Environment Protection Authority v ACE Demolition & Excavation Pty [2023] NSWLEC 3 | Case summary

Land and Environment Court (NSW)|2022-08-23|Before: Moore J

Mr Sami Allam's role with the Company

Mr Sami Allam (Sami) is the sole director, sole shareholder, and CEO of the Company.

The interlocutory decisions

I have already given four detailed interlocutory decisions in these or related proceedings. Those decisions addressed matters of availability of evidence and the uses to which such evidence as might be permitted to be put during the course of any following liability trial. Those four decisions were: 1. Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 44; 2. Environment Protection Authority v ACE Demolition & Excavation Pty Ltd; Allam [2022] NSWLEC 45; 3. Environment Protection Authority v Allam [2021] NSWLEC 103; 4. Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7.
As can be seen from their titles, those decisions applied to the Company and/or to Sami in differing fashions.

The charges

The prosecutions against the Company and against Sami were commenced on 17 December 2020.
For the purposes of the four interlocutory decisions noted above, a summary of the charges laid against the Company and Sami was agreed to by the Prosecutor and the Defendants' legal representatives. At the commencement of this hearing, I sought agreement that, as with my interlocutory determinations, that agreed summary was appropriate to be reproduced as Annexure A to this decision as a basis to describe the charges that required to be dealt with (rather than setting out, in the body of this decision, the relevant charges and the particularisation pleaded in support of it from each of the Summonses). That agreement was given and the summary of the charges against the Company and against Sami is reproduced as Annexure A.

The initial pleas

On 25 June 2021, pleas of "not guilty" were entered on behalf of the Company and Sami to all of the charges. There was no change in this position until the first day of the liability trial.

Plea matters at the commencement of the trial

On the first day of the trial, Mr Potts SC for the Company and Sami indicated that the Company now changed its plea in Matter No 357467 of 2020 from "not guilty" to "guilty". The charge to which the Company now pleaded guilty was one laid pursuant to s 144AA(1) of the Protection of the Environment Operations Act 1997 (the POEO Act), being the sole charge of supplying information concerning waste during the course of dealing with waste where that information was false or misleading in a material respect. This charge, as can be seen from the later set out terms of the statutory provision, is the less serious of the two charges available in s 144AA (as there is no mental element of knowledge of the falsity of the information supplied required to be proved by a prosecutor).
Mr Potts also put on the record that the Company had offered to plead guilty to three further offences pursuant to s 144AA(1), in substitution for the three remaining charges against the Company to which it had pleaded not guilty, if those pleas were accepted by the Prosecutor agreeing to withdraw the three mental element charges against the Company made pursuant to s 144AA(2).
The Prosecutor indicated that this offer was not accepted, with the liability hearing proceeding on the charges as they stood.

The entry of guilty pleas for the Company and withdrawal of charges against Sami

Having adjourned, on 3 August 2022 after the close of the evidence on the contested charges laid against the Company and against Sami, to permit the parties time to prepare their written submissions (setting a timetable for this), on 9 August 2022 I was requested to relist the matter for the purpose of providing me with proposed consent orders to be made on that occasion. At a mention on 10 August 2022, I was advised that negotiations between the Prosecutor and the legal representatives of the Company and Sami had resulted in the Company entering pleas of guilty to the three charges against it pursuant to s 144AA(2) of the POEO Act and the Prosecutor agreeing that the charges which had been laid against Sami were withdrawn.
By consent, I made timetabling orders for a sentencing hearing for the purposes of determining of appropriate penalties to be imposed on the Company for all four charges to which the Company had now pleaded guilty. That sentencing hearing was held 23 August 2022.
It is to be noted, for the record, that it had been agreed the Prosecutor and Sami were to bear their own costs of the proceedings (Matters No 357475 to 357477 of 2020) which had been commenced against Sami.
It is to be noted that the Company's guilty pleas constituted admission of all the elements necessary to found convictions for each offence charged.

The Agreed Statement of Facts on Sentence

On 12 August 2022, the Prosecutor filed an Agreed Statement of Facts on Sentence for the purposes of the sentencing hearing. That document was tendered on 23 August 2022, the day of the sentencing hearing. Although somewhat lengthy, it is appropriate to reproduce the terms of that document in its entirety. Agreed Statement of Facts on Sentence was in the following terms: Introduction 1. The Defendant, ACE Demolition & Excavation Pty Ltd (ACE): (a) has operated in the waste industry since 2004; (b) has no criminal history or prior convictions; (c) has never been charged with any other offences besides those the subject of these sentencing proceedings. Offences 2. ACE committed the following offences: (a) An offence, on or about 18 April 2017, against s 144AA(2) of the Protection of the Environment Operations Act 1997 (POEO Act), in that it supplied information about waste to another person in the course of dealing with the waste, being information that it knew was false and/or misleading in a material respect. (b) An offence, on or about 2 June 2017, against s 144AA(2) POEO Act, in that it supplied information about waste to another person in the course of dealing with the waste, being information that it knew was false and/or misleading in a material respect. (c) An offence, on or about 12 June 2017, against s 144AA(1) POEO Act, in that it supplied information about waste to another person in the course of dealing with the waste, being information that was false and/or misleading in a material respect. (d) An offence, on or about 2 December 2017, against s 144AA(2) POEO Act, in that it supplied information about waste to another person in the course of dealing with the waste, being information that it knew was false and/or misleading in a material respect. Background The legislative framework for disposal of excavation waste 3. At the times of the offences, the disposal of waste, including excavation waste, from construction sites was governed by the POEO Act and the Protection of the Environment Operations (Waste) Regulation 2014 (Waste Regulation). 4. There were different types or categories of waste including: • aggregate; • asbestos; • bricks or concrete; • contaminated soil; • mixed waste; • soil (not contaminated or Virgin Excavated Natural Material (VENM)); • VENM • asbestos containing/contaminated material (ACM); • potential acid sulphate soils (PASS); • general solid waste (GSW); and • excavated natural material (ENM). 5. Under Part 3 of the Waste Regulation, the occupiers of waste facilities were required to record certain information in relation to each delivery of waste or other material received at the facility, including the amount of any waste delivered, its waste type, its waste stream (such as construction and demolition waste), the date and time the delivery is made and the registration number of the vehicle used to make the delivery. This was an obligation that attached only to the occupiers of waste facilities. There was no obligation under Part 3 of the Waste Regulation or the POEO Act for waste facilities to record (or for persons delivering waste to provide) details of the source site for the waste delivered or a job number for that site. Accounting required for disposal of excavation waste, generally 6. In summary, some but not all waste facilities had weighbridges over which the trucks carrying waste into the facility were required to pass. Those waste facilities which had weighbridges generated weighbridge disposal dockets (weighbridge dockets) which were usually given to the drivers of the trucks concerned. A function of the weighbridge dockets was to provide a record of the disposal of the quantity of waste concerned. The weighbridge dockets sometimes specified the source development site which had been supplied to the waste facility operator when the company disposing of the waste agreed with the operator for the waste to be disposed of at the facility, and/or given to the weighbridge operator by the truck driver when going over the weighbridge. Where an order number (job number) had been created by the waste facility for that source site, the weighbridge docket sometimes specified that data. (The process by which the weighbridge dockets were generated is detailed under the heading "ACE's transactions with waste facilities" below.) Generally speaking, the weighbridge dockets were intended to be provided to the company disposing of the waste, in this case ACE. A record of the weighbridge dockets was also kept by the waste facilities. The methods by which ACE received weighbridge dockets were either or both: • from the driver of the truck; and/or • from the waste facility, sometimes as copies, when it invoiced ACE for the cost of ACE disposing of the waste concerned; or when ACE requested them from the facility. 7. The weighbridge dockets usually recorded in print form: (a) the name of the facility; (b) a unique docket number; (c) the date and time; (d) the vehicle registration number of the truck; (e) the identity of the company disposing of the waste (in this case, ACE); (f) a job number or reference number which could be sourced to a particular source site or source location for the waste such as the suburb from whence the waste had come; (g) the waste type; (h) the tare weight of the truck; and (i) the net weight of the waste. 8. Generally, when a truck carrying waste being disposed of by ACE came to a waste facility that did not have a weighbridge, the waste facility and/or ACE would provide an estimate or average tonnage for that truck. It was ACE's practice to have drivers weigh their trucks at weigh stations to verify the estimated tonnage from time to time. 9. Those waste facilities that were not equipped with or did not use weighbridges provided transporters (including ACE) with records for the disposal of waste at those facilities. Depending on the facility, those records usually recorded some or all of the same information as was recorded on weighbridge dockets (as set out at paragraph 7). 10. The waste facility company SUEZ Recycling & Recovery Pty Ltd (SUEZ) produced weighbridge dockets in hardcopy format which were provided to ACE in hardcopy or in scanned PDF format. 11. The waste facility company Dial A Dump Industries Pty Ltd and Dial A Dump (EC) Pty Ltd (DADI) produced weighbridge dockets in electronic PDF format which were provided to ACE as electronic files or printed in hardcopy. 12. The waste facility company Besmaw Pty Ltd (Besmaw), also known as the Holt Estate 1861, produced weighbridge dockets entitled "Tax invoice duplicate". 13. From time to time, the waste facility companies SUEZ, DADI and Besmaw also produced other documents, including invoices, truck run sheets, and summaries by way of letters, spreadsheets or lists of loads or quantities of waste disposed of at their waste facilities by ACE, which the companies provided to ACE on request, and which from time to time ACE provided to its clients or their agents. Run sheets recorded the fact that a waste disposal company's truck load had been disposed of to the facility and the date and time. ACE Demolition & Excavation Pty Ltd The company and relevant senior staff 14. At the times of the offences, ACE conducted civil works, such as demolition and excavation of development sites, and the transportation and disposal of waste. 15. At the times of the offences, Mr Sami Allam (Mr Allam) was the sole director and chief executive officer of ACE and had been a director since 22 January 2004. Mr Allam was the sole shareholder of ACE. 16. At the times of the offences, ACE simultaneously conducted excavation activities on an average of 25 development sites in NSW ‑ most of them in the Sydney area. ACE had an office at Regents Park. A number of people were based at the ACE office including: • Mr Allam ‑ director; • Munaf Al Sarray ‑ contract manager and/or construction manager; after Mr Allam, Mr Al Sarray was second‑in‑charge of the corporation; • Nicole Anthony ‑ office manager; • Bachar Allam ‑ truck & people allocator; • Kassem Allam ‑ machinery allocator; and • Ameer Sidawi ‑ accounts payable clerk & contracts administrator. 17. As part of his role, Mr Al Sarray: (a) had responsibility for carrying out the demolition, excavation and waste disposal projects which ACE had been awarded to the completion of their contracts, including communicating with clients; (b) had oversight of the movement of waste from construction sites to waste facilities, including coordinating where waste was sent; (c) was responsible for collecting dockets from waste facilities; for providing copies of dockets to clients and environmental consultants and ensuring that the clients received the dockets for which they asked; (d) was responsible for finishing the jobs which ACE undertook by, amongst other things, providing evidence to clients that waste anticipated to have been present on the site was lawfully disposed of; and (e) was a senior and trusted employee. The company's operations 18. ACE typically quoted to development companies (including construction companies) to conduct the demolition and excavation phases of planned development works. Those phases often included the removal from the development site of the demolition and excavation waste generated by ACE. 19. ACE entered into agreements with various waste facilities for the disposal at those facilities of waste taken from particular development sites at which ACE was generating waste. The types of waste that ACE disposed of included asbestos and ACM, PASS, GSW, ENM, VENM and recovered aggregate. 20. The system which ACE operated for the transport of waste to waste facilities was generally as follows: (a) excavator operators hired or employed by ACE excavated material from the development site concerned; (b) the excavated material was placed by the operator of an excavator either directly from the excavation or from a stockpile into a truck hired by ACE; (c) the truck drove to the exit gate of the site; (d) the gate was controlled by a traffic controller; (e) the traffic controller was told the type of the waste and the waste facility to which the truck should take the waste; (f) if he had not already been told by the allocator, the truck driver was told the destination waste facility to which the load should be taken by the traffic controller. ACE's transactions with waste facilities 21. In the period 2016‑2017, ACE disposed of excavation waste to waste facilities, including facilities operated by: (a) SUEZ ‑ including its Elizabeth Drive Landfill Facility at 1725 Elizabeth Drive, Kemps Creek, NSW (SUEZ Facility); (b) DADI ‑ including its Genesis Eastern Creek landfill and recycling facility at Kangaroo Avenue, Eastern Creek, NSW (DADI Facility); and (c) Besmaw ‑ namely its Holt Land Rehabilitation Centre, corner Lindum Road and Captain Cook Drive, Kurnell, NSW (Holt Landfill). The Holt Landfill was licensed to receive ENM including PASS. 22. The procedure to enable ACE to dispose of waste to the SUEZ Facility and the DADI Facility was that ACE already had or opened an account with the operator of the facility. The procedure included: (a) ACE provided the operator with information as to the types of waste to be disposed of for a particular job or for various types of waste it may dispose of; (b) in the case of DADI, the operator allocated an order number to the customer which described the suburb of the particular ACE job site from which material for disposal came and was then recorded on its weighbridge dockets as the "Order No."; (c) in the case of SUEZ, the operator allocated a customer reference which was a unique code referable to a particular ACE job site from which material for disposal came and was then recorded on its weighbridge dockets as the "Cust ref". 23. ACE disposed of waste to the Holt Landfill from at least 12 source development sites. Trucks carrying waste to the Holt Landfill for ACE from any source site went over a weighbridge which calculated the weight of the loads tipped and generated a docket (entitled "Tax invoice duplicate") which contained the same data as referred to in paragraph 7 above. ACE entered into an agreement with Besmaw for the acceptance of PASS at the Holt Landfill from the Wolli Creek Premises. 24. Generally, when a truck carrying waste being disposed of by ACE came to a waste facility which had a weighbridge, the truck was required to go over the weighbridge. The truck driver told the weighbridge operator that it was carrying waste for ACE. The weighbridge weighed the gross load. The truck travelled into the facility and tipped off its load (if one bin on a bogie truck) or loads (if two bins comprising a truck and dog) and returned to the weighbridge. There the weighbridge calculated the tare weight of the vehicle and recorded the net weight of the load/s. The weighbridge generated a docket (for details, see paras 6 and 7 above). Accounting for lawful disposal of waste by ACE ‑ generally 25. Typically, ACE was not required by its clients, nor did it receive requests from its clients to, provide them (or other third parties) with documentary records accounting for the volumes of material excavated and/or removed by ACE from a client's site. ACE's relationship with EI Australia 26. Environmental Investigations Australia Pty Ltd (EI Australia) provided, amongst other things, environmental engineering services for the construction and excavation waste disposal industries. 27. A director at EI Australia was Eric Gerges. 28. Generally speaking, EI Australia was retained both by ACE and by ACE's clients to conduct environmental assessments of soils and other material which were to be excavated, and of excavated material. From time to time, EI Australia / Mr Gerges were retained by ACE's clients to review dockets and reconcile them with estimates of waste to be removed which had been made before ACE started work on a site. Wolli Creek Premises Development consent, excavation contract and site investigations 29. On 13 November 2014, development approval was granted by Rockdale City Council for the demolition of existing structures and construction of two 8‑storey residential flat buildings with rooftop terrace areas and basement parking, at 40‑50 Arncliffe Street, Wolli Creek, NSW (the Wolli Creek Premises). The development approval imposed on the developer an obligation that "all excavated materials at the site must be tracked from cradle‑to‑grave and sufficient documentation provided in the validation report to allow the site auditor to check the movement and management of these materials." The development approval did not impose specific requirements as to the form or contents of the documentation to be provided. 30. Top Pacific Construction Pty Ltd (TPC), subsequently known as Top Pacific Constructions Aust. Pty Ltd (TPCA), was a construction company owned by Top Pacific Group Pty Ltd. The latter company was responsible for developing the Wolli Creek Premises. 31. TPC appointed Rodney Harwood of Arcadis Australia Pacific Pty Ltd (Arcadis) to prepare a site audit report for the Wolli Creek Premises. 32. On 9 January 2017, ACE entered into a contract with TPC to carry out excavation and remediation works at the Wolli Creek Premises. ACE was engaged to, amongst other things, excavate and dispose of material from the Wolli Creek Premises. The value of the contract was $3,600,000. 33. The excavation and remediation contract entered into between ACE and TPC for the Wolli Creek Premises included within the scope of works a requirement for ACE to undertake excavation and remediation work including "clearing of the site", "all VENM, PASS and GSW material", and "All asbestos whether above or below ground". The scope of works also included as items "all dockets" and "All coordination with Geotech and auditor". The contract did not impose specific requirements on ACE as to the form or contents of the documentation to be provided or retained by ACE. Works at the Wolli Creek Premises 34. Between January and May 2017, ACE carried out and completed the works at the Wolli Creek Premises. Zetland Premises Development consent, excavation contract and site investigations 35. On 20 January 2016, development approval was granted by the City of Sydney for the demolition of existing structures and construction of a mixed use development comprising three buildings of a scale of 9 storeys, 11 storeys and 15 storeys, each above two levels of basement car parking at 105‑115 Portman Street, Zetland, NSW (the Zetland Premises). The development approval required all waste to be removed from the site to be classified prior to removal. The consent required the developer to produce a Waste Management Plan. 36. The construction company that was responsible for developing the Zetland Premises was Westbourne Constructions Pty Ltd (Westbourne). Westbourne produced a Waste Management Plan. The Waste Management Plan required "Trucking docket records … to be kept on site to check that fill is going to the nominated landfills." The Waste Management Plan was not included in Westbourne's contract with ACE. 37. On 15 February 2017, ACE entered into a contract with Westbourne to carry out works at the Zetland Premises. The value of the contract was $19,000,000. 38. The "early works" contract entered into between ACE and Westbourne for the Zetland Premises included within the scope of works a requirement for ACE to undertake "bulk excavation" including the "removal of all excess spoil from the bulk excavation, detailed excavation, shoring wall, anchoring and piling works", the "excavation in [sic] all materials as found including but not limited to sand, clay, rock, asbestos and all other materials identified in the contract documents", and completion of "all works in strict accordance with the conditions of the development consent". It also required ACE (as subcontractor) to retain all records relating to the project and to make them available to Westbourne upon request. The contract did not impose specific requirements on ACE to obtain or retain weighbridge (or other) dockets, nor as to the form or contents of the records to be provided or retained by ACE. Works at the Zetland Premises 39. Between February and August 2017, ACE carried out and completed the works at the Zetland Premises. Offences Background to offence on 18 April 2017 40. On 25 January 2017, ACE submitted an invoice to TPC. The invoice submitted by ACE to TPC on 25 January 2017 was for, amongst other things, the excavation of 50% of ACM impacted fill. No dockets were provided with this invoice. 41. On 23 February 2017, ACE submitted another invoice to TPC. The invoice submitted by ACE to TPC on 23 February 2017 was for, amongst other things, the excavation of 100% of the ACM impacted fill. No dockets were provided with this invoice. 42. On 28 February 2017, TPC paid ACE $764,471.84 in respect of the invoice submitted on 25 January 2017. 43. On 29 March 2017, Dean Huang, a contract administrator employed by TPC, requested ACE to provide TPC with dockets for the excavation works in respect of which ACE had claimed payment. At that time, TPC indicated to ACE that further payments would only be released once further documents were provided by ACE. 44. Between 7 and 10 April 2017, TPC made further requests to ACE for TPC to be provided with dockets for the excavation works in respect of which ACE had claimed payment. At that time, TPC indicated to ACE that TPC would release payment to ACE once dockets were provided. Offence committed on 18 April 2017 45. In response to the requests from TPC for all dockets to account for the waste disposed of from the Wolli Creek Premises, Mr Al Sarray carried out alterations on PDF files containing DADI weighbridge dockets, specifically by changing the "Order No." entry on 114 genuine DADI weighbridge dockets from a suburb other than Wolli Creek to "wolli creek". 46. On 18 April 2017, Mr Al Sarray sent an email to Mr Maroun (the 18 April email) attaching, amongst other things four (4) PDF documents: (a) PDF documents named "ace demo 1.pdf" and "ace demo 2.pdf" containing scanned copies of 70 weighbridge dockets for the disposal of waste material at the SUEZ Facility (18 April SUEZ Dockets); and (b) PDF documents named "ace demo 3.pdf and ace demo 4.pdf" containing PDF files of 148 weighbridge dockets for the purported disposal of waste material from the Wolli Creek Premises at the DADI Facility (18 April DADI Dockets). 47. The 18 April email and its attachments were Exhibit H in the proceedings. 48. The 18 April email was sent to Mr Maroun by ACE and contained information about waste including the following: (a) the 18 April SUEZ Dockets which purported to be weighbridge dockets issued by SUEZ purporting to contain information in relation to the purported disposal of 70 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the SUEZ Facility; and (b) the 18 April DADI Dockets which purported to be weighbridge dockets issued by DADI purporting to contain information in relation to the purported disposal of 148 truckloads of waste material, including but not limited to soil contaminated with asbestos, from the Wolli Creek Premises to the DADI Facility. 49. The 18 April SUEZ Dockets were not issued by SUEZ in relation to the disposal of 70 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the Suez Facility. The 18 April SUEZ Dockets did not refer to "Wolli Creek". Instead, the customer reference was recorded as "H57" and, in one instance, "H57 TERRY HILLS". The 18 April SUEZ Dockets were misleading because the corresponding waste disposed of by ACE at SUEZ had come from a job site at Terrey Hills, not the Wolli Creek Premises, and for a builder who was not TPC. The customer reference "H57" referred to the ACE job reference number for a site at Terrey Hills. 50. With the exception of eight (8) of the 18 April DADI Dockets, the remaining one hundred and forty (140) 18 April DADI Dockets were not weighbridge dockets issued by DADI in relation to the disposal of 140 truckloads of waste material from the Wolli Creek Premises to the DADI Facility. Of the 18 April DADI Dockets: (a) 114 weighbridge dockets were false, having been physically altered to say "wolli creek" next to "Order No." where the genuine weighbridge dockets had a different location, indicating that the waste disposed of in fact came from a different job site to the Wolli Creek Premises. (b) 26 weighbridge dockets were misleading, having been issued by DADI in relation to waste disposed of from ACE job sites at Auburn, Lidcombe, Olympic Park, Regents Park, Waterloo and Westmead (not Wolli Creek), and having been represented by ACE as being weighbridge dockets which related to waste disposed of from the Wolli Creek Premises. These 26 misleading weighbridge dockets were not physically altered. 51. The 18 April email was sent to Mr Maroun in the course of ACE dealing with the waste. 52. At the time of sending the 18 April email, Mr Al Sarray knew, and so ACE knew, that the 18 April SUEZ Dockets were misleading in the way set out at paragraph 49; that 114 of the 18 April DADI Dockets were false and that 26 of the 18 April DADI Dockets were misleading in the way set out at paragraph 50. 53. Mr Al Sarray had intended that all the weighbridge dockets he sent would satisfy Mr Maroun's requirement for ACE to supply Top Pacific with dockets for the waste which ACE had disposed of from the Wolli Creek site. 54. On 21 April 2017, TPC paid ACE $1,066,044.50. Offence committed on 2 June 2017 55. On 2 June 2017, Mr Al Sarray sent an email to Glen Allen, a construction manager employed by Westbourne (the 2 June email), attaching, amongst other things: (a) PDF documents named "suez.pdf" and "suez2.pdf" containing scanned copies of 70 weighbridge dockets for the disposal of waste at the SUEZ Facility (2 June SUEZ Dockets); and (b) a PDF document named "dadi_tip summary_zetland.pdf" containing PDF files of 147 weighbridge dockets for the purported disposal of waste from the Zetland Premises at the DADI Facility (2 June DADI Dockets). 56. The 2 June email and its attachments were Exhibit AW in the proceedings. 57. The 2 June email was sent to Mr Allen by ACE and contained information about waste including the following: (a) the 2 June SUEZ Dockets which purported to be weighbridge dockets issued by SUEZ purporting to contain information in relation to the purported disposal of 70 truckloads of soil contaminated with asbestos from the Zetland Premises to the SUEZ Facility; and (b) the 2 June DADI Dockets which purported to be weighbridge dockets issued by DADI purporting to contain information in relation to the purported disposal of 147 truckloads of soil contaminated with asbestos, from the Zetland Premises to the DADI Facility. 58. The 2 June SUEZ Dockets were not issued by SUEZ in relation to the disposal of 70 truckloads of soil contaminated with asbestos from the Zetland Premises to the Suez Facility. The 2 June SUEZ Dockets did not refer to "Zetland". Instead, the customer reference was recorded as "H57" and, in one instance, "H57 TERRY HILLS". The 2 June SUEZ Dockets were misleading because the corresponding waste disposed of by ACE at SUEZ had come from a job site at Terrey Hills, not the Zetland Premises. The customer reference "H57" referred to the ACE job reference number for a site at Terrey Hills. 59. The 2 June SUEZ Dockets were copies of the same weighbridge dockets which were attached as the 18 April SUEZ Dockets to the 18 April email. 60. With the exception of thirteen (13) of the 2 June DADI Dockets, the remaining one hundred and thirty‑four (134) 2 June DADI Dockets were not weighbridge dockets issued by DADI in relation to the disposal of 134 truckloads of soil contaminated with asbestos from the Zetland Premises to the DADI Facility. These 134 2 June DADI Dockets were false, having been physically altered to say "Zetland" next to "Order No." where the genuine weighbridge dockets had a different location, indicating that the waste disposed of in fact came from a different job site to the Zetland Premises. 61. The email was sent to Mr Allen in the course of ACE dealing with the waste. 62. At the time the 2 June email was sent, Mr Al Sarray knew, and so ACE knew, that the 2 June SUEZ Dockets were misleading in the way set out at paragraph 58; and that 134 of the 2 June DADI Dockets were false in the way set out at paragraph 60. 63. Between 16 June 2017 and 7 December 2018, Westbourne paid ACE $13,755,588.30 (excluding GST). $10,092,500.00 of this amount was paid to ACE for bulk excavation and removal of spoil. Offence committed on 12 June 2017 64. On 12 June 2017, an email was sent from ACE to Eric Gerges of EI Australia (the 12 June email), attaching amongst other things: (a) a document listing details regarding 80 loads, or 2,415.97 tonnes, of waste material (the First Holt Run Sheet); (b) a letter from Besmaw stating that 2,415.97 tonnes of VENM was received by Besmaw; (c) two PDF documents called "Wolli Creek Asbestos Dockets" and "ace demo 3" containing 153 weighbridge dockets for the purported disposal of waste material at the DADI Facility (12 June DADI Dockets); (d) an excel spreadsheet titled "Wolli Creek Summary", which included 95 weighbridge docket reference numbers and associated information for the purported disposal of waste from the Wolli Creek Premises (DADI Spreadsheet); (e) a PDF called "ace demo 1" containing scanned copies of 48 weighbridge dockets for the disposal of waste at the SUEZ Facility (12 June SUEZ Dockets); and (f) an excel spreadsheet named "ACE 130217 to 300317", which included 70 weighbridge docket reference numbers and associated information for the disposal of waste at the SUEZ Facility (SUEZ Spreadsheet). 65. The 12 June email and its attachments were part of Exhibits BO and BQ in the proceeding. 66. The email sent to Mr Gerges on 12 June 2017 was an email sent by ACE which contained information about waste including the following: (a) the 12 June DADI Dockets which purported to be weighbridge dockets issued by DADI purporting to contain information in relation to the purported disposal of 153 truckloads of waste material, including but not limited to soil contaminated with asbestos, from the Wolli Creek Premises to the DADI Facility; (b) the DADI Spreadsheet which purported to contain information in relation to the purported disposal of ninety‑five (95) truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the DADI Facility; (c) the 12 June SUEZ Dockets which purported to be weighbridge dockets issued by SUEZ and purporting to contain information in relation to the purported disposal of 48 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the SUEZ Facility; (d) the SUEZ Spreadsheet which purported to contain information in relation to the purported disposal of seventy (70) truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the SUEZ Facility. 67. With the exception of twelve (12) of the 12 June DADI Dockets, the remaining one hundred and forty one (141) were not weighbridge dockets issued by DADI in relation to the disposal of 141 truckloads of waste material from the Wolli Creek Premises to the DADI Facility. Of the 12 June DADI Dockets, (a) 134 were false, having been physically altered to say "wolli creek" next to "Order No." where the genuine weighbridge dockets had a different location, indicating that the waste disposed of in fact came from a different job site to the Wolli Creek Premises. (b) 7 were misleading, having been issued by DADI in relation to waste disposed of from ACE job sites other than the Wolli Creek Premises (being Lidcombe, Regents Park, Waterloo and Westmead, as identified by the location next to the words "Order No."). and having been represented by ACE as being weighbridge dockets which related to waste disposed of from the Wolli Creek Premises. These 7 misleading weighbridge dockets were not physically altered. 68. The DADI Spreadsheet contained false information, because 89 of the 95 truckloads of soil contaminated with asbestos referred to in the spreadsheet related to waste disposed of by ACE at the DADI Facility from job sites other than the Wolli Creek Premises. 69. The 12 June SUEZ Dockets were not issued by SUEZ in relation to the disposal of 48 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the Suez Facility. The 12 June SUEZ Dockets did not refer to the words "Wolli Creek" but instead referred to "H57" and, in one instance, "H57 TERRY HILLS" as the customer reference. The 12 June SUEZ Dockets were misleading because the corresponding waste disposed of by ACE at SUEZ had come from a job site at Terrey Hills, not the Wolli Creek Premises. The customer reference "H57" referred to the ACE job reference number for a site at Terrey Hills. 70. The SUEZ Spreadsheet was misleading because the 70 docket reference numbers and associated information contained in it related to waste disposed of by ACE from Terrey Hills, not the Wolli Creek Premises. 71. The 12 June SUEZ Dockets were the same as copies of 48 of the weighbridge dockets attached as part of the 18 April SUEZ Dockets to the 18 April email and as part of the 2 June SUEZ Dockets to the 2 June email. 72. The majority of those 12 June DADI Dockets were copies of the same weighbridge dockets which were attached as the 18 April DADI Dockets to the 18 April email. 73. The 12 June email was sent to Mr Gerges in the course of ACE dealing with the waste. 74. On 20 June 2017, Mr Gerges emailed the 12 June DADI Dockets, DADI Spreadsheet, 12 June SUEZ Dockets and SUEZ Spreadsheet to Mr Maroun. 75. On 21 June 2017, Mr Maroun emailed the 12 June DADI Dockets, DADI Spreadsheet, 12 June SUEZ Dockets and SUEZ Spreadsheet to Craig Wellings of Arcadis and copied Mr Harwood into this email. Background to the 2 December 2017 offence 76. TPC asked ACE to provide TPC with dockets for the excavation works which ACE had undertaken at the Wolli Creek Premises. 77. Before the commission of the 2 December 2017 offence, Mr Al Sarray had access to the First Holt Run Sheet, which was genuine and had previously been provided by Besmaw to ACE under cover of an invoice. Offence committed on 2 December 2017 78. In response to the pressure put on ACE by TPC to provide documentation, Mr Al Sarray created an electronic document by altering the First Holt Run Sheet referred to above at paragraph 64(a) and inserting information relating to disposal of waste by ACE from a number of job sites other than Wolli Creek, including Burwood, Gordon, Sydney Olympic Park and Macquarie Park. Mr Al Sarray named the PDF file he created as "Wolli Creek Summary" (Second Holt Run Sheet). 79. Mr Al Sarray gave the Second Holt Run Sheet to Mr Sidawi to send to "whoever was asking for it". 80. On 2 December 2017, Mr Sidawi (acting on the instruction from Mr Al Sarray to do so and without knowledge that the Second Holt Run Sheet had been created by Mr Al Sarray) emailed Mr Gerges attaching the Second Holt Run Sheet. By this email, Mr Al Sarray sent the information "through Ameer (Sidawi)". 81. The 2 December email and its attachments were Exhibit AN in the proceeding. 82. The Second Holt Run Sheet purported to be created by Besmaw and purported to contain information in relation to the purported disposal six hundred and twenty‑two (622) truckloads of waste material from the Wolli Creek Premises that had been disposed of by ACE at the Holt Landfill. 83. The Second Holt Run Sheet was false because it was not created by Besmaw although it purported to be, and the 622 truckloads referred to in the document were not related to the disposal of waste material from the Wolli Creek Premises to the Holt Landfill; instead they related to disposal of waste from a number of ACE job sites other than Wolli Creek, including Burwood, Gordon, Sydney Olympic Park and Macquarie Park. 84. The only loads of waste which ACE had taken from the Wolli Creek Premises to the Holt Landfill for disposal between 1 March 2017 to 30 June 2017 were the 80 loads on the dates 19 to 22 April 2017 inclusive listed in the First Holt Run Sheet which was sent to Mr Gerges of EI Australia in the 12 June email. 85. The 2 December email was sent to Mr Gerges in the course of ACE dealing with the waste. 86. At the time of the 2 December email being sent, Mr Al Sarray knew, and so ACE knew, that the Second Holt Run Sheet was false in the way set out at paragraphs 84‑85 above 83. Mr Sidawi was not aware of this at the time he sent his email of 2 December 2017. 87. On 4 December 2017, Mr Gerges sent an email to Mr Harwood, and the other member of his audit firm who had been present at the 10 November 2017 meeting, a copy of the Second Holt Run Sheet. Circumstances of the Offending 88. Mr Al Sarray was charged with and convicted of two counts of contravening s 144AA(2) of the POEO Act in respect of the same underlying conduct that is the subject of these sentencing proceedings (for the sending of the 18 April 2017 and 2 June 2017 emails). 89. Mr Al Sarray sent the documents attached to those emails, and caused the sending of the document attached to the emails of 2 December 2017: (a) to satisfy TPC and Westbourne and/or their auditors who were requesting weighbridge dockets recording the removal of material from the Zetland and Westbourne Premises in line with the volumes that had been assessed as being present at the Zetland and Westbourne Premises; (b) to provide weighbridge dockets to ACE's clients as evidence of ACE disposing of the quantities of waste from the Zetland Premises and the Wolli Creek Premises that matched the quantity of waste identified during waste classification activities as requiring removal from the two sites; and (c) to placate clients it considered to be "high risk" of avoiding making progress claim payments to ACE as and when they fell due. Mr Al Sarray's Personal Circumstances 90. Mr Al Sarray suffers from Post Traumatic Stress Disorder arising out of his experiences in the Iraq War. 91. Mr Al Sarray came to Australia as a refugee seeking protection. Consequences of the Offending 92. There is no evidence that the offences caused any actual harm to the environment. ACE's Early Offer to Plead Guilty to the Offences 93. On 9 June 2021, the Defendant wrote to the EPA in the following terms: In the interests of both parties avoiding a lengthy, time‑consuming and expensive trial process, we are instructed to make the following offer on a without prejudice basis: "1. ACE Demolition & Excavation Pty Ltd (ACN 107 709 151) (ACE Demolition) will plead guilty to one of the most serious charges against it (the principal offence), with the other three charges to be noted on a list of additional charges to the principal offence pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the further offences). For this purpose: (a) the Environment Protection Authority (EPA) will identify which charge of the charges the subject of proceedings 2020/357465, 2020/357466 and 2020/357468 will be the principal offence; and (b) ACE Demolition will admit guilt to the further offences and indicate to the court that it wants the court to take the further offences into account in dealing with ACE Demolition for the principal offence. 2. As a result of the pleas outlined at paragraph 1, the EPA will withdraw the charges against Sami Allam personally (being the charges the subject of proceedings 2020/357475, 2020/357476, 2020/357477 and 2021/78283); and 3. ACE Demolition will not resist an order that it pay some or all of the EPA's investigation costs (subject to the amount of those costs which is to be advised by the EPA). Please let us know as soon as possible whether this offer is acceptable to the EPA, or whether the EPA has some other proposal that it would regard as an acceptable plea arrangement." 94. That offer was rejected by the EPA on 22 June 2021.

