Environment Protection Authority v ACE Demolition & Excavation Pty (No 2)

[2023] NSWLEC 3

Land and Environment Court

New South Wales

Medium Neutral Citation:

Environment Protection Authority v ACE Demolition & Excavation Pty (No 2) [2023] NSWLEC 3

Hearing dates:

25, 26, 27, 28 and 29 July; 1, 2, 3 and 23 August 2022

Date of orders:

2 February 2023

Decision date:

02 February 2023

Jurisdiction:

Class 5

Before:

Moore J

Decision:

See orders at [274] to [278]

Catchwords:

SENTENCE ‑ Defendant charged with three offences pursuant to s 144AA(2) of the Protection of the Environment Operations Act 1997 (the POEO Act) for transmitting information concerning waste during the course of dealing with waste where the information was false or misleading in a material respect and the Defendant knew that it was false or misleading ‑ Defendant also charged with one offence pursuant to s 144AA(1) of the POEO Act of transmitting information concerning waste during the course of dealing with waste where that information was false or misleading in a material respect ‑ Defendant pleads guilty to all four charges after eight day trial ‑ charges against Defendant’s sole director withdrawn ‑ consideration of objective factors concerning the Defendant's offending conduct ‑ consideration of the Defendant's subjective factors ‑ appropriate starting penalties for each s 144AA(2) offence of $330,000 ‑ appropriate starting penalty for single offence under s 144AA(1) of $165,000 ‑ consideration of appropriate discount for guilty pleas ‑ guilty pleas made late but not so late as to disentitle Defendant to some discount for the utilitarian value of the pleas ‑ appropriate discount to be applied to each penalty of 10% ‑ consideration of totality and accumulation of penalties where offences arose from a single course of conduct ‑ appropriate to moderate the penalties for the second and subsequent offences ‑ Prosecutor seeks publication order ‑ Defendant opposes making of publication order ‑ appropriate to make publication order ‑ Prosecutor seeks moiety of penalties imposed ‑ moiety order not opposed by Defendant ‑ moiety of penalties ordered to be paid to the Prosecutor ‑ total penalty imposed on Defendant of $943,650

COSTS ‑ Prosecutor seeks order for costs ‑ order for costs not opposed by Defendant ‑ Defendant ordered to pay the Prosecutor's costs of the proceedings against the Defendant as agreed or assessed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22 and 32

Criminal Procedure Act 1986, ss 257B and 257G

Environmental Planning and Assessment Act 1979, Pt 4, Div 4.3, Div 4.15 and Div 4.17

Fines Act 1996, s 122

Protection of the Environment Operations Act 1997, ss 3, 144AA, 169C, 241, 250(1)(a) and 260

Protection of the Environment Operations (Waste) Regulation 2014

Evidence Act 1995, ss 128(7) and 128A(8)

Cases Cited:

Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9
Burwood Council v Pratelli [2014] NSWLEC 28
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51
Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185
Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114

Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 44
Environment Protection Authority v ACE Demolition & Excavation Pty Ltd; Allam [2022] NSWLEC 45
Environment Protection Authority v Afram [2022] NSWLEC 38
Environment Protection Authority v Allam [2021] NSWLEC 103
Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7
Environment Protection Authority v Al‑Sarray [2022] NSWLEC 31

Environment Protection Authority v Barnes (2006) NSWCCA 246
Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott [2016] NSWLEC 167
Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75
Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) [2020] NSWLEC 166
Environment Protection Authority v Mouawad (No 3) [2021] NSWLEC 16
Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25
Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419
Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113
Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
Markarian v R (2005) 229 CLR 357; [2005] HCA 25
Mohindra v R [2020] NSWCCA 340
Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178
R v Chan [2000] NSWCCA 345
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v O’Neill (1979) 2 NSWLR 582
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54

Category:

Sentence

Parties:

Environment Protection Authority (Prosecutor)
ACE Demolition & Excavation Pty Ltd (Defendant)

Representation:

Counsel:
Mr D Buchanan SC/Ms F Graham, barrister (Prosecutor)
Mr J Potts SC/Ms K Morris, barrister (Defendant)

Solicitors:
Environment Protection Authority (Prosecutor)
Clayton Utz (Defendant)

File Number(s):

357465, 357466, 357467 and 357468 of 2020

Publication restriction:

No

TABLE OF CONTENTS

Introduction

Mr Sami Allam's role with the Company

The interlocutory decisions

The charges

The Defendants’ pleas

The initial pleas

Plea matters at the commencement of the trial

The entry of guilty pleas for the Company and withdrawal of charges against Sami

The Agreed Statement of Facts on Sentence

Relevant Statutory Provisions

The POEO Act provisions

The hearings

Representation

The written submissions

The evidence

The documentary evidence

Oral evidence in the first phase by employees of the Company

The carried forward first phase evidence

The additional evidence for sentencing

Harm

Harm to regulatory schemes established by Parliament

Introduction

Undermining of the waste regulatory framework

Undermining of the development control framework

Sentencing factors to be considered as mandated by the POEO Act

Introduction

Aggravating factors

The Company’s subjective factors

Introduction

Harm ‑ s 21A(3)(a)

Prior offences ‑ s 21A(3)(e)

Is the Company a good corporate citizen? ‑ s 21A(3)(f)

The likelihood of reoffending ‑ s 21A(3)(g)

Contrition and remorse ‑ s 21A(3)(i)

Introduction

The apology made on behalf of the Company

The enforceable undertaking offers

The Company's costs’ offer

Attendances in Court

Conclusion on contrition and remorse

The Company’s guilty pleas ‑ s 21A(3)(k)

The extent of assistance given to the Prosecutor ‑ s 21A(3)(m)

The decision of Duggan J in Mr Al Sarray’s prosecutions

Introduction

Mr Al Sarray’s relevant subjective circumstances

The characterisation of Mr Al Sarray’s offending conduct

The penalties imposed on Mr Al Sarray

Characterisation of the Company’s offending conduct

Introduction

The Prosecutor's submissions

Submissions for the Company

Consideration

Deterrence

Introduction

Specific deterrence

The Prosecutor’s position

The Company’s position

Consideration

General deterrence

Comparability in sentencing

Introduction

The Prosecutor’s material and submissions on comparability

The submissions for the Company on comparability

Consideration

The appropriate starting sentences

Introduction

Parity

The Prosecutor’s submissions on parity

The Company's submissions on parity

Consideration

The Company’s guilty pleas

Introduction

The Prosecutor’s submissions

The submissions for the Company

Consideration

Totality and accumulation

Introduction

Making a publication order

Introduction

The submissions for the Company

The Prosecutor’s subsequent response

Consideration

The terms of the notice to be published

A moiety order

Investigation costs

Costs

Orders

Annexure A

Annexure B

Judgment

Introduction

1. ACE Demolition & Excavation Pty Ltd (the Company), as its name implies, provides demolition and excavation services to developers operating in the construction industry. As part of the Company's activities, it removes and disposes of waste generated by its activities at those various construction sites. Waste generated and removed for disposal is classified depending on the extent (if any) the waste is contaminated ‑ it is not necessary to set out an exhaustive list of these waste classifications.

2. The sites where the Company's activities were, at times relevant to these proceedings, undertaken are identified by a shorthand descriptor referring either to the geographic location of the site or the name of the developer to whom the Company was contracted. The Company's activities on those sites were undertaken by plant and plant operators allocated to the site through the Company's business arrangements. Whether the plant was owned by the Company and operated by a company employee or was independently owned and operated by a contractor is not a matter relevant for present purposes.

3. Waste generated by the Company's activities requiring to be transported to a facility licensed to receive it for disposal was carried by tipper trucks (with or without dog trailers being irrelevant for present purposes). As with the plant operating on the sites, some of the trucks were owned by the Company and driven by its employees, whilst others were operated by individuals or entities contracted to the Company. The status of any individual truck and the nature of its relationship to the Company is also not a matter of relevance for present purposes.

4. The two sites (and their locations) relevant for these sentencing proceedings are known as the Westbourne and Top Pacific sites. Details of these sites are set out in the later reproduced Agreed Statement of Facts on Sentence.

Mr Sami Allam's role with the Company

5. Mr Sami Allam (Sami) is the sole director, sole shareholder, and CEO of the Company.

The interlocutory decisions

6. I have already given four detailed interlocutory decisions in these or related proceedings. Those decisions addressed matters of availability of evidence and the uses to which such evidence as might be permitted to be put during the course of any following liability trial. Those four decisions were:

1. Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 44;

2. Environment Protection Authority v ACE Demolition & Excavation Pty Ltd; Allam [2022] NSWLEC 45;

3. Environment Protection Authority v Allam [2021] NSWLEC 103;

4. Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7.

7. As can be seen from their titles, those decisions applied to the Company and/or to Sami in differing fashions.

The charges

8. The prosecutions against the Company and against Sami were commenced on 17 December 2020.

9. For the purposes of the four interlocutory decisions noted above, a summary of the charges laid against the Company and Sami was agreed to by the Prosecutor and the Defendants’ legal representatives. At the commencement of this hearing, I sought agreement that, as with my interlocutory determinations, that agreed summary was appropriate to be reproduced as Annexure A to this decision as a basis to describe the charges that required to be dealt with (rather than setting out, in the body of this decision, the relevant charges and the particularisation pleaded in support of it from each of the Summonses). That agreement was given and the summary of the charges against the Company and against Sami is reproduced as Annexure A.

The Defendants’ pleas

The initial pleas

10. On 25 June 2021, pleas of “not guilty” were entered on behalf of the Company and Sami to all of the charges. There was no change in this position until the first day of the liability trial.

Plea matters at the commencement of the trial

11. On the first day of the trial, Mr Potts SC for the Company and Sami indicated that the Company now changed its plea in Matter No 357467 of 2020 from “not guilty” to “guilty”. The charge to which the Company now pleaded guilty was one laid pursuant to s 144AA(1) of the Protection of the Environment Operations Act 1997 (the POEO Act), being the sole charge of supplying information concerning waste during the course of dealing with waste where that information was false or misleading in a material respect. This charge, as can be seen from the later set out terms of the statutory provision, is the less serious of the two charges available in s 144AA (as there is no mental element of knowledge of the falsity of the information supplied required to be proved by a prosecutor).

