Environment Protection Authority v Hardt

Environment Protection Authority v Barnes [2006] NSWCCA 246; CASES CITED: Environment Protection Authority v Hardt (2006) 148 LGERA 61; R v Rahme (1989) 43 A Crim R 81

DATES OF HEARING: 30 April 2007 1 May 2007

PROSECUTOR DA Buchanan SC SOLICITORS Environment Protection Authroity LEGAL REPRESENTATIVES: DEFENDANT Mr I Hemmings (barrister) SOLICITORS Hones Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 HIS HONOUR: After a trial the Court has found Mr Hardt guilty of committing an offence against s 144(1) of the Protection of the Environment Operations Act 1997: see Environment Protection Authority v Hardt (2006) 148 LGERA 61. The Court now needs to sentence Mr Hardt.

Evidence 2 A sentence hearing has been held. In addition to the evidence tendered at the trial, the prosecutor tendered a statement of agreed facts; photographs and tables prepared by Mr Geoff Winning, an ecologist; and agreed orders under s 245 of the Protection of the Environment Operations Act to mitigate the environmental harm caused by the offence. 3 The prosecutor read an affidavit of Mr David Lane, an expert in industrial remediation, on the means of remediating the waste deposited on the land. Mr Lane stated:

(a) Removal of the waste would be prohibitively expensive. It would involve considerable excavation by an excavator and require a very large number of vehicle movements to transport the material as well as removing vegetation to obtain vehicular access to the waste. Removal of the waste would encounter property access problems as most of the access road is not suitable for short-term high volume truck movements. The cost of removal of the waste would exceed one million dollars although some of the material might be able to be recycled. Land fill fees alone would be around $907,000 if all the imported material was disposed of at a licensed inert and solid waste land fill; (b) Leachate collection involves the containment of all leachate and surface water run off through the construction of a cut-off trench, a collection of the leachate from a centralised area, pumping the collected leachate back to the top of the stock pile area, and irrigating the leachate on to the horizontal section of the waste stock pile. Leachate collection is not a permanent solution but an ongoing control procedure. The leachate collection and application system would require ongoing maintenance at least twice per year indefinitely. If the maintenance is not undertaken the system would not be effective with potentially severe consequences through the escape of leachate;

(c) Clay capping involves containment of the waste mound in a compacted state with a clay cap. Prior to capping it would be necessary for car bodies, drums and other large objects to be removed from the waste stock pile before compaction of the waste stock pile and finalising the land form to ensure stability by capping with clay. Compaction of the waste needs to occur before capping with clay to fill in any voids in the waste stock pile. Voids within the lower depth of the stock pile may lead to subsidence of the capping surface. If adequate compaction is not undertaken, over time the uncompacted waste would become more unstable and any clay capping would subside and not serve any further purpose;

(d) Clay capping is the better environmental solution because it provides a long-term solution in that the waste is covered and controlled on a permanent basis; (e) The cost of removal and lawful disposal of car bodies and visible drums and asbestos, compacting the waste mounds, battering the waste stock pile, and excavating on site and applying clay to a depth of at least 0.5 metres, would be in the order of $55,000." 4 The defendant read two affidavits he had sworn, the first on 12 September 2006 and the second on 16 April 2007. The first affidavit set out his financial affairs at that time. His assets included a residential property at 1A Annabel Avenue, Lake Munmorah (his estimated value of $350,000), the property at 327 Manhire Road, Wyee (his estimated value of $500,000 although with the EPA clean-up notice he considered it might be of no value), and a registered motor vehicle, a Toyota Dyna 1985 200 (his estimated value $1,500). This gives a total of $851,500. He had various mortgages over the real properties to the Commonwealth Bank, debts on credit cards and personal loans from friends (he estimated to a total of $409,353). Mr Hardt was on a pension at $252.75 per week. 5 The second affidavit gives Mr Hardt's explanation of why he built the road and how he can carry out the remedial works of clay capping. As to the first, Mr Hardt states that he believed that he was authorised to build an access road on his property because of various conversations he had had in 1988 with officers of the council, and because of the development consent and building permit he had obtained in 1994 for the construction of the farm machinery shed incorporating a house, and construction of a dam. 6 As to the second, Mr Hardt says that he will be able to carry out the remedial works as follows:

(a) he will arrange for the removal of car bodies to a delivery point which will be picked up by the metal recyclers. The method of removal would involve using on-site machinery, bulldozers, bobcat, mobile cranes, and friends as manual labour;

(b) he will arrange for the removal of generally visible surface material such as drums, metal, plastic, treated timber and other objects that may appear to be harmful to the environment. The method of removal would involve manhandling by Mr Hardt and his friends of the waste and transportation to a waste facility by a truck where verification delivery documents will be supplied;

(c) Mr Hardt will arrange for the hiring of an excavator for the purpose of moving some fill material on site and packing into void areas, and generally shaping and compacting the general surface area. This method of this task would involve hiring an excavator coupled with manual labour by Mr Hardt and his friends; and

(d) Mr Hardt will arrange for the clay capping material to be acquired from a nearby site. The method for this task would involve the use of a bulldozer, bobcat and site truck to place material over the relevant surface areas, and the hire of an excavator for the purpose of compacting the surface to the bank. The labour would involve Mr Hardt and his friends. 7 Mr Hardt estimated the total costs of carrying out these works should not exceed $30,000. 8 Mr Hardt also gave oral evidence addressing, amongst other topics, his remorse for having committed the offence and its consequences, his financial means and ability to pay, and the carrying out of the remediation orders. 9 In relation to his financial means, Mr Hardt stated that he was still unemployed and on an invalid pension of around $250 per week. He still owns the residential property at 1A Annabel Avenue, Lake Munmorah and it was still subject to a mortgage. He still owns the property at 327 Manhire Road, Wyee and it was still subject to a mortgage. He owed about $330,000 to the bank. He stated that his residential property at Lake Munmorah was on the market. He had been advised by a real estate agent that its value was around $360,000. Sentencing considerations 10 The sentence imposed by the Court should reflect both the objective gravity or seriousness of the offence as well as the personal or subjective circumstances of the defendant. Objective gravity of the offence Maximum penalty 11 At the time the offence was committed, between 2002 and 2003, for an individual who has breached s 144(1) of the Protection of the Environment Operations Act, the maximum penalty is a fine of $120,000 and, in the case of a continuing offence, a further fine of $60,000 for each day the offence continued (s 144(1)(b)). These penalties have subsequently been increased. From 1 May 2006 the penalty for an individual has been increased to $250,000 although the daily penalty has not been increased: see Schedule 1, [70] of the Protection of the Environment Operations Amendment Act 2005. 12 Although in this case the offence was a continuing offence, the prosecutor does not submit that a daily penalty should be imposed. Harmfulness of the offence

13 The culpability of the defendant depends in part on the seriousness of the environmental harm. If the harm is substantial, this objective circumstance is an aggravating factor: see s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, and s 241(1)(a) of the Protection of the Environment Operations Act. 14 The principal judgment sets out the nature, extent and other features of the waste deposited on the land: see [34]-[53]. The statement of agreed facts gives further details of the waste and the harm to the environment caused. As to the waste, certain samples were taken and analysed. The results of the analysis of the samples showed that the materials in the landfill contained the following materials (classified by reference to the categories of waste in the Appendix to Division 2 of Part 3 of Schedule 1 to the Protection of the Environment Operations Act 1997):

(a) industrial waste: chrysolite, amosite and crocidolite asbestos;

(b) hazardous waste: (i) phenoxy acidic herbicides containing dicamba at 0.09 g/L and MCPA at 10.2g/L; (ii) kerosene petroleum distillate fraction containing C10-C14, petroleum hydrocarbon distillate fraction of 727 g/kg; (iii) high concentrations of volatile solvents, namely benzene, toluene, ethyl-benzene and xylene at A63 g/kg; (iv) liquid material with a flashpoint of 36 degrees Celsius and sustained combustion during testing;

(c) Group A waste: 88% mineral oil (group A waste);

