Environment Protection Authority v Edward Gilder

The activities carried out by NWR

1. On 17 January 2014, Greg Rodwell, a Development Compliance Officer employed by Council, was investigating an alleged waste offence at another property. His enquiries led him to the site as a potential source of waste.
2. The prosecutor asserts that Mr Rodwell observed waste processing activities occurring on the site, but this is not agreed. The prosecutor further asserts that, on or about 22 January 2014, Council advised NWR that it considered the processing of waste was occurring at the site without consent, but this is not agreed.
3. On 14 March 2014, Le Mottee Group, a surveying firm, lodged an application with Council on behalf of NWR to modify the Consent. The modification would allow the recycling of general dry solid waste including metal recycling, waste transfer, and the recycling of bricks, concrete and timber. The production limit was proposed to be 30,000 "tons" of recycled products per annum.
4. On 3 June 2014, the modification application was approved as DA 16-2004-342-4, permitting receipt of a maximum of 30,000 "tons" of recycled products per annum and specifically excluding putrescible waste, hazardous waste, liquid waste, restricted solid waste, and special waste.
5. On 23 July 2014, a further modification was granted as DA 16-2004-342-5, permitting receipt of "a maximum of 30,000 ton [sic] of recyclable sold [sic] waste on-site per annum" but retaining the same exclusions.
6. On 15 August 2014, a final modification was granted as DA 16-2004-342-6, providing consent for a "Waste Resource Transfer Station as defined under the Port Stephens Local Environmental Plan 2013", permitting the receipt of a maximum of 30,000 "tons" of recyclable dry solid waste per annum, retaining the same exclusions ('Final Consent'). The Final Consent also prohibited the stockpiling of materials on the rear 42 metres of the site.
7. At the relevant time, the Port Stephens Local Environmental Plan 2013 defined "waste [or] resource transfer station" as follows: waste or resource transfer station means a building or place used for the collection and transfer of waste material or resources, including the receipt, sorting, compacting, temporary storage and distribution of waste or resources and the loading or unloading of waste or resources onto or from road or rail transport.
8. Le Mottee Group received instructions directly from the defendant with respect to the modification applications. The defendant was aware of the detail and terms of the modifications and had direct input with respect to the terms.
9. Two other entities used the site as a place of business during the time it was occupied by NWR: 1. East Coast Recycling Pty Ltd ('East Coast Recycling'), which had a verbal agreement with NWR to occupy an area at the front of the site to store empty skip bins. From time to time, East Coast Recycling temporarily stored skip bins filled with waste at the site. 2. Fady Chehade, who entered into a sublease with Tomago Road for $44,000 per year, permitting Mr Chehade to lease 200 square metres of the site to store 5,200 tonnes of waste. NWR required prior written consent from Direct Developments to sublease the premises, but did not obtain such consent.
10. Initially, the waste processed by NWR at the site included the waste that was already present onsite. The processing of waste excavated from the ground on the site continued until 24 October 2014.
11. From about 5 December 2013, NWR also used the site for the receipt, storage and processing of waste from offsite. The waste received by NWR originated from skip bin companies. These skip bins contained waste generated from activities including demolition and construction. NWR communicated to skip bin companies operating in the area that NWR was a cheaper option than local landfill sites.
12. Waste was received on the site by vehicles hauling the skip bins. Vehicles were received on the weighbridge, which weighed the gross weight of the vehicle and the waste and printed this information on a docket. The weighbridge operator made a handwritten tax invoice in triplicate detailing the vehicle's registration and the waste type, which was verbally communicated by the driver. The invoice also had the terms of entry on it, copied directly from the prosecutor's website.
13. Waste was classified upon visual inspection by a person working on the site. Vehicles were then weighed on the weighbridge upon departure, which printed a docket indicating the tare weight. The operator calculated the net weight and multiplied this by a rate according to waste type. There was a list depicting the rate for each type.
14. Upon departure, transporters usually paid by EFTPOS. Two companies held accounts with NWR and paid these weekly. NWR did not accept cash onsite to avoid the risk of robberies, which had been a problem for CMA. During the period 30 June 2014 to 22 October 2014, NWR invoiced $719,863 for the receipt of waste.
15. The weight dockets were provided to the drivers of the vehicles upon departure. Transactions were recorded by NWR in an Excel spreadsheet, which listed the money NWR received along with the company name. One such company was Derwin Waste Management Solutions (trading as 'Skip the Tip'). NWR accepted waste from Skip the Tip, which did not provide any training to its employees in respect of waste classification. NWR visually inspected the waste when it was received at the site. From the period 5 December to 24 October 2014, NWR charged Skip the Tip approximately $539,000 in fees.
16. NWR intended to recycle timber, concrete, soil, plastics, metal and cardboard. The remainder of the material which was unable to be recycled was transported to landfill. NWR kept brick and concrete onsite to construct a hardstand for the remainder of the site. Metal went to scrap metal dealers. Timber was stockpiled.
17. By 12 August 2014, more than 2,500 cubic metres of waste that had been brought to the site from offsite remained stored there. The amount of waste stored at the site continued to increase until 24 October 2014, by which time NWR was storing approximately 20,000 cubic metres of waste on the site, comprising timber, woodchips, brick and concrete, rubble and soil, white goods and metal. On 24 October 2014, the prosecutor located and seized 86 weighbridge docket books for the period 30 June 2014 to 22 October 2014. Records at the site showed that between 5 December 2013 and 22 October 2014, NWR had invoiced $719,863 for the receipt of waste.
18. In those circumstances, it is agreed that between 12 August 2014 and 24 October 2014, NWR contravened s 144(1) of the POEO Act in that it: 1. Was the occupier of the site; 2. Used the site to receive waste; 3. Stored more than 2,500 cubic metres of waste at the site; and 4. Did not hold an environment protection licence ('EPL') in relation to the storage of the waste at the site.

NWR's staffing and machinery

1. NWR hired labourers from Bulk Logistics Pty Ltd ('Bulk Logistics'), a company of which Mrs Gilder was the director and the defendant was an employee, which sourced labourers seeking employment through Centrelink. NWR did not require its staff to participate in any formal waste classification training or to hold tickets in respect of dealing with special waste material, like asbestos-contaminated waste. NWR did not have a formal induction program for its staff, although there was an induction process for new employees which involved a folder of documents supplied by the Waste Management Association of Australia kept in the lunch room which employees were encouraged to read.
2. On 24 October 2014, the following machinery was on site: 1. An in-use excavator sorting through skip bin waste consisting of timber, steel, plastic and gyprock sheets; 2. An in-use excavator on top of a stockpile sorting through waste; 3. A water cart wetting the weighbridge; 4. An in-use weighbridge receiving waste; 5. An in-use wheeled loader being operated pushing plastic, steel and timber waste into a larger stockpile; 6. In-use machines sorting and shifting skip bin waste in the Receiving Bay from bin trucks and tippers; 7. A parked 20 tonne excavator; and 8. Two parked B Double trucks.