12. Mr Potts also put on the record that the Company had offered to plead guilty to three further offences pursuant to s 144AA(1), in substitution for the three remaining charges against the Company to which it had pleaded not guilty, if those pleas were accepted by the Prosecutor agreeing to withdraw the three mental element charges against the Company made pursuant to s 144AA(2).

13. The Prosecutor indicated that this offer was not accepted, with the liability hearing proceeding on the charges as they stood.

The entry of guilty pleas for the Company and withdrawal of charges against Sami

14. Having adjourned, on 3 August 2022 after the close of the evidence on the contested charges laid against the Company and against Sami, to permit the parties time to prepare their written submissions (setting a timetable for this), on 9 August 2022 I was requested to relist the matter for the purpose of providing me with proposed consent orders to be made on that occasion. At a mention on 10 August 2022, I was advised that negotiations between the Prosecutor and the legal representatives of the Company and Sami had resulted in the Company entering pleas of guilty to the three charges against it pursuant to s 144AA(2) of the POEO Act and the Prosecutor agreeing that the charges which had been laid against Sami were withdrawn.

15. By consent, I made timetabling orders for a sentencing hearing for the purposes of determining of appropriate penalties to be imposed on the Company for all four charges to which the Company had now pleaded guilty. That sentencing hearing was held 23 August 2022.

16. It is to be noted, for the record, that it had been agreed the Prosecutor and Sami were to bear their own costs of the proceedings (Matters No 357475 to 357477 of 2020) which had been commenced against Sami.

17. It is to be noted that the Company’s guilty pleas constituted admission of all the elements necessary to found convictions for each offence charged.

The Agreed Statement of Facts on Sentence

18. On 12 August 2022, the Prosecutor filed an Agreed Statement of Facts on Sentence for the purposes of the sentencing hearing. That document was tendered on 23 August 2022, the day of the sentencing hearing. Although somewhat lengthy, it is appropriate to reproduce the terms of that document in its entirety. Agreed Statement of Facts on Sentence was in the following terms:

Introduction

1.   The Defendant, ACE Demolition & Excavation Pty Ltd (ACE):

(a)   has operated in the waste industry since 2004;

(b)   has no criminal history or prior convictions;

(c)   has never been charged with any other offences besides those the subject of these sentencing proceedings.

Offences

2.   ACE committed the following offences:

(a) An offence, on or about 18 April 2017, against s 144AA(2) of the Protection of the Environment Operations Act 1997 (POEO Act), in that it supplied information about waste to another person in the course of dealing with the waste, being information that it knew was false and/or misleading in a material respect.

(b) An offence, on or about 2 June 2017, against s 144AA(2) POEO Act, in that it supplied information about waste to another person in the course of dealing with the waste, being information that it knew was false and/or misleading in a material respect.

(c) An offence, on or about 12 June 2017, against s 144AA(1) POEO Act, in that it supplied information about waste to another person in the course of dealing with the waste, being information that was false and/or misleading in a material respect.

(d) An offence, on or about 2 December 2017, against s 144AA(2) POEO Act, in that it supplied information about waste to another person in the course of dealing with the waste, being information that it knew was false and/or misleading in a material respect.

Background

The legislative framework for disposal of excavation waste

3. At the times of the offences, the disposal of waste, including excavation waste, from construction sites was governed by the POEO Act and the Protection of the Environment Operations (Waste) Regulation 2014 (Waste Regulation).

4.   There were different types or categories of waste including:

•   aggregate;

•   asbestos;

•   bricks or concrete;

•   contaminated soil;

•   mixed waste;

•   soil (not contaminated or Virgin Excavated Natural Material (VENM));

•   VENM

•   asbestos containing/contaminated material (ACM);

•   potential acid sulphate soils (PASS);

•   general solid waste (GSW); and

•   excavated natural material (ENM).

5. Under Part 3 of the Waste Regulation, the occupiers of waste facilities were required to record certain information in relation to each delivery of waste or other material received at the facility, including the amount of any waste delivered, its waste type, its waste stream (such as construction and demolition waste), the date and time the delivery is made and the registration number of the vehicle used to make the delivery. This was an obligation that attached only to the occupiers of waste facilities. There was no obligation under Part 3 of the Waste Regulation or the POEO Act for waste facilities to record (or for persons delivering waste to provide) details of the source site for the waste delivered or a job number for that site.

Accounting required for disposal of excavation waste, generally

6.   In summary, some but not all waste facilities had weighbridges over which the trucks carrying waste into the facility were required to pass. Those waste facilities which had weighbridges generated weighbridge disposal dockets (weighbridge dockets) which were usually given to the drivers of the trucks concerned. A function of the weighbridge dockets was to provide a record of the disposal of the quantity of waste concerned. The weighbridge dockets sometimes specified the source development site which had been supplied to the waste facility operator when the company disposing of the waste agreed with the operator for the waste to be disposed of at the facility, and/or given to the weighbridge operator by the truck driver when going over the weighbridge. Where an order number (job number) had been created by the waste facility for that source site, the weighbridge docket sometimes specified that data. (The process by which the weighbridge dockets were generated is detailed under the heading “ACE’s transactions with waste facilities” below.) Generally speaking, the weighbridge dockets were intended to be provided to the company disposing of the waste, in this case ACE. A record of the weighbridge dockets was also kept by the waste facilities. The methods by which ACE received weighbridge dockets were either or both:

•   from the driver of the truck; and/or

•   from the waste facility, sometimes as copies, when it invoiced ACE for the cost of ACE disposing of the waste concerned; or when ACE requested them from the facility.

7.   The weighbridge dockets usually recorded in print form:

(a)   the name of the facility;

(b)   a unique docket number;

(c)   the date and time;

(d)   the vehicle registration number of the truck;

(e)   the identity of the company disposing of the waste (in this case, ACE);

(f)   a job number or reference number which could be sourced to a particular source site or source location for the waste such as the suburb from whence the waste had come;

(g)   the waste type;

(h)   the tare weight of the truck; and

(i)   the net weight of the waste.

8.   Generally, when a truck carrying waste being disposed of by ACE came to a waste facility that did not have a weighbridge, the waste facility and/or ACE would provide an estimate or average tonnage for that truck. It was ACE’s practice to have drivers weigh their trucks at weigh stations to verify the estimated tonnage from time to time.

9.   Those waste facilities that were not equipped with or did not use weighbridges provided transporters (including ACE) with records for the disposal of waste at those facilities. Depending on the facility, those records usually recorded some or all of the same information as was recorded on weighbridge dockets (as set out at paragraph 7).

10.   The waste facility company SUEZ Recycling & Recovery Pty Ltd (SUEZ) produced weighbridge dockets in hardcopy format which were provided to ACE in hardcopy or in scanned PDF format.

11.   The waste facility company Dial A Dump Industries Pty Ltd and Dial A Dump (EC) Pty Ltd (DADI) produced weighbridge dockets in electronic PDF format which were provided to ACE as electronic files or printed in hardcopy.

12.   The waste facility company Besmaw Pty Ltd (Besmaw), also known as the Holt Estate 1861, produced weighbridge dockets entitled “Tax invoice duplicate”.

13.   From time to time, the waste facility companies SUEZ, DADI and Besmaw also produced other documents, including invoices, truck run sheets, and summaries by way of letters, spreadsheets or lists of loads or quantities of waste disposed of at their waste facilities by ACE, which the companies provided to ACE on request, and which from time to time ACE provided to its clients or their agents. Run sheets recorded the fact that a waste disposal company’s truck load had been disposed of to the facility and the date and time.

ACE Demolition & Excavation Pty Ltd

The company and relevant senior staff

14.   At the times of the offences, ACE conducted civil works, such as demolition and excavation of development sites, and the transportation and disposal of waste.

15.   At the times of the offences, Mr Sami Allam (Mr Allam) was the sole director and chief executive officer of ACE and had been a director since 22 January 2004. Mr Allam was the sole shareholder of ACE.

16.   At the times of the offences, ACE simultaneously conducted excavation activities on an average of 25 development sites in NSW ‑ most of them in the Sydney area. ACE had an office at Regents Park. A number of people were based at the ACE office including:

•   Mr Allam ‑ director;

•   Munaf Al Sarray ‑ contract manager and/or construction manager; after Mr Allam, Mr Al Sarray was second‑in‑charge of the corporation;

•   Nicole Anthony ‑ office manager;

•   Bachar Allam ‑ truck & people allocator;

•   Kassem Allam ‑ machinery allocator; and

•   Ameer Sidawi ‑ accounts payable clerk & contracts administrator.

17.   As part of his role, Mr Al Sarray:

(a)   had responsibility for carrying out the demolition, excavation and waste disposal projects which ACE had been awarded to the completion of their contracts, including communicating with clients;

(b)   had oversight of the movement of waste from construction sites to waste facilities, including coordinating where waste was sent;

(c)   was responsible for collecting dockets from waste facilities; for providing copies of dockets to clients and environmental consultants and ensuring that the clients received the dockets for which they asked;

(d)   was responsible for finishing the jobs which ACE undertook by, amongst other things, providing evidence to clients that waste anticipated to have been present on the site was lawfully disposed of; and

(e)   was a senior and trusted employee.

The company’s operations

18.   ACE typically quoted to development companies (including construction companies) to conduct the demolition and excavation phases of planned development works. Those phases often included the removal from the development site of the demolition and excavation waste generated by ACE.

19.   ACE entered into agreements with various waste facilities for the disposal at those facilities of waste taken from particular development sites at which ACE was generating waste. The types of waste that ACE disposed of included asbestos and ACM, PASS, GSW, ENM, VENM and recovered aggregate.

