Environmental Protection Authority v Bald Hill Quarry Pty Ltd

Environment Protection Authority v Environmental Treatment Solutions Pty Ltd [2015] NSWLEC 160 Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26 Environment Protection Authority v Ghossayn [2009] NSWLEC 181 Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 4) [2021] NSWLEC 123 Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143 Environment Protection Authority v Hanna [2018] NSWLEC 80; (2018) 235 LGERA Environment Protection Authority v Hardman Chemicals Pty Ltd [2020] NSWLEC 8 Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39 Environment Protection Authority v Orica Australia Pty Ltd (the Ammonium Nitrate Solution Spill Incident) [2014] NSWLEC 109 Environment Protection Authority v Orica Australia Pty Ltd (the Evaporator Incident) [2014] NSWLEC 104 Environment Protection Authority v Orica Australia Pty Ltd (the Jackhammer Incident) [2014] NSWLEC 105 Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 Environment Protection Authority v Pal [2009] NSWLEC 35 Environment Protection Authority v Ridley AgriProducts Pty Ltd [2019] NSWLEC 119 Environment Protection Authority v Routledge [2024] NSWLEC 8 Environment Protection Authority v S J Perry [2004] NSWLEC 715; (2004) 135 LGERA 431 Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 Environment Protection Authority v Warkworth Mining Limited [2017] NSWLEC 107; (2017) 227 LGERA 145 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27; (2019) 239 LGERA 31 Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 Environment Protection Authority v Yolarno Pty Limited [2004] NSWLEC 764 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Natural Resources Access Regulator v Jindalee Road Wines Pty Ltd [2024] NSWLEC 26 Natural Resources Access Regulator v Lidokew Pty Ltd [2024] NSWLEC 59 Natural Resources Access Regulator v Tony Thompson [2022] NSWLEC 48 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Dodd (1991) 57 A Crim R 349 R v Nichols (1991) 57 A Crim R 391 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Peel [1971] 1 NSWLR 247 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 Sydney Water Corporation; Environment Protection Authority v Signium Pty Ltd [2018] NSWLEC 126; (2018) 239 LGERA 1 Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Bald Hill Quarry Pty Ltd (Defendant) Representation: Counsel: H El-Hage SC (Prosecutor) C Ireland (Defendant)

Solicitors: Litigation Branch, Environment Protection Authority (Prosecutor) MinterEllison (Defendant) File Number(s): 2023/146880, 2023/146881, 2023/146882, 2023/146883, 2023/146884, 2023/146885, 2023/146886, 2023/192974 and 2023/192975 Publication restriction: Nil

JUDGMENT TABLE OF CONTENTS TOPIC PARAGRAPH NO Bald Hill Quarry Pty Ltd Pleads Guilty to Five Environmental Offences [1] The Legislative Regime Creating the Offences [2] The Evidence Relied Upon by The Parties [8] BHQ Operates a Landfill and Quarry [10] The Licence [14] BHQ Requests Approval to Use Shredded Tyre Waste as Daily Cover [16] Use of Shredded Rubber as Daily Cover [21] Fire on 9 May 2022 [30] The EPA Issues a Clean-Up Notice [47] The Cause of the Fire [51] Sentencing Principles [60] The Purpose of Sentencing [60] Statutory Matters Required to be Taken into Account in Sentencing [61] Objective Seriousness of the Offences [65] Nature of the Offences [67] Maximum Penalty [80] BHQ's State of Mind at the Time of the Commission of the Offences [82] BHQ's Reasons for Committing the Offences [93] Whether the Offences Were Committed for Financial Gain [121] The Environmental Harm Occasioned or Likely Occasioned by the Commission of the Offences [126] Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences [145] Practical Measures that Could Have Been Taken to Prevent or Mitigate the Environmental Harm [150] Control Over the Causes of the Commission of the Offences [157] Conclusion on Objective Seriousness [164] Subjective Circumstances of BHQ [168] Contrition and Remorse [168] Early Pleas of Guilty [175] Assistance to the EPA [180] Prior Convictions of BHQ [181] The Good Character of BHQ and the Likelihood That it Will Reoffend [182] Deterrence, Denunciation and Retribution [184] The Totality Principle [190] Consistency in Sentencing [194] Publication Order [198] Moiety [201] Costs [202] Appropriate Sentence [205] Orders [209]

Bald Hill Quarry Pty Ltd Pleads Guilty to Five Environmental Offences

1. The defendant, Bald Hill Quarry Pty Ltd ("BHQ"), has pleaded guilty to five offences against the Protection of the Environment Operations Act 1997 ("the POEOA"), committed at or near the Benangaroo and North Ridge Quarries on the Hume Highway, Jugiong, New South Wales ("NSW") ("the property"), namely, that: 1. between 14 October 2021 and 9 May 2022 ("the relevant period") it committed two offences contrary to s 64(1) of that Act insofar as it was the holder of Environment Protection Licence No 2552 ("licence"), the following conditions of which were contravened: 1. condition O5.3 - by not using, without the Environment Protection Authority's ("EPA") approval, virgin excavated natural material ("VENM") to cover exposed landfill waste at the property ("the first licence breach offence"); and 2. condition O1.1 - by not carrying out licensed activities in a competent manner at the property in that shredded rubber was used in lieu of VENM as daily cover in circumstances where the use of shredded rubber was not approved by the EPA and increased the risk of a fire occurring ("the second licence breach offence"); 1. during the relevant period it committed one offence against s 126(1) of the POEOA in that it was the occupier of the property and dealt with materials in a manner that caused air pollution, and that air pollution was caused by BHQ's failure to deal with those materials in a proper and efficient manner. That is, it moved, handled and disposed of shredded rubber by applying it to exposed landfill waste and mixing it with landfill waste at the property ("the air pollution offence"); 2. during the relevant period it committed one offence against s 115(1) of the POEOA by negligently disposing of waste in a manner that harmed, or was likely to harm, the environment, in that it deliberately placed shredded rubber on top of exposed landfill waste at the property ("the waste disposal offence"); and 3. on 9 May 2022 it committed one offence against s 152 of the POEOA by failing to notify the relevant authorities in accordance with s 148 of that Act immediately after becoming aware of a pollution incident that caused, or threatened to cause, material harm to the environment ("the notification offence").

