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[2015] NSWLEC 123
Land and Environment Court (NSW)
2015-08-05
Pain J
Original judgment source is linked above.
50715 of 2013, 50773 of 2013 and 50349 of 2014 Environment Protection Authority (Prosecutor) Alistair Murray Campbell (Defendant) Representation: Counsel: Mr T Howard SC (Prosecutor) Mr M Wright (Defendant)
Solicitors: Office of Environment and Heritage (Prosecutor) Benatos White (Defendant) File Number(s): 50713-50716/13, 50773/13, 50348-49/14
Sentencing for multiple waste offences
Protection of the Environment Operations Act 1997 (NSW)
144 None of the above samples taken at the Capertee Property complied with the chemical and other attributes required for either of the recovered fines RRE to apply. 145 None of the five samples complied with the recovered fines RRE because they all contained more than 5% of material with a particle size greater than 9.5 mm. All five samples exceeded the maximum average lead concentrations allowable under the recovered fines RRE. Three of the samples also exceeded the maximum average permitted concentration of benzo(a)pyrene of 1 mg/kg. 146 The physical contaminant limits for glass, metal and rigid plastics in recovered fines are a maximum average of 0.1% by mass and an absolute maximum of 0.3% by mass. Three of the five samples exceeded the absolute maximum of 0.3%. For comparison the maximum value measured is 2.7%. EPA inspection of Capertee Property on 6 June 2012 147 On 6 June 2012, a surveyor engaged by the EPA attended the Capertee Property and carried out a volumetric survey of the fill deposited there. The survey indicated that a conservative estimate of 4305 cubic metres of fill had been deposited in 11 distinct areas on the property. A copy of that survey is at Tab 19. An aerial photograph of the Capertee Property overlaid with the areas of fill found in the survey is at Tab 20. 148 To convert cubic metres to tonnes, the number of cubic metres needs to be multiplied by a number, which varies depending on the density of the material concerned. For regular building and demolition waste, the number of cubic metres needs to be multiplied by about 1.6 to 1.8 to obtain the tonnage. For material such as concrete and bricks, the multiplier is about 2 to 2.2. The precise density of the waste on the Capertee Property is unknown. However, it is estimated that the 4305 cubic metres of fill would amount to between 6888 and 9471 tonnes of fill. 149 The EPA collected six samples of suspected asbestos from the waste fill from different locations on the northern part of the road network on the Capertee Property. All 6 samples were subsequently confirmed to contain chrysotile asbestos and four of those also contained amosite asbestos. 150 Mr Scarborough observed debris in the watercourse downstream of the dam and saw that no work had been done in response to his advice to Mr Campbell on 3 April 2012 to remove the debris from the watercourse and erect sediment controls. No timeframe was identified for this work to be done. Mr Campbell carried out the work when weather permitted. It was commenced on 3 April 2012 and completed by 7 August 2012. 151 Water appeared to be seeping through the dam wall at one location, then flowing through the debris in the watercourse and continuing downstream towards Crown Creek. Mr Scarborough collected two water samples on 6 June 2012, one from within the farm dam (sample "SW01") and another from within the watercourse approximately 40 metres downstream, clear of the debris (sample "SW02"). Subsequent lab analysis of the samples identified a two- to ten-fold increase in most metal concentrations between the dam and the sample location 40 metres below the location of the material. Ben Bullen Property offences - s 143 offence by Alcobell and s 143 offence by Mr Campbell - LEC Proceedings Nos 50348 and 50349 of 2014 EPA's execution of search warrant on Alcobell's premises 152 On 26 March 2013, the EPA executed a search warrant on Alcobell's principal place of business (which was also Mr Campbell's home address), as part of the investigation into the disposal of waste at the Clarence and Capertee properties. 