Duress
68The matter upon which Mr Ashmore placed considerable emphasis was his claim that the offences were committed under duress (s 21A(3)(d) CSP Act). Shortly prior to the sentence hearing before me, two affidavits were sworn by him in which he gave evidence of matters directed to this issue. At the hearing he chose to read those affidavits. He was cross-examined on them by the Prosecutor.
69As Mr Ashmore's plea demonstrates, he did not rely upon exculpatory duress. The onus of establishing that duress should be accepted as a mitigating factor rests upon Mr Ashmore (The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [26]-[27]). As was observed in Tiknius v R [2011] NSWCCA 215 at [45], a sentencing court addressing a claim of duress is entitled to approach such claim "with a significant degree of circumspection." This necessitates a close assessment of the evidence adduced to support such a claim.
70Where the onus is discharged, it nonetheless remains for the Court to determine the weight to be given to that factor on sentence. Even where, as here, the offence is one of strict liability, proof that the offences were committed out of fear diminishes a claim that a defendant's state of mind in committing an offence was the prospect of financial advantage. The circumstance that a defendant acted out of fear could also be relevant in considering whether that person is likely to re-offend, assuming the source of fear to have been removed.
71When considering the weight to be given to duress, once established, the observations of Johnson J (Tobias AJA and Hall J agreeing) in Tiknius should be noticed. His Honour there said:
"49 This will involve, amongst other things, consideration of the form and duration of the offender's criminal conduct, the nature of the threats made and consideration of opportunities which were available to the offender to report the matter to relevant authorities.
50 In addition, it is necessary to keep in mind, even at the sentencing stage, some of the policy considerations underlying the law of duress. In Taiapa v The Queen [2009] HCA 53; 240 CLR 95 at 106 [31], French CJ, Heydon, Crennan, Kiefel and Bell JJ, accepted as a starting point when considering the reasonableness of a person's actions (concerning the defence of duress), the proposition stated by King CJ in R v Brown (1986) 43 SASR 33 at 40:
'The ordinary way in which a citizen renders ineffective criminal intimidation is to report the intimidators and to seek the protection of the police. That must be assumed, under ordinary circumstances, to be an effective means of neutralising intimidation. If it were not so, society would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation.'".
72Mr Ashmore gave evidence that he first had contact with Mr Laison in early 2011. At the time, Mr Ashmore's businesses, particularly that of Eco Earthmoving, were experiencing financial difficulty. The prospect of additional work for his businesses, by engaging with a transport operator such as Mr Laison, was attractive to Mr Ashmore. It was in this context that he entered into the agreement with Mr Laison earlier described at [13].
73Following their agreement, sources of fill for use at the Zizza property were identified and the transport of that fill to the property commenced. However, securing the contract for the Shell site at Rosehill was considered to be significant to the new business arrangement. Until the events of 26 March 2011, nothing had occurred that caused Mr Ashmore any concern as to the manner in which the joint enterprise with Mr Laison would be conducted.
74I have earlier described the substance of the telephone call that Mr Ashmore had with Mr Laison on the eve of work commencing on the Shell site. Mr Ashmore claims that he was shocked at Mr Laison's statement and responded by saying that it was stupid. According to Mr Ashmore, Mr Laison replied by relating incidents of personal harm that had come to people who had not abided by his requirements. Mr Laison stated that he had access to people who would ensure that his directions were observed. He said that he could not return to New Zealand because of the reputation he had among those that did not meet his wishes. He claimed to be aware of another contractor who was "unhappy" with Mr Ashmore but that he, Mr Laison, would protect him from harm.
75That conversation, according to Mr Ashmore, was understood by him as a threat. He believed that unless he did as Mr Laison directed, both he and his family might be harmed. He was conscious that his home address was known to Mr Laison.
76Shortly after that conversation, he was informed by Mr Laison that a trucking contractor was threatening harm to Mr Ashmore but that Mr Laison would endeavour to protect him. Mr Ashmore, together with his wife and child stayed at a hotel for several days for fear of physical harm if they remained at their home.
77On 8 March 2011, Mr Laison came to Mr Ashmore with the false weighbridge dockets, requesting that the latter send those dockets to a nominated employee at CLM. The false dockets were in a printed form and contained information of the kind contained in weighbridge dockets issued by SITA. Mr Ashmore recognised that the loads recorded on those dockets would not match the records kept by CLM of loads dispatched from the Shell site, a circumstance likely to lead to the early discovery of the wrong that had been committed.
