Environment Protection Authority v Terrace Earthmoving Pty Ltd

Environment Protection Authority v Terrace Earthmoving Pty Ltd - [2016] NSWLEC 158 - NSWLEC 2016 case summary — Zoe

[4]

Legislative framework

The reason that two charges were laid separately against the Company and Mr Page is that the relevant offence under the PEO Act was amended on 1 May 2006 pursuant to cll 67 and 68 of Sch 1 of the Protection of the Environment Operations Amendment Act 2005 (NSW) ('PEO Amendment Act'). Both the Company and Mr Page have each been found guilty under the provision as it existed between late November 2005 and 30 April 2006, and the provision as it existed between 1 May 2006 and 1 March 2007.
For all material points until 30 April 2006, s 143(1) of the PEO Act provided as follows: 143 Unlawful transporting of waste (1) Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste: (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: • in the case of a corporation - $250,000, or • in the case of an individual - $120,000.
Between 1 May 2006 to 1 March 2007, s 143(1) of the PEO Act was amended to state: 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.
For present purposes, the only meaningful amendment to the legislation was the fourfold increase of penalty for a corporation from $250,000 to $1,000,000 and the slightly greater than twofold increase of penalty for an individual from $120,000 to $250,000.
Mr Page, who was the sole director at the relevant times, has also been found to have contravened s 143(1) of the PEO Act through the application of s 169 of the PEO Act. Section 169 of the PEO Act was also amended on 1 May 2006 pursuant to cll 84, 85 and 86 of Sch 1 of the PEO Amendment Act.
For all material points until 30 April 2006, s 169 of the PEO Act stated as follows: 169 Offences by corporations (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that: (a) the corporation contravened the provision without the knowledge actual, imputed or constructive of the person, or (b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation. (2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision. (3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations. (4) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular intention, is evidence that the corporation had that intention.
Between 1 May 2006 to 1 March 2007, s 169 of the PEO Act was amended to provide: 169 Offences by corporations (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that: (a) (Repealed) (b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation. (2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision. (3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations. (4) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind. (5) In this section, the state of mind of a person includes: (a) the knowledge, intention, opinion, belief or purpose of the person, and (b) the person's reasons for the intention, opinion, belief or purpose.
The repeal of subs 169(1)(a), the replacement of the word "intention" with the phrase "state of mind" in subs 169(4) and the introduction of subs 169(5) of the PEO Act have no material effect on the sentencing procedure for present purposes, as all relate solely to whether a person should be convicted.
Further, the definition of "waste" and "waste facility" were amended on 1 May 2006 pursuant to cll 157 and 158 of the PEO Amendment Act. However, as found by Basten ACJ in Environment Protection Authority v Terrace Earthmoving Pty Ltd (2013) 84 NSWLR 679; [2013] NSWCCA 180 at [23], the definition of "waste" in the Dictionary did not apply to s 143(1) of the PEO Act until after 1 May 2006. Rather, the applicable definition prior to this date was found in s 143(4), and provided as follows: 143 Unlawful transporting of waste (4) Definitions In this section: … waste includes any unwanted or surplus substance (whether solid, liquid or gaseous). A substance is not precluded from being waste merely because it may be reprocessed, re-used or recycled.
For all material points prior to 30 April 2006, the Dictionary of the PEO Act also defined "waste facility" as: Dictionary In this Act: … waste facility means any premises used for the storage, treatment, reprocessing, sorting or disposal of waste (except as provided by the regulations).
The PEO Amendment Act removed the definition of "waste" in s 143(4) of the PEO Act and amended the definition of "waste facility" in the Dictionary. As such, between 1 May 2006 to 1 March 2007, the Dictionary of the PEO Act defined "waste" and "waste facility" as: Dictionary In this Act: waste includes: (a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or (e) any substance prescribed by the regulations to be waste. A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered. waste facility means any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations).
Despite the substantially longer definition of "waste" after 1 May 2006, these amendments have little practical implication on the sentences to be imposed upon the defendants.
Finally, it is noted that the disposal of waste on the subject site is a "scheduled activity" pursuant to s 5(1) of the PEO Act, as it constitutes landfill in an environmentally sensitive area defined in Sch 1 of the PEO Act. The phrase "environmentally sensitive area" is defined in Environmental Guidelines: Assessment, Classification & Management of Liquid & Non-liquid Wastes ('Guidelines'), which was issued by the prosecutor and came into force on 1 July 1999, as including "a landfill site located in or within 40 metres from a permanent or intermittent waterbody". The Guidelines also note that these areas "are considered inappropriate for landfilling".
It is an offence for a person to carry on a scheduled activity, such as using land within 40 metres of a water body as a landfill site, unless that person holds a licence that authorises that activity to be carried out: s 48 of the PEO Act. Whilst neither the Company nor Mr Page have been charged with contravening s 48 of the PEO Act in these proceedings, and the occupiers of the subject site have not been convicted of any offences relating to the dumping of waste on their land, both the prosecutor and the defendants have relied upon these provisions to submit that the harm was caused in what should be considered an "environmentally sensitive area".

