Environment Protection Authority v Dib Hanna Abdallah Hanna - [2018] NSWLEC 80 - NSWLEC 2018 case summary — Zoe

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Environment Protection Authority v Dib Hanna Abdallah Hanna

[2018] NSWLEC 80

Land and Environment Court (NSW)|2018-05-14|Before: Preston CJ

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2018-05-14

Before

Preston CJ

Source

Original judgment source is linked above.

Judgment (59 paragraphs)

[1]

Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94 Environment Protection Authority v Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147 Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 2007) Environment Protection Authority v Taylor (No 4) (2002) 120 LGERA 414; [2002] NSWLEC 59 Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 Forsythe (1980) 2 Cr App R (S) 15 Georgopoulos v R [2010] NSWCCA 246 Graham v The Queen [2009] NSWCCA 212 Hardt v Environment Protection Authority (2007) 156 LGERA 337; [2007] NSWCCA 338 Hewitt v R (2007) 180 A Crim R 306; [2007] NSWCCA 353 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Inkson v The Queen (1996) 6 Tas R 1 JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 Josefski v R (2010) 217 A Crim R 183; [2010] NSWCCA 41 King v R [2010] NSWCCA 202 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage (2013) 298 ALR 532; [2013] NSWCCA 114 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Mahdi Jahandideh v R [2014] NSWCCA 178 Majid v R [2010] NSWCCA 121 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Morton v R [2014] NSWCCA 8 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Pfitzner v R [2010] NSWCCA 314 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v A [1999] NSWCCA 61 R v AB [2011] NSWCCA 229; (2011) 59 MVR 356 R v Allpass (1993) 72 A Crim R 561 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Campbell [2014] NSWCCA 102 R v Cotterill [2012] NSWSC 89 R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 R v Dempsey (2002) 127 A Crim R 113; [2002] QCA 45 R v Dodd (1991) 57 A Crim R 349 R v Foster [2001] NSWCCA 215; (2001) 33 MVR 565 R v Geddes (1936) 36 SR (NSW) 554 R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130 R v Holder [1983] 3 NSWLR 245 R v Kilic (2016) 259 CLR 256; [2016] HCA 48 R v KM; R v Linh Van Nguyen; R v John Nguyen; R v John Tran [2004] NSWCCA 65 R v Knight (2005) 155 A Crim R 252; [2005] NSWCCA 253 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Maund (1980) 2 Cr App R (S) 289 R v McGourty [2002] NSWCCA 335 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272 R v Morabito (1992) 62 A Crim R 82 R v Morgan [2014] 1 WLR 3450; [2013] EWCA Crim 1307 R v Nichols (1991) 57 A Crim R 391 R v Pham (2015) 256 CLR 550; [2015] HCA 39 R v Power [1999] NSWCCA 25 R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 R v Rahme (1989) 43 A Crim R 81 R v Rogers (1987) 8 NSWLR 236 R v Rushby [1977] 1 NSWLR 594 R v Scott [2005] NSWCCA 152 R v Stahl [1999] NSWCCA 160 R v Stambolis (2006) 160 A Crim R 510; [2006] NSWCCA 56 R v Sutton [2004] NSWCCA 225; (2004) 41 MVR 40 R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Tuan Anh Tran [2011] NSWSC 1480 R v Weldon; R v Carberry (2002) 136 A Crim R 55; [2002] NSWCCA 475 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 R v Wickham [2004] NSWCCA 193 R v Winchester (1992) 58 A Crim R 345 R v Wisbey [2001] NSWCCA 434 R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 R v Zamagias [2002] NSWCCA 17 Retsos v The Queen [2006] NSWCCA 85 Robinson v Eureka Operations Pty Ltd [2009] NSWSC 784 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 Shoalhaven City Council v Hayes [2018] NSWLEC 65 Smith v The Queen (1991) 25 NSWLR 1 Suleman v R [2009] NSWCCA 70 Sumpton v R [2016] NSWCCA 162 Sun v R [2011] NSWCCA 99 SZ v The Queen (2007) 168 A Crim R 249; [2007] NSWCCA 19 Vaovasa v R (2007) 174 A Crim R 116; [2007] NSWCCA 253 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Wiggins v R [2010] NSWCCA 30 Williams v R [2010] NSWCCA 15 Williams v R [2012] NSWCCA 172 Windle v R [2011] NSWCCA 277 Winkler v Cameron (1981) 33 ALR 663 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Dib Hanna Abdallah Hanna (Defendant) Representation: Counsel: Ms K Stern SC and Mr D Hume (Prosecutor) Mr S Stanton (Defendant)

[3]

Judgment

Mr Hanna is a repeat offender against the Protection of the Environment Operations Act 1997 ('POEO Act'). Over the last 10 years, Mr Hanna has on numerous occasions unlawfully transported and dumped building waste. In doing so, he has committed and been convicted for the waste offences of transporting waste to a place that cannot be used as a waste facility for that waste, contrary to s 143(1) of the POEO Act, and polluting land, contrary to s 142A(1) of the POEO Act. His most recent convictions for these waste offences was on 23 September 2014 when this Court convicted him of two offences contrary to s 143(1) of the POEO Act and two offences contrary to s 142A(1) of the POEO Act: see Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152.
Between November 2015 and January 2016, Mr Hanna committed further waste offences by unlawfully transporting waste to and dumping waste at four separate private properties. Mr Hanna's conduct in transporting waste and dumping waste at each of the four properties involved the commission of offences against s 143(1) and s 142A(1) of the POEO Act.
On 16 November 2016, the Environment Protection Authority ('EPA') prosecuted Mr Hanna for eight offences against s 144AB(2) of the POEO Act for being a repeat waste offender. A person commits an offence against s 144AB if the person is an individual who has been convicted of a waste offence and commits a waste offence on a separate subsequent occasion within five years after that conviction. A waste offence includes an offence against s 142A(1) and s 143(1) of the POEO Act: see s 144AB(1). Mr Hanna has been convicted of a waste offence (the latest being the convictions by this Court on 23 September 2014 for two offences against s 143(1) and two offences against s 142A(1) of the POEO Act) and has committed one further offence against s 143(1) and four further offences against s 142A(1) on separate subsequent occasions between November 2015 and January 2016 (which is within five years after those convictions on 23 September 2014).
Mr Hanna has entered pleas of guilty to five of the eight charges for offences against s 144AB(2) of the POEO Act. Upon conviction of Mr Hanna in respect of these five offences, the EPA has agreed to discontinue the remaining three proceedings for offences against s 144AB(2) of the POEO Act. Although those three proceedings will be discontinued, Mr Hanna has agreed to admit his guilt in relation to committing these three offences and to allow the Court to take these offences into account when sentencing him for the five offences to which he has pleaded guilty.
One of these five offences against s 144AB(2) involves Mr Hanna committing the waste offence of transporting waste to a place that cannot be used as a waste facility, contrary to s 143(1) of the POEO Act. Four of the five offences against s 144AB(2) involve Mr Hanna committing the waste offence of polluting land, contrary to s 142A(1) of the POEO Act. The three remaining offences against s 144AB(2) that will be discontinued involve Mr Hanna committing the waste offence of transporting waste to a place that cannot be used as a waste facility, contrary to s 143(1) of the POEO Act.
A sentence hearing was held on 14 May 2018. The Court's task is to determine and impose sentences for the five offences against s 144AB(2) of the POEO Act.
The relevant maximum penalties for each of the five offences against s 144AB(2) committed by an individual is a fine of $250,000 (being the maximum monetary penalty provided by the POEO Act for the commission of the waste offence against either s 142A(1) or s 143(1) of the POEO Act by an individual) or imprisonment for two years, or both: s 144AB(2).
I have determined, for the reasons I give below, that Mr Hanna should be convicted for each of the five offences against s 144AB(2) and sentenced for all of the five offences to an aggregate term of imprisonment of 3 years with a non parole period of 2 years and 3 months. The term of imprisonment should be backdated, to take into account the time Mr Hanna has spent in custody, so as to be taken to have commenced on 17 April 2018. This means Mr Hanna will be first eligible to be released on parole on 16 July 2020.
I do not consider it is appropriate to impose a fine in addition to a sentence of imprisonment on Mr Hanna. I determine that it is appropriate to make two types of additional orders under Pt 8.3 of the POEO Act, being first an order under s 250(1)(a) that Mr Hanna place an advertisement in specified newspapers and magazines publicising the sentence of the Court for the offences and, secondly, an order under s 245 for the restoration of three of the properties by removal of the waste that was dumped and the disposal of the waste at a waste facility authorised to receive the waste. I consider Mr Hanna should be ordered to pay the EPA's costs of five of the proceedings for offences to which Mr Hanna has pleaded guilty, under s 257B of the Criminal Procedure Act 1986, in an amount to be determined under s 257G of the Criminal Procedure Act.

[4]

The legislative framework for the offences committed by Mr Hanna

The offence against s 144AB of the POEO Act was introduced in 2013 by the Environment Operations Amendment (Illegal Waste Disposal) Act 2013. The Act introduced the new s 144AB and a new (and increased) penalty. Section 144AB(2) provides: "A person commits an offence against this section if the person is an individual who: (a) has been convicted of a waste offence, and (b) commits a waste offence on a separate subsequent occasion within 5 years after that conviction. Maximum penalty: The maximum monetary penalty provided by this Act for the commission of the waste offence by an individual or imprisonment for 2 years, or both".
A "waste offence" is an offence against any of s 120(1) (where waters are polluted by waste), s 142A(1), s 143(1) and s 144(1) of the POEO Act: s 144AB(1).
The waste offences of relevance to the charges against Mr Hanna are the offences against s 142A(1) and s 143(1). Section 142A(1) of the POEO Act provides: "A person who pollutes land is guilty of an offence." The action of polluting land includes causing or permitting any land to be polluted: s 142A(2).
"Land pollution" or "pollution of land" is defined in the Dictionary to the POEO Act to mean: "placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous: (a) that causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial, or (b) that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter, but does not include placing in or on, or otherwise introducing into or onto, land any substance excluded from this definition by the regulations."
Clause 109 of the Protection of the Environment Operations (General) Regulation 2009 prescribes certain matter for the purposes of paragraph (b) of the definition of "land pollution" or "pollution of land", being: "(a) hazardous waste, (b) restricted solid waste, (c) more than 10 tonnes of asbestos waste, (d) more than 5 tonnes of waste tyres or more than 500 waste tyres."
"Asbestos waste" has the same meaning as it has in Sch 1 to the POEO Act (cl 109(2)), namely "any waste that contains asbestos": (cl 50(1) of Sch 1 to the POEO Act).
"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": Dictionary to the POEO Act.
It is a defence in proceedings for an offence under s 142A(1) if the person establishes that: "(a) the pollution was regulated by an environment protection licence held by the person or another person, and (b) the conditions to which that licence was subject relating to the pollution of land were not contravened." (Section 142C of the POEO Act.)
Section 143(1) provides: "If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported: (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence."
"Waste" is defined in the Dictionary to the POEO Act to include: "(a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or (e) any substance prescribed by the regulations to be waste."
For the purposes of para (e) of this definition of waste, cl 6(2) the Protection of the Environment Operations (Waste) Regulation 2014 (NSW) ('the Waste Regulation') prescribes certain substances as "waste".
The defendant bears the onus of proving that the place to which the waste was transported can lawfully be used as a waste facility for that waste: s 143(2) of the POEO Act.
It is a defence in any proceedings for an offence under s 143(1) if the defendant establishes that: "(a) an approved notice was, at the time of the alleged offence, given to the defendant by the owner or occupier of the place to which the waste was transported or was displayed at the place, and (b) the approved notice stated that the place could lawfully be used as a waste facility for the waste, and (c) the defendant had no reason to believe that the place could not lawfully be used as a waste facility for the waste": s 143(3A) of the POEO Act.
An "approved notice" means a notice, in a form approved by the Environment Protection Authority: "(a) stating that the place to which the notice relates can lawfully be used as a waste facility for the waste specified in the notice, and (b) that contains a certification by the owner or occupier of the place that the statement is correct": s 143(4) of the POEO Act.
However, it is not a defence for the defendant "to establish that the defendant relied on the advice (other than advice in the form of an approved notice) given by the owner or occupier concerned to the effect that the place could, at the time of the alleged offence, be lawfully used as such a waste facility": s 143(3B) of the POEO Act.
It is a defence to any proceedings for an offence under s 143(1) if the defendant establishes that the waste transported by the defendant was not deposited by the defendant or any other person at the place to which it was transported: s 143(3C) of the POEO Act.
Mr Hanna's pleas of guilty to five of the charges for offences against s 144AB(2) admits the essential legal ingredients of the offences. This includes admitting that he has committed the waste offence specified in the charge (four being the offences against s 142A(1) and one being the offence against s 143(1)) within five years after his conviction for an earlier waste offence (being the convictions on 23 September 2014 for two offences against s 142A(1) and two offences against s 143(1) of the POEO Act).

