Environment Protection Authority v Hanna

Crimes Sentencing Procedure Act 1999 Environmental Trust Act 1998 LEGISLATION CITED: Protection of the Environment Operations Act 1997 Protection of the Environment Operations (Waste) Regulation 2005 Waste Minimisation and Management Act 1995 (repealed)

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority [1993] 32 NSWLR 683; (1993) 82 LGERA 21 Capral Aluminium Ltd v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Nechakoski [2002] NSWLEC 61; (2002) 120 LGERA 426 Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Ltd [2005] NSWLEC 175 Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 CASES CITED: Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hoare v The Queen (1989) 167 CLR 348 Pittwater Council v Scahill [2009] NSWLEC 12; (2009)165 LGERA 289 R v Dodd (1991) 57 A Crim R 349 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Wheeler [2000] NSWCCA 34 The Hills Shire Council v Suciu (No 3) [2009] NSWLEC 192 Veen v The Queen [1979] HCA 7; 143 CLR 458 Veen v The Queen (No 2) (1988) 164 CLR 465

PROSECUTOR J C Giles, Barrister with D Hughes, Barrister SOLICITORS Department of Environment, Climate Change and Water LEGAL REPRESENTATIVES: DEFENDANT G Prichard, Solicitor as Agent for Kacir Safi Halligan; P J Safi, SOLICITORS Kacir Safi Halligan

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10/50001,2,3,4 ENVIRONMENT PROTECTION AUTHORITY v DIB HANNA ABDALLAH HANNA EX TEMPORE JUDGMENT

1 HIS HONOUR: The defendant, Dib Hanna Abdallah Hanna pleads guilty to four offences under s 143 of the Protection of the Environment Operations Act 1997 (the POEO Act). He is now being sentenced for these offences. 2 The offences to which the defendant has pleaded guilty occurred on four separate occasions between July and October 2009. Each involved the depositing of demolition waste which had been collected by the defendant in his 11 tonne capacity tipper truck. The places to which the demolition waste was taken and deposited included a vacant building site, a road within Bankstown Airport, the verge of a public road in Minchinbury and a public reserve at Hargrave Park. In due course, it will necessary to recite in further detail the facts and circumstances pertaining to each offence. 3 Section 143 of the POEO Act relevantly provides as follows: " 143 Unlawful transporting or depositing of waste

(1) Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or commits waste to be so transported: (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence. Maximum penalty: (a) in the case of a corporation - $1,000,000, or (b) in the case of an individual - $250,000." 4 By his plea, the defendant admits the essential ingredients of the offences with which he is charged. For present purposes, that includes an admission that each of the places to which the demolition waste was taken and deposited by him could not "lawfully be used as a waste facility for that waste", within the meaning of s 143. Conduct of the proceedings 5 Each summons by which the defendant was charged was filed on 14 January 2010. Upon the return of each summons, a plea of not guilty was entered, with the result that the charges were fixed for hearing on a defended basis. The trial was ultimately fixed for three days commencing on 24 May 2010. 6 When the hearing of the trial commenced on 24 May 2010, it was announced that the defendant entered a plea of guilty to each of the four charges. The defendant's intention to enter that plea had been notified to the prosecutor on Saturday 22 May. 7 At that time, the defendant was represented by Mr Pierre Safi, solicitor, who had earlier entered an appearance on behalf of the defendant. As a result of the entry of the guilty plea, directions were made, by consent, for the conduct of the sentence hearing. Those directions included a requirement to reach agreement, if possible, upon a statement of facts relevant to the sentence hearing, with a direction that the prosecutor file and serve such a statement by 11 June 2010. The prosecutor was directed to file and serve any further evidence by 4 June 2010 and the defendant was required to file and serve any evidence upon which he would rely by 11 June 2010. The parties were given leave forthwith to approach the Registrar for a hearing date and on 24 May the hearing was fixed for 21 June. The directions to which the parties had agreed on 24 May 2010 included the reservation of liberty to restore to the list on two days' notice. The liberty so reserved was not exercised by either party. 8 At the commencement of the sentence hearing before me on 21 June, the defendant was represented by Mr Prichard, solicitor. Mr Prichard informed me that he was the city agent for Mr Safi; that he had received instructions only that morning to attend Court and that those instructions were to seek an adjournment. The basis upon which he had been asked to seek an adjournment was that a statement of facts had not been agreed between the parties and that an affidavit filed on behalf of the prosecutor had only been served towards the end of last week. 9 Mr Prichard's application for an adjournment was opposed by the prosecutor. It was indicated that the latterly served affidavit sought only to prove the cost of removal of waste which had been deposited by the defendant in a reserve under the control of Liverpool City Council. The prosecutor indicated that he would not seek to rely upon that evidence. It was also indicated that a draft statement of facts had been forwarded by the prosecutor to Mr Safi but that attempts to discuss such a statement and agree upon its terms had not been successful. The draft statement prepared by the prosecutor is said to have been provided to Mr Safi on 4 June 2010 by email. On 9 June 2010, Mr Safi indicated that he had not received the document and as a consequence a further copy of the draft was sent to him both by email and by facsimile that same day. Neither agreement in nor demur to that draft statement was received by the prosecutor. In the result, it served a document entitled "Prosecutor's Statement of Facts" on 17 June 2010. 10 Mr Prichard indicated that if his application for adjournment was unsuccessful, he would necessarily withdraw from the proceedings as he had no instructions to appear for the purpose of conducting the sentence hearing. In deference to the defendant, and given the potentially serious consequences that could flow to him, I indicated to Mr Prichard that the attendance of his principal, Mr Safi, or another legal representative familiar with the matter and able to conduct the sentence hearing on behalf of the defendant was required. Mr Safi appeared later in the morning of 21 June for the defendant and indicated that he was in a position to conduct the sentence hearing on behalf of the defendant. 11 As it happened, subject to deletion of two short sentences and correction of a date, Mr Safi accepted the Prosecutor's Statement of Facts (the SOF) as being correct. It was that document which had been filed and served by the prosecutor on 17 June 2010. 12 An amended statement has today been filed which reflects the agreed statement of facts. No evidence was filed on behalf of the defendant and no evidence was sought to be called on his behalf. 13 The SOF together with the bundle of documents identified in and attached to it were admitted, without objection, as Exhibit A. In addition, the prosecutor read an affidavit of Julian Thompson sworn 2 June 2010 together with an affidavit of Andrew Reece sworn 4 June 2010. No objection was taken to any part of those affidavits and neither deponent was required for cross-examination. It is upon this evidence that I rely in determining the appropriate sentence to be imposed upon the defendant.

