Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden

Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden - [2010] NSWLEC 3 - NSWLEC 2010 case summary — Zoe

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1 HER HONOUR: Quintaz Pty Ltd ("Quintaz") and Allan Leslie McCudden ("Mr McCudden") (together the "defendants"), each pleaded guilty on 5 June 2009 to separate offences. 2 The circumstances of the offences are that Quintaz failed to comply with a clean up notice in relation to building demolition waste stockpiled on its property and that Mr McCudden failed to provide documents and information to the Cessnock City Council ("the council") as directed under a notice for information in respect of an investigation by it of the stockpiled waste. 3 This judgment concerns the sentence to be imposed consequent upon each defendant's guilty plea. 4 For the reasons set out below the Court fines Quintaz $112,500 and Mr McCudden $21,000. Both are also required to pay the prosecutor's costs of the proceedings. Particulars of Charge: Quintaz 5 In relation to Quintaz, it has pleaded guilty to an offence that on and from February 2009 and continuing, it failed to comply with the requirements of a clean up notice issued by the council on 13 February 2009 ("the Clean Up Notice"), pursuant to s 91(1) of the Protection of the Environment Operation Act 1997 ("the POEOA") ("the s 91 offence" or "the Quintaz offence"). As a consequence Quintaz committed, and continues to commit, an offence under s 91(5) of the POEOA. 6 The particulars of the summons issued against Quintaz are as follows: 1. An order that the defendant, Quintaz Pty Limited ACN 059 737 183 of "VBD Chartered Accountants, The Landmark", Suite C20, 215 Pacific Highway, Charlestown in the State of New South Wales, appear before a Judge of the Court to answer the charge that from 20 February 2009 to the date of this Summons, and continuing, it committed, and is continuing to commit, an offence against section 91(5) of the Protection of the Environment Operations Act 1997 (the "Act"), in that, without reasonable excuse, it has not complied with a clean-up notice given to the defendant pursuant to section 91(1) of the Act. Particulars By way of a notice in writing dated 13 February 2009, served on the defendant on 13 February 2009, the Prosecutor, being the appropriate regulatory authority for the purposes of the Act, directed the defendant, pursuant to section 91(1) of the Act, to take clean-up action as specified in the said notice within the periods stipulated in the said notice. The defendant did not comply with the directions given under paragraphs 1, 2 & 6 of the said notice by the times specified in the said notice, namely: The defendant failed to prepare and submit to the prosecutor by 5:00pm on 23 February 2009 a report and plan as specified in paragraph 1 of the First Schedule to the said notice. The defendant failed to prepare and submit to the prosecutor by 5:00pm on 2 March 2009 a remediation action plan for the approval of the prosecutor as required by paragraph 2 of the First Schedule to the said notice. The defendant failed to provide progress reports at 7-day intervals commencing 7 days from the date of the said notice as required by paragraph 6 of the First Schedule to the said notice. As at the date of the filing of this summons, the defendant has still not complied with any of the said directions. 2. That the defendant be dealt with according to law for the commission of the above offence including by way of the imposition of a daily penalty pursuant to s91 of the Act. 3. An order that the defendant pay the prosecutor's costs. 4. Such order or orders under Part 8.3 of the Act as the Court sees fit to make, including an order or orders under sections 245 and/or 248 and/or 250 of the Act as the Court sees fit to make. Particulars of Charge: McCudden 7 Mr McCudden is charged with committing (and continuing to commit) from 4.00 pm on 5 March 2009, an offence against s 211(1) of the POEOA in that he did, without lawful excuse, neglect or fail to comply with the requirement made of him under s 193 in Chaper 7 of the POEOA ("the s 211 offence" or "the McCudden offence"). The particulars of the charge are as follows: 1. An order that the defendant, Allan Leslie McCudden, of 72 Armidale Street, Abermain in the State of New South Wales, appear before a Judge of the Court to answer the charge that from 4:00pm on 5 March 2009 to the date of this Summons, and continuing, he committed an offence against section 211(1) of the Protection of the Environment Operations Act 1997 (the "Act") in that he did, without lawful excuse, neglect or fail to comply with a requirement made of him under Chapter 7 of the Act. Particulars The defendant neglected or failed to comply with the requirement under section 193(1) of the Act to furnish information and records to an authorised officer, namely Jenny LANGE, pursuant to a notice in writing dated 22 January 2009 served on the defendant in person on 23 January 2009, pursuant to which the said authorised officer required the defendant to furnish to the said authorised officer information and records as specified in the said notice, by the stipulated time and ate, namely by 4:00pm on 5 March 2009.

