Environment Protection Authority v Al-Sarray

Environment Protection Authority v Al-Sarray - [2022] NSWLEC 31 - NSWLEC 2021 case summary — Zoe

[5]

Evidence

In addition to the AASOF a Sentencing Assessment Report (SAR) prepared by Corrective Services NSW dated 7 December 2021 was received by the Court into evidence. The salient matters identified in that report were: Attitudes • Mr Al-Sarray minimised his offending by stating that he was merely helping out one company in relation to the quantity of waste they were disposing of, having been attributed to the waste disposal docket (WDD) of another company. • Mr Al-Sarray claimed that at the time of his offending he was not aware that his actions constituted an offence, however, upon reflection he recognises his wrongdoing and attributed his offending to foolish-decision-making and complacency. … Financial • Mr Al-Sarray stated that he has been experiencing significant financial hardship in 2017 when the offences occurred, which have continued until now. He denied receiving any financial benefit from his offending behaviour/s. Responsivity Insight into impact of offending • Mr Al-Sarray demonstrated no insight into the impact of his offending, evidenced by his statement that his actions did not have any negative impact on the environment or any one person or company other than himself.
The SAR identified Mr Al-Sarray as having a low risk of reoffending and identified him as a Tier One low risk offender being suitable for undertaking community service work should a supervised order be considered appropriate.
In addition, a report was tendered from Dr Tanveer Ahmed, consultant psychiatrist dated 11 August 2021. Dr Ahmed found that Mr Al-Sarray had no formal diagnosed psychiatric history, however, Dr Ahmed formed the following opinion with respect to Mr Al-Sarray's mental condition: Mr Al-Sarray in my opinion does satisfy the criteria for a Posttraumatic Stress Disorder. I believe this is in partial remission but he has had background symptoms for much of his adult life. He has never sought formal treatment. These have surfaced on occasions, particularly when events in Iraq come to the fore in current affairs and news. He gives a clear history of nightmares, flashbacks, irritability and some avoidance behaviours over a long period of time. This has waxed and waned in significance. He gives an especially strong history in the first five years after coming to Australia where he suffered disrupted sleep and wondered if there would be missile attacks. He also had flashbacks and nightmares of dead bodies and smells of bombs and fire. Impressively he has been able to function quite well within these limitations. He has often been quick to temper and says he has sometimes engaged in conflict or accusations which were more to do with his own paranoia. I cannot make a clear link between his symptoms and the crime. He does say his symptoms worsened at a similar time to when the crime occurred because events in Iraq worsened. He said he was much more irritable, was suffering disrupted sleep and appetite, sometimes screaming at his wife and at night [sic]. It is plausible that this affected his judgement, impulse control and organisation which contributed to the charges. It also [sic] plausible that Munaf, who is very much a survivor through many life stressors from the ravages of war to suffering the 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.
Details of Mr Al-Sarray's financial position were tendered. The financial position was stated as: 1. I am currently employed as a Project Manager with ACE Demolition & Excavation Pty Ltd ("ACE"). I earn a salary. I earn about $170,000.00 a year. 2. Apart from my employment with ACE I also run a trucking company called MNA Contracting Pty Ltd. The company subcontracts only to ACE. I personally own 3 trucks and run the sub-contracting business through MNA Contracting Pty Ltd. I have 3 trucks with an estimated value of about $300,000.00. I have a mortgage over one of the trucks in the amount of $42,702.06. I attach a copy of an email about the outstanding balloon that is to be refinanced for the encumbered truck. 3. I am yet to submit my tax return for the year ending 30 June 2021. My taxable income for the year ending 30 June 2020 was $111,411.00. I am expecting my taxable income for the year ending 30 June 2021 to be higher. 4. I own a home 13 Westminster Street, Bexley. I also own an investment property in Arncliffe. The Arncliffe property is rented for $620 per week. The amount outstanding in relation to both mortgages is $2,058,666.41. I attach a copy of the latest mortgage statements in my possession for both properties. 5. I live with my wife and 2 children in the Bexley property. My children are aged 5 and 3. My wife works as a nurse on a part time basis in Macquarie Hospital.

[6]

Statutory provisions

As at the date of the offence the relevant statutory provision of the POEO Act creating the offences provided: 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) in the case of a corporation - $250,000, or (b) in the case of 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) in the case of a corporation - $500,000, or (b) in the case of an individual - $240,000 or imprisonment for 18 months, or both. (2A) If the court is satisfied that a person charged with an offence under subsection (2) is not guilty of that offence but is satisfied on the evidence that the person is guilty of an offence under subsection (1), the court may find the person guilty of the offence under subsection (1), and the person is liable to punishment accordingly. (2B) Proceedings for an offence under subsection (2) may not be dealt with before the Local Court despite section 215. (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.

