Environment Protection Authority v Calleija; Environment Protection Authority v Budget Waste Recycling Pty Ltd

JUDGMENT Introduction Issues Outcome Factual background The defendants The premises The EPL The EPA's investigation prior to the prevention notice The prevention notice given on 25 May 2022 to Budget Waste EPA investigation after the prevention notice was given on 25 May 2022 Class 1 appeal of the prevention notice Further investigation Supplementary prevention notice given on 25 November 2022 to Mr Calleija Class 1 appeal of the supplementary prevention notice Contraventions of the notices The first offence The second offence The third offence Environmental harm Criminal history Relevant legislative provisions and legislative history Onus and standard of proof at sentencing Objections to the prosecutor's evidence The relevance objections Defendants' submissions Prosecutor's submissions Conclusions in relation to the relevance objections The latent duplicity objections Defendants' submissions Prosecutor's submissions Conclusions in relation to the latent duplicity objections The evidence of harm objection Defendants' submissions Prosecutor's submissions Conclusions in relation to the evidence of harm objection Evidence of the prosecutor upon which I have ruled Mr Campbell, unit head in the regulatory operations division, EPA The prosecutor's expert Mr Burton Ms Fleming, senior operations officer at the EPA Defendants' evidence Mr Calleija Other evidence tendered by the defendants Objective seriousness of the offences Nature of the offences Prosecutor's submissions in relation to the first offence Prosecutor's submissions in relation to the second offence Prosecutor's submissions in relation to the third offence The defendants made no submissions in relation to the nature of the offences Maximum penalties for the offences Prosecutor's submissions in relation to all offences Defendants' submissions in relation to all offences The defendants' state of mind in committing the offences Prosecutor's submissions in relation to the first and third offences Defendants' submissions in relation to the first and third offences Prosecutor's submissions in relation to the second offence Mr Calleija's submissions in relation to the second offence The harm caused or likely to be caused to the environment: s 241(1)(a) of the POEO Act Prosecutor's submissions in relation to the first and third offences Prosecutor's submissions in relation to the second offence Defendants' submissions in relation to all offences The defendants' reasons for committing the offences, and the question of financial gain The practical measures taken to avoid harm to the environment: s 241(1)(b) of the POEO Act Prosecutor's submissions in relation to all offences Defendants' submissions in relation to all offences The foreseeability of harm caused or likely to have been caused to the environment: s 241(1)(c) of the POEO Act Prosecutor's submissions in relation to all offences Defendants' submissions in relation to all offences The defendants' control over the causes that gave rise to the offences: s 241(1)(d) of the POEO Act Prosecutor's submissions in relation to all offences Defendants' submissions The parties' general submissions in relation to objective seriousness Prosecutor's submissions Defendants' submissions Conclusions in relation to the objective seriousness of the offences Subjective circumstances of the offenders Series of criminal acts: s 21A(2)(m) of the CSP Act Prosecutor's submissions Defendants' submissions Financial gain: s 21A(2)(o) of the CSP Act Prosecutor's submissions in relation to the first and third offences Prosecutor's submissions in relation to the second offence Defendants' submissions in relation to the first and third offences Mr Calleija's submissions in relation to the second offence Record of previous convictions: ss 21A(2)(d), 21A(3)(e) of the CSP Act Good character: ss 21A(3)(f) of the CSP Act Defendants' submissions in relation to all offences Remorse shown by the offender: s 21A(3)(i) of the CSP Act Prosecutor's submissions in relation to all offences Defendants' submissions in relation to all offences Guilty pleas: ss 21A(3)(k), 22 of the CSP Act Assistance to authorities: ss 21A(3)(m), 23 of the CSP Act Conclusions in relation to the subjective circumstances of the offender Other principles of sentencing to be considered Proportionality Specific and general deterrence: s 3A(b) of the CSP Act Prosecutor's submissions in relation to all offences Defendants' submissions in relation to all offences Conclusions in relation to specific and general deterrence Even-handedness and consistency in sentencing Prosecutor's submissions in relation to all offences Defendants' submissions in relation to all offences Totality Capacity to pay: s 6 of the Fines Act The "instinctive synthesis approach" and the appropriate penalties to be imposed Payment of share of fine to prosecutor: s 122 of the Fines Act Publication order: s 250(1)(a) of the POEO Act Investigation costs: s 248 of the POEO Act Professional costs Orders In proceedings 164057 of 2023: In proceedings 164049 of 2023: In proceedings 324738 of 2023: In proceedings 164049 of 2023, 164057 of 2023 and 324738 of 2023:

Introduction

1. The first defendant, Budget Waste Recycling Pty Ltd (ACN 112 980 293) (Budget Waste) is an Australian waste company and the holder of environment protection licence number 20645 (the EPL) authorising it to carry on the scheduled activities of resource recovery and waste storage in a defined area of 311 Doonside Road, Arndell Park, New South Wales (the premises).
2. At all relevant times, the second defendant, Mr Michael Joseph Calleija (Mr Calleija) was the sole director and sole shareholder of Budget Waste. Budget Waste and Mr Calleija will be collectively referred to as the defendants throughout this judgment.
3. On 11 August 2023, in proceeding no 2023/164057 Budget Waste pleaded guilty to an offence against s 97 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) of failing to comply with a prevention notice given on 25 May 2022, as charged in the summons filed by the Environment Protection Authority (the EPA) (the prosecutor) on 23 May 2023 (the first offence).
4. On 11 August 2023, in proceeding no 2023/164049 Mr Calleija pleaded guilty to an offence against s 169A of the POEO Act of committing an executive liability offence in his capacity as director of Budget Waste, from about 1 June 2022, as charged in the prosecutor's summons filed on 23 May 2023 (the second offence).
5. On 8 December 2023, in proceeding no 2023/324738 Mr Calleija pleaded guilty to an offence against s 97 of the POEO Act of failing to comply with a prevention notice given on 25 November 2022, as charged in the prosecutor's summons filed on 13 October 2023 (the third offence).
6. The three offences to which the defendants have pleaded guilty are as follows: 1. The first offence is that Budget Waste failed to comply with direction 1 of prevention notice number 3502561 given under s 96 of the POEO Act on 25 May 2022 (the prevention notice). Direction 1 of the prevention notice required that Budget Waste "immediately, cease the receival of all waste to the Premises until the EPA is satisfied that you have demonstrated compliance with Directions 2-3 of this Notice and approves in writing that the activity can resume". However, waste was received at or near the premises in contravention of that notice from about 25 May 2022 and continuing to about 23 December 2022 (the charge 1 period). (I note that the agreed facts say "receival of waste occurred from 26 May 2022 until 23 December 2022"). 2. The second offence is that in contravention of s 169A of the POEO Act, Mr Calleija, as a director of Budget Waste at all relevant times, knew or ought reasonably to have known that an offence against s 97 of the POEO Act would be or was being committed and failed to take all reasonable steps to prevent or stop the commission of that offence. Budget Waste contravened s 97 by failing to provide to the EPA a volumetric and topographical survey (the survey) of the kind described in direction 2 of the prevention notice in contravention of direction 2(d) of the prevention notice "[f]rom about 1 June 2022 and continuing to about 24 January 2023" (the charge 2 period). 3. The third offence is that Mr Calleija failed to comply with direction 1 of supplementary prevention notice no 3504232 given under s 96A of the POEO Act on 25 November 2022 (the supplementary prevention notice). Direction 1 of the supplementary prevention notice required that Mr Michael Calleija "immediately, cease the receival of all waste to the Premises until the EPA is satisfied you have demonstrated compliance with Directions 2-5 of this Notice and approves in writing that the activity can resume". However, waste was received in contravention of that notice on 25 November 2022 and continuing until 23 December 2022 (the charge 3 period). (I note in relation to the third charge period that the agreed facts refer to the period "26 November 2022 until 23 December 2022").
7. The elements of the offences, as set out in the prosecutor's written submissions filed on 3 April 2024, and apparently agreed by the defendants are: 1. In relation to the offence against s 97 of the POEO Act: 1. a prevention notice was given to the occupier of the premises or a person carrying out an activity; and 2. that person did not comply with the prevention notice. 1. In relation to the offence against s 97 of the POEO Act where the prevention notice is a supplementary prevention notice given under s 96A: 1. a prevention notice was given to the corporation under s 96 of the POEO Act in relation to an activity; 2. the corporation did not comply with the previous prevention notice within the period specified in the notice; 3. a supplementary prevention notice was given to a director of the corporation under s 96A of the POEO Act; and 4. the director did not comply with the supplementary prevention notice. 1. In relation to the offence against s 169A of the POEO Act: 1. a corporation commits an executive liability offence such as an offence against s 97 of the POEO Act; 2. the person is a director of the corporation (or is concerned in the management of the corporation); 3. the person knows or ought reasonably to know that the executive liability offence, or an offence of the same type, would be or is being committed; and 4. the person failed to take all reasonable steps to prevent or stop the commission of that offence.
8. It was an agreed fact that all three offences are continuing offences for the purposes of s 242(1) of the POEO Act.
9. The proceedings were listed before me for a hearing on sentence on 16 and 17 April 2024.

Issues

1. The issues which arise for determination are: 1. the defendants' relevance objections to the evidence sought to be relied on by the prosecutor for the purpose of the hearing on sentence; 2. the defendants' latent duplicity objections to the evidence sought to be relied on by the prosecutor for the purpose of the hearing on sentence; 3. the defendants' evidence of harm objections to the evidence sought to be relied on by the prosecutor for the purpose of the hearing on sentence; and 4. a sentence in relation to each of the three offences to which the defendants have pleaded guilty.

Outcome

1. I have ruled against the defendants' relevance objections, latent duplicity objections and evidence of harm objections.
2. In relation to the first offence, Budget Waste has pleaded guilty to and is convicted of one offence against s 97 of the POEO Act, as charged.
3. In relation to the second offence and third offence, Mr Calleija has pleaded guilty to and is convicted of one offence against s 169A of the POEO Act, and one offence against s 97 of the POEO Act, as charged.
4. In relation to each of the offences, I would fix the following penalties: 1. In relation to the first offence, the amount of $100,000, with a further amount of $1,000 a day for a period of 212 days. To this, I apply a discount of 25% for the utilitarian value of its guilty plea which produces $234,000. 2. In relation to the second offence, the amount of $60,000, with a further amount of $600 a day for a period of 237 days. To this, I apply a discount of 25% for the utilitarian value of its guilty plea which produces $151,650. 3. In relation to the third offence, the amount of $75,000, with a further amount of $1,000 a day for the period of 28 days. To this, I apply a discount of 25% for the utilitarian value of its guilty plea which produces $77,250.
5. Having regard to the totality principle, as considered below at [299]-[302] and [311], I will make orders that: 1. In relation to the first offence, and Budget Waste, a penalty in the amount of $234,000. 2. In relation to the second offence, and Mr Calleija, a penalty in the amount of $25,000. 3. In relation to the third offence, and Mr Calleija, a penalty in the amount of $75,000.
6. I would then propose to make an order that 50% of each of the penalties be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW) (Fines Act).
7. I also propose to make orders that the defendants pay the EPA's investigative costs pursuant to s 248 of the POEO Act, and that the defendants pay the EPA's legal costs pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act). I propose to make publication orders pursuant to s 250(1)(b) of the POEO Act. My orders to such effect are set out at the conclusion of these reasons for decision.

Factual background

1. On 19 March 2024, the parties filed an extensive statement of agreed facts (the SOAF). The following recitation of agreed facts is largely derived from the SOAF with some immaterial alterations in light of the Court's own review of the underlying documents, and the Court's rulings in relation to the defendants' objections to the prosecutor's evidence (as to which, see [101]-[108], [115]-[122] and [135]-[140] below, and Annexure B).

The defendants

1. Budget Waste is an Australian waste company with a registered office and principal place of business at the premises. The title of the premises is Lot 1 in Deposited Plan 509194. At all relevant times the registered owner of the premises was Mr Calleija. At all relevant times, Mr Calleija was the sole director of Budget Waste. At all relevant times, Mr Calleija's sons, Mr Matthew Calleija and Mr Christopher Calleija, were not employees of Budget Waste.
2. Budget Waste holds an EPL for a "scheduled waste facility" for the purposes of the Protection of the Environment Operations (Waste) Regulation 2014 (NSW) (POEO Waste Regulation). Under cl 22 of the POEO Waste Regulation, Budget Waste is required to submit monthly self-reported waste contribution reports via the EPA's Waste and Resource Recovery Portal (WARRP).
3. At all relevant times, s 191 of the POEO Act provided that the EPA may, by notice in writing given to a person, require the person to furnish to it information or records as it requires. In the course of the EPA's investigation the EPA required the defendants to provide records pursuant to s 191 of the POEO Act, including Excel spreadsheets which provided incoming waste information about waste received at the premises during different periods (the s 191 POEO Act responses).

The premises

1. An aerial photo of the premises dated 11 September 2022 is reproduced below:
2. To the west of the premises is Doonside Road. Across Doonside Road is Bungarribee Park. Bungarribee Park is part of the Western Sydney Parklands. The boundaries to the east and south of the premises are shared by Toll North Pty Ltd, known as Toll Chemical Services (Toll). Toll is licenced by the EPA to store chemicals and waste. There is no evidence that Toll's operations were impacted by any of the offences.

The EPL

1. At all relevant times, Budget Waste held the EPL, issued under s 55 of the POEO Act. Pursuant to condition A1 of the EPL, Budget Waste is authorised to carry on the scheduled activities of resource recovery and waste storage in a 4,708 square metre (m2) portion of the premises, as identified in EPL condition A2 (the hatched area) shown below:
2. Pursuant to condition L2.1 of the EPL, waste permitted to be stored and recovered at the premises was: 1. paper, plastics, glass, metal and timber; 2. excavated natural material; 3. virgin excavated natural material; and 4. building and demolition waste.
3. Throughout 2022, the waste stored at the premises was predominantly building and demolition waste.
4. The EPL provided a number of restrictions upon the volume and manner of storage of waste. At all relevant times, those conditions included: 1. condition L2.2: "The authorised amount of waste permitted on the premises cannot exceed 5,000 tonnes at any one time"; and 2. condition L2.3: "No stockpile on the premises may exceed a height of 5 metres at any time".

The EPA's investigation prior to the prevention notice

1. In April 2022, EPA officers conducted a desktop assessment of the premises using Nearmap high-resolution aerial imagery from 17 February 2022 which caused the EPA concern that an activity was being carried on in an environmentally unsatisfactory manner at the premises.
2. On 9 May 2022, EPA officers conducted an inspection of the premises which led to the issue of a draft prevention notice to Budget Waste on 13 May 2022. On the same day, EPA authorised officer Ms Jessica Fleming received a phone call from Mr Calleija where words to the following effect were exchanged: Mr Calleija: "I've received the draft Prevention Notice but haven't read it and passed it onto my solicitors". "I don't go onto site much, Dump It run the day to day activities and Dump It is run by my sons." "Rain has held us up and I don't have much to do with the site anymore". Ms Fleming: "If you need more time to review the notice, please give me a call or send me an email".
3. On 17 May 2022, the EPA received comments on the draft prevention notice from Budget Waste. The response stated (among other things): a. "Budget Waste Recycling Pty Ltd (BWR) acknowledges the EPA's concerns arising from the site inspection on 9 May 2022. In particular, the concerns including the height and location of the stockpiled material, the tip and spread process underway at the time of the inspection and the concerns regarding access to weighbridge data. BWR is committed to working with the EPA to address these issues and to reach full compliance." b. "The current Omicron wave has impacted our staffing levels through positive tests, quarantine requirements, vaccination induced illness and departures due to our vaccine mandate. In the first quarter of this year this has impacted our ability process waste and maintain the site." c. "The rainfall received at the premises in the first quarter of this year was beyond anything we have previously experienced. It has made it difficult for our plant to process the stockpiled material and caused regular shutdowns for repairs and maintenance. The waste that we have been sending to landfill is more expensive to dispose of due to the accumulated water in the waste. In addition, some landfills have been closed during this period and others have increased their rates. This has placed significant commercial pressure on BWR's business and its cashflow …" d. "We also note that BWR has ordered a Flip Flow Screen at a cost of $250,000 to improve its ability to process waste impacted by water."
4. Budget Waste proposed a joint site inspection with the EPA to take place in the week commencing 30 May 2022 "to demonstrate our progress and improvement". On 18 May 2022, EPA officers conducted a drive-by inspection of the premises which led to the giving of a final prevention notice.

The prevention notice given on 25 May 2022 to Budget Waste

1. On 25 May 2022, the EPA gave the prevention notice to Budget Waste under s 96 of the POEO Act. The prevention notice provided at [R]-[S]: R. The EPA reasonably suspects the activities of resource recovery and waste storage are being carried on in an environmentally unsatisfactory manner at the Premises by Budget Waste Recycling Pty Limited that the activities are carried on in a manner that is likely to lead to a contravention of Licence Conditions A2.1, L2.2, L2.3, O3.1-3, and O5.2 of the Licence. S. The EPA reasonably believes the activities are carried on at the premises in a manner that is likely to lead to a contravention of Conditions A2.1, L2.2, L2.3, O3.1-3, and O5.2 of the Licence because: i. Waste was stockpiled outside the hatched area indicated in the site map in Condition A2.2 of the Licence; and ii. Aerial imagery showing significant stockpiles at the Premises, with onsite staff unable to produce documentation of waste volumes at the time of inspection; and iii. The stockpile in the centre of the Premises was significantly large, with no appropriate method for the licensee to assess their compliance with Condition L2.3 of the Licence; and iv. Dust was generated as a result of the activities on the site and no dust suppression methods during tipping were observed at the time of the inspection; and v. There were no sediment controls observed at the time of the inspection and sediment was observed on Penelope Crescent, tracked from the Premises. The EPA is also in receipt of reports of sediment on the road; and vi. There was little or no segregation of stockpiled wastes.
2. The prevention notice directed Budget Waste to take the following preventative actions: 1. "Immediately, cease the receival of all waste to the Premises until the EPA is satisfied you have demonstrated compliance with the prevention notice. 2. By 1 June 2022 or earlier, the licensee must undertake a volumetric and topographical survey (the Survey) of the Premises. The Survey must: a. Be completed by an independent, suitably qualified, and registered surveyor as defined in Clause 7 of the Protection of the Environment Operations (Waste) Regulation 2014; and b. Be conducted in accordance with sections 5.5 - 5.7 of the Waste Levy Guidelines 2018; and c. Provide evidence of compliance with Conditions A2.1, L2.2, L2.3, and O5.2 of the Licence; and d. Provide the Survey, including the Survey methodology, to the EPA in writing immediately after receiving the survey results.

EPA investigation after the prevention notice was given on 25 May 2022

1. On 27 May 2022, EPA authorised officer Ms Fleming spoke with Mr Calleija. During that conversation, Mr Calleija said words to the following effect: a. "I am surprised that the EPA issued the notice". b. "It is going to cost approximately $20,000 to undertake the volumetric survey and I have been operating for 30 years and measuring metres cubes is a pointless exercise". c. "Since the notice was issued, I have been out on site every day and taken over management of the day-to-day operations from my sons to ensure the notice is complied with". d. "I've owned the site since 1996, this isn't a situation where we would fill the site and leave giving the clean-up cost to the EPA". e. "I can send you regular updates to show the amount of waste leaving the site". Ms Fleming said, "That would be great. The more updates you send the EPA, the sooner we may be able to revoke direction one of the notice." f. "I know there is an issue at my site. I told my sons 6 to 8 months ago, in October, that they needed to reduce the amount of waste on site. My sons told me if they stopped accepting waste then they would go broke." g. "Covid and increased rainfall are excuses but I know we still need to comply, I know there is an issue at the site and we're looking at installing stockpile height markers asap". h. "We're struggling to find landfills to accept the waste but we're trying to find B double trucks to take the waste away".
2. On 1 June 2022, Ms Fleming spoke with Mr Calleija, and words to the following effect were exchanged (emphasis added): a. Mr Calleija: "Trucks are hard to get out to site and it is a big battle, we've borrowed a truck from a cousin who has a similar site on central coast to help us move waste, we've been taking waste from site to Cleanaway Kemps Creek, our paperwork shows we're close to 5000T. We're looking to appeal the notice and I've been talking with my solicitor. The waste might be double the weight because of the amount of rain and we would likely be over the licence limits because of that. Converting a metre cube measurement to tonne weight measurement is a pointless exercise and it is smarter to take a visual assessment." b. "I understand the intent of the notice is for the amount of waste at our site to not increase, I've got to get rid of it. I know you want to see a pattern of waste leaving the site. The flip-flow screen will likely arrive in July". c. "We are using a walking floor truck three times a week removing approximately 80t of waste a day, the tripping issue of the prevention notice is the volumetric survey." d. Ms Fleming: "Have you received quotes for the volumetric survey?" e. Mr Calleija: "I haven't organised any quotes, but someone told me that it was going to cost $20,000 to get done and I don't have that money."
3. On 1 June 2022 and 10 June 2022, EPA officers conducted drive-by inspections of the premises.

Class 1 appeal of the prevention notice

1. On 10 June 2022, by way of Class 1 proceedings in this Court, Budget Waste commenced an appeal against the prevention notice.
2. In the Class 1 proceedings, Budget Waste prepared and filed a statement of facts and contentions dated 28 June 2022. The statement of facts and contentions was signed by Budget Waste's then solicitor and provided as follows: a. "Full compliance with condition L2.2 is anticipated within 31 August 2022." b. "Full compliance with condition L2.3 is anticipated within 31 August 2022."
3. On 24 October 2022, a conciliation conference was held between Budget Waste and the EPA, which was attended by Mr Calleija and Mr Matthew Calleija. On 31 October 2022, Budget Waste discontinued the Class 1 appeal.

Further investigation

1. On 12 July 2022, EPA officers conducted an inspection of the premises. During the inspection, EPA officer Ms Fleming and Mr Calleija had the following conversation: Mr Calleija: "Okay, we're trying to do our best seriously, we need it to stop raining, it's probably depressing for you to go to work when it rains, for us its 100 times depressing cause any work we've done just gets shot down and rained on, I mean we're seriously trying to do, were not trying to make money and leave this sitting, this place belongs to me you know we're not trying to just run off and do something illegal you know. … All these boys here are dedicated to their jobs we've kept them working". Mr Calleija: "It's when it gets warmer, if it gets warmer, you know, as soon as it gets warmer we're ready to go and this will be gone, you know for a fact that if you go back to your time when you got pictures there was no great deal here but if you go back to I think October if you look back and you saw that there wasn't that much stuff here it all happened as soon as it rained and it just got caught, we got caught with a little wet pile and then a little bit of wet pile and then next thing you know bang we've got this, we're trying to stop it, we're trying to dry it up as much as we can you know, I mean if you shut us down right now this will still sit here forever." Ms Fleming: "And you've been sorting things that have been coming in for the last three days, is that correct?" Mr Calleija: "Absolutely. Yeah. They've been working every day". Ms Fleming: "So waste is still coming in and it's being sorted?" Mr Calleija: "Waste is being processed. Absolutely. Waste is being processed".
2. On 12 July 2022, a volumetric survey of the premises was conducted by Australian Aerial Imagery Pty Ltd (Australian Aerial Imagery) using a drone. The EPA paid $1,550.00 in investigation costs to Australian Aerial Imagery.
3. On 19 October 2022, EPA officers attended outside the premises to conduct another volumetric survey. While near the premises, EPA officers made the following observation: "Trucks labelled 'Dump It', were tipping skip bins containing waste onto the Premises."
4. On 19 October 2022, a volumetric survey of the premises was again conducted by Australian Aerial Imagery using a drone. The EPA paid a further $1,550.00 in investigation costs to Australian Aerial Imagery.

