Environment Protection Authority v Mouawad

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Abboud [2005] NSWCCA 251 R v Dennison [2011] NSWCCA 114 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Newman (2004) 145 A Crim R 361; [2004] NSWCCA 102 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Reynolds [2004] NSWCCA 51 R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 1 Saddler v The Queen (2009) 194 A Crim R 452; [2009] NSWCCA 83 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Texts Cited: Judicial Commission of NSW, Sentencing Bench Book (as at August 2020) Category: Sentence Parties: Proceedings Nos 18/104770 and 18/104772 Environment Protection Authority (Prosecutor) Paul Mouawad (Defendant)

Proceedings Nos 18/104771 and 18/104773 Environment Protection Authority (Prosecutor) Aussie Earthmovers Pty Ltd (Defendant) Representation: COUNSEL:

Proceedings Nos 18/104770 and 18/104772 E Muston SC and J Caldwell (Prosecutor) P Lange and AJ Karim (Defendant)

Proceedings Nos 18/104771 and 18/104773 E Muston SC and J Caldwell (Prosecutor) N/A (Defendant)

Proceedings Nos 18/104770 and 18/104772 NSW Environment Protection Authority (Prosecutor) Karim Nicol Lawyers (Defendant)

Proceedings Nos 18/104771 and 18/104773 NSW Environment Protection Authority (Prosecutor) N/A (Defendant) File Number(s): 18/104770 and 18/104772, 18/104771 and 18/104773

Judgment

1. Paul Mouawad, also known as Boulos Isaac, is to be sentenced for two offences of knowingly supplying false and misleading information about waste contrary to s 144AA(2) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) in proceedings Nos 104770 and 104772 of 2018 (the Mouawad Proceedings). Mr Mouawad pleaded guilty to the two offences. A plea of guilty is taken to be an admission of the essential elements of an offence.
2. Aussie Earthmovers Pty Ltd (Aussie Earthmovers) is also to be sentenced for two offences of knowingly supplying false and misleading information about waste contrary to s 144AA(2) of the POEO Act in proceedings Nos 104771 of 2018 and 104773 of 2018 (the Aussie Earthmovers Proceedings) arising from the same circumstances. A hearing on liability resulted in findings of guilt for both charges in Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 2) [2020] NSWLEC 98 (Aussie Earthmovers No 2).

Protection of the Environment Operations Act 1997 (NSW)

1. Relevant sections of the POEO Act provide: Chapter 1 Preliminary … 3 Objects of Act The objects of this Act are as follows - (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, … (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following - (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, … (v) the monitoring and reporting of environmental quality on a regular basis, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection. Chapter 5 Environment protection offences … Part 5.6 Land pollution and waste … Division 3 Waste offences 143 Unlawful transporting or depositing of waste (1) Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported - (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence. Maximum penalty - (a) in the case of a corporation - $2,000,000 (if the offence involves asbestos waste) or $1,000,000, or (b) in the case of an individual - $500,000 (if the offence involves asbestos waste) or $250,000. … 144AA False or misleading information about waste (1) A person who supplies information about waste to another person in the course of dealing with the waste, being information that is false or misleading in a material respect, is guilty of an offence. It is a defence in any proceedings against a person for an offence under this subsection if the person establishes that the person took all reasonable steps to ensure that the information was not false or misleading in a material respect. Maximum penalty - (a) in the case of a corporation - $250,000, or (b) in the case of an individual - $120,000. Note. An offence under subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation - see section 169A. (2) A person who supplies information about waste to another person in the course of dealing with the waste, being information that the person knows is false or misleading in a material respect, is guilty of an offence. Maximum penalty - (a) in the case of a corporation - $500,000, or (b) in the case of an individual - $240,000 or imprisonment for 18 months, or both. (2A) If the court is satisfied that a person charged with an offence under subsection (2) is not guilty of that offence but is satisfied on the evidence that the person is guilty of an offence under subsection (1), the court may find the person guilty of the offence under subsection (1), and the person is liable to punishment accordingly. (2B) Proceedings for an offence under subsection (2) may not be dealt with before the Local Court despite section 215. (3) In this section, information is taken to be supplied to a person in the course of dealing with waste if it is supplied - (a) in the course of an activity relating to the sale or disposal of waste, or (b) in the course of an activity relating to the storage, transport, handling, deposit, transfer, processing, recycling, recovery, re-use or use of the waste. (4) In this section, information about waste means information about any of the following - (a) the type, classification, characteristics, composition or quantity of the waste, (b) the actual or proposed storage, transport, handling, deposit, transfer, disposal, processing, recycling, recovery, re-use or use of the waste, (c) the hazards or potential harm to the environment or human health associated with the waste or an activity referred to in paragraph (b). (5) In this section, information includes a record containing information. (5A) In this section, supply information includes cause or permit information to be supplied. (6) Proceedings for an offence against this section may be instituted only by the EPA. … Chapter 8 Criminal and other proceedings … Part 8.2 Proceedings for offences … Division 5 Sentencing 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.

Mouawad Proceedings

1. The parties agreed an amended statement of agreed facts (ASOAF) which facilitated the efficient conduct of these sentencing proceedings.

