Environment Protection Authority v Laison

Land and Environment Court (NSW)|2017-11-09|Before: Sheahan J, Smart J, Mr P

Solicitors: Environment Protection Authority (Prosecutor) V L Macri Lawyers Pty Limited (Defendant) File Number(s): 2016/358581

The Facts

The parties usefully agreed upon a statement of facts ("SOAF"), which the Prosecutor tendered at the hearing on 19 October 2017 (Exhibit P1), and upon which I have drawn heavily in preparing the following summary of relevant facts.

The Defendant

In respect of the Defendant, the SOAF said (in pars 1, 2 and 15): 1. At the time of the offence, Laison Earthmoving & Plant Hire Pty Limited (ACN 109 900 110) (LEP) was an earthmoving and waste transport company operating in the Kemps Creek area. 2. The Defendant has at all relevant times been the sole director, secretary and shareholder of LEP. The Defendant manages the earthmoving and waste transport operations of the company and also drives trucks transporting waste for LEP. ... 15. Laison Plant Hire & Haulage (ABN 93 909 875 441) (Laison Plant Hire) is an Australian Business Name registered to the Defendant.
He is now aged 37, married and self-employed, with his wife and five children under 13 dependent upon him (Tp19, L24, and p20, LL25-27).
It is agreed that he has a relevant record, which is noted in the SOAF (at pars 34 and 35) in these terms: 34. In June 2009, the Defendant was convicted of an offence under s 145(1) of the POEO Act for depositing litter in a public place and an offence under cl 291 of the Road Rules 2014 for start/drive a vehicle causing unnecessary noise/smoke. 35. On 2 June 2015, the Defendant was convicted in the Land and Environment Court of an offence under s 143 of the POEO Act for causing waste to be transported to a place that could not lawfully be used as a waste facility for that waste: Environment Protection Authority v Laison [2015] NSWLEC 89. The offence involved causing the transport of approximately 3,649 tonnes of asbestos waste from the Shell Clyde Refinery at Rosehill to an unlicensed property at Mangrove Mountain. The Defendant was fined $63,000 and ordered to pay the EPA's costs of $40,000.
It is necessary to place that June 2015 conviction in a chronological context.
The circumstances of that offence occurred in March/April 2011; he was charged in 2014; and the matter was heard in May 2015; whereas the present offence occurred in October 2012; it came to notice in December 2013; and the charge was not laid until 30 November 2016.
While the offender's record is relevant in his sentencing, I do not consider that 2015 conviction to be an aggravating factor (see Prosecutor's subs par 68 in this respect).
Defence counsel tendered two character references (Exhibit L1), provided by people who appear not to have known the Defendant during the charge period.
Thomas Neil Cooper, who has known Mr Laison for 4 years, provided a statement dated 8 November 2017, in which he described the Defendant's contrition and remorse, stating that the Defendant is "still embarrassed", and had expressed "that he accepts full responsibility for what he has done and the punishment the Court may see fit [to] impose upon him". Mr Cooper concluded his reference with a statement that the Defendant told him "that this will never happen again".
The second reference, also dated 8 November 2017, was given by Rebecca Birchall, who has known Mr Laison and his family for a period of 3 years. She attested to his kindness and generosity.
In respect of the Defendant's state of mind at the time of the offence, the SOAF states (at pars 24 and 25): 24. The Defendant knew that the Martin Road property was not a waste facility lawfully authorised to receive the waste from the York St site and he knew that the waste was not deposited at the Landfill. 25. The Defendant provided the Bulk Civil dockets to Mr Lustri, knowing them to be false, in order for the Defendant to mislead those involved in the works at the York Street site into believing that he had lawfully disposed of the waste and in order to be paid for the job.
In respect of other matters relevant on sentencing, the SOAF records (at pars 31-33): 31. On 16 May 2016, a notice to provide information and records was issued to LEP, to the attention of the Defendant, under s 191 of the POEO Act. The notice requested information and documents, including in relation to the investigation that led to these proceedings. LEP did not provide the EPA with a response to the notice. 32. The Defendant did not cooperate with the EPA's investigation. 33. The Defendant continues to operate in the waste transport industry.
In respect of his means, there is no evidence before the Court, but his counsel says that they are "limited", and that he will need to pay any Court imposed penalty and costs by instalments (Tp20, LL28-31).