(d) inert waste: (i) polycyclic aromatic hydrocarbons at 168 mg/kg; (ii) copper at 2800 mg/kg; (iii) concentrations of arsenic and chromium at levels consistent with what is expected in copper chrome arsenate treated timber (arsenic at 4000 mg/kg and chromium at 4800 mg/kg). 15 The landfill contains the following materials, being waste under the Protection of the Environment Operations Act:

(a) building and demolition waste, including dirt and whole and/or broken pieces of: bricks; concrete; stockpiles of timber beams and planks, including copper chrome arsenate treated timber; tiles; metal sheets; corrugated sheets; metal and other pipes; rubble;

(b) domestic and municipal waste, including furniture; cabinets; foam sheet; plastic sheet; plastic toys; plastic; cardboard and paper packaging and bags; pieces of fabric; footwear; clothing; carpet; mattresses; rotting food; electrical appliances; a water heater; and wires;

(c) sheeting and piping containing three types of asbestos: chrysotile, amosite and crocidolite;

(d) discarded metal, glass and plastic containers and drums, including for paints, pesticides, kerosene, oil and beverages;

(e) containers with liquid residues including pesticides, herbicides, kerosene, hydrocarbon compounds, ethyl-benzene, xylene and toluene;

(f) abandoned motor vehicles and motor vehicle parts;

(g) discarded car batteries and nickel-cadmium batteries;

(i) green waste (pieces of vegetation, including tree prunings, palm tree off-cuts, branches and leaves). 16 As to the amount of waste, the face of the landfill was approximately 250 metres long and approximately 15 metres high and 50 metres wide at the toe of the landfill. A survey of the premises and of the filled land by a qualified surveyor found that the filled land covered a length of about 300 metres and a width of up to 33 metres. The area of land covered by waste was 4,940 square metres. The surveyed net imported amount of waste was calculated at 7,200 cubic metres. This represented the difference between the volume of the waste, including volume from on-site excavation of dirt, and the volume of excavated dirt. 17 As to the position of the waste, the majority of the waste was disposed of in the gully in the north-eastern area of the premises. Adjacent to the gully was a flat, constructed earthen surface on the side of the hill. The cleared area is approximately 150 metres in length and 20 metres wide. The surface sloped downhill on two sides and then abruptly stopped. The point where the surface stopped was approximately five metres above the natural land formation. The cleared area had been constructed using materials that had been placed to raise the ground level from the floor of the gully of unknown depth. The surface of the cleared area was on top of a volume of waste approximately 15 metres high. 18 At various times during the offence, the cleared area contained piles of waste on the surface. When the premises were operating as a waste facility, waste was deposited on the side of the cleared area then pushed over the edge of the surface into the gully. Dirt was then excavated to cover the waste. 19 There was and is no stormwater diversion system in place to limit stormwater ingress which may cause leachate to be generated from the landfill. There was and is no leachate barrier or collection system in place to control leachate coming from the landfill. 20 As to the harm to the environment, it can be considered in terms of general harm; harm to the vegetation, fauna and soil; harm to the aquatic environment; and the potential harm to human health from the asbestos. 21 In relation to general harm, since the landfill is located on an upper slope, and since there was no or relatively little compaction of the waste in the landfill, there is the potential for downslope migration of waste material, both solid and liquid, that is contained within the fill. 22 In relation to harm to vegetation, fauna and soil, the depositing of the waste material has resulted in actual environmental harm in the form of destruction of native vegetation and associated fauna habitats. The waste material was placed on top of native vegetation. 