Amended statement of agreed facts in Mouawad Proceedings

1. The ASOAF (annexures omitted) stated as follows: The offences 1. Paul Mouawad, also known as Boulos Isaac (Mr Mouawad), has been charged with two offences against s 144AA(2) of the Protection of the Environment Operations Act 1997 (POEO Act): a. In matter 104770 of 2018, it is alleged that Mr Mouawad supplied information about waste - namely, a spreadsheet titled "WasteMan 2G Detailed Ticket List Report" purportedly created by Suez Recycling & Recovery Pty Ltd (Suez) about the purported disposal of approximately 84 truckloads of asbestos- contaminated soil - to employees of Peter O'Brien Constructions Pty Ltd (Peter O'Brien Constructions) in the course of dealing with the waste, being information that he knew was false or misleading in a material respect. b. In matter 104772 of 2018, it is alleged that Mr Mouawad supplied information about waste - namely, 29 documents purporting to be waste disposal dockets issued by Suez containing information in relation to the purported disposal of 29 truckloads of asbestos-contaminated soil at a landfill site operated by Suez - to employees of Peter O'Brien Constructions in the course of dealing with the waste, being information that he knew was false or misleading in a material respect. The defendant 2. At the time of the offences, Mr Mouawad was an employee of Aussie Earthmovers Pty Ltd (Aussie Earthmovers). Aussie Earthmovers is registered as a company under the Corporations Act 2001 (Cth). At the time of the offences, the sole director of Aussie Earthmovers was Mrs Amal Mouawad, Mr Mouawad's mother. The sole shareholder of Aussie Earthmovers is Ozzy Earthmovers Pty Ltd. The registered office of both Aussie Earthmovers and Ozzy Earthmovers Pty Ltd is located at SRS Business & Accounting Solutions, 517 Church Street, North Parramatta. 3. On 4 December 2017, Mr Mouawad formally changed his name with the NSW Registry of Births, Deaths and Marriages to Mr Boulos Isaac. The SITA Landfill 4. Suez operates a landfill site located at 1725 Elizabeth Drive, Kemps Creek. Suez is licensed to receive various types of waste at that landfill site, including asbestos waste. Suez was formerly registered as SITA Australia Pty Ltd (SITA) until the company name was changed on 24 December 2015. As a result, references to "SITA" are used interchangeably with "Suez" within this document. At the time of the offences, the landfill site was still referred to as the "SITA Landfill". As such, the landfill site at Elizabeth Drive, Kemps Creek is referred to below as the "SITA Landfill". The Darlington Premises 5. On or about 23 December 2015, a developer, Northwest 1 Pty Ltd (Northwest), engaged Peter O'Brien Constructions as the principal contractor to construct residential apartments at 293-297 Abercrombie Street, Darlington NSW (the Darlington Premises). The project involved the demolition of existing structures and the construction of 17 boutique apartments at the Darlington Premises. Included in the works were the demolition of the existing building, bulk excavation, detailed excavation, shoring and the removal and disposal of waste generated at the Darlington Premises. The following staff of Peter O'Brien Constructions were involved in managing the works at the Darlington Premises: a. Mr Stephen Rich, the Site Manager, who was responsible for running the building site, site safety, managing site subcontractors and liaising with the local council. b. Mr Lawrence Crestani, the Project Manager, who was responsible for overseeing the construction activities and building works and the activities of the Site Manager. c. Mr Desmond Powell, the Construction Manager, who was responsible for ensuring compliance with the contract with Northwest and the construction program and overseeing the activities of the Project Manager. 6. On or about 11 February 2016, Peter O'Brien Constructions entered into a subcontract with Aussie Earthmovers for demolition, piling, shoring and bulk excavation works at the Darlington Premises. The subcontract was to demolish the existing building, provide ground works (piers, shotcrete and capping beams) and to excavate and remove all material from site to design levels. A copy of the "Subcontract Agreement DAR-001" between Peter O'Brien Constructions and Aussie Earthmovers is at Annexure 1. Under the subcontract: a. Mr Mouawad was listed as the "Principal / Owner" of Aussie Earthmovers; b. Mr Mouawad was listed as the "Subcontractor's representative"; and c. Mr Rich was listed as the "Contractor's representative". 7. In his role as Site Manager, all of Mr Rich's dealings with Aussie Earthmovers under the subcontract were with Mr Mouawad. In his role as Project Manager, Mr Crestani dealt with Mr Mouawad on site, as Mr Mouawad was the person who made the decisions in relation to the demolition. Discovery of asbestos-contaminated waste at the Darlington Premises 8. In May 2016, a few weeks after demolition of the existing building had commenced, the ground slab was removed and possible asbestos was observed in the filling material under the slab. At the time, Mr Rich and Mr Mouawad alerted Mr Crestani, who subsequently alerted Northwest. Northwest subsequently engaged JBS&G Australia Pty Ltd (JBS&G) to conduct testing of the fill located at the Darlington Premises. A detailed site inspection was subsequently undertaken by JBS&G to determine the extent of contamination. 9. On 6 May 2016, Mr Mouawad sent Mr Rich an email attaching an Asbestos Removal Control Plan (the ARCP), setting out Aussie Earthmovers' proposal for the removal of waste from the Darlington Premises. A copy of the ARCP is at Annexure 2. The ARCP included the following statements: a. "All waste to be taken and disposed of at an EPA licensed Landfill"; b. "Tip dockets to be provided to Peter O'Brien Constructions"; and c. "Representative responsible for the preparation of the ARCP is Paul Mouawad. Consultation of all personnel to be implemented by Paul Mouawad Site manager for Aussie Earthmovers Pty Ltd and Stephen Rich site manager for Peter O'Brien Constructions". 10. On 10 May 2016, Mr Mouawad sent Mr Crestani an email stating that: "The cost for the removal of the soils containing asbestos is $180.00 per tonne + GST. The tip for the material is Sita" (referring to the SITA Landfill). 11. On 11 May 2016, Mr Mouawad sent Mr Rich an email advising him that Aussie Earthmovers could not proceed with the works any further "as over half the site contains a large quantity of asbestos within the fill material and on the existing surface". 12. On 23 May 2016, Mr Nathan Cussen, an Environmental Consultant at JBS&G, issued a waste classification report for the Darlington Premises, which concluded that: a. Approximately 10m3 of Hazardous Waste/Special (asbestos) (HW/S) was present at the Darlington Premises; and b. Approximately 400m3 of General Solid Waste (GSW)/Special (asbestos) was present at the Darlington Premises, comprising the top 0.5 metres of fill across the Darlington Premises. 13. On 26 May 2016, Mr Mouawad submitted a Notification of Asbestos Removal form (the Notification Form) to WorkCover NSW. The Notification Form indicated that up to 500m2 of asbestos-contaminated soil was proposed to be loaded onto trucks and disposed of at a landfill. The Notification Form listed Aussie Earthmovers as the licensed asbestos removalist and Mr Mouawad as the supervisor of the proposed works. 14. On 2 June 2016, Mr Crestani sent an email to Mr Mouawad setting out Peter O'Brien Constructions' proposal for the removal of the asbestos-contaminated material from the Darlington Premises. 15. On 2 June 2016, Mr Mouawad sent Mr Crestani an email with a counter offer in relation to the removal of the asbestos-contaminated material from the Darlington Premises. 16. On 2 June 2016, Mr Crestani sent Mr Mouawad an email confirming Peter O'Brien Constructions' agreement with Aussie Earthmovers to dispose of the asbestos- contaminated waste at the Darlington Premises. 17. On 2 June 2016, Mr Mouawad sent Mr Rich an email attaching a copy of a Safe Work Method Statement (SWMS) for the removal of asbestos-contaminated soil at the Darlington Premises. A copy of the SWMS is at Annexure 3. The SWMS included, inter alia: a. A statement that "All waste to be taken and disposed of at an EPA licensed landfill"; b. A statement that the "Representative responsible for the preparation of the SWMS is Paul Mouawad"; and c. A table identifying risks associated with removal of the asbestos-contaminated soil and the safety controls in place to minimise these risks. One of the risks identified in the table was "Waste could be disposed of at the wrong place". The safety control said to be in place to mitigate this risk was "Tipping dockets to be provided". 18. On 3 June 2016, Mr Crestani sent Mr Mouawad an email advising him that Aussie Earthmovers was required to comply with Development Application conditions that had been placed by the local council on the removal of asbestos. Under condition 45(f), it was a requirement that: "Asbestos to be disposed of must only be transported to waste facilities licensed to accept asbestos". The transport of asbestos-contaminated waste from the Darlington Premises 19. During June and July 2016, Mr Mouawad arranged for trucks to remove asbestos- contaminated waste from the Darlington Premises. The trucks used to remove asbestos-contaminated waste from the Darlington Premises were under contract to Mr Mouawad. During this period, Peter O'Brien Constructions employees created the following records in order to ensure that material from the Darlington Premises was disposed of at the SITA Landfill: a. Waste Tracking Forms: As each truck left the Darlington Premises, a "Waste Tracking Form" (containing details of the time the truck left the site, the type of material on the truck and where the material was to be taken) was given to each truck driver by a Peter O'Brien Constructions employee. On each occasion, the truck driver was told that the Waste Tracking Form was to be handed to the weighbridge at the SITA Landfill, where it had been agreed that the material would be disposed. b. Truck Run Sheets: Peter O'Brien Constructions employees also kept logs of what trucks attended the Darlington Premises and what they were leaving with on "Truck Run Sheets". The Truck Run Sheets were a daily record of the types and registration numbers of trucks on site, the times each truck left the site, the number of times each truck took loads from the site that day, the type of load (eg classification) on each truck and where the material on each truck was going to be tipped. The Truck Run Sheets were recorded to enable Peter O'Brien Constructions to cross check what left the site with what was disposed of at the SITA Landfill. A copy of the Truck Run Sheets prepared by Peter O'Brien Constructions employees for the Darlington Premises is at Annexure 4. The Truck Run Sheets indicate that between 3 June 2016 and 29 July 2016, a total of 134 truckloads of asbestos-contaminated waste was transported from the Darlington Premises by vehicles with the registration numbers BX88NU, CG33XH, CB87NU, CH61ZZ, CG41GA, CD69AW, CE03HI, CH24YS, CH45NL, CH08VZ, CB90WR, CH16HO, CH86PN and CG45ML. 20. Mr Mouawad engaged a company by the name of S A Civil (Aust) Pty Ltd (S A Civil), owned by Mr Sam Ali, to remove the material from the Darlington Premises. S A Civil was the registered owner of 3 of the vehicles that were used to transport and dispose of asbestos waste from the Darlington Premises. During the relevant period, S A Civil hired an additional 10 vehicles that were used to transport and dispose of asbestos- contaminated waste from the Darlington Premises, which were owned by different individuals and entities. 21. In total, 134 truckloads of asbestos-contaminated waste was transported and disposed of by S A Civil from the Darlington Premises between 3 June 2016 and 29 July 2016. Provision of Ticket List Report and waste disposal dockets by Mr Mouawad to Peter O'Brien Constructions 22. During the period 3 June 2016 to 29 July 2016 when asbestos-contaminated waste was being removed from the Darlington Premises, Peter O'Brien Constructions employees requested Mr Mouawad to provide waste disposal dockets from the SITA Landfill as proof that the asbestos-contaminated waste had been lawfully disposed of at that site. 23. On 3 June 2016, Mr Rich sent Mr Mouawad an email which stated: "Please have all EPA tickets for truck today and next week emailed to me by 12 tomorrow. So I can have copies on site". 