Environment Protection Authority v Sam Abbas

Catchwords

[2014] HCA 18 Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485[2002] HCA 42 Bankstown City Council v Hanna [2014] NSWLEC 152 Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234[2008] NSWLEC 264 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Wattke[2009] NSWLEC 1 Garrett v Williams (2006) 160 LGERA 115[2006] NSWLEC 785 Harris v Harrison (2014) 86 NSWLR 422[2014] NSWCCA 84 He Kaw Teh v The Queen (1985) 157 CLR 523[1985] HCA 43 Heading v Elston (1980) 23 SASR 491 Hili v The QueenJones v The Queen (2010) 242 CLR 520[2010] HCA 45 Hills Shire Council v Suciu (No 3) [2009] NSWLEC 192 Hoare v The Queen (1989) 167 CLR 348[1989] HCA 33 La Fontaine v The Queen (1976) 136 CLR 62[1976] HCA 52 Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25 Maxwell v Murphy (1957) 96 CLR 261[1957] HCA 7 McClelland v Environment Protection Authority [2021] NSWLEC 25 Mill v The Queen (1988) 166 CLR 59[1988] HCA 70 Muldrock v The Queen (2011) 244 CLR 120

Judgment (52 paragraphs)

[1]

8] NSWLEC 90 EPA v Wollondilly Abattoirs Pty Ltd [2019] NSWCCA 312 Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 Heading v Elston (1980) 23 SASR 491 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hills Shire Council v Suciu (No 3) [2009] NSWLEC 192 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 La Fontaine v The Queen (1976) 136 CLR 62; [1976] HCA 52 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7 McClelland v Environment Protection Authority [2021] NSWLEC 25 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Murrihy v Betezy.com.au Pty Ltd (No 2) (2013) 221 FCR 118; [2013] FCA 1146 Pearce v The Queen (1988) 194 CLR 610; [1988] HCA 57 Pemble v R (1971) 124 CLR 107; [1971] HCA 20 Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Abboud [2005] NSWCCA 251 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 R v Muldoon (2015) 123 SASR 1; [2015] SASCFC 69 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Peel [1971] 1 NSWLR 247 R v Visconti [1982] 2 NSWLR 104 Re Raison; Ex parte Raison (1891) 63 L.T. 709 Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19 Samuels v Songaila (1977) 16 SASR 397 Secretary, Department of Planning and Environment v AGL Energy Ltd [2017] NSWLEC 2 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Principal judgment Parties: Environment Protection Authority (Prosecutor) Sam Abbas (also known as Osama Abbas) (Defendant) Representation: COUNSEL: P English and R McEwen (Prosecutor) T Howard SC (Defendant) SOLICITORS: Environment Protection Authority (Prosecutor) Storey & Gough (Defendant) File Number(s): 18/238707, 18/238708, 18/238709

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Judgment

The Defendant, Sam Abbas also known as Osama Abbas, has pleaded guilty to the following three offences: 1. from on or about 1 February 2015 to on or about 10 May 2016 inclusive, at or near Spencer in the State of NSW, he polluted land in contravention of s 142A(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) (2018/238707); 2. from on or about 1 February 2015 to on or about 10 May 2016 inclusive, at or near Spencer in the State of NSW, he caused waste to be transported to a place that could not lawfully be used as a waste facility for that waste in contravention of s 143(1) of the POEO Act (2018/238708); and 3. from on or about 1 February 2015 to on or about 10 May 2016 inclusive, at or near Spencer in the State of NSW, he was the occupier of a place and he caused the place to be used as a waste facility without lawful authority in contravention of s 144(1) of the POEO Act (2018/238709).
For each of these offences, the land and/or place particularised in the summonses was at or near 5365 Wisemans Ferry Road, Spencer NSW, being Lot 1 DP 779387 (Property).
In respect of the offences against ss 143(1) and 144(1) of the POEO Act, the waste is particularised in the respective summonses as follows: Material including processed and unprocessed building and demolition material, mulch, fibro cement, car parts, scrap metal, glass, soil, bricks, concrete, timber, painted timber, engineered timber, metal, plastic, tile, rocks, rubble, bitumen, terracotta and asbestos.
In relation to the offence against s 142A(1) of the POEO Act, the "pollutant" is particularised in the relevant summons in the form immediately above, with the further particular that the pollutant was asbestos waste within the meaning of reg 109 of the Protection of the Environment Operations (General) Regulation 2009 (NSW) and cl 50 of Sch 1 of the POEO Act.
The manner of breach in relation to the s 142A(1) offence is particularised in the relevant summons as follows: (i) The Defendant: (a) caused the Pollutant to be placed on the land; and (b) 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 (c) 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. (ii) The Defendant was the occupier of the Property, being the land, at which pollution of land occurred.

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Protection of the Environment Operations Act 1997 (NSW)

Relevant sections of the POEO Act at the time of the offences (from on or about 1 February 2015 to on or about 10 May 2016) provided: Chapter 1 Preliminary … 3 Objects of Act The objects of this Act are as follows - (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, (b) to provide increased opportunities for public involvement and participation in environment protection, (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, (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, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, (g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001. … Chapter 5 Environment protection offences … Part 5.6 Land pollution and waste … Division 2 Land pollution 142A Pollution of land (1) A person who pollutes land is guilty of an offence. Maximum penalty - (a) in the case of a corporation - $1,000,000, and in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (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. … Division 3 Waste offences 143 Unlawful transporting or depositing of waste (1) Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported - (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence. Maximum penalty - (a) in the case of a corporation - $1,000,000, or (b) in the case of an individual - $250,000. … 144 Use of place as waste facility without lawful authority (1) A person who is the owner or occupier of any place and who uses the place, or causes or permits the place to be used, as a waste facility without lawful authority is guilty of an offence. Maximum penalty - (a) in the case of a corporation - $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (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 any proceedings for an offence under this section the defendant bears the onus of proving that there is lawful authority to use the place concerned as a waste facility. … Chapter 8 Criminal and other proceedings … Part 8.2 Proceedings for offences … Division 5 Sentencing 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant) (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant. … Dictionary … land pollution or pollution of land means placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous - (a) that causes or is 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, or (b) that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter, but does not include placing in or on, or otherwise introducing into or onto, land any substance excluded from this definition by the regulations.

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Interpretation Act 1987 (NSW)

Relevant provisions of the Interpretation Act 1987 (NSW) provide: Part 1 Preliminary … 5 Application of Act … (2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned. … Part 4 Amendments and repeals … 30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not - (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed. … Part 6 Statutory rules and certain other instruments 39 The making of statutory rules (1) A statutory rule - … (b) commences on the day on which it is so published or, if a later day is specified in the rule for that purpose, on the later day so specified. …

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Statement of agreed facts

The parties agreed on a statement of agreed facts (SOAF) (attachments summarised below in [11]-[15]) (Ex A) as follows: 3 The accused was during the charge period the sole director, secretary and shareholder of the following companies: • Bells Civil Group Pty Ltd ACN 167 804 337 (BCG); and • Manbuild Pty Ltd ACN 168 793 600 (Manbuild). General Background The Property at Wisemans Ferry, Spencer NSW 4 The land the subject of the charges is located at 5367-5365 Wisemans Ferry Road, Spencer, near Wisemans Ferry, being Lot 1 DP 779387, Lot 2 DP 779387 and Lot 67 DP 665348 (Property). Attachment A is an aerial image of the Property. 5 Lot 1 is to the north of, and adjacent to, Lot 67. Lot 2 is to the east of Wisemans Ferry Road. Attachment B is an aerial image of the Property showing the deposited plan boundaries. 6 The Property is located about 5 km from the township of Spencer and to the east of the Hawkesbury River. Access to the Property is either from Gosford, or across the river via ferry. A thin strip of Crown land separates the Property from the river. 7 Approximately 80% of Lot 1 has been cleared of trees. The land is generally very low lying but slopes up Wisemans Ferry Road to the east. Lot 67 is 95% clear of trees, is low lying and slopes up to Wisemans Ferry Road to the north east. Both sites are fenced, except along the bank of the Hawkesbury River. 8 The predominant land use in the vicinity of the Property is rural and the land was at all relevant times zoned E2 "Environmental Conservation" under the Gosford Local Environment Plan 2014 (LEP). Gosford Council no longer exists and the LEP is administered by the Central Coast Council. 9 Under the LEP, no activities were permitted without consent. Only limited activities were permitted with consent, including "environment protection works". 10 Access to the Property is via a driveway direct from Wisemans Ferry Road. At all relevant times, the driveway was secured with two separate lockable gates. 11 As at May 2016, there were four structures on the Property, marked on Attachment C, as follows: • A residential premises and pool, comprised of brick and surrounded by a low fence, labelled "RD"; • A farm shed, labelled "FD"; • A machinery shed, labelled "MS"; and • A demountable (known as the guesthouse (Guesthouse)), labelled "G". 12 The Areas 2, 10, 3, 9, 6, 11, 12, 4, 5 and 13 on Attachment A, to the north of the Property, are also referred to as Area A. The Areas 1, 8 and 14 on Attachment C are also referred to as Area B. Areas A and B are also clearly marked on the image at Attachment C. Historical use of the Property: 1952 to 2014 13 Prior to 27 November 2014, the land was owned by Paul Carroll and his wife, Regina Carroll. Mr Carroll's father purchased certain land including the Property in 1952 and Mr Carroll and his sister inherited different parcels from the original holding after his father's passing. 14 Mr Carroll constructed two houses, as well as a double garage and a machinery shed, on the Property. The first house was constructed and clad with fibrous sheeting. The second is the current brick dwelling (RD on Attachment C). 15 On 10 June 1987 the Lands Department issued a permissive occupancy allowing a 3 x 3 metre jetty, a ramp 16 x 3.5 metres and a mooring pole fronting Lot 1 on the Hawkesbury River (Permissive Occupancy). Access to the jetty was a maximum of 3 metres wide. A jetty, boat ramp, access way, turning circle and associated clearing of mangroves was constructed by 1994, likely on Lot 67. 16 Those houses remained when Mr Carroll sold the Property, along with stockyards and a loading ramp for cattle. Pumpkins and crops were grown by Mr Carroll in two separate areas: in the vicinity of Areas 2, 3, 6 and 9 and in the vicinity of Areas 13, 4 and 12 (all in Area A). 17 Mr Carroll was employed by Gosford City Council from 6 July 1966 to the middle of 2014. During that time, he worked at the Council's Mangrove Mountain Depot (Depot), his primary responsibilities being road maintenance. Part of the road maintenance tasks included repair of roads, cleaning of road gutters, widening road cuttings and similar work. 18 These tasks generated an amount of material comprised mainly of soil but also mixed with branches, blue metal, rocks, sand, grass, refuse tossed from vehicles, including food wrappers, bottles and similar material, and, up until about 1990, potentially minimal amounts of asbestos material from fibro retainer walls that had been abandoned in road gutters. Soil deposited during floods was also removed as was road upgrade material (clay, topsoil, dirt and similar materials). 19 This material was not processed by Council. Instead, it was stockpiled at the Depot. Up until about 2012, with approval of Council, the material was disposed of solely by providing it to local landholders for use on their properties. 20 Prior to 2013, Mr Carroll accepted road maintenance material onto the Property roughly two to three times per year. The material was deposited in Area 2 (within Area A) and then used to replenish levees (to a height of about 30 centimetres) parallel to the river and to top up a driveway to the jetty (Area B). In about 1997, Mr Carroll used a large amount of road maintenance material and dirt from a quarry on Lot 2 to fill in the jetty area and the driveway to the jetty. 21 Mr Carroll annually disposed of one to five loads of roadside and construction waste on the Property over a forty-five year period until 2012. 22 The volume of Fill Material deposited at the Property during the period prior to the accused's occupation is estimated at between 550 m3 - 3,000 m3. The total fill material on the Property at May 2016 was estimated at between 21,752 m3 - 25,900 m3. Purchase of the Property in 2014 by Ms Rania Ibrahim 23 Rania Ibrahim is the registered proprietor of the Property, having purchased it on 27 November 2014. The accused is her brother. Facts Relevant to First and Third Charges: pollution of land; occupier uses land as a waste facility Control of Property by the Accused 24 Ms Ibrahim asked the accused to look after maintenance of the Property, and the accused had free rein to do so. The accused had effective possession and control of the Property at all material times. 25 Trucks carrying waste began arriving at the Property from February 2015. 26 The gates of the Property were mostly kept unlocked, though when locked a key was left in a nearby tree. 27 Truck drivers were informed by the accused as to the location of the key and they would unlock the gate using the key. Truck Movements near the Property 28 As a result of the use of the Property by the accused the number of trucks travelling the roads in the vicinity of the Property increased from a minimal figure to approximately 50 - 60 truck movements per day. The trucks would travel and included single and double trailer trucks. Waste accepted at the Property 29 The materials accepted at the Property under the authority of the accused during the charge period were identified by transporter entities who responded to statutory notices issued by the EPA as "clay", "shale" and "dirt", but several responses also identified "40/70 aggregate", "crusher dust", "fines" and "road base". 30 The following Table 1 shows the volume of material taken into the Property in each month February 2015 and May 2016 in tonnes. Table 1: Summary of tonnage taken to Property based on analysis of documents Period Loads Assumed Tonnes February 2015 4 120 March 2015 8 240 May 2015 7 210 June 2015 1 30 July 2015 3 90 August 2015 25 750 September 2015 30 900 October 2015 11 330 November 2015 24 720 December 2015 62 1,860 2015 Total 140 4,200 January 2016 39 1,170 February 2016 127 3,810 March 2016 268 8,040 April 2016 137 4,110 May 2016 2 60 2016 Total 573 17,190 February 2015 - May 2016 713 loads 21,390 tonnes