153 During the execution of the search warrant, the EPA seized documents including documents known as "daily work sheets" for months from July 2010 to May 2012. The seized daily work sheets indicated that Alcobell had transported waste to properties other than the Clarence and Capertee Properties, including 1457.8 tonnes of waste to a location referred to as "Ben Bullen". The EPA was not previously aware of any waste transported to a property in Ben Bullen. Recorded interview with Mr Campbell on 2 May 2013 154 On 2 May 2013, the EPA conducted a recorded interview with Mr Campbell in relation to Alcobell's transportation of waste to Clarence and Capertee and the alleged provision of false or misleading information in Alcobell's response to a s 193 notice. Mr Campbell was interviewed in both his personal capacity and as Alcobell's corporate representative. This interview resulted in the EPA bringing the charge against Mr Campbell in LEC Proceedings 50773 of 2013 (the facts of which are set out below). 155 During the interview on 2 May 2013, Mr Scarborough required Mr Campbell to answer questions under s 203(1) of the POEO Act, including in relation to information in the seized daily work sheets. The following exchange took place: Q 422. …destination of Ben Bullen. Now a significant quantity of material that's gone to this location, 1,458 tons. Now Ben Bullen isn't a big place and I haven't really made any efforts to find this place at this point in time but I can assure you that I will. Do you want to- - - A It should be pretty easy for you. Q 423 Yeah? Do you want to tell me- - - A No. Q 424 - -where that is? A No. Q 425 You're refusing to answer that question? A Ah it's not in relevance to this matter. Q 426 So you're refusing? A Taking advice of counsel. 156 On 5 June 2013, the EPA issued Alcobell with a notice under s 193 of the POEO Act, requiring Alcobell to identify the location of the property or properties referred to in the seized daily work sheets as "Ben Bullen" and "B/Bullen". 157 On 13 June 2013, the EPA received a response from Mr Campbell on behalf of Alcobell, stating that he did not know the actual address to which "Ben Bullen" on the seized daily work sheets referred, but that the property was on Mudgee Road, Ben Bullen. The response stated that Mr Campbell did not know the owners' full name and no longer had a contact number for them. 158 On 21 June 2013, the EPA sent Alcobell a letter requesting assistance in locating the property on Mudgee Road, in light of concerns that the waste on the property may contain asbestos. The EPA requested a response by 26 June 2013. No response was received. 159 Mr Scarborough undertook further investigations which established that the Skeens' property at Ben Bullen was the property referred to as "Ben Bullen" in the seized daily work sheets. Arrangements for transport of waste to Ben Bullen Property 160 Since purchasing the Ben Bullen Property in 1999, the Skeens had had problems using the access road to the residence on the property in wet weather. Heavy rainfall in 2010 created significant access difficulties, with the road becoming impassable at times. 161 From 1999, the Skeens had carried out works to improve the access road, including raising the height of the road above that of the surrounding area and installing a culvert where the access road crossed Crown Ridge Creek. During these works, material applied to the road included half house bricks from the construction of the house and purchased coal chitter, bitumen mix and road base. In particular, in about October 2010, the Skeens added to the road 75 tonnes of bitumen mix and small rocks from the property. 162 At some point after 16 November 2010, Mrs Skeen gave Mr Campbell permission to bring material onto the Ben Bullen Property. Waste transported to the Ben Bullen Property 163 In late January 2011, Mr Campbell brought onto the Ben Bullen Property an earthmoving machine known as a Drott. 164 Between about 22 December 2010 and 18 May 2011, Mr Campbell on behalf of Alcobell transported a total of 1457.8 tonnes of waste, in 48 truckloads, to the Ben Bullen Property. 165 The 48 truck loads were made up of: (a) 19 truckloads (540 tonnes) from Just Recycling; (b) 17 truckloads (535.5 tonnes) from Aussie Skips; and (c) 12 truckloads (382.34 tonnes) from Empire. 166 Most truck loads contained between 30 and 32 tonnes of waste. 167 The waste included aggregate, bricks, concrete, timber, plastic, fines, tiles, asbestos, tap fittings, a cast iron window sash counterweight, nail gun gas recharge canisters, a dinner fork and many nails. The waste included items between 20 mm and 30 mm in size. 168 Mr Campbell deposited the waste and spread it along the top of approximately 600 metres of the existing access road on the property. 