Environment Protection Authority v Jackson; Environment Protection Authority v LeMessurier

[1]

Environment Protection Authority v Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114 Environment Protection Authority v Hughes [2019] NSWLEC 108 Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 Environment Protection Authority v Rands [2019] NSWLEC 23 Environment Protection Authority v Ridley AgriProducts Pty Limited [2019] NSWLEC 119 Environment Protection Authority v Routledge [2024] NSWLEC 8 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 Environment Protection Authority v Wyong Shire Council [2012] NSWLEC 36 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 Natural Resources Access Regulator v Tony Thompson [2022] NSWLEC 48 Plath v Vaccount Pty t/as Tableland Timbers [2011] NSWLEC 202 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 Rahme v R (1989) 43 A Crim R 81 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Weininger v the Queen [2003] HCA 14; (2003) 212 CLR 629 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Bruce Jackson (Defendant) William LeMessurier (Defendant) Representation: Counsel: M Clifford-O'Sullivan (Prosecutor) N Hammond (Defendants)

[2]

Solicitors: Environment Protection Authority (Prosecutor) N/A (Defendants) File Number(s): 2023/308481; 2023/308482; 2023/308483; 2023/308484 Publication restriction: Nil

[3]

Bruce Jackson and William LeMessurier Each Plead Guilty to MRI (Aust) Pty Ltd's Unlawful Operation of a Hazardous Waste Facility

Bruce Jackson and William LeMessurier have each pleaded guilty to committing one offence against s 144(1) of the Protection of the Environment Operations Act 1997 ("POEOA"), by virtue of s 169(1) of that Act, in that between 15 August 2019 and 30 December 2020 ("the relevant period") they were directors of MRI (Aust) Pty Ltd ("MRIA"), being an occupier of Lots 1 and 2 of DP 631257, located at 36-42 Orange Grove Road, Warwick Farm, NSW ("the property"), that was used as a waste facility without lawful authority.
The property received hazardous waste material within the meaning of cl 49 of Sch 1 of the POEOA, including crushed cathode ray tube ("CRT") glass, used lead-acid batteries, used nickel-cadmium batteries, used lithium-ion batteries, used lithium-polymer batteries, used alkaline batteries, and used nickel-metal hydride batteries.

[4]

The Legislative Regime Creating the Offences

The relevant provision of the POEOA creating the offence states: 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.
Section 169(1) of the POEOA provides that an offence against the Act attracts special executive liability: 169 Liability of directors etc for offences by corporation - offences ` attracting special executive liability (1) If a corporation contravenes, whether by act or omission, a provision of this Act attracting special executive liability, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that - (a) (Repealed) (b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.
Clause 42(3)(a) of Sch 1 of the POEOA provides that the storage of more than five tonnes of hazardous waste is a "scheduled activity": 42 Waste storage … (3) The activity to which this clause applies is declared to be a scheduled activity if - (a) more than the following amount of hazardous waste, restricted solid waste, liquid waste or special waste, other than waste tyres, is stored on the premises at any time - (i) for a community recycling centre - 12 tonnes, (ii) for premises to which an environment protection licence does not otherwise apply, if the waste has been collected as part of a household chemical clean-out event - 80 tonnes, (iii) otherwise - 5 tonnes, or

[5]

The Evidence Relied Upon by the Parties

The Environment Protection Authority ("EPA") relied upon a statement of agreed facts ("SOAF"), and the documents establishing those facts, by way of evidence.
In addition to the SOAF, Jackson and LeMessurier relied upon: 1. an affidavit of Jackson, affirmed 4 December 2024; and 2. an affidavit of LeMessurier, sworn 4 December 2024.
The EPA elected not to cross-examine either Jackson or LeMessurier. Their affidavit evidence was therefore unchallenged.

[6]

Jackson and LeMessurier Were Directors of MRIA

MRIA was a proprietary corporation that was registered in Victoria on 10 April 1990.
MRIA was part of the MRI corporate group ("the MRI group"). The MRI group comprised of MRIA, MRI PSO Pty Ltd ("MRI PSO"), being a proprietary corporation that was registered in Victoria on 25 June 2015 and is a related entity to MRIA, and other interstate entities that were engaged by MRI PSO to receive electronic waste ("e-waste") and used batteries for subsequent sale, processing and recycling.
Jackson was a director of MRIA from 23 July 2009 to 31 December 2020. LeMessurier was a director of MRIA from 16 August 1990 to 31 December 2020. LeMessurier was also the secretary of MRIA from 25 December 2002 to 31 December 2020.
From 25 June 2015 to 31 December 2020 Jackson was a director of MRI PSO. LeMessurier was a director and secretary of MRI PSO from 25 June 2015 to 31 December 2020.
Jackson and LeMessurier formally resigned as directors of MRIA and MRI PSO on 31 December 2020.
MRI Australia was an occupier of the property through its ownership of MRI PSO.
On 30 April 2020 100% of the share capital in each of MRIA and MRI PSO was acquired by E3Sixty Limited, which subsequently changed its name to Sircel Limited ("Sircel").
Jackson and LeMessurier played an active role in managing the operations of MRIA both before and after its acquisition by Sircel. For example, in addition to his role as director, Jackson's roles and responsibilities included: 1. site manager of the property until July 2020; 2. second in command prior to the acquisition of MRIA by Sircel; 3. director of MRIA following the acquisition of MRIA by Sircel until 30 December 2020, reporting to Anthony Karam, Cameron Baine and Mark Ryan of Sircel; 4. conducting contract negotiations with third parties on behalf of MRIA until at least 5 November 2020; and 5. corresponding with third parties as the National Sales and Marketing Director of MRIA between 16 September and 30 December 2020.
From the date of LeMessurier's appointment until June 2020, LeMessurier was the Chief Executive Officer and Managing Director with responsibility for the day-to-day operations of the MRI group. This included the following: 1. determining whether an environment protection licence ("EPL") was required for each of the premises that MRIA operated. He was involved in the decision not to obtain an EPL for the property; 2. ensuring that there were relevant approvals and permits in place for the property to lawfully receive waste that was considered hazardous or restricted solid waste. He did this with the assistance of Wilton McDonald; and 3. obtaining any necessary development consents.

