The Hills Shire Council v Suciu

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Choices Manufacturing Pty Ltd v Fairfield City Council [2009] NSWLEC 72 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 Environment Protection Authority v Gardner [1997] NSWLEC 169 Environment Protection Authority v Maraline Pty Ltd [1998] NSWLEC 198 Environment Protection Authority v Maraline Pty Ltd; Environment Protection Authority v Suciu (1998) 98 LGERA 330 Environment Protection Authority v Nechakoski (2002) 120 LGERA 426 Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Limited [2005] NSWLEC 175 Environment Protection Authority v Peters [2006] NSWLEC 465 Garrett v Freeman (No 5) (2009) 164 LGERA 287 Garrett v Williams (2006) 160 LGERA 115 CASES CITED: Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 Hoare v The Queen (1989) 167 CLR 348 Markarian v The Queen (2005) 228 CLR 357 Pittwater Council v Scahill (2009) 165 LGERA 289 R v Boney (unreported, NSWCCA, 22 July 1991) R v Dodd (1991) 57 A Crim R 349 R v Hewitt [2007] NSWCCA 353 R v Nichols (1991) 57 A Crim R 391 The Hills Shire Council v Suciu (No 2) [2009] NSWLEC 168 The Hills Shire Council v Suciu [2009] NSWLEC 145 Veen v The Queen (1979) 143 CLR 458 Veen v The Queen (No 2) (1988) 164 CLR 465 Winters v Cross [1976] 1 NSWLR 616

DATES OF HEARING: 21, 22 September, 16 and 30 October 2009

PROSECUTOR Mr D Buchanan SC with Mr M Fraser SOLICITORS The Hills Shire Council LEGAL REPRESENTATIVES: DEFENDANT Mr C Carter (on 22 September and 16 and 30 October) SOLICITORS Nyman Gibson Stewart

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

50085 of 2008 The Hills Shire Council v Petre Suciu (No 3)

EX TEMPORE JUDGMENT Introduction 1 HER HONOUR: On 31 August 2009, the Court found Mr Petre Suciu guilty of the offence of contravening s 143 of the Protection of the Environment Operations Act 1997 ("POEOA"), namely, the unlawful transportation of waste (The Hills Shire Council v Suciu [2009] NSWLEC 145). 2 This judgment concerns the sentence to be imposed consequent upon that finding of guilt. 3 For the reasons set out below, the Court fines Mr Suciu the amount of $80,000. Proceedings are Ex Parte Against the Defendant 4 Mr Suciu was not present before the Court for the sentencing hearing. The matter was called three times outside the Court but there was no appearance by him. 5 This was not, however, an impediment to the Court determining sentence in his absence (see Environment Protection Authority v Peters [2006] NSWLEC 465 at [3] of the Annexure). 6 Because Mr Suciu was also not before the Court at the hearing determining his liability for the offence, at that hearing the Court made the following relevant orders: (1) matter set down for sentence on 21 September 2009; and

(2) the prosecutor to take the following steps for the purpose of notifying the defendant of these orders: (i) send a copy of the judgment and these orders (including the order setting the matter down for hearing) to Nyman Gibson Stewart, solicitors;

(ii) send a copy of the judgment and these orders (including the order setting the matter down for sentence) to the liquidator of Maraline Pty Limited; and