169 The Ben Bullen Property was secure over the period Mr Campbell was delivering waste. Mr Campbell had installed his own lock on the Skeens' front gate so that he could access the property. 170 Some photographs showing the waste brought onto the Ben Bullen Property are at Tab 21. 171 Mrs Skeen asked Mr Campbell if he had any paperwork for the loads. Mr Campbell produced to Mrs Skeen a test report from Aussie Skips. She looked at it and handed it back to Mr Campbell. She did not ask for a copy. 172 No material for the road was delivered to the property by anyone else after Mr Campbell ceased delivering material. No further work was done on the access road after Mr Campbell delivered the last of his loads. 173 The Skeens did not pay, and were not paid, for the waste Mr Campbell brought onto their property. 174 On 23 July 2013, the EPA sampled five pieces of suspected asbestos-containing material from the surface of the road on the Ben Bullen Property. The defendants do not agree that these samples came from the material they transported. A map showing the location at which these samples were taken is at Tab 22. All five samples were later tested and confirmed to contain chrysotile and amosite asbestos. Two of the samples were also confirmed to contain crocidolite asbestos. 175 The waste sampled at the Ben Bullen Property did not comply with the chemical and other attributes required for the recovered fines RRE to apply. None of the four samples met the particle size requirement for fines. All four samples exceeded the maximum average lead concentration of 100 mg/kg and the maximum average for benzo(a)pyrene of 1 mg/kg. 176 The waste sampled contained measurable quantities of glass, metal and rigid plastics. The physical contaminant limits for glass, metal and rigid plastics in recovered fines are a maximum average of 0.1% by mass and an absolute maximum of 0.3 % by mass. Three of the four samples exceeded the absolute maximum of 0.3%. For comparison the maximum value measured at Ben Bullen was 2.36%. Clean up notice for Ben Bullen Property 177 On 11 July 2014, the EPA issued to Alcobell clean-up notice number 1517049 for the Ben Bullen Property. A copy of that notice is at Tab 23. 178 Alcobell has not complied with clean-up notice 1517049. Financial gain resulting from the s 143 and s 144 waste offences 179 Alcobell did not transport waste from the skip bin facilities for free. Alcobell charged Empire, Just Recycling and Aussie Skips a rate per tonne for the removal of waste from their respective premises. The rates were: (a) Aussie Skips - $17 or $19 per tonne (exclusive of GST); (b) Empire - $33 per tonne (exclusive of GST); and (c) Just Recycling - either $13.34, $20, $24 or $40 per tonne (exclusive of GST). 180 Alcobell charged Quickskips $40 per tonne for a 30 tonne load on 24 August 2010. 181 As a result of the waste transport offences, Alcobell received an estimated: (a) $57,191 for waste transported to the Clarence Property; (b) $58,621 for waste transported to the Capertee Property; and (c) $35,729 for waste transported to the Bullen Property. 182 Alcobell also received the following benefits arising from the offences: (a) Alcobell avoided payment of tip fees at lawful waste facilities for the disposal of the waste; and (b) Alcobell typically carted quarry products from Hartley, Clarence or Marrangaroo (all near Lithgow) to the Sydney area. After delivering the quarry products, rather than returning with an empty truck, Alcobell typically collected a return load of waste to deliver to either the Clarence Property, the Capertee Property or the Ben Bullen Property. 183 Alcobell's financial statements contain a breakdown of its income and expenditure for the 2008/9, 2009/10, 2010/11 and 2011/12 financial years. Each of these records contained a specific line item in the expenditure section entitled "Tip fees". A summary of those figures is below: Financial year "Trading profit" or "Sales" "Tip fees" 2008/09 $771,909.00 $107,626.61 2009/10 $968,803.37 $42,532.73 2010/11 $806,348.83 $2,272.73 2011/12 $588,410.47 $6,542.74