The defendant's business 14 The defendant is said to operate a transport business. He does so by the use of a tipper truck which has a carrying capacity of 11 tonnes. The truck is generally used to transport solid waste. His business is sometimes conducted under the business name "DH Tipper Hire". 15 The defendant appears to operate his business from residential premises at Colyton. His truck is frequently parked overnight in close proximity to those premises. It is the parking of the vehicle in that location that has allowed observations of its use to be made. Evidence pertaining to the offences 16 As I have earlier indicated, there are four offences to which the defendant has pleaded guilty. As each involved different acts on four separate occasions, it is necessary to identify the facts pertaining to each of them. It is convenient to do so in chronological order.

The Bankstown Airport Offence (Proceedings No. 50002/10) 17 On 6 July 2009, a tenant of premises at Bankstown Airport observed a truck tipping what was described as "a load of rubbish" beside Nancy Ellis Drive, a road located within the precincts of the Airport. This observation was reported to Airport authorities who, in turn, informed the Regional Illegal Dumping Squad. An investigation carried out by an officer of that squad identified three piles of waste building material deposited in the reported location beside Nancy Ellis Drive. Within one of the piles was a delivery tag issued by a company supplying building materials. This tag led to a series of enquiries, ultimately resulting in a "Notice to Provide Information" being served upon the defendant. In response to that Notice, the defendant admitted to dumping one of the three piles of demolition waste located beside Nancy Ellis Drive. A photograph of this pile of waste included in Exhibit A shows it to be located on the grass verge adjacent to Nancy Ellis Drive. It appears to be comprised of solid building demolition waste. 18 The land upon which this material was deposited is owned by the Commonwealth of Australia. It gave no authority for the material to be deposited in that location and either the Commonwealth or the Bankstown Airport Authority has been required to remove this waste to a licensed facility able to receive it.

The Hargrave Park Offence (Proceedings No. 50004/10) 19 On the morning of 30 September 2009, the tipper truck operated by the defendant was observed by officers of the prosecutor to be loaded with waste which included large pieces of crushed concrete, steel reinforcement, bricks and soil. When first observed with this load, the truck was parked in proximity to the defendant's residence at Colyton. 20 The defendant left his home and commenced driving his tipper truck at about 7.40 am. He was followed by officers of the prosecutor on a journey of about 40 kms around western Sydney, involving only one stop on the part of the defendant, apparently for the purpose of having a meal. 21 At about 10.40 am the defendant was observed to drive his laden tipper truck into a public reserve beside Brickmakers Creek in Hargrave Park. After manoeuvring into a position adjacent to some larger trees and shrubs, the defendant was observed to operate the tipper tray on his truck and discharge his load onto the ground. After lowering the empty tipper tray, the defendant commenced to drive from the reserve but his exit was blocked by a motor vehicle driven by an officer of Bankstown City Council who was assisting officers of the prosecutor on that day. The defendant was subsequently interviewed, when he admitted to dumping waste in the reserve. Upon inspection, the waste was seen to contain large pieces of crushed concrete, bricks, steel rods, sand and shreds of orange plastic. 22 The land where this waste was deposited was a public reserve, zoned for public recreation under the relevant planning instrument and was land upon which dumping of waste was not authorised by Liverpool City Council which managed the reserve.

