Environment Protection Authority v Mouawad

Catchwords

[2014] NSWLEC 152 Barbaro v the Queen (2014) 253 CLR 58[2014] HCA 2 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234[2009] NSWLEC 137 Duffy v R [2009] NSWCCA 304 Elias v The Queen (2013) 248 CLR 48[2013] HCA 31 Environment Protection Authority v Afram (2022) 252 LGERA 153[2022] NSWLEC 41 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299[2006] NSWLEC 419 Fairfield City Council v Oztech Developments Pty Ltd [2021] NSWLEC 81 Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29 Garrett v Williams (2006) 160 LGERA 115[2006] NSWLEC 785 GAS v The Queen (2004) 217 CLR 198[2004] HCA 22 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189[2006] NSWLEC 242 Harris v Harrison (2014) 86 NSWLR 422[2014] NSWCCA 84 Harrison v Perdikaris [2015] NSWLEC 99 Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd (2012) 188 LGERA 273[2012] NSWLEC 45 Leach v The Queen (2007) 230 CLR 1[2007] HCA 3 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25 Maxwell v The Queen (1996) 184 CLR 501

Judgment (67 paragraphs)

[1]

Protection Authority v Minto Recycling Pty Ltd [2019] NSWLEC 193 Environment Protection Authority v Mouawad (also known as Boulos Isaac) (No 2) [2023] NSWLEC 38 Environment Protection Authority v Mouawad (Land and Environment Court (NSW), Moore J, 28 September 2022, unrep) Environment Protection Authority v Mouawad (No 2) [2020] NSWLEC 166 Environment Protection Authority v Mouawad (No 3) [2021] NSWLEC 16 Environment Protection Authority v Mouawad (No 3) [2023] NSWLEC 44 Environment Protection Authority v P&M Quality Small Goods Pty Ltd [2017] NSWLEC 89 Environment Protection Authority v Ramsey Food Processing [2009] NSWLEC 152 Environment Protection Authority v Robinson [2004] NSWLEC 629 Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 Environment Protection Authority v Smart Skip Pty Ltd [2009] NSWLEC 204 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68 Environment Protection Authority v University of Sydney (2022) 251 LGERA 361; [2022] NSWLEC 41 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Fairfield City Council v Oztech Developments Pty Ltd [2021] NSWLEC 81 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 Harrison v Perdikaris [2015] NSWLEC 99 Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd (2012) 188 LGERA 273; [2012] NSWLEC 45 Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70 Mouawad v The Hills Shire Council (2013) 199 LGERA 28; [2013] NSWLEC 165 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 Newcastle City Council v Pace Farm Egg Products [2002] NSWLEC 66 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v O'Neill [1979] 2 NSWLR 582 R v Peel [1971] 1 NSWLR 247 R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Secretary, Department of Planning and Environment v AGL Energy Limited [2017] NSWLEC 2 Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Thuong Nguyen v R [2012] NSWCCA 184 Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Water NSW v Barlow (2019) 244 LGERA 1; [2019] NSWLEC 30 Texts Cited: Nil Category: Principal judgment Parties: Environment Protection Authority (Prosecutor) Paul Mouawad (also known as Boulos Isaac) (Defendant) Representation: Counsel: N Sharp SC with T Phillips and A Ilic (Prosecutor) Defendant appeared in person Solicitors: Legal Services Branch, Environment Protection Authority (Prosecutor) File Number(s): 2018/260536; 2018/260542 Publication restriction: Nil

[2]

JUDGMENT Introduction to the charges for sentence Outcome A self-represented defendant Onus and standard of proof at sentencing Evidence Waste classification guidelines and resource recovery exemptions Statement of agreed facts, plea deal, and the defendant's departure from the statement of agreed facts The defendant's contentions in relation to procedural fairness Background facts Works to be undertaken at the property Construction deed in relation to the importation of fill at the property Profit share agreement between the defendant and Mr Levy Importation of fill to the Arcadia property General operations of Arcadia Landfill Payments received by ACN and payments made under the profit share agreement Waste classification certificates prepared by EI Australia in relation to the Zetland site and Wolli Creek site Mr Miller's observations in relation to suspected asbestos in fill imported to the property from the Zetland site Inspections of the property by Progressive Risk Management Application to the EPA for a resource recovery order and resource recovery exemption 13 July 2017 inspection of the property by Council 15 August 2017, 7 September 2017 inspections of the property by the prosecutor 28 September 2017 email from the defendant to Mr and Mrs Levy 20 September 2017 clean-up notice issued by the prosecutor, and actions pursuant to the clean-up notice 18 December 2017 volumetric survey on the property Expert evidence of Mr Andre Smit and Dr Daniel Martens on stockpiled material Relevant statutory provisions Objective seriousness of the offence Nature of the offences Maximum penalty for the offence The defendant's state of mind in committing the offence Relevance of state of mind in relation to the s 142A(1) offence of polluting land Relevance of state of mind in relation to the s 143 offence Conclusions in relation to the defendant's state of mind The defendant's understanding of waste compliance and whether he was responsible for the exemption request letter The defendant's control over the process of fill validation Awareness that imported material was or had a real risk of being contaminated No lawful authority for all of the fill material to be brought to the property Conclusion as to the defendant's state of mind The harm caused to the environment by the commission of the offence: s 241(1)(a) of the POEO Act The defendant's reasons for committing the offence, and the question of financial gain The practical measures to avoid harm to the environment; the defendant's control over the causes of harm to the environment: s 241(1)(b) of the POEO Act Foreseeability of the harm caused or likely to have been caused to the environment: s 241(1)(c) of the POEO Act Control over the causes giving rise to the offences: s 241(1)(d) of the POEO Act Whether, in committing the offence, the person was complying with orders from an employer or supervising employee: s 241(1)(e) of the POEO Act The presence of asbestos in the environment: s 241(1)(f) of the POEO Act Conclusion in relation to objective seriousness Subjective circumstances of the offender Prior criminality and character: ss 21A(2)(d), 21A(3)(e) and 21A(3)(f) of the CSP Act Offences committed without regard for public safety: s 21A(2)(i) of the CSP Act The offences were committed for financial gain: s 21A(2)(o) of the CSP Act The offences were part of a planned or organised criminal activity: s 21A(2)(n) of the CSP Act Remorse shown by the offender: s 21A(3)(i) of the CSP Act Plea of guilty: ss 21A(3)(k), 22 of the CSP Act Assistance to authorities: ss 21A(3)(m), 23 of the CSP Act Not likely to reoffend: s 21A(3)(g) of the CSP Act Principles of sentencing to be considered Proportionality General and specific deterrence: s 3A(b) of the CSP Act Even-handedness and consistency in sentencing Totality Means of the defendant (s 6 Fines Act 1996 (NSW)) The appropriate penalty to be imposed Payment of share of fine to prosecutor (s 122 Fines Act) Costs Orders

[3]

Introduction to the charges for sentence

The proceedings were commenced on 24 August 2018. On 26 April 2023, the defendant Paul Mouawad (also known as Boulos Isaac) pleaded guilty to one offence of polluting land against s 142A(1) of the Protection of the Environment Operations Act 1997 (POEO Act), and one offence of causing waste to be transported to a place that cannot lawfully be used as a waste facility for that waste against s 143(1) of the POEO Act. It arises for me to sentence the defendant for those offences.
The two offences to which the defendant has pleaded guilty are that: 1. from on or about 31 January 2017 to on or about 28 August 2017 inclusive, at or near Arcadia in the State of New South Wales, he committed an offence against s 142A(1) of the POEO Act in that he polluted land (the s 142A(1) offence); and 2. from on or about 31 January 2017 to on or about 28 August 2017 inclusive, at or near Arcadia in the State of New South Wales, he committed an offence against s 143(1) of the POEO Act in that he caused waste to be transported to a place that could not lawfully be used as a waste facility for that waste (the s 143(1) offence).
Both offences, as particularised in amended summonses filed in Court on 26 April 2023, relate to the defendant having caused fill to be brought to and placed on a property at Lot 1 DP 239444, being 22 Geelans Road, Arcadia (the property). The property is bounded by other rural residential properties of a similar character, many of which are heavily vegetated.
The two offences took place over a seven-month period between 31 January 2017 and 28 August 2017 (the charge period).
The "pollutant" in the amended summons in relation to the s 142A(1) offence and the "waste" in the amended summons in relation to the s 143(1) offence are particularised as follows: Material including soil, bricks, concrete, timber, metal, plastic, tile, rocks, rubble, bitumen, terracotta; asbestos waste within the meaning cl 109 of the Protection of the Environment Operations (General) Regulation 2009 and cl 50 of Sch 1 of the POEO Act.
The manner of breach particularised in relation to the s 143(1) offence is that the defendant caused the waste to be transported to the property by truck.
The manner of breach particularised in relation to the s 142A(1) offence is that: (1) the defendant: • caused the pollutant to be placed on, or otherwise introduced into or onto the land; and • the pollutant caused or was likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial; and/or • the pollutant was of a prescribed nature, description or class, namely more than 10 tonnes of "asbestos waste" within the meaning of cl 109 of the Protection of the Environment Operations (General) Regulation 2009 and cl 50 of Sch 1 of the POEO Act; and/or (2) the defendant was the occupier of the premises, being the land from which pollution of the land occurred.

[4]

Outcome

During the charge period, the maximum penalty for each of the offences against s 143(1) and s 142A(1) of the POEO Act, in the case of an individual, was $250,000. I have determined to impose the following monetary penalties on the defendant, reflecting a 10 percent discount for the utilitarian value of his guilty pleas entered on 26 April 2023: 1. a penalty in the amount of $135,000 in relation to the s 142A(1) offence; and 2. a penalty in the amount of $135,000 in relation to the s 143(1) offence, to which I have applied a further discount of 30 percent having regard to the totality principle. This produces a total penalty for the two offences in the amount of $189,000.
Orders to that effect, and related orders, are set out at the conclusion of these reasons.

[5]

A self-represented defendant

At the sentencing hearing, the defendant was self-represented. This followed the decision of Duggan J in Environment Protection Authority v Mouawad (No 3) [2023] NSWLEC 44 in which, by notice of motion, the defendant raised his fitness to be tried in relation to three charges then alleged by the prosecutor for breaches of the POEO Act (the fitness judgment). The defendant had argued that his mental illness resulted in him being unfit for trial. It was not in dispute that the defendant suffered from severe depression. The defendant and the prosecutor both submitted psychological evidence as to the impact of the defendant's mental illness on his fitness for trial. Her Honour, Duggan J, dismissed the defendant's notice of motion, finding the defendant fit to stand trial, [1] and accepting the opinion of the prosecutor's neuropsychologist.
Duggan J held that the opinion of the prosecutor's neuropsychologist was confirmed by the defendant's interactions with the Court. The defendant was able to understand the directions given, respond to specific questions, respond in a focused manner to the evidence and submissions put by senior counsel for the prosecutor, and cross-examine a witness to a standard comparable to most self-represented litigants. [2]
At the commencement of the sentencing hearing, I made some remarks in relation to the procedures to be followed in the hearing. I provided the parties with copies of relevant statutory provisions, namely, ss 142A and 143 of the POEO Act in relation to the two offences to which the defendant had pleaded guilty, and s 241 of the POEO Act and ss 3A and 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) in relation to the determination of sentence. I confirmed that each party would have the opportunity to address the Court, and explained to the defendant the difference between submissions and evidence: HER HONOUR: I will shortly ask the prosecutor to give an outline of the case in relation to sentence it anticipates to establish, through the evidence. The purpose of the prosecutor's opening address is to assist the Court in understanding the evidence, as it is given during the sentence hearing. What the prosecutor says in its opening address is not evidence; it is nothing more than an outline of what the prosecutor expects the evidence will establish. After the prosecutor has completed its opening address, you have the right to provide your own opening address. You can refer to any issues which you dispute, or which you do not dispute, however, at this stage, your address must be limited to the matters dealt with in the prosecutor's opening address, and, if you wish, to the matters you propose to raise, in relation to your sentence. Just like the prosecutor's opening address, what you say at this stage is not evidence. … HER HONOUR: … You must understand that if during your address you assert facts about the charges which are not supported by your evidence, I may give the prosecutor permission to make a supplementary submission or another address replying to any such assertion: see s 162 of the Criminal Procedure Act. Mr Mouawad, if you would like me to further explain anything I have told you, please let me know now or when the particular matter arises.