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(v) on 9 June 2009, Dr Orr's report was sent to the council purportedly in compliance with the Clean Up Notice; (w) on 11 June 2009, another report was sent to the council purportedly in compliance with the Clean Up Notice. Also on that day the council's solicitors wrote to Gadens stating that the 9 June 2009 report was not in compliance with the Clean Up Notice because Dr Orr had only examined 24 of the total 41 stockpiles on the site and the stockpiles and their locations were not identified on a plan properly drawn to scale as required by the Notice. Further, the method used by Dr Orr to identify the stockpiles containing or likely to contain asbestos was not set out. In the circumstances, the council therefore did not accept that the report complied with the Clean Up Notice. Again, the council reiterated that it would be seeking a daily penalty in relation to non-compliance with the Clean Up Notice; (x) on the same day, the council received a letter from the defendant's solicitor and a document entitled Remedial Action Plan for the Removal of Asbestos Debris from the Premises of 1148 Old Maitland Road, Sawyers Gully, New South Wales . Gadens asked for council's approval of the RAP as soon as possible so that work could commence in accordance with it; and (y) on 15 June 2009, the council wrote to Gadens stating that the council could not approve the RAP as the initial report upon which it was based was flawed. Further, the council noted that the RAP did not identify which stockpiles were to be removed and which stockpiles were to be retained. The RAP also did not indicate how the site would be remediated. That is to say, by complete removal of the stockpiles or by visual pick of the asbestos observed in the stockpiles. Other deficiencies with the RAP were also identified. However, the council advised that it would be willing to meet with Dr Orr to clarify its concerns in order to ensure that the site was cleaned up in accordance with the Clean Up Notice. This was not, however, to be taken as any "relaxation of our client's requirement that your client fully comply with the terms of the clean up notice, nor should it be taken to mean that our client is not looking to a daily penalty for each day the non-compliance continues". Agreed Facts: McCudden 10 The agreed facts in respect of the charge against Mr McCudden were as follows: (a) on 23 January 2009, a notice was sent to Mr McCudden by the Council under s 193 of the POEOA requiring him to furnish to Ms Lange specified information and documentation in connection with her investigation into suspected dumping of material on the Property ("the Notice for Information");

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(2) In the case of authorised officers appointed by the EPA, this section is not limited to matters in respect of which the EPA is the appropriate regulatory authority. 13 It is an offence pursuant to s 211 of the POEOA to fail to comply with the s 193 Notice for Information served on Mr McCudden: 211 Offences (1) A person who, without lawful excuse, neglects or fails to comply with a requirement made of the person under this Chapter is guilty of an offence. … Maximum penalty (subject to sections 204 and 208): … (b) in the case of an individual - $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. Prosecutor's Evidence Lay Evidence 14 In addition to the agreed facts, the prosecutor relied on the evidence of Ms Jenny Lange. Jenny Lange 15 Ms Jenny Lange is the environmental health coordinator for the council who was assigned the role of investigating the pollution incident at the Property and ensuring that the Clean Up Notice served on the defendant was complied with. 16 In her affidavits sworn 24 and 26 June 2009 and 13 July 2009, Ms Lange deposed that she attended the Property on 6 and 7 December 2007 and obtained samples from various stockpiles of material on the site. Ms Lange deposed that the subsequent analysis of the samples taken revealed asbestos at five stockpiles and at two other areas on the Property. 17 Ms Lange stated that during her visit to the Property she also noticed various waste and materials in the stockpiles which included: (a) construction waste, such as: fill material containing asphalt, soil, bricks, broken terracotta, tiles, used steel pipe, used car batteries, rusty drains, used galvanised iron guttering, timber, broken asphalt, broken concrete, used galvanised purlins and used sandstone blocks; (b) miscellaneous waste, such as: a large number of old chicken coups and drums, some of which upon further inspection, contained the residue of an oily substance similar to motor oil and a pile of burnt material; and (c) green waste. 18 Under cross examination Ms Lange agreed that the asbestos was contained in fragments on top of or within stockpiles and was not present in the soil. 19 Ms Lange further stated that the reason for the council waiting almost a year between its inspection of the Property and the issuing of the Clean Up Notice was because: (a) the tenant had left the property in 2008, and therefore, any adverse risk to humans posed by exposure to the asbestos had been diminished;

