the statement is correct: s 143(4) of the POEO Act. 18The Waste Regulation makes special requirements relating to the transportation, disposal, re-use or recycling of any type of asbestos waste, regardless of whether the activity is required to be licensed: cl 42(1) of the Waste Regulation. A person who carries out an activity to which cl 42(1) of the Waste Regulation applies must comply with the requirements specified in cl 42(3) and (4) of the Waste Regulation in relation to the activity concerned: cl 42(2). Clause 42(3) specifies the requirements relating to the transportation of asbestos waste. Clause 42(4) specifies the requirements relating to the off-site disposal of asbestos waste, being: (a) asbestos waste in any form must be disposed of only at a landfill site that may lawfully receive the waste, (b) when asbestos waste is delivered to a landfill site, the occupier of the landfill site must be informed by the person delivering the waste that the waste contains asbestos, (c) when unloading and disposing of asbestos waste at a landfill site, the waste must be unloaded and disposed of in such a manner as to prevent the generation of dust or the stirring up of dust, (d) asbestos waste disposed of at a landfill site must be covered with virgin excavated natural material or other material as approved in the facility's environment protection licence: (i) initially (at the time of disposal), to a depth of at least 0.15 metre, and (ii) at the end of each day's operation, to a depth of at least 0.5 metre, and (iii) finally, to a depth of at least 1 metre (in the case of bonded asbestos waste or asbestos-contaminated soils) or 3 metres (in the case of friable asbestos material) beneath the final land surface of the landfill site. 19Section 142A(1) of the POEO Act provides: "A person who pollutes land is guilty of an offence." The action of polluting land includes causing or permitting any land to be polluted: s 142A(2). 20"Land pollution" or "pollution of land" is defined in the Dictionary to the POEO Act to mean: placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous: (a) that causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial, or (b) that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter, but does not include placing in or on, or otherwise introducing into or onto, land any substance excluded from this definition by the regulations. 21"Harm" to the environment includes "any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution": Dictionary to the POEO Act. 22It is a defence in proceedings for an offence under s 142A(1) if the person establishes that: (a) the pollution was regulated by an environment protection licence held by the person or another person, and (b) the conditions to which that licence was subject relating to the pollution of land were not contravened: s 142C of the POEO Act.
The conduct of Mr Hanna and its consequences 23At the time of commission of the offences in April 2012, Mr Hanna ran a business called "New Line Demolition & Excavation & Tipper Hire" that transports excavation and building waste and rubbish. He used two tipper trucks, which were registered in the name of his wife. One of the trucks was a white 1985 Mercedes Benz tipper truck bearing registration number BH39RQ. 24Mr Hanna said in oral evidence at the sentence hearing that he had orally agreed with an undisclosed person to transport building waste from an undisclosed building site for a price of about $300 per load. He said originally he had thought to transport and dispose of the waste at the Wallgrove Road landfill, a landfill site that could lawfully receive that waste. But he thought that it would have cost him about $300 per load to dispose of the waste lawfully at that tip. He conceded that the only way he could have made money from the job was to dispose of the waste unlawfully and avoid the tipping fee. That is what he did. 25In the morning of 5 April 2012, Mr Hanna collected the building waste from the unknown building site and transported it to two locations on Henry Lawson Drive in the residential suburb of Picnic Point. The first location was a vacant block of private land at 890 Henry Lawson Drive. It was owned by Mr and Mrs Gerbino. They had demolished the former house and intended to subdivide the land, sell one of the lots and build their house on the lot retained by them. The vacant land had been secured on all sides by a 6 ft high metal mesh construction fence covered in blue shade cloth material. There was a locked gate in the security fence at the frontage to Henry Lawson Drive. The vacant land was surrounded by other residences. 26The second location was a small public reserve at 739 Henry Lawson Drive at the corner of Freda Street and Henry Lawson Drive. The public park is owned by Bankstown City Council. It is not fenced. Although it adjoins two public roads, there is no driveway or other form of vehicular access to the land. It adjoins a residence and is otherwise in a residential area. 27No environment protection licences had been issued permitting either the vacant private land or the public park to be able to be lawfully used as a waste facility under the POEO Act. 28Mr Hanna said he happened to dispose of waste on vacant land on Henry Lawson Drive, Picnic Point because he was asked to do so by an undisclosed person. In his affidavit of 15 February 2013, Mr Hanna said he had been approached by a person a few weeks before 5 April 2012 at "the BP service station on Newbridge Road" when he was putting diesel in his truck. The person, who said his name was George, told Mr Hanna that "he usually locates approved dumping sites". Mr Hanna did not say expressly that this person told Mr Hanna that he could dump waste on the lands on Henry Lawson Drive, but I infer that Mr Hanna was suggesting this by his reference to this person approaching him. 29In cross-examination at the sentence hearing, Mr Hanna told a different story. He said that while he was driving along Henry Lawson Drive on 5 April 2012, an undisclosed person standing on the road, near 890 Henry Lawson Drive, flagged him down and said he wanted sand or clean soil to elevate the ground at 890 Henry Lawson Drive. The person said the gate was open and for Mr Hanna to reverse and unload on the land at 890 Henry Lawson Drive. 30Mr Hanna did not identify, under either story, who the person was or whether the person was the owner of the land or had authority to give permission for Mr Hanna to dispose of waste on the land. Both stories are not credible and I do not accept them. They are inconsistent with one another. They lack detail and plausibility. There is no corroboration. 31The first story is improbable. Approved and licensed landfill sites that may lawfully receive waste, including building waste, are well publicised. Mr Hanna was certainly aware of the licensed landfill site on Wallgrove Road. It is not credible that a person "usually locates approved dumping sites" and randomly approaches tipper truck operators in petrol stations. In any event, Mr Hanna did not ascertain the person's full name or that he was the owner or occupier of the approved dumping sites or that he had the authority of the owner or occupier of the approved dumping sites. Mr Hanna did not take any steps to check that any sites advised by the person actually could lawfully be used as a waste facility or as a landfill site that could lawfully receive the waste. He was not given, and did not require to be given, an approved notice stating that the sites could lawfully be used a waste facility (under s 143(3A) and (4) of the POEO Act). Of course, on arrival at the sites on Henry Lawson Drive it would have been obvious from the features and location of the sites, and the absence of an approved notice displayed at the sites, that they were not approved dumping sites. 32The recent story is contrary to the footage of the CCTV camera. No other person was recorded any time outside of or on the vacant land at 890 Henry Lawson Drive other than Mr Hanna. If a person had been there in the morning as Mr Hanna first drove along the road, stopped at the land at the request of the person, walked on and off the land, and reversed his truck onto the land to dump waste, he would have been recorded. The recent story is not corroborated by Mr Gerbino, the owner of the vacant land at 890 Henry Lawson Drive. Mr Gerbino gave affidavit evidence that he and his wife had not been there on 5 April 2012 or given permission to or requested Mr Hanna to dump waste on their land. He said he visited the land on 8 April 2012 and observed that the gates in the fence were open and the metal clip that he had previously used to secure the gates had been removed. Piles of waste material had been dumped that were not there previously. 33The recent story is not corroborated by what Mr Hanna actually did. Mr Hanna did not deliver the sand or clean soil that he said the person wanted, but rather building waste including fragments of asbestos. 34The recent story also does not explain why Mr Hanna dumped building waste on the public park. Mr Hanna did not say the person in the street asked him to dump material on the public park or that there was any other person who gave him permission to do so. Indeed, notwithstanding Mr Hanna's pleas of guilty to the offences involving dumping and polluting waste on the public park, in cross-examination at the sentence hearing, he denied he had dumped waste there. In re-examination, he recanted and said he maintained his pleas of guilty. Mr Hanna's explanations of his conduct varied considerably, lessening their credibility. 35I find instead that Mr Hanna opportunistically selected vacant land that he saw along Henry Lawson Drive where he knew that he would not have to pay tipping fees and therefore could make money out of the job he had agreed to do. He said he knew he could not lawfully dispose of the waste at either location but did it anyway to save the cost of lawfully disposing of the waste at a tip. 36On 5 April 2012, Mr Hanna first transported building waste to and deposited it on the vacant private land at 890 Henry Lawson Drive. He made eight trips to the land and dumped eight loads of building waste on the land. 37Mr Hanna's conduct was recorded by a CCTV camera that happened to be installed on the neighbouring land at 892 Henry Lawson Drive. Mr Hanna was recorded as first arriving in his white tipper truck at 6.42am on 5 April 2012. He stopped on the public road outside the locked gate in the security fence. He was observed holding a metal implement as he walked towards the locked gate and moving a council waste bin. Mr Hanna walked out of view and the camera did not record what he did at the locked gate. Mr Gerbino said that when he visited a few days later the metal clip that he had used to secure the gate had been removed. Mr Hanna did not agree that he used the metal implement to force the gates open. He said they were open. He said he carried the metal implement to measure how solid the ground was on the property where he was to drive his truck. I do not accept Mr Hanna's explanation. I find that Mr Hanna did force entry onto the property. Mr Hanna was then recorded walking back to his truck and reversing it through the open gate onto the vacant land. He dumped the first load of building waste and left the land at 6.46am. 38Mr Hanna was recorded as returning to, entering, and dumping building waste on the land on seven further occasions at 7.57am, 8.41am, 9.22am, 10.24am, 11.17am, 12noon and 1.30pm. Mr Hanna's white tipper truck was also recorded in front of the vacant land at 12.39pm and as reversing toward the driveway on the land. However, on this occasion, the footage recorded that another vehicle drove past the land at which time Mr Hanna's truck immediately ceased reversing into the land and instead drove away. 39In total, Mr Hanna dumped eight stockpiles of building waste on the vacant land. Each stockpile was approximately 10 tonnes in size and comprised soil and pieces of terracotta piping, brick, concrete, tile, plastic and fragments of asbestos. Within five of the stockpiles, chrysotile asbestos was detected. In three of the stockpiles, amosite asbestos was detected. 40After depositing building waste on eight occasions on the private land, Mr Hanna changed locations. At about 2.30pm on 5 April 2012, Mr Hanna's white tipper truck was observed by a neighbour depositing waste on the public park at 739 Henry Lawson Drive. The stockpile of waste was approximately 10 tonnes in size and comprised soil and pieces of terracotta piping, brick, concrete, tile, plastic and fragments of fibro containing chrysotile asbestos and amosite asbestos. 41The owners of the private land arranged for removal of the piles of waste that Mr Hanna had dumped on their land and disposal at an authorised waste facility on 4 September 2012. The owners paid $15,400 for the removal and disposal of the waste and $330 for the preparation of an asbestos clearance certificate. 42The Council arranged for the removal of the pile of waste material from the public park and disposal at an authorised waste facility, at a cost of $5,301.65.