[11]

Procedural history

Whilst not often relevant, the procedural history that has led to this sentence is, as submitted by the parties, of significance in the present proceedings.
For present purposes, the procedural history may be summarised as follows: 1. between late November 2005 and 1 March 2007, the Company and Mr Page committed the relevant offences; 2. on 14 March 2007, an authorised officer of the prosecutor became aware of evidence related to the relevant offences; 3. on 18 August 2009, the Company and Mr Page were ordered to appear before the Court on 2 October 2009 to answer charges related to the relevant offences; 4. on 2 August 2010 and 13 August 2010, the trial proceeded before Craig J, and his Honour reserved his decision; 5. on 21 September 2012, Craig J delivered reasons for judgment in Environment Protection Authority v Terrace Earthmoving Pty Ltd [2012] NSWLEC 216 ('Terrace (No 1)'), where he indicated that he proposed to enter verdicts of not guilty in respect of all charges, however at the request of the prosecutor his Honour stood the matter over to allow it to consider whether it wished to state any question of law for determination by the Court of Criminal Appeal pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW); 6. on 10 October 2012, the prosecutor informed the Court of its intention to state a case to the Court of Criminal Appeal; 7. on 16 May 2013, the Court of Criminal Appeal heard argument on the stated case and reserved its decision; 8. on 5 August 2013, the Court of Criminal Appeal delivered its decision on the stated case in Environment Protection Authority v Terrace Earthmoving Pty Ltd (2013) 84 NSWLR 679; [2013] NSWCCA 180 ('Terrace (No 2)'), and ordered that the proceedings be returned to this Court for final orders to be made in accordance with the answers it had given on the questions of law; 9. on 19 November 2013, a further hearing proceeded before Craig J, and his Honour reserved his decision; 10. on 5 May 2016, Craig J handed down judgment in Environment Protection Authority v Terrace Earthmoving Pty Ltd (No 3) (2016) 217 LGERA 222; [2016] NSWLEC 50 ('Terrace (No 3)'); 11. on 16 September 2016, the matter was listed for sentencing on 7 and 8 December 2016; and 12. the sentencing hearing was completed on 7 December 2016.

[12]