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24 In Ms Malloy's opinion, the asbestos material contained in the burnt stockpiles was friable pursuant to the Workcover NSW publication Working With Asbestos Guide 2008, which stated that burnt asbestos was friable asbestos. Friable, according to these guidelines, meant material that could easily be crushed up and broken by hand. Ms Malloy stated that friable asbestos posed a much greater risk to the health of humans because the fibres could become loose and airborne and thus more easily ingested. Thus if the material on the site was friable, then air monitoring would need to be done and greater care would need to be taken in removing it. 25 Ms Malloy agreed under cross examination that she did not notice any friable material on the top of the stockpiles, rather she had assumed that there would be friable material within the stockpiles by reason of the surface ash and other burnt material that she had observed. Ms Malloy conceded, moreover, that she had only looked at one of the two burnt stockpiles. Ms Malloy agreed that the soil that was tested at the stockpiles was negative for asbestos. Ms Malloy conceded that she had not looked at any of the fragments taken by Dr Orr for analysis from the top of the stockpile. However, she stated, that she would still class the material as friable because it was fire damaged. 26 Ms Malloy, however, did concede that pursuant to cl 257 of the Occupational Health and Safety Regulations 2001 ("the Regulations") the material would not be classified as friable and that the POEOA had a relevantly similar definition of friable material to that contained in the Regulations. 27 Ms Malloy also conceded that if asbestos was exposed to fire but not damaged, it could be classified as bonded. 28 Significantly, Ms Malloy agreed that she would need to inspect the asbestos and make a proper analysis of it in order to properly classify it and that she had not done this in relation to any of the fragments taken from the burnt stockpile. Thus she stated that she would defer to Dr Orr's analysis in this regard given his reputation and experience in this field. Defendants' Evidence Lay Evidence 29 The defendants relied on lay evidence from:

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(b) Ms Christina Schumacher, an employee of Quintaz and the daughter of Mr McCudden. Daryl Lawrence 30 In an affidavit sworn 16 July 2009, Mr Daryl Lawrence, principal of Waller Fry and Faulkner solicitors, gave evidence to the effect that on 20 January 2009, Mr McCudden attended his office with both the Clean Up Notice and the Notice for Information. Mr McCudden told Mr Lawrence that he needed more time to comply with the Notices. Mr Lawrence told Mr McCudden that he would contact the council to discuss a compromise and to see if more time could be obtained. At this conference Mr McCudden told Mr Lawrence that he was prepared to clean up the site and that he didn't want to jeopardise his justice of the peace status, his position as councillor, or obtain a criminal record. 31 Mr Lawrence deposed that throughout his retainer he maintained the view that the matter ought to have been resolved by negotiation with the council. However, despite his attempts neither the council nor its solicitors were interested in achieving this outcome. At all times, he stated, Mr McCudden had instructed him that he did not want to be prosecuted and that he wanted to "sort the matter out". Mr Lawrence insisted that it was he who encouraged the incorrect belief that the matter could be resolved informally. 32 Under cross examination Mr Lawrence agreed that he was told by the council that if the information was not provided in time pursuant to the Notice for Information that prosecution would result. Mr Lawrence also agreed that he was told by council that it would not agree to a without prejudice meeting with him and Mr McCudden, but Mr McCudden could make a voluntary statement, however, Mr McCudden had declined to do so. Mr Lawrence agreed that he had been told by the council that because his client was a councillor a formal response was required. 33 Mr Lawrence further agreed that Mr McCudden was an experienced business man, a former police officer and councillor and therefore had had some experience with the law and ought to have appreciated the gravity of his situation. Mr Lawrence conceded that he had drawn to Mr McCudden's attention the warning on the Notice for Information and the consequences of non-compliance. He agreed that Mr McCudden was aware that failure to comply with the notice could have serious consequences. 34 Mr Lawrence, however, thought that his client required more time to comply given the breadth of material asked for in the Notice. Mr Lawrence also stated that it was his policy to provide the material not in a piecemeal fashion but in a complete package. However, he agreed that as at 20 April 2009 none of the material had been provided. 35 It is not in dispute that Mr Lawrence was diligent in his efforts to contact the council and pursue mediation. It is also not in dispute that Mr McCudden contacted Mr Lawrence on several occasions asking what progress had been made. Mr Lawrence frequently told Mr McCudden to "leave it with me". 36 At the beginning of February Mr Lawrence's firm moved office and was short staffed. Mr Lawrence admitted that he did not, at that time, have the capacity to fulfil his professional obligations to his client. Thus on 21 April 2009 Mr McCudden contacted Mr Lawrence and told him that he was terminating his retainer and appointing another solicitor. 37 Mr McCudden agreed that he had "let my client down". 38 Whilst I accept that some blame for the events resulting in the commission of the s 211 offence can be attributed to the inaction of Mr Lawrence, nevertheless, as Mr Lawrence stated in evidence, at all times he had kept his client informed of the serious consequences of failure to comply with the Notices. Accordingly, at a point much earlier than 21 April 2009, Mr McCudden ought to have taken further steps to ensure compliance with the Notices and avoid breaching the law. That Quintaz was suffering from a staffing shortage or Mr McCudden was too busy to attend to this task is no excuse. Christina Schumacher 39 Mr McCudden's daughter, Ms Christina Schumacher, swore two affidavits in the proceedings, dated 16 and 17 July 2009. She also gave oral evidence of her knowledge of the financial affairs of Quintaz. 40 Ms Schumacher stated that she was employed by Quintaz. She stated that she handled all of the paperwork, paid the invoices and did the bookkeeping for the company's quarterly BAS statements. Accountants, however, did the tax returns. She stated that she had access to the bank accounts and as at 17 July 2003, Quintaz was approximately $73,000 in debt; Macs Kurri Hardware was $12,000 in credit; the loan repayments from Quintaz to ANZ for the Property were $750,000 and that Quintaz would have an approximate tax liability of $70,000 at the end of July 2009 for its quarterly BAS payment. In addition, the Hazmat consultancy fees had not been paid. 41 However, under cross examination it was revealed that Ms Schumacher knew very little about the actual financial affairs of Quintaz. For example, the $750,000 loan from ANZ that she referred to did not involve the Property the subject of these proceedings, which was owned outright by Quintaz. Likewise, the company owned various plant assets by way of trucks, excavators and a forklift. Ms Schumacher was not aware of this. Ultimately Ms Schumacher conceded that she could not tell the Court what the asset position of the company was in relation to its plant and equipment. 42 Ms Schumacher similarly agreed that the company was growing in terms of size. This was demonstrated by the fact that in the 2007/2008 financial year $56,000 was paid in wages, whereas in the 2008/2009 financial year approximately $206,000 was paid in wages. 43 Ms Schumacher was unable to tell the Court what the company's turnover was in relation to asbestos removal. 44 Ms Schumacher did indicate that there had been considerable staffing issues with Quintaz from the end of 2008 to the beginning of 2009. 45 In relation to the remainder of the evidence contained in Ms Schumacher's affidavits, I place very little, if any, weight on it, consisting as it does of second hand hearsay material and speculative beliefs. Testimonials and Newspaper Articles 46 Various testimonials and newspaper articles were tendered evidencing Mr McCudden's good standing in the community. Reading them, I have no doubt that Mr McCudden is a man of good character and standing in the community. The relevance of this finding is discussed below. Expert Evidence 47 The defendants' expert evidence comprised of Dr Jim Orr, an Occupational Hygienist with Hazmat. Dr Jim Orr

