Environment Protection Authority v O'Brien

Catchwords

(2024) 260 LGERA 358 Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 Bankstown City Council v Hanna [2014] NSWLEC 152(2014) 205 LGERA 39 Baumer v R (1988) 166 CLR 51[1988] HCA 67 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34(2006) 145 LGERA 234 Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9(2022) 251 LGERA 28 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280(2019) 242 LGERA 241 Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205(2018) 236 LGERA 291 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137(2009) 168 LGERA 121 Elias v RIssa v R (2013) 248 CLR 483[2013] HCA 31 Environment Protection Authority v Aargus Pty LtdKariotoglou(2006) 148 LGERA 299 Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 Gore v RHunter v R [2010] NSWCCA 330[1989] HCA 33 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Markarian v R (2005) 228 CLR 357

Judgment (31 paragraphs)

[1]

Background

As the salient factual background of each offence is uncontentious and is detailed in a statement of agreed facts on sentence dated 21 June 2024, the following narrative is uncontroversial. Further facts will be noted in my consideration of the parties' submissions and the discrete sentencing considerations.
The offences relate to Adam O'Brien supplying information electronically about waste in the course of dealing with waste, specifically Asbestos Contaminated Material ('ACM'), which was false or misleading in a material respect.
Adam O'Brien is the former sole director, shareholder and company secretary of an Australian registered company known as Rubbish King Pty Ltd ('Rubbish King'), a company which operated a waste treatment facility located at 13 Lucca Road, Wyong ('13 Lucca Road'), until its deregistration on 4 November 2018.
Neither Rubbish King nor Adam O'Brien ever held an environment protection licence under the POEO Act which authorised either Rubbish King or Adam O'Brien to receive, store or process waste, including ACM, at 13 Lucca Road.
The relevant supply of information for each offence concerns the receipt of ACM by Rubbish King, and the transfer and disposal of the waste to a landfill known as "Raymond Terrace Resource Recovery Park" at 330 Newline Road, Raymond Terrace ('Landfill'), which was operated by a company known as Suez Recycling and Recovery (Port Stephens) Group Pty Ltd ('Suez').
On 30 September 2016, before the commission of the offences, the Environment Protection Authority ('EPA') issued Rubbish King with Prevention Notice No. 1545200 pursuant to s 96 of the POEO Act which prohibited it from receiving, processing or storing ACM at 13 Lucca Road and required it to take other actions to remove the ACM and prevent water pollution. Each of the offences occurred in January 2017.
The false or misleading information was supplied in the first instance to two other companies, Forte NSW Pty Ltd ('Forte') and JJD Constructions Pty Ltd ('JJD'), who were respectively a contractor and subcontractor for the bulk excavation works, including for the removal of the ACM from a construction site at 2 Arcadia Road, Glebe ('2 Arcadia Road'). The immediate context for the supply of information was a claim for payment by JJD under its subcontract with Forte, with Forte insisting upon the need for appropriate documentary evidence of the ACM's lawful disposal to fulfil the terms of the subcontract and justify payment of the amounts owed for the lawful disposal of the ACM under that subcontract.
Between 21 October 2016 and 15 November 2016, 1,220 tonnes of ACM was excavated at 2 Arcadia Road by JJD and transported by truck and dog trailers organised by Adam O'Brien to 13 Lucca Road.
There was no dispute during the trial that the information supplied was false or misleading in a material respect; it attested to the disposal of the ACM at the Landfill when this did not in fact occur. The forms in which the information was relevantly supplied were an invoice, a remittance advice, and an email. The three offences have been referred to as the "False Invoice" offence; the "False Remittance Advice" offence; and the "False Email" offence.
The EPA remains unaware of where the ACM was taken to or where it was disposed of. The main dispute at the trial was whether Adam O'Brien supplied the false or misleading information. The Court's judgment on 3 November 2023 determined that he did.