Sentencing framework

Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') sets out the purposes for which a sentence may be imposed, and states: 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.
Section 21A of the Sentencing Act outlines the various mitigating and aggravating factors that should be taken into account, and relevantly provides: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
The relevant aggravating factors pursuant to s 21A(2) of the Sentencing Act are as follows: 21A Aggravating, mitigating and other factors in sentencing … (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (d) the offender has a record of previous convictions… … (o) the offence was committed for financial gain…
The relevant mitigating factors pursuant to s 21A(3) of the Sentencing Act relevantly provide: 21A Aggravating, mitigating and other factors in sentencing (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23).
In addition to the above, s 241 of the PEO Act (which has not been amended) provides for further considerations when imposing a penalty for an offence under that Act: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (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.
Further, in Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 ('Rawson'), Preston CJ of LEC observed at [48] the matters that may be taken into account when assessing the objective gravity of an environmental offence: In determining the objective gravity or seriousness of each of the offences in this case, the circumstances to which the Court may have regard include: (a) the nature of the offences; (b) the maximum penalties for the offences; (c) the harm caused to the environment by commission of the offences; (d) the state of mind of the offender in committing the offences; (e) the offender's reasons for committing the offences; (f) the foreseeable risk of harm to the environment by commission of the offences; (g) the practical measures to avoid harm to the environment; and (h) the offender's control over the causes of harm to the environment.
His Honour then continued at [140] to make the following comments regarding subjective circumstances that may be taken into account: Within the limits set by reference to the objective gravity of the offences, the Court may take into account the favourable factors personal to the offender. Factors to be considered are: lack of prior criminality; prior good character; plea of guilty to the offences; contrition and remorse; and assistance to authorities.
Moreover, and as will become clear below, there are two other subjective considerations which the Court should consider in addition to those outlined above. First, it is appropriate that the Court consider the delay that has been experienced by the defendants: R v Todd (1982) 2 NSWLR 517 at 519-520 ('Todd'). Second, it is appropriate that the Court consider the mental health of Mr Page: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] ('De La Rosa').
In addition, in imposing a sentence in Class 5 proceedings (and more generally), it is widely recognised that the appropriate method for sentencing is the 'instinctive synthesis' method, where the Court identifies all the relevant factors and weighs their significance to determine an appropriate sentence: Markarian v the Queen (2005) 228 CLR 357; [2005] HCA 25 at [37]-[39] (Gleeson CJ, Gummow, Hayne and Callinan JJ), [70] (McHugh J) ('Markarian'); Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152 at [156] (Preston CJ of LEC); Environment Protection Authority v Morgan Cement International Pty Ltd [2016] NSWLEC 140 at [73] (Pepper J); 73 Union Street Retail Pty Ltd v Council of The City of Sydney [2016] NSWLEC 145 at [50] (Moore J); Environment Protection Authority v Wambo Coal Pty Limited (ACN: 000 668 057) [2016] NSWLEC 125 at [61] (Sheahan J); Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106 at [68] (Pain J); Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 at [13] (Biscoe J); Environment Protection Authority v Ashmore [2014] NSWLEC 136 at [117] (Craig J); Chief Executive of the Office of Environment and Heritage v Crown in the Right of New South Wales [2016] NSWLEC 147 at [62] (Robson J).
The instinctive synthesis method was summarised by McHugh J in Markarian at [51] as follows: By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.
Finally, whilst the offender bears the burden of proving facts that are in its favour on the balance of probabilities, the prosecution must establish facts that are adverse to the offender beyond reasonable doubt before the Court is able to take them into account: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]-[28] (Gleeson CJ, Gaudron, Hayne and Callinan JJ) ('Olbrich').

[14]

Extent of harm to the environment

The concept of harm in the context of the environment is broad. As noted by Preston CJ of LEC in Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 at [147] ('Waste Recycling'): Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no [discernible] direct harm to human interest, should also be treated seriously.
The parties agree that the commission of the offences did not cause substantial environmental harm. However, they also agree that the harm was not trivial in nature.
Aside from this statement, there is no evidence presently before the Court that directly addresses the extent of harm to the environment. However, the following points can be made regarding the harm.
First, the offences involved the transport and tipping of a large quantity of waste onto the subject site. This waste, in turn, became part of the land after it was compressed.
Second, the depositing and compacting of the waste was undertaken on both normal rural land, and at least partially in an "environmentally sensitive area" as defined in Pt 1 of Sch 1 of the PEO Act and the Guidelines.
Third, there was evidence before Craig J in Terrace (No 1) that suggested that there were "large areas of water on either side of the road" on the normal rural land, and that "Water appeared on either side of the road up to the level of the road batters" in an area described as "densely vegetated wetland": at [144] and [145]. His Honour further recorded that these road batters "appeared to be constructed of soil material from the excavation made to construct the road": at [145].
Fourth, this is consistent with the description of the Clean Up Notice in the Statement of Agreed Facts (Ex A), which states that the Clean Up Notice "required removal of the waste to the original ground level to enable water to flow unimpeded across the ground surface".
Fifth, there is no evidence before the Court to suggest that the waste used to construct the internal access road was inappropriate or not fit for purpose. Justice Craig found in Terrace (No 1) that it has not been proven beyond reasonable doubt that the Company transported the asbestos, plastic or metal found on or within the internal access road: [202] and [203].
Sixth, there is no evidence that has been brought to the Court's attention regarding any ongoing environmental concerns relating to the offences. This is consistent with the submission of the defendants that the environmental harm was "mitigated significantly by the clean-up".
Seventh, it was submitted by the defendants that there is no suggestion that the Company or Mr Page would have been found guilty of any environmental offence had the material used to construct the internal access road been purchased, rather than sourced from demolition and excavation sites. Whilst the Court should not undertake the hypothetical activity of undertaking such an assessment, to the extent that it is relevant I accept that there has been no suggestion by the prosecutor that other charges would have been laid if they were unable to establish that the material used to construct the road was not "waste" for the purposes of the PEO Act.
Taken together, I find that whilst the harm to the environment caused by the offence was not trivial in nature, it is on the low end of the spectrum, and did not constitute substantial harm pursuant to s 21A(3)(a) of the Sentencing Act.