23 The waste material caused damage to several trees. Some trees had been pushed over by the placement and subsequent movement of waste material. Trees that were directly affected by the placement of refuse included several spotted gum (Corymbia maculata), grey ironbark (Eucalyptus paniculata), white mahogany (Eucalyptus acmenoides), small fruited grey gum (Eucalyptus propinqua) and forest oak (Allocasuarina torulosa). 24 Trees that had been pushed over but were still living would be expected to die. The plant species in the immediate vicinity of the cleared area, which were likely to be the same as those covered and destroyed by the waste materials, were set out by Mr Winning in his table which was tendered in evidence. 25 Loss of vegetation also resulted in a loss of habitat for fauna species that may have utilised the vegetation for feeding, foraging, roosting, nesting or other activities. A diversity of species such as garden skink, white throated tree-creeper and eastern grey kangaroo have been recorded in the immediate vicinity of the cleared area and would have made use of the vegetation destroyed by the depositing of the waste. 26 It is highly likely that the destroyed vegetation would have been used by one or more threatened fauna species. However, the loss of vegetation is unlikely to have resulted in a critical impact for any of these threatened species. 27 A more substantial effect on fauna habitats could result from the felling of mature trees that supported hollows that may be used as den or nest habitat, particularly by arboreal mammals, bats and some birds such as owls. Several hollow-dependent threatened species are likely to occur in the vicinity of the site. It is unknown whether any felled hollow-bearing trees were under the waste material. Several standing trees in the upper edges of the refuse area do support hollows that may provide habitats for native species. One of the trees is shown in the photographs tendered by Mr Winning. It is possible that hollows may be used as habitat by threatened species such as masked owl, squirrel glider, yellow-bellied glider and greater broad-nosed bat. 28 The placement of waste material around the base of hollow-bearing trees and the mechanical damage to these trees is likely to reduce their life expectancy and may result in premature falling. 29 Physical damage of trees can facilitate infestation by fungal or other pathogens which can affect the survival of trees. Placement of fill around the base of trees can lead to root death with a consequent threat to the physical stability of the trees. 30 Soil introduced as part of the placement of waste materials and/or spread on stop of the waste materials has brought seeds of some invasive weed species such as coastal morning glory (Ipomoea cairica). Mr Winning's photographs show weeds growing on the edge of the refuse. 31 The weeds are invasive. There is already a substantial growth of morning glory from the waste materials into surrounding bushland. Although the infestation is unlikely to spread further, it has increased the extent of harm caused from the immediate area of the waste materials to surrounding areas. 32 If the site is left unremediated and unmanaged over the long term, the waste materials would most likely be colonised by weed species and would remain that way for many decades, until the materials rusted and/or decompose. The area on which the waste materials have been placed will not return to a condition resembling the surrounding native vegetation for many decades. 33 In relation to harm to the aquatic environment, some of the substances identified in the samples collected at the site by Mr Choi, an officer with the Environment Protection Authority, have the potential to create leachate that would pollute water channels downslope from the cleared area of the premises. 34 In particular, the uncontrolled presence in the waste materials of substances such as:

(a) liquid phenoxy acid herbicides which are phytotoxic (that is, they kill plants),

(b) the liquid solvents xylene and toluene which are toxic to plants and animals,

(c) the liquid solvent ethyl-benzene which may be carcinogenic to animals,

(d) copper chrome arsenate treated timber, and the chromium and arsenic is carcinogenic to animals,

(e) liquid petroleum hydrocarbons such as oils and kerosene which are toxic to plants and animals,

could, if introduced into leachate runoff from the premises, result in contaminated waters discharging from the site. Sufficient quantities of these substances in waters could harm any present aquatic organisms. This harm could take the form of acute lethal or chronic effects on those organisms. Acute lethal effects means death of the organism results after intense short term exposure. Chronic effects means harmful effects short of death, such as reduced growth or reproduction. 35 Even though many of the substances described above were in plastic or metal containers and not likely to be immediately released into the downslope environment, in the course of time the metal containers will rust out. Further, it is easily foreseeable that plastic containers will be crushed when compacted, resulting in the release of their contents. 36 The substances listed above are likely to present a low to moderate risk of harm to the environment for areas downslope of the fill. If the toxic and carcinogenic substances listed above are released as part of the leachate from the premises, they are likely to exert toxic effects within a relatively confined downslope gully area of hundreds of metres from the landfill. 37 On the basis that the land filling operations were of an uncontrolled nature and consisted of 7,200 cubic metres of fill, there is a considerable risk that there are larger quantities of toxic and hazardous waste hidden in buried strata within the landfill. The presence of this material would only become evident in the future years, as containers rupture or contamination material from within the landfill migrates to leachate exiting the landfill area. 38 The introduction of additional sediments in waters can have a number of detrimental effects, including smothering of animals and plants, and modification to the habitat which results in changes in the suitability of the environment for particular species. 39 Other effects on downslope environments are likely to include the introduction and establishment of weed species originating from the fill material, which can significantly degrade the affected bushland area. 40 In relation to the potential harm to human health from asbestos, the principal harm is the potential for harm by the inhalation of airborne fibres. As noted above, chrysotile, amosite and crocidolite asbestos types were detected at the premises. Each has a potential for harm to human health. 41 It would be possible to remove, transport and dispose of the asbestos in accordance with adopted measures under cl 42 of the Protection of the Environment Operations (Waste) Regulation 2005. If the waste was to be removed in accordance with the requirements of the regulation, the health risk presented to the machine operators would be very low, and the health risk to any other persons on the premises at the time the machines and trucks were operating would be less. 42 Having regard to all of these circumstances, the Court finds that the environmental harm caused by the commission of the offence is substantial and an aggravating circumstance under the Crimes (Sentencing Procedure) Act. Reasons for committing the offence 43 The criminality involved in the commission of the offence is to be measured not only by the seriousness of what actually occurred, but also by reference to the reasons for its occurrence. 44 The prosecutor notes that there is no evidence that the defendant was running a waste facility for profit, indeed the evidence is that the defendant did not receive any payment from persons who disposed of waste at the premises. Nevertheless, the prosecutor submits he was running a waste facility to advance his own purposes, that is to obtain fill to construct his road without having to pay for it. The prosecutor submits that the defendant was not in a position to pay for what might be regarded as clean fill. In this sense he has benefited by receiving the material. 45 The defendant submits that he was building and always intended to build an access road to the approved farm machinery shed and house. The receipt and disposal of the waste were merely the means by which he was constructing the road. The defendant refers to his statements made to the prosecutor's investigating officers and in the record of interview in 2003 that he was and intended to build a road. 46 The evidence establishes that the defendant carried out the activities of receiving and disposing of waste on his land for the purpose of constructing the access road to the approved buildings. It is true that this was to advance his own purposes and the means by which he obtained the fill meant he did not have to pay for the fill. However, the defendant did not construct the road with the intention of making a profit or saving an expense or avoiding the cost of obtaining and implementing the requisite licence. I do not find, therefore, that the defendant's reasons for committing the offence increase the seriousness of the offence. 47 The prosecutor also took issue with the defendant's asserted belief that he was entitled to build the road. The defendant stated that by reason of conversations he had had with officers of the council and his interpretation of the development consent and building approval, he believed he had authority to build the road. Such authority, he said, included building it in such manner as he thought fit, including the means he adopted of receiving and disposing of waste as the foundation for the road. The prosecutor submits that such a belief should not be seen to be a mitigating circumstance because, firstly, the defendant has not proven that that claim is true or, secondly, he has not proven that he had reasonable grounds for such a belief. 48 The defendant's belief that he was authorised to build the road does not operate to mitigate the seriousness of the offence or his culpability. The offence against s 144(1) of the Protection of the Environment Operations Act is a strict liability offence. The offence simply required that the owner or occupier of the land permitted the land to be used as a waste facility in circumstances where it could not lawfully be used as a waste facility. In the principal judgment I dealt with the question as to the meaning of the phrase "lawfully be used as a waste facility". The defendant's belief that it might have been able to be used as a waste facility, which belief I found to be incorrect as a matter of law and not to be reasonable, does not operate to mitigate the offence in this case. Foreseeability of risk of harm 49 The extent to which the defendant could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence is a relevant circumstance to be taken into account by the Court: s 241(1)(c) of the Protection of the Environment Operations Act. Clearly, having regard to the character, extent and other features of the activity of the defendant (notably, the nature, extent and volume of the waste disposed of and the methods of disposal on the land), the defendant could have reasonably foreseen the harm that has been caused and that was likely to be caused by the commission of the offence. As the prosecutor notes, the fact that the defendant said that he told the various persons who came to dispose of waste on the premises that he did not want hazardous and toxic waste is evidence that the defendant indeed had an understanding of the potential for environmental harm beyond the area covered by the waste to be caused by at least some of the waste. In relation to the impacts on the vegetation and fauna that use the vegetation, it was again clearly foreseeable that the harm that actually occurred would occur. Practical measures to prevent the risk of harm 50 The practical measures that could have been taken to prevent, control, abate or mitigate the harm caused or likely to be caused to the environment by the commission of the offence is another relevant consideration: s 241(1)(b) of the Protection of the Environment Operations Act. The practical measures that the defendant could have taken included:

(a) obtaining advice as to the route, design and construction of the access road, the obtaining of which would have either avoided building the road as constructed at all or certainly would have mitigated its effects;

(b) exercising control over the nature, extent and volume of the waste disposed of at the premises; and

(c) taking measures to control or mitigate the environmental harm including the measures that have been suggested by Mr Lane of controlling leachate and capping the waste with clay and that are now the subject of proposed orders under s 245 of the Protection of the Environment Operations Act . 51 Again the taking of these practical measures would have prevented or at least significantly mitigated the risk of environmental harm. Control over causes 52 Another relevant circumstance is the extent to which the defendant had control over the causes that gave rise to the offence: s 241(1)(d) of the Protection of the Environment Operations Act. I found in the principal judgment that the defendant had control over the premises and the persons who disposed of waste on the premises. The defendant failed to exercise the required degree of control over the nature, extent and volume of waste that was disposed of on the land. Complying with orders 53 Under s 241(1)(e) of the Protection of the Environment Operations Act a relevant consideration is whether, in committing the offence, the offender was complying with orders from an employer or supervising employee. This has no relevance to this case. Subjective circumstances of offender Lack of prior criminality

54 The lack of a prior criminal record is a mitigating factor: s 21A(3)(e) of the Crimes (Sentencing Procedure) Act. The defendant has no prior convictions for any environmental offence. Contrition and remorse 55 The defendant, in his oral evidence to the Court, has expressed contrition and remorse for the commission of the offence and its consequences. Greater weight can be given to the defendant's expression of contrition and remorse by the fact that he was prepared to give sworn testimony before the Court and he has been present in Court throughout the whole of the principal proceedings and the sentencing proceedings. The defendant also submits that his contrition and remorse is shown by his agreement to accept responsibility for carrying out remediation of the waste in accordance with the agreed orders: See s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. These orders in effect implement Mr Lane's clay capping option. 56 Whilst the defendant's agreement now to carry out remediation is evidence of his contrition and remorse, this needs to be viewed in the context that prior to this point the defendant has not undertaken any steps to remediate the waste or its effects on the land. In May 2003, when the officers of the prosecutor first visited the site, the defendant did stop carrying out the activities of receiving and disposing of waste. However, he did not take any steps to remediate the land after that time. In 2004, the prosecutor issued two notices. The first notice was issued on 24 February 2004 under s 191 of the Protection of the Environment Operations Act and required removal of the waste. The defendant did not comply with this notice. The second was issued on 2 August 2004, again under s 191 of the Protection of the Environment Operations Act, which required details of the defendant's tax returns and statements of all accounts held by the defendant with banks, credit unions or building societies. The defendant did not comply with this notice either. 57 Independently of the notices, as I have said, the defendant has not taken any steps to remediate the land. Hence, while it is in the defendant's favour that he is now prepared to carry out the remediation works the subject of the proposed orders, more weight would be given to the factor of contrition and remorse if the defendant had independently and at an earlier point of time taken some steps towards remediating the land. Nevertheless, this does not mean that weight should not be given to the factor of contrition and remorse. Assistance to authorities

58 The co-operativeness of the defendant with the Environment Protection Authority is a matter to be taken into account when fixing penalty: s 21A(3)(m) and 23(1) of the Crimes (Sentencing Procedure) Act. The defendant submits that he has co-operated with the Environment Protection Authority in the following respects:

(a) he stopped work on the waste facility without the necessity for any order by the EPA;