Relevant Statutory Provisions Introduction

As earlier noted, the charges brought by the Prosecutor against the Company are for breaches of provisions of the POEO Act. The relevant provisions of the POEO Act are set out below. The relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) are set out following those of the POEO Act.
Relevant provisions of the Environmental Planning and Assessment Act 1979 (the EPA Act), Criminal Procedure Act 1986 (the Criminal Procedure Act); the Fines Act 1996 (the Fines Act) and the Protection of the Environment Operations (Waste) Regulation 2014 (the Waste Regulation) are also discussed but do not need to be reproduced.

The POEO Act provisions

The first relevant provision of the POEO Act is s 3, the provision which sets out the objects of the Act. This provision is in the following terms: 3 Objects of Act The objects of this Act are as follows - (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, (b) to provide increased opportunities for public involvement and participation in environment protection, (c) to ensure that the community has access to relevant and meaningful information about pollution, (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, (iii) the reduction in the use of materials and the re‑use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, (g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001.
The second relevant provision is s 144AA of the POEO Act, the provision pursuant to which the charges had been laid against the Company, as had the (now withdrawn) charges been laid against Sami. That provision was in the following terms during 2017, the year when the Company's offending conduct took place: 144AA False or misleading information about waste (1) A person who supplies information about waste to another person in the course of dealing with the waste, being information that is false or misleading in a material respect, is guilty of an offence. It is a defence in any proceedings against a person for an offence under this subsection if the person establishes that the person took all reasonable steps to ensure that the information was not false or misleading in a material respect. Maximum penalty - (a) for a corporation - $250,000, or (b) for an individual - $120,000. (2) A person who supplies information about waste to another person in the course of dealing with the waste, being information that the person knows is false or misleading in a material respect, is guilty of an offence. Maximum penalty - (a) for a corporation - $500,000, or (b) for an individual - $240,000 or imprisonment for 18 months, or both. (2A) …. (2B) …. (3) In this section, information is taken to be supplied to a person in the course of dealing with waste if it is supplied - (a) in the course of an activity relating to the sale or disposal of waste, or (b) in the course of an activity relating to the storage, transport, handling, deposit, transfer, processing, recycling, recovery, re‑use or use of the waste. (4) In this section, information about waste means information about any of the following - (a) the type, classification, characteristics, composition or quantity of the waste, (b) the actual or proposed storage, transport, handling, deposit, transfer, disposal, processing, recycling, recovery, re‑use or use of the waste, (c) the hazards or potential harm to the environment or human health associated with the waste or an activity referred to in paragraph (b). (5) In this section, information includes a record containing information. (5A) In this section, supply information includes cause or permit information to be supplied. (6) Proceedings for an offence against this section may be instituted only by the EPA.
The third relevant provision of the POEO Act is s 169C. This provision permits the conduct of an employee of a corporation to be attributed to the corporation. This provision is in the following terms: 169C Evidence as to state of mind of corporation (1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind. (2) In this section, the state of mind of a person includes - (a) the knowledge, intention, opinion, belief or purpose of the person, and (b) the person's reasons for the intention, opinion, belief or purpose.
The fourth element of the POEO Act requiring consideration is s 241, a provision in the following terms: 241 Matters to be considered in imposing penalty (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.
The fifth element of the POEO Act requiring consideration is s 250(1)(a), a provision in the following terms: 250 Additional orders (1) Orders The court may do any one or more of the following - (a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person,
It is to be noted that the Prosecutor seeks such an order in these proceedings and the Company opposes the making of that order.
The final section of the POEO Act requiring to be noted is s 253A, the provision relating to enforceable undertakings. The provision is in the following terms: 253A Enforcement of undertakings The EPA may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the EPA has a function under this Act.
It is also appropriate to note the definition of "harm" contained in the Dictionary to the POEO Act. This definition is in the following terms: 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. The Crimes (Sentencing Procedure) Act 1999
A number of provisions of the Sentencing Procedure Act require consideration. The first of these is s 3A, the provision that sets out the objects of the Act, explaining the purposes for which sentencing is undertaken. This provision is in the following terms: 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.
The second elements of the Sentencing Procedure Act are those contained in s 21A of that Act, which are relevant to the offending conduct or to the circumstances of the Company. The provision contains, in s 21A(2), those elements which can, if proved beyond reasonable doubt, give rise to a finding that the offending conduct was carried out in circumstances of aggravation. It is to be noted that the Prosecutor does not submit that there are any factors of aggravation arising with respect to the offences to which the Company has pleaded guilty.
The provision also contains, in s 21A(3), a range of subjective factors potentially applicable to the Company that require to be considered (if relevant). The relevant elements of s 21A(3) are set out below: 21A Aggravating, mitigating and other factors in sentencing (1) ... (2) … (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) ..., (c) ..., (d) ..., (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re‑offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), (j) ..., (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), (l) ... (m) assistance by the offender to law enforcement authorities (as provided by section 23), (n) ...
The third element of the Sentencing Procedure Act engaged by these proceedings is s 22, a provision which mandates that I have positive regard to the entry by the Company of its guilty pleas and such utilitarian value that the entry of those pleas has had for the administration of justice. This provision is in the following terms: 22 Guilty plea to be taken into account for offences not dealt with on indictment (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. (2) ... (3) ... (4) ... (5) … The Criminal Procedure Act 1986
The costs‑ordering provisions contained in ss 257B and 257G of the Criminal Procedure Act are engaged in order to permit me to order that the Company is to pay the Prosecutor's costs of these proceedings. It is not necessary to reproduce the terms of any provisions of this legislation; it is sufficient to note that they provide a proper statutory foundation for me to make an appropriate costs order. The Fines Act 1996
Section 122 of the Fines Act permits me to order that a moiety (50%) of any fines which I impose on the Company is required to be paid to the Prosecutor. It is not necessary to reproduce the terms of the provision, it is sufficient to note its effect. The maximum penalties for the offences
The maximum penalty for the breach of s 144AA(1) of the POEO Act (as at the date of the single offence against this provision) was $250,000 for a corporation, whilst the maximum penalty for the breach of s 144AA(2) of the POEO Act (as at the dates of the three offences against this provision) was $500,000 for a corporation and $250,000 and/or 18 months' imprisonment for an individual (this latter element being relevant, as later discussed).
The maximum available penalty is to be taken as being the legislature's understanding and reflection of contemporary community standards concerning the offences involved (Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 at [33]). The size of the penalty also "indicates the gravity of the offence as perceived by the community": Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (Camilleri's Stock Feeds) at 698.
The maximum penalty is significant in determining the objective seriousness of the offence: Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 at [57]. The maximum penalty demonstrates the seriousness with which the offence charged is viewed (Camilleri's Stock Feeds also at 698).

The hearings

The hearings for the first phase (being those when liability for the charges pursuant to s 144AA(2) of the POEO Act laid against the Company and the executive liability charges laid against Sami remained in contest) were carried out over eight days commencing on 25 July 2022 and concluding on 3 August 2022.
The subsequent sentencing hearing, which took place after the events earlier noted at [12], was held on 23 August 2022.

Representation

The Prosecutor was represented by Mr D Buchanan SC and Ms F Graham, barrister and the Company by Mr J Potts SC and Ms K Morris, barrister.

The written submissions

Comprehensive written submissions on sentence were provided for the Prosecutor and for the Company. Each of the oral submissions from the Prosecutor and Mr Potts referenced not only their own written submissions but also those of the other side. During the course of written or oral submissions, the identifiers of PWS (Prosecutor's written submissions) and DWS (Defendant's written submissions) were used. These expressions appear in elements of the written submissions or of the transcript of the sentencing hearing later quoted.

The documentary evidence

The Prosecutor provided, on a USB thumb drive, an electronic copy of the Court Book for the liability hearing. This electronically provided material was extensive and, in a number of instances, incorporated affidavits in terms which were subject to objections on behalf of the (then two) Defendants. Some of the objections to the affidavits were resolved by discussions between the legal representatives whilst a limited range of objections required to be determined by me prior to the formal reading of any affidavit. It is to be noted that redacted electronic copies of each affidavit were subsequently provided with the redactions reflecting the agreed or determined outcomes of objections to any elements of that affidavit.

Oral evidence in the first phase by employees of the Company

A number of employees of the Company were subpoenaed by the Prosecutor to attend and give oral evidence during what had (then) been the liability hearing. Those subpoenaed who gave oral evidence were: 1. Ms Nicole Anthony, the Company's Administration Manager. She gave evidence on the morning of the third day of the liability hearing. Ms Anthony has been employed by the Company for nearly 20 years (in its current incorporated form and, in its early days, as an unincorporated business operated by Sami from his home); 2. Mr Ameer Sidawi, a contract administrator with the Company. Mr Sidawi had been employed by the Company for 10 years. Mr Sidawi objected to giving evidence on the basis that his answers might, potentially, be incriminating. Mr Sidawi was directed to answer questions but he was given a protective certificate pursuant to ss 128(7) and 128A(8) of the Evidence Act 1995 (the Evidence Act) with respect to his oral evidence. Mr Sidawi also gave evidence on the third day of the liability hearing; and 3. Mr Munaf Al Sarray, a contract administrator and construction manager employed by the Company, gave evidence on the fourth, fifth and seventh days of the liability hearing. Mr Al Sarray was Mr Sidawi's manager during 2017, the period giving rise to the charges against the (then two) Defendants. Mr Al Sarray has been employed by the Company for about 14 years. Mr Al Sarray also objected to giving evidence on the basis that his answers might, potentially, be incriminating. Mr Al Sarray was directed to answer questions but he was also given a protective certificate pursuant to ss 128(7) and 128A(8) of the Evidence Act with respect to his oral evidence. It is to be noted that Mr Al Sarray had been convicted on 31 March 2022 by Duggan J (Environment Protection Authority v Al‑Sarray [2022] NSWLEC 31) of two offences pursuant to s 144AA(2) of the POEO Act. As a result, Mr Al Sarray was fined $135,000 for each offence and ordered to publish a notice in Inside Waste magazine, a notice outlining the nature of his convictions and the penalties imposed on him. The conduct giving rise to these convictions (offences to which Mr Al Sarray had pleaded guilty) was that providing the foundation for the charges against the Company arising from provision of false and misleading information on 18 April 2017 and 2 June 2017.

The carried forward first phase evidence

The evidence proposed to be relied upon for the Prosecutor and the Company as being carried forward from the liability hearing was provided to me in schedules from each party. Each of the schedules listed the documents or transcript references relied upon by that party. It is to be noted that, during the sentencing hearing, I was taken to little of this carried‑forward material, but the written submissions on behalf of each of the parties extensively footnoted references to the material.