[18]

Commercial gain

As specified in s 21A(2)(o), it is an aggravating factor if the "offence was committed for financial gain".
The Company was not paid to construct the internal access road. However, the prosecutor submitted that the Company did make a financial gain as it was no longer required to pay for the waste to be disposed of in a licenced waste facility.
The defendants took the position that the material would likely not go to landfill, given its recyclable nature. Relying on the statutory objects contained in s 3 of the Waste Avoidance and Resource Recovery Act 2001 (NSW), and in particular the object to minimise the "final disposal of waste by encouraging… the reuse and recycling of waste", the defendants submitted that it was more appropriate to make the assumption that the waste would be reused at no cost, rather than go to landfill and incur a fee. This, it was submitted, was consistent with the character evidence contained in the affidavits of Mr Padmos, Mr Butters and Mr Schuman, who each describe Mr Page as being "generous". As such, it was submitted that disposing of the waste at the subject site did not provide a financial gain to the defendants through forgone fees that they would have otherwise paid.
There is no evidence before me regarding what would otherwise have occurred to the waste. However, I do note two points. First, Craig J found in Terrace (No 1) that the waste that was deemed inappropriate for use in the internal access road was taken to a waste facility (at [117]). Second, the Statement of Agreed Facts states that the 352 tonnes of waste material that was excavated and removed from the subject site pursuant to the Clean Up Notice was "disposed of at an appropriately licensed waste facility".
Financial gain is an aggravating factor pursuant to s 21A(2)(o) of the Sentencing Act, and as such the burden rests on the prosecutor to prove any facts which go towards any such finding beyond reasonable doubt: Olbrich at [27]-[28] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). Given that there is a plausible explanation as to whether this work was undertaken for financial gain, I find that it has not been proved beyond reasonable doubt that the Company or Mr Page committed the offence for commercial gain.

[23]