Supplementary prevention notice given on 25 November 2022 to Mr Calleija

1. On 4 November 2022, the EPA issued a draft supplementary prevention notice to Mr Calleija. On 8 November 2022, EPA authorised officer Ms Fleming spoke with Mr Calleija on the phone. Their conversation included the following (emphasis added): Mr Calleija: "On the portal we have indicated there is approximately 10,000 tonnes of waste on their premises. We had a drone fly over site yesterday to take visual images of the premises to show a change over time. We're planning on using a drone to fly over the premises to collect visual images once a week on a Monday morning. We have reduced the amount of waste we are accepting at the site to 100 - 120 tonnes per day and have been removing approximately 350 to 400 tonnes off site per day. We're getting rid of a third, but need more time." Mr Calleija: "In July we said we needed to wait until October to start removing the waste due to increased warm weather drying out the wet waste and that the weather is now good so we've been making good progress with removing the waste. If we cease accepting waste then we will not be able to afford the cost to remove the waste and will need to go into liquidation which is not a good outcome". Ms Fleming: "Thank you for outlining your concerns. At the conciliation conference you stated the absolute minimum waste you could accept to be financially viable would be 200 tonnes but you have reduced that further to 100-120 tonnes and that the intention of the cease accepting waste requirements is to reduce the waste incoming so you can remove the waste without the volume continuing to rise. Please put all these comments in writing by the draft comment period, this Friday, and if you need more time to hire a new lawyer please put an extension of time to review the draft notice request in writing to me with a proposed date. …" Ms Fleming: "Please include as much evidence as you can in your response to the draft supplementary prevention notice, this may include weighbridge dockets and data to support your claim of only accepting 100-120 tonnes of waste, where the waste was going and to include the drone images taken yesterday." Mr Calleija said: "I would be proposing end of January as the final compliance date on the notice. We receive less construction contracts in the December January Christmas period and would be able to process waste faster due to this. I can send you the images/footage from yesterday's drone flight and the drone footage weekly. A volumetric survey is a pointless exercise but I do see the value of undertaking a volumetric survey at the end of the process."
2. On 15 November 2022, Mr Calleija's legal representative made a submission to the EPA in relation to the draft supplementary prevention notice which stated as follows (emphasis added): a. Mr Calleija's fundamental issue with the Draft Notice is that it requires the immediate cessation of the receival of all waste to the Premises. We are instructed that approximately 50 staff are employed by the facility. If such a direction were made, most of those staff would unfortunately be made redundant. b. We are instructed that Mr Calleija would agree to: … Provide a volumetric survey and report demonstrating full compliance with the EPL by 31 January 2023.
3. On 23 November 2022, EPA officers conducted a drive-by inspection of the premises. On 25 November 2022, the EPA gave the supplementary prevention notice to Mr Calleija. The supplementary prevention notice directed Mr Calleija to take the following preventative action: 1. Immediately, cease the receival of all waste to the Premises until the EPA is satisfied you have demonstrated compliance with Directions 2-5 of this Notice and approves in writing that the activity can resume. 2. By 5:00pm 29 November 2022, you must: (a) Install a sign at the front gates, large and clear enough to be visible from 30 metres stating that the Premises is not accepting waste pursuant to a direction given under section 96A of the POEO Act. (b) Send a written notification to all clients who have used the services at 311 Doonside Road Arndell Park in the previous year, stating that the Premises is unable to receive waste until Direction 1 of this notice is lifted by the EPA, pursuant to a direction given under section 96A of the POEO Act, and that under section 143 of the POEO Act the owner of the waste and transporter are each guilty of an offence when waste is transported to a place that cannot lawfully be used as a waste facility. (c) Provide evidence in writing to the EPA, by way of (but not limited to) photographs, copies of letters and receipts for receipt for notifications, to demonstrate compliance with Direction 2(a)-(c). 3. By 5:00pm 7 December 2022, you must engage a suitably qualified independent person to complete the following: (a) Conduct an inspection across the entire Premises to identify where waste material has been received and has either been land applied, processed, or stockpiled at the Premises; and (b) Classify each type of waste mate rial that has been received at the Premises and either been land applied, processed, or stockpiled in accordance with the Waste Classification Guidelines, part 1: classifying waste, EPA 2014 or whether the material meets a general resource recovery order; and (c) Provide a report, including the methodology and outcomes of the inspection and waste classification process, to the EPA in writing immediately after receiving the report from the suitably qualified and independent person. 4. By 5:00pm 21 December 2022 you must: (a) Remove waste from the Premises until the amount of waste on site below the authorised amount, as specified in Licence Condition L2.2. (b) Ensure adequate stockpile separation distances of waste stockpiles on the Premises; and (c) Undertake a volumetric survey (the Survey) of the Premises and collect bulk density soil samples reflective of the stockpile material, to confirm the amount of waste remaining onsite is below the authorised amount, as specified in Licence Condition L2.2. The Survey must: i. Be completed by an independent, suitably qualified, and registered surveyor as defined in clause 7 of the Protection of the Environment Operations (Waste) Regulation 2014; and ii. Be conducted in accordance with sections 5.5 - 5.7 of the Waste Levy Guidelines 2018; and iii. Include any waste (processed or not) both inside and outside any building on the Premises; and iv. Provide evidence of compliance with Conditions A2.1, L2.2, L2.3, and 05.2 of the Licence; and v. Provide the Survey and bulk density soil testing results, including the Survey methodology, to the EPA in writing immediately after receiving the survey results. 5. By 5:00pm 22 December 2022, you must: (a) Ensure waste is only stored within the Premises as demarcated by the hatched area on the site map in Condition A2.2 of the Licence. (b) Install permanent stockpile height markers, and train employees on the use of these, so the markers can be accurately measured by visual comparison to the stockpile height from ground level and are positioned in such a way that it is possible to determine the height of the markers by staff working within processing and storage areas of the yard; and (c) Submit a report to the EPA demonstrating compliance with Directions 1-5 of this notice.

Class 1 appeal of the supplementary prevention notice

1. On 1 December 2022, by way of Class 1 proceedings in this Court, Mr Calleija appealed the supplementary prevention notice, and filed a notice of motion seeking a stay of the supplementary prevention notice until final determination of the proceedings. On 6 December 2022, the EPA filed evidence identifying potential environmental risks. Mr Calleija indicated that he would not be moving on the motion as he intended to file evidence in reply.
2. On 8 December 2022, the notice of motion was listed for return before the Deputy Registrar. The Deputy Registrar stated that the first available date for the hearing of the motion was 31 January 2023. The motion was listed for hearing on 3 February 2023. Ultimately, Mr Calleija did not move on the motion. On 14 June 2023, a conciliation conference was held in this Court between Mr Calleija and the EPA.

The first offence

1. Budget Waste continued to accept and receive waste at the premises after it became aware of the prevention notice given on 25 May 2022 at 5:40pm. The receival of waste occurred from about 25 May 2022 until 23 December 2022. The continued receival of waste during the charge 1 period constitutes the offence by Budget Waste against s 97 of the POEO Act.
2. The monthly WARRP reports submitted by Budget Waste record that Budget Waste received up to a total of 26,247.88 tonnes (t) of waste during the charge 1 period. The monthly data is set out in the table below: Month 2022 Waste received (t) Waste removed (t) Closing stock (t) Net increase or decrease (t) May 3,676.30 2,786.76 4,964.18 - June 3,693.98 3,238.06 5,420.10 455.92 increase July 4,016.96 2,068.48 7,368.58 1,948.48 increase August 3,893.26 2,788.34 8,473.50 1,104.92 increase September 2,752.04 2,046.92 8,859.26 705.12 increase October 2,663.08 2,982.44 8,859.26 319.36 increase November 3,627.78 5,051.54 7,435.50 1,423.76 decrease December 1,924.48 4,670.16 4,689.2 2,745.68 decrease

The second offence

1. Direction 2 of the prevention notice given on 25 May 2022 required Budget Waste to undertake a volumetric and typographical survey of the premises and by 1 June 2022, and provide the survey to the EPA immediately upon receiving the results. Between 1 June 2022 and 24 January 2023, Budget Waste did not provide a survey to the EPA as required by direction 2(d) of the prevention notice. This failure constitutes an offence against s 97 of the POEO Act.
2. At all times, Mr Calleija was a director of Budget Waste. Mr Calleija knew or ought reasonably to have known that Budget Waste was committing an offence against s 97 by not providing a survey of the kind required by direction 2 of the prevention notice. Mr Calleija failed to take all reasonable steps to prevent Budget Waste from failing to comply with direction 2(d) of the prevention notice.

The third offence

1. Mr Calleija did not prevent the receival of waste at the premises after he became aware of the supplementary prevention notice given on 25 November 2022 and until 23 December 2022.
2. During the period from 26 November 2022 until 23 December 2022, the s 191 POEO Act responses record that Budget Waste received 873 loads of waste. In total, over 2,319t of waste was delivered to the premises during the charge 3 period.
3. The monthly WARRP reports submitted by Budget Waste record that Budget Waste received a total of up to 5,552.26t of waste during the charge 3 period. That amount was calculated by adding the waste received in November 2022 (3,627.78t) and the waste received in December 2022 (1,924.48t) from the WARRP monthly table extracted in the table above at [50]. [1]

Environmental harm

1. The defendants' conduct increased the volume of waste at the premises which led to a larger footprint of waste at the premises.

Criminal history

1. Budget Waste has no known prior convictions for environmental offences.
2. On 8 February 2024, Mr Calleija was convicted in the Local Court of one offence against s 211(3A) of the POEO Act of wilfully obstructing an EPA authorised officer on 12 July 2022, and fined $6,000. As at the date of this judgment, the decision of the Local Court is the subject of appeal to this Court. Mr Calleija has no other known convictions for environmental offences.

Relevant legislative provisions and legislative history

1. Section 3 of the POEO Act sets out the objects of the Act as follows: 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, … (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, …
2. Section 6(1) of the POEO Act provides that the EPA is the appropriate regulatory authority for the purposes of the Act (except as provided by this section).
3. Section 95 of the POEO Act provides as follows in relation to the meaning of "environmentally unsatisfactory manner": 95 Meaning of environmentally unsatisfactory manner For the purposes of this Part an activity is carried on in an environmentally unsatisfactory manner if - (a) it is carried on in contravention of, or in a manner that is likely to lead to a contravention of, this Act, the regulations or a condition attached to an environment protection licence (including a condition of a surrender of a licence) or an exemption given under this Act or the regulations, or (b) it causes, or is likely to cause, a pollution incident, or (c) it is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution, the emission of any noise or the generation of waste, or (d) it is not carried on in accordance with good environmental practice.
4. Section 96 of the POEO Act provides as follows in relation to prevention notices: 96 Preventive action (1) Application of section This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises). (2) Prevention notices The appropriate regulatory authority may, by notice in writing, do either or both of the following - (a) direct the occupier of the premises, (b) direct the person carrying on the activity (whether or not at premises), to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner. (3) Examples The action to be taken may (without limitation) include any of the following - … (d) ceasing to carry on or not commencing to carry on an activity, … (h) action with respect to the transportation, collection, reception, re-use, recovery, recycling, processing, storage or disposal of any waste or other substance, … (j) reviewing the carrying out of an activity. … … (5) Reports A prevention notice may require the person to whom the notice is given to furnish reports to the appropriate regulatory authority regarding progress on carrying out the action required to be taken by the notice.
5. Section 96A of the POEO Act commenced on 24 March 2022 [2] and enables an appropriate regulatory authority to issue a prevention notice to current and former directors of a corporation and related bodies corporate, if a prevention notice has been given to a corporation and the corporation has failed to comply with the notice. Section 96A of the POEO Act provides as follows: 96A Prevention notices may be given to directors and related bodies corporate (1) This section applies if - (a) the appropriate regulatory authority has given a prevention notice under section 96 (the previous prevention notice) to a corporation in relation to an activity, and (b) the corporation has not complied with the previous prevention notice within the period specified in the notice. (2) The appropriate regulatory authority may, by written notice (the supplementary prevention notice), direct 1 or more of the following to take the action specified in the notice within the period, if any, specified in the notice to ensure that the activity is carried on in future in an environmentally satisfactory manner - (a) a current director of the corporation, (b) a former director of the corporation, (c) a related body corporate. …
6. Section 97, the offence provision for the first and third offences, provided as follows: 97 Offence A person who does not comply with a prevention notice given to the person is guilty of an offence. Maximum penalty - (a) in the case of a corporation - $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual - $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. Note - An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation - see section 169A.
7. Section 99(1) of the POEO Act provides in relation to the commencement of operation of prevention notices or of variations of a prevention notice that the notice or variation "operates from the day the notice or notice of the variation is given or from such later day as the notice specifies".
8. Section 169A, the offence provision for the second offence, provides as follows in relation to executive liability offences: 169A Liability of directors etc for offences by corporation - offences attracting executive liability generally (1) For the purposes of this section, an executive liability offence is an offence against any of the following provisions of this Act that is committed by a corporation - … (e) section 97, … (2) A person commits an offence against this section if - (a) a corporation commits an executive liability offence, and (b) the person is - (i) a director of the corporation, or (ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and (c) the person - (i) knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and (ii) fails to take all reasonable steps to prevent or stop the commission of that offence. Maximum penalty - The maximum penalty for the executive liability offence if committed by an individual. … (7) In this section - director has the same meaning it has in the Corporations Act 2001 of the Commonwealth. reasonable steps, in relation to the commission of an executive liability offence, includes, but is not limited to, such action (if any) of the following kinds as is reasonable in all the circumstances - (a) action towards - (i) assessing the corporation's compliance with the provision creating the executive liability offence, and (ii) ensuring that the corporation arranged regular professional assessments of its compliance with the provision, (b) action towards ensuring that the corporation's employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them, (c) action towards ensuring that - (i) the plant, equipment and other resources, and (ii) the structures, work systems and other processes, relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances, (d) action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.
9. Section 215 (as in force at the relevant time) provided, relevantly, as follows in relation to proceedings for an offence arising under the POEO Act: [3] 215 Proceedings for other offences (1) Proceedings for an offence arising under this Act or the regulations (other than under Part 5.2) may be dealt with - (a) summarily before the Local Court, or (b) summarily before the Land and Environment Court in its summary jurisdiction. (2) If any such proceedings are brought in the Local Court, the maximum monetary penalty that the Court may impose for the offence is 1,000 penalty units, despite any other provision of this Act.
10. Section 241 of the POEO Act provides in relation to matters to be considered in imposing a penalty: 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.
11. Section 242 of the POEO Act provides in relation to continuing offences: 242 Continuing offences (1) A person who is guilty of an offence because the person contravenes a requirement made by or under this Act or the regulations (whether the requirement is imposed by a notice or otherwise) to do or cease to do something (whether or not within a specified period or before a particular time) - (a) continues, until the requirement is complied with and despite the fact that any specified period has expired or time has passed, to be liable to comply with the requirement, and (b) is guilty of a continuing offence for each day the contravention continues. (2) This section does not apply to an offence if the relevant provision of this Act or the regulations does not provide for a penalty for a continuing offence. …
12. Section 248 of the POEO Act provides as follows in relation to orders regarding costs and expenses reasonably incurred during the investigation of the offence: 248 Orders regarding costs and expenses of investigation (1) The court may, if it appears to the court that a regulatory authority has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the regulatory authority the costs and expenses so incurred in such amount as is fixed by the order. (2) An order made by the Land and Environment Court under subsection (1) is enforceable as if it were an order made by the Court in Class 4 proceedings under the Land and Environment Court Act 1979. An order made by the Local Court under subsection (1) is enforceable as if it were an order made by the court when exercising jurisdiction under the Civil Procedure Act 2005. (3) In this section - costs and expenses, in relation to the investigation of an offence, means the costs and expenses - (a) in taking any sample or conducting any inspection, test, measurement or analysis, or (b) of transporting, storing or disposing of evidence, during the investigation of the offence.
13. Section 319A provides in relation to the continuing effect of notices given and conditions imposed under the POEO Act (or the regulations): 319A Continuing effect of notices and conditions (1) A notice given, or a condition of a licence imposed, under this Act or the regulations that specifies a time by which, or period within which, the notice or condition must be complied with continues to have effect until the notice or condition is complied with even though the time has passed or the period has expired. (2) A notice that does not specify a time by which, or period within which, the notice must be complied with continues to have effect until the notice is complied with. (3) This section does not apply to the extent that any requirement under a notice or a condition of a licence is revoked. (4) Nothing in this section affects the powers of a regulatory authority with respect to the enforcement of a notice or a condition of a licence.
14. The purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) are as follows: 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.
15. Section 21A of the CSP Act identifies aggravating, mitigating and other factors for consideration in sentencing. The following subsections (as relevant) are extracted below: 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 - … (m) the offence involved multiple victims or a series of criminal acts, … (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) …
16. Section 22 of the CSP Act provides as follows in relation to the taking into account of a guilty plea in passing sentence: 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. …
17. Section 6 of the Fines Act provides as follows in relation to consideration of the accused's means to pay: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider- (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
18. Section 122 of the Fines Act provides as follows in relation to the payment of a share of the fine to the prosecutor: 122 Payment of share of fine to prosecutor (1) This section applies where - (a) the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and (b) the prosecutor is not a police officer. (2) The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor. (3) For the purposes of this section, fine does not include an amount of the kind referred to in section 4 (1) (e) or (f).

Onus and standard of proof at sentencing

1. A plea of guilty admits those matters which are the essence of the charge, or the legal "ingredients" of each of the offences. [4] It does not admit the non-essential ingredients an offence. [5] It also does not relieve the prosecutor of its obligation to prove the facts on which it seeks to have the offender sentenced without the offender's assistance. In GAS v The Queen [6] at [30], the High Court said as follows in relation to fact finding following a plea of guilty: In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case.
2. In relation to the standard of proof, a court may not take facts into account in a way that is adverse to the interests of the offenders unless those facts have been established beyond reasonable doubt. [7]
3. Where the prosecutor contends that a particular sentencing consideration should be treated as an aggravating factor it must establish by evidence, beyond a reasonable doubt, the presence of such aggravating factor. Where the defendants contend for the presence of a mitigating factor, it must be established on the balance of probabilities: Environment Protection Authority v Sydney Water Corporation [8] at [131] (Pepper J).

Objections to the prosecutor's evidence

1. At 9:23am on the first day of the hearing on sentence, the defendants emailed the Court voluminous submissions on objections to the evidence sought to be relied on by the prosecutor. On the second day of the hearing, the prosecutor emailed the Court submissions in relation to the defendants' evidentiary objections. Given the lateness of notice of the extensive evidentiary objections, I informed the parties that I would consider them as part of the Court's decision on sentence.
2. The defendants' evidentiary objections were in three categories: 1. objections to the observations made and photographs taken during inspections conducted by the EPA throughout the "offence period" in circumstances where the observations and photographs were submitted not to be relevant to any fact in issue and to be prejudicial to the defendants (the relevance objections); 2. objections to evidence of "[e]ach instance that waste was received" at the premises which, the prosecutor submitted, was "a separate criminal act" (the latent duplicity objections). The offences were particularised in the summonses as a single continuing offence, and the defendants entered pleas of guilty on that basis. The prosecutor's approach to the evidence on sentence was submitted to be unfair to the defendants and to disclose a latent duplicity in the prosecution evidence; and 3. objections to the evidence of the prosecutor purporting to establish environmental harm. The prosecutor's expert Mr Burton, senior advisor - waste assessment at the EPA, was submitted to lack the requisite specialised knowledge, to lack impartiality, not to have complied with r 2 of the Expert Witness Code of Conduct (the Expert Witness Code of Conduct) contained in Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), and to have failed to justify his opinions (the evidence of harm objections).
3. At the outset, before proceeding to consider the defendants' evidentiary objections, it is significant to note that if a proceeding in a NSW court relates to sentencing, s 4(2) of the Evidence Act 1995 (NSW) (Evidence Act) provides that: (a) this Act applies only if the court directs that the law of evidence applies in the proceeding, and (b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters-the direction has effect accordingly.
4. In accordance with s 4(3), the court must make a direction if: (a) a party to the proceeding applies for such a direction in relation to the proof of a fact, and (b) in the court's opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding.
5. And in accordance with s 4(4), the court must make a direction if the court considers it appropriate to make such a direction in the interests of justice.
6. Here, notwithstanding their extensive evidentiary objections, the defendants made no application pursuant to s 4(3) of the Evidence Act. Nor did the defendants make any submissions to the court in relation to the interests of justice.

The relevance objections

1. On the ground of relevance, the defendants objected to the following observations, photographs and video: 1. affidavit of Mr Hamish Gordon Campbell, senior technical adviser - waste assessment in technical services - chemicals, land and radiation branch, EPA, dated 22 May 2023 (Campbell affidavit), at [54], [58]-[59], [68]-[69], [72]-[73], [76] and [78]; 2. exhibit HC-1 to the Campbell affidavit, tabs 33, 38 and 39 (6 photographs taken on 12 July 2022, 19 October 2022 and 23 November 2022); 3. affidavit of Ms Jessica Caroline Fleming, senior operations officer in the regulatory operations division at the EPA, dated 22 May 2023 (Fleming affidavit), at [63], [65], [68]-[69], [73]-[75], [85], [90], [108], [112], [115]-[116], [120]-[122], [125]-[129], [139], [141], [159], [160]-[161] and [165]; 4. exhibit JF-1 to the Fleming affidavit, tabs 35, 42, 50 (24 photographs taken on 1 June 2022, 12 July 2022, 19 October 2022), and tab 64 (one video dated 23 November 2022); 5. supplementary affidavit of Ms Fleming dated 20 March 2024 (supplementary Fleming affidavit), at [8]; and 6. exhibit JF-2 to the supplementary Fleming affidavit, tabs 5, 6 and 8 (16 photographs taken on 17 February 2022, 16 April 2022, 19 May 2022, 12 July 2022, 21 August 2022, 11 September 2022, 19 October 2022 and 23 November 2022).

Defendants' submissions

1. In relation to the evidence sought to be relied by the prosecutor in relation to inspections conducted by EPA officers on 1 June 2022, 10 June 2022, 12 July 2022, 19 October 2022, and 23 November 2022, each during the period of the admitted offences, the defendants submitted that the evidence sought to be relied on by the prosecutor contains numerous allegations that the defendants were operating in breach of the EPL. For example: 1. "I observed waste extend to the west, well beyond the hatched area which demarcates the licensed area": Campbell affidavit at [59], similar allegations at [68], [69] and [78], and Fleming affidavit at [125]. This was submitted by the defendants to be an allegation that the defendants were operating outside condition A2.2 of the EPL which specifies the licensed area: 1. "I estimated the height of the majority of the stockpiled waste to be greater than 5 metres in height": Campbell affidavit at [58], similar allegations at [78], and in Fleming affidavit at [160]. This was submitted by the defendants to be an allegation that the defendants were operating in breach of condition L2.3 of the EPL which provides that "[n]o stockpile on the premises may exceed a height of 5 metres at any time". 2. "I observed ... no physical separation of waste materials into waste type and streams": Campbell affidavit at [58], similar allegation at [69], and in Fleming affidavit at [125]. This was submitted by the defendants to be an allegation that the defendants were operating in breach of condition O5.2 of the EPL which provides that "[e]ach type of waste stored on site for recovery/recycling must be stockpiled separately".
2. It is true, as the defendants submitted, that the defendants have not been charged with a breach of a licence condition. However, I am not satisfied that the evidence capable of establishing that the defendants were operating in breach of conditions of the EPL is relevantly prejudicial to them. The observations made by EPA officers during site inspections is relevant to the issue of the receipt of waste at the premises and the state of the premises during the period of offending which, in turn, is relevant to each of the three offences with which the defendants are charged.
3. The defendants also submitted that the evidence contained observations which were inadmissible opinion evidence, namely, Mr Campbell's observations about "significant quantities of waste" ([58]) and "extensive" waste ([59], [73]).
4. If the rules of evidence apply, notwithstanding s 4(2) of the Evidence Act, I would consider the evidence to be admissible pursuant to s 78 of the Evidence Act, being evidence of an opinion expressed by a person where the opinion is based on what the person saw, heard or otherwise perceived about a matter or event and evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
5. The defendants further submitted that the following evidence in relation to the inspections conducted by the EPA was otherwise about facts not in issue: 1. evidence that the EPA conducted inspections (Fleming affidavit at [63], [68], [73], [74], [75], [85], [90], [116], [120], [121], [126], [128], and [161]); the SOAF at [27], [28], [33], [36] and [42]); 2. observations about waste being received (Campbell affidavit at [54], [72]), there being no dispute that the defendants continued to receive waste during the period of offending; 3. observations about the volume of waste (Campbell affidavit at [76], [78]; Fleming affidavit at [63], [73], [65], [112], [141], [160], [161], and [165]), the amount of waste received being the subject of agreed facts (the SOAF at [48]); 4. observations about the composition of waste (Campbell affidavit at [78]; Fleming affidavit at [108], [115], [127] and [129]), the composition of the waste received is the subject of agreed facts: the SOAF at [13]-[14]; and 5. evidence of the purpose of observations being to assess compliance with the prevention notice (Campbell affidavit at [53]; Fleming affidavit at [69] and [139]), the breaches of the prevention notice and the supplementary prevention notice having being admitted by the defendants.
6. In relation to the opinion of the prosecutor's expert Mr Burton, the defendants accepted that the prosecutor must prove, by way of admissible evidence, the underlying facts upon which Mr Burton's opinion was based. In this regard, the defendants identified two difficulties: 1. First, in his report filed 6 March 2024, Mr Burton did not set out his assumptions of fact, but stated under the heading "Methods" that his "brief of engagement includes images of the waste, a table reporting the waste quantity by month as well as aerial photographs of the Premises". He did not otherwise refer to any assumptions of fact, and it was unclear what images were provided to him. 2. Secondly, even if Mr Burton did assume the facts set out in his briefing letter, the evidence sought to be adduced by the prosecutor went beyond the assumed facts provided in his brief, and was not confined to the assumed facts provided to Mr Burton.
7. The defendants submitted that only four of the 46 photographs the prosecutor proposed to have in evidence could be identified in Mr Burton's report, and accepted that those photographs were arguably relevant on that basis. It was not clear whether the other 42 photographs, or the video, were provided to Mr Burton. Even if it were open to the prosecutor to contend that the 42 photographs and the video were part of the brief to the expert, his report did not refer to or rely on any photographs or video other than the four photographs. Further, the defendants had operated a waste storage and resource recovery facility since June 2019, and it was "impossible" to know what waste depicted in "the photos" was received contrary to the prevention notice and the supplementary prevention notice, and what waste already existed at the premises. The photographs were not only irrelevant, but potentially misleading, and it was not clear how they could assist the court in its sentencing task.
8. The defendants referred to the decision of Evatt J in Johnson v Miller [9] (Johnson v Miller) where his Honour said at 497: "[i]t 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".