Environmental harm - s 143 and s 144 offences 184 Each of the s 143 and s 144 offences has resulted in environmental harm within the meaning of the POEO Act, in that there has been a direct alteration of the environment that has degraded the environment and resulted in pollution. 185 The waste deposited on each property has the potential to cause harm to the soil environment, however the evidence does not establish actual harm to the underlying soil. 186 Recovered fines from building and demolition waste may contain materials with the potential to harm human health or the environment. These materials should therefore be assessed and characterised prior to land application to examine the risks and assess whether the material is "fit-for-purpose" and poses minimal risk of harm to the environment. Such an assessment requires analysis of the physical and chemical attributes of the waste and consideration of the receiving environment into which it will be applied. 187 Waste applied to land at each property was not subject to any adequate chemical or physical assessment to assess the risks of the intended land application activity prior to application. Accordingly, there is a potential for harm to the environment. 188 The waste sampled on each property contains measureable quantities of glass, metal, and rigid plastics. Such physical contaminants may impact on the environment in a number of ways depending on the composition and size of the physical contaminants. There is a: (i) potential for certain physical contaminants (e.g. film or flexible plastics or microplastics) to transport and release chemical contaminants in the environment; (ii) potential for sharp or abrasive physical contaminants (e.g. glass, metal, rigid plastic) to render the soil uninhabitable for macrofauna such as earthworms; (iii) potential for grazing animals such as cattle to ingest physical contaminants such as metal, causing injury or death, known as "hardware disease"; and (iv) potential for injury to plant roots and nodules. 189 Benzo(a)pyrene is a polyaromatic hydrocarbon of particular significance due to its toxicity and status as a carcinogen. Benzo(a)pyrene at the levels found in the waste sampled at the properties does not pose an immediate risk to human health. 190 When Alcobell deposited a truckload of waste onto the Clarence Property on or about 22 November 2011, the neighbour Ms Smith observed a "significant amount of dust" drifted onto her land from the location where the material was deposited. It has impacted on the amenity of her property, given that the waste is visible from it. 191 Asbestos has been confirmed as present within the waste on each of the three properties. 192 Asbestos in the waste poses a risk to human health in the event of any disturbance to the waste. Section 211(2) offence - Mr Campbell's provision of false or misleading information - LEC Proceedings No 50773 of 2013 Alcobell's response to section 193 notice 193 On 16 March 2012, the EPA issued to Alcobell a notice under s 193 of the POEO Act (the s 193 notice), requiring it to provide information and records relating to its transport of waste to the Clarence and Capertee Properties between 1 September 2011 and 31 January 2012. 194 On 27 June 2012, the EPA received from Alcobell a response to the s 193 notice, signed by Mr Campbell. He enclosed as part of this response three documents described as "daily work sheets" for September, October and November 2011 (the notice response work sheets). A copy of these three documents is at Tab 24. 195 The sheets consist of a table with columns for the following details: date; docket number; product transported; location from which material picked up; location to which material delivered; speedometer start number; speedometer stop number; kilometres travelled; rate of payment (per tonne) and tonnes transported. 196 The daily work sheets refer to locations of sources and destinations of transported material by reference to the suburb or locality of the premises. The relevant references are as follows: Reference in daily work sheet Location Botany (source of waste) Empire Waste skip bin facility at 5 Meadow Way, Banksmeadow Enfield (source of waste) Aussie Skips skip bin facility at Unit 5, 84-108 Madeline Street, Strathfield South Clarence (source of non-waste material) Hanson "Kables" sand quarry on Clarence Colliery Rd, Clarence Clarence (destination for waste) Mr Kirby's property at 179 Donald Rd, Clarence Capertee (destination for waste) Mr Campbell's property at Lot 5 Glen Davis Rd, Capertee Lawson (destination for waste) Thomas Landscaping Supplies at 135 Ridge Rd, Lawson (Mr Bottrell's site) B/Heath (destination for waste) Rob Johnson Contracting, 216-224 Evans Lookout Rd, Blackheath