In proceedings 2020/00016459, the findings were that - by email sent on 6 January 2017 at 6.46am, Adam O'Brien supplied Arthur Henwood, Project Manager of Forte, with a document falsely purporting to be an invoice (number SUEZ0016578) dated 25 November 2016 issued by Suez to Rubbish King in relation to the purported disposal by Rubbish King of waste from 2 Arcadia Road at the Landfill in November 2016 ('False Invoice').
The False Invoice was provided by Adam O'Brien in response to Arthur Henwood's request for evidence substantiating the lawful disposal of the ACM from 2 Arcadia Road in the context, as stated earlier in this judgment, of a claim for payment for Adam O'Brien's activity of transporting and disposing of the ACM.
All the information contained in the False Invoice was false or misleading in a material respect because: 1. the ACM was not disposed of by Rubbish King at the Landfill; 2. no other waste from any premises was disposed of by Rubbish King at the Landfill in November 2016; 3. the False Invoice was never issued by Suez to Rubbish King; and 4. the False Invoice falsely substantiated the lawful disposal of the ACM by Rubbish King at the Landfill, which was a requirement under the varied subcontract for payment of monies due for the transport and disposal of the ACM.
In proceedings 2020/00016460, the findings were that - by email sent on 6 January 2017 at 6.46am, Adam O'Brien supplied Arthur Henwood of Forte, with a document falsely purporting to be a remittance advice dated 1 December 2016 issued by Rubbish King to Suez pursuant to the False Invoice in relation to the purported disposal by Rubbish King of waste from 2 Arcadia Road at the Landfill in November 2016 ('False Remittance Advice').
The False Remittance Advice was issued purportedly in acknowledgement of payment of the False Invoice.
All the information contained in the False Remittance Advice was false or misleading because: 1. the ACM was not disposed of by Rubbish King at the Landfill; 2. there was no other waste from any premises that was disposed of by Rubbish King at the Landfill in November 2016; 3. there was no money ever remitted by Rubbish King to Suez for any waste disposed of by Rubbish King at the Landfill; 4. the invoice referred to in the False Remittance Advice was never issued by Suez to Rubbish King; 5. the False Remittance Advice was never supplied by Rubbish King to Suez; and 6. the False Remittance Advice falsely substantiated the lawful disposal of the ACM by Rubbish King at the Landfill, which was a requirement under the varied subcontract for payment of monies due for the transport and disposal of the ACM.
In proceedings 2020/00016461, the findings were that - by email sent on 6 January 2017 at 10.58am ('False Email'), Adam O'Brien supplied Arthur Henwood of Forte, with a falsified document purporting to be an email sent on "25 October 2016 at 1:58:52pm" from Duncan Le Good of Suez in relation to the purported disposal by Rubbish King of waste from 2 Arcadia Road at the Landfill in November 2016 ('Real Email').
The information contained in the False Email was false or misleading in a material respect because: 1. Duncan Le Good did not send the False Email to Adam O'Brien on 25 October 2016 at 1.58pm, in circumstances where the Real Email was in fact sent by Duncan Le Good to Adam O'Brien on 3 January 2017 at 1.59pm; 2. the False Email listed Duncan Le Good's email address as "xxan.lego@suez.xx" and "xxan.lago@suez.xx", when Mr Le Good's email address was in fact "xxncan.legood@suez.xx", as listed in the Real Email; 3. the False Email listed Duncan Le Good's mobile phone number as "+61 (0) xx9 xx6 435", where Mr Le Good's mobile number was in fact "+61 (0) xx7 xx3 044", as listed in the Real Email; and 4. the information in the False Email falsely substantiated the circumstances surrounding the lawful disposal of the ACM by Rubbish King at the Landfill, which was a requirement under the subcontract (noted at [10] above between JJD who had contracted with Forte for bulk excavation works at 2 Arcadia Road including the disposal of ACM) for payment of monies due for the transport and disposal of the ACM.

[2]

Evidence

The Court received an agreed statement of facts, a bundle of historical company records and a packet of documents in relation to Adam O'Brien's antecedents. Adam O'Brien, who was represented by counsel, appeared at the sentencing hearing by way of AVL from a correctional facility in Nowra in which he was (at the time of the hearing) incarcerated, adopted under oath a document (and annexures) titled "Proposed Evidence of Adam O'Brien". Adam O'Brien also gave short oral evidence. Each of the parties provided written and made oral submissions.

