Environment Protection Authority v Hughes

Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 R v Dodd (1991) 57 A Crim R 349 R v Nichols (1991) 57 A Crim R 391 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Thomas Hughes (Defendant) Representation: Counsel: B Kaplan with V Barros Goncalves (Prosecutor) J Doyle (Defendant)

Solicitors: Legal Services Branch, Environment Protection Authority (Prosecutor) Fox Legal Australia Pty Ltd (Defendant) File Number(s): 2024/38110 Publication restriction: Nil

Hughes Pleads Guilty to an Offence of Failing to Comply with a Court Ordered Remediation

1. The defendant, Thomas Hughes, has pleaded guilty to one offence against s 251 of the Protection of the Environment Operations Act 1997 ("POEOA"), committed at Lot 7 DP 1160725, Wybong Road, Sandy Hollow, NSW ("the premises") on 1 April and continuing until 21 November 2023, for failing to comply with the following Court order made on 16 December 2022 pursuant to Pt 8.3, s 245 of that Act ("2022 remediation order"): 3. Pursuant to s 245 of the POEO Act, the Court orders the defendant to take the following steps: a. By the 31st of March 2023, or such further time permitted in writing by the EPA, cause the excavation, removal and lawful disposal of the Waste buried at Locations B and C at the Premises.
2. Section 245 of the POEOA is in the following terms: 245 Orders for restoration and prevention The court may order the offender to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow) - (a) to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence, or (b) to make good any resulting environmental damage, or (c) to prevent the continuance or recurrence of the offence.
3. The relevant statutory provision creating the offence is: 251 Offence A person who fails to comply with an order under this Part (except an order under section 246, 247 or 248) is guilty of an offence.

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

1. Hughes is the sole director, company secretary, and sole shareholder of Thomas Paul Constructions Pty Ltd ("TPC"), a company that purchases land for the purpose of developing and constructing houses.
2. On 31 July 2019 Hughes was convicted of, and pleaded guilty to, two offences for causing, in his capacity as occupier, a place to be used as a waste facility without lawful authority in contravention of s 144(1) of the POEOA, and for transporting waste to a place that could not lawfully be used as a waste facility for that waste, in contravention of s 143(1) of that Act (Environment Protection Authority v Hughes [2019] NSWLEC 108).
3. At the time of the offending in Hughes, TPC constructed approximately 300 houses per year.
4. Both offences were committed at the premises, which is located approximately 23 km from Muswellbrook, and is a block of around 75 ha of bushland.
5. The premises were purchased in the name of Hughes's grandson in 2013. Hughes's grandson was 16 at the time of purchase and Hughes paid for the purchase. Hughes's grandson did not have any actual involvement in the purchase of the premises or in the commission of the offences.
6. From 21 October 2013 to 31 December 2014 Hughes directed trucks to be loaded with building and demolition waste. He then directed the digging of holes at the premises for the disposal of that waste, and instructed drivers to transport the waste to the premises to be unloaded into the holes. The pits were then covered with soil.
7. Hughes made the decision 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.
8. The waste was buried at two relevant locations at the premises, referred to as "location B" and "location C". The waste buried at location B and C originated from the construction of houses. An aerial image showing the premises outlined in red and location B and C of the premises in blue, is indicated below:
9. The volume of the waste could not be calculated at the time of the sentencing hearing in Hughes because the waste was buried and Hughes did not provide the Environment Protection Authority ("EPA") with the relevant information to do so. It was an agreed fact at that sentencing hearing that the estimated tonnage of waste was no less than 4,950 tonnes or 4,500 m3.

The 2019 Remediation Order

1. The Court delivered judgment in Hughes on 31 July 2019. Hughes was fined a total of $45,000, ordered to pay the EPA's legal costs in the sum of $60,000 and investigation costs in the sum of $42,593.43, and ordered to publish a notice in three sources nominated by the EPA (Hughes at [188]). Hughes also consented to orders requiring him to remediate the premises, including relevantly that (Hughes at [188(4)]): (4) pursuant to s 245 of the POEOA, the defendant must, at his expense, remove the waste from the premises and make good the environmental damage caused by the commission of the offences in accordance with the terms of the remediation order attached at Annexure 'A';
2. Annexure 'A' referred to in order 4 of the Court's orders in Hughes required Hughes to cause the excavation, removal and lawful disposal of the waste by the end of March 2020 ("2019 remediation order").
3. The 2019 remediation order defined "the waste" to mean: …no less than 4,500 cubic metres of waste including fragments of wood, metal, bricks, ceramic tiles, fibrous cement sheeting, poly vinyl chloride (PVC) pipe, concrete and other materials, buried at Lot 7 DP 1160725, Wybong Road, Sandy Hollow NSW 2333 (the Premises) at Location B and Location C. Location B and Location C are marked on the map that is Attachment 1 to these orders.
4. Because the waste was buried at the premises and there was uncertainty about its composition, the 2019 remediation order required a process of excavation and waste classification, followed by lawful disposal supervised by an external consultant, together with regular reporting to the EPA on progress. The 2019 remediation order required Hughes to notify the EPA of the environmental consultant engaged to carry out the work. It also set out additional steps to ensure safety if any of the waste contained asbestos.