20.   The system which ACE operated for the transport of waste to waste facilities was generally as follows:

(a)   excavator operators hired or employed by ACE excavated material from the development site concerned;

(b)   the excavated material was placed by the operator of an excavator either directly from the excavation or from a stockpile into a truck hired by ACE;

(c)   the truck drove to the exit gate of the site;

(d)   the gate was controlled by a traffic controller;

(e)   the traffic controller was told the type of the waste and the waste facility to which the truck should take the waste;

(f)   if he had not already been told by the allocator, the truck driver was told the destination waste facility to which the load should be taken by the traffic controller.

ACE’s transactions with waste facilities

21.   In the period 2016‑2017, ACE disposed of excavation waste to waste facilities, including facilities operated by:

(a)   SUEZ ‑ including its Elizabeth Drive Landfill Facility at 1725 Elizabeth Drive, Kemps Creek, NSW (SUEZ Facility);

(b)   DADI ‑ including its Genesis Eastern Creek landfill and recycling facility at Kangaroo Avenue, Eastern Creek, NSW (DADI Facility); and

(c)   Besmaw ‑ namely its Holt Land Rehabilitation Centre, corner Lindum Road and Captain Cook Drive, Kurnell, NSW (Holt Landfill). The Holt Landfill was licensed to receive ENM including PASS.

22.   The procedure to enable ACE to dispose of waste to the SUEZ Facility and the DADI Facility was that ACE already had or opened an account with the operator of the facility. The procedure included:

(a)   ACE provided the operator with information as to the types of waste to be disposed of for a particular job or for various types of waste it may dispose of;

(b)   in the case of DADI, the operator allocated an order number to the customer which described the suburb of the particular ACE job site from which material for disposal came and was then recorded on its weighbridge dockets as the “Order No.”;

(c)   in the case of SUEZ, the operator allocated a customer reference which was a unique code referable to a particular ACE job site from which material for disposal came and was then recorded on its weighbridge dockets as the “Cust ref”.

23.   ACE disposed of waste to the Holt Landfill from at least 12 source development sites. Trucks carrying waste to the Holt Landfill for ACE from any source site went over a weighbridge which calculated the weight of the loads tipped and generated a docket (entitled “Tax invoice duplicate”) which contained the same data as referred to in paragraph 7 above. ACE entered into an agreement with Besmaw for the acceptance of PASS at the Holt Landfill from the Wolli Creek Premises.

24.   Generally, when a truck carrying waste being disposed of by ACE came to a waste facility which had a weighbridge, the truck was required to go over the weighbridge. The truck driver told the weighbridge operator that it was carrying waste for ACE. The weighbridge weighed the gross load. The truck travelled into the facility and tipped off its load (if one bin on a bogie truck) or loads (if two bins comprising a truck and dog) and returned to the weighbridge. There the weighbridge calculated the tare weight of the vehicle and recorded the net weight of the load/s. The weighbridge generated a docket (for details, see paras 6 and 7 above).

Accounting for lawful disposal of waste by ACE ‑ generally

25.   Typically, ACE was not required by its clients, nor did it receive requests from its clients to, provide them (or other third parties) with documentary records accounting for the volumes of material excavated and/or removed by ACE from a client’s site.

ACE’s relationship with EI Australia

26.   Environmental Investigations Australia Pty Ltd (EI Australia) provided, amongst other things, environmental engineering services for the construction and excavation waste disposal industries.

27.   A director at EI Australia was Eric Gerges.

28.   Generally speaking, EI Australia was retained both by ACE and by ACE’s clients to conduct environmental assessments of soils and other material which were to be excavated, and of excavated material. From time to time, EI Australia / Mr Gerges were retained by ACE’s clients to review dockets and reconcile them with estimates of waste to be removed which had been made before ACE started work on a site.

Wolli Creek Premises

Development consent, excavation contract and site investigations

29.   On 13 November 2014, development approval was granted by Rockdale City Council for the demolition of existing structures and construction of two 8‑storey residential flat buildings with rooftop terrace areas and basement parking, at 40‑50 Arncliffe Street, Wolli Creek, NSW (the Wolli Creek Premises). The development approval imposed on the developer an obligation that “all excavated materials at the site must be tracked from cradle‑to‑grave and sufficient documentation provided in the validation report to allow the site auditor to check the movement and management of these materials.” The development approval did not impose specific requirements as to the form or contents of the documentation to be provided.

30.   Top Pacific Construction Pty Ltd (TPC), subsequently known as Top Pacific Constructions Aust. Pty Ltd (TPCA), was a construction company owned by Top Pacific Group Pty Ltd. The latter company was responsible for developing the Wolli Creek Premises.

31.   TPC appointed Rodney Harwood of Arcadis Australia Pacific Pty Ltd (Arcadis) to prepare a site audit report for the Wolli Creek Premises.

32.   On 9 January 2017, ACE entered into a contract with TPC to carry out excavation and remediation works at the Wolli Creek Premises. ACE was engaged to, amongst other things, excavate and dispose of material from the Wolli Creek Premises. The value of the contract was $3,600,000.

33.   The excavation and remediation contract entered into between ACE and TPC for the Wolli Creek Premises included within the scope of works a requirement for ACE to undertake excavation and remediation work including “clearing of the site”, “all VENM, PASS and GSW material”, and “All asbestos whether above or below ground”. The scope of works also included as items “all dockets” and “All coordination with Geotech and auditor”. The contract did not impose specific requirements on ACE as to the form or contents of the documentation to be provided or retained by ACE.

Works at the Wolli Creek Premises

34.   Between January and May 2017, ACE carried out and completed the works at the Wolli Creek Premises.

Zetland Premises

Development consent, excavation contract and site investigations

35.   On 20 January 2016, development approval was granted by the City of Sydney for the demolition of existing structures and construction of a mixed use development comprising three buildings of a scale of 9 storeys, 11 storeys and 15 storeys, each above two levels of basement car parking at 105‑115 Portman Street, Zetland, NSW (the Zetland Premises). The development approval required all waste to be removed from the site to be classified prior to removal. The consent required the developer to produce a Waste Management Plan.

36.   The construction company that was responsible for developing the Zetland Premises was Westbourne Constructions Pty Ltd (Westbourne). Westbourne produced a Waste Management Plan. The Waste Management Plan required “Trucking docket records … to be kept on site to check that fill is going to the nominated landfills.” The Waste Management Plan was not included in Westbourne’s contract with ACE.

37.   On 15 February 2017, ACE entered into a contract with Westbourne to carry out works at the Zetland Premises. The value of the contract was $19,000,000.

38.   The “early works” contract entered into between ACE and Westbourne for the Zetland Premises included within the scope of works a requirement for ACE to undertake “bulk excavation” including the “removal of all excess spoil from the bulk excavation, detailed excavation, shoring wall, anchoring and piling works”, the “excavation in [sic] all materials as found including but not limited to sand, clay, rock, asbestos and all other materials identified in the contract documents”, and completion of “all works in strict accordance with the conditions of the development consent”. It also required ACE (as subcontractor) to retain all records relating to the project and to make them available to Westbourne upon request. The contract did not impose specific requirements on ACE to obtain or retain weighbridge (or other) dockets, nor as to the form or contents of the records to be provided or retained by ACE.

Works at the Zetland Premises

39.   Between February and August 2017, ACE carried out and completed the works at the Zetland Premises.

Offences

Background to offence on 18 April 2017

40.   On 25 January 2017, ACE submitted an invoice to TPC. The invoice submitted by ACE to TPC on 25 January 2017 was for, amongst other things, the excavation of 50% of ACM impacted fill. No dockets were provided with this invoice.

41.   On 23 February 2017, ACE submitted another invoice to TPC. The invoice submitted by ACE to TPC on 23 February 2017 was for, amongst other things, the excavation of 100% of the ACM impacted fill. No dockets were provided with this invoice.

42.   On 28 February 2017, TPC paid ACE $764,471.84 in respect of the invoice submitted on 25 January 2017.

43.   On 29 March 2017, Dean Huang, a contract administrator employed by TPC, requested ACE to provide TPC with dockets for the excavation works in respect of which ACE had claimed payment. At that time, TPC indicated to ACE that further payments would only be released once further documents were provided by ACE.

44.   Between 7 and 10 April 2017, TPC made further requests to ACE for TPC to be provided with dockets for the excavation works in respect of which ACE had claimed payment. At that time, TPC indicated to ACE that TPC would release payment to ACE once dockets were provided.

Offence committed on 18 April 2017

45.   In response to the requests from TPC for all dockets to account for the waste disposed of from the Wolli Creek Premises, Mr Al Sarray carried out alterations on PDF files containing DADI weighbridge dockets, specifically by changing the “Order No.” entry on 114 genuine DADI weighbridge dockets from a suburb other than Wolli Creek to “wolli creek”.

46.   On 18 April 2017, Mr Al Sarray sent an email to Mr Maroun (the 18 April email) attaching, amongst other things four (4) PDF documents:

(a)   PDF documents named “ace demo 1.pdf” and “ace demo 2.pdf” containing scanned copies of 70 weighbridge dockets for the disposal of waste material at the SUEZ Facility (18 April SUEZ Dockets); and

(b)   PDF documents named “ace demo 3.pdf and ace demo 4.pdf” containing PDF files of 148 weighbridge dockets for the purported disposal of waste material from the Wolli Creek Premises at the DADI Facility (18 April DADI Dockets).

47.   The 18 April email and its attachments were Exhibit H in the proceedings.

48.   The 18 April email was sent to Mr Maroun by ACE and contained information about waste including the following:

(a)   the 18 April SUEZ Dockets which purported to be weighbridge dockets issued by SUEZ purporting to contain information in relation to the purported disposal of 70 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the SUEZ Facility; and

(b)   the 18 April DADI Dockets which purported to be weighbridge dockets issued by DADI purporting to contain information in relation to the purported disposal of 148 truckloads of waste material, including but not limited to soil contaminated with asbestos, from the Wolli Creek Premises to the DADI Facility.