The Legislative Regime Creating the Offences

1. The relevant statutory provisions of the POEOA creating the offences are as follows: 6 Appropriate regulatory authority (1) EPA The EPA is the appropriate regulatory authority for the purposes of this Act, except as provided by this section. … 64 Failure to comply with condition (1) Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence. Maximum penalty - (a) in the case of a corporation - $2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, … … 115 Disposal of waste - harm to environment (1) Offence If a person wilfully or negligently disposes of waste in a manner that harms or is likely to harm the environment - (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence. … (3) Definitions In this section - dispose of waste includes to dump, abandon, deposit, discard, reject, discharge or emit anything that constitutes waste, and also includes to cause or permit the disposal of waste. owner of waste includes, in relation to waste that has been disposed of, the person who was the owner of the waste immediately before it was disposed of. 119 Maximum penalty for tier 1 offences A person who is guilty of an offence under this Part is liable, on conviction - (a) in the case of a corporation - to a penalty not exceeding $10,000,000 for an offence that is committed wilfully or $4,000,000 for an offence that is committed negligently, or … 126 Dealing with materials (1) The occupier of any premises who deals with materials in or on those premises in such a manner as to cause air pollution from those premises is guilty of an offence if the air pollution so caused, or any part of the air pollution so caused, is caused by the occupier's failure to deal with those materials in a proper and efficient manner. (2) In this section - deal with materials means process, handle, move, store or dispose of the materials. materials includes raw materials, materials in the process of manufacture, manufactured materials, by-products or waste materials. 132 Maximum penalty for air pollution offences A person who is guilty of an offence under this Division is liable, on conviction - (a) in the case of a corporation - to a penalty not exceeding $2,000,000 and, in the case of a continuing offence, to a further penalty not exceeding $240,000 for each day the offence continues, … 147 Meaning of material harm to the environment (1) For the purposes of this Part - (a) harm to the environment is material if - (i) it involves actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial, or (ii) it results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding $10,000 (or such other amount as is prescribed by the regulations), and (b) loss includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent, mitigate or make good harm to the environment. (2) For the purposes of this Part, it does not matter that harm to the environment is caused only in the premises where the pollution incident occurs. 148 Pollution incidents causing or threatening material harm to be notified (1) Kinds of incidents to be notified This Part applies where a pollution incident occurs in the course of an activity so that material harm to the environment is caused or threatened. (2) Duty of person carrying on activity to notify A person carrying on the activity must, immediately after the person becomes aware of the incident, notify each relevant authority of the incident and all relevant information about it. (3) Duty of employee engaged in carrying on activity to notify A person engaged as an employee in carrying on an activity must, immediately after the person becomes aware of the incident, notify the employer of the incident and all relevant information about it. If the employer cannot be contacted, the person is required to notify each relevant authority. (3A) Duty of employer to notify Without limiting subsection (2), an employer who is notified of an incident under subsection (3) or who otherwise becomes aware of a pollution incident which is related to an activity of the employer, must, immediately after being notified or otherwise becoming aware of the incident, notify each relevant authority of the incident and all relevant information about it. (4) Duty of occupier of premises to notify The occupier of the premises on which the incident occurs must, immediately after the occupier becomes aware of the incident, notify each relevant authority of the incident and all relevant information about it. (5) Duty on employer and occupier to ensure notification An employer or an occupier of premises must take all reasonable steps to ensure that, if a pollution incident occurs in carrying on the activity of the employer or occurs on the premises, as the case may be, the persons engaged by the employer or occupier will, immediately, notify the employer or occupier of the incident and all relevant information about it. (6) Extension of duty to agents and principals This section extends to a person engaged in carrying on an activity as an agent for another. In that case, a reference in this section to an employee extends to such an agent and a reference to an employer extends to the principal. (7) (Repealed) (8) Meaning of "relevant authority" In this section - relevant authority means the following - (a) the appropriate regulatory authority, (b) if the EPA is not the appropriate regulatory authority - the EPA, (c) if the EPA is the appropriate regulatory authority - the local authority for the area in which the pollution incident occurs, (d) the Ministry of Health, (e) SafeWork NSW as referred to in clause 1 of Schedule 2 to the Work Health and Safety Act 2011, (f) Fire and Rescue NSW. 149 Manner and form of notification (1) If the regulations prescribe the manner or form of notifying pollution incidents under section 148, the notification is to conform to the requirements of the regulations. … 152 Offence A person who contravenes this Part is guilty of an offence. Maximum penalty - (a) for a corporation - $4,000,000 and, for a continuing offence, a further penalty of $480,000 for each day the offence continues, …

The Evidence Relied Upon by The Parties

1. The EPA relied upon a Statement of Agreed Facts ("SOAF") and the documents underlying those facts, in addition to: 1. an expert report of Tracey Freeman, Principal Air Quality Specialist, dated 2 May 2023; 2. an expert report of Joseph Whitehead, Waste and Landfill Management Expert, dated 28 April 2023; 3. a supplementary expert opinion of Whitehead, dated 9 May 2024; 4. an affidavit of Douglas Painting, a volunteer firefighter with the NSW Rural Fire Service ("RFS"), sworn on 23 August 2023, which deposed to his observations responding to the fire; 5. an affidavit of Sharon Peters, the EPA's authorised officer responsible for administering the licence, affirmed on 17 April 2024 ("the first Peters affidavit"). It provided a chronology of the correspondence passing between the EPA and BHQ from August 2013 to September 2023; 6. an affidavit of Peters, affirmed on 2 May 2023 ("the second Peters affidavit"). It deposed to Peters's understanding, as the EPA's authorised officer allocated to the investigation of the offences the subject of these proceedings, of the events leading up to and during the fire; 7. file records taken by Peters in relation to the landfill, dated 9 and 10 May 2022; 8. records of interview ("ROI") of John Wilkinson, a director of BHQ, dated 24 October 2022, and Anthony Willsallen, a director of BHQ, dated 15 September and 7 December 2022; and 9. various financial documents of BHQ.
2. In addition to the SOAF and underlying documents, BHQ also relied upon: 1. an expert report of Scott Fishwick, Air Quality Consultant, dated 18 March 2024; 2. an expert report of Dr Tony Green, Fire Scientist and Risk Advisor, dated 18 March 2024; 3. a supplementary report of Dr Green, dated 25 June 2024; 4. three affidavits of Willsallen, two affirmed on 18 March 2024 and one affirmed on 21 June 2024 (together, "the Willsallen affidavits"), which deposed to the factual matters underlying the expert opinion of Dr Green and the mitigation measures undertaken by BHQ; 5. various graphs dealing with pollutant concentrations for Temora and Junee; 6. a letter from BHQ to Peters and Janine Goodwin, attaching photographs of the landfill following the fire, dated 9 August 2023; 7. an aerial photograph of the quarry on the property taken on 13 June 2024; 8. drone footage of the quarry on the property taken on 21 June 2024; and 9. an email from John Ingold, the EPA's Principal Technical Advisor, to Erwin Benker and Peters, dated 25 August 2020.

BHQ Operates a Landfill and Quarry

1. The factual background to the offences was contained in the SOAF. It is summarised below.
2. BHQ operates a landfill and quarry at the property. During the relevant period BHQ was the occupier of the property with control and management of all activities occurring on it.
3. Willsallen and Wilkinson were the directors of BHQ during the relevant period. Willsallen and Wilkinson took an active part in operations carried out by BHQ at the property. Willsallen had primary responsibility for managing landfilling operations at the property. Wilkinson had primary responsibility for managing the quarrying operations and was involved in BHQ's application for development consent for a commercial landfilling operation and to install a leachate barrier at the landfill.
4. The following persons were also employed by BHQ during the relevant period: 1. Jim Grange, as the Landfill Manager; 2. Richard Roe, as the Landfill Operator; 3. Belinda Fourie, as the Work Health and Safety and Environment Manager; 4. David Solha, as the Jugiong Quarry Manager; 5. Peter Sharp, as the Assistant Quarry Manager; and 6. Melissa Spagnol, as the Office Manager.

The Licence

1. The licence authorises the carrying out of scheduled activities at the property including "extractive activities" and "waste disposal (application to land)". The operative conditions of the licence for present purposes were: O1.1 Licensed activities must be carried out in a competent manner. This includes: a) The processing, handling, movement and storage of materials and substances used to carry out the activity; and b) The treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity. … O5.3 Cover material must be Virgin Excavated Natural Material (VENM) unless otherwise approved by the EPA.
2. Condition L2.1 of the licence permitted the storage and disposal by application to land of 40,000 tonnes of waste, including shredded tyre waste, every annual reporting period: L2.1 The licensee must not cause, permit or allow any waste to be received at the premises, except the wastes expressly referred to in the column titled "Waste" and meeting the definition, if any, in the column titled "Description" in the table below. Any waste received at the premises must only be used for the activities referred to in relation to that waste in the column titled "Activity" in the table below. Any waste received at the premises is subject to those limits of conditions, if any, referred to in relation to that waste contained in the column titled "Other Limits" in the table below. This condition does not limit any other conditions in this licence.