[7]

MRIA's Compliance History

MRIA has operated e-waste facilities in various parts of Australia since the 1990s. At those facilities its activities primarily involved recycling used and "end of life" electrical items and batteries.
Prior to occupying the property MRIA operated e-waste facilities at the following locations: 1. 93B Mandoon Road Girraween, NSW, from an unknown date to May 2006 ("the Girraween property"); 2. 1 Bentley Avenue Wetherill Park NSW, between February 2007 and September 2013 ("the Wetherill Park property"); 3. 73 Victoria Street, Wetherill Park, NSW, between September 2013 and February 2016; 4. 3 Rowood Street, Prospect, NSW, between February 2016 and July 2017; 5. 15 Stanton Road, Seven Hills, NSW, between July 2017 and August 2019 ("the Seven Hills property"). The facility located at the Seven Hills property traded under the name "MRI E-Cycle Solutions" and was operated by MRIA immediately prior to moving to the property; and 6. 1789-1791 Sydney Road, Campbellfield, Victoria ("the Campbellfield property").
MRIA previously held an EPL for the Girraween property until it was surrendered on 25 May 2006. Subject to conditions, that licence authorised MRIA to carry out the scheduled activity of "Hazardous, Industrial or Group A waste generation or storage".
MRIA also held an EPL for the Wetherill Park property, permitting it to carry out "Hazardous, Industrial or Group A waste generation or storage"'. The EPL was surrendered on 5 May 2014.
On 13 June 2014 the EPA sent a letter to Jackson regarding the classification of e-waste in NSW. The letter noted that it was the responsibility of businesses generating, storing, processing or transporting waste to be aware of the regulatory requirements which applied to their waste. The letter also referred to the licensing thresholds enlivening the requirement to hold an EPL for scheduled activities, including the storage or processing of waste. The letter further stated that, "the receipt of hazardous waste for storage triggers a requirement to hold an EPL where there is more than 5 tonnes (on-site at any time)".
The EPA issued a letter on 16 July 2014 to LeMessurier providing advice regarding the classification of e-waste in NSW as general solid waste.
On 23 April 2015 Jackson received a letter from the EPA in respect of CRT glass generated by MRIA in Sydney. In that letter the EPA referred to the results of unprocessed CRT glass samples taken by the EPA at a facility which had accepted front panel glass from MRIA. It also set out the thresholds under Pt 1 of the EPA Waste Classification Guidelines (2014) ("the Guidelines") that apply for non-liquid waste material to be classified as hazardous waste in NSW.

[8]

MRIA Occupied and Operated an Electronic Waste Facility at the Property

During the relevant period Soar Development Group Pty ("Soar") was the registered proprietor of the property.
MRI PSO became the formal lessee of the property pursuant to a lease with Soar that commenced on 15 August 2019, for an initial term of three years until 14 August 2022, with a two year option to renew ("the lease").
Jackson and LeMessurier executed the lease on behalf of MRI PSO and were personal guarantors under it. Wenxiao Mai and Guan Yong Li (also known as Kent Li), are each directors of Soar and executed the lease on Soar's behalf.
Part of the property subject to the lease included a large warehouse ("warehouse 3") and an industrial block of land located approximately 70 m south of warehouse 3 ("yard E"). Warehouse 3 and yard E, and the adjacent residential area, are identified in the photograph below.
Item 8 of the Schedule to the lease prescribed the permitted usage of the property in the following terms: Warehouse refurbishment and dismantling of computers/printers/photocopiers, electrical and electronic equipment. Components are distributed/exported for recycling purposes.
From 15 August 2019 MRIA commenced occupation of, and operated an e‑waste facility from, the property under the business name "MRI E-Cycle Solutions". It received and stored waste material at the property including: 1. used batteries of various types, such as lead-acid, nickel‑cadmium, nickel-metal hydride, alkaline, lithium-ion and lithium-polymer batteries; and 2. e-waste comprising of discarded computers, laptops, mobile phones, and other appliances and electronic household items.
MRIA's customers included large corporations such as Aldi Stores ("Aldi"), Veolia Recycling & Recovery Pty Ltd ("Veolia") and Toyota Motor Corporation Australia Pty Ltd ("Toyota"), as well as local government area councils.
MRIA's staff and customers booked in shipments of waste material to be received at the property into a proprietary software system developed by MRIA called "BigBird". Once a booking was entered into BigBird, the waste material was subsequently delivered to the property by trucks belonging to MRIA or third parties. On occasion, waste material would be delivered to the property without a shipment having been booked through BigBird.

[9]

MRIA Stored Large Quantities of Hazardous Waste Without an EPL

MRIA received and stored large quantities of broken or crushed CRT glass at the property. This material had been progressively aggregated and stockpiled by MRIA during its occupation of former facilities and was transported to the property in early August 2019. CRT glass was transported to the property from one or both of the following two locations: 1. various facilities located in Fyshwick, ACT that were at the time occupied or leased by a related entity to MRIA, namely, MRI ACT Pty Ltd ("MRI ACT"); and 2. the Seven Hills property.
The CRT glass was stored under-cover in warehouse 3 and yard E, in bulker bags and in 200 L drums on pallets. The CRT glass had been sorted into either drums or bags which indicated whether the receptacle contained front glass (also known as panel glass) or back glass (also known as funnel or neck glass). Some receptacles contained mixed front and back CRT glass.
The primary contaminant of potential concern associated with CRT glass is lead. A majority of lead in CRT glass is found within back glass.
A small amount of CRT glass was processed at the property by MRIA by crushing picture tubes located in the back of discarded intact televisions and computer monitor screens that were received at the property as e-waste.
In addition to CRT glass, MRIA also arranged for large quantities of used batteries to be received at the property. This material was stored in warehouse 3 in 200 L drums on pallets that were stacked on top of each other.
The primary generators of waste batteries received at the property were Aldi, Toyota and Veolia.
MRIA had contractual arrangements in place with Aldi, Toyota and Veolia during the relevant period whereby those entities paid it to receive and recycle used batteries at the property and at other locations.
MRIA also had a contractual arrangement in place with Nyrstar Port Pirie Pty Ltd ("Nyrstar") at this time. Under this arrangement Nyrstar received crushed CRT glass at its smelter in Port Pirie, South Australia from MRIA for a fee of between $200 to $310 per tonne of material (this cost being Nyrstar's treatment fee). The material was treated by Nyrstar, then used as blast furnace feed.
Nyrstar had not received any shipments of CRT glass from MRIA since 5 October 2018.