[3]

Offence provision

Section 144AA(1) of the POEO Act, at the time of each offence, relevantly provided: A person who supplies information about waste to another person in the course of dealing with the waste, being information that is false or misleading in a material respect, is guilty of an offence. It is a defence in any proceedings against a person for an offence under this subsection if the person establishes that the person took all reasonable steps to ensure that the information was not false or misleading in a material respect. Maximum penalty - … (b) in the case of an individual - $120,000.

[4]

Purpose of sentencing

In fixing the appropriate penalty for the offences, s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') sets out the purposes of sentencing relevant to the offence and the offender and relevantly provides: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, … (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
The purposes of punishment, denunciation and retribution are important in sentencing for environmental offences because there is a need for the Court, through the sentence it imposes, to denounce the unlawful conduct, to hold the offender accountable for his or her actions, and to ensure the offender is adequately punished. The sentence should accord with the general moral sense of the community in relation to the offence in the circumstances of the case: Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205; (2018) 236 LGERA 291 ('Clarence Valley') at [91]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 ('Plath v Rawson') at [168].
Section 21A of the Sentencing Act identifies further matters that the Court must take into account when determining the appropriate sentence for an offence, including relevant factors in aggravation under s 21(A)(2) and relevant factors in mitigation under s 21A(3). Where it is contended that a particular sentencing consideration should be treated as an aggravating factor, it must be established beyond reasonable doubt: Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353 at [26], [104]-[105]; R v Wickham [2004] NSWCCA 193 at [27]. Pertinent to the submissions made in this case, s 21A(2) and (3) relevantly provide: … (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), … (n) the offence was part of a planned or organised criminal activity, (o) the offence was committed for financial gain, … (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows - (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, … (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), … (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23), …

[5]

Objective seriousness of the offences

The objective seriousness of an offence fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the offence considered in light of its objective circumstances and the objectives of punishment: Veen v R (No 2) (1988) 164 CLR 465 at 472, 485-486, 490-491, 496; [1988] HCA 14; Baumer v R (1988) 166 CLR 51 at 57-58; [1988] HCA 67; Hoare v R (1989) 167 CLR 348 at 354; [1989] HCA 33. It fixes the lower limit because the allowance for matters personal to a particular offender cannot produce a sentence which fails to reflect the objective gravity of the offence and the objectives of punishment: R v Dodd (1991) 57 A Crim R 349 at 354; R v Nichols (1991) 57 A Crim R 391 at 395; R v Allpass (1993) 72 A Crim R 561 at 563; R v Whyte (2002) 55 NSWLR 252 at [156]; R v McGourty [2002] NSWCCA 335 at [34]-[35]; R v Scott [2005] NSWCCA 152 at [15].
The Court must determine the objective seriousness by reference to the nature of the offence and not reference to the matters that are personal to the offender: Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27]; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Robert Beltrame [2023] NSWLEC 18 at [11].
The objective circumstances of relevance to the present offences include the nature of the offences; the maximum penalty; the state of mind; the harm likely to be caused; the foreseeability of the risk of environmental harm; the practical measures to prevent environmental harm; the control over the causes giving rise to the offences; and the reasons for committing the offences.

[6]