Remediation Progress Following the Delivery of the Hughes Judgment

1. On 3 February 2020 the EPA received a letter from TPC notifying it that Richard Case of Compliance Health Environmental Consulting Pty Ltd ("CHEC") was the engaged consultant.
2. Works under the 2019 remediation order commenced on 2 March 2020.
3. Waste was excavated from location B and deposited into 111 stockpiles at a separate area of the premises designated for waste management and classification. No waste was removed from the premises.
4. A small quantity of asbestos was detected in the waste dug up from two pits in location B. As a result, all stockpiles of waste dug up from those specific pits were classified as asbestos waste.
5. On 16 March 2020 the EPA sent a show cause letter to Hughes inviting him to explain: 1. his alleged failure to notify the EPA of the engaged consultant's contact information as required by paragraph 3(d) of the 2019 remediation order; 2. his alleged failure to have the engaged consultant at the premises to supervise specified works as required by paragraph 3(n) of the 2019 remediation order; and 3. the alleged presence of trommelling equipment at the premises contrary to paragraph 3(f) of the 2019 remediation order.
6. Work under the 2019 remediation order stopped at the premises on 17 March 2020.
7. Hughes wrote to the EPA on 20 March 2020 saying that works had ceased at the premises pending resolution of the the issues identified in the show cause letter. Hughes requested a series of amendments to the 2019 remediation order and indicated that he would apply to the Court for those amendments.
8. Following discussions between the EPA and Hughes, the EPA wrote to Hughes on 2 April 2020 warning him of the need to comply with paragraphs 3(f)(ii) and 3(n)(i) of the 2019 remediation order, otherwise it would consider options to enforce compliance.
9. During April 2020 Hughes and the EPA negotiated possible amendments to the 2019 remediation order. The EPA invited Hughes to draft a proposed amendment to seek additional time to comply with the 2019 remediation order, and did not consent to trommelling equipment being used to sort the waste due to safety concerns about this machinery dispersing asbestos particles into the air.
10. The last correspondence was sent by the EPA on 1 June 2020. The EPA received no further correspondence from Hughes until mid-2021.

Amendment to the 2019 Remediation Order

1. On 6 December 2021 Hughes filed a notice of motion seeking amendment of the 2019 remediation order to allow additional time for the removal of the waste and for the relaxation of certain requirements regarding the supervision by a consultant.
2. Hughes informed the EPA that the COVID-19 pandemic had caused delay, including problems with attendance at the premises to excavate the waste.
3. The EPA consented to the proposed amendments and the 2019 remediation order was amended by the Court on 17 December 2021 ("2021 remediation order"). The 2021 remediation order required Hughes to cause the excavation, removal and lawful disposal of the waste by 31 December 2022.

Compliance with the 2021 Remediation Order

1. Between January and August 2022, however, no remediation work took place at the premises.
2. In August 2022 approximately 65 tonnes of waste was removed from the premises.
3. Hughes contacted the EPA on 24 November 2022 to seek additional time for compliance with the 2021 remediation order.

Amendment to the 2021 Remediation Order

1. On 14 December 2022 Hughes filed a second notice of motion seeking further amendment of the 2021 remediation order to afford him additional time.
2. Hughes had again informed the EPA that the COVID-19 pandemic and significant flooding events caused problems accessing the premises.
3. On 16 December 2022 the Court amended the 2021 remediation order by consent. This amendment is the 2022 remediation order the subject of these proceedings. It required the excavation, removal and lawful disposal of the waste at locations B and C by 31 March 2023.
4. The EPA wrote to Hughes on 19 December 2022 to inform him that it would not consent to any additional extensions of time.
5. CHEC did not attend the premises from 17 March 2020 to 16 January 2023.
6. On 9 March 2023 Hughes requested an extension of time from the EPA until 30 June 2023, in order to complete the removal and lawful disposal of the waste. The EPA officers met with Hughes on 13 March 2023. They informed Hughes of their concerns about the progress of the work and suggested that additional trucks were needed. Hughes informed them that, "I promise you we don't need more trucks and we will meet the dates".
7. Following this meeting Hughes did not expect to be granted an extension, but he did expect that he would receive a written reply from the EPA, which he did not.