(iii) have a process server attend Mr Suciu's last known residential address as notified or known to the prosecutor and attempt to serve Mr Suciu, and if he is not in attendance to place a copy of the judgment and orders at the front door of that address. 7 At the hearing on sentence the council tendered evidence demonstrating that, in my view, sufficient steps were undertaken by it to attempt to inform the defendant that the sentencing hearing was to take place at 10.00am on 21 September 2009. This evidence consisted of: (a) two affidavits of Mr Matthew Pearce, the corporate lawyer for the council, sworn on 8 and 18 September 2009 respectively (together with exhibits), proving that a copy of the orders made by the Court on the last occasion, together with a copy of the judgment, were served on the liquidator for Maraline Pty Limited (Moore Stephens Accountants) and the solicitor on the record for Mr Suciu at the time of the conviction hearing; and (b) an affidavit of a process server, Mr Andrew Jones, sworn on 18 September 2009, proving that a copy of the judgment together with a letter from the council's solicitors stating the date of today's hearing was served on the last known residential address of Mr Suciu. 8 Based on this evidence the hearing on sentence proceeded in Mr Suciu's absence. Events of 22 September 2009 9 Delivery of this ex tempore judgment was originally scheduled to take place on the morning of 22 September 2009. At 9.15am that morning Mr Craig Carter appeared for Mr Suciu, instructed by Nyman Gibson Stewart, solicitors. The matter was adjourned until 4.00pm to enable Mr Carter to seek instructions. That afternoon, pursuant to an urgent oral application by Mr Carter, an adjournment of the delivery of the sentencing judgment was granted by me for the reasons given in The Hills Shire Council v Suciu (No 2) [2009] NSWLEC 168 and consequential orders were made. Events of 16 October 2009 10 An application for a stay of this judgment was filed by the defendant on 16 October 2009. Accompanying the application was an affidavit of Mr Philip Stewart of Nyman Gibson Stewart, sworn 16 October 2009. 11 The affidavit stated that: (a) a Notice of Ceasing to Act had in fact been filed in relation to these proceedings. Because a composite Notice had been filed in relation to various related proceedings rather than filing a separate notice for each individual matter, no Notice of Ceasing to Act was recorded as having been filed in these proceedings; and

(b) on the basis of conversations with Mr Suciu and having received what were purportedly medical certificates describing Mr Suciu's incapacitation, that he believed that more time was required to obtain instructions from him. These instructions were to include: (i) the period of hospitalisation of Mr Suciu; (ii) whether the hospitalisation and recovery thereafter coincided with the hearing on 28 July 2009; and (iii) when it will be possible for Mr Suciu to return to Australia to contest any future hearing of the charges against him. 12 Several observations may be made about Mr Stewart's affidavit: (a) first, I now accept that a Notice of Ceasing to Act was filed in these proceedings on 13 July 2009 by Nyman Gibson Stewart prior to the hearing convicting Mr Suciu; and (b) second, notwithstanding the affidavit, there remained an absence of tangible, cogent and probably admissible, evidence before the Court that could properly ground an application to either set aside the judgment convicting the defendant handed down on 31 August 2009 or to further delay the handing down of the judgment on sentence. 13 Furthermore, after some discussion Mr Carter, again appearing on behalf of the defendant, agreed that as framed the application was defective and the relief sought would not in any event assist the defendant. 14 Consequently, the application was dismissed by consent with costs. Leave was given to the defendant to file and serve an application to set aside the judgment convicting him (the decision of 31 August 2009) by 4.00pm 29 October 2009. Events of 29 October 2009 15 On 29 October 2009 the defendant informed the Court by facsimile through his solicitors that he would "not be making further submissions in relation to this matter, and sentence can be passed tomorrow, 30 October 2009". Consideration of Sentence 16 In my reasons for decision with respect to conviction at [2009] NSWLEC 145, I set out the findings that I made beyond reasonable doubt with respect to the commission of the offence charged at paragraphs [21]-[56], [59], [78]-[94], [96], [98] and [103]-[109]. 17 I found that the defendant had deliberately transported and deposited "waste" to the quarry at the back of the property of Mr Norman Yates in circumstances where the dumping of such waste was contrary to the instructions of Mr Yates, where the defendant took advantage of Mr Yates' absence to dump some of the unclean fill and where the defendant sought to lay the blame at the feet of an innocent third party, namely, Mr Jourieh. Purpose of Sentencing 18 Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") provides that the purposes of imposing a sentence on an offender include: 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. 19 The sentence of the Court is a public denunciation of the conduct of the offender. It must ensure that the offender is held accountable for his or her actions and is adequately punished. 20 The sentence must also deter the offender from committing a similar offence in the future (Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 at [8]). Moreover, the sentence of the Court needs to operate as a "powerful factor" in preventing the commission of similar offences by persons who may be tempted to do so (Rae at [9]). Approach to Sentencing 21 It is a basic principle of sentencing law that the sentence imposed by the Court for an offence must both reflect and be proportionate to the objective circumstances of the offence and the personal or subjective circumstances of the appellant (Veen v The Queen (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) (1988) 164 CLR 465 at 472). Objective Gravity of the Offence 22 The primary factor to consider in determining sentence is the objective gravity or seriousness of the offence. It 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) at 472, 485-486, 490-491 and 496; Hoare v The Queen (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; R v Nichols (1991) 57 A Crim R 391 at 395; Garrett v Freeman (No 5) (2009) 164 LGERA 287 at [51] and Pittwater Council v Scahill (2009) 165 LGERA 289 at [50]). 23 In determining the objective gravity or seriousness of the offence, the circumstances of the offence to which the Court may have regard include (see Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [110], both cited in Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 at [36]-[38]): (a) the maximum penalty for the offence;