The defendant's involvement at the site

1. The defendant has been involved in the waste industry since the 1990s. At that time, he was the director of a company that leased a waste facility in Sydney from Alexandria Landfill and what was then the Roads and Traffic Authority.
2. The defendant and Mrs Gilder paid 50% of the deposit for the purchase of the site. To generate business, the defendant rang local businesses, such as Skip the Tip, to advertise NWR's business as a cheaper option than landfill. The defendant was jointly responsible for generating business with Mr Rands. Many customers of NWR were former customers of a facility operated by Mr Rands in Wyong.
3. At all relevant times, the defendant was the site manager of NWR. He ran the day-to-day business and was the person who met with the landlord during its visits to the site. The defendant also liaised with the landlord about the terms of the modifications to the Consent obtained by Le Mottee Group.
4. During the day, the defendant ceased his previous job of transporting sand for Bulk Logistics so that he could be on the site. Bulk Logistics hired a driver to transport sand in his place, but the defendant continued to transport sand at night when NWR was closed.
5. The defendant demonstrated how things worked on the site to new labourers and showed Mrs Gilder how to operate the weighbridge. He also kept the Excel spreadsheet. Almost every day, the defendant would report to Mr Rands about what was occurring on the site. They would speak about customers, NWR's turnover and expanding its growth.
6. The defendant continued to act as a person concerned in the management of NWR after the charge period up until NWR's lease expired on or about 24 November 2014. In September 2015, the defendant signed a statutory declaration describing himself as the "former Manager" of NWR.
7. When at the site on 24 October 2014 and from that point until the expiry of the lease, the prosecutor spoke almost exclusively to the defendant, who it understood to be the manager of the site and responsible for the day-to-day operations of NWR, in relation to its investigation.

Mr Rands' involvement at the site

1. During the charge period, Mr Rands was an active director of NWR and was aware of the business it was conducting on the site. He diverted work to NWR, and has a history in the waste industry. Since about 1999, Mr Rands had owned and operated the waste facility known as Gow Street Recycling and, later, owned and operated another waste facility known as North Wyong Recycling. The former had an EPL permitting it to process 80,000 tonnes of waste per annum. The latter did not require an EPL because it processed less than 30,000 tonnes of waste per annum.
2. Mr Rands was actively involved in negotiating the lease from Direct Developments and the subsequent purchase of the site. He paid 50% of the deposit for the purchase, and organised to delay the settlement of the purchase. He also set the rates charged by NWR for the receipt of different categories of waste based on the figures he used at North Wyong Recycling. He negotiated the sublease of part of the site with Mr Chehade directly in around April 2014. Mr Chehade understood him to be the owner of the site.
3. Between April 2014 and October 2014, Mr Chehade tried to increase the amount of waste he was permitted to store on the site under his lease. Mr Rands informed Mr Chehade that it was not possible to increase the amount, because the amount of waste on the site could not exceed a certain amount. Any issues Mr Chehade had with the yard or payment he discussed with Mr Rands.
4. During NWR's operations at the site, Mr Rands was rarely present. He visited the site approximately 12 times during the site's first year of operation, but was nonetheless aware of the activities being undertaken on the site, including that waste was being weighed and calculated on a daily basis.

Mrs Gilder's involvement at the site

1. During the period 21 October 2013 to 20 November 2013, Mrs Gilder was a director of Tomago Road. However, she was not an active director of either NWR or Tomago Road.
2. Mrs Gilder did not play an active role in managing the site. She assisted the defendant in running the business, but her role was akin to that of an employee. She worked from approximately 9.30am to 3.30pm, her daily tasks including operating the weighbridge by weighing the truck, noting its details, printing the weighbridge docket, and charging the transporter based on the list of rates.

Environmental harm

1. As at 24 October 2014, there was 20,000 cubic metres of waste stored on the site, comprising: 1. At least 15 skip bins, either empty or containing waste, which had "1800 All Skips" and "Skip the Tip" written on them; 2. A few skip bins full of scrap steel, including a bin with a capacity of approximately 50 cubic metres; 3. A stockpile approximately two metres wide and two metres long; 4. Three 40 foot shipping containers and a few skip bins full of scrap steel, including a skip bin of approximately 50 cubic metres capacity; 5. An area of approximately 60 x 60 metres covered in crushed brick and concrete gabion; 6. Four separate stockpiles about 20 x 20 metres wide; 7. Two stockpiles approximately 60 metres wide, 15 metres long and 4 metres high; 8. A stockpile approximately 40 metres long, 10 metres wide and 7 metres high; 9. A stockpile of general skip bin waste; 10. A stockpile approximately four metres tall covering an area of about 10 x 50 metres; 11. A stockpile approximately 100 x 30-50 metres in area and four metres high; 12. A skip bin labelled "1800 All Skips" on the northern boundary of the premises containing black plastic bundles suspected to contain asbestos; 13. Approximately 24 mostly empty skip bins, one containing mixed building waste with some fibro pieces on the northern boundary of the site. 14. A skip bin labelled "Skip the Tip", containing black plastic bundles, some of which had been ripped open and contained fibrous material; and 15. Approximately six skip bins on the eastern boundary, one of which contained fibro pieces partially wrapped with black plastic.
2. The type of waste on the site included scrap metal; foam insulation and broken plywood sheets; mixed building and demolition waste; crushed brick and concrete gabion; soil; green waste; timber, including treated pine; and general household material such as broken furniture.
3. The ASOF says that the storage of waste at the site caused actual harm to the environment including by: 1. Being deposited on the surface of the site; 2. Constituting asbestos contamination; 3. Emitting impurities into the air after catching fire; and 4. Impacting upon visual amenity.
4. The ASOF further says that the harm arising from the presence of waste at the site is not short term, and there is the potential for the waste to cause further harm, including by negatively impacting on the health of staff onsite and other persons in the surrounding premises and by catching fire.

The prosecutor's investigation and clean-up

1. The prosecutor first learnt that waste suspected to be in excess of 2,500 tonnes per year was being deposited on the site on 29 September 2014. Officers from the prosecutor inspected the site on 24, 27, and 30 October 2014; 20 November 2014; 18 March 2015; 13, 26, and 27 April 2016; and 7 June 2016.
2. During the period 24 to 29 October 2014, ALS Environmental tested samples taken by the prosecutor and confirmed that two of five samples taken contained asbestos. JM Environments confirmed that eight of nine stockpiles it tested contained asbestos and further that four of nine samples taken from a single stockpile consisting of unsorted skip bin waste contained asbestos.

Agreed facts relating to the defendant's conduct

1. The ASOF records that the offence was caused by NWR storing more than 2,500 cubic metres of waste at the site without lawful authority. It further states that the defendant, being a person concerned in the management of NWR and with extensive experience in the waste industry, had "complete control" over the causes of the offence. He does not have any prior convictions for offences against NSW environmental legislation.
2. The defendant cooperated with the prosecutor to the extent that he attended one recorded interview and cooperated in relation to the preparation of the ASOF. He pleaded guilty, though there is some disagreement about whether he did so at the earliest opportunity.