[10]

MRIA's involvement in the Commonwealth National Television and Computer Recycling Scheme

The Commonwealth National Television and Computer Recycling Scheme ("NTCRS") was implemented by the Commonwealth Government under the Product Stewardship Act 2011 (Cth) and the Product Stewardship (Televisions and Computers) Regulations 2011 (Cth).
The general objectives of the NTCRS are to provide the public with access to free nationwide collection and recycling services for televisions and computers. The NTCRS also holds manufacturers, importers and distributers of television and computer products over a certain threshold liable to contribute funding towards collection and recycling solutions to reduce the amount of e-waste in landfill.
MRIA and MRI PSO held a co-regulatory approval under the NTCRS, which authorised them to receive e-waste and used batteries for processing, recycling or selling.
In September 2019 the Commonwealth Department of Climate Change, Energy, the Environment and Water ("DCCEEW") issued MRI PSO with an improvement notice following its failure to meet NTCRS outcomes in the 2016-2017 and 2017-2018 financial years.
That same year, the Department of Agriculture, Water and the Environment ("DAWE") engaged Deloitte Risk Advisory Pty Ltd ("Deloitte") to conduct an inspection of the property for the purposes of reviewing MRI PSO's co-regulatory arrangement under the NTCRS. Deloitte attended the property on 9 October 2020 and observed: 1. approximately 300 tonnes of CRT glass; 2. 100 tonnes of AA/AAA/9V/6V batteries; and 3. stockpiles of batteries, including 17 visible crates of alkaline batteries stored under a roof that was open on one side and exposed to weather, depicted in the photograph below.
Deloitte's report dated 30 November 2020 relevantly found that: The collection process starts with MRI PSO receiving a request for e-waste to be collected. The shipment details are then entered into MRI PSO's tracking system, BigBird, by either MRI managers or customers who have access to the system. MRI PSO engages third party transporters for the collection of products. The third party collects the waste where it's weighed and transported to the recycler. The transporter subsequently produces a weighbridge document of what was collected. The recycler will then sort the material in co-regulatory and non-coregulatory waste for recycling… …MRI PSO does not appear to maintain any sophisticated policies, standard operating procedures or manuals on the collection, storage, sorting, transportation or recycling process followed for the Scheme… 7.5 Waste We made the following observations in relation to stockpiles of waste: • Alleged bottlenecks in the capacity to send out materials has led to stockpiles of waste • There was a stockpile of approximately 300 tonnes of CRT Glass. The downstream recycler/lead smelter (CRT Recycling in South Australia) takes only 30 tonne batches, and requires a booking. Resulting in a large backlog held on the property. CRT glass stored in bags and barrels. It was stated these were "lined" but we could not verify whether packaging was appropriate. … • 100 tonnes of AA/AAA batteries - 8 tonnes coming in per week, but not going out fast enough - can send out 20 tonne batches but there are "processing restrictions"… … • 17 (visible) crates of alkaline batteries exposed to weather (not under cover) - being shipped for re-use, container arrival delayed because of issues with the 'wharfies'. - These batteries contain corrosive liquid and are in wooden crates on an un-bunded site. It was stated that the crates are "bunded internally" (lined?) but this could not be verified. • When asked about a separate shed full of waste (including CRT Glass, Alkaline batteries for re-use) MRI's Director told our HSW Consultant twice that it did not belong to MRI Aust. On further inspection it was found to be MRI waste, which the Director then acknowledged.

[11]

The EPA's Investigation

The EPA received notification of the fire that had occurred at the Campbellfield property from WorkSafe Victoria on 14 August 2020.
In response, the EPA exchanged correspondence with MRIA regarding its operations at the property. On 16 September 2020 Klepetko from the EPA emailed Gary Munn, the National Transport and Logistics Manager of MRIA, requesting information about the quantities of battery waste stored at MRIA's facilities in NSW.
Klepetko received a call from LeMessurier on 25 September 2020, who advised him that battery and other e-waste at the property was kept below licensing thresholds under the POEOA.
In response to a further request for information regarding MRIA's operations at the property on 1 October 2020, LeMessurier advised Klepetko that: 1. the property was first occupied by MRIA in July 2019; 2. the property is an e-waste processing facility that collects, aggregates and provides primary recycling (consisting of manual and mechanical disassembling) of e-waste. Disassembled product is separated into constituent commodities and sent downstream for further recycling by recyclers in Australia and overseas; 3. batteries received at the property are sorted into various chemistries for further transport to downstream recyclers. No processing or treatment of batteries occurs in NSW; and 4. the approximate maximum quantities of the waste types stored at the property were: 1. 170 tonnes of batteries (excluding lead-acid and nickel‑cadmium), however, this volume was to be moved to a processor in NSW for shipment to Melbourne; 2. 220 tonnes of e-waste other than batteries; 3. greater than five tonnes of lead-acid batteries; and 4. greater than 20 tonnes of nickel-cadmium batteries, not drained. The build-up of this stock was due to issues in MRIA's Melbourne site that prevented it from shipping the e-waste to ensure that volumes were less than five tonnes.
On 12 October 2020 an employee of the DAWE, Tabor Akman, called the EPA's EnviroLine raising concerns about the outcome of Deloitte's inspection of the property on 9 October 2020. Akman said that he would provide a copy of Deloitte's report to the EPA and that he would additionally be contacting SafeWork NSW about the storage of dangerous goods and about work health and safety issues at the property.
Klepetko sent another email to LeMessurier on 23 October 2020, requesting further information regarding MRIA's operations at the property. In that email Klepetko said that: …Based on the information you have provided, the quantities of battery waste that have been and are stored at the site exceed the relevant scheduled activity threshold in Schedule 1 of the POEO Act 1997 for 'Waste storage' of 'hazardous and other waste'. The EPA notes MRI have stated that this is due to the current exceptional circumstances due to issues with MRI's Melbourne operations. Regardless of this, the EPA advises it is MRI's responsibility to ensure that its activities are being carried out in a manner that complies with the requirements of the POEO Act 1997. The EPA notes that "A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises". The maximum penalty for a corporation is $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues. The EPA notes that MRI has advised of uncertainties with respect to interpreting certain aspects of the POEO Act 1997, as well as other tracking and other requirements. Consequently MRI has advised it would look to get a licence as needed and implement additional actions following any further information provided by the EPA following the EPA's review of MRI's response…

[12]