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31 The accused was responsible for the Property and the bringing onto it of a total number of loads delivered to the Property of 733 loads (that is, there were 733 truck movements to the Property). Based on an average of 30 tonnes per load, the total volume of material transported to the Property during the offence period is approximately 21,990 tonnes. 32 The records that exist for the loads do not identify the type of material transported for the majority of loads. However, the type of material transported to the Property is described for 68 loads as follows: a. 11 loads are identified as "concrete"; b. 1 load is identified as "crap"; c. 1 load is identified as "clean"; d. 1 load is identified as "green waste"; e. 1 load is identified as "sleepers"; f. 39 loads are identified as "dirty"; g. 8 loads are identified as "ENM". 33 The transport dockets (the dockets completed by the driver) generally do not describe the material that was deposited. However, on some dockets, the loads are described as "fill", "clay", "ENM", "concrete blocks", "40/70", "50/70", "fines", "woodchip", and "topsoil". On some dockets it is noted that the loads have been rejected from other sites (e.g. "Got kicked out and sent to Spencer"). 34 Transport invoices (from the company issuing the invoice) are available for 675 of the 713 documented loads. The invoices generally do not describe the material transported. However, on some invoices, the loads are described as "concrete blocks", "topsoil", "mixed sand", and "soil". On some invoices it is noted that the load had been rejected from another site. 35 There were 23 source sites for the material taken to the Property (as to which see further below at [111]-[113]), as set out in Table 2 below. Source sites that have provided records are marked with an asterisk. Table 2: Source Sites Source Site Period Loads Tonnage 1 Arncliffe* April 2016 10 300 2 Asquith August 2015 17 510 February 2016 1 30 3 Balmain* March 2016 22 660 April 2016 52 1,560 4 Bankstown* January 2016 5 150 5 Canterbury February 2016 13 390 6 Croydon* February to March 2016 11 330 7 Gymea* February 2016 80 2,400 8 Homebush March 2016 36 1,080 9 Hurstville April 2016 18 540 10 Kogarah January 2016 4 120 11 Lindfield* January 2016 12 360 12 Marsden Park January 2016 1 30 13 Mascot* September 27 810 October 9 270 November 2015 5 150 February 2016 2 60 14 Merrylands August 2015 3 90 15 Milperra January 2016 1 30 16 Peake Parade May 2016 6 180 17 Pyrmont* December 2015 1 30 18 37-51 Violet Street, Revesby February 2 60 March 1 30

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May 1 30 June 1 30 July 3 90 September 3 90 October 2 60 (Licensed Premises) November 19 570 December 2015 22 660 January 2016 15 450 February 2016 16 480 March 2016 42 1,260 April 2016 15 450 December 2015 4 120 19 Riverwood February 2016 1 30 March 2016 1 30 20 St Marys January 2016 1 30 21 Surry Hills April 2016 18 540 22 Wentworthville August 2015 5 150 23 Wolli Creek February 2015 2 60 March 2015 2 60 Total 514 15,360