The additional evidence for sentencing

Three additional affidavits were relied upon for the purposes of the sentencing hearing. On behalf of the Company, affidavits were read (without objection) from: 1. Ms Nicole Anthony, the Company's Administration Manager whose further affidavit was deposed on 16 August 2022. Ms Anthony was not required for cross‑examination on this further affidavit. Elements of her affidavit are later cited; and 2. Mr George Pasas, a solicitor employed by the Company's legal representatives. Mr Pasas' affidavit was deposed on 16 August 2022. Elements of his affidavit are also later cited. Mr Pasas was also not required for cross‑examination.
Both parties sought to rely on elements of an affidavit of Ms Melissa Porter (deposed on 16 March 2020). Ms Porter was a site auditor employed on the Westbourne site. The elements of Ms Porter's affidavit which became evidence for the purposes of the sentencing hearing were paragraphs 1, 2, 5, 7, 9 and 10. Ms Porter was not required for cross‑examination. These paragraphs are, as a matter of caution, reproduced below: Background 1 I am a·Principal of Senversa Pty Ltd (Senversa). Senversa provides contaminated land and environmental auditing services and environmental and geotechnical engineering services. I have been employed by Senversa since 2017. 2 I have over 20 years' experience in contaminated land assessment, remediation and management. I am accredited by the NSW Environment Protection Authority (EPA) as a site auditor under the Contaminated Land Management Act 1997 (the CLM); NSW EPA Accreditation Number 0803. I hold a Bachelor of Applied Science, Geography, from the University of New South Wales. (Heading omitted) … … Engagement of Senversa as Site Auditor for the Zetland Premises 5 On 20 March 2017, I was formally engaged on behalf of Westbourne Constructions Pty Ltd (Westbourne), as the auditor of its contaminated site assessment for a 0.8489 ha parcel of land located at the Zetland Premises. 6 … 7 As the auditor I was engaged to prepare a Site Audit Report (SAR) for the Zetland Premises to form the basis and rationale for conclusions drawn in a Site Audit Statement (SAS). The audit was not a requirement of the development consent and was non‑statutory. Documents Provided 8 … 9 On 25 July 2018, Emmanuel Woelders of El Australia emailed me a link to the draft 'Waste Classification and Management Summary Letter, Areas 12A & 128, 105‑115 Portman Street, Zetland NSW', dated 24 July 2018 by El. This report was provided to me as part of the audit process. A copy of the email and document contained within the link is saved to a USB behind Tab 1 of MP‑01 and titled 'Tab 1 ‑ Waste Classification and Waste Summary Report'. Site Audit Report and Site Audit Statement 10 Following completion of the audit process, I completed the SAR titled 'Site Audit Report ‑ Redevelopment Plots 12A & 128, Green Square, Zetland' and dated 19 July 2019, for the Zetland Premises. A copy of the SAR dated 19 July 2019 is behind Tab 2 of MP‑01.
It is not necessary to reproduce anything from the documents referenced in the above reproduced extract.

Harm to regulatory schemes established by Parliament

Introduction

Failure to comply with the requirements of a regulatory regime established by statute tends to undermine the objects of that statutory regime. This is a truth of broad application, whether to the scheme of planning and development control established pursuant to the EPA Act or the regulatory regime for waste established by the Waste Regulation.
The necessary intention of the Parliament, in establishing any regulatory regime of the types cited above, is clearly to ensure regularity, consistency of standards, and public supervision of the activities encompassed. Compliance is mandatory and not discretionary for those whose activities that are so regulated.
Failure to comply with such a regulatory regime undermines public confidence in the integrity of that scheme.
In this context, it is to be observed that I am satisfied that there are two separate heads of consideration on this topic.
The first is to what extent the offending conduct has undermined the validity of the regulatory scheme established under the POEO Act for addressing the disposal and transportation of waste. This regime is established by the Waste Regulation.
The second regulatory regime undermined by this offending conduct is that established by Pt 4, Div 4.15 of the EPA Act where conditions attached to development consents, particularly for major projects generating significant volumes of waste (whether by demolition or excavation being irrelevant), are required to account for the transportation and disposal of such waste.
It is to be noted that undermining a regulatory regime can, by itself, constitute an element of harm for criminal sentencing purposes (Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9 ‑ Budvalt).

Undermining of the waste regulatory framework

Falsifying documents concerning the transportation and disposal of waste in the fashion which has here arisen means that it is not possible to know accurately the nature of the waste removed from the Top Pacific and Westbourne sites. It is also not known whether or not that waste was, as a consequence of the classification system for waste identification established by the Waste Regulation, disposed of by meeting any mandated disposal method for that waste.
In addressing this issue, I am not to be taken to be speculating as to what might have been the classification of the content of any of the waste actually disposed of by the Company from either the Top Pacific or Westbourne sites. What I am addressing is the falsification of the documentation that underpins each of the four charges (it not mattering for this purpose which of the elements of s 144AA is the foundation for the charge). It is the undermining of the Waste Regulation by the absence of accurate knowledge that causes harm to the integrity of the regulatory regime established by the Waste Regulation.
Whilst I do not draw any inference, whatsoever, that these breaches occasioned actual environmental harm (a position that is also accepted by the Prosecutor), the harm is the damage to the regulatory regime itself.
Mr Al Sarray's conduct in carrying out three falsifications, together with the fourth element of falsification (where there is no mental element founding the charge ‑ as the person who caused the transmission of the falsification of the information is unknown ‑ but to be inferred, as later discussed, also to be Mr Al Sarray), meant that harm to the environment, in the absence of proper waste reporting information as otherwise required by the Waste Regulation, was potentially caused by those falsification activities that arose from the waste generated from either the Top Pacific or the Westbourne sites.
In this context, I note that Mr Potts conceded that the actions involving the falsification of the information did cause harm to the regulatory regime (Transcript 23 August 2022, page 489, lines 32 to 46): Our submissions were, frankly, more geared towards what we apprehended to be submissions put by the prosecution about the possibility of harm to the environment, and I'll come to that in due course, but I just want to make it very clear at the outset we don't suggest that, by sending these four emails, which, admittedly, contained information about waste that was misleading or false in a material respect, and, in three cases, doing it knowingly, through the knowledge of Mr Al Sarray, we don't suggest that had no consequence for the regulatory environment. We don't suggest that our clients Top Pacific and Westbourne weren't misled. We don't suggest it didn't go to the site auditors, who used it in some way. Our submissions in relation to consequence are more specific and pointed, and I'll come to them in a moment, but I just want to make that very clear at the outset, so that your Honour's not misled into thinking we make a submission that we don't.
I am satisfied, in this context, that the harm caused to the regulatory system for the transportation and disposal of waste is significant but not to the extent of constituting a factor of aggravation for the purposes of s 21A(2) of the Sentencing Procedure Act.

Undermining of the development control framework

I now turn to the question of how the extent to which the Company's offending conduct created a risk of undermining the regime for development consent and development control established under the EPA Act is to be characterised for present purposes.
During the course of his cross‑examination, Mr Al Sarray was questioned as to his understanding as to why clients of the Company (here, relevantly, Top Pacific and Westbourne) sought to be provided with documents demonstrating where waste from their construction sites had been disposed of and the quantity and recorded nature of the waste involved. The elements of the transcript of his evidence on this point are reproduced below (Transcript 28 July 2022, page 206, lines 1 to 49): PROSECUTOR: Did you understand that developers had council approval for the developments they carried out? A. Yes, they did. Yep. Q. And did you have an understanding of whether those approvals had conditions in them? A. Not to the extent that I know the exact conditions, but I understand there is a development application or there's a consent and there are conditions in it. Q. Did you understand whether there were conditions, generally speaking, in developer clients council approvals, in relation to the disposal of waste? A. Not in this particular case, but yeah, sometimes I see them in the DA's. I can't remember if it was mentioned for this site, and the consent or the development application conditions. Q. Have you heard of an occupation certificate? A. Yes. Q. What did you understand in 2017, an occupation certificate was? A. This ‑ the question's is a little bit difficult. A occupation certificate, it means people can occupy the building. That's my understanding to it. Q. And what was your understanding as to who issued an occupation certificate? A. The occupation certificate issued to the builder; I think. Yep. Q. Yes, by whom? A. By the council maybe. Q. Did you have an understanding as to the relationship, if any, between a failure of a developer to satisfy a development consent condition and whether they got an occupancy certificate? A. Sorry, can you repeat the question, please? Q. Yes. Did you understand whether there was a relationship between a developer satisfying the conditions of its development consent on the one hand, and whether it got an occupation certificate from the council? A. It's ‑ I mean, the two parts of the question meant the same thing to me. Can you explain more, please? My apologies. Q. I don't want to suggest the answer to you, what I wanted to ask you is, what do you mean by they mean the same thing? What's your understanding? The fact that they mean the same thing. A. My understanding, the occupation certificate is something the council issues to a builder saying, okay, you met all the requirements we mentioned, and it's okay for humans to settle in the building. Q. And you had that understanding in 2017? A. Yes, I did.
This evidence does not establish that, for Top Pacific or Westbourne, Mr Al Sarray had positive knowledge that either company specifically was requesting provision of the waste disposal documentation in order to satisfy a condition of that company's development consent for the project for which the Company was providing services. However, I am satisfied that Mr Al Sarray knew that such documentation might be required for the purposes of satisfying a condition imposed as part of the granting of approval for a proposed development and that he was prepared to provide falsified waste disposal documentation even if it was to be used for discharging obligations that had been imposed on a developer as a requirement of a statutory obligation on that developer arising from the operation of s 4.17 of the EPA Act.
For present purposes, it is also to be made clear that I am not making a positive finding that those circumstances actually arose with respect to the provision of falsified information to either Top Pacific or Westbourne as occurred on 18 April 2017 or 2 June 2017; or 2 December 2017 (being the dates of the three breaches of s 144AA(2) here involved).
However, the conclusion inevitably to be drawn from Mr Al Sarray's evidence, reproduced above, is that he (and therefore the Company) paid no heed to the necessity to provide truthful information to a client where such information may have been necessary for the purposes of satisfying a statutory requirement, where that requirement arose not by virtue of the operation of the POEO Act, but by virtue of the operation of the EPA Act.
This aspect of Mr Al Sarray's conduct clearly gave rise to the risk of significant harm to the regulatory regime established for development approvals given by virtue of the operation of Div 4.3 of Pt 4 of the EPA Act and that the possibility of such harm arising was entirely foreseeable.
In reaching this conclusion as to the risk of significant undermining of the regulatory regime for development approval, I am expressly not drawing the conclusion that this actually occurred for any of the s 144AA(2) charges to which the Company has pleaded guilty. On the evidence, such a conclusion is not available.
However, Mr Al Sarray's conduct in falsifying the material underpinning these three charges did have the potential effect of significantly undermining that aspect of the regulatory regime established by the EPA Act. This is of particular importance in circumstances where the Company was dealing with the removal and disposal of waste where that waste may have been required (as a consequence of how the composition of that waste was to be classified) to be handled in a specified fashion set by the Waste Regulation. There was also the possibility that a more regulated disposal process was required by, and needed to be accounted for, pursuant to a condition of development consent.
In making this observation, I also expressly note that I am not making that observation concerning the composition of any of the waste removed from either the Top Pacific or Westbourne sites. Instead, I find merely that Mr Al Sarray's actions clearly demonstrated preparedness to pay no heed to the necessity to provide valid and truthful waste disposal documentation to assist clients in their compliance with their regulatory obligations pursuant to the EPA Act.
I am satisfied, in this context, that the harm caused to the regulatory system for the transportation and disposal of waste, as addressed in a development control framework, is also significant but also not to the extent of constituting a factor of aggravation for the purposes of s 21A(2) of the Sentencing Procedure Act.

Sentencing factors to be considered as mandated by the POEO Act

Introduction

I have earlier set out the terms of s 241 of the POEO Act, being the provision that sets out the matters which I am required to consider when imposing a penalty on the Company for its offending conduct.
For the purposes of addressing matters mandated by s 241(1) of the POEO Act, it is to be observed that the first four of those listed require consideration. I have earlier set out the nature of the harm arising to the regulatory regimes under the POEO Act and the EPA Act arising from the offending conduct of the Company. With respect to each of those harms, I have explained why they constitute an adverse impact of significance (but not to the extent necessary to constitute a factor of aggravation for the purposes of s 21A(2) of the Sentencing Procedure Act).
I also set out in some detail later, as it is relevant to the nature of the practical measures which the Company might take that are relevant to s 241(1)(b) of the POEO Act, those matters arising from the limited implementation measures actually undertaken (from amongst the broader range of measures proffered by the Company in its proposed enforceable undertakings). There is no doubt that, on the basis of my later consideration of Ms Anthony's evidence, I am satisfied that the Company has taken a range of practical measures to ensure that the harm arising from the offending conduct, for which it is being sentenced, is less likely to occur in the future.
Whilst those measures will not be ones of perfection, I am satisfied that, at least to some extent, some appropriate prevention and mitigation measures have been taken by the Company. However, as is demonstrated by the bringing of these proceedings, there will need to be considerable care taken by the Company to ensure that there is no further deliberate or inadvertent breach of the POEO Act by offending conduct encompassed by s 144AA of the Act.
As later discussed in my consideration of whether or not an element of specific deterrence is provided by the sentencing outcomes in these proceedings, those sentencing outcomes should send a clear message to the Company that it will need to consider, on an ongoing basis, whether further preventative measures require to be undertaken to avoid any possibility of future offending conduct.
There is no doubt that, properly addressed by the Company and its relevant employees, as required to be considered for the purposes of s 241(1)(c) of the POEO Act, the damage to the regulatory system (and hence, the harm arising) caused by the breaches of s 144AA (whether subs (2) or subs (1) being irrelevant for present purposes) were foreseeable because the systems that were operated by Mr Al Sarray (either directly or by his supervision of Mr Sidawi) were such that there was knowledge of the falsity (for three of the offences) of the documents which were provided. In circumstances where provision of deliberately falsified material giving rise to the absence of necessary detailed information concerning the disposal of waste as required by the Waste Regulation was an inevitable consequence of the provision of the falsified information, the harm to the regulatory systems earlier discussed was entirely foreseeable.
Finally, with respect to s 241(1)(d) of the POEO Act, there is no doubt that the Company had complete control over the relevant conduct of Mr Al Sarray directly and of his supervision of Mr Sidawi where that conduct gave rise to the three breaches of s 144AA(2). To the extent that a differential consideration is required for the single offence of a breach of s 144AA(1), there is no doubt that the Company had control over the use of its office and information technology systems and, had it properly instructed its employees (particularly, but not exclusively, Mr Al Sarray) about the necessity to provide accurate, rather than manipulated, information concerning waste transported and disposed of by the Company, this offence could also have been prevented. Sentencing Procedure Act factors Introduction
Before turning to the various matters arising pursuant to s 21A(2) and (3) of the Sentencing Procedure Act potentially here engaged, it is appropriate to make a brief general observation concerning how these matters are to be approached. This is necessary because the burden of proof differs depending on the nature of that which requires consideration.
For the purposes of establishing any potential factor of aggravation, I must conclude that such factor is proved beyond reasonable doubt. On the other hand, for favourable subjective factors applicable to the Company (including those matters potentially arising from s 21A(3)), it is only necessary for the Company to establish that factor on the balance of probabilities (R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (R v Olbrich) at 281).

Aggravating factors

The Prosecutor does not seek that I conclude that any of the factors of aggravation set out in s 21A(2) of the Sentencing Procedure Act are engaged to be considered for this sentencing process.

Introduction

This section of my consideration requires an analysis of those matters that relate to the Company itself, rather than to the offending conduct that gave rise to any charge to which it has pleaded guilty. For any mitigating factor to be engaged, the Company must establish a proper basis for it on the balance of probabilities (R v Olbrich).

Harm ‑ s 21A(3)(a)

I have earlier addressed, in my consideration of matters required by s 241 of the POEO Act, the extent of the harm caused by the Company's offending conduct. For reasons there explained, there is no mitigating weight in the Company's favour arising from that consideration.

Prior offences ‑ s 21A(3)(e)

The second relevant factor is whether the Company has "any record (or any significant record) of previous convictions". It is agreed that the Company has no relevant prior convictions.
However, the Prosecutor submitted that the benefit of such a "clean skin" position providing any sentencing advantage to the Company should be confined to the sentencing outcome to be derived from the first in time of the offences to which the Company has pleaded guilty. This proposition was advanced in the Prosecutor's written submissions on sentence in the following terms: 93 So far as the Prosecutor is aware, the Defendant has not previously committed an offence against the POEO Act or any other environmental protection statute. The Defendant's lack of prior offending is a matter which has some weight when considering the first offence, but when the Defendant comes to be sentenced for Charges 2, 3 and 4, it no longer has the benefit of being a first‑time offender. Where, as here, an offender has committed multiple dishonesty offences over a period of 8 months, prior good character is afforded less weight.
In this context, the Prosecutor referred to an element of the Judicial Commission's Sentencing Bench Book at folio 9519, citing the proposition there recorded that: An offender's lack of previous criminal record will not be accorded the significance it might have had, where he or she has committed a large number of offences over a long period of time.
The case there cited (R v Chan [2000] NSWCCA 345) involved 27 fraud offences committed over a six‑month period. I am satisfied that there is no valid analogy available for present purposes.
In response, the Company's written submissions on sentence, at paragraphs 67 and 68, addressed this proposition in the following terms: 67. Contrary to PS [93], that absence of a prior criminal history should not be ignored merely because the defendant has been charged with four offences. The fact that, prior to these proceedings, ACE had not been charged with any criminal conduct, and that all four offences have proceeded together, means that the "formal condemnation of the law" and "the warning as to the future which the conviction experience implies" is being given for the first time concurrently with all four offences. That applies equally to all four offences, not just to charge 1 as the prosecutor suggests. … 68. Pursuant to s 21A(3)(e) of the CSPA the absence of any previous criminal history and convictions is required to be taken into account as a mitigating factor in relation to all four charges, not just charge 1.
Mr Potts also addressed this topic further in his oral submissions. Given the conclusion which I have reached (one based on my agreement with the extract from the Company's written submissions set out above), it is not necessary to set out what Mr Potts advanced in his oral submissions.
The proposition advanced on behalf of the Prosecutor, I am satisfied, is misplaced. I have reached this conclusion (a matter to which it will be necessary to return in my consideration of questions of totality and accumulation of the sentences to be imposed on the Company) because I am satisfied that all four of the offences to which the Company has now pleaded guilty should be regarded as arising out of, and forming part of, a single continuing course of conduct. With respect to the three incidents where Mr Al Sarray was the known falsifier of the information (even if its transmitter on only two of the occasions), these all clearly, in my assessment, form part of a single course of conduct on his behalf and, therefore, by virtue of the operation of s 169C of the POEO Act, are to be attributed to the Company as its single course of conduct.
Whilst there is no proper basis upon which I can conclude (beyond reasonable doubt) that the fourth element of offending conduct was specifically carried out by Mr Al Sarray, I am satisfied, on the balance of probabilities (R v Olbrich), that this should be regarded as part of the same course of conduct ‑ concluding (on the balance of probabilities) that author/disseminator of the falsified information was Mr Al Sarray).
If I am wrong in the conclusion I have reached concerning the offending conduct and I ought conclude it is not established that Mr Al Sarray was the relevant instigator whose moral culpability is to be attributed to the Company for the s 144AA(1) offence, I am nonetheless satisfied that that alternative position should not, in the circumstances of the Company's overall offending, cause me not to treat the Company as having no prior convictions for sentencing purposes for all four offences to which it has pleaded guilty.
This factor is one weighing in its favour.

Is the Company a good corporate citizen? ‑ s 21A(3)(f)

I have no evidence of any community or societally beneficial activities undertaken by the Company, nor of any charitable support provided by the Company. I am, therefore, unable to conclude that the Company is of good corporate character. This factor, therefore, is neutral for my present sentencing purposes.

The likelihood of reoffending ‑ s 21A(3)(g)

For the purposes of this consideration, I am satisfied that the Company is unlikely to breach s 144A(2) in future, given the measures that are discussed below arising out of Ms Anthony's affidavit concerning the reorganisation of the Company's activities and the lack of likelihood of Mr Al Sarray offending again in the fashion for which he has been punished. However, with respect to the potential for the Company committing further breaches of s 144A(1), I cannot be satisfied that there has been sufficient reorganisation of the Company's record‑keeping systems (including obtaining dockets from drivers) to be certain that future inadvertent provision of false and misleading information concerning waste, during the course of dealing with waste, would not arise.
The lack of information concerning the unimplemented matters proffered by the Company in its proposed enforceable undertakings (as also discussed below) contributes to this guarded conclusion.
I am satisfied that this factor is to be regarded as neutral for present sentencing purposes.

Introduction

In Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 (Ausgrid), at [80], Pepper J summarised the four types of action set out by Preston CJ in Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 as ones which may demonstrate genuine contrition and remorse in satisfaction of these requirements [citations excluded]: (a) first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence; (b) second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities; (c) third, taking action to address the cause of the offence; and (d) fourth, the personal appearance of corporate executives in court to give personal evidence of the Defendant's regret and a plan of action to avoid repetition of the offence.