[6]

Onus and standard of proof at sentencing

A plea of guilty admits those matters which are the essence of the charge, or the legal "ingredients" of each of the offences. [3] It does not admit the non-essential ingredients an offence. [4] It also does not relieve the prosecutor of its obligation to prove the facts on which it seeks to have the offender sentenced without the offender's assistance. In GAS v The Queen at [30], [5] the High Court said of fact finding following a plea of guilty: In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case. In relation to the standard of proof, a court may not take facts into account in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. [6]

[7]

Evidence

The prosecutor relied on a bundle of primary documents filed 22 January 2021 and documents identified in an amended list of documents filed on 11 May 2023, a NSW criminal history produced by NSW Police on 9 May 2023, and the Court's judgment in Mouawad v The Hills Shire Council (2013) 199 LGERA 28; [2013] NSWLEC 165 (Mouawad v The Hills Shire Council). The prosecutor also read the following affidavits: 1. Ryan Verzosa, affirmed 4 April 2023 (as to the procedural history of the proceedings); 2. Ryan Verzosa, affirmed 28 April 2023 (as to the costs of the investigation); 3. Ryan Verzosa, affirmed 5 May 2023 (as to the costs of the investigation); 4. Ryan Verzosa, affirmed 10 May 2023 (as to searches undertaken in relation to the defendant's continued involvement in the earthmoving industry through the company Dynamic Dwellings Earthworx Pty Ltd (Dynamic Dwellings Earthworx)); and 5. Shanna Staples, affirmed 3 February 2018 (a resident at 14 Geelans Road, Arcadia, who had observed the movements of trucks transporting fill material to the property).

[8]

Waste classification guidelines and resource recovery exemptions

The prosecutor also relied on a document titled "Waste Classification Guidelines Part 1: Classifying Waste" published by the prosecutor (the Environment Protection Authority (EPA)) in November 2014 (the waste classification guidelines). The waste classification guidelines are defined in cl 50 of Sch 1 to the POEO Act as follows: Waste Classification Guidelines means the document entitled Waste Classification Guidelines, published by the EPA and as in force from time to time, copies of which are held in the offices of the EPA.
Under the heading "Introduction", the waste classification guidelines provide that: This part of the Waste Classification Guidelines (the Guidelines) covers the classification of wastes into groups that pose similar risks to the environment and human health. The following classes of waste are defined in clause 49 of Schedule 1 of the Protection of the Environment Operations Act 1997 (POEO Act): • special waste • liquid waste • hazardous waste • restricted solid waste • general solid waste (putrescible) • general solid waste (non-putrescible). To determine which of the above classifications applies to your waste, the following steps must be followed in the order below. Once a waste's classification has been established under a particular step, do not go to the next step; the waste will be taken to have that classification and must be managed accordingly.
The prosecutor further relied on the following documents: 1. Resource Recovery Exemption under Part 9, cll 91 and 92 of the Protection of the Environment Operations (Waste) Regulation 2014 (POEO Waste Regulation) (resource recovery exemption), published in the NSW Government Gazette on 21 November 2014, titled "The excavated natural material exemption 2014", to be read in conjunction with "excavated natural material under 2014", and exempting a consumer of excavated natural material (ENM) from certain requirements under the POEO Act and the POEO Waste Regulation in relation to the application of that waste to land provided the consumer complies with the conditions of the exemption (the ENM exemption); 2. Resource Recovery Order under Part 9, cl 93 of the POEO Waste Regulation (resource recovery order), also published in the NSW Government Gazette on 21 November 2014, titled "The excavated natural material order 2014", and imposing the requirements that must be met by suppliers of ENM to which the ENM exemption applies (the ENM order); and 3. a resource recovery exemption in relation to recovered aggregate (the recovered aggregate exemption), and a resource recovery order in relation to recovered aggregate (the recovered aggregate order), also published in the NSW Government Gazette on 21 November 2014, and issued by the EPA under cll 91 and 92, and cl 93 of the POEO Waste Regulation respectively.

[9]

Statement of agreed facts, plea deal, and the defendant's departure from the statement of agreed facts

The parties filed an extensive statement of agreed facts dated 28 April 2023 (SOAF). The defendant agreed to the SOAF as a condition of an arrangement pursuant to which the prosecutor withdrew a charge against s 144 of the POEO Act in exchange for his plea to the ss 142A(1) and 143(1) offences (the plea deal).
The correspondence in relation to the plea deal established that: 1. on 25 April 2023, the prosecutor sent a letter to the defendant making a plea offer; 2. the terms of the plea deal included that the defendant would accept the Further Amended Statement of Facts served on him by the prosecutor on 12 January 2022 (the preponderance of which was by then reflected in the SOAF), and plead guilty to the s 142A(1) and s 143(1) offences in exchange for the prosecutor withdrawing the s 144 charge and related particulars; and 3. the defendant accepted that offer on those terms by his email to the prosecutor on 26 April 2023. The email chain containing the defendant's acceptance of the plea deal was in evidence.
Following the entry of guilty pleas on 26 April 2023, the defendant was directed to file any evidence by 10 May 2023, and an outline of written submissions, if he so chose, by Monday 15 May 2023. The defendant did not file any evidence or submissions prior to the hearing which commenced on 17 May 2023.
On the first day of the hearing, after the prosecutor's opening, the defendant asked whether he could provide written opening submissions. The prosecutor consented to that course. I again explained to the defendant the distinction between submissions and evidence. I directed the defendant to file and serve written opening submissions by 9am on 18 May 2023. The defendant, through the prosecutor, emailed a scanned handwritten document to my associate at about 9.30am. At the resumption of the hearing on 18 May 2023, the prosecutor submitted that the document provided by the defendant contained both evidence and submissions. The prosecutor submitted that if the document was admitted as evidence, the defendant should be subject to cross-examination. The defendant consented to being called as a witness, and the handwritten document was tendered (Exhibit E).
In cross-examination, the defendant made various statements that contradicted the agreed facts in the SOAF, especially in relation to his state of mind which the prosecutor sought to establish was one of recklessness.

[10]

The defendant's contentions in relation to procedural fairness

On several occasions during cross-examination, the defendant asserted some unfairness insofar as the prosecutor was relying on documents to which he said he did not have access either from his phone or hard-drive, apparently in support of a submission that it had not been possible for him to interrogate the provenance or contents of the documents.
The prosecutor submitted that there was no substance to these claims. The prosecutor referred to on a materially similar contention raised by the defendant at the hearing of an amended notice of motion filed by the prosecutor on 15 July 2022. On 28 September 2022, Moore J delivered an ex-tempore judgment, putting in place steps to ensure that the data that had been imaged from the defendant's devices when a search warrant was executed at his residential premises was made available to him. Moore J was satisfied that those steps had been completed. His Honour said: [21] As a part of the various interlocutory proceedings that have taken place I am now satisfied that all of the potential material that may be sought to be relied upon by the prosecutor either has been made available to Mr Mouawad or has been provided to him in a form which after this morning's hearing he should be able to access electronically being on a hard drive that has been served upon him. However, against the eventuality that the instructions provided to him today are not able to permit him to access the remainder of the material, the relevant software issues having been resolved or rendered resolvable this morning, I have afforded a further time limited opportunity for Mr Mouawad to seek to have the matter relisted before me if he is unable to access that material.
There is nothing in the material before me capable of supporting a finding that the defendant did not have access to the material relied on by the prosecutor.

[11]

Background facts

I now turn to the background facts. The following background facts are largely derived from the SOAF, and the underlying evidence referred to therein.

[12]

Works to be undertaken at the property

On 10 August 2015, Hornsby Shire Council (Council) approved development consent no 1373/2014 for the construction of a horse arena, stables, and landform modifications at the property (the development consent). As part of the landform modifications, the development consent allowed fill to be imported to the property to achieve the filled finished levels required for the development. Condition 28 of the development consent provided as follows in relation to the import of landfill: 28. Landfill Landfill must be constructed in accordance with Council's 'Construction Specification 2005' and the following requirements: a) All fill material imported to the site is to wholly consist of Virgin Excavated Natural Material (VENM) as defined in Schedule 1 of the Protection of the Environment Operations Act 1997 or a material approved under the Department of Environment and Climate Change's general resource recovery exemption.
VENM is defined in Part 3 of Schedule 1 to the POEO Act as follows: virgin excavated natural material means natural material (such as clay, gravel, sand, soil or rock fines) - (a) that has been excavated or quarried from areas that are not contaminated with manufactured chemicals, or with process residues, as a result of industrial, commercial, mining or agricultural activities, and (b) that does not contain any sulfidic ores or soils or any other waste, and includes excavated natural material that meets such criteria for virgin excavated natural material as may be approved for the time being pursuant to an EPA Gazettal notice.
From mid to late 2016, the defendant attended the property intermittently, and commenced undertaking investigations to determine how much stone was required to build a retaining wall and carry out "preparatory works", such as clearing the land in preparation for the importation of fill. The defendant advised Mr Levy that the development works would take 12 to 14 months, that he would need one machine at $1,200 a day for an initial period of 6 weeks, and another machine at $1,000 a day for the duration of the project. The defendant also suggested that fill suppliers should be paying to supply fill, rather than supplying it for free. There was no agreement between the defendant and Mr Levy at the time in relation to preparatory works on the property.
On 29 November 2016, ACN was established as an Australian registered company within the meaning of the Corporations Act. Mr Luke Armstrong was initially appointed as the sole director of ACN at the request of Mr Levy who had "extensive borrowings with the bank", and was worried about construction-related claims from contractors or sub-contractors, and accordingly "wanted to keep himself at arm's length". From 3 October 2017 to the filing of the SOAF on 28 April 2023, Mr Levy was the sole director of ACN.

[13]

Construction deed in relation to the importation of fill at the property

On 15 December 2016, ACN entered into the construction deed with Royal Development and Ozzy Earthmovers for the carrying out of landform modification work on the property as required under the development consent, including in relation to the importation of fill at the property. Under the construction deed, ACN was nominated as the "developer". Royal Development, as the "contractor", was required to procure at least 7,000 loads of "fill material" to be imported onto the property. Ozzy Earthmovers, as the "subcontractor", was required to ensure that all fill material imported to the property: 1. was VENM, as defined under Sch 1 to the POEO Act or "Other Approved Material", defined under the construction deed to mean "material approved under the Department of Environment and Climate Change's general resource recovery exemption and which complies with and is approved in accordance with all Legislative Requirements, the Law, the Environmental Law and Environmental Requirements"; 2. had undergone validation testing in accordance with the relevant EPA and Department of Environment and Climate Change regulatory guidelines to confirm soil suitability and that a "Certificate", defined as "a certificate issued in accordance with the Environmental Requirements certifying that the Fill Material is VENM or Other Approved Material", had been issued (waste classification certificate); 3. complied with resource recovery orders and resource recovery exemptions; 4. complied with the "Waste Regulation", defined under the construction deed to mean the POEO Waste Regulation; 5. was free from any waste, rubbish and asbestos or other hazardous materials; 6. had not been tampered with or added to following certification; and 7. was treated, handled, transported and imported: 1. in strict compliance with any applicable "Environmental Requirements", "WHS Requirements" and other "Legislative Requirements" (as defined in the construction deed); 2. in accordance with the development consent; and 3. consistent with any directions from ACN, being the developer under the construction deed.

[14]

Profit share agreement between the defendant and Mr Levy

In about December 2016, Mr Levy and the defendant entered into a verbal agreement that any funds received from the importation of fill that were left after expenses, GST and a 30% retention fund would be shared "50/50" between Mr Levy and the defendant (the profit share agreement). The funds received for the fill material were to be directed to ACN, and under the profit share agreement, ACN was to make discretionary payments to EJOI Management Services Pty Ltd (EJOI) for the defendant's share of the profit.

[15]

Importation of fill to the Arcadia property

On 6 September 2016, the defendant sent a text message to Mr Sami Allam of Ace Demolition & Excavation Pty Ltd (Ace Demolition) in the following terms: Hi Sami I now operate and manage a sandstone quarry and landfill in Arcadia. We can accept all validated natural fill materials. We also can supply sandstone products, from large boulders, rubble rock and crushed sandstone filling for slab preparation and sub base. Let me know if I can be of assistance to you Regards Paul
From about December 2016, the defendant contacted possible landfill suppliers and made arrangements for fill to be brought to the property. Fill material was transported to the property from eight source sites (the source sites) as follows: 1. on about 7 December 2016, 3 loads of material described as "clean soil" were transported from a site at 90 Veterans Parade, Narrabeen (the Narrabeen site) to the property; 2. between 1 and 4 February 2017, 17 loads of material described as "VENM" were transported from a site at 1A Coulson Street, Erskineville (the Erskineville site) to the property; 3. on 4 February 2017, 2 loads of material described as "VENM" were transported from a site at 32 Fitzwilliam Road, Vaucluse (the Vaucluse site) to the property; 4. between 10 March 2017 and 28 August 2017, 236 loads of material described as "ENM", and 1,039 loads of material described as "recovered aggregate" were transported from a site at 105-115 Portman Street, Zetland (the Zetland site) to the property; 5. between 22 and 23 March 2017, 52 loads of material described as "ENM" were transported from a site at 40-50 Arncliffe Street, Wolli Creek (the Wolli Creek site) to the property; 6. between 3 and 18 May 2017, 42 loads of material described as "ENM" were transported from a site at 23 Bennelong Parkway, Wentworth Point (the Wentworth Point site) to the property; 7. between 19 and 26 May 2017, 6 loads of material described as "ENM" were transported from a site at 350 Northern Road, Castle Hill (the Castle Hill site) to the property; and 8. on 27 July 2017, 2 loads of material described as "recovered aggregate" were transported from a site at Willows Retirement Village, Northmead (the Northmead site) to the property
This produces a total of 1,399 loads of material transported to the property during the charge period of 31 January 2017 to 28 August 2017.
While it was not an agreed fact, there was evidence capable of supporting a finding, beyond reasonable doubt, that a "load" or "truck load" of material refers to the amount of fill that a "truck and dog", meaning a truck and attached trailer, can carry. A report titled "Stakeholder Engagement Plan" dated March 2018, prepared by Newgate Engage on behalf of Arcadia Investment, stated that a truck and dog trailer can carry approximately 30 tonnes of soil. The defendant also gave oral evidence that he knows a "truck and dog" to carry approximately 30 tonnes of fill material.