[5]

The conduct of Mr Hanna in arranging the disposal of waste

At all relevant times, Mr Hanna and Mrs Hanna operated a business known as New Line Demolition, Excavation and Tipper Hire ('New Line').
At all relevant times, Mrs Hanna owned two 12 tonne white Volvo tipper trucks, which were registered in NSW in Mrs Hanna's name and displayed the NSW registration plates CD29ZY and CC27RF ('the Two Trucks'). The Two Trucks were used by Mr Hanna to transport, or cause to be transported, unwanted building and demolition materials from building and demolition sites and to other receiving locations across greater Sydney.
Throughout 2015, Mr Hanna carried out, or caused to be carried out, letter box drops in various Sydney suburbs. Copies of the letter box flyer were found at Mr Hanna's house during a search warrant executed in 2016 and were received by various Sydney residents. The letter box flyer stated that: "If you would like some free clean top soil, clay, crushed bitumen or shale delivered to you're [sic] property, Then [sic] I will send a bobcat or excavation machine to level out the loads and land for you. If you are interested call Sam on [a mobile telephone number was identified]. Thank you."
As described for each of the charges below, several Sydney residents seeking clean top soil responded to the flyer by telephoning the mobile telephone number identified in the flyer and speaking to Mr Hanna who initially identified himself as "Sam", but in some cases later identified himself to them as "David", "Dib" or "Dib Hanna". Arrangements were then made by the residents for top soil and similar clean material to be delivered to the residential properties by, or at the direction of, Mr Hanna.
The materials that Mr Hanna delivered or caused to be delivered to the residential properties were discarded, rejected, unwanted, surplus or abandoned and were comprised of soil, tiles, terracotta, terracotta tiles, pipe, rubble, gravelly clay, gravelly sand, gravel, road base gravel, concrete, plastic, metal, wood, ash, sandstone, shale, fibre cement sheeting and asbestos.

[7]

The arrangements for disposal of waste

At all relevant times, Mr Johne Sassine and Mrs Heather Sassine have owned 87 Coobah Road, East Kurrajong ('the East Kurrajong Property (Coobah)') where they live with their family. The property is approximately 10 hectares in size.
In late October or early November 2015, Mr and Mrs Sassine received a letter box flyer identical to that referred to earlier.
At about that time, Mr Sassine rang the mobile telephone number identified in the flyer and spoke to Mr Hanna stating that he wanted some clean top soil for landscaping. Mr Sassine said: "I only want top soil". Arrangements were then made for Mr Hanna to attend the East Kurrajong Property (Coobah).
In early November 2015, Mr Hanna arrived at the East Kurrajong Property (Coobah) with another male. Mr Sassine and Mr Hanna walked around the property and Mr Sassine identified where he wanted the top soil deposited. Mr Sassine said to Mr Hanna: "I want one load to be deposited and, if I am happy with it, I'll be happy to receive further loads".
Mr Hanna subsequently instructed drivers to deposit material at the East Kurrajong Property (Coobah). The truck drivers who deposited waste material at the East Kurrajong Property (Coobah) at the direction of Mr Hanna included Messrs Ferset Dawood and Najman Nagem. No person other than Mr Hanna directed the waste to be deposited at the Property.
On 17 November 2015, the first load of waste material was deposited at the East Kurrajong Property (Coobah) by a truck at the direction of Mr Hanna.
Mr Sassine was initially happy with the truck loads of waste material that were being deposited at the East Kurrajong Property (Coobah) and hence further truckloads of material were deposited up until the end of November 2015.
However, towards the end of November 2015, Mr Sassine noticed that the waste materials being deposited were not what he had asked Mr Hanna to deliver. Mr Sassine saw that the loads comprised clay interspersed with broken brick and tile.
As a result, Mr Sassine contacted Mr Hanna and said words to the effect: "I'm not happy with the material. It is dirty and contains a lot of clay". In response, Mr Hanna told Mr Sassine: "I'll bring you clean soil and a machine to spread it".
Over the next few days, further truckloads arrived and waste materials were deposited at the East Kurrajong Property (Coobah) by or at the direction of Mr Hanna. Those truckloads deposited waste material and were described by Mr Sassine as being "dirty". At that time Mr Sassine again spoke to Mr Hanna and told him "I want you to stop bringing soil onto my property".
Thereafter, no further waste material was deposited at the East Kurrajong Property (Coobah).

[23]

The arrangements for the disposal of waste

At all relevant times, Ms Cheryl Garratt has been the owner of 56 Howes Road, East Kurrajong NSW ('East Kurrajong Property (Howes)'). The property is approximately one acre in size and has been owned by Ms Garratt for the last 14 years.
In October 2015, Ms Garratt received a letter box flyer identical to that referred to earlier.
As Ms Garratt wanted some top soil for an area behind her shed, she rang Mr Hanna on the mobile telephone number identified in the letter box flyer. Ms Garratt and Mr Hanna had a discussion during which Ms Garratt said: "I need some top soil".
On or about 1 December 2015, the Defendant attended the East Kurrajong Property (Howes) with a female who did not exit the vehicle in which they had arrived.
Ms Garratt and Mr Hanna had a conversation to the following effect: Ms Garratt: "Is it good top soil? Mr Hanna: "Yes it is. I'll knock down some of the scruff trees and level it out for you. It will look good."
Ms Garratt walked around the East Kurrajong Property (Howes) with Mr Hanna and identified where she wanted the soil deposited. Mr Hanna said: "I'll spread it and make it look good for free."
On 11 January 2016, Mr Hanna attended the East Kurrajong Property (Howes) to deposit materials there. The Two Trucks (Ms Garratt identified one of the trucks as having licence plate CD292Y) "tipped" their truck loads near a shed located at the East Kurrajong Property (Howes).
The material that was deposited on 11 January 2016 was described by Ms Garratt as being orange coloured clay with sandstone rocks and aggregate. The material was not the top soil that Ms Garratt wanted. At that time, Mr Hanna said to Ms Garratt: "I'll use that for base."
On 12 January 2016, Mr Hanna arrived at the East Kurrajong Property (Howes) with one of his truck drivers and they "tipped" a truck load of waste materials.
On 14 January 2016, Mr Hanna arrived at the East Kurrajong Property (Howes) with one of his truck drivers and they "tipped" a truck load of waste materials.
As a result of the above, Mr Hanna introduced or caused the introduction of the waste materials into or onto the land and caused the materials to be transported to the East Kurrajong Property (Howes) by truck.

[27]

Objective seriousness sets the limits of punishment

The sentence that is to be imposed must reflect (be proportionate to) both the objective gravity or seriousness of the offences committed by Mr Hanna and the personal or subjective circumstances of Mr Hanna as the offender.
The objective seriousness of each offence fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the offence considered in light of its objective circumstances and the objectives of punishment such as retribution and general and individual deterrence: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 472, 485-486, 490-491, 496; Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 at 57-58; Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354; R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15]; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [60]. It fixes the lower limit because the allowance for matters personal to a particular offender cannot produce a sentence which fails to reflect the objective gravity of the offence (R v Dodd (1991) 57 A Crim R 349 at 354; R v Nichols (1991) 57 A Crim R 391 at 395; R v Allpass (1993) 72 A Crim R 561 at 563; R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [156]-[158]; R v Scott [2005] NSWCCA 152 at [15]; and R v McNaughton at [15]) and the objectives of punishment: R v McGourty [2002] NSWCCA 335 at [34]-[35] and see also Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 at [140] and Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 at [46]. The objective circumstances of the offence and the objectives of punishment inform the lower limit of sentencing discretion, a bottom line beneath which a sentence cannot legitimately be set: SZ v The Queen (2007) 168 A Crim R 249; [2007] NSWCCA 19 at [4]-[6] and Graham v The Queen [2009] NSWCCA 212 at [43], [44].
The objective seriousness of an offence is to be assessed without reference to matters that are personal to a particular offender but rather is to be determined wholly by reference to the "nature of the offending": Muldrock v The Queen at [27]. 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 [2012] NSWCCA 172 at [42]. 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: R v Tuan Anh Tran [2011] NSWSC 1480 at [13]; R v Cotterill [2012] NSWSC 89 at [30].
The objective circumstances of relevance to the offences committed by Mr Hanna include: the nature of the offences; the maximum statutory penalty for the offences; the objective harmfulness of the offences, including the harm caused to the environment and to victims; the state of mind of the offender in committing the offences; the offender's reasons for committing the offences; the foreseeable risk of harm by commission of the offences; the practical measures that could have been taken to prevent the risk of harm; and the offender's control over the causes of harm.

[28]

Nature of the offences

The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision, contravention of which constitutes the offence, and its place in the statutory scheme. A proper understanding of the purpose of creating an offence is assisted by consideration of the objects of the statute. A fundamental consideration is the degree to which, having regard to the maximum penalty prescribed by the statute for the offence, the offender's conduct would offend against the legislative objective expressed in the offence: Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [15] and cases therein cited.
The provisions of s 142A(1) and s 143(1) of the POEO Act and their place in the statutory scheme were explained in Bankstown City Council v Hanna at [48]-[55] and [168]-[172]. I adopt without repeating what I said there. To this explanation of ss 142A and 143 needs to be added an explanation of the new provision of s 144AB. The POEO Act was amended to create this new offence, with the more severe penalty of imprisonment for up to two years, to deter and punish repeat waste offenders. In the Second Reading Speech introducing the Protection of the Environment Operations Amendment (Illegal Waste Disposal) Bill 2013, the Minister for the Environment and Minister for Heritage, Ms Robyn Parker said: "I am pleased to introduce the Protection of the Environment Operations Amendment (Illegal Waste Disposal) Bill 2013. The bill makes it clear that this Government will not tolerate serial waste dumpers - those who flout the laws that are there to protect the health of our communities and the health of our environment. I know that the community is with the Government on these changes. We are all sick and tired of people who take the law into their own hands, flout the law, and illegally dump. Illegal dumping is a despicable criminal act. The Government is taking action to ensure that those people's illegal actions are dealt with by application of the full force of the law. The bill provides additional powers to the Environment Protection Authority [EPA]. Under our Government the Environment Protection Authority has been strengthened, and this bill will confer further powers on the authority. The bill will increase sentencing and penalty provisions to enable courts to crack down on illegal waste dumpers and break the business model of organised illegal waste activities. For the information of people who adopt as a business practice doing the wrong thing I point out that there are plenty of people in the waste disposal industry who are capable of running a business within the law and that they are doing so quite successfully. It is a shame for those participants in the industry to see rogue operators who continue to do the wrong thing. However, the illegal dumping of waste is proliferating. The Government intends to stop it, and that is the purpose of the bill. The bill is all about breaking the business model of organised criminal groups who think that they can get away with illegal waste disposal. The Government estimates that each year $100 million is lost to the New South Wales Government from incidents causing significant and long-lasting environmental harm, associated clean-up costs and unpaid waste levies. There is a strong expectation from the community that companies and individuals that are polluting the environment and placing human health at risk as a result of those actions should face heavy penalties. They have been getting away with illegal waste dumping because the fines and penalties for environmental crimes, which we inherited from the previous Government and were imposed by the courts, have been low enough to be regarded by unscrupulous operators as simply a cost of doing business. The cost of fines and penalties was factored into their business model. It has been a case of paying the fine and carrying on with whatever they were doing. … Recently some particularly abhorrent examples showed that some waste operators have no regard for the wellbeing of the environment or the community. The examples include emptying truckloads of asbestos outside preschools and flouting court orders to stop illegally dumping waste on innocent people's private property. Prior to the introduction of this bill some waste operators were serial illegal waste dumpers and they did not face a custodial sentence for their crimes. … The current options available to the courts to penalise both individuals and businesses that break the law do not outweigh the profits that can be made from these unlawful waste-related actions. … By introducing this bill the Government will ensure that sufficient penalties are in place to deter environmental criminals, and courts are empowered to punish them appropriately. … The bill includes a new offence for committing a repeated waste-related offence within a period of five years that may be prosecuted in the Land and Environment Court. Upon conviction of the offender the court may sentence the offender to a term of imprisonment. This will act as a strong deterrent to those offenders who feel that the current fines are too small to warrant changing their unlawful behaviour. This important amendment will apply to specific waste offences regardless of whether that waste is disposed of to land, water or to an unlicensed industrial premises. Recalcitrant illegal waste operators will be put on notice that waterways and land in New South Wales are not dumping grounds. … Indeed, the intention of this bill is to create a meaningful deterrent to the act of illegal dumping. It is an important enhancement of the range of powers available to the Environment Protection Authority and the courts to crack down on illegal waste operations and environmental criminals. In an industry where the monetary incentive to break the law often outweighs the existing penalties, this bill provides a range of strengthened and expanded penalties and sentencing options to seriously deter unscrupulous operators from continuing to commit illegal waste activities. I commend the bill to the House."
Mr Hanna's conduct in transporting waste to the Llandilo Property and polluting the land by depositing waste on the East Kurrajong Property (Coobah), the Llandilo Property, the Wallacia Property and the East Kurrajong Property (Howes) offended against the legislative objectives of ss 142A and 143, as well as s 144AB, of the POEO Act.
Mr Hanna's conduct undermined the integrity of the regulatory scheme requiring application for approval, assessment and approval of activities concerning the transporting and depositing of waste and the pollution of land. The regulatory scheme turns on the licensing of certain premises as being appropriate waste facilities and landfill sites authorised to receive particular types of waste (including asbestos waste) and the transporting of waste to and the depositing of waste at only those licensed premises (and thereby regulating harm to the environment and to human health). Mr Hanna's actions in transporting and depositing waste at unlicensed premises avoided this regulatory scheme and its beneficial protection of the environment and human health.
Mr Hanna's conduct also blatantly flaunted the proscription against repeat waste offending in s 144AB.
The significant degree to which the conduct offended against the objects of the POEO Act and the statutory provisions creating the waste offences and the offence of repeat waste offending and undermined the regulatory scheme increases the objective seriousness of the offences.