24. On 3 June 2016, Mr Mouawad sent a text message to Mr Crestani stating that: "Lawrence, I need that $35k payment through today. I gave my word to the landfill and I can't stuff this up. We both need to use my account facility because there is in excess of $150k required over the next week and I don't have that amount to cover. Plus I'm not making any margin". 25. On 10 June 2016, Mr Mouawad sent a text message to Mr Crestani stating that: "By close of today my tip balance stands at $82,000.00 and there is at least another 350 tonne stockpiled for next week". 26. In about early-June 2016, Mr Mouawad advised Mr Crestani that he had reached his account limit with SITA of around $25,000. Peter O'Brien Constructions had originally paid Mr Mouawad the tip fees directly, however, after Mr Mouawad advised Mr Crestani that he had reached his account limit with SITA, Peter O'Brien Constructions considered paying SITA directly for the tip fees. 27. On 15 June 2016, Mr Mouawad sent a text message to Mr Crestani stating that: "Hey mate, the tip account is over my limit by $41,000.00 and needs to paid [sic] today otherwise I cannot tip tomorrow". 28. On 15 June 2016, Mr Mouawad sent an email to stating that "This email serves to authorize Peter O'Brien Constructions to pay Sita the sum of $41,000.00. Please email remittance to my email thank you. BSB 062301, Account: 1041 3790, Ref: AE Darlington". 29. On 15 June 2016, Mr Mouawad sent an email to attaching Invoice 0094 in the amount of $41,000 for tip fees relating to the disposal of asbestos-contaminated waste at the SITA Landfill. The email states that "Attached is our invoice for the tip fees which is to be deducted from our claim and paid on our behalf to Sita. Please email me the remittance thank you. The bank details as follows; BSB 062 301, Account 10413790" (the Bank Account). 30. On 15 June 2016, Mr Mouawad sent an email to attaching revised Invoice 0094 for tip fees relating to the disposal of asbestos- contaminated waste at the SITA Landfill. Invoice 0094 was amended by Mr Mouawad specifically to state that the invoice was for: "Progress claim for portion of Tip fees for disposal of GSW to be paid to Sita on behalf of Aussie Earthmovers". 31. On 20 June 2016 at 10:48am, Mr Mouawad sent an iMessage on his mobile phone to himself which stated: "Hi Paul Your total charges for GSW Asbestos to date are $149,978.40. We have received only one payment of $41,000.00. You will need to transfer another $58,978.40 tomorrow which will bring it down to $50,000.00 as discussed. Regards Margaret". 32. On 20 June 2016 at 12:06pm, Mr Mouawad sent a text message to Mr Crestani forwarding a message purportedly from "Margaret" at Suez. The text message stated: "Message received from tip Hi Paul Your total charges for GSW Asbestos to date are $149,978.40. We have received only one payment of $41,000.00. You will need to transfer another $58,978.40 tomorrow which will bring it down to $50,000.00 as discussed. Regards Margaret". 33. On 20 June 2016 at 1:04pm, Mr Mouawad sent an email to Mr Crestani attaching Invoice 0095 in the amount of $58,978.40 for tip fees relating to the disposal of asbestos-contaminated waste at the SITA Landfill. 34. On 21 June 2016 at 11:28am, Mr Mouawad sent a further email to Mr Crestani stating that: "For your information, I spoke to Steve regarding the tip fees yesterday morning as we discussing [sic] the activities moving forward. I then spoke to the tip and requested the running balance. One [sic] I received it, I spoke to you and sent you a message with the tonnages and the amount required to be paid. As soon as I got back to my office I also sent through email which based on the last payment proceeded to generate an invoice as requested by Leanne. I don't know how much more prompt you require bearing in mind all of this is happening on a daily basis. I have spoken to the tip and will have duplicate dockets tomorrow afternoon". 35. On 21 June 2016 at 12:36pm, Mr Crestani sent a text message to Mr Mouawad stating: "What is sita phone number and who do we talk to". Mr Mouawad then rang and said words to the following effect: "Contact Margaret, she is my account manager, just go through the switch here is the phone number…". After this conversation, Mr Crestani immediately rang the SITA Landfill on the number provided to him by Mr Mouawad and spoke with a person identified as "Margaret". Mr Crestani asked whether Aussie Earthmovers had an active account and she said words to the following effect: "Yes, we draw down from that account like a credit card". The person identified as "Margaret" provided Mr Crestani with details for a bank account said to be specific to Aussie Earthmovers, which Mr Crestani recorded. Mr Crestani provided those details to Ms Kable and approved the payment of Invoice 0095. Ms Kable's handwritten notes of the bank account details are recorded on a copy of Invoice 0095 retrieved from Ms Kable's original file as "062301 10413790". 36. On 21 June 2016 at 1:42pm, Mr Crestani sent an email to Ms Kable stating: "sita- contact is Margret [sic] at eastern creek". 37. At some point on 21 June 2016, Mr Mouawad attended the JRC International Pty Ltd shop in Kings Park, NSW and purchased an Epson TMT88V thermal printer with serial number MY7F701609 (the Epson Printer) and a box of 80mm x 80mm Calibor Thermal Plain Paper Rolls (the Calibor Thermal Rolls). 38. On 22 June 2016, Mr Mouawad sent an email to Mr Rich attaching a photo of Suez tipping docket ED310262725.0 for the disposal of one load of "Contaminated Asbestos Soil - 8032" at the SITA Landfill by vehicle registration CB87NU on 22 June 2016 (the Suez Tipping Docket). A copy of the email dated 22 June 2016 is at Annexure 5. 39. On 27 June 2016, Mr Mouawad sent Mr Crestani an email attaching Invoice No 0096 for tip fees to SITA for payment. Mr Crestani responded by email advising Mr Mouawad that: "As advised I need truck dockets / sita dockets for confirmation of loads before any invoice is processed". In a later email on that date, Mr Crestani advised Mr Mouawad that: "Again, no dockets no pay, I cant make it any more simple." Mr Crestani then sent a further email to Mr Mouawad advising that: "Please note the attached invoice will be rejected by cob today if required confirmation of loads and cost are not forwarded for appraisal". Mr Mouawad replied by email that "I will get a copy of the dockets emailed over to you later this afternoon". 40. On 27 June 2016, Mr Rupert Simpson, Weigh Bridge Administrator at SITA, was requested by Mr Mouawad to provide a copy of the Suez Tipping Docket. Mr Simpson subsequently sent an email to Mr Mouawad attaching an electronic copy of the Suez Tipping Docket (file name "Docket.pdf"), together with a spreadsheet titled "WasteMan 2G Detailed Ticket List Report" (file name "CB87NU 220616.xlsx"). These documents indicate that 1 load of "Contaminated Asbestos Soil - 8032" was disposed of at the SITA Landfill by vehicle registration CB87NU on 22 June 2016. A copy of the email dated 27 June 2016 is at Annexure 6. 41. On 29 June 2016, Mr Crestani sent an email to Mr Mouawad advising him that: "As advised no dockets no can pay". Mr Mouawad responded by email advising him that: "I have just come from the physiotherapist and will get the dockets to you this afternoon". 42. On 30 June 2016, Mr Mouawad sent an email to Mr Crestani forwarding an email purportedly from and attaching a spreadsheet titled "WasteMan 2G Detailed Ticket List Report" (file name "Detailed Ticket List Report for AE003- Darlington.pdf") (the Ticket List Report). The document indicated that between 3 June 2016 and 24 June 2016, a total of 84 loads of "Contaminated Asbestos Soil - 8032" were purportedly disposed of at the SITA Landfill. A copy of the email dated 30 June 2016 is at Annexure 7. 43. On 30 June 2016, Mr Crestani sent an email to Mr Mouawad advising him that: "Hi Paul, This is nice but I require and have asked for each individual docket, no more and no less. This is what our client has requested (each day from each driver). You advised that a copy of each would be forwarded. I await such detail". 44. On 30 June 2016, Mr Crestani sent a further email to Mr Mouawad advising him that: "I need up to 30.6.16, I can work with that up to now, but need dockets. I will arrange some pay". 45. On 30 June 2016, Mr Mouawad sent an email to Mr Crestani attaching Invoice 0097 in the amount of $69,974.69 for tip fees relating to the disposal of asbestos-contaminated waste at the SITA Landfill. 46. On 4 July 2016, Mr Mouawad sent an email to Mr Crestani and Ms Leanne Kable of Peter O'Brien Constructions advising that: "This email serves to confirm that I Paul Mouawad of Aussie Earthmovers Pty Ltd hereby authorize Simon Semaan Business Solutions to act on my behalf and Aussie Earthmovers Pty Ltd in the capacity of financial controller for outstanding invoices". 47. On 6 July 2016, Mr Simon Semaan, of SRS Business & Accounting Solutions, sent an email to Ms Kable requesting confirmation of the amount to be paid by Peter O'Brien Constructions. Later that day, Mr Crestani advised Mr Semaan that: "as advised to Paul, we have not received all waste disposal dockets to date, that is up to and inclusive 30/6/16. To assist any further early payment this is required immediately as contracted and agreed. (No Dockets no payment for any of the un-docketed loads)". 48. On 7 July 2016, Mr Mouawad sent an SMS message to Mr Semaan which stated: "Can u go to my place please and pick up the dockets Lawrance [sic] is requesting and scan and email them". 49. On 7 July 2016, Mr Semaan sent an email to Mr Crestani attaching scanned copies of 29 waste disposal dockets purportedly issued by SITA and dated 17 June 2016 to 24 June 2016 (the Waste Disposal Dockets). A copy of the email dated 7 July 2016 is at Annexure 8. 50. On 13 July 2016, Mr Rich sent an email to Mr Mouawad and Mr Crestani advising that three truckloads of material was removed on that day. 51. On 14 July 2016, Mr Crestani sent an email to Mr Semaan stating that no dockets had been received as yet for material removed on the previous day. 52. On 14 July 2016, Mr Semaan sent an email to Mr Crestani attaching the Ticket List Report previously sent to Mr Crestani by Mr Mouawad on 30 June 2016 (indicating that between 3 June 2016 and 24 June 2016, a total of 84 loads of "Contaminated Asbestos Soil - 8032" were purportedly disposed of at the SITA Landfill). 53. On 18 July 2016, Mr Crestani sent an email to Mr Mouawad and Mr Semaan stating that: "As requested and advised from day 1 and in accordance with EPA requirements. Again you have failed to comply with not only site instructions but with governing requirements. Please collect and forward by COB all truck run tip dockets (each individual docket). Failure to provide will result in both fines and termination of contract. This is a serious matter and to date the information provided has not meet [sic] the requirements of the EPA or the certifying authority. The summary you have provided to date and invoices has established the location and cost of tipping but as always stated the individual truck docket is ultimately required for certification of the site. I also note that the current summary is not up to date and complete." 54. On 18 July 2016, Ms Gerry Hunter of Peter O'Brien Constructions sent an email to Mr Mouawad advising that: "We require all the tip weighbridge dockets to match up with our paperwork, if you could email them through". 55. On 18 July 2016, Mr Mouawad sent an email to Mr Semaan requesting that he send through the weighbridge dockets to Ms Hunter. Later that day, Mr Semaan sent an email to Ms Hunter attaching the Waste Disposal Dockets, as previously provided to Mr Crestani on 7 July 2016. 56. On 20 July 2016, Mr Crestani sent an email to Mr Mouawad and Mr Semaan advising that: "Hi Paul, As you are aware to date we have not received all of the associated waste removal dockets, which in turn is causing a delay in our approval of works. Your urgent attention is requested." Mr Mouawad responded by email stating that: "I will be arranging the second round of dockets today and will hand deliver them to site first thing tomorrow". Mr Crestani then responded by email to Mr Mouawad stating that: "Need them today, need them everday" [sic]. 