Contested facts

1. The prosecutor called evidence in relation to the following matters, identified in its written outline of submissions, that remained contested: 1. That waste was processed on the site as at 22 January 2014; 2. The nature of the relationship between the defendant and East Coast Recycling; 3. The stockpiling of timber on the site; 4. The defendant's financial involvement in NWR; 5. The presence of skip bins on the site; 6. The costs avoided by NWR in not seeking to obtain an EPL; 7. The manner in which skip bins, asbestos and fibro came to be on the site; 8. The extent of asbestos contamination of the site; and 9. The clean-up operations undertaken on the site.
2. Although the ASOF foreshadowed that the defendant would call evidence in relation to some matters referred to, the defendant, despite providing detailed written submissions and making oral submissions, did not rely on any evidence (apart from some financial records relating to himself, NWR, Bulk Logistics and Mrs Gilder) when the matter came before the Court on 7 August 2018.
3. Further, in his written outline of submissions, the defendant appeared to resile from some matters which appeared in the ASOF. The ASOF contained a statement acknowledging that neither party was able to call evidence contradicting or qualifying an agreed fact without the Court granting leave, but during the hearing the defendant advised that he did not wish to retreat from any of the matters that had been previously agreed and did not seek leave in that regard.

Relevant legislation

1. The defendant is charged with an offence contrary to s 144(1) of the POEO Act, which provides: 144 Use of place as waste facility without lawful authority (1) A person who is the owner or occupier of any place and who uses the place, or causes or permits the place to be used, as a waste facility without lawful authority is guilty of an offence. Maximum penalty: (a) in the case of a corporation - $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual - $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. Note. An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation - see section 169. (2) In any proceedings for an offence under this section the defendant bears the onus of proving that there is lawful authority to use the place concerned as a waste facility.
2. Section 169 provides: 169 Liability of directors etc for offences by corporation - offences attracting special executive liability (1) If a corporation contravenes, whether by act or omission, a provision of this Act attracting special executive liability, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that: (a) (Repealed) (b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.
3. Section 48(1) of the POEO Act provides: 48 Licensing requirement - scheduled activities (premises-based) (1) Application of section This section applies to scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on. (2) Offence A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises. Maximum penalty: (a) in the case of a corporation - $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual - $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. Note. An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation - see section 169A.
4. Schedule 1 of the POEO Act provides that storage of more than 2,500 tonnes or 2,500 cubic metres of waste on premises at any time is a scheduled activity attracting the operation of s 48.

The evidence

1. In addition to the ASOF, to which was appended detailed material including expert reports relating to contamination of the site, the prosecutor read extracts (including annexures) of four affidavits: an affidavit of Ms Karen Gallagher, dated 26 September 2017; an affidavit of Mr Sean Joseph Joyce, dated 27 September 2017; an affidavit of Mr Gregory John Rodwell, dated 14 June 2018; and an affidavit of Mr Steven Christopher James, dated 14 June 2018.
2. As noted earlier, the defendant did not call any evidence. Although there were some financial records appended to his written submissions, which were tendered and given an exhibit number, the defendant indicated that he did not rely on those, notwithstanding that the prosecutor had no objection to their tender, save as to relevance.

The evidence of Mr Rodwell

1. Mr Rodwell is a Development Compliance Officer at Council, a role he has held since 2007. He deposes that Council first became aware of NWR's activities on the site in January 2014, when he was investigating an alleged waste offence at another property nearby ('Bobs Farm site'). His enquiries led him to the site, where he arrived at around midday on 17 January 2014.
2. Mr Rodwell deposes that he had a conversation with the defendant, who identified himself as the manager of the site. Mr Rodwell asked him whether the site was the source of waste at the Bobs Farm site. The defendant replied that NWR screened the waste, and then another company called All Haul Transports moved the waste to the Bobs Farm site. Mr Rodwell told the defendant that he was familiar with the approved use of the site, and said he did not believe that the current use was consistent with the Consent. He said that, in his opinion, a new development consent would be required to continue the current use.

The evidence of Mr James

1. Mr James is an employee of the prosecutor, for whom he works as the "Unit Head Waste Compliance - Hunter". He deposes that had NWR sought an EPL pursuant to the relevant provisions of the POEO Act and the Protection of the Environment Operations (General) Regulation 2009 (NSW), it would have been liable to pay 16 fee units.

The evidence of Ms Gallagher

1. Ms Gallagher is an employee of the prosecutor, and an authorised officer under the POEO Act. She deposes that on 24 October 2014, she collected five samples of what she suspected was asbestos at the site, and sent them to ALS Environmental for analysis on 27 October 2014. It is an agreed fact that two of these samples contained asbestos.
2. Ms Gallagher deposes that on 18 March 2015, she attended the site to check whether NWR had complied or was complying with a notice of clean-up action with which it had been issued. Ms Gallagher asked the defendant when he would be providing the remedial action plan required by the clean-up notice, to which he replied "I don't need such a qualified person to do the remedial action plan, the consultant I've engaged is suitable. I'm getting the waste re-classified and I can't afford to do anything at the premises while it's not operating".
3. Ms Gallagher also asked the defendant where the broken shopping trolleys, which she had observed on the site, came from, to which the defendant replied that someone left them outside the gate so he brought them onto the site.
4. On 10 April 2015, Ms Gallagher received an email from the defendant, requesting an interview with her and Mr Joyce, an environmental officer with the prosecutor. On 5 May 2015, the defendant, Mr Rands, Ms Gallagher, Jenny Lange, and Cristina Maroc (the latter two being compliance officers with the prosecutor) met at the prosecutor's office.
5. The minutes of the meeting of 5 May 2015 are attached to Ms Gallagher's affidavit. They record, amongst other things, that Mr Rands suggested the requirement of seeking a qualified occupational hygienist be relaxed; that the defendant and Mr Rands raised concerns about the classification of waste on the site; that Mr Rands suggested chicken picking the asbestos from the site, which Ms Gallagher and Ms Lange explained was an ineffective approach; that the defendant and Mr Rands were concerned the clean-up notice was in error insofar as it suggested NWR did not screen for asbestos; that Mr Rands said the site was contaminated with asbestos from the previous owner; that the Remediation Action Plan was still in draft; and that the defendant was interested in applying for an EPL.
6. On 6 May 2015, NWR sent an email to the prosecutor requesting an extension of time to comply with the requirements of a clean-up notice with which it had been issued. The prosecutor replied on 21 May 2015, refusing an extension of time but stating that it was amenable to the proposition that the qualifications of the hygienist required in the notice could be relaxed.
7. On 22 June 2015, the prosecutor issued NWR with a variation of the clean-up notice, which removed the requirement for the occupational hygienist referred to in the notice to be a member of the Australian Institute of Occupational Hygienists.
8. On 13 April 2016, Ms Gallagher attended the site with Mr Joyce and Kathy Caruana, a solicitor with the Office of Environment and Heritage, to check compliance with the clean-up notice. At the conclusion of the inspection, Ms Gallagher asked Mr Rands who the contact was in relation to the remediation of the site. Mr Rands replied that he was doing the drainage work, but NWR would need to be contacted in relation to the clean-up operations.
9. On 10 May 2016, the prosecutor received a revised volumetric survey of the stockpiles of waste on the site from Monteath and Powys Pty Ltd. The volumetric survey showed the level of waste on the site had been reduced from approximately 20,000 cubic metres to a total of 13,367 cubic metres across seven stockpiles.
10. On 3 June 2016, the prosecutor issued NWR with an invitation to show cause notice. On 21 June 2016, NWR replied, stating, inter alia, that its lease over the site had expired in June or July 2015, and that NWR no longer had any control over the site. Moreover, NWR stated that it did not have resources to perform any further remediation work.

