Maher El Masri v Environment Protection Authority

Medium Neutral Citation: Maher El Masri v Environment Protection Authority [2026] NSWLEC 4

Hearing dates: 16 December 2025

Date of orders: 28 January 2026

Decision date: 28 January 2026

Jurisdiction: Class 6

Before: Pepper J

Decision: See orders at [134].

Catchwords: OFFENCES AND PENALTIES: appeal against the severity of a sentence imposed by the Local Court – convicted of unlawful transporting of waste offence and disposal of asbestos waste offence against ss 143(1)(a) and144AAA(1) of the Protection of the Environment Operations Act 1997 in the court below – nature of appeal against sentence – applicable sentencing principles on appeal – no reckless state of mind – actual and potential harm to the environment – practical measures to prevent harm – harm was reasonably foreseeable – complete control over cause of offences – previous conviction – no planned or organised criminal activity – good prospects of rehabilitation – remorse shown – guilty pleas – limited capacity to pay a fine – general and specific deterrence warranted – parity principle – totality principle – monetary penalty imposed – publication order made – appeal upheld – costs order made by the Local Court varied – each party to bear their own costs of the appeals.

Legislation Cited: Crimes (Appeal and Review) Act 2001, ss 3, 3(3), 31(1), 39(2), 49(2), 49(4), 70, 71(1), 71(2)
Crimes (Sentencing Procedure) Act 1999, ss 3A, 3A(b), 21A(2), 21A(2)(d), 21A(2)(n), 21A(3), 21A(3)(h), 21A(3)(i), 21A(3)(k)
Criminal Procedure Act 1986, ss 211, 215(1)(a), 257G
Fines Act 1996, ss 6, 122(2)
Protection of the Environment Operations Act 1997, ss 3, 48(2), 142A(1), 143(1), 143(1)(a), 144AAA(1), 211(2), 241(1)(a), 241(1)(b), 241(1)(c), 241(1)(d), 241(1)(f), 250(1)(a)

Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bankstown City Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39
Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111
Cmunt v Commissioner of Police NSW [2019] NSWLEC 33
Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483
Elias v The Queen (2013) 248 CLR 483
Environment Protection Authority v Albiston [2020] NSWLEC 80
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Crown in right of New South Wales [2019] NSWLEC 178
Environment Protection Authority v Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114
Environment Protection Authority v Incitec Ltd [2003] NSWLEC 381; (2003) 131 LGERA 176
Environment Protection Authority v Jackson [2024] NSWLEC 137
Environment Protection Authority v Laison [2015] NSWLEC 89
Environment Protection Authority v Mouawad (also known as Isaac) (No 4) [2023] NSWLEC 76
Environment Protection Authority v Mouawad (No 2) [2020] NSWLEC 166
Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222
Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Fahs v R [2007] NSWCCA 26
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422
Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
Jindalee Road Wines Pty Ltd v Natural Access Regulator; Littore v Natural Resources Access Regulator [2025] NSWCCA 215
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Kingfisher Properties Pty Limited v Northern Beaches Council [2025] NSWLEC 39
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253
R v Dodd (1991) 57 A Crim R 349
R v Nichols (1991) 57 A Crim R 391
R v Oliver (1980) 7 A Crim R 174
R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Visconti [1982] 2 NSWLR 104
Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd (No 2) [2025] NSWLEC 88
Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141
Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561
Wan v The Queen [2017] NSWCCA 261
Williams v R [2010] NSWCCA 15

Category: Sentence

Parties: Maher El Masri (Appellant)
Environment Protection Authority (Respondent)

Representation: Counsel:
A El-Roubaei (Solicitor) (Appellant)
Z Shahnawaz (Respondent)
Solicitors:
Gibraltar Lawyers (Appellant)
Environment Protection Authority (Respondent)

File Number(s): 2025/307710 and 2025/307711

Publication restriction: Nil

JUDGMENT

El Masri Appeals Against the Sentence Imposed by the Local Court

1. Pursuant to s 31(1) of the Crimes (Appeal and Review) Act 2001 (“CARA”) Maher El Masri appeals against the severity of a sentence imposed by the Local Court.

2. The summons commencing the appeal states as follows:

1. The Appellant appeals, under section 31(1) of the Crimes (Appeal and Review) Act 2001, from the following part of the decision handed down by the court below on 11 July 2025 (“the Local Court decision”):

a) Regarding the offence under section 143(1)(a) of the Protection of the Environment Operations Act 1997 [(“POEOA”)]:

(i) Order to pay a fine of $76,500.00; and

(ii) Order to pay the costs of the Environment Protection Authority (“the Prosecutor”) in the amount of $42,500.00.

b) Regarding the offence under section 144AAA(2) [sic] of the POEOA:

(i) Order to pay a fine of $76,500.00; and

(ii) Order to pay the costs of the Environment Protection Authority in the amount of $42,500.00.

3. The first offence relates to causing the transport of asbestos waste to an unlawful waste facility against s 143(1)(a) of the Protection of the Environment Operations Act 1997 ("POEOA") (“transport waste offence”):

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 of the waste, and

(c) if the waste is transported in a vehicle and the person is not the owner of the vehicle—the owner of the vehicle,

are each guilty of an offence.

Maximum penalty—

…

(b) for an individual—

(i) if the offence involves asbestos waste—$1,000,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues, or

(ii) otherwise—$500,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

4. The second offence relates to the disposal of asbestos waste at a site that was not lawfully permitted to receive that waste against s 144AAA(1) of the POEOA (“waste disposal offence”):

144AAA Unlawful disposal of asbestos waste

(1) A person disposing of asbestos waste off the site at which it is generated must do so at a place that can lawfully receive the waste.

Maximum penalty—

…

(b) for an individual—$1,000,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

5. For the reasons given below, the Court upholds El Masri’s appeal against sentence and fines him a total of $74,000 in lieu of the monetary penalty imposed at first instance. The Court also adjusts downwards the costs awarded by the court below in favour of the Environment Protection Authority (“EPA”). Each party is to bear their own costs of the appeals.

El Masri is Convicted of Two Offences Against the POEOA

6. The facts giving rise to the commission of the offences was not in dispute. They were contained in a statement of agreed facts (“SOAF”) that was relied upon in both the Local Court proceedings and in the present appeals. It is relevantly reproduced below:

1 On 22 August 2019 at approximately 10:30am, authorised officers Mr Joshua Madden, Mr Damien Smith and Mr Robert Tamayo of the Environment Protection (the EPA) attended the locality of 490 Twelfth Avenue, Rossmore NSW (the Premises) following a report made to the EPA. The EPA officers were accompanied by Mark Leuschner, Chief Drone Pilot with Australian Aerial Imagery Pty Ltd. At all relevant times, Mr Fouad Arja was the lease holder and occupier of the Premises.

…

3 From approximately 10:50am until 12.00pm, Mr Leuschner flew an Unmanned Aerial Vehicle (UAV), equipped with a video camera, over the Premises and Officer Madden observed the screen of the UAV's control device.

4 Officer Madden observed that there were stockpiles of demolition waste and soil on the Premises, as well as over 500 tyres, car parts and car bodies. …

5 At approximately 11:37am, a truck with a blue and white cab and trailer (Truck 1) entered the Premises and drove to the centre of the Premises where it deposited material in two stockpiles from the trailer and truck (described in these Facts as SP1 and SP2 respectively).