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36 Material transported to the Property from the premises of Enviro Recycling Pty Ltd (see [77]-[93] below) between September 2015 and April 2016 comprised 2,036 tonnes of material variously identified as "aggregate", "40/70 aggregate", "road base", "crusher dust", "recovered fines", "recovered topsoil", "general waste" and "raw woodchip". Council interactions July to December 2015 37 On about 29 July 2015, the accused called the Council to enquire as to whether he was "able to bring clean fill material onto the Property to level the land and make it usable?" He was informed by Council officer Pemberton that the land was mostly flood prone and, for that reason, no fill could be placed without consent. Council officer Pemberton emailed the accused an image demonstrating those parts of the land Council considered to be flood prone (Flood Zone Map) a copy of which is at Attachment D. 38 Officer Pemberton attended the Property on or about 9 September 2015 and observed, from the outside of the Property, numerous piles of waste material, in the form of soil, in the vicinity of Areas 6 and 9 (Area A). 39 Council officers inspected the Property on 2 December 2015 and observed three piles of material in Area 9 (100 metres by 80 metres in size), Area 13 (40 metres by 30 metres in size) and in between Area 9 and Area 14, in the trees adjacent to the river (all in Area A). Photographs of the piles in Area 9 and Area 13 are at Attachment E. Samples of suspected asbestos pieces were taken from a pile in Area 13. The samples were provided to the EPA and, after laboratory testing, 2 out of 6 suspected asbestos pieces were confirmed to contain asbestos. EPA Inspections EPA inspection of the Property on 10 May 2016 40 On 10 May 2016, EPA officers entered and inspected the Property, took photographs and acquired samples. Copies of a selection of photographs taken on this occasion are at Attachment F. 41 At Area A, an area of approximately 200 m x 100 m had been applied with a mixture of heavily processed waste material, with the consistency of waste fines with minimal amounts of soil type material. In Area A, processed wood waste with the consistency of mulch type material had also been applied across some of the area, over the top of other material. The processed material was grey in colour, very fine, dry and dusty, and was a mixture of what appeared to be heavily processed building and demolition waste, in sizes no larger than 0-2cm. The material in Area A had a "shimmer" to it due to it containing some broken glass. 42 In the middle of the filled section of Area A, there was a large stockpile of wood waste. Many pieces of fibrous cement fragments were visible on the surface of the filled area. Tree die back was observed on trees in Area A. 43 In Area B, trees had been pushed over to create a large turning circle created out of building and demolition material comprised of concrete, metal, broken pipe, bricks, tiles, chipboard and suspected asbestos pieces. Aggregate had been placed between the low and high waterline. The land applied material in Area B resembled a football field (110m by 50m). The waste material was mixed together, appeared to be compacted and was applied down to the Hawksbury River, including in the swampy area between the mangroves and paddocks. The water in the swampy area was brown in colour with an oily/grease slick. 44 Samples of material suspected to be asbestos were taken from Areas A and B for testing which ultimately showed: a. 24 from 37 samples taken from Area A, and b. 21 from 21 samples taken from Area B, contained asbestos. 45 There was estimated to be compacted fill: a. In Area A of between approximately 6,732 m3 and 10,099 m3, and b. In Area B approximately 2,615 m3. EPA inspection of the Property on 14 June 2016 46 On 14 June 2016, EPA officers inspected the Property and observed that: a. Area A remained largely unchanged from 10 May 2016. Waste material was still evident, stockpiles previously observed were still present, and pooling of water adjacent to the waste material was observed. b. Area B, limited sediment fencing had been installed. EPA inspections of the Property in 2017 47 On 15 February 2017, EPA officers inspected the Property. Area A was observed to have started to grass over. 48 On 11 July 2017, a number of EPA officers and persons from KMH Environmental, attended the Property to conduct an environmental assessment at the site. 49 Approximately 45 test pits were excavated, and samples taken in and around Area A. The test pits varied in depth from 500 mm to 1.8 m, before reaching natural ground materials. In some of the test pits the excavated material within Area A was a mixture of what appeared to be building and demolition waste and soils, including bricks, tiles, concrete, plastic, cement fragments, wood, wood chips, metal, tyres, hydraulic pipes and hoses, glass and carpet. 50 During excavation of some of the test pits there was a strong, offensive and pungent odour. The smell varied from pit to pit but generally it was a strong sulphur odour, like rotting eggs and decomposing waste. Some of the pits emitted a strong hydrocarbon smell. The sulphur smell was stronger in the test pits in the wetter areas and the hydrocarbon smell was stronger in the test pits where hydraulic pipes, and what appeared to be car parts, were revealed by the excavation. 51 Once excavated, many of the test pits filled with black, sticky and oily looking water that had a pungent odour and which flowed from a layer between the natural soil and waste type fill material observed in the test pits. The water had an odour. 52 Across the surface of Area A, in material that appeared to be processed fines containing a mixture of building and demolition waste, there was suspected asbestos cement fragments. Spent ammunition was also found within the buried waste within Area A. 53 The inspection continued on 12 July 2017, at which time approximately 17 further test pits were dug in Areas A and B. The material excavated was of a similar type to the material which had been excavated in Area A the day prior and that natural ground material was not encountered until between 500mm to 1.8m below ground surface. However, the material from the test pits being excavated on 12 July 2017 contained larger pieces of building and demolition waste, in particular: metal, car parts, bricks, concrete and wood. 54 The colour of the waste material was the same as the previous day: it was black, wet and sticky with the same pungent odours. The smell differed in some of the test pits but the majority of the test pits in Area A had a strong hydrocarbon smell. The sulphur smell which was stronger in the test pits from which wet material had been excavated and which were filling with water. 55 In Area B the material excavated was a soil type waste material containing mixed building and demolition waste, including large pieces of concrete, bricks, metal and gas cylinders. The waste material in Area B appeared less processed to that excavated from Area A. There was a slight odour emanating from the test pits dug in Area B, but the smell was not as pungent as the odours emitted from the excavated pits in Area A. A container filled with syringes was located in a small stockpile of wood waste in Area B. 56 Five asbestos results were confirmed in respect of soils sampled from Areas A and B on 11 and 12 July 2017, with a further 6 positive asbestos results coming from bonded asbestos sheeting found on the Property on these days. 57 In total 58 representative positive asbestos findings resulted from all samples taken at the Property in the period between 2 December 2015 - 12 July 2017. Environmental Assessments of the Waste at the Property Environmental assessment and waste classification by KMH Environmental 58 The land filling activities carried out by the accused which occurred on the Property during the charge period have: a. Resulted in the deposition of around 25,900 m3 of waste material, classified as Special Waste due to the presence of asbestos within Areas A and B, or otherwise General Solid Waste. This has resulted in a physical alteration to the environment in that the materials deposited have altered the ground levels, nature of water flows on and below the surface, and the porosity and density of the subsurface. b. Degraded the land resulting in non-trivial actual or potential harm to ecosystems, in particular native vegetation and the natural habitats for native subsurface dwelling species. The presence of asbestos on the Property has caused a degradation in the land that has the potential to pose non-trivial potential harm to the health and safety of human beings. c. Resulted in actual environmental harm to flora and fauna habitants on the land. Environmental assessment by Martens & Associates 59 The land filling activities carried out by the accused which occurred on the Property during the charge period: a. Resulted in the deposition of around 21,202 m3 of fill material on the Property. This has caused an alteration to the environment in the form of vegetation cover, surface water hydrology, ground water flow, soil profiles and groundwater chemistry. Actual harm to the environment has thereby been caused. b. Degraded the land on the Property resulting in non-trivial actual or potential harm to animals or other terrestrial life or eco-systems that is not trivial, particularly by reference to adverse impact on soils, floodplains, watercourses via leachate of elevated metal content and hydrocarbons, and the acidification of the local ground water profile. The introduction of asbestos onto the land also poses a potential, albeit low, hazard to human safety. Clean-up Notice issued by EPA 60 On 30 August 2017, the EPA issued Clean Up Notice 1554705 to Ms Ibrahim. The Clean Up Notice required Ms Ibrahim to engage a suitably qualified person to prepare a remediation action plan for the waste material containing asbestos at the Property. 61 Ms Ibrahim's Remediation Action Plan (RAP) was provided on 25 May 2018. 62 The key findings of the RAP include that: a. Visible signs of contamination included asbestos fragments and other building material such as ceramic and plastic in surface cover at the entrance of the Property on Lot 1, where road base material had been mixed with processed building material such as glass, brick, ceramic, plastic and material potentially containing asbestos (ACM) (RAP, p 14). b. The same material had been applied and compacted around the guest house on Lot 1 and had been used to landscape the slope from the guest house to the boat launch on Lots 1 and 67 (RAP, p 14). c. Internal roads connecting the guest house with the boat launch on Lot 1 had been constructed using the same ACM impacted fill (RAP, p 14). d. On Lot 1: the extent of fill in the north of the Property covered an area of around 9,400 m2, the extent of fill in the swampy area in the north-west covered an area of around 8,500 m2, and the extent of fill around the guest house covered an area of more than 6,000 m2 (RAP, p 11). e. The known nature and extent of contamination across all lots on the Property included an approximate horizontal extent of ACM impacted fill of 4.7 hectares (RAP, p 20). f. Potential remediation options for the Property include on site management, with contamination listed on the Property's s 149 Certificate and / or disposal of contaminated fill materials off site (RAP, pp 27-29). 63 On 19 December 2018, the EPA provided a draft copy of a Variation of the Clean Up Notice to Ms Ibrahim for comment. The draft variation required the waste material to be removed from the Premises. 64 Between January and April 2019, the EPA and Ms Ibrahim corresponded regarding the proposed Variation to the Clean Up Notice. This included: a. On 20 March, Ms Ibrahim informing the EPA that she intended to lodge a development application with Council to permit onsite containment of the waste material at the Property. b. On 18 April 2019, Ms Ibrahim requesting a 7-month extension to allow her to make an application to Council for a development application to permit the material to remain on site. c. On 30 April 2019, the EPA informing Ms Ibrahim that the requested 7-month delay was unreasonable and that it intended to issue the Variation of Clean Up Notice. Impact on value of the Property 65 As at October 2014, the market value of the Property was best reflected by the purchase price paid by Ms Ibrahim, that is, $865,000. The market value of Lot 1 as at October 2014 was $520,000. 66 Between 2014 and 2016, there was moderate growth in the real estate market in Spencer. 67 As at 10 May 2016, the "clean" market value of the Property (that is, the market value of the Property without the deposition of material) was $1,045,000. The "clean" market value of Lot 1 was $715,000. 68 Between 2016 and 2018, there was moderate growth in the real estate market in Spencer, and overall there was a general strengthening in the real estate market of up to 28% between 2014 and 2018. 69 As at May 2019, the "clean" market value of the Property was $1,465,000. The "clean" market value of Lot 1 was $965,000. 70 However, remediation costs the subject of the EPA's clean up notice are estimated to be significant and exceed the total market value of both the Property and Lot 1. 71 In addition to the costs of remediation, an appropriate deduction in value should be made from the value of the Property for a perceived "stigma" associated with contaminated sites, even after the Property has been remediated or appropriately managed/contained. 72 A reasonable person who is considering purchasing the Property, acting prudently, and who had made all proper enquiries, would deduct the perceived time, cost and risk of remediation associated with the Property from the "clean" market value of the Property and conclude that the Property is not an asset, which attracts a market value, but rather a liability. Facts Relevant to Second Charge: Transportation of waste to a place that cannot be used as a waste facility for that waste Commencement of EPA Investigation 73 On 29 January 2016, officers of EPA's Waste and Resource Recovery Branch were engaged in covert surveillance of vehicles owned by Mr Victor Martelli, a person in the business of transporting waste. Mr Martelli's vehicle was followed from the premises of Enviro Recycling Pty Ltd (see below at [77]-[93]), where it collected a load of waste materials and travelled to the Property. From the exterior of the Property, EPA officers observed stockpiles of dirt like material mixed with foreign material and demolition waste on the Property. 74 On 10 February 2016, EPA obtained approval from Council to install a covert surveillance camera on the opposite side of the road to the entrance of the Property. The camera was installed on 19 February 2016 and became operational on 20 February 2016. While the installation of the camera on 19 February 2016 was taking place, a task which took around 8 hours, trucks were seen entering and leaving the property every five minutes during peak times of truck movements. 75 Between 19 February 2016 and 3 May 2016, the camera recorded 382 truck movements, with most trucks being truck and dog combinations with an average practical 30 tonne capacity. A considerable proportion of the registration details of trucks captured in the footage was obscured. 76 On 23 March 2016, the EPA commissioned a drone to capture footage and images of the Property. The footage showed that a significant amount of earthworks had occurred on the Property. Copies of six images captured by the drone are at Attachment I. Enviro Recycling Pty Ltd 77 As at 10 May 2016, Enviro Recycling Pty Ltd ACN 169 091 230 (ER) had its principal place of business at 37-51 Violet Street, Revesby (Licensed Premises). At that time ER held Environment Protection Licence 20607, issued under the POEO Act. The business of ER was to provide a location for construction and demolition companies to dispose of their waste for a fee. 78 An image of the Licensed Premises is at Attachment G. The Licensed Premises comprised a main entrance/exit, a weighbridge, a main office, a storage shed, a processing shed and a waste storage area. 79 Initially, waste arriving at the Licensed Premises was hand sorted. At one time, in 2015 or 2016, a portable screen was trialled. In 2016, the Licensed Premises acquired some machinery capable of sorting and processing the waste to an extent. Prior to that time, the only equipment on site was excavators. 80 Bruce Fordham was the sole director of ER. Mr Fordham is also the sole director of: • Bells Civil (Australia) Pty Ltd ACN 156 527 374 (BCA); and • Bells Hire Pty Ltd ACN 163 775 139 (BH). 81 The corporate arrangements that existed onsite are summarised in Attachment H, are further described below. 82 BH owned the Licensed Premises and other assets including plant and equipment which it hired to BCA. The accused and six other people contributed funds towards the purchase of the Licensed Premises in BH's name. BCA conducted an excavation business. ER operated the Licensed Premises and paid rent to BH. At least three other entities operated out of the Licensed Premises, namely, Manbuild, BCG and Express Haulage Pty Ltd. 83 The director of Express Haulage Pty Ltd is Omar Dib. Mr Dib and his brothers worked at the Licensed Premises. 84 The accused was managing ER as Mr Fordham had health issues. The accused was responsible for the invoicing of different companies utilised and subcontracted by ER, the employees of ER reported to the accused and the accused was responsible for paying their wages. 85 The yard manager and the operations manager at the Licensed Premises reported to the accused and the accused was responsible for ensuring that the weighbridge was operating properly. 86 The accused was at the Licensed Premises each day during the week. 87 The accused was also managing BCA and BH on Mr Fordham's behalf and was referred to as the General Manager of ER, BCA and BH. 88 The accused organised business deals between the corporate entities, such as the hiring of equipment between BCA and BH. The accused had authority to pay wages, transfer funds from bank accounts operated by BCA, BH and ER, and to pay himself wages from those accounts. The accused reviewed every invoice before payments were made. 89 The accused would also conduct the excavation and demolition work of the Bells companies. 90 Material considered potentially suitable to meet orders/exemptions was tested on behalf of ER by environmental consultants, Benviron Group Pty Ltd, to determine whether it met resource recovery exemptions under the POEO Act, mainly for recovered aggregates. 91 The accused was responsible for having waste material tested to see if it met any relevant orders/exemptions, although sometimes Mr Fordham would receive the testing reports. According to Mr Fordham, materials that met the order/exemption requirements were mostly supplied to landscaping businesses. It was the accused's responsibility to ensure that materials were appropriately classified and certified before supplying them. 92 Non-recyclable material (including material that did not meet orders/exemptions) was usually sent to Queensland by B-double trucks owned by a company named W2R. Mr Fordham organised these arrangements. 93 A few weeks after 10 May 2016, the accused ceased managing ER. Bells Civil Group 94 The office for BCG was located within the Licensed Premises. BCG staff were co-located with staff of ER and Express Haulage. 95 Alan Thompson was employed by BCG as the operations manager of BCG from 10 September 2015 to 31 March 2016. 96 Mr Thompson attended constructions sites during excavation and demolition as directed by the accused, including at Mascot, Pyrmont, Auburn, Canterbury and Balmain. 97 His responsibilities at the sites included standing at the gates and writing down the registration number of trucks entering and leaving the site with material. Mr Thompson recorded details onto a load sheet, including the date, the registration, the arrangement of the truck (truck and trailer, bogie or semi), the time each truck left, what was in the truck and where the truck was going (as advised on the morning of the job by the accused). 98 The description of what was in the trucks included whether the material was "clean or dirty" according to the reports generated by the company which tested the material. Anything that was not VENM was classified as "dirty". Mr Thompson assumed clean fill went to a different location to dirty fill, and dirty fill would go to a place "where they could deal with that". 99 Ms Lora George was the accountant for BCG from July 2015 to July 2016. 100 The accused authorised BCG employee time sheets for payment. Employees were paid either through BCG or Manbuild, with some employees paid in cash by the accused personally. The accused also quoted on work BCG proposed to perform and instructed Ms George to type up quotations. 101 The accused was the signatory on an account held with the ANZ Bank in the name of BCG into which significant sums of money were received, and numerous payments made, in the period 4 September 2014 (the date the account was opened) to 30 June 2016. 102 Invoices for transport services received by BCG were checked off against load sheets by BCG employees and then provided to the accused for approval for payment. 103 Promotional materials produced by BCG identify the accused as the primary contact for BCG as well as the "sales manager" for ER. 104 On occasion, Manbuild would invoice BCG for employee time, based on timesheets on BCG letterheads. Manbuild would also invoice BCG for truck hire. Employees from Manbuild would work for ER and Express Haulage. BCG would also invoice Express Haulage for truck hire, labour and servicing. 105 BCG paid for MYOB subscriptions for BCA and Express Haulage. Testing at Enviro Recycling Pty Ltd 106 Benviron Group took samples from the Licensed Premises on a number of occasions between 15 September 2015 and 22 March 2016. Samples were sent to Eurofins laboratories for analysis and the results assessed by Benviron Group to determine whether the materials met relevant orders under the POEO Act (the Waste Resource Recovery Orders). 107 The Table below summarises the testing done by Benviron Group at the Licensed Premises. No Sample Date Sample Location Report Date Order Report Conclusion Excavated Natural Material (ENM) 1 3 July 2015 location (4 samples) 13 July 2015 ENM Order 2014 Suitable Stockpile of soil 2 m (h) x 6 m x 4 m 2 17 September 2015 Aggregate Location (5 samples) 5 October 2015 Recovered Aggregate Order 2014 Suitable Stockpile of crushed concrete, brick and tile Recovered Fines Location (1 sample) 3 8 February 2016 Mixture of soil and foreign material 19 February 2016 Batch Process Recovered Fines Order 2014 Not suitable including plastic and timber 4 8 February 2016 Aggregate 19 February 2016 Recovered Aggregate Order 2014 Suitable Location (5 samples) 5 18 March 2016 Recovered Fines 1 April 2016 Batch Process Recovered Fines Order 2014 Not suitable Location (1 sample) 6 22 March 2016 Recovered Fines 8 April 2016 Batch Process Recovered Fines Order 2014 Not suitable Location (1 sample) 7 4 April 2016 Recovered Fines N/A - Eurofins certificate only Batch Process Recovered Fines Order 2014 N/A Location (1 sample) 8 11 April 2016 Recovered Fines N/A - Eurofins certificate only Batch Process Recovered Fines Order 2014 N/A Location (1 sample)