(b) the objective harmfulness of the defendant's actions;

(c) the defendant's state of mind in committing the offence;

(d) the defendant's reasons for committing the offence;

(e) the foreseeability of risk of harm to the environment;

(f) the practical measures to avoid harm to the environment; and

(g) the defendant's control over the causes of harm to the environment. 24 Section 21A of the CSPA further identifies matters which the Court must take into account when sentencing, including those in aggravation (s 21A(2)) and those in mitigation (s 21A(3)). The Maximum Penalty 25 The maximum statutory penalty is of considerable significance in determining the objective gravity of the offence. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 it was stated that: the maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence ... 26 In Markarian v The Queen (2005) 228 CLR 357 at [31], the High Court unequivocally referred to the need to have regard to the maximum penalty as a legislative "yardstick" to enable comparison between the worst possible case and that currently before the Court. 27 At the time the offences were committed, the maximum penalty for each offence under the POEOA was $120,000. This demonstrates the seriousness with which offences against the POEOA are viewed. Not the Worst Type of Case But Very Serious 28 The council submitted that this was not a case where the maximum penalty ought to be imposed because it was in the 'worst type of case category'. I agree. 29 However, I also agree with the prosecutor's submission that Mr Suciu's moral culpability is high and that he has committed a serious offence. This is because, when regard is had to the objects of the POEOA (s 3(d)(i), (ii) and (iia) of the POEOA), he acted in blatant disregard of them by creating a waste facility in circumstances where there was an identifiable risk of resulting harm to the environment, and possibly human safety, and in circumstances where he knew he did not have lawful authority to deposit the waste. Harm to the Environment 30 There is no question that Mr Suciu's conduct caused harm to the environment. 31 First, the relevant environment is a residential property zoned Rural (1)(c) under the Baulkham Hills Local Environmental Plan 2005 ("the LEP"). The objectives of this zoning are set out in the LEP. They are incompatible with the presence of a waste landfill. 32 Second, I take note of the fact that the waste was deposited in a catchment area and this created the potential for pollution of the creek below. 33 Third, as the evidence of Mr Jace Pearson, Mr Indra Jworchan and Mr John Xu all demonstrated: (a) the volume of the waste was substantial at approximately 3000 cubic metres;

(b) the existing fill was uncontrollable and not suitable as a foundation for any structure built above it; and

(c) the contents of the waste consisted of "abundant deleterious materials" which included concrete blocks, hardened concrete slurry, broken pipes, tiles, bricks, bitumen, scrap metal, plastic, rags and asbestos. 34 In particular, according to Mr Xu, the presence of the asbestos created a need for the site to be assessed and remediated either by on-site treatment or removal of the asbestos from the site. The estimated cost given to Mr Yates (according to his oral testimony) of the remediation is approximately $76,000. 35 It was Mr Xu's opinion that assessment and remediation of the land was additionally necessary to deal with the presence of bitumen and scrap metal in the landfill which could be sources of further potential contaminants by way of, for example, petroleum hydrocarbons and heavy metals. Mr Suciu's State of Mind 36 Mr Suciu's conduct was premeditated and deliberate. Further, based on the evidence the Court readily infers that Mr Suciu knew that transporting waste to Mr Yates' property:

(c) was unlawful as no permission was given by the council to deposit the waste at the property. 37 These inferences are drawn from the fact that:

(a) Mr Suciu was, by his own admission, in the waste disposal business and had considerable experience in that business;

(b) Mr Suciu effectively told Mr Yates that in order to rectify the situation, Mr Yates merely needed to get development consent from the council to level the site off;

(c) a similar statement was made by Mr Suciu to Mr Penney and Mr Drew in relation to the depositing of unclean fill at Mr Penney's property;

(d) Mr Suciu practiced deceit on Mr Yates to gain access to Mr Yates' property in order to dump the waste;

(e) Mr Suciu was similarly deceitful in gaining access to Mr Penney's property; and

(f) Mr Suciu had been convicted previously for offences relating to the giving of false or misleading information in response to a notice issued in relation to the disposal of demolition waste. The false or misleading information comprised a receipt from the licensee of a waste depot and a representation that it was the place to which the demolition waste had been taken (see Environment Protection Authority v Maraline Pty Ltd; Environment Protection Authority v Suciu (1998) 98 LGERA 330 and Environment Protection Authority v Maraline Pty Ltd [1998] NSWLEC 198). 38 In short, I find that beyond reasonable doubt Mr Suciu's conduct in depositing the waste on Mr Yates' property was intentionally carried out with knowledge of its illegality. This increases the objective seriousness of the offence. Aggravating Features of Mr Suciu's Conduct 39 Mr Suciu's conduct was aggravated by the dishonest and deceptive means he employed to dump the waste on Mr Yates' property. This included:

(a) misleading Mr Yates into believing that he would be receiving clean fill;

(b) entering Mr Yates' property when he was away and contrary to his instructions depositing not only fill, but dirty fill;

(c) continuing to deposit waste after being asked to cease doing so by Mr Yates;

(d) seeking to blame Mr Jourieh and his company for the depositing of the waste; and