57. On 21 July 2016, Mr Semaan sent an email to Mr Crestani and Ms Kable attaching Invoice 0102 in the amount of $55,923.67 for tip fees relating to the disposal of asbestos-contaminated waste at the SITA Landfill. 58. On 22 July 2016, Mr Crestani sent an email to Mr Mouawad and Mr Semaan stating that: "Could you please arrange to get a proof of payment from Sita of all waste tipped to date, Very Urgent". 59. On 22 July 2016, Mr Semaan sent an email to Mr Crestani with details of the account terms with SITA. 60. On 25 July 2016, Mr Rich sent an email to Mr Mouawad requesting that the removal of asbestos from the Darlington Premises be expedited. 61. On 26 July 2016, Mr Mouawad sent an email to Mr Rich advising that: "It has come to my attention that the clients superintendent has been approaching my truck drivers requesting tip dockets. This is totally acceptable [sic] and against protocol and our safety policy not to mention an invasion of privacy. Please note that all communications to my subcontractors and personnel are to be strictly through myself or my site representative Wayne ONLY". 62. On 27 July 2016, Mr Semaan sent an email to Mr Crestani and Ms Kable attaching Invoice 0103 in the amount of $42,571.20 for tip fees relating to the disposal of asbestos-contaminated waste at the SITA Landfill. 63. On 28 July 2016, Mr Crestani took one of the tipping dockets provided by Mr Mouawad to the SITA Landfill to verify that it was an actual tipping docket generated by Suez. The next day he was contacted and advised words to the effect: "The details on the docket are not correct, they are fraudulent". 64. On 2 August 2016, Mr Crestani sent an email to Mr Mouawad attaching a Notice of Termination in relation to the subcontract. 65. On 3 August 2016, Mr Crestani sent an email to Mr Simpson to verify if the email sent to Mr Crestani by Mr Mouawad on 30 June 2016 was actually sent from the accounts division of Suez. On 4 August 2016, Mr Simpson responded and advised that the email did not originate from Suez. The EPA's investigation of the transport and disposal of asbestos-contaminated waste from the Darlington Premises 66. The Environment Protection Authority (EPA) carried out an investigation into the transportation and disposal of asbestos-contaminated waste from the Darlington Premises and potential breaches of the POEO Act. 67. That investigation revealed that approximately 134 truckloads of asbestos- contaminated waste (being approximately 1,400 tonnes) was transported from the Darlington Premises and disposed of by S A Civil between 3 June 2016 and 29 July 2016. The EPA has not been provided with information to determine the location of the asbestos-contaminated waste. The EPA is aware that 1 truckload of asbestos- contaminated waste was disposed of at the SITA Landfill. However, the location of the remaining asbestos-contaminated waste remains unknown. 68. On 27 October 2017, the EPA executed a search warrant at Mr Mouawad's residential address. During the execution of the search warrant, EPA officers seized a number of hard copy and electronic records, including the following: a. an Epson TMT88V thermal printer with serial number MY7F701609 and rolls of 80mm x 80mm Calibor thermal plain paper; b. A number of receipts printed on thermal paper or on plain A4 paper. The printed receipts had either "Suez" or "SITA Australia" marked on the paper and included a number of different versions of a tipping docket with the reference number "ED310262725" (the same reference number as the reference number on the Suez Tipping Docket); and c. An Acer Veriton S490G computer (the Acer Computer), which contained various electronic records, including electronic copies of the Ticket List Report and a Microsoft Office Word version of a "SITA Australia" tipping docket with the reference number "ED310256429" (Tipping Docket ED310256429), printed copies of which were found at Mr Mouawad's residential address. Falsity of Waste Disposal Dockets supplied by Mr Mouawad 69. The Waste Disposal Dockets Mr Mouawad caused to be supplied to Peter O'Brien Constructions employees on 7 July 2016 were false, as established by the following evidence: a. Phillip Carbins, a Sydney Landfill and Organics Manager at Suez, caused a search of business records held by Suez to be undertaken to determine the authenticity of tipping dockets provided by Mr Mouawad to Peter O'Brien Constructions. This search revealed that: i. Aussie Earthmovers did not hold a customer account with Suez between 3 June 2016 and 27 July 2016. ii. There was only 1 occasion during that period when a vehicle was recorded as disposing of asbestos-contaminated waste from the Darlington Premises at the SITA Landfill (vehicle registration CB87NU, disposing of asbestos-contaminated soil on 22 June 2016); and iii. There was no record of the other 133 occasions when vehicles were used to transport asbestos-contaminated waste from the Darlington Premises and were said to have been disposed of at the SITA Landfill. b. A comparison of the Waste Disposal Dockets which Mr Mouawad caused to be supplied to Peter O'Brien Constructions employees and the tipping dockets with the same reference numbers in the records of Suez reveals that none of the tipping dockets supplied by Mr Mouawad matched the tipping dockets held by Suez. Although one of the Waste Disposal Dockets which Mr Mouawad caused to be supplied to Peter O'Brien Constructions (ED310262725) had the same reference number as the Suez Tipping Docket (ED310262725.0), some of the details in the Suez Tipping Docket had been altered. These included the customer reference ("ED" in the Suez Tipping Docket and "AE003 - Darlington" in Mr Mouawad's version), the price per tonne ($180.00/t in the Suez Tipping Docket and $163.00/t in Mr Mouawad's version), the total price excluding GST ($1,065.24 in the Suez Tipping Docket and $984.63 in Mr Mouawad's version) and the removal of the payment details in Mr Mouawad's version. c. Stan Gallo, a Partner at KPMG Forensic, carried out a forensic examination of electronic records seized from the Acer Computer. As part of his forensic analysis, Mr Gallo examined Tipping Docket ED310256429. His expert opinion was as follows: i. Tipping Docket ED310256429 was created by someone using the user account "Paul" on the Acer Computer, using a copy of one of two documents of the same name which had been attached to emails sent to Mr Semaan on 30 June 2016, found within an email archive file with the user profile "Paul" on the Acer Computer; and ii. Some of the details in Tipping Docket ED310256429 differed from the details in the original two documents found within the email archive file. d. Mr Roberto Antonio Pupo, investigator for the EPA, carried out an analysis of records received from Roads and Maritime Services (RMS) via a statutory notice issued by the EPA under s 191 of the POEO Act. The records provided by RMS indicated that on at least 23 occasions, vehicles purportedly involved in disposing of asbestos-contaminated waste at the SITA Landfill were recorded by the Bargo Safe-T-Cam as travelling on the Hume Highway, Bargo, at the same time (or less than 45 minutes from the time) the vehicles were purportedly disposing of waste at the SITA Landfill. Falsity of Ticket List Report supplied by Mr Mouawad 70. The Ticket List Report supplied by Mr Mouawad to Mr Crestani on 30 June 2016 was false. In addition to the matters set out in the preceding paragraph (which indicate that the information in the Ticket List Report was false as there was only 1 occasion when a vehicle was recorded as disposing of asbestos-contaminated waste at the SITA Landfill): a. Mr Carbins caused a search to be undertaken of business records held by Suez to determine if any emails had been sent to Mr Mouawad from a Suez email account during the period 1 January 2016 to 29 August 2017. The search revealed that: i. The only email found in Suez's email accounts to Mr Mouawad was the email from Mr Simpson to Mr Mouawad on 27 June 2016; and ii. There were no emails in Suez's email accounts from the email address to Mr Mouawad in this period. b. As part of his forensic analysis, Mr Gallo examined the email from Mr Mouawad to Mr Crestani dated 30 June 2016, which attached the Ticket List Report. Mr Gallo's expert opinion was as follows: i. The Ticket List Report was not an original attachment to an email from ; and. ii. The Ticket List Report was created by someone using the user account "Paul" on the Acer Computer. According to Mr Gallo, the Ticket List Report appeared to have been created by copying contents of an original version of the document (forwarded by Mr Simpson to Mr Mouawad on 27 June 2016) and editing and adding additional rows to the document by the user account "Paul" on the Acer Computer. Motive for offences 71. The Bank Account details supplied by Mr Mouawad for Suez were false and were, in fact, the bank details for Aussie Earthmovers (not Suez), as established by the following evidence: a. On 16 September 2016, the EPA issued a statutory notice under s 191 of the POEO Act to Suez for information and records in relation to Aussie Earthmovers. In response to the notice, Suez advised the EPA that: i. The Bank Account was not a bank account held by Suez; ii. Aussie Earthmovers did not have a customer account with Suez for waste disposal at the SITA Landfill; and iii. Suez did not have any "Margaret" working in its accounts area from May to July 2016. b. On 16 September 2016, the EPA issued a statutory notice under s 191 of the POEO Act to the Commonwealth Bank of Australia for information and records in relation to the Bank Account. In response to that notice, the Commonwealth Bank advised that the Bank Account was, in fact, held in the name of "Aussie Earthmovers Pty Ltd". 72. Peter O'Brien Constructions received and paid four invoices for tipping fees associated with the disposal of the asbestos-contaminated waste at the SITA Landfill, as follows: a. Invoice No 0094 dated 15 June 2016 in the amount of $41,000.00; b. Invoice No 0095 dated 20 June 2016 in the amount of $58,978.40; c. Invoice No 0097 dated 30 June 2016 in the amount of $69,974.69; and d. Invoice No 0102 dated 20 July 2016 in the amount of $55,923.67 73. In reliance on the authenticity of the information in the invoices, Peter O'Brien Constructions paid a total of $225,876.76 into the Bank Account nominated by Mr Mouawad. It is not suggested by the EPA that the entirety of the $225,876.76 paid to Aussie Earthmovers related to the purported disposal of the asbestos-contaminated waste referred to in the Ticket List Report and the Waste Disposal Dockets, as the invoices also related to other tipping dockets provided by Mr Mouawad to Peter O'Brien Constructions. Prior convictions 74. On 9 March 2011, Mr Mouawad was convicted, as the director of Frontier Civil Engineering Pty Ltd, in the Local Court of an offence of unlawfully transporting waste contrary to s 143(1) of the POEO Act. He was fined $15,000 and ordered to pay the prosecutor's costs. 75. Mr Mouawad was charged by the NSW Police with 4 counts of dishonestly obtaining financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900. On 19 December 2018, following a plea of guilty, Mr Mouawad was convicted in the Local Court of a principal s 192E(1)(b) offence (with sequences 2, 3 and 4 taken into account on a Form 1) and was sentenced to a term of imprisonment of 18 months, with a non- parole period of 12 months. On appeal to the District Court, Mr Mouawad's sentence was reduced to an intensive correction order of 15 months. Further, he was ordered to perform 280 hours of community service work and pay compensation to Peter O'Brien Constructions in the sum of $225,056. Due to the fact that Mr Mouawad had previously been made bankrupt, this compensation has not been paid. Mr Mouawad was sentenced pursuant to the NSW Police Facts (Annexure 9). Timing of Mr Mouawad's guilty pleas 76. Mr Mouawad entered guilty pleas in respect of the charges on 23 November 2018, being the ninth mention of the matter in Court following the service of the Notice of Prosecution Case under s 247E of the Criminal Procedure Act 1986. 77. On 6 September 2019, Mr Mouawad filed notices of motion in proceedings 104770 and 104772 of 2018 seeking orders that he be granted leave to reverse his guilty pleas. On 5 February 2020, Robson J dismissed the notices of motion.

