Environment Protection Authority v Elmustapha

Environmental Protection Authority v Dirt Doctors Geotechnical Testing Services Pty Limited (Local Court no. 2021/249896) Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Harrison v Perdikaris [2015] NSWLEC 99 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Dodd (1991) 57 A Crim R 349 at 354 R v MAK; R v K [2006] NSWCCA 381; 167 A Crim R 159 R v Nichols (1991) 57 A Crim R 391 R v Oliver (1980) 7 A Crim R 174 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Texts Cited: Legislative Assembly, 8 November 2005, Hansard p 19142 Legislative Assembly, 28 August 2013, Hansard p 22845-22847 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Ibrahim Elmustapha (Defendant) Representation: Counsel: A F Garsia (Prosecutor) T Poisel (Defendant)

Solicitors: Environment Protection Authority (Prosecutor) Swaab (Defendant) File Number(s): 2022/362296, 2022/362297, 2022/362298, 2022/362299, 2022/362300, 2022/362301 Publication restriction: Nil

Elmustapha Pleads Guilty to Six Waste Offences

1. The defendant, Ibraham Elmustapha, has pleaded guilty to six offences against s 144AA(1) of the Protection of the Environment Operations Act 1997 ("POEOA") for supplying information about waste to another person in the course of dealing with waste, being information that was false or misleading in a material respect. The six offences are over the following charge periods: 1. on 25 September 2017 ("offence 1"); 2. between 4 October and 5 October 2017 ("offence 2"); 3. between 1 November and 7 November 2017 ("offence 3"); 4. between 1 December and 5 December 2017 ("offence 4"); 5. between 22 December 2017 and 11 January 2018 ("offence 5"); and 6. between 8 March and 9 March 2018 ("offence 6").
2. For the reasons below, I find that a total penalty of $263,000 is appropriate for the six offences.

Elmustapha Operates Southland Waste

1. Between 9 February 2017 and 31 December 2018, Elmustapha was the sole director and sole shareholder of the company Southland Waste Pty Ltd (ACN 617 287 108) ("Southland Waste"). Southland Waste was deregistered on 13 February 2021.
2. Between 25 September 2017 and 9 March 2018 ("the relevant period"), Southland Waste was the occupier of a scheduled waste disposal facility at 8 Kiama Street, Bowral, NSW (Lot 13 DP 1022146 and Lot 14 DP 1022146) ("the Bowral landfill"). The premises on which the Bowral landfill was situated was owned by Bowral Landfill Pty Ltd during the relevant period.
3. During the relevant period, Southland Waste held Environmental Protection Licence no 13366 in respect of the Bowral landfill ("the EPL") and operated a waste disposal facility. Under the EPL, the Bowral landfill was authorised to accept no more than 5,000 tonnes of asbestos waste and no more than 50,000 tonnes of general solid waste per annum.
4. At all material times, Elmustapha was the operations manager at the Bowral landfill. He was the sole user of the email address "ibby@southernlandfill.com.au".
5. During the relevant period, some of the tax invoices relating to the disposal of waste at Bowral landfill were issued to Aiims Group NSW Pty Ltd ("Aiims") and QT Resources Pty Ltd ("QT").

Waste Reporting Requirements

1. Section 88 of the POEOA required Southland Waste, as the occupier of a waste facility to which that provision applied, to make payments to the Environment Protection Authority ("the EPA") as prescribed by the regulations in respect of all waste received at the facility ("waste contributions").
2. The reporting obligations for all occupiers of a scheduled waste facility such as Southland Waste were set out in Pt 2 Div 6 of the Protection of the Environment Operations (Waste) Regulation 2014 ("the Regulation").
3. Clause 22 of the Regulation requires the occupier of a scheduled waste facility who must pay contributions under s 88 of the POEOA to provide the EPA with the following information, within 26 days after the end of each month: 1. the quantity of waste received at the waste facility during that month; 2. the waste types (determined in accordance with the EPA's Waste Levy Guidelines) received at the waste facility during that month; and 3. any approved particulars relating to the waste facility.
4. The monthly reports are known as Waste Contribution Monthly Reports ("the WCMRs"). The WCMRs are required to be submitted through the EPA's online Waste and Resource Reporting Portal ("the WARRP"). To submit WCMRs via the WARRP, an individual must be set up with a system profile as an e-Certifier.
5. During the relevant period, Elmustapha was an e-Certifier for Southland Waste.

4Pillars Consulting and Compliance Reporting under the Consulting Agreement

1. 4Pillars Environmental Consulting Pty Ltd ("4Pillars") was an environmental consulting company. At all material times, James Hammond was the authorised representative of 4Pillars. Hammond used the email address "james@4Pillars.com.au".
2. On 17 February 2017 Southland Waste entered into an agreement with 4Pillars for the provision of environmental consultancy services ("the consulting agreement"). The consulting agreement was signed by Hammond and Elmustapha.
3. Under the consulting agreement, one of the services to be provided by 4Pillars was compliance reporting, which included the preparation of monthly waste levy reports using weighbridge data. These monthly waste levy reports used weighbridge data downloaded from the Bowral weighbridge.
4. 4Pillars completed the compliance reporting required under the consulting agreement as follows: 1. Hammond received the weighbridge data in an excel spreadsheet or in a PDF by email from Elmustapha using his email address; 2. Hammond, or a representative of 4Pillars, checked the data supplied by Elmustapha (including checking the waste disposal, docket numbers, and sequence check), and summarised the data into the categories required by the EPA Waste Levy Guidelines and as required for entry into WCMRs via the WARRP; 3. Hammond, or a representative of 4Pillars, used the information contained in that the weighbridge data to prepare and entered the WCMRs into the WARRP system; and 4. the report was sent to Elmustapha for certification as the e-Certifier.