[7]

The purposes of sentencing

In determining a sentence regard must be had to the purposes for which a sentence may be imposed. Such purposes are provided for in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) as: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
Section 21A of the CSP Act sets out the factors that are required to be taken into account in sentencing. For the purposes of determining sentence in these proceedings the following factors were identified as relevant factors for consideration: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters - (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. … (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows - … (i) the offence was committed without regard for public safety, … (o) the offence was committed for financial gain, The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. … (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows - … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, … (i) the remorse shown by the offender for the offence, but only if - (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23), … (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.
It is to be noted that where a Prosecutor contends that a particular sentencing consideration should be treated as an aggravating feature it must establish by evidence, beyond reasonable doubt the presence of such aggravating factor. Where a Defendant contends for the presence of a mitigating factor in sentencing it must establish the presence of such factor on the balance of probabilities: Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [131].
As Mr Al-Sarray has entered a plea of guilty to each of the charges, the provisions of s 22 of the CSP Act are also relevant and provide: 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) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court. (5) This section applies only to a sentence for an offence that is dealt with summarily or to a sentence for an offence dealt with on indictment to which Division 1A does not apply.
In addition, as the offences arise under the provisions of the POEO Act, s 241 of the POEO Act requires that the following matters, where relevant, are to be considered in sentencing: 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, (f) the presence of asbestos in the environment. (2) The court may take into consideration other matters that it considers relevant.

[9]

Nature of offences and maximum penalty

In determining the objective seriousness of the offence with which Mr Al-Sarray is charged it is appropriate to consider the purpose of the statutory provision in the context of the statutory regime in which the offence arises: Environment Protection Authority v Hanna (2018) 235 LGERA 114 at [97]. In undertaking such a consideration of the purpose, an assessment of the objects of the POEO Act can assist. For the purposes of these proceedings the Prosecutor submitted that the following objects of the POEO Act were relevant: 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, … (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: … (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, …
The Prosecutor further submitted that it was vitally important to achieve the object of the protection of the environment to ensure that waste is tracked reliably and accurately. It adopted the aim of the relevant offence as identified by Preston CJ of the LEC in Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott (2016) 221 LGERA 24 at [62]-[65] (to which I also add Preston CJ's observations at [66]) where he stated: 62 In the case of the offence under s 144AA(2) of the POEO Act, the regulatory objectives include ensuring the proper description of waste; handling, storage, treatment, dealing with and using waste; transporting of waste; and disposing of waste. As was said in the Second Reading Speech for the Protection of the Environment Operations Amendments Bill 2005 that introduced the original version of s 144AA, "It is critical that waste is properly described so that people know what licences to obtain, what precautions to take, what uses the waste could be lawfully put to and where the waste can be lawfully taken" (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 September 2005 at 17643). 63 The importance of s 144AA to the statutory regime for the management of waste and the statutory objectives was recognised by Craig J in Environment Protection Authority v Aargus Pty Ltd [2013] NSWLEC 19 at [54]: The need to be scrupulous in supplying accurate information about 'waste' so that it is correctly categorised is necessary to ensure that pollution is prevented, and that harmful wastes can be eliminated. Moreover, the imposition of an offence for 'false or misleading' information about waste is a mechanism designed to 'strengthen the regulatory framework for environmental protection'. 64 On 1 October 2013, by the Protection of the Environment Operations Amendment (Illegal Waste Disposal) Act 2013, s 144AA was amended to add the offence under s 144AA(2) of supplying information about waste to another person in the course of dealing with the waste, being information that the person supplying the information knows is false or misleading in a material respect. 65 The mens rea offence of knowingly supplying false or misleading information about waste in s 144AA(2) is a more serious offence than the strict liability offence of simply supplying false or misleading information about waste in s 144AA(1), as revealed by the two-fold greater maximum monetary penalties for both corporate and individual offenders and the penalty of imprisonment for an individual offender for the offence in s 144AA(2). These higher maximum penalties were said by the then Minister for the Environment and Minister for Heritage in the Second Reading Speech of the Protection of the Environment Operations Amendment (Legal Waste Disposal) Bill 2013, which introduced the offence under s 144AA(2), to be to "ensure that the penalties for waste levy evasion schemes are consistent with penalties in other legislation for fraudulent activities" (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 May 2013 at 21356). 66 In the case of the offence under s 211(2) of the POEO, the regulatory objectives include ensuring the integrity, efficacy and efficiency of the investigation powers and functions of the regulator, the EPA, under Ch 7 of the POEO Act (s 3(e)). The offence under s 211(2) is a mechanism to "strengthen the regulatory framework for environment protection", one of the objects of s 3(e) of the POEO Act. Provision of false or misleading information to the regulator impedes the investigation of whether there has been compliance with or contravention of the POEO Act, the administration of the POEO Act and the protection of the environment. The seriousness with which Parliament views the offence of knowingly furnishing false or misleading information to the regulator in s 211(2) is revealed by the high maximum monetary penalties, which in the case of a corporation is double the maximum penalty for the offence under s 144AA(2) of the POEO Act.
I accept this characterisation of the nature of the offence and the characterisation of the seriousness of the offending.

