Environment Protection Authority v Nath

Environment Protection Authority v Nath - [2024] NSWLEC 10 - NSWLEC 2024 case summary — Zoe

[8]

BSV's Business and Operations

BSV's business involved receiving waste tyres at the premises and processing them into bailed tyres, shredded tyres, and crumb rubber ("waste tyre products"). BSV dealt with its waste tyre products by: 1. exporting bailed tyres to overseas markets until the export of bailed tyre was banned; 2. exporting shredded tyres to overseas markets; and 3. selling crumb rubber to the domestic market.
The day-to-day management of BSV operated in this manner: 1. Nath was in charge of administration in the office and, due to the nature of his role, he would also be in the outdoor yard of the premises daily. Nath spent his time in an office at the premises and regularly communicated with the Environment Protection Authority ("EPA") regarding compliance. Nath met every Friday with Hamdan and Peter Koufelos regarding the storage of waste tyres and waste tyre products on the premises; 2. Hamdan was in charge of logistics until he ceased to be actively involved with BSV sometime between January 2022 and July 2022. Hamdan's role primarily consisted of sourcing waste tyres and waste tyre products and driving, or instructing others to drive, waste tyres and waste tyre products to the premises. He did not spend time in the office at the premises or perform any administrative work. Hamdan brought tyres to the premises outside of hours and on weekends and did not always weigh the tyres using BSV's weighbridge. Sometimes Hamdan collected cash in exchange for taking tyres to the premises; 3. Neetika Bhargava was an administration officer at BSV. Bhargava worked under the direction of both Nath and Koufelos; 4. Koufelos operated machines to process tyres and drive trucks to pick up tyres to bring back to the premises. Koufelos was described as a "supervisor" by Bhargava. Koufelos was instructed by Nath in respect of the storage of tyres at the premises. Koufelos took instructions from both Nath and Hamdan until Hamdan ceased working at BSV. Koufelos did not always follow those instructions and occasionally brought tyres to the premises even after he had been told not to; and 5. Raymon Mousa drove trucks to pick up tyres to bring back to the premises. Mousa collected cash for tyres to be brought to the premises and gave the cash to Hamdan.
In terms of environmental compliance, Nath instructed BSV staff that: 1. BSV was limited to having 150 tonnes of tyre waste on the premises at any time and to not overfill the yard; 2. stockpiles of tyres had to be below 3.7 m; and 3. BSV was required to comply with storage requirements for waste tyres pursuant to the EPL.

[14]

Risk Posed by Waste Tyres and Waste Tyre Products

It was not in contention that the fire risks that waste tyres and waste tyre products pose were as follows: 1. should tyres catch alight, each tyre can emit around two litres of oil during combustion, thereby serving to increase the fire risk and the spread of any fire; 2. if stacked tyres catch alight, the lower combusting tyres are compressed. This will result in tyres higher up the stack moving deeper into the stack, and therefore, into the heat of the combustion zone. In tyre stacks that are vertical a "chimney effect" may occur. This causes air to be drawn in from the bottom (one side) of the tyre and travel upwards via the combustion zone. This encourages the flaming combustion to stay inside the tyre. Additionally, combusting tyres can roll off the stack and spread fire to other stacks if tyres are stored "tread-up"; 3. even after flaming combustion ceases, the smouldering may continue for a long period. During the smouldering phase, combustion by-products continue to be emitted by the tyres; 4. the fire dynamics associated with a burning stack of tyres maintains the flaming combustion on the inside of the tyres. This makes it hard, if not impossible, for firefighting extinguishing agents to reach the combustion zone, especially if the stack is tall. Therefore, the outcome often is an excessive amount of firefighting water discharged at the fires; 5. as excessive amounts of firefighting water is discharged onto tyre fires, this results in large amounts of fire water runoff, which needs to be managed. Atmospheric emissions include carbon monoxide, sulphur oxides, nitrogen oxides, volatile organic compounds, cyclic aromatic hydrocarbons, hydrogen chloride, benzene, and polychlorinated biphenyls. Liquid emissions are mainly an oil or hydrocarbon substance, which can adversely impact water ways. This oily by-product contains several other substances including, naphthalene, benzene, anthracene, sulphur compounds, arsenic, and cyanide; and 6. there are various available ignition sources for tyre fires to occur at facilities such as the premises. In waste or recycling tyre facilities, tyre fire ignition causes are generally arson, bush or grass fires, on-site machinery fires, and lightning strikes.