Delay

Delay between the dates of the commission of an offence and sentence can be both a relevant and significant matter when determining an appropriate sentence. These principles were stated by Street CJ in Todd, with Nagle CJ at CL agreeing, where his Honour stated at 519: Moreover, where there has been a lengthy postponement, whetherdue to an interstate sentence or otherwise, fairness to the prisoner requiresweight to be given to the progress of his rehabilitation during the term of hisearlier sentence, to the circumstance that he has been left in a state ofuncertain suspense as to what will happen to him when in due course hecomes up for sentence on the subsequent occasion, and to the fact thatsentencing for a stale crime, long after the committing of the offences, callsfor a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often leadto considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter ofsentence; at times this can require what might otherwise be a quite unduedegree of leniency being extended to the prisoner. [emphasis added]
In Todd, Street CJ was considering delays which had been caused as a result of the offender serving sentences for cross border crimes committed at a similar time, and of a similar nature, to those that were the subject of the sentencing proceedings. However, the principles espoused by his Honour are not limited to those circumstances: Giourtalis v R [2013] NSWCCA 216 at [1788] (Bathurst CJ, with Hidden and Button agreeing). In R v Schwabegger (1997) 38 ATR 30; [1998] 4 VR 649, a case heard by the Victorian Court of Appeal and endorsed by Mason P (with Hulme and Hidden JJ agreeing) in R v Gay (2002) 49 ATR 78; [2002] NSWCCA 6 at [17], Vincent AJA stated at 659-660: Further, there is, in my opinion, a serious incongruity between the assertion that an offence is serious and that the courts must, through the sentences they impose, endeavour to limit its incidence, on the one hand, and such a leisurely progression of the criminal justice proceedings which follow its commission that literally years pass before the matter comes before the court, on the other. For a number of reasons, the investigation and prosecution of criminal conduct should be conducted as quickly as is reasonably practicable if the objectives of the system are to be attained. Additionally, a legitimate sense of unfairness can develop when the criminal justice process proceeds in what can be perceived as too leisurely a fashion. [emphasis added]
The principles relating to whether delay can be relied upon as a mitigating factor were recently outlined by Price J (with Button and Fagan JJ agreeing) in Elchiekh v R [2016] NSWCCA 225 at [56]: Delay may be taken into account in favour of an offender: firstly, when it relates to the uncertain suspense in which a person may be left; secondly, when there is demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, because sentencing for a stale crime calls for a measure of understanding and flexibility of approach: [Todd]; R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 at [16]. Where delay is relied upon as a mitigating factor, the onus is upon the offender on the balance of probabilities: Sabra v R [2015] NSWCCA 38 at [47].
It is well established that delays brought about by the conduct of those prosecuting an offence may be a relevant mitigating factor: R v Blanco (1999) 106 A Crim R 303; [1999] NSWCCA 121 at [17] and [26] (Wood CJ at CL, with Bell J and Smart AJ agreeing). However, delay will not ordinarily be a mitigating factor where it has been caused by difficulties in detecting, investigating or preventing the offence if that delay was reasonable in the circumstances: R v Donald [2013] NSWCCA 238 at [45] and [49] (Latham J, with Hidden and Adamson agreeing) ('Donald'); Scook v R (2008) 185 A Crim R 164; [2008] WASCA 114 (Buss JA, with Miller JA agreeing).
There must also be some evidence of hardship, or at least an obvious inference of hardship, before the Court is able to take delay into account: R v Wong (2002) 137 A Crim R 120; [2002] NSWCCA 527 at [11] (Adams J). As noted by Latham J in Donald at [49]: Overwhelmingly, the focus is on the consequences of the delay to the offender, no matter what the explanation for it.
Finally, an offender should not be penalised because they exercised their right to a fair trial, and did not plead guilty to a charge: R v Fahda [1999] NSWCCA 267 at [19] (Simpson J, with Studdert J agreeing).
The delay presently before the Court did not materially result from the conduct of either the prosecutor or the offenders. I accept that a significant part of the delay in the present matter arose as a consequence of the period between the two hearings before this Court and the judgments being handed down.
However, the primary consideration for this factor is not the cause of the delay, but the hardship that the delay has caused: Donald at [49] (Latham J). As noted in the expert psychiatric report of Dr Robinson, Mr Page has suffered from depression for almost two decades, and the "prolonged litigation has exacerbated his condition". Dr Robinson relevantly noted that: 1. "Mr Page was distressed when topics of his legal problems re-emerged"; 2. Mr Page reported that his symptoms would "flare up from time to time, particularly so when the Court matters involving the EPA were raised"; 3. sometimes it "really gets to him", and Mr Page "wakes up feeling "all churned up thinking about it""; and 4. Mr Page regularly awoke during the night between 1:30am and 2:30am, is unable to go back to sleep, and becomes increasingly agitated and is unable to go to work on these days.
Given this evidence, I find on the balance of probabilities that Mr Page has been the subject of substantial hardship as a result of the delays in these proceedings. As such, I find that this subjective factor should play "a dominant role in the determination" of Mr Page's sentence.
The defendants also submitted that Mr Page has suffered "an additional layer of hardship", which arises from the false hope instilled by Craig J's indication in Terrace (No 1) that he and the Company would be found not guilty of the offences.
There is no evidence before me which suggests that this "additional layer" would have caused any hardship which can meaningfully be untangled from the hardship suffered as a result of the delay. As such, I find that to the extent that any such hardship was suffered, it has already been considered and taken into account.

