Environment Protection Authority v Hughes - [2019] NSWLEC 108 - NSWLEC 2019 case summary — Zoe

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Environment Protection Authority v Hughes

[2019] NSWLEC 108

Land and Environment Court (NSW)|2019-07-03|Before: Pepper J, Mr P

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-07-03

Before

Pepper J, Mr P

Catchwords

(2014) 205 LGERA 39 Bentley v BGP Properties Pty Limited [2006] NSWLEC 34
(2017) 227 LGERA 145 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419
(2006) 148 LGERA 299 Harris v Harrison [2014] NSWCCA 84
(2009) 170 LGERA 253 R v De Simoni [1981] HCA 31

Source

Original judgment source is linked above.

Catchwords

(2014) 205 LGERA 39 Bentley v BGP Properties Pty Limited [2006] NSWLEC 34(2017) 227 LGERA 145 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419(2006) 148 LGERA 299 Harris v Harrison [2014] NSWCCA 84(2009) 170 LGERA 253 R v De Simoni [1981] HCA 31(1981) 147 CLR 383 R v MAKR v MSK [2006] NSWCCA 381(2006) 167 A Crim R 159 R v ThomsonR v Houlton [2000] NSWCCA 309

Judgment (43 paragraphs)

[1]

A 25; (2005) 228 CLR 357 Mulvihill v R [2016] NSWCCA 259 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd & Kinnarney (No 2) [2012] NSWLEC 95 Water NSW v Barlow [2019] NSWLEC 30 Texts Cited: Category: Sentence Parties: Environment Protection Authority (Prosecutor) Thomas Hughes (Defendant) Representation: Counsel: Ms C Winnett (Prosecutor) Mr P Tomasetti SC with Mr J Johnson (Defendant)

[4]

Statutory Regime Dealing With Waste Offences Under the POEOA

Division 3 of Part 5.6 of the POEOA deals with waste offences. Section 143(1) of that Act creates the offence of "unlawful transporting or depositing of waste": 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 permits 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 - $2,000,000 (if the offence involves asbestos waste) or $1,000,000, or (b) in the case of an individual - $500,000 (if the offence involves asbestos waste) or $250,000.
The onus is on Mr Hughes to prove that the premises where the waste was transported can be lawfully used as a waste facility for that waste (s 143(2) of the POEOA).
Section 143(3C) relevantly provides the following defence: (3C) Defence - waste not deposited It is a defence in any proceedings for an offence under this section if the defendant establishes that the waste transported by the defendant was not deposited by the defendant or any other person at the place to which it was transported.
Section 144(1) establishes a further offence with respect to the use of a place as a waste facility without lawful authority: 144 Use of place as waste facility without lawful authority (1) A person who is the owner or occupier of any place and who uses the place, or causes or permits the place to be used, as a waste facility without lawful authority is guilty of an offence. Maximum penalty: (a) in the case of a corporation - $2,000,000 (if the offence involves asbestos waste) or $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual - $500,000 (if the offence involves asbestos waste) or $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
Again, the onus is on Mr Hughes to prove that there is lawful authority to use the premises as a waste facility (s 144(2)).
The term "waste facility" is defined in the Dictionary to the POEOA to mean "any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulation)".
The word "waste" is defined in the Dictionary of that Act as: waste includes: (a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or (e) any substance prescribed by the regulations to be waste. A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered.
Clause 6 of the Protection of Environment Operations (Waste) Regulation 2014 ("the Regulation") further relevantly provides: 6 Definition of "waste" - prescribed circumstances and substances … (2) For the purposes of paragraph (e) of the definition of waste in the Dictionary to the Act, the following substances are prescribed to be waste: (a) any substance that is received by a scheduled waste facility (other than any office supplies, or any plant or vehicles, used or intended to be used at the facility) if the occupier of the facility is required to pay contributions to the EPA under section 88 of the Act and the substance is reasonably capable of being applied to land at the facility by: (i) spraying, spreading or depositing on the land, or (ii) ploughing, injecting or mixing into the land, or (iii) filling, raising, reclaiming or contouring the land…

[5]

Mr Hughes Causes Waste to be Transported and Disposed of Unlawfully at the Premises

The background to the commission of the offences was largely contained in three agreed statements of facts, the salient features of which are summarised below.
On 27 April 2015, the prosecutor, the Environment Protection Authority ("EPA"), received a complaint on its Environment Line stating that for the past fourteen months Thomas Paul Constructions Pty Limited ("TPC") had been illegally dumping large quantities of building materials at the premises.
Mr Hughes is the sole director, company secretary, and sole shareholder of TPC, a company that purchases land for the purpose of developing houses and constructs those houses. TPC constructs approximately 300 houses per year.
The premises are located within the Muswellbrook local government area, 23 km from Muswellbrook. It has an area of 75.7 ha.
The premises were purchased by Mr Dylan Bain on 21 October 2013. Mr Bain was aged 16 at the time of purchase. He had no source of income and is the grandson of Mr Hughes. Mr Hughes paid for the purchase of the premises. Mr Bain did not have any actual involvement in the purchase of the premises or in the commission of the offences.
While the owner of the premises was Mr Bain, Mr Hughes was at all relevant times the occupier of the premises.
Access to the premises was controlled by a gate which was opened with a key in the possession and control of Mr Hughes.
From 21 October 2013 to 31 December 2014, Mr Hughes directed trucks to be loaded with building and demolition waste.
Specifically, Mr Hughes directed drivers, including Messrs Michael Mizzi and Colin Forster, to arrive at TPC (at 9 Reliance Drive, Tuggerah) to pick up a truck filled with waste to be transported to the premises.
The distance between TPC at Tuggerah and the premises was approximately 180 km and involved a driving time of approximately 2.5 hours each way.
Mr Hughes directed that holes be dug at the premises ready for the disposal of waste. Mr Hughes further directed drivers transporting the waste to the premises to unload the waste into the pre-dug holes and to fill the holes with waste which were to be covered over with soil won from the pre-dug holes.
At all relevant times, the premises was not the subject of an environment protection licence ("EPL") issued under the POEOA. An EPL was also not held by Mr Bain.
The waste originated from the construction of houses.