[30]

Harm caused by the commission of the offences

The objective seriousness of the offence is affected by the objective harmfulness of the offender's actions. The "extent of the harm caused or likely to be caused to the environment by the commission of the offence" is required to be taken into consideration in imposing a penalty for an offence against the POEO Act: s 241(1)(a) of the POEO Act. "Harm" to the environment is defined in the Dictionary to the POEO Act to include "any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution". The "environment" is defined in the Dictionary to the POEO Act to mean: "components of the earth, including: (a) land, air and water, and (b) any layer of the atmosphere, and (c) any organic or inorganic matter and any living organism, and (d) human-made or modified structures and areas, and includes interacting natural ecosystems that include components referred to in paragraphs (a)-(c)."
The causing of "substantial" injury, emotional harm, loss or damage by commission of the offence is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 ('the Sentencing Act'). In assessing whether an offence caused such substantial consequences for the purposes of s 21A(2)(g), the court can only have regard to the consequences of the offence that were intended or could reasonably have been foreseen: R v Wickham [2004] NSWCCA 193 at [25]; Josefski v R (2010) 217 A Crim R 183; [2010] NSWCCA 41 at [4], [38]-[39].
The prosecutor and Mr Hanna agreed on the facts regarding the harm caused or likely to be caused to the environment by the commission of the offences. The findings below are drawn from the Agreed Statement of Facts.
The deposition of the waste materials at the East Kurrajong Property (Coobah), the Llandilo Property, the Wallacia Property, and the East Kurrajong Property (Howes) has caused degradation of those environments, leading to actual harm, in that at each site: 1. there has been an alteration to the flow of surface water patterns and flow rates in the areas surrounding the waste materials; 2. water quality in the local and downstream environment has been harmed by the surface water runoff from the waste materials; 3. deposition of the waste materials has caused an alteration to the recharge of groundwater to the local environment; 4. water percolating through the fill contained within the waste materials will generate leachate which will enter the soil and deeper groundwater system thereby degrading local groundwater quality; 5. soil below the waste materials will, because of the increased local soil depth, be less well aerated; 6. deposition of the waste materials would have covered and destroyed existing vegetation, including pasture grasses and other ground cover plants; 7. during dry weather, the waste materials will generate dust particulates which will lead to a degradation of local air quality; and 8. introduction of contaminated fill to the East Kurrajong Property (Coobah), the Llandilo Property, the Wallacia Property and the East Kurrajong Property (Howes) has damaged the property on which the fill has been placed due to: 1. the burden that the waste materials cause in terms of immediate environmental and human health risks; and 2. the immediate impacts of modifying the property's topography such that it is more difficult to maintain and "use or enjoy" compared to its prefilling state.
The damage arising out of the actual harm at the East Kurrajong Property (Coobah), the Llandilo Property, the Wallacia Property and the East Kurrajong Property (Howes) is not trivial because each residential premises has been degraded through modification of surface topography, alteration of the surface and groundwater regime, delivery of pollutants to both air and water, and the impact on existing site vegetation.
The deposition of the waste materials at the East Kurrajong Property (Coobah), the Llandilo Property, the Wallacia Property and the East Kurrajong Property (Howes) has caused degradation of those environments, leading to potential harm, in that at each site: 1. soil fauna within the pre-existing soil profile below the waste materials is likely to have been impacted due to changing soil moisture conditions, modifications to soil water chemistry and alterations in soil oxygen conditions; 2. ecosystems found downstream of the waste materials area will be potentially harmed because of the changes to surface and groundwater hydrology and water chemistry; and 3. presence of asbestos within the waste materials presents a potential risk to human health.
The damage arising out of the potential harm at East Kurrajong Property (Coobah), the Llandilo Property, the Wallacia Property and the East Kurrajong Property (Howes) is not trivial because it has the potential to impact on local fauna, downstream ecosystems and on long-term human health.
The deposition of the waste materials at the East Kurrajong Property (Coobah), the Llandilo Property, the Wallacia Property and the East Kurrajong Property (Howes) was of such a volume, consistency and manner as to cause alteration of the environment in that at each site: 1. there have been significant topographic modifications to the pre-fill topography of the site; 2. the volume of waste materials deposited at the site and the manner of deposition has resulted in a surface topography which is inconsistent with the local topography and with the pre-filling surface below the waste materials; 3. the deposition of the waste materials was of such a volume and extent so as to cause alterations to surface water and groundwater hydrological flow regimes; and 4. the deposition of waste materials was of such a volume and extent so as to cause alterations to the quality of surface and groundwater leaving the waste materials area.
The potential consequences of exposure to asbestos in soil include death and serious injury.
It is an agreed fact that, in engaging in the offending the subject of these proceedings, Mr Hanna abused the trust that residential property owners had placed in him. They believed that they were receiving clean top soil for their properties. Instead, Mr Hanna delivered them contaminated and dangerous soil.
It is also an agreed fact that Mr Hanna's offending has caused significant distress and cost to the owners of the residential properties at which he caused contaminated soil to be deposited.
The harm caused to the environment and to the owners and occupiers of the land on which Mr Hanna deposited the waste has not been remedied or repaired. Mr Hanna has not taken any steps to remove the contaminated soil delivered or caused to be delivered to the four residential properties. The owners of the East Kurrajong Property (Coobah) have, at their own cost, arranged for the removal of the contaminated soil from their property.
I find, beyond reasonable doubt, that Mr Hanna's actions in depositing contaminated soil on the four properties the subject of these proceedings have, therefore, caused or were likely to cause harm to the environment of and around the four properties as well as exposed the occupants of the four properties to the risk of harm to their health. I find, beyond reasonable doubt, that the harm to the environment of and around the four properties, including to the health of the occupants of these properties, caused by the commission of the offences was intended and could reasonably have been foreseen by Mr Hanna. Such harm is "substantial" and an aggravating factor under s 21A(2)(g) of the Sentencing Act.

[31]

Mr Hanna's state of mind in committing the offences

The waste offences against ss 142A(1) and 143(1) of the POEO Act, and the offence of repeat waste offending under s 144AB(2) of the POEO Act, are strict liability offences. Nevertheless, subject to R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 considerations, the state of mind of an offender in committing the offences can have an effect of increasing the seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed. Offences committed deliberately are more serious than offences committed by inadvertence and error: see Plath v Rawson at [98] and cases therein cited. That committing a strict liability offence with a heightened state of mind can increase the objective seriousness of the offence has been recognised and applied to waste offences against s 144(1) of the POEO Act (see Hardt v Environment Protection Authority (2007) 156 LGERA 337; [2007] NSWCCA 338 at [53]) and ss 142A(1) and 143(1) of the POEO Act (see Bankstown City Council v Hanna at [70]-[79]).
A large measure of premeditation or planning will make an offence more serious than if it is committed on the spur of the moment: R v Morabito (1992) 62 A Crim R 82 at 86; R v Dempsey (2002) 127 A Crim R 113; [2002] QCA 45 at [10].
I find, beyond reasonable doubt, that Mr Hanna's commission of the offences was premeditated or planned. Mr Hanna's business involved the transporting and depositing of waste at places that could not lawfully be used as a waste facility. Mr Hanna prepared and distributed the flyer offering to deliver and deposit fill on private properties that were not licensed to receive the fill. On receiving inquiries from owners of land in response to his flyer, Mr Hanna inspected the land and entered an arrangement with the land owners for the delivery and depositing of fill. Mr Hanna was aware of the volume and nature of the fill materials that he directed to be delivered and deposited at the properties. The conduct that constituted the offences was part of a systematic business of collecting and depositing soil.
I find, beyond reasonable doubt, that Mr Hanna deliberately transported waste to and deposited waste at the four properties, which were places that could not lawfully be used as waste facilities, and deliberately did the acts that polluted the land at those properties, with knowledge that his conduct was unlawful. Mr Hanna has been issued multiple penalty notices and convicted and punished multiple times for waste offences against s 143(1) and s 142A(1) of the POEO Act involving the transporting and depositing of waste, including the four offences for which he was convicted and punished in Bankstown City Council v Hanna. The lengthy reasons for sentence in those proceedings clearly articulated what the law required in transporting and disposing of waste. Mr Hanna can have been under no doubt at all that it was unlawful to transport waste to, and deposit waste at, a place that cannot lawfully be used as a waste facility.
I also find, beyond reasonable doubt, that Mr Hanna was aware that the waste he was causing to be transported and deposited on the four properties would or might cause harm to the environment and human health. An agreed fact is that Mr Hanna was aware that the soil that he collected and deposited was or might be contaminated and, in particular, that it did or might contain asbestos. Mr Hanna was also aware that the soil, once deposited, would or might cause a risk of harm to the environment and to human health. With that knowledge, Mr Hanna nevertheless chose to cause the soil to be deposited on the residential properties.
Mr Hanna's intentional commission of the offences with knowledge of their illegality and their likely consequences increases the objective seriousness of the offences.

[36]

Other potential aggravating factors

The prosecutor submitted that the offences committed by Mr Hanna involved five other aggravating factors under s 21A(2) of the Sentencing Act.
First, the offences were committed without regard to public safety (s 21A(2)(i)). It was an agreed fact that Mr Hanna was aware that the soil that he collected and deposited was or might be contaminated and, in particular, that it did or might contain asbestos. Mr Hanna was also aware that the soil, once deposited, would or might cause a risk of harm to the environment and to human health. With that knowledge he nevertheless chose to cause the soil to be deposited on the residential properties.
I do not consider that this conduct of Mr Hanna engages the aggravating factor in s 21A(2)(i). As Basten JA noted in Elyard v R [2006] NSWCCA 43; (2006) 45 MVR 402 at [12]: "Where the offence is of a kind which, objectively or abstractly, reflects a policy of prohibiting conduct which disregards public safety, it will be necessary, in order to engage the aggravating factor, to find some aspect of the specific conduct in question which goes beyond the objective element or underlying policy."
The waste offences against s 142A(1) and 143(1), and the offence of repeat waste offending under s 144AB(2) of the POEO Act, operate to prohibit the unlawful transportation and depositing of waste at a place that is not licensed and equipped to safely receive and store that waste and thereby prevent the pollution of land. Hence, the offences reflect a policy of prohibiting conduct which disregards the health and safety of the public and the environment.
Mr Hanna's conduct in committing the offences, by transporting and depositing waste at places that could not lawfully be used as a waste facility for that waste and thereby polluting the land, did not go beyond the objective elements and underlying policy of the offences.
Secondly, the prosecutor submitted that Mr Hanna, in committing the offences, abused a position of trust in relation to the owners and occupiers of the properties on which he deposited the waste (s 21A(2)(k)). It was an agreed fact that Mr Hanna abused the trust that residential property owners had placed in him. They believed that they were receiving clean top soil for their properties. Instead, Mr Hanna delivered them contaminated and dangerous soil.
I do not consider that Mr Hanna's conduct engages the aggravating factor in s 21A(2)(k). This factor does not extend the concept of breach of trust beyond the common law as it was understood at the time s 21A(2)(k) was created: Suleman v R [2009] NSWCCA 70 at [26]. For a relationship of trust to exist there must be a special relationship between the victim and offender at the time of offending which "transcends the usual duty of care arsing between persons in the community in their everyday contact or their business and social dealings": Suleman v R at [22]. The position of trust does not arise simply from a subjective state of mind of one of the members of the relationship. For example, it is not enough that the victim trusted that the offender would or would not act in a particular way: Suleman v R at [23]. The common law does not recognise, for the purposes of sentencing, that a position of trust arises simply because the two persons are involved in a commercial relationship: Suleman v R at [25].
In this case, Mr Hanna and each of the owners of the four properties were in a commercial relationship concerning an agreement for delivery and depositing of fill on the properties. Although the land owners did not pay Mr Hanna for the fill, both Mr Hanna and the land owners benefitted financially from the agreement. Mr Hanna benefitted by disposing of the waste that he had been paid to remove from another property without having to pay tipping fees at licensed waste facilities. The land owners benefitted by not having to pay the costs of the fill and the delivery, depositing and spreading of the fill. A term of each agreement was that the fill be clean. Mr Hanna breached each agreement by delivering fill that was not clean. That commercial relationship between Mr Hanna and the land owners did not give rise to Mr Hanna holding a position of trust for the purposes of sentencing. Mr Hanna may have breached his agreement with the land owners by committing the offences but he did not abuse any position of trust in relation to the land owners.
Thirdly, the prosecutor submitted that the owners of the land on which Mr Hanna deposited the contaminated soil were vulnerable (s 21A(2)(l)). The land owners were dependent on Mr Hanna delivering clean fill and had no means of controlling or checking that the fill deposited by Mr Hanna was clean.
I do not consider that Mr Hanna's conduct engages the aggravating factor in s 21A(2)(l). Section 21A(2)(l) is concerned with the vulnerability of a particular class of victims who need to be especially protected because they are vulnerable to criminal offences generally or a criminal offence of a particular type: R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 at [25], [26] and Betts v R [2015] NSWCCA 39 at [29]. It is the fact of the victim's vulnerability which aggravates the offence: Sumpton v R [2016] NSWCCA 162 at [147]. Section 21A(2)(l) "looks to the circumstances of groups or classes of victims inherent in their situation or characteristics as such divorced from any actions of an offender": Betts v R at [29].
The land owners who entered into a commercial arrangement with Mr Hanna for the delivery and depositing of fill on their land did not fall into a class of persons who would be considered vulnerable for the purposes of sentencing. Any owner of land who enters into a commercial arrangement for the delivery of materials to the land is dependent on the supplier performing in accordance with the arrangement by supplying the agreed materials. There is no particular weakness or vulnerability in land owners to criminal offences generally or a criminal offence of a particular type, such as waste offences.
Fourthly, the prosecutor submitted that Mr Hanna's offending involved multiple victims and a series of criminal acts (s 21A(2)(m)). It is an agreed fact that Mr Hanna's offending was part of a systematic business of collecting and depositing contaminated soil.
I do not consider that the aggravating factor in s 21A(2)(m) is engaged. The 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": R v Tadrosse at [29]. In Mr Hanna's case, he is charged with multiple offences (eight charges but he has pleaded guilty to five charges) and they indicate that there are multiple victims (including the owners and occupiers of the four properties at which Mr Hanna deposited waste) and a series of criminal acts (the multiple acts of transporting and depositing waste at the four properties). However, Mr Hanna is to be sentenced for each of the offences to which he has pleaded guilty and the fact that there are multiple victims and multiple acts of criminality will be addressed by the sentences to be imposed for each of those offences, in accordance with the principle of totality. In these circumstances, "it is illogical to take into account, where there are multiple offences charged, that it is an aggravating factor relevant to each offence that there is a series of criminal acts disclosed by the offences before the court": R v Tadrosse at [28].
Fifthly, the prosecutor submitted that Mr Hanna's offending was part of a planned or organised criminal activity (s 21A(2)(n)). The prosecutor noted that other persons were involved, namely the drivers of the trucks that transported and deposited the waste at the properties. The offending was pre-meditated and involved an initial site inspection followed by the transportation and depositing of multiple loads of waste.
I consider that this factor in s 21A(2)(n) is engaged but I have already taken it into account when considering Mr Hanna's state of mind and reasons for committing the offences. The offences committed by Mr Hanna were part of a more extensive criminal undertaking: Hewitt v R (2007) 180 A Crim R 306; [2007] NSWCCA 353 at [25]; Williams v R [2010] NSWCCA 15 at [20]. Mr Hanna's business of transporting and disposing of waste materials depended on avoiding paying fees for the disposal of waste. This was achieved by transporting waste to and depositing waste at places that could not be lawfully used as a waste facility. The offences committed by Mr Hanna, which are the subject of these proceedings, were carried out in the course of Mr Hanna's business. As the parties agreed, Mr Hanna's offending was part of a systematic business of collecting and depositing contaminated soil.
As I have noted, however, I already have taken this factor, that the offences were part of a planned or organised criminal activity, into account. Care needs to be taken to avoid double counting of factors that increase the objective seriousness of the offences.