The Commission of the Offences

1. During the relevant period, Elmustapha sent emails to Hammond attaching documents purporting to represent the weighbridge records for each relevant month. The weighbridge records provided in the spreadsheets appeared to follow a sequential numbering of weighbridge dockets and purported to be a complete representation of the amount of waste received at the Bowral landfill.
2. The information provided by Elmustapha to Hammond was false and misleading in a material respect because it was an incomplete reflection of the total waste received at the Bowral landfill for each month during each charge period. The documents failed to include information about waste received at the Bowral landfill from three particular waste transport companies, namely, Earthworx Group Pty Limited ("Earthworx"), Lantrak NSW Pty Limited ("Lantrak"), and Eastern Plant Hire NSW Pty Ltd ("EPH").
3. In summary, the basal facts giving rise to each offence are: 1. offence 1: the false and misleading information provided on 25 September 2017, did not include information regarding 71 truckloads, or 2,532.04 tonnes, of general solid waste and asbestos waste; 2. offence 2: the false and misleading information provided on 4 October and 5 October 2017, did not include information regarding 30 truckloads, or 1,091.34 tonnes, of general solid waste and asbestos waste; 3. offence 3: the false and misleading information provided on 1 November and 7 November 2017, did not include information regarding 205 truckloads, or 6,591.06 tonnes, of general solid waste and asbestos waste; 4. offence 4: the false and misleading information provided on 1 December and 5 December 2017, did not include information regarding 55 truckloads, or 1,907.24 tonnes, of general solid waste and asbestos waste; 5. offence 5: the false and misleading information provided on 22 December 2017 and 11 January 2018, did not include information regarding four truckloads, or 137.48 tonnes, of general solid waste (although it should be noted that the statement of agreed facts ("SOAF") stated that it was "asbestos waste", the summons filed on 1 December 2022 charged Elmustapha with failing to include information about "general solid waste"); and 6. offence 6: the false and misleading information provided on 8 March and 9 March 2018, did not include information regarding 65 truckloads, or 2002.08 tonnes, of asbestos soil.

The EPA Investigation

1. Prior to the investigation into Southland Waste in relation to these proceedings, the EPA obtained weighbridge dockets during the execution of a search warrant of a separate company's business premises on 22 March 2018. These weighbridge dockets appeared to have been altered and indicated that material had been disposed of at the Bowral landfill.
2. On 19 April 2018 the EPA contacted Elmustapha and requested copies of the original Bowral landfill weighbridge dockets issued to ACE. On that day, EPA officer Roberto Pupo had a telephone conversation with a source regarding material purportedly disposed of at the Bowral landfill.
3. Between 17 March and 1 May 2018, the EPA's waste and compliance audit team undertook covert surveillance and video monitoring of the Bowral landfill for the purpose of a waste levy compliance audit.
4. On 11 December 2018 the EPA's waste levy compliance unit issued a waste audit report to Southland Waste following the audit covering the period from 1 July 2017 to 30 June 2018.
5. On 12 December 2018 the EPA obtained a search warrant for the business premises of Southland Waste and executed the search warrant the next day. During its execution, Pupo conducted a directed interview with Elmustapha pursuant to s 203 of the POEOA.
6. On 1 March 2019 Elmustapha replied to a request for further answers to matters discussed during the directed interview.
7. On 18 March 2020 the EPA issued a notice to Elmustapha pursuant to s 203 of the POEOA, requiring him to nominate a time and place to participate in another directed interview.
8. On 18 August 2020 authorised officers of the EPA conducted a directed interview with Elmustapha at the offices of MinterEllison. On 25 August 2020 a follow up interview was conducted at the same location.
9. On 17 December 2020 an authorised officer of the EPA issued Elmustapha a notice pursuant to s 193 of the POEOA requiring him to provide information and/or records. On 27 January 2021 he provided a response to the notice requesting an extension of time to comply with the notice, which was granted on 29 January 2021, pursuant to s 212A of the POEOA by a variation notice. On 17 February 2021 Elmustapha provided a response to the notice.