[10]

The extent of the harm caused or likely to be caused to the environment by the commission of the offence: s 241(1)(a) of the POEO Act; Reasonable foreseeability of the harm caused or likely to be caused by the commission of the offences: s 241(1)(c) of the POEO Act; The offence was committed without regard for public safety: s 21A(2)(i) of the CSP Act; The presence of asbestos in the environment: s 241(1)(f) of the POEO Act

The POEO Act contains in the dictionary the following relevant definitions for a consideration of this aspect of sentencing: 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. environment means components of the earth, including: (a) land, air and water, and (b) any layer of the atmosphere, and (c) any organic or inorganic matter and any living organism, and (d) human-made or modified structures and areas, and includes interacting natural ecosystems that include components referred to in paragraphs (a)-(c).
The Prosecutor conceded that there was no evidence of actual environmental harm.
However, it was submitted that the harm that arises from the commission of these offences is that there is uncertainty as to the nature of the waste. Without the proper characterisation of waste there cannot be certainty that the waste that was transported did not include harmful wastes such as asbestos. Such uncertainty is compelling in the circumstances of this case having regard to the nature of the wastes that were removed from the Wolli Creek and Zetland Sites. In each of those sites, asbestos had been identified as being present and was removed as part of the waste removal works undertaken by Ace and it is therefore open to the Court to conclude that there was a possibility that the material removed from those sites contained asbestos waste. The inability to establish the precise nature of the waste removed highlights the harm occasioned by the commission of the offence - as due to the offending conduct there is no accurate record of the waste removed.
It was further submitted that the offending conduct undermined the regulatory regime established to track and manage the disposal of waste in order to ensure the protection of the environment. Whilst the undermining of the regulatory regime that is in place to protect the environment may not strictly fall within the definition of harm to the environment as identified at [29] above, I consider it a relevant consideration in the determination of sentence as provided for in s 241(2) of the POEO Act. As is made apparent in the objects of the POEO Act at s 3, one of the mechanisms to achieve protection of the environment is the strengthening of the regulatory framework. Actions that undermine that framework undermine the achievement of the objects of the POEO Act.
Mr Al-Sarray did concede 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, however, it was also observed that: 1. As conceded by the prosecution, there was no evidence that would allow the Court to make a finding of actual environmental harm. This matter would be significant to the Court's assessment of the objective seriousness. Logically it would follow that ordinarily one would expect that a finding of actual environmental harm would significantly aggravate the offending; 2. The Court could not make a finding beyond reasonable doubt that the waste material, the subject of the offending, did actually contain asbestos contrary to the Prosecutor's submission that "it is open to the Court to conclude that there was a possibility that the material removed from the Wolli Creek and Zetland Sites contained asbestos waste"; and 3. Whilst it is conceded that there could be foreseeable harm to the environment, caution would need to be taken to ensure that this concession does not become a substitute for a finding beyond reasonable doubt that environmental harm was caused.
I accept the submissions of Mr Al-Sarray. There is no evidence of actual harm. There being no evidence that the waste did in fact contain asbestos prevents such a finding. The "possibility" of the waste containing asbestos only permits a finding of a likelihood of harm as conceded by Mr Al-Sarray at [33(3)] above.

[11]