[9]

108 Subsequent expert analysis of the testing methodology performed by Benviron Group, and results obtained therefrom, in respect of the above samples of waste materials taken from the Licensed Premises confirms the following: a. In respect of the substance purporting to be ENM (sample event 1 above), the material did not meeting [sic] the relevant definition of ENM and, as Benviron Group did not carry out the correct sampling methodology and did not collect and test the required number and type of samples, the purported ENM was not sampled and tested in accordance with the conditions of the ENM Order 2014. b. In respect of the substances purporting to be recovered aggregate (sampling events 2 and 4 above), the materials were not sampled in accordance with the sampling requirements of the Recovered Aggregate Order 2014. c. In respect of the substances purporting to be recovered fines (sample events 3 and 5-8 above), all of these sampling events were not sampled in accordance with the Continuous Process Recovered Fines Order 2014 or the Batch Process Recovered Fines Order 2014, sample event 7 above was not tested in accordance with the requirements of either of these Orders, and the results for sample events 3, 5, 6 and 8 above exceeded the thresholds for pH and glass, metal and rigid plastics. Transporters 109 During the charge period, the accused permitted eleven named transporters to deliver material to the Property. 110 The transporters transported material as set out in the following table: Name Dates Quantity (tonnes) Type Source A&Z Tippers Pty Limited August 2015 -April 2016~ 4,080 Dust from enviro, sandstone and clay". Canterbury, Gymea, Homebush, Hurstville, Kogarah, Lindfield, Mascot, Revesby (i.e. the Licensed Premises), Surry Hills and Wentworthville M&T Haulage Pty Ltd March 2015 to April 2016 2,100 Sandstone, clay and fines, material from excavations, with some brick, metal and concrete in the material Balmain, Canterbury, Gymea, Hurstville, Kogarah, Lindfield, Mascot, Merrylands, Revesby (the Licensed Premises) and Surry Hills. Kabita Earthworks Pty Ltd February and March 2016 1,710 Arncliffe, Balmain, Canterbury, Hurstville, and Revesby (the Licensed Premises). Vdig Demolition and Excavation Pty Ltd January to April 2016 900 Sandstone boulders, topsoils, roadamil (road building material), turf underlay, turf, concrete pipes, and machines Licensed Premises Nik Civil Works Pty Ltd 840 Clay, road base and fines Balmain, Canterbury, Gymea, Hurstville, Revesby (the Licensed Premises) and Surry Hills El Saddick Transport Pty Ltd March and April 2016 390 Sand, or dirty sand Balmain, Hurstville and Surry Hills H&A Hire Pty Ltd March and April 2016 390 Road base and clay Balmain, Hurstville and Surry Hills T&M Tippers Hire Pty Ltd 750 Shale, soil, fines, road base, sandstone and excavation sand, Revesby, Mascot, Hornsby MTS Tipper Hire Pty Ltd May and October 2015 and April 2016 150 Sand Licensed Premises Hajar Tippers Pty Ltd March 2016 90 LD Trucking Pty Ltd February and March 2016 150 "Top soily looking stuff" and aggregate Licensed Premises

[10]

Evidence from source sites 111 The accused was responsible for the accepting material from the following SOURCE sites: (a) Arncliffe: 300 tonnes of wet VENM ON 6-7 April 2016 (b) Balmain (see below) (c) Bankstown:150 tonnes of demolition building waste with asbestos removed in January 2016) (d) Croydon: 330 tonnes of demolition building waste in February and March 2016 (e) Gymea: 2370 tonnes of demolition building waste from February to March 2016) (f) Lindfield: 360 tonnes of contaminated General Solid Waste (asbestos) or General Solid Waste in January 2016 (g) Mascot: 1,230 tonnes of demolition building waste September to November 2015 and February 2016) (h) Pyrmont: 30 tonnes of demolition building waste in December 2015) 112 Further to (b) Balmain: a. 2,100 tonnes of General Solid Waste (non-putrescible) with some areas classified Restricted Solid Waste, with possible asbestos contamination in areas of brick and rubble between March to April 2016) b. On 26 February 2016, BCG tendered to carry out the works at the site, with the accused listed as the contact for BCG. LEDA engaged BCG on 7 March 2016 to demolish the existing structures and dispose of them ($35,000), and to carry out bulk earthworks, including the removal of General Solid Waste and VENM from the site ($434,000). BCG included in its quote the removal of 1700 cubic metres of "fill material" and 2900 cubic metres of "sandstone". c. The works were carried out by BCG between 14 March 2016 and 9 June 2016. Peter Thompson of BCG was at the source site and coordinated the loading of vehicles. d. In May 2016, in response to a request from LEDA for proof of destination of construction and demolition waste, BCG provided some invoices showing that some volumes of "mixed brick and concrete" went to the Licensed Premises. e. On 22 April 2016, LEDA paid BCG $312,150 as a progress payment for having completed 90% of the demolition works, and clearing 985 cubic metres from bulk excavation works, including 130-160 cubic metres referred to as "bad grounds" to be disposed of as solid waste. 113 Records show material was transported from Balmain to the Property by A&Z Tippers Pty Ltd, Civilworx NSW Group Pty Ltd, El Saddick Transport Pty Ltd, Express Haulage Pty Ltd, H&A Hire Pty Ltd, Kabita Earthworks Pty Ltd, M&T Haulage Pty Ltd, MCA Group, and Nik Civil Works Pty Ltd.

The map in Attachment C is extracted below. Area A is outlined in red, Area B is outlined in blue, the buildings are outlined in green and the driveway is outlined in yellow.