EPA Commences Proceedings and Elmustapha Enters Pleas of Guilty

1. On 2 December 2022 the EPA commenced proceedings in the Court for twelve separate charges, six of which were pursuant to s 144AA(1) of the POEOA, and six of which were under s 169A of that Act. The difference between the charges is that the s 169A offences alleged that Elmustapha personally supplied the false or misleading information as the director of Southland Waste.
2. On 10 February 2023 the parties appeared before the Court for the first return date.
3. On 20 March 2023 Elmustapha sent through a series of representations to the EPA.
4. On 19 April 2023 two emails were sent from the EPA to Cole responding to the representations.
5. On 24 April 2023 the EPA advised that it would not be withdrawing six of the twelve summonses.
6. On 2 May 2023 Elmustapha proposed a plea negotiation.
7. On 4 May 2023 Elmustapha advised that it would reserve his right to a reduction in penalties at the following directions hearing.
8. On 12 May 2023 the EPA advised by email that it would dismiss six of the twelve summonses if Elmustapha entered a plea of guilty in relation to the remaining six summonses at the directions hearing listed for 19 May 2023.
9. On 19 May 2023, at the second directions hearing, Elmustapha entered a guilty plea in relation to the six offences, the subject of these proceedings.

The Legislative Regime Creating the Offences

1. Section 144AA(1) of the POEOA states that: 144AA False or misleading information about waste (1) A person who supplies information about waste to another person in the course of dealing with the waste, being information that is false or misleading in a material respect, is guilty of an offence. It is a defence in any proceedings against a person for an offence under this subsection if the person establishes that the person took all reasonable steps to ensure that the information was not false or misleading in a material respect. Maximum penalty - (a) for a corporation - $500,000, or (b) for an individual - $250,000. Note - An offence under subsection (1) 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.

Evidence Relied Upon by the Parties

1. In addition to the SOAF, Elmustapha relied upon a bundle of correspondence comprising three letters, two of which were dated 19 April 2023, and one of which was dated 12 May 2023, from the EPA to his legal representative.
2. The EPA relied upon the affidavits of: 1. Roula Alam, a solicitor of the EPA, sworn on 15 September 2023; and 2. John Felicetti, a Senior Waste Levy Compliance Officer employed by the EPA, sworn on 14 September 2023.

Sentencing Principles

1. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"): 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.
2. Subsections 21A(2) and (3) of the CSPA set out aggravating and mitigating factors that the Court must consider. Relevant to the facts of this case they are as follows: 21A Aggravating, mitigating and other factors in sentencing … (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows … (o) the offence was committed for financial gain… The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows- … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (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)…
3. For offences created by the POEOA, the Court is also required to consider the matters set out in s 241 of that Act: 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, … (2) The court may take into consideration other matters that it considers relevant.

Objective Circumstances of the Offences

1. The objective gravity of the offence fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).
2. The objective seriousness is to be determined by reference to the nature of the offences and not to matters that are personal to a particular offender (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).

Nature of the Offences

1. The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are illustrative of the objective seriousness of an environmental offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49] and Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).
2. The objects in s 3 of the POEOA relevantly include: 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, … (c) to ensure that the community has access to relevant and meaningful information about pollution, (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following - (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, (g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001.
3. Section 144AA gives effect to the objectives of the POEOA, particularly in respect of protecting, restoring and enhancing the quality of the environment (s 3(a)), reducing the risks to human health and preventing the degradation of the environment (s 3(d)), and strengthening the regulatory framework for environmental protection (s 3(e)). In Environment Protection Authority v Aargus Pty Ltd; Kariotoglou; Kelly [2013] NSWLEC 19 Craig J observed (at [54]-[55]): 54 …The need to be scrupulous in supplying accurate information about "waste" so that it is correctly categorised is necessary to ensure that pollution is prevented, and that harmful wastes can be eliminated. Moreover, the imposition of an offence for "false or misleading" information about waste is a mechanism designed to "strengthen the regulatory framework for environmental protection". 55 The provisions of the POEO Act regulate the storage, treatment, disposal and transport of waste. Premises that receive waste for disposal to land may, subject to stated exclusions, require a licence to operate. Correct classification of materials received at a site to which waste is taken is essential to the operation of the statutory system of licensing. Classifications of waste are found in cl 49 of Sch 1 to the POEO Act. One such classification is "special waste" which is defined as meaning (among others), "asbestos waste." Clause 50 of the Schedule defines "asbestos waste" as meaning "any waste that contains asbestos."

Maximum Penalty

1. The maximum penalty provided for an offence indicates Parliament's view as to the seriousness of that offence and provides a sentencing yardstick to measure the relevant features of the offences for which Elmustapha is to be sentenced (Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; and Rawson at [57]). Elmustapha's offending must be examined in this light (Harrison v Perdikaris [2015] NSWLEC 99 at [49]).
2. At the time that the relevant offences were committed, the maximum penalty for their commission by an individual under s 144AA(1) of the POEOA was $120,000. This maximum penalty was increased to $250,000 on 4 March 2022, thereby demonstrating the legislature's increased concern regarding the objective seriousness of the offence.