The evidence of Mr Joyce

1. Mr Joyce is an environmental officer with the prosecutor, for whom he has worked since July 2014. He deposes that on 24 October 2014, he visited the site and told the defendant that the prosecutor was investigating air, land and water pollution which it believed was occurring on the site. On that date, he issued a verbal direction to clean up the site to the defendant and provided him with a draft clean-up notice which was in substantially similar terms to the finalised clean-up notice issued on 27 October 2014.
2. Mr Joyce hand-delivered the clean-up notice to the site on 27 October 2014. The defendant was not at the site, but the notice was received by a man who identified himself as Jeremiah Trotter.
3. On 28 October 2014, Mr Joyce called the defendant to advise that the prosecutor had received results from the five samples taken from the site by Ms Gallagher and that the results confirmed the presence of asbestos on the site.
4. On 30 October 2014, Mr Joyce attended the site and observed that silt mesh fencing had been installed on the eastern boundary of the site, near the edge of the drainage line. He deposes that the drainage line contained a large amount of wind-blown litter and that that mesh fencing was unlikely to adequately control the movement of sediment into the waterway.
5. Also on 30 October 2014, Mr Joyce deposes that there was still far more than 2,500 tonnes or cubic metres of waste on the site, but that it appeared no further waste had been deposited at the site since 24 October 2014, apart from some concrete waste.
6. On 20 November 2014, Mr Joyce again attended the site, accompanied by Ms Gallagher. He deposes that there was still far more than 2,500 tonnes or cubic metres of waste on the site but that no further waste had been deposited since his last attendance at the site.
7. Mr Joyce observed that there had not been compliance with the asbestos controls contained in the clean-up notice. The defendant explained to him that he did not consider these were necessary as the site was secure and the asbestos was bonded. An air-monitoring facility on the site was operated by Mr Milligan, who explained to Mr Joyce that there had been "no exceedances of respirable fibres".
8. On 24 November 2014, Mr Joyce received an email from the defendant containing the test results of surface water sampling.
9. On 5 December 2014, Mr Joyce received an email from the defendant attaching a document styled "Asbestos Management Plan for Building Waste Stockpile at 509 Tomago Road, Tomago". Mr Joyce states that the document dealt with only one of the nine stockpiles at the site.
10. After a period of correspondence and the prosecutor having allowed an extension of time to comment upon the clean-up notice, a clean-up notice was issued on 22 December 2014. The defendant contacted the prosecutor requesting a meeting, which was arranged for 11 February 2015 at the prosecutor's offices. The meeting took place on that day, with Mr Joyce, Ms Gallagher and the defendant in attendance.
11. The minutes Mr Joyce took at the meeting of 11 February 2015 are annexed to his affidavit. They record that the defendant reported NWR needed revenue to continue compliance with the clean-up notice and requested that he recommence receiving skip bin waste. The defendant also stated that there had been a "gross error" in the waste classification. Mr Joyce told the defendant that the prosecutor would advise him with respect to the recommencement of NWR's operations and the reclassification of waste on the site.
12. On 13 April 2016, Mr Joyce and Ms Caruana inspected the site. Mr Joyce deposes that a drainage line had been excavated along the eastern boundary and filled with waste, comprising crushed concrete, brick and tile. A drainage pit was excavated and an excavator was parked adjacent to the excavated area.
13. Mr Joyce further deposes that he saw a blue waste processing machine, which by all indications had recently been used. The wood waste stockpile was much smaller in size than it had been on 24 October 2014.
14. On 26 April 2016, Mr Joyce inspected the site again with Ms Gallagher. Mr Rands was also in attendance on that occasion. The clearing around the processing machine was larger than it had been on 13 April 2016, and the wood waste stockpile had further decreased in size. Ms Gallagher took a number of fibro samples from around the area of the processing machine as it was suspected that they contained asbestos.
15. On 27 April 2016, Mr Joyce again attended the site, accompanied this time by Alisha Madsen, an officer with the prosecutor. They met with surveyors who were completing their survey and issued Mr Rands with another copy of the clean-up notice. Mr Rands noted that the notice was issued to NWR, and that NWR was not carrying out the works. Mr Joyce replied that the notice related to the land and the waste, and that Mr Rands should consider the notice before making any plans in respect of the site.

Conclusions on the contested facts

1. A circumstance of aggravation must not be taken into account in sentencing unless the prosecutor has discharged its onus of establishing it beyond a reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]; Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council [2018] NSWCCA 56 at [92].
2. The majority of the further evidence relied upon by the prosecutor, even if established beyond reasonable doubt, is not capable of establishing any aggravating factors as such. For example, evidence of the conversations between the defendant and Council as to whether work being undertaken on the site by NWR required further consent "cuts both ways", as Mr Bateman, solicitor for the prosecutor, properly informed the Court. Whether modifications to the Consent were required is unnecessary for the Court to determine, but it is at least not detrimental to the defendant's case that he properly sought to amend the Consent when informed that it may be defective in some way.
3. In the circumstance that no evidence was called by the defendant, and the defendant did not object to any of the evidence tendered by the prosecutor, I accept the sworn evidence of the prosecutor's witnesses. However, for the most part, this evidence does not raise matters outside the ASOF, although some of the material is useful to place the ASOF in a proper context.

Principles relating to sentencing

1. The POEO Act sets out the matters which are to be taken into account when sentencing for offences committed under that Act.
2. Section 241 provides: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant.
3. Also of relevance are the principles set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act'). 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
4. Subsections 21A(2) and (3) of the Sentencing Act also set out numerous aggravating and mitigating factors that the Court must take into account, where they arise in the circumstances.
5. Importantly, the sentences to be imposed on the defendant for the offence must be proportionate to both: the objective seriousness or gravity of the offence; and the personal or subjective circumstances of the defendant.

Objective circumstances

1. In determining the objective seriousness or gravity of the offences, the relevant objective circumstances are: the nature of the offence; the maximum penalties under the relevant acts; the reasons for committing the offence; the environmental harm; the foreseeability of the risk of environmental harm; the practical measures to prevent environmental harm; the control over the causes giving rise to the offences; and whether the offences were committed with any state of mind or for financial gain. I will consider each in turn.