6 At approximately 11:41 am, a truck with blue and red tarps and trailer (Truck 2) entered and drove to the centre of the Premises where it deposited material in two stockpiles from the trailer and truck (described in these Facts as SP3 and SP4 respectively).

7 An excavator partially spread the material contained in SP1, SP2, SP3 and SP4, using the bucket on the excavator.

8 At approximately 11:49am, a truck with a white cab and rolled-back black tarps and trailer (Truck 3) entered and drove to the centre of the Premises where it deposited material in two stockpiles each from the trailer and truck (described in these Facts as SP5 and SP6 respectively).

9 At approximately 12:03pm, the EPA officers entered the Premises along with two NSW Police Force officers.

10 Upon entering the Premises, Officer Madden observed:

a. Truck 1's registration was CM90UO;

b. Truck Z's registration was CE32VG; and

c. Truck 3's registration was CK54DO (together, the Trucks).

Source and nature of the material deposited

11 During the inspection on 22 August 2019 between 12:45pm and 1 pm, Officer Madden observed that:

a. SP1 consisted of a soil like material containing sticks, concrete, terracotta pipe and pieces of Potential Asbestos Containing Material (PACM) in the form of bonded (non friable) asbestos sheeting; and

b. SP3, SP4, SP5 and SP6 consisted of dark clay with very little visual contaminants except for a broken terracotta pipe and some tree roots.

12 The material transported by the Trucks and deposited on the Premises as described in these Facts originated from 2-6 Thorncraft Parade, Campsie (the Source Site).

13 The owner of the Source Site was Kaiy Corp Pty Ltd (Kaiy Corp), who contracted Raland Construction Pty Ltd (Raland) to undertake a residential development project.

14 Raland subcontracted to CivilCo Pty Ltd (CivilCo) to undertake a demolition and excavation package at the Source Site in conjunction with the residential project.

15 Kaiy Corp Pty Ltd confirmed, in response to Notice to Provide Information and/or Records No. 1606949 issued by the EPA under s 191 of the POEO Act, that the Waste that was taken from the Source Site by the Trucks was unwanted as it had been excavated at the Site for construction of an underground basement and was not required for reuse.

16 Raland confirmed, in response to Notice to Provide Information and/or Records No. N-40196 issued by the EPA under s 191 of the POEO Act, a total of approximately 4000m3 of material was removed from the Source Site as part of the project scope and that it was unwanted.

17 The volume of material deposited by the Trucks is estimated to total approximately 60 to 70 tonnes.

18 On 22 August 2019 during the EPA's inspection, Officer Smith took samples of PACM in the form of bonded asbestos sheeting from SP1 and labelled them AS1, AS2, AS3 and AS4 (the Samples). AS1 measured 80x60x5mm and weighed 32.6g. AS2 measured 45x20x5mm and weighed 5.51g. AS3 measured 65x30x5mm and weighed 14.2g. AS4 was of unknown dimensions and weighed 3.79g.

19 At 2:15pm, Officer Smith gave custody of the Samples to Officer Madden. At 3:30pm, Officer Madden submitted the Samples to the Department of Planning, Industry and Environment Laboratory for testing. The results of the analysis of the Samples showed that AS1, AS2 and AS3 tested positive for chrysotile asbestos.

The Defendant caused the transportation of the Waste to the Premises

20 The Defendant caused the transportation of the Waste from the Source Site to the Premises by:

a. directing the drivers of Trucks 1, 2 and 3 to attend the Source Slte to collect the Waste; and

b. directing the drivers of Trucks 1, 2 and 3 to transport the Waste to the Premises and deposit it there.

…

24 At approximately 12:24pm, Officer Madden conducted a recorded interview with Mr El Masri, in which Mr El Masri stated:

a. Fred Arja, a farmer, "told me, 'I've got a farm. I need the clean topsoil to put them in the [farm]'. And I told him, 'Thursday I've got a job coming. We started digging it on Thursday. We start today to carry this material."

b. "the tip doesn't take the topsoil... Have to carry the topsoil to the farmers for the, for the using for the farming because the tip doesn't accept it."

c. When asked about the farmer, "Fred Arja his name. Yeah. I know him. I know him very well, long time."

d. When asked "did you supply Fred Arja with any documentation about the material”, he answered "To be honest with you that's the first day they had it coming from, the first day. I don't know, I don't know what's going on before. To be honest with you, when I come in here and see the big issue that surprised me. Because never happen with me before.''

e. Mr El Masri stated he was responsible for three trucks that transported soil to the Premises from 2/6 Thornton St [sic], Campsie NSW with registrations CM90UO, CE32VG and CK54DO (the Trucks).

f. one of the truck drivers called him and he attended the Premises straight away.

g. the three trucks travelled directly from Campsie to the Premises. He stated "l'm telling you that's the first day and the trucks we saw them today. l don't know what's going on before. That's not my responsibility. My responsibility – the trucks that are coming from our side, here and you find the trucks here. That's only but I don't know you see, you go and see - there's activity that's not – I don't know what was going on before."

h. the name of the person who "gave" him a job at Campsie was a builder by the name of "Robbie".

i. Mr El Masri further stated that "But, you know, if (indistinct) has told you and I know from my long life of that business industry, we're legal to get clean top soils to the farms. I know that very well" and further that "I know asbestos. I know rubbish. I know that...I know this game. I know this industry very well."

25 CivilCo confirmed, in response to Notice to Provide Information and/or Records No.1586008 issued by the EPA under s 191 of the POEO Act, the following information:

a. on 22 August 2019, "Maher from Royal Demolition" advised its employees at the Source Site that he needed three loads of material;

b. that 3 trucks loaded and transported one load each from the Source Site without any confirmation from directors; and

c. CivilCo was not advised where the material was going.

26 At the relevant times, Mr Radwan (Robbie) El-Helou was the CivilCo Project Manager at the Source Site and was working at the Source Site.

27 In his record of interview, Mr El Masri was asked by the EPA Officer "Do you have any documentation about the material that was brought here?" Mr El Masri responded, "Not yet but after tomorrow I've got an appointment to come test the land and give me validation ... ".

28 Civil Co's response to the EPA's Notice to Provide Information and/or Records confirmed that Alliance Geotech was engaged by CivilCo to conduct testing at the Source Site, including testing for asbestos, and that Alliance Geotech subsequently conducted testing at the Source Site on 23 August 2019.

29 Mr EI-Helou has, at a later time, been found guilty of providing a false waste classification report in relation to material transported from a different building site in Vaucluse.

…

Conviction of Fouad Arja

38 Fouad (“Fred”) Arja leased the Premises from July 2019. He resided at the Premises with his partner, Ms Laila Ismail.

39 Text messages between Mr El Masri and Laila Ismail, state:

a. On 15 august 2019: “Salam alaykom sis is Fouad with you”, “I’m [here] at your place, I try to contact him but he’s not answer”,

b. On 18 August 2019: “Good morning, can you let Fouad to give the machine key to the driver he’s waiting outside”, and

c. On 20 August 2019: “Salam sis, can you move your car from the gate, the truck can’t go [through]”.