Elmustapha's State of Mind

1. The offences under s 144AA(1) are strict liability offences, where intention is not an element. Nevertheless, the state of mind of the offender may be relevant when assessing the objective seriousness of the offence.
2. The EPA submitted that Elmustapha's conduct was deliberate. Evidence of the intentional nature of his conduct included: 1. the fact that weighbridge dockets with duplicate, and not sequential, numbers were issued; 2. none of the three transporters, Earthworx, Lantrak and EPH, were recorded as customers in the weighbridge dockets provided to 4Pillars, suggesting that they were separated from the rest of the Bowral landfill customers; and 3. invoices with reference to the Bowral landfill weighbridge dockets were issued to the transporters from Aiims and QT, not from Southland Waste.
3. In the circumstances where this conduct was carried out repeatedly and systematically over a course of a number of months, the EPA submitted that it was planned and organised. However, the EPA clarified that it was not submitting that Elmustapha's acts were part of a planned or organised criminal activity.
4. Elmustapha did not contest that the emails including the false information were sent deliberately. However, he submitted that the Court should not have regard to his state of mind because he was charged with a strict liability offence under s 144AA(1), not an aggravated offence under s 144AA(2) which requires knowledge that information was false and misleading. In recognising that this aggravated offence had a far more significant maximum penalty for an individual in the amount of $240,000 and/or 18 months imprisonment, Elmustapha contended that the De Simoni principle (R v De Simoni [1981] HCA 31; (1981) 147 CLR 383) would be infringed if a more significant penalty was imposed based on his intentional state of mind.
5. Although intention is not an element of the s 144AA(1) offence, Elmustapha's state of mind is nevertheless relevant to the question of penalty. The Court can nevertheless have regard to his mental state in its assessment of his overall culpability, which is relevant to its assessment of the objective seriousness of the commission of the offences (Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [158] to [159] and [167] and Barlow at [57]).
6. Elmustapha further submitted that the EPA's reliance on the duplication of weighbridge dockets and the misleading nature of the information contained therein offended the De Simoni principle insofar as it picked up elements of s 144(1) of the POEOA, which is a different offence to that with which Elmustapha has been charged.

Elmustapha's Reasons For Committing the Offences

1. An offence committed for financial gain is objectively more serious (s 21A(2)(o) of the CSPA). It was not in dispute that when false or misleading information about certain waste deposited at the Bowral landfill was provided by Elmustapha to Hammond, Southland Waste evaded payment of $1,970,903.37 in levy liabilities to the EPA, and moreover, that Aiims and QT were paid $2,630,772.48 for the disposal of waste.
2. The total avoided waste levy may be broken down by each offence: 1. offence 1: the false and misleading information provided did not include 2,532.04 tonnes of waste, of which 163.90 tonnes was asbestos waste. The levy payment evaded was $349,927.93; 2. offence 2: the false and misleading information provided did not include 1,091.34 tonnes of general waste, of which 134.16 tonnes was asbestos waste. The levy payment evaded was $150,823.19; 3. offence 3: the false and misleading information provided did not include 6,591.06 tonnes of general waste, of which 4,545.35 tonnes was asbestos waste. The levy payment evaded was $910,884.49; 4. offence 4: the false and misleading information provided did not include 1,907.24 tonnes of general waste, of which 142.22 tonnes was asbestos waste. The levy payment evaded was $263,580.57; 5. offence 5: the false and misleading information provided did not include 137.48 tonnes of general solid waste. The levy payment evaded was $18,999.46; and 6. offence 6: the false and misleading information provided did not include 2002.08 tonnes of asbestos soil. The levy payment evaded was $276,687.46.
3. Although there was no direct evidential nexus between Southland Waste's conduct with monies received by Elmustapha, the EPA submitted that in circumstances where Elmustapha was the sole shareholder and director of Southland Waste, an inference was available that he engaged in the conduct of supplying the false or misleading information in order to obtain a financial benefit by avoiding the payment of the waste levy.
4. Elmustapha resisted the drawing of any such inference.
5. The saving of an expense that would otherwise be incurred but for the commission of the offence constitutes "financial gain" for the purposes of s 21A(2)(o) of the CSPA. In the absence of any evidence demonstrating that Elmustapha committed the offences inadvertently, I find that the offences were committed for financial gain resulting in a significant saving to the company, of which Elmustapha was the sole director and shareholder.

Harm Likely to be Caused to the Environment (s 241(1)(a) of the POEOA)