[39]

Mr Hanna's record of previous convictions

Mr Hanna has a long record of previous convictions and penalty notices for offences against s 143(1) and s 142A(1) of the POEO Act. This record was summarised in Bankstown City Council v Hanna at [93] to which is to be added the convictions for the two offences against s 143(1) and the two offences against s 142A(1) of the POEO Act in that case. The fact that an offender has a record of prior convictions can be an aggravating factor: see s 21A(2)(d) of the Sentencing Act. However, the Court is not to have "additional regard" to any aggravating factor in s 21A(2) in sentencing for an offence if it is an element of the offence: see s 21A(2).
This prohibition seeks to avoid the risk of "double counting" in identifying the appropriate sentence by taking a factor into account because it is an element of the offence but then taking it into account again as an aggravating factor. Difficulties can arise in applying the prohibition in s 21A(2) where there are differences in language between the elements of an offence and the statement of aggravating factors in s 21A(2) of the Sentencing Act. Basten JA held in Elyard v R at [10] that: "As a matter of principle, it follows that characteristics of an element of an offence should also not be treated as aggravating factors if they merely reflect the policy underlying the offence".
The offence against s 144AB of the POEO Act involves the offender repeatedly committing waste offences. An element of the offence against s 144AB(2) is the commission of a waste offence (such as the offences against s 142A(1) and s 143(1) of the POEO Act) within five years of being convicted of a waste offence. Having a record of at least one previous conviction for a waste offence within five years of the commission of another waste offence is therefore an element of the offence against s 144AB(2).
In these circumstances, a court sentencing a repeat waste offender for an offence against s 144AB(2) is not to have additional regard to the fact that the offender has a record of previous convictions for waste offences within five years of the commission of the offence against s 144AB(2) for which the offender is being sentenced. The Court could, however, have regard to an offender's record of previous convictions for offences other than waste offences and for waste offences for which the offender was convicted more than five years before the commission of the offence against s 144AB(2) for which the offender is being sentenced.
In Mr Hanna's case, this means that the Court is not to have regard to Mr Hanna's convictions for waste offences within five years of Mr Hanna committing the current waste offences that result in Mr Hanna committing the offences against s 144AB(2) for which he is to be sentenced. These current waste offences were committed between November 2015 and January 2016. This means that the Court should not have additional regard to convictions for waste offences after November 2010. Convictions for waste offences in this period are four convictions by this Court in Bankstown City Council v Hanna on 23 September 2014 for offences against s 142A(1) and s 143(1) of the POEO Act and the conviction by the Local Court on 3 June 2014 for an offence against s 143(1)(a) of the POEO Act. The Court can, however, have regard to the four convictions of this Court on 23 June 2010 for offences against s 143(1) of the POEO Act and the convictions by the Local Court on 2 September 2009 for three offences against s 143(1)(a) of the POEO Act and on 29 April 2010 for one offence against s 143(1)(a) of the POEO Act.
Care needs to be taken in how the Court has regard to the previous convictions (being convictions to which it can have regard under s 21A(2) of the Sentencing Procedure Act). These previous convictions do not form part of the objective circumstances of the latest offences committed by Mr Hanna. The boundaries of a proportionate sentence are set by the objective circumstances of the particular offences for which the offender is to be sentenced, which do not encompass prior convictions: R v McNaughton at [24], [63], [70]-[72], [76], [81]. Nevertheless, prior convictions can still legitimately be taken into account in fixing where, within the boundary set by the objective circumstances of the offences for which the offender is to be sentenced, the sentence should lie: R v McNaughton at [26]. A significant record of prior convictions can be taken into account as an aggravating factor: s 21A(2)(d) of the Sentencing Act. Prior criminality is relevant to show whether the latest offence is an uncharacteristic aberration or whether the offender has manifested a continuing attitude of disobedience to the law. If so, the purposes of retribution, deterrence and protection of society may all indicate a more severe penalty is warranted: Veen v The Queen (No 2) at 477; R v McNaughton at [26]-[34].
Prior convictions are also relevant to the purposes of sentencing, particularly individual deterrence. Punishment may need to be increased for persistent offenders, both in terms of type (such as imposing a custodial sentence if non-custodial sentences have failed to deter in the past) and severity of sentence (such as the quantum of fine or the length of custodial sentence). In such circumstances, the main determinant of sentencing would be the offender's propensity to re-offend and the sentence would need to be especially calculated to deter the individual offender involved from re-offending.
In this case, Mr Hanna's record of previous convictions for waste offences imposed more than five years before the commission of the current offences against s 144AB(2) indicate that more serious penalties for the current offences are warranted to achieve the purposes of retribution, deterrence (particularly individual deterrence) and protection of society.

[40]

Mr Hanna's pleas of guilty

Mr Hanna has pleaded guilty to the offences, a fact that the Court is required to take into account: s 21A(3)(k) and s 22(1)(a) of the Sentencing Act. A plea of guilty has utilitarian value to the criminal justice system. A court takes account of the utilitarian value of the plea of guilty by imposing a lesser penalty than it would otherwise have imposed: s 22(1). However, a lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence: s 22(1A).
In determining the extent of any discount that should be given for a plea of guilty, the court is required to consider when the offender pleaded guilty or indicated an intention to plead guilty: see s 22(1)(b). As a general rule, the earlier the plea, the greater the discount while the later the plea, the lesser the discount: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [154], [155], [160]; R v Stambolis (2006) 160 A Crim R 510; [2006] NSWCCA 56 at [8]-[13]; R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32]; R v AB [2011] NSWCCA 229; (2011) 59 MVR 356 at [2], [3]; Morton v R [2014] NSWCCA 8 at [32]-[35].
In this case, there were delays in Mr Hanna indicating that he would plead guilty and in entering the pleas of guilty to five of the charges. The summonses commencing the eight proceedings were filed on 16 November 2016 and Mr Hanna did not indicate to the Court that he intended to plead guilty to the charges in five of the proceedings until 22 December 2017 (when he applied for a bail variation) and did not formally enter pleas of guilty to those five charges until 2 February 2018. The procedural history concerning this delay is as follows.
When these proceedings were commenced, the Court made orders under s 246(1)(a) of the Criminal Procedure Act requiring Mr Hanna to appear to answer to the charged offences. There was an irregularity in the s 246(1)(a) orders in that they did not specify the date on which Mr Hanna was to appear. On 14 January 2017, the Defendant was personally served with the summonses (which did specify the return date) and the irregular orders (which did not specify the return date).
On 3 April 2017, the Court made a further order (not subject to any irregularity) that Mr Hanna attend the Court on 13 June 2017 to answer the charges. On 25 May 2017, that order was personally served on Mr Hanna. Mr Hanna did not appear in Court on 13 June 2017 and on that date the Court issued an arrest warrant pursuant to s 246(1)(b) of the Criminal Procedure Act 1986. The proceedings were adjourned to 1 August 2017, on which date Mr Hanna did not appear.
There were delays in enforcing the bench warrant issued by the Court on the part of the Victorian Police on Mr Hanna in Harkness in Victoria where Mr Hanna's family home is located.
On 5 September 2017, Mr Hanna was arrested in Victoria and was extradited to NSW on 6 September 2017. On 7 September 2017, Mr Hanna was brought before the Court and he entered a plea of not guilty to each of the charges. On that day, he did not apply for bail and was remanded in custody. The proceedings were adjourned to 13 September 2017. A further adjournment was sought by Mr Hanna's legal representative on 12 September 2017 to allow Mr Hanna time to consider his position. The proceedings were adjourned to 27 September 2017. On 25 September 2017, Mr Hanna sought a further adjournment to enable him to continue reviewing the evidence. The Court made orders in Chambers adjourning the matter to 18 October 2017.
On 18 October 2017, Mr Hanna applied for and was granted bail subject to conditions, including a requirement that he reside in NSW. Counting both the day on which he was arrested and the day on which he was released on bail, Mr Hanna spent 44 days in custody from the time of his arrest to the time of his release on bail.
Also on 18 October 2017, the matter was adjourned to 15 December 2017. On 15 December 2017, the parties sought an adjournment to allow the parties further time to discuss their positions. The proceedings were adjourned to 2 February 2017.
On 21 December 2017, the proceedings were relisted on 22 December 2017 to enable Mr Hanna to vary his bail conditions to allow him to travel to Victoria to spend the holiday season with his family. On 22 December 2017, the Court varied Mr Hanna's bail conditions. On that date, the legal representative for Mr Hanna indicated to the Court that Mr Hanna intended to enter guilty pleas to five of the eight charges on the basis that the Prosecutor agrees not to pursue the remaining three charges. The proceedings were adjourned to 2 February 2018.
On 2 February 2018, Mr Hanna formally entered a plea of guilty to five of the eight charges, being the charges in proceedings nos. 2016/344029, 2016/344031, 2016/344032, 2016/344033, and 2016/344035. Upon conviction of Mr Hanna in respect of these charges, the Prosecutor agreed that it would discontinue the remaining three proceedings, namely nos. 2016/344030, 2016/344034, and 2016/344036.
Although Mr Hanna did not plead guilty at the earliest available opportunity, the parties agree that he did plead guilty at a reasonably early opportunity and before the matter was fixed for hearing. By doing so, Mr Hanna has saved the court and the prosecutor significant expense and time. A contested hearing for these proceedings would likely have taken at least four weeks.
In these circumstances, I consider Mr Hanna should be afforded a significant, but not the maximum, discount for the utilitarian value of his pleas of guilty to the criminal justice system. I consider a discount of 20% is appropriate.