BHQ Requests Approval to Use Shredded Tyre Waste as Daily Cover

1. On 10 July 2020 the EPA sent a letter to BHQ advising that material could only be used as daily cover if it was fit for purpose, capable of achieving required outcomes, and met the relevant performance criteria outlined in the Environmental Guidelines: Solid Waste Landfills (2016) ("the 2016 Guidelines"), which included no rubber. The EPA reiterated that under the licence BHQ was required to use VENM as daily cover unless the EPA approved an alternative material.
2. On 24 August 2020, Fourie sent an email to Peters, querying what alternative cover materials were approved by the EPA. In that email, Fourie advised the EPA that BHQ had access to shredded rubber in the form of tyre waste in the landfill's waste stream that could be used.
3. Peters responded on 25 August 2020, stating that the EPA did not support the use of shredded rubber as an alternative cover material because it: 1. formed a permeable layer, whereas the cover should offer some resistance to rainfall infiltrating downward and gas and odours leaking upward; 2. could not be compacted as well as soil, and therefore, the resulting landform would not be as stable; and 3. created a fire risk insofar as if the landfill caught on fire, the "rubber lenses of cover will make it worse".
4. BHQ acknowledged receipt of the email the following day.
5. On 6 October 2021 Fourie telephoned Peters seeking the EPA's approval for the use of shredded rubber as cover material for the landfill. Peters advised Fourie that the EPA's position on the use of shredded rubber as cover material had not changed. On the same day, Peters forwarded Fourie the email sent by the EPA to BHQ on 25 August 2020.

Use of Shredded Rubber as Daily Cover

1. BHQ began receiving shredded rubber from waste tyres at the property on 14 October 2021 from a company trading as Molycop 360. It continued to receive shredded rubber until approximately 6 May 2022.
2. Throughout the relevant period: 1. waste received at the landfill was being piled up in the centre of the quarry away from the quarry wall resulting in an exposed batter face. This batter face became progressively higher as more waste was deposited in the landfill; 2. shredded rubber, which is a combustible material, was being used as daily cover; 3. shredded rubber was being mixed into the top layers of the landfilled general solid waste; 4. the waste received at the landfill included batteries; and 5. neither the batter face nor the surface of the landfill was being covered with VENM.
3. It was not in dispute that the shredded rubber, being shredded tyre waste, was both "waste" within the meaning of the Dictionary to the POEOA and "special waste" within the meaning of cl 49(1) of Sch 1 to that Act. BHQ was entitled to receive shredded tyre waste at the landfill under its licence.
4. On 23 March 2022 Fourie telephoned Peters and advised her that BHQ was receiving increased volumes of shredded rubber which it wanted to use as daily cover. Peters reiterated the EPA's previous advice that shredded rubber was not a suitable material for use as daily cover.
5. Fourie sent an email to Peters on 25 March 2022 in which she stated: 1. BHQ received around 700 tonnes of shredded tyres every month; 2. shredded tyres were good materials to work with as daily cover; 3. BHQ employees had observed that shredded tyres did not present any of the problems identified by the EPA; and 4. if a fire were to occur, there was a greater risk of it spreading, or continuing to burn for some time, with the presence of shredded tyres.
6. The EPA responded on 22 April 2022 stating again that the EPA did not approve the use of shredded rubber as cover material and outlined the technical requirements for cover material under the 2016 Guidelines.
7. Fourie informed Grange, Wilkinson and Willsallen that "tyres couldn't be used [as daily cover] as per the guidelines" without the EPA's approval. Willsallen was also aware of the correspondence detailed at above (at [16]-[26]).
8. During the relevant period BHQ used shredded rubber to cover exposed landfilled waste at the property and did not use VENM as daily cover as required under the licence.

Fire on 9 May 2022

1. At approximately 2:00 am on 9 May 2022, a fire at the property was reported to "000" by a passing motorist driving along the Hume Highway.
2. Spagnol was notified of the fire at approximately 2:20 am on 9 May 2022 by a telephone call from the RFS who was seeking to gain access to the property to respond to the fire. The gates to the landfill were locked when the RFS arrived at about 2:10 am.
3. Spagnol telephoned Grange immediately to inform him of the fire. Spagnol also notified BHQ employee, Sharp, of the fire shortly after 2:20 am.
4. Grange telephoned Wilkinson at approximately 2:30 am notifying him of the fire. At that time, Wilkinson considered that the fire was a "serious critical incident".
5. Wilkinson arrived at the property at approximately 3:30 am that day. In an interview with the EPA, he identified on a photograph taken later that same day the extent of the fire at the time that he arrived at the property, in addition to identifying what he had observed and had inferred to be the extent of the area of the shredded tyre waste in the landfill. That marked photograph is reproduced below:
6. Spagnol notified Fourie of the fire at approximately 7:00 am on 9 May 2022.
7. Fourie notified the EPA of the fire by a telephone call to the Environment Line at approximately 7:00 am. In that call, Fourie stated that there was a fire at the landfill, that there was a lot of rubber in the landfill, and that the fire was contained within the landfill void.
8. At 7:43 am the same day, Fourie called Peters to give further notice to the EPA of the fire. Fourie told the EPA that she had reported to the Environment Line that there was a fire at the landfill that started at approximately 2:30 am, that it was unclear how the fire had started, and that it was the largest fire they had experienced.
9. Fourie notified the following relevant authorities of the fire by telephone: 1. Fire and Rescue NSW at approximately 7:30 am; 2. Hilltops Council between 8:00 and 8:45 am; and 3. the relevant Local Health District by 8:30 am.
10. Willsallen attended the property at approximately 8:30 am on 9 May 2022.
11. At approximately 8:30 am the EPA's authorised officers, Peters and David Langston, departed their offices located in Queanbeyan to respond to the fire. On approach to the property at 9:50 am, they observed smoke emanating from the property moving horizontally in a westerly direction. A photograph was taken by Peters of the observation:

The EPA Issues a Clean-Up Notice

1. On 9 May 2022 Peters issued a verbal clean-up direction to BHQ during a telephone conversation with Fourie. The direction required BHQ to engage a suitably qualified expert in landfill fires to assist in the clean-up and management of the fire, and to develop a management plan. BHQ complied with this verbal direction.
2. The EPA issued Clean-up Notice No 3502497 on 10 May 2022 ("the clean-up notice"), formalising the verbal direction given on 9 May 2022. The clean-up notice required BHQ to engage an independent expert to: 1. determine the status of the fire; 2. develop a medium to long-term program to monitor for heat in the landfill; and 3. develop an Extinguishment Plan.
3. BHQ complied with the clean-up notice by engaging GHD. GHD prepared an Extinguishment Plan which was submitted to the EPA on 12 May 2022. The Extinguishment Plan required: 1. visual and olfactory inspection of the surface of the landfill to confirm the absence of smoke and smouldering waste; 2. shallow potholing of the area where the surface fire occurred to monitor gas emissions and confirm the absence of hotspots; 3. landfill gas sampling to determine the presence of subsurface fires; and 4. temperature monitoring.
4. The clean-up notice also required BHQ to submit a compliance report. This report was sent to the EPA on 30 May 2022.

The Cause of the Fire

1. During the hearing a dispute arose regarding the cause of the fire. BHQ submitted that the words "increased the risk (or likelihood) of a fire occurring" in particular 1(d)(i) of the summons charging the waste disposal offence alleged that BHQ's offending caused the fire: d. Likely harm to the environment i. The manner in which the Defendant disposed of the Waste at the Premises significantly increased the risk (or likelihood) of a fire occurring within the landfill involving the burning of the Waste, which would result, or would likely, result, in the emission of substances that were harmful or potentially harmful to human health or the environment.
2. Accordingly, BHQ sought to cross-examine and adduce evidence to address the issue of the cause of the fire.
3. The EPA objected and submitted that the paragraph should be read as alleging that the use of shredded rubber as daily cover in lieu of VENM increased the risk of harm that would be caused if a fire occurred, and not that the use of shredded rubber tyres caused or increased the likelihood of fire occurring (T97:29-98:23). As the EPA conceded, a fire could potentially occur in a number of ways in a landfill, including by spontaneous combustion.
4. Due to the inherent ambiguity in the language of the particular, which the EPA refused to amend, the Court permitted evidence to be adduced by BHQ as to the cause of the fire (T98:11-31).
5. BHQ's expert, Dr Green, opined that the application of shredded rubber as daily cover instead of VENM was not material to the cause of the fire. He stated that the fire was caused by the batter edge being allowed to form in the manner it did which set up conditions for spontaneous combustion.
6. The view of the EPA's expert, Whitehead, was that the use of shredded tyres as daily cover posed a fire risk because combustible material was covering the landfill without the placement of VENM to protect against the ingress of air in circumstances where there was combustible material in the landfill, including batteries.
7. During his oral evidence Whitehead: 1. stated that the mounding of waste away from the quarry walls increased the exposure of the waste to air and made the waste on the incline batter more difficult to compact. This significantly contributed to the risk of a fire occurring and spreading (T99:22‑100:11 and 100:43-101:03); 2. said that while there were challenges in placing VENM on a sloped batter, it was not impossible. He proposed placing VENM bottom up on sloping surfaces so that lower parts of the cover could support material in the upper parts of the cover (T100:12‑27); 3. accepted that the ignition source of the fire could have been due to spontaneous combustion or due to the presence of batteries in the landfill igniting (T101:40-48); and 4. agreed that maintaining a leachate removal system was important to mitigating the risk of fire at a landfill because the presence of leachate increases the heat of a landfill. While he accepted that leachate can also be sprayed back onto the landfill to further evaporate leachate, he disagreed that it was important to generate leachate to do this (T105:1-32).