[31]

Prior Criminality

The parties agree that the Company has previously been convicted of one offence contrary to s 143 of the PEO Act.
The parties have been unable to locate any written reasons that accompanied this sentence when Cowdroy J handed it down on 19 July 2004, which appears to have been given ex tempore. Despite this, some details regarding the conviction and sentence can be derived from: 1. the Statement of Agreed facts that were before Cowdroy J and signed by counsel on 19 July 2004; and 2. the ex tempore judgment of Bignold J in Environment Protection Authority v Slade [2004] NSWLEC 773 ('Slade'), in which his Honour sentenced a separate person for an offence arising out of the same set of facts as those which led to the Company's first conviction, and in doing so made a number of references to the relevant judgment of Cowdroy J for the purposes of giving context to the matter before his Honour, and ensuring that the penalty his Honour imposed was proportionate.
With this in mind, the previous offence can be summarised as follows. Between 1 May 2001 and 25 May 2001, the Company transported waste comprising approximately 40 tonnes of building and demolition waste to land on Cabbage Tree Road. This waste included 19 damaged 200 litre chemical drums which still contained residual chemicals. As noted by Bignold J in Slade, Cowdroy J imposed a fine of $30,000 for this transporting and dumping of waste.
Whilst this prior offence was brought under the same provision for similar actions, there are two distinguishing features. First, the environmental harm that resulted from the previous offence, where poisonous chemicals leaked from a number of damaged chemical drums into a waterway, was greater than the environmental harm that resulted from the present offence. Second, the purpose of the prior offence was to dump the waste, rather than recycle and use the waste to construct a road.
As such, I find that it has been proved beyond reasonable doubt that the applicant has a criminal record that includes the commission of a relevant offence. However, I consider that whilst the prior offence should be taken into account, it is only of moderate significance given its distinguishable features.

[32]

Contrition and remorse

Given that Mr Page is the effective mind of the Company, I repeat my finding that the Company also may also not understand the implications of its actions.
This said, and as summarised by Pepper J in Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 at [80], there are four types of action which may demonstrate genuine contrition and remorse: (a) first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence… (b) second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities… (c) third, taking action to address the cause of the offence…and (d) fourth, the personal appearance of corporate executives in court to give personal evidence of the defendant's regret and a plan of action to avoid repetition of the offence... [references excluded]
In the present case, the Company did not voluntarily report the commission of the offence (although it is noted that it did not believe that it had committed an offence), and there has been no evidence of regret on the part of Mr Page.
However, with regard to the first factor, the respondent did comply with the Clean Up Notice between 28 November 2008 and 9 September 2010. Whilst it is not known when the Clean Up Notice was issued, the Company did spend $37,733.41 complying with it, and this should be taken into account. As such, whilst it is clear that the Company did expend a substantial amount of money in rectifying the harm caused by the offence, the evidence before me suggests that this occurred over an extended period of time and does not appear to have been done efficiently.
With regard to the third factor, I note that there has been no suggestion that the Company has been responsible for any further offences since that time. As such, whilst there is no direct evidence before me to suggest that the causes of this offence have been remedied, the fact that there has been no repeat offence allows me to cautiously find that it is likely that the causes of the offence, which were likely the result of Mr Page's misinterpretation of his legal obligations, have since been remedied.
Given the above, I find that the Company has shown at least some contrition and remorse, but note that given the lack of supporting evidence also find that this should be given little weight.