1. The extent of the harm caused or likely to be caused to the environment by the commission of the offences is relevant to their objective seriousness (s 241(1)(a) of the POEOA). Further, the Court must consider whether any injury, emotional harm, loss or damage caused by the offences was substantial (s 21A(2)(g) of the CSPA).
2. In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299, Preston J stated that harm includes both actual harm and potential harm (at [145]-[149]).
3. The words "likely to be caused to the environment" mean "a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance" (Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 at [44]).
4. It is settled law that harm can also result from conduct which undermines a regulatory scheme that seeks to prevent environmental damage (Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 at [23]).
5. It was agreed between the parties that there was no actual harm to the environment. Rather, at issue was whether the calculus of the potential environmental harm caused by the commission of the offences should include consideration of the fact that Wingecarribee Shire Council's ("the Council") had rejected Southland Waste's modification application to increase the Bowral landfill's waste capacity to 25,000 tonnes of asbestos waste and 225,000 tonnes of general solid waste.
6. The Council's reasons for rejecting the modification application were relevantly as follows: SCHEDULE 1 REASONS FOR REFUSAL … 2. Having regard to sections 4.55 (3) and 4.15 (1) (a) (iii) of the Act: (b) Council is not satisfied by the modification application or accompanying information that roads giving access to the land have sufficient capacity for increased vehicular traffic movements associated with the development to which the proposed modified consent relates. Consequently, Council considers the development to which the proposed modified consent relates unsatisfactory with respect to access and parking objective (C) in section B.5 of Council's applicable Industrial Land Development Control Plan: "To ensure traffic generated by industrial development does not affect local or regional traffic movements". (c) The proposed modification involves operational intensification of the development - given the land's proximity to properties used for the purpose of residential accommodation and its proximity to land in Zone R3 Residential Medium Density - Council considers likely to significantly detract from nearby residential amenity. Consequently, Council considers the development to which the proposed modified consent relates unsatisfactory with respect to environmental management objective (B) of Council's applicable Industrial Land Development Control Plan: "To ensure a high level of environmental quality and preserve the amenity of adjoining land uses (particularly residential)". 3. Having regard to sections 4.55 (3) and 4.15 (1) (b) of the Act, Council considers the development to which the proposed modified consent relates likely to have significant negative environmental, social and economic impacts in the locality, including with respect to context and setting, traffic, and noise considerations. 4. Having regard to sections 4.55 (3) and 4.15 (1) (c) of the Act, Council is not satisfied by the modification application or accompanying information that the land and development have sufficient capacity for increased vehicular traffic movements generated by the development to which the proposed modified consent relates…

The Practical Measures That May be Taken to Prevent or Mitigate the Environmental Harm (s 241(1)(b) of the POEOA)

1. It is somewhat trite to state that the practical steps required to prevent or mitigate the environmental harm was for Elmustapha, as the e-certifier for Southland Waste, to provide accurate information to Hammond in relation to the type and quantity of waste that was deposited at the Bowral landfill. Elmustapha did not cavil with this proposition.

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences (s 241(1)(c) of the POEOA)

1. It was uncontested that the likely environmental harm was reasonably foreseeable. I agree.

Elmustapha's Control Over the Causes of the Commission of the Offences (s 241(1)(d) of POEOA)

1. It was accepted that at all relevant times, as the sole director and shareholder of Southland Waste, Elmustapha had control over the causes of the commission of the offences.

Conclusion on the Objective Seriousness of the Offences

1. The EPA submitted that each of the six offences fell in the mid-range of objective seriousness because Elmustapha's conduct showed a disregard for the law and undermined the integrity of the highly regulated waste disposal scheme. Elmustapha contended that the commission of the offences fell within the low to mid-range of objective seriousness.
2. Having regard to all of the circumstances, I find that all of the offences, except for offences 3 and 5, were at the higher end of the middle range of objective seriousness.
3. Offence 3, which involved the omission of 6,591.06 tonnes of waste, was at the lower end of the high range of objective seriousness. Whereas offence 5, which involved the omission of 137.48 tonnes of general solid waste, was similarly at the lower end of the mid-range of objective seriousness.

Subjective Circumstances of Elmustapha

1. A proportionate sentence requires the Court to take into account any mitigating factors that are personal to Elmustapha (s 21A(3) of the CSPA). Relevant subjective circumstances presently include: 1. whether Elmustapha has demonstrated remorse for the commission of the offences (s 21A(3)(i) of the CSPA and see the remarks by Preston J in Waste Recycling at [203]-[215]); 2. when Elmustapha entered his guilty pleas (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]); 3. whether Elmustapha provided assistance to the regulatory authorities in the investigation and prosecution of the offences (ss 21A(3)(m) and 23 of the CSPA); 4. whether Elmustapha is of good character (s 21A(3)(f) of the CSPA); 5. whether Elmustapha has a prior criminal record (s 21A(3)(e) of the CSPA); and 6. Elmustapha's likelihood of reoffending and his prospects of rehabilitation (s 21A(3)(g) and (h) of the CSPA).

Early Pleas of Guilty

1. A guilty plea entered at the earliest available opportunity entitles a defendant to the full 25% discount for the utilitarian value of that early plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton at [152]).
2. There was disagreement between the parties in respect of whether the maximum discount should be applied to Elmustapha, who pleaded guilty to the six charges on 19 May 2023, that is, over five months after the proceedings were commenced on 2 December 2022.
3. The procedural history of the entry of the guilty pleas was summarised earlier in this judgment.
4. Between the first and second directions hearing, there were various consent orders to adjourn the proceedings to allow the issues raised by Elmustapha to be addressed. The email sent by the EPA to Matthew Cole on 19 April 2023 queried whether the proceedings had been commenced out of time; the proper particularisation of the charges under s 169A, whether the manner in which the separate charges had been particularised subjected Elmustapha to double jeopardy, whether there was a need for additional evidence, and the usual practice of the EPA in relation to a person who had given a directed interview and was subsequently charged with an offence.
5. Elmustapha argued that he had entered guilty pleas at the earliest available opportunity, namely, seven days after the EPA had agreed to dismiss the six offences charged under s 169A of the POEOA on 12 May 2023. He submitted that the utilitarian value of the guilty plea was not eroded because prior to this date, he was still being served with evidence by the EPA and there were ongoing discussions concerning which offences Elmustapha would enter pleas of guilty to.
6. I find that a 25% discount on Elmustapha's penalty is appropriate. There was value in the communications between him and EPA from March to May 2023, which resulted in the savings of both time and resources to the EPA and to the Court. The fact that a guilty plea was not entered on the first available opportunity is no impediment to the full 25% from being applied to the penalty of the offence (Environment Protection Authority v Afram [2022] NSWLEC 38 at [104].