Other evidence relating to Mr Mouawad

1. The Prosecutor tendered a criminal history record of Mr Mouawad detailing four counts of dishonestly obtaining financial advantage by deception (the fraud offences) inter alia, and a transcript of the judgment of Syme J in the District Court of New South Wales in relation to the fraud offences, dated 12 March 2019 (Ex B).
2. Mr Mouawad tendered a forensic psychological report prepared by Dr Jason Borkowski of Psychwest Psychology and Consulting Group dated 17 August 2020 (Ex1). This report was referred to in relation to contrition expressed by Mr Mouawad to the psychologist. Under the heading "Current Offences" the report provided: Mr Mouawad said that as the work being done by S A Civil progressed, he became suspicious of the paperwork they were providing. He added that at that time, he was faced with a "dilemma" of whether he accepted paperwork being provided, or whether he investigated further the work being done by S A Civil. Mr Mouawad explained that he formed the belief that if he exposed any illicit actions, he would suffer a financial loss based on not being paid monies already owing to him, and money he had already paid out to S A Civil. Mr Mouawad said his subsequent actions that resulted in the current matters before the court, were motivated by trying to avoid yet another financial loss, which he considered would have been "catastrophic". He explained that he considered the implications of yet another financial loss including losing the house he was building at the time, being able to continue to afford the ongoing fees associated with his children's education, as well as adding to the difficulties his wife had been experiencing. To that end, he acted without giving consideration to the broader consequences, beyond those of trying to protect his family.
3. Under the heading "Attitudes Towards Offending" the report provided: In reflecting on the offences, Mr Mouawad acknowledged the implications his actions have had on others. He stated "It has hurt everyone, the builder, my family. I thought I was protecting my family, but it ended up hurting them". Mr Mouawad added "I had lived my life up to that time the complete opposite. My moral compass was blurred". Mr Mouawad said as a result of his actions, he ended up having to claim bankruptcy, he was incarcerated, and his name has been disgraced. He stated, "It's been a big wake up call. I spent Christmas, New Years and my birthday in gaol". He added "I wish I could have seen it for what it was its all so clear now. I now want to try and get my life back on track".

Purposes of sentencing

1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) states: Part 1 Preliminary … 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.
2. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of a defendant: Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J) and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 472-73 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-91 (Deane J). The sentence should not exceed what is justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen (No 2) at 472, 485-86, 490-91, 496 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).
3. When sentencing, any matter adverse to a defendant must be proved by a prosecutor beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 281. Any contested matter relied on by a defendant must be established on the balance of probabilities: R v Olbrich at 281.

Nature of offence

1. The objects of the POEO Act are set out in s 3 above.
2. Section 144AA(2) was inserted into the POEO Act on 1 October 2013 by the Protection of the Environment Operations Amendment (Illegal Waste Disposal) Act 2013 (NSW). In Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott (2016) 221 LGERA 24; [2016] NSWLEC 167 (EPA v CAR), the first and only previous prosecution for offences under s 144AA(2), Preston CJ observed at [65]: The mens rea offence of knowingly supplying false or misleading information about waste in s 144AA(2) is a more serious offence than the strict liability offence of simply supplying false or misleading information about waste in s 144AA(1), as revealed by the two-fold greater maximum monetary penalties for both corporate and individual offenders and the penalty of imprisonment for an individual offender for the offence in s 144AA(2). These higher maximum penalties were said by the then Minister for the Environment and Minister for Heritage in the Second Reading Speech of the Protection of the Environment Operations Amendment (Illegal Waste Disposal) Bill 2013 (NSW), which introduced the offence under s 144AA(2), to be to 'ensure that the penalties for waste levy evasion schemes are consistent with penalties in other legislation for fraudulent activities' (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 May 2013 at 21356).
3. The Defendant accepted that the regulatory objectives of s 144AA(2) include ensuring the proper description of waste, handling, storage, treatment, dealing with and using waste, transporting waste and disposing of waste.
4. I accept the Prosecutor's submission that Mr Mouawad and Aussie Earthmovers have not been charged with, and are not to be sentenced for, offences relating to the actual disposal of the asbestos-contaminated waste from a building site in Darlington (the Darlington Premises). However, their conduct in supplying false or misleading information about asbestos-contaminated waste in the course of dealing with the waste, knowing that the information was false or misleading in a material respect, undermined the objects in s 3 of the POEO Act of protecting the environment and reducing risks to human health. In particular, their offending conduct significantly undermined the regulatory objective of ensuring the proper disposal of asbestos waste as the location of the asbestos waste disposed of is unknown.