[37]

Deterrence

As outlined by Preston CJ of LEC in Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [9]: Most importantly, the sentence of the Court needs to operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed…
Despite this, an offender's mental health may, in certain circumstances, mean that he or she is an inappropriate vehicle for general deterrence. The applicable principles were outlined by McClellan CJ at CL (as he then was) in De La Rosa: [177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing…They can be summarised in the following manner: … It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed… It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced… It may reduce or eliminate the significance of specific deterrence… … [178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence… [references excluded]
As outlined in Dr Robinson's expert psychiatric report, Mr Page has been diagnosed with Major Depressive Illness, recurrent pursuant to the DSM IV-TR. Whilst it is not submitted that Mr Page's mental health contributed to the commission of the offence in any material way, it is submitted (and I accept) that Mr Page's mental health means that he is both an inappropriate vehicle for general deterrence, and that a large penalty would weight more heavily on him than the average person. Dr Robinson stated in his report that: If a substantial monetary penalty were to be imposed, this might lead to Mr Page losing his business and accordingly his ability to work. Such an outcome would in my opinion be very likely have [sic] a detrimental effect on his underlying depressive condition. … Prognosis: I note that this is guarded. If due to a substantial monetary sentence Mr Page were to be unable to continue to work, it is reasonably foreseeable that his outcome would be poor. It is likely that Mr Page [sic] depressive illness would be exacerbate [sic] if he lost his ability to work. I note the strong family tendency towards suicide; and coupled with Mr Page's comment that if he did not work he would have nothing to live for, and would feel a failure, the prospect of suicide is a distinct possibility.
The point that a substantial monetary sentence could cause the Company to become insolvent is not without basis. As noted in the letter from Gambles Accountants Pty Ltd, the Company has made operating losses of $142,672 and $74,789 for the 2015 and 2016 financial years respectively.
Given this, I find that Mr Page is an inappropriate vehicle for general deterrence. Further, given that Mr Page is the sole director of the Company, and that the Company is fundamental for Mr Page's ongoing mental health, I find that the Company is also an inappropriate vehicle for general deterrence.
However, with regard to specific deterrence, I do not consider that Mr Page's mental health has any impact on whether he or the Company is likely to reoffend. As such, in light of the above considerations and in particular given the previous conviction of the Company, I consider that at least some specific deterrence remains appropriate for both the Company and Mr Page.

[39]

Totality principle

The present matter involves two offenders who have each been separately convicted of two offences which relate to a single course of conduct. As such, it is a matter to which the totality principle applies.
The totality principle was summarised by Preston CJ of LEC in Gittany Constructions Pty Limited v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242: [196] The totality principle is a principle of sentencing which must be applied when sentencing an offender who has committed more than one offence. The court should consider questions of cumulation or concurrence as well as questions of totality. When reviewing the aggregate sentence, the Court must consider whether it is "just and appropriate" and reflects the total criminality before the court… … [198] To reflect the fact that a number of sentences are being imposed, an appropriate aggregate may be reached by either making sentences concurrent or lowering the individual sentences below what would otherwise be appropriate… [199] In determining an appropriate aggregate sentence, the Court must consider the need to uphold public confidence in the administration of justice. If sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences… [200] In applying the totality principle, the Court must avoid determining a sentence that is disproportionate to the seriousness of the offence…The Court must first fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as questions of totality… [references excluded]
The totality principle also applies in circumstances where there is more than one offender and the offences arise out of one course of conduct: Environment Protection Authority v Geoff Robinson Pty Ltd; Environment Protection Authority v Robinson [2011] NSWLEC 14 at [127] (Pepper J). Further, McClellan CJ of LEC stated in Keir at [16]: In the present case, as I have indicated, Mr Keir [the sole director] is the effective mind of the company. In those circumstances, it is important to bear in mind that the multiplicity of offenders is, in reality, accidental and unrelated to the merits of the case. This position was commented upon by Gleeson CJ in Tiger Nominees Pty Ltd v The State Pollution Control Commission (1992) 75 LGRA 71 at 77.
Given this, I find it appropriate to impose a penalty upon both defendants which is sufficient in the circumstances, but which also takes into account the fact that the penalties are for four offences which arise out of a single course of conduct.