Contrition and Remorse

1. There was no evidence of any remorse or contrition by Elmustapha for his offending.

Assistance to Authorities

1. The EPA submitted that Elmustapha's responses to the statutory notices issued by the EPA and his participation in multiple directed interviews did not support a finding that he had provided assistance to authorities. I agree. Elmustapha was compelled to provide this information and did not do so voluntarily.
2. The only relevant matter for the Court to take into account Elmustapha's participation in the preparation of the statement of agreed facts.

General and Specific Deterrence

1. The Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and makes Elmustapha accountable for his actions. In this regard, the Court is required to consider both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569 per Brennan J). One of the purposes of the Court in imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences. This purpose is enshrined in s 3A(b) of the CSPA (Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [188] and [192] and Environment Protection Authority v Rands [2019] NSWLEC 23 at [161]).
2. The penalty imposed by the Court must serve as a general deterrent (Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177]). General deterrence is essential "to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences" (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188]. See also Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 at 359).
3. I find that general deterrence should be reflected in the penalty to be imposed to create a clear disincentive to other waste companies contemplating the evasion of waste levies by providing false or misleading information about the type and quantity of waste deposited at landfills.
4. I also find that specific deterrence is necessary for the purposes of imposing an appropriate penalty on Elmustapha. Specific deterrence is especially relevant where an offender continues to operate in the same industry. In addition, it can catalyse rehabilitation so that an offender takes the requisite steps to prevent further offending (Environment Protection Authority v Ravensworth Operations Pty Limited [2012] NSWLEC 222 at [48] and Environment Protection Authority v M A Roche Group Pty Ltd; Roche [2013] NSWLEC 191 at [45]). Notwithstanding that Southland Waste has been de-registered, there was no evidence that Elmustapha is no longer involved in the landfill industry.

Prior Offences

1. There was no evidence of any prior convictions in respect of Elmustapha, which is a mitigating factor pursuant to s 21A(3)(e) of the CSPA.

Likelihood of Reoffending

1. Although Southland Waste has been de-registered and Elmustapha is no longer a director and shareholder of the company, again there was no evidence adduced by him that he was no longer involved in the waste disposal industry. Therefore, I cannot wholly rule out the chance of Elmustapha reoffending.