(e) lying to the council when questioned about his conduct. 40 Dishonesty employed as a means of committing an environmental offence is a significant aggravating factor (Environment Protection Authority v Gardner [1997] NSWLEC 169). 41 It is this deceit and dishonesty that elevates, in my opinion, the conduct of Mr Suciu into that of planned criminal activity for the purpose of s 21A(2)(n) of the CSPA. In my view, the lengths to which Mr Suciu went to transport and deposit the waste on Mr Yates' property exceeded that which could ordinarily be expected. For an offence to be planned, it is not necessary that more than one person be involved (R v Hewitt [2007] NSWCCA 353 at [21]-[22]). 42 Mr Yates, now retired, gave oral evidence at the sentence hearing. Visibly upset, he stated that he did not have the money to pay for remediation. Mr Yates had planned to top dress the quarry and grass it as a feature to add to the value of the property. Clearly, this was now not possible. He stated that it had been the intention of himself and his wife to sell the property in order to move to the Hawkesbury River. The fact that the property is now contaminated has had a deleterious impact on the value of his property and thus on his future plans. A further adverse consequence of the depositing of the waste on his property is that he is now a respondent to class 4 proceedings in relation to the remediation of the contaminated land. 43 Mr Yates also told the Court of the considerable emotional and financial strain the commission of the offence has placed both upon himself and his family. He described the effects as "never ending" and that the events had created tension and conflict between him and his wife in what he described as an otherwise harmonious relationship. 44 I am therefore satisfied beyond reasonable doubt that the emotional harm, loss and damage which Mr Suciu caused by the commission of the offence was substantial insofar as Mr Yates is concerned. 45 Moreover, I accept the submission of the council that because of the estimated cost of remediation, because the landfill cannot be built upon and because Mr Suciu's whereabouts are presently not known with any certainty (although some evidence suggests that he may be in Peru), the likelihood of the environmental harm being mitigated in the near future is minimal. Thus the environmental harm is likely to be long-lasting. 46 Accordingly, there can be no doubt that the commission of the offence has resulted in actual harm to the environment and potential harm to health and safety of those coming in contact with the waste. The latter is an aggravating factor under s 21A(2)(i) of the CSPA. 47 Having said this, and while I am of the view that the environmental harm is substantial, I do not think it is sufficiently detrimental to be considered an aggravating factor in terms of s 21A(2)(g) of the CSPA. The extent of the environmental harm is, however, a factor to be taken into account under s 241(1)(a) of the POEOA. 48 It cannot be suggested that Mr Suciu did not have control over the work carried out on the site and therefore could not have taken practical measures to avoid the harm to the environment (s 241(1)(b) of the POEOA). He did. The evidence discloses that, as the controlling mind and will of Maraline, he had control over the works that gave rise to the offence at all times (s 241(1)(d) of the POEOA). 49 In order to avoid or mitigate the environmental harm caused by the offence Mr Suciu simply should not have committed it in the first place. 50 Likewise, it cannot be seriously suggested that Mr Suciu could not have reasonably foreseen that the offence committed would cause harm to the environment (s 241(1)(c) of the POEOA). 51 The final aggravating factors that the Court must take into account are: first, that the offence was undoubtedly committed for profit or, to use the language of s 21A(2)(0) of the CSPA, was "committed for financial gain", namely, to save his waste disposal business the cost of tip fees; and second, that Mr Suciu has a record of prior criminal activity (s 21A(2)(d) of the CSPA). This is a matter to which I will return. Conclusion on Objective Circumstances 52 Having regard to the environmental harm caused by the unlawful acts, the fact that the offences and their consequential environmental harm were foreseen, the fact that the conduct was deliberate, premeditated and procured by deceit and the fact that it was committed for reasons of expediency and commercial gain, means that the offence must be considered to be of high objective gravity. Subjective Circumstances of Mr Suciu 53 A proportionate sentence requires the Court to take into account any personal or mitigating factors present (Gittany at [144] and the authorities cited thereat). Mitigating Factors 54 There is no evidence of any mitigating factors that the Court ought to take into account (s 21A(3) of the CSPA). 55 For example, it cannot be said that Mr Suciu has good prospects of rehabilitation given that a similar type of scam was also perpetuated against Mr Penney. It would appear that the conduct the subject of the offence in question was not an isolated event (R v Boney, unreported, NSWCCA, 22 July 1991). Subjective Factors 56 The subjective circumstances of the defendant to be considered include: (a) any prior criminal record;

(d) any cooperation with regulatory authorities; and

(e) the financial means of the defendant. Prior Convictions 57 As referred to above, Mr Suciu (and Maraline) have a prior conviction for an environmental offence (s 21A(3)(e) of the CSPA and Gittany at [146]). 58 The prior offence is relevant for the purpose of determining whether Mr Suciu has been deterred by punishment previously imposed by the Court for committing environmental offences relating to waste disposal. 59 In Veen v R (No 2) the High Court stated (at 477): The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. 60 The facts of this offence make plain that the offence that Mr Suciu committed was not "an uncharacteristic aberration". Rather, by the commission of this offence Mr Suciu has clearly demonstrated a "continuing attitude of disobedience for the law". I agree with the council's submission that this indicates that a more severe penalty than might otherwise be imposed is warranted. Prior Good Character 61 Mr Suciu cannot be said to be a person of prior good character (s 21A(3)(f) of the CSPA). Plea of Guilty 62 There was no plea of guilty by Mr Suciu and therefore he is not entitled to any discount in this regard (ss 21A(3)(k) and 22 of the CSPA). Contrition and Remorse 63 Mr Suciu has not expressed any contrition or remorse for his conduct (s 21A(3)(i) of the CSPA). Cooperation with the Regulatory Authority 64 At no point did Mr Suciu cooperate with the council. To the contrary, he lied to it by seeking to implicate Mr Jourieh (ss 21A(3)(m) and 23(1) of the CSPA). Capacity to Pay Fines 65 Turning to the financial position of Mr Suciu, while there is evidence before the Court that Maraline is in liquidation, there is no evidence before the Court as to Mr Suciu's financial impecuniosity (see s 6 of the Fines Act 1996). As a consequence, there can be no submission that Mr Suciu does not have the capacity to pay any fine imposed on him by the Court. Conclusion as to Subjective Circumstances 66 The subjective circumstances of Mr Suciu do not mitigate the sentence that ought be imposed for the offence. Deterrence 67 In Gittany the Court stated the following applicable principles in relation to deterrence as a component of an appropriate penalty for the offences (at [188]-[190] and [192]): 188 In fixing the appropriate punishment for the offences, the Court needs to consider the purposes of sentences relevant to the offences in this case.