[16]

General operations of Arcadia Landfill

It was agreed, and I find beyond reasonable doubt, that during the charge period the defendant was the site manager at the property and was responsible for the day-to-day running of the site which included arranging trucks containing material to be delivered, arranging subcontractors and personnel to assist him and making decisions on where material would go. The defendant operated machines on the property and controlled where material was placed. The defendant gave all instructions to drivers either directly from his machine or using his mobile phone.
During the charge period, the general operations at Arcadia Landfill were as follows: 1. The defendant organised arrangements with the landfill suppliers using his contacts to source fill from various sites. 2. When the defendant found a potential source site, he requested ACN to provide a price list for the receipt of fill from site, with details which were provided by the defendant. 3. Mrs Levy, on behalf of ACN, prepared a document titled "Landfill Price List" which provided a quote to the potential supplier for the cost of disposing the material at the property. The "Landfill Price List" was supplied to the source site, usually by email from Mrs Levy. 4. The source site fill confirmed to Mrs Levy or the defendant whether it agreed with the price quoted by ACN. If so, the defendant made arrangements with the source site for the material to be transported to the property. The source site generally supplied its own trucks. However, on some occasions, the defendant arranged trucks for the transport of material to the property. 5. Mrs Levy issued invoices to the source site for the disposal of material at the property. The source site made payment directly to the bank account nominated by ACN.
Mr Levy engaged Mr Miller, as a contractor of ACN, as gatekeeper at the property. Mr Miller's role was to secure the site, to retain records of what material was transported to the property, and to visually inspect loads of material brought to the property. Mr Levy visited the property initially every few days, but as the project progressed, every few weeks to see how the works under the development consent were progressing.
When a truck containing fill material arrived at the property, the following process was ordinarily followed: 1. The truck entered the property and drove past the residence into a turning circle. The defendant was in control of the site, and directed which trucks to enter and at what stage. 2. The truck entered the turning circle. Mr Miller, the gatekeeper, took the truck driver's delivery paperwork (that is, the waste tracking form), and verified the supplying vehicle and driver details. From the waste tracking forms received over the course of the day, Mr Miller later prepared run sheets which recorded the number of trucks that had delivered a load on a particular day (truck run sheets). The truck run sheets were created by Mr Miller to assist Mrs Levy in invoicing source sites which had deposited material at the property. 3. The trucks unloaded in an area located behind the residence, as designated by the defendant. 4. As soon as the trucks unloaded, the material was moved and stockpiled around the property with excavators by either the defendant or Mr Wayne Bogal, an employee of the defendant.

[17]

Payments received by ACN and payments made under the profit share agreement

The below table, reproduced from the SOAF, summarises the payments ACN received in relation to the transport of material to the property from the eight source sites listed above at [60]:
The below table, also reproduced from the SOAF, summarises the payments from ACN to EJOI for the defendant's profit share pursuant to the profit share agreement:

[18]

Waste classification certificates prepared by EI Australia in relation to the Zetland site and Wolli Creek site

In March 2017, Mr Levy on behalf of ACN engaged independent environmental consultants PRM to carry out consultancy work in relation to the property. On 9 March 2017, Mr Nicholas Passlow, director and principal consultant - environmental risk at PRM, sent an email to Mr Levy in relation to PRM's proposed involvement with the property. Mr Passlow said: As discussed, PRM involvement will be as follows: • Review of reports provided for source sites. • Confirmation inspection of each source site. • Collection of samples if required. • Communication to gate-keeper of relevant information from source site inspections. • Weekly inspection of receiving site, collection of progress photos and discussion with gate-keeper. • Compilation of all data into final Filling Overview Report including a comprehensive photograph log.
The task of reviewing "reports provided for source sites" refers to waste classification reports prepared by the environmental consultants engaged by the source sites (waste classification reports), in this case, EI Australia Pty Ltd (EI Australia), engaged by Ace Demolition in relation to the Wolli Creek site and the Zetland site. Under the construction deed, Ozzy Earthmovers was required to ensure that the source sites, or the environmental consultants on behalf of the source sites, had issued a waste classification certificate verifying the classification of the waste type of the material leaving the source site and entering the property, such classification being undertaken in accordance with the waste classification guidelines.
In relation to the Wolli Creek site, on 2 March 2017, Mr Tony Guirguis, environmental consultant at EI Australia, provided a waste classification certificate of the same date to Mr Allam and the defendant relating to approximately 250m3 or 400 tonnes of material. The material from the Wolli Creek site, described as "Stockpiled material (SP5) resultant of excavations on the western portion of the [Wolli Creek] site", was classified as ENM. Under "Classification Comments", the waste classification certificate said (emphasis in original): The material delivered must be consistent with the description given in the Material Characterisation section, above. The Waste Management Facility must satisfy itself that it is appropriately licensed to receive the material described in this certificate, Table 1 and attachments. The waste must be removed from the site and disposed to a facility to accept this type of waste, in accordance with the NSW Waste Regulation 2014. This Classification is only applicable to SP5 and not applicable to any other material present at the site.

[19]

Mr Miller's observations in relation to suspected asbestos in fill imported to the property from the Zetland site

According to a diary entry of the defendant, on or around 6 March 2017, the defendant visited the Zetland site "to inspect fill material" for Ace Demolition.
On 10 March 2017, truck loads of material from the Zetland site commenced being transported to the property. As the first few loads arrived, Mr Miller expressed his concern to the defendant that he could see bricks and tiles in the material coming from the Zetland site. Mr Miller said words to the effect of, "we're getting rubbish". Mr Miller recalled the defendant replying in words to the effect of, "No, no, no…It's all okay, it comes in the classification of ENM".
Later that day, on 10 March 2017, Mr Miller observed material that he suspected to be asbestos in a load delivered to the property by Ace Demolition from the Zetland site. Mr Miller told the defendant about the suspect material. The defendant responded with words to the effect of: Look, don't worry about that. It doesn't matter what you bring in that you would always find a little bit of perhaps Asbestos because it's coming from an old site and this particular site had a lot of Asbestos on it, so you will always find a piece of Asbestos at some stage during the material coming in.
On 11 March 2017, Mr Miller observed a further piece of suspected asbestos in material delivered from the Zetland site. Mr Miller put a sample of the suspected asbestos in a plastic bag which he later provided to the EPA, and which was subsequently analysed and tested positive for asbestos.
On either 11 or 12 March 2017, Mr Miller, Mr Levy and the defendant held a meeting in the garage on the property. The defendant said to Mr Miller words to the effect of: "[y]our role is to do what I tell you, look after the trucks and do the paperwork. I've had complaints that you've been getting in the way and trying to listen to my conversations."
Mr Levy also said to Mr Miller words to the effect of: "your role is [sic] look after all of the paperwork and keep an eye on what is coming in to make sure that it is material according to the DA. But in the end Paul is in charge of the site, so if anyone comes on [sic] from Council then they should speak to Paul."

[20]

Inspections of the property by Progressive Risk Management

On 13 March 2017, Mr Brown and Mr Passlow of PRM attended the property, and met with Mr Levy and Mr Miller. Mr Passlow observed some stockpiled material which appeared to contain a high concentration of building rubble, and not to reconcile with information in the waste classification reports that had been provided to him by Mr Levy. Mr Levy and Mr Miller told Mr Passlow that no fill materials had, at that stage, yet been imported to the property, and that they were in the process of obtaining an exemption from the EPA for material coming to the site.
On 16 March 2017, Mr Brown inspected the Wolli Creek site and the Zetland site. Prior to his inspections, Mr Brown was provided with the waste classification certificate dated 2 March 2017 in relation to the Wolli Creek site (see above at [76]) and the waste classification certificate dated 23 February 2017 in relation to the Zetland site (see above at [79]). The certificates which indicated that approximately 400 tonnes of material from the Wolli Creek site and 3,600 tonnes of material from the Zetland site was classified as ENM.
Upon his inspection at the Wolli Creek site, Mr Brown observed a stockpile of material with two soil profiles: an upper profile consisting of black sands and rubble, and a lower profile consisting of grey/white sands. Mr Brown considered the lower soil profile to be suitable to import to the property, but that the upper soil profile was not suitable.
Upon his inspection at the Zetland site, Mr Brown observed excavated material being processed through sieves and screening machinery. Mr Brown considered the resulting processed material not to be ENM and not suitable to import to the property as he observed the presence of building rubble and what he suspected to be asbestos containing materials within the soil.
On 16 March 2017, following his inspection at the Wolli Creek site and the Zetland site, Mr Brown conducted an inspection at the property with Mr Miller present. Mr Brown observed that material had been placed in one large stockpile, and what he suspected to be asbestos containing material and small fragments of building rubble including brick, terracotta, ceramic tile, glass and concrete in the material. Mr Brown considered that the stockpiled material was not ENM, and he observed that the material was very similar in appearance to the material he had seen at the Zetland site. Mr Brown also observed three pieces of what he suspected to be asbestos containing material on the ground near the turning circle.

[21]

Application to the EPA for a resource recovery order and resource recovery exemption

On or about 28 March 2017, Ms Aisling Carroll, Waste and Resource Recovery at the prosecutor, received an email from "paul@aussieearthmovers.com.au" with the subject line "Resource Recovery Exemption". Mr Guirguis of EI Australia was also copied into the email. That email said: I spoke to you a few weeks ago regarding our landform modification project in Arcadia. It's a little while getting the required information for the application but finally it's done! I have attached the application for your perusal and assessment. Tony, our environmental consultants details are on the application so feel free to contact should you require clarification. And of course you can call me directly on … We have commenced the early works and land clearing and with that in mind your earliest attention would be much appreciated.
Attached to the email was the exemption request letter of 23 March 2017, addressed to Ms Carroll with the subject line "RE: Application for a Resource Recovery Exemption Lot 1 DP239444, Geelans Road, Arcadia, NSW". The email was signed off by Paul Mouawad "[f]or and on behalf of Ozzy Earthmovers Pty Ltd". The letter said: 2. Background Information Ozzy Earthmovers Pty Ltd is the nominated civil contractor on behalf of the site owner (Mr David Levy and Mrs Maria Levy of Arcadia Holdings) to modify the landform of the site as approved by The Council of the Shire of Hornsby under DA/1373/2014. The development involves the construction [sic] a horse arena and stables. I have attached a copy (Appendix B) of the Development Consent including the Construction and Environmental Management Plan which formed part of the council issued Construction Certificate for your reference. The civil works will require the importation of an estimated quantity of suitable fill material of approximately 120,000m3. The majority of the required fill will not require specific geotechnical properties (eg. Compactable clays) and can include sands, gravels, clays, rock or a combination of these. Foreign inclusions such as brick and concrete would form characteristics of the type of soil suitable to be imported for the purpose of backfill. The fill material is required to be sourced largely from various excavation sites in Sydney. Due to the large quantity of materials required, the material will need to be assessed on a project by project basis to ensure that the chemical composition is suitable for application to the site. 3. Characterisation of the Source Material The source material is to be characterised according to the schedule presented as Appendix A. Assessment of the source material must be conducted by the source entity and will need to include the following: • Property location, description and history (i.e. current and previous uses); • Detailed description of the assessed materials including a photographic log and borehole logs (borehole logs where the assessed material is insitu); • Methodology sampling and analysis. Analysis must be conducted by a NATA Accredited laboratory; • Laboratory results; • QA/QC results and discussion; • Calculation of the average concentration, the sample standard deviation and the 95% upper confidence limit (UCL) of the average concentration for each chemical of concern per batch. • Conclusion that the 95% UCL for the mean concentration, or highest concentration if less than 10 samples collected, is less than or equal to the limit value specified for that chemical of concern in a batch; • Statement regarding the suitability of the material in relation to the criteria; Source assessment certificates for each batch of source material will be required to undergo review by the environmental consultant (EI Australia) and an inspection of the source materials prior to approval of the source material for transport to the site. … 7. Quality Assurance and Controls Quality control will be a requirement during the soil investigation and classification phase from the source properties (as detailed above). All Materials imported to the site will be visually assessed by Ozzy Earthmovers Pty Ltd during unloading to ensure the characteristics of the material as received are consistent with those identified in the source assessment certificate. Additionally, all materials imported to the site will be logged and recorded for each and every individual load with truck trucking [sic] dockets issued to the drivers. Any materials which fail the visual assessment will be held separately onsite and bunded. No further materials from a source property will be allowed onsite until verification by the site environmental consultant. Where the site environmental consultant identifies the materials to be unsuitable the materials will be reloaded for transport back to the source property.