The nature of the offences

The nature and purpose of the provision that has been contravened in each offence, and its place in the statutory scheme, speak to the objective seriousness of an offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]; Plath v Rawson at [50]), and the nature of the offending is not confined to the ingredients of the offence but may be taken to mean the fundamental qualities of the offence: Williams v R [2012] NSWCCA 172 at [42].
A fundamental consideration of relevance to environmental offences 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 objectives expressed in the offence: Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15].
The objects of the POEO Act, which are set out in s 3, include: … (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, … (c) to ensure that the community has access to relevant and meaningful information about pollution, (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, … (v) the monitoring and reporting of environmental quality on a regular basis, … (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, …
An important factor for consideration is the degree by which the offender's conduct offended against the objects expressed above in s 3 of the POEO Act, which are widely known - protection, restoration and enhancement of the environment, and the elimination of harmful waste.
In relation to the present offences, the ability to reliably and accurately track waste is a vitally important factor in achieving the object of the protection of the environment.
The importance of s 144AA(1) to the statutory regime for the management of waste and the statutory objectives was recognised in terms I respectfully adopt by Craig J in Environment Protection Authority v Aargus Pty Ltd; Kariotoglou; Kelly [2013] NSWLEC 19 at [54]: "…The need to be scrupulous in supplying accurate information about 'waste' so that it is correctly categorised is necessary to ensure that pollution is prevented, and that harmful wastes can be eliminated. Moreover, the imposition of an offence for 'false or misleading' information about waste is a mechanism designed to 'strengthen the regulatory framework for environmental protection'."

[7]

Maximum penalty

The maximum penalty for a statutory offence reflects the public expression by Parliament of the seriousness of an offence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and provides a "sentencing yardstick" for the case before the Court: Elias v R; Issa v R (2013) 248 CLR 483; [2013] HCA 31 at [27]; Markarian at [30]; Clarence Valley at [40].
At the time the three offences were committed, the maximum penalty for an offence pursuant to s 144AA(1) of the POEO Act was $120,000 for an individual. This maximum penalty was increased to $250,000 on 4 March 2022 and to $500,000 on 3 April 2024, which demonstrates Parliament's increased concern regarding the objective seriousness of an offence of this nature.

[8]

State of mind

Although each of the three offences is an offence of strict liability and thus has no mental element, subject to the principle in R v De Simoni (1981) 147 CLR 383 at 389; [1981] HCA 31, the state of mind of the offender may be relevant when assessing the objective seriousness of the offence: Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 at [72].
The prosecutor submits that in fraud-type offences, the objective seriousness is usually assessed with reference to, among other things, the amount of money concerned and, similarly, in the context of this offending, the question of objective seriousness involves consideration of the amount of false or misleading information supplied by an offender and the quantities of waste they concerned. Across the present offences, the amount of false or misleading information supplied was one false invoice, one false remittance advice, and one false email relating to the receipt and disposal of 1,220 tonnes of ACM.
Conscious that a sentencing court cannot take into account circumstances of aggravation which would warrant conviction for a more serious offence than that which an offender has been charged, I accept the comments of Pepper J in Environment Protection Authority v Elmustapha [2023] NSWLEC 143, where her Honour stated: "[62] Elmustapha did not contest that the emails including the false information were sent deliberately. However, he submitted that the Court should not have regard to his state of mind because he was charged with a strict liability offence under s 144AA(1), not an aggravated offence under s 144AA(2) which requires knowledge that information was false and misleading. In recognising that this aggravated offence had a far more significant maximum penalty for an individual in the amount of $240,000 and/or 18 months imprisonment, Elmustapha contended that the De Simoni principle (R v De Simoni [1981] HCA 31; (1981) 147 CLR 383) would be infringed if a more significant penalty was imposed based on his intentional state of mind. [63] Although intention is not an element of the s 144AA(1) offence, Elmustapha's state of mind is nevertheless relevant to the question of penalty. The Court can nevertheless have regard to his mental state in its assessment of his overall culpability, which is relevant to its assessment of the objective seriousness of the commission of the offences (Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [158] to [159] and [167] and Barlow at [57])."

[9]

Extent of harm - s 241(1)(a) of the POEO Act

The prosecutor acknowledges that there is no evidence of actual harm as the disposal site for the ACM is unknown, however, submits that the offences have given rise to potential environmental harm. The prosecutor submits, and Adam O'Brien accepts, that while 1,220 tonnes of ACM was removed by Rubbish King from 2 Arcadia Road, as there is no accurate record of the ultimate disposal location of the ACM, given the nature of the offences, the risk to the environment and human health now and in the future is indeterminable.
Although Adam O'Brien accepts that the material contained asbestos, he submits that only a finding of potential harm is available in circumstances where the prosecutor is unable to establish the precise nature of the waste removed by Rubbish King from 2 Arcadia Road. This uncertainty is exacerbated by the fact that there is no accurate record of the nature of the waste or its exact location.
I accept Adam O'Brien's submission that there is no basis for the Court to find that the extent of harm is an aggravating factor. However, in considering the objective seriousness, I find that the offences clearly gave rise to potential environmental harm and remain conscious that this finding does not become a substitute for a finding beyond reasonable doubt that environmental harm was caused.