189 There is a need to ensure that the appellant is made accountable for its actions and is adequately punished for the offences it has committed. This required the Court to ensure that the punishment for each offence adequately reflects the objective seriousness of the offences, whilst also taking account of the subjective circumstances of the appellant.

190 There is a need to deter specifically the appellant from repeating the conduct that resulted in the commission of the offences, when the appellant carries out development in the future. The appellant needs to be told, by the Court's sentence, that breaches of the EPA Act, including by failing to carry out development consent, will be visited with significant financial consequences.

192 To achieve general deterrence, courts need to impose a penalty that not only acts as a warning to others but also makes it worthwhile that the cost of taking precautions to avoid committing the offence (such as by obtaining and complying with development consents be undertaken): Axer Pty Ltd v Environment Protection Authority at 359-360; Bentley v BGP Properties Pty Ltd at [139]-[141], [148]-[157]. 68 One of the purposes of the Court in imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences this is enshrined in s 3A(b) of the CSPA. 69 A person will not be deterred from committing environmental offences by the imposition of nominal fines (Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [140]). Equally, the sentence imposed by the Court must show the denunciation of the crime committed and take into account the moral outrage of the community (BGP at [143]). The community is entitled to expect that the Court will exercise its discretion to impose penalties commensurate with the community's views. 70 In the circumstances of the present case, the need to specifically deter Mr Suciu from repeating the conduct that resulted in the commission of the offence in the future is overwhelming. 71 There is also a need to ensure general deterrence in relation to other persons who may be tempted to engage in the transportation and dumping of waste without the necessary regulatory approval. As was recently stated by Sheahan J in Choices Manufacturing Pty Ltd v Fairfield City Council [2009] NSWLEC 72 at [21] "the public needs to be reminded that the planning regime is in place for good public purposes, and must be obeyed" (see also Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 367 and Garrett v Williams (2006) 160 LGERA 115 at [183]). 72 In Axer, Mahoney JA observed (at 359) that: The community has adopted a stern policy against pollution. The legislative scheme requires that proper, and strict, precautions be taken by those whose activities may cause proscribed pollution. … The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that is does not occur. Consistency in Sentencing 73 A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the courts for offences such as the offence in question (Gittany [179]-[183] and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701-702). 74 The proper approach is for the Court to look at (Gittany at [182]): 182 … "whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range": R v Morgan (1993) 70 A Crim R 368 at 371 and Capral Aluminium Ltd v Workcover Authority of NSW (2000) 49 NSWLR 610 at 641. 75 There are few unlawful waste transportation or disposal sentencing decisions that do not concern the disposal of sewage. However, the council was able to refer the Court to two decisions concerning the unlawful disposal of demolition waste: (a) first, in Environment Protection Authority v Nechakoski (2002) 120 LGERA 426 the defendant was convicted pursuant to a plea of guilty for the unlawful depositing of 5,288 tonnes of demolition waste in flood prone wetlands. There was actual and foreseeable harm to the environment. The defendant was of prior good character. The defendant had been charged with two offences due to the offences straddling the commencement of POEOA. Most of the waste was tipped under the Waste Minimisation and Management Act 1995 ("WMMA") regime (s 64(1), with a maximum penalty $60,000). The totality principle was applied. The fine imposed for the offence against that Act was $6,000. The fine imposed for the offence against the POEOA (same maximum as in 2002-2003) was $21,000 for the WMMA offence and $10,000 for the POEOA offence. The total fines imposed amounted to $37,000; and