The apology made on behalf of the Company

Ms Nicole Anthony had given oral evidence during the liability hearing. I have earlier noted that a further affidavit from Ms Anthony was read on behalf of the Company for the purposes of the sentencing hearing. Matters arising from her further affidavit were the subject of contest between the parties as to the extent to which I was invited to conclude that the Company had (or had not) expressed genuine contrition and remorse for its offending conduct. In this context, it is first appropriate to set out her description of her role with the Company in her further affidavit. The relevant paragraphs are in the following terms: Background 5 I have worked at ACE since November 2002. 6 My formal role in ACE is office manager. That role encompasses a wide range of responsibilities, including: a. personal assistant to Mr Sami Allam, the sole director of ACE; b. office manager; c. fleet manager; d. safety manager; and e. compliance manager. 7 As part of my role, I report directly to Mr Sami Allam, and I speak to him on a regular basis. 8 I performed the tasks referred to in paragraph 6 during 2017.
Ms Anthony offered an apology on behalf of the Company, saying: Apology 9 I am authorised on behalf of ACE and its sole director and shareholder to offer an unreserved and unconditional apology to the Court and to the EPA for the conduct which gave rise to the Offences. 10 ACE has been actively engaged in the disposal of waste in NSW since 2002. Since that time, it has completed hundreds of jobs for developers. The present offences are the only instances in which ACE has ever been charged with any offence against any law. The Offences and these proceedings were a low point in ACE's history.
The Prosecutor criticised this apology and what was submitted to be its lack of utility for the purposes of demonstrating genuine contrition and remorse for the purpose of this element of s 21A(3) of the Sentencing Procedure Act. The Prosecutor submitted (Transcript 23 August 2022, page 468, line 29 to line 44): The defendant submits, DWS 20 to 21, that s 169C of the Protection of the Environment Operations Act creates a presumption that the evidence of Ms Anthony is evidence of the company's state of mind. The defendant's submissions as to the effect of s 169C overlook that the section has nothing to say about the weight of evidence given by an officer, employee or authorised agent. The submissions the defendant has made in this regard sidestep the policy of the Court, which we outlined at PWS 21, to require a corporate defendant who wishes to get the benefit of mitigating factors such as explanations as to its guilt and remorse and contrition to provide that by the best evidence, namely from, in this case, the company's director and CEO. In addition, Ms Anthony's evidence by way of an apology, her affidavit at para 9, is expressed to be hearsay, to convey what she said she was told by Mr Allam. Plainly, your Honour, this has markedly less probative value than evidence from the person who, as a matter of law, is the directing mind and will of the company, which evidence would be able to be tested.
Mr Potts responded to this criticism in the following terms by referring to relevant elements of Ms Anthony's further affidavit (Transcript 23 August 2022, page 498, line 33 to page 499, line 17): POTTS: …. Your Honour will see she tells your Honour a number of things beginning on p 2 of the affidavit. The first is that she's an officer of ACE, and that she's authorised to make the affidavit on behalf of ACE. And she tells your Honour in terms in 4, the purpose of the affidavit is to make a formal apology on behalf of ACE and to explain the step which ACE has taken since discovering the commission of the offences. Your Honour's reminded in para 5 and 6 that her formal role, and your Honour sees from para 8, that this was the same her formal role in 2017, is as they're described. Our learned friends, I think, sought to make something of some passages in her cross‑examination, and we'd simply observe as a preface to your Honour understanding that cross‑examination that at transcript p 110 lines 18 ‑ 20, our learned friend prefaced his cross‑examination by making it clear to Ms Anthony that he was asking her about the state of affairs in 2017. What was going on in 2017. So, your Honour would note that caution in looking at the passages in her cross‑examination, that our learned friend invites your Honour to have regard to. Now, at p 3 in para 9, she tells your Honour that she's authorised on behalf of ACE and its sole director to offer an unreserved and unconditional apology to the Court and to our friends, the regulator, for the conduct which gave rise to the offences. She tells your Honour in para 10 that ACE has been engaged in the disposal of waste since 2002. It's completed hundreds of jobs. And then she makes a statement that reflects in the next sentence, the agreed facts that these offences are the only instance where ACE has been charged. And she tells your Honour these offences in these proceedings were a low point. And with respect, even though our learned friends ask your Honour to discount much of this, because it doesn't come directly from Mr Sami Allam himself, the evidence which frankly is uncontradicted is that Ms Anthony has a role in this company. She's an officer of this company. It's not unusual for companies in any context to give evidence by officer rather than director. It may be a matter of some weight, but we submit it's not a matter that's going to require your Honour to discount to the point where your Honour can't give any weight for the things that Ms Anthony tells your Honour.
It is also to be noted that the Prosecutor did not elect to cross‑examine Ms Anthony at the sentencing hearing on this (or any other) matter.
I am satisfied that I should accept that Ms Anthony, as a senior employee of the Company (being equal second‑in‑charge with Mr Al Sarray at the time of the offending conduct and, it is to be inferred from her evidence set out below concerning the Company's alterations to Mr Al Sarray's responsibilities as a consequence of his actions, now, sole second in the Company's hierarchy), is appropriate to proffer an apology on behalf the Company. This is particularly so in light of the fact that she has been an employee of the Company, effectively, since its inception nearly 20 years ago.
Although the Company employed some 150 people during the year when the offending conduct took place, and, it is to be inferred, continues to do so, there can be no dispute as to her hierarchical position within the Company's structure. Although, consistent with the Prosecutor's submissions, the proffering of the apology by Sami (and his availability, therefore, for cross‑examination) might have caused some greater weight to be accorded to an apology on behalf of the Company, I am not satisfied that I should dismiss the apology proffered by Ms Anthony in the fashion proposed by the Prosecutor.
In this context, I note that, on the morning of the sentencing hearing (at a hearing which commenced at 9.00 am and concluded after the luncheon adjournment), Sami arrived at 10.41 am (as I noted for the purposes of the transcript at page 845, line 25) and he remained in attendance throughout the remainder of the sentencing hearing. It is also to be noted that Ms Anthony was not in attendance for the purposes of the sentencing hearing.
Ms Anthony next described the Company's actions taken in response to the discovery of Mr Al Sarray's falsifications, saying: Actions taken by ACE 11 I know from my role as office manager that Mr Al Sarray's responsibilities were changed following discovery of the Offences. The changes included that he was not to have any responsibility concerning waste dockets, documents or invoicing. That responsibility was given to others. ACE also adopted the Wastelocate system (see paragraphs 16 and 17 below). 12 On 8 October 2018, ACE provided a draft enforceable undertaking to the EPA A copy of that document is annexed and marked "A". 13 On 16 January 2019, ACE provided a finalised enforceable undertaking to the EPA. A copy of that document is annexed and marked "B". I was personally involved in the preparation of this document. 14 The finalised enforceable undertaking contains a list of actions which ACE took following the discovery of the offences. This includes that ACE: a. took disciplinary action against Mr Al Sarray, including removing him from having responsibility in respect of waste dockets; b. alerted senior management and staff to the conduct giving rise to the alleged breach and placed them on notice of the need for greater oversight of staff involved in waste reporting and recording; c. re‑assigned two full time employees whose roles are now predominantly focused around Tipping Facility Management, Subcontractor Management, and Source Documentation; d. provided training to site‑based personnel, primarily supervisors, truck drivers and traffic controllers, whose key function is the submission of source documentation; e. addressed staff individually as to their duty of care and the company's expectation of them moving forward; f. revised internal protocols regarding docket management, sourcing, handling, document authenticity, sorting, recording, and storage; g. improved procedures and training regarding the use of Wastelocate and allocating designated resources to managing consignments via this system; and h. put in place processes to complete daily variance reporting on actual tipping vs Wastelocate consignment summary, as a means of internally auditing compliance. 15 I know this because I was directly involved in the implementation of those actions by ACE. 16 ACE was also an early adopter of the EPA's Wastelocate program and assisted the EPA remove technical issues (bugs) in the software. The following appears on the Wastelocate website (https://wastelocate.epa.nsw.gov.aul): If you transport asbestos waste, asbestos soils or waste tyres, you may be required to use EPA's WasteLocate. WasteLocate tracks each load of asbestos or tyre waste from pick up to disposal using the GPS in your smart device. It generates a unique consignment number just like a parcel in the post. WasteLocate was developed to help prevent illegal dumping of asbestos and tyres... 17 ACE uses Wastelocate on all current jobs that involve the movement of asbestos.

The enforceable undertaking offers

The Company had offered two enforceable undertakings to the Prosecutor. Enforceable undertakings are provided for by s 253A of the POEO Act. Copies of these undertakings offered to the Prosecutor were appended to Ms Anthony's further affidavit. The first of these undertakings was dated 8 October 2018 and the second of them was dated 16 January 2019. Neither of these undertakings were accepted by the Prosecutor and there is no evidence before me as to the reasons why they were not accepted.
It is to be noted that Ms Anthony describes the 8 October 2018 proposed enforceable undertaking as a draft (at paragraph 12 of her further affidavit) and that the 16 January 2019 enforceable undertaking document was provided to the Prosecutor as a finalised enforceable undertaking (at paragraph 13 of her further affidavit).
For present purposes, it is appropriate to set out those elements of the undertakings which have actually been implemented by the Company before turning to consider the submissions made on behalf of the Company as to how these undertakings should be regarded for these sentencing proceedings, together with the submissions made by the Prosecutor on this point.
The information below was set out at the relevant location under "2 Alleged Breach" on page 3 of the first proposed enforceable undertaking. It was repeated in the second draft in similar, but not identical, terms. Brief outline of alleged breach (i.e. nature of incident; cause of incident; pollutants involved; potential or actual impact on environment, community and/or human health; nature and extent of your responsibility for the alleged breach) [Maximum ‑ ¼ page] Ace Demolition has recently become aware that one of its employees has provided non‑genuine weighbridge dockets to two of its clients (Top Pacific and Westborne) in response to requests/pressure received from those clients to provide weighbridge dockets recording volumes of waste disposal so as to satisfy their auditors. Ace Demolition understands that this employee has created duplicates of genuine weighbridge dockets that were issued by Suez and sent these duplicates to these clients. Ace Demolition further understands that this employee has altered genuine weighbridge dockets that were issued by Dial a Dump to change the recorded site address, the docket date, and the docket number, and has sent these altered dockets to these clients. Ace Demolition is not aware of there being any unlawful transportation or disposal of waste in connection with these weighbridge dockets {or otherwise) nor of there being any changes to the site records or transportation records. Ace Demolition is not aware of there being any other breaches of the environmental legislation arising from or in connection with the actions of this employee. Ace Demolition has, since becoming aware of this employee's actions, taken steps to prevent any further breaches, to improve internal policies, training, and guidelines, and to reprimand the employee involved.

The first document, under the heading "3.1. Undertaking to drive improvements in environmental performance", set out offered performance improvements.
It is not necessary to set out that which the Company offered in the two elements in full detail. It is, however, appropriate to note that the Company offered to conduct an independent audit of its recordkeeping and to undertake that audit within a six‑month period at a cost to be advised.
The second draft enforceable undertaking was provided to the Prosecutor on 26 January 2019. The disclosure of the breach that was the basis for this second proposed enforceable undertaking was in different terms to the disclosure in the October 2018 proposed enforceable undertaking. This second proposed enforceable undertaking disclosure did not reference the provision of false information to Top Pacific and Westbourne in the terms set out in the earlier document. It is also appropriate to note that this disclosure included amendments to the third paragraph to reference the disposal of waste at a site at Arcadia. It also indicated the specific detail of what had already been undertaken by the Company and what was further proposed to be undertaken.
At 3.1.1 of this proffered enforceable undertaking, the document set out those activities which had already been undertaken by the Company in order to improve its environmental performance. These were listed in the following terms: 3.1.1 Activities already undertaken. In response to the alleged breach, ACE demolition has already: ● identify the employee involved in the conduct leading to the alleged breach and taken disciplinary action in respect of them, including removal from key sections; ● alerted senior management and staff to the conduct giving rise to be alleged breach and place them on notice of the need for greater oversight of staff involved in waste reporting and recording; ● reassigned a further two full‑time employees whose roles in our predominantly focused around tipping facility management, subcontractor management, and source documentation; ● provided training to site‑based personnel, primarily supervisors, truck drivers and traffic controllers, whose key function is the submission of source documentation; ● addressed all staff individually as to their duty of care and the company's expectation of them moving forward; ● revised internal protocols regarding document management, sourcing, handling, document authenticity, sorting, recording, and storage; ● improved procedures and training, regarding the use of waste locate and allocating designated resources to managing consignments fired this system; and put in place processes to complete daily variance reporting on actual tipping versus waste locate consignments summary, as a means of internally auditing compliance.
The Company nominated that the above actions have been completed and that the cost of undertaking them had been $178,849.20. In 3.1.2, the Company set out future activities to be undertaken within a six‑to‑12‑month period at an anticipated cost of $375,000.00. It is not necessary to set out these proposed activities as there is no evidence that any of them have, in fact, been carried out.
As a consequence, for assessing the extent to which the Company has taken positive steps in the fashion nominated in the third element of the matters set out by Pepper J in Ausgrid, these offered undertakings can be assessed as to the genuineness of the Company's contrition and remorse. However, to the extent that the first proposed enforceable undertaking, in its entirety, proposed future activities and did not record anything which had been undertaken by the Company and, for the second proposed enforceable undertaking, to the extent that it also proposed future activities which have not eventuated, those matters do not warrant further consideration.
The Prosecutor's position concerning the proposed enforceable undertakings can be seen from the following exchange with me (Transcript 23 August 2022, page 486, line 38 to page 487, line 30): PROSECUTOR: The further matter though, your Honour, I wish to draw in on this particular point is that it is difficult to regard the enforceable undertaking applications as evidence of remorse and contrition when the defendant, after those offers had been made, of entering into such undertakings, entered and maintained pleas of not guilty. Which is quite inconsistent with the applications for enforceable undertakings being evidence of remorse or contrition. Or else it means their remorse or contrition didn't last very long. HIS HONOUR: Would that not at least potentially, my recollection is I have no evidence on this point at all, depend on what your client's reaction had been to either the first or the second offers of enforceable undertakings. PROSECUTOR: No, your Honour. HIS HONOUR: Given that neither of them have been accepted. PROSECUTOR: Either a person is remorseful at their state of mind for their earlier conduct or they're not. And for it to turn upon what the response of a regulator is to an offer to enter into an enforceable undertaking suggests that it wasn't real remorse in the first place. HIS HONOUR: Well, isn't there a difference ‑ and I don't know and I suspect it's entirely inappropriate for me to contemplate speculating but there'd be a difference between a response from the prosecutor that said, "We don't care what you're saying now. We're going to go you. We're going to prosecute you. It doesn't matter what you now say." Whereas a response that says, "Well, we're interested in an enforceable undertaking but this one's not adequate. We'd like to discuss with you." They're different ends of a spectrum, aren't they? And I have no evidence about either. Do I? PROSECUTOR: No, your Honour, I accept that, as I - HIS HONOUR: Sorry, all I have is a pair of offers - PROSECUTOR: Yes. HIS HONOUR: ‑‑in different terms. PROSECUTOR: Yes, your Honour does. But they are far more likely to fall into the category of an offender reading the Act and being well advised and saying, "Yes, let's go down this path if it will avoid the prospect of being prosecuted," than truly being sorry for what they have done and accordingly entering pleas of guilty when charged with the offences concerned.
Mr Potts took me through, compendiously, matters concerning the proposed enforceable undertakings which he submitted were relevant to my contextual understanding of how they should be regarded as demonstrating the Company's contrition and remorse. These submissions are recorded in the transcript of 23 August 2022 at page 499, line 29 to page 503, line 14. It is not necessary to repeat this material. However, it is appropriate to set out why Mr Potts submitted that what had been proposed by the Company not only constituted assistance to the authorities (as a consequence of its containing voluntary disclosures of what was known to the Company, rather than what was already known to the Prosecutor), but also demonstrated genuine contrition and remorse. He submitted (Transcript 23 August 2022, page 503, line 16 to page 504, line 1): … when, within Ace, this problem became known to others beyond Mr Al Sarray, Ace went to the EPA with the enforceable undertakings your Honour has before them and made those disclosures. And made them in the terms that your Honour can now see, which, in each of them, gave a fulsome disclosure of what had been discovered as to having transpired within Ace as a corporation. Now, we rely upon not simply as assistance to the authorities, although we do rely upon it on that, and I accept what your Honour adverted to in argument with my learned friend that, other than the guilty plea, your Honour's not necessarily required to do an exercise of specific discounts for the other factors. But we do rely on it squarely, not only for assistance to authorities, but also as evidence of recognition of our offending and our contrition, and that our apology is a genuine one. Now, our learned friends say, well, you know, you didn't immediately plead guilty. That's true. But the offences which we've now pleaded guilty to, at least in three parts, are offences of knowingly doing these things where there was an issue about whether or not what Mr Al Sarray had done ‑ which is now gone, but was an issue about whether or not what he had done ‑ should be taken to be the acts of the corporation Ace. And we say the position we adopted immediately before trial where we admitted, following your Honour's rulings under the s 192 applications, for the corporate offences, that the corporation had committed subs 1 offences under 144AA. We indicated a preparedness to plead guilty to those, and then ultimately, after the evidence, as your Honour knows, we've pleaded guilty to the subs 2 offences. None of that history, we say, would cause your Honour to doubt the sincerity of the apology offered by Ms Anthony, or the fact that there have been steps taken by Ace to deal with its offending conduct. As to the submission that we have not engaged s 21A(3)(i), which is in relation to remorse, because we haven't provided evidence we've accepted responsibility, and we haven't acknowledged injury, we respectfully submit there is enough before your Honour to show that we have engaged that, and we are entitled to the benefit of it.
I turn to consider the extent to which these proposed enforceable undertakings offered by the Company might be regarded as evidencing elements of contrition and remorse in the sense discussed by Pepper J.
At the outset, I should observe that the mere offering of the enforceable undertakings should be regarded as some (but only slight, in my assessment) evidence of contrition and remorse on behalf of the Company.
To the extent that matters proposed by the Company as being desirable initiatives to be undertaken by the Company, where those initiatives have actually been carried out as earlier explained, I am satisfied that those activities (and the expenditure incurred as necessary to implement them) is to be regarded, for this element of s 21A(3) of the Sentencing Procedure Act, as weighing significantly in the Company's favour.
However, to the extent that additional elements were advanced on behalf of the Company in either of the proffered enforceable undertakings, it is appropriate that no weight should be given to those offers in circumstances where, despite the passage of some two‑and‑a‑half years since the offers were made, no evidence is before me that there has been any implementation of those matters. Should the Company have considered that that which it had proposed to the Prosecutor was truly desirable in order to respond to the statutory breaches occasioned by Mr Al Sarray's conduct and to ensure that the Company's future activities were protected against the eventuality of possible repetition, then there was no necessity for the implementation of those measures to await the imprimatur of the Prosecutor being given to them.
As a consequence, although the Company is to be accorded some credit for its responses, actual and proposed, in its proffered enforceable undertakings, that credit for present purposes can only extend as far as matters offered were actually implemented.

The Company's costs' offer

Mr Potts noted that the Company would agree to an order pursuant to s 257G(b) of the Criminal Procedure Act that the Company pay the Prosecutor's costs as agreed or assessed. This offer was made, he said, in the context where s 257B of that Act made it clear that the question of whether or not a defendant should be ordered to pay a prosecutor's costs was not automatic and mandatory, but one which involved discretionary consideration by me.
Here, in circumstances where the Company was prepared not to contest the Prosecutor's proposal that I should order that the Company pay the Prosecutor's costs of the proceedings against it, this was a factor to be taken into account in the Company's favour (relying on the decision of Preston CJ in Burwood Council v Pratelli [2014] NSWLEC 28). In that case, the Chief Judge observed, at [38], that an offer from that defendant to pay the prosecutor's costs was to be taken as an element of the actions of that defendant demonstrating contrition and remorse.
I have taken this offer advanced on behalf of the Company into account, appropriately, as an element additional to the other matters discussed above in my assessment of the extent to which the Company has demonstrated contrition and remorse for the offending conduct giving rise to the charges against it.

Attendances in Court

In this context, I note that:

Sami attended the liability hearing on the morning of the first day but was excused by me (at the request of Mr Potts) from further attendance being necessary for the remainder of the (then expected to be lengthy) hearing;
on the morning of the sentencing hearing (a hearing which commenced at 9.00 am and concluded after the luncheon adjournment), Sami arrived at 10.41 am (as I earlier noted) and he remained in attendance throughout the remainder of the sentencing hearing; and
Ms Anthony was not in attendance for the purposes of the sentencing hearing.

Conclusion on contrition and remorse

I have concluded that the above factors, taken together, show that the Company has demonstrated genuine contrition and remorse for the offending conduct underpinning the charges to which it has pleaded guilty. This is a factor to be weighed in the Company's favour in my instinctive synthesis of required matters to derive the appropriate starting sentences, as later discussed, for each charge.

The Company's guilty pleas ‑ s 21A(3)(k)

The next relevant factor to be considered is the fact of the Company's guilty pleas. This provision requires that I have regard to the fact that the Company has pleaded guilty to the charges for which it is now being sentenced.
The utility of these pleas (including their timing) is a matter requiring specific consideration of its benefit to the administration of the system of justice. This factor in the Company's favour is later discussed in my consideration of the discount on starting sentences to be given as required to be considered by s 22 of the Sentencing Procedure Act. Nonetheless, the pleas also fall to be considered favourably in the Company's subjective factors.

The extent of assistance given to the Prosecutor ‑ s 21A(3)(m)

I am satisfied that, relevantly, the Company's agreement to the extensive Agreed Statement of Facts on Sentence does evidence positive assistance given to the Prosecutor and, by giving that assistance to the Prosecutor, also demonstrates assistance to the administration of justice as there has been no need, during the course the sentencing hearing, to undertake any investigation of, or determination concerning, matters of fact which might otherwise have been put in contest by the Company.
This is a factor to be weighed in the Company's favour in my instinctive synthesis later described.

The decision of Duggan J in Mr Al Sarray's prosecutions

Introduction

As noted, Mr Al Sarray was also prosecuted pursuant to s 144AA(2) for two offences and pleaded guilty. The information concerning waste transmitted by Mr Al Sarray, which he knew was false or misleading in a material respect at the time of its transmission, was the information which underlies the charges against the Company for those transmissions on 18 April 2017 ‑ Matter No 357465 of 2020 and 2 June 2017 ‑ Matter No 357466 of 2020.
The penalties imposed on Mr Al Sarray, and aspects of her Honour's reasoning in determining those penalties, have been raised by Mr Potts on behalf of the Company in a fashion requiring my consideration of those elements in my sentencing of the Company for the offences arising out of those aspects of Mr Al Sarray's offending conduct. It is therefore appropriate to set out an amount of contextual detail from her Honour's decision to enable me, later, to address the submissions on behalf of the Company relating to what role the outcome of Mr Al Sarray's prosecution should play in my sentencing consideration. Although somewhat lengthy, the elements of her Honour's decision set out below arise for consideration to enable me to address Mr Potts' submissions in these sentencing proceedings.
There are three aspects of her Honour's decision, in my assessment, which warrant being set out for present purposes. These are: 1. Elements of Mr Al Sarray's personal history (including his background as a refugee from Iraq); 2. Her Honour's determination as to how the seriousness of Mr Al Sarray's offending conduct was to be characterised within the conventional descriptive range used for such purposes; and 3. The penalties imposed on Mr Al Sarray for his offending conduct.

Mr Al Sarray's relevant subjective circumstances

Her Honour addressed the elements of Mr Al Sarray's subjective circumstances (relevant to my later consideration of submissions made on behalf of the Company as to how the penalties imposed on Mr Al Sarray should be viewed for the purposes of my instinctive synthesis of the penalties appropriate to be imposed on the Company for its s 144AA(2) sentencing).
At [37] and [38], her Honour recorded the following concerning Mr Al Sarray's state of mind in the following terms: 37 There is no evidence that Mr Al‑Sarray derived any financial advantage, or other advantage, as a consequence of undertaking the offending conduct. 38 Apart from Dr Ahmed's opinion that "It also [sic] plausible that [Mr Al‑Sarray], who is very much a survivor through many life stressors from the ravages of war to suffering early deaths of loved ones, felt a heightened sense of obligation and loyalty to his employer and co‑workers, something that may have contributed to his actions, actions from which he had little to gain personally" there is no evidence to suggest any reason as to why the offence was committed by Mr Al‑Sarray.
It is to be noted that the third of the s 144AA(2) charges (the transmission of information concerning waste contained in the transmission on 2 December 2017 ‑ Matter No 357468 of 2020) involved the transmission of falsified information where that information had been falsified by Mr Al Sarray, but where its transmission to the receiving third party (Mr Eric Gerges from EI Australia) was not effected by Mr Al Sarray but was effected by Mr Sidawi at Mr Al Sarray's direction. The fact that the acts of falsification and transmission were carried out by different employees of the Company meant that Mr Al Sarray, although the architect of this offending conduct, could not be charged with an offence arising out of this falsification.