[16]

MRA Consulting Report

In addition to awareness of the Fire Brigade Policy, Nath was also cognisant of the content of the MRA Report.
Figure 5 in the MRA Report was incorporated into the EPL by condition O4.2. The MRA Report said as follows in relation to the risks of air pollutants from tyre fires: Discharge of pollutants to air would only occur in the event of a fire when tyres break down releasing hazardous compounds including gases, heavy metals and oil. The smoke generated by tyre fires is thick and includes a large number of toxic gases. Mitigation of the threat from outbreak of a tyre fire on the premises is assured by strict compliance at all times with the NSW Fire Brigades Policy No. 2 Guidelines for Bulk Storage of Rubber Tyres.
Regarding the importance of compliance with the Fire Brigade Policy, the MRA Report stated: BSV is aware that compliance at all times with the Fire Brigade Guidelines is required for all facilities intending to store new or used rubber tyres and is committed to always adhere to these guidelines.
Under the section titled "Environmental outcomes", the MRA Report stated that: The environmental goals for the BSV site relate primarily to the prevention and control of fire at the property, which represents the greatest risk to the environment.
The Pollution Incident Response Management Plan ("PIRMP") attached to the MRA Report specified that: Tyres are difficult to ignite, but once alight burn furiously and are difficult to extinguish. Burning tyres emit toxic fumes that are harmful to the environment. The risk of a tyre fire represents the greatest hazard on site, therefore prevention of fire is the most important hazard minimisation practice on site.
In respect of local waterways, the PIRMP went on to note that: If a fire event occurs, the main risk to surface water quality is caused by contaminated fire quench water from site entering drains and being discharged into the local stormwater system. There are stormwater pits installed on site to retain this water, however they are potentially not of sufficient size to contain all water.
Addressing airborne impurities and toxins, the PIRMP then provided that: Due to the nature of waste tyres, they are stable and not considered to be a hazardous material. However if there is a fire, tyres generate thick smoke while breaking down into hazardous compounds including gases, heavy metals, and oil. Tyre fires are rare and BSV is well prepared to prevent them therefore, under normal circumstances, it can be considered that the processing and storages of waste tyres poses a low threat of generating air pollution. Mitigation of the threat of outbreak of a tyre fire on the premises is assured by the implementation of BSV's Site Compliance Plan, which related to the NSW Fire Brigades Policy No. 2 Guidelines for Bulk Storage of Rubber Tyres.
Finally, the MRA Report contained a "BSV Site Compliance Plan" which included the following: BSV is committed to ensuring that the flow of tyres arriving on site for processing is compatible with the maximum number of tyres that can be dealt with in one day to prevent undesirable stockpile build-up. If the number of tyres and/or volume of tyre product are approaching the limits permitted in the EPL (once issued), no further tyres will be accepted on site until shipping containers of reusable, shredded or baled tyres are transported off-site.

[19]

Statutory Matters Required to be Taken into Account in Sentencing

Subsections 21A(2) and (3) of the CSPA sets out aggravating and mitigating factors that the Court must consider. The factors relevant to the facts of this case are: 21A Aggravating, mitigating and other factors in sentencing … (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows … (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), … (i) the offence was committed without regard for public safety, … (o) the offence was committed for financial gain… The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows- … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if- (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23)…
For offences created by the POEOA, the Court is also required to consider the matters set out in s 241(1) of that Act: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant) - (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, … (2) The court may take into consideration other matters that it considers relevant.
The appropriate sentence for Nath is to be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of the case (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357).

[23]

Nath's State of Mind at the Time of the Commission of the Offence

The offences are crimes of strict liability which means that mens rea is not an element of the offence. However, the state of mind of Nath at the time of their commission is nevertheless relevant in the determination of an appropriate sentence (s 241(1) of the POEOA and Environment Protection Authority v Eveston (No 3) [2022] NSWLEC 128 and Environment Protection Authority v Maules Creek Coal Pty Ltd [2022] NSWLEC 33 at [153]).
A strict liability offence that is committed intentionally, negligently, or recklessly, is objectively more serious than one committed accidentally (Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123], Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42] and Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312 at [72]-[75]).
The POEOA does not contain an offence that has mens rea as an element of it in respect of a contravention of an EPL. Accordingly, the principle in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 does not arise.
The EPA submitted that Nath committed the offences recklessly and that this served to aggravate their seriousness. The test for recklessness was set out in Albiston (at [99]): 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.
The EPA submitted that Nath's recklessness could be inferred from the following: 1. at all relevant times Nath was aware of the requirements contained in the EPL, the Fire Brigade Policy and the MRA Report. Therefore, Nath knew how many waste tyres ought to be stored at the premises, the correct manner of their storage, and the likely consequences of their improper storage; 2. Nath was in the outdoor yard of the premises every day. Therefore, Nath had the opportunity to observe how and where waste tyres were being stored at the premises and to note whether their storage was in compliance with the EPL; and 3. pursuant to condition O5.1 of the EPL, vehicles had to be weighed when they entered and left the premises. Since Nath was in charge of the administration of BSV and supervised administration officer Bhargava, Nath would have been aware of the volume of waste tyres entering the premises for the purposes of the exceedance offence.
Nath conceded that it was open to the Court to find that overall he acted recklessly and that this was a contributing factor to the commission of the offences. He further submitted, however, that the following contextual matters ought to be taken into account by the Court, namely: 1. he was aware of the conditions of the EPL, including the 150 tonne limit, the stockpile height, and the storage requirements, and he took positive steps to make BSV staff aware of these requirements. However, BSV staff did not always follow his instructions, and on occasion, would import tyres to the premises even after they had been told not to do so; and 2. employees would bring waste tyres to the premises without his knowledge, including after he had told them not to. Therefore, despite him positively encouraging compliance with the EPL, the action of others subverted these efforts.
I take these matters into account, however, I find that Nath acted recklessly in the commission of the four offences, in that he was at all relevant times aware of the conditions of the EPL, and was put on notice that BSV was in breach of them by accepting waste tyres in exceedance of its authorised limit and by improperly storing them at the premises.

[24]

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

Section 241(1)(a) of the POEOA requires the Court to take into account the extent of the harm caused, or likely to be caused, to the environment by the commission of the offences.
The composite term "harm to the environment" is broadly defined in the Dictionary of the POEOA: Harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.
The concept of harm in the context of environmental offences extends to both actual and potential harm (Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[149]). In terms of offences involving the improper storage of waste tyres, the Court has taken into consideration the potential for environmental harm resulting from this unlawful conduct (Environment Protection Authority v Richardson; Environment Protection Authority v Behnfeld [2002] NSWLEC 205 and Environment Protection Authority v Obaid [2005] NSWLEC 171).
There is, however, a distinction between actual harm to the environment and harm to the regulatory regime (ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 at [65]). While the former should be considered under s 241(1(a) of the POEOA, the latter is a relevant factor under s 241(2) of that Act only.
The extent of harm caused by the commission of the four offences was not in dispute. The offences did not cause actual harm to the environment, rather they caused potential harm by reason of the manner in which the waste tyres and waste tyre products were stored on the premises. The potential harm is summarised below: 1. in respect of the exceedance offence, the volume of waste tyres and waste tyre products on the premises meant that on 30 March 2022, there was an elevated fire risk and any tyre fire that occurred would be larger and more difficult to extinguish. This also meant that if any fire event occurred, more water would be needed to control and suppress the fire, which would increase the likelihood of soil and groundwater contamination due to runoff from the water being used to extinguish. This would increase the potential for harm to the environment; 2. in respect of the height offence, the height of the waste tyres and waste tyre products on the premises meant that on 30 March 2022, any tyre fire that occurred would be more difficult to extinguish due to the "chimney effect". This would increase the potential for harm to the environment; 3. in respect of the tread up offence, the storing of waste tyres and waste tyre products on the premises "tread-up" meant that any tyres that caught alight could roll into other areas of the premises, potentially causing other waste tyres and waste tyre products to catch alight. This would increase the potential for harm to the environment, as outlined immediately below. This meant that, on 30 March 2022, the premises were in a state conducive for a tyre fire to spread if it were ignited at the premises; 4. in respect of the storage offence, the storing of waste tyres and waste tyre products on the premises in contravention of Figure 5 of the MRA Report meant that, between 30 March and 26 July 2022, any fire on the premises would be difficult to contain.
As a consequence of the commission of the offences, the potential harm to the environment that occurred on 30 March 2022, and between 30 March and 26 July 2022, included: 1. harm to air quality: when tyre fires burn, or when they continue to smoulder following extinguishment, carbon monoxide, sulphur oxides, nitrogen oxides, volatile organic compounds, cyclic aromatic hydrocarbons, hydrogen chloride, benzene, and polychlorinated are emitted into the air. Further, a considerable amount of smoke is typically emitted from a tyre fire. The MRA Report described the pollutants released into the air from tyre fires as being "hazardous" and including "gases, heavy metals and oils", stating that such smoke is "thick and includes a large number of toxic gases"; 2. harm to land and waters: when waste tyres or waste tyre products burn, liquids in the form of oil or hydrocarbons are emitted, which can impact the land over which the liquid flows and can impact any waterways that the liquids enter. This oily by-product contains substances including, naphthalene, benzene, anthracene, sulphur compounds, arsenic, and cyanide; 3. harm to human health: if waste tyres and waste tyre products were to catch fire at the premises this could pose a risk to human health. Those potentially impacted include people working at the premises, people nearby the premises if the fire spread, and firefighters who would be required to attend and extinguish the fire. In terms of the latter, the Fire Brigade Policy indicated that the smoke being released from a tyre fire is "a high hazard to the community, environment and firefighters". Tyre fires can be deadly and those exposed to fires risk burns and serious injuries; and 4. harm to neighbouring premises: if waste tyres and waste tyre products caught fire at the premises, this could pose a risk to neighbouring properties, which were predominately commercial in nature.
Counsel for Nath submitted that the relevant degree of risk was diminished because: 1. first, three of the four offences each occurred on a single day. Accordingly, the risk of harm to be considered was only the risk presented by the commission of the offences on those individual days. That is, the likelihood of a fire occurring on any particular day was less than if the offence were to occur over multiple days; 2. second, in relation to the tread up offence, it was submitted that the photographic evidence demonstrated that not all tyres were stored tread up; and 3. third, although the tyres were not stored in compliance with condition O4.2 of the EPL, the purpose of that condition was to provide access for firefighting purposes. The photograph demonstrated that such access was provided, albeit not in the manner required by condition O4.2.
I am satisfied beyond reasonable doubt that Nath's offending conduct occasioned potential environmental harm in the manner set out above. It should be recalled that the storage offence, which was affected by all of the risks described above, was committed over 118 days, a considerable period.

[26]

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

Section 241(1)(b) of the POEOA requires the Court to take into account the practical measures that may be taken to prevent, control, abate or mitigate harm to the environment.
The EPA submitted that as one of two directors at BSV at all relevant times, Nath could have undertaken the following practical measures to mitigate the risk of harm caused by the offences: 1. in respect of the exceedance offence, by refusing to accept tyres at the premises in excess of the EPL limit. This practical measure was open to Nath at all times and neither the tyre export ban or the breakdown of the tyre shredding machine were obstacles to this practical measure being implemented; 2. in respect of the height offence, by directing employees not to stack tyres beyond the limit set by the EPL. Again, this measure was open to Nath at all times. Nath met with Hamdan and Koufelos each week regarding the storage of waste tyres and waste tyre products on the premises and was also in the outdoor yard of the premises every day; 3. in respect of the tread up offence, by directing employees to not store them in this way. As the EPA submitted, this would have been easier to implement had Nath ensured that no more than 150 tonnes of waste tyres were on the premises at any given time; and 4. in respect of the storage offence, by directing employees to store the tyres correctly on the premises.
Nath agreed that further practical measures could have been taken by him to prevent the risk of harm occurring, however, he noted that he did undertake the following proactive steps, namely: 1. holding meetings with his fellow director, Hamdan, and employees of BSV, regarding the storage of waste tyres and waste tyre products on the premises. In this respect, Nath instructed BSV staff that it was limited to having 150 tonnes on the premises at any time and to not overfill the yard, that stockpiles of tyres had to be below 3.7 m, and that BSV was required to comply with storage requirements for waste tyres, such as Figure 5 of the MRA Report, pursuant to the EPL; 2. taking steps to reduce the tyres on the premises by arranging for waste tyres to be disposed of by a waste management company, demonstrating his attempt to bring BSV into compliance; and 3. obtaining finance and personal guarantees to enable the repair of BSV's tyre shredding machine. This measure was to address the fact that Nath's fellow director continued to bring tyres onto the premises despite the shredding machine being broken, either without Nath's knowledge or after Nath had told him not to do so.
Relevantly, in cross-examination Nath explained that difficulties in obtaining parts to fix BSV's tyre shredding machine and the tyre export ban had hindered his ability to take practical steps to mitigate the risk of harm (T4:34-41): Prosecutor: At the time of the offences, you were able to observe the storage of tyres at the premises when you were in the outdoor yard, weren't you? Nath: Yeah, there is a control - there was a control, but it went out when the machine broke down. It took us 6 months to get it and EPA came and took the photos of the repairing of the machines and as a proof, they - I told them - explained to them what had - was happening, and there was a bit of an issue with the other business partner where he was not listening, so then - since then that matter just went out of control. … Prosecutor: Do you agree that BSV could have fixed the tyre shredder machine earlier than it did? Nath: Depends. If the machine was a German machine, the parts were not available, so they had to bring it down from Germany. … Prosecutor: Do you agree that BSV could have reduced the number of tyres at the premises before June and August 2022? Nath: There's a bit of a contributing factor. First of all, the machine was that the machine was a primary shredder machine. Environmental - the law was passed that we could not just dump the tyres. It just has to be cut to the certain size. And for that, there was like a - became very handicap.
When questioned about the tread up offence Nath stated (T5:06-12): Prosecutor: When you were in the outdoor area of the premises at the time of the offences, were you able to see that tyres were stored tread up? Nath: There was a supervisor, sort of a head excavator, throwing a tyre on top of it, which I've been constantly telling him, "Stop it" nicely - "Stop it" nicely. "Oh, we'll clean it up. We'll clean it up". So the situations went so drastically upside down where they stopped listening to me. That's how - that's how the issue started.
I accept that Nath undertook practical steps to prevent the risk of harm posed by the waste tyres. I also accept that there were extenuating factors, including the tyre export ban, the broken machine, and the fact that BSV staff were not complying with Nath's directions, which limited the actions practically available to Nath to prevent the commission of the offences. Despite these factors, I find that Nath could have taken further steps to direct BSV's staff to properly store waste tyres.