7. The charges proceeded to hearing on liability on 7 May 2024. They were initially determined in El Masri’s absence.

8. El Masri filed an annulment application in respect of the convictions which the Local Court granted on 20 November 2024, and the matter was relisted for hearing on 21 February 2025.

9. On the first day of the hearing on liability, El Masri entered pleas of guilty in respect of both offences and the matter proceeded to a hearing on sentence on 19 March 2025.

10. On 11 July 2025 El Masri was convicted of the offences as charged. The Local Court imposed a total fine for both offences of $153,000. It also ordered El Masri to cause a notice to be published pursuant to s 250(1)(a) of the POEOA, pay a moiety of half of the monetary penalty imposed by that Court to the prosecutor, the EPA, and to pay the prosecutor’s costs in the amount of $85,000 and the EPA’s investigation costs in the sum of $600.

The Nature of an Appeal Against Sentence

11. An appeal against sentence is made to this Court as of right under s 31(1) of the CARA:

31 Appeals as of right

(1) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence.

12. Section 39(2) of the CARA provides that:

39 Determination of appeals

(2) The Land and Environment Court may determine an appeal against sentence—

(a) by setting aside the sentence, or

(b) by varying the sentence, or

(c) by dismissing the appeal.

13. Appeals against sentence proceed by way of a rehearing, and unlike an appeal against conviction, are not limited to the evidence before the Court below. That is, the parties are not required to obtain leave to adduce fresh evidence (Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 at [51]; Cmunt v Commissioner of Police NSW [2019] NSWLEC 33 at [21]; and Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86 at [2]).

Evidence Before this Court

14. On appeal, the parties relied on:

(a) the SOAF adduced in the Court below; (b) a transcript of the sentence hearing in the Local Court; (c) an agreed procedural history; and (d) a statement of agreed facts tendered in the related conviction of Fouad Arja that was put before the Local Court in the El Masri proceedings at first instance.

15. El Masri also relied upon:

(a) an affidavit affirmed by him on 12 November 2025. Annexed to the affidavit were bank account statements from 21 December 2024 to 5 November 2025, bank account statements of Mazz Civil Pty Ltd (“Mazz Civil”) from 1 August to 31 October 2025, a credit card statement in El Masri’s name from 14 August to 14 September 2025, a fortnightly payment plan for an overdue fine in the amount of $32,320, individual tax returns for 2024-2025 and 2023-2024, and a company tax return for Mazz Civil for 2023-2024; (b) a NSW Health Fact Sheet entitled Asbestos and health risks; and (c) a document entitled Attorney-General’s Rates for Legal Representation.

16. The EPA further relied upon an affidavit of Nicola Ojerholm, a solicitor with the prosecutor, affirmed on 8 December 2025. Ojerholm deposed to the accuracy of the bill of costs (“bill of costs”) that was sent to El Masri on 12 March 2025, which set out the EPA’s professional costs and disbursements of the proceedings in the court below. Annexed to the affidavit were ASIC extracts for Royal Demolition & Excavation Pty Ltd, Mazz Civil and Royal Lion Transport Pty Ltd (“Royal Lion”).

Sentencing Principles

17. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”) provides the purposes of imposing a sentence on the offender:

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.

18. Subsections 21A(2) and (3) of the CSPA set out aggravating and mitigating factors that the Court must consider. Relevant to the facts of this appeal, they 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),

…

(n) the offence was part of a planned or organised criminal activity,

…

(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,

…

(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), …

19. For offences created under the POEOA, the Court must also consider the matters set out in s 241 of that Act insofar as they are relevant:

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,

…

(f) the presence of asbestos in the environment.

20. The appropriate sentence for El Masri is to be determined by an instinctive synthesis of all the relevant objective and subjective circumstances surrounding the commission of the offences (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).

21. Importantly, the sentence to be imposed on El Masri for the commission of the offences must be proportionate to the objective seriousness or gravity of their commission and his subjective circumstances (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).

Objective Circumstances of the Offences

22. 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 considering its objective circumstances (Veen (No 2) 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 offence (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).

23. Objective seriousness is to be determined by reference to the nature of the offences and not to matters that are personal to a particular offender (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).

Nature of the Offences

24. The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are indicative of the objective seriousness of an offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]).

25. The objects set out in s 3 of the POEOA relevantly include:

3 Objects of Act

The objects of this Act are as follows—

(a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,

…

(d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following—

(i) pollution prevention and cleaner production,

(ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,

(iia) the elimination of harmful wastes,

(iii) the reduction in the use of materials and the re-use, recovery or recycling of materials,

(iv) the making of progressive environmental improvements, including the reduction of pollution at source,

(v) the monitoring and reporting of environmental quality on a regular basis,

(vi) the proper environmental management of chemicals throughout their whole lifecycle,

(e) to rationalise, simplify and strengthen the regulatory framework for environment protection, …

26. In Bankstown City Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39, the Chief Judge observed in relation to waste offences that (at [56]):

56 …the POEO Act also specifically proscribes certain conduct concerning the transporting and depositing of waste without lawful authority. This includes the use of a place as a waste facility (being premises used for the storage, treatment, processing, sorting or disposal of waste: see Dictionary to the POEO Act) (s 144(1) of the POEO Act); the transporting of waste to and the depositing of waste at a place that cannot lawfully be used as a waste facility for that waste (s 143(1) of the POEO Act); and polluting land, such as by depositing waste on land (s 142A(1) of the POEO Act). The prohibition of this conduct prevents land pollution and its impacts on the environment, including harm to human health. A person can only carry out the conduct if a licence has been issued authorising the person to do so. Application for and approval of a licence ensures the proper assessment of the conduct, the land on which the conduct is proposed to be carried out, and the environmental impacts of the conduct, as well as an assessment of whether the person is a fit and proper person to carry out the conduct (including whether the person has contravened the POEO Act, such as having been convicted of waste offences against ss 142A(1), 143(1) or 144(1) of the POEO Act).

27. The offences to which El Masri pleaded guilty are directed to ensuring that the transportation and disposal of waste do not cause harm to human health and the environment. The offence against s 143(1) undermined the legislative objectives set out in s 3 of the POEOA insofar as El Masri transported waste in a manner contrary to that Act. On any view, unlawfully depositing asbestos waste clearly offended against the objects of the Act.

28. The offence against s 144AAA(1) of the POEOA undermined the integrity of the regulatory framework which that Act establishes insofar as it circumvented the approved practices for disposing asbestos waste that are directed to preventing the pollution of land.

Maximum Penalty

29. The maximum penalty provided for an offence indicates Parliament’s view as to the seriousness of that offence. It provides a sentencing yardstick to measure the relevant features of the offences for which El Masri is to be sentenced (Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]; and Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 697). El Masri’s offending must be examined in this light (Harrison v Perdikaris [2015] NSWLEC 99 at [49]).

30. At the time that the offences were committed, the maximum penalty for the commission of an offence by an individual against:

(a) s 143(1)(a) of the POEOA was $500,000, if the offence involved asbestos waste; and (b) s 144AAA(1) of the POEOA was $500,000.

El Masri’s State of Mind

31. Contravention of ss 143(1)(a) and 144AAA(1) of the POEOA are strict liability offences where intention is not an element of the offence. However, the commission of a strict liability offence intentionally, recklessly or negligently will be objectively more serious than one that is inadvertently committed.