49.   The 18 April SUEZ Dockets were not issued by SUEZ in relation to the disposal of 70 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the Suez Facility. The 18 April SUEZ Dockets did not refer to "Wolli Creek". Instead, the customer reference was recorded as "H57" and, in one instance, “H57 TERRY HILLS”. The 18 April SUEZ Dockets were misleading because the corresponding waste disposed of by ACE at SUEZ had come from a job site at Terrey Hills, not the Wolli Creek Premises, and for a builder who was not TPC. The customer reference “H57” referred to the ACE job reference number for a site at Terrey Hills.

50.   With the exception of eight (8) of the 18 April DADI Dockets, the remaining one hundred and forty (140) 18 April DADI Dockets were not weighbridge dockets issued by DADI in relation to the disposal of 140 truckloads of waste material from the Wolli Creek Premises to the DADI Facility. Of the 18 April DADI Dockets:

(a)   114 weighbridge dockets were false, having been physically altered to say “wolli creek” next to “Order No.” where the genuine weighbridge dockets had a different location, indicating that the waste disposed of in fact came from a different job site to the Wolli Creek Premises.

(b)   26 weighbridge dockets were misleading, having been issued by DADI in relation to waste disposed of from ACE job sites at Auburn, Lidcombe, Olympic Park, Regents Park, Waterloo and Westmead (not Wolli Creek), and having been represented by ACE as being weighbridge dockets which related to waste disposed of from the Wolli Creek Premises. These 26 misleading weighbridge dockets were not physically altered.

51.   The 18 April email was sent to Mr Maroun in the course of ACE dealing with the waste.

52.   At the time of sending the 18 April email, Mr Al Sarray knew, and so ACE knew, that the 18 April SUEZ Dockets were misleading in the way set out at paragraph 49; that 114 of the 18 April DADI Dockets were false and that 26 of the 18 April DADI Dockets were misleading in the way set out at paragraph 50.

53.   Mr Al Sarray had intended that all the weighbridge dockets he sent would satisfy Mr Maroun’s requirement for ACE to supply Top Pacific with dockets for the waste which ACE had disposed of from the Wolli Creek site.

54.   On 21 April 2017, TPC paid ACE $1,066,044.50.

Offence committed on 2 June 2017

55.   On 2 June 2017, Mr Al Sarray sent an email to Glen Allen, a construction manager employed by Westbourne (the 2 June email), attaching, amongst other things:

(a)   PDF documents named “suez.pdf” and “suez2.pdf” containing scanned copies of 70 weighbridge dockets for the disposal of waste at the SUEZ Facility (2 June SUEZ Dockets); and

(b)   a PDF document named “dadi_tip summary_zetland.pdf” containing PDF files of 147 weighbridge dockets for the purported disposal of waste from the Zetland Premises at the DADI Facility (2 June DADI Dockets).

56.   The 2 June email and its attachments were Exhibit AW in the proceedings.

57.   The 2 June email was sent to Mr Allen by ACE and contained information about waste including the following:

(a)   the 2 June SUEZ Dockets which purported to be weighbridge dockets issued by SUEZ purporting to contain information in relation to the purported disposal of 70 truckloads of soil contaminated with asbestos from the Zetland Premises to the SUEZ Facility; and

(b)   the 2 June DADI Dockets which purported to be weighbridge dockets issued by DADI purporting to contain information in relation to the purported disposal of 147 truckloads of soil contaminated with asbestos, from the Zetland Premises to the DADI Facility.

58.   The 2 June SUEZ Dockets were not issued by SUEZ in relation to the disposal of 70 truckloads of soil contaminated with asbestos from the Zetland Premises to the Suez Facility. The 2 June SUEZ Dockets did not refer to "Zetland". Instead, the customer reference was recorded as "H57" and, in one instance, “H57 TERRY HILLS”. The 2 June SUEZ Dockets were misleading because the corresponding waste disposed of by ACE at SUEZ had come from a job site at Terrey Hills, not the Zetland Premises. The customer reference “H57” referred to the ACE job reference number for a site at Terrey Hills.

59.   The 2 June SUEZ Dockets were copies of the same weighbridge dockets which were attached as the 18 April SUEZ Dockets to the 18 April email.

60.   With the exception of thirteen (13) of the 2 June DADI Dockets, the remaining one hundred and thirty‑four (134) 2 June DADI Dockets were not weighbridge dockets issued by DADI in relation to the disposal of 134 truckloads of soil contaminated with asbestos from the Zetland Premises to the DADI Facility. These 134 2 June DADI Dockets were false, having been physically altered to say “Zetland” next to “Order No.” where the genuine weighbridge dockets had a different location, indicating that the waste disposed of in fact came from a different job site to the Zetland Premises.

61.   The email was sent to Mr Allen in the course of ACE dealing with the waste.

62.   At the time the 2 June email was sent, Mr Al Sarray knew, and so ACE knew, that the 2 June SUEZ Dockets were misleading in the way set out at paragraph 58; and that 134 of the 2 June DADI Dockets were false in the way set out at paragraph 60.

63.   Between 16 June 2017 and 7 December 2018, Westbourne paid ACE $13,755,588.30 (excluding GST). $10,092,500.00 of this amount was paid to ACE for bulk excavation and removal of spoil.

Offence committed on 12 June 2017

64.   On 12 June 2017, an email was sent from ACE to Eric Gerges of EI Australia (the 12 June email), attaching amongst other things:

(a)   a document listing details regarding 80 loads, or 2,415.97 tonnes, of waste material (the First Holt Run Sheet);

(b)   a letter from Besmaw stating that 2,415.97 tonnes of VENM was received by Besmaw;

(c)   two PDF documents called “Wolli Creek Asbestos Dockets” and “ace demo 3” containing 153 weighbridge dockets for the purported disposal of waste material at the DADI Facility (12 June DADI Dockets);

(d)   an excel spreadsheet titled “Wolli Creek Summary”, which included 95 weighbridge docket reference numbers and associated information for the purported disposal of waste from the Wolli Creek Premises (DADI Spreadsheet);

(e)   a PDF called “ace demo 1” containing scanned copies of 48 weighbridge dockets for the disposal of waste at the SUEZ Facility (12 June SUEZ Dockets); and

(f)   an excel spreadsheet named “ACE 130217 to 300317”, which included 70 weighbridge docket reference numbers and associated information for the disposal of waste at the SUEZ Facility (SUEZ Spreadsheet).

65.   The 12 June email and its attachments were part of Exhibits BO and BQ in the proceeding.

66.   The email sent to Mr Gerges on 12 June 2017 was an email sent by ACE which contained information about waste including the following:

(a)   the 12 June DADI Dockets which purported to be weighbridge dockets issued by DADI purporting to contain information in relation to the purported disposal of 153 truckloads of waste material, including but not limited to soil contaminated with asbestos, from the Wolli Creek Premises to the DADI Facility;

(b)   the DADI Spreadsheet which purported to contain information in relation to the purported disposal of ninety‑five (95) truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the DADI Facility;

(c)   the 12 June SUEZ Dockets which purported to be weighbridge dockets issued by SUEZ and purporting to contain information in relation to the purported disposal of 48 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the SUEZ Facility;

(d)   the SUEZ Spreadsheet which purported to contain information in relation to the purported disposal of seventy (70) truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the SUEZ Facility.

67.   With the exception of twelve (12) of the 12 June DADI Dockets, the remaining one hundred and forty one (141) were not weighbridge dockets issued by DADI in relation to the disposal of 141 truckloads of waste material from the Wolli Creek Premises to the DADI Facility. Of the 12 June DADI Dockets,

(a)   134 were false, having been physically altered to say “wolli creek” next to “Order No.” where the genuine weighbridge dockets had a different location, indicating that the waste disposed of in fact came from a different job site to the Wolli Creek Premises.

(b)   7 were misleading, having been issued by DADI in relation to waste disposed of from ACE job sites other than the Wolli Creek Premises (being Lidcombe, Regents Park, Waterloo and Westmead, as identified by the location next to the words “Order No.”). and having been represented by ACE as being weighbridge dockets which related to waste disposed of from the Wolli Creek Premises. These 7 misleading weighbridge dockets were not physically altered.

68.   The DADI Spreadsheet contained false information, because 89 of the 95 truckloads of soil contaminated with asbestos referred to in the spreadsheet related to waste disposed of by ACE at the DADI Facility from job sites other than the Wolli Creek Premises.

69.   The 12 June SUEZ Dockets were not issued by SUEZ in relation to the disposal of 48 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the Suez Facility. The 12 June SUEZ Dockets did not refer to the words “Wolli Creek” but instead referred to “H57” and, in one instance, “H57 TERRY HILLS” as the customer reference. The 12 June SUEZ Dockets were misleading because the corresponding waste disposed of by ACE at SUEZ had come from a job site at Terrey Hills, not the Wolli Creek Premises. The customer reference “H57” referred to the ACE job reference number for a site at Terrey Hills.

70.   The SUEZ Spreadsheet was misleading because the 70 docket reference numbers and associated information contained in it related to waste disposed of by ACE from Terrey Hills, not the Wolli Creek Premises.

71.   The 12 June SUEZ Dockets were the same as copies of 48 of the weighbridge dockets attached as part of the 18 April SUEZ Dockets to the 18 April email and as part of the 2 June SUEZ Dockets to the 2 June email.

72.   The majority of those 12 June DADI Dockets were copies of the same weighbridge dockets which were attached as the 18 April DADI Dockets to the 18 April email.

73.   The 12 June email was sent to Mr Gerges in the course of ACE dealing with the waste.

74.   On 20 June 2017, Mr Gerges emailed the 12 June DADI Dockets, DADI Spreadsheet, 12 June SUEZ Dockets and SUEZ Spreadsheet to Mr Maroun.

75.   On 21 June 2017, Mr Maroun emailed the 12 June DADI Dockets, DADI Spreadsheet, 12 June SUEZ Dockets and SUEZ Spreadsheet to Craig Wellings of Arcadis and copied Mr Harwood into this email.