Nature of the offences

1. The nature and purpose of the statutory provision that has been contravened and its place in the statutory scheme is illustrative of the objective seriousness of an environmental offence: Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719 ('Coe Drilling') at [128]-[129], [133]; Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at 242-246, 259; Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 at 290-291; Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 ('EPA v Orica') at [59].
2. Considering the objects of an Act can assist in identifying the purpose of creating an offence: Environment Protection Authority v Le Dome Pty Ltd [2002] NSWLEC 167; (2002) 125 LGERA 121 at 132; Coe Drilling at [132]. Accordingly, in determining the appropriate sentence to be imposed on the defendant, it is instructive to have regard to the objects of the POEO Act.
3. The relevant objects of the POEO Act are as follows: 3 Objects of Act The objects of this Act are as follows: (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, … (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following: (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection… …
4. The prosecutor submits that the POEO Act and the Protection of the Environment Operations (Waste) Regulation 2005 (NSW) ('Waste Regulation') (repealed 1 November 2014, but in force during the charge period) established a highly regulated scheme with respect to the transportation, storage, and disposal of waste. Clause 42 of the Waste Regulation provided: 42 Special requirements relating to asbestos waste (1) This clause applies to any activity that involves the transportation, disposal, re-use or recycling of any type of asbestos waste, regardless of whether the activity is required to be licensed. (2) A person who carries on an activity to which this clause applies must comply with the requirements specified in this clause in relation to the activity concerned. Maximum penalty: 400 penalty units in the case of a corporation, 200 penalty units in the case of an individual. (3) The requirements relating to the transportation of asbestos waste are as follows: (a) bonded asbestos material must be securely packaged at all times, (b) friable asbestos material must be kept in a sealed container, (c) asbestos-contaminated soils must be wetted down, (d) all asbestos waste must be transported in a covered, leak-proof vehicle. (4) The requirements relating to the off site disposal of asbestos waste are as follows: (a) asbestos waste in any form must be disposed of only at a landfill site that may lawfully receive the waste, (b) when asbestos waste is delivered to a landfill site, the occupier of the landfill site must be informed by the person delivering the waste that the waste contains asbestos, (c) when unloading and disposing of asbestos waste at a landfill site, the waste must be unloaded and disposed of in such a manner as to prevent the generation of dust or the stirring up of dust, (d) asbestos waste disposed of at a landfill site must be covered with virgin excavated natural material or other material as approved in the facility's environment protection licence: (i) initially (at the time of disposal), to a depth of at least 0.15 metre, and (ii) at the end of each day's operation, to a depth of at least 0.5 metre, and (iii) finally, to a depth of at least 1 metre (in the case of bonded asbestos waste or asbestos-contaminated soils) or 3 metres (in the case of friable asbestos material) beneath the final land surface of the landfill site. (5) A person must not cause or permit asbestos waste in any form to be re-used or recycled. (6) In this clause: bonded asbestos material means any material (other than friable asbestos material) that contains asbestos. friable asbestos material means any material that contains asbestos and is in the form of a powder or can be crumbled, pulverised or reduced to powder by hand pressure when dry.
5. In Environment Protection Authority v Hanna [2010] NSWLEC 98, Craig J said, in relation to the nature of the offence in that case which was the unlawful transporting or depositing of waste, at [38]: The objective seriousness of the offence is illuminated by the nature of the statutory scheme. Relevant to the offences charged, the legislature has prescribed a highly regulated scheme for the disposal of waste. This is undoubtedly due to the harm to the environment, including risk to human health, which is, or may potentially be caused by the improper disposal of waste. By reference to the definitions of both "pollution" and "harm" found in the POEO Act, disposal of waste other than at a licensed facility is taken, for the purposes of the POEO Act, to have caused environmental harm.
6. The prosecutor submits that this comment is equally apposite to the storage of waste without a licence, particularly in the circumstances of this case. Therefore, the prosecutor submits that, having regard to the fact that cl 42 of the Waste Regulation makes detailed provision for the dealing of asbestos, the offence undermines the legislative objectives of the POEO Act, in particular ss 3(a), (d)(i), (d)(ii), and (d)(iia), as well as the objectives of s 144(1) of the POEO Act.
7. I find that, as submitted by the prosecutor, and as I consider in relation to environmental harm and the regulatory scheme at [125] below, the offence does undermine the legislative objectives and integrity of the POEO Act.

Maximum penalty

1. The maximum penalties for offences are relevant in determining the objective gravity of the offence. The maximum penalty is an expression of the seriousness with which Parliament views these offences (see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21 at 698), and the defendant's offending should be considered in this light.
2. At the time of the offence, the maximum penalty for an offence in contravention of s 144(1) of the POEO Act for an individual was $250,000 (s 144(1)(b)).

Reasons for committing the offence

1. The prosecutor submits that NWR's business was established to produce a profit, but concedes there is no evidence that the defendant personally received a profit from his work at the site. However, the prosecutor submits that the defendant was a beneficiary of the commercial gain of NWR, and that NWR also gained a commercial advantage by not paying the licencing fees for an EPL.
2. The defendant submits that the sole purpose of his involvement in NWR was to allow him to spend more time at home with his family. He submits that this has not eventuated and that, far from making money from NWR, he is yet to repay a friend's investment.
3. I accept that whilst it was the intention of the defendant that he would profit from the endeavours of NWR, there is no evidence that he enjoyed any monetary benefit or profit.