32. In Environment Protection Authority v Jackson [2024] NSWLEC 137 the Court set out the test for recklessness (at [114]-[115]):

114 In Plath the Court considered the meaning of the term "recklessness" (at [98]):

98 The term recklessness describes the state of mind of an offender who, while performing or failing to perform an act, is aware of the risk that a particular consequence is likely, in the sense of probable or possible, to result from that act or omission (Pemble v R (1971) 124 CLR 107, La Fontaine v R (1976) 136 CLR 62 and R v Crabbe (1985) 156 CLR 464). Recently in Blackwell v R [2011] NSWCCA 93, the Court of Criminal Appeal described the mental element of "reckless" as (at [76]):

[76] The effect of this line of authority is that where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence.

115 In Ridley AgriProducts Robson J held (at [72]):

72 For an offender to be reckless in the commission of an offence, they need to have "knowledge or foresight of the likelihood of the consequence or circumstance occurring" in the sense of a "real and not remote" chance: Brummell at [52]. While pertaining to different factual circumstances to those in the present matter, in Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126], Pepper J considered recklessness in the context of clearing native vegetation as follows:

An offender's conduct will be classified as reckless where he or she is put on notice, in the sense that he or she believes or suspects, that the clearing of native vegetation may be unlawful but nevertheless proceeds to undertake the clearing without making further enquiries (Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 at [50] and Director-General, Department of the Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100 at [50]).

33. The EPA submitted that El Masri was reckless in his commission of the offences. It submitted that he knew that the waste was being collected from the construction site and that it had not been tested for asbestos, and that he failed to conduct an inspection of the material or wait for it to be tested for asbestos. Such conduct must be viewed in light of El Masri’s 15 years of experience in the waste industry.

34. The EPA invited the Court to infer that El Masri knew that he was removing “dirty” loads of waste prior to testing at the source site. This inference was to be drawn from El Masri’s admission that he knew that the material at the source site was to be tested the following day.

35. Although El Masri is an experienced service operator in the waste industry who proceeded to transport and deposit waste without prior testing or inspection for asbestos, this is insufficient to support a finding of recklessness. There is no evidence that El Masri suspected or believed that the waste collected and transported was likely to contain asbestos. I therefore do not find that El Masri committed the offences recklessly.

Harm Caused or Likely to be Caused to the Environment (s 241(1)(a) of the POEOA)

36. The extent of the harm caused or likely to be caused to the environment by the offending can increase the seriousness of the offence (Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111 at [20]). The concept of harm in the context of environmental offences is broad, extending 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]).

37. In Environment Protection Authority v Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114, the Chief Judge relevantly observed the following in relation to the commission of offences involving asbestos contaminated waste (at [197]):

197 …Environmental offences are crimes; they are not mere administrative breaches. The community views environmental offences, including land pollution and dumping of waste, particularly if contaminated by hazardous substances such as asbestos, as extremely serious. Statutory criminal provisions express the community's moral condemnation of conduct that causes or is likely to cause harm to the environment and human health: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [143]-[145].

38. El Masri submitted that the offending conduct occasioned only limited harm to the environment. He argued that of the six stockpiles that were deposited, only one was found to contain asbestos in the amount of 52.31 grams. The material would therefore have ultimately caused a relatively low level of harm to the environment.

39. Additionally, El Masri submitted that there was no evidence that the asbestos sheeting was altered from its non-friable bonded state. El Masri furnished the Court with a fact sheet from NSW Health which stated that asbestos that “is in good condition and not damaged” poses a “low risk” to human health. Given that the EPA had not established that the asbestos was damaged or not in good condition, the offending conduct accordingly posed a low risk to human health.

40. By contrast, the EPA submitted that the offences caused actual and potential environmental harm occasioned by the introduction of pollutants from building and demolition waste onto the premises in an amount of approximately 60 to 70 tonnes. It submitted that while the total quantity of asbestos in the deposited waste was likely to be low, the crushing of the waste by heavy machinery increased the risk that the asbestos fibres would loosen from their bonded states. The introduction of foreign, non-biodegradable material to the premises would, moreover, result in the degradation of land, and the inhalation of asbestos fibres could pose a real and potentially fatal risk to human health.

41. I agree with the EPA’s characterisation of the degree of harm that the commission of the offences caused. The introduction of any amount of asbestos to the environment poses an unacceptable risk to human health. This is reflected in the POEOA which imposes higher penalties in instances where an offence involves asbestos waste. The risk is amplified when non-friable asbestos is damaged, which was a real risk given that the premises contained stockpiles of heavy waste.

42. I find that there was potential and actual harm caused to the environment by the commission of the offences.

Practical Measures to Prevent, Control, Abate or Mitigate the Harm (s 241(1)(b) of the POEOA)

43. El Masri conceded that he could have made inquiries with the owner of the source site and that he could have inspected the material prior to arranging its transport and deposition.

The Harm Was Reasonably Foreseeable (s 241(1)(c) of the POEOA)

44. El Masri submitted that there was no evidence to suggest that he knew of the nature of the waste that was collected from the source site which was subsequently deposited at the premises. However, he nevertheless conceded that had he obtained an appropriate waste classification report, the harm could have been avoided. I find that harm was therefore reasonably foreseeable.

Control Over the Causes of the Commission of the Offences (s 241(1)(d) of the POEOA)

45. El Masri accepted that he had complete control over the subcontractors who collected the material from the source site and deposited it at the premises.

46. El Masri submitted, however, that he did not have control over the content of the demolition and excavation of materials from the source site. Rather, CivilCo bore the onus of arranging a waste classification report before the material was removed and it did not do so.

47. That CivilCo had no prior waste classification report does not vitiate the degree of control that El Masri had in the transport and disposal of the waste. El Masri clearly directed the drivers of the trucks to attend the source site, to collect the waste and to deposit it. It was this conduct which caused the commission of the offences. I therefore find that he had complete control over the causes of the commission of the offences.

Presence of Asbestos in the Environment (s 241(1)(f) of the POEOA)

48. In Environment Protection Authority v Mouawad (No 2) [2020] NSWLEC 166, Pain J held that s 241(1)(f) of the POEOA should not be applied retrospectively to offences which were committed prior to its commencement on 20 December 2019 (at [28]). In the present case the three samples taken from a stockpile on the premises on 22 August 2019 tested positive for chrysotile asbestos prior to s 241(1)(f) having been introduced into s 241(1) of the POEOA.

49. While the presence of asbestos waste can nevertheless be considered as an aspect of environmental harm under s 241(1)(a) of the POEOA, however it, cannot be taken into account as an aggravating factor.

Previous Conviction (s 21A(2)(d) of the CSPA)

50. El Masri was convicted of an offence against s 211(2) of the POEOA relating to the publication of false and misleading material to obtain an advantage between 26 July and 3 August 2020. This offence occurred after the offending conduct the subject of this appeal.

51. Offences committed after the date of the commission of the offence for which the offender stands for sentence may not be taken into account as an aggravating factor, but may be considered for the purpose of deciding whether the offender is deserving of leniency (Bingul v R [2009] NSWCCA 239 at [69]).