The Purpose of Sentencing

1. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"): 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,nsw (g) to recognise the harm done to the victim of the crime and the community.

Statutory Matters Required to be Taken into Account in Sentencing

1. Subsections 21A(2) and (3) of the CSPA sets out aggravating and mitigating factors that the Court must consider. The factors relevant to the facts of this case are: 21A Aggravating, mitigating and other factors in sentencing … (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows- … (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … (o) the offence was committed for financial gain, … The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows- (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), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23), …
2. For offences created by the POEOA, the Court is also required to consider the matters set out in s 241 of that Act: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant) - (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee, (f) the presence of asbestos in the environment. (2) The court may take into consideration other matters that it considers relevant.

Objective Seriousness of the Offences

1. The objective gravity of the offences fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at [354]). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offences (R v Dodd (1991) 57 A Crim R 349 at [354] and R v Nichols (1991) 57 A Crim R 391 at [395]).
2. The objective gravity of the offences is judged having regard to two principal components: first, the acts or omissions of the offender; and second, the consequences of those acts or omissions (Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [22]).

Nature of the Offences

1. The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme creating it, are relevant to the determination of the objective seriousness of the commission of an environmental offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]).
2. A "fundamental consideration" is the extent to which "the offender's conduct would offend against the legislative objective expressed in the statutory offence", having regard to the penalties prescribed (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15], R v Peel [1971] 1 NSWLR 247 at 262 and Environment Protection Authority v Ashmore [2014] NSWLEC 136 at [40]).
3. Accepted industry standards for a landfill of a similar size and type as the landfill at the property require the application of an appropriate daily cover material to the waste at the end of daily operations. The use of a cover material is to: 1. mitigate fire risk occurring by creating an inert barrier to exclude air; 2. reduce water ingress and leachate generation; 3. control the escape of litter; 4. mitigate the escape of gas; and 5. suppress offensive odours.
4. BHQ failed to comply with its licence conditions by: 1. not using VENM to cover exposed landfilled waste at the property on a daily basis; 2. using shredded rubber to cover landfill waste; and 3. using shredded rubber as cover despite the absence of any provision in the licence authorising such conduct and despite the EPA having informed it that it did not approve of the use of shredded rubber to cover exposed landfill waste.
5. It is instructive to consider the purposes of the relevant offences within the statutory scheme. The objects of the statute assist with ascertaining the purpose of creating an offence (Environment Protection Authority v Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114 at [97] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]).
6. The relevant objects contained in s 3(a), (d), (e) and (f) of the POEOA identify the purpose of creating the offences with which BHQ has been charged. The POEOA achieves these objectives by, among other things, creating the offences in ss 64(1), 115(1), 126(1) and 152.
7. These objects reinforce the beneficial nature of the statutory framework and the essential role that the statutory regulation of waste plays in achieving those objects, notably through the promulgation of a licensing regime governing the waste industry.

Maximum Penalty

1. The maximum penalty provided for an offence indicates the seriousness with which Parliament views the commission of the offence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359 and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).
2. BHQ is charged with five breaches of the POEOA including two breaches of s 64(1), one breach of s 115(1), one breach of s 126(1) and one breach of s 152. Each of these offences, in the case of a corporation, carry a maximum penalty of: 1. $1,000,000 for an offence committed pursuant to s 64(1); 2. $2,000,000 for an offence against s 115(1) that is committed negligently (s 119); 3. $1,000,000 for an offence committed pursuant to s 126(1); and 4. $2,000,000 for an offence committed pursuant to s 152.

BHQ's State of Mind at the Time of the Commission of the Offences

1. The offences are crimes of strict liability which means that mens rea is not an element of the offences. However, the state of mind of BHQ at the time of the commission of the offences is nevertheless relevant to the determination of an appropriate sentence (s 241(2) of the POEOA; and Environment Protection Authority v Dial-A-Dump (EC) Pty Ltd [2024] NSWLEC 21 at [84] and Environment Protection Authority v Routledge [2024] NSWLEC 8 at [21]).
2. A strict liability offence that is committed intentionally, negligently or recklessly, is objectively more serious than one committed accidentally (Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123], Rae at [42] and Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 at [72]-[75]).
3. The EPA submitted that BHQ's conduct in relation to the breach of licence offences was deliberate because BHQ: 1. acted in defiance of the obligations under its licence in circumstances where the EPA repeatedly stated in unambigious terms its refusal to permit the use of shredded rubber as daily cover in lieu of VENM. BHQ was aware of the EPA's position that shredded rubber was not suitable for use as daily cover. During cross-examination Willsallen accepted that BHQ did not take its obligations under condition O5.3 of its licence seriously (T134:24‑32): Q. You were not at the time taking your licence obligations seriously, you accept that? A. There were a lot of licence obligations at the time which we were taking seriously but we didn't take seriously the advice that we'd been given in relation to daily cover and using VENM. Q. You weren't at the time taking your licence obligations with respect to daily cover seriously, you accept that? A. Correct 1. was aware that the manner in which it disposed of the shredded tyre waste within the landfill would increase the risk of fire at the property. In Willsallen's first ROI he accepted that the application of VENM would have prevented the fire from occurring: Q 661. Compared to when if you had VENM I think was what she meant? A Well, no, if they had VENM over it, it wouldn't have burnt (indistinct) full stop. 1. was aware that shredded rubber is combustible and that disposing of it by mixing it with landfilled waste and applying it to the surface of the landfill created a fire risk.

BHQ's Reasons for Committing the Offences

1. The criminality involved in the commission of an offence is measured not only by the seriousness of what occurred but also by reference to the reasons for its occurrence (Axer at [366] and Bentley at [237]).
2. BHQ submitted that there were operational justifications for the use of shredded rubber instead of VENM, namely, that: 1. there were practical difficulties in using VENM in wet weather given the need for a stable surface for the landfill delivery truck; 2. the shredded rubber was burnable but not spontaneously combustible, unlike other waste; 3. although it knew that it was not authorised to use shredded rubber tyres in lieu of VENM, it also believed that shredded rubber satisfied the requirements for daily cover and believed that it was fit for purpose; 4. there was a lag between the height of the waste cell liner and the height of the landfill waste, with the latter exceeding the former. This was caused by BHQ not being given approval in a timely manner to construct a leachate barrier above RL 434 m; 5. the EPA's delay in approving an increase in the leachate liner resulted in the waste being mounded into a battered slope away from the quarry walls. This contributed to the spread of the fire. Moreover, the mounding made it impractical to apply VENM because it would have slid down the batter slopes and into the gaps between the waste; and 6. BHQ did not intend to leave the waste cell uncovered by VENM in the long-term. The lack of VENM covering was temporary pending approval by the EPA to increase the height of the leachate liner and the drying out of the landfill after a period of excessive rainfall.
3. As a consequence of these submissions, the EPA was required to adduce considerable further material to refute the claim that it was partly to blame for the commission of the offences. The dispute, and the evidential contest required to determine it, added to the length and complexity of the sentence proceedings. This evidence is summarised below.
4. On 1 July 2013 BHQ submitted a report to the EPA which indicated that an upper wall liner was required at the landfill because the existing walls did not meet the landfill liner requirements for permeability under the EPA's Environmental Guidelines: Solid Waste Landfill Guidelines (1996).
5. The EPA responded on 9 August 2013 by proposing to vary the licence by adding an operational condition prohibiting any waste to be received in the landfill above RL 426 - 428 m without its approval of a landfill lining system. It also required a report on the proposed design for the landfill lining system to be submitted by 31 March 2014.