The EPA Issues a Prevention Notice to Soar

On 17 June 2021 the EPA issued a Prevention Notice ("the Prevention Notice") to Soar on the basis that Soar was the occupier of the property after it had formally terminated the lease on 10 February 2021. The Prevention Notice was subsequently varied to enable Soar further time to comply with the directions stipulated.
Soar arranged for the lawful removal and disposal of all e-waste comprising general solid waste as well as lead-acid, nickel-cadmium and lithium-ion batteries from the property.
Soar incurred $439,897.55 in costs to remove the batteries stored at the property, including costs in relation to labour, machinery, tip bins, battery removal and partitioning of the property for safety purposes. These costs are projected to increase, with Soar obtaining a quote of $1,985,500.00 for the removal of the batteries and CRT glass, plus an additional $179,300.00 for labour.
During a record of interview ("ROI") with a representative of MRIA on 2 June 2022, the EPA was told that: 1. only about 15 tonnes of CRT glass could have been processed at the property because the CRT glass processing line was only operational from November to December 2020, and there were issues with power at the property; 2. approximately 100 tonnes of CRT glass was delivered to the property from the ACT; 3. a vast majority of the CRT glass at the property was aggregated from previous facilities occupied by MRIA and then moved to the property when MRIA commenced occupation; and 4. LeMessurier and Jackson were responsible for the decision to aggregate CRT glass.
In his ROI dated 7 October 2021, Johns advised the EPA that: 1. 130 bulker bags of CRT glass were delivered to the property from Canberra in August 2020, with the bags weighing between 900 kgs to 1.4 tonnes; and 2. approximately 200 pallets, each containing four drums of CRT glass equating to 800 drums, were transferred from the Seven Hills property when MRIA commenced occupation of the property.
In Li's ROI with the EPA on 13 May 2021, he stated that: 1. he observed broken CRT glass being stored in yard E around the same time as the lease commenced; 2. he received complaints from the tenant of another premises adjacent to the property in early 2020 regarding concerns over fire risks associated with the storage of batteries; and 3. as a result of the complaints from the neighbouring tenant, Soar engaged Sureline Fire Protection ("Sureline"), a fire safety consultant, to conduct a fire safety audit of the property in 2020.

[13]

The Purpose of Sentencing

The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"): 3A Purposes of sentencing 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.…

[14]

Statutory Matters Requires to be Taken into Account in Sentencing

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), … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … (i) the offence was committed without regard for public safety, … (o) the offence was committed for financial gain, (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),
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, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee, (f) the presence of asbestos in the environment. (2) The court may take into consideration other matters that it considers relevant.

[15]

Objective Seriousness of the Offences

The objective gravity of the offences 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 offences (R v Dodd (1991) 57 A Crim R 349 at [354] and R v Nichols (1991) 57 A Crim R 391 at [395]). It is judged having regard to two principal components: first, the acts or omissions of the offender; and second, the consequences of those acts or omissions (Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [22]).

[16]

Nature of the Offences

The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme creating it, 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]).
The relevant objects contained in s 3(a), (d) and (e) of the POEOA identify the purpose of creating the offence with which Jackson and LeMessurier have been charged.
As the EPA submitted, one of the principal means by which the statutory objects of protection of the environment and pollution prevention are achieved is by the POEOA 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 (Bankstown City Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39 at [50]).
In respect of an offence against s 144(1) of the POEOA, the legislature has prescribed a highly regulated scheme for the disposal of waste to avoid or minimise harm to the environment, including to human health, which may be caused by the improper disposal of waste.
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 potential 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) (Environment Protection Authority v Hughes [2019] NSWLEC 108 at [73]).
An offence against s 144(1) erodes the objects of the POEOA, including ecologically sustainable development, and undermines the integrity of the regulatory scheme under that Act (Environment Protection Authority v Hanna [2010] NSWLEC 98 at [38] ("EPA v Hanna") and Hughes at [74]).
The EPA submitted that Jackson and LeMessurier's conduct undermined the legislative objectives of the POEOA, in particular s 3(a) and (d)(i)-(iia) of that Act. It also compromised the beneficial protection to the environment and to human health that the regulatory scheme offered. I agree.
The EPA further submitted that the offending conduct is a particularly serious example of an offence against s 144(1) of the POEOA because of Jackson and LeMessurier's awareness of the regulatory environment in which they operated their business, their awareness of the likelihood that hazardous waste was stored at the property, the significant risk of injury to occupants at the property and any first responders attending the property.

[17]

Maximum Penalty

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).
Jackson and LeMessurier are each charged with one breach of s 144(1) of the POEOA, which in the case of an individual carries a maximum penalty of $250,000.

[18]

Jackson and LeMessurier's State of Mind at the Time of the Commission of the Offences

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 Jackson and LeMessurier at the time of the commission of the offences is nevertheless relevant to the determination of an appropriate sentence (s 241(2) of the POEOA; and Environment Protection Authority v Dial-A-Dump (EC) Pty Ltd [2024] NSWLEC 21; (2024) 261 LGERA 103 at [84] and Environment Protection Authority v Routledge [2024] NSWLEC 8 at [21]).
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, Dept 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]).
In respect of LeMessurier, the EPA submitted that the Court ought to draw an inference that he committed the offence intentionally based on the following facts: 1. LeMessurier had been a director (one of only two) of MRIA since August 1990. MRIA had operated e-waste facilities in various parts of Australia since the 1990s. At these facilities its business primarily involved recycling of used and "end of life" electrical items and batteries; 2. prior to operating its facility at the property MRIA had operated premises at Girraween and Wetherill Park, where it held EPLs that authorised the carrying out of the scheduled activity of "Hazardous, Industrial or Group A waste generation or storage" subject to certain conditions; 3. on 11 August 2017 the EPA issued MRIA with the Caution in respect of MRIA's transportation of broken CRT glass from the Campbellfield property to a facility which was not authorised to receive that material at the time. The Caution provided that while intact CRT glass was considered to be general solid waste (non-putrescible), once the glass was broken or crushed, the resulting material was considered to be classified as "hazardous waste" due to its potentially high lead content; 4. in May 2018 the Council issued MRIA with the DCO after observing large amounts of waste, including e-waste and batteries, at MRIA's Seven Hills property. The Council had concluded that the Seven Hills property was being used as a waste or resource management facility for e-waste without development consent; 5. at the time that MRIA occupied the property, LeMessurier was the CEO and director of MRIA with responsibility for the day-to-day operations of the MRI Group; 6. LeMessurier knew that CRT glass and waste batteries, including mixed household lithium-ion and nickel-cadmium batteries, were stored at the property. He was aware that back CRT glass could trigger hazardous or restricted solid waste concentrations under the Guidelines; 7. LeMessurier was involved in determining whether an EPL was required for each premises that MRIA operated at and held a shared responsibility with McDonald to ensure that there were relevant approvals and permits in place for the property to lawfully receive waste that was considered hazardous; and 8. LeMessurier was involved in the decision not to obtain an EPL for the property.

[19]

Jackson and LeMessurier's Reasons for Committing the Offences

The criminality involved in the commission of an offence is measured not only by the seriousness of what occurred but also by reference to the reasons for its occurrence (Axer at [366] and Bentley at [237]).
In his affidavit, Jackson explained his reasons for the commission of the offence as follows: 9 In 2015, the Commonwealth government introduced the National Television and Computer Recycling Scheme (NTCRS). Importers were required to contribute funds under the Federal Government ACT, A co-regulatory licenced organization would be responsible for Collection Transporting and Processing the ewaste. Importers were charged a fee, Fee's was based on a per kilo value to the volume of new TV's and computers imported into Australia. In the first two years of the scheme, the charge to the importers averaged $1.00 per kilo. MRI in the entity of MRI PSO became a co-regulatory around 2013, purchasing the existing licence that was held by OHL. 10 By the time MRI PSO was established, the value had dropped to less than $0.60 per kilo. Sims Metal (June 2021) and Reverse Ewaste (2015) left the NTCRS stating it was too hard to make money. Eventually the scheme was not commercial viable. By 2018 the scheme was at a point where the importers were being invoiced on average $0.40 per kilo, which in NSW is close to the cost of landfill. This was due to other co-regulators who were not recyclers pushing the price down In short, MRI was caught up in a downward spiral of economic unviability. Combined with the fact that competitors at the time pushed back from accepting the old cathode ray TV's (CRT) for recycling and MRI received the brunt of CRT. 11 By 2018, it was clear to me that MRI was in trouble, with down-stream processors pushing back and not accepting product for processing. Nystar (for glass) limited the volumes that it would accept as the lead content was not high enough to warrant processing. 12 With regards to the batteries left onsite, similar to that of CRT glass, the then processor had limited processing capabilities. MRI had been using "ReSourceCo" in Melbourne for battery processing, but they then stopped receiving batteries and today this can been seen with the "B-Cycle" program nearly at a collapse. There are only two processing facilities in Australia that I know of, ECOCycle and Envirostream, both are Victorian based and one cannot receive product currently and the other has a gate fee of over $8000 per ton. 13 The catalyse is simple to explain why CRT glass and batteries were stockpiled by MRI. Demand out-striped capabilities. CRT TVs and batteries were being collected faster than they could be downstream processed. Processing capabilities changed. 14 COVID-19 was the last nail in the coffin for MRI. COVID-19 restrictions caused many disruptions, and bottle necks at ports distribution and processing facilities prevented MRI from dealing with and processing material.

[20]

Whether the Offences Were Committed for Financial Gain

Offences committed for financial gain increase their objective gravity (s 21A(2)(o) of the CSPA). However, the mere fact that offending conduct occurs in the course of commercial activity is not sufficient in and of itself to prove that it was committed for financial gain (Natural Resources Access Regulator v Tony Thompson [2022] NSWLEC 48 at [133] citing Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 4) [2021] NSWLEC 123 at [223]).
The EPA relied upon MRIA's involvement in the NTCSR, and in particular, the contractual arrangement that it had with Nyrstar whereby Nyrstar purchased crushed CRT glass from MRIA to use as blast furnace feed. Nyrstar charged between $200 to $310 per tonne of material received. Nyrstar had not received any shipments of CRT glass from MRIA since 5 October 2018. The cost to MRIA for Nrystar to process the approximately 300 tonnes of crushed CRT glass held at the property during the offence period would have been approximately $60,000 to $93,000.
MRIA also had contractual arrangements in place with Aldi, Toyota and Veolia during the offence period whereby those entities paid it to receive and recycle used batteries at the property.
These facts, together with the parlous financial position of MRIA from at least 2017, resulted in the EPA inviting the Court to draw an inference that Jackson and LeMessurier had stored hazardous waste at the property during the relevant period for financial gain, including to avoid the costs of disposing of the waste.
Jackson and LeMessurier cavilled with this proposition. They asserted that there was no evidence that they personally enjoyed any monetary benefit in the commission of the offences, and that while MRIA had previously been a successful business that was recognised in the waste and recycling industry, it had lost, not gained, money by the commission of the offences.
The evidence relied upon by the EPA does not prove beyond reasonable doubt that Jackson and LeMessurier were motivated by financial gain in the commission of the offences. As explained by each of them, they committed the offences because they were unable to find recycling facilities to take the waste as quickly as MRIA was accumulating it. Without the EPA having cross-examined Jackson and LeMessurier on this evidence, and in the absence of anything to suggest that Jackson and LeMessurier personally gained, or were likely to have gained, a monetary benefit by the commission of the offences, or that they deliberately avoided the cost of obtaining and implementing the necessary licenses and approvals, the Court is not satisfied beyond reasonable doubt that they were committed for financial gain.

[21]

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

The Court must take into account the extent of the harm caused, or likely to be caused, to the environment by the commission of the offences, including whether the harm caused was substantial (s 241(1)(a) of the POEOA and ss 21A(2)(g) and (3)(a) of the CSPA).
The 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.
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]).
The extent of environmental harm caused by the commission of the offences was agreed to by the parties. That is, there was no actual harm caused by the commission of the offences, but there was the potential for environmental harm.
It was not in dispute that there was an increased risk of fire at the property during the relevant period. This risk was substantial and arose from the nature of the materials stored at the property during the offence period, the quantity of material stored, and the lack of compliant fire safety systems.
There were approximately 174 tonnes of batteries stored at the property. If a fire were to break out, the nature of the materials stored there, including the lithium-ion batteries and mixed batteries and plastics, would likely increase the heat from the fire, potentially resulting in thermal runaway, namely, a self-propagating reaction causing vigorous burning and the release of flames.
The storage of hazardous waste at the property also resulted in potential harm insofar as if a fire were to start at the property, there would be a risk of harm to the health of occupants and firefighters within the building from the fire itself and to occupants in neighbouring properties from fire spread, as well as a risk of harm to the building and its contents. There would also be potential environmental harm by way of emission into the air of impurities, including toxic fumes and contaminated firefighting effluent. The risk of fire was both from the flames and the radiant heat, as well as potential explosions occurring at the property.

[22]

Whether the Offences Were Committed Without Regard to Public Safety

The EPA submitted that the offences were aggravated by reason of having been committed without regard to public safety, especially considering the nature of the potential risks of harm to the public and to the environment of unlawfully storing hazardous waste (s 21A(2)(i) of the CSPA; and Environment Protection Authority v Carbon MF Pty Ltd; Environment Protection Authority v Fair [2023] NSWLEC 120 at [43]).
I accept the EPA's submission and find that the offences were committed without regard to public safety.

[23]

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

Section 241(1)(c) of the POEOA obliges the Court to have regard to the extent to which the offender could reasonably have foreseen the harm caused, or likely to be caused, to the environment.
The EPA submitted that the risk of environmental harm was foreseeable given: 1. the lack of compliant fire safety systems at the property, including the fact that the fire alarm and sprinkler system, the fire hydrant and the fire hydrant pump at the property were inadequate; 2. the volume and nature of the materials stored at the property during the offence period, particularly the lithium-ion batteries and the mixed batteries; 3. Jackson and LeMessurier's long experience in the e-waste recycling business and their awareness of the regulatory regime, including the risks associated with the storage of hazardous waste; 4. Jackson and LeMessurier's acceptance that there was an increased risk of fire at the property due to the nature of the materials stored on the premises during the relevant period, again particularly the lithium-ion batteries and the mixed batteries; and 5. the risk of harm was made manifest in the fire at the Campbellfield property in August 2020. From at least that date, Jackson and LeMessurier could have been in no doubt of the likelihood of environmental harm arising from the storage of such materials in such volumes at the property.
Jackson and LeMessurier accepted that the risk of harm caused or likely to be caused to the environment in the event of a fire was foreseeable.
I find that the potential environmental harm caused by the storage of hazardous waste at the property without an EPL was reasonably foreseeable to Jackson and LeMessurier. This is because of their significant experience in the waste recycling industry, in particular, their role as directors of MRIA during its operation of the Girraween and Wetherill Park properties which held EPLs for the storage of hazardous waste and their experience with the fire at MRIA's Campbellfield property.

[24]

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

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.
Jackson and LeMessurier accepted, as they should, that they could have undertaken measures to avoid the potential harm caused to the environment by the commission of the offences. They could have arranged for the waste to be removed, refused to store the waste, or stored it at a licenced facility. In addition, they could have obtained a licence when it became apparent that MRIA could not secure a recycler for, and would therefore have to stockpile, the waste.

[25]

Control Over the Causes of the Commission of the Offences

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.
The EPA submitted that the only apparent constraint on Jackson and LeMessurier's control over the causes giving rise to the offences appeared to be the financial position of MRIA.
However, the evidence disclosed that: 1. both Jackson and LeMessurier played an active role in managing the operations of MRIA at the property, both before and after it was acquired by Sircel; 2. from the commencement of the charge period until approximately April 2020, Jackson and LeMessurier were the only directors of MRIA and were the two most senior people in the company; 3. LeMessurier was the CEO and had responsibility for the day-to-day operations of the MRI Group. Jackson was second in command and had a national role as the Sales and Marketing Manager. As the CEO and National Manager for Sales, respectively, it was within the direct control of each of LeMessurier and Jackson to cease receipt of hazardous waste at the property, including its transfer from other related entities. It was also within each of their control to arrange disposal of the hazardous waste, notwithstanding the associated cost; 4. from the time of Sircel's acquisition of MRIA in April 2020 until 30 December 2020, Jackson and LeMessurier were the only two directors and retained their senior positions at MRIA; 5. as at least November 2020 LeMessurier was still representing himself to third parties as a director of MRIA and as at February 2021, as the Manager of MRIA; and 6. as at least September 2020 Jackson was representing himself to third parties as the National Sales and Marketing Director of MRIA.
There is no doubt that Jackson and LeMessurier had control over the causes of the commission of the offences.

[26]

Conclusion on Objective Seriousness

A sentencing judge is not required to nominate a point on a scale when assessing the objective seriousness of an offence (DH v R [2022] NSWCCA 200 at [60]). Nevertheless, I find that the commission of the offences by both Jackson and LeMessurier were in the upper mid range of objective seriousness insofar as each offence was committed recklessly and without regard to public safety, and had the potential to cause environmental harm, including harm to human health.

[27]

Subjective Circumstances of Jackson and LeMessurier

[28]

Contrition and Remorse

Pursuant to s 21A(3)(i)(i)-(ii) 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),
In Waste Recycling Preston J suggested some of the ways by which an offender may demonstrate genuine contrition and remorse (at [204], [210], [212] and [214]), which I respectfully adopt and apply in the present proceedings.
In his affidavit, Jackson expressed his contrition as follows: 27 I have lost everything - my family, my wife, my life. I tried to do the right thing for the environment. I am remorseful for the events that has occurred. I had been ever hopeful that MRI that operated for 30 years could have worked its way out of the financial circumstances that lead to the short comings. 28 I feel for one reason or another I have served my pennants [sic] through the outcome of the last year 4 existence.
LeMessurier's expression of remorse stated that: 39 There was never any intention to pollute or contribute to pollution. We could have sourced other solutions for legacy waste issues but chose not to dispose of the waste in an inappropriate manner. 40 It was always our intention to dispose of product in ways that met all requirements set down by law and good environmental practice. 41 I acknowledge that I have contributed unintentionally to the creation of a downstream issues for others. For which I apologise unreservedly.
While I accept the affidavit evidence of Jackson and LeMessurier's contrition and remorse, I place limited weight on it for the following reasons (s 21A(3)(i) of the CSPA), especially in the case of Jackson.
Jackson has not demonstrated any real insight into the importance of complying with the licensing regime nor the consequences of his offending conduct, including the potential for environmental harm. His affidavit represents only the barest expression of contrition and remorse insofar as it deposes to the impact that his offending conduct has had on his personal circumstances. It does not address the consequences of his actions (Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 at [101]-[102]).

[29]

Early Pleas of Guilty

A guilty plea entered at the earliest available opportunity entitles a defendant to the full 25% discount for the utilitarian value of that plea (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]).
The EPA accepted that Jackson and LeMessurier were entitled to a discount on account of the utilitarian value of their guilty pleas, however, that such discount should be reduced because the pleas were entered after the matter had been listed for a two week hearing. Jackson and LeMessurier conceded that they were not entitled to the maximum discount of 25%. I agree. I therefore find that Jackson and LeMessurier are entitled to a 20% discount for the utilitarian value of their guilty pleas.

[30]

Assistance to the EPA

I accept that Jackson and LeMessurier provided assistance to the EPA in the prosecution of the offences (ss 21A(3)(m) and 23 of the CSPA), including by making admissions in voluntary interviews with the EPA and agreeing to facts in these proceedings (ACE Demolition at [94]-[96]).