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48 In his affidavit sworn 10 July 2009 attaching his report dated 3 June 2009, Dr Orr expressed the following opinions: (a) that the RAP satisfied the requirements of the s 91 Clean Up Notice; (b) that he did not witness any evidence that there had been wholesale dumping of asbestos waste at the Property; (c) that whilst some asbestos pieces were recovered from some stockpiles, the amount recovered was minimal; (d) that the asbestos was bonded and not friable; and (e) that given its limited extent and bonded nature, the asbestos contamination presented a minimal hazard to persons accessing the Property and could be easily removed by emu pick using a contractor with an appropriate asbestos removal licence. 49 Dr Orr stated that he examined all of the stockpiles but that due to problems of inaccessibility, not all of them were sampled and excavated. Very few stockpiles, however, were only viewed. Dr Orr stated that in any event some of the stockpiles were homogenous in the sense that they were all one material, and therefore, it could easily be ascertained that there was no asbestos contained within them. 50 However, under cross examination Dr Orr conceded that trucks could have been transporting both asbestos and other waste, either as separate loads, resulting in possible residue contamination, or together in which case asbestos could be located deep inside a load of waste. Thus it was possible that some homogenous piles where assumptions had been made that no asbestos was present could have contained asbestos waste. 51 Dr Orr confirmed that the amount of asbestos found was, in his opinion, minimal. Only 50 to 60 small pieces of asbestos had been located and these pieces were consistent with bonded material. This was because although fire damaged, the asbestos was not able to be crushed. In relation to the burnt piles, Dr Orr stated that there was no asbestos found in any of the associated ash. Accordingly, the issue of whether the asbestos was friable or not simply did not arise. 52 Dr Orr stated that he was using the definition of bonded and friable contained in the Regulations. In his opinion, the use of the Workcover Guide was not appropriate in relation to this site because of its small area and the small amount of asbestos material located on it. In Dr Orr's words, "a reality check is needed on this site" due to its small size. Conclusion on Whether the Asbestos was Friable or Bonded and in What Quantity 53 I accept the evidence of Dr Orr in relation to the classification of the fragments if for no other reason than the fact that Ms Malloy did not examine the fragments either within or on top of the relevant stockpiles, but rather made an assumption as to the state of the fragments based on other burnt material that she had observed on the stockpiles. Absent any actual examination by her I prefer the evidence of Dr Orr. 54 Accordingly, I find beyond reasonable doubt that the asbestos contained in the stockpile was bonded and not friable and that therefore the RAP is satisfactory. 55 I also find beyond reasonable doubt that the presence of asbestos on the site was minimal. Sentencing Considerations Purpose of Sentencing 56 The purposes of sentencing are stated in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA") as: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. Approach to Sentencing 57 It is a basic principle of sentencing law that the sentence imposed by the Court for an offence must both reflect and be proportionate to the objective circumstances of the offence and the personal or subjective circumstances of the defendant (Veen v The Queen (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) (1988) 164 CLR 465 at 472). 58 Section 21A of the CSPA further identifies matters which the Court must take into account when sentencing, including those in aggravation (s 21A(2)) and those in mitigation (s 21A(3)). 59 Further, the POEOA also provides the following matters for consideration in the imposition of penalty under s 241: 241 Matters to be considered in imposing penalty

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(1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the 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, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant. Objective Considerations 60 The primary factor the Court must consider when determining sentence is the objective gravity or seriousness of the offence. This is determined through consideration of the upper most limit of a sentence that is justified as appropriate or proportionate to the gravity of the crime in light of its objective circumstances (Veen v The Queen (No 2) at 472, 485-486, 490-491 and 496; Hoare v The Queen (1989) 167 CLR 348 at 354), and the lower limit of the offence by allowing for consideration of the subjective factors of the matter to produce a proportionate range that reflects 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; Garrett v Freeman (No 5) (2009) 164 LGERA 287 at [51]; Pittwater Council v Scahill (2009) 165 LGERA 289 at [50] and Plath v Rawson [2009] NSWLEC 178 at [46]). 61 The objective circumstances of the offence and the purposes of punishment inform the lower limit of sentencing discretion, a bottom line beneath which a sentence cannot legitimately be set (Rawson at [46] citing SZ v The Queen (2007) 168 A Crim R 249 at [4]-[6] and Graham v R [2009] NSWCCA 212 at [43]-[44]). 62 In determining the objective gravity or seriousness of the offence, the circumstances of the offence to which the Court may have regard include (see Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [110] and Rawson at [48]): (a) the nature of the offence; (b) the maximum penalty for the offence;