Remediation Progress Between December 2022 and November 2023

1. On 22 December the EPA sent a Prevention Notice to Hughes, requiring him to take specified steps to ensure the safety of the asbestos in some of the stockpiles at the premises.
2. Remediation work continued at the premises from January 2023, during which about 1,278 tonnes of waste and soil was removed from the premises.
3. In February 2023 approximately 1,485 tonnes of waste and soil was removed from the premises. The waste removal report from CHEC in February 2023 noted that a "significant increase in volume" of waste was discovered at the premises compared to what was expected, that it was "unlikely" that the work could be completed within the deadline, and that it was "highly recommended that additional trucks are used to transport the waste".
4. Approximately 3,277 tonnes of waste and soil was removed from the premises during March 2023.
5. On 31 March 2023 waste remained buried below ground at location C and waste dug up from location B and C remained stored in stockpiles at the premises. A photograph taken by an EPA officer on 31 March 2023 shows waste still visible in the ground at location C:
6. A photograph taken by an EPA officer that same day shows the excavated waste from locations B and C, together with associated excavated soil, stored in stockpiles at the premises:
7. Hughes did not cause the removal and lawful disposal of the waste buried at locations B and C at the premises by 31 March 2023.
8. CHEC ceased to act as environmental consultant for Hughes at the end of March 2023. Hughes engaged other consultants for the remainder of the work.
9. The waste removal report for April 2023 noted that "the progress of the site has improved with 3 Truck and Dogs running daily".
10. On 12 April 2023 waste remained buried below ground at location C and waste dug up from location B and C remained stored in stockpiles at the premises.
11. A photograph taken by an EPA officer on 12 April 2023 shows waste still visible in the ground at location C:
12. A photograph taken by an EPA officer on 12 April 2023 shows the excavated waste from locations B and C stored in stockpiles at the premises, together with associated soil from the excavation:

Transport and Disposal of the Waste

1. The majority of the waste from the premises was disposed of at NWR. TPC owns NWR.
2. All dockets from NWR show that there was no charge for the receipt of the waste from the premises.
3. The waste and soil from the excavation was removed from the premises between July 2019 and November 2023 in the following amounts:
4. The two people who operated the excavator and dump truck at the premises during the majority of the waste removal process were employees of Hughes or TPC.
5. The trucks used to transport the waste from the premises were owned by Hughes, TPC or NWR. The people driving the trucks to transport the waste from the premises were employees of Hughes, TPC or NWR.

Additional Factual Matters to be Taken into Account

1. There was no dispute, and the Court takes into account as part of its instinctive synthesis, that: 1. the offence to which Hughes has pleaded guilty is the failure to complete the excavation and disposal of the waste on the premises, and not the unlawful placement of that waste, for which he has already been penalised; 2. while it is true that Hughes did not complete the clean-up process within the time ordered, he has nonetheless now complied with the 2022 remediation order; and 3. throughout the process Hughes engaged with the EPA and kept it informed as to the remediation progress.

The Evidence Relied upon by the Parties

1. In addition to the agreed facts, the EPA relied upon financial statements of Hughes's company, TPC, for the financial years of 30 June 2020, 2021, 2022 and 2023 ("2020 to 2023 financial statements").
2. Hughes relied upon the following affidavits: 1. his affidavit sworn on 6 June 2024 ("the Hughes affidavit"), which deposed to the reasons for his delay in complying with the 2019, 2021 and 2022 remediation orders; and 2. the affidavit of Gerald Coster, Director of Alcon Disposals Pty Ltd trading as NWR and Fleet and Logistics Manager for TPC, sworn on 7 June 2024 ("the Coster affidavit"), which provided a detailed account of the waste removal process at the premises.
3. Neither witness was cross-examined.

The Purpose of Sentencing

1. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"): The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.

Statutory Matters Required to be Taken into Account in Sentencing

1. Subsections 21A(2) and (3) of the CSPA sets out aggravating and mitigating factors that the Court must consider. The factors relevant to the facts of this case are: 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- … (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), … (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- … (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), …
2. For offences created by the POEOA, the Court is also required to consider the matters set out in s 241 of that Act: 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, … (f) the presence of asbestos in the environment. (2) The court may take into consideration other matters that it considers relevant.

Objective Seriousness of the Offence

1. The objective gravity of the offence fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).
2. The objective seriousness is to be determined by reference to the nature of the offence and not by reference to matters that are personal to a particular offender (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).