Objective seriousness sets the limits of punishment 43The sentence that is to be imposed must reflect (be proportionate to) both the objective gravity or seriousness of the offences and the personal or subjective circumstances of the offender. 44The objective seriousness of each offence fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the offence considered in light of its objective circumstances and the objectives of punishment such as retribution and general and individual deterrence: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-486, 490-491, 496; Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51 at 57-58; Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354; R v McNaughton [2006] NSWCCA 242; (2006) 163 A Crim R 381 at 387. It fixes the lower limit because the allowance for matters personal to a particular offender cannot produce a sentence which fails to reflect the objective gravity of the offence (R v Dodd (1991) 57 A Crim R 349 at 354; R v Nichols (1991) 57 A Crim R 391 at 395; R v Allpass (1993) 72 A Crim R 561 at 563; R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 at 277; R v Scott [2005] NSWCCA 152 at [15]; and R v McNaughton at [15]) and the objectives of punishment: R v McGourty [2002] NSWCCA 335 at [34]-[35] and see also Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [140] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [46]. The objective circumstances of the offence and the objectives of punishment inform the lower limit of sentencing discretion, a bottom line beneath which a sentence cannot legitimately be set: SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 at [4]-[6] and Graham v The Queen [2009] NSWCCA 212 at [43], [44]. 45The objective seriousness of an offence is to be assessed without reference to matters that are personal to a particular offender but rather is to be determined wholly by reference to the "nature of the offending": Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]. The "nature of the offending" is not confined to the ingredients of the offence, but may be taken to mean the fundamental qualities of the offence: Williams v R [2012] NSWCCA 172 at [42]. These include the physical acts of the offender and their effects or consequences as well as circumstances personal to the offender which are objectively relevant because of their causal connection with the commission of the offence, such as the mental state of the offender in committing the offence and the reasons for committing the offence: R v Tuan Anh Tran [2011] NSWSC 1480 at [13]; R v Cotterill [2012] NSWSC 89 at [30]. 46The objective circumstances of relevance to the offences committed by Mr Hanna include: the nature of the offences; the maximum statutory penalty for the offences; the objective harmfulness of the offences, including the harm caused to the environment and to victims; the state of mind of the offender in committing the offences; the offender's reasons for committing the offences; the foreseeable risk of harm by commission of the offences; the practical measures that could have been taken to prevent the risk of harm; and the offender's control over the causes of harm.
Nature of the offences 47The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision, contravention of which constitutes the offence, and its place in the statutory scheme. A proper understanding of the purpose of creating an offence is assisted by consideration of the objects of the statute. A fundamental consideration is the degree to which, having regard to the maximum penalty prescribed by the statute for the offence, the offender's conduct would offend against the legislative objective expressed in the offence: Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15] and cases therein cited. 48The objects of the POEO Act include: (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following: (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes ... : s 3(a) and (d) of the POEO Act. 49"Ecologically sustainable development" is defined to have the same meaning as in s 6(2) of the Protection of the Environment Administration Act 1991 (s 4 and Dictionary to the POEO Act). This meaning is that "ecologically sustainable development requires the effective integration of economic and environmental considerations in the decision-making processes" and can be achieved through the implementation of four principles and programs: the precautionary principle, inter-generational equity, conservation of biological diversity and ecological integrity, and improved valuation and incentive mechanisms, including the polluter pays principle (that is, "those who generate pollution and waste should bear the costs of containment, avoidance or abatement"): s 6(2) of the Protection of the Environment Administration Act. 50One of the principal means by which the statutory objects of protection of the environment and pollution prevention are to be achieved is by the POEO Act prohibiting specified activities that may pollute the environment but enabling a person to be relieved of the prohibition by applying for and obtaining statutory approval in the form of a licence from the relevant regulatory authority to carry out such activities. The POEO Act lists in Schedule 1 activities for which a licence is required: s 43 of the POEO Act. These include both premises-based activities (where a licence is required for premises at which the activity is carried on) and non premises-based activities (where a licence is required to carry on the activity, but not for the premises at which the activity is carried on): ss 48 and 49 and Sch 1 of the POEO Act. Scheduled premises-based activities include resource recovery (the receiving of general waste or the receiving of hazardous and other waste from off site and its processing); waste disposal (application to land) (involving the application to land of waste received from off site); waste disposal (thermal treatment); and waste disposal (non-thermal treatment) (including the receiving of general waste or hazardous and other waste from off site and its processing otherwise than by thermal treatment): see cll 34, 39, 40 and 41 of Sch 1 of the POEO Act. Scheduled activities that are not premises-based include the transport of trackable waste: cl 48 of Sch 1 of the POEO Act. 51Application for and approval of a licence involves assessment of the environmental impacts of the proposed activity (including the pollution likely to be caused by the carrying out of the activity and the likely impact of that pollution on the environment) and assessment of the applicant (including whether the person is a fit and proper person to hold the licence): ss 45, 53, 55 and 83 of the POEO Act. 52The POEO Act makes it an offence for a person, who is the occupier of any premises, to carry on scheduled, premises-based activities on premises without being the holder of a licence that authorises that activity to be carried on at those premises: s 48(2) of the POEO Act. The POEO Act also makes it an offence to carry on a scheduled, non premises-based activity without being the holder of a licence that authorises that activity to be carried on: s 49(2) of the POEO Act. 53In addition, the POEO Act also specifically proscribes certain conduct concerning the transporting and depositing of waste without lawful authority. This includes the use of a place as a waste facility (being premises used for the storage, treatment, processing, sorting or disposal of waste: see Dictionary to the POEO Act) (s 144(1) of the POEO Act); the transporting of waste to and the depositing of waste at a place that cannot lawfully be used as a waste facility for that waste (s 143(1) of the POEO Act); and polluting land, such as by depositing waste on land (s 142A(1) of the POEO Act). The prohibition of this conduct prevents land pollution and its impacts on the environment, including harm to human health. A person can only carry out the conduct if a licence has been issued authorising the person to do so. Application for and approval of a licence ensures the proper assessment of the conduct, the land on which the conduct is proposed to be carried out, and the environmental impacts of the conduct, as well as an assessment of whether the person is a fit and proper person to carry out the conduct (including whether the person has contravened the POEO Act, such as having been convicted of waste offences against ss 142A(1), 143(1) or 144(1) of the POEO Act). 54The statutory provisions requiring application for approval, assessment and approval of activities are linchpins of the statutory scheme. An offence against these provisions thwarts the achievement of the objects of the POEO Act, including ecologically sustainable development, and undermines the integrity of the regulatory scheme under the POEO Act. 55These general statutory provisions are supplemented by particular provisions dealing with waste that is asbestos waste. Clause 42 of the Waste Regulation prescribes special requirements relating to the transportation and off site disposal of asbestos waste. Together with the general statutory provisions, these particular regulatory provisions are intended to ensure that waste containing asbestos is transported and disposed of in a safe and healthy manner and at a landfill site that may lawfully receive the waste, so as to prevent harm to the environment, and particularly to human health. 56The actions of Mr Hanna in transporting waste containing asbestos to and depositing it on the private land and the public park in Picnic Point, which are places that could not lawfully be used as a waste facility for that waste, and polluting these lands by disposing of that waste on these lands, offended against the legislative objectives of ss 142A and 143 of the POEO Act and thwarted the achievement of the objects of the POEO Act, including ecologically sustainable development. They undermined the integrity of the regulatory scheme requiring application for approval, assessment and approval of activities concerning the transporting and depositing of waste and the pollution of land. The regulatory scheme turns on the licensing of certain premises as being appropriate waste facilities and landfill sites authorised to receive particular types of waste (including asbestos waste) and the transporting of waste to and the depositing of waste at only those licensed premises (and thereby regulating harm to the environment and to human health). Mr Hanna's actions in transporting and depositing waste at unlicensed premises avoided this regulatory scheme and its beneficial protection of the environment and human health. 57The significant degree to which the conduct of Mr Hanna offended against the objects of the POEO Act and the statutory provisions creating the offences and undermined the regulatory scheme increases the objective seriousness of the offences.