Offences Were Not Part of a Planned Criminal Activity (s 21A(2)(n) of the CSPA)

52. The EPA submitted that El Masri’s offending conduct was part of an organised criminal activity with Arja, the lessor and occupier of the premises.

53. Arja was convicted of three offences against the POEOA, namely, for carrying out an unlicensed scheduled activity (s 48(2)), failing to comply with a prevention notice (s 97), and polluting land (s 142A(1)) in relation to activities conducted at the premises between July and December 2019.

54. Cross-examination revealed that El Masri had an existing relationship with Arja and that he had been to the premises before the commission of the offences (T31:18-33):

Q. Mr El Masri, before the lunch break you had said that you had worked with Mr Arja before? You have to say yes or no?

A. Yeah. Mr Arja is a family friend. Always we talk every day. Every day and night we have a visit between each other.

Q. Yes, and--

A. A family cousin. You can say family cousin.

Q. So, my question was you had said that you had worked with him before; is that correct?

A. Work, a lot of work. Not only this situation exactly, of cars, we were buying cars, selling cars. A lot of thing between us.

Q. You said as well, Mr El Masri, that you had been to the property, that is 490 Twelfth Avenue, Rossmore before that day of 22 August 2019?

A. Yeah, I been before, yes.

55. The extent of Arja’s involvement in the commission of the offences the subject of this appeal was not put to El Masri during cross-examination.

56. The EPA invited the Court to draw inferences with respect to the planning of the criminal activity with Arja from the following facts:

(a) the admission by El Masri that Arja was present on the day that the offences the subject of this appeal were committed; (b) the admission by El Masri that he was responsible for the three trucks which transported the waste. The registration of those trucks (CM90UO, CE32VG and CK54DO) corresponded with the registration of trucks that were involved in the Arja proceedings concerning the same premises; and (c) text messages exchanged between El Masri and Arja (which are not necessary to repeat in full).

57. This evidence does not satisfy the Court to the criminal standard that the offences were part of any planned or organised criminal activity between El Masri and Arja. As the wording of s 21A(2)(n) of the CSPA makes plain, the provision is only engaged when the offence is part of a “more extensive criminal undertaking” (Fahs v R [2007] NSWCCA 26 at [21] and Williams v R [2010] NSWCCA 15 at [19]-[20], as applied in Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd (No 2) [2025] NSWLEC 88 at [47]). What is required is “more than simply that the offence was planned” (Fahs at [21]). I am not satisfied beyond reasonable doubt that the conduct referred to above and relied upon by the EPA went beyond Arja being present at the premises when the offending took place. This is not sufficient.

Conclusion on the Objective Seriousness of the Offences

58. Having regard to the circumstances above, the Court finds that the offences were moderately objectively serious, albeit at the lower end.

Subjective Circumstances

59. A proportionate sentence requires the Court to take into account any mitigating factors that are personal to El Masri (s 21A(3) of the CSPA).

Good Prospects of Rehabilitation (s 21A(3)(h) of the CSPA)

60. El Masri relied upon his voluntary interview with EPA officers and his admission that he exercised control over the trucks as evidence of his good prospects of rehabilitation.

61. He further submitted that at the time that the offences were committed, he had no previous history of environmental offences and had been engaged in the demolition and excavation industry in 2018.

62. In the absence of any evidence or submission to the contrary, I accept that El Masri has good prospects of rehabilitation.

Remorse Shown by El Masri (s 21A(3)(i) of the CSPA)

63. The Court considers remorse shown by the offender to be a mitigating factor only if the offender has provided evidence that they have accepted responsibility for their actions, and that the offender has acknowledged any injury, loss or damage caused by their actions (s 21A(3)(i) of the CSPA).

64. El Masri deposed to the following as evidence of his remorse:

15. As soon as I arrived at the site, I co-operated with the EPA officer and confirmed that the three trucks were mine. I also participated in a voluntary interview with the EPA officer.

…

17. I am truly sorry for the offence. I deeply regret it and will do everything I can to make sure it does not happen again.

…

38. I don’t make any excuses for the offending. I just ask the Court to please take into account my financial situation and if at all possible, reduce the fine.

65. El Masri was not cross-examined on this evidence. The EPA nevertheless submitted that the apology provided by El Masri was cursory given that there was no expression in his affidavit acknowledging the harm caused by the commission of the offences.

66. I am satisfied that El Masri’s expression of remorse satisfies the criteria in s 21A(3)(i) of the CSPA and amounts to a factor in mitigation.

Guilty Pleas (s 21A(3)(k) of the CSPA)

67. An early plea of guilty has utilitarian value to the criminal justice system and entitles an offender to a maximum discount of 25% (R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]). What is regarded as an early plea will vary in the circumstances of the case (Thomson at [160(iii)]).

68. El Masri entered pleas of guilty in relation to both offences on the first day of the liability hearing.

69. El Masri accepted that while the pleas were not entered at the earliest opportunity, they nevertheless had some utilitarian value in that a hearing of liability was avoided, with its attendant costs (T8:10-15).

70. I agree. I find that El Masri is entitled to a discount of 10% for the utilitarian value of his pleas.

El Masri Has Limited Capacity to Pay a Fine

71. Pursuant to s 6 of the Fines Act 1996, the Court is required to consider El Masri’s financial means in the exercise of its discretion to fix a monetary penalty.

72. Section 6 of the Fines Act places the onus upon El Masri to prove that he is unable to pay any monetary penalty imposed by the Court. To discharge this burden El Masri must provide financial information to the Court which is reasonably and practically available to him demonstrating that he is impecunious (see Environment Protection Authority v Albiston [2020] NSWLEC 80 at [183]-[184]).

73. In his affidavit El Masri deposed to the following, namely, that:

(a) he is a truck driver with an income that on average varies between $1,000 to $1,500 per week; (b) he does not own any real estate and has a vehicle worth $4,000; (c) he pays $500 per week in child support, in addition to other expenses; (d) he is subject to a payment plan for a fine of $30,000 and an order to pay costs of $10,000, which he will pay off by 27 November 2030; (e) he has a credit card debt in the sum of $6,000; and (f) his company owes the Australian Taxation Office $24,700 for the 2023-2024 financial year.

74. El Masri further submitted that the Court should consider the costs that he has incurred to date in the proceedings, including:

(a) the prosecutor’s costs ordered in the Local Court in the amount of $85,000; (b) the investigation costs (or “expenses”) ordered in the Local Court in the amount of $600; (c) the costs of compliance with the publication order ordered in the Local Court in the sum of $3,245; (d) Local Court costs in the sum of $1,200; (e) filing fees for the appeal in this Court in the amount of $2,358; and (f) legal costs in the amount of $35,000 (which do not include the costs of the appeals).

75. Therefore, not including the costs of the appeal, El Masri is liable for $127,403 in costs, in addition any fine that may be imposed by the Court.

76. The EPA submitted that the financial evidence provided by El Masri was incomplete and could not be relied upon. This was because, during his cross-examination El Masri admitted that:

(a) he was the sole shareholder of Mazz Civil (T08:43); (b) he was the signatory of Mazz Civil’s bank account (T09:03-08); (c) the net income of Mazz Civil according to its 2023-2024 tax return was $98,803 (T14:33-38); (d) he had received several payments from Royal Lion, a company that was registered in his ex-wife’s name (T14:46-16:10); (e) no evidence was provided to the Court as to the assets owned by Mazz Civil; (f) he omitted to state in his affidavit that he was the majority shareholder of Mazz Civil (T08:43); and (g) in his 2024-2025 tax return he had stated that his spouse, from whom he was separated at the time, had zero taxable income (T23:07-24).