Consistency in Sentencing

1. The task of a sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107C). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case (Axer at 365). The sentence imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).
2. The EPA submitted a schedule of comparable cases, which the Court has had regard to in determining an appropriate sentence to be imposed on Elmustapha. Most relevantly, they include: 1. Environment Protection Authority v Aargus Pty Ltd; Kariotoglou; Kelly [2013] NSWLEC 19, where two charges under s 144AA(1) of the POEOA were brought against each defendant for providing false or misleading information in respect of a soil classification report and an asbestos clearance certificate. Craig J held that the offences were at the low range of objective seriousness (at [86]) having regard to the fact that there was a real and not remote chance of harm to the environment by the spreading of material from a contaminated stockpile and was capable of developing into health risks (at [65-70]), practical measures that could have been taken (at [75]), and each defendant having control over the preparation and provision of the offending statements in the report and certificate (at [64]). Aargus Pty Ltd had one prior conviction of making a false or misleading statement to an authorised person (at [89]). His Honour found that each defendant was unlikely to re-offend (at [96]) and had cooperated with the prosecutor by voluntarily participating in interviews, complying with statutory notices, and settling an agreed statement of facts (at [97]). Aargus Pty Ltd was fined $15,000 for each offence, Kariotoglou was fined $4,500 for each offence, and Kelly was fined $3,000 for each offence; 2. Environment Protection Authority v Ashmore [2014] NSWLEC 136, where Ashmore was charged with one offence under s 144AA(1) and one offence under s 143 of the POEOA in respect of weighbridge dockets. Craig J found that the offences were of moderate objective seriousness (at [60]), after expert evidence demonstrated that the disturbance of material containing asbestos posed a potential risk of harm to human health (at [51]), that practical measures such as the waste being taken to a proper licensed facility could have been taken (at [56]), that the harm caused was plainly foreseeable (at [57]), and that Ashmore had control over the causes that gave rise to the commission of the offences (at [58]). Craig J further found that Ashmore was acting under duress (at [90]), had no prior convictions (at [63]), cooperated with the authorities (at [95]), and had expressed contrition at remorse (at [96]-[98]). A 25% discount was also afforded to the defendant for the utilitarian value of his early guilty plea (at [62]). He was convicted and fined $20,000 for the s 144AA(1) offence and $40,000 for the s 143 offence before any discounts were applied (at [118]); 3. Environment Protection Authority v Laison [2018] NSWLEC 76, where the defendant was charged with one offence under s 144AA(1) of the POEOA in respect of two weighbridge dockets (at [2]). Sheahan J held that the offending was knowing and deliberate and that the commission of the offence was in the middle range of objective seriousness (at [66]). He found that there was actual harm caused that could not be quantified (at [52]), the environmental harm and the undermining of the regulatory regime were reasonably foreseeable (at [54]), and the defendant was in control of the falsification of the dockets (at [55]). The defendant had three prior convictions, two of which were under the POEOA (at [13]), had pleaded guilty early, had demonstrated contrition and remorse, and had good prospects of rehabilitation (at [61]). The defendant was convicted and ordered to pay $40,000 to the environmental trust (at [71]), and fined $50,000 prior to the application of any discounts (at [69]); 4. Environmental Protection Authority v Dirt Doctors Geotechnical Testing Services Pty Limited (Local Court no. 2021/249896), conceived a defendant that was charged with one offence under s 144AA(1) of the POEOA for a false waste classification report. The defendant was in liquidation and the matter proceeded ex parte. The Court found that the potential harm that was caused by the commission of the offence was foreseeable because the defendant worked in the waste industry. The offence was classified as being lower than the mid-range of objective seriousness, but not at the bottom of that range. The company was convicted and fined $4,000 in circumstances where it had no prior convictions and was found to be unlikely to reoffend by reason of its liquidation; 5. Environment Protection Authority v Afram [2022] NSWLEC 38, where the defendant was charged with three offences under s 144AA(1) of the POEOA and one offence under s 142A(1) of that Act, in circumstances where the s 144AA(1) offences involved 132 false weighbridge disposal dockets and six false weighbridge waste disposal transaction reports, 183 weighbridge disposal dockets and 16 false weighbridge disposal transaction reports, and 31 false weighbridge disposal dockets and 14 false weighbridge disposal transaction reports. Pain J found that the offences gave rise to actual harm to the environment, that the potential for harm to human health was substantial, and that the potential for harm to the environment was also substantial (at [78]). Her Honour concluded that the s 144AA(1) offences were at the lower end of high objective seriousness (at [96]), and that the land pollution offence was in the middle of the high range of objective seriousness (at [101]). The defendant had one prior conviction for causing financial disadvantage by deception in relation to false weighbridge documents and invoices, for which he was serving a two year prison sentence. The Court did not accept the fact that the offences were committed for financial gain (at [90]-[95]). The offending was part of a planned or organised criminal activity (at [88]-[90]). The defendant was convicted of all four offences and fined $90,000, $70,000, and $60,000 for the three s 144AA(1) offences before any discount or the totality principle were applied (at [160]-[165]); and 6. Environment Protection Authority v ACE Demolition & Excavation Pty (No 2) [2023] NSWLEC 3, the defendant was charged with three offences pursuant to s 144AA(2) of the POEOA and one offence under s 144AA(1) of that Act. The case concerned 48 false weighbridge dockets and an excel spreadsheet containing false information regarding the disposal of 70 truckloads of asbestos/contaminated soil, and a further 141 false weighbridge dockets and another spreadsheet containing false information regarding 89 truckloads of asbestos-contaminated soil. Moore J held that the offences were at the high end of the mid-range of objective seriousness (at [155]), after finding that there was no actual harm caused by the commission of the offences other than harm to the regulatory regime (at [57]). The harm was foreseeable (at [76]) and the defendant had complete control over the conduct giving rise to the offending (at [77]). The defendant had no prior convictions (at [83]-[92]) and demonstrated genuine contrition and remorse (at [128]). The company was convicted and fined $300,000, $270,000, and $240,000 for the s 144AA(2) offences, and $133,650 for the s 144AA(1) offence (at [274]-[277]).

Totality Principle

1. The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple overlapping offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62 to 63 and Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient. The application of the principle must not cause public confidence in the administration of justice to be undermined by any perception that "what is in effect being offered is some kind of discount for multiple offending" (R v MAK; R v K [2006] NSWCCA 381; 167 A Crim R 159 at [18]).
2. The totality principle applies to the offences the subject of this judgment.

Appropriate Sentence

1. Synthesising the relevant objective and subjective circumstances of the commission of the offences discussed above, and taking into account purposes of sentencing, the penalties imposed in the relevant comparable cases, and the additional orders to be imposed, I find that the imposition of a monetary penalty is warranted for each offence as follows: 1. for offence 1, a fine of $75,000; 2. for offence 2, a fine of $45,000; 3. for offence 3, a fine of $98,000; 4. for offence 4, a fine of $60,000; 5. for offence 5, a fine of $15,000; and 6. for offence 6, a fine of $70,000.
2. Each penalty must be discounted by 25% for the utilitarian value of Elmustapha's early plea of guilty: 1. for offence 1, a fine of $56,250; 2. for offence 2, a fine of $33,750; 3. for offence 3, a fine of $73,500; 4. for offence 4, a fine of $45,000; 5. for offence 5, a fine of $11,250; and 6. for offence 6, a fine of $52,500.
3. After the application of the totality principle, the penalty for each of the offences is reduced to: 1. for offence 1, a fine of $56,000; 2. for offence 2, a fine of $32,000; 3. for offence 3, a fine of $72,000; 4. for offence 4, a fine of $43,000; 5. for offence 5, a fine of $10,000; and 6. for offence 6, a fine of $50,000.
4. The total penalty is $263,000 for the commission of all six offences.