The Offence

In respect of the present charge, the SOAF stated as follows (pars 3 to 14): Summary of the offence 3. Between about 29 October 2012 and 29 November 2012, the Defendant provided to Mr Gesu Lustri, director of AAA Aquaflo Plumbing Solutions Pty Ltd trading as Bulk Civil (Bulk Civil), two documents purporting to be weighbridge dockets issued to "Bulk Civil Pty Ltd" by SITA Australia Pty Ltd (SITA). These dockets record the purported disposal of "General building waste" at the Elizabeth Drive Landfill Facility, located at 1725 Elizabeth Drive, Kemps Creek NSW 2178 (the Landfill) on 29 October 2012 (the Bulk Civil dockets). 4. The Bulk Civil dockets were false in that they were not genuine weighbridge dockets and were not issued by SITA. 5. The Defendant provided the Bulk Civil dockets to Mr Lustri in the course of the Defendant having been subcontracted by Mr Lustri on behalf of Bulk Civil to dispose of waste from a site at 33 York Street, Sydney (the York Street site) on or about 28 October 2012. Transport of waste carried out by the Defendant 6. Bulk Civil was engaged by CBD Asset Management on behalf of The Owners Corporation of SP 68608 (the Owners Corporation) to dispose of waste from the York Street site. CBD Asset Management was the building manager for the Owners Corporation. 7. On or about Sunday 28 October 2012, Mr Lustri spoke to the Defendant by telephone and asked the Defendant to help Mr Lustri transport the waste that was being removed from the York Street site. 8. On or about 28 October 2012, the Defendant drove a truck with NSW registration KWT408 to the York Street site. Mr Lustri was at the York Street site with a truck with NSW registration SIK550. Both trucks were loaded with waste from the York St site. 9. Neither the Defendant nor Mr Lustri transported the waste to the Landfill on that day. 10. On either the Sunday 28 October 2012 or Monday 29 October 2012, the Defendant drove his truck to the property at Lot 120, Martin Road, Badgerys Creek (the Martin Road property), down a driveway and unloaded the waste from his truck at the back of the property. 11. About a week or two later, the Defendant and Mr Lustri had a conversation in relation to the provision of weighbridge dockets from Mr Laison to Mr Lustri, in order for both of them to be paid for the York St job. The Defendant's provision of false and misleading information to Mr Lustri 12. Between about 29 October 2012 and 29 November 2012, the Defendant provided the two Bulk Civil dockets to Mr Lustri. 13. The Bulk Civil dockets falsely purport to be weighbridge dockets recording the disposal of "General Building Waste" at the cost of $250 per tonne at the Landfill on 29 October 2012. A copy of the Bulk Civil dockets numbered 30275927-ED and 30275926-ED are at Annexure A. 14. The Defendant also completed a corresponding Laison Plant Hire & Haulage "truck docket" number 1222 with the details of the York Street site job…
In respect of Mr Lustri's dealings with the false dockets provided by the Defendant, the SOAF records (pars 16 to 18): 16. Bulk Civil invoiced CBD Asset Management for the York Street site job as follows: a. By invoice number 523 dated 29 October 2012, Bulk Civil invoiced CBD Asset Management for its hourly fees for the job, totalling $770. b. By invoice number 549 dated 29 November 2012, Bulk Civil invoiced CBD Asset Management for the alleged tip fees of $6,154.00, annexing the corresponding false weighbridge docket showing tip fees of that amount (Ticket number 30275927-ED). c. By invoice number 550 dated 29 November 2012, Bulk Civil invoiced CBD Asset Management for the alleged tip fees of $7,174.75, annexing the corresponding false weighbridge docket showing tip fees of that amount (Ticket number 30275926-ED). 17. In December 2012, Strata Plus Pty Ltd (Strata Plus) on behalf of the Owners Corporation, paid to Bulk Civil the amounts payable for the invoices. 18. Mr Lustri paid the Defendant for the transport of waste from the York Street site.
In respect of the falsity of the Bulk Civil dockets, the SOAF further records (par 23): 23. The Bulk Civil dockets that the Defendant supplied to Mr Lustri are false in that they: a. are not genuine weighbridge dockets; b. were not issued by SITA; c. contain a false docket number; d. represent that particular loads of waste were disposed of at the Landfill at the times and dates shown, when in fact they were not; and e. represent that particular sums of money were paid or were payable to SITA, when in fact no contract for the payment of any such monies existed.