Prosecutor's submissions

1. The prosecutor submitted that the evidence to which relevance objections were taken was directly relevant to the assessment of the objective gravity of the offences in two ways: (1) to the examination of the circumstances in which each of the offences was committed; and (2) to the consequences of the defendants' conduct which include the matters required to be taken into account under s 241 of the POEO Act, such as the extent of the harm caused or likely to be caused to the environment (s 241(1)(a)), as well as any other matters the court considers relevant (s 241(2)).
2. The prosecutor submitted that contrary to the defendants' submissions, relevance is not determined solely by the elements of an offence. In Muldrock v The Queen, [10] the High Court said at [27] that objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. Rather, it is to be determined wholly by reference to the nature of the offending. The "nature of the offending" is not confined to the ingredients of the offence, but may be taken to mean the fundamental qualities of the offence: Williams v R [11] at [42] (Price J). These include the physical acts of the offender and their effects or consequences, as well as circumstances personal to the offender which are objectively relevant because of their causal connection with the commission of the offence, such as the mental state of the offender in committing the offence and the reasons for committing the offence: Bankstown City Council v Hanna [12] (Hanna) at [45] (Preston CJ of LEC).
3. Further, the prosecutor submitted, to the extent that prejudice in sentence proceedings is complained of by the defendants, the prosecutor did not ask the court to penalise the defendants for breaching the EPL. The meaning of "environmentally unsatisfactory manner" in s 95 of the POEO Act (which is in Part 4.3 of Chapter 4 of the Act) includes that an activity "is carried on in contravention of, or in a manner that is likely to lead to a contravention of, this Act, the regulations or a condition attached to an environment protection licence". The prevention notice and the supplementary prevention notice were given on the basis that the EPA held concerns that identified conditions of the EPL, including those relating to volume (condition L2.2), height (condition L2.3) and location of waste (condition A2.2), "were being carried on in a manner that was likely to lead to a contravention of those conditions". The continued receipt of waste in circumstances where the premises remained in poor condition was relevant to the seriousness of the offences.
4. The prosecutor noted that the defendants asked the court to have regard to the circumstances in which the offences arose, namely the compounding effect of two extraordinary events, the significant rainfall prior to and during the charge 1 period and the pandemic, each of which affected the ability of the premises to process waste. In the same way those circumstances were relevant, so too, the prosecutor submitted, was the state of the premises during the offending period. That the defendants ignored the prevention notices in circumstances where the concerns identified by the prosecutor remained was submitted to increase the seriousness of the offences.
5. The evidence to which relevance objections were taken was, the prosecutor submitted, also relevant to the consequences of the defendants' offending. In R v Carroll, [13] Simpson J at [39] identified the precise acts in addition to the consequences of those acts as fundamental to the assessment of objective seriousness as follows: A fundamental aspect of the sentencing exercise is the correct identification and recognition of the objective gravity of the offence. There are two components to the assessment of that objective gravity: an examination of the precise acts (or, in some cases, omissions) of the offender; and the consequences of those acts.
6. The consequences of the offending were submitted to include the increase to the volume of waste at the premises. Whilst the WARRP data in the SOAF informed the court as to the volume of waste reported by the defendants, the observations and photographs of the officers provided evidence of the actual condition of the premises. The consequences of the offending were again submitted to include consideration of the extent of the harm caused or likely to be caused to the environment under s 241(1)(a) of the POEO Act. The opinion of the prosecutor's expert Mr Burton in his report filed 6 March 2024 was that the continued receival of waste at the premises produced a real risk of harm in the following ways: 1. the risk of fire which increased with the volume of waste on the premises; 2. the risk that firefighting efforts would be impeded by the volume of waste, the height of its storage and the limited space to access any fire; and 3. the limited capacity to adequately spread and screen waste as it arrived at the premises which increased the risk that contaminants such as asbestos could enter the premises through the resource recovery process.

Conclusions in relation to the relevance objections

1. It is true, as submitted by the defendants, that the observations of the EPA officers, the 46 photographs taken on 17 February 2022, 16 April 2022, 19 May 2022, 1 June 2022, 12 July 2022, 21 August 2022, 11 September 2022, 19 October 2022 and 23 November 2022 and the video of waste at the premises made on 23 November 2022 do not directly go to any element of any of the offences. However, it does not follow that the observations, the photographs and the video are not relevant to any issue in the proceedings. It is also true that the inspections by the EPA officers, observations about waste being received at the premises, about the volume and composition of the waste, and about the purpose of the observations were the subject of agreed facts. However, I have found that the observations made by EPA officers, the photographs and the video are relevant to the issues of the receipt of waste at the premises, the state of the premises during the period of offending, and the consequences of the offending, each of which is relevant to the objective seriousness of the offences charged. As Simpson J said in R v Carroll at [39], a fundamental aspect of the sentencing exercise is the correct identification and recognition of the objective gravity of the offence, there being two components to the assessment of that objective gravity: an examination of the precise acts (or omissions) of the offender, and the consequences of those acts.
2. Likewise, I am satisfied that the evidence in relation to the concerns held by the EPA that an activity was being carried out in a manner that was likely to lead to a contravention of identified conditions of the EPL is relevant to the objective seriousness of the offences charged. Mr Campbell's observations about the quantity of waste being received at the premises, as I have found, would be admissible pursuant to s 78 of the Evidence Act.
3. Although only four of the 46 photographs the prosecutor proposed to adduce can be identified in Mr Burton's report, I am nonetheless satisfied that the other 42 photographs and the video are clearly identified in exhibit HC-1 to the Campbell affidavit, exhibit JF-1 to the Fleming affidavit and exhibit JF-2 to the supplementary Fleming affidavit. The date each photograph was taken and the video recorded are clearly identified in the affidavits of Mr Campbell and Ms Fleming. The material is relevant for the reasons given, and I allow its admission into evidence.
4. Finally, I again note that despite their extensive evidentiary objections, the defendants made no application pursuant to s 4(3) of the Evidence Act for a direction that the law of evidence applies in the proceedings. Nor did the defendants make any submission in relation to the significance of the facts sought to be proved by the prosecutor in determining the sentences to be imposed (s 4(3)(b)), or whether a direction under s 4 would be appropriate in the interests of justice.
5. In R v Bourchas, [14] Giles JA (Levine and Sperling JJ agreeing) said at [61]: 61. … In practice sentencing proceedings are conducted with a degree of informality. Unnecessary insistence on the strict rules of evidence is in no one's interests in sentencing proceedings, and the customary co-operation between the Crown and the offender and making of admissions by the offender should so far as possible be insisted upon. But if there is good reason for objection to evidence in sentencing proceedings the objection when taken must be resolved and, apart from statute, must be resolved by application of the rules of evidence. In the absence of a direction pursuant to s 4 of the Evidence Act, the law of evidence unaffected by that Act applies.
6. Here, I have proceeded on the basis of the defendants' objections and the absence of any direction pursuant to s 4 of the Evidence Act that the law of evidence, unaffected by the Evidence Act, applies.
7. I am satisfied, for the reasons given, that the evidence to which relevance objections have been taken is relevant evidence within the meaning of s 55 of the Evidence Act, and also satisfies the common law test of relevance which provides that evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue. [15] I admit the evidence to which relevance objections were taken accordingly.
8. My rulings on the defendants' relevance objections are set out in the table in Annexure B.

The latent duplicity objections

1. On the ground of latent duplicity, the defendants objected to the following evidence sought to be adduced by the prosecutor: (1) the supplementary Fleming affidavit at [4]-[7]; and (2) exhibit JF-2, tab 1.

Defendants' submissions

1. The defendants submitted that the prosecutor had indicated an intention to lead evidence of 7,252 discrete loads of waste, as well as evidence in relation to the days of the week and the specific dates loads were received. It appeared that the prosecutor wanted the court to sentence the defendants for 7,252 offences. The summonses filed by the prosecutor contained the following particulars: 1. first offence: "from about 25 May 2022 and continuing to about 23 December 2023; 2. second offence: "from about 1 June 2022 and continuing to about 24 January 2023"; and 3. third offence: "from about 25 November 2022 and continuing to about 23 December 2023".
2. The use of the phrase "and continuing", as opposed to "on or about" or "between" was submitted to be "clearly deliberate", and reflected in the prosecutor's written submissions that "[c]harge 1, [c]harge 2 and [c]harge 3 are continuing offences for the purpose of s 242 of the POEO Act". Further, it was submitted to be well-established that notice offences are usually continuing offences: Environment Protection Authority v Bathurst City Council [16] at [11]-[12] (Hunt CJ of CL). Despite charging and particularising a continuing offence, the approach of the prosecutor in presenting its evidence on sentence was inconsistent with continuing offences in that the prosecutor sought to have the defendants sentenced for repetitions of criminal conduct, rather than a continuation. [17] Such an approach was "untenable": Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [18] (Tropic Asphalts) and Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [19] (Sell & Parker (Robson J)). In both cases, the summonses were challenged on the basis that they revealed duplicity on their face. However, the defendants submitted, it is well-established that duplicity can be identified when an indictment does not suggest duplicity on its face, but where the way in which the Crown case is to be or has been conducted can be seen to subject the accused to the possibility of being convicted of a number of distinct offences: B v R [20] at [53] (Spigelman CJ) (James and Howie JJ agreeing).
3. The defendants submitted that while the summonses clearly particularise the offences as continuing and while the prosecutor submitted that the offences were continuing, the prosecutor had at the same time taken the contrary position that each load was a "discrete criminal act". This was submitted to be unfair and contrary to the particulars of the charges to which pleas of guilty were entered. Since the prosecutor claimed that the individual acts aggravated the offences, thereby increasing the seriousness of the offences and hence the penalty to be imposed, it was also "actually prejudicial and not just theoretically prejudicial" to the defendants. Because the duplicity arises from the way the evidence was to be presented, it would be cured by refusing to admit the evidence relied on by the prosecutor, and rejecting the prosecutor's submission that each discrete receipt was a discrete criminal act that aggravated the offence.

Prosecutor's submissions

1. The prosecutor noted that the defendants did not dispute that they continued to receive waste during the period of offending, but that the latent duplicity objection appeared to be limited to the frequency that waste was received. The prosecutor submitted that there is a tendency amongst the authorities to label duplicity as either patent or latent, and that latent duplicity arises when the evidence in respect of a single charge reveals the commission of two or more possible offences. The prosecutor referred to R v Agius; R v Abibadra; R v Jandagi; R v Zerafa [21] at [55], where Simpson J said as follows: There is no clear line dividing the two. "Latent duplicity" is sometimes referred to, perhaps more accurately, as "latent ambiguity": Johnson v Miller [1937] HCA 77; 59 CLR 467 at 486; S v R [1989] HCA 66; 168 CLR 266 at 274; Stanton v Abernathy (1990) 90 NSWLR 565 at 669E-F; B v R [2008] NSWCCA 85 at [52]-[53]. "Latent" duplicity is duplicity that is not apparent on the face of the indictment, but can be identified on examination of the manner in which the prosecution proposes to put its case, or from the particulars supplied. Essentially, a charge is latently duplicitous if, on that examination, it can be seen that the person accused may (with respect to a single charge) be convicted of one of a number of different offences.
2. The prosecutor submitted that the application of the principle against duplicity is misplaced in circumstances where, as here, the defendants have entered guilty pleas and where those pleas are to continuing offences. The POEO Act makes express allowance for continuing offences in s 242, and by s 97 which identifies a penalty for a continuing offence. Section 242(1)(b) provides that a person is guilty of a continuing offence for each day the contravention continues. In the present case, where the contravention is the receipt of waste, it must be accepted that repeated receival of waste occurred throughout the charge 1 and 3 periods. If waste was not received throughout the period, the offence would be complete when the receival of waste stopped, and the period thereafter would not amount to a continuing offence. In the present case, "there is no way" that the defendants can have breached the prevention notice and the supplementary prevention notice other than by the receival of waste which, according to the defendants' s 191 POEO Act responses occurred on 7,252 occasions for the first offence. The evidence was "simply evidence of the conduct of the defendants which contravened the prevention notices".

Conclusions in relation to the latent duplicity objections

1. I find that the evidence sought to be adduced by the prosecutor in relation to each instance when waste was received at the premises during the charge 1 and charge 3 periods did not produce latent duplicity in either of the summonses.
2. In Tropic Asphalts, the defendants operated a mobile asphalt batching plant which was subject to a development consent that imposed conditions not to exceed production of 150t of asphalt a day (condition 4) and limited truck movements to 12 per day (condition 6). Two of the charges alleged that the defendants engaged in continuing offences by breaching conditions 4 and 6 between 20 January and 15 March 2015. On appeal, his Honour the chief justice, Bathurst CJ (with whom Fullerton and Campbell JJ agreed) at [51] referred to the comments of Evatt J in Johnson v Miller at 498: The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer.
3. At [54] Bathurst CJ referred to the decision of the High Court in Walsh v Tattersall [22] as follows: 54. Although Gaudron and Gummow JJ, the other members of the majority, did not decide the question on the ground of duplicity, they held that the defendant was not properly charged with an offence under the Act because the Act dealt with "discrete offences" which were completed on the receipt of each payment. They contrasted the offence under the Act with one defined in terms of a course of conduct or state of affairs: Walsh v Tattersall at 91.
4. The chief justice held that the primary judge did not err in finding those charges bad for duplicity. As [58]-[60] Bathurst CJ said: [23] 58. Thus, the question is whether the particularised charges relate to "discrete" contraventions of s 76A(1)(b) occurring on each day that the condition was contravened or whether the contravention is capable of being seen as a "continuing course of conduct" constituting one offence. If the former is the correct characterisation, then the charges are bad for duplicity. If the latter, then they are not. 59. In my opinion, each breach of condition 4 and condition 6 constitutes a separate contravention of s 76A(1)(b) of the EPA Act because the relevant contravention is the carrying out of the relevant act stated in the condition on a particular day. A separate contravention occurs on each day that the plant produces more than 150 tonnes (the Second Charge) or where more than 12 trucks enter or leave the site of the plant on the day in question (the Third Charge). This is consistent with the plain language of each of the conditions, which refer in terms to the particular limitations being imposed "per day". 60. The question may be tested in the following way. During the course of its submissions, the prosecutor indicated that it would seek to prove that the contraventions occurred on each day in the period specified in the Second and Third Charges. Notwithstanding if it could only be proved that a contravention occurred on only one of the days in that period, the offence as charged would be made out. In my opinion, this demonstrates that the charge encompasses multiple separate offences rather than a single offence.
5. In Sell & Parker (Robson J), an amended summons charged the defendant with breaching its annual limit for the receipt of waste otherwise in accordance with a development consent (condition A7 of the development consent). At the same time, a separate amended summons particularised separate breaches of the defendant's weekly pro-rata limit other than in accordance with a development consent (condition A8) "between 26 May 2016 and 31 December 2016". The prosecutor accepted that it could have proceeded on a single charge for breaching the annual limit or on multiple charges for breaching the weekly pro-rata limit, however chose to lay two charges for breaching the annual limit as opposed to 73 charges for breaching the weekly pro-rata limit. [24] Robson J at [44] referred to Tropic Asphalts where Bathurst CJ at [49] noted that "the question of 'whether an enactment creates one offence or several depends upon its subject matter and language considered in their context'". Robson J also referred to the confirmation by the chief justice that the "strict approach" to the question of duplicity remains the law in this country and referred to the comments of Dixon J in Johnson v Miller at 489: ... In my opinion [the prosecutor] should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.
6. In Walsh v Tattersall at 84, in a passage on which the prosecutor relied, Dawson and Toohey JJ (who dissented as to the outcome) said as follows: The proscription against duplicity is succinctly stated by Archbold (Archbold, Criminal Pleading, Evidence and Practice (44th ed, 1995), Vol 1, p 75). The indictment must not be double; that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences … This rule, though simple to state is sometimes difficult to apply … Duplicity in a count is a matter of form, not evidence.
7. My conclusions in relation to the latent duplicity objections are as follows: 1. Neither Tropic Asphalts nor Sell & Parker (Robson J) concerned a plea of guilty to a continuing offence under the POEO Act. 2. In Tropic Asphalts, the alleged conduct related to the production of more than 150t "road-making product" each day in breach of a development consent. The charges were bad for duplicity because the relevant contravention was "the carrying out of the relevant act stated in the condition on a particular day". The defendant was not in breach of the offence provision until the 150t limit was reached. This could not amount to a continuing course of conduct. In the present case, the prevention notice continued to restrict the receipt of waste throughout the charge period with no specified minimum daily amount. Budget Waste continued to operate and receive waste throughout charge period 1 and charge period 3 on its ordinary days of business consistent with its plea of guilty to the continuing offence. 3. In Sell & Parker (Robson J), the charges were found to be bad for duplicity for almost identical reasons to those in Tropic Asphalts. Sell & Parker (Robson J) also concerned the contravention of a development consent contrary to the then s 76A(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW) where the relevant contravention would only occur if a weekly or annual pro-rata limit was exceeded. Here, by contrast, there was no limit to the receipt of waste before Budget Waste contravened the prevention notice, and by its plea it accepted that it engaged in a continuing course of conduct. 4. As submitted by the prosecutor, the defendants here entered guilty pleas, and those pleas were to continuing offences. The POEO Act in s 242 makes express provision for continuing offences, and in s 97 identifies maximum penalties for continuing offences. In Johnson v Miller at 497-498, Evatt J explained the rule against duplicity in the following terms (emphasis added): It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court's inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law. For various reasons, including the miscarriages caused by technical objections to matters of form, the formal indictment, information or complaint is allowed to become more sparing in the information it imparts. Side by side, the jurisdiction to order particulars may call for more frequent exercise. 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. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularise the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer. 1. It does not appear to me on an examination of the manner in which the prosecutor proposed to present its case that the defendants might with respect to a single charge be convicted of one or a number of different offences such as to render the summonses latently duplicit. The defendants plead guilty to continuing offences which necessarily extends to continued instances of the receival of waste. 2. In Bentley v BGP Properties Pty Ltd [25] (Bentley CCA), Smart AJ at [56] observed as follows in relation to continuing offences (emphasis added): I would adhere to the statements of principle that for continuing offences and facts so related that they amount to one activity and that where an offence is defined in the terms of a course of conduct or state of affairs, the prosecution can rely on a series of closely related acts (or omissions) and is not confined to relying on one act. Nor would I question that the acts or omissions relied upon by the prosecution may take place continuously or intermittently over a period of time. These principles are of appreciable importance in relation to environmental offences. Damage of consequence may be caused by several acts in combination, whereas damage caused by one act may be inconsequential. … 1. Here, it is, in my opinion, unobjectionable for the prosecutor to rely on a series of closely related acts in relation to the offences charged. The prosecutor is not confined to relying on one act. As Smart AJ observed in Bentley CCA, these principles are of appreciable importance in relation to environmental offences.
8. My rulings on the defendants' latent duplicity objections are set out in the table in Annexure B.

Defendants' submissions

1. The defendants' evidence of harm objection was to the whole of the affidavit of Mr Burton dated 6 March 2024 and the whole of his report dated 6 March 2024. The defendants submitted that Mr Burton lacked the requisite expertise, and that his report as a whole failed to comply with r 2 of the Expert Witness Code of Conduct, which provides in relation to the general duties of an expert witness to the Court: [26] 2 General duties to the Court An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness.
2. The defendants submitted that as a "senior technical advisor - waste", Mr Burton lacked the requisite specialised knowledge, training and expertise to opine about fire safety. He listed no qualifications in relation to fire engineering, cited no publications or articles that would provide proof of his expertise, and his qualifications did not immediately reveal what study he has had relevant to fire risk (being a Bachelor of Applied Science and Masters of Environmental Management). Having been an officer employed by the prosecutor for the last 18 years, it was not clear that he could demonstrate the impartiality required for adherence to the Expert Witness Code of Conduct. In his curriculum vitae, he listed his "key accountabilities" as including "investigations which resulted in actions including … official cautions, penalty infringement notices and prosecution in the land and environment court". Therefore, it appeared that in his role he was accountable for investigations that resulted in prosecutions, and one could infer this should mean "successful" prosecutions. Unlike other professions, it was not clear whether he was subject to professional rules of conduct requiring impartiality. He was therefore insufficiently independent to fulfil his duties as an impartial expert in accordance with r 2 of the Expert Witness Code of Conduct.
3. This was submitted to be especially clear in the "limitations" section of Mr Burton's report. An "obvious limitation" was that he did not attend the premises, a matter not identified as a qualification to any opinion expressed by him. Instead, he declared that: "I have made all inquiries I believe are desirable and appropriate", and that "[t]o my knowledge, there are no matters of significance, which I regard as relevance, which have been withheld from the Court". Further, the defendants submitted, Mr Burton did not take any samples, or conduct any investigations to justify his opinions. He identified the risks of building and construction waste as including leachate, vermin, toxic smoke and contaminants of concern such as asbestos, but in relation to those risks: 1. he did not establish the presence of leachate or provide information about drainage or proximate waters in or around the premises; 2. there was no evidence of vermin; 3. the risk of toxic smoke was not quantified; and 4. there was no evidence of contaminants of concern such as asbestos.
4. On fire risk, the defendants submitted Mr Burton did not set out "the flash point" or auto-ignition point of various materials stored or discuss how that temperature might be reached, whether there were any sources of ignition, or the effect of the waste being damp or wet. All of these assumptions were submitted to be critical in the assessment of risk posed by fire. Mr Burton opined that "fire appliances cannot navigate around the stockpile", but failed to set out any factual assumptions, including dimensions and reach of firefighting equipment and the dimensions of the stockpile, or provide any information about access to the premises, such as plans showing access from roads, driveways, gates, the hardstand or neighbouring sites which "would be essential to assess whether fire appliances could access and extinguish a fire on the [p]remises".
5. The defendants submitted that Mr Burton had not established that it was "likely" (in the sense that there was "a real or not remote chance or possibility": Newcastle City Council v Pace Farm Egg Products Pty Ltd [27] (Pace Farm Egg Products) at [44] (Lloyd J)), that "contaminants of concern such as asbestos would have been missed", let alone that there was a "high likelihood" of this occurring. Considering the lack of evidence of any inspection conducted by Mr Burton, and the contrary evidence of inspection practices given by Mr Calleija in his affidavit dated 2 April 2024 (at [40]-[43]), the Court could not be satisfied that likely harm was established beyond reasonable doubt. Further, the questions Mr Burton was asked did not relate to establishing environmental harm caused by the offences, and the risk of fire is present whether there are 5,000t or 7,000t of waste on the premises at any one time. The risk, it was submitted, had to be linked to the offence. This aspect was not quantified by Mr Burton. The defendants submitted that if admitted over objection, the weight to be given to Mr Burton's opinions should be "very limited in light of the myriad problems with the evidence". The result was that potential and likely harm was not established beyond reasonable doubt by Mr Burton's evidence, and that the prosecutor had failed to establish any environmental harm to the requisite standard.