197 On 11 December 2012, Mr Campbell participated in a voluntary interview with Mr Scarborough, under caution. Mr Campbell admitted in that interview that the notice response work sheets were in his handwriting and were for his truck, "TIP604". He said he fills in the sheets every day. The transcript of that interview is in Volume 2 of the Agreed Bundle. 198 The following exchange took place between Mr Scarborough and Mr Campbell, in relation to Alcobell's s 193 response enclosing the notice response work sheets: "Q117 … did you prepare part of that information? A I bundled the material that I was able to - - - Q118 Gathered it together? A Yeah. Q119 Okay and did you have a chance to review that information before you sent that to us? A I didn't go through it specifically, I just grabbed the invoices, the day sheets, um, and the test reports for that period and sent them off. … Q122 … are you satisfied that the information that you've provided to us in that response is true and correct and complete? A It's the only information I have. Q123 So is that a yes? A It's the - the answer is that's the only information I have. Q124 But the question I'm asking is the information that - - - A I've answered the question twice. Q125 No, you've answered it that that's the information you had, what I'm asking you is, is to your knowledge the information that you've provided true, correct and complete? A Yes." EPA's execution of search warrant on Alcobell's premises 199 On 26 March 2013, the EPA executed a search warrant on Alcobell's principal place of business. 200 Documents seized as part of that search warrant included daily work sheets for each month from July 2010 to February 2013 inclusive. 201 The daily work sheets for September, October and November 2011 that were seized under the search warrant will be referred to as the "seized work sheets". A copy of the seized work sheets is at Tab 25. Differences between the two sets of work sheets 202 Although both sets of work sheets were in the same format, the seized work sheets for September, October and November 2011 differed from the notice response work sheets Alcobell had provided to the EPA for those same months. 203 In the notice response work sheets, when compared to the seized work sheets: (a) 15 entries recording transported loads had been omitted (the omitted entries); and (b) 27 entries had the destination for the load changed from "Clarence" and 1 entry had been changed from a load going from "Clarence" to "Enfield" to a load going from "Enfield" to "Lawson" (the changed entries). 204 The omitted entries are highlighted in pink on the seized work sheets at Tab 26. The dates of the 15 omitted entries are 8/9/11, 14/9/11, 15/9/11, 28/9/11, 4/10/11, 7/10/11, 10/10/11, 26/10/11, 3/11/11, 8/11/11, 8/11/11, 14/11/11, 16/11/11, 18/11/11 and 22/11/11. 205 The changed entries are highlighted in green on the seized work sheets at Tab 26 notice response work sheets at Tab 27. The dates of the 28 changed entries are 2/9/11, 5/9/11, 6/9/11, 8/9/11, 9/9/11, 12/9/11, 13/9/11, 14/9/11, 15/9/11, 16/9/11, 29/9/11, 5/10/11, 6/10/11, 11/10/11, 12/10/11, 17/10/11, 20/10/11, 21/10/11, 24/10/11, 25/10/11, 1/11/11, 2/11/11, 7/11/11, 10/11/11, 11/11/11, 17/11/11, 21/11/11 and 25/11/11. 206 Where "Clarence" is referred to as an origin on the daily work sheets, it refers to the Hanson Kables sand quarry at Clarence near the Clarence Property. 207 Where "Clarence" is referred to as a destination on the daily work sheets, it refers to the Clarence Property. 208 The notice response work sheets for September, October and November 2011 are not a true, accurate and complete record of loads of material that Mr Campbell had transported between 1 September 2011 and 30 November 2011, in that they: (a) omit details of 15 loads of material that were in fact transported by Mr Campbell, including all 6 loads of waste transported from Empire (3 to the Clarence Property and 3 to the Capertee Property); and (b) contain false information about the destinations of 27 loads of waste transported in September, October and November 2011 - the destinations on the notice response work sheets are stated to be Capertee (18 loads), Lawson (6 loads) and Blackheath (3 loads), when in fact the destinations were the Clarence Property. Recorded interview with Mr Campbell on 2 May 2013 209 On 2 May 2013, the EPA conducted a recorded interview with Mr Campbell in relation to his waste transportation activities and his response to the s 193 notice, in particular, his provision of the notice response work sheets. Mr Campbell's solicitor, Mr White, was present throughout the interview. Mr Campbell was interviewed in both his personal capacity and as Alcobell's corporate representative. 