[11]

Prosecutor's additional evidence

The Prosecutor tendered a bundle of documents (Ex B) which included a schedule of additional orders sought by the Prosecutor on sentence dated 1 April 2021 including a draft publication order requiring Mr Abbas to publish notices in the Daily Telegraph and Inside Waste magazine and to do a letterbox drop on Wisemans Ferry Road; an expert report of Mr Kenneth Holmes dated 17 October 2019; and an expert report of Dr Daniel Martens dated 18 October 2019. The Prosecutor also tendered a draft clean-up notice (Ex D) and remediation action plan (RAP) prepared by GHD Pty Ltd dated May 2018 (GHD RAP) (Ex C).

[12]

Affidavit of Mr Abbas

Mr Abbas swore an affidavit dated 24 March 2021 which stated (annexures omitted): I say on oath: 1. I am the Defendant in these proceedings. 2. I am 49 years of age, married with 5 children. 3. After leaving school, I worked in the electronics industry in sales and repairs. 4. Approximately 10 years ago, I started working in the civil construction and demolition industry. 5. The property at 5365-5367 Wisemans Ferry Road, Spencer was purchased by my sister Rania Ibrahim on 27 November 2014 ("the Property"). The Property has a frontage to the Hawkesbury River. 6. After my sister purchased the property I observed a large amount of waste material on the property in various locations. The waste material included what appeared to be household garbage, car parts, building materials and asbestos. I also observed a number of banks and hollows and a substantial part of the Property was not level. 7. Prior to this purchase, the Property was owned by Paul and Regina Carroll. I spoke to Mr Carroll who informed me that he was employed by Gosford City Council at the Council's Mangrove Mountain Depot his primary responsibilities being road maintenance. 8. Mr Carroll informed me that he brought road maintenance material onto the Property. 9. Following the purchase, I calculated how much fill would be needed to cover the waste material, fill in the hollows and depressions and generally level the Property. 10. I made enquiries to source clean fill to be taken to the Property. 11. Fill material was brought to the Property from February 2015. 12. I believed that the fill material was clean fill compromising [sic] clay, shale and dirt. I only wanted clean fill to be brought to the Property. 13. I did not pay for the fill to be taken to the Property nor did I receive payment for any of the fill taken to the Property. 14. l visited the Property on a regular basis and when sufficient fill had been brought to the Property, I would organise for the fill to be levelled and compacted. 15. On a number of occasions, I observed that some of the material contained demolition material. When that occurred, I would direct that the spreading and compacting of the fill be done to cover the material in the belief that such covering would bury the material and ensure it did not enter the river. 16. Following the spreading and compacting of the fill materials on the Property, I arranged for the filled areas to be planted out with native grasses to bind the fill material and avoid it entering the river. 17. I first became aware of issues relating to the filling of the Property when the illegal dump squad visited the Property. They took samples. I did not hear from them so I continued. That was roughly around August 2015. Up to this time I was not aware that the material being deposited onto the Property could cause environmental harm. 18. Having read the reports that have been prepared on the nature and extent of contaminated material that has been deposited on the Property, I am now aware that contaminated material has been deposited at the Property. I am also now aware potential damage such deposited material could cause to the Property and the environment. 19. In hindsight, I should have been diligent and ensured that all fill placed on the property was clean. 20. I am deeply regretful that my actions have led to this result and without reservation apologise to both the Court and the community for my actions and those who brought the material to the Property at my request. 21. I accept without reservation responsibility for bringing contaminated material onto the Property and am committed to the Property being fully remediated by an independent third party contractor in accordance with the Remediation Action Plan prepared by EI Australia. 22. I am not a wealthy man. Annexed hereto and marked "A" is a statement of my assets and liabilities. 23. Annexed hereto and marked "B" is a copy of my tax estimation for the 2019/2020 tax year. 24. Annexed hereto and marked "C" is a letter from my accountant regarding my gross income for the period July 2020 to 31 December 2020. 25. I am the sole director and shareholder of Angel Gutter Cleaning Pty Ltd, Demolition Men (Aust) Pty Ltd and Manbuild Pty Ltd. Annexed hereto and marked "D" is correspondence from my accountant regarding these companies. … 27. I have for a number of years assisted the young people of Bankstown/ Canterbury area who have drug/accommodation/ employment problems by counselling them and finding work and accommodation.

[13]

Examination-in-chief of Mr Abbas

Mr Abbas gave oral evidence that he has four children under the age of five and an older son who is almost 18 years old. In relation to the proposed publication order, Mr Abbas stated that publishing notices in the Daily Telegraph and Inside Waste magazine would cause great financial loss to Angel Gutter Cleaning Pty Ltd, Demolition Men (Aust) Pty Ltd, Manbuild Pty Ltd and to himself. People would stop using those companies. It would also affect his family. Mr Abbas would be prepared to put notices in resident mailboxes on Wisemans Ferry Road. This would show the locals that Mr Abbas admits what happened was wrong. Mr Abbas' businesses would not be affected because he does not work in the area.

[14]

Cross-examination of Mr Abbas

In cross-examination, Mr Abbas stated that he inspected the Property and recommended to his sister that she should purchase it. The Property was purchased in his sister's name on 27 November 2014. Mr Abbas recommended that his sister purchase the Property because "it looked good". Mr Abbas observed waste material on the Property after it was purchased. There was enough waste material to make Mr Abbas feel like he had misled his sister in recommending that she purchase the Property. He observed waste material under the grass. A Gosford City Council (the Council) truck came on to the Property during the summer of 2014 to dump material. Mr Abbas felt that he had to fix the Property.
Mr Abbas remembered the email Council Officer Pemberton had sent to him on 29 July 2015 attaching the flood zone map (see SOAF par 37, Annexure D described in [12] above). Mr Abbas identified that three-quarters of the Property was in the flood zone. Mr Abbas said he "remember[ed] otherwise" when asked whether he was told by Council Officer Pemberton that the Property was mostly flood prone and for that reason no fill could be placed without consent. The following interaction occurred in cross-examination: (Tcpt, 12 April 2021, p 30) Q: Do you agree that by 29 July 2015 you knew that the property was in the flood zone and that you couldn't bring on fill material without development consent, correct? A: Yeah, that's a grey point too. Q: It's a grey point, is it? A: It is. It's a grey point because where he said to me not to bring fill, he'd already brought fill there--
Mr Abbas estimated that he was on the Property between 5-10 times in 2015 and up to five times between January and May 2016. When he was at the Property Mr Abbas would organise for the fill to be levelled and compacted. Mr Abbas stated it was "mainly me" who gave instructions on where the trucks should tip material.
Mr Abbas was shown photographs of "Area A" taken by investigators on 2 December 2015 (see SOAF par 39). These photographs were included in Attachment E to the SOAF described in [13] above. Mr Abbas stated that the material in the photographs "doesn't look like clean fill". The material looked "like a bit more than wood waste". Mr Abbas agreed that the material could be called "general solid waste". In relation to photographs taken during a site inspection on 10 May 2016 (see SOAF, Annexure F described in [14] above), Mr Abbas stated that those photographs could have been taken anywhere.

[15]

Defendant's further evidence

The Defendant tendered a revised RAP prepared by EI Australia dated 25 March 2021 (draft RAP) (Ex 1). The "Executive Summary" states that Mr Abbas of Smiley Civil Pty Ltd engaged EI Australia to prepare the EI Australia RAP for the Property and outlines the current remedial strategy. A cost estimate of $661,000 to implement the draft RAP was provided.
The Defendant also tendered a bundle of documents (Ex 2) which consisted of the following. A letter dated 30 June 2016 from Peter Thomson resident at an adjacent property since 2007 stating that it had always been his understanding that council waste including spoil from clean-ups, roadside gutter clearing, roadworks and other things collected in the local area was used as landfill for local properties, including at the Property. The Council had been bringing material to the Property for "many years". The Council kept this material at a depot until there was enough to justify a day of transporting the material by a fleet of trucks to sites in the local area. Mr Thomson also stated that these trucks would run for the full day. The truck movements "would always draw the ire of local business owners at Spencer, to the point of them sometimes forming roadblocks in protest".
In a record of interview (ROI) between an authorised Environment Protection Authority (EPA) officer and Mr Thomson dated 15 July 2016, Mr Thomson stated that material had been deposited on the Property for the past eight years. Mr Thomson stated that when the prior owner Mr Paul Carroll lived at the Property, the Council brought in "copious amounts of material" to fill in the marshlands and low-lying areas on the Property. In relation to the kind of material brought onto the Property, Mr Thomson said it was "whatever was picked up on the side of the road". It looked like "a big pile of rubbish, muck, dirt, leaves, cans, bottles …". On the days that the Council was moving in the material, Mr Thomson said they "started early in the morning and they were moving it all day".
Mr Carroll, previous owner of the Property, made a statutory declaration dated 12 August 2016. Mr Carroll worked at the Council from 1966-2014. His main duty was to dispose of roadwork upgrade material. This included waste material comprised of road gutter and road maintenance products which included concrete, plastic, soil, and solid waste items. Mr Carroll was directed by the Council to look at possible residential tipping sites such as the Property where roadside and construction waste could be disposed of. Under the instructions of the Council, he filled up the holes and then placed waste material in the low-lying areas on the Property and adjacent to the riverbank. The levy bank along the Hawkesbury River alongside the Property was built using this material. Mr Carroll stated that the Council "had about 1-5 trucks on a periodic basis to [the property] to dump waste material over 45 years".

[16]

Purposes of sentencing

Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) states: Part 1 Preliminary … 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of a defendant: Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J) and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 472-473 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-491 (Deane J). The sentence should not exceed what is justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen (No 2) at 472, 485-486, 490-491, 496 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 (Hoare) at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

[17]

Objective circumstances

A number of matters may be considered in determining the objective circumstances of an offence.

[18]

Nature of offences

A fundamental consideration for environmental offences is the extent to which the defendant's conduct offends against the legislative objectives expressed in the offence: R v Peel [1971] 1 NSWLR 247 at 262; Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [89]; Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 at [52]; and Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 (Rae) at [15]. The objects of the POEO Act are extracted in [7] above. The nature of the offences is contrary to a number of objects of the POEO Act, particularly (a), (d) and (g).

[19]

Maximum penalty

The maximum penalty for any offence is relevant to determining the objective gravity of the offence. The maximum penalty reflects the public expression by Parliament of the seriousness of the offence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. It also provides a sentencing yardstick for the case before the court. As the High Court noted in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31]: It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
At the time of the offences (from on or about 1 February 2015 to on or about 10 May 2016), the maximum penalty for an individual for each offence was $250,000. I note for completion only that since January 2019 the maximum penalty for each offence has increased as set out in [8] above.