(b) second, in Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Limited [2005] NSWLEC 175 pleas of guilty were entered by an individual and his company. The waste was demolition waste. The quantity was between 1,300 to 1,600 tonnes. The landfill was for purposes of constructing a cattle mound. It was constructed in an environmentally sensitive location within 40 m of the bank of a river in a flood prone area. Risk of environmental harm was clearly foreseeable. The defendants were contrite and had co-operated with the prosecution. Fines were imposed of $20,000 (maximum of $120,000 for an individual) and $40,000 (maximum of $250,000 for a corporation) respectively and a publication order was made against the corporation. 76 I accept the submission of the council that in the present case significant distinguishing factors include the fact that Mr Suciu is not contrite, has not cooperated with the prosecuting authority, is not of good character, has a prior criminal record and did not enter a guilty plea. Conclusion 77 Taking into account the purposes of sentencing, as well as the objective circumstances of the commission of the offence and the subjective circumstances of Mr Suciu, I have determined that the appropriate sentence for the commissions of the offence is a fine of $80,000. Further Orders: Remediation and Notification of Convictions Remediation 78 In the Further Amended Summons the Prosecutor sought an order under s 245 of the POEOA that Mr Suciu make good the environmental damage ("the remediation order"). 79 At the hearing on sentence the council applied instead for an order reserving liberty to restore the matter to the list if the actual whereabouts of Mr Suciu become known in order to renew its application for the remediation order. In all the circumstances of this case, this course seems the most prudent and I make such an order. Notification 80 The council also sought an order that the Registrar notify the New South Wales Police Force of the convictions both in these proceedings and in the earlier proceedings before the Court, the latter of which do not appear on Mr Suciu's criminal record. 81 The council directed the Court's attention to the decision of Winters v Cross [1976] 1 NSWLR 616 wherein the Court of Appeal upheld orders of a District Court judge directing the Clerk of Petty Sessions at Bourke to provide a copy of a transcript of evidence to the local press for publication. 82 While I can find no precedent for such an order being made by this Court in the past, and none was proferred by the prosecutor, equally I can find no prohibition on the Court's power to give an administrative direction to ensure notification of an accused's conviction. I am therefore inclined to make such an order. Costs 83 Finally, the council sought its costs pursuant to s 257B of the Criminal Procedure Act 1986. There is nothing remarkable about such an order. In the present case, however, it seeks costs fixed in the amount of $228,205. Even allowing for the complexity of this matter, these costs seem excessive. 84 The costs have been calculated pursuant to a bill of costs prepared and tendered by the council. On one reading of the bill, the council appear to claim costs on an indemnity basis. The bill not having been prepared by an independent costs assessor, I decline to make a costs order in the amount sought. Instead I make an order that Mr Suciu is to pay the council's costs of the proceedings as determined under s 257G of the Criminal Procedure Act. Orders 85 The Court orders are therefore:

(2) the Registrar of the Court is directed to notify the New South Wales Police Force of the conviction and penalty of Mr Suciu both in this matter and in Environment Protection Authority v Maraline Pty Ltd; Environment Protection Authority v Suciu (1998) 98 LGERA 330 and Environment Protection Authority v Maraline Pty Ltd [1998] NSWLEC 198;

(3) Mr Suciu is to pay the council's costs of the proceedings under s 257B of the Criminal Procedure Act 1986, as may be determined under s 257G of that Act;

(4) liberty to the council to restore the matter for the purpose of making an application under s 245 of the POEOA that Mr Suciu make good the environmental damage if Mr Suciu's actual whereabouts become known to it; and

(5) all exhibits to be returned. **********

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.