[22]

13 July 2017 inspection of the property by Council

On 13 July 2017, Ms Nichola Clarke, compliance team leader at Council, conducted a site inspection at the property. During the inspection, Ms Clarke was introduced to the defendant as the site supervisor from Ozzy Earthmovers for the earthworks being undertaken at the property.
During the inspection, Ms Clarke observed that fill had been stockpiled near the residence. Ms Clarke queried the chain of custody processes in relation to the material imported to the site. The defendant said that a site auditor/consultant was present at the Zetland site who oversees the contents of the material being excavated prior to leaving the site. The defendant said that upon trucks arriving at the property, the onsite caretaker, Mr Miller, reviewed the tracking docket, ensuring that the times from and to the sites were consistent with all other trips, and issued a delivery docket to the driver stating the time that the truck arrived.

[23]

15 August 2017, 7 September 2017 inspections of the property by the prosecutor

On 12 July 2017, the prosecutor received a report from a member of the public who described having witnessed alleged illegal dumping of soil mixed with other material at the property.
The prosecutor first inspected the site on 15 August 2017. At the prosecutor's first site inspection on 15 August 2017, officers of the prosecutor, Ms Stephanie Todd and Mr Joshua Madden, observed a large stockpile of material which appeared to comprise soil, bricks, concrete, timber, metal, plastic, tile and other contaminants. Ms Todd and Mr Madden asked the defendant a number of questions about the material. The defendant said that the material was engineered fill, and that "the material was not meeting the definition of recovered fines (batch) but instead it meets the classification of recovered aggregate."
Ms Todd and Mr Madden collected a number of samples from the stockpiled material, an analysis of which by the Office of Environment and Heritage (OEH), Environmental Forensics on 1 September 2017 confirmed the presence of elevated levels of chemical contaminants.
On 30 August 2017, the prosecutor received two further reports from members of the public. The first caller alleged that waste material including soil contaminated with diesel and suspected asbestos was being illegally dumped at the property. The second caller alleged that many tonnes of building material were being dumped at the property.
On 7 September 2017, Ms Todd along with other officers of the prosecutor, Ms Laura Ansted and Mr Damien Rose, conducted a further site inspection. Ms Todd, Ms Ansted and Mr Rose observed a large stockpile of material containing tiles, metal, particleboard, bricks, concrete and fragments of potential asbestos containing material. On this occasion, Mr Miller told Ms Todd that the majority of the stockpiled material was from the Zetland site. The prosecutor's officers collected a number of samples from the stockpiled material, including 10 samples of suspected asbestos containing material, 9 of those samples from the surface of the stockpile, and one from a depth of approximately two metres in the centre of the stockpile. Analysis of the samples by OEH Environmental Forensics on 12 September 2017 and 27 September 2017 confirmed the presence of elevated levels of chemical contaminants in the material, and the presence of asbestos in each of the 10 samples.

[24]

28 September 2017 email from the defendant to Mr and Mrs Levy

On 28 September 2017, the defendant sent an email to Mr and Mrs Levy, stating as follows in relation to the detection of asbestos containing material on the property: Firstly, if you guys were up front with your neighbors [sic] from the start then this would never have gained such media attention. Secondly had I been told the truth about the advice given by your independent auditor where back in June Nick Parslow [sic] advised Ian and Dave that the material was not the same as the reports provided then I personally would have stopped Ace. Why was I not told the truth, why was this information Not disclosed and why in the bloody hell was this held from me???? Aren't we a team??? Ian conveniently sent me only part of the correspondence and that's only after I had to beg for it!! And For the the [sic] record, it was his incompetence and pure laziness and refusal to do what his main role was and that was to CHECK THE BLOODY LOADS!!!!! Blind Freddy could have seen those fragments!!!! Notwithstanding this, the email from Nick is also highly detrimental to Dave in terms of liability and culpability. I told you guys to run everything past me as I have a great deal of experience in these matters as I confided in Dave about my previous issues with The Hills Council. Further, when the EPA first went to this site, I made a statement which would have made this all go away yet you guys did not have the foresight to keep me in the loop yet you guys treated me as though this was all my fault. You accused me of being a thief and the cause of this where this is further from the truth.

[25]

20 September 2017 clean-up notice issued by the prosecutor, and actions pursuant to the clean-up notice

On 20 September 2017, the prosecutor issued clean-up notice no 1556544 to Arcadia Investment, as landowner of the property, pursuant to s 91 of the POEO Act (the clean-up notice). The clean-up notice directed, amongst other things, that effective sediment controls be installed and maintained at the property, and that a waste classification report be prepared by a suitably qualified expert to provide to the prosecutor results of sampling and classification of the fill material at the property.
On 25 October 2017, the prosecutor issued a variation of clean-up notice no 1557934 to Arcadia Investment, pursuant to s 110 of the POEO Act, varying the clean-up notice to extend the due date for providing a waste classification report from 19 October 2017 to 27 October 2017.
On 27 October 2017, the prosecutor received a waste classification report pursuant to the clean-up notice, prepared by the Benviron Group, titled "Soil Classification Report Number E1527", and dated 26 October 2017 (the soil classification report). The soil classification report outlined the objectives and scope of work of the Benviron Group as follows: 2.0 Objectives The objectives of this waste classification were to: • Assess the size and composition of the in-situ material; • Assess the nature and extent of contamination in the material; and • Determine the classification of the material in accordance with the Waste Classification Guidelines - Part 1: Classifying Waste (EPA NSW 2014). 3.0 Scope of Work To achieve the above objectives, Benviron Group completed the following scope of work: • Collection of soil samples from the materials to be disposed of within the Site; • Submission of samples to the NATA accredited analytical laboratory for analysis; and • Production of this waste classification report.
On 20 November 2017, the prosecutor received a revised waste classification report prepared by the Benviron Group, titled "Soil Classification Report Number E1527-R1", and dated 20 November 2017 (the revised soil classification report). The revised soil classification report concluded: The soil concentrations of all tested analytes as shown in Table 1, exceed the CT1 [contaminant threshold value] of the NSW EPA 2014 (EPA) Waste Classification guidelines. Further TCLP [toxicity characteristics leaching procedure] Testing was carried out on the 10/11/17 in order to further classify the materials within the filled material within the investigation area. All results were below TCLP 1 and SCC1 [specific contaminant concentration] criteria with the exception of soils in the vicinity of TP10/5 which exceed the SCC1 guideline criteria for PAH [Polycyclic Aromatic Hydrocarbons]. With reference to a site walkover, the attached site plan, following the laboratory analysis and with reference to NSW EPA guidelines, the imported materials found have been classified as follows: • Special Waste in all samples (except TP10/5) • Restricted Waste within TP10/5 Based on the concentrations within the sample TP10/5 it is recommended that delineation testing is undertaken on the samples in order to reduce the amount of material that is required to be removed as restricted waste during offsite disposal.

[26]

18 December 2017 volumetric survey on the property

On 18 December 2017, Mr Daniel Craker of Freeburn Surveyors carried out a volumetric survey of the stockpile at the property at the instruction of the prosecutor (the volumetric survey). The prosecutor received the results of the volumetric survey on the same date.
According to Mr Craker, a volumetric survey is a survey of a volume of area. In the case of a stockpile of fill, a volumetric survey is a calculation of base surface and stockpile surface that depicts the volume of the stockpile. Mr Craker's volumetric survey of the stockpile of imported fill material on the property as at 18 December 2017 "determined the volume of the stockpiled material to be approximately 11,360m3."

[27]

Expert evidence of Mr Andre Smit and Dr Daniel Martens on stockpiled material

Mr Andre Smit, technical director at GHD Pty Ltd, prepared an expert report at the instruction of the prosecutor, titled "Arcadia Stockpile Waste Classification", dated 4 June 2018, in relation to the analysis of 40 soil samples taken from the stockpile of fill material at the property (the Smit report). In preparing his report, Mr Smit undertook the following scope of works: 1. review of existing information, including 12 waste classification certificates and three resource recovery certificates prepared by EI Australia in relation to material at the Zetland site and the Wolli Creek site; one waste classification report prepared by ADE Consulting Group in relation to the Wentworth Point site; two waste classification reports prepared by Benviron Group in relation to the property; and the volumetric survey of the property; 2. inspection of the stockpiled material on the property and discussion with an EPA representative regarding the contents and potential origins of the stockpiled material; 3. removal of an existing geofabric cover from the stockpile on the property to facilitate sampling; 4. collection of representative samples from the stockpiled material on the property, and logging of observations; 5. carrying out asbestos fibre monitoring in the air; 6. reinstatement of the geofabric covering following completion of sampling; 7. submitting samples to an accredited laboratory for analysis; 8. analysis of samples for total recoverable hydrocarbons, being benzene, toluene, ethylbenzene, xylenes and naphthalene; polycyclic aromatic hydrocarbons; eight metals, being arsenic, cadmium, chromium, copper, nickel, lead, zinc and mercury; organochlorine pesticides; polychlorinated biphenyls; and asbestos; 9. data and statistical analysis of laboratory results; 10. additional analysis of selective samples for lead and benzo(a)pyrene using a procedure known as the toxicity characteristics leaching procedure; and 11. preparing a waste classification report in accordance with the waste classification guidelines.
In his report, Mr Smit opined as follows (emphasis in original): • Asbestos was detected by the NATA accredited laboratory in 13 of 40 samples analysed. NSW EPA (2014) defines asbestos waste as any waste that contains asbestos. This is further supported by the detections of asbestos by Benviron (2017b) and NSW EPA with no discernible distribution. • Visually distinct material in the vicinity of BH304 between 0. 7 and 3.1 mBGL, and in the estimated area indicated in Appendix B exceeded SCC1 and SCC2 criteria for B(a)P. While asbestos was not detected at BH304, the presence of asbestos in this area cannot reasonably be ruled out given the apparently random distribution of this contaminant in the stockpile. The material in the vicinity of BH304 between 0.7 and 3.1 mBGL is therefore considered to be classified as: Special Waste (Asbestos Waste) and Hazardous Waste. • All remaining stockpiled material (i.e. with the exception of localised material around BH304) is therefore considered to be classified as: Special Waste (Asbestos Waste). … • All of the imported fill material (assumed to be 11,360m3 from the Freeburn survey results) is considered to be Asbestos Waste, based on the prevalence of bonded and fibrous asbestos detected at multiple locations with no discernible patter with regards to distribution or material type. Assuming an average bulk density of 1.8 tonnes/m3, this equates to approximately 20,000 tonnes. • None of the material has been classified as Restricted Solid Waste. • Up to 1000m3 of hazardous waste has been identified in the vicinity of BH304 between 0.7 and 3.1 mBGL. Assuming an average bulk density of 1.8 tonnes/m3, this equates to approximately 1800 tonnes.

[28]

Relevant statutory provisions

Section 142A of the POEO Act, as it was during the charge period, provided relevantly: 142A Pollution of land (1) A person who pollutes land is guilty of an offence. Maximum penalty: … (b) in the case of an individual - $250,000, and in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. … (2) In this section: pollute land includes cause or permit any land to be polluted.
Section 142A has since been amended to the effect that the maximum penalty for an offence against s 142A, in the case of an individual is $500,000 (if the offence involves asbestos waste), or $250,000, and in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
Section 143(1) of the POEO Act, as it was during the charge period, provided: 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 - $1,000,000, or (b) in the case of an individual - $250,000.
Section 143(1) has similarly been amended since the charge period to the effect that the maximum penalty for an offence against s 143, in the case of an individual is $500,000 (if the offence involves asbestos waste), or $250,000.
The objects of the POEO Act set out in s 3 relevantly include: 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, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, …

[29]

Objective seriousness of the offence

The objective seriousness of the offence is measured without reference to matters personal to the offender. It is to be determined "wholly by reference to the nature of the offending". [22]
In determining the objective gravity or seriousness of the offences here, the circumstances to which the Court may have regard include: [23] 1. the nature of the offence; 2. the maximum penalty for the offence; 3. the harm caused to the environment by the commission of the offence; 4. the defendant's state of mind in committing the offence; 5. the defendant's reasons for committing the offence; 6. the foreseeable risk of harm to the environment by the commission of the offence; 7. the practical measures to avoid harm to the environment; and 8. the defendant's control over the causes of harm to the environment.
Some of these factors overlap with the statutory sentencing considerations in s 241 of the POEO Act set out above at [137].
The prosecutor submitted that the objective features of the offences place the offending in the "medium to high" range of objective seriousness.