[27]

Control over the Causes of the Commission of the Offences

Section 241(1)(d) of the POEOA requires the Court to take into account the extent to which the person who committed the offence had control over the causes that gave rise to it.
The EPA submitted that, by virtue of Nath's role as director at BSV at all material times, he had control over the causes of each of the offences. Namely, control over the number of waste tyres that were accepted at the premises and the way in which those waste tyres were stored. This submission was premised on the following facts: 1. Nath's role included meeting with Hamdan and Koufelos each week regarding the storage of waste tyres and waste tyre products on the premises; 2. Bhargava worked under the direction of Nath; 3. Koufelos was instructed by Nath as to the storage of tyres at the premises. Koufelos took instructions from both Nath and Hamdan until Hamdan ceased working at BSV; and 4. Nath instructed BSV staff more generally as to the requirements of conditions L2.2, L2.3 and O4.2 of the EPL.
In relation to the tyre export ban and the breakdown of BSV's machinery, the EPA submitted that Nath nevertheless knew that BSV could not bring more than 150 tonnes of waste tyres to the premises. The fact that waste tyres could not be processed, it submitted, should have meant that Nath ensured that BSV did not accept further tyres at the premises. This was particularly so in circumstances where Nath knew that BSV could not afford to repair the broken machine.
While Nath agreed that he had a degree of control of the premises, he disputed that he had complete control over the causes of the commission of the offences on the basis that: 1. at all relevant times Hamdan's role consisted of sourcing waste tyres and waste tyre products and driving, or instructing others to drive, these waste tyres and waste tyre products to the premises; 2. Hamdan brought tyres to the premises outside business hours and on weekends, and did not weigh the tyres using BSV's weighbridge. In this respect, despite the machinery breakdowns, others brought waste tyres onto the premises without his knowledge and contrary to an instruction not to do so; 3. Koufelos did not always follow instructions and would bring tyres to the premises even after he had been told not to by Nath; and 4. Nath filed a police report in respect of Hamdan bringing tyres onto the premises without accounting for them through BSV.
In relation to Hamdan and BSV's staff not complying with Nath's directions, the EPA submitted that it was open to Nath as director of BSV to take action against them to prevent tyres being accepted and stored improperly at the premises.
I find in all the circumstances that as one of two directors of BSV, Nath had almost complete control over the commission of the offences.