Prosecutor's submissions

1. In relation to Mr Burton's expertise, the prosecutor referred to the qualifications set out in his curriculum vitae as follows: Bachelor of Applied Science Degree (Environmental Analysis) (1993); Bachelor of Applied Science Degree (Analytical Chemistry) (1994); Masters of Environmental Management (1999); Graduate Diploma in Aquaculture (2005); and Diploma of Government Investigations (2010).
2. Further, the prosecutor referred to Mr Burton's membership of the Royal Australian Chemical Institute, and noted that he is a chartered chemist. His present role as a senior technical advisor - waste employed by the EPA since October 2020 includes the provision of expert scientific and technical advice, and the assessment of waste avoidance and recovery practices, processes, and technologies. He is responsible for understanding and assessing the impact of waste on the environment, and has primary responsibility for maintaining knowledge of emerging waste reprocessing and recycling technologies and for developing and reviewing projects associated with waste resource recovery and waste minimisation and waste disposal. Significantly, the prosecutor submitted, Mr Burton has: 1. attended fires at waste facilities as the EPA incident commander; 2. investigated the causes of fires at waste facilities; and 3. developed technical guidance for EPA staff in identifying fire risks and ensuring appropriate measures are in place to reduce this risk.
3. Prior to his present role with the EPA, Mr Burton worked in the waste industry since January 2006 in senior operations roles.
4. In relation to the defendants' submission that "[h]aving been an officer within the employ of the prosecutor for the last 18 years, it is not clear that he can demonstrate the impartiality required for adherence to the Expert Witness Code of Conduct", the prosecutor submitted that the submission amounted to no more than speculation as to Mr Burton's impartiality based solely upon his employment with the EPA. There was nothing in his report or his oral evidence (given on day 1 of the hearing) that would suggest he was not impartial or had not properly complied with the Expert Witness Code of Conduct by which he had agreed to be bound: Auen Grain at [64]-[68] (Robson J).
5. By its reliance on Auen Grain, the prosecutor did not accept that Mr Burton would be considered a partial expert, and no questions were asked of him in relation to the defendants' assertion that he was "insufficiently independent to fulfil his duties as an impartial expert in accordance with r 2 of the Expert Witness Code of Conduct". The questions answered by Mr Burton in his report were concerned with risk; namely, the risk of fire and the risk that waste would not be adequately processed upon receipt at the premises. It is true that Mr Burton had not established the presence of leachate or evidence of vermin, quantified toxic smoke or identified asbestos at the premises, however, he did not "assert that those things in fact occurred at the [p]remises". Rather, his opinion concerned risk.
6. In relation to Mr Burton not having attended the premises, the prosecutor submitted that Mr Burton did not identify attendance at the premises as necessary to provide his opinion. Nor was there any aspect of his opinion that was deficient as a result. In relation to the assumptions made by Mr Burton, the prosecutor submitted that it was clear that the letter of instruction dated 27 February 2024 formed the basis of his assumptions and opinions in relation to the assessment of environmental harm. In opining in relation to the risk of fire and the associated risk of extinguishment of waste fires, Mr Burton was asked to assume that most of the waste on the premises was building and demolition waste. This was consistent with the SOAF. Mr Burton thereafter satisfied himself in relation to the nature of the waste stored on the premises by referring to images of the waste. He next gave his opinions with reference to NSW Fire and Rescue Fire Safety Guidelines, and in relation to his observations of the premises as depicted in the images he included in the body of his report. In opining in relation to the processing of waste on the premises, Mr Burton referenced NSW standards for managing construction waste. Where appropriate, he referenced the assumptions he had been asked to make and clearly identified the material upon which his opinion was based.
7. In relation to the defendants' submission that the risk of fire is present whether there are 5,000 or 7,000t of waste on the premises at any one time, the prosecutor referred to the defendants' acceptance that the offending increased the volume of waste on the premises. Mr Burton's opinion was that the consequences of that increase in the volume of waste were that: 1. the volume of combustible material on the premises increased, combustible materials posing a high fire risk; 2. the larger the stockpile of combustible material, the more energy available, and the greater the period of combustion increases toxic air emissions; 3. a longer period of combustion requires a greater quantity of water to extinguish a fire which produces a larger range of contaminants that are hazardous to human health and the environment; 4. as a result of the configuration and increased size of the stockpile, the ability to extinguish a waste fire, including by dismantling the stockpile, was reduced; and 5. the increase in risk of fire at the premises throughout the charge 1 period and charge 3 period increased the potential for a fire to spread to the neighbouring Toll major hazard facility.

Conclusions in relation to the evidence of harm objection

1. In his affidavit dated 6 March 2024, Mr Burton deposes that he is a senior technical advisor - waste assessment in the technical services - chemicals, land and radiation branch at the EPA and that he has been employed in that position since 2020. His duties and responsibilities include providing technical advice on hazardous and other wastes and their management to the EPA, other agencies, industry and the community; providing advice on waste treatment, processing, management, and disposal in NSW; training and guiding team members and EPA staff on regulatory and technical aspects of hazardous waste and its management; and evaluating waste facilities and operations and overseeing the development of regulations, licences, standards and guidelines for facilities that deal with wastes. He deposes that he has read the Expert Witness Code of Conduct, and understands the obligations it places on him, and that he agrees to be bound by those obligations.
2. In relation to Mr Burton's relevant expertise, having regard to his academic qualifications, his membership of the Royal Australian Chemical Institute, his qualifications as a chartered chemist (MRACI, CChem since 1994), his current role at the EPA since October 2020 and his duties and responsibilities in that role, his previous operational role with the EPA in which he was frequently the environmental commander for fires and other incidents at waste facilities in which role he attended many waste facility fires, investigated the cause of those fires, and worked with industry to ensure they were minimised in the future, and his employment in the waste industry since 2006, I am comfortably satisfied that Mr Burton was qualified to provide the opinions he does in relation to, amongst other questions, whether the continued receipt of waste throughout charge 1 period and charge 3 period increased the risk of fire, and what, if any, actual, likely and or potential harm this caused to the environment.
3. In relation to whether Mr Burton, having been in the employ of the prosecutor for 18 years could demonstrate the impartiality required for adherence to the Expert Witness Code of Conduct, a similar submission was made in Auen Grain in relation to a departmental spatial analyst. There, Robson J said relevantly at [64], [66] and [68]: 64. To the extent that the defendants rely upon his oral evidence that he had an "interest" in the outcome, I consider that this word does not convey, or is intended to convey, the pejorative meaning attributed to it by the defendants and should instead be considered akin to "curiosity" as submitted by the prosecutor. I therefore do not accept the submission that the evidence shows Mr Spiers views his role as partial; that he had an "interest in the outcome"; or that, when expressing his opinion, he has "presumed guilt" simply because he makes "assessments of breaches of the Act". Although he gives evidence about his involvement with successful prosecutions, this is not triumphalism as submitted on behalf of the defendants. Moreover, the mere fact that he may accept a suggestion that he provided opinions that may assist his employer is, understood in context, in my view not indicative, and certainly not decisive of partisanship. … 66. The duties in the Code are not rules of evidence such as to render inadmissible evidence of an expert who may have an interest in proceedings: Stamoulis at [210]-[212] (Ipp JA, with whom Beazley JA and Giles JA agreed). … 68. I accept and adopt the view of Biscoe J in Lake Macquarie City Council v Australian Native Landscapes Pty Ltd [2015] NSWLEC 92 (Australian Native Landscapes) at [15] that, first, evidence of a partial expert is relevant and therefore admissible under s 56 of the Evidence Act; second, partiality of an expert goes only to weight of the expert's evidence; and, third, evidence of a partial expert combined with other circumstances may in some exceptional circumstances justify exclusion of the experts evidence in the Court's discretion under s 135 of the Evidence Act if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the parties. In these circumstances, and as I do not consider that Mr Spiers' evidence is partial, even if that criticism could be justified then it would be a matter that goes to the weight of the evidence.
4. As in Auen Grain, I do not find, contrary to the defendants' submission, that Mr Burton, on the face of his affidavit and expert report, was an expert witness lacking impartiality. He acknowledged in both his affidavit and expert report the Expert Witness Code of Conduct, and agreed to be bound by it. As Robson J opined in Auen Grain, even if Mr Burton's evidence were accepted as partial (which criticism I do not consider to be justified in this case), that would be a matter going to the weight of his evidence, and not its admissibility.
5. Nor do I consider Mr Burton's attendance at the premises to have been necessary to provide his opinion, or any aspect of his opinion to have been deficient as a result. I am satisfied in light of the assumptions he was asked to make (there being no suggestion that the assumptions strayed beyond the provable facts), and the images that he included in the body of his report, that there was a sound basis upon which Mr Burton could express the opinion he did. As submitted by the prosecutor, Mr Burton did not assert the presence of leachate, vermin or asbestos at the premises. Nor did he quantify toxic smoke. His opinion concerned the risk of fire, and the actual, likely and or potential harm this caused to the environment. Also, for the reasons submitted by the prosecutor, the offending increased the volume of waste on the premises, with the consequences identified by Mr Burton, notwithstanding that the risk of fire exists whether there are 5,000t or 7,000t present.
6. I am comfortably satisfied that Mr Burton has specialised knowledge based on his training, study or experience, and that he has sufficiently exposed his reasoning process to demonstrate that his opinion was based wholly or substantially on that specialised knowledge. I find his report and affidavit to be admissible.

Evidence of the prosecutor upon which I have ruled

1. Whilst formally noting the defendants' objections (upon which I have now ruled), the prosecutor read the affidavit of Mr Campbell dated 22 May 2023, the affidavit of Mr Burton dated 6 March 2024 to which was annexed his expert report, the affidavit of Ms Fleming dated 22 May 2023, and the supplementary affidavit of Ms Fleming dated 20 March 2024. I note that the two the affidavits of Ms Fleming and the affidavit of Mr Campbell were substantially redacted.
2. Mr Campbell and Mr Burton were both required for cross-examination.

Mr Campbell, unit head in the regulatory operations division, EPA

1. Mr Campbell deposed that as at 12 July 2022, waste on the premises was well over the tonnage limit, and between a range of 8,515t and 15,811t. In cross-examination, he agreed that the volumetric survey was aimed to demonstrate compliance with the limit of the EPL of 5,000t, and that a volumetric survey produces a result in cubic metres (m3) which needs to be adjusted to tonnes. He accepted that the results of a volumetric survey require adjustment to determine weight, and that there is a variation in densities and hence in the adjustment.
2. Mr Campbell agreed that for plastic, paper and glass waste the conversion is 0.2t per m3, and for mixed solid waste 1.4t per m3, and that the rate therefore has a variation from 0.2 to 1.4t per m3 which is "seven times variation". Mr Campbell accepted that there is "a subjective assessment" of the weight of the waste based on the nature of the material on the site.
3. Mr Campbell accepted that the weighbridge records would provide an absolute number. However, the "monthly stocktake" in the WARRP data (extracted above at [50]) provided to the EPA was "delayed". In relation to the WARRP data, Mr Campbell said as follows: Q. … You would wish to say to her Honour it says May 2022, but the EPA may not have got that data until sometime after the end of May 2022? A. Correct.
4. Mr Campbell agreed that the waste levy issued by the EPA to Budget Waste in the amount of $631,588.34 was in respect of waste brought onto the premises in excess of 5,000t, and that up to 5,000t, the waste levy was not imposed.
5. In re-examination, Mr Campbell said that in addition to volume and weight, other information that he would have expected to receive in the volumetric survey included "height and that's also a component that was of concern with the facility, noting the licence condition around height". Having been shown a letter of demand dated 21 February 2023 indicating that there were a number of amounts to be paid as of the date of the letter (the letter of demand), Mr Campbell was not aware if those amounts remained debts to be paid by Budget Waste.
6. In further cross-examination, Mr Campbell was asked whether there was a process to withdraw the waste levy, and was taken to the letter of demand. He understood that "the levies remain liable until the material is removed off the premises". Mr Campbell was unable to confirm whether there was a process to withdraw the waste levy. The contents of the letter of demand are discussed below at [176]-[177].

The prosecutor's expert Mr Burton

1. In his report, Mr Burton acknowledges that he had read and agreed to be bound by the Expert Code of Conduct. In his report, Mr Burton responded to seven questions asked of him in the request to provide an expert report by the EPA dated 27 February 2024. Mr Burton was briefed with copies of the prevention notice, the supplementary prevention notice and photographs of the premises taken between 17 February 2022 and 23 November 2022.
2. In answer to question a, "does waste which is predominately construction and demolition waste, and which is received and stored in stockpiles in the manner described above and depicted in the images of the Premises contained in your brief, pose any risk of fire? If so, how and why?" Mr Burton opined as follows: 1. The photograph below "includes a large quantity of mixed waste including cardboard, plastic wrap, PVC pipe, carpet underlay, paint and glue containers, timber, polystyrene, particle board, form ply and timber pallets". The construction and demolition waste in the photograph "includes a significant quantity of plastic and plastic film, [and] the fire risk is categorised as high". The construction and demolition waste stored at the premises "can combust through self-heating in stockpiles, chemical reactions … ignition from cigarettes, lithium ion batteries … contact with hot machinery as well as from arson and lightning strikes". Further fires in stockpiles of construction and demolition waste "are very hard to extinguish … [t]he environmental impacts occur through the generation of fire waster which will contain a mix of hazardous combustion chemicals as well as toxic air emissions released during combustion". 1. The fire size "depends on the calorific value of the combustible material, stockpile configuration … and the capacity to extinguish and contain the fire". Further, "[b]ased on the configuration and size of the stockpile throughout the Charge 1 Period and Charge 3 period there is reduced capacity to combat any fire at the Premises should it occur". 2. The photograph below dated 12 July 2022 shows an area where timber frames and trusses have been placed with processed waste placed over the top. "As the timber allows oxygen to flow through the voids, there is a risk that a fire could spread through the base of the stockpile". 1. The aerial photograph below dated 12 July 2022 shows a large area of covered waste abutting combustible materials, potentially leading to self-heating. Covering the waste "creates anerobic conditions whereby microbes decompose the organic materials without oxygen and produce significant heat".
3. In answer to question b, "[i]f such waste does pose a risk of fire, did the continued receipt of waste at the Premises throughout the Charge 1 Period and Charge 3 Period, increase the risk of fire and did it affect the ability of emergency services to respond to and extinguish a fire?" Mr Burton opined as follows: 1. "The continual receipt of waste throughout the Charge 1 Period and Charge 3 Period increased the risk of fire, reduced the ability to combat any fire and therefore increased the potential impacts upon human health and the environment". 2. The management of waste at the premises was not in accordance with the Fire safety guidelines - Fire safety in waste facilities (NSW Fire and Rescue, 2020) (the fire safety guidelines). The fire safety guidelines recommended a maximum height of any stockpile not exceeding 4m. The image below dated 1 June 2022 shows a "single waste stockpile greater than 4 metres in height with a rear vertical face":
4. In answer to question c, "Does the nature of the chemicals stored at the neighbouring Toll facility affect your opinion in any way" Mr Burton opined as follows: 1. "The impacts of a fire are significantly greater when there is the capacity for the fire to spread to a [major hazard facility] which stores large quantities of dangerous goods". And that in "2022 it was reported that Toll stored approximately 1.8 million kilograms of dangerous goods, gases, flammable liquids, spontaneously combustible goods, dangerous when wet goods, oxidising toxic and corrosive substances". 2. "The continual receipt of construction and demolition waste throughout the Charge 1 Period and Charge 3 Period increased the risk of fire at the Premises and the potential for a fire to spread … The highest risk occurred in September 2022 with a reported closing stock of 9,178.62 tonnes [of waste] at the Premises".
5. In answer to question d, "If the continued receipt of waste at the Premises through the Charge 1 period and the Charge 3 period increased the risk of fire, what if any (i) actual, (ii) likely and or (iii) potential harm did this cause to the environment" Mr Burton opined as follows: 1. "The continued receipt of construction and demolition waste … increased the environmental and human health risks". 2. "The potential harm to human health and the environment is significant should a fire occur. The potential harm arises through the generation of runoff (fire waster) whilst combating a fire which contains a mix of hazardous combustion and incomplete combustion chemicals as well as through toxic air emissions released during combustion". 3. "Due to the size and extent of the waste … there is limited capacity to combat a fire at the premises". 4. "The period of highest risk was between May 2022 and September 2022 where the quantity of construction and demolition waste … increased by 1.8 times".
6. In answer to the sixth question (also identified as question b), "Did the continued receipt of waste at the Premises throughout the Charge 1 Period and the Charge 3 Period, increase the risk that waste would not be adequately processed at the Premises" Mr Burton opined as follows: 1. "The continued receipt of waste … reduced the capacity to tip, spread and visually inspect all incoming waste for contaminants of concern". 2. "Photographs [including the photo above at [151(2)]] show the limited available space … to inspect incoming waste."
7. In answer to the seventh question (also identified as question c) "If you are of the opinion that there was an increased risk that waste would not be adequately processed at the Premises, what if any (i) actual, (ii) likely and or (iii) potential harm did this cause to the environment" Mr Burton opined as follows: 1. "There is a high likelihood that contaminants such as asbestos would have been missed in the incoming waste streams throughout the Charge 1 Period and the Charge 3 Period due to the ability to visually inspect all the incoming waste". 2. "Processing materials that contain asbestos due to inadequate screening also poses a health risk to workers at the Premises".
8. In cross-examination, Mr Burton accepted that he had not dealt with rainfall in his report. In relation to the impact of rainfall on waste, he also accepted that rainfall would supress fire by reducing heat.
9. In relation to the EPL, Mr Burton accepted that he was aware that stockpiles were permitted to "go as high as five metres". He said that there are differences between fire guidelines and the EPL conditions because of the type of material stored and its flammability. Mr Burton's evidence was that "the reason that there's sometimes a difference between the fire guidelines and what's allowed in a environment protection licence is the type of material that's been stored, and the actual risk in terms of whether it's going to be flammable. For example, excavated natural material, soil, does not have that flammability component, whereas if it was all construction demolition waste, which a lot of this material is, it poses a higher risk."
10. Mr Burton also gave evidence that "the higher you go up, the greater the risk there is to firefighters when they attend the site because the waste can collapse. So what happens is if a fire occurs, anything above 4 metres you can actually pull apart with an excavator quite easily. Anything above 5 metres and with a vertical face, the waste can potentially collapse on you whilst you're trying to address a fire."
11. When questioned in relation to his concern about the ability for fire appliances to circumnavigate the waste facility, he accepted that waste could be stored up to the boundaries with the Toll major hazard facility.
12. In cross-examination, Mr Burton also gave evidence that he had identified some glue buckets in the waste and a number of materials "which could potentially have lead paint on them": A. … most construction and demolition waste includes contaminants of concerns, whether it be lead paint on materials. It could be traces of asbestos. There's all sorts of contaminants within that material. Heavy metals, there's leftover glues and solvents that end up in construction and demolition waste. Lots of different contaminants in various forms. So I did identify some glue buckets that had been thrown in there. I did identify quite number of materials which could potentially have lead paint on them. So, for example some old columns ... I could not verify that I must admit. But there is the potential …

Ms Fleming, senior operations officer at the EPA

1. In her affidavit and supplementary affidavit, Ms Fleming recounted her involvement in the investigation. Exhibited to Ms Fleming's affidavit was a short video of the premises taken on drive-by inspection on 23 November 2022 which was played in Court, and I have admitted over the objection of the defendants. A screenshot of the video of the drive-by inspection is reproduced below:
2. Exhibited to Ms Fleming's supplementary affidavit was a consolidated spreadsheet of the incoming load entries between 26 May 2022 and 23 December 2022 based on the s 191 POEO Act responses. The consolidated spreadsheet provided data in relation to date, time, docket number, customer, registration number, type of material, gross weight, tare weight, nett weight, volume, waste type, waste stream and company name.
3. Ms Fleming deposed that the consolidated spreadsheet indicates that during the period from 26 May 2022 until, and including, 23 December 2022: 1. Budget Waste received 23,270.30t of incoming waste which was delivered by truck in 7,252 loads to the premises. 2. On several days, more than 45 loads individual of waste were received - for example, 10 June 2022 (65 loads), 1 July 2022 (57 loads), 5 August 2022 (58 loads), 19 September 2022 (48 loads), 7 October 2022 (52 loads), 25 November 2022 (47 loads) and 19 December 2022 (61 loads). 3. Waste was received at the premises by truck on most days with the exception of most Sundays, public holidays and six Saturdays in the period from 20 May until and including 23 December 2022. 4. Of the 212 days from 26 May 2022 until and including 23 December 2022, Budget Waste received waste on 175 days. 5. There were 37 dates for which there were no recorded incoming loads of waste to the premises: Sunday 29/5/22, Sunday 5/6/22, Saturday 11/6/22, Sunday 12/6/22, Monday 13/6/22, Sunday 19/6/22, Sunday 26/6/22, Sunday 3/7/22, Sunday 10/7/22, Sunday 17/7/22, Saturday 23/7/22, Sunday 24/7/22, Sunday 7/8/22, Sunday 14/8/22, Sunday 21/8/22, Sunday 28/8/22, Sunday 4/9/22, Sunday 11/9/22, Sunday 18/9/22, Thursday 22/9/22, Saturday 1/10/22, Sunday 2/10/22, Monday 3/10/22, Sunday 9/10/22, Sunday 16/10/22, Sunday 23/10/22, Sunday 30/10/22, Sunday 6/11/22, Saturday 12/11/22, Sunday 13/11/22, Saturday 19/11/22, Sunday 20/11/22, Sunday 27/11/22, Saturday 3/12/22, Sunday 4/12/22, Sunday 11/12/22, Sunday 18/12/22.
4. In response to a s 191 notice issued by the EPA, Budget Waste stated that on 15 May 2023 its usual days of operation, were Monday to Saturday.

Mr Calleija

1. The defendants read the affidavit of Mr Calleija dated 2 April 2024. Mr Calleija annexed the following to his affidavit: 1. WARRP data from July 2019 to January 2024 (which includes the parties' agreed data from May 2022 to December 2022 extracted above in the table at [50]). 2. Bureau of Meteorology data for the Richmond RAAF station showing the monthly and annual rainfall in millimetres (mm) between June 1994 and February 2023. 3. Bureau of Meteorology data for the Richmond RAAF station showing monthly and annual rainfall statistics calculated over all years of data, including the highest monthly and annual rainfall.
2. The Bureau of Meteorology data demonstrates that 2022 was the highest annual amount on record of rainfall received at for Richmond RAAF, namely 1498.0mm.
3. Mr Calleija deposed that the purpose of his affidavit was to: a. express my acknowledgement and acceptance that I am responsible for the Offences; b. apologise and express my regret on my behalf and on behalf of Budget Waste for the Offences; and c. give an explanation for why the offending occurred.
4. In providing his affidavit, he in no way "mean[t] to deny that the Offences occurred or that I am responsible."
5. In relation to the COVID-19 pandemic, Mr Calleija said that "[t]hroughout 2020-2022, the Site experienced staff shortages because of the COVID-19 pandemic." And further that: "[t]he unpredictable staff illnesses affected our ability to process waste. It put us behind and meant we were always playing catch up."
6. In relation to wet weather and attempts to dispose of excess waste, Mr Calleija said that never in his 34 year career in waste had he seen so much constant rain, and that with all the rain "there was water and mud everywhere … The wet dirt stuck to everything and would stick to the conveyer belt … The machinery would continually be breaking down". Further that: "Normally, if we received wet material it would be fine, as we would wait a few weeks and it would dry … But this time, we just weren't getting the chance."
7. In February 2022, Mr Calleija said that Budget Waste ordered replacements of the major components of the processing plant. A flip-flow screen was ordered from Germany at the cost of $250,000, and was estimated to arrive in August 2022. As at May 2022, "we had stopped all advertising and letting people come to the gate to tip - we only took material under out existing contracts".
8. In relation to the prevention notice, Mr Calleija said that by the time the EPA issued the draft prevention notice, he already knew "we were in trouble and we had been trying different strategies for months to address it". He explained to EPA officer Ms Fleming in May 2022 that he thought a volumetric survey would cost $20,000. He deposed that he had cash flow problems and could not afford $20,000, and that no one said anything to him about fire risk.
9. By way of explanation for the offending, Mr Calleija said that waste coming in was the only means the site could generate income, and that he "thought that shutting down the only income stream would have sent us broke in two weeks".
10. Mr Calleija was not required for cross-examination.