Background to the 2 December 2017 offence

76.   TPC asked ACE to provide TPC with dockets for the excavation works which ACE had undertaken at the Wolli Creek Premises.

77.   Before the commission of the 2 December 2017 offence, Mr Al Sarray had access to the First Holt Run Sheet, which was genuine and had previously been provided by Besmaw to ACE under cover of an invoice.

Offence committed on 2 December 2017

78.   In response to the pressure put on ACE by TPC to provide documentation, Mr Al Sarray created an electronic document by altering the First Holt Run Sheet referred to above at paragraph 64(a) and inserting information relating to disposal of waste by ACE from a number of job sites other than Wolli Creek, including Burwood, Gordon, Sydney Olympic Park and Macquarie Park. Mr Al Sarray named the PDF file he created as “Wolli Creek Summary” (Second Holt Run Sheet).

79.   Mr Al Sarray gave the Second Holt Run Sheet to Mr Sidawi to send to “whoever was asking for it”.

80.   On 2 December 2017, Mr Sidawi (acting on the instruction from Mr Al Sarray to do so and without knowledge that the Second Holt Run Sheet had been created by Mr Al Sarray) emailed Mr Gerges attaching the Second Holt Run Sheet. By this email, Mr Al Sarray sent the information “through Ameer (Sidawi)”.

81.   The 2 December email and its attachments were Exhibit AN in the proceeding.

82.   The Second Holt Run Sheet purported to be created by Besmaw and purported to contain information in relation to the purported disposal six hundred and twenty‑two (622) truckloads of waste material from the Wolli Creek Premises that had been disposed of by ACE at the Holt Landfill.

83.   The Second Holt Run Sheet was false because it was not created by Besmaw although it purported to be, and the 622 truckloads referred to in the document were not related to the disposal of waste material from the Wolli Creek Premises to the Holt Landfill; instead they related to disposal of waste from a number of ACE job sites other than Wolli Creek, including Burwood, Gordon, Sydney Olympic Park and Macquarie Park.

84.   The only loads of waste which ACE had taken from the Wolli Creek Premises to the Holt Landfill for disposal between 1 March 2017 to 30 June 2017 were the 80 loads on the dates 19 to 22 April 2017 inclusive listed in the First Holt Run Sheet which was sent to Mr Gerges of EI Australia in the 12 June email.

85.   The 2 December email was sent to Mr Gerges in the course of ACE dealing with the waste.

86.   At the time of the 2 December email being sent, Mr Al Sarray knew, and so ACE knew, that the Second Holt Run Sheet was false in the way set out at paragraphs 84‑85 above 83. Mr Sidawi was not aware of this at the time he sent his email of 2 December 2017.

87.   On 4 December 2017, Mr Gerges sent an email to Mr Harwood, and the other member of his audit firm who had been present at the 10 November 2017 meeting, a copy of the Second Holt Run Sheet.

Circumstances of the Offending

88. Mr Al Sarray was charged with and convicted of two counts of contravening s 144AA(2) of the POEO Act in respect of the same underlying conduct that is the subject of these sentencing proceedings (for the sending of the 18 April 2017 and 2 June 2017 emails).

89.   Mr Al Sarray sent the documents attached to those emails, and caused the sending of the document attached to the emails of 2 December 2017:

(a)   to satisfy TPC and Westbourne and/or their auditors who were requesting weighbridge dockets recording the removal of material from the Zetland and Westbourne Premises in line with the volumes that had been assessed as being present at the Zetland and Westbourne Premises;

(b)   to provide weighbridge dockets to ACE’s clients as evidence of ACE disposing of the quantities of waste from the Zetland Premises and the Wolli Creek Premises that matched the quantity of waste identified during waste classification activities as requiring removal from the two sites; and

(c)   to placate clients it considered to be “high risk” of avoiding making progress claim payments to ACE as and when they fell due.

Mr Al Sarray's Personal Circumstances

90.   Mr Al Sarray suffers from Post Traumatic Stress Disorder arising out of his experiences in the Iraq War.

91.   Mr Al Sarray came to Australia as a refugee seeking protection.

Consequences of the Offending

92.   There is no evidence that the offences caused any actual harm to the environment.

ACE’s Early Offer to Plead Guilty to the Offences

93.   On 9 June 2021, the Defendant wrote to the EPA in the following terms:

In the interests of both parties avoiding a lengthy, time‑consuming and expensive trial process, we are instructed to make the following offer on a without prejudice basis:

“1. ACE Demolition & Excavation Pty Ltd (ACN 107 709 151) (ACE Demolition) will plead guilty to one of the most serious charges against it (the principal offence), with the other three charges to be noted on a list of additional charges to the principal offence pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the further offences). For this purpose:

(a)   the Environment Protection Authority (EPA) will identify which charge of the charges the subject of proceedings 2020/357465, 2020/357466 and 2020/357468 will be the principal offence; and

(b)   ACE Demolition will admit guilt to the further offences and indicate to the court that it wants the court to take the further offences into account in dealing with ACE Demolition for the principal offence.

2. As a result of the pleas outlined at paragraph 1, the EPA will withdraw the charges against Sami Allam personally (being the charges the subject of proceedings 2020/357475, 2020/357476, 2020/357477 and 2021/78283); and

3. ACE Demolition will not resist an order that it pay some or all of the EPA’s investigation costs (subject to the amount of those costs which is to be advised by the EPA).

Please let us know as soon as possible whether this offer is acceptable to the EPA, or whether the EPA has some other proposal that it would regard as an acceptable plea arrangement.”

94.   That offer was rejected by the EPA on 22 June 2021.

Relevant Statutory Provisions

Introduction

19. As earlier noted, the charges brought by the Prosecutor against the Company are for breaches of provisions of the POEO Act. The relevant provisions of the POEO Act are set out below. The relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) are set out following those of the POEO Act.

20. Relevant provisions of the Environmental Planning and Assessment Act 1979 (the EPA Act), Criminal Procedure Act 1986 (the Criminal Procedure Act); the Fines Act 1996 (the Fines Act) and the Protection of the Environment Operations (Waste) Regulation 2014 (the Waste Regulation) are also discussed but do not need to be reproduced.

The POEO Act provisions

21. The first relevant provision of the POEO Act is s 3, the provision which sets out the objects of the Act. This provision is in the following terms:

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,

(b)   to provide increased opportunities for public involvement and participation in environment protection,

(c)   to ensure that the community has access to relevant and meaningful information about pollution,

(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,

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

(f)   to improve the efficiency of administration of the environment protection legislation,

(g)   to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001.

22. The second relevant provision is s 144AA of the POEO Act, the provision pursuant to which the charges had been laid against the Company, as had the (now withdrawn) charges been laid against Sami. That provision was in the following terms during 2017, the year when the Company’s offending conduct took place:

144AA   False or misleading information about waste

(1)   A person who supplies information about waste to another person in the course of dealing with the waste, being information that is false or misleading in a material respect, is guilty of an offence.

It is a defence in any proceedings against a person for an offence under this subsection if the person establishes that the person took all reasonable steps to ensure that the information was not false or misleading in a material respect.

Maximum penalty—

(a)   for a corporation—$250,000, or

(b)   for an individual—$120,000.

(2)   A person who supplies information about waste to another person in the course of dealing with the waste, being information that the person knows is false or misleading in a material respect, is guilty of an offence.

Maximum penalty—

(a)   for a corporation—$500,000, or

(b)   for an individual—$240,000 or imprisonment for 18 months, or both.

(2A)   ….

(2B)   ….

(3)   In this section, information is taken to be supplied to a person in the course of dealing with waste if it is supplied—

(a)   in the course of an activity relating to the sale or disposal of waste, or

(b)   in the course of an activity relating to the storage, transport, handling, deposit, transfer, processing, recycling, recovery, re‑use or use of the waste.

(4)   In this section, information about waste means information about any of the following—

(a)   the type, classification, characteristics, composition or quantity of the waste,

(b)   the actual or proposed storage, transport, handling, deposit, transfer, disposal, processing, recycling, recovery, re‑use or use of the waste,

(c)   the hazards or potential harm to the environment or human health associated with the waste or an activity referred to in paragraph (b).

(5)   In this section, information includes a record containing information.

(5A)   In this section, supply information includes cause or permit information to be supplied.

(6)   Proceedings for an offence against this section may be instituted only by the EPA.

23. The third relevant provision of the POEO Act is s 169C. This provision permits the conduct of an employee of a corporation to be attributed to the corporation. This provision is in the following terms:

169C   Evidence as to state of mind of corporation

(1)   Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.

(2)   In this section, the state of mind of a person includes—

(a)   the knowledge, intention, opinion, belief or purpose of the person, and

(b)   the person’s reasons for the intention, opinion, belief or purpose.

24. The fourth element of the POEO Act requiring consideration is s 241, a provision in the following terms:

241   Matters to be considered in imposing penalty

(1)   In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):

(a)   the extent of the harm caused or likely to be caused to the environment by the commission of the offence,

(b)   the practical measures that may be taken to prevent, control, abate or mitigate that harm,

(c)   the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,

(d)   the extent to which the person who committed the offence had control over the causes that gave rise to the offence,

(e)   whether, in committing the offence, the person was complying with orders from an employer or supervising employee.

(2) The court may take into consideration other matters that it considers relevant.

25. The fifth element of the POEO Act requiring consideration is s 250(1)(a), a provision in the following terms:

250   Additional orders

(1)   Orders The court may do any one or more of the following—

(a)   order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person,

26. It is to be noted that the Prosecutor seeks such an order in these proceedings and the Company opposes the making of that order.

27. The final section of the POEO Act requiring to be noted is s 253A, the provision relating to enforceable undertakings. The provision is in the following terms:

253A   Enforcement of undertakings

The EPA may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the EPA has a function under this Act.

28. It is also appropriate to note the definition of “harm” contained in the Dictionary to the POEO Act. This definition is in the following terms:

harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.