Maximum penalty

1. In setting a penalty the Court should have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and 701: The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided... …the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty.
2. The maximum penalty for an offence represents the legislature's assessment of the seriousness of the offence and therefore provides a sentencing yardstick. It commonly invites comparison between the case before the Court and cases falling within the category of the "worst case".
3. In the case of an individual, the maximum penalty for an offence under s 144AA(2) of the POEO Act is $240,000 or imprisonment for 18 months, or both.

Matters to be considered in imposing penalty under POEO Act s 241(1)

Harm or likely harm to environment: s 241(1)(a)

1. The Prosecutor submitted that its investigation into the transportation and disposal of asbestos-contaminated waste from the Darlington Premises revealed that approximately 134 truckloads of that waste (being approximately 1,400 tonnes) was transported from the Darlington Premises between 3 June 2016 and 29 July 2016, 84 truckloads of which were referred to in the "Ticket List Report" and the "Waste Disposal Dockets". One of those truckloads of asbestos-contaminated waste was disposed of correctly at the "SITA Landfill". However, the location of the remaining asbestos-contaminated waste is unknown (ASOAF par 67). Accordingly, it is not possible to identify the precise harm to the environment caused by the disposal of the waste in this case.
2. As I accepted above in [18], Mr Mouawad and Aussie Earthmovers have not been charged with offences relating to the disposal of the waste. The Prosecutor submitted that, nonetheless, the offenders' conduct in supplying the false Ticket List Report and Waste Disposal Dockets concealed the true whereabouts of the waste, which was disposed of in a manner and at a location that has not been identified. Had Mr Mouawad provided accurate information about the disposal of the waste, such harm as may have been caused to the environment by its unauthorised disposal could have been mitigated through the safe management of the waste or its removal to a waste management facility. Instead, the whereabouts of 83 truckloads of asbestos-contaminated waste remains unknown, posing indeterminable risks to the environment and human health now and, potentially, into the future.
3. Mr Mouawad disputes that in this sentencing exercise, where the onus falls on the Prosecutor to establish unadmitted matters adverse to Mr Mouawad beyond reasonable doubt, the disposal of asbestos at an unknown location can be considered. Mr Mouawad disputes the Prosecutor's submission that the concealment of 83 truckloads of asbestos-contaminated waste resulted from the offences. The Ticket List Report was provided after 83 truckloads of waste relevant to the Ticket List Report had already been transported elsewhere than the SITA Landfill site. On 7 July 2016, the offender caused Peter O'Brien Constructions to be supplied with the 29 false Waste Disposal Dockets. These were said to be issued by Suez Recycling & Recovery Pty Ltd (Suez) and purported to refer to the disposal of 29 truckloads of soil contaminated with asbestos at the SITA Landfill. The 29 Waste Disposal Dockets were also referred to and were a subset of items contained in the Ticket List Report. To this extent, there is an overlap in the content of the information, which is the subject of the offences.

Practical measures to prevent or mitigate harm: s 241(1)(b)

1. As the Prosecutor submitted, there were practical measures that could and should have been taken to prevent or mitigate the harm likely to be caused to the environment. Mr Mouawad should not have created the false Ticket List Report and Waste Disposal Dockets and supplied them to Peter O'Brien Constructions.

Foreseeability of harm: s 241(1)(c)

1. As the Prosecutor submitted, it was reasonably foreseeable that the supply of the Ticket List Report and Waste Disposal Dockets would be likely to cause harm to the environment. Those documents misrepresented the true location of the asbestos-contaminated waste, such that it is not known whether that waste has been disposed of or managed safely and appropriately. I do not accept Mr Mouawad's submission that that finding cannot be made because the false documents were supplied after the asbestos was transported. Had they not been false, the location of the asbestos waste would be known. That is a consequence of these offences and was foreseeable.

Presence of asbestos in environment: s 241(1)(f)

1. Section 241(1)(f) was inserted into the POEO Act on 20 December 2019, after Mr Mouawad and Aussie Earthmovers committed the offences, by the Protection of the Environment Operations Amendment (Asbestos Waste) Act 2018 (NSW). To the extent that the subsection may be construed as requiring that greater weight be given to the presence of asbestos in the environment as an aggravating factor than was required prior to its introduction, it should not be applied retrospectively to these offences. The presence of asbestos waste is relevant to be considered in any event in relation to harm to the environment under s 241(1)(a) as has occurred above.

Offences committed without regard for public safety: s 21A(2)(i)

1. Mr Mouawad disputes the Prosecutor's submission that the offences were clearly committed without regard for public safety because the charges do not relate to the actual disposal of asbestos waste. I accept the Prosecutor's submission that the conduct did defeat the regulatory objective of ensuring the proper disposal of asbestos-contaminated waste and Mr Mouawad's actions do not reflect any regard for public safety, an aggravating factor.

Planned or organised criminal activity: s 21A(2)(n)

1. The Prosecutor submitted the offences were aggravated by the fact that they were part of a planned or organised criminal activity. Organised criminal activity may involve the activities of several people that are planned or co-ordinated to carry out the crime, or activity that is carried out by one person if that person engages in planning or preparation (NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 at [72] per Campbell J; Hewitt v R (2007) 180 A Crim R 306; [2007] NSWCCA 353 (Hewitt) at [25] per Hall J.).
2. The offences involved a substantial degree of planning and coordination as demonstrated by Mr Mouawad in: (i) engaging S A Civil (Aust) Pty Ltd (S A Civil) to remove the asbestos waste from the Darlington Premises (ASOAF pars 20-21); (ii) repeatedly representing in communications to Mr Crestani that he owed money to Suez for disposal of the waste at that facility (ASOAF pars 24-27); (iii) informing Peter O'Brien Constructions that he would provide copies of the tipping dockets despite knowing only one real tipping docket existed (ASOAF par 39); (iv) sending an iMessage to Mr Crestani purportedly from "Margaret" at Suez, which he had initially sent to himself then forwarded to Mr Crestani (ASOAF pars 31-32); (v) purchasing a thermal printer and creating what purported to be the Waste Disposal Dockets and the Ticket List Report (ASOAF pars 37, 68); (vi) causing Mr Semaan to send several invoices to Peter O'Brien Constructions for tipping fees (ASOAF pars 46-47); (vii) providing Peter O'Brien Constructions with details of a bank account which was said to be an account of SITA Australia Pty Ltd (SITA) but was in fact an account of Aussie Earthmovers (ASOAF pars 29, 35, 71); (viii) providing Mr Crestani with the phone number for "Margaret", and subsequent phone call between Mr Crestani and Margaret, despite there not being anyone of that name working at Suez at the relevant time (ASOAF pars 35-36, 71); and (ix) ultimately supplying the false Waste Disposal Dockets and Ticket List Report to Peter O'Brien Constructions (ASOAF pars 42, 49).
3. Contrary to Mr Mouawad's submissions, the circumstances of the offences suggest a planned activity involving more than Mr Mouawad, being an unknown person known as Margaret who impersonated a SITA employee and Mr Semaan (no allegation of criminal behaviour is made against him). Mr Mouawad made several demands for payment, manipulated a Suez document, bought a thermal printer and created false records.

Offences committed for financial gain: s 21A(2)(o) CSP Act

1. As the Prosecutor submitted, the offences were committed for financial gain. The bank account details supplied by Mr Mouawad for Suez were false and were, in fact, the bank details for Aussie Earthmovers (ASOAF par 71). Peter O'Brien Constructions paid Invoices 0094, 0095, 0097 and 0102 to Aussie Earthmovers for tipping fees associated with the disposal of the asbestos-contaminated waste at the SITA Landfill, totalling $225,876.76 (ASOAF pars 72-73). It is not suggested that the entirety of the $225,876.76 paid to Aussie Earthmovers related to the purported disposal of the asbestos-contaminated waste referred to in the Ticket List Report and the Waste Disposal Dockets, as the invoices also related to other tipping dockets provided by Mr Mouawad to Peter O'Brien Constructions (ASOAF par 73). Nonetheless, Mr Mouawad and Aussie Earthmovers clearly derived a significant financial benefit from the offending conduct, an aggravating factor.

Conclusion on objective seriousness of offences

1. The two offences in the Mouawad Proceedings are of high objective seriousness.

Subjective matters

1. Section 21A(3) of the CSP Act identifies a number of mitigating circumstances which can be considered in determining the appropriate sentence for an offence.

Guilty plea: ss 21A(3)(k), 22

1. Pleas of guilty can be considered in mitigation depending on when a plea is entered by a defendant. The utilitarian value of a plea should generally be assessed in the range of a 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall is the timing of the plea (R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160] per Spigelman CJ, with whom Wood CJ at CL, Foster AJA and Grove and James JJ agreed).
2. A chronology of the Mouawad Proceedings was annexed to the Prosecutor's submissions. The Mouawad Proceedings were commenced on 4 April 2018. Mr Mouawad pleaded guilty to the offences at the ninth mention in the Mouawad Proceedings on 23 November 2018 (ASOAF par 76). On 6 September 2019, Mr Mouawad filed notices of motion seeking orders that he be granted leave to reverse his pleas. Those motions were listed for a full day's hearing on 26 November 2019 (ASOAF par 77). Justice Robson dismissed Mr Mouawad's motions on 5 February 2020 in Environment Protection Authority v Mouawad [2020] NSWLEC 1. Mr Mouawad entered his guilty pleas almost eight months after the proceedings were commenced and sought leave to reverse his pleas over nine months after doing so, requiring the preparation of evidence and written submissions and a full day's hearing. Mr Mouawad's pleas have minimal utilitarian value.