Environmental harm

1. Section 241(1)(a) of the POEO Act requires the Court to take into account "the extent of the harm caused or likely to be caused to the environment by the commission of the offence".
2. The Dictionary to the POEO Act defines the term "harm" as follows: harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.
3. In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 ('Waste Recycling'), Preston CJ of LEC discussed what is meant by harm at [145]-[149]: [145] Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. [146] Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174]. [147] Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously. … [149] The fact that the environment harmed by the offender's conduct was already disturbed or modified is not a mitigating factor: State Pollution Control Commission v White Wings Ltd. (unreported, Land & Environment Court, No 50129 of 1991, Bignold J, 1 November 1991) at p 4; Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269 at 273 [14]; Environment Protection Authority v Coggins (2003) 126 LGERA 219 at 224 [18]; Environment Protection Authority v Abigroup Contractors Pty Ltd [2003] NSWLEC 342 (15 December 2003) at [24]; Environment Protection Authority v Arenco Pty Ltd [2006] NSWLEC 244 (9 May 2006) at [26].
4. The meaning of the words "likely to be caused to the environment" was considered by Lloyd J in Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 at [44]: In considering the harm likely to be caused to the environment, it is to be noted that the word "likely" in this context has been held to mean "a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance" (Mathews v Goulburn Wool Processors, NSWSC, Smart J, 6 November 1986, unreported); "only a real chance or possibility, and not more probably than not" (State Pollution Control Commission v Blayney Abattoirs Pty Ltd (1991) 72 LGERA 221 at 224); and "does not mean 'probable'. It means 'a real possibility'" (New South Wales Sugar Milling Co-operative Ltd v State Pollution Control Commission (1991) 73 LGRA 86 at 100, affirmed by the Court of Criminal Appeal on other grounds, (1992) 75 LGRA 320).
5. As per [47] above, it is an agreed fact that the offence caused actual harm to the environment in that the waste processing resulted in: 1. Waste being deposited on the surface of the site; 2. Material being deposited on the site constituting asbestos contamination; 3. Impurities being emitted into the air after catching fire; and 4. An impact upon the visual amenity of the site.
6. It is further agreed that the environmental harm is not short term and that there is the potential for the waste to cause further harm, including by negatively impacting on the health of staff onsite and other persons in the surrounding premises and by catching fire.
7. The prosecutor submits that there was further potential harm, which it says is "serious potential harm" in relation to the potential of the contaminated waste, in particular the asbestos, to cause health impacts to the staff or other persons in the surrounding premises.
8. The prosecutor submits that the fact the site was contaminated before NWR took occupation of the site is not a relevant consideration when assessing the environmental harm: Waste Recycling at [149].
9. There was some dispute as to the quantity of "asbestos waste" on the site. Clause 50 in Sch 1 of the POEO Act defines asbestos waste as any waste containing asbestos. The prosecutor submits that, although the asbestos waste contained in the skip bins was relatively confined, there is five tonnes of asbestos waste on the site by virtue of cl 50.
10. In Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2018] NSWLEC 99 ('Grafil'), Pain J said at [522]: The definition of asbestos waste in cl 50(1) Sch 1 is any waste which contains asbestos. At issue in this case is how "contains" and "waste" should be construed. There is little guidance from the statutory context of the definition. The construction adopted by the EPA that one piece of asbestos of any type renders an entire stockpile regardless of its size to be "asbestos waste" gives rise to a potentially absurd and impractical outcome. It gives "contains" essentially no work to do. Grafil's submission that the pieces of pipe or fibreboard or other waste that contain the asbestos mineral are the items in a stockpile that are properly considered "asbestos waste" is arguably at the other extreme of a possible application of "contains". It is certainly a literal application. Grafil's submission that waste in a heterogeneous stockpile alongside asbestos does not "contain" asbestos does give the word "contains" more work to do. Ultimately I do not intend in this case to determine if Grafil's primary approach to construction is appropriate. Whether a stockpile of material can be considered "asbestos waste" is a matter of fact and degree as Grafil also submitted and must depend on the nature of the waste and the volume. The direct application of findings based on different facts in Pullen is not relevant, as Grafil submitted. While Foxman considered building and demolition waste the approach to statutory construction in relation to asbestos was quite different.
11. The prosecutor submits that her Honour erred in Grafil in finding that "whether a stockpile of material can be considered 'asbestos waste' is a matter of fact and degree" and that the approach in Environment Protection Authority v Foxman Environmental Development Services [2015] NSWLEC 105 at [225]-[231] and Pullen v Smedley [2017] NSWSC 1721 at [315]-[324] is to be preferred.
12. I do not consider that it is necessary or appropriate to express a view on what quantity of the waste constituted asbestos waste within the terms of the POEO Act. That is because, first, it is not an element of the offence that the waste stored on the site must be asbestos waste, and, secondly, because whether or not the waste should be legally classified as "asbestos waste" does not alter the level of environmental harm. The amount of asbestos actually on the site will be unchanged regardless of whether in the terms of the POEO Act the waste should be classified as asbestos waste.
13. However, it is clear that there was material including asbestos on the site, and that asbestos was found in eight of the nine stockpiles tested. The evidence in this regard is both agreed and incontrovertible.
14. I accept, in accordance with the ASOF, that the offence did cause actual harm to the environment, although I do not consider that the impact upon the visual amenity of the site was significant.
15. Further, although the ASOF notes agreement as to harm, the precise detail and scope of the actual harm are unclear. Despite this, I consider that the failure to obtain an EPL fundamentally undermines the regulatory scheme of potential environmental damage from the type of activity undertaken by NWR especially in relation to prior assessment and ongoing management. In relation to this aspect, I accept the comment of Craig J, albeit in a different factual context, in Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 at [23]: There is no evidence that this offence caused any actual harm to the environment. However, that is not the end of the matter. There was certainly the risk of harm occasioned by an output from the quarry that more than doubled the limit imposed both by the Development Consent and by the condition of the EPL. That risk or potential arises from the possibility of increased levels of dust, noise and impact upon existing water management facilities. There is undoubtedly harm occasioned by the undermining of the regulatory scheme imposed by the POEO Act as well as the lost opportunity for prior environmental assessment before production from the quarry was increased to the level that, in fact, occurred (Minister for Planning v Coalpac Pty Ltd [2008] NSWLEC 271 at [37]).

Practical measures which may have been taken to prevent or mitigate the environmental harm

1. Section 241(1)(b) of the POEO Act requires the Court to take into consideration any practical measures which may have been taken to prevent, control, abate, or mitigate the environmental harm.
2. The prosecutor submits that the following practical measures could have been taken to prevent, control, abate, or mitigate the harm: 1. Maintaining the volume of waste below the 2,500 cubic metre threshold; 2. Properly training employees in waste classification so that asbestos waste could be identified and rejected before being stored; 3. Obtaining an EPL, incorporating appropriate water management, waste management, and pollution incident response plans; and 4. Operating in accordance with the EPL so obtained.
3. The defendant says that, in retrospect, NWR should have obtained an EPL. However, he says that much of the documentation that would have been required for such an EPL application had already been obtained in relation to the applications made to Council to modify the Consent.
4. The defendant also says that to be able to correctly classify waste would require a person with tertiary qualifications in environmental science along with access to a laboratory to assess and identify the waste. He submits that he was unable to train employees in this regard and to have someone present on the site with those qualifications would not have been feasible.
5. I find that there were practical measures that could have been taken by the defendant to prevent, control, abate, and mitigate the environmental harm and that these include the matters raised by the prosecutor at [127] above.

Foreseeability of the harm

1. Section 241(c) of the POEO Act requires the Court to have regard to the foreseeability of the harm.
2. The prosecutor submits that the environmental harm caused and likely to be caused was clearly foreseeable to the defendant. It says that the defendant should be taken to be aware of the environmental impacts associated with waste storage given his history in the waste industry and that he was aware of the amount of waste stored on the site as well as the circumstances in which it was stored.
3. I find that, given his history in relation to the waste industry and his involvement in earlier projects, the defendant would have been aware that a failure to follow the regime provided for in the POEO Act had the potential to cause environmental harm.

Control over causes

1. Section 241(d) of the POEO Act requires the Court to have regard to the defendant's control over the causes which gave rise to the offence.
2. The prosecutor submits that the defendant had "extensive control" over the causes of the offence. It notes that the defendant was the day-to-day site manager, kept a spreadsheet to inform himself of the amount of waste received and how much was removed from the site, and liaised directly with businesses bringing waste onto the site. It also submits that the defendant was the person responsible for ensuring the staff members of NWR were properly trained.
3. Although the defendant was not a director of NWR, the prosecutor submits that he acted "for all intents and purposes" as a director of NWR. Consequently, it says that he had the ability to refuse to accept asbestos waste, to otherwise cause NWR to cease accepting waste above the licencing threshold, and to audit the waste on site.
4. I find that the defendant had control over the causes of the offence. Whilst some responsibility would clearly have rested with Mr Rands, the defendant, given his daily attendances at the site and conduct, was the primary operative responsible for the day-to-day activities on the site.