[10]

Practical measures to prevent harm - s 241(1)(b) of the POEO Act

The existence of practical measures to prevent, control, abate or mitigate the harm caused or likely to be caused to the environment, and Adam O'Brien's failure to take such measures, increases the objective seriousness of the offence: Bankstown City Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39 at [86]. Moreover, I find that practical measures could and should have been taken to prevent and mitigate the potential harm to the environment and, specifically, Adam O'Brien should not have supplied the false or misleading information and should have taken honest steps to ensure the lawful disposal of the ACM.

[11]

Foreseeability of harm - s 241(1)(c) of the POEO Act

In circumstances where Adam O'Brien was the sole director of a demolition, excavation, civil engineering and waste transport company with experience within the waste industry, and where he was providing information relating to the presence of ACM, I find that in the creation and supply of each of the False Invoice, the False Remittance Advice and the False Email, it was reasonably foreseeable that the actions involved, when misrepresenting the true location of the disposal of the ACM, would have the potential to cause harm to the environment.

[12]

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

I find, as the prosecutor submits and Adam O'Brien accepts, that there is no evidence before the Court that Adam O'Brien, in his capacity as sole director of Rubbish King, did not have full control over the causes that gave rise to the offences, being the supply of false or misleading information.

[13]

Aggravating factors pursuant to s 21A of the Sentencing Act

[14]

Regard for public safety - s 21A(2)(i) of the Sentencing Act

The prosecutor points to the context in which the offending in each matter occurred and submits that Adam O'Brien committed the offences without regard to public safety. Adam O'Brien submits that this element does not go beyond the objective element or underlying principles of the offences. I find that, as I have taken into account the reasonable foreseeability of harm, I should not count this aggravating factor given that I consider that harm to the environment includes public safety under s 21A(2)(i): Elyard v R [2006] NSWCCA 43 at [12].

[15]

Financial gain - s 21A(2)(o) of the Sentencing Act

In circumstances where, first, Adam O'Brien and the general manager of JJD, Mr Daley, came to an agreement that Rubbish King would remove the ACM from 2 Arcadia Road for $100 per tonne and that Rubbish King was to provide tip dockets in relation to the lawful disposal of the ACM; second, Mr Daley made payments in the total sum of $80,000 to Adam O'Brien in accordance with their agreement by cash or by electronic transfer to Adam O'Brien's personal bank account; and third, such payment would not have been made by Mr Daley but for the provision of the False Invoice, the False Remittance Advice and the False Email, I find beyond reasonable doubt that financial gain was a motive in relation to each offence. Although Adam O'Brien submitted that financial gain was an inherent characteristic of offences against s 144AA(1) of the POEO Act, I do not accept this submission.
Simply stated, the false information was provided by Adam O'Brien in order to receive a financial benefit to which he would not have been entitled under the agreement if he was unable to provide evidence of the lawful disposal of the ACM and I find beyond reasonable doubt that each offence was committed for financial gain.

[16]

Conclusion on objective seriousness

Although specific characterisation of objective seriousness is not a necessary component of the sentencing task because it "…is rarely definitive of that part of the sentencing exercise that requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender", it is still a useful descriptor in the instinctive synthesis exercise: R v DP [2019] NSWCCA 55 at [42]; Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42 at [204].
Having regard to all the circumstances considered above and remaining conscious of the differences in the offending in each case (and particularly the relationship between the False Invoice offence and the False Remittance Advice offence), I find that each of the offences constitutes serious offending and each falls in the mid-range of objective seriousness for offences of this kind.

[17]

Subjective circumstances

Within the limits set by the objective seriousness of the offences, the Court must take into account the favourable factors personal to Adam O'Brien when determining the appropriate penalty to impose. In this part, I remain conscious that there are three separate offences for sentencing before the Court.