[30]

Nature of the offences

When sentencing for environmental offences, a fundamental consideration is the degree to which, having regard to the maximum penalties provided in the statute, the offender's conduct would offend against the legislative objectives expressed in the statutory offence. [24] The nature of the provision creating the offence and its place in the statutory scheme shed light on the objective seriousness of the offence. [25] Ascertaining the purpose of creating an offence is assisted by consideration of the objects of the statute. [26]
The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision, contravention of which constitutes the offence, and its place in the statutory scheme. A proper understanding of the purpose of creating an offence is assisted by consideration of the objects of the statute. [27] A fundamental consideration is the degree to which, having regard to the maximum penalty prescribed by the statute for the offence, the offender's conduct would offend against the legislative objective expressed in the offence. [28]
The defendant's conduct here involved causing the importation of waste material, including asbestos waste, to the property which could not lawfully be used as a waste facility for that waste. Such conduct, the prosecutor submitted, and I find, offended against the legislative objectives of ss 142A and 143 of the POEO Act, and thwarted the achievement of the objects set out in s 3 of the POEO Act, including ecologically sustainable development and the beneficial protection of the environment and human health. In Bankstown City Council v Hanna (BCC v Hanna), [29] Preston CJ said at [53]-[55]: 53 …[T]he POEO Act also specifically proscribes certain conduct concerning the transporting and depositing of waste without lawful authority. This includes the use of a place as a waste facility (being premises used for the storage, treatment, processing, sorting or disposal of waste: see Dictionary to the POEO Act) (s 144(1) of the POEO Act); the transporting of waste to and the depositing of waste at a place that cannot lawfully be used as a waste facility for that waste (s 143(1) of the POEO Act); and polluting land, such as by depositing waste on land (s 142A(l) of the POEO Act). The prohibition of this conduct prevents land pollution and its impacts on the environment, including harm to human health. A person can only carry out the conduct if a licence has been issued authorising the person to do so. Application for and approval of a licence ensures the proper assessment of the conduct, the land on which the conduct is proposed to be carried out, and the environmental impacts of the conduct, as well as an assessment of whether the person is a fit and proper person to carry out the conduct (including whether the person has contravened the POEO Act, such as having been convicted of waste offences against ss 142A(l), 143(1) or 144(1) of the POEO Act). 54 The statutory provisions requiring application for approval, assessment and approval of activities are linchpins of the statutory scheme. An offence against these provisions thwarts the achievement of the objects of the POEO Act, including ecologically sustainable development, and undermines the integrity of the regulatory scheme under the POEO Act. 55 These general statutory provisions are supplemented by particular provisions dealing with waste that is asbestos waste. Clause 42 of the Waste Regulation prescribes special requirements relating to the transportation and off site disposal of asbestos waste. Together with the general statutory provisions, these particular regulatory provisions are intended to ensure that waste containing asbestos is transported and disposed of in a safe and healthy manner and at a landfill site that may lawfully receive the waste, so as to prevent harm to the environment, and particularly to human health.

[31]

Maximum penalty for the offence

The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence and a yardstick to measure the relevant features of the offence for which the defendant is to be sentenced. [30] Careful attention to maximum penalties will almost always be required because, amongst other things, they invite comparison between the worst possible case and the case before the court at the time. [31]
During the charge period, the maximum penalty for an offence against s 142A(1) of the POEO Act, in the case of an individual, was $250,000. [32] The maximum penalty for an offence against s 143(1) of the POEO Act, in the case of an individual, during the charge period, was likewise $250,000. [33]
The prosecutor submitted that the maximum penalty is of great relevance in determining the objective gravity of the offence. [34] It reflects the public expression by Parliament of the seriousness with which the offences are viewed. [35]

[32]

The defendant's state of mind in committing the offence

The defendant's state of mind was a central point of contention in the hearing on sentence. The prosecutor provided lengthy submissions on the defendant's state of mind, both in its outline of opening submissions filed on 12 May 2023 (prior to the hearing), and in its supplementary submissions filed on 24 May 2023 addressing matters that arose from the defendant's denial of recklessness in Exhibit E and in cross-examination.
An offence against each of s 142A(1) and s 143(1) of the POEO Act is a strict liability offence. The prosecutor submitted that the defendant committed the s 142A(1) offence recklessly, and that the state of mind of the defendant could also be taken into account for the purposes of considering the objective seriousness of the s 143(1) offence, albeit not as a factor of aggravation.

[33]

Relevance of state of mind in relation to the s 142A(1) offence of polluting land

In relation to the s 142A(1) offence of polluting land, the prosecutor submitted that if the offence is committed intentionally, recklessly or negligently, this will serve to increase the objective seriousness of the offence. [36]
The prosecutor relied, in particular, on the decision of Pepper J in Environment Protection Authority v Albiston (Albiston), [37] where her Honour articulated the principles relevant to a finding of recklessness as follows: 98. In Plath v Vaccount Pty t/as Tableland Timbers [2011] NSWLEC 202 the Court considered the test for recklessness (at [98]): 98. The term recklessness describes the state of mind of an offender who, while performing or failing to perform an act, is aware of the risk that a particular consequence is likely, in the sense of probable or possible, to result from that act or omission (Pemble v R (1971) 124 CLR 107, La Fontaine v R (1976) 136 CLR 62 and R v Crabbe (1985) 156 CLR 464). Recently in Blackwell v R [2011] NSWCCA 93, the Court of Criminal Appeal described the mental element of "reckless" as (at [76]): 76. The effect of this line of authority is that where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence. 99. An offender's conduct will be found to be reckless if he, she or they are put on notice, in the sense that he, she or they believe or suspects, that an act or omission may be unlawful but nevertheless proceeds to engage in it without making further enquiries (Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 at [136], citing Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126] and Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150 at [141]). 100. The Court described the difference between recklessness and negligence as follows in Environment Protection Authority v Ridley AgriProducts Pty Limited [2019] NSWLEC 119 (at [71]-[72]): 71. In Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 ('Brummell') at [51], Preston J noted that: A critical difference between [recklessness and negligence] is that recklessness is measured on a subjective standard (the referent being the offender) while negligence is measured on an objective standard (the referent is a hypothetical reasonable person). 72. For an offender to be reckless in the commission of an offence, they need to have "knowledge or foresight of the likelihood of the consequence or circumstance occurring" in the sense ofa "real and not remote" chance: Brummell at [52]. While pertaining to different factual circumstances to those in the present matter, in Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126], Pepper J considered recklessness in the context of clearing native vegetation as follows: An offender's conduct will be classified as reckless where he or she is put on notice, in the sense that he or she believes or suspects, that the clearing of native vegetation may be unlawful but nevertheless proceeds to undertake the clearing without making further enquiries (Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 at [50] and Director-General, Department of the Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100 at [50]).

[34]

Relevance of state of mind in relation to the s 143 offence

In relation to the s 143(1) offence, the prosecutor, properly, referred to the principle in The Queen v De Simoni (De Simoni) [42] which prevents the offender's state of mind from being taken into consideration for an offence if to do so would expose the offender to punishment for a more serious offence, namely the offence of wilfully or negligently disposing of waste in a manner that harms or is likely to harm the environment in contravention of s 115 of the POEO Act. [43]
However, in Environment Protection Authority v Hanna (EPA v Hanna), Preston CJ accepted that the defendant's state of mind could increase the objective seriousness and also be an aggravating factor under s 21A(2)(n) of the CSP Act as a "planned or organised activity" in relation to a s 143 offence, although in that case, the chief judge was mindful to "avoid double counting of factors that increase the objective seriousness of the offences". [44] Here, the prosecutor submitted that the approach in EPA v Hanna was to be preferred, and that it was difficult to see how De Simoni would apply to a s 143 offence given that the nature of a s 143 offence is the unlawful transport of material, whereas the nature of a s 115 offence, in comparison, is the wilful disposal of waste.
The prosecutor submitted that if the Court were to find that the principle in De Simoni prevented the defendant's state of mind from being considered as a factor in aggravation for the s 143(1) offence, the Court could nevertheless take it into account in assessing the objective seriousness of both offences, relying on Hughes at [87]; Environment Protection Authority v Sydney Water Corporation at [158] [45] and Aland at [85]-[86]. Similarly, the prosecutor submitted that the principle in De Simoni is not offended if "the otherwise offending conduct is considered for the purpose of assessing the need for specific deterrence". [46]
In the circumstances here, I am not satisfied that it is available to me to take into account the defendant's state of mind as an aggravating factor in relation to the s 143(1) offence. However, the De Simoni principle does not preclude me from considering the same evidence relating to the defendant's state of mind, which goes to the objective seriousness of the offence and the need for specific deterrence.

[35]

Conclusions in relation to the defendant's state of mind

From March 2017, the defendant was on notice of the likelihood that there was asbestos in the loads of material that were being delivered from the Zetland site, but took no steps to halt deliveries to the property from the that site. In May and June 2017, the defendant continued to arrange the importation of additional material from the Zetland site, even after concerns were raised with him by Mr Brown of PRM on 13 June 2017.
The exemption request letter (see above at [103]) to the prosecutor regarding the steps that would be taken by way of quality control and assurance in the event that an exemption was granted also supports a finding, beyond reasonable doubt, that the defendant was aware of the need for all fill coming to the property to be classified by an environmental consultant and for steps to be taken to ensure that the material that was imported was the same material that had been so classified.
The defendant did not implement any of the measures that had been identified as necessary in the exemption request letter. The prosecutor has established, beyond reasonable doubt, that: 1. not all fill received at the property was subject to a waste classification certificate prepared by a qualified environmental consultant; 2. there was no system in place for assessing whether the material being transported met the description in any certificate issued at the source site. For example, Mr Miller's role was to check that drivers had a waste tracking form, not to validate the fill they were carrying against any waste classification certificate issued at the source site, and there was no evidence that the defendant himself took any such steps; and 3. there was no evidence that any fill material in relation to which potential asbestos containing material was identified was sent back to any source site after a concern was raised about its contents, notwithstanding claims that may have been made to PRM at the time.
There was also evidence that the defendant would have continued to offend by bringing in a significantly larger volume of fill to the property had the activities not been halted by the regulator: see the reference in the exemption request letter to 120,000m3 of fill which, on Mr Smit's conversion of cubic metres to tonnes, would be approximately 216,000 tonnes that the defendant intended to import to the property. I have considered that evidence and find, beyond reasonable doubt, that the defendant would have continued to bring a significantly larger volume of fill to the property had the activities not been halted by the regulator by way of a verbal clean-up direction on 7 September 2017. These facts, established beyond reasonable doubt, bear upon the objective seriousness of both offences, as well as the need for specific deterrence.

[36]

The defendant's understanding of waste compliance and whether he was responsible for the exemption request letter

In Exhibit E, the defendant contended as follows: My state of mind was not that of recklessness. There was never intent in polluting the land. Due diligence was carried out prior to commencement. My objective was in executing civil construction works as per the contract with/ between the builder Royal and the owner Arcadia Investments (Dave Levy). My scope was to harvest / quarry the sandstone from within the property, construct a 200mm sandstone retaining wall, and fill and compact to the required reduced levels. There was never any intent or premeditation to commit any offence whatsoever…
And: As part of the due diligence in ensuring all material complied with the approvals for Hornsby council an environmental consultant was engaged to visit the source site, do the required testing, obtain waste classification report and validate the soils. ... I believed that all proper steps and due diligence had been in place and had been carried out in tracking [?] monitoring and checking off all loads prior to tipping.
The prosecutor submitted that these assertions by the defendant gave rise to a question as to the level of awareness of the defendant as to the composition of the fill brought to the property, and its actual or potential contamination.
The defendant gave evidence that he has worked in civil contracting, demolition and earthworks for approximately 25 years. He accepted that in 2017, he had a good understanding of the regulatory framework in respect of waste disposal in New South Wales. He agreed that in 2017 he knew that, in order to transport fill from one location to another, any material needed to be tested to ensure that it fell within relevant exemptions, and there needed to be a waste classification certificate issued for the fill confirming that the material fell within a relevant exemption. He knew that if material was not VENM, it was necessary to establish that it was covered by a resource recovery exemption through the fill being tested. He also agreed that in 2017, he knew that a person at the receiving site needed to check that the material delivered was consistent with the observations in the waste classification certificate.
The prosecutor submitted, and I find beyond reasonable doubt, that the exemption request letter of 23 March 2017 shows an understanding on the part of the defendant, contemporaneous with the charge period, of the need for proper chain of custody procedures for fill in order to ensure that the fill validated pursuant to a waste classification certificate at a source site was the same fill as that dispatched to the receiving site.

