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: