Environment Protection Authority v Laison

Land and Environment Court (NSW)|2015-05-19|Before: Pain J, Mr P

Solicitors: Office of Environment and Heritage (Prosecutor) V L Macri Lawyers (Defendant) File Number(s): 50221 of 2014

Sentencing considerations

Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) states the purposes for which the Court may impose a sentence on the Defendant are: 1. to ensure that the offender has been adequately punished for the offence; 2. to prevent crime by deterring the offender and other persons from committing similar offences; 3. to protect the community from the offender; 4. to promote the rehabilitation of the offender; 5. to make the offender accountable for his or her actions; 6. to denounce the conduct of the offender; and 7. to recognise the harm done to the victim of crime and the community.
The Prosecutor submits that factors (a), (b), (e) and (f) are most relevant in this case.
The PEO Act also provides statutory considerations for assessing the level of objective seriousness of the offences under that Act being the factors in s 241(1).
Of the additional circumstances the Court held in Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163] to be relevant in determining the objective gravity or seriousness, the following have particular relevance to this case: … the state of mind of the offender in committing the offence; … the reasons for commission of the offence.

Maximum Penalty

The maximum statutory penalty is of considerable significance in determining the objective seriousness of the offence: Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [57]. It demonstrates the seriousness with which these offences are viewed: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. At the time of the offences, the maximum penalty for an offence in contravention of s 143(1) of the PEO Act was $1 million for a corporation, and $250,000 for an individual.

Statutory considerations - section 241(1) of the PEO Act

The statutory scheme and its objects are relevant to sentencing. In particular the PEO Act identifies matters to be considered in imposing a penalty in s 241(1). Other matters a court considers relevant can be considered under subsection (2).

(a) Harm caused or likely to be caused to the environment by the commission of the offence - s 241(1)(a) of the PEO Act

The Prosecutor's submissions on the harm caused or likely to be caused can be accepted and are set out below. The phrase "harm to the environment" is defined in the PEO Act to include: 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.
With respect to potential harm, Preston J in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145] stated: Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 (6 February 2006) at [175]…
A significant amount of fill was deposited at the Mangrove Mountain premises before and after the commission of the offence. As a consequence, the Prosecutor has not been able to establish with any precision where the waste from the Rosehill site was physically deposited, beyond being applied to the quarry void and the dam wall at the property.
As set out in par 29-35 of the SOAF, the Prosecutor engaged two experts, Mr Ly and Ms Langdon, to advise on the environmental harm caused by the asbestos and non-asbestos waste. These experts have not been able to determine the extent of any actual harm caused, or likely to be caused in the future, to the environment by the incident without knowing additional information, including the location and concentrations of the waste from the Rosehill site that was deposited at the Mangrove Mountain premises.
The Prosecutor submits that the potential or risk of harm should be taken into account when determining the objective seriousness of the case. Mr Ly's expert report sets out the harmful effects of asbestos to human health at par at par 30-31 as follows: 30 The Asbestos Code of Practice provides specific guidance on the nature of harm that asbestos causes to humans. It states that the inhalation of asbestos fibres is known to cause mesothelioma, lung cancer and asbestosis (the Asbestos Code of Practice, page 15). A sufficient amount of time is needed to lapse from the time a person is exposed to asbestos to the development of health effects. This is known as the latency period. The latency period for the abovementioned health effects range between 15 and 40 years. (the Asbestos Code of Practice, page 15) 31 As mentioned in paragraph 26, all forms of asbestos are carcinogenic to humans. Asbestos is considered to exhibit non-threshold toxicity. This means there is no dose below which no adverse effect will occur. In theory, any level of exposure could result in a response. Genotoxic carcinogens comprise this group. (the NEPM Guideline (B4), page 33).
In relation to the extent of any harm that could potentially have been caused to the environment by depositing the asbestos waste, it is Mr Ly's expert opinion that: 1. There is a potential for harm to human health if proper work procedures were not in place during the depositing and subsequent disturbance of the asbestos waste at the property. Harm to people exposed to the airborne asbestos fibres may have resulted (par 52). 2. If the asbestos waste on the property exceeds the relevant National Environment Protection Measure (NEPM) health screening for asbestos in soil, and if the asbestos waste was deposited on or near the ground surface with less than half a metre of uncontaminated cover material, harm could potentially have been caused to humans by the incident (par 54).
However, Mr Ly has stated that it is not possible to determine the extent of the harm without further information such as soil concentration levels, asbestos air monitoring data and the extent of contamination (par 53).
At least two of the employed or contracted truck drivers came in contact with the asbestos waste from the Rosehill site at a time when they were not wearing any personal protective equipment or breathing apparatus (par 18, SOAF). The Defendant submitted there was no evidence this resulted from his actions.
It is Ms Langdon's expert opinion that the extent of any harm that could potentially be caused by the non-asbestos waste being deposited on the property was considered in most cases to be low to very low. There was some indication that concentrations of carcinogenic polycyclic aromatic hydrocarbons in areas of the material may exceed human investigations and levels and that concentrations of benzo(a)pyrene and heavy meals may also exceed ecological investigation levels. However, without knowing the location of the waste it is not possible to determine the potential for harm (par 71-75).
The Defendant's counsel submitted that while it could be accepted there was potential for environmental harm no actual harm was shown to be caused.

(b) The practical measures which may have been taken to prevent, control, abate or mitigate that harm - s 241(1)(b) of the PEO Act

The Prosecutor submitted, and I accept, that there were simple practical measures that the Defendant could have taken to prevent, control or mitigate the harm was to ensure that: 1. the waste was transported to a lawful facility; and 2. that those who transported it wore suitable protective equipment and/or were instructed not to leave their vehicles and to keep the windows up with only internal air conditioning on.

Foreseeability of the harm caused or likely to have been caused to the environment - s 241(1)(c) of the PEO Act

It is plainly foreseeable that by depositing asbestos in the environment, particularly to fix a dam that feeds into a watercourse it has the potential to cause harm.

(d) Control over the causes giving rise to the offence - s 241(1)(d) of the PEO Act

The Defendant had primary control over the causes giving rise to the offences.

(e) Whether, in committing the offence, the person was complying with orders from an employer or supervising employee - s 241(1)(e) of the PEO Act

The Defendant was not an employee.

The Defendant's state of mind/motive

The Defendant's state of mind at the time of the offence is relevant to determining the objective seriousness of the offence in this sentencing context. An offence committed deliberately will be regarded as objectively more serious than one where the offence resulted from an accident Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189. The Defendant has not sought to rely on any evidence in the proceedings. The only facts before the Court are those admitted in the SOAF. An important issue at the sentencing hearing was whether the SOAF confirmed knowledge of the Defendant at the time of the offence that the waste he caused to be transported contained asbestos. A statement so stating explicitly is not in the SOAF.
The Prosecutor submits that the offence was carried out deliberately for financial gain. The Defendant was in business with Eco Civil & Demolitions Pty Ltd (Eco Civil), then Mr Ashmore's company. The Prosecutor submits that the reference to waste in par 7 together with the classification of that waste at par 9 as "general solid waste to be managed as asbestos waste", par 14 referring to the reports by Coffey Environments Australia Pty Ltd (Coffey) sent to the Defendant's email address eight days before the transportation of waste commenced and, at par 16 and 17, that the Defendant was present at the premises and would have seen workers in Hazchem suits and external hygienist with air monitor gave rise to the inference beyond reasonable doubt that the Defendant was aware the waste contained asbestos. The contract by which Eco Civil was awarded the right to excavate, collect and transport the waste was valued at $409,086 plus GST (par 11). It is estimated that through the Defendant's conduct $256,534.54 in unpaid waste levies was saved (par 28). The Defendant and Mr Zizza continued their business relationship regarding the use of the property up until September 2011 (par 5).
The Defendant's actions were reckless, not deliberate carried out with knowledge the waste contained asbestos according to his counsel. CLM Infrastructure Pty Ltd (CLM) contracted with Eco Civil of which Mr Ashmore was then sole director. The Defendant was not a party to the contract. The Defendant disputed that the SOAF gave rise to an inference beyond reasonable doubt that he was aware that the waste contained asbestos. There is no evidence he read the emails sent with the Coffey reports attached describing the waste to be removed from the premises under the contract with CLM. That he saw workers in Hazchem suits does not give rise to the only rational conclusion that there was asbestos material in the waste.
As the Defendant's counsel submitted there is no admitted fact in the SOAF that the Defendant received any of the benefit of the waste levies avoided. While it can be inferred that the Defendant paid the trucking companies he engaged there is no evidence that he made a profit. The Defendant's actions contributed to the saving in waste levies (par 28, SOAF) but there is no evidence he received any of that saving.

Offence committed deliberately with knowledge of asbestos waste

The Defendant was directly responsible for causing the transportation of the waste the subject of the charge in that he provided the instructions for pick up, transportation and disposal of the waste (par 19). The Defendant has pleaded guilty on the basis of formally admitted facts in the SOAF (Gas v the Queen [2004] HCA 22; (2004) 217 CLR 198 at [30]). The context for the reference to waste in the SOAF is the waste identified in par 9 which classifies "the waste" as "general solid waste to be managed as asbestos waste". The reference to "the waste" throughout the SOAF is informed by that paragraph. Paragraph 9 is an admitted fact as is par 7 which refers to the collection of waste. Together with the other matters in the SOAF relied on by the Prosecutor, the Prosecutor therefore establishes that the Defendant deliberately caused waste he knew contained asbestos to be used as fill on Mr Zizza's property. That is the only rational conclusion available on the admitted facts (Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573).

Financial benefit was a motive

Carrying out an offence for financial gain is an aggravating factor under s 21A(2)(o) of the CSP Act. The Defendant's counsel submits correctly that there is no evidence based on the SOAF that the Defendant obtained any financial benefit from the waste levies saved. I infer however as it is a conclusion that can be drawn beyond reasonable doubt that the Defendant acted with expectation of a financial benefit in deliberately diverting waste containing asbestos from the site to Mr Zizza's property. That the precise amount of that financial benefit is unknown or whether the benefit was in fact received does not mean that no conclusion can be drawn by inference that that was wholly or partly the Defendant's motive for the offence. The Defendant admitted that he was engaged in business with the co-defendant Mr Ashmore and together they were engaged in the activities giving rise to the offences for which Mr Ashmore's company received direct payment. Businesses are generally conducted for the purpose of obtaining an economic return. The parties continued their business relationship after the offence until 27 September 2011.

Objective seriousness of the offence

The offence is at the high end of the medium range of objective seriousness given that it was carried out deliberately for financial benefit by the Defendant with knowledge that the waste contained asbestos. The obvious practical measure which could have been taken to avoid the offence, namely delivery of the waste to a licensed facility, was completely within the Defendant's control. The Defendant could also have been involved in the implementation of measures for the protection of the people he contracted to transport the waste containing asbestos. There was potential for a substantial amount of waste containing asbestos to be disposed of unlawfully. There was and is potential for substantial harm given the nature of asbestos and the harm it can cause in the environment including to human health according to the evidence of Mr Ly. That harm was foreseeable at the time of the offence. That the waste not containing asbestos was considered to pose a low to very low environmental risk by Ms Langdon does not dilute the seriousness of the offence from the perspective of environmental harm.

Subjective circumstances

None of the factors relevant to mitigation in s 21A(3) has been relied on by the Defendant other than his plea of guilty on the first day of the hearing (12 November 2014) set down on the basis he would plead not guilty. His counsel submitted this warranted a 10% reduction in penalty.

Deterrence

An important sentencing principle is general deterrence and specific deterrence where warranted. Sentences imposed in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer Pty Ltd v Environmental Planning Authority (1993) 113 LGERA 357 per Badgery-Parker J at 367. In Axer, Mahoney J stated at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur.
General deterrence is important in this case as unlawful dumping of asbestos waste is an ongoing problem in NSW. Specific deterrence is relevant to this Defendant as he continues in the business of transporting fill material as he did to Mr Zizza's property for several months after the offences.

Parity principle

The parity principle of sentencing is that like offenders should be sentenced in a like manner to avoid a justifiable sense of grievance, see Judicial Commission of NSW, Sentencing Bench Book (as at April 2015) at [10-800] and [10-805]. In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 French CJ, Crennan and Kiefel JJ stated at [32] and [33] (footnotes omitted): 32 A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe , that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment. 33 There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J and less explicitly but to like effect by Dawson J, with whom Wilson J agreed. It has also been answered in the affirmative in a number of cases in the Court of Criminal Appeal of New South Wales. On the other hand, as Simpson J correctly pointed out in R v Steele, the existence of a discretion, where unjustified disparity is shown, to reduce a co-offender's sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be, as Street CJ put it in R v Draper, "an affront to the proper administration of justice." …
The Defendant is a co-defendant with Mr Ashmore who has already been sentenced. Through circumstances beyond the control of the Court the preferred practice whereby co-defendants are sentenced by the same trial judge preferably at the same time has not occurred (Sentencing Bench Book [10-800]).
The Defendant's counsel submitted that his culpability is less or certainly no higher than Mr Ashmore's. The contract with CLM was with Eco Civil of which Mr Ashmore was then sole director. The Defendant was not a party to the contract. There is no evidence of financial gain such as a reduction in the payment of waste levies accruing to the Defendant. While it can be inferred that the Defendant paid the trucking companies he engaged there is no evidence that he made a profit. The Defendant's actions contributed to saving in waste levies but there is no evidence he was the beneficiary of any of that saving. I note that I found above in par 34 that the Defendant was motivated by obtaining an unspecified financial benefit. Mr Ashmore was also charged with an additional offence of providing fraudulent receipts under s 144AA(1) of the PEO Act to which he pleaded guilty. The Defendant was not charged with that offence, suggesting his culpability is less than Mr Ashmore's.
The application of the parity principle in this matter is not straightforward as different objective and subjective factors were identified in Mr Ashmore's sentencing hearing. In relation to objective seriousness, the principal elements of the offence under s 143(1) are common to both defendants and arise, at a general level, from the same factual circumstances. However the evidence heard in the sentencing proceedings for Mr Ashmore, Environment Protection Authority v Ashmore, was markedly different in relation to the state of mind of Mr Ashmore. Mr Ashmore gave evidence that he acted under duress resulting from the actions of the Defendant. This was accepted by the sentencing judge, with qualification given the financial benefits accruing from the offence, as a factor relevant to the Defendant's culpability at [94]. The sentencing judge determined at [60] that the offence was of moderate objective seriousness. I have concluded that this case is at the high end of the medium range of objective seriousness based on the SOAF in this matter. That Mr Ashmore was charged with an additional offence which this Defendant is not charged with does not alter my finding in this matter of the objective seriousness of the offence. I have found this offence to be objectively more serious than in Mr Ashmore's case.
In addition, the numerous subjective factors considered in relation to Mr Ashmore at [62]-[98] are absent in this case. Consequently, in determining how I should apply the parity principle I am not comparing like circumstance with like circumstance in terms of both objective and subjective factors relevant to sentencing.
The extract from Green above discusses the parity principle in the context of a criminal appeal. Marked and unjustified disparity (assuming that exists) may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences at [33]. Green at [33] also suggests that an appropriate penalty should not be clearly manifestly inadequate when applying the parity principle.

Antecedents

The Defendant swore a short affidavit which stated that he was married and had two young children and lived in rented accommodation. I understand he runs his own company.

Operation of the Fines Act 1996

I do not have much information concerning the Defendant's financial affairs so that I have very limited material to which I may have regard under s 6 of the Fines Act 1996 (NSW) (the Fines Act) in relation to the Defendant's capacity to pay a fine. Application can be made to the Registrar of the Court under s 10 of the Fines Act seeking time to pay any penalty imposed.

Appropriate penalty

The instinctive synthesis of objective and subjective factors are relevant to sentencing per Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [26] citing Makarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. This matter is at the high end of the medium range of objective seriousness as identified above and warrants a penalty in the range of $70,000-$140,000 to ensure adequate punishment of the Defendant and to denounce his conduct. Given the parity principle should operate to some extent I will apply the amount at the lowest end of this range of $70,000. I will reduce the penalty by 10% in light of the Defendant's plea of guilty to $63,000.

Costs

In accordance with orders made by Sheahan J on 12 November 2014, the Defendant has agreed to pay $40,000 towards the Prosecutor's costs by way of twelve equal monthly instalments of $3,333.33. I will so order.

Order

The Court makes the following orders: 1. The Defendant is convicted of the offence as charged. 2. The Defendant is fined $63,000 to be paid to the Registrar of the Court within 28 days of today's date. 3. The Defendant must pay $40,000 towards the Prosecutor's costs by way of twelve equal monthly instalments of $3,333.33 commencing 28 days after this judgment. 4. The exhibits are to be returned.

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: 03 June 2015

Environment Operations Act 1997(NSW)ss 143(1), 144AA, 241(1)

(1993) 113 LGERA 357

(2006) 145 LGERA 234

(2006) 148 LGERA 299

(2006) 145 LGERA 189

(2009) 170 LGERA 253

At a glance

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Judgment (23 paragraphs)

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Legislation Cited (3)

Cases Cited (20)

Cited By (7)