Nature of the Offence

1. The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are relevant to the determination of the objective seriousness of the commission of an environmental offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]).
2. The relevant objects contained in s 3(a), (d), (e) and (f) of the POEOA identify the purpose of creating the offence with which Hughes has been charged.
3. The POEOA achieves these objectives by, among other things, providing for court orders for restoration and prevention of environmental harm under Pt 8.3 and creating the offence under s 251 for non-compliance with court orders.
4. The EPA compared the offence with a charge against s 91B of the POEOA for failing to comply with a clean-up notice, which the Court has accepted undermines the regulatory system and offends the objects of the POEOA (Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden [2010] NSWLEC 3; (2010) 172 LGERA 52 at [65]).
5. Hughes's failure to abide by the order of the Court over an eight month period was contrary to the objects of the POEOA and serves to increase the objective seriousness of his offending.

Maximum Penalty

1. The maximum penalty provided for an offence indicates the seriousness with which Parliament views the commission of the offence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359 and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).
2. It is not insignificant that Parliament considered the offence to be sufficiently serious that it prescribed a daily penalty rather than fixing a maximum sum in respect of its commission.
3. Hughes is charged with one breach of s 251 of the POEOA, which carries a maximum penalty of $60,000 in the case of an individual for each day the offence continues. The offence continued for a total of 235 days between 1 April and 21 November 2023. Accordingly, the maximum penalty is $14,100,000.
4. Hughes submitted that it would be artificial to see each further day of delay as constituting a fresh offence of the same seriousness. To avoid imposing a sentence that is manifestly disproportionate, the proper course would not be to impose a daily penalty but to take into account his delay in complying with the 2022 remediation order as a factor in aggravation (citing Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131 at [47] and Chief Executive, Office of Environment and Heritage v Fish (No 2) [2014] NSWLEC 67; (2014) 202 LGERA 188 at [50]).
5. While the first limb of Hughes's reasoning may be accepted, I must nevertheless take into account that Parliament has imposed a daily, and not a maximum, penalty.

Hughes's State of Mind and Reasons for the Commission of the Offence

1. The offence is a crime of strict liability which means that mens rea is not an element of the offence. However, the state of mind of Hughes at the time of the commission of the offence is nevertheless relevant in the determination of an appropriate sentence (s 241(1) of the POEOA and Environment Protection Authority v Eveston (No 3) [2022] NSWLEC 128 and Environment Protection Authority v Maules Creek Coal Pty Ltd [2022] NSWLEC 33 at [153]).
2. A strict liability offence that is committed intentionally, negligently, or recklessly, is objectively more serious than one committed accidentally (Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123], Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42] and Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 at [72]-[75]).
3. The POEOA does not contain an offence that has mens rea as an element of it in respect of a failure to comply with a court order. Accordingly, the principle in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 does not arise.
4. It was not in dispute that Hughes did not intend to defy the authority of the Court in the commission of the offence.
5. The EPA submitted, however, that Hughes's failure to comply with the 2022 remediation order was committed wilfully. It contended that Hughes was aware of the obligation to comply with the 2022 remediation order and made choices which he knew would result in the Court order not being met. This, the EPA submitted, was not a technical, casual, accidental or unintentional breach of the order (see Fish (No 2) at [18]). The EPA relied upon the following evidence, namely, that: 1. Hughes was aware of the requirements of the 2022 remediation order because he consented to the 2019 and 2021 remediation orders; 2. Hughes did not approach the EPA to seek additional time until three weeks before 31 March 2023. After no agreement was reached with the EPA, he failed to approach the Court to seek any amendment to the order to allow additional time to accommodate his delay; 3. in the Hughes affidavit he said that he prioritised his building company and that he "could not divert all of the resources from my building company to the clean up, or the businesses would fail"; 4. Hughes also stated that he "did consider taking the waste to another facility but the costs to do so were crippling given the amount of soil in the waste". These costs were not particularised; 5. TPC advertised that it is "one of the leading residential property developers in New South Wales…with an annual turnover of more than $120 million, we are one of the most successful residential building firms based in New South Wales". However, for the majority of the removal works at the premises, only two people were to operate a single excavator and dump truck to remove the waste. From January 2023 Hughes devoted additional trucks and drivers to transport the waste from the premises, and by April 2023 there were three truck and dogs running daily. Hughes was advised by the consultant engaged to supervise the works, and by the EPA, that additional trucks were needed to progress the work in a timely way; 6. Hughes chose to take the majority of the waste from the premises to NWR, a seven hour round trip. TPC owns NWR and NWR did not charge Hughes for the receipt of the waste; and 7. after delay and inaction between July 2019 and January 2023, Hughes made progress in complying with the 2022 remediation order, and he finally removed all the waste by 22 November 2023.