[7]

Volume of Waste Disposed

Mr Hughes directed waste be deposited at two areas at the premises. The two areas are marked as "Location B" and "Location C" in the aerial map of the premises below. An area described as "Location A" is also marked on this map, but is irrelevant to these proceedings.
Mr Hughes decided to dispose of waste at the premises because he was unsuccessful at setting up a waste disposal facility at a different site due to zoning changes.
The calculated volume of waste Mr Hughes buried at the premises is based on the results of the test pit excavations and the environmental assessment carried out on 26 and 27 May 2016. The test pits at Locations B and C are indicated in the aerial photographs below.
It has not been possible to calculate the volume of the waste based on records kept by Mr Hughes because he has not provided the EPA with records of the volume or the number of truckloads of waste that he directed to be transported to the premises.
Location B is approximately 600 m². Four test pits were excavated in Location B as part of the EPA's investigation.
Two of these test pits were found to contain a heterogeneous mix of fragments of wood, metal, bricks, ceramic tiles, fibrous cement sheeting, poly vinyl chloride ("PVC") pipe, concrete and other materials associated with the construction or demolition of buildings.
The waste at Location B has a classification of "General Solid Waste (non-putrescible)" in accordance with the Waste Classification Guidelines.
Two of the four test pits at Location B did not reach the base of the waste, indicating that the depth of the waste in those areas is greater than 2 m and 2.7 m (the depth at which the excavations were terminated).
The calculation of estimated volume at Location B is based on the results of the excavation and the environmental assessment of the premises which showed that: 1. the depth of soil covering the waste at Location B was on average 0.5 m; 2. the depth of waste below the top soil on average exceeded 1.5 m and was assumed to be at least 2 m thick; and 3. the waste was likely to have been buried under about 75% of the 600 m² of Location B.
The volume of the waste buried at Location B is therefore likely to be no less than 500 m³.
Location C is approximately 5,500 m². Nine test pits were excavated in Location C as part of the EPA's investigation.
Eight of these test pits were found to contain a heterogeneous mix of fragments of wood, metal, bricks, ceramic tiles, fibrous cement sheeting, PVC pipe, concrete and other materials associated with the construction or demolition of buildings.
The waste at Location C also has a classification of "General Solid Waste (non-putrescible)" in accordance with the Waste Classification Guidelines.
Eight of the nine test pits at Location B did not reach the base of the waste, indicating that the depth of the waste in those areas is greater than 2.8 m, 3 m, 1 m, 2.8 m, 1.8 m, 2.3 m, 2.3 m, 1.9 m, and 2 m (the depth at which the excavations were terminated).
The calculation of estimated volume at Location C is based on the results of the excavation and the environmental assessment of the premises which showed that: 1. the depth of soil covering the waste at Location C was on average 0.5 m; 2. the depth of waste below the top soil was on average 2 m thick. The true depth can only be accurately ascertained by digging up the waste; and 3. the waste was likely to have been buried in trenches across the 5,500 m² of Location C. The exact percentage of the area excavated for waste burial can only be ascertained by digging up the waste.
The volume of the waste buried at Location C is therefore likely to be no less than 4,000 m³.
Accordingly, it may be found that Mr Hughes directed no less than 4,500 m³ of building and demolition waste classified as "General Solid Waste (non-putrescible)" to be transported to, and deposited at, the premises.
Mr Hughes therefore used the premises as a waste facility for the disposal by application to land of no less than 4,500 m³ of waste without lawful authority.

[8]

Estimated Tonnage of Waste Transported to, and Deposited at, the Premises

Clause 39 of Sch 1 of the POEOA lists waste disposal (application to land) as a scheduled activity for which a licence is required under that Act. Clause 39(2)(a) of Sch 1 relevantly provides that the clause does not apply to an activity involving sites inside the regulated area that receive no more than 200 tonnes of building and demolition waste only. Clause 39(4) stipulates that for the purposes of the clause "1 litre of waste is taken to weigh 1 kg".
Applying the density value of 1 kg to 1 litre the estimated tonnage of waste Mr Hughes disposed of by application to land at the premises was no less than 4,500 tonnes. This is above the 200 tonne threshold specified in cl 39(2)(a).
The conversion of cubic meters to tonnes is calculated by reference to the EPA Waste Levy Guidelines ("Waste Levy Guidelines") and the Regulation.
Clauses 13(3)(b) and (c) and 13(4)(a) of the Regulation permit the EPA to take into account the following information for the purpose of estimating the tonnage of waste received at the premises: 13 Presumptions and estimates if inadequate records kept … (3) The EPA is entitled to presume each of the following matters (subject to the occupier of the waste facility establishing the contrary): … (b) the waste was received on the date on which the EPA first became aware that the records are inadequate, (c) any waste received by the facility has been generated in the MLA or generated from waste generated in the MLA. … (4) In estimating the tonnage of waste received at the waste facility during the period, the EPA is to take into consideration any of the following that the EPA considers appropriate in the circumstances: (a) in respect of waste other than liquid waste, a volumetric survey of waste at the facility carried out by a qualified surveyor,…
Clause 13(7) and (8) of the Regulation provide the following conversion formula for the purpose of estimating the tonnage of waste received at a waste facility on the basis of a volumetric survey: (7) For the purposes of estimating the tonnage of waste received at a waste facility under this clause, on the basis of a volumetric survey: (a) the conversion formula is to be used in converting cubic metres of waste to tonnes of waste, or (b) if the EPA is of the opinion that it is able to more accurately estimate the tonnage of the waste by using another method that is reasonably available to it than by using the conversion formula - the other method is to be used. (8) The conversion formula is: T = V x 2 where: T is the amount in tonnes of waste received. V is the volume in cubic metres of the waste determined by the volumetric survey.
Table 4.1 "Vehicle and Bin Weight Conversion Factors" in the Waste Levy Guidelines gives a density value of 1.1 tonne to 1 m³ for skip bins carrying construction and demolition waste applying the most appropriate factor, namely, "all other waste".
Applying the density value of 1.1 tonnes to 1 m³, the estimated tonnage of waste that Mr Hughes directed be transported to, and deposited at the premises was no less than 4,950 tonnes.

[11]

Statutory Matters Required to be Taken into Account in Sentencing

The POEOA sets out the matters which are to be taken into account when sentencing for offences committed under that Act. Section 241 of the POEOA provides that: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant.
Subsections 21A(2) and (3) of the CSPA also set out aggravating and mitigating factors that the Court must take into account. Relevant to the facts of this case, these are as follows: 21A Aggravating, mitigating and other factors in sentencing (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … (o) the offence was committed for financial gain… The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23)… … (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
The appropriate sentence for Mr Hughes is to be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of the commission of the offences (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357).
Importantly, the sentence to be imposed on Mr Hughes for the offences must be proportionate to both the objective seriousness or gravity of the offence and Mr Hughes's subjective circumstances.

