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.