The Crimes (Sentencing Procedure) Act 1999

29. A number of provisions of the Sentencing Procedure Act require consideration. The first of these is s 3A, the provision that sets out the objects of the Act, explaining the purposes for which sentencing is undertaken. This provision is in the following terms:

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.

30. The second elements of the Sentencing Procedure Act are those contained in s 21A of that Act, which are relevant to the offending conduct or to the circumstances of the Company. The provision contains, in s 21A(2), those elements which can, if proved beyond reasonable doubt, give rise to a finding that the offending conduct was carried out in circumstances of aggravation. It is to be noted that the Prosecutor does not submit that there are any factors of aggravation arising with respect to the offences to which the Company has pleaded guilty.

31. The provision also contains, in s 21A(3), a range of subjective factors potentially applicable to the Company that require to be considered (if relevant). The relevant elements of s 21A(3) are set out below:

21A   Aggravating, mitigating and other factors in sentencing

(1)   ...

(2)   …

(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,

(b)   ...,

(c)   ...,

(d)   ...,

(e)   the offender does not have any record (or any significant record)   of previous convictions,

(f)   the offender was a person of good character,

(g)   the offender is unlikely to re‑offend,

(h)   the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i)   the remorse shown by the offender for the offence, but only if:

(i)   the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)   the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

(j)   ...,

(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),

(l)   ...

(m)   assistance by the offender to law enforcement authorities (as provided by section 23),

(n)   ...

32. The third element of the Sentencing Procedure Act engaged by these proceedings is s 22, a provision which mandates that I have positive regard to the entry by the Company of its guilty pleas and such utilitarian value that the entry of those pleas has had for the administration of justice. This provision is in the following terms:

22   Guilty plea to be taken into account for offences not dealt with on indictment

(1)   In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:

(a)   the fact that the offender has pleaded guilty, and

(b)   when the offender pleaded guilty or indicated an intention to plead guilty, and

(c)   the circumstances in which the offender indicated an intention to plead guilty,

and may accordingly impose a lesser penalty than it would otherwise have imposed.

(1A)   A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

(2)   ...

(3)   ...

(4)   ...

(5)   …

The Criminal Procedure Act 1986

33. The costs‑ordering provisions contained in ss 257B and 257G of the Criminal Procedure Act are engaged in order to permit me to order that the Company is to pay the Prosecutor's costs of these proceedings. It is not necessary to reproduce the terms of any provisions of this legislation; it is sufficient to note that they provide a proper statutory foundation for me to make an appropriate costs order.

The Fines Act 1996

34. Section 122 of the Fines Act permits me to order that a moiety (50%) of any fines which I impose on the Company is required to be paid to the Prosecutor. It is not necessary to reproduce the terms of the provision, it is sufficient to note its effect.

The maximum penalties for the offences

35. The maximum penalty for the breach of s 144AA(1) of the POEO Act (as at the date of the single offence against this provision) was $250,000 for a corporation, whilst the maximum penalty for the breach of s 144AA(2) of the POEO Act (as at the dates of the three offences against this provision) was $500,000 for a corporation and $250,000 and/or 18 months’ imprisonment for an individual (this latter element being relevant, as later discussed).

36. The maximum available penalty is to be taken as being the legislature’s understanding and reflection of contemporary community standards concerning the offences involved (Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 at [33]). The size of the penalty also “indicates the gravity of the offence as perceived by the community”: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (Camilleri’s Stock Feeds) at 698.

37. The maximum penalty is significant in determining the objective seriousness of the offence: Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 at [57]. The maximum penalty demonstrates the seriousness with which the offence charged is viewed (Camilleri's Stock Feeds also at 698).

The hearings

38. The hearings for the first phase (being those when liability for the charges pursuant to s 144AA(2) of the POEO Act laid against the Company and the executive liability charges laid against Sami remained in contest) were carried out over eight days commencing on 25 July 2022 and concluding on 3 August 2022.

39. The subsequent sentencing hearing, which took place after the events earlier noted at [12], was held on 23 August 2022.

Representation

40. The Prosecutor was represented by Mr D Buchanan SC and Ms F Graham, barrister and the Company by Mr J Potts SC and Ms K Morris, barrister.

The written submissions

41. Comprehensive written submissions on sentence were provided for the Prosecutor and for the Company. Each of the oral submissions from the Prosecutor and Mr Potts referenced not only their own written submissions but also those of the other side. During the course of written or oral submissions, the identifiers of PWS (Prosecutor’s written submissions) and DWS (Defendant’s written submissions) were used. These expressions appear in elements of the written submissions or of the transcript of the sentencing hearing later quoted.

The evidence

The documentary evidence

42. The Prosecutor provided, on a USB thumb drive, an electronic copy of the Court Book for the liability hearing. This electronically provided material was extensive and, in a number of instances, incorporated affidavits in terms which were subject to objections on behalf of the (then two) Defendants. Some of the objections to the affidavits were resolved by discussions between the legal representatives whilst a limited range of objections required to be determined by me prior to the formal reading of any affidavit. It is to be noted that redacted electronic copies of each affidavit were subsequently provided with the redactions reflecting the agreed or determined outcomes of objections to any elements of that affidavit.

Oral evidence in the first phase by employees of the Company

43. A number of employees of the Company were subpoenaed by the Prosecutor to attend and give oral evidence during what had (then) been the liability hearing. Those subpoenaed who gave oral evidence were:

1. Ms Nicole Anthony, the Company's Administration Manager. She gave evidence on the morning of the third day of the liability hearing. Ms Anthony has been employed by the Company for nearly 20 years (in its current incorporated form and, in its early days, as an unincorporated business operated by Sami from his home);

2. Mr Ameer Sidawi, a contract administrator with the Company. Mr Sidawi had been employed by the Company for 10 years. Mr Sidawi objected to giving evidence on the basis that his answers might, potentially, be incriminating. Mr Sidawi was directed to answer questions but he was given a protective certificate pursuant to ss 128(7) and 128A(8) of the Evidence Act 1995 (the Evidence Act) with respect to his oral evidence. Mr Sidawi also gave evidence on the third day of the liability hearing; and

3. Mr Munaf Al Sarray, a contract administrator and construction manager employed by the Company, gave evidence on the fourth, fifth and seventh days of the liability hearing. Mr Al Sarray was Mr Sidawi’s manager during 2017, the period giving rise to the charges against the (then two) Defendants. Mr Al Sarray has been employed by the Company for about 14 years.

Mr Al Sarray also objected to giving evidence on the basis that his answers might, potentially, be incriminating. Mr Al Sarray was directed to answer questions but he was also given a protective certificate pursuant to ss 128(7) and 128A(8) of the Evidence Act with respect to his oral evidence.

It is to be noted that Mr Al Sarray had been convicted on 31 March 2022 by Duggan J (Environment Protection Authority v Al‑Sarray [2022] NSWLEC 31) of two offences pursuant to s 144AA(2) of the POEO Act. As a result, Mr Al Sarray was fined $135,000 for each offence and ordered to publish a notice in Inside Waste magazine, a notice outlining the nature of his convictions and the penalties imposed on him. The conduct giving rise to these convictions (offences to which Mr Al Sarray had pleaded guilty) was that providing the foundation for the charges against the Company arising from provision of false and misleading information on 18 April 2017 and 2 June 2017.

The carried forward first phase evidence

44. The evidence proposed to be relied upon for the Prosecutor and the Company as being carried forward from the liability hearing was provided to me in schedules from each party. Each of the schedules listed the documents or transcript references relied upon by that party. It is to be noted that, during the sentencing hearing, I was taken to little of this carried‑forward material, but the written submissions on behalf of each of the parties extensively footnoted references to the material.

The additional evidence for sentencing

45. Three additional affidavits were relied upon for the purposes of the sentencing hearing. On behalf of the Company, affidavits were read (without objection) from:

1. Ms Nicole Anthony, the Company's Administration Manager whose further affidavit was deposed on 16 August 2022. Ms Anthony was not required for cross‑examination on this further affidavit. Elements of her affidavit are later cited; and

2. Mr George Pasas, a solicitor employed by the Company's legal representatives. Mr Pasas’ affidavit was deposed on 16 August 2022. Elements of his affidavit are also later cited. Mr Pasas was also not required for cross‑examination.

46. Both parties sought to rely on elements of an affidavit of Ms Melissa Porter (deposed on 16 March 2020). Ms Porter was a site auditor employed on the Westbourne site. The elements of Ms Porter's affidavit which became evidence for the purposes of the sentencing hearing were paragraphs 1, 2, 5, 7, 9 and 10. Ms Porter was not required for cross‑examination. These paragraphs are, as a matter of caution, reproduced below:

Background

1   I am a·Principal of Senversa Pty Ltd (Senversa). Senversa provides contaminated land and environmental auditing services and environmental and geotechnical engineering services. I have been employed by Senversa since 2017.

2   I have over 20 years' experience in contaminated land assessment, remediation and management. I am accredited by the NSW Environment Protection Authority (EPA) as a site auditor under the Contaminated Land Management Act 1997 (the CLM); NSW EPA Accreditation Number 0803. I hold a Bachelor of Applied Science, Geography, from the University of New South Wales.

(Heading omitted)

…

…

Engagement of Senversa as Site Auditor for the Zetland Premises

5   On 20 March 2017, I was formally engaged on behalf of Westbourne Constructions Pty Ltd (Westbourne), as the auditor of its contaminated site assessment for a 0.8489 ha parcel of land located at the Zetland Premises.

6   …

7   As the auditor I was engaged to prepare a Site Audit Report (SAR) for the Zetland Premises to form the basis and rationale for conclusions drawn in a Site Audit Statement (SAS). The audit was not a requirement of the development consent and was non‑statutory.

Documents Provided

8   …

9   On 25 July 2018, Emmanuel Woelders of El Australia emailed me a link to the draft ‘Waste Classification and Management Summary Letter, Areas 12A & 128, 105‑115 Portman Street, Zetland NSW’, dated 24 July 2018 by El. This report was provided to me as part of the audit process. A copy of the email and document contained within the link is saved to a USB behind Tab 1 of MP‑01 and titled ‘Tab 1 ‑ Waste Classification and Waste Summary Report’.