The Investigation

In the course of its investigation, the EPA executed a search warrant at the Defendant's premises (SOAF 19 to 22): 19. From 2011 to 2013, the EPA carried out an investigation into suspected waste offences committed by the Defendant and Julian Ashmore and their respective companies, LEP and Eco Civil and Demolitions Pty Ltd, for unlawfully transporting asbestos waste from a Shell Refinery to an unlicensed property at Mangrove Mountain. 20. As part of that investigation, on 4 December 2013 the EPA executed a search warrant at 90 Floribunda Road, Kemps Creek NSW 2178, being the Defendant's residential premises and LEP's principal place of business. 21. In the course of executing the search warrant EPA officers discovered a number of documents which appeared on their face to be falsified SITA weighbridge dockets for the purported disposal of waste at the Landfill. It was apparent to EPA officers that the SITA dockets had been falsified because they misspelt "Levy" as "Leavy". EPA officers seized the SITA dockets, which included the Bulk Civil dockets. 22. Other business records relating to the SITA dockets were also seized during the search warrant including, in relation to the Bulk Civil dockets, a Laison Plant Hire truck docket number 1222 (Annexure B).
On the issue of Environmental harm, the SOAF records (pars 26 to 30): 26. The Defendant and Mr Lustri together transported two truck loads of general building waste which, according to the Bulk Civil dockets weighed approximately 48.47 tonnes, from the York Street site to the Martin Road property. General building waste is required to be disposed of at a waste facility which is authorised to lawfully receive it. 27. Due to the provision of the false dockets and the failure of the Defendant to inform the EPA of where the waste the subject of those dockets was actually disposed of, the EPA is unable to carry out its regulatory functions to ensure that the waste was disposed of at a place lawfully able to accept the waste. 28. The contents and correct waste classification of the waste is unknown to the EPA. 29. The provision of false records about the disposal of waste significantly undermines the regulatory system and the objects of [POEO Act]. 30. The creation of false records about the disposal of waste also allowed Mr Lustri and/or the Defendant to be paid for tip fees that were not actually paid and avoided the payment of the waste levy which would have been payable to the EPA had the waste been disposed of at a facility which was lawfully authorised to receive it.

Sentencing Principles

Section 3A of the Crimes (Sentencing Procedure) Act 1999 (the "CSP Act") lists the following purposes of sentencing relevant to the present case: 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, ... (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.
In cases such as the present, both general and specific deterrence (s 3A(b)) are called for: Bentley v BGP Properties Pty Limited ("Bentley") (2006) 145 LGERA 234; [2006] NSWLEC 34, at [139]-[141]; Environment Protection Authority v Fernando and Another [2003] NSWLEC 281, at [21]; Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; [2006] NSWLEC 289, at [65]-[68].
Appropriate sentencing requires an "instinctive synthesis" of the relevant objective and subjective circumstances of the offending and the offender: Markarian v R (2005) 228 CLR 357; [2005] HCA 25; and Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.
In determining the objective seriousness of the offence, s 241(1) of the POEO Act requires the Court to take into account the following factors ("the s 241 factors"): 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant.

Objective circumstances

In Plath v Rawson ("Plath") (2009) 170 LGERA 253; [2009] NSWLEC 178, Preston ChJ set out (at [46]-[48]) various matters which may be taken into account when assessing the objective gravity or seriousness of an environmental offence. Although not an exhaustive list, these matters include:

The nature of the offence;
The maximum penalties for the offence;
The harm caused to the environment by commission of the offence;
The state of mind of the offender in committing the offence;
The offender's reasons for committing the offence;
The foreseeable risk of harm to the environment by commission of the offence;
The practical measures to avoid harm to the environment; and
The offender's control over the causes of harm to the environment.

Many authorities note that the objective gravity of the offence fixes both the upper and lower limits of proportionate punishment.
It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14. It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence: R v Dodd (1991) 57 A Crim R 349.