77. While there were multiple opaque sums credited to both El Masri’s personal and business accounts, incomplete financial information was provided, and it could be inferred that he was claiming a taxable benefit in respect of his former wife to which he may not be entitled, on any view of the evidence, the financial statements annexed to the El Masri affidavit indicate that El Masri is not a man of substantial means.

78. The Court is satisfied on the evidence before it that El Masri has limited capacity to pay a substantial monetary penalty and it takes this fact into account.

General and Specific Deterrence

79. The Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and makes El Masri accountable for his unlawful actions. One of the purposes of imposing a sentence is to prevent crime by deterring the offender, and other persons, from committing similar offences (s 3A(b) of the CSPA). In this sense, the Court is required to consider both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569 per Brennan J).

80. General deterrence is essential “to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences” (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188]).

81. I accept that embedded in the determination of the appropriate sentence to be imposed on El Masri is an element of general deterrence to ensure that persons operating in the waste industry take the measures necessary to avoid unlawfully transporting and depositing asbestos waste.

82. Specific deterrence can catalyse rehabilitation so that an offender takes the requisite steps to prevent further offending (Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 at [48]).

83. El Masri submitted that the protracted nature of the proceedings and the concomitant costs that he has incurred have significantly deterred him from further offending.

84. The Court must nevertheless impose a sentence that achieves the purposes of denouncing the conduct the subject of the offence and making El Masri accountable for his actions. I find that specific deterrence has a role to play in this sentence appeal, especially given his continued employment in the waste industry.

Even-Handedness

85. The task of a sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 106). However, care must be taken in achieving consistency. There is difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365). The sentence imposed in a single case does not demonstrate the limits of a sentencing court’s discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).

86. Neither party furnished the Court with comparable cases. The Court nevertheless considered the following authorities in respect of unlawful transporting of waste offences:

(a) in Environment Protection Authority v Mouawad (also known as Isaac) (No 4) [2023] NSWLEC 76, Mouawad pleaded guilty to offences against ss 142A(1) and 143(1) of the POEOA for causing 1,399 truckloads of fill to be brought and placed in a stockpile of which 20,000 tonnes were asbestos waste. Mouawad’s state of mind was one of recklessness. The offences were in the medium to high range of objective seriousness having regard to the volume of fill transported, the conduct occurring over a period of seven months, the nature of the waste, namely, asbestos, the significant planning and organisation in committing the offences, the foreseeable harm, and the offences having been committed for financial gain. Mouawad’s prior criminal offending was an aggravating factor, and he had a propensity to reoffend and had failed to demonstrate remorse. A discount of 10 percent was applied for the pleas of guilty entered. Mouawad was ordered to pay a total monetary penalty in the sum of $189,000, the prosecutor’s investigation costs of the proceedings in the amount of $33,647, and professional costs in an amount as agreed or assessed; (b) in Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57, Abbas pleaded guilty to three offences against ss 142A(1), 143(1) and 144(1) of the POEOA for causing about 21,990 tonnes of building waste, that included asbestos, to be brought onto a property adjacent to a flood zone. While Abbas intended for material to be brought onto the property, it was not established that the commission of the land degradation offence was committed recklessly or negligently. The offences occasioned significant actual harm to vegetation and were found to be in the low-to-mid range of the medium range of objective seriousness. Abbas’s late pleas of guilty attracted a discount of 15%. His expression of remorse and willingness to remediate were accepted as mitigating factors subject to a lack of evidence of any remedial action having been taken. Abbas was fined $100,000, ordered to pay the prosecutor’s professional costs and investigation costs of $80,157.24, and a publication order was made; and (c) in Environment Protection Authority v Laison [2015] NSWLEC 89, Laison pleaded guilty to an offence against s 143(1) of the POEOA relating to the transportation of soil that included asbestos, as part of a business arrangement. The offence was at the high end of the medium range of objective seriousness given that it was carried out deliberately and for financial benefit by Laison, with knowledge that the waste contained asbestos. Laison’s plea of guilty entered on the first day of the hearing warranted a 10% reduction in penalty. Laison was fined $63,000 and ordered to pay the costs of the prosecution in the amount of $40,000.

87. While none of the above cases are truly similar to the facts of the present appeals, they provide some assistance to the Court in determining the appropriate penalty to be imposed.

Parity

88. The parity principle is concerned with sentencing consistency and equality before the law (Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [28]). Sentencing disparity imposed on co-offenders breaches the parity principle (Green at [28]). Because the principle is governed by substance rather than by form, it applies not only to co-offenders but also to persons involved in the same criminal enterprise (Green at [30] and Elias v The Queen (2013) 248 CLR 483 at [30]).

89. In Jindalee Road Wines Pty Ltd v Natural Access Regulator; Littore v Natural Resources Access Regulator [2025] NSWCCA 215 the Court of Criminal Appeal discussed the parity principles as follows (at [175] and [177]):

175 It is well recognised that when sentencing co-offenders there should not be a marked disparity between the sentences imposed so as to give rise to a justifiable sense of grievance (Postiglione at 301-302 (per Dawson and Gaudron JJ), 309 (per McHugh J), 323 (per Gummow J), 338 (per Kirby J); see more recently, Mohr v R [2024] NSWCCA 197 at [14]-[24] (per Bell CJ, Davies and Wright JJ agreeing)).

…

177 In Green v The Queen*; Quinn v The Queen* (2011) 244 CLR 462; [2011] HCA 49, the Court (per French CJ, Crennan and Kiefel JJ) at [31] cited Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, and observed:

“…The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.” (footnotes omitted)

90. El Masri submitted that the difference in the quantum of monetary penalties imposed on Arja for essentially the same offences gives rise to a justifiable sense of grievance.

91. Arja was convicted of three offences against the POEOA, which included accepting 7,800 tonnes of waste that contained asbestos at the premises. El Masri submitted that his offending conduct was significantly less objectively serious compared to the volume of waste that Arja deposited (60 tonnes, or 0.77% of the total volume of waste deposited at the premises). He therefore argued that he ought to receive a lower monetary penalty than Arja, who was fined $60,000 for each of the three offences with which Arja was charged, for a total of $180,000.

92. The EPA submitted that the conduct of El Masri was distinguishable from Arja insofar as the latter was a passive actor as the occupier of the premises, who, unlike El Masri, organised the transport of materials to the premises. Arja merely permitted the trucks to enter the premises and deposit the waste.

93. The EPA further submitted that Arja was charged with different offences to that of El Masri, offences that carried different maximum penalties.

94. The parity principle does not only apply to ensure that there are similar punitive outcomes in cases that are relevantly similar, it also permits different outcomes in cases that are different in relevant respects (Wan v The Queen [2017] NSWCCA 261 at [49]).