The Beames Avenue Offence (Proceedings No. 50001/10) 23 On 15 October 2009, officers of the prosecutor observed the defendant's truck outside his house in Colyton. The truck was observed to be fully laden with what appeared to be building and demolition waste, including timber, fibro fragments and soil. 24 The defendant drove his truck from Colyton, followed by those officers. He drove for approximately 25 kms in what appeared to be a circular route before arriving outside an allotment of land known as 119 Beames Avenue Rooty Hill. Travel by direct route from the defendant's premises in Colyton to the Beames Avenue land would have involved a journey of only about 4 kms. 25 At the time, the Beames Avenue land was a vacant residential building site, apparently in the possession of a construction company on behalf of a home builder. The defendant was observed to drive past the site twice before reversing his truck onto it where he raised the tray of his tipper truck and discharged the load of waste. 26 After the defendant had deposited his load on the Beames Avenue land, the waste was inspected and samples sent for analysis. The analysis revealed that the waste included fibreboard which contained chrysotile asbestos. 27 The construction company which was in possession of the Beames Avenue land had not given any permission for the waste carried by the defendant to be deposited on it and, given the residential zoning of the site under the relevant planning instrument, use of the site as a waste disposal facility was prohibited.

The John Hines Avenue Offence (Proceedings No. 50003/10) 28 In the evening of 16 October 2009, officers of the prosecutor observed the defendant's tipper truck parked in the driveway of his home. The truck was observed to be full of waste, which included concrete building blocks and was covered by brown and white carpet. Small fluorescent coloured "squishy" balls marked "EPA" and "16/10/09" were thrown into the back of the tipper truck and onto the waste which it was observed to be carrying. 29 On 23 October 2009, an officer of the prosecutor observed a pile of waste located on the verge of John Hines Avenue, Minchinbury. This is close to the home of the defendant. The pile of waste was observed to contain bricks and miscellaneous building material together with a carpet. That waste was recognised to be similar to that which had been seen loaded into the defendant's truck on 16 October 2009. Examination of the waste further revealed one of the marked "squishy" balls which had been placed into the back of the defendant's truck on 16 October 2009. 30 Samples of this waste were taken for analysis. The analysis revealed that the waste included both chrysotile and armosite asbestos. 31 Mr Hanna was served with a notice requiring him to clean up that waste. He failed to do so and on 17 December 2009 the waste was removed at the instance of the prosecutor. As the waste was being removed, it was photographed and was noted to contain a further two of the marked "squishy" balls that had been placed into the back of the defendant's truck on 16 October 2009. 32 Planning controls applicable to the land upon which this waste had been deposited, prohibited its use as a waste facility. Moreover, as land under the control of Blacktown City Council, the Council had not permitted the depositing of waste upon it.

Purpose of sentencing 33 The purpose for which a sentence is to be imposed is reflected in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act). It provides as follows: " 3A Purposes of sentencing The purposes for which a court may impose a sentence on a defender are as follows: (a) to ensure that the defender 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." 34 The sentence of the court is a public denunciation of the conduct of the offender. It must ensure that the offender is held accountable for his or her actions and is adequately punished. It should be sufficient to deter the offender from committing a similar offence in the future. It needs to operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137 at [8] - [9]; (2009) 168 LGERA 121 at 127). It is also necessary to recognise an essential principle of sentencing. That principle requires that the sentence imposed by the court must both reflect and be proportionate to the objective circumstances of the offence and the personal or subjective circumstances of the defendant (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) (1988) 164 CLR 465 at 472).

Objective gravity of the offence 35 The objective gravity or seriousness of the offences charged is the primary factor to consider when determining an appropriate sentence. It fixes both the upper and lower limits of proportionate punishment. The upper limit fixes the sentence which must not be exceeded, in as much as it can be justified as appropriate or proportionate to the gravity of the offence, considered in light of its objective circumstances (Hoare v The Queen (1989) 167 CLR 348 at 354). It fixes the lower limit because subjective factors, whilst necessary to be considered, 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; Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [50]). 36 In determining the objective gravity of the offence, the circumstances to which regard may be had include: the nature of the offence; the maximum penalty for the offence, the harm caused to the environment by commission of the offence; the state of mind of the offender for committing the offences; the offender's reasons for committing the offences; the foreseeable risk of harm to the environment by commission of the offences; the practical measures to avoid harm to the environment and the offender's control over the causes of harm to the environment (Rae at [14]). 37 These matters, as well as other considerations, are identified both by s 241 of the POEO Act and also by s 21A of the CSP Act.