Whether the Offence Was Committed for Financial Gain

1. An offence committed for financial gain is objectively more serious (s 21A(2)(o) of the CSPA).
2. The EPA relied upon the 2020 to 2023 financial statements of TPC which indicated that the company made a net profit of: 1. $1,296,098 in the financial year ending 30 June 2020; 2. $1,305,603 in the financial year ending 30 June 2021; 3. $1,083,293 in the financial year ending 30 June 2022; and 4. $1,948,842 in the financial year ending 30 June 2023.
3. The EPA therefore submitted that the resources of TPC were available to Hughes as the sole director and shareholder of that company. He could have utilised TPC's resources to a greater extent in order to comply with the 2022 remediation order. His decision not to do so was therefore motivated by pecuniary interest.
4. This submission ought to be accepted. In Hughes's affidavit he admitted that he prioritised the financial viability of his companies over complying with the 2022 remediation order (at [89(c) and (d)]). Hughes conceded that the offence was committed for financial gain (T27:25-41).
5. I am therefore satisfied beyond reasonable doubt that Hughes committed the offence for financial gain.

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

1. 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. The composite term "harm to the environment" is broadly defined in the Dictionary of 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.
2. The concept of harm in the context of environmental offences extends to both actual and potential harm (Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[149]).
3. There is, however, a distinction between actual harm to the environment and harm to the regulatory regime (ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 at [65]). While the former should be considered under s 241(1)(a) of the POEOA, the latter is a relevant factor under s 241(2) of that Act only.
4. The delay arising from Hughs's non-compliance with the 2022 remediation order caused the extended presence of the waste on the premises for an additional eight months. The waste comprised of building and demolition material and some asbestos.
5. Hughes's delay in removing the waste from the premises caused actual harm to the environment, insofar as the harm caused by Hughes's original offending continued and because: 1. the nature of the waste was such that its burial on the premises at locations B and C necessarily caused degradation of the land; and 2. the disturbed land in locations B and C remained substantially unvegetated and subject to soil erosion.
6. Hughes's eight month delay in removing the waste from the premises also caused potential harm to the environment during this period because: 1. although there is no evidence of actual groundwater contamination, while the waste remained at the premises there was the potential for rainwater or groundwater to infiltrate the waste and dissolve contaminants, for example, hydrocarbons or heavy metals, leading to the migration of these compounds into surrounding soils; 2. contamination within the waste also had the potential to mobilise and migrate into groundwater to surrounding soils; and 3. asbestos waste poses a significant risk to human health, and posed a particular risk to the health of those working at the premises during the remediation.

The Presence of Asbestos in The Environment

1. The presence of asbestos in the environment increases the objective seriousness of Hughes's conduct (s 241(1)(f) of the POEOA).

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offence

1. I take into account the uncontested fact that Hughes could plainly foresee the harm caused or likely caused to the environment by the ongoing presence of building, demolition and asbestos waste at the premises (s 241(1)(c) of the POEOA).

Practical Measures that Could Have Been Taken to Prevent or Mitigate the Environmental Harm

1. Section 241(1)(b) of the POEOA requires the Court to take into account the practical measures that may be taken to prevent, control, abate or mitigate harm to the environment.
2. The EPA submitted that Hughes could have taken the following steps to prevent the commission of the offence: 1. arranging for the engaged environmental consultant to be present at the premises and for remediation works to occur between 17 March 2020 and 16 January 2023; 2. devoting more than one excavator and dump truck to the excavation of the waste during the majority of the removal works; 3. either commencing the removal of the waste from the premises before January 2023 or committing additional resources to the removal of the waste so that it could be completed sooner; and 4. approaching the Court in a timely manner to explain the delay and seek additional time to comply.
3. The EPA stated that Hughes and his associated companies had sufficient financial resources to comply with the remediation order as evidenced by the 2020 to 2023 financial statements.
4. I agree. I therefore find that there were practical measures that Hughes could have taken to prevent the harm caused by the commission of the offence.