210 During the interview on 2 May 2013, authorised officer Mr Scarborough required Mr Campbell to answer questions under s 203(1) of the POEO Act. 211 A copy of the transcript of the interview on 2 May 2013 with exhibits shown to Mr Campbell during the interview is at Tab 28. 212 The key parts of the interview are as follows: Q28. … I think it's probably more expedient if I continue the interview from this point as a directed interview. So I'm going to provide you with the caution that's associated with a directed interview. Okay, so Matthew and I are authorised officers of the Environment Protection Authority and we require you to answer the following questions. Now first I must warn you that if you neglect or fail to answer without lawful excuse you are guilty of an offence against the Protection of the Environment Operations Act. Do you understand that? A The lawful excuse part is a bit ambiguous. MR WHITE: Can we have a break, can I explain it to him? MR SCARBOROUGH: Certainly, yep. Okay, we'll temporarily suspend the interview for the purposes of the interviewee obtaining legal advice. INTERVIEW SUSPENDED INTERVIEW RECOMMENCED Q29. Recommencing record of interview with Mr Campbell - Mr Alistair Campbell. Time is now 14:12 hours on 2 May 2013. The interview was suspended for the purposes of Mr Campbell obtaining legal advice. Is there anything that occurred during the break that you'd like entered on the record? A No. Q30. Okay, alright well look I'll - I'll continue with the caution, well actually just so that there's no misunderstanding I'll - I'll restart it. So Matthew and I are authorised officers of the Environment Protection Authority and we require you - require you to answer the following questions. Now I warn you that if you neglect or fail to answer without lawful excuse you are guilty of an offence against the Protection of the Environment Operations Act. Do you understand that? A Yes. Q31. It is also an offence to knowingly answer any question falsely or in a way that is misleading in a material respect. Do you understand that? A Yes. Q32. You may however object to answering questions on the grounds that it might incriminate you personally. Do you understand that? A Yes. Q33. If you do object, you must still answer the question that is put to you, but the answer is not admissible in evidence against you personally, except for the offence of knowingly answering a question falsely or in a way that is misleading in a material respect. Do you understand that? A Yes. Q34. Okay, so is there any part of that caution that you're not clear about? A No. … Q58 Okay, so in the interview of 11 December 2012 you were asked specifically, and this is you personally, were asked specifically if the response that was provided to the EPA's notice to provide information and records was accurate. MR WHITE: Do you have a transcript available? MR SCARBOROUGH: I do. I am going to read that section of the transcript onto the record, okay? So the question that was asked is "to your knowledge, the information that you've provided true correct complete?" The answer you provided was "yes". Do you still maintain that view? A I've already answered that question, yes. Q59 Yes, you maintain the view that the information that you provided in that notice to provide record and information was true, complete and correct? A Yes. Q60. And you're aware that that response was provided by Alcobell? A Yes. Q61. Okay, as part of that response you provided daily worksheets- - - A Yep. Q62. That I will just mark here as AC205. A Mm hm. Q63. For September, October and November. A That's true. Q64. 2011. … … Q67. So I'll go back again. So these are the worksheets that Alcobell provided as part of its response to the notice to provide information and records. So these daily worksheets that I've marked as AC205. Now I asked you specifically about these worksheets at - near the conclusion of that interview and I'll read the excerpt from the transcript. "Question - well look I'll put it to you that those daily worksheets that you were shown there, they've actually been fabricated. That you sat down and done them in one big hit one afternoon in an attempt to fabricate records to support your version of events. What do you say to that?" Your answer, "I say you're incorrect". Do you still maintain that view? A Yes. … Q79. Were those records fabricated? A No. They may be - have been amended from my handwritten ones