(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;