[18]

Previous convictions - s 21A(3)(e) of the Sentencing Act

While Adam O'Brien does not have any prior convictions for offences under environment protection legislation as defined in the Protection of the Environment Administration Act 1991 (NSW), he does have an extensive criminal history as detailed in documents received via subpoena from the Queensland Police Service and New South Wales Police. Adam O'Brien has been charged with various offences relating to unlawful possession of drugs, breach of bail conditions, driving under the influence of drugs, possession or use of a prohibited weapon without permit, possession of stolen property, driving without license and driving recklessly or dangerously. Adam O'Brien also gave evidence that he has a "variety" of criminal matters still outstanding in Queensland in both the District Court and the Magistrates Court. While I take these matters into account, I consider that these offences have limited relevance to the sentencing task presently before the Court which concern environmental offences although the nature of these offences concerns dishonesty.

[19]

Good character - s 21A(3)(f) of the Sentencing Act

The fact that Adam O'Brien has a criminal record (as noted above) can be considered in determining whether he is of good character in that it evidences that he has previously engaged in criminal activity, and I have taken that into account.

[20]

Re-offending and prospects of rehabilitation - ss 21A(3)(g) and 21A(3)(h) of the Sentencing Act

In relation to a number of the matters concerning Adam O'Brien's subjective circumstances, the prosecutor submits that given Adam O'Brien's extensive criminal record, his pleas of not guilty in the liability hearing and, as considered later in this judgment, the lack of any demonstrated remorse or contrition, there is no basis for the Court to conclude that Adam O'Brien is unlikely to re-offend or that he has prospects of rehabilitation, particularly in circumstances where he has not shown any remorse in the current proceedings.
The prosecutor also points to the evidence including historical company searches with the Australian Securities and Investments Commission showing that Adam O'Brien remains a director, secretary, and shareholder of Rubbish King Pty Ltd, Rubbish Australia Pty Ltd, and the sole shareholder of International Resource Recovery Pty Ltd. The prosecutor submits that such evidence indicates Adam O'Brien has not ceased involvement in the waste industry and, further, that under cross-examination, Adam O'Brien deposed that he was unsure as to whether, once released from custody, he would continue to operate in the waste management industry. Without clear indication otherwise, and a lack of remorse from Adam O'Brien during these proceedings, the prospect of re-offending for Mr O'Brien remains possible.
Adam O'Brien submits that given his present incarceration, the fact that he remains on remand subsequent to a trial held in Gosford in March 2024, and moreover his "custodial histories", he simply has not been in a position to be involved in the waste industry and that he has not previously been convicted of environmental offences.
I am not satisfied on the balance of probabilities that Adam O'Brien is unlikely to re-offend and given that he has shown no sign of remorse or contrition, I am not satisfied that he has good prospects of rehabilitation.

[21]

Remorse - s 21A(3)(i)

There is no evidence before the Court that Adam O'Brien has accepted responsibility for his actions the subject of these proceedings or that he has shown any signs of remorse.

[22]

Pre-trial disclosure and assistance to authorities - s 21A(3)(l) and (m) of the Sentencing Act

I do not find that Adam O'Brien's participation in the agreed statement of facts on sentence, nor the manner in which Adam O'Brien may have "narrowed the issues which the Court had to determine [at trial]" as submitted by the prosecutor, in the circumstances of the offences, falls within s 21A(3)(m) of the Sentencing Act. I am not satisfied that any assistance has been provided by Adam O'Brien to the law enforcement authorities in the manner considered in ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4; (2024) 260 LGERA 358 ('ACE Demolition') at [95]-[96].

[23]

General and specific deterrence

I consider that the penalties imposed by the Court must serve as a general deterrent: Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177]. General deterrence is essential "to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences": Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188]. See also Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 ('Axer') at 359.
In the present offences, I find that general deterrence must be reflected in the penalties to be imposed to create a clear disincentive to other persons and waste companies contemplating the provision of false or misleading information about the type and quantity of waste deposited at landfills.
I also find that there is an important role for specific deterrence in fixing the appropriate penalties for Adam O'Brien where, irrespective of Adam O'Brien's present circumstances, I find that he is likely to return to this industry.