Nature of the offence 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. 39 The defendant's conduct is objectively of a serious nature which is reflected in the maximum penalty imposed for breach of s 143. These offences undermine the statutory scheme for disposing of waste, a scheme which finds expression both in the POEO Act itself and in the Protection of the Environment Operations (Waste) Regulation 2005. Actions of the kind undertaken by the defendant are antithetical to the objects of the POEO Act as expressed in s 3, which include not only the protection, restoration and enhancement of the quality of the environment in this State, but also the reduction of risks to human health and prevention of the degradation of the environment by the use of mechanisms that promote pollution prevention, the elimination of harmful wastes and the reduction in the use of materials and the re-use, recovery and recycling of materials (s 3(a) and (d)).

40 The maximum penalty is Parliament's expression of the seriousness of the offence (Camilleri's Stock Feeds Pty Ltd v EPA [1993] 32 NSWLR 683 at 698; (1993) 82 LGERA 21). The maximum penalty for each offence is $250,000. As the prosecutor submitted, this penalty reflects "the community's stern policy against pollution". In the context of this maximum penalty, the fine to be imposed must be sufficient to deter others from offending rather than treat the risk of a fine as a "cost of business" (Axer Pty Ltd v EPA (1993) 113 LGERA 357 at 359).

Harm to the environment 41 All four offences occasioned harm to the environment. That harm was both actual and potential. Identification of the harm occasioned by substantial deposits of building waste beside a public road, within an airport precinct or upon a public reserve, hardly calls for elaboration. The potential harm occasioned by the unlawful dumping of waste containing asbestos derivatives in the form of chrysotile and armosite is identified in Exhibit A. The risk to human health is well understood. 42 The unchallenged evidence from Mr Thompson is that the unlawful dumping of waste poses a significant problem for the prosecutor, with considerable resources devoted to combating it. Unlawfully deposited waste can be a danger to human and animal health; it can be washed into waterways and cause pollution resulting in the loss of community amenity. Landowners who have waste unlawfully deposited on their land, as was involved in the Beames Avenue offence, have to bear clean up costs which are often significant because the provenance of the waste and its constituents are not fully known.

The Defendant's state of mind 43 I find beyond reasonable doubt that the actions of the defendant in disposing of the waste in the manner which he did, on the four occasions for which he is charged, were premeditated and deliberate. The evidence indicates that in respect of each of the offences for which he is charged, he received a fee for disposal of the waste that could only be sustained on the basis that the waste which he collected was to be disposed of in contravention of the POEO Act. 44 The evidence from Mr Thompson is that general building and demolition waste falls within the classification of "general solid waste" under the waste disposal regulatory regime to which I have earlier referred. His evidence is that land fill disposal charges at licensed facilities for this type of waste in 2009 was in the range of $90 to $200 per tonne. On each of the occasions upon which the defendant's loaded truck was observed by officers of the prosecutor, it was described as being "full". When the defendant was interviewed following the Hargrave Park offence, he indicated that the weight of the deposited waste was between "6 to 7 tonnes". If that be a typical weight of each of the waste loads for which the defendant is charged, it would indicate a land fill fee payable by the defendant of between $540 (assuming 6 tonnes at $90 per tonne) and $1400 (assuming 7 tonnes at $200 per tonne) per load. This takes no account of the fee which the defendant would require to cover his own services. By contrast, the evidence reveals that the fee charged by the defendant to the waste owners from whom he collected the waste to have ranged between $300 and $500 per load. 45 The other category of waste under the statutory regime in which the waste collected by the defendant fell was "special waste". This category of waste includes asbestos waste. It is waste which imposes risks to human health and to the environment. It is therefore required to be disposed of in a very specific way. According to the evidence of Mr Thompson, the tipping fee for the disposal of asbestos waste at licensed landfill sites was approximately $200 per tonne. Thus, the cost to the defendant of disposing of those loads containing asbestos would have ranged between $1200 and $1400 per load, assuming each of his loads contained between 6 and 7 tonnes of waste material. 46 This evidence clearly supports a determination that the offence was deliberate. However, it is not the only evidence that points to that result. The circuitous route taken by the defendant in the case of the Beames Avenue offence and the passes made by him at that address before finally dumping his waste, evidence deliberate and premeditated actions. So also does the visit to the Hargrave Park Reserve where the defendant undoubtedly believed he would not be observed. 47 While the offence against s 143 of the POEO Act is a strict liability offence, thereby eliminating mens rea as a necessary element, the state of mind of an offender at the time of the offence can have the effect of increasing the seriousness of it. A strict liability offence that is committed intentionally will be objectively more serious than one not so committed (Rae at [42] and the cases there cited). 48 For reasons already articulated, the defendant's conduct in disposing of waste on each of the four occasions on which he was charged was premeditated and intentionally done with knowledge of its illegality. That knowledge will shortly be made the more evident. These circumstances increase the objective seriousness of the offence.