The characterisation of Mr Al Sarray's offending conduct

Duggan J dealt with the characterisation of Mr Al Sarray's offending conduct, at [40] to [45], in the following terms: Seriousness of offending conduct 40 The Prosecutor places particular significance in this case on the quantum of false and misleading WBDDs supplied by the Defendant being: (1) With respect to Charge 1 ‑ a total of 210 false or misleading WBDDs relating to 5,552.94 tonnes of asbestos soils and other waste purportedly originating from the Wolli Creek Site; and (2) With respect to Charge 2 ‑ a total of 204 false or misleading WBDDs relating to 5,7951.19 tonnes of asbestos soils purportedly originating from the Zetland Site. 41 It was further noted that the offending conduct spanned a period of three months between February and May 2017. 42 Mr Al‑Sarray accepted that his conduct involved an element of planning and that it took place over the period between February and May 2017. 43 I accept that the quantum of false WBDDs and the period over which the WBDDs were supplied adds to the seriousness of the offending conduct. Conclusions on objective seriousness 44 Having regard to: (1) The large quantum of WBDDs that comprise each charge, that the offending involved an element of planning and was undertaken over a period of months; (2) The regulatory harm that is occasioned from the uncertainty where waste is unable to be tracked accurately and reliably; (3) The foreseeability of the harm to the regulatory system where a person knowingly supplies information about waste to another person in the course of dealing with the waste, being information that is false or misleading in a material respect; and (4) The fact that the offending could have resulted in a risk of harm to the environment and community safety by reason of the possible presence of asbestos in the waste which would have been foreseeable; I find that the objective seriousness of the offence is at the high end of the mid‑range of objective seriousness. I do not accept the characterisation of the Prosecutor that the objective seriousness of the offence reaches the high end of objective seriousness primarily as I do not accept that Mr Al‑Sarray committed the offence for a financial benefit, nor do I accept that I am able to be satisfied to the necessary standard that there was in fact asbestos present in the waste material. 45 I do not make a distinction as to objective seriousness between the two charges. Whilst the number of WBDDs varies slightly in each charge the number did not vary to a large degree. I also note that in the second charge that whilst the number of WBDDs was less, the tonnage of waste was higher. Accordingly, I do not consider that there is a necessary distinction to be made considering the circumstances of this case as to the objective seriousness of each charge.

The penalties imposed on Mr Al Sarray

Finally, it is to be observed that her Honour explained that the appropriate starting penalty for Mr Al Sarray for each of his offences was $180,000 (against a maximum penalty for an individual of $240,000 ‑ s 144AA(2)(b)). These two starting penalties were each reduced by 25% as a result of the utilitarian value that her Honour concluded was appropriate to be accorded to Mr Al Sarray's early guilty plea to each offence.
It is further to be noted that her Honour did not moderate the penalty imposed for the temporally second of Mr Al Sarray's offences to reflect any potential aspect of totality and accumulation being required had her Honour considered that Mr Al Sarray's charged conduct arose out of a single course of offending conduct. In this regard, her Honour observed, at [53] to [55]: Totality principle 53 I have considered whether the principle of totality is a relevant sentencing principle in the present case where both offences with which the Defendant has been charged and which he has pleaded guilty arise from similar facts and circumstances. 54 The principle has been concisely described by the majority of the High Court in Pearce v R (1998) 194 CLR 610 at 623 as: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. 55 Taking into account the nature of the offending it is apparent that there is no real commonality of elements that would give rise to the commission of offences where the Defendant would be punished twice for an overlapping of offences. In this case, the two charges are distinct, albeit the conduct arises under the same section of the POEO Act. I do not consider that the principle of totality requires me to adjust any penalty between the two charges.

Characterisation of the Company's offending conduct

Introduction

It is customary, when sentencing for environmental offences, to describe where the relevant offending conduct might fall within a range which might be defined as running from minor offending conduct through to that which could be characterised as being toward the worst type of conduct (noting, however, that it is not appropriate to characterise conduct as being the worst case as it is always possible to hypothesise something that is even less acceptable (Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14 (Veen v The Queen (No 2)) at [478])).
It is also to be noted that such a process of characterisation is not one of mathematical precision warranting identification on some statistical basis (such an approach was expressly disapproved by the Court of Criminal Appeal in Camilleri's Stock Feeds).
In this context, it is convenient to use general descriptors of how such offending conduct might be characterised; these being as within the lower, middle, or upper range of such conduct. Having reached the determination in that very broad fashion, it is then appropriate to describe, again in a general context, whereabouts within the relevant range the specific conduct falls.

The Prosecutor's submissions

The Prosecutor, in paragraphs 16 and 17 of its written submissions, effectively reflected the observations I have made above. In paragraph 18, the Prosecutor referenced that, for the purposes of my assessment of the objective seriousness of the Company's offending conduct, I needed to have regard to the matters arising from the relevant elements of s 241(1) of the POEO Act (as earlier discussed). 16 The objective gravity of the offences fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crimes considered in light of its objective circumstances. It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offences. 17 As noted above, the objective seriousness is to be determined by reference to the nature of the offences and not by reference to matters that are personal to a particular offender. 18 In determining the objective seriousness or gravity of the offences the relevant objective circumstances include the factors referred to in the legislation set out above.
Having set out the above elements from the Prosecutor's written submissions, it is next appropriate to set out the oral submissions advanced by the Prosecutor as to how I should approach my consideration of the factual matters involved in an assessment of the seriousness of the Company's offending conduct. In this regard, the Prosecutor addressed not only the above paragraphs from the Prosecutor's written submissions, but also responded to matters raised in answer to them on behalf of the Company (Transcript 23 August 2022, page 462, lines 16 to 44): The second legal matter to which I turn is the determination of objective seriousness. The defendant at DWS 63 criticises the prosecutor's submissions, PWS 16 to 18, on objective seriousness. With respect to our learned friends, in making that criticism, we do submit that the defendant makes a serious error by confusing the determination of the objective seriousness of an offence with the calculation of the sentence appropriate to the case. It is, respectfully, stating the obvious for the defendant to say that in determining the appropriate sentence the Court should take into account matters subjective to the offender. The authorities cited by the defendant at footnote 62 are about how subjective factors are to be considered when calculating the sentence to be imposed. All that can be granted and accepted, but those decisions are not about the assessment of objective seriousness and the work that that assessment has to do in the calculation of the sentence to be imposed. They are not about the Court's duty to assess and determine the objective seriousness of the defendant's offences, or how the Court should go about the determination of objective seriousness. We submit, your Honour, that without statutory authority, and there isn't any, it would be error for the Court to take subjective factors into account when considering objective seriousness or what the defendant calls relative seriousness. With respect, and notwithstanding the defendant's criticism, on the subject of objective seriousness, we submit that the Court should adopt the prosecutor's submissions at PWS 16 to 18 inclusive and that the defendant's written submissions at DWS 57 should not be accepted. We submit that the quantity of false or misleading information supplied and/or the corresponding quantum of waste in relation to which the defendant was dishonest is a relevant consideration in assessing objective seriousness.
The Prosecutor next took me, in oral submissions, to a number of factual elements which, it was submitted, weighed heavily against the Company for my assessment of the seriousness of its offending conduct, saying (Transcript 23 August 2022, page 476, lines 8 to 18): The number of waste dockets, the number of loads itemised in the spreadsheets, the number of loads itemised in the second Holt run sheet, is plainly relevant to the objective seriousness, we say, of the defendant's offences. That is, the provision of hundreds of copies of weighbridge dockets containing false or misleading information purporting to be about a substance that is waste under the act, is objectively more serious that the supply of one weighbridge docket, to take an extreme example, containing false or misleading information purporting to be about that waste. So too the provision of a spreadsheet with a multitude of rows of false or misleading data, each purporting to record an occasion of waste disposal, is more serious than a document purporting to record one occasion of waste disposal.
As recorded in the Company's responses below on this point, the Prosecutor also said (Prosecutor's written submissions at paragraph 64): 64 The quantities of waste which these documents concerned were significant. By way of examples as to the quantum of waste that this false or misleading information pertained to: (a) the 70 misleading SUEZ dockets which were part of the information supplied in Charge 1 in respect of Wolli Creek and part of the information supplied in Charge 2 in respect of Zetland relate to over 2000 tonnes of waste material ‑ contaminated asbestos soil. Forty eight (48) of those misleading SUEZ dockets were part of the information supplied in Charge 3 in relation to Wolli Creek; (b) the 18 April DADI Dockets (relevantly 140 in total) which were part of the information supplied in Charge 1 in respect of Wolli Creek relate to approximately 3500 tonnes of waste material ‑ not limited to soil contaminated with asbestos; (c) the 2 June DADI Dockets (relevantly 4 in total) which were part of the information supplied in Charge 2 in respect of Zetland relate to approximately 4000 tonnes of waste material ‑ soil contaminated with asbestos; (d) as referred to above at [39], many of the weighbridge dockets supplied under cover of the 12 June 2017 email the subject of Charge 3 had also been sent under cover of the 18 April 2017 email the subject of Charge 1; (e) Charge 4 which concerned the false Second Holt Run Sheet, contained false information in relation to 622 truckloads of waste material, weighing 18,186.91 tonnes.
As I understood the tenor of these submissions, although not precisely advocating how I should characterise the Company's offending conduct, it was clear that the Prosecutor proposed that, arising from my consideration of matters mandated for consideration by s 241(1) of the POEO Act, I should conclude that the Company's offending conduct (particularly with respect to the offences charged pursuant to s 144AA(2)) was of significant gravity.

Submissions for the Company

The written submissions for the Company responded to paragraph 64 in the Prosecutor's written submissions (reproduced above) in the following terms: 57. The submissions made at PS [64] otherwise impermissibly hinge on the unproven and erroneous assumption that the documents concerned actually represented real quantities of waste that were otherwise disposed of from the Wolli Creek and Zetland premises. Further, the analogy sought to be drawn with fraud‑type offences is inapt. The mere fact of the number of documents involved, or the tonnages of waste referred to in those documents, says nothing as to the seriousness of the offending or the consequences of the offending. It is not a meaningful way to assess the seriousness of the offending in this case.
In his oral submissions, Mr Potts advanced the proposition that the actions by Mr Al Sarray were, in effect, the actions of a single rogue employee and that there was little that the Company could have done to prevent Mr Al Sarray from acting as he had (giving rise to the Company's offending conduct in addition to his own offending conduct). Mr Potts submitted (Transcript 23 August 2022, page 491, lines 19 to 44): That's not to say Ace doesn't bear corporate responsibility for his [Mr Al Sarray's] actions. But it is relevant, we submit, to the circumstances of the offending, that the evidence so far as it goes, we submit shows it was one employee who decided to do something dishonest and inappropriate. And that there's no evidence in our submission that this was caused or contributed to by, other particular individual actors within the company. Now that, we say, is a central component of the circumstances of the offending. And it feeds into some submissions are learned friend made, which is, well, there's no recognition here of our obligations under section under 144AA (1) or (2). There's no recognition here of systemic failures. The submission we put, which our learned friend criticised us for is, the risk of someone going on a frolic of their own and committing a fraudulent act is frankly an ever present risk in any organisation. If someone is determined enough to commit an act of dishonesty, there is very little one can do at the end of the day to prevent that absolutely. There's no evidence we had particular controls to try and root out that form of dishonesty, but it was, what I'll call an act of everyday occurrence that a client would ask to be provided with documents and an employee would be tasked with providing them. And it's not, we submit, something that would be expected of corporate businesses. They would have in place systems to check every email that might go out from a corporation to make sure their employees were not being dishonest in matters of routine nature such as this. So, we don't accept, with respect, that this is a worse category of offending, or a more objectively serious offence.

Consideration

Duggan J characterised Mr Al Sarray's offending conduct as being appropriate to be described as being at the "high end of the mid‑range of objective seriousness". This characterisation of the nature of his offending conduct did not amount to any form of mathematically precise indication of where and how her Honour subsequently concluded, in her instinctive synthesis (of the objective facts concerning Mr Al Sarray's offending conduct and of his subjective factors), the appropriate penalty for each offence to be imposed on Mr Al Sarray was appropriate to be a substantial monetary one (before having regard to his early guilty pleas) for each offence.
I later discuss the conduct giving rise to all four of the charges against the Company in my consideration as to whether that conduct should be regarded as falling within a single course of conduct for (beneficially for the Company) consideration of matters of totality and accumulation of penalties. It is not necessary, for present purposes, to explain, in anticipation, the reasons why I have concluded that all four offences to which the Company has now pleaded guilty should be regarded as arising out of a single course of conduct by Mr Al Sarray.
However, that conclusion, although of assistance to the Company (for the purpose of the extent to which it should be penalised in total for its four offences), cannot set aside the position that, although the conduct of Mr Al Sarray might have been a frolic of his own, Mr Al Sarray was a senior employee of the Company. He was equal second‑in‑charge at the time of all his falsification conduct ‑ doing so in circumstances where Sami was aware that there were demands for the provision of documentation to client developers and where the Company, as an entity, did not have adequate and appropriate document management systems that would ensure availability of accurate and correct information and, therefore, remove any potential need for falsification. In such circumstances, it is not appropriate to discount the extent of the Company's responsibility for the conduct of Mr Al Sarray.
Having considered all of Mr Al Sarray's oral evidence carried forward and that of Mr Sidawi carried forward, including not merely the acts of falsification underlying the four charges here involved but also the evidence concerning the Company's inadequate document management processes for harvesting and recording documents demonstrating the "where, when and what" of its waste disposal activities, I also conclude (albeit on a differing range of factors) that the appropriate description as to where in the range of offending conduct the Company's offending should be described as falling is in the same terms of as the descriptor as used by Duggan J ‑ that is, that the Company's offending conduct should also be regarded as being at high end of the mid‑range of objective seriousness.

Introduction

I am required to take into account the question of both specific and general deterrence. As the High Court put it, in Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 (Walden v Hensler), "the chief purpose of the criminal law is to deter those who are tempted to breach its provisions" (at 569 per Brennan J).

The Prosecutor's position

The Prosecutor submitted that there was a need for specific deterrence because the Company will continue to undertake operations of the same general nature as those which gave rise to the offences here considered.
The Prosecutor's written submissions, at paragraphs 112 to 117, although said (by their heading) to address specific deterrence,. are primarily ones addressing the specifics of the Company's proposed enforceable undertakings ‑ a topic dealt with elsewhere.
However, a number of elements of the Prosecutor's oral submissions on this topic are here relevant.
The first, introductory element of the Prosecutor's oral submissions on this topic was in the following terms (Transcript 23 August 2022, page 460, line 33 to line 38): In this context, it's notable that Ms Anthony does not say that it was her decision on behalf of the company to make the offers of enforceable undertakings. The conclusion from that in our respectful submission, your Honour, is that the defendant has failed to discharge its burden of proving that because of its insight into its offending, it is unlikely to reoffend and therefore is less in need of specific deterrence.
The second relevant element of the Prosecutor's oral submissions on this topic ‑ one involving an exchange with me ‑ was in the following terms (Transcript 23 August 2022, page 479, line 34 to page 482, line 24): PROSECUTOR: Your Honour, I turn to specific deterrence. Your Honour has our submission that there's no evidence that the defendant recognises that the causes of the offences included pressure put on Mr Al Sarray by Ace and Mr Allam himself to provide dockets. And therefore, there should be no reduction in penalty for the defendant having insight into its offending. Indeed, your Honour, in addition, if only from its submissions on sentence, it's clear, we submit, beyond reasonable doubt that the defendant has no insight into the harm caused by its offending. And we provide the following illustrations. The defendant submits DWS 100, that the need for specific deterrence has already been effected because Munaf Al Sarray has been sentenced for the two offences of which he was convicted. And the defendant goes on to say, "Thus, achieving one of the purposes of s 3A of the Crime Sentencing Procedure Act and satisfying to a degree the need for deterrence and denunciation." We submit your Honour would reject those submissions. The provisions of the Crime Sentencing Procedure Act are satisfied not by the sentence passed on a co‑offender, they are satisfied by the sentence passed on the offender in the present proceedings. Additionally, the defendant submits DWS 101, "Contrary to the Prosecutor's assertions, there is nothing particular to Ace or its systems that made it more or less likely that an offence against 144AA would be committed. The same risk attends every organisation in every industry. If one individual decides to be dishonest, particularly in the act of sending emails supplying routine documents, there are few systems that would eliminate such a risk." In essence, your Honour, the defendant's position is that there is nothing it can do to ensure compliance with section 144AA and it's unrealistic of the Prosecutor or the Court to expect it to be able to do so. And the defendant's attitude, your Honour, is that it shouldn't have to worry about the requirements of the POEO Act at all concerning the waste industry. Because other industry would have the same problems in ensuring compliance. Now, apart from noting them, your Honour, as evidencing what we respectfully submit is, on the part of the defendant, a flippant attitude to the observance of the law. The Court should reject those submissions. in addition, your Honour reminded there is the defendant's submissions, DWS 70, that the harm caused by the offence is non‑existent or minimal. In addition, there's no, as I've submitted your Honour, there is no evidence of insight, no evidence of an understanding of where, when and how come the defendant went wrong. There is, your Honour will have noted, a lack of accounting as to when and how the company, that is Sami Allam, discovered that the offences had been committed. And there's a complete lack of documentary evidence of significant systems changes which would allow the Court to make its own judgment about when they were implemented and how likely they are to be effective in preventing a recurrence of the offences. HIS HONOUR: With respect to the first of the propositions you just advanced, and I have a recollection that Mr Potts' submissions advanced the proposition that the falsifications were drawn to the attention of the prosecutor by ACE. That is, a voluntary fessing up, as it were. Is that not correct, then? Is that not a matter of relevance? PROSECUTOR: Would your Honour just excuse me a moment? Yes, your Honour, that's correct. HIS HONOUR: See, doesn't that‑‑ PROSECUTOR: And, yes, that is relevant. HIS HONOUR: And it is to be seen in the context, is it not, of your submission a few moments ago as to the difficulty for a regulatory body in the shoes of your client in general terms of detecting such conduct as a matter of its ordinary supervisory roles. PROSECUTOR: I can't gainsay that, your Honour. HIS HONOUR: And that in this case, the fact that the company put up its hand is in fact, is it not, a matter that goes to either assistance to the prosecutor, and/or contrition and remorse? PROSECUTOR: There's no evidence to satisfy the relevant provision in 23A(3) of the Crime Sentencing Procedure Act in relation to remorse, your Honour. And they don't meet those requirements, but it does indicate assistance‑‑ HIS HONOUR: It's my recollection that in the chief judge's decision in waste processing, and has subsequently I think more concisely summarised by Pepper J, in a case the name of which now escapes me, as to the four elements of demonstrating contrition and remorse. Is it not open to me to say, well, look, it's quite possible that the company might have got away with it, to use the vernacular? PROSECUTOR: Yes. HIS HONOUR: Because of the difficulty in a regulatory sense of monitoring all of the communications that might arise in this industry, and that the company has stuck its hand up, confessed to the problems before it ever came to the attention of the regulator, and by doing so, should I not infer that the company regretted that that had occurred? That is, that the falsification by Mr Al Sarray had occurred as the alternative to the company just saying to Top Pacific and Westbourne, go and play in the traffic, we're not going to provide you with anymore documents, because we don't have them. PROSECUTOR: No, your Honour. Because there's no evidence as to why the defendant did that. HIS HONOUR: But I don't need evidence. It's the act of confessing, is it not? That demonstrates that. You know, it's not quite a defence, but it's a weight on the scales of justice in favour of the company that I'm discussing with you. PROSECUTOR: It is. HIS HONOUR: In circumstances where if you wanted to advance the proposition but to the effect, but for them confessing, they were only two and a half hours away from being discovered, that might lessen the value of the confession. But there is no such evidence. But there is evidence, at least as I understood Mr Potts' submission, and he can take me to it when he gets to it, that if the company hadn't said, put up their hand, your client might well never have known. PROSECUTOR: Excuse me a moment, your Honour. Your Honour, I would need to pull out the document concerned, but my recollection is that this confession occurred in response to a statutory notice to provide information and documents that the EPA had served on the defendant and what it did was in that regard provide true information, which, of course, was its legal obligation to do. HIS HONOUR: Well, it strikes me that it's a matter of some importance. I'm not saying determinative importance about anything, but some importance that that position be clear. That is, the confession position be clear. And that it might be appropriate that at some stage I, when we get toward it, that I'll take the morning adjournment before calling on Mr Potts so that you can have the opportunity to find whatever it is you want to tell me about. PROSECUTOR: May it please the Court. We say, just briefly, if anything it comes under the heading of assistance rather than remorse or contrition. HIS HONOUR: Well, I understand. PROSECUTOR: Remorse and contrition cry something more. HIS HONOUR: No, no, I understand what you're saying to me about that. That's why I put the proposition in the alternative as being and/or, and I certainly accept that it goes to assistance, and my recollection is that leaving aside the statutory obligations under the Sentencing Procedure Act in 22A about discounts and the like, the prosecutor accepts the fact that there may be an appropriate discount or factoring in on sentencing of assistance to the authority.
The third relevant element of the Prosecutor's oral submissions on this topic was in the following terms (Transcript 23 August 2022, page 466, line 10 to line 20): PROSECUTOR: We emphasise, your Honour, that not only is the defendant to be sentenced for the offences committed by virtue of the conduct of Mr Al Sarray, but that at the time it had no systems to ensure it complied with its obligations under s 144AA. Now, these, we submit, are serious deficiencies in the defendant's case on sentence. It shows that they defendant has no understanding of what it did wrong. What it had is no more than a resentment that it is being held to account for the conduct of its contracts manager. The significance of this, your Honour, is that there is a heightened need for specific deterrents [deterrence] to ensure the defendant doesn't commit the offence again, thinking that there's no real harm in it, and it only needs to protect itself against the conduct of rogue employees.

The Company's position

The Company's written submissions dealt with this topic, at paragraphs 100 and 101, in the following terms: Mr Al Sarray has already received punishment 100. As already noted above, Mr Al Sarray acted alone in the commission of the offences, and was the sole person at ACE with knowledge of the commission of the offences. Mr Al Sarray has already been charged with and convicted of two counts of knowingly providing false or misleading information about waste to others, by his conduct in sending two emails which are the subject of two of the charges against ACE. To that end, the individual dishonest offender has already received punishment for those offences, and specific deterrence has already been effected, thus achieving one of the purposes in s 3A CSPA, and satisfying to a degree the need for deterrence and denunciation (cf. PS [118]‑[123]). 101. Contrary to the prosecutor's assertions, there is nothing particular to ACE or its systems that made it more or less likely that an offence against s 144AA would be committed. The same risk attends every organisation in every industry. If one individual decides to be dishonest, particularly in the act of sending emails supplying routine documents, there are few systems that would eliminate such a risk. As already addressed above, the prosecutor's suggestion that an organisation must micromanage its senior and trusted employees and review every individual email (and attachment) prior to sending to avoid any possibility of false or misleading information being provided, is plainly unreasonable and in the real world, unworkable.
In summary, it was submitted for the Company that: 119 Having regard to all of the matters addressed above, the Court should conclude: (a) … (b) … (c) … (d) the objective of imposing specific deterrence and denunciation has already been achieved against the sole dishonest human actor in the offending conduct, by reason of Mr Al Sarray's convictions under s 144AA(2);

Consideration

Although the Company has, for reasons earlier set out, undertaken commendable steps to endeavour to remove the likelihood of future document management defects of the type which have given rise to these offences, I am satisfied that a modest degree of specific deterrence should be incorporated in the penalties to be imposed on the Company. This is to act as a reminder to the Company of the unacceptability of its offending conduct.