78Having sent the dockets to CLM, Mr Ashmore said that he was so distressed by what had occurred, he "fled" to New Zealand with his wife and child. However, he returned four days later, recognising that he had to deal with the consequences of what had occurred. Nevertheless, he says there were at least two other occasions on which he, his wife and child left their home to stay in temporary accommodation because of threats either from Mr Laison or from "associated parties".
79Mr Ashmore acknowledged that, notwithstanding the events just related concerning the Shell site, he retained an association with Mr Laison and the transport of fill or waste to the Zizza property. He kept records of loads delivered to that property and undertook some supervisory work directed to the repair of the dam. His evidence is that he did so in an endeavour to assist Mr Zizza in addressing the potential problems created by the manner in which fill was deposited on the property generally and in particular those consequent upon the depositing of asbestos fill on the property. This included ensuring that there was "clean fill" placed over the two areas of the Zizza property where waste from the Shell site had been deposited (Affidavit 26 August 2014).
80Mr Ashmore states that he continues to have contact with Mr Zizza, endeavouring to assist him in an advisory capacity. I record that Mr Zizza attended the hearing before me, apparently to offer support to Mr Ashmore. However, Mr Zizza was not called to give evidence.
81Mr Ashmore's direct involvement with the depositing of fill on Mr Zizza's property continued until late September 2011. Thereafter, he sold his home in Sydney and moved with his family to Queensland. In his affidavit sworn 26 August 2014 he states:
"Due to the financial implications of the contract being terminated and other financial pressures from the previous business complications and accompanied by the constant threat of retribution we moved from our home and moved interstate where we reside to this day unable to safely return."
82The number of trucks delivering material to the Zizza property had come under notice from March 2011, leading to investigation by officers of the Prosecutor. In August 2011 an officer of the Prosecutor telephoned Mr Ashmore concerning a load or loads of fill that had been deposited on the Zizza property. He was again contacted by that officer in September 2011 following service by the Prosecutor on Mr Zizza of a clean-up notice, given under the provisions of the POEO Act. Mr Ashmore's name had been given to the EPA by Mr Laison as being the contact person for details of fill delivered. In neither telephone conversation did Mr Ashmore disclose that waste containing asbestos had been brought to the property or of his involvement as a consequence of intimidation by or fear of Mr Laison. Each of those telephone conversations were, to Mr Ashmore's understanding, private conversations in that there was no other person present with him when the conversations were had.
83Mr Ashmore was first interviewed by an investigator on behalf of the Prosecutor on 11 October 2012. That interview was recorded. Mr Ashmore disclosed for the first time in the course of that interview that he had acted as he did because he was "scared" of Mr Laison and that there could have been "retribution" if he had spoken out about the events that were occurring in March and April 2011 (Exhibit A at [25]).
84In a further record of interview with Roberto Pupo, an officer of the Prosecutor, that took place in January 2014, Mr Ashmore was asked about the false weighbridge dockets that he had provided to CLM. In that context, the following questions and answers are recorded:
"A By this time, Rob, I was seriously threatened for my life, so I just did as I was told.
Q 166. Okay. By whom"
A Mathew Laison.
Q 167. And (indistinct)
A (indistinct) the whole lot. So I just got to this point where I just, you know what, you lock yourself up in a zone, you do as you're told and you hope that you go home at night.
Q 168. Okay. Threatened in what manner
A Physically, death, whatever.
Q 169. Did you report it to the police?
A No.
Q 170. Why not?
A Too scared."
85The Prosecutor challenges Mr Ashmore's claim to have acted as he did because he was "scared" of, or by, Mr Laison. Notwithstanding that challenge made in cross-examination, Mr Ashmore did not resile from his statement that he was and remained scared. He stated that he had never before been exposed to threats of the kind he understood Mr Laison to be making and acted in a manner that, with hindsight, he would not have acted now.
86Mr English, on behalf of the Prosecutor, points to a number of objective facts that he submits militate against acceptance of Mr Ashmore's evidence. First, he points to the opportunity that Mr Ashmore had to report the position in which he found himself in 2011 either to the Prosecutor or to the Police. The failure to do so suggests either that the threats were not made at all or, if they were made, Mr Ashmore was not scared or did not feel intimidated as he claims to have been.