Reasons for committing the offence 49 Both the seriousness of the actions involved in committing the offence and the reasons for its occurrence bear upon the criminality involved (Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [12]. In the present context, the reasons for committing the offences in question are closely related to the evidence already addressed as to the state of mind of the defendant. 50 As has already been indicated, these offences were committed in the course of business and to avoid the costs involved in disposing of waste at a licensed facility. 51 The defendant clearly understood that he was circumventing the legal obligations imposed upon him as to the disposal of waste. I am satisfied beyond reasonable doubt that the fees charged by him for collection of waste were imposed to enhance his business, by undercutting the cost which otherwise would necessarily be charged by contractors disposing of waste at licensed facilities. His reasons for committing the offence increase its objective seriousness (Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189).

Foreseeability and risk of harm 52 The risk of environmental harm in disposing of building waste at the sites to which waste was taken by the defendant is plainly foreseeable. That risk must have been apparent when the waste was deposited adjacent to roadways, with their attendant systems of drainage, as was the case in respect of the Bankstown Airport and John Hines Avenue offences or where waste was placed in a public reserve near to a watercourse in the case of the Hargrave Park offence, or on private land intended for a residential building, as was the case in respect of the Beames Avenue offence. Particularly is that harm foreseeable when, as must have been apparent to the defendant, the material contained asbestos.

Practical measures to prevent risk of harm and control over causes 53 The defendant should not have deposited the waste material which he had collected on the four sites which are the subject of the charges against him. He was in complete control over the causes of harm to the environment. He knew what he was doing was against the law.

Conclusion on objective circumstances 54 Having regard to the nature of the offences; the penalties that attach to each such offence; the degree of harm to the environment, both actual and potential; the premeditated and intentional commission of the offences with knowledge of the illegality of the conduct giving rise to them; the commission of the offences to achieve a business advantage; the foreseeability of risk of harm to the environment by reason of the dumping of waste in the locations identified; the existence of practical measures to avoid the risk of harm and the control over those causes which the defendant had, all inform the basis upon which the objective gravity of the offences should be determined. The prosecutor submitted that the offences were serious. However, it accepted that the quantity of waste involved and the nature of that waste place each offence "towards the lower end of the range." 55 As to the nature of the waste, that which falls into the category of "general solid waste" is said to contain either contaminants at relatively low levels or contaminants which are reasonably immobile. It is because the majority of the waste which is the subject of these charges falls into that category that the prosecutor contended that each offence was towards the lower end of the range. However, in oral submissions, that position was modified when account was taken of the fact that part of the waste was "special waste", presenting risks to human health and the environment, that being the category of waste included in the deposited material which is the subject of two of the four charges. Based on these considerations, the offence should be regarded as closer to medium rather than low objective gravity.