[20]

State of mind

Offences against each of ss 142A(1), 143(1) and 144(1) of the POEO Act are strict liability offences. In relation to the offences against ss 143(1) and 144(1) of the POEO Act, the principle from The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (De Simoni) at 389 prevents the Defendant's state of mind from being taken into consideration as to do so would expose him 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.
An offence under s 142A(1) of the POEO Act, if committed intentionally, recklessly or negligently, will serve to increase the objective seriousness of the offence: Rae at [42]. Intention "connotes a decision to bring about a situation so far as it is possible to do so - to bring about an act of a particular kind or a particular result": He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 at 569 per Brennan J. Intention can be deduced from words and actions: McClelland v Environment Protection Authority [2021] NSWLEC 25 at [77].
In Environment Protection Authority v Wollondilly Abattoirs Pty Ltd [2019] NSWCCA 312 at [42] I considered the meaning of the term "reckless", citing Pepper J in Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 at [98] as the state of mind of an offender who, while failing to perform an act (or performing an act as in this case), is aware of the risk that a particular consequence is likely to result from that act or omission (citing Pemble v R (1971) 124 CLR 107; [1971] HCA 20; La Fontaine v The Queen (1976) 136 CLR 62; [1976] HCA 52; and R v Crabbe (1985) 156 CLR 464; [1985] HCA 22).
In Plath of Department of Environment and Climate Change v Fish; Plath of Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144 I held at [81]: in the criminal context, negligence means more than a breach of a duty of care. To amount to criminal negligence, the degree of carelessness must be such as to show such a disregard for the objects of the statute as to amount to a crime against the state (R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8; see also Andrews v DPP [1937] AC 576 per Lord Atkin at 583; applied in Cittadini v The Queen [2009] NSWCCA 302 at [38]-[40]). For there to be negligence, there must have been an indifference to an obvious risk (R v Taktak (1988) 14 NSWLR 226 at 247, applied in Cittadini).

[21]

Reasons for offences

The Defendant submitted that the reasons given by Mr Abbas for committing the offences should be accepted. Paragraph 9 of his affidavit states that he wanted to generally level the Property and wanted to fix it up for his sister after he realised it was covered with waste (see also Mr Abbas' oral evidence in [25] above). He believed he was bringing clean fill to the Property and that the material did not need to be disposed of at a licensed premises. Wanting to level the Property is consistent with the former owner's behaviour, as can be seen in pars 13-22 of the SOAF in [10] above, and the documents from Mr Carroll former owner and Mr Thomson neighbour summarised above in [35]-[38]. The source of the fill placed on the Property over many years was the Council, a curious arrangement to say the least. The Defendant's submissions are established by the evidence and not undermined by any of Mr Abbas' responses in cross-examination. I find below in [85]-[89] that the Prosecutor has not established that the offences were committed for financial gain.
Returning to state of mind, taking into account the reasons for the offences I have accepted immediately above, the Defendant was told by a council officer in July 2015 that filling in areas likely to flood should not be undertaken without development consent so that he was on notice for a substantial part of the charge period that he should not be doing what he was doing in Areas A and B of the property. He also continued according to par 17 of his affidavit after the illegal dump squad came to the Property in August 2015 (the Prosecutor stated this visit occurred in December 2015 in [29] above) because no-one contacted him. The Defendant referred in his affidavit at par 15 to noticing that some waste included demolition material which he caused to be buried. He arranged for planting of native grasses in the fill. His actions were intentional in that the Defendant intended for material to be brought to the Property during the charge period. The resulting land degradation and other environmental harm were not intentional. I accept that the Defendant's intention was the opposite in seeking to improve his sister's property, albeit very poorly executed from an environmental perspective. While the Defendant was careless in not paying greater attention to the content and volume of fill delivered, on balance the Prosecutor has not proved beyond reasonable doubt that the land degradation offence was committed recklessly or negligently to the necessary criminal standard.

[22]

Section 241 POEO Act matters

A number of factors relevant to sentencing are identified in s 241(1) of the POEO Act.

[23]

Section 241(1)(a) extent of environmental harm caused or likely to be caused

According to the SOAF, council officer inspections of the Property occurred in September and December 2015 and large amounts of fill material in Areas A and B were identified. Samples later found to contain asbestos were taken (SOAF pars 38, 39). The inspections of the Property by EPA officers in May and June 2016 and February and July 2017 and the sampling undertaken at these sites is identified in the SOAF at pars 40-57. A large area of fill and wood waste (Area A) was identified in the northern part of the Property. In an area around the jetty (Area B) trees had been pushed over and a turning circle formed out of demolition waste was identified. Aggregate material had been placed between the low and high waterline. Area B resembled a football field in size. Compacted waste material was applied down to the Hawkesbury River, including the mangroves. Water in this area was brown in colour with an oily slick on the surface. About 45 test pits were dug and samples taken on 11 July 2017. Many pits were odorous, having both sulphurous and hydrocarbon smells, and filled with black oily and smelly water flowing from the layer of waste placed on top of the soil. A further 17 pits were dug on 12 July 2017 with similar odours inter alia encountered. A total of 58 representative positive asbestos findings resulted from all the samples taken at the Property between 2 December 2015 and 12 July 2017. The environmental assessment and waste classification of KMH Environmental is summarised in the SOAF at par 58. The assessment of the impact by Dr Martens is summarised in the SOAF at par 59.
The Prosecutor submitted, based on reports of Dr Martens dated 18 October 2019 and Mr Holmes dated 17 October 2019 (included in Ex B), that deposition and compaction of imported waste materials at the Property has caused actual environmental harm in the following ways: 1. The waste has been placed to depths of up to 1.2 m in areas mapped as "Coastal Wetlands". This has either completely removed the natural coastal wetland or significantly modified coastal wetland soils, hydrological processes and ecology. (Expert report of Dr Martens dated 18 October 2019 at par 46). The Prosecutor stated in oral submissions that whilst the waste material was put on areas marked as "Coastal Wetlands and Coastal Wetlands proximity areas" in Dr Martens' report, this of itself does not demonstrate what harm has occurred. What informs the Court of the harm is Mr Holmes' description of the vegetation and soil profiles of the Property that the waste material was deposited on. 2. In areas where filling activities have taken place pre-existing vegetation has been modified or removed. The fill has been placed in direct contact with the existing environment, with no barrier or membrane separating the fill from either underlying soils, groundwater or geology. This has caused chemical and physical processes within the fill to be mixed within the natural soils (expert report of Dr Martens dated 18 October 2019 at par 46; see also expert report of Mr Holmes dated 17 October 2019 at 10.2.1(4)). 3. Groundwater flows within the fill will have been substantially changed as groundwater can now preferentially flow through the fill material. This has resulted in actual impacts to the viability of marsh dwelling flora and fauna because of the changes in surface and subsurface flow regimes (expert report of Mr Holmes dated 17 October 2019 at 10.2.3(2); see also expert report of Dr Martens dated 18 October 2019 at par 46).

[24]

Section 241(1)(b) practical measures that may be taken to prevent or mitigate harm

The Prosecutor submitted that practical measures could have been taken to prevent, control or mitigate the harm so as to ensure that: 1. the waste was transported to a facility that was licensed to accept the relevant class of waste; and 2. those who transported the waste, both to and around the various locations on the Property, wore suitable protective equipment.
As the Defendant identified, the section does not say "may have been taken" contrary to the Prosecutor's submissions which does give rise to a different emphasis.
The Defendant submitted that the focus on this section was on measures that "may be taken" requiring the focus at sentence on practical steps that may be taken to prevent harm. While such a limited focus of the section may be accepted, the extent to which measures could have been taken to avoid the offences is also relevant to consider under general sentencing requirements, as the Defendant also acknowledged. Clearly there were such steps. Looking to the future, the Defendant proposes the implementation of a RAP to address the harm likely to be caused and has provided a draft RAP to the Court, prepared by EI Australia (Ex 1). To ensure the remediation of the Property, the Prosecutor has also issued a draft clean-up notice to the Defendant under s 91(1) of the POEO Act (Ex D).

[25]

Section 241(1)(c) foreseeability of harm by the Defendant

As the Prosecutor submitted, it was foreseeable that depositing, spreading and compacting approximately 21,990 tonnes of processed building and demolition waste at the Property by the banks of the Hawkesbury River had the potential to cause environmental harm: Environment Protection Authority v Laison [2015] NSWLEC 89 (Laison) at [26] per Pain J; Foxman (No 2) at [79] per Sheahan J.

[26]

Section 241(1)(d) control over causes of offence

The Defendant had primary control over the causes giving rise to the offences.

[27]

Section 241(1)(e) complying with orders Not relevant.

[28]

Section 241(1)(f) presence of asbestos in the environment

Five asbestos results were confirmed in respect of soil samples from Areas A and B on 11 and 12 July 2017, with a further six positive asbestos results coming from bonded asbestos sheeting found on the Property on these days (see SOAF at par 56). In total, 58 representative positive asbestos findings resulted from all samples taken at the Property in the period between 2 December 2015 to 12 July 2017 (see SOAF at par 57).
Subsection (f) was introduced into s 241(1) on 20 December 2019. In Environment Protection Authority v Mouawad (No 2) [2020] NSWLEC 166 (EPA v Mouawad (No 2)) at [28] I held that to the extent s 241(1)(f) may be construed as requiring that greater weight be given to the presence of asbestos in the environment as an aggravating factor than was required prior to its introduction, it should not be applied retrospectively to offences which occurred prior to its commencement on 20 December 2019. I held that the presence of asbestos waste was relevant to be considered in any event in relation to harm to the environment under s 241(1)(a).
The Prosecutor submitted my construction in EPA v Mouawad (No 2) at [28] is incorrect. It submitted that when a statute changes the law, the effect of the change upon existing rights, liabilities, claims or proceedings is determined by the meaning of the statute: Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485; [2002] HCA 42 at [6] per Gleeson CJ. There is no contrary intention to suggest that s 241(1)(f), which specifies the matters a court may take into account when sentencing a defendant for an environmental offence, does not operate to commence other than prospectively on the day on which it was published: s 39(1)(b) of the Interpretation Act; ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 (ADCO) at [44]-[47] per Gageler J. Neither the POEO Act nor the POEO Amendment Act, which introduced s 241(1)(f) into the POEO Act, state that the provision only has effect in respect of offences or prosecutions commenced after its introduction. Section 241(1)(f) does not otherwise operate to alter "rights or liabilities which have already come into existence by operation of prior law on past events", so it has no retrospective effect in this sense: ADCO at [48]. The increased presence of asbestos in the local environment around the Hawkesbury River near the Property (see in [57] above) is accordingly a matter that the Court should take into account.