ah that I scribbled on in my day book to - because they needed to be precise on where I was on certain - certain days. Q80. Okay, so if I ask you directly, Alistair Campbell individual, did you fabricate these records to support a response to a notice - - - A I did not fabricate the records. Q81 Now as you're aware we did execute a - a search warrant on the registered business address of Alcobell on 26 March 2013 and that we also obtained other records from the registered business office of Alcobell on 27 March 2013. Part of what was obtained in the execution of the search warrant of the registered business address was a series of daily worksheets which I'll mark now as AC206. So that's five pages in total also covering September, October and November 2011. These were obtained from your premises, you signed a receipt that this document - or these documents amongst other things that were seized were obtained from your premises. A Right. Q82 Now we've analysed both lots of documents- - - A Mm hm. Q83 And we've found 44 individual differences between those worksheets that you've currently got there AC206 and the worksheets that were provided in response to the notice to provide information and records previously marked as AC205. I suppose my question to Alcobell is this; which one of these documents is actually the accurate account? A The first ones. Q84 So AC205? A Yes. … Q86. So who's completed - or who has filled in the details on those sheets? A More than likely me. Q87. On both of them. A Most - most of them, yeah. Q88. On both of them, AC205, I'll show that to you again if you like. A Mm hm. MR WHITE: Is that your handwriting? A Yeah, yeah. Q89. And AC206, so that's all your handwriting? A yeah, yeah. I mean this one here's obviously been damaged and I've, you know, written it out again so it can be legible. It's obviously a coffee damage and stuff like that, you know, same with this one here, same with this one here. So, you know, that - that would be the reason if you're contesting that they've been rewritten would be that they're actually legible for you to write and some of this I can barely read and I know my own handwriting. So but um- - - Q90. So I just need this to be clear; you're confirming that that is your handwriting- - - A Yes. Q91. - - -in all of those entries? A Yes. Q92. On both of those documents, AC205- - - A Yes. Q93. - - -and AC206? A Yes. … Q116 The question is that did you omit entries in the response that you provided to us - in the response that Alcobell provided to us, which is document AC205? A Um...205 is a- - - Q117 That's what was provided to us in response to the notice to provide information- - - A 205 is a record of the loads that I did on behalf of Alcobell. … A121 Well I mean that - that's a record from my truck. Q122 So what's- - - A That I did. … Q132 Let me go back so it's nice and simple for everyone to understand it. AC205, this document was provided under a legal notice to provide records and information. In that notice it was clearly stated that it is an offence to provide - knowingly provide false and misleading information as a - in a material respect. When we executed the search warrant we obtained these documents, AC206. They are significantly different to the documents that were provided to us. They contain as I said 13 omissions in relation to work done by Alcobell. Now our contention is that the omissions in relation to sand collected from Clarence was to disguise the fact that waste was actually taken to Rick Kirby's property. The omissions in here- - - A My statement is that AC206 is incorrect and that 205 is correct. … Q141 So which- - - A More than likely went to um - this is the accurate one so it more than likely if it's been changed from Clarence to Capertee there was obviously some reason that it didn't go to Clarence. Q142 So AC205, you - you're maintaining that - that the entries for the destinations in that are accurate? A Yes. … Q195 And I might have misunderstood but you're saying that the document AC205, that's a record of work that you personally did? A Yep. As I believed I was asked to provide. … A207 That's my driver's worksheet for the day, I thought that would be extra information which may um reduce all this nonsense but obviously it's added to it. … A225 None of, none of the Empire's material has ever gone to Capertee or to Clarence. … Q235. OK. And you're stating that under direction? A 100%. Empire Waste didn't go anywhere, certainly didn't go to Capertee and