Aggravating factors 56 By reference to s 21A(2) of the CSP Act, there are aggravating factors to be taken into account in determining the appropriate penalties for the offences with which the defendant is charged. The first matter to be noticed in that regard is that the defendant has prior convictions for identical offences (s 21A(2)(d)). The evidence revealed that on 2 September 2009, the defendant was convicted in the Liverpool Local Court of three offences under s 143 of the POEO Act. Those offences occurred on 17 December 2008, 26 February 2009 and 24 March 2009. A total fine of $26,000 was then imposed, together with an order that the defendant pay $14,000 for clean up of the waste which he had unlawfully deposited. It will be noted that three of the four offences with which the defendant is presently charged and to which he has pleaded guilty were offences that occurred following his conviction on 2 September 2009. The need for specific deterrence is therefore evident. 57 In his submissions on behalf of the defendant, Mr Safi indicated from the bar table that the convictions recorded at the local court on 2 September 2009 were determined ex parte, as the defendant did not appear on that occasion. When asked whether any appeal had been lodged against those convictions or any step taken to set them aside, I was told that neither step had been taken. I do not find the argument persuasive. In light of these convictions, I have to assume that the relevant court attendance notices had been served upon the defendant prior to the hearing on 2 September 2009 and that thereafter he was advised of both the convictions recorded against him and also of the fines imposed. At the very least, commission of three of the four offences for which he is presently charged must have occurred in the knowledge of the charges pending before the Liverpool Local Court, a circumstance that weighs against rather than in favour of the defendant. 58 The need in the present case for specific deterrence is therefore heightened. Quite apart from that need, and whilst not considered as an aggravating factor, it is necessary to consider general deterrence. 59 I have already referred to the evidence of Mr Thompson identifying the significant problem for State and local authorities arising from the illegal dumping of waste and the resources devoted at State level to the detection and prosecution of those responsible for this activity. Clean up of illegally deposited waste incurs significant community cost, including allocation of funds from the Environmental Trust established under the Environmental Trust Act 1998. Funds from that Trust have to be diverted to assist local authorities with clean up of waste, with amounts ranging between $1,000 and $5,000 for a number of applications made to that Trust for payment from what is described as an "Emergency Pollution and Orphan Waste Clean Up Fund". It is said that in 2008 - 2009 a sum of $173,258 was paid to clean up "illegally deposited and/orphan waste". 60 Two further aggravating factors need to be noticed. First, two of the offences, namely the Beames Avenue offence and the John Hines Avenue offence, were committed without regard for public safety (s 21A(2)(i)). This is evident from the fact that, in each case, broken fragments of asbestos material were contained within the deposited waste. The second factor to be noticed is that the offences were committed for apparent financial gain (s 21A(2)(o)). That gain or benefit to the defendant has earlier been identified.

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.

Consistency in sentencing 70 A relevant consideration in determining an appropriate sentence is the ascertainment, so far as is possible, of a general pattern of sentencing by criminal courts for offences such as the offence being considered (Rae at [69]. However, care must be taken in assaying this task. The wide divergence of facts and circumstances leading to penalties imposed in other cases exemplify the basis upon which this care is to be exercised. Each case is different and one case does not demonstrate the limits of a sentencing court's discretion (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]). As was observed in Capral Aluminium Ltd v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at 641, the proper approach is for the Court to consider: " … whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: … ." 71 In seeking to apply the principle, it is necessary to record that there are very few unlawful waste transportation or disposal sentencing decisions that do not involve the disposal of sewage. Two cases in which this Court imposed penalties for the unlawful disposition of demolition waste were recently cited by Pepper J in The Hills Shire Council v Suciu (No 3) [2009] NSWLEC 192. The first recorded case is that of Environmental Protection Authority v Nechakoski [2002] NSWLEC 61; (2002) 120 LGERA 426 where the defendant was convicted following a plea of guilty for unlawfully depositing 5,288 tonnes of demolition waste in flood prone wetlands. There was actual and foreseeable harm to the environment. However, the defendant was held to be of good character. The defendant had been charged with two offences. One such offence which related to most of the waste was brought under s 64(1) of the Waste Minimisation and Management Act 1995 (now repealed) which imposed a maximum penalty of $60,000. The second charge was brought under the POEO Act which, although creating an offence in identical terms, imposed a maximum penalty of $120,000 for an offence by an individual. It was agreed that 95% of the waste that was deposited related to the offence brought under the Waste Minimisation and Management Act. For the offence under that Act the fine imposed was $21,000 and for the offence under the POEO Act a penalty of $10,000 was imposed. The principle of totality was applied in arriving at these fines. 72 The second recorded case is that of Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Ltd [2005] NSWLEC 175. In those matters, demolition waste of between 1300 and 1600 tonnes was delivered to a property in the Hunter Valley for the purpose of constructing a cattle mound. The fill was placed within 40 metres of the bank of a river in a flood prone area. Risk of environmental harm was clearly foreseeable. Steepleton Pty Ltd was the carrier responsible for delivering the waste and Mr Pannowitz was its sole director. Each was charged with an offence under s 143 of the POEO Act and each entered a plea of guilty. Both defendants had expressed contrition and co-operated with the prosecutor. A fine was imposed on Mr Pannowitz of $20,000 when the maximum penalty at the time was $120,000 for an individual and a fine of $40,000 was imposed upon Steepleton Pty Ltd at a time when the maximum penalty for a corporation was $250,000. A publication order was made against the corporation. 73 In the decision of Pepper J in The Hills Shire Council v Suciu, Mr Suciu was found guilty of an offence against s 143 of the POEO Act. He had deposited 3,000 m³ of demolition waste in a disused quarry without permission of the owner of the quarry so to do. The content of the waste material was such that its removal was difficult and remediation was required at a cost estimated to be $76,000. There were considerable aggravating factors attending the commission of the offence, not only involving dishonesty of the defendant towards the landowner but also dishonesty towards officers of the prosecutor. In the result, a penalty of $80,000 was imposed for a single offence, the defendant ordered to pay the prosecutor's costs, and liberty was reserved to make application pursuant to s 245 of the POEO Act requiring the defendant to make good the environmental damage he had occasioned, if his whereabouts became known. The maximum penalty at the time of the offence was $120,000. 74 Each of the three cases that I have cited have distinguishing features from those applicable in the present case. Clearly, neither the quantities of waste material involved nor the subjective circumstances found to be present in Suciu have parallels in the present case. While the objective gravity of the offence in Pannowitz might be seen to be more significant than those that pertain to the present offences, the subjective circumstances there present were more favourable than those applicable to the present defendant. It is also to be noticed that the maximum penalty for the offence then considered ($120,000) was less than half that applicable at the time of the offences committed by the present defendant. Observations to similar effect can be made in respect of the decision of the court in Nechakoski.