Maximum penalty for the offences 58The maximum penalty for the offences is relevant in determining the objective gravity of the offences. The maximum penalty reflects the public expression by the New South Wales Parliament of the seriousness of the offence: see Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. It also provides a sentencing yardstick for the case before the Court: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [31]. A yardstick is an instrument of measurement. The maximum penalty for an offence is used to measure the relevant features of a particular instance of an offence against a worst case: R v Campbell [2014] NSWCCA 102 at [28]. 59The maximum penalty for the offence of unlawfully transporting or depositing of waste under s 143 of the POEO Act is, in the case of an individual, $250,000. The maximum penalty for pollution of land under s 142A is, in the case of an individual, $250,000, and in the case of a continuing offence for an individual, a further penalty of $60,000 for each day the offence continues. In this case, the prosecutor does not allege that the offences were continuing offences. 60In 2013, the POEO Act was amended to create a new offence for repeat waste offenders and to prescribe a new penalty. Under s 144AB of the POEO Act, a person commits an offence if the person is an individual who: (a) has been convicted of a waste offence; and (b) commits a waste offence on a separate subsequent occasion within 5 years after that conviction. 61A "waste offence" is an offence against any of s 120(1) (where waters are polluted by waste), s 142A(1), s 143(1) and s 144(1) of the POEO Act. The maximum penalty prescribed for an offence against s 144AB is the maximum monetary provided by the POEO Act for the commission of the waste offence by an individual by those enumerated sections or imprisonment for 2 years, or both (s 144AB(2) of the POEO Act). 62This new offence against s 144AB and new maximum penalty came into effect on 1 October 2013. However, it does not apply retrospectively. It only applies prospectively. Accordingly, as Mr Hanna transported and deposited waste contrary to s 143 of the POEO Act and polluted land contrary to s 142A of the POEO Act, on 5 April 2012, which was before the commencement of the offence under s 144AB of the POEO Act, s 144AB and the penalties prescribed therein do not apply. 63I also note for completeness that the Protection of the Environment Operations (General) Amendment (Fees and Penalty Notices) Regulation 2014, effective from 29 August 2014, increased up to tenfold the penalties prescribed to be payable under a penalty notice in respect of penalty notice offences under the POEO Act, including offences under s 142A and s 143 of the POEO Act, to, for an individual, $4000 if the penalty notice is served by an enforcement officer from a local council, or $7,500 in any other case, including service of the penalty notice by an enforcement officer from the Environment Protection Authority: ss 222 and 227 of POEO Act and cll 80(1), 81(6) and 82(a) and Sch 6 of the Protection of the Environment Operations (General) Regulation 2009. A penalty notice is a notice to the effect that, if a person served with the notice does not wish to have a specified penalty notice offence dealt with by a court, the person may pay the penalty prescribed for the offence: s 223 of the POEO Act. However, there was no change to the maximum penalties prescribed by the POEO Act for these offences. 64The result is that for the offences against s 142A and s 143 of the POEO Act with which Mr Hanna is charged, and at the time he committed the offences, the only type of penalty prescribed was a monetary penalty and the maximum monetary penalty for each offence for an individual was $250,000.
Harm caused by commission of the offences 65The objective seriousness of the offence is affected by the objective harmfulness of the offender's actions. The extent of the harm caused or likely to be caused to the environment by the commission of the offence is required to be taken into consideration: s 241(1)(a) of the POEO Act. The causing of "substantial" injury, loss or damage by commission of the offence is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 ('the Sentencing Act'). 66Mr Hanna's dumping of building waste caused land pollution of both the private land and the public park. Both the private land and the public park are in a residential area, surrounded by residences. Mr Hanna dumped eight loads of building waste on the private land. Each load was approximately 10 tonnes, resulting in 80 tonnes of waste being dumped on the suburban allotment. He dumped one load of approximately 10 tonnes on the public park. The building waste was not clean fill. It comprised not only soil but also pieces of terracotta piping, brick, concrete, tile and plastic, as well as fragments of chrysotile and amosite asbestos. By its nature, the waste caused degradation of the lands on which it was placed. Furthermore, as Mr Hanna acknowledged in his affidavit of 21 May 2014, the asbestos had the potential to be blown by the wind into the air causing potential harm to the health of nearby residents who might breathe it in. The degradation of the lands, therefore, resulted in potential harm to the health of human beings. 67The degradation of the lands also resulted in property damage and financial loss to the owners of the lands affected by the waste. An indication of the property damage or financial loss suffered is provided by the expenses incurred to have the waste removed from the private land and the public park and disposed of at an authorised waste facility. The owners of the private land paid $15,400 for the removal of the waste and $330 for an asbestos clearance certificate, and the Council paid $5,301.65 for the removal of the waste from the public park. 68Mr Hanna has not compensated the owners of the private land or the Council for the harm caused to their lands or compensated them for the expenses they incurred in cleaning up the lands. They have accordingly suffered financial loss. 69Mr Hanna's actions have, therefore, not only caused actual or potential harm to the environment and to the health of human beings in the area by polluting the lands but also caused financial loss to the owners of the lands. I find, beyond reasonable doubt, that the harm to the environment and human health and the financial loss to the owners of the lands caused by commission of the offences are "substantial" and an aggravating factor under s 21A(2)(g) of the Sentencing Act.
State of mind of Mr Hanna in committing the offences 70The offences against s 142A and s 143 of the POEO Act are strict liability offences. Nevertheless, the state of mind of an offender at the time of the offence can have an effect of increasing the seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed. Offences committed deliberately are more serious than offences committed by inadvertence and error: Plath v Rawson at [98] and cases therein cited. 71A large measure of premeditation will make the offence more serious than where it is committed on the spur of the moment: Director-General, Department of Environment and Climate Change v Rae at [43] and cases therein cited. 72I find, beyond reasonable doubt, that Mr Hanna deliberately transported waste to and disposed of waste at places that could not lawfully be used as a waste facility and deliberately did the acts that polluted the land at those places, with knowledge that his conduct was unlawful. Mr Hanna has been issued multiple penalty notices and convicted and punished multiple times for offences involving the unlawful transporting and depositing of waste in breach of the POEO Act. He can have been under no doubt at all that it was unlawful to transport waste to and deposit waste at a place that cannot lawfully be used as a waste facility. 73For example, in 2010, Mr Hanna was convicted by this Court for four offences under s 143 of the POEO Act for unlawfully transporting and depositing waste on vacant private land, public roads and a public park. The Court found that Mr Hanna's conduct in disposing of waste on each of the four occasions was premeditated and intentionally done with knowledge of its illegality: Environment Protection Authority v Hanna [2010] NSWLEC 98 at [48]. 74Also in 2010, this Court made an injunctive order, in civil proceedings brought by the Environment Protection Agency ('EPA') against Mr Hanna, restraining him from using his tipper trucks, with specified registration plates, "to transport building or excavation waste, comprising any of the following: clay, soil, brick, concrete, glass, tiles, timber or asbestos, to any place for which no development consent under the Environmental Planning and Assessment Act or environment protection licence under the Protection of the Environment Operations Act is held when such consent or licence is required for the receipt of that waste." 75The injunctive order was amended with the consent of both the EPA and Mr Hanna on 21 March 2011 to remove the reference to using tipper trucks with specified registration plates, with the consequence that Mr Hanna was simply restrained from transporting building or excavation waste of the kind and in the circumstances specified in the order. Mr Hanna and his then legal representative were present in court on 21 March 2011 when the Court made the amended injunctive order restraining Mr Hanna: see the recital of the orders in Environment Protection Authority v Hanna [2013] NSWLEC 41; (2013) 195 LGERA 383 at [8]-[11]. 76Mr Hanna conceded in cross-examination at the sentence hearing for the latest offences that he knew that he could only dispose of waste at a place lawfully able to receive waste, that the private land and the public park on Henry Lawson Drive were not places that could lawfully be used a waste facility, and that disposing of waste at those places was wrong. 77Mr Hanna may have been less familiar with the elements of the offence of polluting land under s 142A of the POEO Act. He had not previously been convicted or issued with a penalty notice for that offence. However, Mr Hanna was well aware that he could not deposit waste on any land that was not lawfully able to receive waste. As he said in his affidavit of 15 February 2013, he knew: "I am not to dump where I am not supposed to dump". The act of depositing waste on land constitutes the act of polluting the land. Mr Hanna knew that his act of dumping waste on the private land and public park, which constituted pollution of land, was unlawful because he knew that they were not places that could lawfully be used as a waste facility for that waste. In short, he knew they were not places where he was supposed to dump waste. He therefore committed the act constituting the offence of polluting land with knowledge of its illegality. 78I find, beyond reasonable doubt, that Mr Hanna's conduct was premeditated. From the time he agreed with the undisclosed person to transport building waste from the undisclosed building site for a fee that he believed was no more than the cost of the tipping fee charged by a licensed waste facility, Mr Hanna had intended to dispose of the waste at a place that could not lawfully be used as a waste facility so as to avoid paying the tipping fee. Only by so doing could he make any money from the job. He happened to select on this occasion the vacant private land and the public park on Henry Lawson Drive. 79Mr Hanna's premeditated and intentional commission of the offences with knowledge of their illegality increases the objective seriousness of the offences.