[41]

Mr Hanna's limited remorse

Apart from the utilitarian value of a plea of guilty, genuine contrition and remorse of an offender is a further mitigating factor. However, s 21A(3)(i) of the Sentencing Act states that remorse by the offender for the offence will only be a mitigating factor, 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)"
The existence of genuine contrition and remorse is also relevant to the weight to be given to individual deterrence and the prospects of rehabilitation of the offender: R v Thomson; R v Houlton at [116]. Contrition by an offender can be associated with insight by the offender into the reasons for, or factors contributing to, the offending conduct. If an offender has insight into the offending conduct, there is a reduced risk of re-offending and a reduced need for a sentence to be imposed for the purpose of individual deterrence: R v Wisbey [2001] NSWCCA 434 at [31] and Plath v Rawson at [158].
Mr Hanna has not said that he was sorry or remorseful for what he did in committing the offences. Mr Hanna has not provided evidence that he has accepted responsibility for his actions or acknowledged any harm caused by his actions or made reparation for such harm.
The requirement in s 21A(3)(i) of the Sentencing Procedure Act that an offender "provide" evidence of remorse does not require the offender to "give" evidence before a court can make a finding that the offender is remorseful (see Butters v R [2010] NSWCCA 1 at [17]). If an offender does not give evidence of remorse, however, there must be some other evidence of the offender's remorse before the court, from which the court can make a finding that the offender is remorseful for committing the offence. An example might be where the offender expressed remorse to a psychologist or psychiatrist or when interviewed by the police or investigators from the relevant regulatory authority (see Pfitzner v R [2010] NSWCCA 314 at [33] and Sun v R [2011] NSWCCA 99 at [31]). A sentencing court can be cautious about the weight to be given to an offender's unverified statement of remorse when no direct evidence of remorse is placed before the court: R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 at [58], [59], [79]; Sun v R at [31].
For these offences, however, Mr Hanna has not provided any direct evidence of his remorse for committing the offences and causing the consequences, either by giving evidence himself at the sentence hearing or by reference to other documents or reports recording Mr Hanna expressing remorse for committing the offence and causing the consequences.
Mr Hanna's counsel submitted that Mr Hanna's pleas of guilty to five of the eight charges and his agreement that he committed the other three charges that will not be pressed by the prosecutor and that the Court can take into account, rather than disregarding, these three charges in assessing the totality of the criminality involved, is indicative of "real and very genuine remorse".
As I have found, Mr Hanna's pleas of guilty to five charges have utilitarian value to the criminal justice system, but by themselves are not necessarily indicative of his remorse for committing the offences. It is true that a plea of guilty to an offence "is, as a matter of fact, an acceptance or acknowledgement of guilt for the offence". As was noted by Adams J in Georgopoulos v R [2010] NSWCCA 246 at [10]: "It follows that the plea of guilty is, inherently, 'evidence that…[the offender] has accepted responsibility for his or her actions', the only relevant actions being those actions which gave rise to the offence. Similarly, where those actions have caused injury or loss, a plea which expressly or by necessary implication refers to such consequences, must logically constitute an acknowledgement of those consequences. The presence of these two factors provides some evidence of remorse. But it might not be persuasive evidence, depending on the circumstances."
Howie AJ, with whom Allsop P agreed, held at [49] that: "In my opinion a plea of guilty may by inference amount to evidence of remorse for the purpose of the section [s 21A(3)(i)] but it will rarely be sufficient to meet the pre-conditions for it to be used as a mitigating factor. The plea is simply an admission by the offender of the facts that form the elements of the offence…But apart from its utilitarian value, I have difficulty understanding how a plea of guilty alone mitigates an offence where, as is now the case under the [Sentencing] Act, the offender must persuade the court by evidence that he, or she, is truly remorseful. In any event, in the present case, the plea of guilty was not evidence of remorse where the offender had otherwise shown no remorse."
The reason why an offender pleads guilty, although not qualifying the legal effect of the plea of guilty, is significant in assessing the extent of remorse indicated by the plea of guilty and hence the plea's significance as a mitigating factor. An offender might plead guilty to an offence for a variety of reasons other than that the offender feels remorse for committing the offence and causing any consequences. An offender might be motivated to plead guilty because he or she was caught "red-handed" in committing the offence or because, faced with overwhelming evidence of guilt, of the inevitability of being convicted for the offence. A plea of guilty in such circumstances might not provide evidence of remorse (see R v Winchester (1992) 58 A Crim R 345 at 350; R v Power [1999] NSWCCA 25 at [21]; R v Thomson; R v Houlton at [137]; R v Sutton [2004] NSWCCA 225; (2004) 41 MVR 40 at [12]; Majid v R [2010] NSWCCA 121 at [48]; Windle v R [2011] NSWCCA 277 at [46], [47]) or evidence that established "to the necessary standard that the [offender] was in fact remorseful to any significant degree - that is to any extent that justified giving it any mitigating effect" (Georgopoulos v R at [14]).
Mr Hanna's pleas of guilty to five charges and admission that he committed the offences in the other three charges provides some evidence that he acknowledges that he committed the offences and, to some extent, that he accepts responsibility for the actions that gave rise to the offences. Four of the five charges to which Mr Hanna has pleaded guilty are for offences against s 142A(1) of the POEO Act of polluting land. Mr Hanna's pleas of guilty to these offences to some extent acknowledges the consequence inherent in committing the offence of causing pollution of land. There is, however, no other evidence of Mr Hanna's remorse. Mr Hanna was faced with overwhelming evidence of guilt and his guilty pleas might have resulted from a recognition of the inevitable.
In these circumstances, Mr Hanna's pleas of guilty to five offences might provide some evidence of remorse, but without more, cannot be considered to be persuasive evidence that Mr Hanna is remorseful to any significant degree, that is, to any extent that justifies giving it any mitigating effect.

[42]

The likelihood of Mr Hanna reoffending

A mitigating factor to be taken into account in determining the appropriate sentence is if the offender is unlikely to re-offend: s 21A(3)(g) of the Sentencing Act. In Mr Hanna's case, I cannot so conclude.
In sentencing Mr Hanna for the offences he committed in Bankstown City Council v Hanna, I found that:

Mr Hanna has persistently and habitually offended throughout the whole time he has been in the business of transporting waste, undeterred by the multiple penalty notices and the criminal prosecutions, convictions and penalties imposed for, and the court injunctions restraining him from, transporting and disposing of waste unlawfully (at [120]).
Mr Hanna has failed to pay most of the penalty notices, fines and orders for costs and compensation imposed upon him. Clearly, Mr Hanna has not been deterred from continuing to transport and deposit waste unlawfully by the sizeable and ever increasing aggregate of fines and orders made against him (at [121]).
Mr Hanna has not gained any meaningful insight into his wrongdoing from the punishment imposed for his prior offending. In the case of the court convictions and sentences, he has had the benefit of reasons given by the Court explaining the wrongfulness of his conduct, the harmful consequences, and the need not to re-offend. Yet, Mr Hanna has continued to re-offend (at [122]).
Mr Hanna is impervious to the criminal punishment that has been imposed on him in the past. This does not augur well for the future - Mr Hanna may likewise be impervious to the sentences that are imposed for the current offences (at [123]).
The experience of the past, therefore, does not support drawing the inference that Mr Hanna is unlikely to re-offend in the future (at [124]).

Unfortunately, those findings were prescient. Mr Hanna re-offended a little over a year after I sentenced him in that case by committing the further waste offences, which are the subject of the current proceedings, of unlawfully transporting and depositing waste and polluting land.
The fact that Mr Hanna's remorse for the current offences is slight at best, evidenced only by his pleas of guilty, does not support a conclusion that he is unlikely to re-offend in the future. As was said in R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [41], without true remorse it is difficult to see how a finding that an offender is unlikely to re-offend (s 21A(3)(g)) or has good prospects of rehabilitation (s 21A(3)(h)) could be made.
As was the situation in Bankstown City Council v Hanna (see at [126]), Mr Hanna has not provided evidence to the Court of how he intends to operate his business so as not to re-offend in the future. Mr Hanna's conduct that constituted the offences the subject of these proceedings, as well as his conduct that led to him committing previous offences, was part of the systematic business of collecting and depositing waste, including contaminated soil, for financial gain in breach of the law. Mr Hanna's business model is dependent on avoiding paying the expenses, including tipping fees, of transporting and disposing of waste lawfully at approved and licensed waste facilities and landfills. Mr Hanna's failure to explain whether, and if so how, he intends to change the way he conducts his business reveals a lack of insight into his offending behaviour, a lack of genuine remorse, and a lack of a definite proposal to reform and rehabilitate himself as an offender and to protect the public.
In these circumstances, I am not able to find, on the balance of probabilities, that Mr Hanna is unlikely to re-offend. There is a need for the sentences for the current offences to include a significant element of individual deterrence.

[43]

Purposes of sentencing

In fixing the appropriate penalty for the offences, the Court needs to consider the purposes of sentencing relevant to the offences and the offender in this case. Section 3A of the Sentencing Act states that: "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."
Of relevance to the offences committed by Mr Hanna, and Mr Hanna as the offender, are the sentencing purposes that are retributive, preventative and restorative. These were analysed in Bankstown City Council v Hanna at [143]-[155]. I repeat that analysis as it is equally applicable to the current offences committed by Mr Hanna.
As to the retributive purposes, there is a need for the Court, through the sentences it imposes, to achieve the retributive purposes of ensuring that Mr Hanna is adequately punished for each offence, he is held accountable for his actions, and his conduct is denounced. The sentences should accord with the general moral sense of the community in relation to the offences he committed in the circumstances of this case: see R v Geddes (1936) 36 SR (NSW) 554 at 555; R v Nichols at 395; Inkson v The Queen (1996) 6 Tas R 1 at 15-17, 25, 28-32.
The sentence needs to reflect the seriousness with which the informed and responsible public views crimes against the environment, including the offences of land pollution and unlawfully transporting and dumping of waste. Environmental offences are crimes; they are not mere administrative breaches. The community views environmental offences, including land pollution and dumping of waste, particularly if contaminated by hazardous substances such as asbestos, as extremely serious. Statutory criminal provisions express the community's moral condemnation of conduct that causes or is likely to cause harm to the environment and human health: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [143]-[145].
The community's view of the moral reprehensiveness of dumping waste, especially waste containing asbestos, is reflected in the statutory provisions regulating the transporting and disposal of waste in the POEO Act and the regulations made under that Act. The moral reprehensiveness of dumping waste has been emphasised by the legislative amendments in 2013 creating the offence for repeat waste offending and imposing a new penalty of imprisonment for that offence.
The court's duty is to take the community's view of environmental crimes into account in the sentencing process. If the court fails to responsibly discharge the duty that has been entrusted to it by the community, public confidence in the system of justice will be eroded: R v Geddes at 555; Inkson v The Queen at 16; Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21at [46].
The morality of retributive responses results in the principle of proportionality or just deserts or commensurate deserts. This principle is that the severity of punishment should be commensurate with the seriousness of the criminal conduct. Grave (and more morally repugnant) offences merit severe penalties. Minor (and less morally repugnant) misdeeds deserve lenient punishments. Disproportionate penalties, such as severe sanctions for minor wrongs or lenient sanctions for grave wrongs, are undeserved.
The principle of proportionality is concerned with preserving a correspondence between the relative seriousness of the offence and the relative severity of the sentence. The relative seriousness of the offence is affected by the harm done or risked by the offence and the degree of culpability of the offender (see the earlier discussion in the section on the objective seriousness of the offences). The principle of proportionality operates as a limiting, but not a defining, principle in determining the appropriate sentence. The principle limits the maximum and the minimum of the sentence that may properly be imposed: Veen v The Queen (No 2) at 491 and cases earlier referred to in [94] above.
There is another way in which retribution concerns morality. This is to reflect the community's concept of fairness. This concept is applicable to environmental offences where all persons should bear the costs of complying with environmental laws. An offender who operates a business unlawfully, such as unlawfully transporting and dumping waste without incurring the necessary costs and expenses for transporting waste lawfully and depositing it at a place that can lawfully be used as a waste facility, secures an unfair advantage compared to the offender's law abiding competitors who incur the costs and expenses of operating lawfully. The offender has been unjustly enriched. Punishment is necessary to remove that unjust enrichment from the offender and so secure a just equilibrium - a level playing field - on behalf of those who are willing to be law abiding.
In this case, Mr Hanna has obtained an unfair pecuniary advantage. He has evaded paying the expenses involved, for which he was personally responsible, in transporting waste to a place that can lawfully be used as a waste facility, including the tipping fees charged by authorised waste facilities or landfills, that his law abiding competitors are obliged to pay: R v Morgan [2014] 1 WLR 3450; [2013] EWCA Crim 1307 at [43], [47]. Punishment is justified to remove that unfair pecuniary advantage.
As to preventative purposes, the sentence of the court also needs to achieve the preventative purposes of individual and general deterrence. The sentence needs to deter Mr Hanna from committing similar offences in the future. A sentence to achieve individual deterrence needs to take into account Mr Hanna's prior criminality and the type and severity of sentences and penalties imposed for prior offences, and his propensity to re-offend. The Court needs to calculate what sentence is necessary to deter Mr Hanna from re-offending. Mr Hanna is a persistent and habitual offender who lacks genuine remorse for, and insight into, his offending conduct. Punishment for the current offences therefore needs to be changed and increased substantially from that imposed on him for prior offences.
There is also a need for general deterrence. The sentence of the court needs to operate as a powerful factor in preventing the commission of similar offences by other persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. Courts have repeatedly stated, when sentencing for environmental offences, that the sentence of the court needs to be of such magnitude as to change the economic calculus of persons in determining whether to comply with or contravene environmental laws. It should not be cheaper to offend than to prevent the commission of the offence. Environmental crime will remain profitable until the financial cost to offenders outweighs the likely gains by offending.
Where a fine is determined to be an appropriate penalty, the amount of any fine needs to be such as will make it worthwhile to incur the costs of complying with the law and undertaking the necessary precautions. The amount of the fine must be substantial enough so as not to appear as a mere licence fee for illegal activity: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359-360; Environment Protection Authority v Waste Recycling and Processing Corp at [229]. Where imprisonment is determined to be the only appropriate penalty, the term of imprisonment imposes an opportunity cost on the offender, preventing the offender earning income or receiving other remuneration whilst imprisoned. The sentence of the court thereby changes the economic calculus of persons who might be tempted not to comply with environmental laws or not to undertake the necessary precautions. Compliance with the law becomes cheaper than offending. Environmental crimes become economically irrational.
Sentences that have this effect result in persons who carry out activities likely to harm the environment, including causing pollution, internalising the costs of preventing and controlling pollution as well as of any environmental harm itself. This is the polluter pays principle, one of the principles of ecologically sustainable development. Persons who generate pollution and waste should bear the cost of containment, avoidance or abatement: s 6(2)(d)(i) of the Protection of the Environment Administration Act. The sentence of the court should be such as to make it economically rational for such persons to incur the cost of containment, avoidance or abatement of pollution and waste: see Environment Protection Authority v Waste Recycling and Processing Corp at [230]-[232].
To improve the effectiveness of sentences as a deterrent, sentences need to be publicised. Publication of sentences influences the perception of potential offenders in relation to the severity of sentences and the probability of being detected and punished. Where potential offenders are made aware of the substantial risks of being punished, many are induced to desist. Publication also increases the criminal stigma associated with the offence. This increases the deterrent effect for those potential offenders susceptible to criminal stigma, particularly corporate offenders: Environment Protection Authority v Waste Recycling and Processing Corp at [242]. In this case, the prosecutor and Mr Hanna have agreed on the terms of a publication order, under s 250(1)(a) of the POEO Act, that outlines the offences, the offender and the punishment imposed for the offences.
As to restorative purposes, the sentence needs to achieve the restorative purpose of recognising the harm caused or likely to be caused to the victims of the offences committed by Mr Hanna. The victims include the environment, the land owners whose lands were affected by the waste dumping, the particular owners of the East Kurrajong Property (Coobah) who incurred financial cost in cleaning up the waste on their land, and the residents of those lands on which waste was dumped whose health was put at risk by the asbestos in the waste. The sentence of the Court needs to reflect the actual and potential harm caused by commission of the offences to these victims. The sentence of the Court can achieve restorative purposes by the Court ordering, pursuant to s 245 of the POEO Act, Mr Hanna to remove or cause the removal of the waste deposited on three of the properties (the Llandilo Property, the Wallacia Property and the East Kurrajong Property (Howes)) and the lawful disposal of the waste at a waste facility licensed to accept such waste. The owners of the East Kurrajong Property (Coobah) have already removed the contaminated soil from their land at their own cost.