Contrition: s 21A(3)(i)

1. Section 21A(3)(i) states that remorse shown by an offender can be taken into account but only if the offender provides evidence that he or she has accepted responsibility for his or her actions and any injury, loss or damage is acknowledged or reparation made for such injury, loss or damage. The only statement of contrition before the Court is an untested statement to that effect in the psychologist's report (above in [8]) in the absence of Mr Mouawad giving evidence.
2. The Prosecutor submitted that Mr Mouawad's explanation of the events as recorded in the psychologist's report, extracted above in [8], suggested he was suspicious of paperwork provided to him by S A Civil and was faced with a dilemma of the potential financial consequences that would result if he did not pass on that false information. The Prosecutor said that this account of events flies in the face of the evidence and inferences available on the agreed facts, that rather than passing on suspicious paperwork provided to him by S A Civil, Mr Mouawad created the false information that is at the centre of these charges.
3. The Defendant submitted that the words "Mr Mouawad said his subsequent actions that resulted in the current matters before the Court" in the psychologist's report demonstrated that Mr Mouawad accepted the account of his actions as set out in the ASOAF, including that Mr Mouawad himself generated and provided the false documents. The "actions that resulted in the current matters before the Court" are those set out in the ASOAF. This part of the psychologist's report in no way undermines Mr Mouawad's expression of remorse.
4. The Prosecutor submitted the statement of contrition in the psychologist's report should be given limited weight, citing Imbornone v the Queen [2017] NSWCCA 144 (Imbornone) at [54], [55]. The Defendant cited Butters v the Queen [2010] NSWCCA 1 (Butters) per Fullerton J at [16] to the effect that there is no statutory requirement that an offender give evidence of contrition for this to be given weight. There is an extensive discussion in Butters of the weight to be given in sentencing to unsworn expressions of contrition to third parties such as a psychologist at [11]-[21]. That discussion identifies that each case must be assessed on its own facts as to the weight to be attributed to a statement of contrition given to a third party which cannot be tested. Butters is cited in Imbornone by the CCA (Wilson J, Hoeben CJ at CL and R A Hulme J agreeing) at [57] which stated: This Court has frequently said that untested out of court statements made to third parties should be treated with caution. Although it should be a principle that is well known and understood it seems necessary to restate it. The following statements are derived from the authorities: (1) Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight: R v Qutami [2001] NSWCCA 353 at [58] - [59]. (2) Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185, [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24] - [25]. (3) It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33]. (4) If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]-[19]. (5) Whilst evidence in an affidavit from an offender which is admitted into evidence without objection may be accepted by a sentencing judge (see Van Zwam v R [2017] NSWCCA 127), generally the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on oath frequently contain self-interested assertions of a character which makes them almost impossible to verify or test (particularly when served on the Crown in close proximity to, or on, the date of hearing). In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition, "to treat this evidence with anything but scepticism represents a triumph of hope over experience": R v Harrison [2001] NSWCCA 79; (2002) 121 A Crim R 380 at [44].

Cooperation with regulatory authority: ss 21A(3)(m), 23

1. Mr Mouawad submitted that he had co-operated to an extent with the Prosecutor by agreeing to the ASOAF. He has resolved all factual disputes. He has also agreed to pay the Prosecutor's legal costs in the amount of $60,000 exclusive of GST. There is no challenge to the publication order sought by the Prosecutor. In those circumstances, it is submitted that the offender has demonstrated a willingness to facilitate the course of justice, which deserves recognition beyond the mere utilitarian value of his pleas of guilty. This submission can be accepted to a limited extent.

Previous convictions: s 21A(2)(d)

1. The Prosecutor submitted that any record of previous convictions is a subjective matter adverse to an offender, as opposed to an objective circumstance of aggravation. Prior convictions are relevant to determining where, within the boundary set by the objective circumstances, a sentence should lie, particularly by reference to whether the instant offence is an uncharacteristic aberration or a manifestation of a continuing attitude of disobedience of the law (R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [26] per Spigelman CJ, McClellan CJ at CL, Grove, Barr and Bell JJ agreeing. See also Veen (No 2) at 477-478 per Mason CJ, Brennan, Dawson and Toohey JJ.
2. Mr Mouawad and Mrs Ninoska Mouawad were convicted on 9 March 2011 of the offences of unlawfully transporting waste contrary to s 143(1) of the POEO Act (the transportation of waste offence) in the Local Court. They had been found guilty under s 169 of the POEO Act as directors of Frontier Civil (Australia) Pty Ltd (FCA) and Frontier Civil Engineering Pty Ltd (FCE). Mr Mouawad was fined $15,000 as the director of FCE and ordered to pay the prosecutor's costs (ASOAF par 74). In Mouawad v The Hills Shire Council (2013) 199 LGERA 28; [2013] NSWLEC 165 Mr Mouawad and Mrs Mouawad appealed against their conviction and sentence in the Local Court. The appeal was dismissed. Pepper J held the offences were overall of low objective gravity, having regard to the limited environmental harm caused and the fact that the offences had been committed unintentionally: at [167]-[181].
3. The Prosecutor asserted the transportation of waste offence is a relevant prior conviction. It accepted that Mr Mouawad's conviction for the fraud offences in the Local/District Court arose (ASOAF par 75) from the same circumstances as the current offences and are not a prior conviction for the purposes of s 21A(2)(d).
4. Mr Mouawad submitted the transportation of waste offence under s 143(1) of the POEO Act was dissimilar, not being an offence involving dishonesty. I accept Mr Mouawad's submission that weight is to be attributed to his criminal record in a way that affords him a degree of leniency: Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 1 at [23]-[25] per McHugh J.

Unlikely to reoffend s 21A(g)

1. I accept the Defendant's submission that as the Defendant no longer performs asbestos removal work and has been offence-free since June 2016, the likelihood of him reoffending in the particular way that occurred in these offences is significantly diminished.

General and specific deterrence

1. General deterrence is an important aspect of sentencing in environmental crime, as in other areas of criminal law. As held by Preston CJ in Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 at [139]-[140]: The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93] per Lloyd J.
2. Specific or personal deterrence is applicable where an offender has a prior criminal record which manifests a continuing attitude of disobedience, such that more weight should be given to retribution, personal deterrence or protection of the community: Veen (No 2) v at [26]; R v Abboud [2005] NSWCCA 251 at [33]; R v McNaughton at [54] (Judicial Commission of NSW, Sentencing Bench Book (as at August 2020) at [2-240]). The Prosecutor submitted specific deterrence is warranted because Mr Mouawad has been convicted of a related previous offence and also remains in the building business, as can be seen from the reference provided by his current employer, above in [8]. Mr Mouawad submitted that specific deterrence did not arise because he no longer dealt with asbestos waste disposal in his work.
3. Specific deterrence has particular relevance where an offender continues to operate in the same area of operation in which the offence occurred: Environment Protection Authority v Ardent Leisure Ltd (ACN 104 529 106) [2018] NSWLEC 36 Robson J at [135] citing Preston CJ in Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 at [48].
4. Mr Mouawad remains in the building and construction business and must deal with building waste. Specific deterrence is warranted.

Totality

1. The totality principle applies to the two s 144AA(2) offences given that they arise from essentially the same facts. That application of the principle was agreed by the Prosecutor and Mr Mouawad, the latter citing Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 at [18] citing Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 (Mill) at 63.
2. Mr Mouawad also submitted that the totality principle applies where an offender has been sentenced previously for offences forming part of the same series of offending, here the fraud offences in the Local/District Court for which Mr Mouawad has already served 83 days in prison and 15 months of an intensive correction order (ICO) following the District Court appeal. The criminal fraud in those offences and the supply of false information in these offences arose from the same offending. The sentence imposed in the fraud cases should bear on the penalty imposed in these offences for the reasons in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40], [42].
3. Mr Mouawad submitted that the need to approach the enquiry with "common sense" has been described by the CCA in the following terms, in R v Dennison [2011] NSWCCA 114 at [95] per Schmidt J (as her Honour then was) (Whealy JA and McCallum J agreeing): It is not only the commonality of the legal elements of the offences which had to be considered, but also the commonality of the facts and circumstances (see R v Hilton [2005] NSWCCA 317; (2005) 157 A.Crim.R. 504 at [15]). As explained in R v Elphick [2010] NSWCCA 112, when an offender is being punished for more than one offence arising out of the same set of facts, the need to avoid punishing an offender twice does not require that elements which are common to any overlapping offences with which the offender is charged be ignored. Rather, it is necessary to consider, independently, the facts and circumstances relevant to the sentence imposed for the first offence and to sentence accordingly. Then, when turning to deal with the second offence, "any necessary step in assessment of punishment for that crime to avoid that which would amount to double punishment can be taken" (at [29]) ...
4. Mr Mouawad has already been punished for obtaining a financial benefit by deception as a result of the provision of the false invoices to Peter O'Brien Constructions. On 19 December 2018, Mr Mouawad was convicted in the Local Court of an offence of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), with three other s 192E(1)(b) offences taken into account on a "Form 1". He was sentenced to a term of imprisonment of 18 months, with a non-parole period of 12 months. On appeal to the District Court on 12 March 2019, Mr Mouawad's sentence was reduced to an ICO of 15 months. He was also ordered to perform 280 hours of community service work and pay compensation to Peter O'Brien Constructions in the sum of $225,056. Due to the fact that Mr Mouawad had previously been made bankrupt, this compensation has not been paid (ASOAF par 75).