Nature of the offence

An important factor for consideration is the degree by which the Defendant's conduct offended against the objectives expressed in the relevant statute, which are widely known (see POEO Act s 3) - protection, restoration and enhancement of the environment, and the elimination of harmful waste.
Craig J said of the relevant statutory provision, in Environment Protection Authority v Aargus Pty Ltd; Kariotoglu; Kelly [2013] NSWLEC 19, at [54]: Section 144AA is an important provision which gives effect to these objectives. The need to be scrupulous in supplying accurate information about "waste" so that it is correctly categorised is necessary to ensure that pollution is prevented, and that harmful wastes can be eliminated. Moreover, the imposition of an offence for "false or misleading" information about waste is a mechanism designed to "strengthen the regulatory framework for environmental protection."
In Environment Protection Authority v Ashmore [2014] NSWLEC 136, Craig J noted (at [111]) that the breach of s 144AA alleged in that case "cannot be described as trivial", or as involving "inadvertent omission", but as involving "a deliberate act of dishonesty", not admitted as early as it could have been.
In the present case, the Prosecutor submitted (par 27) that: ... the offender's actions do not speak of a lack of diligence in supplying accurate information about waste, but rather of a deliberate intention to represent that waste had been disposed of lawfully when in fact it had not. It is submitted that the offender's calculated action in this regard significantly undermines the objectives and the functioning of the POEO Act.
The Defendant correctly acknowledged (subs par 21) that his "conduct goes towards undermining the administrative system for environment protection in that the Defendant gave to another person false and misleading weighbridge dockets which he knew or ought to have known may have been passed on as authentic documents."

The offender's state of mind

It is clear from the agreed facts (SOAF24 and 25) that the Defendant admits that he knew that he was falsifying documents, and that the Martin Road property was not an authorised facility for the acceptance of waste. He quite deliberately transported the waste to an unauthorised location, and falsified documents in order to claim otherwise.

The offender's reasons for committing the offence

The Prosecutor submits that the Defendant had a motivation for financial gain in committing the offence.
On the other hand, the Defendant claims that he did not commit the offence for financial gain, and that Mr Lustri received the benefit to be derived from the execution of false documents.
The Defendant may well have sought "to earn favour with Mr Lustri" (subs 23), but it would appear that his primary motivation was financial gain.
As recorded in SOAF30, Mr Lustri and/or the Defendant, as a result of the offence, were able "to be paid for tip fees that were not actually paid", and to avoid "the payment of the waste levy which would have been payable to the EPA had the waste been" lawfully disposed of at an authorised facility.

Extent of harm caused or likely to be caused to the environment by the commission of the offence (s 241(1)(a))

The Defendant claims that the material taken from the York Street site was recyclable, but presented no evidence to support that claim, submitting that the onus falls on the Prosecutor to prove the opposite. I reject that onus submission.
The contents and appropriate classification of the waste remains unknown.
The Defendant's claim that the waste was "recyclable" cannot be validated. Counsel for the respective parties disputed the recyclability of the waste transported. It was "general building waste", but its actual nature and the amount of any "processing" applied to it remain unknown. Some elements of it may have been recyclable.
Further, the Defendant's claims that recyclable waste is not required to be taken to landfill, and/or that it was fit for, and used as, driveway base, do not negate the fact that harm was, or was likely to be, caused to the environment by the commission of the offence: Bentley at [174]; Environment Protection Authority v Waste Recycling and Processing Corporation ("Waste") (2006) 148 LGERA 299; [2006] NSWLEC 419, at [146]-[147].
The legislative scheme for the transport, deposition and documentation of waste is in place in order to prevent pollution and consequential harm to the environment. An offence, such as the present charge, will always have the potential to cause harm to the environment due to the potential for that waste, whether it be recyclable or not, to impact on the area in which it is illegally deposited, whether it be a sensitive site or not.
Lloyd J adequately described the meaning of "likely to be caused to the environment" in Newcastle City Council v Pace Farm Egg Products [2002] NSWLEC 66 (at [44]) in these terms: In considering the harm likely to be caused to the environment, it is to be noted that the word "likely" in this context has been held to mean "a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance" (Mathews v Goulburn Wool Processors, NSWSC, Smart J, 6 November 1986, unreported) ...
In this case, there was a very real chance that the dumping of waste, even recyclable waste, at an unauthorised location, would cause harm to the environment.
I accept the Prosecutor's submission (par 42) that the actual harm caused by the Defendant's conduct cannot be adequately quantified.

Practical measures that may have been taken to prevent, control, abate or mitigate that harm (s 241(1)(b))

Clearly it was open to the Defendant not to do as Mr Lustri is said to have requested.

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 (s 241(1)(c))

Environmental harm and the undermining of the regulatory regime were both reasonably foreseeable, and the Defendant appears to have been indifferent to the consequences (subs par 45).