[32]

Contrition and Remorse

Pursuant to s 21A(3)(i) of the CSPA, remorse is only a mitigating factor if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
In Waste Recycling Preston J remarked that "contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives" (at [203]). His Honour went on to suggest four ways by which an offender may demonstrate genuine contrition and remorse, which are relied upon without repetition (at [204], [210], [212] and [214]).
In the first Nath affidavit, he provided the following statement of contrition and remorse: 35. In my record of interview with the EPA that was conducted in around 10 November 2022 (Record of Interview), I said that a major reason why BSV had difficulties, including those which contributed to the offences, was due to the breakdown of BSV's tyre shredding machine and the fact that my business partner, Mr Hamdam, had brought tyre to BSV without my knowing, including while the shredding machine was not working, and after I had told him not to. I also told him not to. I also said that I filed a police report against Mr Hamdam for bringing tyres to the Premises without accounting for them through BSV. 36. Notwithstanding my falling out with Mr Hamdam and the factors that contributed to the offences, I acknowledge that I was also responsible for ensuring BSV's compliance with its EPL. 37. I am ashamed and embarrassed by the fact that BSV committed and offence while I was in control of the company. 38. I accept that, by failing to comply with conditions of BSV's EPL, the risk of the potential for harm to be caused to the environment or human health was increased. 39. I recognised the importance of maintaining a high standard of care and in particular, compliance with the conditions of an EPL, reduces the risk for serious harm to be caused to the environment or human health. 40. I apologise for my actions and role in enabling BSV to commit the offences that have led to these proceedings.
The EPA submitted that this was insufficient because: 1. a court is not obliged to accept assertions of contrition made by an offender (R v Stafrace (1997) 96 A Crim R 452 per Hunt CJ at CL, followed in R v Nguyen [2004] NSWCCA 438 at [21]). An assessment of the genuineness of remorse is likely to be better informed when expressed directly, that is, face to face because it is intrinsically a subjective matter (Mun v R [2015] NSWCCA 234 at [39]); 2. contrition and remorse are better demonstrated through actions taken by a defendant rather than statements made by a defendant; and 3. the strength of the Crown case is a relevant consideration in relation to the evaluation of remorse (R v Sutton [2004] NSWCCA 225 at [12]).
In response, Nath emphasised his cooperation with the EPA throughout the course of the proceedings and his early guilty pleas, as further expressions of genuine contrition and remorse.
I find Nath's actions in cooperating with the EPA and in entering an early plea, together with his affidavit evidence (which I accept as genuine despite any attempted cross-examination to the contrary) as evidence of contrition and remorse, which is a mitigating factor in his sentencing.

[39]

Consistency in Sentencing

The task of the sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at [177] and R v Visconti [1982] 2 NSWLR 104 at [107]). Care must be taken in comparing cases where the circumstances of, and facts relating to, the offences may be quite different (Axer at 365).
The EPA provided to the Court a table of five comparable cases that it submitted were of assistance in ensuring even-handedness in sentencing. These included: Eveston (No 3), Environment Protection Authority v Minto Recycling Pty Ltd [2019] NSWLEC 193, Environment Protection Authority v MA Roche Group Pty Ltd [2015] NSWLEC 29, Environment Protection Authority v BSV Tyre Recycling Australia Pty Ltd (Local Court proceedings numbers 2021/00245615, 2021/00245642, 2021/00245655, 2021/00245660, 2021/00245665, 2021/00245683, 2021/00245685, 2021/00245700, 2021/00245714, 2021/00245722, 2021/00245731) and Environment Protection Authority v BSV Tyre Recycling Australia Pty Ltd (Local Court proceedings number 2021/0096161-2).
Nath submitted that the most comparable of these cases is Environment Protection Authority v BSV Tyre Recycling Australia (Local Court proceedings number 2021/0096161-2) given that the proceedings relate to broadly the same breach of EPL conditions. That decision concerned BSV's breach of two conditions including those stipulating the amount of tyre waste permitted at the premises and the manner of storing the tyres. The Local Court accepted that despite there being no actual harm caused by the commission of the offences, the exceedance of tyres brought onto the premises by five times that authorised by the EPL created a very serious risk of a fire. BSV was fined $9,000 for the first offence and $5,000 for the second, with 50% of the fine paid to EPA as moiety. It should be noted that the Local Court was limited to imposing a fine of $11,000 (s 267(3) of the Criminal Procedure Act 1986 and s 17 of the CSPA).
I have had particular regard to Eveston (No 3). That case concerned the failure of a defendant to ensure that no more than 3,195 m3 of waste was emplaced upon a property and to remove all waste from a premises, in breach of s 64(1) of the POEOA. In that decision, the Court found that the commission of the offences were within the control of the defendant (at [71]) and caused potential harm by the generation of leachate (at [64]). The potential harm was foreseeable (at [66]), and practical measures were available to mitigate that harm (at [72]-[75]). Mitigating factors included that the defendant provided assistance to authorities (at [93]), was of good character, and had a low likelihood of reoffending (at [95]-[96]). Limited weight was placed on the contrition and remorse of the defendant as a mitigating factor (at [78]-[84]). The Court applied a 25% discount for the utilitarian value of the defendant's early guilty plea and imposed a fine of $37,500 for each offence, the totality of which was reduced to $55,000. An order for moiety and a publication order were made.
I have also considered the cases relied upon by the EPA in sentencing Nath for the offences he has committed.