[29]

No matters of aggravation proven beyond reasonable doubt

Three matters of aggravation are relied on by the Prosecutor under the CSP Act. The offences were committed for financial gain (s 21A(2)(o)), caused substantial harm (s 21A(2)(g)) and were a planned criminal activity (s 21A(2)(n)) according to the Prosecutor.

[30]

Environmental harm already considered

Section 241(1)(a) of the POEO Act which I have already considered above requires consideration of environmental harm caused. There is no need to consider this topic again and to do so would be double punishment.

[31]

Financial gain not established

The Prosecutor submitted that the Defendant sought to avoid waste levies through the commission of these offences. There is no express evidence to support such a finding and it must therefore be inferred. Financial gain pursuant to s 21A(2)(o) of the CSP Act must be established beyond reasonable doubt, speculation is not sufficient.
The Prosecutor submitted that matters identified in the SOAF gave rise to such an inference, relying particularly on pars 112-113 referring to waste brought from Balmain. Mr Abbas' oral evidence was also said to support such a finding. Firstly, Mr Abbas or his company Bells Civil Group Pty Ltd (BCG) had commercial arrangements in place with all the source sites identified in the SOAF at par 35. Secondly, Mr Abbas knew the material had to be disposed of lawfully. Thirdly, he knew that in depositing material at the Property no levies would be paid. Paragraph 13 of his affidavit, that Mr Abbas did not receive payment for fill brought to the Property, is not true.
The Defendant submitted that the Prosecutor had not proven financial gain beyond reasonable doubt. Firstly, the proposition has no foundation in the agreed facts. Secondly, it is contrary to the evidence of the Defendant in his affidavit at pars 9-14 that he did not pay for fill to be taken to the Property and did not receive payment for fill taken to the Property. The Prosecutor's contention rises no higher than prejudicial speculation and it lacks any internal logic because the only category of person who can sensibly be motivated to avoid payment of the waste levy is the generator of the waste who needs to dispose of it, not the person on whose land it is deposited.
Following Mr Abbas' oral evidence, the payment arrangements appeared to be that he paid the transporter and the construction company paid him (see in [30] above). It may be that the precise wording of par 13 of Mr Abbas' affidavit is not correct but the overall circumstances do not establish the inference that he profited financially in some way from the arrangements for waste transport. There is no basis for concluding to the necessary standard that he was seeking to avoid waste levies, not least because there is no evidence that he was liable for them and the usual arrangements made for payment as referred to by the Defendant would not give rise to any such inference.

[32]

Organised criminal activity not established

The Prosecutor alleged the circumstances of the offences gave rise to a finding that these were part of a planned or organised criminal activity as referred to in s 21A(2)(n) of the CSP Act.
I agree with the Defendant that no basis to conclude that s 21A(2)(n) applies has been established by the Prosecutor. The Defendant organised for about 700 loads of material to be taken to the Property. There is no evidence that that was undertaken as part of a planned or organised criminal activity, meaning activity having criminal intent.
No matters of aggravation are established by the Prosecutor beyond reasonable doubt.
The Prosecutor submitted that while the Court cannot consider the Defendant's state of mind as a factor in aggravation for s 143(1) and s 144 offences, it can nevertheless take the alleged premeditated and deliberate nature of his offending into account in assessing the objective seriousness of all three offences: Environment Protection Authority v Hughes [2019] NSWLEC 108 (Hughes) at [87]; Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [158] per Pepper J. The Prosecutor submitted the Court would find that the Defendant engaged in an intentional and planned course of conduct to transport and deposit waste at a place he knew he did not have lawful authority to use in that fashion (see in particular SOAF pars 23-36, 84-91, 103-107). The Defendant's commission of the ss 143(1) and 144(1) offences in that way serves to increase the objective seriousness of their commission. So too does the premeditated and planned nature of the contraventions: Hughes at [88]. The circumstances in Hughes are not directly applicable to the facts here and care must be taken not to take into account matters not otherwise permitted given the De Simoni principle, as already observed above in [45].

[33]

Finding on objective seriousness

Turning to my consideration, a very large amount of fill of about 21,990 tonnes consisting of a wide range of waste including building and demolition waste which contained asbestos and general rubbish was spread in two areas of the Property, one immediately adjoining the Hawkesbury River, between February 2015 and May 2016. Based on the SOAF much of the material was not VENM contrary to what the Defendant said he wanted to have brought to the Property.
I have accepted the Defendant's explanation for why he caused this to occur at his sister's property in terms of levelling the Property and covering waste placed by the Council at the request of the previous owner Mr Carroll. He failed to heed, however, the advice of Council Officer Pemberton in July 2015 that development consent was required before fill could be placed in flood-prone areas. Relying on the history of depositing of fill on the Property, which was on a much lesser scale, does not completely exculpate the Defendant's behaviour. I have considered above the environmental harm to the extent I can do so in relation to actual and potential water pollution, land degradation and harm to vegetation.
The Defendant accepts that he had control over the causes of the offences, any harm was foreseeable and that steps could have been taken to avoid that harm, noting above in [69]-[70] that that is not the precise wording of s 241(1)(b). In relation to practical steps that may be taken now, the Defendant submits he is willing to undertake remediation of the Property. I do not consider that is a matter relevant to determining objective seriousness. It may be a matter relevant to mitigation as I discuss below.
I find that in light of all the considerations outlined above the three offences considered collectively are in the low-to-mid range of the medium range of objective seriousness.

[34]

Subjective circumstances

The subjective circumstances that can be taken into account in sentencing include those in s 21A(3) of the CSP Act where relevant.

[35]

Pleas of guilty (ss 21A(3)(k), 22)

The Defendant entered pleas of guilty on 23 October 2020, some 26 months after the proceedings were commenced and after requiring the Prosecutor to give notice of its case under ss 247E and 247J of the Criminal Procedure Act 1986 (NSW), which included over 120 affidavits and eight expert reports. The late pleas erode the utilitarian value of those pleas. The pleas did avoid a contested hearing on liability that would have taken several weeks of hearing time. A discount in the order of 15% is appropriate.

[36]

Good character (s 21A(3)(f))

The evidence of good character relied on by the Defendant is par 27 of his affidavit. This evidence to support good character is somewhat limited so that it is difficult to give this matter much weight.

[37]

Likelihood of re-offending (s 21A(3)(g))

The Defendant submitted that there has been no re-offending since the charge period ended some five years ago. The Court should accept that as his intention in obtaining fill material was as he stated, he did not consider it had to go to a licensed premises and that he has good prospects of rehabilitation. I accept these submissions in light of my findings above.

[38]

Remorse (s 21A(3)(i))

Under s 21A(3)(i) remorse can be considered in mitigation where an offender provides evidence that they have accepted responsibility for their actions. The Defendant attests to his remorse and accepts responsibility in pars 20 and 21 of his affidavit, set out in [23] above. Additionally, an offender must acknowledge the damage caused by his actions, acknowledged in pars 18 and 19 of his affidavit, or make reparation for that damage. Actions which confirm that a defendant is remorseful are important. As discussed below, the Defendant has proposed the implementation of a remediation plan. While this will be required by the clean-up notice to be issued by the Prosecutor under s 91(1) of the POEO Act, as originally envisaged by the Defendant an order under s 245 of the POEO Act was to be sought and I accept that as evidence supporting remorse with some caveats expressed below.

[39]

Remediation plan proposed

The Defendant acknowledges that the Property should be remediated by him as a consequence of the commission of the offences. He is in receipt of a draft clean-up notice from the Prosecutor under s 91(1) of the POEO Act requiring him to remediate the Property in accordance with the "cap and contain" remediation strategy described in the draft RAP dated 25 March 2021 (Ex 1). The RAP is still to be finalised. The remediation costs of $661,000 can be a relevant consideration in sentencing with some qualification. Given that the remediation required as identified in the draft RAP is extensive and costly, the amount estimated to carry out the plan is about $661,000, no assumption can be made that this will definitely occur whatever the Defendant's present intentions may be. In addition, these offences took place from February 2015 until May 2016. Charges were laid in August 2018 and guilty pleas were entered in October 2020. There is no evidence before the Court of any remedial action being taken during this period despite what are clear environmental risks resulting from the fill location next to the Hawkesbury River to support the Defendant's expressed intention. With these caveats I will consider the proposal for a RAP in the Defendant's favour.

[40]

Deterrence, general and specific

General deterrence is an important aspect of sentencing in environmental crime. As held by Preston CJ in Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 at [139]-[140]: The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93] per Lloyd J.
Specific or personal deterrence is applicable where an offender has a prior criminal record which manifests a continuing attitude of disobedience, such that more weight should be given to retribution, personal deterrence or protection of the community: Veen (No 2) at 477; R v Abboud [2005] NSWCCA 251 at [33]; R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [54].
Specific deterrence has particular relevance where an offender continues to operate in the same area of operation in which the offence occurred: Environment Protection Authority v Ardent Leisure Ltd (ACN 104 529 106) [2018] NSWLEC 36 at [135] per Robson J citing Preston CJ in Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 at [48].
Given the unusual circumstances I have accepted for why the Defendant acted as he did on his sister's property, the need for specific deterrence is not warranted. The depositing of fill was not carried out as part of his usual business.

[41]

Even-handedness/parity

The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty: R v Visconti [1982] 2 NSWLR 104 at 107 (Street CJ, Lee and Maxwell JJ agreeing). This principle must always be applied subject to the particular circumstances of the case before the Court: Hoare at 354. The principle of even-handedness in sentencing so that like offences receive like sentences is recognised, but each case must be determined on its own facts: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [42]. A history of sentencing in other cases does not limit my sentencing discretion.
The Prosecutor provided the Court with some examples of comparable sentences imposed in relation to ss 143(1), 144(1) and 142A(1). It is useful to consider the following five cases particularly in relation to s 143(1) (unlawful transportation) as this encompasses the culpability of use of land offence under s 144(1) and the land pollution offence under s 142A(1).
In Hughes, the defendant was convicted and fined $45,000 for two offences in contravention of ss 143(1) and 144(1) of the POEO Act. The waste relevant to both charges was no less than 4,950 tonnes of mixed construction and demolition waste. Before awarding a 25% discount for pleading guilty at the easiest available opportunity and applying the totality principle, fines of $40,000 for the s 143(1) offence and $60,000 for the s 144(1) offence were ordered. The defendant had committed the offences for financial gain and demonstrated no remorse.
In Foxman (No 2), after a trial on liability, the individual defendant was convicted and fined $75,000 in respect of an offence under s 143(1) for transportation of 15,900 tonnes of demolition waste and asbestos waste. One of the motivations for the offence was financial gain. The individual defendant provided an expression of remorse after the trial on liability. A corporate defendant (then in liquidation), controlled by the defendant, was also convicted of the same offence and was fined $15,000. The individual defendant was ordered to pay $100,000 for his offence against s 144(1) and the corporate defendant was ordered to pay $100,000 in respect of the same offence and conduct.
In Laison, the defendant was convicted and fined $63,000 for contravention of s 143(1) of the POEO Act. The offence involved the unlawful transportation of 3,649.19 tonnes of waste material containing asbestos. The offence was at the high end of the medium range of objective seriousness given that it was carried out deliberately for financial benefit by the defendant with knowledge that the waste contained asbestos: at [35]. The only mitigating factor relied on was a plea of guilty entered on the first day of the hearing. I stated that the appropriate penalty was between $70,000 to $140,000. The amount of $70,000 was selected to give due weight to parity with a co-defendant who was convicted and fined $26,000 by Craig J after application of discounts, with a further reduction in sentence on the basis of duress: Environment Protection Authority v Ashmore [2014] NSWLEC 136. After the application of a 10% discount for the plea of guilty, the defendant in Laison was fined $63,000.