[44]

Synthesising the objective and subjective circumstances to determine the appropriate sentences

The appropriate type of penalty, and the severity of the penalty, for each offence committed by Mr Hanna is to be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of each of the offences and Mr Hanna as the offender: Markarian v The Queen at [37], [39], [66] and [73].
The prosecutor submitted that each of the offences against s 144AB(2) of the POEO Act committed by Mr Hanna is of high objective seriousness, for the reasons given earlier, which is not mitigated to any significant extent by the subjective circumstances of Mr Hanna. The prosecutor submitted that the offences are at the more serious end under the POEO Act. The prosecutor submitted that there is a strong need to impose sentences to achieve retributive sentencing purposes (to ensure that Mr Hanna is adequately punished for the offences, to make Mr Hanna accountable for his actions and to denounce the conduct of Mr Hanna) and preventative sentencing purposes (to deter Mr Hanna and other persons from committing similar offences). Together, these circumstances mean that no penalty other than imprisonment is appropriate for each offence.
The prosecutor also submitted that, to achieve retributive and preventative purposes of sentencing, the Court needs to impose a fine for each offence. The prosecutor noted that the Court can impose both a sentence of imprisonment and a fine for an offence under s 144AB(2) of the POEO Act. To assist in deterrence, the prosecutor submitted that the Court should make a publication order under s 250(1)(a) of the POEO Act. To achieve the restorative purpose of sentencing, the prosecutor submitted that the Court should make an order for restoration of the affected properties under s 245 of the POEO Act.
Mr Hanna accepted that the objective seriousness of each of the offences is high, but not at the upper limit. Mr Hanna's counsel submitted that: "the objective seriousness is…no greater than a position of midway between the mid-range and the ultimate upper extremity. In other words, it is approximately 0.75, to give it significance in terms of its position within the spectrum".
Mr Hanna's counsel did not contest that, having regard to the circumstances of the offences committed by Mr Hanna and Mr Hanna as the offender and the purposes of sentencing, "the threshold has been crossed and imprisonment and/or condign punishment is warranted, if not inevitable". He contested, however, that it would be appropriate to impose a fine in addition to a sentence of imprisonment. Mr Hanna's counsel submitted that to impose a fine in addition to a sentence of imprisonment would be a "crushing sentence". Mr Hanna accepted that it would be appropriate to make a publication order and an order for the restoration of the affected properties.

[45]

Process for considering a sentence of imprisonment

A court considering imposing a sentence of imprisonment on an offender is required to undertake a three stage process: Douar v The Queen (2005) 159 A Crim R 154; [2005] NSWCCA 455 at [69]. Each stage requires the court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender. However, the first stage will principally determine which of the available sentencing alternatives the court should adopt: R v Zamagias [2002] NSWCCA 17 at [23]; Douar v The Queen at [69].
The first stage involves asking and answering the preliminary question of whether there are any alternatives to the imposition of a term of imprisonment. A court must not sentence an offender to imprisonment unless it is satisfied, having considered possible alternatives, that no penalty other than imprisonment is appropriate: s 5(1) of the Sentencing Act. At this first stage of the process, the only consideration is whether a sentence of imprisonment should be imposed, not whether it should be suspended or the manner in which it is to be served: R v Zamagias at [25]; Douar v The Queen at [70].
If the court determines that there is no penalty appropriate other than a sentence of imprisonment, the second stage of the process is for the court to determine what the term of the sentence of imprisonment should be: R v Foster [2001] NSWCCA 215; (2001) 33 MVR 565 at [30]. The determination of the term of imprisonment is to be made without regard to whether the sentence will be served immediately or the manner in which it is served. As explained in R v Zamagias at [26]: "This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed, see s 6 (periodic detention order), s 7 (home detention order) and s 12 [suspended sentences]. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. For example it cannot be increased because it is to be served by way of periodic detention: R v Wegener [1999] NSWCCA 405, or by home detention: R v Jurisic (1998) 45 NSWLR 209 at 249. Nor can the term be reduced because an otherwise appropriate alternative is unavailable: R v T (NSWCCA, 19 June 1995)." See also Douar v The Queen at [71].
Once the term of the sentence has been determined, the third stage is for the court to consider how the sentence should be served, including whether any alternative to full time imprisonment is available in respect of that term and whether any available alternative should be utilised: R v Zamagias at [28]; Douar v The Queen at [72]. The availability of an alternative to full-time detention will generally be governed by the length of the term that has been determined, subject to the restrictions or pre-conditions imposed by the legislature on a particular sentencing alternative, such as in Pt 5 of the Sentencing Act for intensive corrective orders and Pt 6 for home detention orders. As noted in R v Zamagias at [28]: "the appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment: R v Jurisic at 250B". See also Douar v The Queen at [72].
Having determined the appropriate sentence, the court must explain the sentence imposed. This may require some discussion of the alternatives available and the reasons for choosing a particular alternative: R v Zamagias at [30]; Douar v The Queen at [74].

[48]

Application of the totality principle

Because there are multiple offences, and the sentences for the offences involve multiple terms of imprisonment, the totality principle is applicable. The effect of the totality principle is to require the court, which has indicated a series of sentences, each properly calculated in relation to the offence for which it would be imposed, to review the overall sentence that would result from aggregation of the sentences and consider whether the overall sentence is just and appropriate: see R v Holder [1983] 3 NSWLR 245 at 260; Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 62-63; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [49]; Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 at [18].
Where the indicative sentences for multiple offences involve sentences of imprisonment, the assessment of whether the totality of sentences is just and appropriate starts with an assumption that each sentence would be made consecutive, so as to aggregate the terms of imprisonment. In Mill v The Queen at 63, the High Court expressed a preference for the practice of fixing a sentence for each offence and aggregating them before the next step of determining concurrency: see also Johnson v The Queen at [26].
In this case, I have determined indicative sentences of one year imprisonment for each of the five offences, which if served consecutively would result in an aggregate or overall sentence of five years imprisonment.
Amongst the matters a court can consider in assessing whether the totality of the sentences exceeds the totality of criminality are the two matters identified in R v MAK; R v MSK. The first matter is that: "The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence": at [16]. For example, a sentence of five years is more than five times as severe as a sentence for one year: Clinch v The Queen (1994) 72 A Crim R 301 at 306.
The second matter is that: "…an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint.": at [17].
If the totality of the sentences exceeds the totality of criminality involved, the court is to determine what downward adjustment is necessary in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences and impose a just and appropriate sentence for all of the offences: see Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 308. For sentences of imprisonment, this can be done explicitly by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate: Mill v The Queen at 63; Johnson v The Queen at [26]; R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272 at [11], [12]. An alternative is for the court to utilise s 53A of the Sentencing Act to impose an aggregate sentence for all of the offences and hence apply the principle of totality implicitly.
Care must be taken to ensure that any adjustment of individual sentences to apply the principle of totality does not cause the aggregate or overall 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: R v A [1999] NSWCCA 61 at [32]; R v Weldon; R v Carberry (2002) 136 A Crim R 55; [2002] NSWCCA 475 at [46]; R v KM; R v Linh Van Nguyen; R v John Nguyen; R v John Tran [2004] NSWCCA 65 at [55]; Vaovasa v R (2007) 174 A Crim R 116; [2007] NSWCCA 253 at [18]; Robinson v Eureka Operations Pty Ltd [2009] NSWSC 784 at [52]. "Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of discount for multiple offending": R v Knight (2005) 155 A Crim R 252; [2005] NSWCCA 253 at [112]; R v MAK; R v MSK at [18]; R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130 at [46].
I consider that the totality of sentences, if each one year term of imprisonment were to be served consecutively resulting in Mr Hanna serving five years of imprisonment, would exceed the total criminality involved in Mr Hanna's offending. I consider that the best way to make the appropriate downward adjustment in the total sentence is to impose an aggregate sentence of imprisonment under s 53A of the Sentencing Act. I consider that the term of the aggregate sentence for all five offences should be three years, instead of the indicative sentences of imprisonment of one year for each of the five offences. In doing so, I have had regard to the sentencing procedure for imposition of an aggregate sentence explained in JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [34]-[40].
An aggregate sentence of three years is evidently less than a total sentence of five years if the indicative sentences of a one year term of imprisonment for each of the five offences were to be served consecutively, and more than a one year term of imprisonment if the indicative sentences for the five offences were to be served concurrently. In effect, an aggregate sentence of three years involves partial accumulation of the indicative sentences for the five offences.
It would be inappropriate for the indicative sentences of one year imprisonment for each offence to be wholly concurrent. The sentence for any one of the five offences cannot comprehend and reflect the criminality of the other offences: R v MMK at [11], [13]; Cahyadi v The Queen (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27]; R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 at [52(4)]. This conclusion that the sentence for one offence cannot comprehend and reflect the criminality of the other offences derives from the nature and seriousness of each offence and the consequences of each offence. Where offences are discrete and independent criminal acts it is more likely that the sentence for one offence cannot comprehend the criminality of the other offences: Cahyadi v The Queen at [27].
The offences involved four different and unrelated properties. Mr Hanna caused waste to be transported to and deposited at each of the four properties. The transportation and disposal of waste at each property was unrelated, except in so far as it occurred in the course of Mr Hanna's business. Mr Hanna made discrete arrangements with the owner of each property for the transporting and disposing of waste material at the property. The consequences of the disposal of waste material on each property were also different, depending on the waste material delivered, the characteristics of the land and the surrounding environment. Each of the offences also involved medium to high objective seriousness. In circumstances where the five offences committed by Mr Hanna, even if all committed in the course of operating his business, are of a different nature and have different consequences, and each individually involved significant gravity, some accumulation is necessary to address the criminality of all of the offences: R v XX at [52(9)].
Whilst making the sentences for the offences wholly concurrent would fail to reflect the total criminality involved, so too making the sentences wholly cumulative would result in a total sentence that would exceed the total criminality involved. There are some areas of overlap between the offences and the offending of Mr Hanna.
The first area of overlap is between the two offences under s 144AB(2) of the POEO Act committed by Mr Hanna in respect of the Llandilo Property. These two offences result from Mr Hanna committing an offence against s 143(1) of the POEO Act by transporting waste to and depositing waste at the property, which was not a place that could be used as a waste facility, and committing an offence against s 142A(1) of the POEO Act by polluting the land at that property. Mr Hanna should not be punished twice for common elements between the offences against ss 143(1) and 142A(1) and between the resultant offences under s 144AB(2) of the POEO Act: Pearce v The Queen at [40].
I analysed the extent of overlap between the two offences against s 143(1) and s 142A(1) of the POEO Act in Bankstown City Council v Hanna at [168]-[172]. I repeat that analysis here, with suitable adjustment to reflect Mr Hanna's offending with respect to the Llandilo Property.
The two offences against s 143(1) and s 142A(1) of the POEO Act are not conterminous. The offence under s 143(1) is a conduct offence while the offence under s 142A(1) is a result offence.
The offence under s 143(1) defines the external elements to consist only of the conduct of transporting waste to a place that cannot lawfully be used as a waste facility for that waste. In terms, the depositing of any waste transported at the place is not defined to be an external element of the offence. However, it is a defence to that offence if the defendant establishes that the waste transported by the defendant was not deposited by the defendant or any other person at the place to which it was transported: s 143(3C). Hence, Mr Hanna committed the offence under s 143(1) by his conduct of transporting the waste to the Llandilo Property, being a place that cannot lawfully be used as a waste facility for that waste. The conduct of depositing the waste transported at the Llandilo Property meant that Mr Hanna could not rely on the defence under s 143(3C) to the offence.
It is also not an external element of the offence under s 143(1) that any waste transported to and deposited at a place that cannot lawfully be used a waste facility for that waste, cause the result of polluting the land at that place.
In contrast, s 142A(1) is a result offence. The offence under s 142A(1) requires the conduct of polluting land (which includes causing or permitting land to be polluted) to cause the result or consequence of the pollution of the land. In this case, Mr Hanna's acts of placing on the land of the Llandilo Property the waste containing asbestos (the conduct) caused or was likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings and the environment, and actual or potential loss or property damage (the result).
Accordingly, the criminality involved in Mr Hanna's depositing of waste on the Llandilo Property is also not conterminous. The conduct specified for the offences under s 143(1) and s 142A(1) is different. For the offence under s 143(1), the conduct is the transporting of waste to a specified place but with a defence of not depositing the waste transported on the specified place while for the offence under s 142A(1), the conduct is the placing in or on, or otherwise introducing into or onto, land specified matter. The result of the conduct also differs. The offence under s 143(1) does not specify, but the offence under s 142A(1) does specify, that the conduct cause a result (the pollution of land for the offence under s 142(1)).
There is, however, a greater degree of overlap between the offences under s 144AB(2) of the POEO Act that resulted from Mr Hanna committing the waste offences against s 143(1) and s 142A(1) in relation to the Llandilo Property. The element of being convicted of a waste offence not earlier than five years before committing the waste offences in relation to the Llandilo Property is the same. The element of committing a waste offence within five years after that conviction is also the same, although the nature of the waste offence committed is different, s 143(1) for one offence and s 142A(1) for the other offence.
Because there is a material degree of overlap, the totality of the sentences for the two offences under s 144AB(2) for the Llandilo Property exceeds the total criminality involved in Mr Hanna transporting and depositing waste on the Llandilo Property, justifying a downward adjustment.
The second area of overlap derives from the fact that the offences were all committed in the course of Mr Hanna operating his business of transporting and depositing waste. It is true, as I have found earlier, that each of the offences involved discrete acts of transporting and disposing of waste at unrelated properties and that the commission of each of the offences had different consequences. Nevertheless, what the offences had in common was that each involved the particular activities by which Mr Hanna carried on his business of transporting and depositing waste. The consequence is that the total sentence for the five offences exceeds to some extent the total criminality involved, justifying some downward adjustment.
A downward adjustment of the total sentence is also justified by reference to the two matters identified in R v MAK; R v MSK at [15]-[17]. A total sentence of five years is more than five times as severe as a sentence of one year and may be crushing upon Mr Hanna. A downward adjustment of the total sentence is justified to address these matters.
Applying an instinctive synthesis approach and the totality principle, I consider that the appropriate way to achieve relativity between the total criminality involved in committing the five offences and the total sentence for the five offences is to impose an aggregate sentence of three years for all of the five offences.