Other evidence tendered by the defendants

1. The defendants also tendered the following documents shown to Mr Campbell in cross-examination: 1. page 13 of Mr Campbell's unredacted affidavit in which he explained how he undertook two calculations to adjust from cubic metres of waste to tonnes of waste from drone data obtained on 12 July 2022. The calculations were as follows: a. Of the 15,203 m3 onsite, 70% is MRF [Materials Recovery Facility waste (plastic, paper, glass) which is 0.2t/m3] and 30% is mixed solid waste. This calculation resulted in an estimate of 8,515 tonnes of waste stored on the Premises. b. The alternate scenario was, of the 15,203 m3 on the premises, 30% is MRF and 70% is mixed solid. This calculation resulted an estimate of 15,811 tonnes of waste stored on the Premises. 1. the last three sentences of [69] of Mr Campbell's unredacted affidavit in which Mr Campbell deposed: "[a] fire on Budget Waste's premises would be of significant concern to the adjoining premises. I had formally referred this concern to NSW Fire and Rescue on 1 July 2022 …", and an email chain between Mr Campbell and Fire Safety NSW in relation to Mr Campbell's fire safety complaint in relation to the premises dated 1 July 2022; and 2. the letter of demand sent from the EPA to Mr Calleija as director of Budget Waste on 21 February 2023.
2. The letter of demand indicated that as at 21 February 2023, Budget Waste as licensee of the EPL had $631,588.24 of outstanding waste levy contributions which Budget Waste, as the occupier of the premises, was required to pay to the EPA pursuant to s 88 of the POEO Act. The letter of demand identified the following summary of outstanding invoices which as at that date had not been paid: Summary of outstanding invoices Reporting period Invoice Number Invoice Due Date Invoice Amount (excluding any accrued interest) June 2022 L1160510 26 August 2022 $67,227.02 July 2022 L1160477 26 September 2022 $289,959.26 August 2022 L1177325 26 October 2022 $167,505.87 September 2022 L117282 26 November 2022 $106,896.19 TOTAL AMOUNT OUTSTANDING $631,588.34

1. The following documents were attached to the letter of demand: 1. the June 2022 invoice issued to Budget Waste on 29 August 2022 which stated the total amount to be owing as $67,227.02 (the June 2022 invoice); 2. the July 2022 invoice issued to Budget Waste on 29 August 2022 which stated the total amount to be owing as $289,959.25 (the July 2022 invoice); 3. the August 2022 invoice issued to Budget Waste on 14 November 2022 which stated the total amount to be owing as $167,505.87 (the August 2022 invoice); 4. the September 2022 invoice issued to Budget Waste on 14 November 2022 which stated the total amount owing to be $106,896.19 (the September 2022 invoice); and 5. the levy account statement (printed 31 January 2023).

Objective seriousness of the offences

1. The objective seriousness of the offences is measured without reference to matters personal to the offenders. It is to be determined "wholly by reference to the nature of the offending". [28] In determining the objective gravity or seriousness of the offences in this case, the circumstances to which the Court may have regard include: [29] 1. the nature of the offences; 2. the maximum penalty for the offences; 3. the harm caused to the environment by the commission of the offences; 4. the defendant's state of mind in committing the offences; 5. the defendant's reasons for committing the offences; 6. the foreseeable risk of harm to the environment by the commission of the offences; 7. the practical measures to avoid harm to the environment; and 8. the defendant's control over the causes of harm to the environment.
2. I am also required to take into account the statutory matters in s 241 of the POEO Act set out above at [68]. Some of those statutory matters overlap with the factors concerning objective seriousness set out at [178] immediately above.

Nature of the offences

1. When sentencing for environmental offences, a fundamental consideration is the degree to which, having regard to the maximum penalties provided in the statute, the offender's conduct would offend against the legislative objectives expressed in the statutory offence. [30] The nature of the provision creating the offence and its place in the statutory scheme shed light on the objective seriousness of the offence. [31] Ascertaining the purpose of creating an offence is assisted by consideration of the objects of the statute, [32] which are extracted above at [59].

Prosecutor's submissions in relation to the first offence

1. In relation to the first offence (to which Budget Waste has pleaded guilty), the prosecutor submitted that the power conferred by s 96 of the POEO Act in relation to prevention notices is not limited to the holders of an environment protection licence. However, as the conduct of licence holders would otherwise be unlawful but for the prescribed licencing regime, the s 96 power is essential to the functioning and enforcement of the licencing regime and the wider regulation of pollution as provided by the POEO Act. Section 96 serves to enforce the objects of the POEO Act by conferring on an appropriate regulatory authority the power to compel a recipient to take urgent steps to stop or minimise suspected environmentally unsatisfactory activities.
2. The prosecutor referred to Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden [33] (Cessnock City Council v Quintaz) where Pepper J considered the role, in the regulatory system, of clean-up notices issued to occupiers or polluters pursuant to s 91(1) of the POEO Act. At [65] her Honour said: There is a clear need to uphold the regulatory system established under the POEOA which depends on personal and corporate entities taking steps to remediate, rectify and remove sources of pollution as directed and in a timely manner. This system minimises any actual or potential environmental harm caused by the pollution and ensures that the costs of remediation are borne by those responsible for the pollution. The actions of Quintaz in failing to comply with the Clean Up Notice undermined this system and offended the objects of the Act ...
3. The prosecutor submitted that Budget Waste's conduct here, being the continuing receival of waste following service of the prevention notice, was appropriately characterised as "flagrant disregard" of the regulatory system under which the company operates as the holder of an EPL. Disregard of the prevention notice, despite repeated contact with the EPA, was submitted to "strike at the core" of the protective regime and to be fundamentally antipathetic to the objects of the POEO Act. The extent to which Budget Waste "subverted" those objects was increased by the significant period of the conduct, and the volume of waste received during the charge 1 period, from about 25 May 2022 and continuing to about 23 December 2022.
4. The prosecutor submitted that Budget Waste's conduct also took place with "an informed understanding" of its obligations pursuant to the prevention notice. Mr Calleija expressed that understanding to the EPA on a number of occasions. The draft prevention notice and the prevention notice "clearly and unambiguously" described the environmental concerns held by the EPA and the requirement to cease the receival of waste. The defendant's knowledge increased the degree to which its conduct undermined the objectives of the POEO Act, and thus increased the objective seriousness of the offending.

Prosecutor's submissions in relation to the second offence

1. In relation to the second offence, the prosecutor referred to Environment Protection Authority v Crush and Haul Pty Ltd; Environment Protection Authority v Cauchi [34] (Crush and Haul) at [118], where the chief judge said as follows in relation to the objects of the executive liability offence provision in s 169A of the POEO Act: The legislative objective expressed in the offence against s 169A of the POEO Act is for a person who, firstly, is a director of a corporation or an individual involved in the management of the corporation and in a position to influence the conduct of a corporation in relation to the commission of an offence classified as an executive liability offence, such as the offence against s 48(2) of the POEO Act, and, secondly, knows or ought reasonably to know that the executive liability offence would be or is being committed, to take all reasonable steps to prevent or stop the commission of the offence.
2. In the present case, Mr Calleija was the sole director and sole shareholder of Budget Waste. Following service of the prevention notice, he attended the site every day to ensure compliance and was, from that point at least, centrally involved in the management of the business conducted by Budget Waste. Mr Calleija was in a position to influence the conduct of Budget Waste to prevent it from committing the offence against s 97 of the POEO Act by failing to provide the volumetric survey. Mr Calleija's failure to ensure Budget Waste's compliance with the prevention notice undermined the integrity of the regulatory system, and impeded the achievement of the objects of the POEO Act.

Prosecutor's submissions in relation to the third offence

1. In relation to the third offence, the prosecutor submitted that the offending conduct of Mr Calleija amounted to "flagrant disregard" of the regulatory scheme under which Mr Calleija's company operated as the holder of an EPL. The prosecutor submitted that it is an element of the offence against s 96 of the POEO Act that a prevention notice be given to a corporation in relation to an activity. Consequently, that fact could not aggravate the offence. However, it was relevant that the prevention notice given to Budget Waste had been "on foot" since 25 May 2022. Against the background of this extended period and Mr Calleija's involvement with the day-to-day operations of the business since that time, including regular dealings with the EPA, Mr Calleija failed to stop the receipt of waste at the premises after he was served with the supplementary prevention notice on 25 November 2022. The prosecutor submitted that Mr Calleija "defied" the EPA with "knowledge and understanding of his obligations under the supplementary prevention notice" between 25 November 2022 and 23 December 2022. The seriousness of this offence was increased by the not insignificant 28 day period over which it was committed.

The defendants made no submissions in relation to the nature of the offences

1. The defendants made no submissions in relation to the nature of the offences.

Maximum penalties for the offences

1. The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence and a yardstick against which to measure the relevant features of the offence for which the defendants are to be sentenced. [35] Careful attention to maximum penalties will almost always be required because, amongst other things, they invite comparison between the worst possible case and the case before the court at the time. [36]
2. In Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris, [37] the defendant Budvalt Pty Ltd submitted that the court should have regard to the possibility of having the matter dealt with summarily in the Local Court as a mitigating feature and that, as a consequence, the Court should have regard to the far lower jurisdictional limit of the Local Court in relation to the extent of penalty to be imposed (at [146], [150]). Moore J held at [153] that there were no obvious circumstances warranting such a conclusion as the defendant had been in business under its present ownerships for some 17 years. His Honour held at [154]-[155] that the matter was appropriate for prosecution in this Court for the purposes of sending a general deterrence message to others in the industry, and that there were no circumstances concerning the defendant and its offending conduct that would warrant mitigating the penalty that would otherwise be imposed because of the jurisdictional limit had the offending conduct been dealt with summarily in the Local Court.
3. In Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Robert Beltrame, [38] which concerned sentencing for an offence against s 91G(1) of the POEO Act, the defendant submitted that the court would consider the lower jurisdictional limit of the Local Court to be a significant factor when fixing the quantum of penalty. At [142] I found: [39] That the matter could have been prosecuted in the Local Court is only relevant if I determine that the penalty for the offence exceeds the jurisdictional limit of the Local Court; by analogy, Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [111] (Johnson J, McClellan CJ at CL agreeing).

Prosecutor's submissions in relation to all offences

1. In relation to the first offence, the prosecutor submitted that the maximum penalty for the offence, committed by the corporate defendant, Budget Waste, (namely, $1,000,000 and in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues), is to be calculated from 26 May 2022, being the first day waste was received at the premises after the prevention notice was served, until 23 December 2022; that is, the charge 1 period. The charge 1 period was a period of 212 days. The "further penalty" is 212 multiplied by $120,000 which produces a total of $25,440,000. The further penalty must then be added to the maximum penalty of $1,000,000 which produces a total of $26,440,000.
2. In relation to the second offence, the prosecutor submitted that the relevant period is calculated from 2 June 2022, being the day after the volumetric survey was required to be provided to the EPA, until 24 January 2023; that is, the charge 2 period. This is a period of 237 days. The maximum penalty in the case of an individual is $250,000. The "further penalty" is 237 multiplied by $60,000 (the further penalty in this case of an individual for each day the offence continues) which produces a total of $14,220,000. The further penalty must then be added to the maximum penalty of $250,000 (in the case of an individual), which produces a total of $14,470,000.
3. In relation to the third offence, the prosecutor submitted that the relevant period is calculated from 26 November 2022, being the first day waste was received at the premises after the prevention notice was served, until 23 December 2022; that is, the charge 3 period. This is a period of 28 days. The maximum penalty in the case of an individual is $250,000. The "further penalty" is 28 multiplied by $60,000 (the further penalty for each day the offending continues in the case of an individual) which produces a total of $1,680,000. The further penalty must then be added to the maximum penalty of $250,000 in the case of an individual which produces a total of $1,930,000.
4. In relation to the defendants' submission that the offences would "more appropriately have been prosecuted in the Local Court", the prosecutor referred to Zreika v R [40] (Zreika) where Johnson J at [86]-[124] considered the principles which apply on sentence where a submission is made that the offence may more appropriately have been dealt with in the Local Court, or an inferior jurisdiction. At [109], his Honour said as follows (citations omitted): Unless this Court is able to clearly determine that the offence in question, committed by the particular offender, with his or her criminal history, ought to have remained in the Local Court, then the argument is theoretical at best. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice …
5. At [112], Johnson J said that the theoretical availability of summary disposal was not relevant to the sentence in consideration unless it could be shown that it was "plainly wrong" that the offence was in the District Court. Here, the prosecutor submitted, the observations in Zreika were apt to the Land and Environment Court, dealing with offences that may be prosecuted in the Local Court, as each of the offences was appropriately brought in this jurisdiction, having regard to the significant maximum set by Parliament and the objective gravity of the offences themselves.

Defendants' submissions in relation to all offences

1. The defendants referred to the prosecutor's submission that the maximum penalty to which the defendants are exposed is $42,840,000, calculated having regard to the maximum penalty to which each defendant was exposed, plus the maximum available daily penalty for a continuing offence multiplied for the period of the offences. The defendants submitted that this would give rise to the defendants facing an entirely disproportionate and crushing penalty, [41] especially given that the offences resulted in no actual environmental harm.
2. The defendants submitted that the manner in which the prosecutor had particularised the offending in the summonses as continuing, and subject to a daily penalty, thereby exposing the defendants to a maximum penalty of over $42 million, indicated that the offences would more appropriately have been prosecuted in the Local Court. [42] Mr Galasso SC for the defendants submitted that s 215(1) of the POEO Act provided, at the relevant time that an offence arising under the POEO Act "may be dealt with … (a) summarily before the Local Court, or (b) summarily before the Land and Environment Court in its summary jurisdiction". In proceedings brought in the Local Court, the maximum monetary penalty for the offence, at the relevant time, was "1,000 penalty units", despite any other provision of the POEO Act: s 215(2). This was a maximum monetary penalty of $110,000. Mr Galasso submitted that "that's a remarkable difference in the potential result in a prosecution for the same facts".

The defendants' state of mind in committing the offences

1. An offence against s 97 of the POEO Act (relevant to the first and third offences) is a strict liability offence. A strict liability offence that is committed intentionally, negligently, or recklessly will be objectively more serious than one that is not so committed. [43] Offences committed deliberately are more serious than offences committed by inadvertence and error. [44]
2. In Environment Protection Authority v Sam Abbas (also known as Osama Abbas), [45] Pain J at [46] said as follows in relation to what may constitute intention: Intention "connotes a decision to bring about a situation so far as it is possible to do so - to bring about an act of a particular kind or a particular result": He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 at 569 per Brennan J. Intention can be deduced from words and actions: McClelland v Environment Protection Authority [2021] NSWLEC 25 at [77].

Prosecutor's submissions in relation to the first and third offences

1. The prosecutor submitted that Budget Waste intentionally and deliberately continued to receive waste at the premises throughout the charge 1 period (from about 25 May 2022 to about 23 December 2022). Budget Waste's intent was submitted to be established by the following words and actions agreed in the SOAF: 1. the continuous receipt of waste at the premises as recorded in the WARRP data over a seven-month period; 2. the increase, by nearly double, of the volume of waste at the premises during the charge 1 period; 3. Budget Waste's response to the draft prevention notice in which it acknowledged the EPA's concerns, including in relation to the height and location of the stockpiled material; 4. Mr Calleija's conversation with Ms Fleming on 27 May 2022 in which he said he had been out on site every day since the prevention notice was given on 25 May 2022, and had taken over day-to-day operations of the premises to ensure compliance. During that conversation, Mr Calleija said: "I know we still need to comply"; 5. Mr Calleija's conversation with Ms Fleming on 1 June 2022 in which he said he understood "the intent of the notice is for the amount of waste at our site to not increase, I've got to get rid of it. I know you want to see … a pattern of waste leaving the site"; 6. Mr Calleija's conversation with Ms Fleming on 8 November 2022 in which he said "[w]e have reduced the amount of waste we are accepting at the site to 100 - 120 t per day", and "[i]f we cease accepting waste then we will not be able to afford the cost to remove the waste and will need to go into liquidation which is not a good outcome"; and 7. the continued receival of waste after service of the supplementary prevention notice on 25 November 2022.
2. The prosecutor submitted that each of the above factors supported the conclusion beyond reasonable doubt that Budget Waste was aware of the prevention notice and was determined to continue receiving waste irrespective of the condition of the notice requiring that it immediately cease doing so. This conduct was submitted to have been intentional and deliberate and to have occurred over a substantial period. The prosecutor also referred to records, which I admitted over objection, showing the number of deliveries to the premises during the charge 1 period, and submitted that Budget Waste's deliberate and intentional contravention of the prevention notice was a substantial factor increasing the objective seriousness of the offence.

Defendants' submissions in relation to the first and third offences

1. The defendants submitted that the evidence in relation to the first and third offences did not establish that the defendants showed any "flagrant" disregard of the notices. They referred to evidence including: 1. submitting considered representations in relation to the draft prevention notice, and attaching evidence to substantiate matters raised by representations for the consideration of the EPA; 2. requesting a meeting with the EPA to demonstrate their progress and improvement; 3. dealing openly and transparently with the EPA at all times, especially Mr Calleija who at times "to his own detriment … made a number of admissions to the EPA now used against him"; and 4. taking steps before the EPA commenced their investigation "to address the volume of waste at the [p]remises, and continuing to do throughout the offending period, and afterwards".
2. The defendants submitted that the evidence shows the "anxious actions of the [d]efendants dealing honestly with the regulator, taking proactive steps to remedy the volume of waste at the [p]remises, and attempting to deal with circumstances which were both unforeseen and never previously experienced". While the defendants admitted to the three offences, the offences were "not done with a lack of respect or regard to the regulator". The defendants accepted that they knew that bringing waste onto the premises would breach the notices. In the sense that ""[i]ntentionally" really means with knowledge", [46] the defendants accepted that the first and third offences were strict liability offences committed with intention, increasing the seriousness of the offence. [47] However, they submitted that the Court should take into account the evidence as to the state of mind of Mr Calleija (and therefore, the state of mind of Budget Waste) as outlined in Mr Calleija's affidavit in determining culpability.

Prosecutor's submissions in relation to the second offence

1. In relation to the second offence, the prosecutor submitted that the commission of an offence against s 169A of the POEO Act with a heightened state of mind will add to the objective seriousness of the offence: Crush and Haul at [119] (Preston CJ of LEC). To commit an offence against s 169A, one of two states of mind is "inherent to the offence", namely: 1. the defendant knew that the executive liability offence would be or was being committed; or 2. the defendant ought reasonably to have known that the executive liability offence would be or was being committed: s 169A(2)(c)(i).
2. The prosecutor submitted that Mr Calleija knew that an executive liability offence "would be and was being committed" as he was the person who decided that Budget Waste would not obtain the volumetric survey. In particular, the prosecutor referred to the following: 1. On 27 May 2022, during a conversation with Ms Fleming the EPA, Mr Calleija said: "It is going to cost approximately $20,000 to undertake the volumetric survey and I have been operating for 30 years and measuring metres cubed is a pointless exercise". 2. During a conversation with Ms Fleming of the EPA on 1 June 2022, being the date the volumetric survey was due to be provided to the EPA, Mr Calleija said: "[c]onverting a metre cube measurement is a pointless exercise and it's smarter to take a visual assessment." He also said: "We are using a walking floor truck three times a week removing approximately 80t of waste a day, the tripping issue of the prevention notice is the volumetric survey". 3. During the same conversation with Ms Fleming on 1 June 2022, Mr Calleija said that he had not obtained any quotes for the survey: "I haven't organised any quotes, but someone told me that it was going to cost $20,000 to get done and I don't have that money". 4. During a conversation with Ms Fleming on 8 November 2022, Mr Calleija repeated his view that a volumetric survey was pointless, but stated that he could see the value of such a survey "at the end of the process", and did not raise financial constraints as an impediment to obtaining the survey. 5. Mr Calleija's sentiments concerning the volumetric survey were repeated in representations made by his legal representative to the EPA on 15 November 2022 in response to the draft supplementary prevention notice: "[w]e are instructed that Mr Calleija would agree to: ... Provide a volumetric survey and report demonstrating full compliance with the EPL by 31 January 2023".
3. The prosecutor submitted that in addition to demonstrating that Mr Calleija knew that Budget Waste had committed and was committing an offence against s 97 POEO Act, the evidence immediately above at [208] establishes his clear intention not to obtain the volumetric survey, and not to take all reasonable steps to prevent or stop the commission of the offence. Initially, he was "unwilling even to obtain a quotation". He repeatedly stated that the volumetric survey was a pointless exercise, and held this view despite the EPL providing for restrictions concerning the location, height and amount of waste at the premises, and despite, the prevention notice and the supplementary prevention notice citing the EPA's concern that a breach of the conditions relating to location (condition A2.1), height (condition L2.3) and amount (condition L2.2) might occur. He also held the view that the volumetric survey was pointless despite admitting on 8 November 2022 that the premises "had approximately 10,000t of waste", double that permitted by the EPL. More than five months after the requirement to provide the volumetric survey, Mr Calleija, through his legal representative, stated that he "would agree to: ... Provide a volumetric survey and report demonstrating full compliance with the EPL by 31 January [2023]."
4. The prosecutor submitted that the direction in the prevention notice to undertake and provide to the EPA a survey (direction 2) was valid, and was a legitimate means to inform the EPA of the weight and height of waste on the premises. Whether the survey would provide an exact tonnage did not "mitigate the need to comply with the direction". The defendant's "dismissal of the condition" had the effect of restricting the material available to the EPA to determine the condition of the premises and potentially to lift direction 1 (in relation to immediately ceasing the receival of waste). The EPA noted that where Budget Waste complied with directions 2 to 3 prior to the timeframes identified in the prevention notice, direction 1 could be revoked at any time and waste acceptance resume at the premises, thereby minimising any potential financial implications. This was contingent on Budget Waste providing sufficient supporting evidence to the satisfaction of the EPA.
5. The prosecutor submitted that Mr Calleija's knowledge and intention increased the objective seriousness of the offence against s 169A.

Mr Calleija's submissions in relation to the second offence

1. Mr Calleija submitted that knowledge (as opposed to intention, negligence or recklessness) is already an element of an offence against s 169A of the POEO Act, s 169A providing that the offence is committed where a person (in this case, a director of the corporation) "knows or ought reasonably to know that the executive liability offence would be or is being committed, and failed to take all reasonable steps to prevent or stop the commission of that offence."
2. Mr Calleija submitted that Crush and Haul is "not authority for the creation of two separate offences with a hierarchy where an offence with knowledge establishing the element is more serious than one where it is alleged only that the director ought to have reasonably known". Further, Mr Calleija submitted, there is a distinction between a strict liability offence committed intentionally, negligently or recklessly, and what the prosecutor refers to as "knowledge", being an element of an offence against s 169A. In Crush and Haul, the Court did not accept the EPA's submissions on this point. At [128] Preston CJ of LEC said that: [t]he various matters the EPA identified as evidencing Mr Cauchi's recklessness in committing the offence against s 169A(2) of the POEO Act are in fact illustrations of Mr Cauchi's failure to take reasonable steps to prevent or stop Crush and Haul committing the offence against s 48(2) of the POEO Act. As an element of the offence committed by Mr Cauchi, his taking of certain steps and failing to take other steps identified by the EPA is not evidence of recklessness in committing the offence, only of committing the offence.
3. Mr Calleija submitted that it was appropriate for the Court to have some regard to the following events outlined in Mr Calleija's affidavit in considering his level of control over the causes that gave rise to the second offence (also relevant to the third offence): 1. Mr Calleija sought legal advice when served with the prevention notice given on 25 May 2022. He was wrongly advised that "section 289 of the POEO Act does not permit any 'stay of the prevention notice' pending any outcome of Class 1 … proceedings." This was plainly erroneous advice given that s 289(1A) provides that: "The lodging of an appeal does not, except to the extent that the … Court otherwise directs in relation to the appeal, operate to stay the notice appealed against." 2. On 10 June 2022, Mr Calleija commenced an appeal of the prevention notice, but did not at the same time apply for a stay. While it is not possible to know whether a stay would have been granted, "he lost that chance through no fault of his own". 3. On 1 December 2022, Mr Calleija appealed the supplementary prevention notice given on 25 November 2022, and filed a notice of motion seeking a stay. However, the first available date for hearing the stay application was after the premises were "already back under the 5,000t limit". [48]

The harm caused or likely to be caused to the environment: s 241(1)(a) of the POEO Act

1. Whether the prosecutor had established, beyond reasonable doubt, environmental harm caused or likely to be caused to the environment was a central point of contention in the hearing on sentence. The Dictionary to the POEO Act defines "harm" as follows: 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.
2. In environmental offences, "harm" includes both actual harm, as well as the potential or risk of harm and can be direct or indirect, individual or cumulative. In Environment Protection Authority v Waste Recycling and Processing Corporation [49] (EPA v Waste Recycling) Preston CJ of LEC said at [145]-[147] (emphasis added): 145. Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. 146. Harm can include harm to the environment and its ecology … 147. Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously.
3. In Pace Farm Egg Products, Lloyd J at [44] considered the meaning of harm that is "likely to be caused to the environment" as follows: In considering the harm likely to be caused to the environment, it is to be noted that the word "likely" in this context has been held to mean "a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance" (Mathews v Goulburn Wool Processors, NSWSC, Smart J, 6 November 1986, unreported) …
4. In Environment Protection Authority v Carbon MF Pty Ltd; Environment Protection Authority v Fair, [50] (a case to which the prosecutor drew attention), similar findings to those sought in this case were made by Duggan J at [39]-[44].