[24]

Capacity to pay a fine

Section 6 of the Fines Act 1996 (NSW) requires the Court to consider the means of the offender to pay a fine from such information as is reasonably and practically available to the Court.
Adam O'Brien submitted evidence which shows that while he remains the director of Rubbish King Pty Ltd, Rubbish Australia Pty Ltd, and International Resource Recovery Pty Ltd, he has not been able to operate these companies to generate an income (presumably because he is currently in custody). As such, Adam O'Brien submits that he does not have any assets in either a company name or under his name. The evidence before the Court indicates that Adam O'Brien receives a fire brigade pension of $2,038.05 per fortnight which Mr O'Brien submits is used to support his mother, who herself, is not eligible for a full pension or able to work.
Although I accept that Adam O'Brien's limited means (including a pension of approximately $2,000 per fortnight) is to be taken into account, I find that the penalties imposed should reflect the objective seriousness of the offences as the primary consideration as well as the need, as recorded above, to take into account general and specific deterrence.

[25]

Consistency in sentencing

While the task of a sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177; R v Visconti [1982] 2 NSWLR 104 at 107C), care must be taken in achieving consistency as there is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case (Axer at 365). The sentence imposed in a single case does not demonstrate the limits of a sentencing court's discretion: Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35]; Environment Protection Authority v Barnes [2006] NSWCCA 246 ('Barnes') at [79].
The prosecutor submitted a schedule of comparable cases in relation to similar offences to assist the Court in determining the appropriate sentences to be imposed on Adam O'Brien which included: Environment Protection Authority v Aargus Pty Ltd; Kariotoglou; Kelly [2013] NSWLEC 19; Environment Protection Authority v Ashmore [2014] NSWLEC 136; Environment Protection Authority v Laison [2018] NSWLEC 76; Environment Protection Authority v Afram [2022] NSWLEC 38; (2022) 252 LGERA 153; and Environment Protection Authority v ACE Demolition & Excavation Pty (No 2) [2023] NSWLEC 3 (which I note was reconsidered on appeal in ACE Demolition).
Conscious that the Court cannot determine the appropriateness of sentences by way of superficial comparison of sentences imposed on offenders who similarly supplied false and misleading information concerning the receipt, transfer and disposal of ACM, and that care must be taken when comparing cases as there may be many divergent facts and circumstances, I have considered the sentences imposed and the objective and subjective circumstances of the offences and the offenders that led the sentencing court to impose the various sentences in each of the decisions to which I have been referred.
The sentences that I consider to be appropriate to impose on Adam O'Brien for each of the offences are not inconsistent with the sentences imposed in the above cases. While consistency in sentencing is important, a more appropriate yardstick against which each sentence should be compared is the maximum penalty (relevantly, the sum of $120,000 at the time of the offences, and now $500,000) set by Parliament rather than the amounts of fines in earlier cases: Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [72].

[26]

Totality

The totality principle applies where an offender has committed, and is to be sentenced for, overlapping offences. The principle requires the Court in passing a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is "just and appropriate", and reflects the total criminality before the court: Mill v R (1988) 166 CLR 59 at 62-63; [1998] HCA 70; Pearce v R (1998) 194 CLR 610 at 623-624; [1998] HCA 57; Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127 at [128]; ACE Demolition at [110]. Simply stated, if the Court believes the totality principle requires an adjustment to the individual fines that would otherwise be appropriate, the amount of each fine can be altered: Barnes at [50].
In this sentencing, I remain conscious that care must be taken to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of Adam O'Brien's conduct or the sentence for any individual sentence to become disproportionate to the objective seriousness of the offence: Plath v Rawson at [222].
In determining the appropriate sentence for each offence, the Court must consider the need to uphold confidence in the administration of justice. If sentences are reduced substantially, offenders may be of the view that they can escape punishment for a deliberate series of discrete offences: R v Wheeler [2000] NSWCCA 34 at [36]-[37].
In applying the principle of totality, I take into consideration that each of the offences arises from a not unrelated course of conduct and related criminal behaviour that is causally, temporally and spatially linked. As such, I consider the aggregate amount of the fines of $120,000 exceeds what is just and appropriate in the circumstances and the total criminality involved. Although there is more overlap between the False Invoice offence and the False Remittance Advice offence, I consider the appropriate adjustment to reflect the total criminality is to reduce each fine by 25%. This results in the appropriate fine to be imposed for the False Invoice offence to be $30,000; the False Remittance Advice offence to be $30,000; and the False Email offence to be $30,000. This produces a total of $90,000.