[50]

Non-parole period

The court is required to set the non-parole for the aggregate sentence. Section 44(2B) of the Sentencing Act provides that: "The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)."
In effect, this means that the non-parole period must not be less than three-quarters of the term of the sentence, unless the court finds there are special circumstances. In this case, for a term of imprisonment of three years, the non-parole period should not be less than two years and three months, unless there are special circumstances.
Mr Hanna submitted that there were three special circumstances: Mr Hanna's age (43 years); this is his first time in custody; and the fact that he would be serving his time in custody in a State (NSW) different to where he would normally be resident with his family (Victoria).
I do not consider that these matters are special circumstances warranting shortening of the non-parole period. The age of Mr Hanna (43 years) is neither sufficiently young nor sufficiently old to warrant a finding of special circumstances.
The fact that this will be Mr Hanna's first time in custody is not a special circumstance, considering the nature of the offences he has committed. The sentence of imprisonment is a direct consequence of Mr Hanna being a repeat waste offender. Until the legislature created the offence of repeat waste offending in s 144AB(2) of the POEO Act, there was no penalty of imprisonment for committing waste offences under the POEO Act. Hence, Mr Hanna was never in jeopardy of being imprisoned for the many waste offences he has committed in the past. Mr Hanna knew, however, when he was convicted in 2014 in Bankstown City Council v Hanna, of the creation of the new offence of repeat waste offending and the new penalty of imprisonment. Nevertheless, he subsequently committed the offences of repeat waste offending that are the subject of these proceedings. In this context, the fact that this will be the first time he will be imprisoned for repeat waste offending is not a special circumstance.
The fact that Mr Hanna will be serving his term of imprisonment in NSW, whilst his family is in Victoria, is not a special circumstance. Hardship to an offender's family is generally an irrelevant consideration and can only be taken into account in highly exceptional circumstances in justifying a non-custodial sentence. There can be circumstances of hardship to an offender's family, however, that are sufficiently exceptional in a suitable case to justify a finding of special circumstances: King v R [2010] NSWCCA 202 at [18]. Mr Hanna is married to Mrs Hanna, with whom he has three children. Their eldest child is aged 13 years and the two twins are aged eight years. Mrs Hanna is the primary caregiver for the three children. Mrs Hanna also looks after her father, who is seriously ill and her mother, who is also not well, in Victoria. The circumstances concerning Mr Hanna's family residing in Victoria and Mrs Hanna's duties as caregiver to their children and her parents, are not sufficiently exceptional to constitute special circumstances. Hardship to Mr Hanna by being imprisoned in a place away from his family is similarly not a special circumstance.
As I do not find there are special circumstances, the non-parole period for the aggregate sentence is to remain at the minimum period of two years and three months. This results in a parole period of nine months, which is one third of the non-parole period of two years and three months, in accordance with s 44(2B) of the Sentencing Act.

[52]

Appropriateness of a fine in addition to imprisonment

The penalties for the offence under s 144AB include imprisonment, fine or both. As I have explained above, I have determined that no penalty other than imprisonment is appropriate for the five offences under s 144AB committed by Mr Hanna. This determination does not necessarily preclude imposing a fine in addition to imprisonment for any of the offences, but it does make it less likely that a fine will be considered appropriate. Primarily, this is because the aggregate sentence of imprisonment determined to be appropriate achieves the purposes of sentencing for the offences that Mr Hanna has committed. The sentence of imprisonment achieves the retributive purposes of ensuring that Mr Hanna is adequately punished for the offences, making Mr Hanna accountable for his actions and denouncing the conduct of Mr Hanna. The sentence of imprisonment achieves preventative purposes of sentencing by specifically deterring Mr Hanna from re-offending and generally deterring others who might commit waste offences or the offence of repeat waste offending. The sentence of imprisonment is less likely to achieve restorative purposes of sentencing.
The imposition of a fine in addition to a sentence of imprisonment on Mr Hanna for any of the offences he committed will not better achieve any of these retributive, preventative or restorative purposes of sentences. As to retributive purposes, there is neither a need nor a justification to punish Mr Hanna, make him accountable or denounce his conduct any further than would be achieved by a sentence of imprisonment by the imposition of a fine in addition to imprisonment.
As to preventative purposes, Mr Hanna will not be deterred from re-offending any further than would be achieved by a sentence of imprisonment by the imposition of a fine in addition to imprisonment. Indeed, as I have found earlier, the imposition of a sentence of imprisonment for Mr Hanna's repeat waste offending is warranted expressly to achieve individual deterrence, because the ever increasing fines imposed for his past offending have not acted as a deterrent. A sentence of imprisonment will also act as a general deterrent to others who might be tempted to repeatedly commit waste offences, by sending a strong message that repeat waste offending will be punished by imprisonment not merely fines. Imposing a sentence of a fine cumulatively on a term of imprisonment will not add meaningfully to that already strong message of deterrence.
As to restorative purposes, a fine is no more likely to achieve restorative purposes of sentencing than imprisonment. A fine is paid into the Consolidated Fund, and does not recompense, repair or restore the victims or the environment harmed by the commission of the offences. Restorative purposes of sentences can, however, be achieved by making an order for the restoration of the lands harmed under s 245 of the POEO Act.
Sometimes, the imposition of a fine in addition to imprisonment is justified having regard to the substantial financial benefit an offender has gained from committing the offence; the fine operates to remove some or all of that financial benefit: see, for example, Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 2007) at pp 2, 3, 5. Where, however, the offender has gained no substantial benefit from the offence, and has been sentenced to a substantial period of imprisonment, a fine in addition to imprisonment might not be appropriate: see, for example, Forsythe (1980) 2 Cr App R (S) 15 at 17, cited but distinguished on the facts in R v Rahme (1989) 43 A Crim R 81 at 86.
A fine in addition to imprisonment might also be appropriate where the sentence of imprisonment is to be served in some manner other than by way of full-time custody. In R v Rahme, the imposition of a fine cumulatively on a sentence of imprisonment was considered to be appropriate because the offender was given the "very lenient term" and advantage of periodic (weekend) detention rather than full-time custody: at 86, 89.
In deciding whether it is appropriate to impose a fine cumulatively on a sentence of imprisonment, it is also relevant to consider the offender's means to pay any fine. If an offender is unlikely to be able to pay any fine, either immediately or on release from gaol, no useful purpose may be served in sentencing the offender, not only to a term of imprisonment, but also to pay a fine: Winkler v Cameron (1981) 33 ALR 663 at 669; Rahme at 88-89. In R v Rogers (1987) 8 NSWLR 236 at 240, Street CJ held that the imposition of a fine cumulatively on the custodial sentence exceeded what was called for and quashed the fine. The Chief Justice observed: "I turn then to the other matter which has been the subject of specific challenge by Mr Gray, namely the fine of $3,000. There was no material before the District Court to indicate that the appellant had any assets which might be available to pay this fine. Nor was there any basis for anticipating that he might lawfully accumulate funds after release from gaol so as to enable it to be paid. This consideration may not, perhaps, be ultimately decisive, but it is nevertheless a significant matter to be taken into account when considering whether to impose a fine."
In Smith v The Queen (1991) 25 NSWLR 1 at 20, Kirby P observed that it is ordinarily harsh to impose a fine on an offender who is serving or will serve a sentence of imprisonment, as the offender, whilst imprisoned, will be unable to earn money with which to pay the fine. Kirby P noted that "the English Court of Appeal has cautioned against combining the punishment of fine with a custodial sentence", citing as an example R v Maund (1980) 2 Cr App R (S) 289 at 290-291.
If a court determines it is appropriate to impose a fine, the means of an offender to pay any fine is a mandatory relevant consideration in fixing the amount of the fine: s 6 of the Fines Act 1996. A fine is defined to include any monetary penalty imposed by a court for an offence: see s 4(1)(a) of the Fines Act. In fixing the amount of the fine, the court is required to consider, amongst other information, "such information regarding the means of the accused as is reasonably and practically available to the court for consideration": s 6(a) of the Fines Act.
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].
In this case, there is no evidence before the Court as to the extent of the financial advantage gained by Mr Hanna in committing the offences. It is true that Mr Hanna did gain some financial advantage by not paying the fees that would have been required to be paid to dispose of the waste at a waste facility licensed to receive the waste. This financial advantage has not been quantified. I am unable to find, therefore, what was the extent of the financial advantage that Mr Hanna made from the offences.
If an order for restoration under s 245 of the POEO Act is made, whatever financial advantage Mr Hanna did gain from committing the offences will be removed. Under the terms of the order for restoration, Mr Hanna will be required to remove the waste he deposited on the properties and dispose of the waste at waste facilities licensed to receive the waste. Mr Hanna will be required to pay the necessary fees to dispose of the waste at such waste facilities. The amount of the fees that Mr Hanna will be required to pay on this occasion will be not less than the amount of fees that he would have had to pay if he had disposed of the waste at the waste facilities at the time of commission of the offences. In this way, any financial advantage that Mr Hanna gained by not paying the fees originally will be removed by him paying the fees now. In these circumstances, the imposition of a fine is not justified to address any financial benefit that Mr Hanna might have gained by committing the offences.
There also was no material before the Court to indicate that Mr Hanna would be able to pay any fine. Mr Hanna's counsel said from the bar table, without objection or disagreement as to the fact from the prosecutor, that Mr Hanna is currently an undischarged bankrupt. The only assets of the business that Mr Hanna has operated are the two trucks that were used by Mr Hanna in the transporting and depositing of the waste. They are owned by Mrs Hanna. The family home in Victoria is also owned by Mrs Hanna. There is no evidence that Mr Hanna has any assets of his own which might be available to pay any fine. There is no evidence that Mr Hanna will receive any income from the business, if it continues to operate while he is serving his term of imprisonment, or from any other source so as to be able to pay any fine.
In Retsos v The Queen [2006] NSWCCA 85 at [15], the Court of Criminal Appeal set aside the fine imposed on an offender who was an undischarged bankrupt. The Court held that where there is "no credible evidence that is remotely capable of establishing such a capacity to pay…the fines cannot properly be supported". Mr Hanna is in a similar impecunious position.
Consideration also needs to be given to the financial cost of complying with an order for restoration. The removal of the waste from the properties and the transportation and disposal of the waste at licensed waste facilities will come at a cost, possibly a sizeable cost, to Mr Hanna. Compliance with such an order for restoration will better achieve restorative purposes of sentencing than payment of a fine. Whatever financial assets or income Mr Hanna might have or be able to call upon will be better deployed in complying with an order for restoration than paying a fine.
In these circumstances, I consider that no useful purpose would be served by imposing a fine in addition to a term of imprisonment on Mr Hanna.