Prosecutor's submissions in relation to the first and third offences

1. In relation to the question of harm caused or likely to be caused to the environment, the prosecutor relied on the report of Mr Burton (which I admitted over objection). The prosecutor did not submit that actual harm was caused, rather that the evidence disclosed a real risk of potential harm that arose from the continued receipt of waste at the premises having regard to the increased volume of waste and the manner in which it was stored. The real risk of harm was submitted to arise in three ways: 1. the risk of fire increased with the increased volume of waste on the premises; 2. the risk that firefighting efforts would be impeded by the volume of waste, the height of its storage, and the "limited space to access any fire"; and 3. the risk of inadequate spread and screen processes due to the increased waste volume which in turn increased the risk that contaminants such as asbestos could enter the site through the resource recovery process.
2. In relation to the risk of fire, the prosecutor referred to Mr Burton's "uncontroversial opinion" that building and demolition waste includes a variety of combustible materials that pose a high fire risk. In the SOAF, it was agreed that throughout 2022, the waste stored at the premises was predominantly building and demolition waste. Further, much of the waste on the premises identified by Mr Burton and Mr Campbell was combustible waste material, including paper and cardboard, wood and wood-based products, plastic and rubber. Mr Burton opined that the construction and demolition waste stored at the premises can combust in a number of ways, including through self-heating stockpiles, chemical reactions (such as from residual adhesives, solvents and oils), ignition from cigarettes, lithium ion batteries (such as those found in power tools and vapes), contact with hot machinery, as well as arson and lightning strikes. Mr Burton opined that the larger the stockpile of combustible material, the larger the calorific value of the stockpile, and the greater the period of combustion. A greater period of combustion will increase the amount of toxic air emissions.
3. The prosecutor submitted that the continued receipt of waste which occurred as a result of the first and third offences increased the volume of waste at the premises and increased the risk of fire and the risk of discharge of toxic air emissions. The prosecutor referred, in particular, to the property adjacent to the premises occupied by Toll, a major hazard facility which provides specialist chemical and gas storage and is one of the major hazard facilities in NSW, having stored in 2022 approximately 1.8 million kilograms of dangerous gases, flammable liquids, spontaneously combustible goods, dangerous when wet goods, oxidising, toxic and corrosive substances. The prosecutor submitted that the increase in the risk of fire at the premises throughout the charge 1 and 3 periods increased the potential for a fire to spread to the neighbouring Toll major hazard facility with which Budget Waste shared two boundaries (see SOAF extracted above at [23]). In relation to extinguishing waste fires, the prosecutor submitted that construction and demolition waste fires are difficult to extinguish, and usually require the stockpile to be dismantled. The increased waste on the premises affected the size of the stockpile, and reduced the ability to extinguish a waste fire, including by dismantling the stockpile. In relation to the processing of waste, the prosecutor submitted that it is necessary for waste facilities to have sufficient room to tip and spread incoming waste to visually screen waste for contaminants such as asbestos or those which pose a fire risk, and to prevent them entering the facility and resource recovery markets. The prosecutor referred to Mr Burton's opinion that: The continued receipt of waste throughout the Charge 1 Period and the Charge 3 Period reduced the capacity to tip, spread and visually inspect all incoming waste for contaminants of concern. … The risk posed through reductions to the space available to tip, spread, turn, and inspect the waste significantly were greatest during the period of June 2022 to September 2022.
4. The prosecutor's submission in relation to this aspect of the risk of harm was not that Budget Waste could not perform a tip and spread, rather that its capacity to do so was reduced which, in turn, increased the risk of contaminants of concern entering the premises and resource recovery markets.

Prosecutor's submissions in relation to the second offence

1. As noted previously, the prosecutor did not submit that any environmental harm was caused (or likely to be caused) by the commission of the second offence.

Defendants' submissions in relation to all offences

1. In relation to the harm caused or likely to be caused to the environment, the defendants submitted in relation to all of the offences that a key factor for the Court to consider in determining seriousness was the significance of environmental harm, and that generally "the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty". [51] The prosecutor appeared to concede that the offences caused no actual environmental harm, and Mr Burton's report only addressed potential harm and likely harm. Whilst the defendants accepted that there had been harm to the regulatory system which could be taken into account pursuant to s 241(2) of the POEO Act, there was a distinction between actual harm to the environment and harm to the regulatory regime. [52]
2. Further, the defendants submitted that the interface with the premises occupied by Toll was authorised. In oral submissions, Mr Galasso SC submitted that Mr Burton's evidence in relation to a "four-metre height limit" was "inconsistent with the [EPL]", and that there was "nothing in the evidence about the tipping point". The "highest that the proposition" in relation to harm could be was that "what is the added risk from the tonnage in addition to 5,000 tonnes". Mr Galasso said "it's a bigger fire at 5,001 tonnes than it is at 5,000 tonnes … but beyond that, it's unclear exactly what it is that is said to be the potential for risk. The fire risk, presumably, is the same fire risk whether there's 5,000 tonnes or 5,001". The defendants submitted that there was "an unquantifiable added potential risk from material in excess of 5,000t".

The defendants' reasons for committing the offences, and the question of financial gain

1. The reasons for the occurrence of crime are relevant to the objective gravity of the criminality involved. [53] Committing an offence for financial gain is also an aggravating factor under s 21A(2)(o) of the CSP Act. I consider the factor of financial gain at [249] below.

The practical measures taken to avoid harm to the environment: s 241(1)(b) of the POEO Act

Prosecutor's submissions in relation to all offences

1. In relation to the practical measures to avoid the risk of harm, the prosecutor submitted that it was open to the defendants to cease the receival of waste at the premises at any time. Mr Calleija's evidence was that he believed the business would become insolvent if the income generated from the receipt of waste stopped. Whilst the prosecutor did not challenge that state of mind, there was insufficient evidence to determine if that state of mind accurately represented the position of the company.

Defendants' submissions in relation to all offences

1. The defendants submitted that since there was no actual harm, "the Prosecutor correctly did not make any submission as to the measures that would have prevented the harm": Crush and Haul at [88] (Preston CJ of LEC).

The foreseeability of harm caused or likely to have been caused to the environment: s 241(1)(c) of the POEO Act

1. For harm to be foreseeable, the precise cause of an incident is not required to be foreseen. [54]

Prosecutor's submissions in relation to all offences

1. The prosecutor referred to Mr Calleija's evidence that he was aware in December 2021 of problems at the premises, had started looking at ways to reduce the amount of waste coming in, and was looking for alternatives to get waste off the premises. That there were problems with the volume of waste on the premises was known well before the defendants were required by the prevention notice to stop the receipt of waste. The prosecutor submitted that it was foreseeable that the risk of harm was a consequence of the defendants' conduct in continuing to receive waste, particularly given the high volume of waste already on the premises, and the known difficulties the defendants were having in processing and removing the waste already on the premises.

Defendants' submissions in relation to all offences

1. The defendants submitted that since there was no actual harm, "the Prosecutor correctly did not make any submission as to the foreseeability of harm": citing Crush and Haul at [87] (Preston CJ of LEC).

The defendants' control over the causes that gave rise to the offences: s 241(1)(d) of the POEO Act

Prosecutor's submissions in relation to all offences

1. The prosecutor submitted that the cessation of the receival of waste at the premises was a matter entirely within the control of the defendants.
2. In relation to the first offence, the prosecutor submitted that Budget Waste had complete control of the premises and its operations, and at any time could have ceased the receival of waste.
3. In relation to the second offence, the prosecutor submitted that Mr Calleija, as the sole director and shareholder of Budget Waste, had complete control over both Budget Waste's decision not to obtain a volumetric survey, and Mr Calleija's conduct in failing to take all reasonable steps to prevent or stop the commission of that offence.
4. In relation to the third offence, the prosecutor submitted that Mr Calleija was the sole director and shareholder of Budget Waste, and was the subject of the supplementary prevention notice. Mr Calleija had complete control over the cause of the offence and could, at any time, have directed cessation of the receipt of incoming waste.

Defendants' submissions

1. The defendants accepted that they breached the prevention notice and supplementary prevention notice by continuing to accept waste, and that they had control over the decisions to do so. However, they submitted that the Court should have regard to the circumstances in which the offences arose, namely, the compounding effect of "two extraordinary events".
2. As outlined in the affidavit of Mr Calleija dated 2 April 2024, in the time leading up to the offending, the global pandemic impacted the defendants' ability to process waste and strained their finances. This was further compounded by record breaking prolonged rainfall, leading to an industry-wide problem with waste storage and processing. The defendants were aware that they were approaching their limit, and "frankly and to their credit" admitted this to the EPA. Before the EPA began its investigation, the defendants looked for solutions, including replacing machinery, shedding all work except that under existing contracts, and disposing of landfill waste. These efforts continued through the period of the offences. Before the prevention notice was given on 25 May 2022. the defendants requested a meeting with the EPA, which "was ignored". At all times, the defendants continued to communicate with the EPA, maintained that the waste would be under control as soon as the weather became warmer, and "made good on that promise".

The parties' general submissions in relation to objective seriousness

Prosecutor's submissions

1. Generally in relation to objective seriousness, the prosecutor submitted that the first offence was an objectively "very serious offence" and that the "flagrant disregard" for direction 1 of the prevention notice and the extended period of intentional and deliberate receipt of waste place the offending above the midrange for an offence of this type. The prosecutor submitted that the second offence was "an objectively serious offence" because of the "complete disregard" of the requirement to obtain the volumetric survey, and the extended period of the failure, placing the offending "slightly below the midrange for an offence of this type". The third offence, the prosecutor submitted, was at the midrange for an offence of this type.

Defendants' submissions

1. Generally in relation to objective seriousness, the defendants submitted that offences under Part 4.3 of the POEO Act capture a wide range of conduct, capable of encompassing minor offending through to that which can be characterised as being toward the "worst" type of conduct. It was important to bear in mind that the defendants were (but for the offending conduct) engaged in an activity otherwise authorised by licence. The WARRP data shows that from the time the EPL was issued in June 2019, and up until the end of the WARRP records for January 2024, the defendants were never over the limit allowed by the EPL, with the exception of the period of the waste offences. Accordingly, the period of offending was confined.
2. The defendants submitted that the Court would not accept in relation to the first offence that the prosecutor had demonstrated that the offending was "objectively very serious" and "above the midrange" (for Budget Waste) and in relation to the second offence "objectively serious" and at "at the midrange" (for Mr Calleija), or that the second offence was "objectively serious" and "slightly below the midrange". For the first and third offences, taking into account the state of mind of the defendants, that there was no actual environmental harm, and the confined period of time over which the offences occurred, the offences were of low to moderate objective seriousness. The second offence was submitted to be of very low objective seriousness.

Conclusions in relation to the objective seriousness of the offences

1. As to the objective seriousness of the offences, I find as follows. 1. In relation to the nature of the first offence, I am satisfied that Budget Waste's conduct in continuing to receive waste following the giving of the prevention notice on 25 May 2022 until about 23 December 2022 is properly characterised as "flagrant disregard" of the regulatory system under which Budget Waste operated as the holder of an EPL. As submitted by the prosecutor, Budget Waste's conduct during this period took place with an informed understanding of its obligations pursuant to direction 1 of the prevention notice. The draft prevention notice and the prevention notice had identified the concerns of the EPA, and Mr Calleija, the sole director and sole shareholder of Budget Waste, had expressed his understanding of Budget Waste's obligations under the EPL to the EPA on a number of occasions. The first offence was objectively a very serious offence. 2. In relation to the nature of the second offence, I am satisfied that as sole director and sole shareholder of Budget Waste, Mr Calleija, who attended the premises every day after the giving of the prevention notice on 25 May 2022, was in a position to influence the conduct of Budget Waste to prevent it from committing an offence against s 97 of the POEO Act by failing to provide the volumetric survey in contravention of direction 2(d) of the prevention notice from about 1 June 2022, continuing to about 24 January 2023. Again, Mr Calleija's conduct, in failing to ensure Budget Waste's compliance with the prevention notice, undermined the integrity of the regulatory system, and impeded the achievement of the objects of the POEO Act. The second offence was objectively a serious offence. 3. In relation to the third offence, I am likewise satisfied that Mr Calleija's conduct in continuing to receive waste over a 28 day period between the giving of the supplementary prevention notice on 25 November 2022 until 23 December 2022 amounted to flagrant disregard of the regulatory scheme under which Budget Waste operated as the holder of an EPL. Against the background of an extended period following the giving of the prevention notice on 25 May 2022 and the supplementary prevention notice on 25 November 2022, Mr Calleija failed to stop the receipt of waste at the premises with knowledge and understanding of his obligations under the supplementary prevention notice. I find that he acted in flagrant disregard of Budget Waste's obligations under the EPL and his own obligations under the supplementary prevention notice. Against this background, the not insignificant period of 28 days over which the third offence was committed increased the objective seriousness of the third offence. The third offence was objectively a very serious offence. 4. In relation to the maximum penalties for the offences, it is inescapable that the offences could have been dealt with summarily in the Local Court with the lower jurisdictional limit in relation to the extent of penalty provided for in that court (1,000 penalty units or $110,000). However, the defendants have identified nothing, other than the far lower jurisdictional limit in relation to penalty, which suggests that the offending conduct should have been dealt with summarily in the Local Court. As Johnson J said in Zreika at [109], the argument as to whether the offences in question ought to have been dealt with in the Local Court remains "theoretical at best". Here, the defendants have not demonstrated, on the balance of probabilities, that it was "plainly wrong" that the offences were prosecuted in this Court, and that they ought to have been prosecuted in the Local Court. 5. Nonetheless, I find that the maximum penalty to which those penalties would expose the defendants to is entirely disproportionate and, as submitted by the defendants, a "crushing" penalty: the first offence committed by Budget Waste having a maximum penalty of $1,000,000 and a further penalty of $120,000 multiplied by a period of 212 days producing a total of $26,440,000; the second offence committed by Mr Calleija producing a total of $14,470,000; and the third offence committed by Mr Calleija producing a total of $1,930,000, thereby exposing the defendants to a maximum penalty of $42,840,000. The entirely disproportionate nature of such exposure is particularly so in circumstances where the offending resulted in no actual environmental harm. I address the question of environmental harm at [241(10)]-[241(14)], and the principle of proportionality at [282], below. 6. In relation to the defendants' state of mind, it is relevant to the first and third offences that an offence against s 97 of the POEO Act is a strict liability offence, and that an offence committed deliberately is more serious than offences committed by inadvertence and error: Water NSW v Barlow at [57] (Preston CJ of LEC). I find established beyond reasonable doubt that throughout the charge 1 period (from about 25 May 2022 and continuing to about 23 December 2022) Budget Waste deliberately received waste at the premises. The matters to which I have had regard in so finding are those submitted by the prosecutor set out above at [203]-[204] in relation to the first and third offences and [207]-[211] in relation to the second offence. Each of those matters supports a finding, beyond reasonable doubt, that Budget Waste, being aware of the prevention notice was determined to continue to receive waste at the premises throughout the charge 1 period. I likewise find, beyond reasonable doubt, that Mr Calleija was determined to continue to receive waste at the premises following the giving of the supplementary prevention notice throughout the charge 3 period. 7. As to the prosecutor's submission in relation to the first and third offences that the defendants showed "flagrant disregard" of the notices, I do not accept the defendants' submission that the evidence establishes "anxious actions" of the defendants to take "proactive steps" to remedy the volume of waste at the premises, and to deal with circumstances which were unforeseen (and never previously experienced). I find established, beyond reasonable doubt, that the defendants knew that by bringing waste onto the premises, they were breaching the notices. The offences were committed deliberately. 8. In relation to the state of mind of the defendant Mr Calleija, relevant to the second offence against s 169A of the POEO Act, I find established beyond reasonable doubt that Mr Calleija knew that an executive liability offence was being committed. He was the person who decided that Budget Waste would not obtain the volumetric survey. He knew that Budget Waste had committed and was continuing to commit an offence against s 97 of the POEO Act. He expressed his view to the EPA on 27 May 2022, 1 June 2022 and 8 November 2022 that a volumetric survey was "pointless". He was, initially, unwilling to obtain a quotation for a volumetric survey, and admitted on 8 November 2022 that the premises had approximately 10,000t of waste, double that permitted by the EPL. I accept the prosecutor's submission that Mr Calleija's knowledge and intention increased the objective seriousness of the offence against s 169A. 9. It is undoubtedly correct, as Mr Calleija submitted, that knowledge is already an element of an offence against s 169A of the POEO Act. This was accepted by the prosecutor. It is also correct, and I find established, on the balance of probabilities, that the events identified above at [214] are relevant to Mr Calleija's level of control over the causes that gave rise to the second offence. Those events include Mr Calleija obtaining legal advice when served with the prevention notice given on 25 May 2022, the appeal of the prevention notice commenced on 10 June 2022, and the appeal of the supplementary prevention notice commenced on 1 December 2022. However, none of those matters is sufficient to detract from my finding, beyond reasonable doubt, that Mr Calleija knew that an executive liability offence was being committed. 10. In relation to the harm caused or likely to be caused to the environment, the prosecutor did not submit that actual harm was caused to the environment. And Mr Burton's report addressed potential and likely harm, and not actual harm. Nor did the prosecutor submit that any harm was caused (or likely to be caused) by the commission of the second offence. I accept, as submitted by the defendants, that there is a distinction between actual harm to the environment, and harm to the regulatory regime: ACE Demolition at [57] (Leeming JA) (Garling and Cavanagh JJ agreeing). 11. In relation to the first and third offences, I find established beyond reasonable doubt that there arose a real risk of harm to the environment from the continued receipt of waste at the premises, and the increased volume of waste and the manner in which the waste was stored. I find established beyond reasonable doubt, as submitted by the prosecutor at [219], that the real risk of harm arose in three ways: namely, the increased risk of fire with the increased volume of waste; the risk that firefighters' efforts would be impeded by the volume of waste, the height of its storage, and the limited space to assess any fire; and the risk of inadequate spread and screen processes due to the increased waste volume. Further, I accept the evidence of Mr Burton that building and demolition waste, as predominantly stored at the premises throughout 2022, includes a variety of combustible materials that pose a high fire risk. 12. I also find established beyond reasonable doubt that the continued receipt of waste as a result of the first and third offences not only increased the risk of fire, but also the risk of discharge of toxic air emissions. I find, in particular, that the increase in the risk of fire during the charge 1 and charge 3 periods increased the potential for a fire to spread to the neighbouring Toll major hazard facility with which Budget Waste shared two boundaries, notwithstanding the defendants' submission that the premises occupied by Toll was authorised. Further, as opined by Mr Burton, the continued receipt of waste throughout the charge 1 and charge 3 periods required the capacity to tip, spread and visually inspect incoming waste for contaminants of concern. 13. It may be, as submitted by the defendants, that the fire risk was the same "whether there's 5,000 tonnes or 5,001". However, it was an agreed fact that the defendants' conduct led to a larger footprint of waste. 14. I find that the first and second offences (and the third offence) also caused harm to the regulatory system, a matter accepted by the defendants and which I am permitted to take into consideration pursuant to s 241(2) of the POEO Act. 15. In relation to the defendants' submissions as to the reasons for committing the offences and the question of financial gain, I find established beyond reasonable doubt that the offences were committed for financial gain, an aggravating factor under s 21A(2)(o) of the CSP Act. I return to this factor at [281(2)]-[281(4)] below. 16. In relation to the practical measures taken to avoid harm to the environment (s 241(1)(b) of the POEO Act), I find, as submitted by the prosecutor, that it was open to the defendants to cease the receival of waste at the premises at any time. 17. In relation to the foreseeability of harm caused or likely to have been caused to the environment (s 241(1)(c) of the POEO Act), I find beyond reasonable doubt that it was foreseeable that there was a risk of harm as a consequence of the defendants' conduct in continuing to receive waste, particularly given the difficulties known to the defendants in processing and removing the waste already on the premises. 18. In relation to the defendants' control over the causes that gave rise to the offences (s 241(1)(a) of the POEO Act), I find beyond reasonable doubt that in relation to the first offence, Budget Waste had complete control of the premises and its operations, and could at any time have ceased the receival of waste. Likewise, in relation to the second offence, Mr Calleija, as the sole director and shareholder of Budget Waste, had complete control over Budget Waste's decision not to obtain a volumetric survey. In relation to the third offence, Mr Calleija, as the sole director and shareholder of Budget Waste, could at any time have directed the cessation of the receipt of incoming waste. 19. Generally, in relation to objective seriousness, I have found as to the first offence that Budget Waste's offending was objectively very serious. As to the second offence, I find that Mr Calleija's offending was objectively serious. In relation to the third offence, I find that Mr Calleija's offending was objectively very serious. I have so found taking into consideration the state of mind of the defendants, the period of offending of each of the offences, the foreseeability of the risk of harm, and the defendants' control over the causes that gave rise to each of the offences.

Subjective circumstances of the offenders

1. Within the limits set by the objective seriousness of the offence, I take into account the favourable and mitigating circumstances of the defendants, as well as the aggravating features in relation to each of the offences.

Series of criminal acts: s 21A(2)(m) of the CSP Act

1. Section 21A(2)(m) of the CSP Act provides that a where an offence involves a series of criminal acts, that factor may be taken into account in aggravation of the offence. In R v Tadrosse, [55] Howie J at [29] said as follows: "[c]learly the aggravating factor in s 21A(2)(m) is concerned with the situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct."
2. In Smith v The Queen, James J said at [40] that it is open to a sentencing judge when considering an offence under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) to take into account as a matter aggravating the offence the number of occasions on which the offender supplied a prohibited drug, if the number of occasions significantly exceeded the three occasions which needed to be proven to make out the offence.

Prosecutor's submissions

1. In relation to the first offence, the prosecutor submitted that there is no requirement under s 97 of the POEO Act to prove any more than a single contravention of a prevention notice. However, the present offending involved Budget Waste accepting the delivery of waste to the premises over a five-month period. Each instance that waste was received was a discrete criminal act. Numerous deliveries on each day throughout the period aggravated the offending.
2. In relation to the second offence, the prosecutor accepted that that offence could not be said to involve a series of criminal acts.
3. In relation to the third offence, the prosecutor submitted that during the charge 3 period, 873 loads of waste were received at the premises. The receipt of each load was a discrete criminal act. The third offence was aggravated "by the significant number of criminal acts which made up the offending".

Defendants' submissions

1. The defendants made no submissions in relation to s 21A(2)(m) of the CSP Act.

Financial gain: s 21A(2)(o) of the CSP Act

1. Another key area of dispute in the hearing on sentence was whether the prosecutor could establish beyond reasonable doubt that the offences were committed for financial gain. Section 21A(2)(o) of CSP Act provides that an offence will be aggravated if it is committed for financial gain. Financial gain does not need to be the only purpose of the offending in order to enliven s 21A(2)(o): Environment Protection Authority v Albiston [56] (Albiston) at [118] (Pepper J). The aggravating feature will be made out even if the conduct is ultimately unprofitable. [57] In Garrett v Williams, Preston CJ of LEC at [121] said as follows (citations omitted): The carrying out of an offence to make a profit, or to save incurring an expense or to avoid the cost of obtaining and implementing a statutory permission such as a development consent or environment protection licence increases the seriousness of the crime. Offenders should not profit from crime.