Mr Hanna's reasons for committing the offences 80The criminality involved in the commission of offences is to be measured not only by the seriousness of what occurred but also by reference to the reasons for its occurrence. The carrying out of an offence to make a profit, or to save incurring an expense, or to avoid the cost of obtaining and implementing a statutory permission such as a licence under the POEO Act, increases the seriousness of the offence: Director-General, Department of Environment and Climate Change v Rae at [47], [48]. The committing of an offence for financial gain is an aggravating factor: s 21A(2)(o) of the Sentencing Act. 81I find, beyond reasonable doubt, that Mr Hanna committed the offences to save incurring the expense of paying the tipping fees charged by licensed waste facilities and thereby to increase the money he earned from the job that he had agreed to do. Mr Hanna profited from his crimes. 82Mr Hanna accepted in cross-examination that, throughout the whole period he has been in the business of transporting and disposing of excavation and building waste, he has continued to dispose of waste at places that could not lawfully receive waste because it was more profitable for him to dispose of waste unlawfully than to do so lawfully and pay the tipping fees. This again was his reason for committing the latest offences. Such a reason for committing the offences increases the objective seriousness of the offences.
Foreseeable risk of harm to the environment 83The extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence is a relevant objective circumstance of the offence: s 241(1)(c) of the POEO Act. Reasonable foreseeability of the harm caused or likely to be caused is a factor that increases the objective seriousness of the offence: Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority at 700 and Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532 at [132]. The question that must be asked is: "to what extent (if any) a reasonable person in the position of the offender could have foreseen the harm caused or likely to be caused by the commission of the offence? The position of the offender involves a consideration of all the available evidence including what the offender actually knew or ought reasonably to have known that was relevant to the issue of the foreseeability of the harm caused or likely to be caused": Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage at [130], [131]. 84Mr Hanna was aware of the volumes of the building waste he transported and disposed of on the private land (eight loads of 10 tonnes each) and the public park (one load of 10 tonnes). He knew that it was building waste - he had collected it from a building site and as he dumped each load he could see the materials it comprised. He certainly knew it was not clean soil. He could see the residential location and features of the private land and the public park on which he disposed of the waste. The lands were surrounded by houses. He knew that those lands were not places that could lawfully be used as waste facilities for that waste. He had not been given by the owner or occupier of either land, and there was not displayed on either land, an approved notice stating that the land could lawfully be used as a waste facility for the waste. In these circumstances, a reasonable person in Mr Hanna's position could have foreseen the harm caused or likely to be caused to the environment by the commission of the offences. 85I find, beyond reasonable doubt, that Mr Hanna could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offences.
Practical measures to prevent the risk of harm 86The practical measures that may be taken to prevent, control, abate or mitigate the harm caused or likely to be caused to the environment by the commission of the offence is another relevant objective circumstance: s 241(1)(a) of the POEO Act. The existence of, but the offender's failure to take, practical measures to prevent, control, abate or mitigate the harm caused or likely to be caused is a factor that increases the objective seriousness of the offence. 87Here, the practical measure that Mr Hanna could and should have taken was to transport the building waste to and dispose of it at a place that could lawfully be used as a waste facility for that waste, instead of transporting and depositing the waste on the private land and the public park, which were places that could not lawfully be used as a waste facility for that waste, and polluting those lands. That was the law as Mr Hanna well knew. Had he done so, the harm that was caused by the commission of the offences would have been prevented.
Mr Hanna's control over the causes of the offences 88The extent to which the person who committed the offence had control over the causes that gave rise to the offence affects the objective seriousness of the offence: the greater the control, the greater the objective seriousness involved in not exercising that control to prevent the commission of the offence: s 241(1)(d) of the POEO Act. 89Mr Hanna personally carried out the acts of transporting and depositing the waste that constituted the offences and therefore had complete control over the causes that gave rise to the offences. 90Mr Hanna was not acting under or complying with orders from an employer or supervising employee: see s 241(1)(e) of the POEO Act. Mr Hanna owned and ran the business of transporting and depositing waste. He was the principal of the business.
Conclusion on objective seriousness of the offence 91Having regard to the nature of the offences committed by Mr Hanna; the maximum penalties prescribed for the offences; the substantial harm to the environment and financial loss to the victims of his crimes; his premeditated and intentional commission of the offences with knowledge of their illegality; his commission of the offences to save tipping expenses and to profit from unlawfully transporting and depositing the waste; the reasonable foreseeability of the harm caused or likely to be caused to the environment by the commission of the offences; the existence of practical measures to prevent that harm; and his control over the causes that gave rise to the offences, the offences should be considered to be of medium objective gravity.
Subjective circumstances of Mr Hanna 92Within the limits set by the objective seriousness of the offences, the Court may take into account factors personal to Mr Hanna. These include: Mr Hanna's significant record of prior convictions; his early pleas of guilty; the limited extent of his remorse; the likelihood of Mr Hanna re-offending; and the limited assistance Mr Hanna provided to law enforcement authorities.
Mr Hanna's significant record of previous convictions 93Mr Hanna has a long record of previous convictions and penalty notices. His convictions include:
Mr Hanna's early pleas of guilty 99Mr Hanna has pleaded guilty to the offences, a fact that the Court is required to take into account: s 21A(3)(k) and s 22(1)(a) of the Sentencing Act. A plea of guilty has utilitarian value to the criminal justice system. A court takes account of the utilitarian value of the plea of guilty by imposing a lesser penalty than it would otherwise have imposed: s 22(1). However, a lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence: s 22(1A). 100In determining the extent of any discount that should be given for a plea of guilty, the court is required to consider when the offender pleaded guilty or indicated an intention to plead guilty: see s 22(1)(b). As a general rule, the earlier the plea, the greater the discount while the later the plea, the lesser the discount: R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510 at [8]-[13]; R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32]; R v AB [2011] NSWCCA 229 at [2], [3]; Morton v R [2014] NSWCCA 8 at [32]-[35]. 101In these matters, Mr Hanna was ordered to appear before the Court on 20 December 2013 to answer the charges that he committed the offences against s 142A and s 143 of the POEO Act. On that occasion, Mr Hanna, by his counsel, indicated that he would enter a plea on the next occasion. The matters were adjourned to 7 February 2014. On 6 February 2014, Mr Hanna's solicitor requested the Court, and the prosecutor consented, to adjourn the matters to 14 February 2014 instead of 7 February 2014 due to the unavailability of Mr Hanna's counsel on 7 February 2014. The Court so ordered. On 14 February 2014, Mr Hanna, by his solicitor, entered pleas of guilty to the offences. 102In these circumstances, Mr Hanna submitted that he should be afforded the maximum discount for the utilitarian value of the pleas of guilty. Although he did not enter his pleas of guilty to the offences until some two months after he was first brought before the Court to answer the charges, he did indicate on that first occasion his intention to plead guilty. The prosecutor knew from that time that it did not need to prepare for a contested trial. Mr Hanna then entered pleas of guilty on the next occasion he was before the Court. 103I consider Mr Hanna should be afforded the maximum discount for the utilitarian value of his pleas of guilty to the criminal justice system of 25%: see R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152], [160].