Site Audit Report and Site Audit Statement

10   Following completion of the audit process, I completed the SAR titled 'Site Audit Report ‑ Redevelopment Plots 12A & 128, Green Square, Zetland' and dated 19 July 2019, for the Zetland Premises. A copy of the SAR dated 19 July 2019 is behind Tab 2 of MP‑01.

47. It is not necessary to reproduce anything from the documents referenced in the above reproduced extract.

Harm

Harm to regulatory schemes established by Parliament

Introduction

48. Failure to comply with the requirements of a regulatory regime established by statute tends to undermine the objects of that statutory regime. This is a truth of broad application, whether to the scheme of planning and development control established pursuant to the EPA Act or the regulatory regime for waste established by the Waste Regulation.

49. The necessary intention of the Parliament, in establishing any regulatory regime of the types cited above, is clearly to ensure regularity, consistency of standards, and public supervision of the activities encompassed. Compliance is mandatory and not discretionary for those whose activities that are so regulated.

50. Failure to comply with such a regulatory regime undermines public confidence in the integrity of that scheme.

51. In this context, it is to be observed that I am satisfied that there are two separate heads of consideration on this topic.

52. The first is to what extent the offending conduct has undermined the validity of the regulatory scheme established under the POEO Act for addressing the disposal and transportation of waste. This regime is established by the Waste Regulation.

53. The second regulatory regime undermined by this offending conduct is that established by Pt 4, Div 4.15 of the EPA Act where conditions attached to development consents, particularly for major projects generating significant volumes of waste (whether by demolition or excavation being irrelevant), are required to account for the transportation and disposal of such waste.

54. It is to be noted that undermining a regulatory regime can, by itself, constitute an element of harm for criminal sentencing purposes (Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9 ‑ Budvalt).

Undermining of the waste regulatory framework

55. Falsifying documents concerning the transportation and disposal of waste in the fashion which has here arisen means that it is not possible to know accurately the nature of the waste removed from the Top Pacific and Westbourne sites. It is also not known whether or not that waste was, as a consequence of the classification system for waste identification established by the Waste Regulation, disposed of by meeting any mandated disposal method for that waste.

56. In addressing this issue, I am not to be taken to be speculating as to what might have been the classification of the content of any of the waste actually disposed of by the Company from either the Top Pacific or Westbourne sites. What I am addressing is the falsification of the documentation that underpins each of the four charges (it not mattering for this purpose which of the elements of s 144AA is the foundation for the charge). It is the undermining of the Waste Regulation by the absence of accurate knowledge that causes harm to the integrity of the regulatory regime established by the Waste Regulation.

57. Whilst I do not draw any inference, whatsoever, that these breaches occasioned actual environmental harm (a position that is also accepted by the Prosecutor), the harm is the damage to the regulatory regime itself.

58. Mr Al Sarray’s conduct in carrying out three falsifications, together with the fourth element of falsification (where there is no mental element founding the charge ‑ as the person who caused the transmission of the falsification of the information is unknown ‑ but to be inferred, as later discussed, also to be Mr Al Sarray), meant that harm to the environment, in the absence of proper waste reporting information as otherwise required by the Waste Regulation, was potentially caused by those falsification activities that arose from the waste generated from either the Top Pacific or the Westbourne sites.

59. In this context, I note that Mr Potts conceded that the actions involving the falsification of the information did cause harm to the regulatory regime (Transcript 23 August 2022, page 489, lines 32 to 46):

Our submissions were, frankly, more geared towards what we apprehended to be submissions put by the prosecution about the possibility of harm to the environment, and I’ll come to that in due course, but I just want to make it very clear at the outset we don’t suggest that, by sending these four emails, which, admittedly, contained information about waste that was misleading or false in a material respect, and, in three cases, doing it knowingly, through the knowledge of Mr Al Sarray, we don’t suggest that had no consequence for the regulatory environment.

We don’t suggest that our clients Top Pacific and Westbourne weren’t misled. We don’t suggest it didn’t go to the site auditors, who used it in some way. Our submissions in relation to consequence are more specific and pointed, and I’ll come to them in a moment, but I just want to make that very clear at the outset, so that your Honour’s not misled into thinking we make a submission that we don’t.

60. I am satisfied, in this context, that the harm caused to the regulatory system for the transportation and disposal of waste is significant but not to the extent of constituting a factor of aggravation for the purposes of s 21A(2) of the Sentencing Procedure Act.

Undermining of the development control framework

61. I now turn to the question of how the extent to which the Company's offending conduct created a risk of undermining the regime for development consent and development control established under the EPA Act is to be characterised for present purposes.

62. During the course of his cross‑examination, Mr Al Sarray was questioned as to his understanding as to why clients of the Company (here, relevantly, Top Pacific and Westbourne) sought to be provided with documents demonstrating where waste from their construction sites had been disposed of and the quantity and recorded nature of the waste involved. The elements of the transcript of his evidence on this point are reproduced below (Transcript 28 July 2022, page 206, lines 1 to 49):

PROSECUTOR: Did you understand that developers had council approval for the developments they carried out?

A. Yes, they did. Yep.

Q. And did you have an understanding of whether those approvals had conditions in them?

A. Not to the extent that I know the exact conditions, but I understand there is a development application or there’s a consent and there are conditions in it.

Q. Did you understand whether there were conditions, generally speaking, in developer clients council approvals, in relation to the disposal of waste?

A. Not in this particular case, but yeah, sometimes I see them in the DA’s. I can’t remember if it was mentioned for this site, and the consent or the development application conditions.

Q. Have you heard of an occupation certificate?

A. Yes.

Q. What did you understand in 2017, an occupation certificate was?

A. This ‑ the question’s is a little bit difficult. A occupation certificate, it means people can occupy the building. That's my understanding to it.

Q. And what was your understanding as to who issued an occupation certificate?

A. The occupation certificate issued to the builder; I think. Yep.

Q. Yes, by whom?

A. By the council maybe.

Q. Did you have an understanding as to the relationship, if any, between a failure of a developer to satisfy a development consent condition and whether they got an occupancy certificate?

A. Sorry, can you repeat the question, please?

Q. Yes. Did you understand whether there was a relationship between a developer satisfying the conditions of its development consent on the one hand, and whether it got an occupation certificate from the council?

A. It’s ‑ I mean, the two parts of the question meant the same thing to me. Can you explain more, please? My apologies.

Q. I don't want to suggest the answer to you, what I wanted to ask you is, what do you mean by they mean the same thing? What's your understanding? The fact that they mean the same thing.

A. My understanding, the occupation certificate is something the council issues to a builder saying, okay, you met all the requirements we mentioned, and it's okay for humans to settle in the building.

Q. And you had that understanding in 2017?

A. Yes, I did.

63. This evidence does not establish that, for Top Pacific or Westbourne, Mr Al Sarray had positive knowledge that either company specifically was requesting provision of the waste disposal documentation in order to satisfy a condition of that company's development consent for the project for which the Company was providing services. However, I am satisfied that Mr Al Sarray knew that such documentation might be required for the purposes of satisfying a condition imposed as part of the granting of approval for a proposed development and that he was prepared to provide falsified waste disposal documentation even if it was to be used for discharging obligations that had been imposed on a developer as a requirement of a statutory obligation on that developer arising from the operation of s 4.17 of the EPA Act.

64. For present purposes, it is also to be made clear that I am not making a positive finding that those circumstances actually arose with respect to the provision of falsified information to either Top Pacific or Westbourne as occurred on 18 April 2017 or 2 June 2017; or 2 December 2017 (being the dates of the three breaches of s 144AA(2) here involved).

65. However, the conclusion inevitably to be drawn from Mr Al Sarray’s evidence, reproduced above, is that he (and therefore the Company) paid no heed to the necessity to provide truthful information to a client where such information may have been necessary for the purposes of satisfying a statutory requirement, where that requirement arose not by virtue of the operation of the POEO Act, but by virtue of the operation of the EPA Act.

66. This aspect of Mr Al Sarray’s conduct clearly gave rise to the risk of significant harm to the regulatory regime established for development approvals given by virtue of the operation of Div 4.3 of Pt 4 of the EPA Act and that the possibility of such harm arising was entirely foreseeable.

67. In reaching this conclusion as to the risk of significant undermining of the regulatory regime for development approval, I am expressly not drawing the conclusion that this actually occurred for any of the s 144AA(2) charges to which the Company has pleaded guilty. On the evidence, such a conclusion is not available.

68. However, Mr Al Sarray’s conduct in falsifying the material underpinning these three charges did have the potential effect of significantly undermining that aspect of the regulatory regime established by the EPA Act. This is of particular importance in circumstances where the Company was dealing with the removal and disposal of waste where that waste may have been required (as a consequence of how the composition of that waste was to be classified) to be handled in a specified fashion set by the Waste Regulation. There was also the possibility that a more regulated disposal process was required by, and needed to be accounted for, pursuant to a condition of development consent.

69. In making this observation, I also expressly note that I am not making that observation concerning the composition of any of the waste removed from either the Top Pacific or Westbourne sites. Instead, I find merely that Mr Al Sarray’s actions clearly demonstrated preparedness to pay no heed to the necessity to provide valid and truthful waste disposal documentation to assist clients in their compliance with their regulatory obligations pursuant to the EPA Act.

70. I am satisfied, in this context, that the harm caused to the regulatory system for the transportation and disposal of waste, as addressed in a development control framework, is also significant but also not to the extent of constituting a factor of aggravation for the purposes of s 21A(2) of the Sentencing Procedure Act.

Sentencing factors to be considered as mandated by the POEO Act

Introduction

71. I have earlier set out the terms of s 241 of the POEO Act, being the provision that sets out the matters which I am required to consider when imposing a penalty on the Company for its offending conduct.