General deterrence

It is also necessary to consider the extent to which sentencing the Company for its offending conduct conveys a measure of general deterrence to those who might contemplate carrying out analogous unlawful activities.
As Brennan J also said in Walden v Hensler, at 570: But when a law proscribes conduct which an ordinary person without special knowledge of the law might engage in in the honest belief that he is lawfully entitled to do so, the secondary deterrent purpose ‑ that is, the purpose of educating both the offender and the community in the law's proscriptions so that the law will come to be known and obeyed ‑ must be invoked to justify the imposition of a penalty for breach. In such a case, care must be taken in imposing a penalty lest the offender be made to shoulder an unfair burden of community education.
In this context, it is to be observed that matters of general deterrence are not, in circumstances such as these, directed solely at an amorphous and unconfined, wide public audience. The need arises for a deterrent educational outcome in circumstances such as these, where the Company will continue to undertake activities in the demolition and waste disposal industries, sending a deterrent message to those other individuals or enterprises, who may undertake activities of a similar type which gave rise to these charges, to be aware of the potential consequences of insufficiently diligent control of waste disposal practices (particularly waste disposal document management).
Whilst it is, clearly, not appropriate to impose a disproportionate penalty on the Company for its offending conduct, I am satisfied that it is appropriate to have regard to the need for an element of general deterrence in the penalty which I am to impose.

Introduction

Whilst this sentencing process must be undertaken in light of the specific facts and circumstances of the Company's offending conduct, nonetheless, regard must be had to such guidance as may be obtained from such other cases as might have some degree of comparability with the offending conduct to be assessed (Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185). This is to ensure the sentence imposed is not inconsistent with the general pattern of sentencing for offences of the kind here being considered where such comparable sentencing information is available.

The Prosecutor's material and submissions on comparability

The Prosecutor's written submissions, with respect to this topic said, at paragraph 138: 138 To achieve consistency between sentencing decisions in the application of relevant legal principles to the facts of the individual case the Court should consider comparable cases. The goal is not to achieve consistent outcomes or numerical equivalence but consistency in the application of relevant legal principles. Provided with these submissions is a schedule of sentencing decisions under s 144AA POEO Act by way of comparable cases.
As noted in the above extracted paragraph, the Prosecutor provided a schedule of what the Prosecutor proposed were comparable sentencing outcomes to which I should have regard. Those four cases are listed below, together with a short summary of the circumstances of the offending conduct and the sentencing outcome for the first three of them. The fourth, that of Duggan J's sentencing of Mr Al Sarray, is earlier dealt with in a variety of fashions relevant to the present sentencing process I am undertaking.
For the other three cases, in summary, relevant matters noted by the Prosecutor with respect to them, were: 1 Environment Protection Authority v Afram [2022] NSWLEC 38 (Pain J) These proceedings, to the extent here relevant, involve only offences against s 144AA(1) (accompanied by a single offence of land pollution concerning the illegal dumping of asbestos contaminated waste). For the three offences, her Honour found that the offences were at the low end of the high range of objective seriousness and structured her penalties on that basis. The penalties were also mitigated by the fact that the offender was given, for each of the charged offences, a 25% discount to reflect the entry of guilty pleas at the earliest opportunity. Her Honour also had regard to the fact that this defendant had also been sentenced for an offence pursuant to s 192D(1) of causing financial disadvantage by deception (in an amount of over $4 million) to the developer to whom the full set and misleading information concerning the disposal of waste had been provided in breach of s 144AA(1) of the POEO Act. With respect to this Crimes Act 1900 offence, this defendant had also been sentenced to two years imprisonment to be served by way of an intensive correction order. 2 Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) [2020] NSWLEC 166 and Environment Protection Authority v Mouawad (No 3) [2021] NSWLEC 16 (Pain J) In this second grouping of cases, her Honour imposed on the corporate defendant (which was convicted in its absence) fines totalling $450,000 for breaches of s 144AA(2) of the POEO Act. The individual offender, Mr Mouawad, was sentenced to a total of 250 hours of community service pursuant to an intensive corrections order for his two elements of offending conduct in breach of s 144AA(2) of the POEO Act. 3 Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott [2016] NSWLEC 167 (Preston CJ) With respect to the third grouping of cases cited by the Prosecutor, the individual prosecuted (Mr Endacott) was punished by the imposition of a series of fines of varying amounts for the three breaches of s 144AA(2) with which he had been charged. As with the circumstances with the offending conduct of Mr Al Sarray concerning the offences with which the Company has here been charged (for reasons later explained, with respect to all four charges), there was no evidence of those activities causing or being likely to cause harm to the environment (judgment at [72] to [75]). Mr Endacott had pleaded guilty to the three offences pursuant to s 144AA(2) of the POEO Act, Preston CJ holding that one of the offences was at the lower end of objectives seriousness; a second offence was of low‑to‑medium objective seriousness; and the third offence was of medium objective seriousness. With respect to both the corporate offender and Mr Endacott, his Honour had regard to the early pleas of guilty; absence of prior convictions; good character; remorse for the offences, unlikelihood of reoffending; and the extent of the cooperation which had been given to the regulatory authorities (at [103]). His Honour concluded that there was no need for specific deterrence (at [122]). His Honour considered that, for reasons of the totality, all the fines required adjustment as a consequence of the fact that Mr Endacott, as the guiding mind of the corporate offender, would effectively be paying the penalties of that corporate offender as well as the penalties imposed on him as an individual (at [131] and [132]).
Given the material which has earlier been set out with respect to the sentencing of Mr Al Sarray by Duggan J, it is not necessary for me to address her Honour's decision further at this point in setting out any of the factual matters arising from those proceedings.

The submissions for the Company on comparability

The Company's written submissions on comparative sentencing issues commenced by observing (footnoted citations omitted): 115. It is appropriate for a Court, in considering the objective seriousness of an offence, to have regard to the general pattern of sentences in similar cases. Sentencing consistency requires that "like cases are to be treated alike and different cases are to be treated differently" however that is not synonymous with numerical equivalence.
The written submissions then addressed each of the four cases in the Prosecutor's schedule. These elements of the written submissions for the Company were set out at paragraphs 116 to 118. These paragraphs were in the following terms: 116. The prosecutor has placed before the Court a schedule of what it contends are "comparable cases" concerning s 144AA. There are a clear number of distinctions to be drawn between those cases and the offending conduct in this case. In particular: a) Justice Duggan rejected a submission that Mr Al Sarray's conduct in sending the 18 April and 2 June emails were in anyway comparable to the circumstances that arose in Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) [2020] NSWLEC 166. Her Honour was plainly correct to reject that submission; unlike Mouawad, the conduct here (as noted above) did not involve any unlawful disposal of waste, nor did it have the effect of concealing or facilitating any unlawful disposal or transportation of waste, or of misrepresenting the true location of waste. The Court should conclude that the circumstances of this case are significantly distinguishable, and are comparatively less serious than those in Mouawad; b) the decision in Environment Protection Authority v Afram [2022] NSWLEC 38 arose in circumstances where there had been actual pollution of land by the defendant, through dumping of material including asbestos contaminated material. Again, no such circumstance arise here. In Afram the conduct the subject of the offending was undertaken by the director, and the committal of the s 144AA offences was found to have given rise to the likelihood of significant harm to the environment. Again, that is not this case, and the Court should conclude that the circumstances here are distinguishable from, and are comparatively less serious than those in Afram; c) for the reasons set out above, there is a clear difference in culpability of Mr Al Sarray compared to ACE, in terms of involvement in and knowledge of the offending conduct. That should serve as a reason why in the circumstances of these particular offences, the position of ACE should be distinguished from that of Mr Al Sarray, and be found to have been comparatively less serious; and d) the decision in Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott [2016] NSWLEC 167 concerned circumstances where there was a risk that asbestos had not been properly removed and houses had not been safely demolished. No such circumstance is present here, rendering this case distinguishable and the position of ACE comparatively less serious than Endacott. 117. In ACE's submission, taking into account the whole circumstances of the offending, the Court should conclude that ACE's conduct is at the lower end of the range of seriousness, and lower than any of the cases identified above. 118. That submission does not serve to deny the dishonesty involved in the s 144AA(2) offences, but dishonesty is of course, an essential element of the s 144AA(2) offence, and is of necessity present in every offence under that sub‑section.
As can be seen from paragraph 117 of the above extract from the Company's written submissions, as also earlier noted, it was submitted that I should have concluded that the Company's conduct was at the lower end of the range of objectives seriousness. As will have earlier been seen, I have not accepted that conclusion. Having accepted that the characterisation of the offending conduct attributed by Duggan J to Mr Al Sarray is equally appropriate to be attributed to the Company's offending conduct (and, for reasons later explained, when addressing the issue of whether all four of the offences to which the Company has pleaded guilty should be regarded as arising out of a single course of offending conduct), that characterisation is applicable to all four instances of offending conduct, despite the differential maximum penalties between the three offences pursuant to s 144AA(2) and the lesser penalty for the single offence pursuant to s 144AA(1).

Consideration

Although I have carefully read the three decisions referenced by the Prosecutor in its schedule of potentially comparable cases (other than my separate consideration of the decision of Duggan J concerning Mr Al Sarray which requires significant consideration in these sentencing proceedings), I am satisfied that the elements I have identified from the other proceedings provide little to no assistance in how I should determine what are the appropriate starting penalties for the Company for the three offences against s 144AA(2) and its single offence against s 144AA(1) of the POEO Act. To the extent that the decisions in Afram and Mouawad had incorporated intensive corrections orders outcomes for two of the individual offenders and there was no such outcome arising for Mr Al Sarray, I am satisfied that that is not necessarily a distinction of any significance in my comparative consideration of Duggan J's sentencing of Mr Al Sarray when compared to the sentencing of the two individuals who were made subject of intensive corrections orders. This is because, clearly, Duggan J had regard to the personally specific circumstances of Mr Al Sarray, as noted by her Honour at [15], as arising from a report from Dr Tanveer Ahmed, a consultant psychiatrist, concluding that Mr Al Sarray suffered from post‑traumatic stress disorder arising from events experienced in Iraq prior to coming to Australia.
I am, therefore, satisfied that the only relevantly potentially comparable sentencing outcome needing to be addressed in any detail in these proceedings is that of Duggan J in sentencing Mr Al Sarray. I address that position, in comparative terms, in the next section of this decision.

Introduction

In determining the appropriate starting penalties for the Company, I must undertake the mandated process of instinctive synthesis (Markarian v R (2005) 229 CLR 357; [2005] HCA 25) having regard to all the objective factors of the offending conduct for each charge (as earlier discussed) and the subjective factors peculiar to the Company that temper what might otherwise be the penalty to be imposed (Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 and Veen v The Queen (No 2)). The sentence is not to exceed what is "justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances" (Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354, citing Veen v The Queen (No 2)).
This process permits me to arrive at the starting sentences for each of the four offences to which the appropriate discount is to be applied for the entry of the Company's guilty pleas to that charge.

Parity

The issue of parity between the sentences meted out to Mr Al Sarray and those to be given to the Company were addressed by both the Prosecutor and Mr Potts.

The Prosecutor's submissions on parity

The Prosecutor's written submissions on parity were set out at paragraphs 136 and 137: 136 The principle of parity of sentencing is that, generally, the sentence to be imposed should not be inconsistent with sentences imposed on different offenders involved in the commission of the same offence. Disparity may be justified, however, where there are differing circumstances or roles played by the defendants. 137 In this case, the Defendant ACE had more of a role to play than did Mr Al Sarray in ensuring that the corporation had systems in place to ensure compliance with the legislation and in putting such systems in place to avoid reoffending in the future. In addition, Mr Al Sarray pleaded guilty much earlier in his proceedings than did ACE.
The transcript records that the Prosecutor advanced the proposition that there could be no parity between the punishment to be handed to the Company, compared to the punishment that was meted out by Duggan J to Mr Al Sarray because there were two fewer offences for which he had been charged (Transcript 23 August 2022, page 519, lines 30 to 33).
This submission addressed what had been raised by the Company in its written and oral submissions.

The Company's submissions on parity

The Company's written submissions on parity were at paragraphs 112 to 114. These paragraphs were in the following terms: 112 Where the offending conduct involves co‑offenders, the principle of parity (or equal justice) becomes relevant, which ‑ like the principle of consistency of sentencing ‑ requires that "like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co‑offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated… equal justice requires that, as between co‑offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'." 113 Whilst here separate trials were held for Mr Al Sarray and for ACE, given Mr Al Sarray has already been convicted and sentenced to two charges under s 144AA(2) for the same conduct with which ACE has been charged under s 144AA(2), and given also the reliance placed by the prosecution on Mr Al Sarray's conduct in respect of the remaining two charges, it is appropriate for the Court to apply the parity principle. 114 Contrary to the assertion made at PS [137], there is no basis for the Court to conclude that ACE had "more of a role to play" or that this difference in roles renders ACE more culpable than Mr Al Sarray. Given the acceptance that Mr Al Sarray was the sole person at ACE knowingly involved in the provision of false or misleading information, and the sole person with knowledge that it had been provided, it would be manifestly unreasonable and illogical to conclude that ACE has or is capable of having any greater culpability than Mr Al Sarray, the principally relevant human actor. To the contrary, given the lack of involvement and knowledge of all other people at ACE (including its director and senior officers such as Ms Anthony), the Court should readily conclude that Mr Al Sarray had greater culpability than ACE, and any disparity in the relative positions of the two can only operate in ACE's favour.
Mr Potts submitted, on parity (Transcript 23 August 2022, page 512, lines 6 to 21): Your Honour would come to penalties which we respectfully submit would be no more than but we would submit lower than penalties imposed on Mr Al Sarray. Noting, of course, and I make this clear, Mr Al Sarray obtained a discount for an early plea at the earliest opportunity of the full 25%. I'm not, in making that submission, suggesting to your Honour we would obtain a plea discount of that magnitude, but your Honour will have seen there were factors which we submit are present in this case that were not present in Mr Al Sarray's case. So, that when your Honour approaches the overall task, we submit your Honour will ultimate arrive at a penalty in relation to the subsequent‑‑ HIS HONOUR: Well, there were also matters in Mr Al Sarray's favour that are not necessarily in your client's favour. POTTS: I accept that.
During the course of the hearing, the transcript also records the further exchange between me and Mr Potts on this point (Transcript 23 August 2022, page 511, lines 18 to 36): POTTS: Can I then put submissions about, what I call, parity? And this is the point in terms of, like offences being treated in like ways. And we would say, your Honour would have some regard to the penalties imposed on Mr Al Sarray by Duggan J in answer to his s 144AA(2) offences, to get some indication as to questions of parity, so that one wouldn't readily see, what I might call, disparity between what are self‑evidently, if not the same, very similar charges being treated in a disparate way. So, we would invoke questions of parity when your Honour comes to consider the appropriate range of penalties for us, as for Mr Al Sarray. HIS HONOUR: Her Honours instinctive synthesis comes to the mathematical inconvenient fraction of 18, twenty‑fifth's, doesn't it? POTTS: I might have to accept that from your Honour, without trying to do it in my head. HIS HONOUR: Well, the starting sentence was 180. POTTS: Yes. HIS HONOUR: The maximum for Mr Al Sarray was 250, as I recollect. POTTS: Yes, but there was a potential of an 18‑month custodial sentence on top of that. HIS HONOUR: Yes. POTTS: That's the only reason I balk at your Honour's mathematics. And there was a pre‑sentence report, as I recollect it, done for Mr Al Sarray.

Consideration

Whilst I am satisfied that I should take guidance from the penalties Duggan J considered were appropriate for Mr Al Sarray, there are factors weighing on each side of the scales of justice on this point:

the quite significantly different subjective circumstances of Mr Al Sarray compared to the Company;
although Mr Al Sarray's conduct is to be attributed to the Company for the purposes of s 144AA(2) by s 169C (both of the POEO Act), Mr Al Sarray was the active and originating participant for the conduct giving rise to his charges;
the Company has pleaded guilty to 3 charges pursuant to s 144AA(2) and one charge pursuant to s 144AA(1), a distinctly more weighty mix of charges than those laid against Mr Al Sarray;
Mr Al Sarray was potentially liable to a custodial sentence whereas such a penalty cannot arise for the Company;
the cumulative potential total financial penalties faced by the Company significantly exceed those that had been faced by Mr Al Sarray.

These factors (not held out by me to be an exhaustive list of matters of differentiation) push/pull in different directions so that strict consideration of parity, in the sense commonly used in sentencing of co‑offenders in a common criminal enterprise, is of little utility in the present circumstances.
I do, however, accept that it would be inappropriate to punish the Company in a significantly disproportionately a fashion, on a sentence for sentence basis, compared to Mr Al Sarray whilst, however, I must also have regard to the ratio of the maximum financial penalty exposure for corporate offenders when compared to that for an individual offender such as Mr Al Sarray.
However, I accept, as was submitted by Mr Potts (Transcript 23 August 2022, page 505, lines 505 and 506) "… as a matter of logic, our culpability and our objective seriousness of our offending can't be more serious than Mr Al Sarray".
Whilst Environment Protection Authority v Barnes (2006) NSWCCA 246 is often advanced as providing a basis for taking the liability of a defendant to pay a prosecutor's costs into account when setting a penalty. However, a reading of that decision makes it clear that, there, the question arose in the context of consideration of that defendant's capacity to pay. That clearly does not arise here as the Company has not raised any issues concerning its capacity to pay whatever penalties are appropriate to be imposed. There is, therefore, no relevant "downward pressure" to be applied to those penalties as a result of the Company being required to pay the Prosecutor's costs.
I have, however, had regard to the Company's offer to accept an order that it should pay the Prosecutor's costs of the proceedings against it as a factor weighing in its favour as part of my consideration of the subjective elements weighing in the Company's favour.
It is necessary to determine the appropriate starting sentence for each of the three of the Company's offences against s 144AA(2) and for the single offence against s 144AA(1).
Undertaking the mandated process of instinctive synthesis, I have concluded that the appropriate starting sentence for the Company for each of the three more serious offences is $330,000, whilst the appropriate penalty for the single, lesser offence is $165,000.

Introduction

The maximum discount on the otherwise applicable starting penalty to be afforded to a defendant who has pleaded guilty is 25% (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383). The full measure of this conventionally maximum discount is only afforded to those defendants who enter a guilty plea at the earliest opportunity. The usual range will be between 10% and 25% (R v Thomson; R v Houlton at [152]).
In these proceedings, the Company did not enter its pleas of guilty at an early opportunity. Although the Company's plea of guilty to the charge laid pursuant to s 144AA(1) occurred modestly before the entry of the pleas to the three charges pursuant to s 144AA(2), I do not consider that this temporal difference in any fashion, provides any distinction in the timing of the entry of the Company's various guilty pleas for discount purposes.

The Prosecutor's submissions

With respect to discounting the penalties to be imposed on the Company as a consequence of the Company's guilty pleas, the Prosecutor addressed that this topic in written submissions on penalty in two parts. The first part addressed the statutory requirement in s 22 of the Sentencing Procedure Act, whilst also addressing the possibility of a discount potentially being available on the basis of the Company's assistance to the Prosecutor. The Prosecutor's written submissions on sentence adequately encapsulated the position advanced on these matters.
Under the heading "Pleas of Guilty", the Prosecutor first set out (at paragraph 124) the terms of s 22 of the Sentencing Procedure Act. The written submissions then continued (footnotes omitted): 125 The discretion conferred by s 22 is regulated, but not confined, by the guideline judgment in R v Thomson; R v Houlton. In that case, the Court of Criminal Appeal expressed the opinion that "the appropriate range for a discount is from 10‑25 per cent." Discounts outside this range are uncommon, although examples of 5% discounts are to be found. 126 The Defendant entered very late pleas of guilty to Charges 1, 2 and 4 after the Summonses had been on foot for over a year and a half. In relation to Charge 3, the plea of guilty was entered on the first day fixed for the defended hearing and in relation to Charges 1, 2 and 4, the pleas of guilty were entered after the matter proceeded to a defended hearing, all the evidence had closed and the parties were preparing written submissions on guilt. Although the time occupied by judgment writing may be reduced, the hearing has occupied the same amount of time and effort as if the Defendant had continued to maintain its pleas of Not Guilty. There is very little or no utilitarian value to the pleas of guilty. Particularly in the case of Charges 1, 2 and 4, the utilitarian value of the pleas is nil or so insignificant as to attract no discount for utility. In the circumstances, the Court should decline to give any consideration to a discount on penalty for any of the offences. Facilitating administration of justice ‑ utilitarian value of the manner of the conduct of the trial 127 The Defendant significantly limited the facts in issue in the defended hearing as to guilt, and that limiting of facts in issue flows into the sentence proceedings. The Defendant thereby facilitated the administration of justice in the proceedings. 128 Section 22A CSP Act was inserted into the Act in 2010. The section confers power in cases of offences tried on indictment to reduce sentence for facilitating the administration of justice. In Droudis v R ‑ where the facilitation had been by limiting the facts in issue ‑ the Court of Criminal Appeal considered how this might work under the section. The Court held that the power to reduce sentence could be either by way of discount or treatment of it as a mitigating factor. There is no requirement under s 22A that the sentencing judge specify the sentence which would have been passed but for the facilitation or quantify mathematically the extent to which the sentence has been reduced but it would not be inappropriate to specify the penalty which would have been imposed but for the facilitation of the administration of justice. This has the benefit of providing transparency and encouraging the efficient and expeditious conduct of trials. 128 Section 22A CSP Act aside, the Defendant is entitled to a discount of penalty in sentencing at common law. Without conceding that there was any issue of substance in the hearing as to guilt, it can be noted that, in 2005 in R v Doff, the Court of Criminal Appeal said: "The efficient way in which the Appellant's trial was conducted, including the making of extensive admissions, which while not demonstrating contrition or remorse, did show a willingness to facilitate the course of justice by refraining from resort to dilatory and technical objections of no merit. We do not see why this should not be taken into account for the purposes of sentencing, particularly in a case where there was a single issue of substance which it was appropriate for decision by a jury."
The Prosecutor also submitted that, because of the number of offences of a similar nature which were to be attributed to the Company, caution should be taken in my consideration of whether and to what extent the Company might be entitled to a discount on sentence as a consequence of its guilty pleas.
In this regard, the Prosecutor relied (Transcript 23 August 2022, page 474, lines 14 to 37) upon passages from the Judicial Commission's Sentencing Court Book, at paragraph [20‑000], a passage in the following terms: [20‑000] Mitigating factors … Absence of criminal record under s 21A(3)(e) and prior good character under s 21A(3)(f) Prior good character is a mitigating factor to be taken into account under s 21A(3)(e) and (f). … … Similarly, where there are repeated offences over a period of time, or the offender has engaged in a course of conduct to avoid detection, prior good character will carry less weight: R v Smith (2000) 114 A Crim R 8 at [20]‑[24]; R v Phelan (1993) 66 A Crim R 446; R v Houghton [2000] NSWCCA 62 at [18]. An offender's lack of a previous criminal record will not be accorded the significance it might have had where he or she has committed a large number of offences over a long period of time: R v Chan [2000] NSWCCA 345 at [20] (a two‑judge bench decision referred to in a schedule in R v Hare [2007] NSWCCA 303).