95. The objective circumstances of El Masri and Arja and the maximum penalties for the offences that each was charged with are different. Unlike Arja, El Masri was responsible for the transportation and deposition of the waste, including the asbestos waste. Arja was merely the passive occupier of the site. Moreover, in the absence of the remarks on sentence for Arja, a comparison of their subjective circumstances cannot be made. Without this information, a meaningful application of the parity principle cannot be made due to the paucity of information required for the Court to consider the similarities and differences between co-offenders.

Totality

96. The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple offences as with the present proceedings (Mill v The Queen at [62] to [63]; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]; and Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]).

97. The principle was explained recently in Jindalee Road Wines (at [156]-[174]), which the Court adopts and applies without repetition.

98. The totality principle plainly applies to the charges given the circumstances of their commission described above.

Appropriate Sentence

99. Synthesising the objective seriousness of the commission of the offences and the mitigating subjective factors of El Masri, together with the purposes of sentencing and the penalties imposed in comparable cases. I find that the imposition of a monetary penalty is warranted for each offence as follows:

(a) in respect of the transport waste offence, a fine of $60,000; and (b) in respect of the waste disposal offence, a fine of $60,000.

100. These amounts must be discounted by 10% for the utilitarian value of the pleas of guilty by El Masri:

(a) in respect of the transport waste offence, a fine of $54,000; and (b) in respect of the waste disposal offence, a fine of $54,000.

101. After the application of the totality principle, the penalty for the waste disposal offence is further adjusted to a fine of $20,000.

102. This results in a total monetary penalty to be imposed in the sum of $74,000.

Moiety

103. The EPA seeks an order under s 122(2) of the Fines Act that half of any monetary penalty imposed upon El Masri be paid to it.

104. The order was not opposed by El Masri and I find that it is appropriate to direct that half of the monetary penalties of $54,000 and $20,000 are to be paid to the EPA (Kingfisher Properties Pty Limited v Northern Beaches Council [2025] NSWLEC 39 at [64]).

Publication Order

105. In its submissions on penalty, the EPA sought a publication order pursuant to s 250(1)(a) of the POEOA in the form annexed at annexure ‘A’ to this judgment. This was not opposed by El Masri.

106. In Environment Protection Authority v Crown in r**ight of New South Wales [2019] NSWLEC 178 Duggan J usefully set out the principles to be derived from the authorities in determining whether or not to make a publication order, which I respectfully adopt and apply without repetition (at [84]).

107. A publication order is made in addition to, rather than instead of, any monetary penalty to be imposed (Environment Protection Authority v Incitec Ltd [2003] NSWLEC 381; (2003) 131 LGERA 176 at [58]-[59]). Nevertheless, I have taken into account the cost of complying with this order (last estimated by El Masri to be approximately $3,400) in imposing a monetary penalty on El Masri.

108. I find that a publication order ought be made in light of the fact that the offending conduct demands general deterrence as an element of the penalty to be imposed.

Costs

109. An order for costs is a factor to consider in determining the overall punishment to be imposed (Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 at [100] and Barnes at [78] and [88]).

110. For the reasons that follow, El Masri’s appeal against the costs awarded by the court below is upheld in part. To the extent that costs remain payable by him, the Court takes their payment into account in determining the appropriate penalty to be imposed in these appeals.

Costs order in the Local Court

111. El Masri sought to set aside the costs order made by the Local Court in the event of a successful appeal. He argued that the prosecutor’s costs in the amount of $85,000 awarded in its favour in respect of the Local Court proceedings were not just and reasonable in the circumstances, as required by s 215(1)(a) of the Criminal Procedure Act 1986 (“CPA”). Furthermore, he submitted that he ought not be liable for the EPA’s investigation costs which he claimed totalled $26,149, because they were not “professional costs” as defined in the CPA and the Local Court had no power to order them.

112. As stated above, attached to the Ojerholm affidavit was a bill of costs from the EPA in relation to the proceedings in the Local Court. The itemised amounts that comprised the total professional costs included costs for “Investigation”, “Commencement”, “First defended hearing – 2023/2024”, “First sentence hearing – 2024”, “Second defended hearing – 2025”, “Second sentence hearing – 2025” and “Court attendance for sentence hearing”.

Does s 215 of the CPA apply to an appeal in Class 6 of the Court’s jurisdiction?

113. El Masri submitted that s 215 of the CPA applies to Class 6 appeals in this Court. Section 215(1)(a) of the CPA states as follows:

215 When professional costs may be awarded to prosecutor

(1) A court may at the end of summary proceedings order that the accused person pay the following costs to the registrar of the court, for payment to the prosecutor, if the accused person is convicted or an order is made against the accused person—

(a) such professional costs as the court considers just and reasonable,

114. Accordingly, any costs award must be “just and reasonable” in the exercise of the Court's discretion to award costs in this appeal.

115. Section 71(1) and (2) of the CARA provides that:

71 Variation of sentences of Local Court

(1) An appeal court may not vary a sentence so that the sentence as varied could not have been imposed by the Local Court.

(2) An appeal court may not make an order or impose a sentence that could not have been made or imposed by the Local Court.

116. El Masri contended that as a consequence of the application of s 71 of the CARA and s 215(1)(a) of the CPA, the Court must assess the costs below in conformity with the power of the Local Court. The power of the Court to award costs pursuant to s 257G of the CPA is only exercisable in the summary jurisdiction of, he submitted, the “Supreme Court and other higher courts”, which do not apply to the Land and Environment Court exercising its Class 6 appellate jurisdiction.

117. Therefore, because the Local Court could only exercise its discretion to award costs if to do so was “just and reasonable”, the same discretionary test applied in respect of this Court on appeal in relation to the costs ordered by the primary court.

118. El Masri argued that the costs claimed by the EPA in the Court below were not “just and reasonable” because the bill of costs did not itemise the hours of work undertaken by each employee of the EPA, and moreover, because the hourly rates of the legal employees of the EPA (ranging from legal graduate to manager) were unreasonable compared to the rates set by the NSW Attorney-General for government departments and agencies engaging solicitors. In this context El Masri relied upon various documents, including the Crown Employees (Public Sector – Salaries 2024) Award and the Attorney General’s rates for legal representation, to submit that the legal costs claimed by the EPA were excessive.

119. Even assuming that s 215 of the CPA governs the current appeal against the costs awarded below, there are several reasons, subject to one exception, why an order that El Masri pay the costs of the EPA of the proceedings at first instance, notwithstanding his success in these appeals, is just and reasonable:

(a) first, El Masri neither cross-examined Ojerholm as to the accuracy of the bill of costs or the reasonableness of the charge out rates of the solicitors, nor did he seek the production of any underlying documents. In the absence of any such challenge, the Court accepts that the bill of costs itemises the costs that the EPA claims that it legitimately incurred in respect of the matter and in respect of which it should be recompensed; (b) second, the status of the documents that El Masri relied upon to establish the excessive quantum of the legal costs incurred by the EPA were unclear, especially in relation to their application to the EPA; (c) third, and importantly, it must be recalled that El Masri did not appear at the first hearing in the court below and did not plead guilty to the charges until the first day of the second hearing, when most of the preparation had already been undertaken and the concomitant legal costs had already been accrued; and (d) fourth, the EPA’s costs of $85,000 ordered by the Local Court were agreed to by the parties in that Court. That sum represented a reasonable discount on the maximum amount of $124,859 (excluding the costs of the annulment application filed by El Masri) calculated in the bill of costs as the actual quantum of the prosecutor’s costs.