[31]

Prior Convictions of Jackson and LeMessurier

Jackson and LeMessurier have no prior convictions for any environmental offences (s 21A(3)(e) of the CSPA).
On 2 March 2005 LeMessurier pleaded guilty to an offence contrary to s 27(2) of the Environment Protection Act 1970 (Vic) (now repealed) ("Victorian EP Act"), for being a licence holder who contravenes a condition of the licence ("the 2005 offence"). A $5,000 fine was imposed without conviction.
The EPA submitted that the Court could take into account LeMessurier's admission of guilt to the 2005 offence notwithstanding that no conviction was entered (Weininger v the Queen [2003] HCA 14; (2003) 212 CLR 629 at [32] per Gleeson CJ, McHugh, Gummow and Hayne JJ). LeMessurier submitted that without the context of his role in the commission of the offence and the circumstances of his offending, limited weight should be placed on the guilty plea.
To the extent that the EPA sought to rely upon the prior convictions of MRIA for environmental offences, the convictions of MRIA are not those of Jackson or LeMessurier and must be ignored.
I do, however, accept that LeMessurier's plea of guilty to the 2005 offence is a factor to be considered in assessing the seriousness of his present offending conduct, although only to a very limited extent due the lack of information available to the Court regarding the circumstances of that plea. That no conviction was recorded suggests that the offence was trivial in nature (s 21A(2)(d) of the CSPA).

[32]

The Good Character of Jackson and LeMessurier and the Likelihood That They Will Reoffend

Jackson did not provide the Court with any evidence of his good character, however, there is equally no evidence before the Court that Jackson is not of good character but for the commission of the offence. I therefore make no finding in relation to this factor in respect of Jackson (s 21A(3)(f) of the CSPA).
In his affidavit, LeMessurier described MRIA's achievements in, and his roles on various boards and committees, the recycling industry: 32 MRI took the recycling concept to the mobile industry in the late 1990's and established Mobile Muster which at the time was a world first. 33 MRI as founding processor of end-of-life material gained positive publicity and kudos from and for the electronics industry. 34 MRI (with myself as representative) was a founding member of the Australian Battery Recycling Initiative (ABRI). ABRI was established around 2010 to promote battery recycling in Australia. I was on the board of ABRI up to 2020 and was treasurer for some of this period. 35 MRI was a member of the Australian Council of Recyclers (ACOR) for approximately 5 years up until 2010, and I was on the Board for approximately three years as treasurer during that period. ACOR is the peak body for recyclers in Australia, formulating many policies and standards around recycling. 36 Around 2007, I was appointed to an advisory committee on recycling by the Federal government headed by then CEO of Veolia. 37 In approximately 2005, MRI participated in a trial program on CRT and Television recycling headed by the Consumer Electronics Suppliers Association. The trial involved the collection and development of recycling methods for CRT and other visual display units. The trial was funded by a grant from the Commonwealth Department of Environment. 38 MRI was appointed as the recycler and coordinator of the trial funded by the Commonwealth Department of Environment awarded to ABRI for the takeback of power tools batteries. The trial was conducted in Toowoomba, Queensland.
However, this evidence largely deposes to MRIA's good character, not that of LeMessurier. I therefore make no finding as to LeMessurier's good character (s 21A(3)(f) of the CSPA).
In respect of the likelihood of their reoffending, Jackson and LeMessurier each submitted that they were unlikely to commit the same offence again because, while they are both involved as consultants in the recycling industry, neither earned significant renumeration from these roles and they do not have the means to establish a large waste processing facility of the scale that they previously ran as directors of MRIA.

[33]

Deterrence, Denunciation and Retribution

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).
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]). I respectfully adopt and apply those principles here.
I accept that embedded in the determination of the appropriate sentence to be imposed upon both Jackson and LeMessurier is an element of general deterrence, to ensure that operators in the waste industry comply with their licensing requirements.
In relation to specific deterrence (s 3A(b) of the CSPA), the EPA submitted that because Jackson and LeMessurier continue to operate in the waste industry, this justified the need for specific deterrence.
Jackson and LeMessurier said that there was no need for specific deterrence because their offending conduct was not deliberate, there was no pattern of pre-existing conduct, they are unlikely to reoffend, and because at the time of the commission of the offences they were endeavouring to process the waste for recycling and were well intentioned, although ultimately "naïve" in their business dealings and decisions.
I reject this submission. Jackson and LeMessurier continue to be involved in the waste industry. The penalty imposed upon them must serve to ensure any future waste related activities that they are engaged in are carried out with the requisite consents and licences.
Finally, the Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and making Jackson and LeMessurier accountable for their actions.

[34]

Consistency in Sentencing

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 offence may be different (Axer at 365).
The EPA provided to the Court a table of five comparative cases that it submitted were of assistance in ensuring even-handedness in sentencing: Environment Protection Authority v Wyong Shire Council [2012] NSWLEC 36; Environment Protection Authority v Gilder [2018] NSWLEC 119; Hughes; Environment Protection Authority v Rands [2019] NSWLEC 23; and Environment Protection Authority v Albiston [2020] NSWLEC 80.
I have had regard to these cases referred to by the parties, the most relevant of which, in my view, is Albiston. In that case the defendant, Shaun Albiston, pleaded guilty to an offence against s 144(1) of the POEOA in his capacity as director of a corporation which caused a place to be used as a waste facility without lawful authority. The 2,312 tonnes of waste material included lead-acid battery polyethylene, empty paint containers and other plastic.
In respect of objective seriousness, the Court found that there was low potential for environmental harm (at [94]-[95]); the harm was reasonably foreseeable (at [122]); Albiston had control over the causes of the commission of the offence (at [123]); there were practical measures to avoid the harm caused (at [126]); and that Albiston was reckless in the commission of the offence (at [109]). In addition, the Court accepted that Albiston's reason for committing the offence was in part due to his desire to recycle the waste, but that he was also motivated by financial gain (at [118]). In relation to subjective factors, the Court found that Albiston had no prior convictions (at [137]), cooperated with the EPA, and was of good character and unlikely to reoffend (at [155] and [159]), however, the Court placed limited weight on his expression of contrition (at [147]). That the offence could have been prosecuted in the Local Court was also a mitigating factor (at [160]).
The Court applied a 25% discount for the utilitarian value of Albiston's early guilty plea and imposed a monetary penalty of $22,500 to be paid to the Environmental Trust. It also ordered Albiston to pay the EPA's professional and investigation costs.

[35]

Publication Order

The EPA sought an order pursuant to s 250(1)(a) of the POEOA, that Jackson and LeMessurier jointly publish a notice in the terms set out at annexures to this judgment. Jackson and LeMessurier did not oppose the making of such orders.
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 (Bartter at [105] and Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [76]). Jackson and LeMessurier's offending conduct was reckless and occasioned potential environmental harm. They will each continue to operate in the waste industry. These factors weigh heavily in favour of making individual publication orders in the terms set out at Annexure A and B to this judgment, that is, separate notices for the separate offences that each has committed.
Because the offences were committed in NSW, it is appropriate that the notices are published in publications most likely to be read by people residing in this State. For this reason, and conscious of the expense involved in making such an order (see below), the Court declines to order that a notice be published in The Age.
In making the orders, the Court notes that Jackson and LeMessurier's consent to this course is evidence of contrition (Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9; (2022) 251 LGERA 28 at [69]).