The submissions for the Company

Mr Potts response to the Prosecutor's proposition set out immediately above was (Transcript 23 August 2022, page 506, lines 25 to 41): … we rely on the fact that ACE has no prior convictions nor any other charges. That's from the statement of agreed facts, p 2, subss 1B and C, and we say, and your Honour, in our submission, should accept, we are entitled to the benefit of that for all four charges, not with a diminishing effect for the later ones. We say, although our learned friends seem to now accept that it's two courses of conduct because it involves Top Pacific on the one hand and Westbourne on the other, particularly given the commonality of the use of some of the dockets and the commonality of the problem that Mr Al Sarray said he faced with both clients, we say your Honour would in truth regard all four offences as part of one continuing course of conduct, and your Honour would treat it in that way, including for the benefit of applying the fact that we have no prior convictions. …
The written submissions for the Company said, at paragraphs 80 to 88: 80 The charge under s 144AA(1) POEO was entered on the first day of trial (25 July 2022), however, ACE had earlier signalled its intention to the prosecutor to do so at the earliest opportunity thereafter on 23 June 2022.67 The guilty pleas to the charges under s 144AA(2) POEO were entered on 10 August 2022, shortly after the close of the prosecutor's case in the joint trial with the then charges against Mr Allam, with the intention to plead guilty having been signalled on 5 August 2022.68 ACE had previously signalled its willingness to plead guilty to s 144AA(1) offences for those three charges, and its intention to make admissions consistent with that plea on 23 June 2022, and this was indicated to the Court on the first day of trial. 81 It is important to understand the timing of those guilty pleas in context. 82 These proceedings were commenced by summonses filed on 17 December 2020. Subsequently, on 14 May 2021, two of the four summonses were amended by the EPA. Between 22 January 2021 and 4 June 2021, the EPA served evidence (primarily electronically), in seven tranches comprising 21 affidavits and extensive exhibit material, of more than 30,000 pages in length. 83 It is trite but fundamental that: "It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection." See: Johnson v Miller (1937) 59 CLR 467 at 497 per Evatt J. 84 Of course, that evidence was served, on an undifferentiated basis, in support of eight charges, including the four with which the Court is now concerned, but also four concerning Mr Allam that have since been withdrawn. 85 That voluminous evidence was subsequently the subject of a number of applications for advance evidentiary rulings under s 192A of the Evidence Act, which were heard over six days in mid to late 2021, with judgments delivered in September 2021 and May 2022.71 The making of those interlocutory applications and the obtaining of the rulings was necessary in order for ACE to understand the nature and extent of the case being brought against it by the EPA. Those applications were necessary in order for ACE to understand the scope of the admissible case against it, and its strength. Having received that clarification via those rulings by May 2022, the defendant indicated to the EPA its intention to plead guilty to the s 144AA(1) charge in the subsequent month, June 2022. The pleas entered for the s 144AA(2) charges likewise were entered only days after the EPA had closed its case, and identified what (relatively small) subset of the extensive material that had been served by it was in fact being relied upon. 86 The prosecutor appears to assert something inappropriate in ACE's earlier actions in making offers to enter pleas (PS [106]). There is nothing inherently inappropriate nor improper in a defendant proffering proposed plea deals. Both the CSPA and Criminal Procedure Act 1986 (NSW) are premised on the assumption that a prosecutor and defendant will engage in plea discussions, including discussions of whether there are any offences to which the accused person is willing to plead guilty. To the extent that the prosecutor suggests similar adverse findings ought to be made from the fact of the proffering of the enforceable undertaking (PS [110]) that too should not be accepted. 87 It cannot be that the taking of either of these steps by ACE could be matters that are irrelevant to the sentencing discretion, or that they could count against the defendant on sentence. Rather, they show an early attempt by ACE (indeed, well prior to the institution of these proceedings) to assist the regulator, and to partake in restorative justice activities, which had they been accepted by the prosecutor, would have avoided the cost and expense to not only the parties but also the State of these proceedings. 88 In any event, the entry of guilty pleas by ACE to all four offences has had a utilitarian value in reducing the burden on and cost to both the prosecutor, and the Court. The prosecutor's assertions to the contrary should not be accepted (PS [124]‑[126]) and a discount in the ordinary course of between 10‑25% ought to be applied (PS [125]).

Consideration

It is appropriate to note here the relevant elements to the guidelines set out by Spigelman CJ, at [160], in R v Thomson; R v Houlton: 160 The Court should adopt the following guideline applicable to offences against State laws: i. A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. ii. Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant ‑ contrition, witness vulnerability and utilitarian value ‑ but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate. iii. The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10‑25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. iv. In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.
I have earlier set out the relevant extract of the Prosecutor's written submissions on this point. It is to be noted that, as a footnote to the portion of those submissions dealing with s 22 of the Sentencing Procedure Act, the Prosecutor had cited Mohindra v R [2020] NSWCCA 340 (Mohindra). This decision, dealing with an appeal against the decision of a sentencing judge in the District Court not to grant any discount on sentence (for a late guilty plea in a child sexual assault case) was in the context of s 22A of the Sentencing Procedure Act, a provision dealing with sentencing for offences charged on indictment. However, Mohindra is, by analogy, equally applicable in these proceedings. In Mohindra, relevantly, Basten JA (Johnson and Davies JJ agreeing) said, at [42] to [43] (after setting out s 22A of the Sentencing Procedure Act) ‑ footnotes omitted: 42 The section imposes an obligation to have regard to the fact of the pleas, the time at which it was proffered and the circumstances in which that occurred; however, the court has a discretionary power as to whether to impose a lesser penalty than it would otherwise have imposed and as to the extent of the reduction. That discretion is regulated, but not confined, by the guideline judgment in R v Thomson; R v Houlton. The purpose of the guidance given in Thomson was to ensure a degree of consistency and transparency in giving effect to s 22. The result of the guideline judgment was not to "constrain the exercise of the discretion" nor to prescribe a particular outcome. However, the Court expressed the opinion that "the appropriate range for a discount is from 10‑25 per cent." Discounts outside this range are uncommon, although examples of 5% discounts are to be found. 43 In the present case, the prosecutor submitted that the sentencing judge would not consider a discount of more than 5%. To do so would have failed to give proper weight to the lateness of the plea. However, there is no reason to encourage small discounts. Even a 10% discount assumes a starting point which has a high degree of precision. That will almost always be a false assumption. For example, where the outcome of the sentencing process is a sentence of imprisonment of 20 months, it is entirely likely that the judge considered a possible range of between 16 and 24 months, involving a possible variation of plus or minus 20%.
In the present circumstances, it is to be noted that the combined resolution of the contested charges against each of the Company and Sami reflected a mature and proper appreciation by both the Prosecutor and (then) both Defendants' legal representatives of the outcomes for those charges that would be derived by me from the evidence which had been adduced during the course of the trial.
Mr Potts also addressed the possibility that the Company's guilty plea made a little earlier to the charge pursuant to s 144AA(1) might, in some fashion, cause me to consider that the later guilty pleas entered to the three charges pursuant to s 144AA(2) should be regarded differentially in some fashion (as distinct from how they were to be regarded for the purposes of assessing the utility of the various guilty pleas to the system of the administration of justice).
As can be seen from my following discussion concerning the issue of whether or not the Company should be entitled to a discount on the otherwise appropriate starting sentences (and, if so, how that was appropriate to be calculated), I have not undertaken any differentiation in the fashion about which he expressed concern.
It is to be observed that there are two relevant elements here for consideration in my assessment. These are: 1. First, the entry of the guilty plea to the single charge against the Company made pursuant to s 144AA(1) did save the Prosecutor the necessity to establish the Company's guilt on that charge. As that charge was one of strict liability, it can reasonably be assumed that the evidentiary burden placed on the Prosecutor to prove that charge would not have occupied any significant period of time during the trial had that charge remain contested. However, there has been a clear saving of that necessity (together with the removal of the requirement that I address that charge in my decision‑making determination and drafting of reasons for decision); and 2. Second, the considerable preparation burden which would otherwise have fallen on the Prosecutor to prepare and deliver submissions on guilt on the three charges pursuant to s 144AA(2) ‑ together with the time allocation necessary for me to prepare a judgment addressing these three contested charges (which, itself, would have been considerable), a task which would have diverted me from other judicial responsibilities. Whilst, to some extent, each of these benefits to the system of administration of justice might be considered to be subsumed by the necessity of preparation for, and holding of, the sentencing hearing and of my drafting this sentencing judgment, it is to be observed that, on the contingent basis discussed with the parties early during the hearing, a four‑day hearing block in July 2023 had been set aside for a sentencing hearing (if needed), accompanied by an appropriate period of my time allocated for preparation of a sentencing judgment. These time allocations are no longer required and represent a not insignificant benefit to the administration of justice.
I am not satisfied that I should accept the proposition advanced by the Prosecutor that the nature of the Company's offending conduct should put downward pressure on the appropriate discount to be granted to the Company for its guilty pleas. Although all four elements of offending conduct are for breaches of s 144AA of the POEO Act, there are sufficient dissimilarities, in detail, not to warrant a conclusion of the nature implicit in the element of the Sentencing Court Book cited by the Prosecutor as set out above.
Although a matter of fine balance, I am not satisfied that I should lower what I have otherwise determined (for reasons earlier set out) should be the appropriate sentence discounts to reflect the utilitarian value of the Company's guilty pleas to the four offences for which it now is to be sentenced.
As a consequence, and having had regard to the submissions of the parties, I have concluded that: 1. There has been sufficient utility to the system of administration of justice to warrant a discount on sentence being given to the Company for all four of the charges to which it has pleaded guilty. That discount should be a modest one, at the bottom of the usual range recognised by R v Thomson; R v Houlton as being appropriate. Although Basten JA observed in Mohindra that 5% discounts were not unknown, I am satisfied, in these circumstances, that a discount of 10% would be appropriate; and 2. The additional utility to the system of justice of the Company's guilty plea to the single charge made pursuant to s 144AA(1), although coming at the commencement of the liability hearing, was of such limited utility that no increased differential discount was warranted for the penalty to be imposed on the Company for that offence.
Mr Potts had also proposed that the time taken with the various procedural determinations (see [6]) should also be taken into account in my assessment of how I should regard the timing of the entry of the Company's guilty pleas. This proposition was resisted by the Prosecutor on the basis that matters of guilt or innocence did not arise in the context of pre‑trial procedural skirmishes.
Given that the primary difference between the Prosecutor and the Company on the question of a discount for the entry of the Company's guilty pleas is, in effect, whether the pleas were so late as not to warrant any discount, I am satisfied that the primary (and overwhelmingly dominant) matter requiring assessment is the utility of the pleas to the administration of justice.
As I have earlier set out, I am satisfied that the avoidance of the necessity to determine questions of liability and the avoidance of the potential necessity for conducting a multi‑day sentencing hearing dominates how the question of discount is to be approached. It is on that basis, that I have concluded that the utilitarian value of the Company's pleas should result in the 10% discount on penalties which I will apply.

Introduction

As a consequence, although I have set out the appropriate starting penalty I have determined is appropriate for each offence, it is necessary to consider the extent to which the principles of totality should result in some further amelioration of the total penalty to be applied to the Company to reflect this commonality.
For the purposes of my assessment as to whether penalty moderation is necessary and, if so, the extent of moderation that is appropriate, it is necessary to consider contextually how the offending conduct is to be regarded. Am I sentencing for multiple separate and unrelated offences or two discrete courses of conduct or a single course of conduct/
If elements of the offending conduct are part of one or more interrelated courses of conduct, this requires consideration of how the penalties for such a course of conduct should be accumulated to reflect the totality of the relevant elements the Company's offending conduct (in lieu of imposing unrelated punishments for each of the offences).
I have earlier set out the relevant paragraphs of the judgment of Duggan J arising from the sentencing hearing for Mr Al Sarray for the two charges pursuant to s 144AA(2) of the POEO Act to which he had pleaded guilty. In the paragraphs earlier reproduced, her Honour explained why she had concluded that the two offences for which Mr Al Sarray was to be convicted should be regarded as separate and not warranting any further consideration of reduction of either appropriate penalty for reasons of totality and accumulation. In essence, her Honour found that that offending conduct comprised two separate and discrete incidents, one involving the provision of false and misleading information concerning waste to Top Pacific, where Mr Al Sarray knew that that waste was false and misleading in a material respect, and a similar but separate incident with respect to the provision by Mr Al Sarray of such information to Westbourne.
She determined that, as a consequence of this separation of activity, it was not appropriate to conclude that the offending conduct by Mr Al Sarray constituted a single course of offending conduct for sentencing purposes.
With respect to the four charges to which the Company has pleaded guilty, as earlier noted, Mr Potts has submitted that I should conclude that the offending conduct for which the Company is to be sentenced should be regarded as arising out of a single course of conduct. Thus, as a consequence, questions of totality and accumulation would arise for my consideration with respect to all four of the penalties that will arise to be imposed on the Company for the offences here involved if I accept that proposition.
The position advanced by the Prosecutor on this point is that, consistent with the decision of Duggan J concerning Mr Al Sarray, I should not conclude that the offending conduct here being considered arose as a consequence of a single course of offending conduct but might be regarded as arising from two such courses of conduct.
I am satisfied that the position advanced on behalf of the Company is to be preferred. My reasons for concluding that the three offences charged pursuant to s 144AA(2) and the single offence charged pursuant to s 144AA(1) should be regarded as arising out of a single course of offending conduct can be explained briefly. Reaching this conclusion does not question (and should not be seen as questioning or disagreeing with) the conclusion which Duggan J reached in her sentencing of Mr Al Sarray for the two offences to which he had pleaded guilty.
First, in these proceedings, the offending conduct on 2 December 2017, giving rise to the third of the charges against the Company laid pursuant to s 144AA(2), was operatively effected by Mr Al Sarray falsifying the documents, which founded that charge, but not, personally, transmitting those documents to the recipient of them. That transmission was achieved by Mr Al Sarray directing Mr Sidawi to effect that transmission. The consequence of how that transmission transaction arose and was effected creates criminal liability for the Company for that transaction as a consequence of s 169C of the POEO Act. However, because the information was not directly transmitted by Mr Al Sarray, the Prosecutor could not charge Mr Al Sarray with an offence and, although Mr Sidawi could have been charged with an offence pursuant to s 144 AA(1) of the POEO Act, the Prosecutor had not elected (quite properly, in my assessment of the factual circumstances) to commence such a prosecution. Nonetheless, this offending conduct constitutes a third element of such conduct to be attributed to Mr Al Sarray for the purposes of my sentencing consideration in these proceedings.
It is also necessary to consider whether or not the offending conduct on 12 June 2017, where the falsified material was transmitted from Sami's office computer, is appropriate to be attributed to Mr Al Sarray rather than, as (at least initially) was proposed by the Prosecutor, to be attributed to Sami.
In this regard, I record the following exchange I had with Mr Potts (Transcript 23 August 2022, page 506, line 44 to page 507, line 16): HIS HONOUR: …. I understand the basis upon which you make the submission concerning the three subs 2 offences, but given that if I reject the proposition that Mr Allam was the emailer of the 144AA(1) offence, as I've indicated by not calling on you on that, but I'm minded to do so on the basis of Mr Al Sarray's evidence, doesn't that at least set that aside from anything that Mr Al Sarray did, because you are asking me not to infer that it was Mr Allam, a negative, but you don't ask me to infer a positive that it was Mr Al Sarray. POTTS: No, your Honour, I don't. HIS HONOUR: So doesn't that mean that even if I accept that the other three, the Al Sarray offences ‑ let me call them that ‑ were a single course of conduct, that at least the anonymised one was a separate non‑part of the same course of conduct. POTTS: I think, but for this, your Honour, and I'll have to get someone to correct me, but I think the 12 June email, which is the one your Honour is referring to, recycles the same or some of the same dockets that were used in the 18 April offending, so there is a link, in our submission, that's apparent on the face of the 12 June email, even without your Honour knowing or being invited to find who it was within ACE as a corporation that hit the send button on the email.
However, a further reading of the total transcript of both the liability and sentencing hearings leads me to the conclusion (in an R v Olbrich sense as beneficial to the Company) that I am able to draw a relevant inference concerning the sending of the 12 June 2017 e‑mail.
I am satisfied that, although there was evidence that Sami had concerns about the provision of requested documentation to demonstrate the manner of disposal of some waste for which the Company had had responsibility, there is no proper basis upon which I could conclude that this could lead to any determination (on the balance of probabilities) that Sami had effected the transmission of that material.
On the other hand, there is the uncontradicted evidence of Mr Al Sarray as to the unconstrained general access which he had had to the Company's information technology systems; his use of the computer in Sami's office; his access to Sami's passwords and e‑mail and messaging programs; and his ability to use software which enabled him to send not only e‑mails in Sami's name, but also to send messages in Sami's name, so that those e‑mails and messages appeared to have been authored by Sami rather than by Mr Al Sarray. This leads me to the conclusion that, on the balance of probabilities, the material transmitted on 12 June 2017 concerning waste which was false and misleading in a material respect (giving rise to the charge pursuant to s 144AA(1) was transmitted by Mr Al Sarray.
This finding, on the balance of probabilities, therefore establishes, in these circumstances, a matter favourable to the Company on this standard of proof (R v Olbrich) and therefore requires to be taken into account in these sentencing proceedings. The fact that I have found, on this basis, that this incident of transmission of information concerning waste, in the course of dealing with waste where that information was false and misleading in a material respect, is to be attributed to Mr Al Sarray has no potential external consequences (for Mr Al Sarray), as my finding has been made on the balance of probabilities rather than on the criminal standard of proof and, in any event, the potential to charge Mr Al Sarray with any breach of s 144AA arising from this is now time‑barred.
For the above reasons, I am satisfied that the offending conduct that provides the foundation for all four of the charges to which the Company has pleaded guilty should be regarded as a single course of conduct carried out by Mr Al Sarray over the period of the seven‑and‑a‑half months between April and December 2017.
In reaching this conclusion, it is unnecessary to set out any detail of the evidence which Mr Al Sarray gave in these sentencing proceedings as to why he carried out, or caused to be carried out, any of the offending conduct providing the basis for the charges against the Company. It is sufficient, I am satisfied, that the pattern of the four elements of transmission of such information, although undertaken over a period of some seven‑and‑a‑half months, can be understood in a different fashion to the fashion available to Duggan J in her consideration of the two, there apparently isolated, incidents of offending conduct by Mr Al Sarray in supplying such information to two separate and unrelated project developers.
For the above reasons, I am satisfied that the appropriate course to be undertaken in determining the penalties to be imposed on the Company for its offending conduct requires a degree of moderation of those penalties to reflect proper matters of totality and accumulation in deriving the final overall penalty outcome to be imposed on the Company.
However, for the purposes of structuring those penalties and, concurrently, sending the appropriate message of general deterrence, I am satisfied that the headline penalty for Mr Al Sarray's offending conduct on 18 April 2017 should not be adjusted but that adjustments to the further three penalties are appropriate to be made.
As a consequence of what I have set out above, I am satisfied that it is appropriate to reduce the starting penalty for the second s 144AA(2) offence by $30,000 and to apply a further additional reduction of the same amount to the third of those offences. Applying this approach proportionally, the appropriate reduction to give regard for the necessity to reflect totality and accumulation of penalties is a reduction of $15,000 in the otherwise appropriate starting penalty for the single offence pursuant to s 144AA(1).

Introduction

The Prosecutor proposed that I should make a publication order requiring the Company to publicise its convictions and the outcome of these sentencing proceedings. The terms of the order proposed by the Prosecutor were: The Court orders: (1) Pursuant to section 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the defendant, at its own expense, must, within 28 days of this order, cause a notice in the form of Annexure "A" to be placed within the following publications: (a) Inside Waste magazine within the first 15 pages of the [insert month] issue at a minimum size of a quarter of a page; (b) Sydney Morning Herald or the Daily Telegraph within the first 15 pages on a right‑hand page at a minimum size of a quarter of a page; and (c) Pursuant to section 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the defendant, at its own expense, must, within 28 days of this order, cause a notice in the form of Annexure "A" to be placed on the "home" section of its website https://www.acedemolition.com.au for a minimum of 30 days. (2) Within 42 days of the date of this order, the defendant must provide to the prosecutor a complete copy of the pages of the publications on which the notice appears.
The making of this proposed order (together with elements of the detail that would be involved arising out of the making of such an order) were opposed on behalf of the Company. It is, therefore, necessary to address broad matters of principle concerning the making of publication orders, as well as addressing the specific matters pressed for the Company concerning what would be required to be published if such an order was to be made.
Part 8.3 of the POEO Act permits the making of additional orders upon conviction for offences under this legislation. Section 250(1)(a), earlier set out, expressly makes it clear that orders made pursuant to Pt 8.3 are in addition to and not in substitution for the appropriate punishment for an offence for which a conviction (here relevant) is entered. The difference between penalties imposed on conviction and additional orders was addressed by the Court of Criminal Appeal in Budvalt. In that matter, Price J (Preston CJ of LEC and Adamson J agreeing) said, at [56] to [68]: 56 The appellant company's complaint is that the judge rejected Mr Elliott's submission that the making of a publication order would be a matter to be taken into account in determining the amount of any fine. His Honour said that an order under s 353G of the WMA was an "additional" order and Mr Elliott had not cited any authority for his submission. [18] 57 The appellant company's argument in this Court is founded on the deterrent effect of a publication order. The argument is that the amount of the fine may be reduced as the need for deterrence is lessened when a publication order is made. 58 The deterrent effect of publication orders is well recognised. As Preston CJ of LEC explained in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 ("Waste Recycling and Processing") at [242]: "[242] Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma..." 59 Publication orders serve purposes other than deterrence. In Harris v Harrison, [19] Simpson J observed at [118] "that a publication order, while not a penalty, is intended to be remedial and even educative, rather than punitive, and to have a deterrent effect". 60 The construction of the WMA does not support the appellant company's argument. Orders under s 353G fall within Part 3A of the WMA whereas penalties which are imposed under s 363B fall within Part 5 of the WMA. 61 Part 3A provides for the making of court orders in connection with offences and applies when a court finds a person guilty of an offence against the WMA. 62 The orders that may be made under Part 3A specifically include orders for restoration and prevention (s 353B), orders for costs, expenses and compensation (s 353C), and orders regarding monetary benefits (s 353F). An order for publication under s 353G(1)(a) is an additional order to the orders that may be made under the Part. Section 353A is as follows: 353A Orders generally (1) One or more orders may be made under this Part against the offender. (2) Orders may be made under this Part in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. (emphasis added) 63 Part 5 of the WMA provides for legal proceedings and appeals which includes the maximum penalties for offences (s 363B), proceedings for offences (s 364) and matters to be considered in imposing a penalty for an offence against the WMA (s 364A). 64 The separation of orders and penalties in distinct parts of the WMA and the language employed in s 353A(2) point to the independent determination of penalties and orders as does the sentencing regime for penalties established by s 364A. 65 Section 364A(1) specifies in sub‑paragraphs (a) to (k) the matters that "the court is to take into consideration" when imposing a penalty, none of which includes the making of a publication order. Furthermore, s 364A(1) does not require a court when imposing a penalty to take into consideration any of the orders that a court might make under Part 3A. 66 The absence of any reference to Part 3A orders in s 364 stands in stark contrast to s 364A(1)(k), which obliges the court to take into consideration: 364A Matters to be considered in imposing penalty … (k) any civil penalty that has been imposed on the person under section 60G in relation to the conduct from which the offence arises. 67 Section 60G enables the Minister to impose "a charge for water taken (which may include a penalty component) not exceeding 5 times the value of the water so taken…" [20] 68 I am not persuaded that the court is obliged when determining the appropriate penalty to take into consideration the making of a publication order. The determination of the appropriate penalty is a discretionary judgment which is to be exercised separately from the exercise of the discretion to make a publication order or any other order under Part 3A.
That discussion was in the context of a proposal on behalf of the defendant in those proceedings that the cost of compliance with a publication order made pursuant to s 353G of the Water Management Act 2000 (the Water Management Act) should be taken into account when fixing the financial penalty to be imposed as a consequence of that defendant's offending conduct. Although the prosecution in Budvalt was for a breach of the Water Management Act, the principles discussed in the decision of the Court of Criminal Appeal are equally applicable here as the publication order was made pursuant to s 353G of the Water Management Act, a provision in Pt 3A of that Act, a Part which is in the same terms as Pt 8.3 of the POEO Act.
What arises in these sentencing proceedings is not the proposal that the cost of compliance with a publication notice should be taken into account in fixing the penalties here appropriate to be imposed on the Company. Instead, what is advanced on behalf of the Company is that making an order imposing the requirement for a publication notice, if imposed for the purposes of general deterrence, would be contrary to the objectives for sentencing, in particular, that contained in s 3A(b) of the Sentencing Procedure Act. This provision (emphasis added) is in the following terms: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows - (a) …, (b) to prevent crime by deterring the offender and other persons from committing similar offences, The Company's submissions