(b) he caused the persons who were delivering waste, Skip The Tip and East Coast Demolitions, to stop the delivery of waste without an order from the EPA;

(c) he participated in a formal record of interview with the EPA voluntarily;

(d) he attempted, as best he was able, to answer various questions provided by the EPA during the period of time after judgment was delivered in the principal proceedings and before this sentence hearing when he was legally unrepresented; and

(e) he agreed to the preparation of an agreed statement of facts to facilitate the speedy resolution of the sentence hearing. 59 These factors do indicate some assistance has been provided by the defendant to the prosecutor. It should be taken into account along with his expressions of contrition and remorse. Financial means 60 In the exercise of the discretion to fix the amount of a monetary penalty, the Court should consider the financial means of an offender to pay a fine from such information as is reasonably and practicably available to the Court: see s 6 of the Fines Act 1996. Once a determination has been made that a fine should be imposed, the correct procedure in assessing the appropriate amount of the fine is to determine it by reference to the gravity of the offence for which it is imposed. If the Court is satisfied that the offender would be unable to pay the amount determined, the Court may reduce the amount of the fine to take account of the offender's means and impecuniosity: see R v Rahme (1989) 43 A Crim R 81 at 87. 61 The fine may be only part of the penalty imposed on the offender. Consideration could also be given to other monetary amounts the offender may be ordered to pay, including the prosecutor's legal costs of the proceedings: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and [88]. 62 The financial means of the defendant has been set out earlier. This shows that the defendant does have assets, particularly the two real properties. However, these properties are both subject to significant mortgages. Nevertheless, it does show that there would be a capacity to pay a fine obviously depending upon the quantum of the fine. Appropriate sentence 63 The sentence of the Court should reflect the appropriate purposes of sentencing. In this case, of particular relevance are:

(a) punishment, denunciation and accountability: s 3A(a), (e) and (f) of the Crimes (Sentencing Procedure) Act ;

(b) deterrence both general and specific: s 3A(b); and

(c) restoration and reparation, recognising the harm done to the community in the form of the environment: s 3A(g). 64 These purposes inform both the type of sentence and its severity. There is a need for a fine to be imposed in this case to achieve the purposes of punishment, denunciation, accountability and general deterrence. There is also a need for orders to be made to restore and repair the environment that has been harmed by the commission of the offence. There is power under s 245 of the Protection of the Environment Operations Act to make such orders. 65 Having regard to the objective gravity of the offence as set out above, mitigated by the subjective circumstances of the defendant, also discussed above, I am of the opinion that an appropriate fine for this offence is $12,000. In fixing this amount I have also taken into account the financial costs that would be incurred in carrying out the orders for restoration of the environment under s 245 of the Protection of the Environment Operations Act. Mr Lane estimated those costs to be in the order of $55,000. The defendant estimated it may cost around $30,000 if he can use his own and his friends' labour and minimise the amount of imported fill. Accordingly, the financial costs of carrying out these orders should be taken into account in fixing the amount of the fine. 66 Furthermore, as was said by the Court of Criminal Appeal in EPA v Barnes, the total penalty that is imposed upon an offender should also take into account any order against the defendant for the payment of the prosecutor's legal costs. In this case an agreement has been reached between the defendant and the prosecutor that the defendant should pay the prosecutor's legal costs in the agreed sum of $105,000. I note that the defendant and the prosecutor have reached agreement between themselves that the defendant should pay that agreed sum by twelve equal monthly instalments, the first instalment to be paid within six months from the date of the Court making the order. I therefore take into account the fact that the defendant will pay the agreed sum of $105,000 as well. 67 I note that in fixing the fine of $12,000 I have taken into account the financial means of the defendant. I consider that having regard to the financial means of the defendant, he would be able to raise the finances necessary to pay a fine in the amount of $12,000 and it is not necessary to reduce the amount of that fine. Orders 68 Accordingly, the Court makes the following orders: (1) The defendant is convicted of the offence with which he has been charged;

(3) The defendant is to pay the prosecutor's legal costs in the agreed sum of $105,000;