The limited extent of Mr Hanna's remorse 104Apart from the utilitarian value of a plea of guilty, genuine contrition and remorse of an offender is a further mitigating factor. However, s 21A(3)(i) of the Sentencing Act states that remorse by the offender for the offence will only be a mitigating factor, 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), 105The existence of genuine contrition and remorse is also relevant to the weight to be given to individual deterrence and the prospects of rehabilitation of the offender: R v Thomson at [116]. Contrition by an offender can be associated with insight by the offender into the reasons for, or factors contributing to, the offending conduct. If an offender has insight into the offending conduct, there is a reduced risk of re-offending and a reduced need for a sentence to be imposed for the purpose of individual deterrence: R v Wisbey [2001] NSWCCA 434 at [31] and Plath v Rawson at [158]. 106Mr Hanna said, on a number of occasions, that he was sorry and remorseful for what he did. In his affidavit of 15 February 2013, Mr Hanna said "I regret my offending." In his affidavit of 21 May 2014, he adhered to what he had said in his earlier affidavit but added that "with the passage of time and the realisation of what has occurred as to my offending, I sincerely regret it." He also said: I want this Honourable Court to understand that not only am I sorry and sincerely remorseful for what has occurred, but I am at pains to indicate to the Court how upset I am that it could have compromised the safety of my fellow citizens, both within the area of the land where the material was dumped and generally because asbestos can, with wind, be sent into the air and have disastrous consequences for anyone who breaths it in. I ask the Court to take into account such circumstances as my barrister may plead on my behalf and accept my sincere apology, my remorse and my contrition for what has occurred and that the Court would now appreciate that I have a very real insight into my offending and what I have done. 107In his examination-in-chief at the sentence hearing, Mr Hanna said: I am also very sorry for any harm I did for anyone either intentionally or unintentionally. 108In cross-examination it was put to Mr Hanna that he had not offered an apology to the owners of the private land or the Council on whose lands he dumped waste, and had not offered to compensate them for the costs they incurred in removing the waste from their land. Mr Hanna responded: I'm happy to assist the owner of the land with any means possible that I can in order to alleviate the damage. When I said guilty it was an apology as well and now I am saying that I am happy and I am prepared to assist them with anything I did and to pay for my mistake. I am prepared to take the responsibility to pay them back. I apologise for anything I did and now that my lawyer made me understand how important and how serious what I did, I am not going to take any risk that can put me and put my family, you know, in such a situation in future. 109In re-examination, after Mr Hanna maintained his pleas of guilty to the offences regarding dumping waste on the public park, he said: Yes and I apologise. Not only I apologise but also I am happy to take responsibility of any money incurred at the moment although this is going to be heavy on me. 110Mr Hanna's wife, Rebecca, also gave evidence by affidavit. She said that: He has expressed to me his remorse and regret and the shame that he has felt as a result of being prosecuted and more importantly, for the implications that could have potentially occurred of the offending. and that: He has been truly remorseful and expressed that to me on many occasions for what has occurred. 111However, Mr Hanna's words of regret and remorse have not been backed up by his actions. Mr Hanna knew that the private land and the public park were not places where he could lawfully dump the waste and that it would be wrong for him to do so. He said he later felt upset that his dumping of the waste at those places could have compromised the safety of his fellow citizens. Yet, such concerns did not dissuade him from dumping the waste at those places. 112Mr Hanna was interviewed by the EPA on 27 June 2012 about his actions of dumping the waste on the lands. He admitted to dumping waste on the private land at 890 Henry Lawson Drive but not on the public park at 739 Henry Lawson Drive. Mr Hanna did not apologise to the owners of the private land or offer to clean up or to pay for others to clean up the waste that he had admitted to having dumped on their land. 113On 4 September 2012, the owners of the private land were forced to have the waste removed at a cost to them of $15,400 plus $330 for an asbestos clearance certificate. 114In late 2012, Mr Hanna was charged with contempt of court for breaching the restraining order made by this Court on 21 March 2011 by dumping waste on 5 April 2012 on the private land at 890 Henry Lawson Drive. The contempt proceedings were heard on 19 February 2013 and judgment was delivered on 4 April 2013. Mr Hanna pleaded guilty to the charge of contempt. The statement of facts and the evidence adduced established the unclean nature of the waste, including that it was contaminated by asbestos fragments, and that the owners of the private land had paid to have the waste removed. Mr Hanna still took no action. He did not apologise to the owners of the private land or offer to compensate them for the expenses they had occurred to clean up the waste that he had dumped: see Environment Protection Authority v Hanna [2013] NSWLEC 41; (2013) 195 LGERA 383 at [43]. 115The current proceedings were commenced in November 2013. Mr Hanna has pleaded guilty to the charges. The statement of facts and evidence adduced again established the unclean nature of the waste, including that it was contaminated by asbestos fragments, and that the owners of the private land and the Council had both incurred expenses in cleaning up the waste Mr Hanna had dumped on their lands. 116Yet still Mr Hanna took no action to apologise to the owners of the private land or the Council or to offer to compensate them for the expenses they incurred in cleaning up the waste Mr Hanna had dumped on their lands. In his affidavits prepared before the sentence hearing, Mr Hanna was silent about offering to make reparation for the loss that they had suffered. The first time he indicated a preparedness to "pay them back" was in cross-examination at the sentence hearing. In re-examination, he qualified his offer to compensate the owners and the Council by saying that paying them back "at the moment is going to be heavy on me." I find that the likelihood of Mr Hanna actually compensating the owners or the Council for their financial loss is slight. 117Mr Hanna's remorse in relation to the offences concerning dumping waste on the public park at 739 Henry Lawson Drive is muted by his prevarication in accepting responsibility for the waste dumped in the public park. In the interview with the EPA on 27 June 2012, Mr Hanna denied he was responsible for the waste dumped in the public park. After he was prosecuted for offences involving dumping of waste in the public park, Mr Hanna, by his solicitor, pleaded guilty to those offences. However, in cross-examination at the sentence hearing, he again said, in relation to the waste dumped in the public park, that "I deposited on that site only [890 Henry Lawson Drive] and I did not go to the other site [739 Henry Lawson Drive] and I don't know what you are talking about" and later "Again, I said I did not do it". In re-examination, however, Mr Hanna agreed with the leading questions of his counsel that he had entered a plea of guilty for dumping waste at 739 Henry Lawson Drive and that he maintained his plea of guilty. However, other than entering and maintaining his pleas of guilty, Mr Hanna did not say or show that he had accepted responsibility for his actions in dumping waste in the public park at 739 Henry Lawson Drive. 118I find that Mr Hanna has not shown genuine remorse, of the kind required by s 21A(3)(i) of the Sentencing Act, for his commission of the offences or the consequences caused by commission of the offences. His unremorseful actions speak louder than his remorseful words.
The likelihood of Mr Hanna re-offending 119A mitigating factor to be taken into account in determining the appropriate sentence is if the offender is unlikely to re-offend: s 21A(3)(g) of the Sentencing Act. In Mr Hanna's case, I cannot so conclude. 120Mr Hanna has persistently and habitually offended throughout the whole time he has been in the business of transporting waste, undeterred by the multiple penalty notices and the criminal prosecutions, convictions and penalties imposed for, and the court injunctions restraining him from, transporting and disposing of waste unlawfully. 121Mr Hanna has failed to pay most of the penalty notices, fines and orders for costs and compensation imposed upon him. A schedule of enforcement orders made against Mr Hanna, tendered in evidence, revealed that he has been fined and ordered to pay amounts totalling $211,110. With the exception of eight penalty notices issued between 2007 and 2009, totalling $7,750, which Mr Hanna has paid, all other fines and amounts are unpaid and overdue. These include the aggregate of the fines and cost orders of $125,000 imposed by this Court in 2010 for his four offences against s 143(1) of the POEO Act of transporting and depositing waste unlawfully. Clearly, Mr Hanna has not been deterred from continuing to transport and deposit waste unlawfully by the sizeable and ever increasing aggregate of fines and orders made against him. 122Mr Hanna has not gained any meaningful insight into his wrongdoing from the punishment imposed for his prior offending. In the case of the court convictions and sentences, he has had the benefit of reasons given by the Court explaining the wrongfulness of his conduct, the harmful consequences, and the need to not re-offend. Yet, Mr Hanna has continued to re-offend. 123Indeed, Mr Hanna seems not to have realised that the many offences he has committed in the past, including for transporting and depositing waste unlawfully, and for which he has been punished by way of penalty notices and convictions and other orders made by the courts, are crimes. In his affidavit of 21 May 2014, he asked the Court "to take into account the fact that I have, in my time in Australia, had no criminal convictions whatsoever. Apart from the matter presently before the Court, I have not been brought to the attention of the authorities except in one instance where a Ranger brought proceedings against me for assault, which I was successful in defending and I was found not guilty". Clearly, Mr Hanna is impervious to the criminal punishment that has been imposed on him in the past. This does not augur well for the future - Mr Hanna may likewise be impervious to the sentences that are imposed for the current offences. 