Prosecutor's submissions in relation to the first and third offences

1. In relation to the first offence, the prosecutor submitted that the Court would be satisfied beyond reasonable doubt that the offending was motivated by financial gain for the following reasons: 1. On 17 May 2022, in response to the draft prevention notice, Budget Waste wrote to the EPA, noting that "[t]he waste that we have been sending to landfill is more expensive to dispose of due to the accumulated water in the waste. In addition, some landfills have been closed during this period and others have increased their rates. This has placed significant commercial pressure on [Budget Waste's] business and its cashflow which would be compounded if BRW were prohibited from receiving waste". 2. On 27 May 2022, Mr Calleija told Ms Fleming that if waste was no longer accepted, the business would go broke. 3. On 8 November 2022, Mr Calleija told Ms Fleming that "we have reduced the amount of waste we are accepting at the site to 100 - 120 tonnes per day", and that if Budget Waste ceased accepting waste, it would not be able to afford the cost to remove the waste. Mr Calleija stated that "[w]e receive less construction contracts in the December January Christmas period and would be able to process waste faster due to this". 4. On 15 November 2022, Mr Calleija's legal representative wrote to the EPA noting that Mr Calleija's "fundamental issue" with the draft supplementary prevention notice was that it required the immediate cessation of the receival of all waste to the premises, and that if such a direction were made, most of the 50 staff employed by the facility would be made redundant.
2. The prosecutor accepted that the fact that offending occurs in the course of operating a business is generally not sufficient to prove an intent to commit the offence for financial gain: Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 4) [58] at [223] (Pain J). However, in the present case, Budget Waste's offending conduct was to carry on the part of its business that should not have been operational due to the prevention notice. The prosecutor referred to Budget Waste and its sole director and shareholder, Mr Calleija, repeatedly citing financial concerns as the basis for the refusal to comply with the requirement to cease receiving waste, and asserting that Budget Waste would have been financially worse off had it complied with the prevention notice. In response to the draft prevention notice, Budget Waste stated that a prohibition on receiving waste would compound the significant commercial pressures it was experiencing. On 8 November 2022, Mr Calleija sought to delay the effect of the supplementary prevention notice to the end of January 2023 as Budget Waste received "less construction contracts in the December and January Christmas period and would be able to process waste faster due to this".
3. Further, the prosecutor submitted that Mr Calleija's assertion, via his legal representative, that approximately 50 people employed by the facility would be made redundant if it ceased receival of waste echoed the submission made by the defendant in Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [59] (Sell & Parker (Pepper J)). In that case, the defendant submitted that it was motivated by its desire not to lay-off staff and to continue to carry out a recycling activity that was environmentally beneficial and necessary. At [384], Pepper J held that the motivation to avoid redundancies constituted financial motivation, as did a desire to reduce business expenses: In any event, the desire not to make staff redundant is, properly analysed, also a factor that was financially motivated. As Luke Parker stated, the consequence of complying with the tonnage limit was that costs would have to be reduced, the commission of an offence in order to avoid reducing business operating costs is, on any view, commercially motivated and for financial gain (namely, the reduction of business expenses).
4. The prosecutor submitted that Budget Waste's "plainly stated" motivation was to avoid the perceived financial impact caused by ceasing the receival of waste. Budget Waste achieved that aim by failing to comply with the requirement not to do so. This was an aggravation to be taken into account in sentencing.
5. In relation to the WARRP data, the prosecutor submitted that the data revealed that after the issue of the letter of demand on 21 February 2023, the waste on the premises had greatly reduced. Further, there was no evidence that Budget Waste had paid the waste levy, and there was insufficient evidence to be satisfied that the waste levy remained payable.
6. In relation to the third offence, the prosecutor submitted that the offence was committed for financial gain for the same reasons as the first offence. Several of Mr Calleija's statements were made prior to the commencement of the charge 3 period. However, those statements revealed Mr Calleija's "continuing state of mind and motivation" to ensure that the business of Budget Waste would not be affected by the prevention notice.

Prosecutor's submissions in relation to the second offence

1. In relation to the second offence, the prosecutor referred to Mr Calleija's repeatedly cited concerns over the potential cost of the volumetric survey: 1. On 27 May 2022, Mr Calleija said: "[i]t is going to cost approximately $20,000 to undertake the volumetric survey and I have been operating for 30 years and measuring metres cubes is a pointless exercise". 2. On 1 June 2022, Mr Calleija was asked if he had received quotes for the survey. He said: "[I] haven't organised any quotes, but someone told me that it was going to cost $20,000 to get done and I don't have that money". 3. On 8 November 2022, Mr Calleija said: "[a] volumetric survey is a pointless exercise but I do see the value of undertaking a volumetric survey at the end of the process".
2. The prosecutor submitted that Mr Calleija's stated intention was to avoid what he perceived to be a substantial cost for Budget Waste to comply with the requirement to provide the volumetric survey, those concerns having been expressed before he had obtained a quotation and which he had not done by the date the survey was due.
3. In oral submissions, the prosecutor submitted that the expenses of liquidation and administration and of costly and expensive litigation were business expenses, and that there was a "requirement that the motivation relate to an ordinary business expense". The desire not to expose Mr Calleija's son, Mr Matthew Calleija (director of Dump It Bins), to lawsuits was "appropriately characterised as a financial motivation"; likewise, the motivation to avoid redundancies for the purposes of s 21A(2)(o) of the CSP Act: Sell & Parker (Pepper J) at [384]. The prosecutor submitted that "the Court would be satisfied that the offending was motivated to avoid the cost incurred by the survey". Avoiding the cost of compliance was an aggravating factor to be taken into account in determining the appropriate sentence pursuant to s 21A(2)(o) of the CSP Act.

Defendants' submissions in relation to the first and third offences

1. The defendants submitted that the prosecutor had not adduced any financial evidence to support its submission that the offences were committed for financial gain and instead relied on statements made by Mr Calleija, while ignoring other statements that provided alternative motivations for the offending conduct. The prosecutor had subpoenaed the defendants' financial records and had been in possession of those records for some time, but had made no effort to analyse the records and present evidence, for example, from a forensic accountant, to quantify any financial gain said to have been obtained.
2. The evidence was submitted to disclose a number of motivations for the offending: a desire not to go into administration and to have to liquidate assets; a desire not to expose Mr Matthew Calleija to lawsuits for breach of contract; a desire to keep the employees of Dump It Bins who worked at the premises employed; and a desire to avoid a "worse environmental outcome" that would leave the waste sitting on the premises for years, it being "borne in mind" that the land was personally owned by Mr Calleija.
3. Further, the defendants submitted, liquidation and administration, and costly and expensive litigation, could not be characterised as ordinary business expenses that they sought to avoid. The employees engaged at the premises were employees of Dump It Bins, not the defendants, and the motivation to keep them employed could not be viewed as a financial one. Given his "complete honesty" with the EPA during his interactions (including making many admissions), there was no reason for the Court not to accept "the honesty of Mr Michael Calleija's evidence". Nor was his evidence a "recent "invention", being consistent with what he stated to the EPA from the outset.
4. The defendants referred to the invoices issued by the EPA "within the offence period" on 26 August 2022 in the amount of $357,186.28 (being the amounts of the June 2022 invoice and the July 2022 invoice), and on 14 November 2022 in the further amount of $274,402.06 (being the amounts of the August 2022 invoice and the September 2022 invoice) (see [176]-[177] above). The invoices were payable for any waste above the 5,000t limit. The evidence that a substantial levy was payable on waste received in excess of 5,000t was submitted to demonstrate the "converse of any motivation of financial gain".

Mr Calleija's submissions in relation to the second offence

1. In relation to the second offence, Mr Calleija submitted that while it would be open to conclude that a desire to avoid the cost of the volumetric survey was at least part of the reason for the survey offence, the evidence also indicated another motivation, namely, that Mr Calleija did not understand the purpose of the survey. According to the terms of the prevention notice, the survey was required to show evidence of compliance with the limit in condition L2.2 of the EPL of 5,000t of waste permitted on the premises at any one time. However, as Mr Calleija told the EPA, measuring cubic metres would not provide an accurate measure of tonnage (hence his opinion that it was a "pointless exercise"). In light of the lack of financial evidence from the prosecutor, and the evidence of the defendants as to their motivations which should be accepted, the prosecutor could not establish beyond reasonable doubt that the second offence was committed for financial gain and that the circumstance of aggravation in s 21A(2)(o) of the CSP Act was made out.

Record of previous convictions: ss 21A(2)(d), 21A(3)(e) of the CSP Act

1. In relation to the first offence, the prosecutor accepted that Budget Waste has no relevant prior criminal history.
2. In relation to the second and third offences, Mr Calleija has a prior conviction in the Local Court for an offence of wilfully obstructing an EPA officer on 12 July 2022. That conviction is presently the subject of appeal. That offence was committed prior to the third offence the subject of these proceedings.
3. Prior convictions are to be taken into account even in circumstances where the convictions are the subject of a pending appeal on the basis that verdicts are not to be treated as provisional, pending their confirmation on appeal: R v Sinanovic [60] at [84] (Hulme J) (Wood CJ at CL and Greg James J agreeing).

Good character: ss 21A(3)(f) of the CSP Act

1. The mitigating factor of good character in s 21A(3)(f) of the CSP Act relates to the character of the offender prior to the commission of the offence: Lozanovski v R [61] at [12] (Latham J) (McColl JA and Adams J agreeing).

Defendants' submissions in relation to all offences

1. In relation to good character, the defendants submitted that since the commencement of the proceedings in relation to the first and second offences on 23 May 2023, and in relation to the third offence on 13 October 2023, neither Mr Calleija nor Budget Waste has had any compliance action taken against them. Mr Calleija has been in the waste industry for 34 years.
2. The defendants submitted that they are entitled to the significant benefit of prior good character, and that there should be "no detraction" from the good character of Mr Calleija by reason of the Local Court conviction on 8 February 2024. That matter is presently under appeal, the conduct on 12 July 2022 post-dating the commencement of the offence periods in the present proceedings, and the conviction on 8 February 2024 post-dating the commencement of these proceedings.

Remorse shown by the offender: s 21A(3)(i) of the CSP Act

1. Remorse shown by the offender for the offence is a mitigating factor, 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) (s 21A(3)(i) of the CSP Act).
2. In EPA v Waste Recycling at [203] Preston CJ of LEC said as follows in relation to contrition and remorse: 203 Contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives. The actions underlying genuine contrition and remorse may take at least four forms.
3. The four forms of actions whereby contrition and remorse may be shown are set out at [204], [210], [212] and [214] of the chief judge's decision, as follows: 204 First, the speed and efficiency of action to rectify any harm caused or likely to continue to be caused by the commission of the offence is the clearest indication of contrition and remorse. Where it occurs it justifies a reduction in the sentence: Mickelberg (1984) 13 A Crim R 365 at 370; s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 and R v United Keno Hill Mines Ltd (1980) 1 YR 299; 10 CELR 43 at [24]. … 210 Secondly, voluntarily reporting the commission of the offence and any concomitant environmental harm to relevant authorities indicates a genuine desire to act responsibly. Environmental regulation depends upon the integrity of persons making full disclosure. Voluntarily reporting breaches should therefore be acknowledged as a mitigating circumstance by the courts in sentencing: R v United Keno Hill Mines Ltd (1980) 1 YR 299; 10 CELR 43 at [24]. .. 212 Thirdly, the taking of action to address the causes of the offence, such as designing and installing improved pollution prevention and control systems, also indicates a genuine desire to act responsibly: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 700-701. … 214 Fourthly, the personal appearance of corporate executives in court and their personal evidence outlining the company's genuine regret and stating future plans to avoid repetition of such offences is an indication of genuine corporate contrition: R v United Keno Hill Mines Ltd (1980) 1 YR 299; 10 CELR 43 at [26]; Environment Protection Authority v Port Kembla Copper Pty Ltd [2001] NSWLEC 223 (28 September 2001) at [28]. See also Environment Protection Authority v Coe Drilling Australia Pty Limited [2005] NSWLEC 719 (5 December 2005) at [186]-[187] and Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289 (5 May 2006) at [115].

Prosecutor's submissions in relation to all offences

1. The prosecutor referred to the four forms by which genuine contrition and remorse may be shown, as set out by the chief judge in EPA v Waste Recycling.

Defendants' submissions in relation to all offences

1. The defendants submitted that contrition and remorse were demonstrated by: 1. the early pleas in relation to all three offences, substantial agreement on facts, agreement to pay the prosecutor's costs, and the presence of Mr Calleija and his family in Court; 2. the affidavit of Mr Calleija dated 2 April 2024 in which he apologised and accepted responsibility for all offences, while also providing an explanation for the offending; and 3. the defendants' actions in continuing to reduce waste stored at the premises to below the licensed limit in the months post-dating the offences; that is, taking action to address the cause of the offences.

Guilty pleas: ss 21A(3)(k), 22 of the CSP Act

1. In determining a penalty for the offences, I am to take into account as a mitigating factor that the offenders pleaded guilty (ss 21A(3)(k), 22(1)(a) of the CSP Act), when the offenders pleaded guilty or indicated an intention to plead guilty (s 22(1)(b)), and the circumstances in which the offenders indicated an intention to plead guilty (s 22(1)(c)). I may accordingly impose a lesser penalty than I would otherwise have imposed: s 22. However, a lesser penalty imposed must not be unreasonably disproportionate to the nature and circumstances of the offences: s 22(1A).
2. The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of a 10 to 25 per cent discount on sentence. The primary consideration in determining where in the range a particular case should fall is the timing of the plea. A discount at the top of the range would be expected to be restricted to pleas entered at the earliest possible opportunity. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial. In some cases no discount is appropriate at all: R v Thomson [62] at [160] (Spigelman CJ) (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing).
3. The summons in relation to the first offence was filed on 23 May 2023, and Budget Waste entered a plea of guilty on 11 August 2023. The summons in relation to the second offence was filed on 23 May 2023, and Mr Calleija entered a plea of guilty on 11 August 2023. The summons in relation to the third offence was filed on 13 October 2023, and Mr Calleija entered a plea of guilty on 8 December 2023.
4. The prosecutor accepted that the pleas of guilty were entered on an early occasion, and that it was open to the Court to accept that the utilitarian value of the pleas could be assessed up to 25%.

Assistance to authorities: ss 21A(3)(m), 23 of the CSP Act

1. In oral submissions, the prosecutor said that it was not clear whether a submission was made for a reduction based on assistance. The prosecutor submitted that mere agreement as to facts is not sufficient to entitle a reduction under s 21A(3)(m) of the CSP Act. [63]
2. In ACE Demolition at [98], the Court of Criminal Appeal said that "[t]here may be exceptional cases where an offender's participation in a statement of agreed facts nonetheless amounts to assistance for the purposes of s 21A(3)(m), because of admissions which materially alter the prosecutor's understanding of the nature of the offending." [64]

Conclusions in relation to the subjective circumstances of the offender

1. As to the subjective circumstances of the offenders, I find as follows. 1. In relation to the first and third offences, I find, as submitted by the prosecutor, that each instance the waste was received at the premises was a discrete criminal act, and that the two offences involved a series of criminal acts, an aggravating factor in determining the appropriate penalty of the purposes of s 21A(2)(m) of the CSP Act. I do not find, and it was not submitted by the prosecutor, that the second offence involved a series of criminal acts. 2. In relation to financial gain, I am satisfied beyond reasonable doubt that the first and third offences were committed for financial gain, an aggravating factor for the purposes of s 21A(2)(o) of the CSP Act. I accept that the offending occurred in the course of operating a business. However, the offending of Budget Waste was in the course of carrying on a business that should not have been operational following the giving of the prevention notice. Whist Budget Waste may have been under financial pressure, and may have been concerned to avoid redundancies, I am satisfied, beyond reasonable doubt, that Mr Calleija and Budget Waste were concerned to ensure that the business of Budget Waste was not affected by the prevention notice or the supplementary prevention notice. 3. It is true that the prosecutor did not rely on the subpoenaed financial records of the defendants. However, any financial records would not have been capable of detracting from my finding, beyond reasonable doubt, that the offending was commercially motivated and for financial gain. 4. In relation to the second offence, Mr Calleija had repeatedly expressed concerns over the potential cost of the volumetric survey. However, those concerns were expressed before he had obtained a quote and before the survey was required to be provided. I am satisfied, beyond reasonable doubt, that Mr Calleija's offending was motivated by a desire to avoid incurring the costs of the volumetric survey and hence that the second offence was committed for financial gain, an aggravating factor to be taken into account in determining the appropriate sentence pursuant to s 21A(2)(o) of the CSP Act. 5. In relation to previous convictions, Budget Waste has no record of previous convictions. Mr Calleija has a previous conviction (on 8 February 2024) in the Local Court for an offence of wilfully obstructing an EPA officer on 12 July 2022. Whilst that conviction is presently the subject of appeal, the offence was committed prior to the third offence the subject of these proceedings. It was committed within the charge 1, 2 and 3 periods. 6. In relation to good character, I accept that neither Mr Calleija nor Budget Waste has had any compliance action taken against them. The conviction of Mr Calleija in the Local Court on 8 February 2024 post dates the commencement of the offence periods in the present proceedings. Mr Calleija has been in the waste industry for 34 years. In the circumstances, good character is a significant mitigating factor. 7. In relation to remorse, I am satisfied that the offenders have shown remorse for the offences by the entry of pleas in relation to the three offences, agreement to pay the prosecutor's costs, the presence of Mr Calleija and his family in court, Mr Calleija's apology and acceptance of responsibility for the offences and the defendants' actions to reduce waste in the matters that post date the offences. In the circumstances remorse is a significant mitigating factor. 8. In relation to the early entry of pleas of guilty in relation to all three offences on each occasion, I assess the utilitarian value of the pleas as 25%. 9. In circumstances in which it was not clear whether the defendants sought to rely upon, as a mitigating factor pursuant to s 21A(3)(m) of the CSP Act, their assistance in the preparation for a statement of agreed facts, I do not accept the preparation of a statement of agreed facts as a mitigating factor, I have already rewarded the early pleas of guilty with a discount of 25% and taken in to account as a mitigating factor Mr Calleija's good character and his expression of contrition and remorse.

Proportionality

1. Neither the prosecutor nor the defendants made any submission in relation to the principle of proportionality, Nonetheless, I have had regard to the principle of proportionality in determining appropriate penalties to be imposed for the three offences here. [65] It is a fundamental principle of sentencing that the sentence should not exceed what is proportionate to the gravity of the offence, having regard to its objective circumstances. [66]

Specific and general deterrence: s 3A(b) of the CSP Act

1. The penalties to be imposed should serve the functions of both general and specific deterrence. Section 3A of the CSP Act identifies the purposes for which a court may impose a sentence on an offender, including "(b) to prevent crime by deterring the offender and other persons from committing similar offences".
2. The chief judge in Bentley LEC said as follows in relation to general deterrence at [139]-[141]: 139. The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597 to 598. 140. This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at paras 85 and 93 per Lloyd J. 141. The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and important components of it such as threatened species, must be complied with.

Prosecutor's submissions in relation to all offences

1. In relation to general deterrence, the prosecutor submitted that the principle of general deterrence is of central importance in sentencing for environmental offences: Axer at 359 (Mahoney JA). In this case, each of the offences concerns a failure to comply with a direction of a regulatory authority that was issued following a concern that activities were being carried on in an environmentally unsatisfactory manner. The prosecutor submitted that the function of punishment in this context ensures the enforcement of the regulatory scheme and preserves its administration, and is protective of both the public and the environment.
2. Further, the prosecutor submitted, in addition to its coercive purpose, punishment also serves the purpose of deterring those who may be minded to "flout" notices issued under Ch 4 of the POEO Act. The very substantial maximum penalties set by Parliament for continuing offences of this kind are intended to act as deterrents. The deliberate and intentional nature of the offending, in addition to the extended periods over which the offending took place, demonstrate the need for weight to be given to specific deterrence in relation to both defendants.

Defendants' submissions in relation to all offences

1. The defendants accepted that general deterrence should be reflected in the penalties. However, in light of the waste stored continuing to be reduced and remaining under the limit, there was no demonstrated need for specific deterrence. The defendants continued to self-report the volumes of waste received. The evidence of Mr Calleija, the owner of the premises, was that he "never intended to leave the [p]remises in an environmentally unsatisfactory way and nor would he do so".

Conclusions in relation to specific and general deterrence

1. As accepted by the defendants, general deterrence will be reflected in the penalties. I will also reflect in the penalties I impose the deliberate nature of the offending over a significant period; that is, in relation to the first offence, a period of 212 days (from about 25 May 2022 continuing until about 23 December 2022), in relation to the second offence a period of 237 days (from about 1 June 2022 continuing to about 24 January 2023), and in relation to the third offence a period of 28 days (from about 25 November 2022 continuing until about 23 December 2022).
2. In relation to specific deterrence, I attach no weight to Mr Calleija's evidence that he "never intended to leave the [p]remises in an environmentally unsatisfactory way and nor would he do so".

Even-handedness and consistency in sentencing

1. Consistency of sentencing is important. The consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. [67] In seeking consistency, judges must have regard to previous cases and "[n]ot just to what has been done in other cases but why it was done". [68] What has been done in other cases may establish a range of sentences which have been imposed. [69] However, that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. [70] The history stands as a yardstick against which to examine a proposed sentence. [71] When considering past sentences, it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned.
2. As the chief judge observed in Environment Protection Authority v Ditchfield Contracting Pty Ltd [72] (Ditchfield Contracting) at [72], the more appropriate yardstick against which sentences should be compared is the penalty set by Parliament, rather than the amount of fines imposed in past cases.

Prosecutor's submissions in relation to all offences

1. The prosecutor submitted that the type and nature of offending that may fall within the scope of ss 97 and 169A of the POEO Act is extremely broad. The breadth of offending limits the usefulness of comparative cases in the application of the principle of even-handedness as it is necessary to consider the entirety of the circumstances which resulted in a particular sentence being imposed in a particular case: RLS v R [73] at [132] (Bellew J). The prosecutor submitted that there were no reasonably comparable cases from which a sentencing pattern could be derived, citing Duggan J in Transport for New South Wales v Estuary Constructions Pty Ltd; Transport for New South Wales v Sampson [74] which concerned a number of offences, including offences against ss 97 and 169A of the POEO Act. There her Honour said:
2. The prosecutor submitted orally that Environment Protection Authority v Eveston (No 3) [75] (EPA v Eveston (No 3)) and Environment Protection Authority v Nath [76] (EPA v Nath), cases to which the defendants referred to as comparable to the present offending, concerned s 64 of the POEO Act, and not the offences before the Court, being offences against ss 97 and 169A.

Defendants' submissions in relation to all offences

1. The defendants submitted EPA v Eveston (No 3) and EPA v Nath are comparable to the present offending.
2. In EPA v Eveston (No 3), the defendant pleaded guilty to two offences against s 64(1) of the POEO Act for breaches of a notice of revocation of an EPL for failing to ensure no more than 3,195m3 of waste was on the property as at 21 May 2019 (the exceedance offence), and failing to remove all waste from the property by 5pm on 21 September 2019 (the removal offence). Pepper J considered both offences to be of low objective seriousness. At [137], Pepper J fined the defendant $37,500 for the exceedance offence and $18,000 for the removal offence.
3. In EPA v Nath, the defendant pleaded guilty to four offences against s 64(1) of the POEO Act for breaching conditions of its EPL. The most comparable offence was that on 30 March 2022 approximately 318.9t of waste tyres were stored on the premises in circumstances where the EPL specified that the waste could not exceed 150t (the exceedance offence). At [145], Pepper J fined the defendant $30,000 for the exceedance offence.
4. In relation to even-handedness and consistency in sentencing, as the chief judge observed in Ditchfield Contracting at [72], the more appropriate yardstick against which sentences should be compared is the penalty set by Parliament, rather than the amount of fines imposed in past cases. It is regrettable but perhaps unavoidable that the prosecutor was unable to assist the Court by identifying any reasonably comparable cases from which a sentence pattern could be derived. The two cases upon which the defendants relied, EPA v Eveston (No 3) and EPA v Nath concerned offences against s 64 of the POEO Act, and not against ss 97 and 169A with which I am here concerned.
5. Nonetheless, in seeking consistency in fixing penalties, I have regard to the cases on which the defendants relied as comparable to the present offending.

Totality

1. The totality principle applies where a court imposes more than one non-custodial sentence, or a mixture of different non-custodial sentences, or imprisonment is imposed with an additional penalty or order: Camilleri's Stock Feeds at 704 (Kirby P). In ACE Demolition at [111], Leeming JA (Garling and Cavanagh JJ agreeing) said that "the principled approach … is to leave questions of totality to the end, and apply a final check of the aggregate against whether it is a just and appropriate punishment for the entire criminality".
2. In oral submissions, Mr McAuliffe for the prosecutor submitted that it was open to the Court to apply the totality principle. Mr McAuliffe submitted that while the totality principle does not strictly apply to the waste offences because they are separate and against different defendants, they do arise from the EPA's continuing prohibition on the receipt of waste at the premises, and that Mr Calleija is the sole director of Budget Waste. The prosecutor referred to the decision of Pepper J in Cessnock City Council v Quintaz (Cessnock City Council) where her Honour said at [136]-[138]: 136 … It was this one incident that generated the respective Notices, the respective failures of both defendants to comply with the Notices, the respective summonses and the respective pleas of guilty. Thus in these circumstances, and where Mr McCudden is the sole director of Quintaz, the Court ought to adjust the monetary penalties in order to have regard to the close connection of the two offences (see R v Hammoud (2000) 118 A Crim R 66). Moreover, the reality is that in each case it will be Mr McCudden who suffers the penalty, and therefore, there is a need to look at the overall criminality of Mr McCudden and Quintaz and the totality principle therefore applies in a de facto sense (see Keir v Sutherland Shire Council [2004] NSWLEC 754 at [16]). 137 In Gittany the Court described the totality principle and its application as (at [196], [199] and [200]): [196] The totality principle is a principle of sentencing which must be applied when sentencing an offender who has committed more than one offence. The court should consider questions of cumulation or concurrence as well as questions of totality. When reviewing the aggregate sentence, the Court must consider whether it is "just and appropriate" and reflects the total criminality before the court: see Mill v Queen (1988) 166 CLR 59 at 62-63; Pearce v The Queen (1988) 194 CLR 610 at [49]; R v Kalache (2000) 11 A Crim R 152 at [110], [180]; R v AEM [2002] NSWCCA 58 at [70]; and R v Bahsa (2003) 138 A Crim R 245 at [62], [63]. … [199] In determining an appropriate aggregate sentence, the Court must consider the need to uphold public confidence in the administration of justice. If sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences: R v Wheeler [2000] NSWCCA 34 at [36]-[37]. [200] In applying the totality principle, the Court must avoid determining a sentence that is disproportionate to the seriousness of the offence: R v A at [32]. The Court must first fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality: Pearce v The Queen at [45]; R v Wheeler at [31], [32] and R v AEM [64], [67]. 138 However, as stated in Rawson (at [222] and see the authorities cited thereat), "[c]are must be taken, however, to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence".
3. In relation to totality, the defendants submitted that the first and third offences arose from the same conduct, and the second offence from related conduct. Accordingly, the Court must give effect to totality. This requires the Court to review the totality of the sentence, and consider whether the penalty imposed is just and appropriate and whether it reflects the overall criminality of the offender before the Court. [77]
4. I accept, as submitted by the defendants, that the first and third offences arose from essentially the same conduct, and that the second offence arose from related conduct. In fixing penalties for the three offences, I have regard to the totality principle.

