Mitigating factors
61 As already recorded, no evidence was tendered to the Court on behalf of the defendant. In making submissions on behalf of the defendant, Mr Safi points to four matters which are said to mitigate the significance of the offences committed by the defendant.
62 First, attention is directed to the clean up costs claimed for three of the four offences. The sums claimed by the prosecutor in that regard are $3724.60 in relation to Beames Avenue and $2,758 in respect of John Hines Avenue. The further sum of $1,800 is claimed by Liverpool City Council for clean up of material on the reserve at Hargrave Park. It is submitted that these relatively modest sums indicate that the material in question was at the lower level of significance and therefore the offences should be considered at the lower end of the range. If this submission was intended to invoke the provisions of s 21A(3)(a) of the CSP Act, then I am prepared to accept that the environmental harm or damage actually occasioned by the offences was not, as it happened, "substantial". So much was conceded by the prosecutor, although not for reasons indicated by Mr Safi. This circumstance, seen in isolation, does no more than confirm that the offence lies in the range between low and medium objective gravity.
63 The second matter which Mr Safi submits mitigates the seriousness of the defendant's conduct is the fact that he voluntarily submitted to interview by officers of the prosecutor when requested so to do in November last. The SOF supports this submission. In that interview, he admitted the Beames Avenue, Bankstown Airport and Hargrave Park offences but did not admit the John Hines Avenue offence. In his interview, he contended that he was given permission to dump at the Beames Avenue site. He has not maintained that position in any evidence tendered to this Court. Nonetheless, the extent of his disclosure in that voluntary interview is to be considered as a mitigating factor in accordance with s 21A(3)(l) of the CSP Act and I do so.
64 The third matter to which Mr Safi points on behalf of the defendant is the defendant's plea of guilty (s 21A(3)(k)). He has submitted that this plea is relevant both in order to have the benefit of a discount on penalty in accordance with s 22 of the CSP Act and also as a demonstration of the defendant's remorse. It is necessary to deal with these matters separately.
65 It will be remembered from my earlier recitation of fact that the defendant initially entered a plea of not guilty. On the first day of a three day hearing fixed for trial, that plea was changed to a plea of guilty. Notice of the intention to change the plea was given to the prosecutor on Saturday 22 May, two days before commencement of trial. Fortuitously, the prosecutor was able to notify witnesses who otherwise would have attended, with the result that the costs of attendance of witnesses on the first day of trial was avoided. Given the lateness of the plea, the defendant is entitled to some discount (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152] but not to the full discount that would otherwise be available had a plea been entered at the first opportunity (s 22(1)(b) of the CSP Act). The lateness of the plea diminishes its utilitarian benefit.
66 In these circumstances the discount to be afforded for the utilitarian value of the plea of guilty should be 15%.
67 I do not accept, in the circumstances of this case, that the defendant's entry of a plea of guilty is a demonstration of the remorse shown by the offender. Paragraph (i) of subsection (3) of s 21A of the CSP Act requires that I take into account the remorse shown by the offender for the offence 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) … "
68 The defendant did not appear in Court at the time of his sentence hearing. As I have already indicated, no evidence was tendered by him or on his behalf. Moreover, the evidence reveals that the defendant was served with notices under s 90 of the POEO Act requiring that he clean up and remove the waste from the Beames Avenue and John Hines Avenue sites. He failed to comply with those notices. The objective facts do not demonstrate to me, on the balance of probabilities, that the defendant has accepted responsibility for his actions nor acknowledged any harm caused by his actions. The factor of remorse identified in subsection (3) of s 21A of the CSP Act must, in context, involve more than entering a plea of guilty through his legal representative. I do not accept remorse as a mitigating factor in respect of the four offences to which the defendant has pleaded guilty.
69 Finally, by way of mitigation, Mr Safi has indicated that the defendant agrees to the payment of the prosecutor's legal costs, accepted as being the sum of $21,000, and has now also agreed to pay clean up costs in relation to each of the Beames Avenue, John Hines Avenue and Hargrave Park offences. These costs total $8,282.60. I take these agreed payments into account when assessing the penalty that the defendant should be ordered to pay.