[40]

Capacity to Pay a Fine

Section 6 of the Fines Act 1996 provides that: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider-- (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
Section 6 of the Fines Act 1996 places the onus upon Nath to prove that he is unable to pay any monetary penalty imposed by the Court. To discharge this onus Nath must provide financial information to the Court which is reasonably and practically available to him demonstrating that he is impecunious (see Albiston at [183]-[184]).
A defendant's capacity to pay is one of many factors that the Court must consider when imposing a sentence. In Environment Protection Authority v Hanna [2018] NSWLEC 80 Preston J opined (at [267]): 267 However, whilst the means of an offender to pay any fine is a mandatory consideration, it may not be decisive. Other sentencing considerations, such as achieving general deterrence, may justify imposing a fine in a certain amount, even if the offender is unlikely to be able to pay the fine: Smith v The Queen at 23, 24; Darter v Diden (2006) 94 SASR 505; [2006] SASC 152 at [29]-[32]; Mahdi Jahandideh v R [2014] NSWCA 178 at [15]-[17]. This may particularly be the case in sentencing for offences where general deterrence is needed and where the offender is a corporation rather than a natural person: see Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 353; Environment Protection Authority v Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147; Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94 at [16]; Bentley v BGP Properties Pty Ltd at [270]-[275].
Nath submitted that he had limited capacity to pay a significant fine in addition to the EPA's costs because: 1. he is presently unemployed and is attempting to establish a business to generate an income to pay off the debts that he is liable for as guarantor of the finance associated with BSV; 2. he has accessed money from his superannuation fund to pay debts and legal costs, and to establish the new business. He has already sold assets to repay some of the debt owed by BSV; and 3. he has recently commenced a business to generate income and repay the debt owed by BSV. To date, all revenue generated from that business has been used to establish it, and Nath is yet to receive any income from it.
In the first Nath affidavit, he set out his assets, current employment, income, and liabilities as follows: Assets 25. As at the date of this affidavit, my assets are as follows: (a) My family home, known as…which I estimate is valued at approximately $1 million to $1.2 million, of which $395,000 is loaned to NAB. (b) Land that I own known as…which I estimate is valued at approximately $40,000. (c) Land that I own known as…which I estimate is valued at approximately $40,000. (d) My car, which is a 1992 Mitsubishi Pajero, which I estimate is valued at approximately $500. (e) My wife's care, which is registered in my name, is a 2010 Toyota Camry, which I estimate is valued at approximately $4,000. Current employment 26. I am now an employee at Traco Pty Ltd (known as Australia Tyre Recycling (Traco), which operates a waste tyre facility at premises known as 191 Arthur Street, Homebush West, 2140, to make ends meet for my family. I do not hold a pivotal role at Traco. Current income 27. My weekly income from Traco, after tax, is approximately $1,800. 28. My wife's weekly income as a teacher, after tax, is approximately $1,500. Liabilities 29. I currently pay NAB $1,900 per fortnight towards the remaining $395,000 mortgage on my family home. 30. I currently pay $100 per month to Bank West towards credit card debt of approximately $12,000. The usual repayments are higher than $100, but I have negotiated a lower rate due to financial stress. 31. I currently pay approximately $890 per month to Pepper Money towards a car loan of approximately $50,000 that I took out to purchase a car for my daughter.
He went on to state that (at [34]), "I fear that I am going to have to sell my family home and declare bankruptcy".
Nath was not cross-examined on this evidence.
While Nath did not adduce any contemporaneous financial records, I accept his unchallenged evidence that he is unable to pay a significant monetary penalty.