Appropriate penalty for each individual offence 75 I have earlier identified some of the principles that inform the fixing of an appropriate sentence. There is the need to ensure that the punishment for each offence adequately reflects the objective seriousness of each offence while taking account of the subjective circumstances of the defendant. I have identified the need for both specific and general deterrence. 76 Taking into account the purposes of sentencing, the objective circumstances of each offence and the subjective circumstances of the defendant, it is necessary that I nominate the penalties that I would propose for each offence. 77 For the Bankstown Airport offence I consider an appropriate penalty to be $25,000. For the Hargrave Park offence I consider the appropriate penalty to be $35,000. This offence was committed after the defendant was convicted in the Liverpool Local Court of offences against s 143 of the POEO Act. 78 For the Beames Avenue and John Hines Avenue offences, I consider the appropriate penalty to be $40,000 for each offence. Not only were these offences committed after the defendant had already been convicted in the Liverpool Local Court but they were the offences that involved the disposal of fragmented asbestos material onto the sites in question. 79 To each of these penalties I would apply a discount of 20%, essentially arising from the defendant's plea of guilty, albeit belatedly entered, his voluntary submission to an interview in which he admitted committing three of the four offences charged and his commitment to pay legal costs and clean up expenses that I have earlier identified. This would result in an aggregate penalty of $112,000.

Totality principle 80 The totality principle is a principle of sentencing which is to be applied when sentencing an offender who has committed more than one offence. When reviewing the aggregate penalty assessed by reference to a penalty for the individual offences, the Court is required to consider whether it is "just and appropriate" to impose that penalty as reflecting the total criminality of the defendant referable to the offences charged. It is a principle applicable where the penalty is by way of fine (Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority) although it is one that will not have the same force in the case of imposition of fines as opposed to those cases that involve a custodial sentence. 81 A countervailing factor in sentencing for more than one offence is the need to ensure that public confidence is maintained in the administration of criminal justice. A person who commits a series of deliberate discrete offences must not be left with the idea that he or she can escape effective punishment for successive offences, each of which contributed to a whole course of deliberate criminal behaviour (R v Wheeler [2000] NSWCCA 34). 82 As I have indicated, the aggregate penalty assessed on an individual basis for the offences charged is $112,000. This aggregate penalty may involve a marginal exceedence of what is appropriate in the circumstances, taking account of the clean up costs and legal costs which the defendant is required to bear. 83 In applying the totality principle, I can accept that a downward adjustment in respect of each of the Bankstown Airport offence and Hargrave Park offence would be appropriate. It is apparent from the photographs tendered in evidence that the defendant was not the only person to have deposited waste material at each of these sites. In so observing, I do not mean to condone what both the defendant and others had done, but merely to reflect what appeared to be the objective fact that each site was, so it seems, considered by others as being a site to which waste material could be taken, albeit illegally. In each of these two cases I would reduce the fine by $5,000 to which fines I would apply the 20% discount earlier identified. 84 The Beames Avenue offence and John Hines Avenue offence involve different considerations. Importantly, each involved depositing waste which included asbestos material, a circumstance which the photographs tendered in evidence would reveal to be apparent. The precise nature of the asbestos may not have been evident but the fact that it was a fibreboard material likely to contain asbestos was apparent. These were discrete offences and I see no need to reduce the penalties that I have earlier indicated to be appropriate. 85 The resultant aggregate penalty in the sum of $104,000 would be proportionate to the total criminality of the defendant's conduct. Any further reduction in the aggregate penalty would be disproportionate to the objective gravity of the offences. It would fail to reflect the total criminality of the defendant's conduct and undermine public confidence in the administration of criminal justice by failing, effectively, to punish a person who commits a series of discrete offences.