Control Over the Causes of the Commission of the Offence

1. Section 241(1)(d) of the POEOA requires the Court to take into account the extent to which the person who committed the offence had control over the causes that gave rise to it.
2. Hughes accepted that he had ultimate control over the commission of the offence, including approaching the Court for an extension of time. He contended, however, that much of the delay was beyond his control.
3. While the EPA accepted that the events that occurred between July 2019 and March 2023 were outside of Hughes's control, this had been accommodated by it consenting to three years of additional time for the work to be completed.
4. But it rejected the suggestion that a factor in mitigation was that the transportation of the waste offsite was a larger undertaking than anticipated because it had been mixed with soil. As the person who directed that the waste be buried at the premises, Hughs ought to have known its volume.
5. The EPA further submitted that Hughes had control over the remediation. His employee was coordinating the clean-up, he was abler to draw upon the resources of TPC to complete the work, and was able to use NWR, a waste recycling facility that his company owned, for the disposal of the majority of the waste.
6. While not cavilling with the EPA's submission that there was no financial impediment to compliance, Hughes noted that the removal of the waste cost him approximately $2,356,758, comprised of costs borne by, and resources diverted from, companies of which he is the owner. The fact that no waste transfer fee was charged to Hughes by NWR did not mean that was cost free because NWR had to pay for the trucking, the processing of the material and to dispose of the waste at a licensed facility. Because TPC owned NWR, in effect, Hughes incurred this expense.
7. I accept that there were extenuating factors during certain periods between 1 April and 21 November 2023, including flooding, which restricted Hughes's ability to comply with the 2022 remediation order. Nevertheless, it was well within Hughes's control to divert further resources to compliance outside of those periods or to otherwise approach the Court and seek an extension of time. Accordingly, I find that Hughes had complete control over the commission of the offence.

Conclusion on Objective Seriousness

1. A sentencing judge is not required to nominate a point on a scale of seriousness when assessing the objective seriousness of an offence. While occasionally useful, such an exercise adds little substance to the task of instinctive synthesis and determination of a proportionate sentence (DH v R [2022] NSWCCA 200 at [60]).
2. Nevertheless, on any view, the environmental crime committed by Hughes was in the mid range of objective seriousness insofar as it was committed wilfully and for financial gain, and because it caused actual and potential environmental harm.

Contrition and Remorse

1. Pursuant to s 21A(3)(i) of the CSPA, remorse is only a mitigating factor 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),
2. In Waste Recycling Preston J suggested at least four ways by which an offender may demonstrate genuine contrition and remorse, which are relied upon without repetition (at [204], [210], [212] and [214]).
3. In his affidavit Hughes stated: 26. On the 13th March 2023, I personally met with the EPA representatives and discussed the need for an extension. I expected to receive a written response to my request, but this was never received. I can see now that I should have gone back to the court and formally sought an extension. However at the time I felt that as the EPA knew I was continuing with the clean-up works and was conducting regular visits where it could see the progress being made on site, the best thing for me to do was just to continue as best I was able in all the circumstances. The clean-up continued, and by June 2023 Mr Coster had got to the point where all waste was excavated from the ground ready to be trucked off. … 30. If I had the resources to clean the site quicker I would have, and I am sorry that I caused this situation. I worked as quickly as I could to get the site cleaned up with the resources available allowing for the many challenges I faced. The whole experience has taught me a lot.
4. Hughes submitted that he now understands that any delay in complying with the Court's orders should have been brought before the Court. He accepted that in the absence of a further extension it was his obligation to marshal all available resources to comply with the 2022 remediation order.
5. The EPA accepted that Hughes's affidavit represented an expression of contrition, but submitted that it lacked any acknowledgement of the seriousness of the harm caused by his offending.
6. I am satisfied by Hughes's expression of contrition in his affidavit and his completion of the remediation work. I find that he is genuinely remorseful. While there is no reference to harm in his expression of contrition, I take into account his admissions contained in the statement of agreed facts as evidence that he understands the harm that he has caused by the commission of the offence.

Early Plea of Guilty

1. Hughes entered a plea at the earliest available opportunity, being the first directions hearing on 15 March 2023. He is therefore entitled to the full 25% discount for both offences (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]).

Assistance to the EPA

1. Hughes provided assistance to the EPA in the prosecution of the offence (ss 21A(3)(m) and 23 of the CSPA), including by completing the remediation work, keeping the EPA informed of his progress, and by participating in the preparation of an agreed statement of facts containing extensive admissions (ACE Demolition at [94]-[96]). I take this factor in mitigation into account.

Prior Convictions of Hughes

1. Hughes has two prior convictions for environmental offences, namely, the convictions giving rise to the order the subject of these proceedings (s 21A(3)(e) of the CSPA and Hughes). As such, only limited weight is placed upon them.