124The experience of the past, therefore, does not support drawing the inference that Mr Hanna is unlikely to re-offend in the future. 125Mr Hanna's equivocal remorse for the current offences also does not support a conclusion that he is unlikely to re-offend in the future. Although Mr Hanna has expressed words of regret and remorse, his actions show no remorse. He made no attempt to remediate the lands he had harmed by dumping waste. He made no attempt to apologise or make reparation to the victims of his offences for the injury, loss or damage caused by the offences he has committed. It is telling that Mr Hanna also pleaded guilty and expressed words of regret and remorse for the offences he committed in the past and for which he was convicted and sentenced. Yet such expressed regret and remorse did not extend beyond the sentence hearings for those offences. He has not paid the fines and other penalties imposed for those offences and he has not been dissuaded from re-offending. 126Mr Hanna has not explained to the Court the causes of his offending conduct in the past or of the current offences. He concedes that his motivation to offend is financial: to avoid paying the expenses, including tipping fees, of transporting and disposing of waste lawfully at approved and licensed waste facilities and landfills. He has long known that to do so is illegal, yet he continues to do so. Why he does so, however, is unexplained. Mr Hanna has also not explained to the Court what he intends to do to protect the environment and the public from further offending. It is important that, in offences of the seriousness of the kind represented in this case, an offender, particularly one with the serious record of prior criminality which Mr Hanna has, explain to the court the cause of the offending behaviour and the current offence and the proposals for protecting the public from further offending. The court needs to know how the offender is addressing the purposes which Parliament has laid down for sentencing and preventing further criminal behaviour by the offender: R v Southern Water Services Ltd [2014] EWCA Crim 120 at [19] and R v Sellafield Limited and R v Network Rail Infrastructure Limited [2014] EWCA Crim 49 at [65], [70]. Mr Hanna's failure to provide such information reveals a lack of insight into his offending behaviour, a lack of genuine remorse and contrition, and a lack of a definite proposal to reform and rehabilitate himself as an offender and to protect the public. 127There is, however, one circumstance which might make Mr Hanna less likely to re-offend. This is that he suffered a stroke in 2013 that he says has physically incapacitated him from driving his truck in the business since then. Mr Hanna underwent surgery on 16 April 2013 involving a craniectomy and evacuation of a haematoma. He underwent a further surgical procedure of cranioplasty on 11 July 2013. 128The surgeon, Dr Darweesh Al Khawaja, was not called to give evidence. However, he produced various reports in response to a subpoena. Dr Al Khawaja's latest letter to Mr Hanna's general practitioner, Dr George Sayegh, was dated 28 February 2014. It noted that the fluid collection in Mr Hanna's head had decreased in size but was still there. He said he had assessed Mr Hanna and thought the fluid collection would resolve slowly. Otherwise, Dr Al Khawaja did not record anything amiss. His earlier letters to the general practitioner on Mr Hanna's recovery recorded Mr Hanna as doing very well, walking around fine and not having any headaches. 129Mr Hanna's general practitioner, Dr Sayegh, also was not called to give evidence. However, Mr Hanna attached to his affidavit of 21 May 2014 a letter Dr Sayegh wrote on 15 May 2014 to Mr Hanna's solicitor. In the letter, Dr Sayegh recounted the surgical procedures performed by Dr Al Khawaja. Mr Sayegh also said that Mr Hanna had been referred for a "formal visual field assessment", although by whom and on what date was not stated. There was no report from whomever did the assessment. Nevertheless, Dr Sayegh said that the assessment had revealed that Mr Hanna had a left homonymous hemianopia and decreased visual acuity of the right eye. Dr Sayegh said, "due to the visual field deficit assessment he [Mr Hanna] is no longer able to drive or work as a truck driver" and that he "will never return back to driving as per NSW Transport Roads and Maritime Service Guideline". 130If this prognosis were to be correct, Mr Hanna may not be able to personally re-offend because he would be incapacitated from driving one of his business' trucks to transport and deposit waste. 131However, there is doubt in this conclusion. First, Dr Al Khawaja, the surgeon who operated on Mr Hanna, made no reference in any of his reports to Mr Hanna suffering a visual field deficit. Dr Al Khawaja reviewed on a regular basis CT scans of Mr Hanna's brain and Mr Hanna's condition and progress. Nowhere does Dr Al Khawaja record Mr Hanna as having been assessed by him or anyone else as having a visual field deficit or Mr Hanna saying that he had been assessed as having a visual deficit or that he will never return back to driving. 132Secondly, there is no direct evidence of the visual field deficit assessment. The person who undertook the assessment was not called and the report of the assessment was not tendered. The only evidence is the hearsay account of the general practitioner (who also was not called to give evidence). 133Thirdly, Mr Hanna has not acted consistently with the general practitioner's prognosis that he will never return back to driving. Mr Hanna has not reported that he has an incapacitating visual field deficit that would prevent him from driving to the NSW Transport Roads and Maritime Service and he has not surrendered his driver's licence. Mr Hanna said he had not done so because he was waiting to see whether his vision would improve to the point where he could drive again. He said if he could drive again, he would. 134Fourthly, Mr Hanna's business of transporting excavation and building materials is still operating. Although Mr Hanna said that if he could drive again, he did not see himself running the business again, nevertheless, Mr Hanna has retained the primary assets of the business, namely the two tipper trucks. One of the trucks, the white tipper truck he used to transport and deposit the waste on 5 April 2012, has had its registration lapse but the other truck is being used by his brothers and they are looking after the business. Mr Hanna said they were not transporting and disposing of all waste, only concrete and bricks. 135In these circumstances, I am not able to find, on the balance of probabilities, that Mr Hanna and his business are unlikely to re-offend. There is a need for the sentences for the current offences to include an element of individual deterrence.
Mr Hanna's limited assistance to law enforcement authorities 136The provision by an offender of assistance to law enforcement authorities is a mitigating factor: s 21A(3)(m) of the Sentencing Act. The court may impose a lesser penalty than it would otherwise impose on the 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: s 23(1) of the Sentencing Act. In deciding whether to impose a lesser penalty for an offence, the court must consider, amongst other matters, the significance and usefulness of the offender's assistance to the law enforcement authorities; the truthfulness, completeness, and reliability of any information or evidence provided by the offender; the nature and extent of the offender's assistance or promised assistance; the timeliness of the assistance or undertaking to assist; and whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence: s 23(2)(b), (c), (d), (e) and (i) of the Sentencing Act. If a lesser penalty is to be imposed, it must not be unreasonably disproportionate to the nature and circumstances of the offence: s 23(3) of the Sentencing Act. 137In this case, Mr Hanna has provided minimal assistance to law enforcement authorities. He participated in an interview with officers of the EPA on 27 June 2012. Although he admitted dumping waste on the private land at 890 Henry Lawson Drive, he denied doing so on the public park at 739 Henry Lawson Drive. He has otherwise provided little assistance in the investigation of the offences. He has not disclosed the name or contact details of the person at the building site with whom he agreed to remove the building waste. This was the owner of the waste who would also have been liable for an offence under s 143(1) of the POEO Act. Mr Hanna has provided no assistance that would allow the law enforcement authorities to prosecute that person. Mr Hanna also has not disclosed the name or contact details of the person or persons who Mr Hanna said told him that he could dispose of the waste at sites, including at 890 Henry Lawson Drive. Mr Hanna has not provided other information that would assist in the investigation of the offences or any other offences. 138Mr Hanna did agree with the prosecutor on a statement of facts for the sentence hearing for these offences. However, the facts stated are no more than those already proven by the affidavits and documents served by the prosecutor in these proceedings. Those affidavits were read and the documents were tendered at the sentence hearing in any event. The agreed statement of facts, therefore, added little to what was proven by the evidence of the affidavits and documents. 139Mr Hanna submitted that his lack of co-operation with the prosecutor in the interview with the EPA was understandable given his inability to understand the English language and the fact that no interpreter was present when the interview was conducted. That may be accepted. However, Mr Hanna has been legally represented both in the earlier proceedings for contempt, which concerned the same events of transporting and dumping waste on 5 April 2012, and in these proceedings. He has had the benefit of interpreters in preparing his affidavit evidence and in instructing his lawyers in these proceedings. With their help, he could have provided assistance to the law enforcement authorities. Language alone, therefore, does not explain the lack of assistance to law enforcement authorities provided by Mr Hanna. 140Of course, Mr Hanna's limited assistance to the law enforcement authorities is not an aggravating factor; rather, it simply is not established to be a mitigating factor.