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Nature of the Offences 63 In Rawson Preston CJ stated (at [49]): [49] A fundamental consideration of relevance to environmental offences is the degree by which, having regard to the maximum penalties provided by the statute in question, the offender's conduct would offend against the legislative objectives expressed in the statutory offence: R v Peel [1971] 1 NSWLR 247 at 262; Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [89]; Garrett v Freeman (No 5) ; Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1; (2009) 164 LGERA 287 at [52]; Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 at [15]. 64 The primary object of the POEOA is to protect, restore and enhance the quality of the environment in New South Wales by, inter alia, reducing risks to human health and preventing the degradation of the environment through mechanisms that reduce the discharge of substances likely to cause harm to the environment (see s 3(d)(ii)) and improve the efficiency of the administration of the environment protection legislation (see s 3(f)). The issuing of the Clean Up Notice and the Notice for Information supported these primary objects. 65 The purpose of s 91 is to serve the primary objects of the POEOA as expressed in s 3 by empowering an appropriate regulatory agency to require the occupier of land to take remedial steps on that land where the authority reasonably suspects that a pollution incident has occurred. There is a clear need to uphold the regulatory system established under the POEOA which depends on personal and corporate entities taking steps to remediate, rectify and remove sources of pollution as directed and in a timely manner. This system minimises any actual or potential environmental harm caused by the pollution and ensures that the costs of remediation are borne by those responsible for the pollution. The actions of Quintaz in failing to comply with the Clean Up Notice undermined this system and offended the objects of the Act. It is in this context that the offence against s 91 of the POEOA is objectively serious.

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66 In relation to the offence committed pursuant to s 211 of the POEOA, once again this offence is reflective of the need to ensure compliance with the regulatory scheme underpinning the Act. The purpose of provisions of the character of s 193 is to enable an authorised regulatory officer to carry out an investigation in the nature of an inquiry in connection with any matter within the responsibility of the authority that appointed the officer (Hardie Holdings Pty Ltd v Director-General of the Department of Natural Resources (2007) 151 LGERA 373 at [30]-[39]). Any compromise in the access to information required by the authority results in a concomitant comprise in the ability of that authority to ensure compliance with the Act and to protect against environmental harm. In failing to provide the information as required by the council, Mr McCudden undermined this regulatory scheme and offended the objects of the POEOA as expressed in the offence. Maximum Penalty 67 The maximum statutory penalty is of considerable significance in determining the objective gravity of the offence (Rawson at [57]). It demonstrates the seriousness with which these offences are viewed (Scahill at [52]). In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 it was stated that: the maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence ... 68 In Markarian v The Queen (2005) 228 CLR 357 (at [31]), the High Court unequivocally referred to the need to have regard to the maximum penalty as a legislative yardstick to enable comparison between the worst possible case and that currently before the court. 69 The maximum penalty against a corporation for breach of s 91(1) is $1 million, and in the case of a continuing offence a further penalty of $120,000 for each day the offence continues. 70 The maximum penalty against an individual for breach of s 193 is $250,000 with a further penalty of $60,000 for each day the offence continues. 71 Both penalties reflect the considerable objective seriousness with which Parliament views the commission of each offence.