The Character of Hughes and the Likelihood of Reoffending

1. Hughes did not provide the Court with any evidence of his good character. Having said this, there is no evidence before the Court that he is not of good character but for the commission of the offence. I therefore make no finding in relation to this factor (s 21A(3)(f) of the CSPA).
2. While Hughes made no submissions on his likelihood of reoffending, I find it unlikely, given that he has now complied with the 2022 remediation order and incurred significant costs in doing so. These factors weigh in favour of a finding that his likelihood of reoffending is low, but not negligible, and that he has good prospects of rehabilitation (s 21A(3)(g) and (h) of the CSPA).

Deterrence, Denunciation and Retribution

1. The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at [569]-[570] per Brennan J).
2. The penalty imposed by the Court must serve as a general deterrent (Axer at [359], Camilleri's Stock Feeds at [701] and Bentley at [139]; and see also s 3A(b) of the CSPA). In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Preston J discussed general deterrence in the context of sentencing for environmental crime (at [66]-[68]). Those principles are applied here without repetition.
3. I accept that embedded in the determination of the appropriate sentence to be imposed on Hughes is an element of general deterrence to ensure that offenders comply with Court orders.
4. In relation to specific deterrence (s 3A(b) of the CSPA), I find that because Hughes has now committed two environmental offences, the penalty imposed upon him must serve to ensure that he complies with any future court orders imposed upon him.
5. Finally, the Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offence and making Hughes accountable for his actions.

Consistency in Sentencing

1. The task of the sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at [177] and R v Visconti [1982] 2 NSWLR 104 at [107]). Care must be taken in comparing cases where the circumstances of, and facts relating to, the offences are different (Axer at 365).
2. As the EPA advised, this is the first prosecution under s 251 of the POEOA in this Court. Accordingly, caution must be exercised when examining other cases as there is no sentencing pattern for this offence.
3. The EPA submitted that the Court should have regard to Fish (No 2) because it considered a comparable provision, namely, s 206 of the National Parks and Wildlife Act 1974 ("NPWA"). That section provides: 206 Offence A person who fails to comply with an order under this Division (except an order under section 201 or 203) is guilty of an offence.
4. At the time of the commission of the offence in Fish (No 2), the maximum penalty for an individual under s 206 of the NPWA was $60,500 for each day the offence continued, whereas under s 251 of the POEOA it is $60,000.
5. In Fish (No 2) the defendant was convicted in 2014 for failing to comply with a court order under s 205 of the NPWA which required his company to conduct targeted assessment of koala utilisation of potential koala habitat, with the defendant to contribute $26,400 towards the project's management (at [2]). The defendant failed to approach the Court to seek extra time, or modification of the project in terms of its scope or costs, so as to to comply with the order. Instead he prioritised the financial wellbeing of his business (at [18]). However, no environmental harm was caused by the commission of the offence (at [23]) and the Court accepted that the defendant "worked in good faith…to complete the project" (at [20]), but that following his company being placed in voluntary liquidation, it became "virtually impossible" for him to comply (at [25]). Hence, the Court's finding that the defendant committed the offence wilfully was considered in light of evidence that he was not in a position financially to comply (at [21]). The objective seriousness of the offence was found to be at the high end of the low range of objective gravity (at [24]). The appropriate penalty was determined to be $50,000, reduced to $25,000 due to Fish's subjective circumstances (at [52]).

Costs

1. The EPA sought an order for its professional costs pursuant to s 257G of the Criminal Procedure Act 1986 in the sum of $81,600. Hughes agreed to the making of such an order.
2. In the exercise of its sentencing discretion the Court can take into account any costs payable by the defendant (Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78]-[88]).
3. I have taken the payment of the costs by Hughes into account.

Capacity to Pay a Fine

1. Section 6 of the Fines Act 1996 provides that: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider-- (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
2. Section 6 of the Fines Act places the onus upon Hughes to prove that he is unable to pay any monetary penalty imposed by the Court. To discharge this onus Hughes must provide financial information to the Court which is reasonably and practically available to him demonstrating that he is impecunious (see Environment Protection Authority v Albiston [2020] NSWLEC 80 at [183]-[184]).
3. A defendant's capacity to pay is one of many factors that the Court must consider when imposing a sentence. In Environment Protection Authority v Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114 Preston J opined (at [267]): 267 However, whilst the means of an offender to pay any fine is a mandatory consideration, it may not be decisive. Other sentencing considerations, such as achieving general deterrence, may justify imposing a fine in a certain amount, even if the offender is unlikely to be able to pay the fine: Smith v The Queen at 23, 24; Darter v Diden (2006) 94 SASR 505; [2006] SASC 152 at [29]-[32]; Mahdi Jahandideh v R [2014] NSWCA 178 at [15]-[17]. This may particularly be the case in sentencing for offences where general deterrence is needed and where the offender is a corporation rather than a natural person: see Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 353; Environment Protection Authority v Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147; Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94 at [16]; Bentley v BGP Properties Pty Ltd at [270]-[275].
4. The EPA submitted that beyond Hughes's affidavit evidence which alleges that since 2019 it has been a challenging time for the building industry and he has sold assets "to ensure the survival of my building company", there is no evidence before the Court to suggest that he does not have the means to pay any fine imposed. Hughes conceded that there was no evidence of his personal financial circumstances in order for the Court to be satisfied that he did not have the means to pay (T27:43-29:20).