[42]

Denunciation

A principle of sentencing is denunciation of an offence. These offences are reasonably serious and resulted in environmental harm.

[43]

Totality

The sentencing principle of totality is relevant where more than one similar offence is committed to ensure that the sum of any fines imposed is not disproportionate to the total criminality of a defendant: Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [98] citing Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 62; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; and Pearce v The Queen (1988) 194 CLR 610; [1988] HCA 57.
The totality principle should be applied to all three offences as they are temporally and conceptually connected. The overall criminality arising from the s 143(1) transport offence encompasses the use of land offence under s 144(1) and the land pollution offence under s 142A(1).

[44]

Ability to pay a fine

Under s 6 of the Fines Act 1996 (NSW) the means of a defendant to pay a fine can be considered where information relevant to that matter is available. Mr Abbas has provided some financial information to the effect that he has some means but is not wealthy. A submission relying on s 6 was not made explicitly.

[45]

Publication Order

The Prosecutor seeks a publication order as provided for under s 250(1)(a) and (b) of the POEO Act. Such an order has the purpose of publicising the detection, prosecution and punishment of offenders: EPA v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [76]. The Defendant opposes the making of such an order because of the potential for a substantial impact on his business interests given that he continues to operate in the waste disposal business, as identified in his oral evidence in [24] above. This may impact on his ability to comply with the remediation orders. The Defendant accepts that he should undertake a letterbox drop in the area around the Property. The making of such an order is discretionary: Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 at [128] per Simpson J. The circumstances of this case provide a good example of why a publication order is warranted. I consider that the Defendant should have the opportunity to consider the text of such a publication. The draft provided by the Prosecutor reflects its case on sentence, not all of which I have accepted. The location of any publication should also be discussed by the parties. A date to finalise the content of and arrangements for the publication order will be made after discussion with the parties.

[46]

Legal costs

The Prosecutor seeks an order that the Defendant pay its legal costs. The Court generally makes such orders pursuant to s 257B of the Criminal Procedure Act. The amount of costs has been estimated to be very large at around $800,000 reflecting that about 120 affidavits were prepared and substantial preparation was undertaken before the pleas of guilty were entered. The large amount of legal costs payable pursuant to an order can be considered in determining the amount of any penalty: Environment Protection Authority v Phillip Gregory Barnes [2006] NSWCCA 246 at [88].

[47]

Moiety

The Prosecutor seeks a moiety under s 122 of the Fines Act for half of any fine ordered against the Defendant to be paid to the Prosecutor The conditions in s 122(1) are satisfied. Subsection (2) provides that such an order might be made. An order for a moiety has been made on several occasions, including where there is a specific provision for recovery of investigation costs and legal costs: Secretary, Department of Planning and Environment v AGL Energy Ltd [2017] NSWLEC 2. I consider it is appropriate to make a moiety order.

[48]

Investigation costs

The Prosecutor seeks investigation costs pursuant to s 248(1) of the POEO Act in the amount of $80,157.24, being costs and expenses incurred by the Prosecutor during the investigation of the offences giving rise to the three charges.

[49]

Conclusion on penalty

When sentencing, the Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a "value judgment as to what is the appropriate sentence given all the factors of the case": Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26] unanimously following Markarian v The Queen at [51] per McHugh J.

[50]

Orders

The Court orders: 1. In matter No 18/238708 the Defendant Sam Abbas also known as Osama Abbas is found guilty as charged that from on or about 1 February 2015 to on or about 10 May 2016 inclusive, at or near Spencer in the State of New South Wales, being Lot 1 DP 779387, he committed an offence against s 143(1) of the Protection of the Environment Operations Act 1997, in that he caused waste to be transported to a place that could not lawfully be used as a waste facility for that waste. 2. The Defendant Sam Abbas also known as Osama Abbas is convicted of matter No 18/238708 and is fined $60,000. 3. In matter No 18/238709 the Defendant Sam Abbas also known as Osama Abbas is found guilty as charged that from on or about 1 February 2015 to on or about 10 May 2016 inclusive, at or near 5365 Wisemans Ferry Road Spencer in the State of New South Wales, being Lot 1 DP 779387, he committed an offence against s 144(1) of the Protection of the Environment Operations Act 1997, in that he was the occupier of a place and caused the place to be used as a waste facility without lawful authority. 4. The Defendant Sam Abbas also known as Osama Abbas is convicted of matter No 18/238709 and is fined $30,000. 5. In matter No 18/238707 the Defendant Sam Abbas also known as Osama Abbas is found guilty as charged that from on or about 1 February 2015 to on or about 10 May 2016 inclusive, at or near 5365 Wisemans Ferry Road, Spencer in the State of New South Wales, being Lot 1 DP 779387, he committed an offence against s 142A(1) of the Protection of the Environment Operations Act 1997, in that he polluted land. 6. The Defendant Sam Abbas also known as Osama Abbas is convicted of matter No 18/238707 and is fined $10,000. 7. Pursuant to s 122 of the Fines Act 1996, a moiety of 50 percent of the additional monetary penalty of $100,000 is to be paid to the Prosecutor. 8. Pursuant to s 257B of the Criminal Procedure Act 1986, the Defendant Sam Abbas also known as Osama Abbas is to pay the Prosecutor's costs in an amount as agreed or as may be determined under s 257G of the Criminal Procedure Act 1986. 9. The Defendant Sam Abbas also known as Osama Abbas is to pay the Prosecutor's investigation costs of $80,157.24 pursuant to s 248(1) of the Protection of the Environment Operations Act 1997. 10. The parties are to advise the Court by 29 June 2021 as to how they wish to finalise a publication order.

[51]

Addendum made on 30 June 2021

Further to [126] of my judgment of 2 June 2021, I make orders as follows: 1. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 197 (the Act), an order that the Defendant: 1. At his own expense, within 28 days of the date of the order, must cause a notice, in the form of Annexure A to these orders, to be placed within the first 10 pages of the following publications at a minimum size of 15 cm x 15 cm: * The Daily Telegraph; and * Inside Waste Magazine. 1. Within 7 days of the publications referred to in order 1(a), provide to the Prosecutor a complete copy of the pages of the publications in which the notice appears. 1. Pursuant to s 250(1)(b) of the Act, an order that the Defendant, at his own expense, within 28 days of the date of this order, must cause a notice, in the form of Annexure A to these orders, at a minimum A4 size, be placed in the mailboxes of all residences located on Wisemans Ferry Road between the intersection of Oyster Shell Road and Wisemans Ferry Road and 5649 Wisemans Ferry Road Gunderman NSW 2775. ANNEXURE A Illegal dumping of waste at Spencer NSW On 2 June 2021 Sam Abbas was convicted in the Land and Environment Court of NSW of three offences against the Protection of the Environment Operations Act 1997: A. Land pollution contrary to s 142A; B. Causing waste to be transported to a place that could not lawfully be used as a waste facility for that waste contrary to s 143(1); and C. Using a place as a waste facility without lawful authority contrary to s 144(1). The offences were committed by Mr Abbas between 1 February 2015 and 10 May 2016 when he caused 733 truckloads of waste, amounting to 21,990 tonnes, to be applied to land at 5365 Wisemans Ferry Road, Spencer NSW including in areas adjacent to the Hawkesbury River. The waste comprised processed and unprocessed building and demolition material, clay, shale, dirt, woodchip, topsoil, mixed sand, mulch, fibro cement, car parts, scrap metal, glass, soil, bricks, concrete, timber, plastic, tile, rocks, rubble, bitumen, terracotta and asbestos. The property had no lawful authority to be used as a waste facility. Prior to February 2015, waste material had been tipped onto the property by others including road maintenance material, dirt, rocks, sand, grass, food wrappers, bottles and small amounts of asbestos. In 1997, a large amount of material was placed adjacent to the river to fill the jetty area. Whilst the Court was not satisfied that actual harm caused in relation to water pollution was significant, harm to vegetation was significant. The deposition of the waste was likely to cause environmental harm due to the potential for water pollution and land degradation. The Court found that Mr Abbas did not bring the material to the property for financial gain nor was it a part of an organised criminal activity. The Court was satisfied that Mr Abbas's intention of committing the offences was to improve the property and to cover the waste placed on the property by others albeit this was very poorly executed from an environmental perspective. Mr Abbas was on notice that filling activities required development consent as the property was in a flood zone, and that the property did not benefit from such consent. The EPA in September 2018 commenced a prosecution of Mr Abbas for the offences. Mr Abbas pleaded guilty to the offences on 23 October 2020. At the sentence hearing Mr Abbas expressed remorse for his actions, which the Court accepted subject to caveats. Mr Abbas acknowledged that he should remediate the property and has taken steps to prepare a Remediation Action Plan for approval by the EPA. Once the Remediation Action Plan is approved, Mr Abbas has stated that he will remediate the property. On 2 June 2021, the Court made the following orders: 1. Sam Abbas is convicted of causing waste to be transported to a place that could not lawfully be used as a waste facility and fined $60,000.00. 2. Sam Abbas is convicted of causing the place to be used as a waste facility without lawful authority and fined $30,000.00. 3. Sam Abbas is convicted of polluting land and fined $10,000.00 4. Sam Abbas is to pay EPA's costs agreed or assessed. 5. Sam Abbas is to pay EPA's investigation costs of $80,157.20. This notice has been published by order of the Land & Environment Court.

[52]

Amendments 30 June 2021 - Addendum to judgment 30/6/21 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: 30 June 2021

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Cases Cited (86)

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