[81]

(a) should tyres catch alight, each tyre can emit around two litres of oil during combustion, thereby serving to increase the fire risk and the spread of any fire;

(b) if stacked tyres catch alight, the lower combusting tyres are compressed. This will result in tyres higher up the stack moving deeper into the stack, and therefore, into the heat of the combustion zone. In tyre stacks that are vertical a "chimney effect" may occur. This causes air to be drawn in from the bottom (one side) of the tyre and travel upwards via the combustion zone. This encourages the flaming combustion to stay inside the tyre. Additionally, combusting tyres can roll off the stack and spread fire to other stacks if tyres are stored "tread-up";

(c) even after flaming combustion ceases, the smouldering may continue for a long period. During the smouldering phase, combustion by-products continue to be emitted by the tyres;

(d) the fire dynamics associated with a burning stack of tyres maintains the flaming combustion on the inside of the tyres. This makes it hard, if not impossible, for firefighting extinguishing agents to reach the combustion zone, especially if the stack is tall. Therefore, the outcome often is an excessive amount of firefighting water discharged at the fires;

(e) as excessive amounts of firefighting water is discharged onto tyre fires, this results in large amounts of fire water runoff, which needs to be managed. Atmospheric emissions include carbon monoxide, sulphur oxides, nitrogen oxides, volatile organic compounds, cyclic aromatic hydrocarbons, hydrogen chloride, benzene, and polychlorinated biphenyls. Liquid emissions are mainly an oil or hydrocarbon substance, which can adversely impact water ways. This oily by-product contains several other substances including, naphthalene, benzene, anthracene, sulphur compounds, arsenic, and cyanide; and

(f) there are various available ignition sources for tyre fires to occur at facilities such as the premises. In waste or recycling tyre facilities, tyre fire ignition causes are generally arson, bush or grass fires, on-site machinery fires, and lightning strikes.

[176]

The task of the sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at [177] and R v Visconti [1982] 2 NSWLR 104 at [107]). Care must be taken in comparing cases where the circumstances of, and facts relating to, the offences may be quite different (Axer at 365).
The EPA provided to the Court a table of five comparable cases that it submitted were of assistance in ensuring even-handedness in sentencing. These included: Eveston (No 3), Environment Protection Authority v Minto Recycling Pty Ltd [2019] NSWLEC 193, Environment Protection Authority v MA Roche Group Pty Ltd [2015] NSWLEC 29, Environment Protection Authority v BSV Tyre Recycling Australia Pty Ltd (Local Court proceedings numbers 2021/00245615, 2021/00245642, 2021/00245655, 2021/00245660, 2021/00245665, 2021/00245683, 2021/00245685, 2021/00245700, 2021/00245714, 2021/00245722, 2021/00245731) and Environment Protection Authority v BSV Tyre Recycling Australia Pty Ltd (Local Court proceedings number 2021/0096161-2).
Nath submitted that the most comparable of these cases is Environment Protection Authority v BSV Tyre Recycling Australia (Local Court proceedings number 2021/0096161-2) given that the proceedings relate to broadly the same breach of EPL conditions. That decision concerned BSV's breach of two conditions including those stipulating the amount of tyre waste permitted at the premises and the manner of storing the tyres. The Local Court accepted that despite there being no actual harm caused by the commission of the offences, the exceedance of tyres brought onto the premises by five times that authorised by the EPL created a very serious risk of a fire. BSV was fined $9,000 for the first offence and $5,000 for the second, with 50% of the fine paid to EPA as moiety. It should be noted that the Local Court was limited to imposing a fine of $11,000 (s 267(3) of the Criminal Procedure Act 1986 and s 17 of the CSPA).
I have had particular regard to Eveston (No 3). That case concerned the failure of a defendant to ensure that no more than 3,195 m3 of waste was emplaced upon a property and to remove all waste from a premises, in breach of s 64(1) of the POEOA. In that decision, the Court found that the commission of the offences were within the control of the defendant (at [71]) and caused potential harm by the generation of leachate (at [64]). The potential harm was foreseeable (at [66]), and practical measures were available to mitigate that harm (at [72]-[75]). Mitigating factors included that the defendant provided assistance to authorities (at [93]), was of good character, and had a low likelihood of reoffending (at [95]-[96]). Limited weight was placed on the contrition and remorse of the defendant as a mitigating factor (at [78]-[84]). The Court applied a 25% discount for the utilitarian value of the defendant's early guilty plea and imposed a fine of $37,500 for each offence, the totality of which was reduced to $55,000. An order for moiety and a publication order were made.
I have also considered the cases relied upon by the EPA in sentencing Nath for the offences he has committed.

At a glance

Court

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Judgment (214 paragraphs)

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Legislation Cited (7)

Cases Cited (65)

Cited By (2)