Whether the Offences Were Committed for Financial Gain

1. Offences committed for financial gain increase their objective gravity (s 21A(2)(o) of the CSPA). However, the mere fact that offending conduct occurs in the course of commercial activity is not sufficient in and of itself to prove that it was committed for financial gain (Natural Resources Access Regulator v Tony Thompson [2022] NSWLEC 48 at [133] citing Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 4) [2021] NSWLEC 123 at [223]).
2. The EPA submitted that BHQ obtained a financial benefit from using shredded rubber and not VENM because: 1. there was a cost saving in not having to apply VENM as daily cover. This was admitted by Wilkinson in his ROI and by Willsallen in cross-examination (T135:25-32 and 137:39-138:12); 2. in response to a question in his interview with the EPA about whether costs savings was a factor in BHQ's decision to apply shredded rubber as daily cover, Wilkinson replied, "I presume so, yes. Yeah, yeah."; 3. although Wilkinson sought to downplay the extent of any cost saving in cross-examination (T162:36-41 and 163:8-15), it can be inferred that the costs saved included those comprising the use of equipment that was otherwise required to transport and apply VENM as daily cover and the staffing resources necessary to apply it. The Willsallen affidavits deposed to BHQ having subsequently (that is, after the commission of the offences) purchased a specialised dump truck for transporting VENM and staff having permanent access to an excavator for "VENM placement"; and 4. the crusher dust and other quarry materials that were available from quarrying operations for use as appropriate daily cover were saleable products.
3. During re-examination of Willsallen the following evidence emerged (T162:36‑41 and 163:8-15): Q. Mr Willsallen, early on in your cross-examination you were asked about whether there were cost savings associated with utilising shredded rubber as opposed to VENM, and you said, according to my note of your evidence, that there may have been a minor cost saving but it was not significant. You weren't permitted to elaborate at the time in answering that question. Did you have anything to add in terms of why you said the cost saving was minor? A. Well-- … Q. Why was the cost saving minor? A. It was minor because we, we obviously, we had the staff available. We had, we had loader available. Not, not as regularly as it could have been, but we had a transport truck, we had a quarry truck and we had staff, so we wouldn't have had to employ any additional personnel. And in the normal operation, the two operators of the landfill at the time were capable of being able to haul down the cover material and stockpile it in the landfill on an as-needs basis.

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

1. The Court must take into account the extent of the harm caused, or likely to be caused, to the environment by the commission of the offences, including whether the harm caused was substantial (s 241(1)(a) of the POEOA and ss 21A(2)(g) and (3)(a) of the CSPA).
2. The concept of harm in the context of environmental offences extends to both actual and potential harm (Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[149]).
3. There is, however, a distinction between actual harm to the environment and harm to the regulatory regime (ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 at [65]). While the former is considered under s 241(1)(a) of the POEOA, the latter is a relevant factor under s 241(2) of that Act only.
4. It was not in dispute that as a consequence of the fire, smoke, gases and vapour escaped from the property and were emitted into the atmosphere, and therefore air pollution occurred. Did this, however, cause actual environmental harm?
5. In his affidavit, Painting, who arrived at the landfill in the early hours of 9 May 2022 to suppress the fire, described the conditions of the fire in the following terms: I observed that the Fire was contained within the landfill pit. The Fire extended to about 80 metres across. The smoke was quite dense, black and smelt like burning plastic and burning rubber. I could see there was an approximately 3 metre layer of fresh rubbish on the surface of the landfill. At least half of the surface area of exposed rubbish was on fire. The surface of the rubbish was burning with a flame height of approximately half a metre. Although the air was quite still so the smoke was going straight up most of the time, I could still get a strong smell of burning plastic and rubber.
6. Painting stated that he and his crew left the landfill on three occasions to avoid exposure to the smoke. He said that he was concerned that the personal protective equipment available to his volunteer firefighters, namely, P2 masks, "were not suitable to use responding to a fire of this type".
7. In his ROI Wilkinson explained the smell of the fire was "toxic": Q 285. Thank you. And in terms of when you first arrived and obviously when it was daylight and you could actually see, because you mentioned toxic fumes. Can you describe what, um, what the smoke and that was like was when you first arrived? A. Um, O.K. Q 286. Or when you could first observe it? A. No. Well I observed it when I drove down the whole, or actually I could see the glow, you know as you drive down the hill you could see, you could look over the hill and look, it looked a bit like a volcano which gladdened my geologist's heart. But, but, um, so in terms of the fumes and smoke what do you mean? Q 287. Um. A. What is it you want to know? Q 288. Just describe what the, what you actually saw in terms of the smoke? The extent of it? The colour? A. Lots of smoke. Yeah. Lots of smoke. And steam. Um, or, or whitish smoke. Q 289. So as you were coming down the, as you were approaching the landfill could you see the smoke like, um, leaving the, leaving the landfill and how far did it extend beyond the - - - A. I didn't notice, look, I, I did not, you, no, no I've got no, because it was black. It was dark. Q 290. Yeah. O.K. A. It was pitch black. I mean all I could see was the, the orange glow on the fumes as they were coming over the top of the ridge of the hill. And, um, yeah, I kept my eyes on the road and drove in as quickly as I could. Q 291. Yeah. And when you got to site what did you observe in terms of the colour of smoke and the smell of smoke? Are you able to describe it? A. Oh. Well, um, the, the, look, the colour of the smoke. I don't know. It was dark. Um, it was billowing. It was pale. It was black, it was dark. You know it was, there was just any amount of, of, of different, you know billowing smoke coming off it. Q 292. And in terms of the smell? You said it was toxic. I'm just trying to ascertain how you believed it was toxic? Did it have a particular aroma? A. I breathed it in. If you want to be absolutely blunt, I was down helping fighting the fire and, you know to start with I got a few puffs. Because the wind changed or something like that and I can assure you it didn't, it was horrible stuff. Q 293. When you say, "Horrible' how did it make you feel? A. Horrible. I mean it's horrible smoke. End of story you know. I mean what do you expect me to say? Q 294. Did it sting your eyes or were there any other physical attributes of the smoke that, um, made it feel toxic to you? A. It was horrible. Q 295. No worries. O.K. A. It was horrible. It was horrible. I mean I don't know what you want me to say but it was very unpleasant full stop.

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences

1. Section 241(1)(c) of the POEOA obliges the Court to have regard to the extent to which the offender could reasonably have foreseen the harm caused, or likely to be caused, to the environment.
2. The EPA submitted that it was clearly foreseeable that BHQ's use of the shredded rubber tyre waste as daily cover instead of VENM would increase the risks associated with fire occurring in the landfill that would involve the burning of shredded rubber, and which would in turn likely result in the emission of substances that were harmful or potentially harmful to human health or the environment. Furthermore, it would increase the likelihood of any fire spreading across the landfill.
3. BHQ accepted that it was foreseeable that if a fire occurred at the landfill, it would produce smoke and cause air pollution. It did not, however, accept that any additional environmental harm was foreseeable because the actual harm that resulted was negligible and because there was a supply of VENM available to rapidly suppress a fire should one occur.
4. On the basis of the EPA's repeated advice to BHQ regarding its refusal to approve shredded rubber as use of daily cover because of the fire risks associated with it, I find that it was reasonably foreseeable by BHQ that by using shredded rubber in lieu of VENM there was an increased risk that if fire were to occur, it could result in the emission of impurities into the air and attendant harm to the environment and to human health.
5. In relation to the notification offence, I find that it was reasonably foreseeable that a failure to immediately notify relevant authorities of the pollution incident would impact upon the effectiveness of the response to it, thereby causing harm to the regulatory regime. Having said this, no additional harm has been demonstrated to have occurred by the commission of this offence.