[27]

Moiety of fines

The prosecutor seeks an order under s 122(2) of the Fines Act 1996 (NSW) that one half of any fines imposed on Adam O'Brien be paid to the prosecutor. Adam O'Brien does not oppose such an order. I find that such an order is appropriate in the circumstances of these proceedings: Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241 at [102]-[113].

[28]

Publication order

The prosecutor seeks an order pursuant to s 250(1)(a) of the POEO Act, that Adam O'Brien is, at his own expense, to cause a notice in the form detailed in the prosecutor's submissions, to be placed within the first five pages of The Daily Telegraph and Inside Waste, at a minimum size of 14cm x 14cm at the next publication date following the sentencing judgment.
The publication of information relating to environmental offences and their repercussions is relevant to sentencing as it enhances public perception and the deterrent effect of the sentences imposed: Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [242]; Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9; (2022) 251 LGERA 28 at [58]-[59]. In the circumstances of each offence, and although Adam O'Brien made submissions opposing a publication order, due primarily to his present circumstances, and the prospect that such an order is "setting him up to fail" and commit a further offence, and/or contempt of the Court, I find the making of a publication order in the terms submitted by the prosecutor to be appropriate.

[29]

Costs

The prosecutor seeks an order for its professional costs as agreed or assessed under s 257B of the Criminal Procedure Act 1986 (NSW) and submits that payment of the prosecutor's costs is a common aspect of sentencing for Class 5 proceedings and is embedded in the general pattern of sentencing for all offences. The prosecutor further submits 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: Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50]. I find that the appropriate order is that Adam O'Brien pay the prosecutor's costs under s 257B of the Criminal Procedure Act in an amount to be determined under s 257G of the Criminal Procedure Act.

[30]

Orders

The orders of the Court are: In proceedings 2020/00016459: 1. Adam O'Brien is convicted of the offence against s 144AA(1) of the Protection of the Environment Operations Act 1997 (NSW) as charged. 2. Adam O'Brien is fined the sum of $30,000. In proceedings 2020/00016460: 1. Adam O'Brien is convicted of the offence against s 144AA(1) of the Protection of the Environment Operations Act 1997 (NSW) as charged. 2. Adam O'Brien is fined the sum of $30,000. In proceedings 2020/00016461: 1. Adam O'Brien is convicted of the offence against s 144AA(1) of the Protection of the Environment Operations Act 1997 (NSW) as charged. 2. Adam O'Brien is fined the sum of $30,000. In proceedings 2020/00016459; 2020/00016460; 2020/00016461: 1. Pursuant to s 122 of the Fines Act 1996 (NSW), a half share of the fine imposed in each of the proceedings, is to be paid to the Environment Protection Authority. 2. Pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 (NSW), Adam O'Brien is to pay the Environment Protection Authority's legal costs as agreed or assessed. 3. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), Adam O'Brien is, at his own expense, to cause a notice in the form of Annexure "A" to this order, to be placed within the first 5 pages of the following publications, at a minimum size of 14cm x 14cm, within 42 days following delivery of this sentencing judgment: 1. The Daily Telegraph; and 2. Inside Waste. 1. Within 21 days of the date of the publications referred to in Order (5), Adam O'Brien must provide to the Environment Protection Authority a complete copy of the pages of the publications and websites in which the notices have appeared pursuant to Order (5).

[31]

Annexure A (99757, pdf) 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: 28 February 2025

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