did not go to Clarence. I didn't go to Empire Waste and go to Clarence. Q236. So I need you to be 100% clear on this; you're making that assertion or that statement under direction? A Empire Waste did not go to Capertee or Clarence. … Q281. If that material did not go from Empire Waste to Clarence, to Rick Kirby's property in Clarence, at 179 Donald Road, Clarence or to your property at Capertee, where did it go? A It didn't go to Clarence and it didn't go to Capertee. … Q308 So you're saying that this is work that Alcobell has done- - - A As I've said to you, 205 is a driver's record from the driver in that truck which was me. 213 The information provided by Mr Campbell in the interview on 2 May 2013, that the notice response work sheets were the true, accurate and complete record of loads of material that Mr Campbell had transported between 1 September 2011 and 30 November 2011, is false and misleading. 214 Mr Campbell created both sets of work sheets and knew at the time of the interview on 2 May 2013 that the information he furnished in the interview, that the notice response work sheets were the true, accurate and complete record of loads of material that Mr Campbell had transported between 1 September 2011 and 30 November 2011, was false and misleading. Prior convictions - Mr Campbell 215 On 10 May 2011, Mr Campbell was convicted in Katoomba Local Court of an offence of stalk/intimidate intend fear of physical/mental harm, for which he was put on a 12 month good behaviour bond from 10 May 2011 to 9 May 2012. Mr Campbell was subject to the good behaviour bond at the time of committing the two s 143 and one s 144 offences that are the subject of these proceedings. 216 On 4 October 2012, Mr Campbell was convicted in Lithgow Local Court of an offence of being the owner of land (the Capertee Property) and using that land as a waste facility without lawful authority in breach of s 144 of the POEO Act. This offence related to one load of waste deposited on the Capertee Property on 7 July 2010. Mr Campbell was fined $3000 and ordered to pay investigation costs of $1500. Prior conviction - Alcobell Pty Ltd 217 On 4 October 2012, Alcobell was convicted in Lithgow Local Court of transporting waste to the Capertee Property, being a place that could not lawfully accept that waste, in breach of s 143 of the POEO Act. This offence also related to the load of waste deposited on the Capertee Property on 7 July 2010. Alcobell was fined $5000 and ordered to pay $5000 legal costs.
Additional evidence tendered by Prosecutor
Additional evidence tendered by Defendant
Section 143(3A) notice
The place can be lawfully used for the types and amounts of waste described in 2 above BECAUSE: An EPA waste facility or waste activity licence is not required. AND BECAUSE: A. the place has development consent from the local council for the uses described in 2 above. Certificate no: 011/108DACC. Consent allows for 75mm minus material.
Expert reports
Sentencing principles
Maximum Penalty
Statutory scheme
Factors which must be taken into account under s 241(1) of the PEO Act
Harm caused or likely to be caused to the environment by the commission of the offence (s 241(1)(a))
Foreseeability of harm (s 241(1)(c))
Practical measures which may be taken to prevent or minimise the harm or likely harm (s 241(1)(b))
Extent of control over causes of the commission of the offence (s 241(1)(d))
Whether complying with orders from an employer or supervising employee (s 241(1)(e))
State of mind
Who benefits from this offence?
Finding on objective seriousness
Section 211(2) charge against Mr Campbell
General Deterrence
Subjective Circumstances
Pleas of guilty
Prior convictions
Good character
Contrition and remorse
Even-handedness
Totality principle
Capacity to pay - application of Fines Act 1996
Investigation costs
Legal costs
Avoiding double punishment
Appropriate Penalty
Orders
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: 10 August 2015
[2005] HCA 25
[1999] WASCA 66
[2004] VSCA 53
[1988] HCA 70
(1993) 113 LGERA 357
(2014) 205 LGERA 39
(1993) 32 NSWLR 683
(2010) 79 NSWLR 1
(2003) 124 LGERA 57
(2006) 153 LGERA 238
(2006) 145 LGERA 189
(2010) 242 CLR 520
(1989) 167 CLR 348
(2005) 228 CLR 357
(2011) 244 CLR 120
(2009) 170 LGERA 253
(2010) 179 LGERA 386
(1999) 199 CLR 270
(2000) 49 NSWLR 383
(1979) 143 CLR 458
(1988) 164 CLR 46
(2000) 22 WAR 442
(2007) 16 VR 269
(1999) 46 NSWLR 346
(2012) 198 LGERA 232
(1988) 166 CLR 59
(1997) 189 CLR 295
(1988) 194 CLR 610
(1988) 164 CLR 465