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

1. Section 241(1)(b) of the POEOA requires the Court to take into account the practical measures that may be taken to prevent, control, abate or mitigate harm to the environment.
2. In Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 Pain J observed (at [70]): [70] 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. …
3. The EPA submitted that BHQ had available to it a range of measures to prevent the harm caused by the offending conduct including: 1. declining to receive waste that could not be covered by VENM; 2. utilising its available staff and machinery to apply onsite VENM as daily cover. It had available supplies of VENM in the form of "mountains" of "crusher dust" from its quarrying operations to use as daily cover for the landfill which BHQ elected not to use. Instead, a deliberate decision was made to use shredded rubber given the increase in volume of that type of waste that was received during the relevant period. As a result, costs embodied in staff and machinery resources associated with the transport, deposition and land application of VENM as daily cover were avoided, and the stocks of crusher dust were preserved as a potentially saleable product; 3. pursuant to the terms of the EPA's 2016 approval, installing a leachate liner to allow it to lawfully level the waste up to RL 434 m, and therefore, eliminate any unnecessary exposure of waste in the landfill to air and leachate thereby increasing fire risk. BHQ failed to do so. Any suggestion that it could not do so due to supply constraints associated with the COVID-19 pandemic should be rejected for at least the period between 2016 to 2019; and 4. based on the evidence of Whitehead, which was not contradicted by that of Dr Green, building a bench of VENM up the mounded waste. While there may have been challenges in covering mounded waste with VENM, it was not impossible to do so.

Control Over the Causes of the Commission of the Offences

1. Section 241(1)(d) of the POEOA requires the Court to take into account the extent to which the person who committed the offence had control over the causes that gave rise to it.
2. The EPA submitted that BHQ had complete control over the offending conduct because its actions in mounding the waste and placing shredded rubber on top of it rather than using VENM as daily cover were undertaken deliberately.
3. BHQ conceded that it had control over the use of shredded rubber in lieu of VENM. It denied, however, that it had complete control over the cause of the fire which was spontaneous combustion. It also submitted that the EPA's delay in approving the leachate liner design resulted in the mounding of waste away from the quarry walls, making it difficult to apply VENM, thereby increasing the risk of fire.
4. BHQ's submissions must be rejected.
5. The starting point is that a fundamental aspect of the statutory and licence regime is that BHQ is responsible for adhering to its license conditions and for ensuring the proper and lawful operation of the landfill. The EPA relied upon the chronology in the first Peters affidavit, and the accompanying documentary evidence, together with the cross-examination of Willsallen (T140-162), to demonstrate that: 1. the EPA approved a design for a trial leachate barrier for RL 424‑434 m in 2016 and issued a variation to the licence in May 2016 to give effect to that approval; 2. BHQ took almost five years to install this liner and to prepare a report which provided information concerning the outcome of that trial; 3. BHQ could have installed a leachate linear prior to 2021 under the terms of the 2016 approval thereby avoiding the mounding of the waste; 4. by mid-2021 there was greater urgency in the installation of a new leachate liner because the waste in the landfill was approaching RL 434 m. Waste was also being mounded within the landfill which meant that waste was not being compacted properly and there was added exposure around the edges. Willsallen accepted that these problems should have been identified and addressed earlier; 5. it was not until May 2021 that BHQ made an application to install a leachate liner up to RL 434 m with a new design. That application was the subject of technical advice within the EPA which was communicated to BHQ; and 6. following this application, BHQ decided to seek approval for a design above RL 434 m. BHQ submitted a revised design on 17 December 2021. The installation of the liner above RL 434 m was approved by the EPA by way of a variation to the licence on 24 December 2021.

Conclusion on Objective Seriousness

1. A sentencing judge is not required to nominate a point on a scale when assessing the objective seriousness of an offence. While occasionally useful, such an exercise adds little substance to the task of instinctive synthesis and determination of a proportionate sentence (DH v R [2022] NSWCCA 200 at [60]).
2. Nevertheless, on any view, the first and second licence breach offences that were committed by BHQ were objectively serious, insofar as they were committed deliberately, caused transient environmental harm, and had the potential to cause further environmental harm, including harm to human health. The waste disposal offence was also objectively serious because it caused the same harm and was committed negligently.
3. The air pollution offence was an incident of the commission of the breach of licence offences and the waste disposal offence and also caused harm. It is likewise objectively serious, although not as serious as the offences referred to above because it was not committed with a heightened state of mind.
4. The notification offence, I accept, was in the low-range of objective seriousness because it was likewise not committed with a heightened state of mind and its commission did not cause any environmental harm.

Contrition and Remorse

1. Pursuant to s 21A(3)(i)(i)-(ii) of the CSPA, remorse is only a mitigating factor if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
2. In Waste Recycling Preston J suggested at least four ways by which an offender may demonstrate genuine contrition and remorse (at [204], [210], [212] and [214]), which I respectfully adopt and apply in the present proceedings.
3. In his affidavit, Willsallen expressed contrition in the following way: 52 I extend BHQs and my personal apology for the Incident to members of the community, and to the Court. This Incident does not reflect BHQ's corporate culture or the way BHQ wishes to carry out its business, either at the Premises, or generally. The lncident has been embarrassing for BHQ, and BHQ is dedicated to ensuring an incident like this will not happen again. 53 BHQ is aware that the use of the shredded tyres as daily cover in lieu of VENM was in contravention of the EPL and it takes its environmental and community obligations, and in particular compliance with the EPL, very seriously.
4. Both Willsallen and Wilkinson were present at the sentencing hearing.
5. The EPA submitted that the Court should place qualified weight on the remorse expressed by BHQ. This was because BHQ has sought to minimise the extent of any potential harm caused by the commission of the offences and had endeavoured to draw a causal link between the conduct of the EPA in not approving the leachate liner earlier and the use of shredded tyre rubber as daily cover. It submitted that this approach was inconsistent with a genuine acceptance of liability and true contrition.
6. By contrast, BHQ submitted that its expressed contrition carried more weight because it had explained the operational reasons for its offending conduct and had adduced expert evidence in response.
7. I find that BHQ's conduct during the sentencing hearing reflected a lack of acceptance of, and accountability for, its offending. This is demonstrated by BHQ's submission that it could not comply with its licence obligations due to the EPA's delay in approving an increase to its upper wall quarry liner, its refusal to accept that its use of shredded rubber in lieu of VENM posed an elevated fire risk (in terms of intensity not occurrence), and its submissions regarding the positive attributes of shredded rubber as daily cover, all which suggested that BHQ does not accept the wrongfulness of its actions. I therefore place limited weight on BHQ's expression of contrition and remorse (s 21A(3)(i) of the CSPA).

Early Pleas of Guilty

1. A guilty plea entered at the earliest available opportunity entitles a defendant to the full 25% discount for the utilitarian value of that plea (ss 21A(3)(k) and 22 of the CSPA; and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]).
2. The summons in relation to the waste disposal offence was filed on 16 June 2023, with the remaining summonses filed on 8 May 2023. BHQ entered pleas of guilty to all charges on 14 December 2023, that is, early but not at the earliest opportunity.
3. The EPA accepted that the pleas of guilty were entered early, however, it submitted that their utilitarian value had been eroded by the manner in which BHQ had conducted itself during the sentence hearing. This included concessions only being made after repeated questioning from the bench (T26:43-34:31) and unmeritorious issues being pursued, including the delayed approval of the new leachate liner, and therefore, whether the EPA was partly to blame for the commission of the offences. The EPA submitted that it was open to the Court to apply less than the usual maximum discount for the utilitarian value of the pleas.
4. In response, BHQ submitted that it was entitled to agitate the matters that it did in mitigation and that it ought not be penalised for doing so.
5. While I accept that BHQ entered guilty pleas at an early opportunity, they were not entered at the earliest opportunity and the conduct of BHQ in effectively seeking to deny, or at the very least deflect, accountability for its offending resulted in the agitation of issues and evidential matters upon which it was ultimately unsuccessful and had the effect of prolonging the sentence hearing (necessitating an additional day of hearing). This eroded the utilitarian value of the guilty pleas. On this basis, I find that BHQ is entitled to a 20% discount for its guilty pleas.