[13]

Nature of the Offences

The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme is illustrative of the objective seriousness of an environmental offence (Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[169]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49] and Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).
The relevant objects of the POEOA contained in s 3A identify the purpose of creating the offence: 3 Objects of Act The objects of this Act are as follows: (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, … (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following: (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis,
Mr Hughes's unlawful conduct undermined the legislative objectives of the POEOA, in particular s 3(a) and (d). Mr Hughes's actions also compromised the beneficial protection to the environment and human health that the regulatory scheme provides.
Relevantly with respect to the commission of offences of this nature, in Bankstown City Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39 Preston J explained the statutory scheme of which ss 143 and 144 are a part under the POEOA (at [49]-[54]): 49. "Ecologically sustainable development" is defined to have the same meaning as in s 6(2) of the Protection of the Environment Administration Act 1991 (s 4 and Dictionary to the POEO Act). This meaning is that "ecologically sustainable development requires the effective integration of economic and environmental considerations in the decision-making processes" and can be achieved through the implementation of four principles and programs: the precautionary principle, inter-generational equity, conservation of biological diversity and ecological integrity, and improved valuation and incentive mechanisms, including the polluter pays principle (that is, "those who generate pollution and waste should bear the costs of containment, avoidance or abatement"): s 6(2) of the Protection of the Environment Administration Act. 50. One of the principal means by which the statutory objects of protection of the environment and pollution prevention are to be achieved is by the POEO Act prohibiting specified activities that may pollute the environment but enabling a person to be relieved of the prohibition by applying for and obtaining statutory approval in the form of a licence from the relevant regulatory authority to carry out such activities. The POEO Act lists in Schedule 1 activities for which a licence is required: s 43 of the POEO Act. These include both premises-based activities (where a licence is required for premises at which the activity is carried on) and non premises-based activities (where a licence is required to carry on the activity, but not for the premises at which the activity is carried on): ss 48 and 49 and Sch 1 of the POEO Act. Scheduled premises-based activities include resource recovery (the receiving of general waste or the receiving of hazardous and other waste from off site and its processing); waste disposal (application to land) (involving the application to land of waste received from off site); waste disposal (thermal treatment); and waste disposal (non-thermal treatment) (including the receiving of general waste or hazardous and other waste from off site and its processing otherwise than by thermal treatment): see cll 34, 39, 40 and 41 of Sch 1 of the POEO Act. Scheduled activities that are not premises-based include the transport of trackable waste: cl 48 of Sch 1 of the POEO Act. 51. Application for and approval of a licence involves assessment of the environmental impacts of the proposed activity (including the pollution likely to be caused by the carrying out of the activity and the likely impact of that pollution on the environment) and assessment of the applicant (including whether the person is a fit and proper person to hold the licence): ss 45, 53, 55 and 83 of the POEO Act. 52. The POEO Act makes it an offence for a person, who is the occupier of any premises, to carry on scheduled, premises-based activities on premises without being the holder of a licence that authorises that activity to be carried on at those premises: s 48(2) of the POEO Act. The POEO Act also makes it an offence to carry on a scheduled, non premises-based activity without being the holder of a licence that authorises that activity to be carried on: s 49(2) of the POEO Act. 53. In addition, the POEO Act also specifically proscribes certain conduct concerning the transporting and depositing of waste without lawful authority. This includes the use of a place as a waste facility (being premises used for the storage, treatment, processing, sorting or disposal of waste: see Dictionary to the POEO Act) (s 144(1) of the POEO Act); the transporting of waste to and the depositing of waste at a place that cannot lawfully be used as a waste facility for that waste (s 143(1) of the POEO Act); and polluting land, such as by depositing waste on land (s 142A(1) of the POEO Act). The prohibition of this conduct prevents land pollution and its impacts on the environment, including harm to human health. A person can only carry out the conduct if a licence has been issued authorising the person to do so. Application for and approval of a licence ensures the proper assessment of the conduct, the land on which the conduct is proposed to be carried out, and the environmental impacts of the conduct, as well as an assessment of whether the person is a fit and proper person to carry out the conduct (including whether the person has contravened the POEO Act, such as having been convicted of waste offences against ss 142A(1), 143(1) or 144(1) of the POEO Act). 54. The statutory provisions requiring application for approval, assessment and approval of activities are linchpins of the statutory scheme. An offence against these provisions thwarts the achievement of the objects of the POEO Act, including ecologically sustainable development, and undermines the integrity of the regulatory scheme under the POEO Act.
In Environment Protection Authority v Hanna [2010] NSWLEC 98, Craig J opined that the objective seriousness of the offence created by s 143 of the POEOA was illuminated by the statutory scheme (the same observation is apposite with respect to s 144) (at [38]): 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.
And in Environment Protection Authority v Gilder [2018] NSWLEC 119 Robson J considered the nature of the offence against s 144 of the POEOA in the context of storage of waste without an EPL. His Honour opined as follows (at [105]): [105] I find that, as submitted by the prosecutor, and as I consider in relation to environmental harm and the regulatory scheme at [125] below, the offence does undermine the legislative objectives and integrity of the POEO Act.
I accept the submission of the EPA that Mr Hughes's actions in causing the transport and burying of a considerable volume of waste at the premises (no less than 4,500 m³) over a significant period of time undermined the integrity of the statutory scheme in the manner posited above by the Court and compromised the legislative objectives of the POEOA. This serves to increase the objective seriousness of the commission of the offences (Hanna at [57] per Craig J).

[15]