[37]

The defendant's control over the process of fill validation

Likewise, the defendant's attempts in oral evidence to distance himself from a position of control over the process of verifying whether the fill brought to the property was compliant with the development consent and the POEO Act waste regime should be rejected. The defendant's responsibility for and control over the process of fill validation was established, beyond reasonable doubt, by the following: 1. the construction deed under which Ozzy Earthmovers was required to verify the fill and comply with the conditions of any resource recovery exemptions (see above at [57]); 2. that the defendant stood to profit from the importation of fill under the profit share agreement with Mr and Mrs Levy (see above at [58] and [73]); 3. that the defendant was the point of contact for suppliers of fill and the intermediary between suppliers and Mrs Levy who prepared the invoices on behalf of suppliers (see above at [59]); 4. in exchanges with Mr Miller, the defendant sought to assure the Mr Miller about the composition of the fill (see above at [84]-[88]); 5. the defendant liaised with Council in relation to the fill material in response to queries raised by Council at its site inspection on 13 July 2017 (see above at [108]-[109]); 6. the defendant was provided waste classification certificates for the fill from the Zetland site by either Ace Demolition or EI Australia (see above at [76]-[81]); and 7. the defendant supplied the pro forma or template tracking form details to be used as part of the fill importation process (see above at [67]). The defendant agreed in cross-examination that he did this because he was trying to set up a system for verification of the fill that went to the property. [47] However, the verification process that was put in place by the defendant did not include any facility to match imported waste to the waste classification certificate that was relied upon in relation to it. [48]

[38]

Awareness that imported material was or had a real risk of being contaminated

In relation to the defendant's awareness that imported material was or had a real risk of being contaminated, the prosecutor relied on the SOAF in which it was agreed that Mr Miller raised concerns with the defendant about "rubbish" coming to the property in March 2017 (see above at [84]). In cross-examination, the defendant agreed that Mr Miller had expressed concern about material from the Zetland site. [49] The prosecutor submitted, and I find, that the defendant should not be believed insofar as he went on to deny other aspects of the conversation with Mr Miller that are described in the SOAF.
It was an agreed fact that Mr Brown of PRM communicated with the defendant about concerns in relation to the fill material in June 2017 (see above at [99]). In his oral evidence, the defendant did not give any plausible explanation for such matters having been raised with him by Mr Brown. [50]
The defendant gave evidence that he did not see any asbestos-looking fragments at the property. [51] I reject that evidence because it is inconsistent with his admissions in the SOAF, as well as the 28 September 2017 email sent by him to Mr and Mrs Levy following the prosecutor's intervention at the property on 7 September 2017 (see above at [117]). The defendant's attempts to explain the statement in that email that "Blind Freddy could have seen those fragments" is entirely implausible. That statement would not have been included by the defendant in his email of 28 September 2017 unless he himself had observed material that he suspected to be asbestos fragments in the material brought to the property in March 2017. [52]

[39]

No lawful authority for all of the fill material to be brought to the property

The prosecutor submitted that the defendant's plea of guilty to the s 143(1) charge reflected an acceptance by him that there was no lawful authority to import all of the fill brought to the property in the charge period under the development consent and/or the POEO Act. The prosecutor submitted that there was nothing in the defendant's evidence that controverted the prosecutor's contention that the volume of fill delivered to the property was "far in excess" of that the subject of waste classification certificates sent to the defendant (see above at [76]-[81]).
In his oral evidence, the defendant estimated that the capacity of a truck and dog trailer was approximately 30 tonnes. He said he knew that material imported to the property had to have a waste classification report. In cross-examination, he was shown: 1. the waste classification certificate dated 23 February 2023 in relation to material imported in the first Zetland period (see above at [79]); and 2. the waste classification certificate dated 26 May 2023 in relation to material imported in the second Zetland period (see above at [80]).
He did not testify that he had obtained any waste classification certificates in addition to those identified by the prosecutor in relation to fill imported to the property.
When asked whether he checked that all of the fill delivered from the Zetland site to the property was covered by a waste classification certificate, the defendant replied: "I assumed it was. I assumed it was based on everything that was provided." I find that there is no plausible basis upon which the defendant could have made such an assumption given that the volume of material imported "far exceeded" the volume referenced in the waste classification certificates provided to him. Again, the prosecutor submitted, and I find cogent, that this was evidence of recklessness as to whether the fill being imported to the property was appropriately verified.

[40]

Conclusion as to the defendant's state of mind

Having regard to the exemption request letter, together with the evidence given by the defendant in relation to his experience in earthworks and his knowledge of the procedures that should be in place for the importation of fill material, I find that the offence against s 142A(1) of the POEO Act to which the defendant has pleaded guilty was committed recklessly, by reference to the principles in relation to a reckless state of mind set out above at [152]-[154] and [157]-[159]. In relation to the offence against s 143(1), I find that the same evidence goes to the objective seriousness of the offence, and the need for specific deterrence.

[41]

The harm caused to the environment by the commission of the offence: s 241(1)(a) of the POEO Act

The phrase "[h]arm to the environment" is defined in the POEO Act to include: ... any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.
In Environment Protection Authority v Waste Recycling and Processing Corporation, [53] Preston CJ said at [145]-[147]: 145. Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. 146. Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects the other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd at [174]. 147. Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously.
In Newcastle City Council v Pace Farm Egg Products, [54] Lloyd J said of the meaning of harm that is "likely to be caused to the environment" (at [44]): 44. 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)…
The prosecutor submitted that the importation of waste materials including asbestos waste to the property caused actual environmental harm as identified in the Martens report as follows: 1. the fill which was uncompacted and capable of storing rainfall and groundwater caused ongoing and significant leachate production (containing lead, copper, zinc, and hydrocarbons in the form of Benzo(a)pyrene, TPH and PAH); 2. the leachate degraded the quality of the surface water and groundwater systems in addition to surface soils; and 3. the leachate led to an increased heavy metal content in plants in contact with the leachate and a degradation of ecological systems contacting the leachate.

[42]

The defendant's reasons for committing the offence, and the question of financial gain

In relation to the defendant's reasons for committing the offences and the question of financial gain, the prosecutor referred to the following matters: 1. EJOI was paid approximately $178,000 of the amounts paid to ACN by fill suppliers; and 2. Ozzy Earthmovers was paid approximately $218,000 for works undertaken at the property during the charge period which included, in substantial part, directing the delivery and receipt of imported material and stockpiling and spreading it on site.
As submitted by the prosecutor, I find beyond reasonable doubt, that the only rational inference that can be drawn is that the defendant's principal reason for committing the offences against ss 142A and 143(1) of the POEO Act, and for not undertaking more thorough enquiries in order to ensure that imported fill material was compliant with the waste regulatory scheme in the POEO Act and POEO Waste Regulation, was financial gain. [56] As submitted by the prosecutor, I find that whether the defendant's motivation for financial gain was directed towards benefitting himself personally or some other entity with which he was associated is not material. [57]

[43]

The practical measures to avoid harm to the environment; the defendant's control over the causes of harm to the environment: s 241(1)(b) of the POEO Act

The prosecutor submitted that the practical measures that the defendant could have taken to prevent, control or mitigate the harm to the environment were: 1. To ensure that no load was accepted at the property that had not been validated as either VENM or subject to a resource recovery exemption by a qualified environmental consultant. 2. Where a waste classification certificate had been provided validating fill material at a source site as either VEMN, ENM or recovered aggregate within a resource recovery exemption/order: 1. to ensure that material was not received at the property unless its appearance and volume matched the material referred to in the waste classification certificate; 2. to verify that systems were in place to ensure the material transported was confined to the material the subject of the waste classification certificate issued; 1. To refuse to accept further deliveries from the Zetland site after concerns were raised with him by Mr Miller in March 2017 about the fill from that site, and by PRM in June 2017. Although the defendant's exemption request letter to the EPA of 23 March 2017 contemplated materials identified to be unsuitable being returned to the source site with other deliveries ceasing upon a visual assessment raising concerns, there was no evidence in the nature of communications with a source site recording refunds or the like that any material was in fact returned to any source site from the property.
The prosecutor further submitted that such systems may have included having an environmental consultant inspect source materials prior to approval of the material for transport from the source site, and limiting batches of materials being assessed to no more than 1000m3. Each of those measures was contemplated by the defendant in the exemption request letter of 23 March 2017, but was not implemented. There was no evidence that either Mr Miller or the defendant conducted any comparison between material received at the site and any waste classification certificate purportedly relating to that material. Nor was there any evidence of verifiable chain of custody systems in place to ensure that material transported to the property was confined to that which had been relevantly validated at a source site.

[44]

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

I find that it was plainly foreseeable that depositing approximately 1,399 truck loads (surveyed to comprise approximately 11,360 m3) of fill excavated from urban demolition sites at the property which was unlicensed for use as a waste facility, and within a rural area surrounded by native vegetation, had the potential to cause environmental harm; see Pain J in Environment Protection Authority v Laison, [58] and Sheahan J in Environment Protection Authority v Foxman & Ors (No 2) (Foxman (No 2)). [59]
Likewise, I find, beyond reasonable doubt that, the defendant's own foresight of the harm that could be caused by the deposit of uncontrolled fill is reflected in the exemption request letter of 23 March 2017, in which the defendant outlined a proposal for imported fill to be tested for contaminants, visually assessed against certificates provided for the fill, and returned to the source site where an issue arose from the visual assessment.

[45]

Control over the causes giving rise to the offences: s 241(1)(d) of the POEO Act

The prosecutor submitted, and I find to be established beyond reasonable doubt, that the defendant had primary control over the transport of waste to the property. He made the arrangements with the fill suppliers to procure the fill material, and directed the schedule and movements of truck drivers "on the ground".
The prosecutor also submitted, and I find, that the terms of the construction deed assigning responsibilities to Ozzy Earthmovers (see above at [57]) should be given weight, albeit not determinative weight, in considering matters within the defendant's control.

[46]

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

I do not consider the factor in s 241(1)(e) of the POEO Act to be relevant in sentencing the defendant here. The defendant was the occupier of the property, responsible for making decisions in relation to the sourcing of fill, and issuing instructions in relation to its transportation to the property. He was not a person complying with orders from an employee or a supervising employee.

[47]

The presence of asbestos in the environment: s 241(1)(f) of the POEO Act

In Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) (Mouawad No 2), [60] and Environment Protection Authority v Sam Abbas (also known as Osama Abbas) (Abbas), [61] Pain J held that to the extent s 241(1)(f) of the POEO Act 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 insertion into the POEO Act from 20 December 2019, it should not be applied retrospectively to offences which occurred prior to that date. Her Honour held, however, that the presence of asbestos waste is relevant to considerations of environmental harm under s 241(1)(a).
The prosecutor did not agree with her Honour's construction of s 241(1)(f) for the reasons that were submitted in Abbas, as reflected in her Honour's judgment at [75]. However, for the purpose of this proceeding only, the prosecutor did not press for the presence of asbestos in the environment to be considered under s 241(1)(f), noting that in any event the presence of asbestos waste is relevant to consideration of environmental harm under s 241(1)(a).
I have proceeded accordingly.