Section 21A(2)(o) of the CSP Act - the offence was committed for financial gain

Whilst the Prosecutor accepted that there was no evidence that Mr Al-Sarray derived a direct financial benefit from the offending conduct it submitted that (footnotes omitted): 57. There is no evidence demonstrating that the offender, personally, received a financial benefit as a result of committing both offences. However, the evidence establishes that the offender's employer, Ace, received financial gain. This is a matter that the Court may take into account in sentencing the offender given the offender's senior role as a manager within Ace. 58. With respect to charge 1, the evidence shows that Ace had sent invoices to TPC requesting payment for work done. The WBDDs were then produced, after some questioning and threats of boycotting, in order for payment to be affected. While the prosecution does not have evidence showing the full amount received by Ace, it can be demonstrated that Ace was paid approximately $1.8 million as a result of works done on the Wolli Creek site. 59. With respect to charge 2, there were similar issues regarding missing dockets although there is less evidence regarding how Ace received payment. Nonetheless, the evidence does in fact show that Ace received payment from Westbourne of approximately $13,755,588.30 (excluding GST) as a result of works completed on the Zetland site.
It is not apparent as to how the financial gain that it is said that Ace derived can be attributed to Mr Al-Sarray merely by virtue of his senior role as a manager within that company. Absent some direct or indirect benefit derived by Mr Al-Sarray as a consequence of the offending I am unable to accept that, as an aggravating factor, the offending was undertaken by him for financial advantage. I accept the submissions of Mr Al-Sarray that there is no evidence of sharing of profit, no evidence of any other gain (direct or indirect) derived by Mr Al-Sarray as a consequence of the offending conduct. Accordingly, I reject the Prosecutor's submission that it is necessary to consider in this case as an aggravating factor the offence being committed for financial gain.

[24]

Appropriate sentence

The appropriate sentence is to be derived by an "instinctive synthesis" of all of the relevant factors in order to determine an appropriate proportionate sentence: Markarian v R (2005) 228 CLR 357.
In this case, the Prosecutor submits that the objective seriousness of the conduct is in the mid to high range and that, even taking into account the subjective factors that relate to the Defendant: 5. Having regard to the objective seriousness of the offending, the prosecutor submits that the threshold for imprisonment in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) is crossed and no penalty other than imprisonment is appropriate. However, the prosecutor does not make any submission as to how any sentence of imprisonment ought to be served
Section 5 of the CSP Act provides: 5 Penalties of imprisonment (1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. (2) A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so, including - (a) its reasons for deciding that no penalty other than imprisonment is appropriate, and (b) its reasons for deciding not to make an order allowing the offender to participate in an intervention program or other program for treatment or rehabilitation (if the offender has not previously participated in such a program in respect of the offence for which the court is sentencing the offender). (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) A sentence of imprisonment is not invalidated by a failure to comply with this section. (5) Part 4 applies to all sentences of imprisonment, including any sentence the subject of an intensive correction order.
In order for a penalty of imprisonment to be imposed I must be satisfied that the threshold as identified in s 5(1) has been met. The Prosecutor submits that it has been met, primarily on the basis of the objective seriousness of the offending. In that regard I observe that the Prosecutor's primary submission was that the objective seriousness was at the at the mid to high range of objective seriousness. For the reasons I found at [44] above, I determined that the objective seriousness of the offending conduct was at the higher end of the mid-range of objective seriousness. However, the sentence is to be determined having regard to the objective and subjective circumstances of the particular case and having regard to the totality of those factors and in determining a sentence that is proportionate to the gravity of the offending conduct I do not consider that imprisonment is the only possible alternative in this case. Having regard to the purposes of sentencing, such purposes can be met in this case without a penalty of imprisonment being imposed as: 1. To ensure that the offender is adequately punished for the offence; to make the offender accountable for his actions to denounce the conduct of the offender; to recognise the harm done to the victim of the crime and the community - as observed herein the Defendant derived no financial benefit from the commission of the offence. The imposition of a financial penalty by way of a fine will provide an adequate punishment. Together, the conviction, the fine and the publication order will operate in conjunction to punish, hold the Defendant accountable, denounce his conduct and recognise the harm to the community to a degree proportionate to the offending conduct; 2. To prevent crime by deterring the offender and other persons from committing similar offences - the amount of any such fine can be fixed to represent a proportional penalty such that it operates as a specific and general deterrent in the circumstances of this case; 3. To protect the community from the offender - there is no evidence before me that the Defendant is likely to reoffend such that imprisonment is required to protect the community from the Defendant; and 4. To promote the rehabilitation of the offender - the evidence available to me by way of the SAR and the opinion of Dr Ahmed is that the Defendant has good prospects of rehabilitation. I am not satisfied that incarceration would promote rehabilitation in the circumstances of this case. In light of the Defendant's mental health issues, it may in fact be counter-productive to his rehabilitation and a disproportionate imposition upon his mental health recovery having regard to the nature of the offending.
Taking into account the objective seriousness of the charges and the factors identified above, I have determined that the appropriate sentence in this case is the imposition of a monetary penalty together with a publication order. The appropriate amount of the monetary penalty, taking into account the objective seriousness of the offending conduct together with the subjective circumstances of the Defendant in each matter is $180,000 reduced by 25% for the guilty plea to derive a fine of $135,000 for each charge.

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