[41]

Section 10 of Sentencing Act

The defendants take the position that it would be appropriate for the Court to dismiss the charges pursuant to s 10(1)(b) of the Sentencing Act. Section 10 of the Sentencing Act relevantly provides: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: … (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, … (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. … (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. … (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.
The defendants submitted that the primary factors in favour of making an order pursuant to s 10(1)(b) of the Sentencing Act is the hardship suffered by Mr Page as a result of the delay, and the fact that there has been no recurrence of such behaviour in the 10 years since the offence was committed. It also submitted that it would be appropriate because of the extenuating circumstances in which the offences were committed, the limited financial means of the defendants, and the age, health and mental condition of Mr Page.
The prosecutor accepted that there are exceptional features in this case, and that if the Court were to accept the defendants' submissions, it would not lead to an appealable error. However, it also submitted that there was some controversy relating to whether a corporation can enter into a good behaviour bond, and whilst it considered that an alternate order may be possible, it also submitted that some level of specific deterrence was important in relation to the Company.
The application of s 10(3) of the Sentencing Act was considered by Simpson J (with Ipp AJA and Wood CJ at CL agreeing) in R v Paris [2001] NSWCCA 83, who stated at [42]: [Section 10(3) of the Sentencing Act] requires the court to have regard to the four factors listed. This is not intended to preclude the court having regard to any other relevant factors but it does require express regard to those matters identified…It is not necessary to the application of s10 that the offence be characterised as trivial; the four factors mentioned in [s 10(3) of the Sentencing Act] are, in my view, intended to be disjunctive and nonexhaustive.
Section 10 of the Sentencing Act was also considered by Preston CJ of LEC in relation to environmental offences in Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719 at [125]: In Thorneloe v Filipowski (2001) 52 NSWLR 60; 116 LGERA 56, the Court of Criminal Appeal noted that s 10 is as applicable to environmental offences as it is to the general run of offences to which it applies. A court should not start from any presumption that it will be a rare case in which s 10 will be applied to an environmental offence. Rather, the Court ought to look primarily at the considerations which arise in the particular case. "These will, of course, include the nature of the offence as defined in the statute creating it and the penalty provided together with the perceived object of the relevant statutory provision": Thorneloe v Filipowski (2001) 52 NSWLR 60 at 78 [201] per Hulme J. Of course, consideration of such matters in each case may have the consequence that there ends up being few cases in which s 10 (1) is applied for environmental offences: see Thorneloe v Filipowski (2001) 52 NSWLR 60 at 74 [165]-[170] per Spigelman CJ and 78 [201] per Hulme J.
Given the above, I will consider whether an order pursuant to s 10(1)(b) of the Sentencing Act is appropriate for either or both Mr Page and the Company with reference to the considerations contained in ss 10(2) and 10(3) of the Sentencing Act.

[42]

Mr Page

With regard to the considerations in subs (3)(a), I have made findings that Mr Page is of good character, has not personally been convicted of any prior offences, and is of poor mental health. I also acknowledge that he is 71 years of age, and that there is insufficient evidence before me to make any findings regarding his physical health.
With regard to the consideration in subs (3)(b), the parties have agreed (and I have found) that the environmental harm was not trivial in nature. Further, I find that the offence itself was similarly not trivial. It involved the transport of over 50 truckloads of waste material over the period of 15 months, placing over 530 tonnes of waste on the subject site. As such, I also find that the offence itself was not trivial in nature.
With regard to the consideration in subs (3)(c), I find that there are some relevant extenuating circumstances, at least insofar as the offence involved the transport and dumping of waste for the purpose of constructing an internal access road, rather than transporting and dumping waste for the purpose of ridding oneself of it. I have found that Mr Page did not understand that he was transporting waste, and as such, this reduces his moral culpability.
With regard to the consideration in subs (3)(d), I find it is proper to consider: 1. the hardship that has been caused to Mr Page as a result of the delay; 2. Mr Page's good prospects of rehabilitation; 3. Mr Page's involvement in the Company's prior conviction for transporting and dumping waste; 4. the lack of a guilty plea, and ongoing lack of understanding on the part of Mr Page relating to the matters for which he has been charged; and 5. the need for specific deterrence.
With regard to the considerations in subs (2), I find that it would not be inexpedient to order that Mr Page pay a fine, although it may be expedient to release Mr Page on a good behaviour bond.
Taken together, and using the instinctive synthesis method of sentencing, I find that despite many of the subjective mitigating factors present in this case and my finding that it may be expedient to release Mr Page on a good behaviour bond, the objective seriousness of the offence and the need for specific deterrence render an order pursuant to s 10(1)(b) of the Sentencing Act inappropriate.

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