Assistance to the EPA

1. There is no doubt that BHQ provided assistance to the EPA in the prosecution of the offences (ss 21A(3)(m) and 23 of the CSPA), including by making admissions in its interviews with the EPA and agreeing to facts in these proceedings (ACE Demolition at [94]-[96]).

Prior Convictions of BHQ

1. BHQ does not have any relevant prior criminal history (ss 21A(2)(d) and 21A(3)(e) of the CSPA).

The Good Character of BHQ and the Likelihood That it Will Reoffend

1. BHQ relied on the Willsallen affidavits in support of a submission that it was of good character, was unlikely to reoffend, and had good prospects of rehabilitation: 42 Bald Hill Quarry Pty Ltd was founded in 1989 to quarry basalt from what is now the Landfill Void. When the Company started, I was living and working our farm, located 6km from Jugiong, and this is where I still reside. We supplied quarry products for the Jugiong bypass 1994 - 1995 and I served on the Jugiong Vision Committee which was committed to improving the environs of Jugiong such that the Village could thrive after the Hume Highway traffic was bypassed. BHQ donated materials and persuaded the Bypass contractor to provide concrete foundations for a new synthetic tennis court in October 1995. 43 BHQ has continued to donate quarry materials for the upkeep of roads and walking tracks within the Jugiong recreation grounds since the 1990s. We also support the Jugiong Golf Course with road base on an as needs basis. 44 In 2016 BHQ gave $28,000 for installation of a wireless internet connection for the community of Jugiong. Wi Sky, a wireless internet startup founded by two local farmers, did not have the confidence to leapfrog their wireless service into the Jugiong Valley. BHC paid to install three towers required and subsidised the connection of the first 20 Jugiong Village subscribers. This service continues to operate. 45 BHQ company donations account ledger 2013 to 2023 lists $87,000 of donations to various community organizations, including $41,000 to Harden District Education Foundation. The list of recipients includes Jugiong Fishing Club, Jugiong Advancement Group, Jugiong Writers Festival, Tumbarumba High School, Holbrook Community Group, Holbrook District Race Club, Tumbarumba Pastoral and Agricultural, and Rural Fire Brigades. 46 BHQ supports Contact Inc CEO Ms Sue Kingwell from Cootamundra. Ms Kingwell's charity Contact Inc runs various events in remote Western NSW for indigenous communities, focussing on early childhood education and family welfare. Because of an injury Ms Kingwell was unable to drive the distances and I now fly her to these events. 47 BHQ has existed as a company for 35 years. John Wilkinson and I have been directors and shareholders and we have a proud history of providing quarry products from four quarries, and have produced millions of tonnes of quarry products for Council roads to Hume Highway duplication and numerous public and civil projects. 48 The establishment of the landfill 2002 was a joint enterprise between 8 Local Councils and BHQ. The Landfill is a Public - Private enterprise that resolved significant environmental issues for the Councils involved. BHQ is proud of the role we played in encouraging the Councils to participate. The formation of the South West Regional Waste Management Group was a milestone in rural Council cooperation. Our Regional Landfill could not have been granted consent without the participation of the Councils, who held the supervisory EPA licence and the statutory closure trust fund. BHQ's good standing and corporate reputation played a key role in the Council's confidence that BHQ could deliver. The environmental benefits were and are significant, the closure of 30-40 Council landfills and village tips to one secure Regional landfill was a major improvement. BHQ continues to encourage Councils to improve their waste handling services and recycling recovery rates, and we are concerned at the increasing volume of plastics appearing in the waste stream. The community benefit has always been the motivation in our interactions with The Group. The Premises had been open for approximately 1000 contiguous weeks before the fire without incident. 49 In conversations with EPA staff, I have been asked for advice on how EPA could advise / help the non-urban landfill sector deal with hazardous L-ion batteries. In particular, I have directed EPA staff to a recently published ACCC report and the Victorian waste classification reference ignitable and reactive hazardous wastes system as a potential option. 50 BHQ, since inception, has never been charged or fined for any malfeasance.

Deterrence, Denunciation and Retribution

1. The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at [569]-[570] per Brennan J).
2. The penalty imposed by the Court must serve as a general deterrent (Axer at [359], Camilleri's Stock Feeds at [701] and Bentley at [139]; and see also s 3A(b) of the CSPA). In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Preston J discussed general deterrence in the context of sentencing for environmental crime (at [66]-[68]). I respectfully adopt and apply those principles here.
3. I accept that embedded in the determination of the appropriate sentence to be imposed on BHQ is an element of general deterrence to ensure that holders of environment protection licences comply with the attached conditions when undertaking landfill operations.
4. In relation to specific deterrence (s 3A(b) of the CSPA), the EPA submitted that there was a need for specific deterrence in this case in light of: 1. BHQ's blatant disregard of the EPA's refusal to approve the use of shredded rubber as cover; 2. the fact that BHQ holds other environment protection licences and engages in other scheduled activities pursuant to those licenses; and 3. the fact that BHQ sought to advance expedience over compliance as a justification for deliberately contravening its licence conditions.
5. BHQ submitted that there was no need for the penalty to reflect specific deterrence given the steps that it has taken since the commission of the offences to prevent a similar incident occurring.
6. I do not agree. That BHQ deliberately breached the conditions of its licence and sought to deflect blame onto the regulatory authority demonstrates an indifference to the statutory regime governing waste disposal and to the EPA's authority. This behaviour warrants specific deterrence.

The Totality Principle

1. The totality principle was recently considered in Natural Resources Access Regulator v Lidokew Pty Ltd [2024] NSWLEC 59 (at [48]-[50] and [52]). I respectfully adopt and apply the principles enunciated by Duggan J in that case.
2. The EPA accepted that the totality principle applied to the sentencing of BHQ for the first and second licence breach offences, air pollution and waste disposal offences, with appropriate discrimination for the differences in the elements of each offence. The EPA did not accept, however, that the totality principle applied to the notification offence because it represented a discrete incidence of criminal conduct for the failure of immediate notification to relevant authorities of the pollution incident, which was separate to the conduct giving rise to that incident.
3. BHQ rejected the EPA's contention that the totality principle does not apply to all offences. It submitted that the offence arose out of the same offending and was plainly consequential upon the other substantive offences (citing Natural Resources Access Regulator v Jindalee Road Wines Pty Ltd [2024] NSWLEC 26 at [80]).
4. I disagree. The principle of totality is applicable to the first and second licence breach, air pollution and waste disposal offences only. This is because all four offences arose out of BHQ applying shredded rubber as daily cover in lieu of VENM. The notification offence represents distinct conduct arising out of BHQ failing to notify relevant authorities of the fire.