[48]

Conclusion in relation to objective seriousness

In relation to objective seriousness, I have concluded that each of the offences involves offending conduct in the medium to high range of seriousness, having regard to the following factors: 1. the effect of undermining the regulatory scheme created by the POEO Act; 2. the amount of fill material transported to the property, being 1,399 truck and dog trailers, and the volume of waste in the stockpile estimated by the volumetric survey to be approximately 11,360m3 or 20,000 tonnes; (see above at [60] and [125]); 3. the nature of the conduct which involved the transport to and deposit of waste at the property over a period of approximately 7 months; 4. the nature of the waste, including its components and classification by the Smit report as asbestos waste (see above at [127]); 5. the defendant's control over the commission of the offences and the significant planning and organisation that went into the offences, in particular the registration of Arcadia Landfill with ASIC as the business name for ACN, negotiating fees with fill suppliers, and coordinating fill deliveries and truck movements; 6. the degree and foreseeability of the harm caused to the local environment; 7. the defendant's awareness that specific control measures should have been put in place to validate fill before it was received at the property, which measures were not put in place; and 8. the offences having been committed for financial gain, a motivation for offending being for financial gain bearing upon the "moral or true culpability of an offender". [62]
The prosecutor submitted that each of the s 142A(1) and s 143(1) offences is in the medium to high range of objective seriousness, comparing the present matter to Environment Protection Authority v Afram (Afram) at [98]-[101] (Pain J). There, her Honour said: [63] 98. Considering the harm or likely harm caused by the Land Pollution Offence, the Defendant submitted the offence was one of medium seriousness, on the basis that a high seriousness case would require expert evidence which established more than a mere potential for non-trivial harm for human health and more than the mere unquantified presence of harmful material. A low seriousness offence might involve pollution that only gives rise to a potential loss or property damage, with no risk to human health. A medium seriousness offence might involve a risk to human health or safety, but not an imminent one which resulted in immediate need for remediation of the land. There is no evidence in these proceedings as to the financial consequences for the landowners flowing from the s 142A(1) offence or the additional conduct. 99. As found above the Land Pollution Offence caused actual environmental harm through degradation of the land, water and air. The deposition of asbestos waste in large quantities on the Kulnurra site resulting in the Land Pollution Offence is objectively very serious, given the potential for significant harm to human health as there is no safe level of exposure to asbestos. That Special Waste - Asbestos Waste can be seen on the surface of the land means there is high potential for human exposure. Additional harmful waste containing lead and hydrocarbons was deposited with potential for significant harm to human health and the environment, as identified in Dr Dodd's report. The anthropogenic waste has the potential to cause physical harm. 100. There is no evidence before me of the financial consequences for the landowners of the Kulnura site of dealing with the asbestos and other waste deposited on their land. Options for dealing with asbestos waste can include capping on‐site or disposal off-site. I consider the high cost of disposing of asbestos waste at a licenced facility is notorious. A recent example of such costs being considered can be seen in Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 4) [2021] NSWLEC 123 at [144]. While that judgment addresses different circumstances the scale of the cost of capping of asbestos waste, and the potential costs of disposal off‐site at an approved facility more so, is likely to be significant for the landowners of the Kulnurra site. The Defendant's actions have potentially exposed the landowners to financially onerous clean‐up costs. 101. The Land Pollution Offence is in the middle of the high range of objective seriousness. and Foxman (No 2) at [82] (Sheahan J) (emphasis in original): 82. I have concluded that the combined objective seriousness of these offences, in terms of the harm occasioned to the environment, and to the regulatory system, is moderate-to-high (s 241(1)(a)), especially as a direct result of the placement, if not also the physical act of transportation.

[49]

Prior criminality and character: ss 21A(2)(d), 21A(3)(e) and 21A(3)(f) of the CSP Act

Pursuant to s 21A(2)(d) of the CSP Act, that the defendant has a record of previous convictions is an aggravating factor in determining the appropriate sentence for each of the offences.
The prosecutor tendered a copy of the defendant's criminal history which includes convictions in relation to previous offences against the POEO Act. The prosecutor also provided to the Court a copy of the decision of Pepper J in Mouawad v The Hills Shire Council. There, her Honour at [21] dismissed the defendant's appeals against conviction and sentence.
The prosecutor submitted that the totality of the defendant's criminal history should be taken into account as a matter "that denies the [d]efendant the ability to rely on any assertion of good character." The prosecutor also submitted that the defendant's criminal history reflects the importance of deterrence in these proceedings given that the prior convictions were for similar offences or otherwise related to waste disposal.
The prior convictions of the defendant are as follows: 1. On 9 March 2011, the defendant, as the director of Frontier Civil Engineering Pty Ltd, was convicted 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. 2. On 19 December 2018, following a plea of guilty, the defendant was convicted in the Local Court of a principal offence of dishonestly obtaining financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), 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, the sentence was reduced to an intensive correction order of 15 months. The defendant was ordered to perform 280 hours of community service work and pay compensation to Peter O'Brien Constructions in the sum of $225,056. 3. On 26 February 2021, the defendant was convicted, following a plea of guilty, to two offences of knowingly supplying false and misleading information about waste contrary to s 144AA(2) of the POEO Act. [64] The Court made an intensive correction order pursuant to s 7(1) of the CSP Act, directing that the sentence be served by way of intensive correction in the community, and ordered 250 hours of community service work. [65]

[50]

Offences committed without regard for public safety: s 21A(2)(i) of the CSP Act

The prosecutor submitted that the offences were committed without regard for public safety which is an aggravating factor to be taken into account in determining the appropriate sentence for an offence pursuant to s 21A(2)(i) of the CSP Act. Whilst accepting that some steps were taken to obtain waste classification certificates for the imported fill, I find that the defendant was on notice of the real prospect that asbestos containing materials had been and were continuing to be imported into a rural-residential neighbourhood. But he did not take steps to cease this by halting deliveries from, at least, the Zetland site.
The prosecutor submitted that if I take into account that it was foreseeable that the offences would be likely to cause environmental harm, I should take care to avoid double-counting as likely harm to the environment includes public safety. [66] I accept that submission, and have taken care to avoid double counting.

[51]

The offences were committed for financial gain: s 21A(2)(o) of the CSP Act

The prosecutor submitted that the Court should find that the offences were committed for financial gain. I have considered that submission above at [193]-[194], and have so found, beyond reasonable doubt.

[52]

The offences were part of a planned or organised criminal activity: s 21A(2)(n) of the CSP Act

The prosecutor submitted that the ss 142A and 143(1) offences, involving the transportation and deposit over a period of approximately 7 months of 1,399 loads of waste materials to and at the property (see above at [60]), a site not licensed under the POEO Act for waste disposal/storage but which operated under the Arcadia Landfill business name, was part of a planned criminal activity. [67]
I find, beyond reasonable doubt, that the significant level of organisation, planning and preparation for the offences by the defendant are established by the registration of the business name Arcadia Landfill on 28 March 2017, and the defendant's exchanges with Mr and Mrs Levy and with source sites in the charge period (as to examples of which see above at [65]-[67]) around procuring fill and organising payments for fill. I find that the offences committed over the charge period, even by one person (the defendant), involved sufficient repetition and system to lead to the conclusion that they were organised within the meaning of s 21A(2)(n). [68]

[53]

Remorse shown by the offender: s 21A(3)(i) of the CSP Act

The defendant showed no expression of remorse for his offending, within the meaning of s 21A(3)(i) of the CSP Act, or at all. He gave no evidence that he has accepted responsibility for his actions (s 21A(3)(i)(1)), or acknowledged any injury, loss or damage caused by his actions or made reparation for such injury, loss or damage (or both) (s 21A(3)(i)(2)).
I cannot accept anything in the evidence or submissions advanced by the defendant as an expression of remorse for his criminality. The effect of his oral evidence was that others were responsible for validating the fill imported to the property. [69]
The statement in Exhibit E that "I do not accept that it is acceptable to contaminate land, commit an offence" was cast in general terms. That statement does not amount to an expression of contrition for the effect of his acts on the environment and the community. The defendant's repeated attempts in Exhibit E to attribute responsibility for the filling activities to other persons is inconsistent with an acceptance of responsibility for his actions.

[54]

Plea of guilty: ss 21A(3)(k), 22 of the CSP Act

In determining a penalty for the offences committed by the defendant, I take into account that the defendant pleaded guilty (s 21A(3)(k), s 22(1)(a)), when the defendant pleaded guilty (s 22(1)(b)), and the circumstances in which the indicated an intention to plead guilty (s 22(1)(c)).
I may impose a lesser penalty on account of the plea than I would otherwise have imposed: s 22. However, a lesser penalty imposed due to a guilty plea must not be unreasonably disproportionate to the nature and circumstances of the offence: s 22A(1).
The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of a 10 to 25 per cent discount on sentence. The primary consideration in determining where in the range a particular case should fall is the timing of the plea. A discount at the top of the range would be expected to be restricted to pleas entered at the earliest possible opportunity. A discount towards the bottom of the range is appropriate for late pleas, such as those entered on the date fixed for trial. In some cases, no discount is appropriate at all. [70]
These proceedings were commenced on 28 August 2018, listed for first mention on 5 October 2018, and adjourned on at least eight occasions over the course of 2018 to 2020, including to enable the defendant to obtain legal representation. As at the date of the sentencing hearing before me, the defendant had been represented by three different firms, and unrepresented. The lengthy procedural history of the matter is recorded in the affidavit of Ryan Verzosa affirmed 4 April 2023, parts of which are outlined by me in Environment Protection Authority v Mouawad (also known as Boulos Isaac) (No 2). [71]
The prosecutor submitted that the Court should take the following circumstances into account in considering any plea discount: 1. that the defendant pleaded not guilty to the offences on 23 November 2018; 2. that the defendant resisted making key concessions as to factual matters in the amended s 247K notice served by his then legal representatives on 21 December 2020; 3. that the defendant applied for an adjournment of the trial set down for hearing between 25 October and 19 November 2021; 4. that the defendant resisted a notice of motion filed by the prosecutor on 29 April 2022 to rely on certain additional evidence, which application was granted by Moore J in September 2022; 5. that the defendant, by notice of motion filed by his wife as his agent on 3 April 2023, sought to have the trial dates set down for 26 April 2023 to 25 May 2023 vacated on fitness grounds; and 6. that the defendant pleaded guilty to the two offences here charged on 26 April 2023, the first day of a four-week trial which had been listed for hearing in September 2022. At that point in time, the proceedings had been on foot for over four and a half years, significant time had been expended in preparation of a court book for the hearing, significant monetary and environmental expense incurred in printing documents, lengthy written submissions prepared and served by the prosecutor, and the prosecutor had prepared for the hearing.

[55]

Assistance to authorities: ss 21A(3)(m), 23 of the CSP Act

There was no evidence, nor any submission, that the defendant provided any assistance to the prosecutor in its investigations.

[56]

Not likely to reoffend: s 21A(3)(g) of the CSP Act

Having regard to the defendant's previous criminal offending (see above at [212]), including his convictions for offences of dishonesty, and the evidence given by him at the sentencing hearing before me which I have found not to be credible, I find that the defendant has displayed a continuing attitude of disobedience to the law and that he has a propensity to reoffend. This indicates that more severe penalties should be imposed. [72]
The defendant's antecedent criminal history is relevant to whether the instant offences are an uncharacteristic aberration or whether the defendant has manifested in his commission of the instant offences a continuing attitude of disobedience of the law. In this case, retribution, deterrence and protection of society indicate that more severe penalties are warranted. [73]

[57]

Proportionality

Neither the prosecutor nor the defendant made any submission in relation to proportionality, Nonetheless, I have had regard to the principle of proportionality in determining appropriate penalties for the two offences here. It is a fundamental principle of sentencing that the sentence should not exceed what is proportionate to the gravity of the offence, having regard to its objective circumstances. I have considered this principle in arriving at the sentence to be imposed for the two offences here. [74]

[58]

General and specific deterrence: s 3A(b) of the CSP Act

The penalties to be imposed should serve the function of both general and specific deterrence. Section 3A(b) of the CSP Act identifies as a purpose of sentencing "(b) to prevent crime by deterring the offender and other persons from committing similar offences".
The prosecutor submitted that consistent with s 3A(b) of the CSP Act, the sentence imposed by the Court for the defendant's offences here must serve as a general deterrent. In relation to environmental offences, general deterrence is of some primacy. [75] Persons will not be deterred from committing environmental offences by only nominal fines. [76]
As Pain J said in Environment Protection Authority v Smart Skip Pty Ltd [77] at [35] in relation to an offence against s 144 of the POEO Act: "[g]iven the importance of enforcing the regulatory regime for the management of waste by those operating waste facilities for profit, general deterrence is an important consideration. A nominal fine will not be sufficient".
In BCC v Hanna, Preston CJ said at [152] in relation to the need for general deterrence: …the sentence of the court needs to be of such a magnitude as to change the economic calculus of persons in determining whether to comply with or contravene environmental laws. It should not be cheaper to offend than prevent the commission of the offence. Environmental crime will remain profitable until the financial cost to offenders outweighs the likely gains by offending. The amount of any fine needs to be such as will make it worthwhile to incur the costs of complying with the law and undertaking the necessary precautions. The amount of the fine must be substantial enough so as not to appear as a mere licence fee for illegal activity.
In Environment Protection Authority v Robinson, Lloyd J observed that "a penalty for a breach must be sufficient to compel attention to the environmental issues to ensure that the defendant, and others, are encouraged to comply with the law and that the environment is not exposed to risk of harm". [78]
I accept the prosecutor's submission that the sentence to be imposed here should "reflect the strong need for general deterrence".
As to specific deterrence, in Robinson [79] Lloyd J said at [31] that "[s]pecific deterrence aims to deter the offender from repeating the environmental offence that has been committed".