120. The exception referred to above, is the submission by El Masri that the investigation costs incurred by the EPA prior to the charges being laid were not “professional costs” as defined by s 211 of the CPA, and therefore, ought to be excluded from any award of costs. Having regard to the definition of “professional costs” in the CPA, I agree.

121. The term “professional costs” is defined in s 211 of the CPA to mean:

professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court.

122. In my view, the definition of “professional costs”, while sufficiently broad that it encompasses the EPA’s investigation costs as “disbursements”, contains a temporal limitation with respect to the costs incurred prior to the proceedings having been commenced by the EPA (“in respect of proceedings before a court”, emphasis added). Put another way, it does not include any investigation costs prior to the proceedings having been initiated in the Local Court. This amounted to $26,149 of the $124,859 in costs for which El Masri ought not be liable.

123. Deducting the investigation costs from the itemised bill of costs, would result in legal costs in the sum of $98,710. However, as noted above, the legal costs payable as agreed between the parties was in the amount of $85,000. It is not known if this included the impugned investigation costs.

124. Having regard to the circumstances of the appeal, including El Masri’s success, I propose to deduct the $26,149 in investigation costs from the $85,600 prosecutor’s costs awarded to the EPA below (which properly includes $600 of post commencement disbursements), resulting in a total costs award of $59,451 in favour of the EPA in respect of both appeals.

125. I therefore consider that payment by El Masri of the EPA’s professional costs in the amount of $59,451 in relation to the prosecution of both offences to be just and reasonable. Apportioned between the two charges, this results in a costs award of $29,725.50 in favour of the EPA in respect of each charge.

Section 215 of the CPA does not govern an appeal against the costs awarded below

126. In my view, however, s 215 of the CPA is not the preferable provision governing a review of the costs awarded in the Local Court in an appeal to this Court.

127. Having regard to s 71 of the CARA (quoted above), the term “varying a sentence” does not have the effect of limiting the powers of this Court on appeal in the manner described by El Masri.

128. “Varying a sentence” is inclusively defined in s 3(3) of the CARA as:

(3) In this Act, a reference to varying a sentence includes—

(a) a reference to varying the severity of the sentence, and

(b) a reference to setting aside the sentence and imposing some other sentence of a more or less severe nature, and

(c) a reference to varying or revoking a condition of, or imposing a new condition on, an intensive correction order, community correction order or conditional release order.

129. The word “sentence” is defined in s 3 of the CARA. In relation to orders for costs, “sentence” is relevantly defined in sub-paragraph (e) to include an order for costs:

(e) any order for costs made by the Local Court against a person in connection with summary proceedings taken against the person,

130. Section 49(2) and (4) of the CARA expressly empowers this Court to make such orders as to costs as it thinks just. This includes the costs awarded at first instance:

49 Miscellaneous powers

(2) In determining an appeal, the Land and Environment Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings.

…

(4) Subject to section 70, the Land and Environment Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.

131. For completeness, it should be noted that s 70 has no application in the present appeal, directed, as it is, to the limits on costs awards against a public prosecutor.

132. The Court repeats the reasons provided above at [119] to [124]. To reiterate, notwithstanding El Masri’s success on appeal, the guilty verdict was not disturbed, and therefore, the costs incurred by the EPA (twice, given El Masri’s failure to appear at the first hearing) in obtaining a verdict, even if entered by El Masri, are compensable. Pursuant to s 49(2) of the CARA, El Masri must pay the EPA’s costs in the court below in the sum of $59,451.

Costs of the appeals

133. Because El Masri has succeeded in his appeals the appropriate costs order is that each party is to pay their own costs of the appeals.

Orders

134. In conformity with the reasons given above, the Court makes the following orders:

In matter 307710 of 2025 (transport waste offence)

(1) the appeal is allowed;

(2) the order imposing a fine of $76,500 on Maher El Masri by the Local Court on 11 July 2025 is set aside and in lieu thereof Maher El Masri is fined $54,000;

(3) the order for costs made by the Local Court on 11 July 2025 in the sum of $42,500 is set aside and in lieu thereof Maher El Masri is to pay the Environment Protection Authority’s professional costs in the sum of $29,725.50;

In matter 307711 of 2025 **(**waste disposal offence)

(4) the appeal is allowed;

(5) the order imposing a fine of $76,500 on Maher El Masri by the Local Court on 11 July 2025 is set aside and in lieu thereof Maher El Masri is fined $20,000;

(6) the order for costs made by the Local Court on 11 July 2025 in the sum of $42,500 is set aside and in lieu thereof Maher El Masri is to pay the Environment Protection Authority’s professional costs in the sum of $29,725.50;

In matters 307710 of 2025 and 307711 of 2025

(7) pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, Maher El Masri is, at his own expense, to cause a notice in the form of annexure ‘A’ to be placed within the first five pages of the next available magazine and online edition of Inside Waste publication at a minimum size of a quarter of a page;

(8) pursuant to s 122(2) of the Fines Act 1996 half of the monetary penalty imposed in each appeal is to be paid to the Environment Protection Authority; and

(9) no order as to the costs of the appeals to this Court is made, with the intention that each party is to pay their own costs of the appeals.

Annexure A – Inside Waste notice

| Maher El Masri is Convicted of Two Asbestos Waste Offences On 11 July 2025 Maher El Masri was convicted of two offences against the Protection of the Environment Operations Act 1997 (“the Act”) for: (1) causing the transportation of waste, including asbestos waste, to a place that could not lawfully be used as a waste facility for that waste, contrary to s 143(1)(a) of the Act; and (2) causing the disposal of asbestos waste off the site at which it was generated, contrary to s 144(1) of the Act. On 22 August 2019 Maher El Masri directed three trucks to collect contaminated soil from a building site in Campsie and to dump it at residential premises at 490 Twelfth Ave, Rossmore NSW. There was no consent or authority to use the Rossmore property for the purposes of depositing waste. Maher El Masri was prosecuted by the Environment Protection Authority (“the EPA”). The dangers of asbestos are well known to the community. The offences caused harm to the environment including the degradation of land. On 28 January 2026 El Masri was ordered to pay a total monetary penalty of $74,000, the EPA’s professional costs of the proceedings in the Local Court in the amount of $59,451, and to publish this notice at his own expense. |

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Amendments

29 January 2026

Catchwords - 'undisturbed' amended to 'varied'

29 January 2026

Paragraph 3 - acronym of POEOA inserted Paragraph 4 - acronym of POEOA removed Paragraph 5 - acronym of EPA inserted Paragraph 10 - acronym of EPA removed

02 February 2026

Paragraph 91 - total of three fines updated from $120,000 to $180,000

02 February 2026

Paragraph 134 - 'In matter 243051 of 2022 (transport waste offence)' amended to 'In matter 307710 of 2025 (transport waste offence)', 'In matter 243044 of 2022 (waste disposal offence)' amended to 'In matter 307711 of 2025 (transport waste offence)' and 'In matters 243051 of 2022 and 243044 of 2022' amended to 'In matters 307710 of 2025 and 307711 of 2025' to reflect the Land and Environment Court proceeding numbers not the Local Court proceeding numbers.