Mr Hughes's State of Mind

Although the offences created by ss 143 and 144 are strict liability offences, if committed intentionally, recklessly or negligently, this will increase the objective seriousness of the offences compared to those committed inadvertently (Hanna at [70] per Craig J, Environment Protection Authority v Geoff Robinson Pty Ltd [2011] NSWLEC 14 at [83] and Environment Protection Authority v Dib Hanna Abdallah Hanna [2018] NSWLEC 80 ("Dib Hanna") at [119]-[121] per Preston J).
Similarly, "a large measure of premeditation or planning will make an offence more serious than if it is committed on the spur of the moment" (Hanna at [71] per Craig J and Dib Hanna at [120] per Preston J).
It was not in contention that all relevant times Mr Hughes: 1. had care and control of the premises; 2. knew that the premises were not a lawful waste disposal site; 3. knew that there was no development consent permitting the premises to be used as a waste facility; 4. decided to dispose of waste at the premises because he was unsuccessful in setting up a waste disposal facility at a different site due to zoning changes; and 5. directed and caused the waste to be transported to and buried in pits at the premises.
In short, Mr Hughes was aware that he was "doing the wrong" thing by using the premises as a waste facility. As was stated in his written submission, he "admits that the offence was committed knowingly, to avoid the cost of lawful disposal". In other words, he deliberately and intentionally committed the offences in a coordinated and premeditated manner.
Mr Hughes argued, however, that the Court could not take into account his state of mind at the time he committed the offences because this would offend the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 (at 389). This was because it would be to punish him with a more serious offence with which he had not been charged, namely, breach of s 115 of the POEOA which states that: 115 Disposal of waste - harm to environment (1) Offence If a person wilfully or negligently disposes of waste in a manner that harms or is likely to harm the environment: (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence. (2) Defence - lawful authority It is a defence in any proceedings against a person for an offence under this section if the person establishes that the waste was disposed of with lawful authority. (3) Definitions In this section: dispose of waste includes to dump, abandon, deposit, discard, reject, discharge or emit anything that constitutes waste, and also includes to cause or permit the disposal of waste. owner of waste includes, in relation to waste that has been disposed of, the person who was the owner of the waste immediately before it was disposed of.
The maximum penalty for a breach of s 115 of the Act is, in the case of an individual who commits the offence wilfully, $1 million or seven years' imprisonment or both. Plainly s 115 is a more serious offence with which Mr Hughes has, for reasons only the EPA is aware of, not been charged.
The intentional conduct of Mr Hughes cannot therefore be taken into account as a factor in aggravation in the commission of the s 144 offence.
In my view, the De Simoni principle also applies to preclude Mr Hughes's mental state being considered as a factor in aggravation for the purpose of the s 143 offence. This is because of the curious drafting of this offence which, while not making the depositing of the waste an element of the offence (Environment Protection Authority v Shannongrove Pty Ltd (No 2) [2012] NSWLEC 202 at [6]), means that the prosecutor must consider whether or not the defendant deposited the waste at the place to which it was transported (s 143(3C)). In other words, in order for the offence to crystallise, the defendant must not only have transported the waste to a place that cannot be lawfully used as a waste facility for that waste, the defendant must also have deposited the wasted at that place, otherwise the defence in s 143(3C) will negate s 143(1) of the POEOA. And if this transportation and deposition is carried out intentionally (that is, wilfully) then s 115 of the POEOA is engaged giving rise to the application of De Simoni.
To the extent that the EPA relied upon Dib Hanna as authority to the contrary, it does not appear that the issue was argued fully before the Court on that occasion, and in any event, the Court did not take into account the wilful nature of Mr Hanna's offending as an isolated factor in aggravation, but rather considered it in the overall context of assessing the objective seriousness of the commission by Mr Hanna of the offences with which he had been charged. This was neither plainly wrong nor wrong (Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [158] and the cases cited thereat).
While the Court cannot consider Mr Hughes's wilful state of mind as a factor in aggravation, it can nevertheless take the premeditated and deliberate nature of his offending into account in assessing the objective seriousness of both offences. In the present case, by Mr Hughes's own admission, he engaged in an intentional and planned course of conduct to transport and bury waste at a place that he knew he did not have lawful authority to use in this fashion. Mr Hughes's commission of both offences in this way serves to increase the objective seriousness of their commission. So too does the premeditated and planned nature of the contraventions.

[16]

Reason for the Commission of the Offences

By Mr Hughes's own admission the reason for the commission of the offences was to avoid the payment of costly waste levies and fees. That is, he committed the offences for financial gain.
Again Mr Hughes submitted that by reason of the De Simoni principle his reason for the commission of the offences could not be taken into account as a factor in aggravation under s 21A(2)(o) of the CSPA. Because it is all but impossible to envisage an offence committed for financial gain that is not committed intentionally, recklessly or criminally negligently, I accept Mr Hughes's argument.
However, the fact that the offences were committed for financial gain can be considered, not for the purposes of s 21A(2)(o) of the CSPA, but again to assess their objective seriousness. Crimes undertaken for financial gain are more objectively serious than crimes for which there is no remunerative benefit.
The EPA engaged Mr Michael Hoyer, a Waste Levy Compliance Officer employed by it to establish the waste disposal gate fee that would have been applicable to the lawful disposal of building and demolition waste at Tuggerah between 1 October 2013 and 31 December 2014. A waste disposal gate fee comprises the EPA Waste Levy together with any additional fees charged by the waste disposal facility. It varies from facility to facility depending on the fees charged by the relevant council.
In his affidavit affirmed 24 May 2019, in relation to the waste disposal gate fee, Mr Hoyer estimated that: 21. I applied the tipping charges at the Buttonderry Waste Management Facility for the 2013-2014 financial year for mixed waste (including general waste, building & demolition waste, commercial recyclables, tiles, bricks, concrete, tree stumps, and trunks greater than 1m measured at widest point, treated timber), being $295 per tonne. 22. Therefore, I estimate that the gate fee that would have been payable for the lawful disposal of the waste was $1,460,250.
Alternatively, Mr Hoyer calculated the waste levy contribution a facility at the premises would have been obliged to pay for the disposal of waste between 1 October 2013 and 31 December 2014. In doing so, Mr Hoyer applied the presumptions in cl 13(3), (4), (7) and (8) of the Regulation (reproduced above) on the basis that the records of waste received during that period were inadequate and that any waste received at the premises had been generated in the Metropolitan Levy Area ("MLA") or generated from waste in the MLA.
In relation to the MLA waste levy contribution, Mr Hoyer calculated that: 26. In the present matter, I was advised that the EPA first became aware of waste being brought to the Premises in April 2015. The tonnage calculation would be determined as per clause 13(8), being: Volume x 2 (being 4,500m3 x 2 and equalling 9,000 tonnes). 27. By applying this levy rate of $120.90, I estimate the potential levy debt would be $1,088,100.
The EPA conceded during argument that it could not prove beyond reasonable doubt the exact tonnage of waste transported to and deposited at the premises, and therefore, the precise amount of monetary benefit accruing to Mr Hughes by reason of his commission of the offences (T46:13-30). However, I accept the EPA's submission that ultimately this did not matter because on any view the financial gain was demonstrated to be "significant" (T47:12-15 and T48:15).
Even taking Mr Hoyer's evidence at its most favourable to Mr Hughes, the commission of the offences in order to avoid paying at the very least $1 million in waste disposal fees and levies clearly serves to amplify the objective seriousness of the offences. Irrespective of the conversion factor used to calculate the tonnage of the waste transported to and deposited at the premises, based on the agreed minimum volume of 4,500 m3 of waste and the agreed waste levy of $120.90 per tonne, there is no doubt whatsoever that Mr Hughes made a significant financial gain in the commission of the offences.
That the decision to unlawfully transport and deposit the waste has ultimately proven to be "a costly and unprofitable decision" on the basis that since the commission of the offences the fees and levies have increased is irrelevant. To the extent that Mr Hughes will now have to pay increased waste fees and levies to lawfully remove and dispose of the waste is the price he must pay to comply with his legal obligations under the POEOA.