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124 The prosecutor submitted that these facts show that Mr McCudden had knowledge of the responsibilities and consequences of not complying with the Notices and in not doing so he showed disregard for the regulatory regime. The need for specific deterrence is consequently high. I agree. This disregard was exacerbated, in my opinion, by Mr McCudden's former employment as a police officer and current position as a councillor with the prosecuting council. Conclusion as to Subjective Considerations 125 The subjective circumstances of both Quintaz and Mr McCudden mitigate the sentence to be imposed, but not to any significant extent. Consistency in Sentencing 126 A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the courts for offences such as the offence in question (Gittany at [179]-[183]). 127 The proper approach is for the Court to look at (Gittany at [182]): [182] … "whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range": R v Morgan (1993) 70 A Crim R 368 at 371 and Capral Aluminium Ltd v Workcover Authority of NSW (2000) 49 NSWLR 610 at 641. 128 Care must nevertheless be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion (Axer at 365 and Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312). 129 In cases where there are too few cases that share common characteristics and which represent a broad range of differing features, there is little assistance to be gained from a statistical analysis of the sentencing range or pattern that emerges (R v Hoerler (2004) 147 A Crim R 520 at [41]-[47]). This is so with both the s 91 and s 211 offence. 130 In relation to the s 211 offence, the prosecutor referred the Court to the following three decisions by way of comparison: (a) first, Environment Protection Authority v Peters (2006) 153 LGERA 238. This case involved systematic falsification of 300-400 records. The defendant was found guilty and fined $80,000 for falsifying information in relation to pesticide records. He was also found guilty and fined $10,000, reduced to $6,000, for two counts of using a registered pesticide in contravention of its label. The offence posed a threat to human health. The prosecutor properly conceded that Peters was a much more serious offence than the present one involving as it did significant dishonest conduct; (b) second, Great Lakes Council v Mood (No 2) [2008] NSWLEC 68. This decision involved the defendant furnishing information knowing that it was false or misleading in a material respect. The defendant was fined $75,000 by way of penalty; and (c) third, Environment Protection Authority v Hargraves (No 2) (2003) 124 LGERA 57. In this case an unrepentant defendant was fined $30,000 for two offences (reduced from $40,000) for giving a small amount of false information to authorities in an interview. The defendant created fictitious records designed to deceive the council for financial gain. There was no environmental harm and the defendant was otherwise of good character. The prosecutor stated that the facts of the present offence were more serious than those in Hargraves . 131 The prosecutor submitted, and I agree, that these decisions have to be treated with caution as they involve the provision of false or misleading information. However, the prosecutor noted that the maximum penalty under s 211 for omitting to provide information required pursuant to s 193 carried the same maximum penalty as the provision of false and misleading information. This was because, the prosecutor suggested, an omission to provide information was equally antipathetic to the council's information gathering powers as the provision of false or misleading information.

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134 In relation to the s 91 offence, the defendant submitted that the decision of Oberon Council v Australian Game Meats Limited [2002] NSWLEC 96 was analogous. In Oberon, the defendant pleaded guilty to a charge that it failed to comply with a direction under s 96 of the POEOA to take certain preventative action, which included the preparation and submission of an environmental audit of its operations; the preparation and submission of a waste water design and management plan and the preparation and submission of a waste management plan. Documents that complied with the prevention direction were not submitted until after the commencement of proceedings. No actual harm to the environment resulted. No explanation was given for the delay in compliance. The defendant pleaded guilty and agreed to pay the prosecutor's costs. The defendant was fined $27,000. 135 The prosecution submitted that Oberon Council should be distinguished on the basis that that case did not involve a continuing offence and at the time the maximum penalty for a corporation for this offence was only $250,000. I agree with this submission. Totality Principle 136 Both parties submitted, and I accept, that while the totality principle does not strictly apply to the present offences because they are separate and are against different defendants, the two offences both arise from the one incident concerning a reasonable suspicion that asbestos contaminated material was present on the site. It was this one incident that generated the respective Notices, the respective failures of both defendants to comply with the Notices, the respective summonses and the respective pleas of guilty. Thus in these circumstances, and where Mr McCudden is the sole director of Quintaz, the Court ought to adjust the monetary penalties in order to have regard to the close connection of the two offences (see R v Hammoud (2000) 118 A Crim R 66). Moreover, the reality is that in each case it will be Mr McCudden who suffers the penalty, and therefore, there is a need to look at the overall criminality of Mr McCudden and Quintaz and the totality principle therefore applies in a de facto sense (see Keir v Sutherland Shire Council [2004] NSWLEC 754 at [16]).

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Judgment (108 paragraphs)

Cases Cited (45)

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