State of mind

1. While intention is not an element of strict liability offences such as the offence the subject of these proceedings, an offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed: Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42]; Environment Protection Authority v Geoff Robinson Pty Ltd; Environment Protection Authority v Robinson [2011] NSWLEC 14 ('Geoff Robinson') at [83].
2. The prosecutor notes that the defendant has been in the waste industry since the 1990s and was the director of a company that had leased a waste facility. Moreover, the prosecutor notes that the defendant was the site manager, ran the day-to-day business of NWR, liaised with contractors about development consent matters, and kept a spreadsheet recording how much waste was brought onto and removed from the site.
3. The prosecutor submits that in those circumstances, the defendant acted intentionally in promoting the events which gave rise to the offence. The prosecutor submits that the defendant should be taken to have been aware that there was at least a risk than an EPL was required, and that based on the spreadsheet he kept, he must have been aware that more than 2,500 cubic metres of waste was being stored on the site.
4. If the Court finds the offence was not committed intentionally, the prosecutor submits that the defendant acted at least negligently. The appropriate test for criminal negligence is that of "indifference to an obvious risk": EPA v Orica at [114].
5. The prosecutor notes that the relevant licencing threshold of 2,500 cubic metres was first introduced in 2008, and that the defendant was at least indifferent to the obvious risk that NWR was storing waste in excess of that threshold, having regard to his experience in the waste industry and his involvement in the day-to-day activity of the site.
6. In his written outline of submissions, the defendant concedes that he may have been "negligent to some degree" but that he considers that the risk of harm was minimal. Given that he is not legally represented, I am reluctant to take this as an admission of criminal negligence, and, in the circumstances, the prosecutor clarified that it does not rely on the defendant's statement as an admission of criminal negligence.
7. It is also clear that, under s 169(1)(c) of the POEO Act, a failure to exercise "due diligence" is an element of the offence with which the defendant was charged. In those circumstances, if the defendant merely failed to exercise due diligence in preventing the commission of the offence under s 144(1), I would be unable to take that into account as an aggravating circumstance.
8. I do not consider the prosecutor has established that the offence was "intentional" beyond a reasonable doubt. However, notwithstanding the fact that a failure to take due diligence is an element of the offence, and although I have not taken the defendant's "admission" into account, I characterise the defendant's actions as criminally negligent for a person involved in the waste industry who was required to be familiar with the regulatory scheme.

Conclusion on objective seriousness

1. Having regard to the above circumstances, the prosecutor submits that the offence should be treated as "objectively serious" and "towards the upper end of the lower range of seriousness" for offences under s 144(1) of the POEO Act.
2. Taking into account the matters above, and in particular my findings at [105], [110], [124]-[125], [130], [133], [137] and [145], I consider that the offence is in the lower range of objective seriousness for offences under s 144(1) of the POEO Act.

Subjective circumstances

1. Consideration of the subjective circumstances requires consideration of those matters that relate to the defendant himself, rather than to the offence that gave rise to the charge to which he has pleaded guilty. Section 21A of the Sentencing Act which provides for mitigating factors which are to be taken into account as follows: (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23), …
2. The prosecutor submits that the matters under s 21A(3)(e), (i), (k) and (m) are of relevance.

Prior criminality

1. The defendant does not have any prior criminal record in relation to environmental offences, which is a mitigating factor under s 21A(3)(e) of the Sentencing Act.

Contrition and remorse

1. Under s 21A(3)(i) of the Sentencing Act, the Court must take into account the contrition and remorse of an offender.
2. In its written outline of submissions, the prosecutor states "there is presently no evidence of contrition or remorse".
3. In his written outline of submissions, the defendant describes feeling "aghast" at seeing the prosecutor's claim that he had not displayed remorse and contrition. He says that he would have thought "anyone with even a basic understanding of my position and these proceedings [would have] understood that this has been the worst decision of my life and the circumstances in which I find myself are far worse than before this venture began". He expanded upon this statement in his oral submissions.
4. I accept that the defendant has displayed genuine contrition and remorse and has sufficiently communicated that to the Court.

Guilty plea

1. Under s 21A(3)(k) and s 22 of the Sentencing Act, the Court must take into account an offender's plea of guilty.
2. The prosecutor submits that the defendant should be entitled to a discount at the "top end of the range" reflecting the utilitarian value of the plea. However, it says the defendant should not receive the full 25% discount because the plea was not entered on the earliest opportunity.
3. The defendant stated that he was unaware that he was able to plead guilty earlier than he did.
4. The defendant pleaded guilty on the third occasion the matter came before the Court. It appears from the Court's records that on the first occasion there was some concern about whether the summons had been commenced within time. On the second occasion, the matter came before me as List Judge and I expressed some concern about accepting a guilty plea in circumstances where the defendant did not have the benefit of legal representation. The defendant pleaded guilty when the matter came before me again as List Judge on 20 February 2018.
5. In R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160], Spigelman CJ, with whom Wood CJ at CL, Foster AJA, and Grove and James JJ agreed, provided the following guidelines: [160] The Court should adopt the following guideline applicable to offences against State laws: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.
6. In Chief Executive, Office of Environment and Heritage v Essential Energy [2017] NSWLEC 27, Pain J discussed the principles relating to the utilitarian discount at [65]-[67]: [65] The Defendant relied on the High Court's decision in Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 to support its argument. In Cameron the majority of Gaudron, Gummow and Callinan JJ said at [13] that regard should be had to the subjective perspective of a defendant's "willingness... to facilitate the course of justice". The relevant enquiry of a sentencing judge is not simply to look at when the plea was entered but to consider when would have been the first reasonable opportunity for a plea to be entered, at [19]-[20]. Cameron also cited at [21] with approval Atholwood v The Queen (1999) 109 A Crim R 465 in which negotiations between the parties led to the withdrawal of several charges and the defendant pleaded guilty to one of the remaining charges. This was held to be an early plea of guilty. [66] The Court of Criminal Appeal distinguished Cameron in R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142. It held at [38]-[53] that Cameron concerned the application of general sentencing principles in the context of common law principles that had been modified by statute in NSW. Section 22 of the CSP Act permits courts to take into account the objective utilitarian value of the plea, at [62]. A sentencing judge need not be satisfied by any subjective willingness on the part of a defendant to facilitate the administration of justice. [67] The utilitarian value of an early plea of guilty is emphasised in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102. Principle 8 in Borkowski at [32] states "Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced". In R v AB [2011] NSWCCA 229 Bathurst CJ said at [3] that while sentencing courts should generally follow the approach in Borkowski in exceptional circumstances it may be appropriate to give a full utilitarian discount for a plea even though it had not been entered at the earliest opportunity. The circumstances leading up to the Defendant's plea at the seventh directions hearing on 26 August 2016 are not "exceptional" as Bathurst CJ referred to at [3] in AB.
7. In the present circumstances, particularly having regard to the fact that the defendant was without representation, and whilst acknowledging that the plea was not entered at the "earliest opportunity", I consider that the circumstances are sufficiently exceptional to give the defendant the benefit of the full utilitarian discount. I note in this regard that the prosecutor accepted in the ASOF that the defendant had indicated his intention to plead guilty "at the earliest opportunity".

Assistance to law enforcement authorities

1. Under s 21A(3)(m) and s 23 of the Sentencing Act, the Court must take into account the assistance given by an offender to law enforcement authorities.
2. The prosecutor submits that the defendant assisted the prosecutor by participating in a recorded interview, by indicating his intention to plead guilty at the earliest opportunity, and by agreeing to the ASOF.
3. The defendant submits that "at all times I followed the verbal and written directions of the EPA officers and their clean-up notices immediately and completely".
4. The prosecutor accepts that this submission is true for the majority of its interactions with the defendant, but expresses concern in relation to compliance with the final clean-up notice.
5. Whilst I accept that there was a concern regarding NWR's compliance with the clean-up notice, I find that the defendant sought to follow the directions of the prosecutor's officers and has given his assistance to the enforcement authorities.