(4) Pursuant to s 245 of the Protection of the Environment Operations Act 1997, the Court orders that: Removal of car bodies and asbestos a) By 11 June 2007 the Defendant must cause all visible car bodies and asbestos to be removed from the waste stockpile and disposed of to a place that can lawfully receive it. b) By 18 June 2007 the Defendant must provide to the DECC all weigh bridge dockets from the place or places that received the waste referred to in paragraph (a).

c) In these orders "the waste stockpile" means all waste within the line marked "extent of fill" on the plan of survey that is Attachment A to these orders. Compaction and clay capping

d) By 30 April 2008 the Defendant must cause the waste stockpile to be compacted prior to the application of the clay capping. e) The waste stockpile must be battered so that a slope of at least 3 metres horizontal to each vertical metre is achieved across the waste stockpile.

f) By 30 April 2008 the Defendant must cause all waste remaining at the waste stockpile to be permanently covered with at least 500 mm of clay.

g) (i) The clay capping must be applied in layers of not more than 300 millimetres thickness and compacted to achieve a compaction of 98% across the total cap plus or minus 2% moisture.

(ii) A registered geotechnical engineer must test the density of the compaction each 500 square metres after the application of each layer.

(iii) Within two (2) weeks of the testing being conducted, the Defendant must provide a copy of the results to the DECC.

h) By 30 June 2008 the Defendant must provide to DECC, a report from the registered geotechnical engineer of all testing undertaken in accordance with paragraph g(ii).

i) The clay surface should be contoured with contour banks and spill areas.

j) If the clay and any topsoil used to cover the waste are sourced on the premises, the area from which the clay and any such soil are excavated must be landscaped so that the gradient of all slopes on all sides of the excavated area reflect the various existing slope gradients surrounding the excavated area.

k) All waste removed in accordance with these orders must be transported lawfully, including, without limitation, in accordance with the Protection of the Environment Operations (Waste) Regulation 2005 and the Protection of the Environment Operations Act 1997.

l) All weigh bridge dockets required to be provided under these orders must show the time, date, tonnage and vehicle registration of each load of waste.

m) The Defendant must provide any weigh bridge dockets or reports required by these orders to the DECC's Head, Regional Operations, Hunter Region, PO Box 488G, NEWCASTLE, 2300.

n) Machinery operating on the site for the purposes of excavating, loading and compaction in accordance with these orders must not operate outside of the hours 7 am to 7pm Monday to Friday, 7 am to 6 pm Saturday and 8 am to 1 pm Sunday. Machinery must not operate on public holidays.

o) Vehicles involved in the transport of waste from the property in accordance with these orders must not enter or leave the property otherwise than during the hours of 8 am to 5 pm Monday to Saturday and 8 am to 1 pm Sunday. Vehicles transporting loads of waste must not operate on public holidays.

p) These orders do not require or authorise the damage or removal of any vegetation from the premises. If the manner in which the defendant seeks to comply with these orders will involve damage to or the removal of any vegetation, the defendant must seek any relevant approvals.

q) The Court grants to both parties liberty to apply on 7 days' notice.

"Premises" means: Lot 72 in Deposited Plan 755238, also known as 327 Manhire Road, Wyee, NSW.

"Waste" means any and all of the following: · Building and/or demolition waste and domestic rubbish, including dirt and whole and/or broken pieces of: bricks; concrete; timber beams and planks, including copper chromium arsenate treated timber; furniture; cabinets; metal sheets; foam sheets; corrugated sheets; plastic sheets; plastic toys; plastic, cardboard and paper packaging and bags; metal and other pipes; pieces of fabric; footwear; clothing; mattresses; rotting food; electrical appliances; and wires; and · Waste containing asbestos; and · Discarded metal, glass and plastic containers, including for paint, pesticides, kerosene, oil and beverages; and · Containers with liquid residues including pesticides, kerosene, hydrocarbon compounds, ethyl-benzene, xylene and toluene; and · Abandoned motor vehicles and motor vehicle parts; and · Discarded car batteries and nickel-cadmium batteries; and · Used tyres. "DECC" means: Department of Environment and Climate Change.

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.