Capacity to pay: s 6 of the Fines Act

1. In exercising my discretion to fix the amount of a fine, I am required to consider such information regarding the means of the accused as is reasonably and practicably available to the court for consideration and such other matters as, in the opinion of the court, are relevant to the fixing of that amount. [78]
2. The prosecutor submitted that s 6 of the Fines Act imposes an onus on the defendants to prove they are unable to pay a monetary penalty imposed by the Court. To do so, it was necessary to provide a comprehensive picture of each defendant's financial situation: Albiston at [184] (Pepper J). A defendant's capacity to pay is one factor of many for the Court to consider when imposing a sentence. In Hanna, the chief judge said at [267] in relation to capacity to pay: However, whilst the means of an offender to pay any fine is a mandatory consideration, it may not be decisive. Other sentencing considerations, such as achieving general deterrence, may justify imposing a fine in a certain amount, even if the offender is unlikely to be able to pay the fine … : Smith v The Queen at 23, 24; Darter v Diden (2006) 94 SASR 505; [2006] SASC 152 at [29]-[32]; Mahdi Jahandideh v R [2014} NSWCA 178 at [15]­[17]. This may particularly be the case in sentencing for offences where general deterrence is needed and where the offender is a corporation rather than a natural person …: see Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 353; Environment Protection Authority v Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147; Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94 at [16]; Bentley v BGP Properties Pty Ltd at [270]-[275].
3. In relation to capacity to pay, there was no evidence before me in relation to the financial position of the defendants.

The "instinctive synthesis approach" and the appropriate penalties to be imposed

1. In determining the appropriate penalty to be imposed, after weighing all the relevant factors, the court must apply the instinctive synthesis approach which seeks to identify all of the circumstances of the offences and the offender. [79] The determination of an appropriate sentence is to be undertaken bearing in mind what Preston CJ of LEC said at [162] in Bentley LEC: "[a] sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its subjective circumstances."
2. In sentencing here, I must first fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as questions of totality: Pearce v The Queen [80] at [45]; R v Wheeler [81] at [31]-[32]; R v AEM [82] at [64], [67]; Gittany Constructions Pty Ltd v Sutherland Shire Council [83] at [196], [199]-[200]; Cessnock City Council v Quintaz at [136]-[138] (Pepper J).
3. The onus was on the defendants to prove, on the balance of probabilities, that they are unable to pay a monetary penalty imposed by the Court. They chose not to put on any evidence capable of providing a comprehensive picture of each defendant's financial situation: Albiston at [184] (Pepper J).
4. Synthesising all the relevant objective and subjective circumstances of the offences and the offenders, in particular, the deliberate nature of the offending over significant periods of time, the absence of actual environmental harm, good character as a significant mitigating factor, the demonstration of remorse by the entry of pleas and the making of apologies and acceptance of responsibility, and considering the relevant purposes of sentencing, the maximum penalties set by Parliament, the check or yardstick provided by the two cases referred to by the defendants concerning s 64 of the POEO Act (which unlike ss 97 and 169A do not provide for continuing offences), the principle of proportionality, the absence of any evidence in relation to the defendants' capacity to pay, I determine that it would be appropriate to fix the following sentences in relation to each of the offences, before turning to consider questions of totality: 1. In relation to the first offence, which continued for 212 days and which I have found to be a very serious offence, and the defendant Budget Waste to have shown flagrant disregard of the regulatory system, I find that a monetary penalty in the amount of $100,000, with a further amount of $1,000 a day for a period of 212 days would be appropriate. 2. In relation to the second offence, which continued for 237 days and which I have found to be a serious offence, I find that a monetary penalty in the amount of $60,000, with a further amount of $600 a day for a period of 237 days, would be appropriate. 3. In relation to the third offence, which continued for 28 days and which I have found to be a very serious offence, I find that a monetary penalty in the amount of $75,000, with a further $1,000 a day for a period of 28 days, would be appropriate.
5. This produces a total of $312,000 for the first offence, $202,200 for the second offence, and $103,000 for the third offence.
6. In relation to each offence, I apply a discount of 25% for the entry of a guilty plea. This produces a total of $234,000 for the first offence, a total of $151,650 for the second offence, and a total of $77,250 for the third offence.
7. It now arises as, a final check, to determine aggregate sentences which are just and appropriate, and reflect the totality of the criminality before the Court.
8. In applying the totality principle, I take into consideration that each of the offences arises from the continuing receipt of waste at the premises, that there is extensive overlap between the periods of offending in relation to the first and second offences, the second and third offences and the first and third offences, and also that Mr Calleija who is to be sentenced in relation to the second and third offences is the sole director and shareholder of Budget Waste, the defendant to be sentenced in relation to the first offence. In the application of the totality principle, I have decided to reduce the monetary penalties in relation to each of the offences as follows: 1. The penalty for the first offence will remain fixed at $234,000. 2. The penalty for the second offence will be reduced to $25,000 reflecting that Mr Calleija is the sole director and shareholder of Budget Waste, and that the period of offending exceeded that of the first offence by 25 days. 3. The penalty for the third offence will be reduced to $75,000 reflecting that Mr Calleija is the sole director and shareholder of Budget Waste, and that the period of offending is wholly subsumed within that of the first offence.
9. It follows that I will make order imposing the following monetary penalties in relation to each of the offences: 1. In relation to the first offence, and Budget Waste, a penalty in the amount of $234,000. 2. In relation to the second offence, and Mr Calleija, a penalty in the amount of $25,000. 3. In relation to the third offence, and Mr Calleija, a penalty in the amount of $75,000.
10. This produces in relation to Budget Waste, a penalty in the amount of $234,000 for the first offence, and in relation to Mr Michael Calleija, a total penalty of $100,000 for the second and third offences.

Payment of share of fine to prosecutor: s 122 of the Fines Act

1. The prosecutor seeks an order under s 122 of the Fines Act that half of the monetary penalty be paid to the EPA. In oral submissions, Mr McAuliffe for the prosecutor referred to Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [84] where the chief judge at [62] said as follows: 62. A justification for making a direction under s 122 of the Fines Act in this case is that, under the Environmental Planning and Assessment Act, the Court cannot make an order that the prosecutor be paid the costs and expenses it reasonably incurred during the investigation of the offence, unlike under s 248(1) of the Protection of the Environment Operations Act 1997. An order that the offender pay the prosecutor's legal costs of the proceedings does not include costs and expenses incurred during the investigation of an offence and before the prosecution has been commenced. Payment of a moiety in the fine to the prosecutor may compensate the prosecutor for the costs and expenses it incurred during the investigation of the offence.
2. I will make such an order.

Publication order: s 250(1)(a) of the POEO Act

1. The prosecutor seeks an order that the defendants take specified action to publicise the offences in accordance with s 250(1)(a) of the POEO Act in the form proposed in Annexure A to this judgment. In Environment Protection Authority v Crown in the Right of New South Wales [85] at [84], Duggan J set out the principles applicable to whether a publication order should be made: (1) The Court has a wide discretion as to whether to impose a publication order and the POEO Act does not identify, in terms, the circumstances in which such an order should or should not be made: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [36]; (2) Publication orders assist in serving a deterrent purpose in environmental crimes: EPA v Waste Recycling Corporation (2006) 148 LGERA 299. Such a notice informs or reminds the public that such an offence exists, and may add some "sting" to the imposition of a fine. The objectives of general and specific deterrence are thus satisfied: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [163]. A publication order operates as a message to the community that a holder of an EPL is under a heightened responsibility to ensure that their operations are conducted in accordance with the conditions of such licence: Environment Protection Authority v Biosolids Management Pty Limited [2004] NSWLEC 90; (3) 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: Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 at [242]; (4) Because a publication order is made in addition to, rather than instead of, any penalty, it ought not be considered in determining the quantum of any monetary penalty to be imposed (Environment Protection Authority v Incitec Ltd; (2003) 131 LGERA 176 at [58]-[59]); (5) If an order under s 250(1)(e) is imposed a publication order ought be made because it is important to publicise to the community at the time such an order is made that any works being undertaken are as a result of committing an offence: Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732 at [141]; (6) Existing adverse publicity in the media or an intention to self-publicise a conviction will not necessarily preclude the making of a publication order: Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160 at [104]; (7) The circumstances of the case may dictate that the interests of justice and the purpose of the publication will not be served if publication is ordered such as: where the offence is a first offence and the harm and objective seriousness of the offence is low; where publication of the offence is likely to confuse or mislead the reader in light of the substance earlier Court ordered publication: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [41]; Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd [2007] NSWLEC 466 at [169]; (8) Such an order is no less appropriate because the offences have been found to be of a low level of objective seriousness: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [164].
2. That statement of principles by Duggan J was applied by Pepper J in Georges River Council v SAF Developments Pty Ltd [86] at [143].
3. I find that in the present case the important objectives of general and specific deterrence would be served by the proposed publication orders in relation to both defendants. I will make such an order.

Investigation costs: s 248 of the POEO Act

1. The prosecutor also seeks an order under s 248 of the POEO Act for the reimbursement of costs incurred during the investigation of the offences in the amount of $3,100.00 for the aerial volumetric surveys of the premises carried out by Australian Aerial Imagery on 12 July 2022 and 19 October 2023. In considering the appropriate penalty, it is "legitimate to take into account any associated costs order". [87] In oral submissions, the prosecutor submitted that the amount of $3,100.00 does not include the significant time spent in investigating the offences. [88]
2. I will make an order under s 248 of the POEO Act that the defendants pay the prosecutor the amount of $3,100.00 incurred in the investigation of the offences.

Professional costs

1. The prosecutor also seeks an order for its professional costs as agreed or assessed under ss 257B and 257G of the Criminal Procedure Act.
2. In oral submissions, Mr Galasso for the defendants said that he was advised that the prosecutor's estimate of the quantum of its costs excluding the investigation costs of $3,100 was "$130,000". Mr Galasso submitted that if the Court was looking to matters that "tended to reduce rather than increase [penalty], it would undoubtedly be in the first category".
3. I will make an order for the prosecutor's professional costs as agreed or as may be determined under s 257G of the Criminal Procedure Act.

Orders

1. The Court makes the following orders: In proceedings 164057 of 2023: 1. The defendant, Budget Waste Recycling Pty Limited, is convicted of the continuing offence against section 97 of the Protection of the Environment Operations Act 1997 (NSW) as charged. 2. Budget Waste Recycling Pty Limited is to pay a fine in the amount of $234,000. In proceedings 164049 of 2023: 1. The defendant, Mr Michael Calleija, is convicted of the continuing offence against section 169A of the Protection of the Environment Operations Act 1997 (NSW) as charged. 2. Mr Michael Calleija is to pay a fine in the amount of $25,000. In proceedings 324738 of 2023: 1. The defendant, Mr Michael Calleija, is convicted of the continuing offence against section 97 of the Protection of the Environment Operations Act 1997 (NSW) as charged. 2. Mr Michael Calleija is to pay a fine in the amount of $75,000. In proceedings 164049 of 2023, 164057 of 2023 and 324738 of 2023: 1. Pursuant to s 122 of the Fines Act 1996 (NSW), a moiety of 50 percent of any fine determined by the Court be paid to the prosecutor. 2. Pursuant to s 248 of the Protection of the Environment Operations Act 1997 (NSW), the defendants to pay $3,100.00 to the Environment Protection Authority for its costs and expenses reasonably incurred during its investigation of the offences. 3. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendants to pay the legal costs of the Environment Protection Authority as agreed or as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW). 4. Pursuant to s 250(1)(b) of the Protection of the Environment Operations Act 1997 (NSW), the defendants, at their expense: 1. within 60 days of the date of these orders, cause a notice at a minimum size of 139mm x 129mm to be published within the first 12 pages of the Sydney Morning Herald with the text of such notice and the Budget Waste Recycling Pty Limited (ACN 112 980 293) logo (of reasonable size) as set out in Annexure A to these orders; and 2. within 60 days of the date of these orders, cause a notice at a minimum size of a quarter of a page to be published within the first 12 pages of Inside Waste with the text of such notice and the Budget Waste Recycling Pty Limited (ACN 112 980 293) logo (of reasonable size) as set out in Annexure A to these orders. 1. Within seven days of the date of publication of the notices referred to in order 10, the defendants to provide the prosecutor with a complete copy of the notices published pursuant to that order.

Endnotes

1. Whilst this was an agreed fact having regard to the monthly WARRP data set out in [47] above, that data is a monthly summary, and does not record the actual waste received during the charge 3 period.
2. Environment Legislation Amendment Act 2022 No 3 (NSW) Sch 5.
3. The penalty recorded in s 215(2) has been doubled to 2,000 penalty units.
4. Maxwell v The Queen (1996) 184 CLR 501 at 508-510; [1996] HCA 46 (Dawson and McHugh JJ); Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 (Strbak) at [32]-[33] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); cited in Environment Protection Authority v Mouawad (also known as Isaac) (No 4) [2023] NSWLEC 76 at (Mouawad (No 4)) at [18] (Pritchard J).
5. R v O'Neill [1979] 2 NSWLR 582 at 588 (Moffitt ACJ); cited in Mouawad (No 4) at [18] (Pritchard J).
6. (2004) 217 CLR 198; [2004] HCA 22 at [30] (Gleeson CJ, Gummow J, Kirby J, Hayne J and Heydon JJ); Environment Protection Authority v Laison [2015] NSWLEC 89 at [33] (Pain J) cited in Mouawad (No 4) at [18] (Pritchard J).
7. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]-[28] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41] (Gleeson CJ); Strbak at [27]-[28] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70 at [45] (Robson J).
8. [2019] NSWLEC 100 at [131] (Pepper J).
9. (1937) 59 CLR 467 at 497; [1937] HCA 77 (Evatt J).
10. (2011) 244 CLR 120; [2011] HCA 39 (Muldrock v The Queen) at [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
11. (2012) 203 A Crim R 172; [2012] NSWCCA 172 at [42] (Price J) (Allsop P and S.G Campbell J agreeing).
12. (2014) 205 LGERA 39; [2014] NSWLEC 152 at [45] (Preston CJ of LEC).
13. (2008) 188 A Crim R 253; [2008] NSWCCA 218 at [39] (Simpson J); cited in Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273; [2008] NSWLEC 264 (EPA v Snowy Hydro) at [137] (Biscoe J).
14. (2002) 133 A Crim R 413; [2002] NSWCCA 373 at [61] (Giles JA) (Levine and Sperling agreeing); cited in Wass v R [2022] NSWCCA 143 at [86] (Dhanji J) and in Edmonds v R [2022] NSWCCA 103 at [25] (Dhanji J) (Macfarlan JA and Rothman J agreeing). See also Secretary, Department of Planning Industry and Environment v Williams [2020] NSWLEC 134 at [44] (Pain J); Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 6) [2020] NSWLEC 68 at [9] (Pepper J).
15. Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4 at [50] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) citing Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 (Smith v The Queen) at [6]-[7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); and Goldsmith v Sandilands (2002) 76 ALJR 1024; [2002] HCA 31 at [2] (Gleeson CJ).
16. (1995) 89 LGERA 79 at [11]-[12] (Hunt CJ of CL) (Grove and Allen JJ agreeing).
17. Johnson v Miller at 483 (Dixon J).
18. (2018) 362 ALR 359; [2018] NSWCCA 202 (Bathurst CJ, Fullerton and Campbell JJ).
19. [2019] NSWLEC 48 (Robson J).
20. (2008) 76 NSWLR 533; (2008) 208 A Crim R 441; [2008] NSWCCA 85 at [53] (Spigelman CJ) (James and Howie JJ agreeing).
21. (2011) 251 FLR 375; [2011] NSWSC 367 at [55] (Simpson J).
22. (1996) 188 CLR 77 at 91; [1996] HCA 26 (Walsh v Tattersall) (Dawson, Toohey, Gaudron, Gummow and Kirby JJ).
23. Tropic Asphalts at [58]-[61] (Bathurst CJ) (Fullerton and Campbell JJ agreeing).
24. Sell & Parker (Robson J) at [40] (Robson J).
25. (2005) 139 LGERA 449; [2005] NSWCCA 157 at [56] (Smart AJ).
26. See Pittwater Council v AI Professional Tree Recycling Pty Ltd (2008) 165 LGERA 1; [2008] NSWLEC 325 (Biscoe J); Lake Macquarie City Council v Australian Native Landscapes Pty Ltd [2015] NSWLEC 92 (Biscoe J); Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2) [2020] NSWLEC 126 (Auen Grain) (Robson J).
27. [2002] NSWLEC 66 at [44] (Lloyd J).
28. Muldrock v The Queen at [27] (French CJ, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
29. Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 (Plath) at [48] (Preston CJ of LEC); Fairfield City Council v Oztech Developments Pty Ltd; Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81 at [57] (Robson J).
30. Markarian v The Queen (2005) 229 CLR 357; [2005] HCA 25 (Markarian) at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ) quoting Tak Fat Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [75] (Gaudron, Gummow and Hayne JJ).
31. R v Peel [1971] 1 NSWLR 247 at 262 (Herron CJ, Manning JA and O'Brien J); Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 (Garrett v Williams) at [89] (Preston CJ of LEC).
32. Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 (Bentley LEC) at [168]-[172] (Preston CJ of LEC).
33. (2010) 172 LGERA 52; [2010] NSWLEC 3 at [65] (Pepper J).
34. [2022] NSWLEC 113 (Crush and Haul) at [118] (Preston CJ of LEC).
35. Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280 at [23] (Preston CJ of LEC).
36. Muldrock v The Queen at [31] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Harrison v Perdikaris [2015] NSWLEC 99 at [49] (Preston CJ of LEC); Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; (1993) 82 LGERA 21 (Camilleri's Stock Feeds) at 36 (Kirby P, Campbell and James JJ agreeing).
37. [2020] NSWLEC 113 (Moore J).
38. [2023] NSWLEC 18 at [137] (Pritchard J).
39. Cited in Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Salvestro [2023] NSWLEC 423 at [177] (Pepper J).
40. [2012] A Crim R 460; [2012] NSWCCA 44 at [86]-[124] (Johnson J) (McClellan CJ at CL and Rothman J agreeing).
41. Environment Protection Authority v Zoya Investments Pty Ltd [2022] NSWLEC 149 at [85], [150]-[166] (Moore J).
42. Harris v Harrison (2014) 86 NSWLR 422 at 447; (2014) 201 LGERA 277; [2014] NSWCCA 84 (Harris v Harrison) at [92]-[98] (Simpson J) (Hall and Schmidt JJ agreeing).
43. Plath at [98] (Preston CJ of LEC).
44. Water NSW v Barlow (2019) 244 LGERA 1; [2019] NSWLEC 30 (Water NSW v Barlow) at [57] (Preston CJ of LEC).
45. [2021] NSWLEC 57 at [46] (Pain J).
46. Hardt v Environment Protection Authority (2007) 156 LGERA 337 at 345; [2007] NSWCCA 338 at [30] (Giles JA) (Grove and Harrison JJ agreeing).
47. See Plath (Preston CJ of LEC).
48. According to the WARRP data, Budget Waste was below 5,000t at the end of December 2022.
49. (2006) 148 LGERA 299; [2006] NSWLEC 419 at [145]-[147] (Preston CJ of LEC).
50. [2023] NSWLEC 120 at [39]-[44] (Duggan J).
51. Camilleri's Stock Feeds at 701 (Kirby P).
52. ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 (ACE Demolition) at [65] (Leeming JA) (Garling and Cavanagh JJ agreeing).
53. Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 (Axer) at 366 (Badgery-Parker J) (Mahoney JA and Finlay J agreeing).
54. See eg EPA v Snowy Hydro at [145]-[151] (Biscoe J).
55. (2005) 65 NSWLR 740; [2005] NSWCCA 145 at [29] (Howie J) (Grove and Hall JJ agreeing).
56. [2020] NSWLEC 80 at [118] (Pepper J); cited in Chief Executive of the Office of Environment and Heritage v Turnbull [2023] NSWLEC 137 at [41] (Duggan J). See also Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Henry Payson Pty Ltd [2023] NSWLEC 5 at [197] (Pepper J).
57. Environment Protection Authority v Hughes [2019] NSWLEC 108 at [98] (Pepper J).
58. [2021] NSWLEC 123 at [223] (Pain J).
59. [2022] NSWLEC 60 at [384] (Pepper J).
60. [2000] NSWCCA 394 at [84] (Hulme J) (Wood CJ at CL and Greg James J agreeing).
61. [2006] NSWCCA 143 at [12] (Latham J) (McColl JA and Adams J agreeing); confirmed in Auon v R [2007] NSWCCA 292 at [22] (Hodgson JA) (Hislop J and Latham JA agreeing).
62. (2000) 49 NSWLR 383 at 418; (2000) 115 A Crim R 104; [2000] NSWCCA 294 at [160] (Spigelman CJ) (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing).
63. ACE Demolition at [92]-[103] (Leeming J) (Garling and Cavanagh JJ agreeing).
64. Applied in Environment Protection Authority v Hughes [2024] NSWLEC 91 at [134] (Pepper J).
65. Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68 at [157] (Pritchard J).
66. Veen v The Queen (No 2) (1988) 164 CLR 465 at 472; [1988] HCA 14 (Mason CJ, Brennan, Dawson and Toohey JJ), 485-486 (Wilson J), 490-491 (Deane J), 496 (Gaudron J); Hoare v The Queen (1989) 167 CLR 348 at 354; [1989] HCA 33 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ); R v McNaughton (2006) 66 NSWLR 566; (2006) 163 A Crim R 381; [2006] NSWCCA 242 at [15] (Spigelman CJ, McLellan CJ at CL, Grove, Barr and Bell JJ agreeing).
67. Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [46] (McHugh J).
68. Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [18] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
69. Hili at [48]-[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 (Barbaro) at [40] (French CJ, Hayne, Kiefel and Bell JJ).
70. Barbaro at [41] (French CJ, Hayne, Kiefel and Bell JJ).
71. Hili at [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
72. [2018] NSWLEC 90 at [72] (Preston CJ of LEC).
73. [2012] NSWCCA 236 at [132] (Bellew J) (McClellan CJ of CL and Johnson J agreeing).
74. [2022] NSWLEC 23 at [126] (Duggan J).
75. [2022] NSWLEC 128 (Pepper J).
76. [2024] NSWLEC 10 (Pepper J).
77. EPA v Eveston (No 3) at [104] (Pepper J).
78. Fines Act s 6.
79. Markarian at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ) quoting Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [75] (Gaudron, Gummow and Hayne JJ).
80. (1998) 194 CLR 610; [1998] HCA 57 at [45] (McHugh, Hayne and Callinan JJ).
81. [2015] SASCFC 83 at [31]-[32] (Stanley J) (Gray and Peek JJ agreeing).
82. [2002] NSWCCA 58 at [196], [199]-[200] (Beazley JA, Wood CJ at CL and Sully J).
83. (2006) 145 LGERA 189; [2006] NSWLEC 242 at [196], [199]-[200] (Preston CJ of LEC).
84. [2014] NSWLEC 154 (Boggabri Coal) at [62] (Preston CJ of LEC).
85. [2019] NSWLEC 178 at [84] (Duggan J).
86. [2023] NSWLEC 50 at [143] (Pepper J).
87. Harris v Harrison at [100] (Simpson J) (Hall and Schmidt JJ agreeing).
88. Boggabri Coal at [62] (Preston CJ of LEC). 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: 13 November 2024