Purposes of sentencing 141In fixing the appropriate penalty for the offences, the Court needs to consider the purposes of sentencing relevant to the offences and the offender in this case. Section 3A of the Sentencing Act states that: 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. 142Of relevance to these offences and this offender are the sentencing purposes that are retributive, preventative and restorative. 143There is a need for the court, through the sentences it imposes, to achieve the retributive purposes of ensuring that Mr Hanna is adequately punished for each offence, he is held accountable for his actions, and his conduct is denounced. The sentences should accord with the general moral sense of the community in relation to the offences he committed in the circumstances of this case: see R v Geddes (1936) 36 SR (NSW) 554 at 555; R v Nichols at 395; Inkson v The Queen (1996) 88 A Crim R 334 at 344-345, 352, 355-357. 144The sentence needs to reflect the seriousness with which the informed and responsible public views crimes against the environment, including the offences of land pollution and unlawfully transporting and dumping of waste. Environmental offences are crimes; they are not mere administrative breaches. The community views environmental offences, including land pollution and dumping of waste, particularly if contaminated by hazardous substances such as asbestos, as extremely serious. Statutory criminal provisions express the community's moral condemnation of conduct that causes or is likely to cause harm to the environment and human health: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [143]-[145]. 145The community's view of the moral reprehensiveness of dumping waste, especially waste containing asbestos, is reflected in the statutory provisions regulating the transporting and disposal of waste in the POEO Act and the regulations made under that Act. The moral reprehensiveness of dumping waste has been emphasised by the recent legislative amendments regarding repeat waste offenders and increasing the penalties prescribed for penalty notice offences, including waste offences. 146The court's duty is to take the community's view of environmental crimes into account in the sentencing process. If the court fails to responsibly discharge the duty that has been entrusted to it by the community, public confidence in the system of justice will be eroded: R v Geddes at [555]; Inkson v The Queen at 345; Ryan v The Queen (2001) 206 CLR 267 at [46]. 147The morality of retributive responses results in the principle of proportionality or just deserts or commensurate deserts. This principle is that the severity of punishment should be commensurate with the seriousness of the criminal conduct. Grave (and more morally repugnant) offences merit severe penalties. Minor (and less morally repugnant) misdeeds deserve lenient punishments. Disproportionate penalties, such as severe sanctions for minor wrongs or lenient sanctions for grave wrongs, are undeserved. 148The principle of proportionality is concerned with preserving a correspondence between the relative seriousness of the offence and the relative severity of the sentence. The relative seriousness of the offence is affected by the harm done or risked by the offence and the degree of culpability of the offender (see the earlier discussion in the section on the objective seriousness of the offences). The principle of proportionality operates as a limiting, but not a defining, principle in determining the appropriate sentence. The principle limits the maximum and the minimum of the sentence that may properly be imposed: Veen v The Queen (No 2) at 491 and cases earlier referred to in [44] above. 149There is another way in which retribution concerns morality. This is to reflect the community's concept of fairness. This concept is applicable to environmental offences where all persons should bear the costs of complying with environmental laws. An offender who operates a business unlawfully, such as unlawfully transporting and dumping waste without incurring the necessary costs and expenses for transporting waste lawfully and depositing it at a place that can lawfully be used as a waste facility, secures an unfair advantage compared to the offender's law abiding competitors who incur the costs and expenses of operating lawfully. The offender has been unjustly enriched. Punishment is necessary to remove that unjust enrichment from the offender and so secure a just equilibrium - a level playing field - on behalf of those who are willing to be law abiding. 150In this case, Mr Hanna has obtained an unfair pecuniary advantage. He has evaded paying the expenses involved, for which he was personally responsible, in transporting waste to a place that can lawfully be used as a waste facility, including the tipping fees charged by authorised waste facilities or landfills, that his law abiding competitors are obliged to pay: R v Morgan [2013] EWCA Crim 1307 at [43], [47]. Punishment is justified to remove that unfair pecuniary advantage. 151The sentence of the court also needs to achieve the preventative purposes of individual and general deterrence. The sentence needs to deter Mr Hanna from committing similar offences in the future. A sentence to achieve individual deterrence needs to take into account Mr Hanna's prior criminality and the type and severity of sentences and penalties imposed for prior offences, and his propensity to re-offend. The Court needs to calculate what sentence is necessary to deter Mr Hanna from re-offending. Mr Hanna is a persistent and habitual offender who lacks genuine remorse for, and insight into, his offending conduct. Punishment for the current offences therefore needs to be increased substantially from that imposed on him for prior offences. 152There is also a need for general deterrence. The sentence of the court needs to operate as a powerful factor in preventing the commission of similar offences by other persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. Courts have repeatedly stated, when sentencing for environmental offences, that the sentence of the court needs to be of such magnitude as to change the economic calculus of persons in determining whether to comply with or contravene environmental laws. It should not be cheaper to offend than to prevent the commission of the offence. Environmental crime will remain profitable until the financial cost to offenders outweighs the likely gains by offending. The amount of any fine needs to be such as will make it worthwhile to incur the costs of complying with the law and undertaking the necessary precautions. The amount of the fine must be substantial enough so as not to appear as a mere licence fee for illegal activity: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359-360; Environment Protection Authority v Waste Recycling and Processing Corp at [229]. In this way, the sentence of the court changes the economic calculus of persons who might be tempted not to comply with environmental laws or not to undertake the necessary precautions. Compliance with the law becomes cheaper than offending. Environmental crimes become economically irrational. 153Sentences that have this effect result in persons who carry out activities likely to harm the environment, including causing pollution, internalising the costs of preventing and controlling pollution as well as of any environmental harm itself. This is the polluter pays principle, one of the principles of ecologically sustainable development. Persons who generate pollution and waste should bear the cost of containment, avoidance or abatement: s 6(2)(d)(i) of the Protection of the Environment Administration Act. The sentence of the court should be such as to make it economically rational for such persons to incur the cost of containment, avoidance or abatement of pollution and waste: see Environment Protection Authority v Waste Recycling and Processing Corp at [230]-[232]. 154To improve the effectiveness of sentences as a deterrent, sentences need to be publicised. Publication of sentences influences the perception of potential offenders in relation to the severity of sentences and the probability of being detected and punished. Where potential offenders are made aware of the substantial risks of being punished, many are induced to desist. Publication also increases the criminal stigma associated with the offence. This increases the deterrent effect for those potential offenders susceptible to criminal stigma, particularly corporate offenders: Environment Protection Authority v Waste Recycling and Processing Corp at [242]. In this case, the prosecutor and Mr Hanna have agreed on the terms of a publication order that outlines the offences, the offender and the punishment imposed for the offences. 155The sentence also needs to achieve the restorative purpose of recognising the harm caused or likely to be caused to the victims of the offences committed by Mr Hanna. The victims include the environment, the owners whose lands were affected by the waste dumping and who incurred financial loss in cleaning up the waste, and the residents in the vicinity of the lands on which waste was dumped whose health was put at risk by the asbestos in the waste. The sentence of the court needs to reflect the actual and potential harm caused by commission of the offences to these victims.
Synthesising the objective and subjective circumstances to determine the appropriate sentences 156The appropriate penalty for each offence committed by Mr Hanna is a fine. The amount of the fine is to be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of the offences and the offender: Markarian v The Queen at [37], [39], [66] and [73]. 157Accordingly, I have taken into account each of the objective circumstances of the offences committed by Mr Hanna, and the medium objective gravity of each offence, as well as the subjective circumstances of Mr Hanna. 158I consider the appropriate fines should be:
Consistency in sentencing 160Well accepted principles of sentencing act as checks on the sentences. One of these is the principle of consistency or even handedness, to check that the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender: R v Oliver (1980) 7 A Crim R 174 at 177; Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610-611 and Environment Protection Authority v Waste Recycling and Processing Corp at [237] and cases therein cited. Care must be taken, however, because each case is different. A sentence in one case does not demonstrate the limits of a sentencing judge's discretion in another case: Environment Protection Authority v Waste Recycling and Processing Corp at [238] and Director-General, Department of Environment and Climate Change v Rae at [70] and cases therein cited. In this case, the difficulty is compounded because four of the prior sentences are those imposed on Mr Hanna for his prior offences. 161The following cases involving the offence of unlawfully transporting and depositing waste contrary to s 143 of the POEO Act, referred to by the parties as well as one handed down after the sentence hearing, suggest that fines in the order of $90,000 and $75,000, which I consider to be appropriate for the offences against s 143(1) of the POEO Act committed by Mr Hanna, are not outside the appropriate range:
Totality of sentences 163Another principle of sentencing that acts as a check on the sentences imposed is the totality principle. The totality principle is applicable where there are 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] HCA 70; (1988) 166 CLR 59 at 62-63; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [49] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [196] and cases therein cited. In the case of a sentence of a fine, if the court believes that 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]. 164Care must be taken to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective seriousness of the offence: Plath v Rawson at [222] and cases therein cited. 165In determining an appropriate sentence, the court must consider the need to uphold confidence in the administration of justice. If sentences are reduced substantially, offenders may be of the view that they can escape punishment for a deliberate series of discrete offences: R v Wheeler [2000] NSWCCA 34 at [36]-[37]. 166In this case, I consider that the totality principle does require there to be some adjustment of the combined fines for the offences. I consider the aggregate of the amounts of the fines of $270,000 to marginally exceed what is just and appropriate in the circumstances and the total criminality involved. 167Mr Hanna's conduct involved dumping waste on two different properties. However, his conduct of dumping waste on any particular property involved a degree of overlap. The same conduct of dumping loads of waste on each property led to him committing two discrete offences: one of unlawfully transporting waste to and depositing waste on each property, which was not a place that could lawfully be used as a waste facility for that waste, contrary to s 143(1) of the POEO Act, and the other of polluting the land on each property, contrary to s 142A(1) of the POEO Act. 168However, the two offences are not conterminous. The offence under s 143(1) is a conduct offence while the offence under s 142A(1) is a result offence. 169The offence under s 143(1) defines the external elements to consist only of the conduct of transporting waste to a place that cannot lawfully be used as a waste facility for that waste. In terms, the depositing of any waste transported at the place is not defined to be an external element of the offence. However, it is a defence to that offence if the defendant establishes that the waste transported by the defendant was not deposited by the defendant or any other person at the place to which it was transported: s 143(3C). Hence, Mr Hanna committed the offence under s 143(1) by his conduct of transporting the waste to each of the properties on Henry Lawson Drive, each being a place that cannot lawfully be used as a waste facility for that waste. The conduct of depositing the waste transported at each property meant that Mr Hanna could not rely on the defence under s 143(3C) to the offence. 170It is also not an external element of the offence under s 143(1) that any waste transported to and deposited at a place that cannot lawfully be used a waste facility for that waste, cause the result of polluting the land at that place. 171In contrast, s 142A(1) is a result offence. The offence under s 142A(1) requires the conduct of polluting land (which includes causing or permitting land to be polluted) to cause the result or consequence of the pollution of the land. In this case, Mr Hanna's acts of placing on the land of each property the building waste containing asbestos (the conduct) caused or was likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings and the environment, and actual or potential loss or property damage (the result). 172Accordingly, the criminality involved in Mr Hanna's dumping of waste on each property is also not conterminous. The conduct specified for the offences under s 143(1) and s 142A(1) is different. For the offence under s 143(1), the conduct is the transporting of waste to a specified place but with a defence of not depositing the waste transported on the specified place while for the offence under s 142A(1), the conduct is the placing in or on, or otherwise introducing into or onto, land specified matter. The result of the conduct also differs. The offence under s 143(1) does not specify, but the offence under s 142A(1) does specify, that the conduct cause a result (the pollution of land for the offence under s 142(1)). 173Because there is some but not an extensive degree of overlap, the aggregation of the sentences for the two offences for each property, being $150,000 for the private land at 890 Henry Lawson Drive and $120,000 for the public park at 739 Henry Lawson Drive, marginally exceeds the total criminality involved in Mr Hanna's conduct in dumping waste on each property. A downward adjustment of the amounts of the fines for the two offences for each property would be appropriate. I consider an aggregate fine of $125,000 for the two offences relating to the private land (apportioned $77,000 for the offence of unlawfully transporting and depositing waste and $48,000 for the offence of polluting land) and $100,000 for the two offences relating to the public park (apportioned $60,000 for the offence of unlawfully transporting and depositing waste and $40,000 for the offence of polluting land) is just and appropriate in the circumstances. 174However, I do not consider there should be a further adjustment for the aggregation of the sets of fines for the two properties. Mr Hanna's conduct of dumping waste on the private land was discrete to his conduct of dumping waste on the public park. The properties were different in nature (private land and public park), different volumes of waste were involved (eight loads of 10 tonnes and one load of 10 tonnes), and his conduct caused or was likely to cause different harm to the environment, different financial loss or property damage to different owners, and different harm to the health of different persons in the vicinity of each property. The criminality involved in the two sets of offences for the two properties should not be conflated. To reduce the sentences any further would cause the reduced aggregate sentence not to reflect the total criminality of Mr Hanna's conduct and the reduced sentence for each offence to be disproportionate to the objective seriousness of each offence. It would also undermine public confidence in the administration of criminal justice by failing to impose effective punishment on Mr Hanna as an offender who has committed a series of discrete offences.