[17]

The Environmental Harm Occasioned or Likely to be Occasioned by the Commission of the Offences

Section 241(1)(a) of the POEOA requires the Court to take into account the extent of the harm caused, or likely to be caused, to the environment by the commission of the offence. "Harm" is defined in the dictionary to the POEOA as: harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.
In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299, Preston J stated that "harm" includes both actual harm and potential harm (at [145]-[148]): 145. Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. 146. Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174]. 147. Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously. 148. The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
The meaning of the words "likely to be caused to the environment" was considered by Lloyd J in Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 (at [44]): 44. In considering the harm likely to be caused to the environment, it is to be noted that the word "likely" in this context has been held to mean "a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance" (Mathews v Goulburn Wool Processors, NSWSC, Smart J, 6 November 1986, unreported); "only a real chance or possibility, and not more probably than not" (State Pollution Control Commission v Blayney Abattoirs Pty Ltd (1991) 72 LGERA 221 at 224); and "does not mean 'probable'. It means 'a real possibility'" (New South Wales Sugar Milling Co-operative Ltd v State Pollution Control Commission (1991) 73 LGRA 86 at 100, affirmed by the Court of Criminal Appeal on other grounds, (1992) 75 LGRA 320).
The parties relied on several expert reports to support their submissions on the environmental harm caused by the commission of the offences.
Attached to one of the statements of agreed facts was the KMH report. In section 3 "Site Description and Observations", the report revealed that between 18 October 2013 and 30 August 2015, parts of the premises had been cleared of vegetation: 18 October 2013 The 18 October 2013 aerial photograph shows the investigation site with no change from the 5 October 2013 aerial photograph, with the exception of vegetation clearing which has occurred at two locations. One area of clearing (approximately 20m x 20m) appears at the entrance to the potential waste disposal location (Location C) and vegetation appears to have been cleared around the edges of the gravel access track for approximately 150m within the investigation site linking Location B and Location C. 30 August 2015 The 30 August 215 [sic] aerial photograph shows the investigation site with the existing shed present, approximately 490m to the west of Wybong Road (Location A). An area behind the shed (approximately 50m x 50m) had been cleared of vegetation. The potential waste disposal location (Location C) approximately 370m to the south of the shed location had been cleared of vegetation (approximately 50m x 100m).
Furthermore, with respect to the cleared native bushland, section 3.3.3 "Biodiversity" stated that: 3.3.3 Biodiversity The investigation is partially cleared and surrounded by native bushland. A section of the investigation site had been cleared for farming purposes (likely grape production) and included a series of internal access tracks. A search of the OEH Bionet database (10 kilometre search radius) (Appendix C6) found: 20 threatened fauna species, eight threatened flora species and seven ecological communities as listed on the NSW Threatened Species Conservation Act 1995 have been previously recorded within 10 kilometres of the investigation site. A search of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) Protected Matters database (1km search radius) (Appendix C7) found: 13 threatened fauna species, 11 threatened flora species and 11 migratory species listed on the EPBC Act have been previously recorded or the species habitat is likely to occur within one kilometre of the investigation site. Three Ecological Communities which are listed on the EPBC Act have been identified within one kilometre of the investigation site.
Considerable reliance was placed by the EPA on the contents of appendices C6 and C7 to demonstrate that actual and potential harm was caused by the clearing of vegetation on part of the premises during the commission of the offences.
Appendix C6 was an "OEH Bionet database Search". That is, it was a search of the data (both flora and fauna) from the Bionet Atlas of NSW Wildlife website. The appendix went on to note, however, that "the data are only indicative and cannot be considered to be a comprehensive inventory, and may contain errors and omissions."
Appendix C7 was entitled "EPBC Act Protected Matters Report" and was created on 28 April 2016. It listed a number of threatened and other species or species habitat "known to occur within the area" or which "may occur in the area".
Finally, the following description of what was observed during the site inspection, which was undertaken in the three areas where vegetation clearing and disturbance was noted to have occurred, was given: 5.1.1 Site Inspection The investigation site inspection was undertaken of the three areas where vegetation clearing and disturbance was noted to have occurred. The surrounding native bushland at the investigation site was observed to be dry sclerophyll forest consisting of canopy containing mature eucalypt trees and an understorey containing a patchy ground cover of native grasses and shrubs. The investigation site was defined as three separate areas for the purposes of the site investigation (as outlined in Table 1). Photographs taken during the site investigation are provided in Appendix F Location Description Approx. Area (ha) Location A Area with the shed, approximately 600m to the east of Wybong Road, from the investigation site entrance 0.40 Location B Area to the east of the shed, approximately 460m to the east of Wybong Road, from the investigation site entrance. 0.30 Location C Cleared area to the south of the shed, approximately 500m to the south-east of Wybong Road, from the investigation site entrance 0.85

[18]

In the joint expert report of Mr Kenneth Holmes (an environmental auditor) and Mr Robert McCotter (an environmental engineer) dated 25 March 2019 ("the Holmes and McCotter report"), the experts expressed the following opinion as to the actual and potential environmental harm caused by the contraventions (emphasis added): 32. Historical aerial photographs dated 2009 show Locations A and B were cleared, but not Location C, prior to the disposal of waste by Mr Hughes. Therefore, it is concluded that approximately 0.55ha of native forest had been cleared by Mr Hughes to facilitate waste disposal in Location C. The total site area is about 75ha of which some 62.5ha is covered in native forest which is contiguous with other forested areas on three sides of the land parcel. 33. The disturbed land in Locations B and C are substantially unvegetated and subject to soil erosion. This needs to be rectified as part of the proposed rehabilitation works. 34. The KMH report detailed searches of databases for biodiversity. It was found that: • The OEH bionet database showed several threatened fauna, flora and ecological communities within 10km of the site. As no surveys were conducted before vegetation clearing, it is not known if any of these were impacted by the vegetation clearing; • The EPBC Protected Matters database recorded threatened fauna, flora and migratory species within 1 km of the site. A lack of pre-clearing surveys mean it is unclear whether any of these were impacted. 35. While there have been no ecological surveys undertaken on these premises, impacts on rare or endangered flora and fauna cannot be ruled out. It has been concluded that: • Removal of native vegetation has reduced biodiversity in the cleared area. • The disturbed areas, in particular Locations B and C may not provide an appropriate substrate for the growth and development of trees. During the site inspections undertaken by both Experts (separately) visual evidence of vegetation stress was evident in the waste deposition areas. • Removal of native vegetation has reduced the biodiversity and resulted in the reduction of native fauna habitat. • The presence of Waste Material has, due to the presence of unconsolidated materials and sub-surface voids changed the surface profile and composition. These changes to the surface and subsurface have impacted the ability of Terrestrial Native Fauna (including ground dwelling mammals and subsurface dwelling fauna) from colonising the filled areas. Note that the Authors of this report are not qualified fauna experts and that this conclusion has been based on experience during other similar investigations. 36. There is the potential for rainwater or groundwater to infiltrate the waste and dissolve contaminants, including heavy metals. This could lead to a migration of these compounds into surrounding soils. Both KMH Environmental and EMM tested surrounding soils and found no such migration. While none has been detected to date, we cannot be certain that migration could not occur in the medium to long term. Likewise, testing has not found any contamination of groundwater, though we cannot be certain that that could not occur in the future. That is the reason for our recommendation of ongoing monitoring if it is decided to leave the waste in place.
No expert was cross-examined on the contents of any expert report.