The submissions for the Company

Mr Potts outlined, in his oral submissions, why it was submitted for the Company that I could not impose a publication order because to do so would be contrary to the above quoted objective of the Sentencing Procedure Act. He submitted (Transcript 23 August 2022, page 514, line 13 to page 515, line 25): POTTS: … But, what we say in substance is this, your Honour, that it doesn't seem to be in dispute that pt 8.3 of the POEO Act contains orders that are consequent upon either conviction or s 10 finding. HIS HONOUR: Yes. POTTS: And so they're logically discrete and separate from a sentencing power. So, the sentencing exercise is entirely discrete and separate from what I'll call the additional orders power in pt 8.3. HIS HONOUR: Yes. POTTS: It's clear, we say, that when determining whether to exercise any of the various powers under pt 8.3, the purpose actuating the Court's discretion, so the reason why the Court makes an order and exercises its undoubted discretion to make additional orders under pt 8.3, cannot be, we submit, a punitive purpose in order to impose additional punishment. HIS HONOUR: I accept that proposition as a broad proposition. POTTS: That may be an incident effect, if there's another purpose, what we call a remedial or preventative purpose. If there's an incident effect, that much would be fine. But if the purpose which drives the Court to exercise the discretion is to impose additional punishment, we say that would be an impermissible purpose, and one which seeks to impose an additional punishment not authorised by law. And so our point is, in order to be persuaded, your Honour should make, I'm sorry, there's an extension to that which requires some elaboration, and it's this, that under the Crimes (Sentencing Procedure) Act 1999, what the Court is told by that Act is that there are various purposes for sentencing in s 3A of that Act, and 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, et cetera. We develop our submission by putting this proposition, that deterring other persons from committing similar offences is by dint of that statutory description of the purposes an aspect of the sentencing process and an aspect of the punishment process for which the sentence is imposed. It's built in, we say, to the sentence that your Honour is authorised to impose under s 144AA(1) and 144AA(2). I'll come to Budvalt in a moment to address your Honour on what that case did and did not decide. What we submit by extension of the first proposition which in general terms I put to your Honour is that if the only purpose of making a pt 8.3 order, including a publication order, were to instil general deterrence, that, we say, is an impermissible purpose because it's part of the punishment and part of the sentence. What we say is, on a proper view, on a statutory construction view of pt 8.3, the real purposes of pt 8.3 are to either remediate consequences of the offending, to take some step to prevent the ongoing consequence of those offending, or it has to be, in our respective submission, remedial and corrective in nature. It can't be punitive. That's really our point, and we say, in order to properly and lawfully exercise the discretion, your Honour needs to be satisfied, even if there is an incidental punishment purpose, but your Honour needs to be satisfied what is the purpose for which I'm being asked to do this, how is it relevantly remedial in the sense that it will remediate some consequence of the offending conduct or prevent its occurrence, and it's only if your Honour can form a view that there is a purpose of that character which is properly within the statutory purposes of the provisions in that part, your Honour can then make the publication order.
As can be seen from the above transcript extract, Mr Potts acknowledged that this was a novel proposition advanced on behalf of the Company, one which, as far as he was aware, had not previously been addressed.

The Prosecutor's subsequent response

After the conclusion of the submissions for the Company, the Prosecutor responded, briefly, to what had been advanced on behalf of the Company in resisting me making a publication order. The Prosecutor submitted (Transcript 23 August 2022, page 520, line 46 to page 521, line 1): PROSECUTOR: The other matter is a matter of law, your Honour, and that is the proper construction of pt 8.3 of the POEO Act. So far as concerns publication orders, your Honour, we submit that the purpose is to instil confidence in the regulatory scheme by bringing home to people that offenders against the requirements of the scheme, the obligations imposed by the scheme, will be punished.

Consideration

I have earlier explained why, in my fixing of the penalties appropriate to be imposed on the Company for the four offences of which it is to be convicted, sentencing the Company having regard to the objective circumstances of its offending conduct in each instance and having regard to the Company's subjective circumstances, is the process of instinctive synthesis demanded for my determination of what the appropriate starting monetary penalties are for each of the offences. This step is the necessary prerequisite to applying the discount I have considered appropriate for the Company's guilty pleas to the four offences for which it is being sentenced and, then, moving to consider questions of totality and accumulation in the fashion I have also addressed earlier as giving rise to a degree of moderation of the penalties finally to be imposed. Having regard to the need for general deterrence is an element of that instinctive synthesis process.
The making of a publication order, in conjunction with the imposition of financial penalties imposed for breaches of the POEO Act, has become a common occurrence as an outcome for environmental prosecutions in this Court (bearing in mind that less serious environmental prosecutions are not infrequently undertaken in the Local Court, a tribunal where the power to impose additional orders pursuant to Pt 8.3 of the POEO Act is not available to a sentencing Magistrate).
Whilst there has been frequent commentary in sentencing decisions of this Court as to the utility of publication orders for general deterrence purposes and some commentary concerning the "name and shame" utility of such orders, such commentary has been made in the context where there has been no resistance to the making of such publication orders (although there have been disputes as to wording or as to the publications to be specified for the publication of the notice describing the particular defendant's conviction).
Indeed, in two recent decisions of my own (Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75 at [91] and Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113 at [179] and [180]), I have written of the desirability of sending a deterrent message to others involved in the relevant industry in which the defendant in each of those cases was engaged.
However, as I observed to Mr Potts during the course of his submissions on this topic, a publication notice should be regarded as having a broader community educative function about environmental law enforcement, an educative function not directed merely at those who might also be engaged in the same industry as the defendant.
Here, although the specific requirement for publishing the notice in Inside Waste magazine is likely to have, as its dominant outcome, communication of an industry specific deterrent effect (and accepting that the casual readership of this publication is likely to be low), the publication of the notice in the Daily Telegraph (this being the publication which I have selected as that which is appropriate, from the two options proposed by the Prosecutor) will undoubtedly have that broader community educative outcome.
Indeed, given that there is, unfortunately, a reasonably regular stream of such publication orders across a range of industries as a result of environmental transgressions, the publication order being made with respect to the Company's offending conduct merely provides an additional element in a mosaic of such orders, making it clear in a broad community context that breaches of environmental laws are not matters to be dealt with in a trifling fashion.
This broad community educative function is, in itself, sufficient to provide a separate and discrete basis for imposing such a publication requirement on the Company.
However, it is also necessary to address what Mr Potts advanced on behalf of the Company concerning what I understood to be a submission that, in effect, incorporating an element of general deterrence in the monetary penalty to be imposed and making a publication order also for deterrent purposes would amount to double imposition of a penalty for this purpose.
I am satisfied that that position is also to be rejected, separately, from the community educative basis upon which such an order might be founded. It is in this context that I am satisfied that the reasoning of the Court of Criminal Appeal in Budvalt as earlier set out applies by analogy. The financial penalties imposed as a result of consideration mandated not only by the objectives of the Sentencing Procedure Act, but also the specific factors potentially or actually engaged in consideration of matters in s 21A(2) and (3) of that Act, lead to the determination of what is the potential financial penalty to be imposed within the upper limit of the maximum financial penalty defined by the offence creating statutory provision.
Here, the Company stands to be sentenced for one offence where the maximum penalty available to be imposed is half of that of the maximum penalty available for each of the other three offences to which the Company has pleaded guilty.
In each of the instances, the mandated process of instinctive synthesis has been undertaken by me to determine the appropriate starting penalty for each of the four charges. That instinctive synthesis process, one requiring me to have regard to the objective characterisation of the Company's offending conduct and of the specific factors peculiar to the Company leads to my determining those pre‑discount and pre‑moderation starting penalties.
Part 8.3 of the POEO Act sits separately from, and expressly in addition to, any monetary penalties determined through the mandated instinctive synthesis process requiring consideration of the relevant objective and subjective factors.
It seems to me that the sentencing exercise undertaken through the framework set out by the Sentencing Procedure Act permits the necessity for general deterrence to be considered in the fixing of financial penalties. However, because publication orders are expressly separate from, and in addition to, those monetary penalties, a purposive reading of how this total potential sentencing regime under the POEO Act operates means that the incorporation of the desirability of deterring others as provided for in s 3A(b) of the Sentencing Procedure Act cannot operate to exclude an order pursuant to s 250(1)(a) of the POEO Act, even if the purpose of the resulting publication was to be regarded as being exclusively for general deterrent purposes.

The terms of the notice to be published

Three matters arose in the context of the Prosecutor's proposed publication order. The first related to the choice of the general publication in which the notice is to be inserted. After I raised with the Prosecutor whether or not the Daily Telegraph might be a more appropriate publication than the Sydney Morning Herald, the Prosecutor subsequently indicated that it was appropriate for me to choose which of those publications was the appropriate vehicle for the notice. I am satisfied that, for the purposes of achieving the broader community educative function, publication in the Daily Telegraph would be appropriate.
Two aspects of the proposed text of the notice were raised by the Company.
For the first of them, the Company proposed that, after the words "ACE Demolition & Excavation Pty Ltd", in the second paragraph of the notice, the following additional words should be added: by one of its employees sending four emails so that the relevant sentence would read, in its entirety: In April, June and December 2017, Ace Demolition & Excavation Pty Ltd, by one of its employees sending four emails, supplied a total of approximately 603 weighbridge disposal dockets (also known as tipping dockets) and three documents containing summaries of information relating to the disposal of waste which variously misrepresented or falsely recorded the source site of asbestos and other waste deposited at three landfill facilities.
This position was opposed by the Prosecutor on the basis that (Transcript 23 August 2022, page 519, lines 3 to 15): Your Honour, the insertion proposed in the second paragraph, of the words "by one of its employees sending four emails", minimises what it was that was done. Firstly, anything a company done will always be by its employees or officers or its board, and really isn't the issue that needs to be brought home to people, that the breach of the legislation brings with it punishment, but, secondly, it was more than just four emails. There were all these attachments, and it was the attachments that did the harm, in our respectful submission, and they involved dishonesty, and they were what resulted in the emails being false and misleading, not the emails themselves, so unless there is a far more detailed description to accompany the reference to four emails, we would submit that the proposal that those extra words be inserted not be accepted.
I am satisfied that the position advanced by the Prosecutor in resisting this amendment is to be preferred. The proposed amendment would have the effect of limiting a proper understanding of the scope of the Company's offending conduct. I am also satisfied that the position advanced by the Prosecutor is an appropriately balanced one under the circumstances.
The second amendment sought by the Company (being a reference to asbestos), was accepted by the Prosecutor as being appropriate in light of what was now reflected in the Statement of Agreed Facts. This accepted amendment is reflected in the terms of the wording of the notice set out in Annexure B to this decision.
During the course of the hearing, I had asked the Prosecutor whether any publication order which I made should encompass publication on the Company's website and any social media account which the Company might maintain. The Prosecutor subsequently advised me that no order for social media publication in a broad sense was proposed for the notice proposed to be ordered pursuant to section 250 (1) (a) of the POEO Act but that the Prosecutor considered it appropriate that I order the notice be published on the Company's homepage on its website.
I am satisfied that such electronic publication would be appropriate and this will be included in the orders at the conclusion of this judgment (together with a requirement as to the time period during which the notice is to appear on the Company's website and a requirement that a screenshot of the Company's homepage on its website be provided to the Prosecutor at the same time as the relevant pages of the publications in which the notice is to be printed are provided to the Prosecutor).

A moiety order

Section 122 of the Fines Act provides the basis upon which a prosecutor can be awarded a moiety (50%) of any fine which is imposed on a defendant as punishment for offending conduct. In its oral submissions, the Prosecutor sought that a moiety of the overall penalty to be imposed on the Company be paid to the Prosecutor.
Preston CJ discussed, in Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 between [102] and [111], the origins of, and broad operative scope for, orders awarding a moiety to a prosecutor pursuant to s 122 of the Fines Act.
Making such orders provides money, in addition to a prosecutor's conventional budgetary funding, which is likely to support the sustaining, on a more general basis, of environmental law enforcement activities of the prosecuting authority.
Making such an order concerning the total of the financial penalties to be imposed, in this instance, is not objected to by the Company.
It is also sufficient to note that the discretion to make such an order is broad and has frequently been exercised in this Court (as I will in this instance).

Investigation costs

The Prosecutor does not seek an order that the Company pay any investigation costs arising out of these proceedings.

Costs

As earlier discussed, the Company does not contest that it is appropriate that I make an order pursuant to s 257G(b) of the Criminal Procedure Act that the Company pay the Prosecutor's costs of its prosecution of the Company has agreed or assessed. I am satisfied that it is appropriate to make that order.

Orders

In Matter No 357465 of 2020, the orders of the Court are: 1. ACE Demolition and Excavation Pty Ltd (the Defendant) is guilty of an offence pursuant to s 144AA(2) of the Protection of the Environment Operations Act 1997 in that, on or about 18 April 2017, the Defendant transmitted information concerning waste during the course of dealing with waste where that information was false or misleading in a material respect and the Defendant knew that the information was false or misleading in a material respect; 2. The Defendant is convicted; 3. The Defendant is fined $300,000; and 4. The Defendant is to pay a moiety (50%) of the fine to the Registrar of the Court for payment to the Prosecutor pursuant to s 122 of the Fines Act 1996.
In Matter No 357466 of 2020, the orders of the Court are: 1. ACE Demolition and Excavation Pty Ltd (the Defendant) is guilty of an offence pursuant to s 144AA(2) of the Protection of the Environment Operations Act 1997 in that, on or about 2 June 2017, the Defendant transmitted information concerning waste during the course of dealing with waste where that information was false or misleading in a material respect and the Defendant knew that the information was false or misleading in a material respect; 2. The Defendant is convicted; 3. The Defendant is fined $270,000; and 4. The Defendant is to pay a moiety (50%) of the fine to the Prosecutor pursuant to s 122 of the Fines Act 1996.
In Matter No 357468 of 2020, the orders of the Court are: 1. ACE Demolition and Excavation Pty Ltd (the Defendant) is guilty of an offence pursuant to s 144AA(2) of the Protection of the Environment Operations Act 1997 in that, on or about 2 December 2017, the Defendant transmitted information concerning waste during the course of dealing with waste where that information was false or misleading in a material respect and the Defendant knew that the information was false or misleading in a material respect; 2. The Defendant is convicted; 3. The Defendant is fined $240,000; and 4. The Defendant is to pay a moiety (50%) of the to the Prosecutor pursuant to s 122 of the Fines Act 1996.
In Matter No 357467 of 2020, the orders of the Court are: 1. ACE Demolition and Excavation Pty Ltd (the Defendant) is guilty of an offence pursuant to s 144AA(1) of the Protection of the Environment Operations Act 1997 in that, on or about 12 June 2017, the Defendant transmitted information concerning waste during the course of dealing with waste where that information was false or misleading in a material respect; 2. The Defendant is convicted; 3. The Defendant is fined $133,650; and 4. The Defendant is to pay a moiety (50%) of the fine to the Prosecutor pursuant to s 122 of the Fines Act 1996.
In all matters, the orders of the Court are: 1. ACE Demolition and Excavation Pty Ltd (the Defendant) is to pay the Prosecutor's costs as agreed or assessed pursuant to s 257G(b) of the Criminal Procedure Act 1989; 2. The exhibits are returned; and 3. Pursuant to section 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the Defendant, at its own expense, must, within 28 days of this order, cause a notice in the form of Annexure "B" to be placed within the following publications: 1. Inside Waste magazine within the first 15 pages of the next available issue at a minimum size of a quarter of a page; 2. The Daily Telegraph within the first 15 pages on a right‑hand page at a minimum size of a quarter of a page; and 3. Pursuant to section 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the Defendant, at its own expense, must, within 28 days of this order, cause a notice in the form of Annexure "A" to be placed on the "home page" section of its website https://www.acedemolition.com.au for a minimum of 30 days. 4. Within 42 days of the date of this order, the Defendant must provide to the Prosecutor a complete copy of the pages of the publications on which the notice appears.

I certify that this and the 124 preceding pages are a true copy of the reasons for the judgment of the Honourable Justice Moore. ………….………………………………. Associate 2 February 2023

Annexure A Summary Table of Charges Relevant Charge No. POEO Details of Email Pleaded particulars re false or misleading in a material respect Sections ACE ‑ 2020/357465 ACE ‑ 144AA(2) Email sent on 18 April 2017 at 7:23pm by Munaf Al Sarray to Peter Maroun (Top Pacific Construction Aust Pty Ltd) (i) In respect of 70 documents purporting to be weighbridge dockets issued by SUEZ in relation to disposal of 70 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the Suez Elizabeth Drive Landfill ‑ the dockets were not issued by Suez in relation to those circumstances; and/or Allam ‑ 2020/357476 Allam ‑ 169A (144AA(1)) (ii) In respect of 148 purported weighbridge dockets issued by Dial‑A‑Dump in relation to disposal of 148 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the Dial‑A‑Dump Landfill ‑ 140 of the documents were not dockets issued by Dial‑A‑Dump in relation to those circumstances. ACE ‑ 2020/357466 ACE ‑ 144AA(2) Email sent on 2 June 2017 at 12:50pm by Munaf Al Sarray to Glen Allen (Westbourne Constructions Pty Ltd) (i) In respect of 70 documents purporting to be weighbridge dockets issued by SUEZ in relation to disposal of 70 truckloads of soil contaminated with asbestos from the Zetland Premises to the Suez Elizabeth Drive Landfill ‑ those dockets were not issued by Suez in relation to those circumstances; and/or Allam ‑ 2020/357475 Allam ‑ 169A (144AA(1)) (ii) In respect of 147 purported weighbridge dockets issued by Dial‑A‑Dump in relation to disposal of 147 truckloads of soil contaminated with asbestos from the Zetland Premises to the Dial‑A‑Dump Landfill ‑ 134 of the documents were not dockets issued by Dial‑A‑Dump in relation to those circumstances. (i) In respect of 48 dockets purporting to be weighbridge disposal dockets issued by SUEZ purporting to contain info re disposal of 48 truckloads of soil contaminated with asbestos from Wolli Creek Premises to Suez Elizabeth Drive Landfill ‑ the dockets were not issued by SUEZ in relation to those circumstances; and/or (ii) In respect of an Excel spreadsheet titled "Ace 120217 to 300317" purporting to contain info re disposal of 70 truckloads of soil contaminated with asbestos from Wolli Creek Premises to Suez Elizabeth Drive Landfill ‑ the 70 truckloads were not related to disposal of soil from Wolli Creek to Suez; and/or ACE ‑ 2020/357467 ACE ‑ 144AA(1) Email sent on 12 June 2017 at 11:24am by "sami@acedemolition.com.au" to Eric Gerges (El Australia Pty Ltd) (iii) In respect of 153 purported weighbridge dockets issued by Dial‑A‑Dump re disposal of 153 truckloads of waste material from Wolli Creek Premises to the Dial‑A‑Dump Landfill ‑ 141 of these were not dockets issued by Dial‑A‑Dump in relation to those circumstances; and/or (iv) In respect of an Excel spreadsheet titled "Wolli Creek Summary" purporting to contain info re disposal of 95 truckloads of soil contaminated with asbestos from Wolli Creek Premises to the Dial‑A‑Dump Landfill ‑ 89 of these truckloads were not related to those circumstances. ACE ‑ 2020/357468 ACE ‑ 144AA(2) Email sent on 2 December 2017 at 1:53pm by Ameer Sidawi to Eric Gerges (El Australia Pty Ltd) In respect of a document titled 'Wolli Creek Summary' purportedly created by Besmaw purporting to contain information regarding the disposal of approximately 622 truckloads of waste material from the Wolli Creek Premises to the Holt Landfill ‑ that document was not created by Besmaw, and none of the truckloads referred to in the document were related to the disposal of waste material from Wolli Creek Premises to the Holt Landfill. Allam ‑ 2020/357477 Allam ‑ 169A (144AA(1))

Annexure B Ace Demolition & Excavation Pty Ltd convicted of supplying information about waste knowing that the information was false or misleading On 2 February 2023, Ace Demolition & Excavation Pty Ltd was convicted by the Land and Environment Court of NSW of three offences of supplying information about waste knowing that the information was false or misleading in a material respect pursuant to section 144AA(2) of the Protection of the Environment Operations Act 1997 (NSW), and one offence of supplying information about waste that was false or misleading in a material respect pursuant to section 144AA(1) of the Protection of the Environment Operations Act 1997 (NSW). In April, June and December 2017, Ace Demolition & Excavation Pty Ltd supplied a total of approximately 603 weighbridge disposal dockets (also known as tipping dockets) and three documents containing summaries of information relating to the disposal of waste which variously misrepresented or falsely recorded the source site of asbestos and other waste deposited at three landfill facilities. The weighbridge disposal dockets and summaries were supplied by Ace Demolition & Excavation Pty Ltd to two separate entities who were clients of the company, as well as to the environmental consultants for one of the entities, in relation to two separate development sites located in Wolli Creek and Zetland in Sydney, respectively. Ace Demolition & Excavation Pty Ltd was prosecuted by the NSW Environment Protection Authority and pleaded guilty to the four offences. The company was sentenced by the Land and Environment Court to:

pay fines totalling $943,650; and
pay the Environment Protection Authority's legal costs. This notice was placed by order of the Land and Environment Court of New South Wales.

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: 02 February 2023

Both the CSPA and Criminal Procedure Act 1986(NSW)

Environment Operations Act 1997(NSW)

Environment Protection Authority v Afram [2022] NSWLEC 38 Environment Protection Authority v Allam [2021] NSWLEC 103 Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7 Environment Protection Authority v Al‑Sarray [2022] NSWLEC 31 Environment Protection Authority v Barnes (2006) NSWCCA 246 Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott [2016] NSWLEC 167 Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75 Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) [2020] NSWLEC 166 Environment Protection Authority v Mouawad (No 3) [2021] NSWLEC 16 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Markarian v R (2005) 229 CLR 357; [2005] HCA 25 Mohindra v R [2020] NSWCCA 340 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Chan [2000] NSWCCA 345 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v O'Neill (1979) 2 NSWLR 582 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54 Category: Sentence Parties: Environment Protection Authority (Prosecutor) ACE Demolition & Excavation Pty Ltd (Defendant) Representation: Counsel: Mr D Buchanan SC/Ms F Graham, barrister (Prosecutor) Mr J Potts SC/Ms K Morris, barrister (Defendant)

(2013) 199 LGERA 236

(2006) 148 LGERA 299

(2009) 170 LGERA 253

Environment Protection Authority v ACE Demolition & Excavation Pty

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