Financial means of the offender 175In fixing the amount of the fines, the court is required to consider the financial means of the offender to pay a fine from such information as is reasonably and practically available to the court: s 6 of the Fines Act 1966. If the court is satisfied that the offender would be unable to pay the amount of the fine determined by the court to be otherwise appropriate, the court may reduce the amount of the fine to take account of the offender's means and impecuniosity: R v Rahme (1989) 43 A Crim R 81 at 87. 176The fine may be only part of the penalty imposed on the offender. Consideration can also be given to other monetary amounts the offender may be ordered to pay, including the prosecutor's legal costs of the proceedings: Environment Protection Authority v Barnes at [78]-[88]. 177Mr Hanna did not adduce definite evidence of his financial position. He did not tender financial statements of his business, himself or his wife, neither balance sheets showing assets and liabilities nor profit and loss statements showing income and expenditure. He did not tender any tax returns showing taxable income. 178His affidavit of 15 February 2013 disclosed that he and his wife live in a house at Colyton. Mr Hanna said in oral evidence that he and his wife own it, however he said his wife is the mortgagee. The NAB Tailored Home Loan statement he attached to his affidavit of 15 February 2013 shows the account to be in his wife's name only. As at 31 December 2012, the loan account balance was $308,531.12. In cross-examination, Mr Hanna said he thought the level of the mortgage was now $295,000 or $296,000. There was no expert evidence of the current value of the house. Mr Hanna said he thought it might be worth $400,000 to $420,000. 179The two tipper trucks used in Mr Hanna's business are owned by Mr Hanna's wife. There was no expert evidence of the value of the trucks. Mr Hanna said he thought the white tipper truck he had used to commit the present offences (which had since had its registration lapse) was worth about $22,000. He did not give any estimate of the value of the other tipper truck that is still being used by his brothers in the business. 180Mr Hanna also attached to his affidavit Time to Pay Orders issued by the NSW Office of State Revenue, State Debt Recovery Office ('SDRO'). As at 1 February 2013 (the latest Time to Pay Order provided by Mr Hanna), the SDRO had identified 41 enforcement orders belonging to Mr Hanna that he had failed to pay and that were overdue. These enforcement orders related to the multiple offences Mr Hanna had committed in operating unlawfully his business of transporting and disposing of waste. The Time to Pay Order set out a payment schedule requiring payment (of the total outstanding of over $200,000) at the rate of $300 per month from February 2013 to June 2072. 181I consider that the evidence of Mr Hanna's financial circumstances available to the Court is "largely indefinite": see Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 353. The evidence is insufficient to justify reducing the fines on account of his financial circumstances. It is also relevant, in the exercise of the discretion under s 6 of the Fines Act, that his indebtedness and liability to pay to the State the accumulated fines and other penalties is self-inflicted. It is a product of Mr Hanna's persistent and habitual offending and his continued failure to pay the vast majority of the fines and other penalties imposed for this offending. It is not just or appropriate for Mr Hanna to benefit, by way of a reduction in the amount of the fines that would otherwise be appropriate to impose, from this self-inflicted financial stress.
The sentences to be imposed 182Mr Hanna should be convicted of each of the offences with which he is charged and fined in the amounts I have determined to be appropriate, namely $77,000 for the offence of unlawfully transporting and depositing waste on the private land at 890 Henry Lawson Drive; $48,000 for the offence of polluting land at the private land; $60,000 for the offence of unlawfully transporting and depositing waste at the public park at 739 Henry Lawson Drive, and $40,000 for the offence of polluting land at the public park. 183In addition, Mr Hanna should be ordered, under s 250(1)(a) of the POEO Act, to publicise the offences (including the circumstances of the offences) and their environmental and other consequences, and the fines imposed and other orders made against him. The parties agreed on the terms of the publication order that should be published in the appropriate newspapers. Publicising the apprehension, prosecution and punishment of Mr Hanna for the offences improves the effectiveness of both individual and general deterrence. 184Finally, Mr Hanna should be ordered to pay the prosecutor's costs. The parties agreed that the Court should order, under s 257B of the Criminal Procedure Act, that Mr Hanna pay the prosecutor's costs. As the amount of the costs was not able to be agreed, the costs will need to be determined in accordance with s 257G of the Criminal Procedure Act. 185I make the following orders:
50875 of 2013 (1)The defendant is convicted of the offence as charged. (2)The defendant is fined $77,000.
50876 of 2013 (1)The defendant is convicted of the offence as charged. (2)The defendant is fined $48,000.
50877 of 2013 (1)The defendant is convicted of the offence as charged. (2)The defendant is fined $60,000.
50878 of 2013 (1)The defendant is convicted of the offence as charged. (2)The defendant is fined $40,000.
All four matters (1)The defendant is to pay the prosecutor's costs, in such amount as may be determined under s 257G of the Criminal Procedure Act 1986; (2)The defendant at his expense and pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 is to: (a)within 28 days of the date of these orders cause a notice to be published in the form of Annexure "A" to be placed in the Sydney Morning Herald, the Bankstown Canterbury Torch and the Canterbury Bankstown Express at a minimum size of 8cm by 12cm; and (b)within 14 days of the publication of the notices notify the prosecutor of the publication.
Annexure "A" Dib Hanna Abdallah Hanna Convicted of Waste Dumping Offences at Picnic Point Dib Hanna Abdallah Hanna known as "Dib Hanna" has been convicted after pleading guilty in the Land and Environment Court of New South Wales of the following offences against s 142A(1) and s 143(1) of the Protection of the Environment Operations Act 1997 ('POEO Act') committed on 5 April 2012: Offence 1 - unlawfully transport waste to private land at Picnic Point contrary to s 143(1) of the POEO Act. Offence 2 - pollute private land at Picnic Point contrary to s 142A(1) of the POEO Act; Offence 3 - unlawfully transport waste to public land at Picnic Point contrary to s 143(1) POEO Act; Offence 4 - pollute public land at Picnic Point contrary to s 142A(1) of POEO Act. On 5 April 2012, Dib Hanna forced entry onto private property at Picnic Point and illegally dumped 8 piles of building waste each approximately 10 tonnes in size consisting of soil and pieces of terracotta piping, brick, concrete, tile, plastic and fragments of chrysotile and amosite asbestos. On 5 April 2012, Dib Hanna illegally dumped a further truck load of the same waste on a public park owned by Bankstown City Council at Picnic Point. Dib Hanna was prosecuted by Bankstown City Council for these four offences. Dib Hanna was ordered to pay a total fine of $225,000 and was ordered to pay Bankstown City Council's legal costs. This notice is placed by order of the Land and Environment Court and was paid for by Dib Hanna.
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: 23 September 2014
Bankstown City Council
Hanna
[2005] HCA 25
[1988] HCA 70
[1998] HCA 57
(1993) 113 LGERA 357
(1988) 166 CLR 51
(2006) 145 LGERA 234
(1993) 32 NSWLR 683
(2009) 168 LGERA 121
(2012) 198 LGERA 232
(1993) 78 LGERA 349
(2013) 195 LGERA 383
(2006) 148 LGERA 299
(2006) 145 LGERA 189
(1989) 167 CLR 348
(2013) 298 ALR 532
(1984) 154 CLR 606
(2005) 228 CLR 357
(1988) 166 CLR 59
(2011) 244 CLR 120
(1998) 194 CLR 610
(2009) 170 LGERA 253
(2000) 49 NSWLR 383
(2002) 55 NSWLR 252
(2001) 206 CLR 267
(1988) 164 CLR 465