[19]

Actual Environmental Harm

It was agreed that the presence of the buried waste changed the surface profile and composition of the premises at Locations B and C. As the EPA submitted, and which I accept, Mr Hughes's conduct disturbed the land in a manner adverse to the environment. Moreover, the nature of the waste, comprising as it did building and demolition material, was such that its burial on the premises and Locations B and C necessarily caused degradation of the land. On any view, this constitutes actual environmental harm (Hanna at [66]).
Further, as the Court has previously noted, Mr Hughes's unlawful transport and disposal of waste to a place contrary to ss 143 and 144 of the POEOA caused environmental harm by undermining the integrity of the highly regulated scheme for the disposal of waste (Hanna at [38] and Gilder at [103]-[105]).
And the parties agreed that the disturbed land in Locations B and C remained substantially unvegetated and subject to soil erosion. The experts concluded based on their site inspections that there was visual evidence of vegetation stress evident in the areas where the waste had been deposited. The vegetation stress is a manifestation of actual environmental harm caused by the commission of the offences.
The EPA also submitted that Mr Hughes's offending conduct caused the following additional actual harm to the environment. First, an adverse impact on native fauna arising from changes to the land's surface profile and composition. The EPA relied on the KMH report insofar as there were various threatened fauna, flora and migratory species that had been recorded as having, or were likely to have, habitats within the vicinity of the premises which had been disturbed.
But as Mr Hughes submitted, no surveys were conducted before any vegetation clearing took place at the premises, and therefore, it is not known if any threatened species were in fact impacted by the unlawful activities of Mr Hughes. As the OEH Bionet database search stated, "the data are only indicative and…may contain errors and omissions." Merely because threatened or other species are "known to occur in the area" does not mean that actual harm has occurred to those species. Furthermore, the Holmes and McCotter report emphasised that "the Authors of this report are not qualified fauna experts" and that their conclusions with respect to impacts on fauna were merely "based on experience during other similar investigations".
I therefore find that the EPA has not demonstrated to the requisite degree that an adverse impact on native fauna arising from changes to the land's surface profile and composition occurred by reason of the commission of the offences.
Second, environmental harm caused by the clearing of native bushland and related impacts for the purpose of burying the waste. Mr Hughes denied, however, that the EPA could prove that he either directed or caused native bushland to be cleared from the premises to dig the pits and bury the waste.
While the evidence disclosed beyond reasonable doubt that vegetation was cleared from the premises during the relevant period, the evidence was silent as to who cleared the vegetation or for what purpose. The aerial photography relied upon by the EPA demonstrated no more than that between 2009 and 2013 vegetation was cleared on the premises. Given that the premises were not purchased by Mr Bain until 2013 and that Mr Hughes was not the occupier until that time, the aerial photographs are insufficient.
In addition, as the Holmes and McCotter report and the KMH report both stated, a lack of ecological surveys of Locations B and C meant that it was unclear what flora and fauna had been impacted by the activities on the premises. Reliance, for example, on a statement to the effect that in the absence of surveys "impact on rare or endangered flora…cannot be ruled out" (in the Holmes and McCotter report) seeks impermissibly to reverse the onus of proof and must be disavowed.
On this basis, I accept the submission of Mr Hughes that the EPA has failed to demonstrate to the criminal standard that the clearing of the vegetation occurred in order to further the commission of the offences. It is therefore impossible to conclude that any environmental harm caused by the clearing of the vegetation was caused by the commission of the offences.

[20]

Potential Environmental Harm

The parties agreed that the unlawful disposal of waste by Mr Hughes gave rise to potential environmental harm as follows. First, Mr Hughes has buried waste at the premises without any protective lining to prevent leaching of any contaminants from the waste.
While there is no evidence of actual groundwater contamination, there is the potential for rainwater or groundwater to infiltrate the waste and dissolve contaminants, for example hydrocarbons or heavy metals. This could lead to the migration of these compounds into surrounding soils. Having said this, the removal of the waste by Mr Hughes will prevent this and, in any event, testing has not revealed the presence of groundwater. Mr Hughes has caused four groundwater monitoring wells to be installed at the premises. As at 19 November 2018, no groundwater had been located to the depth of the investigation of the four groundwater monitoring wells.
Second, contamination within the waste also has the potential to mobilise and migrate in groundwater to surrounding soils. Again, however there is no evidence of any actual groundwater, let alone any groundwater contamination, and again removal of the waste will prevent this from occurring.
Third, Mr Hughes admitted that there is the potential for erosion to occur while the areas where the waste is buried remain unvegetated. The agreed remediation plan includes a proposed revegetation plan that will mitigate this harm in the medium and long terms.
The EPA additionally submitted the following two further potential impacts arose from the commission of the offences: 1. the potential impacts "on the growth and development of trees" based on the experts' conclusion that disturbed areas in Locations B and C "may not provide an appropriate substrate for the growth and development of trees" by reason of vegetation stress. However, in my opinion, a conclusion based on conjecture in the absence of any further investigation or any ecological surveys is not enough to prove beyond reasonable doubt a potential for this environmental harm; and 2. the potential impacts on rare or endangered flora and fauna. For the reasons given above this submission must be rejected. The evidence does not demonstrate to the requisite degree that this potential harm could occur.

[30]

Contrition and Remorse

Although Mr Hughes has agreed to remediate the premises at his expense, has voluntarily participated in a record of interview, has participated in the making of several agreed statements of facts, has pleaded guilty (although see the remarks and authorities cited by the Court in Dib Hanna at [182]-[185] with respect to the varied reasons why defendants plead guilty), and has agreed to pay the EPA's professional and investigation costs, he has not apologised for the commission of the offences or otherwise explicitly acknowledged his wrongdoing.
As Preston J noted in Dib Hanna (at [180], emphasis added): 180. The requirement in s 21A(3)(i) of the Sentencing Procedure Act that an offender "provide" evidence of remorse does not require the offender to "give" evidence before a court can make a finding that the offender is remorseful (see Butters v R [2010] NSWCCA 1 at [17]). If an offender does not give evidence of remorse, however, there must be some other evidence of the offender's remorse before the court, from which the court can make a finding that the offender is remorseful for committing the offence. An example might be where the offender expressed remorse to a psychologist or psychiatrist or when interviewed by the police or investigators from the relevant regulatory authority (see Pfitzner v R [2010] NSWCCA 314 at [33] and Sun v R [2011] NSWCCA 99 at [31]). A sentencing court can be cautious about the weight to be given to an offender's unverified statement of remorse when no direct evidence of remorse is placed before the court: R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 at [58], [59], [79]; Sun v R at [31].
Given the deliberate nature of the commission of these offences, the Court places less weight on the demonstrations of contrition referred to above than would otherwise have been the case if there were records or documents recording Mr Hughes's expression of remorse for committing the offences and causing environmental harm (Dib Hanna at [181]).