General deterrence

1. The prosecutor submits that general deterrence is a vital consideration under environment protection legislation. In this regard, it cites the comment of Mahoney JA in Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359: The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure that pollution does not occur.
2. In Environment Protection Authority v Smart Skip (NSW) Pty Ltd [2009] NSWLEC 204 ('Smart Skip'), Pain J stated, in respect of the present provision, at [35]: Given the importance of enforcing the regulatory regime for the management of waste by those operating waste facilities for profit, general deterrence is an important consideration. A nominal fine will not be sufficient.
3. I accept the prosecutor's submission, and find that there is a need for general deterrence.

Specific deterrence

1. The prosecutor submits that in the event that the defendant continues to work in the waste industry, or does so at some point in the future, an element of specific deterrence is warranted.
2. Whilst I acknowledge that the defendant indicated that he has no intention of returning to the waste industry, I find that given his reasonably lengthy involvement in the waste industry, there is some limited need for specific deterrence.

Section 6 of the Fines Act

1. Section 6 of the Fines Act 1996 (NSW) ('Fines Act') provides: 6 Consideration of accused's means to pay (cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A) In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
2. In Rahme v R (1989) 43 A Crim R 81 ('Rahme') at 86-7, Finlay J, with whom Studdert J agreed, said: That case [Jamieson (1975) 60 Cr App R 318] is authority for the broad proposition that once determination has been made that a fine should be imposed the correct procedure in assessing the appropriate amount of the fine is to determine it by reference to the gravity of the offence for which it is imposed. If the court is satisfied that the offender would be unable to pay the amount determined it may reduce it to take account of the offender's means and impecuniosity. For my part, I do not think that his Honour erred in fixing $22,000 by reference to the gravity of the offence for which it was imposed, but on the material available, as it appears on the face of it that the appellant would be unable to pay that amount, the fine in my opinion is required to be reduced.
3. Rahme was cited with approval in Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull [2017] NSWLEC 141 by Preston J at [191].
4. The prosecutor submits that, in the present case, there is insufficient evidence to establish that the defendant is unable to pay whatever fine the Court may impose. In this regard, it submits: 1. Whilst it is agreed the defendant has previously been bankrupt, there is no evidence as to his present financial position; 2. In Shoalhaven City Council v Hayes [2018] NSWLEC 65, Moore J found at [105] that there was insufficient evidence upon which to exercise the discretion in s 6 of the Fines Act to reduce the fine where the defendant only gave oral evidence as to his financial position; and 3. Under s 82(3) of the Bankruptcy Act 1966 (Cth), court-imposed fines are not provable in bankruptcy and are therefore payable during and after the period of bankruptcy.
5. The defendant, during the course of oral submissions, said that he does not make very much money, and estimated his income in the vicinity of $55,000 to $65,000 per year. The defendant tendered his individual income tax returns for the financial years ending June 2014, 2016 and 2017. He said that he and his wife are still attempting to repay a friend who lent them money to invest in NWR. He said neither he nor his wife owns any assets or shares, and that he does not have a bank account in his own name.
6. The prosecutor did not object to the defendant's submissions but submitted that they should be given less weight as they were not the subject of sworn evidence.
7. I accept that the defendant has a relatively limited capacity to pay a large fine and will take that factor into account in sentencing.

Appropriate sentence for the offence

1. In determining the appropriate penalty for the offence, I take into account the objective circumstances of the offence and the subjective circumstances of the defendant, as I have considered above. Further, I take into account the purposes of sentencing in s 3A of the Sentencing Act. There is a need for the Court, through the sentences it imposes, to ensure that the defendant is adequately punished for the offence committed, held accountable for his actions, and denounced for his conduct in a manner which is proportionate to the seriousness of the offence (Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146 at [110]).
2. In determining the appropriate penalty, the Court should be consistent with any pattern of sentencing for like offences. The prosecutor referred me to two decisions of the Court which it submitted I should take into account in relation to even-handedness: Geoff Robinson and Smart Skip.
3. I have had regard to the matters considered by this Court in those decisions. Nevertheless, each case turns upon its particular facts and caution must be exercised in considering other cases because of the "…inevitable disparity between subjective and objective circumstances applicable to those cases, compared to the same circumstances found to exist in this case": Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71 at [45].
4. In Geoff Robinson, Pepper J considered a number of earlier decisions considering offences against s 144(1) of the POEO Act. I have considered those decisions and Pepper J's analysis of the earlier decisions, and I am conscious that a number of those cases concern the intentional commission of offences which makes them readily distinguishable from the present proceedings however I have taken some guidance from the range of penalties imposed.
5. In Smart Skip, the defendant was charged with an offence under s 144(1) of the POEO Act in circumstances where the premises, including waste facilities which stored, separated or processed more than 30,000 tonnes of waste per year, was required to hold an EPL. The circumstances of the case included there being no evidence of actual harm to the environment and the maximum penalty for an offence under s 144 of the POEO Act being at that time $1,000,000 for a corporation. After considering a number of cases (including those considered by Pepper J in Geoff Robinson), Pain J imposed a penalty on the corporate defendant in the sum of $50,000.
6. I am also conscious that discrimination is required when looking at sentences that shape the range of penalties that had been imposed in past sentences. As such, I accept that the highest penalty imposed in past sentences does not define or state the upper limit of the range of penalties for the offence and that provision needs to be made to account for views changing over time about the sentence that should be imposed in particular cases (Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140; (2017) 227 LGERA 290 at [235]-[240]).
7. Further, in considering the sentence imposed in the various cases to which I have been referred (and the further cases considered in those cases) I have not simply considered the sentences imposed but also the objective and subjective circumstances of the offences and the offenders involved that led the Court to selecting the appropriate penalty.
8. I take into account the objective seriousness of the offence and the mitigating, subjective circumstances of the defendant, as referred to above. I also take into account the need to impose a sentence that achieves the purposes of denouncing the conduct the subject of the offence in effect ensuring that the defendant is adequately punished for the offence, and making him accountable for his actions. This involves recognising the harm caused by the commission of the offence and providing appropriate deterrence both to the defendant and to other persons from committing similar offences.
9. In the circumstances and considering the factors referred to above, I consider the appropriate penalty for the offence committed by the defendant is a fine in the sum of $50,000. This figure should be discounted by 25% for the utilitarian value of the plea of guilty which results in a fine of $37,500.
10. The prosecutor does not seek its investigation costs, but it does seek its professional costs. The Court was advised that such costs are likely to be in the range of $25,000 to $30,000.
11. It is now well accepted that a fine and a costs order serve different purposes in that a fine serves the purposes of sentencing for the offence committed by the defendant including punishment whereas a costs order serves to compensate the prosecutor, and whilst it forms part of the punishment of the defendant, it is not of itself a reason to reduce the fine otherwise considered appropriate: Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50].
12. I have considered the financial means of the defendant to pay the fine and the costs order sought. I do not consider that the defendant has established that he would be unable to pay the amount of the fine I have determined as appropriate or the prosecutor's costs.

Orders

1. The Court makes the following orders: 1. Mr Edward Gilder is convicted of the offence against s 144(1) of the Protection of the Environment Operations Act 1997 (NSW) as charged. 2. Mr Gilder is fined $37,500. 3. Mr Gilder is to pay the prosecutor's costs of the proceedings in the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

Amendments 11 October 2019 - Typographical error in section of Act amended in par [191] (3). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2019