[59]

Even-handedness and consistency in sentencing

Acknowledging that care must be taken when comparing cases as there may be many divergent facts and circumstances, [80] the prosecutor prepared a schedule of comparable cases in relation to asbestos offences under ss 142A and 143 of the POEO Act to assist the Court in achieving consistency in sentencing. [81] The prosecutor said that the presentation of such sentencing information was not intended to suggest that an appropriate range is discernible from any of these other cases, but rather to show what has been done in other (more or less) comparable cases. [82] I have considered those cases, and find the following to be of some relevance here: 1. In BCC v Hanna, the defendant pleaded guilty to two charges against s 142A and two charges against s 143 of the POEO Act for transporting and depositing approximately 90 tonnes of waste containing asbestos to two sites. Preston CJ found that the defendant committed the offences deliberately, to save incurring the expense of paying a tipping fee. [83] His Honour determined the offences to be of "medium" objective seriousness. [84] The defendant was fined $88,000 for the two offences against s 142A and $137,000 for the two offences against s 143, calculated after applying the totality principle and a discount of 25 percent for an early guilty plea. 2. In Abbas, the defendant pleaded guilty to one charge each against ss 142A, 143 and 144 of the POEO Act for transporting approximately 21,990 tonnes of waste containing asbestos and general rubbish. Pain J accepted the defendant's reasons for committing the offence, and found that while the defendant was careless in not paying greater attention to the content and volume of fill delivered, the offence was not committed recklessly or negligently. [85] Her Honour considered the offences to be in the "low-to-mid range of the medium range of objective seriousness". [86] The defendant was fined $10,000 for the offence against s 142A, $60,000 for the offence against s 143, and $30,000 for the offence against s 144, calculated after applying the totality principle and a 15 percent discount for an early guilty plea. 3. In Afram, the defendant pleaded guilty to one charge against s 142A and three charges against s 144AA of the POEO Act in relation to the pollution of a site with 4,050 tonnes of waste. In relation to the offence against s 142A, Pain J found that the defendant had complete control over the activity which resulted in the offence, the offence was avoidable, the defendant obtained substantial financial benefit as a result of the offence, and the offence was part of a planned criminal activity. [87] Her Honour considered the offence against s 142A to be in the "middle of the high range" of objective seriousness. [88] The defendant was fined $127,500 for the offence against s 142A, calculated after applying a 25 percent discount for an early guilty plea. 4. In Environment Protection Authority v Hanna, [89] the defendant pleaded guilty to four charges against 143 of the POEO Act for transporting 4 truck loads of asbestos waste, estimated to weigh 6-7 tonnes each, to 4 sites. Craig J found that the offences were "premeditated and intentionally done with knowledge of its illegality". [90] His Honour regarded the offences to be closer to medium rather than low objective gravity. [91] The defendant was fined $32,000 for the first charge, $16,000 for the second charge, $32,000 for the third charge and $24,000 for the fourth charge, calculated after applying the totality principle and a 15 per cent discount for the defendant's guilty pleas. 5. In Mouawad v The Hills Shire Council, the defendant (the same defendant in the present case) and his wife were each found guilty of an offence against s 143 of the POEO Act for transporting between 5 to 7 truck loads of waste containing soil, clay, rock, and construction and demolition rubble, including bricks, plastic, concrete, glass, and asbestos. Pepper J found that the harm occasioned to the environment by the commission of the offences was at the lower end of the scale, as the majority of the material deposited was ENM. [92] Her Honour also found that there was no evidence to suggest that either of the defendants was aware that material other than clean topsoil would be taken. Her Honour considered that the offences were of low objective seriousness. [93] The defendant was fined $15,000 and his wife was fined $9,000. 6. In Foxman (No 2), there were three defendants, two of which were companies. The individual defendant Mr Foxman was found guilty of two offences against s 143 and one offence against s 144 of the POEO Act for transporting approximately 15,900 tonnes of construction and demolition waste containing asbestos. Sheahan J considered the combined objective seriousness of all the offences, in terms of the harm occasioned to the environment and to the regulatory system, to be moderate to high. [94] His Honour considered that the major burden of the sentence should fall on Mr Foxman, "the author and chief manager of the scheme". [95] Mr Foxman was fined $75,000 for each of the offences against s 143, and $100,000 for the offence against s 144, calculated after applying the totality principle.

[60]

Totality

In accordance with the totality principle, where, as here, the Court sentences a defendant for more than one offence, the aggregate or overall sentence must be "just and appropriate" and reflect the total criminality before the Court. [96] In the case of a sentence for a fine, if the court considers that the totality principle requires an adjustment to individual fines that would otherwise be appropriate, the amount of each fine can be altered. [97]
The prosecutor accepted that the totality principle has some application with respect to the offences here in contravention of ss 142A(1) and 143(1) of the POEO Act because of the common underlying factual substratum. However, the prosecutor submitted that the criminality involved in the two offences was not conterminous; rather, the offence under s 143(1) is a conduct offence, while the offence under s 142A is a result offence involving the additional element of land degradation or the placed pollutant being of a prescribed nature. Accordingly, the prosecutor submitted that the totality principle ought be applied on the basis that there is some, but not an extensive degree of overlap. [98] I accept that submission, having regard to the circumstances of the s 143(1) offence, as charged, concerning only the transportation of waste.
In accordance with the totality principle, I have considered the appropriate sentence for each offence and reviewed the aggregate to ensure that it reflects the total criminality of the defendant. [99]

[61]

Means of the defendant (s 6 Fines Act 1996 (NSW))

Pursuant to s 6 of the Fines Act 1996 (NSW) (Fines Act), in the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
The defendant submitted that his "lack of funds" contributed to his decision to accept the plea deal. Accordingly, in fixing the amount of fines for the offences here, I have little basis upon which to consider the means of the defendant.

[62]

The appropriate penalty to be imposed

Synthesising the relevant objective and subjective circumstances of the offences and the offender, the relevant purposes of sentencing here the need for general and specific deterrence, the timing of the pleas, the absence of any evidence of assistance provided to the prosecutor in its investigations, my findings in relation to credit and contrition, the maximum penalty now set by Parliament in the case of an individual ($250,000 for each of the offences), the check or yardstick provided by the cases in this Court referred to at [243] above, my finding of recklessness in relation to the s 142A offence, and my finding that the s 143(1) offence, as charged, is a "conduct" offence as opposed to s 142A(1), as charged, being a "result" offence, I consider that the appropriate monetary penalty: 1. for the offence against s 142A(1) of the POEO Act to be $150,000; 2. for the offence against s 143(1) of the POEO Act to be $150,000.
These amounts should be discounted for the utilitarian value of the pleas of guilty by 10 percent.
This results in a monetary penalty: 1. for the offence against s 142A(1), in the amount of $135,000; 2. for the offence against s 143(1), in the amount of $135,000.
Having regard to the totality principle, and the common underlying factual substratum of the two offences, but accepting the prosecutor's submission that the criminality involved in each of the offences is not conterminous, I apply a further discount of 30 percent.
This results in a penalty for the two offences in the amount of $94,500 for the offence against s 142A(1), and in the amount of $94,500 for the offence against s 143(1).
I will make an order that 50 percent of those amounts be paid to the Environmental Trust established under the Environmental Trust Act 1998 (NSW), pursuant to s 250(1)(e) of the POEO Act, for general environment purposes, and the remaining 50 percent be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).

[63]

Payment of share of fine to prosecutor (s 122 Fines Act)

The prosecutor sought an order under s 122 of the Fines Act for half of any fine ordered against the defendant to be paid to the prosecutor. Pursuant to s 122(1)(a) of the Fines Act, s 122 applies where the Act that authorises the imposition of a penalty does not make any provision for its application when recovered. The penalties for offences against ss 142A(1) and 143(1) of the POEO Act do not make provision for the application of a fine once recovered by the courts. The condition in s 122(1)(b) of the Fines Act is also satisfied as the prosecutor, the EPA, is not a police officer.
The award of a moiety to a prosecutor is discretionary. [100] One circumstance justifying the making of an order for a moiety is when a prosecutor does not have an independent right to recovery of investigation costs.
In Secretary, Department of Planning and Environment v AGL Energy Limited (AGL energy), [101] Moore J made an order under s 122 of the Fines Act in Class 5 sentence proceedings for an offence against the Environmental Planning and Assessment Act 1979 (NSW). His Honour held (at [150]) that a moiety could be validly ordered when "the full suite of additional therapeutic (but not punitive) powers contained in Pt 8.3 of the POEO Act were available", including the power to order costs and expenses of investigation. His Honour held (at [155]) that the Court might decline "to exercise a discretion to award a moiety in circumstances where a statutorily based order [to pay costs] would have achieved the same outcome". His Honour went on to say at [158]: 158. Specifically, it seems to me that there may be a basis for a prosecutor to seek both reimbursement of investigation expenses and a moiety of a fine in circumstances where a prosecutor could demonstrate that such an additional payment might support the sustaining, on a more general basis, of environmental law enforcement activities of the prosecuting authority.
Here, the prosecutor seeks an order under s 248 of the POEO Act for the reimbursement of specific investigation expenses only. Those expenses, it submitted, do not include the significant time spent by the prosecutor's officers investigating the two offences and accordingly do not fully compensate the prosecutor for its expenses. A similar submission was recorded by Moore J in AGL Energy at [143]. [102]

[64]

Costs

The prosecutor also seeks an order that the defendant pay the prosecutor's investigation costs and expenses pursuant to s 248 of the POEO Act in the amount of $33,647. Those costs and expenses relate to the following:
I will make an order accordingly.
The prosecutor also seeks an order for its professional costs as agreed or assessed under s 257B of the CPA.
In considering the appropriate penalty, it is legitimate to take into account any associated costs order. [103] I accept the prosecutor's submission that an order for costs is not a reason for reducing any penalty to an amount lower than that suggested by the general pattern of sentencing for the relevant offence. [104]
I will make an order for the prosecutor's professional costs as agreed or assessed under s 257B of the CPA Act.

[65]

Orders

I make the following orders: 1. In proceedings 2018/260536, the defendant is convicted of the offence against s 143(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) as charged. 2. In proceedings 2018/260542, the defendant is convicted of the offence against s 142A(1) of the POEO Act as charged. 3. In proceedings 2018/260536, the defendant is to pay a monetary penalty in the sum of $94,500. 4. In proceedings 2018/260542, the defendant is to pay a monetary penalty in the sum of $94,500. 5. Pursuant to s 250(1)(e) of the POEO Act, 50 percent of the monetary penalty imposed on the defendant in Orders 3 and 4 is to be paid to the Environmental Trust established under the Environmental Trust Act 1998 (NSW). 6. Pursuant to s 122(2) of the Fines Act 1996 (NSW), the remaining 50 percent of the monetary penalty imposed on the defendant in Orders 3 and 4 is to be paid to the prosecutor. 7. Pursuant to s 248 of the POEO Act, the defendant is to pay the prosecutor's investigation costs of the proceedings in the amount of $33,647. 8. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) (CPA), the defendant is to pay the prosecutor's professional costs of the proceedings in an amount as agreed or assessed under s 257G of the CPA.

[66]

Endnotes

Environment Protection Authority v Mouawad (No 3) [2023] NSWLEC 44 (Mouawad No 3) at [42].
Mouawad No 3 at [36]-[37].
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 at 508-510 (Dawson and McHugh JJ); Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 at [32]-[33] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) (Strbak).
R v O'Neill [1979] 2 NSWLR 582 at 588 (Moffitt ACJ) (O'Neill); Duffy v R [2009] NSWCCA 304 at [21] (Fullerton J) (Duffy).
(2004) 217 CLR 198; [2004] HCA 22 at [30] (Gleeson CJ, Gummow J, Kirby J, Hayne J and Heydon JJ); Environment Protection Authority v Laison [2015] NSWLEC 89 at [33] (Pain J) (Laison).
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]-[28] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41] (Gleeson CJ); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64], [66] (French CJ, Bell, Keane and Nettle JJ); Strbak at [27]-[28]; Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70 at [45] (Robson J).
Strbak at [32].
O'Neill at 587; Duffy at [21].
(2012) 188 LGERA 273; [2012] NSWLEC 45 at [171]-[174] (Biscoe J).
Evidence Act ss 4(1)(d), 4(2).
Evidence Act s 191(2).
See CPA s 247A(b).
[2009] NSWLEC 152 (Biscoe J).
Ramsey at [1].
Ramsey at [11].
Ramsey at [12]-[15].
Ramsey at [16].
Ramsey at [16].
Ramsey at [17]-[19].
CL v R [2014] NSWCCA 196 at [43]-[44] (Adamson J, Fullerton J and Hoeben CJ at CL agreeing).
Environment Protection Authority v Mouawad (Land and Environment Court (NSW), Moore J, 28 September 2022, unrep) tcpt at p 2(5).
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] (Muldrock) (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 (Plath) at [48] (Preston CJ); Fairfield City Council v Oztech Developments Pty Ltd [2021] NSWLEC 81 at [57] (Robson J).
R v Peel [1971] 1 NSWLR 247 at 262 (Herron CJ, Manning JA and O'Brien J); Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [89] (Preston CJ).

[67]

Amendments 21 July 2023 - Table at [260] missing in upload reinserted. 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: 21 July 2023

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