Consistency in Sentencing

1. The task of the sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at [177] and R v Visconti [1982] 2 NSWLR 104 at [107]). Care must be taken in comparing cases where the circumstances of, and facts relating to, the offences may be different (Axer at 365).
2. The EPA provided to the Court a table of 22 comparative cases that it submitted were of assistance in ensuring even-handedness in sentencing, namely: Environment Protection Authority v Hardman Chemicals Pty Ltd [2020] NSWLEC 8; Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143; Sydney Water Corporation; Environment Protection Authority v Signium Pty Ltd [2018] NSWLEC 126; (2018) 239 LGERA 1; Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27; (2019) 239 LGERA 31; Environment Protection Authority v Warkworth Mining Limited [2017] NSWLEC 107; (2017) 227 LGERA 145; Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60; Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39; Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64; Environment Protection Authority v Environmental Treatment Solutions Pty Ltd [2015] NSWLEC 160; Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58; Environment Protection Authority v Orica Australia Pty Ltd (the Ammonium Nitrate Solution Spill Incident) [2014] NSWLEC 109; Environment Protection Authority v Orica Australia Pty Ltd (the Jackhammer Incident) [2014] NSWLEC 105; Environment Protection Authority v Orica Australia Pty Ltd (the Evaporator Incident) [2014] NSWLEC 104; Environment Protection Authority v S J Perry [2004] NSWLEC 715; (2004) 135 LGERA 431; Environment Protection Authority v Pal [2009] NSWLEC 35; Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24; Environment Protection Authority v BMG Environmental Group Pty Ltd & Barnes [2012] NSWLEC 69; (2012) 188 LGERA 324; Environment Protection Authority v Ghossayn [2009] NSWLEC 181; Environment Protection Authority v Yolarno Pty Limited [2004] NSWLEC 764; Environment Protection Authority v Forbes Shire Council; and Cleanaway.
3. BHQ also provided to the Court the following seven comparative cases that it sought to rely upon: Wattke; Pal; Hardman Chemicals; Whitehaven Coal; Ghossayn; and Cleanaway Equipment; and, in particular, BMG (which it submitted was the most comparable).

Publication Order

1. The EPA seeks publication orders pursuant to s 250(1)(a) of the POEOA. The terms of the publication order are set out at annexure 'A' to this judgment. They are agreed to by BHQ.
2. In the context of sentencing, a publication order serves the functions of general deterrence, denunciation, and a recognition of the harm caused by the offending conduct (Bartter at [105] and Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [76]). BHQ's offending conduct was deliberate, criminally negligent and occasioned actual and potential environmental harm. BHQ will continue to operate a landfill operation and has not sufficiently demonstrated total contrition for its commission of the offences. These factors weigh heavily in favour of making a publication order in the terms sought by the EPA.
3. In making the order, the Court notes that BHQ's consent to it may be considered as evidence of contrition (Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9; (2022) 251 LGERA 28 at [69]).

Moiety

1. The EPA contended that half of any monetary penalty imposed by the Court ought to be paid to it pursuant to s 122 of the Fines Act 1996. Having regard to all of the circumstances of the case, I find that it is appropriate to make such an order. There was no opposition to it by BHQ.

Costs

1. The EPA sought an order for its professional costs pursuant to s 257B of the Criminal Procedure Act 1986 in the sum of $236,250. BHQ agreed to the making of such an order (s 257G(a)).
2. In the exercise of its sentencing discretion the Court can take into account any costs payable by the defendant as a factor in mitigation (Causmag Ore at [123] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78]-[88]).
3. I have taken the payment of the costs by BHQ into account in mitigation.

Appropriate Sentence

1. Having regard to the objective seriousness of the offences and the mitigating subjective factors of BHQ, together with the penalties imposed in the relevant comparable cases, I find that the imposition of a monetary penalty is warranted for each offence as follows: 1. for the first licence breach offence a monetary penalty of $150,000; 2. for the second licence breach offence a monetary penalty of $150,000; 3. for the waste disposal offence a monetary penalty of $200,000; 4. for the air pollution offence a monetary penalty of $75,000; and 5. for the notification offence a monetary penalty of $20,000.
2. After the application of the 20% discount for the utilitarian value of the early guilty pleas, the penalty for the commission of each offence is reduced to: 1. for the first licence breach offence a monetary penalty of $120,000; 2. for the second licence breach offence a monetary penalty of $120,000; 3. for the waste disposal offence a monetary penalty of $160,000; 4. for the air pollution offence a monetary penalty of $60,000; and 5. for the notification offence a monetary penalty of $16,000.
3. Applying the totality principle, the final penalty for the commission of the offences, excluding the notification offence, is as follows: 1. for the first licence breach offence a monetary penalty of $150,000; 2. for the second licence breach offence a monetary penalty of $50,000; 3. for the waste disposal offence a monetary penalty of $100,000; and 4. for the air pollution offence a monetary penalty of $25,000.
4. This brings the combined amount of the monetary penalty to be imposed to $341,000 (including the notification offence).

Orders

1. In conformity with the reasons given above, the Court makes the following orders: In proceedings 2023/146881 (the first licence breach offence) 1. the defendant is convicted of the offence contrary to s 64(1) of the Protection of the Environment Operations Act 1997 as charged; 2. the defendant must pay a monetary penalty in the sum of $150,000; In proceedings 2023/146880 (the second licence breach offence) 1. the defendant is convicted of the offence contrary to s 64(1) of the Protection of the Environment Operations Act 1997 as charged; 2. the defendant must pay a monetary penalty in the sum of $50,000; In proceedings 2023/192975 (the waste disposal offence) 1. the defendant is convicted of the offence contrary to s 115(1) of the Protection of the Environment Operations Act 1997 as charged; 2. the defendant must pay a monetary penalty in the sum of $100,000; In proceedings 2023/146884 (the air pollution offence) 1. the defendant is convicted of the offence contrary to s 126(1) of the Protection of the Environment Operations Act 1997 as charged; 2. the defendant must pay a monetary penalty in the sum of $25,000; In proceedings 2023/146885 (the notification offence) 1. the defendant is convicted of the offence contrary to s 152 of the Protection of the Environment Operations Act 1997 as charged; 2. the defendant must pay a monetary penalty in the sum of $16,000; In proceedings 2023/146880, 2023/146881, 2023/146884, 2023/146885 and 2023/192975 1. pursuant to s 122 of the Fines Act 1996, 50% of the monetary penalty imposed on the defendant is to be paid to the prosecutor as a moiety; 2. pursuant to ss 257B and 257G of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor's professional costs of the proceedings in the sum of $236,250; 3. pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, the defendant must, at its expense and within 28 days of the date of this order, cause a notice in the form of annexure "A" to these orders to be published within the first five pages of the following publications, at a minimum size of 14 cm by 14 cm: 1. The Daily Telegraph; 2. Cootamundra Herald; and 3. Inside Waste; 1. within seven days of the date of publication of the notices referred to in order 13, the defendant must provide the prosecutor with a complete copy of the notices as published pursuant to that order; 2. the exhibits are to be returned; and In proceedings 2023/192974, 2023/146882, 2023/146883 and 2023/146886 1. the summonses are dismissed.

Annexure a Bald Hill Quarry Pty Ltd Convicted of Five Environment Protection Offences in the Land and Environment Court Bald Hill Quarry Pty Ltd ("BHQ") has been prosecuted by the Environment Protection Authority ("EPA"), pleaded guilty and was convicted in the Land and Environment Court of NSW ("the LEC") of five offences against the Protection of the Environment Operations Act 1997 ("POEOA"). The offences arose from BHQ's use of shredded waste tyres as daily cover for its landfill at Bald Hill instead of virgin excavated natural material ("VENM") between 14 October 2021 and 9 May 2022, without the EPA's approval and contrary to its environment protection licence. On 9 May 2022 there was a fire at the landfill involving the shredded waste tyres which caused air pollution. BHQ failed to notify the EPA and other relevant authorities immediately of a pollution incident which caused or threatened material harm to the environment. BHQ was convicted of offences against: 1. s 115(1) of the POEOA, for negligently disposing of waste in a manner that was likely to harm the environment; 2. s 126(1) of the POEOA, for dealing with materials in a manner that caused air pollution; 3. s 64(1) of the POEOA, for breaching condition O1.1 of its environment protection licence for failing to carry out landfilling activities in a competent manner; 4. s 64(1) of the POEOA, for breaching condition O5.3 of its environment protection licence for failing to use VENM as daily cover at the landfill; and 5. s 152 of the POEOA, for failing to immediately notify all relevant authorities of a pollution incident causing or threatening material harm to the environment. On 31 October 2024 the LEC convicted and fined BHQ the amount of $341,000, ordered it to pay the EPA's costs agreed in the sum of $236,250, and to publish this notice. The LEC's judgment may be accessed at [insert website for judgment publication on Caselaw NSW].

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: 19 November 2024