Moiety

1. The EPA sought an order for moiety pursuant to s 122 of the Fines Act 1996 for half of the fine ordered against Elmustapha to be paid to the prosecutor. In my opinion, such an order is appropriate in the circumstances of the proceedings (Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 at [102]-[113]).

Costs

1. The Court is also empowered to make a discretionary order for costs pursuant to s 257B of the Criminal Procedure Act 1986. Costs were estimated by the EPA to be at approximately $145,000. I make an order pursuant to s 257G of that Act that Elmustapha pay the prosecutor's costs as agreed or assessed.

Investigation Costs

1. The EPA abandoned its claim for investigation costs pursuant to s 248 of the POEOA.

Publication Order

1. Pursuant to s 250(1)(a) of the POEOA, the EPA also sought an order publicising Elmustapha's commission of the offences in Inside Waste magazine and The Daily Telegraph. Elmustapha did not contest the making of such an order. I make this order in the form annexed as Annexure "A" to this judgment.

Orders

1. In conformity with the reasons given above, the Court makes the following orders: In proceeding 362296 of 2022 1. Elmustapha is convicted of the offence against s 144AA(1) of the Protection of the Environment Operations Act 1997 as charged; 2. Elmustapha is fined the sum of $56,000; In proceeding 362297 of 2022 1. Elmustapha is convicted of the offence against s 144AA(1) of the Protection of the Environment Operations Act 1997 as charged; 2. Elmustapha is fined the sum of $32,000; In proceeding 362298 of 2022 1. Elmustapha is convicted of the offence against s 144AA(1) of the Protection of the Environment Operations Act 1997 as charged; 2. Elmustapha is fined the sum of $72,000; In proceeding 362299 of 2022 1. Elmustapha is convicted of the offence against s 144AA(1) of the Protection of the Environment Operations Act 1997 as charged; 2. Elmustapha is fined the sum of $43,000; In proceeding 362300 of 2022 1. Elmustapha is convicted of the offence against s 144AA(1) of the Protection of the Environment Operations Act 1997 as charged; 2. Elmustapha is fined the sum of $10,000; In proceeding 262301 of 2022 1. Elmustapha is convicted of the offence against s 144AA(1) of the Protection of the Environment Operations Act 1997 as charged; 2. Elmustapha is fined the sum of $50,000. In proceedings 362296, 362297, 362298, 362299, 362300 and 262301 of 2022 1. pursuant to s 122 of the Fines Act 1996, 50% of the total fine, that is, $131,500, is to be paid to the prosecutor; 2. pursuant to ss 257B and 257G of the Criminal Procedure Act 1986, Elmustapha is to pay the prosecutor's professional costs as agreed or assessed; 3. pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, Elmustapha must, within 28 business days from the date of this order, at his own expense, cause a notice to be published in the same terms as annexure "A" to this order, in the digital and print versions of the following publications: 1. Inside Waste; and 2. The Daily Telegraph; 1. within seven days of the date of publication of the notices in accordance with the preceding order, Elmustapha must provide to the prosecutor a copy of the entire page of the publication in the print version of each publication and a screenshot of the entire page of the publication in the digital version of each publication in which the notice appears; and 2. the exhibits are to be returned. Annexure A Ibrahim Elmustapha Convicted of Providing False and Misleading Information in the Course of Dealing With Waste. On 14 December 2023, Ibrahim Elmustapha ("Elmustapha") was convicted by the Land and Environment Court of New South Wales ("the Court") for six offences against s 144AA(a) of the Protection of the Environment Operations Act 1997 ("the Act") for providing false and misleading information in the course of dealing with waste. Between 9 February 2017 and at least 31 December 2018, Elmustapha was the sole director of the company Southland Waste Pty Ltd ("Southland Waste"), the occupier of a licensed waste facility located at 8 Kiama Street, Bowral NSW 2576 ("Bowral landfill"). Elmustapha was also the Landfill Operations Manager at the Bowral landfill. As the operator of a licensed waste facility Southland Waste was required to provide the Environment Protection Authority ("EPA") with monthly records identifying the quantity of waste received at the Bowral landfill each month. During the offending period, Elmustapha provided false and misleading information about waste to consultants engaged by Southland Waste to prepare the monthly records. That information failed to include information about waste received at the Bowral landfill from three major customers. The EPA prosecuted Elmustapha who pleaded guilty to the six offences and on 14 December 2023, the Court convicted Elmustapha and ordered him to pay a total of $263,000 in fines, together with the EPA's professional costs. Elmustapha was ordered to publish this notice at his own expense in the digital and print versions of the Inside Waste and The Daily Telegraph.

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: 14 December 2023