[34]

Removal of the Waste and Remediation of the Premises

Mr Hughes has agreed to remediate the environmental harm caused by the commission of the offences by removing the waste and revegetating and rehabilitating the areas cleared at the premises.
Having regard to the expert evidence of Mr James Nebauer (an environmental scientist employed by Global Soil Solutions on behalf of Mr Hughes) contained in a Site Remediation Report dated 17 June 2019, the expert evidence of Mr James McMahon (an environmental scientist with JM Environments) contained in his Remediation Action Plan dated 29 June 2019, and the Mr Holmes and Mr McCotter report referred to above, I am satisfied to the requisite degree that the remediation orders proposed by the EPA (with which Mr Hughes did not cavil) are appropriate and should be ordered by the Court under s 245 of the POEOA.
The making of such an order will achieve the restoration purpose of recognising the harm caused or likely to be caused to the victims of the offences committed by Mr Hughes which include the environment and Mr Bain (the owner of the premises).
The making of such an order is also consistent with the polluter pays principle, namely, that persons who dump waste and cause environmental harm should bear the cost of containment, avoidance and abatement (see s 3(2)(d)(i) of the POEOA).
The cost of complying with the agreed remediation orders is sizable and was agreed to be estimated at no less than $2,000,000 (inclusive of GST) for the waste removal and disposal.
In addition, Mr Nebauer was requested to provide a revegetation report for the premises after the waste has been removed, which included the cost of revegetation. In his affidavit sworn 28 June 2019, Mr Nebauer estimated the cost of recontouring and revegetating the site to be $34,498.95 (excluding GST) calculated as follows (not allowing for weeding and maintenance for the importation of topsoil if required): 1. the installation of silt fencing in the sum of $2,800; 2. the recontouring of the land in the sum of $7,542; 3. the spreading of site won topsoil in the sum of $3,500; 4. the installation of tubestock in the sum of $8,840; 5. the installation of native seed in the sum of $7,966.95; and 6. mobilisation in the sum of $3,850.
Moreover, in removing the waste Mr Hughes will incur waste levy fees. Updating Mr Hoyer's calculations referred to above to reflect the levies applicable in the 2018-2019 calendar year, the parties agreed that: 1. the Buttonderry Waste Management Facility charged $346 per tonne in the 2018-2019 calendar year, being an increase of $51 per tonne from the amount that the facility charged in the 2013-2014 financial year; 2. the amount of $346 per tonne charged by the Buttonderry Waste Management Facility includes the MLA levy of $141.20 per tonne for the 2018-2019 financial year; and 3. the MLA levy as at 1 July 2019 is $143.60, which is an increase of $22.70 a tonne from the 2014-2015 levy.
Mindful of the uncertainties surrounding the calculation of the exact tonnage of waste transported and deposited depending on the applicable conversion rate referred to earlier in the judgment, applying Mr Hoyer's methodology this will result in waste disposal gate fee of approximately $1,712,700 (which includes a MLA levy rate of $141.20 per tonne for the 2018-2019 financial year). If the MLA levy rate of $143.60 as at 1 July 2019 is applied, this results in a fee of $1,724,580. Suffice it to say, this is considerable.
While the cost of the waste disposal gate fee is significant, these fees represent no more than the cost of Mr Hughes complying with the law, albeit adjusted for the passage of time. In other words, these amounts cannot, in my view, serve to mitigate the sentence otherwise imposed upon him. They are amounts that ought to have been paid in any event.
Nevertheless, the willing compliance with the proposed remediation orders by Mr Hughes has been taken into account in a manner that serves to mitigate the sentence imposed upon him.

[35]

Deterrence

The Court is required to take into account both specific and general deterrence.
The sentence imposed by the Court must serve as a general deterrent. Section 3A(b) of the CSPA provides that one of the purposes for which a Court may impose a sentence is "to prevent crime by deterring the offender and other persons from committing similar offence." General deterrence is vital "to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences" (Mouawad at [118]).
It was stated by Pain J in Environment Protection Authority v Smart Skip (NSW) Pty Ltd [2009] NSWLEC 204 in relation to an offence committed under s 144(1) of the POEOA (at [35]): 35 Given the importance of enforcing the regulatory regime for the management of waste by those operating waste facilities for profit, general deterrence is an important consideration. A nominal fine will not be sufficient. I consider that the imposition of an appropriate sentence must contain an element of general deterrence in all the circumstances.
The same sentiment is apposite for offences committed against s 143(1) of the Act.
In Dib Hanna Preston J observed the following in relation to the need for general deterrence for waste offences (at [205]-[207]): 205. There is also a need for general deterrence. The sentence of the court needs to operate as a powerful factor in preventing the commission of similar offences by other persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. Courts have repeatedly stated, when sentencing for environmental offences, that the sentence of the court needs to be of such magnitude as to change the economic calculus of persons in determining whether to comply with or contravene environmental laws. It should not be cheaper to offend than to prevent the commission of the offence. Environmental crime will remain profitable until the financial cost to offenders outweighs the likely gains by offending. 206. Where a fine is determined to be an appropriate penalty, the amount of any fine needs to be such as will make it worthwhile to incur the costs of complying with the law and undertaking the necessary precautions. The amount of the fine must be substantial enough so as not to appear as a mere licence fee for illegal activity: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359-360; Environment Protection Authority v Waste Recycling and Processing Corp at [229]. Where imprisonment is determined to be the only appropriate penalty, the term of imprisonment imposes an opportunity cost on the offender, preventing the offender earning income or receiving other remuneration whilst imprisoned. The sentence of the court thereby changes the economic calculus of persons who might be tempted not to comply with environmental laws or not to undertake the necessary precautions. Compliance with the law becomes cheaper than offending. Environmental crimes become economically irrational. 207. Sentences that have this effect result in persons who carry out activities likely to harm the environment, including causing pollution, internalising the costs of preventing and controlling pollution as well as of any environmental harm itself. This is the polluter pays principle, one of the principles of ecologically sustainable development. Persons who generate pollution and waste should bear the cost of containment, avoidance or abatement: s 6(2)(d)(i) of the Protection of the Environment Administration Act. The sentence of the court should be such as to make it economically rational for such persons to incur the cost of containment, avoidance or abatement of pollution and waste: see Environment Protection Authority v Waste Recycling and Processing Corp at [230]-[232].
I respectfully adopt his Honour's comments in the context of the present case. A sentence must be imposed that makes it economically irrational for persons to disobey the law in the transportation and disposal of waste (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359-360 and Waste Recycling and Processing Corp at [229]-[232]). Any monetary penalty imposed must be more than the cost of doing business.
In relation to specific deterrence, while I accept the submission of Mr Hughes that his involvement in the construction industry over many years with no breach of the relevant regulatory scheme demonstrates that he is aware of his obligations under the relevant environmental legislation, given his continued involvement in the construction industry, given that he remains the sole director and shareholder of his construction business, and given the intentional and planned nature of the offences, I am of the opinion that the penalty imposed must contain an element of specific deterrence.