Payment of the fine to the Environmental Trust 86 The prosecutor seeks an order that in lieu of payment of a fine, the defendant be ordered to pay the penalty otherwise incurred to the Environmental Trust established under the Environmental Trust Act. It requests that the sum be directed to be paid for expenditure on the Emergency Pollution and Orphan Waste Fund administered by that Trust. Such an order is sanctioned by s 250(1)(e) of the POEO Act. No submission was made on behalf of the defendant against the making of such an order and, based on the evidence of Mr Thompson, I consider such an order to be appropriate.

Publication Order 87 The prosecutor seeks an order pursuant to s 250(1)(a) of the POEO Act requiring publication of the conviction and fine in a local newspaper circulating in the area from which the defendant operates his tipper truck. No submission was made by Mr Safi on behalf of the defendant seeking to challenge the prosecutor's request. In the context of offences of the kind with which the defendant has been charged, their preponderance, according to the evidence, in the outer ring suburbs of the Sydney metropolitan area, and the number of identified offences for which the defendant has now been convicted, it seems to me appropriate that a publication order be required. The form of that order has been tendered by the prosecutor as Exhibit B and again no challenge was made to its form by Mr Safi.

Order under s 245(c) of the POEO Act 88 Finally, the prosecutor seeks an order, said to be authorised by s 245 of the POEO Act, in the nature of an injunction. The order that it seeks is, in effect, an order that whenever the defendant transports waste he disposes of it to a waste facility that is lawfully authorised to receive that waste. In short, it seeks a mandatory injunction that the defendant comply with the provisions of s 143 of the Act. 89 Section 245 of the POEO Act is as follows: " 245 Orders for restoration and prevention The court may order the offender to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow: (a) to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence, or (b) to make good any resulting environmental damage, or (c) to prevent the continuance or recurrence of the offence." 90 I do not read the section as authorising an order of the kind which the prosecutor seeks. Read in context, the section is, in my opinion, directed to action of a tangible or physical kind that is necessary or desirable to address the consequences of an unlawful event that has been the subject of prosecution. The requirement that the offender "take such steps as are specified" and do so "within such time as is specified" are textual markers supporting the interpretation which I believe to be correct. A provision of that kind is hardly apposite to a requirement for an order that a defendant, in the future, obey the provisions of the POEO Act. 91 I am not persuaded either that I have the power to make such an order or that I should do so in the circumstances of this case.

Orders 92 The orders that I make are therefore as follows:

Proceedings 50001/10

1. The defendant is convicted of the offence as charged.
2. The defendant is fined the sum of $32,000.

Proceedings 50002/10 3. The defendant is convicted of the offence as charged. 4. The defendant is fined the sum of $16,000.

Proceedings 50003/10 5. The defendant is convicted of the offence as charged. 6. The defendant is fined the sum of $32,000.

Proceedings 50004/10 7. The defendant is convicted of the offence as charged. 8. The defendant is fined the sum of $24,000.

In respect of all four of the offences 9. Within 28 days of this order, the defendant is to place a notice in the first 12 pages of the general news section of the Liverpool Leader and Blacktown Advocate newspapers at a minimum size of 8 cms x 12 cms in the form of Annexure 'A' to this order (pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997).

10. Within 35 days of this order, the defendant is to provide to the prosecutor a copy of the notices published in the newspapers in accordance with the preceding order.

11. Pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, in lieu of payment of the fines the subject of orders 2, 4, 6 and 8, the defendant is to pay to the Environmental Trust established under the Environmental Trust Act 1998 within 120 days of this order the sum of $104,000 to the intent that such sum be applied by the Trust to its Emergency Pollution and Orphan Waste Cleanup Program.

12. The defendant is to pay the prosecutor's costs as agreed in the sum of $21,000.

13. The defendant is to pay to the prosecutor clean up costs agreed in the sum of $8,282.60.

Annexure 'A' "Dib Hanna Abdallah Hanna (sometimes trading as DH Tipper Hire) has been convicted in the Land and Environment Court of four offences of dumping building and demolition waste unlawfully on private and public land. Some of the waste was contaminated with asbestos. He was ordered to pay a penalty of $104,000 to the Environmental Trust for the purpose of future waste clean up. The Environmental Trust spent more than $170,000 on the clean up of 'orphan' asbestos waste last year. This advertisement was placed by order of the Land and Environment Court and paid for by Mr Hanna."

07/12/2010 - Applicant changed to Prosecutor, Respondent changed to Defendant - Paragraph(s) Cover sheet 08/12/2010 - Citation change - Environmental to Environment - Paragraph(s) Coversheet

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.