The extent to which the person who committed the offence had control over the causes that gave rise to the offence (s 241(1)(d))

The Defendant was clearly in "control" of the falsification of the dockets.

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

The Court accepts that the Defendant may have been complying with "orders" given by Mr Lustri, but he alone created, or caused the creation of, the offending dockets (subs par 47).

Section 241 generally

As Preston ChJ held in Waste, at [173]: The practical measures that could have been taken to prevent, control, abate or mitigate the environmental harm caused or likely to be caused to the environment by the commission of the offence is another relevant consideration. An offence is objectively more serious if the commission of the offence and the risk of harm occasioned by the commission of the offence, are foreseeable and there are practical measures that could be taken to prevent, control, abate or mitigate the occurrence of the offence or the harm, but those practical measures are not taken ...

Subjective factors

In Plath (at [140]), Preston ChJ set out the "favourable" factors relevant to an offender, which may be taken into account within the limits set by reference to the objective gravity of the offence. This also was not intended to be an exhaustive list, but included:

Lack of prior criminality;
Prior good character;
Plea of guilty to the offences;
Contrition and remorse; and
Assistance to authorities.

Section 21A of the CSP Act sets out various "aggravating, mitigating and other factors" involved in sentencing.
Aggravating factors possibly relevant in the present matter are the Defendant's record (s 21A(2)(d) - see [16] above), the substantial harm, loss or damage caused ((g)), possibly "organised criminal activity" ((n)) and financial gain ((o)).
Mitigating factors could be that the harm was "not substantial" (s 21A(3)(a)), that there was no "organised criminal activity" ((b)), duress ((d)), good character ((f)), unlikelihood of re-offending ((g)), good prospects of rehabilitation ((h)), remorse ((i)), plea of guilty ((k)) and assistance to authorities ((m)).
"Harm" is an element of the offence in this case, but the amount of actual harm is unclear, so it operates neither to aggravate, nor mitigate, the offending.
The nominated aggravating factor most relevant to this case is, therefore, financial motivation, while the most relevant mitigating factors are the Defendant's plea of guilty, remorse, and prospects of rehabilitation.
The Defendant is entitled to a substantial discount, but not the maximum 25%, on account of his reasonably early guilty plea, and to some discount for the remorse and good character evident from his dealings with the two referees, but there is no evidence of assistance to the Prosecutor.
I have concluded that a total discount of 20% is appropriate in all those circumstances, including 15% in respect of the plea.

Finding

Having synthesised the objective and subjective factors, as mandated by the High Court ([30] above), I reject the Defendant's submission (Tp18, L15) that his offending should be regarded as "lower scale". It is a serious example of the statutory offence, and the offending was "knowing and deliberate". I generally, but not entirely, agree with the Prosecutor's assessment, and conclude that it is "middle range" (see subs pars 16, 18 and 54).
In the end analysis, however, the sentence to be imposed in this case must contain substantial elements of both general and specific deterrence (s 3A(b)). While defence counsel conceded that general deterrence was called for, she stressed the offender's obedience to the law since these 2012 events. However, he remains in the industry, and needs to be deterred from further environmental offending.

Even-handedness

The Court is required to exercise even-handedness in dealing with offenders, relying on earlier decisions with similarities, whilst also recognising that each case turns on its own particular facts, objective and subjective.
Having examined in depth all the cases to which I was taken by either counsel (Prosecutor attachment 'A', and Defence pars 35-40), I have arrived at a penalty, before discount, of $50,000, being slightly below half of the applicable maximum penalty.

Conclusion

After discounting by 20%, the financial penalty - which I am content to order be paid to the Environmental Trust, as requested - will be $40,000, in addition to costs, as agreed.

Orders

The Orders of the Court will be: 1. The Defendant is convicted of the offence charged in the summons dated 30 November 2016. 2. In lieu of a fine, the Defendant is ordered, pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, to pay an amount of $40,000 to the Environmental Trust, established under the Environmental Trust Act 1998, to be used for general environmental purposes. 3. The Defendant is also ordered, pursuant to s 257B of the Criminal Procedure Act 1986, to pay the Prosecutor's costs, agreed in the sum of $45,000. 4. The Prosecutor's folder of authorities and the Defendant's references (Exhibit L1) are 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: 31 May 2018

(2006) 145 LGERA 234

(2006) 148 LGERA 278

(2006) 148 LGERA 299

(2009) 170 LGERA 253

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