[36]

Retribution and Denunciation

Finally, it should be noted that the purposes of retribution and denunciation are also relevant in sentencing. In particular, the Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences.
As to the retributive purpose, there is a need for the Court to impose a sentence that achieves the retributive purpose of ensuring that Mr Hughes is adequately punished for the offences and that he is held accountable for his transgressions (Dib Hanna at [196] and the authorities cited thereat).
Again I respectfully repeat and adopt the Chief Judge's observations in Dib Hanna as to the moral repugnance of the commission of the offences (at [197]-[202]): 197. The sentence needs to reflect the seriousness with which the informed and responsible public views crimes against the environment, including the offences of land pollution and unlawfully transporting and dumping of waste. Environmental offences are crimes; they are not mere administrative breaches. The community views environmental offences, including land pollution and dumping of waste, particularly if contaminated by hazardous substances such as asbestos, as extremely serious. Statutory criminal provisions express the community's moral condemnation of conduct that causes or is likely to cause harm to the environment and human health: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [143]-[145]. 198. The community's view of the moral reprehensiveness of dumping waste, especially waste containing asbestos, is reflected in the statutory provisions regulating the transporting and disposal of waste in the POEO Act and the regulations made under that Act. The moral reprehensiveness of dumping waste has been emphasised by the legislative amendments in 2013 creating the offence for repeat waste offending and imposing a new penalty of imprisonment for that offence. 199. The court's duty is to take the community's view of environmental crimes into account in the sentencing process. If the court fails to responsibly discharge the duty that has been entrusted to it by the community, public confidence in the system of justice will be eroded: R v Geddes at 555; Inkson v The Queen at 16; Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21at [46]. 200. The morality of retributive responses results in the principle of proportionality or just deserts or commensurate deserts. This principle is that the severity of punishment should be commensurate with the seriousness of the criminal conduct. Grave (and more morally repugnant) offences merit severe penalties. Minor (and less morally repugnant) misdeeds deserve lenient punishments. Disproportionate penalties, such as severe sanctions for minor wrongs or lenient sanctions for grave wrongs, are undeserved. 201. The principle of proportionality is concerned with preserving a correspondence between the relative seriousness of the offence and the relative severity of the sentence. The relative seriousness of the offence is affected by the harm done or risked by the offence and the degree of culpability of the offender (see the earlier discussion in the section on the objective seriousness of the offences). The principle of proportionality operates as a limiting, but not a defining, principle in determining the appropriate sentence. The principle limits the maximum and the minimum of the sentence that may properly be imposed: Veen v The Queen (No 2) at 491 and cases earlier referred to in [94] above. 202. There is another way in which retribution concerns morality. This is to reflect the community's concept of fairness. This concept is applicable to environmental offences where all persons should bear the costs of complying with environmental laws. An offender who operates a business unlawfully, such as unlawfully transporting and dumping waste without incurring the necessary costs and expenses for transporting waste lawfully and depositing it at a place that can lawfully be used as a waste facility, secures an unfair advantage compared to the offender's law abiding competitors who incur the costs and expenses of operating lawfully. The offender has been unjustly enriched. Punishment is necessary to remove that unjust enrichment from the offender and so secure a just equilibrium - a level playing field - on behalf of those who are willing to be law abiding.
Not dissimilar to Mr Hanna, in this case Mr Hughes has obtained an unfair pecuniary advantage by evading paying the waste disposal fees that he would have otherwise had to pay thereby securing for himself a significant financial benefit. Punishment is warranted to remove that benefit (Dib Hanna at [203]).

[37]

Consistency in Sentencing

The Court must have regard to comparable cases from which guidance can be obtained to ensure that the penalty imposed is consistent with a pattern of sentencing for like offences. Of course care must be taken when comparing cases as there may be many divergent facts and circumstances (Axer at 365). The comparable cases do, however, confirm that the imposition of a fine is an appropriate form of penalty for the commission of the offences.
Mr Hughes relied on the following cases: 1. in respect of the s 143(1) offence: 1. Environment Protection Authority v Alcobell Pty Ltd, Environment Protection Authority v Campbell [2015] NSWLEC 123, which concerned the negligent transporting and disposal of waste containing asbestos on the defendant's own land resulting in a fine of $4,000; 2. Environment Protection Authority v Ashmore [2014] NSWLEC 136, concerning the knowingly unlawful transport of waste containing asbestos (3,840 tonnes) for commercial gain resulting in a fine of $24,000; and 3. The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd & Kinnarney (No 2) [2012] NSWLEC 95, concerning the transport of waste to an unlicensed place to avoid paying tip fees. The individual defendant was fined $30,000 and the corporate defendant was fined $50,000; and 1. in relation to the s 144(1) offence: 1. Alcobell, where the defendant was fined $5,000, but noting the presence of bonded asbestos in the waste and fines imposed on the corporate defender in the amount of $70,000; 2. Gilder which involved the criminally negligent storage of 20,000 m3 of waste resulting in a fine of $37,500; and 3. Environment Protection Authority v Rands [2019] NSWLEC 23 (see below).
The EPA handed up a comprehensive schedule of cases dealing with offences against ss 143 and 144 of the POEOA. I have considered that schedule and have had regard to the cases referred to in it without repeating all of their details here. I have also considered Mr Hughes's submissions in response to the cases detailed in the schedule.
In Geoff Robinson the Court considered a number of earlier decisions considering offences against s 144(1) of the POEOA (at [116]-[125]), which I have taken into account. In that case 2,230 m³ of uncompacted building and demolition waste was deposited polluting water and smothering wetland plants. Against a maximum penalty of $120,000 at the time, the Court imposed a fine of $8,000.
In Smart Skip, the defendant was charged with an offence under s 144(1) of the POEOA where the premises, including waste facilities which stored, separated or processed more than 30,000 tonnes of waste per year, was required to hold an EPL. There was no evidence of actual harm to the environment and after considering a number of cases (including those considered by the Court in Geoff Robinson), Pain J imposed a penalty on the corporate defendant in the sum of $50,000 (against a maximum penalty of $1 million).
Finally, in Rands mixed construction and demolition waste was deposited unlawfully contrary to s 144 of the POEOA. Actual harm to the environment resulted. The offence was committed negligently and for financial gain. The defendant was fined $33,750.

Environment Protection Authority v Hughes

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