[55]

Appropriateness of order for costs

The prosecutor seeks an order that Mr Hanna pay its costs of the proceedings. The Court has power under s 257B of the Criminal Procedure Act to order Mr Hanna, in and by the conviction and orders for the offences committed by Mr Hanna, to pay the prosecutor's costs of the proceedings. The Court may specify a particular amount of costs or direct that the amount of costs be determined under s 257G of the Criminal Procedure Act.
In this case, the prosecutor has not yet quantified its costs and seeks a direction that the amount of costs be determined under s 257G of the Criminal Procedure Act. Mr Hanna opposes an order of costs being made against him, primarily on the basis of his extremely limited means to pay an order for costs.
An order for costs under s 257B of the Criminal Procedure Act serves to compensate the prosecutor as the successful party for the expense the prosecutor has incurred in bringing the proceedings, not to punish the offender as the unsuccessful party: see Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543, 563, 567 and Chief Executive of the Office of Environment and Heritage v Turnbull (2017) 227 LGERA 290; [2017] NSWLEC 140 at [260]. Although in criminal proceedings there is no rule that costs follow the event (see Latoudis v Casey at 543, 563, 568-569), ordinarily a successful party has a reasonable expectation of obtaining an order for costs and the discretion to refuse to award costs should not be exercised against the successful party except for a reason connected with the case (Latoudis v Casey at 557, 566, 568).
One reason connected to the case would be that the prosecutor did not succeed in proving certain charges or, on sentencing, proving certain aggravating factors, so that any award of costs might justifiably exclude the prosecutor's costs in relation to those matters on which the prosecutor was unsuccessful. Another reason connected to the case may be disentitling conduct of the prosecutor leading up to, bringing or prosecuting the proceedings unreasonably, such as failing to prosecute the proceedings in a proper manner or prolonging the proceedings unreasonably, which would make it just and reasonable to award only a proportion of the prosecutor's costs.
The fact that the unsuccessful offender is of limited financial means ordinarily would not be considered to be "a reason directly connected with the charge or the conduct of the proceedings" (Latoudis v Casey at 566), justifying an exercise of the discretion to refuse to make an order for costs in favour of the successful prosecutor. The offender's lack of financial means is not directly connected with the charge or the conduct of the proceedings.
This Court has not regarded the fact that an offender is of limited financial means as a reason not to make an order for costs against the offender. In Environment Protection Authority v Taylor (No 4) at [45] Lloyd J said: "I am unable to see why a public body such as the Environment Protection Authority, which is charged with the power and responsibility of enforcing laws designed to protect the environment and to protect the public from harm, should be out of pocket because the defendant who has been found guilty of such an offence is a person of modest means. The Environment Protection Authority might otherwise be discouraged from bringing such prosecutions, which are in the public interest, if its costs of doing so are unlikely to be recovered. As both Toohey and McHugh JJ accepted in Latoudis, the principle that a successful party has, in the absence of special circumstances, a reasonable expectation of obtaining an order for costs in its favour, is one which applies to criminal cases as well as to civil cases. Furthermore, such orders for costs are not imposed by way of punishment but to indemnify the successful party against the expense to which he or she has been put. By pleading not guilty to the charges, rather than pleading guilty at an early stage, the defendant has thereby caused the prosecutor to incur the considerable amount by way of costs which it now claims. The defendant has not identified any disentitling conduct on the part of the prosecutor, neither has the defendant identified items of costs that were not properly incurred in proving its case. It follows that there will be the usual order for costs."
In Congregational Christian Church Samoa Parish of Sydney v Georges River Council [2017] NSWLEC 71, Pain J pithily observed at [21]: "Given that costs are compensatory, not punitive, a limited ability to pay costs, if it exists, is not a reason not to award costs".
As I have found earlier, there is no material before the Court that would establish that Mr Hanna personally has sufficient assets or income to be able to pay any order for costs. Nevertheless, because the purpose of an order for costs is not to punish Mr Hanna, but to compensate the prosecutor, an apparent lack of financial capacity does not have the same cogency in determining whether to make an order for costs as it does in determining whether to impose and the amount of a monetary penalty. The fact that the prosecutor might not be able to recover all or any of the costs ordered from Mr Hanna, because he has insufficient funds, is not necessarily a reason not to make an order for costs. An order for costs at least offers the prosecutor the chance of being compensated for the costs of bringing the proceedings.
For completeness, I should note that s 6 of the Fines Act, which requires a court to consider the means of the offender in fixing the amount of any fine, does not apply to the Court making an order for costs in these proceedings brought by the EPA. The definition of "fine" in s 4(1)(f) of the Fines Act includes certain orders for costs but not all orders for costs. A fine includes "any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer". A "law enforcement officer" is defined in s 3(1) of the Fines Act to mean: "a person exercising law enforcement functions in the official capacity of any of the following: (a) the Director of Public Prosecutions, a Deputy Director of Public Prosecutions or a Solicitor for Public Prosecutions, (b) a Crown Prosecutor, (c) a police officer, (d) a public servant, (e) an officer or employee of a statutory body representing the Crown, (f) a member or an employee of a local council, (g) a member of staff of Local Land Services, (h) an officer within the meaning of the Prevention of Cruelty to Animals Act 1979, (i) an officer or employee of a kind prescribed by the regulations."
The proceedings against Mr Hanna have been brought by the EPA, a body corporate constituted by the Protection of the Environment Administration Act 1991 (s 5). The EPA is not a law enforcement officer as defined in s 3(1) of the Fines Act and is not an officer or employee of a kind prescribed by the regulations, the only applicable one being the Fines Regulation 2015. The proceedings brought by the EPA are therefore not proceedings brought by a law enforcement officer: see Environment Protection Authority v Taylor (No 4) (2002) 120 LGERA 414; [2002] NSWLEC 59 at [42] and a similar conclusion, although for a different prosecuting body, in Shoalhaven City Council v Hayes [2018] NSWLEC 65 at [114]-[116]. The consequence is that any order made by the Court that Mr Hanna pay the EPA's costs of the proceedings will not be an order for costs falling within s 4(1)(f) of the Fines Act and will not be a fine. Section 6 of the Fines Act therefore does not apply to the fixing of the amount of costs that the Court might order: Environment Protection Authority v Taylor (No 4) at [43].
In these circumstances, I consider it is appropriate to make an order under s 257B of the Criminal Procedure Act that Mr Hanna pay the prosecutor's costs. As the prosecutor's costs have not been quantified, it will be necessary for the amount of costs to be determined under s 257G of the Criminal Procedure Act. This section provides that the amount of costs are to be determined: "(a) by agreement between the prosecutor and accused person, or (b) if no such agreement can be reached, in accordance with the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) (with or without modifications prescribed by the regulations)."
To reduce in part the amount of the costs that Mr Hanna will be liable to pay, I will limit the costs that are awarded to the prosecutor to the prosecutor's costs of the five proceedings for the offences to which Mr Hanna has pleaded guilty and for which he will be sentenced, and not include the prosecutor's costs of the other three proceedings that will be discontinued by the prosecutor.

[56]

Consistency in sentencing

A relevant consideration in sentencing is the ascertainment of a general pattern of sentencing for offences such as the offence under consideration. As was said in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [6], the administration of criminal justice functions as a system, which should be systematically fair and that involves reasonable consistency: see also R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [24]. The consistency sought is "consistency in the application of the relevant legal principles": Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [49]. Like cases should be treated alike and different cases treated differently: R v Pham at [28].
Care must be taken in the task of achieving consistency. There is always a difficulty in attempting to compare the penalty in one case with a penalty in another case because of the wide divergence of facts and circumstances: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365. Each case is different and the penalty imposed in one case does not demonstrate the limits of a sentencing court's decision: R v Stahl [1999] NSWCCA 160 at [10]; Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304; [2001] NSWCCA 280 at [35]; Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79].
The sentences imposed in comparable cases illustrate, but do not define, the possible range of sentences available. Sentences are not binding precedents, but are merely historical statements of what has happened in the past. As was said in Hili v The Queen at [54], approving what was pointed out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305]: "…a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits…But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence.' When considering past sentences, 'it is only by examination of the whole circumstances that have given rise to the sentence that 'unifying principles' may be discerned.'": See also R v Pham at [27].
Mr Hanna is the first repeat waste offender to be sentenced for an offence under s 144AB of the POEO Act. There are, therefore, no comparable sentences to provide guidance. The offence under s 144AB is the only offence involving waste in respect of which a term of imprisonment is available. Hence, sentences for other waste offences are also not directly comparable. If a fine were to be imposed, instead of or in addition to, a sentence of imprisonment, some guidance could be gained from the amount of the fines imposed in comparable cases for the same waste offence, the commission of which by the offender resulted in the commission of the offence under s 144AB. In Mr Hanna's case, however, I have determined that it would not be appropriate to impose a fine instead of or in addition to imprisonment. The sentences of the fines imposed in other cases for waste offences, details of which the prosecutor provided, afford no guidance in assessing the appropriateness of the aggregate sentence of imprisonment that I have determined for the offences against s 144AB committed by Mr Hanna.

[57]

Sentence imposed

The Court orders: 1. Mr Dib Hanna Abdallah Hanna is convicted of the offences in proceedings nos. 2016/344029, 2016/344031, 2016/344032, 2016/344033 and 2016/344035 against s 144AB(2) of the Protection of the Environment Operations Act 1997 as charged. 2. (a) Mr Dib Hanna Abdallah Hanna is sentenced to an aggregate sentence for those five offences of three years imprisonment taken to have commenced on 17 April 2018 and concluding on 16 April 2021, with a non-parole period of two years and three months imprisonment expiring on 16 July 2020. (b) Mr Dib Hanna Abdallah Hanna is first eligible to be released on parole on 16 July 2020. 1. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, Mr Dib Hanna Abdallah Hanna: 1. At his expense, within 28 days of the date of this order, must cause a notice, in the form of Annexure A to these orders, to be placed within the first 5 pages of the following publications at a minimum size of 10 cm x 18 cm: 1. The Daily Telegraph; 2. Inside Waste Magazine; and 3. The Western Weekender. 1. Within 60 days of the date of this order, Mr Dib Hanna Abdallah Hanna must provide to the prosecutor a complete copy of the pages of the publications in which the notice appears. 1. Within 90 days of the date of this order, Mr Dib Hanna Abdallah Hanna must remove, or procure the removal of, the waste material the subject of these proceedings from the land at 1. 214 Seventh Avenue, Llandilo; 2. 56 Howes Road, East Kurrajong; and 3. 82 Park Road, Wallacia as identified in the Freeburn surveys, being Annexure B to these orders, and lawfully dispose of the waste at a waste facility or facilities licensed under the Protection of the Environment Operations Act 1997 to accept such waste. 1. Within 120 days of the date of this order, Mr Dib Hanna Abdallah Hanna or the person who Mr Dib Hanna Abdallah Hanna arranges to carry out the work required by order (4) shall file with the Land and Environment Court and serve on the prosecutor an affidavit setting out compliance or otherwise with order (4). 2. Within 120 days of the date of these orders, Mr Dib Hanna Abdallah Hanna or the person who Mr Dib Hanna Abdallah Hanna arranges to carry out the work required by order (4) is to provide receipts to the prosecutor evidencing the lawful disposal of the waste the subject of these proceedings at a facility or facilities licensed under the Protection of the Environment Operations Act 1997 to accept such waste. 3. Mr Dib Hanna Abdallah Hanna is to pay the prosecutor's costs of proceedings nos. 2016/344029, 2016/344031, 2016/344032, 2016/344033 and 2016/344035 in the amount as may be determined under s 257G of the Criminal Procedure Act 1986.

Environment Protection Authority v Dib Hanna Abdallah Hanna

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