[36]

Moiety

The EPA seeks an order under s 122(2) of the Fines Act 1996 for half of any monetary penalty imposed on Jackson and LeMessurier to be paid to it. Having regard to all of the circumstances of the case, I find that it is appropriate to make such an order. There was no opposition to the making of such an order.

[37]

Capacity to Pay a Fine

Section 6 of the Fines Act 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.
Section 6 of the Fines Act places the onus upon each of Jackson and LeMessurier to prove that they are unable to pay any monetary penalty imposed by the Court. To discharge this onus they must provide financial information to the Court which is reasonably and practically available to them demonstrating that they are impecunious (Albiston at [183]-[184]).
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].
Jackson and LeMessurier submitted that they have limited financial means and that the Court should accept that they have limited capacity to pay a significant fine. They also noted that their payment of the EPA's costs will impact on their ability to pay a fine (s 6 of the Fines Act and Rahme v R (1989) 43 A Crim R 81 at 87 and Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [95]-[96]).

[38]

Costs

The EPA sought an order for its professional costs as agreed or assessed under s 257B of the Criminal Procedure Act 1986. It also sought an order pursuant to s 248 of the POEOA that Jackson and LeMessurier pay its investigation costs fixed in the sum of $28,798. Jackson and LeMessurier agreed to the payment of these costs orders.
The EPA suggested that the investigation costs order be made so that Jackson and LeMessurier each pay 50% of its investigation costs. I agree.
In the exercise of the Court's sentencing discretion, I have taken into account the costs payable by Jackson and LeMessurier in determining the appropriate sentence to be imposed upon each of them (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]).

[39]

Appropriate Sentence

Having regard to the objective seriousness of the offences and the mitigating subjective factors of Jackson and LeMessurier, together with the penalties imposed in the relevant comparable cases, I find that the imposition of a monetary penalty is warranted for each offender's commission of each offence as follows: 1. $50,000 in respect of Jackson; and 2. $50,000 in respect of LeMessurier.
After the application of the 20% discount for the utilitarian value of the early guilty pleas, the penalty for the commission of each offence is reduced to: 1. $40,000 in respect of Jackson; and 2. $40,000 in respect of LeMessurier.
But for the financial position of each of Jackson and LeMessurier, these penalties would have been higher.

[40]

Orders

In conformity with the reasons given above, the Court makes the following orders: In proceedings 2023/308481 1. the defendant is convicted of the offence contrary to s 144(1) of the Protection of the Environment Operations Act 1997 as charged; 2. the defendant is to pay a monetary penalty in the sum of $40,000; 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 248 of the Protection of the Environment Operations Act 1997, the defendant is to pay 50% of the prosecutor's investigation costs fixed in the sum of $14,399; 5. pursuant to ss 257B and 257G of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor's professional costs as agreed or assessed; and 6. within 56 days of the date of this order and pursuant to s 250(1)(a) of 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 in the following publications: 1. Inside Waste; and 2. The Sydney Morning Herald. In proceedings 2023/308484 1. the defendant is convicted of the offence contrary to s 144(1) of the Protection of the Environment Operations Act 1997 as charged; 2. the defendant is to pay a monetary penalty in the sum of $40,000; 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 248 of the Protection of the Environment Operations Act 1997, the defendant is to pay 50% of the prosecutor's investigation costs fixed in the sum of $14,399; 5. pursuant to ss 257B and 257G of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor's professional costs as agreed or assessed; and 6. within 56 days of the date of this order and pursuant to s 250(1)(a) of Protection of the Environment Operations Act 1997, the defendant must, at his expense, cause a notice in the form of annexure B to these orders to be published in the following publications: 1. Inside Waste; and 2. The Sydney Morning Herald. In proceedings 2023/308482 and 2023/308483 1. the summonses are dismissed.

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Annexure A Bruce Jackson is convicted of and penalised for the commission of a hazardous waste offence at Warwick Farm Bruce Jackson was prosecuted by the Environment Protection Authority ("EPA") for one offence relating to his actions as the former directors of MRI (Aust) Pty Ltd for the unlawful storage of hazardous waste at a premises at Warwick Farm. Approximately 712 tonnes of waste material was stored at the site, including crushed cathode ray tube glass and waste batteries of various types including lead-acid, nickel-cadmium, lithium-ion, lithium-polymer, alkaline and nickel-metal hydride batteries. Jackson did not hold an environment protection licence permitting the storing of hazardous waste at the site. The storage of such hazardous waste carries an increased risk of fire due to the nature of the materials. Were a fire to break out, it could result in risk to human safety, risk to neighbouring properties, and risk to the environment. On 13 December 2024 the Land and Environment Court of NSW ("the LEC") convicted Jackson for an offence for use of a place as a waste facility without lawful authority and ordered him to pay a monetary penalty in the sum of $40,000, with 50% being paid to the EPA as a moiety, to pay the EPA's investigation costs in the amount of $14,399 and its professional costs as agreed or assessed, and to publish this notice. The LEC's judgment may be accessed at [insert URL for judgment on Caselaw NSW]. This notice was placed by order of the LEC.

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Annexure B William LeMessurier is convicted of and penalised for the commission of a hazardous waste offence at Warwick Farm William LeMessurier was prosecuted by the Environment Protection Authority ("EPA") for one offence relating to his actions as the former directors of MRI (Aust) Pty Ltd for the unlawful storage of hazardous waste at a premises at Warwick Farm. Approximately 712 tonnes of waste material was stored at the site, including crushed cathode ray tube glass and waste batteries of various types including lead-acid, nickel-cadmium, lithium-ion, lithium-polymer, alkaline and nickel-metal hydride batteries. LeMessurier did not hold an environment protection licence permitting the storing of hazardous waste at the site. The storage of such hazardous waste carries an increased risk of fire due to the nature of the materials. Were a fire to break out, it could result in risk to human safety, risk to neighbouring properties, and risk to the environment. On 13 December 2024 the Land and Environment Court of NSW ("the LEC") convicted LeMessurier for an offence for use of a place as a waste facility without lawful authority and ordered him to pay a monetary penalty in the sum of $40,000, with 50% being paid to the EPA as a moiety, to pay the EPA's investigation costs in the amount of $14,399 and its professional costs as agreed or assessed, and to publish this notice. The LEC's judgment may be accessed at [insert URL for judgment on Caselaw NSW]. This notice was placed by order of the LEC.

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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: 13 December 2024

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Judgment (43 paragraphs)

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Cases Cited (72)