Appropriate Sentence

1. Having regard to the objective seriousness of the offence and the mitigating subjective factors of Hughes, together with the penalties imposed in the relevant comparable cases, I find that the imposition of a monetary penalty of $150,000 is warranted for Hughes's contravention of s 251 of the POEOA.
2. After the application of the 25% discount for the utilitarian value of the early guilty plea, the penalty for the commission of the offence is reduced to $112,500.

Moiety

1. The EPA contended that half of any monetary penalty imposed by the Court ought to be paid to it pursuant to s 122 of the Fines Act. Having regard to all of the circumstances of the case, I find that it is appropriate to make such an order. The EPA is not seeking any order for specific reimbursement of investigation expenses under s 248 of the POEOA and an order that Hughes pay its professional costs will not fully compensate the EPA. An order for a moiety will not result in a windfall gain for the EPA.

Publication Order

1. The EPA seeks a publication order pursuant to s 250(1)(a) and (b) of the POEOA. The terms of the publication order are set out at annexure 'A' to this judgment.
2. The publication order was agreed save for Hughes's objection to the inclusion of the following words: Mr Hughes uses resources from his company, Thomas Paul Constructions Pty Ltd, a provider of residential home and land packages, to remove the waste.
3. Hughes also cavilled with the EPA's submission that the notice be published on TPC's website. Hughes submitted that to refer to TPC in the notice and to require publication of the notice on TPC's website would unfairly prejudice TPC, a company that is not charged with any offence and is not a party to the proceedings. I agree.
4. In the context of sentencing, a publication order serves the functions of general deterrence, denunciation, and a recognition of the harm caused by the offending conduct (Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 at [105] and Environment Protection Authority v Ditchfield Contracting Pty Limited [2018] NSWLEC 90 at [76]). Hughes's offending conduct was wilful, motivated by financial gain and occasioned actual and potential environmental harm. These factors weigh heavily in favour of making a publication order against him, but not TPC, who has not been charged with any offence.

Orders

1. In conformity with the reasons given above, the Court makes the following orders: 1. the defendant is convicted of the offence contrary to s 251 of the Protection of the Environment Operations Act 1997 as charged; 2. the defendant must pay a monetary penalty in the sum of $112,500; 3. pursuant to s 122 of the Fines Act 1996, 50% of the monetary penalty imposed on the defendant is to be paid to the prosecutor as a moiety; 4. pursuant to s 257G of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor's professional costs of the proceedings agreed in the sum of $81,600; 5. within 28 days of the date of this order, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, the defendant must, at his expense, cause a notice in the form of annexure 'A' to these orders to be published within the first 12 pages of the following publications, at a minimum size as near as practicable to 180 cm2: 1. The Daily Telegraph; and 2. the Newcastle Herald. 1. within 42 days of the date of this order, the defendant must provide the prosecutor with a complete copy of the notices as published pursuant to order 5; and 2. the exhibits are to be returned.

Annexure A Thomas Paul Hughes Convicted of Breaching Court Orders for Not Cleaning Up Dumped Waste Thomas Paul Hughes was prosecuted by the Environment Protection Authority ("EPA") and pleaded guilty to an offence of failing to comply with court orders pursuant to s 245 of the Protection of the Environment Operations Act 1997. Hughes was convicted of two waste offences in 2019 under that Act for illegally burying thousands of cubic metres of building and demolition waste at a rural property in Sandy Hollow, NSW. Following these convictions, Hughes was ordered by the Land and Environment Court ("the Court") to excavate and remove the waste, and to lawfully dispose of it, by 31 March 2023. Hughes failed to remove all the waste in the time required by the order. The ongoing presence of the waste at the property, which included asbestos, caused actual and potential harm to the environment and to human health, until such time as the remediation of the waste was completed on 21 November 2023. On 27 August 2024 the Court convicted Hughes of the offence and ordered him to: 1. pay a fine of $112,500; 2. pay the EPA's costs in the amount of $81,600; and 3. cause this notice to be published in two publications at his own expense.

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. Decision last updated: 27 August 2024