87Mr English also points to ASIC searches that were tendered before me (Exhibits B, C and D). These reveal that on 14 June 2011 Mr Laison was appointed as a director and secretary of Eco Earthmoving. That is the company of which Mr Ashmore had been director and secretary since November 2000. According to the ASIC search, while Mr Ashmore resigned his position as director and secretary on the date upon which Mr Laison's appointment to those positions took effect, Mr Ashmore remained the sole shareholder of the company following Mr Laison's appointment as a director. This evidence reveals, so it is submitted, that there was an ongoing business relationship between Mr Ashmore and Mr Laison in the period during which Mr Ashmore claims that he was scared and intimidated.
88The essence of this last submission was put to Mr Ashmore in cross-examination. He did not accept it as reflecting the true position. In April 2011, Eco Earthmoving was under administration, the administrator having been appointed in September 2009. While Mr Ashmore had no recollection of signing any documents either resigning his appointment as a director or consenting to the appointment of Mr Laison as a director of that company, he accepts that such a change was anticipated. From the outset of their business relationship, Mr Ashmore agreed to assist Mr Laison to establish his trucking business. It was Mr Ashmore's intention to transfer the trucking side of his business to Mr Laison. He therefore believed that registration of the change in directors in June 2011 was consequent upon delay on the part of the administrator in attending to the registration of transfers intended to take place some months earlier.
89The initial offer to assist Mr Laison to establish his trucking business is also the response given by Mr Ashmore to a further matter upon which he was challenged by Mr English. In his record of interview dated 31 January 2014, Mr Ashmore stated that he had given Mr Laison $180,000 to start up his business. Mr Ashmore explained that he had not given that amount to Mr Laison as a direct payment but rather had contributed plant, wages and made payments on behalf of Mr Laison to that value. He had hoped ultimately to recoup this contribution but following the events of late April 2011, had come to realise that this was unlikely to occur. Mr Ashmore states that following those events he lost interest in his business and just wanted to cut his losses and phase out of it.
90The matters to which the Prosecutor referred do, at face value, tend to undermine the strength of Mr Ashmore's claimed duress. Nonetheless, I am satisfied, on the balance of probabilities, that at the time of committing the offences charged, Mr Ashmore did hold a fear that unless he acted in accordance with the directions of Mr Laison, he or his family might be harmed. Whether, with hindsight, his perception of that fear and his response to it were rational are matters, so it seems to me, that are relevant to the weight I should attribute to that duress in mitigation of the penalty.
91I had the opportunity to observe Mr Ashmore under cross-examination for a period of about two hours. His evidence and the manner of its delivery persuaded me that he genuinely held the fear he expressed. Importantly, his actions in moving his family out of the family home on at least three occasions proximate to the events of April 2011 when he felt under threat provided objective support for his expressed fear.
92Although, in his final submissions, Mr English questioned whether the temporary episodes of relocating his family actually occurred because Mr Ashmore did not bring to Court any evidence of the cost of this temporary accommodation, I do not regard that contention to be a serious challenge to this aspect of Mr Ashmore's evidence. I take into account that Mr Ashmore conducted his own case and, as earlier observed, showed no great familiarity with the processes of the Court. In the circumstances, it is unsurprising that Mr Ashmore may not have thought to bring the accommodation receipts with him. Moreover, the claim that he had thought it necessary to relocate his family on a temporary basis in response to threats was not a claim made for the first time in the witness box.
93I also accept that the fear expressed by Mr Ashmore as to his personal safety and that of his family was a factor informing his decision to move interstate in an endeavour to achieve a degree of anonymity. However, as the evidence earlier quoted (at [81]) from Mr Ashmore's most recent affidavit reveals, there was also a financial consideration informing the decision to move interstate.
94While I accept that the commission of the present offences was affected by duress, the weight that might otherwise attach to that circumstance is reduced by Mr Ashmore's failure to alert the Prosecutor to his actions when the opportunity presented itself so to do in August and again in September 2011. So also is the fact that the serious intimidation alleged by Mr Ashmore was not reported to the Police. While a residual fear undoubtedly lingered, I gained the clear impression from Mr Ashmore's evidence that, with the passage of time, financial considerations became a factor in his decision-making, if only directed to extracting himself from the dilemma with which he was confronted.