Consideration of term of imprisonment

1. The Prosecutor accepted the totality principle should apply, taking into account that the fraud offences already punished overlap with these offences. It submitted that a sentence of imprisonment was warranted. If imposed, a sentence could be reduced or backdated so that it is wholly or partly concurrent with Mr Mouawad's sentence for the fraud offences, referring to Mill at 63. I note that the earlier sentence is now complete so that such a possibility does not arise. Section 47(2) of the CSP Act permits the Court to direct a sentence of imprisonment to be taken to have commenced on a day occurring before the day on which the sentence is imposed. It is open to the Court to backdate the sentence. That course is preferable to reducing the period of imprisonment for this sentence, for the reasons stated by Howie J in R v Newman (2004) 145 A Crim R 361; [2004] NSWCCA 102 (Newman) at [22]-[32]. I note that Newman was considering backdating a term of imprisonment in light of pre-sentence custody for the same offence.
2. As identified above in [69] I am considering separate offences arising from related but separate facts which gave rise to the fraud offences. There is no overlap of the elements of the offences. These offences address a different scheme, the objects of which have been substantially undermined by Mr Mouawad's actions. Syme J expressly referred to an offence of waste disposal and stated he did not have regard to it in the District Court appeal of the fraud charges. A large amount of asbestos waste has been disposed of at an unknown location as a result of the two waste information offences and I have found there are several aggravating circumstances and limited subjective circumstances to mitigate any sentence. I do not consider double punishment as discussed in Newman and Pearce arises.
3. Section 5 of the CSP Act states that a court must not sentence an offender to a term of imprisonment unless satisfied that no other penalty is appropriate having considered all possible alternatives. Section 53A provides that where a court is sentencing an offender for more than one offence, an aggregate sentence of imprisonment may be imposed instead of imposing a separate sentence of imprisonment.
4. I do not accept that a financial penalty alone is appropriate. I note that Mr Mouawad has agreed to pay a substantial amount of legal costs which would have been ordered in any event and has yet to pay the amount of restitution ordered by the District Court for the fraud charges.

Publication order

1. The Prosecutor seeks a publication order pursuant to s 250(1)(a) of the POEO Act. As I observed in Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 4) (2014) 212 LGERA 1; [2014] NSWLEC 74 at [102], the purpose of a publication order is to alert the public to the offence and to improve the effectiveness of sentences as a deterrent, citing Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [242].
2. Mr Mouawad does not object to the making of a publication order in the terms sought by the Prosecutor. I note the text also refers to Aussie Earthmovers. The terms and content of the publication are set out in the document annexed as Annexure A to this judgment. It is appropriate to make such an order in due course as appropriately amended.

Costs

1. Mr Mouawad has agreed to pay a total of $60,000 in legal costs of the Prosecutor. It is appropriate to make a costs order in due course.

Orders

1. The Court orders that: 1. In matter No 104770 of 2018 (the Ticket List Report offence) and matter No 104772 of 2018 (the Waste Disposal Dockets offence) the matters are adjourned for Mr Paul Mouawad, also known as Boulos Isaac, to be assessed by the Parramatta Community Corrections Office. 2. The matter is stood over to 5 February 2021 before Justice Pain.

Aussie Earthmovers Proceedings

1. The Defendant Aussie Earthmovers was found guilty of the two offences for which it is being sentenced in an ex parte hearing on liability in Aussie Earthmovers No 2. It has not participated at any stage of these proceedings.
2. The Prosecutor's statement of facts (SOF) in Aussie Earthmovers No 2 (MFI-1) set out at [35] in that judgment is relied on as the basis for sentencing in the Aussie Earthmovers Proceedings. It is in largely similar terms to the ASOAF in the Mouawad Proceedings set out above in [6] and was accepted in Aussie Earthmovers No 2 as an accurate summary of the Prosecutor's evidence. The SOF is less extensive in that certain matters in the ASOAF in the Mouawad Proceedings (at pars 71-73 addressing Mr Mouawad's motive, pars 74-75 addressing Mr Mouawad's prior convictions, and pars 76-77 addressing the timing of Mr Mouawad's guilty plea) were not included. Likewise, pars 74 and following in the SOF in Aussie Earthmovers No 2 were not included in the ASOAF set out above as these were relevant to the Prosecutor's notice of motion to have those matters heard ex parte and to the status of Aussie Earthmovers. Aussie Earthmovers was found guilty based on the actions of Mr Mouawad, at [66]-[67].
3. An additional document tendered as evidence was a letter from ASIC dated 14 July 2020 advising that the deregistration of the company had been extended by 90 days from the date of the letter (Ex A).
4. The same finding of a high level of objective seriousness made in relation to Mr Mouawad in [45] above applies to Aussie Earthmovers for the same reasons. The only relevant difference to note is that the maximum penalty for a company is $500,000 under s 144AA(2)(a).
5. There are no subjective matters concerning Aussie Earthmovers before the Court to consider on sentence.
6. No issue of double punishment arises as Mr Mouawad is not a director or shareholder of Aussie Earthmovers: ASOF at par 2 in [6] above.
7. A high penalty is warranted in the circumstances. The totality principle should be considered given that the two offences arise from essentially the same circumstances.
8. As noted earlier, Aussie Earthmovers is included in the text of a publication order which Mr Mouawad is to publish. It is appropriate to do so.
9. The Prosecutor seeks its legal costs of the proceedings. There is no reason not to make such a costs order.

Penalty/orders

1. The Court orders that: 1. In matter No 104771 of 2018 (the Ticket List Report offence) Aussie Earthmovers Pty Limited (ACN 167 706 372) is convicted of the offence as charged against s 144AA(2) of the Protection of the Environment Operations Act 1997 (NSW), in that on or about 30 June 2016 it supplied information about waste to another person in the course of dealing with the waste, being information that it knew was false or misleading in a material respect. 2. In matter No 104773 of 2018 (the Waste Disposal Dockets offence) Aussie Earthmovers Pty Limited (ACN 167 706 372) is convicted of the offence as charged against s 144AA(2) of the Protection of the Environment Operations Act 1997 (NSW), in that on or about 7 July 2016 it supplied information about waste to another person in the course of dealing with the waste, being information that it knew was false or misleading in a material respect. 3. In matter No 104771 of 2018 (the Ticket List Report offence) Aussie Earthmovers Pty Limited (ACN 167 706 372) is fined $400,000. 4. In matter No 104773 of 2018 (the Waste Disposal Dockets offence) Aussie Earthmovers Pty Limited (ACN 167 706 372) is fined $50,000. 5. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), Aussie Earthmovers Pty Limited (ACN 167 706 372) is to pay the Prosecutor's costs in an amount as agreed or as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW). 6. The Exhibits are returned.

Annexure A Aussie Earthmovers Pty Ltd and Paul Mouawad (also known as Boulos Isaac) convicted of knowingly supplying false or misleading information about waste Aussie Earthmovers Pty Ltd and one of its former employees, Paul Mouawad (also known as Boulos Isaac), have each been convicted in the Land and Environment Court of two offences of knowingly supplying false or misleading information about the disposal of waste contaminated with asbestos from a building site in Darlington, NSW. In June and July 2016, Aussie Earthmovers Pty Ltd and Mr Mouawad arranged for the removal of approximately 1,400 tonnes of asbestos-contaminated soil and supplied false information, including false weighbridge disposal dockets, about where the waste had been disposed. Aussie Earthmovers Pty Ltd and Mr Mouawad were prosecuted by the Environment Protection Authority (EPA). Aussie Earthmovers Pty Ltd was convicted of two offences, was fined $450,000 and was ordered to pay the EPA's legal costs. Mr Mouawad was convicted of two offences, was [insert details of penalty] and was [ordered to pay the EPA's legal costs]. This notice was placed by order of the Land and Environment Court.

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: 01 December 2020