72. For the purposes of addressing matters mandated by s 241(1) of the POEO Act, it is to be observed that the first four of those listed require consideration. I have earlier set out the nature of the harm arising to the regulatory regimes under the POEO Act and the EPA Act arising from the offending conduct of the Company. With respect to each of those harms, I have explained why they constitute an adverse impact of significance (but not to the extent necessary to constitute a factor of aggravation for the purposes of s 21A(2) of the Sentencing Procedure Act).

73. I also set out in some detail later, as it is relevant to the nature of the practical measures which the Company might take that are relevant to s 241(1)(b) of the POEO Act, those matters arising from the limited implementation measures actually undertaken (from amongst the broader range of measures proffered by the Company in its proposed enforceable undertakings). There is no doubt that, on the basis of my later consideration of Ms Anthony's evidence, I am satisfied that the Company has taken a range of practical measures to ensure that the harm arising from the offending conduct, for which it is being sentenced, is less likely to occur in the future.

74. Whilst those measures will not be ones of perfection, I am satisfied that, at least to some extent, some appropriate prevention and mitigation measures have been taken by the Company. However, as is demonstrated by the bringing of these proceedings, there will need to be considerable care taken by the Company to ensure that there is no further deliberate or inadvertent breach of the POEO Act by offending conduct encompassed by s 144AA of the Act.

75. As later discussed in my consideration of whether or not an element of specific deterrence is provided by the sentencing outcomes in these proceedings, those sentencing outcomes should send a clear message to the Company that it will need to consider, on an ongoing basis, whether further preventative measures require to be undertaken to avoid any possibility of future offending conduct.

76. There is no doubt that, properly addressed by the Company and its relevant employees, as required to be considered for the purposes of s 241(1)(c) of the POEO Act, the damage to the regulatory system (and hence, the harm arising) caused by the breaches of s 144AA (whether subs (2) or subs (1) being irrelevant for present purposes) were foreseeable because the systems that were operated by Mr Al Sarray (either directly or by his supervision of Mr Sidawi) were such that there was knowledge of the falsity (for three of the offences) of the documents which were provided. In circumstances where provision of deliberately falsified material giving rise to the absence of necessary detailed information concerning the disposal of waste as required by the Waste Regulation was an inevitable consequence of the provision of the falsified information, the harm to the regulatory systems earlier discussed was entirely foreseeable.

77. Finally, with respect to s 241(1)(d) of the POEO Act, there is no doubt that the Company had complete control over the relevant conduct of Mr Al Sarray directly and of his supervision of Mr Sidawi where that conduct gave rise to the three breaches of s 144AA(2). To the extent that a differential consideration is required for the single offence of a breach of s 144AA(1), there is no doubt that the Company had control over the use of its office and information technology systems and, had it properly instructed its employees (particularly, but not exclusively, Mr Al Sarray) about the necessity to provide accurate, rather than manipulated, information concerning waste transported and disposed of by the Company, this offence could also have been prevented.

Sentencing Procedure Act factors

Introduction

78. Before turning to the various matters arising pursuant to s 21A(2) and (3) of the Sentencing Procedure Act potentially here engaged, it is appropriate to make a brief general observation concerning how these matters are to be approached. This is necessary because the burden of proof differs depending on the nature of that which requires consideration.

79. For the purposes of establishing any potential factor of aggravation, I must conclude that such factor is proved beyond reasonable doubt. On the other hand, for favourable subjective factors applicable to the Company (including those matters potentially arising from s 21A(3)), it is only necessary for the Company to establish that factor on the balance of probabilities (R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (R v Olbrich) at 281).

Aggravating factors

80. The Prosecutor does not seek that I conclude that any of the factors of aggravation set out in s 21A(2) of the Sentencing Procedure Act are engaged to be considered for this sentencing process.

The Company’s subjective factors

Introduction

81. This section of my consideration requires an analysis of those matters that relate to the Company itself, rather than to the offending conduct that gave rise to any charge to which it has pleaded guilty. For any mitigating factor to be engaged, the Company must establish a proper basis for it on the balance of probabilities (R v Olbrich).

Harm ‑ s 21A(3)(a)

82. I have earlier addressed, in my consideration of matters required by s 241 of the POEO Act, the extent of the harm caused by the Company’s offending conduct. For reasons there explained, there is no mitigating weight in the Company’s favour arising from that consideration.

Prior offences ‑ s 21A(3)(e)

83. The second relevant factor is whether the Company has “any record (or any significant record) of previous convictions”. It is agreed that the Company has no relevant prior convictions.

84. However, the Prosecutor submitted that the benefit of such a “clean skin” position providing any sentencing advantage to the Company should be confined to the sentencing outcome to be derived from the first in time of the offences to which the Company has pleaded guilty. This proposition was advanced in the Prosecutor’s written submissions on sentence in the following terms:

93 So far as the Prosecutor is aware, the Defendant has not previously committed an offence against the POEO Act or any other environmental protection statute. The Defendant’s lack of prior offending is a matter which has some weight when considering the first offence, but when the Defendant comes to be sentenced for Charges 2, 3 and 4, it no longer has the benefit of being a first‑time offender. Where, as here, an offender has committed multiple dishonesty offences over a period of 8 months, prior good character is afforded less weight.

85. In this context, the Prosecutor referred to an element of the Judicial Commission’s Sentencing Bench Book at folio 9519, citing the proposition there recorded that:

An offender's lack of previous criminal record will not be accorded the significance it might have had, where he or she has committed a large number of offences over a long period of time.

86. The case there cited (R v Chan [2000] NSWCCA 345) involved 27 fraud offences committed over a six‑month period. I am satisfied that there is no valid analogy available for present purposes.

87. In response, the Company's written submissions on sentence, at paragraphs 67 and 68, addressed this proposition in the following terms:

67.   Contrary to PS [93], that absence of a prior criminal history should not be ignored merely because the defendant has been charged with four offences. The fact that, prior to these proceedings, ACE had not been charged with any criminal conduct, and that all four offences have proceeded together, means that the “formal condemnation of the law” and “the warning as to the future which the conviction experience implies” is being given for the first time concurrently with all four offences. That applies equally to all four offences, not just to charge 1 as the prosecutor suggests. …

68. Pursuant to s 21A(3)(e) of the CSPA the absence of any previous criminal history and convictions is required to be taken into account as a mitigating factor in relation to all four charges, not just charge 1.

88. Mr Potts also addressed this topic further in his oral submissions. Given the conclusion which I have reached (one based on my agreement with the extract from the Company's written submissions set out above), it is not necessary to set out what Mr Potts advanced in his oral submissions.

89. The proposition advanced on behalf of the Prosecutor, I am satisfied, is misplaced. I have reached this conclusion (a matter to which it will be necessary to return in my consideration of questions of totality and accumulation of the sentences to be imposed on the Company) because I am satisfied that all four of the offences to which the Company has now pleaded guilty should be regarded as arising out of, and forming part of, a single continuing course of conduct. With respect to the three incidents where Mr Al Sarray was the known falsifier of the information (even if its transmitter on only two of the occasions), these all clearly, in my assessment, form part of a single course of conduct on his behalf and, therefore, by virtue of the operation of s 169C of the POEO Act, are to be attributed to the Company as its single course of conduct.

90. Whilst there is no proper basis upon which I can conclude (beyond reasonable doubt) that the fourth element of offending conduct was specifically carried out by Mr Al Sarray, I am satisfied, on the balance of probabilities (R v Olbrich), that this should be regarded as part of the same course of conduct ‑ concluding (on the balance of probabilities) that author/disseminator of the falsified information was Mr Al Sarray).

91. If I am wrong in the conclusion I have reached concerning the offending conduct and I ought conclude it is not established that Mr Al Sarray was the relevant instigator whose moral culpability is to be attributed to the Company for the s 144AA(1) offence, I am nonetheless satisfied that that alternative position should not, in the circumstances of the Company's overall offending, cause me not to treat the Company as having no prior convictions for sentencing purposes for all four offences to which it has pleaded guilty.

92. This factor is one weighing in its favour.

Is the Company a good corporate citizen? ‑ s 21A(3)(f)

93. I have no evidence of any community or societally beneficial activities undertaken by the Company, nor of any charitable support provided by the Company. I am, therefore, unable to conclude that the Company is of good corporate character. This factor, therefore, is neutral for my present sentencing purposes.

The likelihood of reoffending ‑ s 21A(3)(g)

94. For the purposes of this consideration, I am satisfied that the Company is unlikely to breach s 144A(2) in future, given the measures that are discussed below arising out of Ms Anthony's affidavit concerning the reorganisation of the Company's activities and the lack of likelihood of Mr Al Sarray offending again in the fashion for which he has been punished. However, with respect to the potential for the Company committing further breaches of s 144A(1), I cannot be satisfied that there has been sufficient reorganisation of the Company's record‑keeping systems (including obtaining dockets from drivers) to be certain that future inadvertent provision of false and misleading information concerning waste, during the course of dealing with waste, would not arise.

95. The lack of information concerning the unimplemented matters proffered by the Company in its proposed enforceable undertakings (as also discussed below) contributes to this guarded conclusion.

96. I am satisfied that this factor is to be regarded as neutral for present sentencing purposes.

Contrition and remorse ‑ s 21A(3)(i)

Introduction

97. In Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 (Ausgrid), at [80], Pepper J summarised the four types of action set out by Preston CJ in Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 as ones which may demonstrate genuine contrition and remorse in satisfaction of these requirements [citations excluded]:

(a)   first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence;

(b)   second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities;

(c)   third, taking action to address the cause of the offence; and

(d)   fourth, the personal appearance of corporate executives in court to give personal evidence of the Defendant’s regret and a plan of action to avoid repetition of the offence.

The apology made on behalf of the Company

98. Ms Nicole Anthony had given oral evidence during the liability hearing. I have earlier noted that a further affidavit from Ms Anthony was read on behalf of the Company for the purposes of the sentencing hearing. Matters arising from her further affidavit were the subject of contest between the parties as to the extent to which I was invited to conclude that the Company had (or had not) expressed genuine contrition and remorse for its offending conduct. In this context, it is first appropriate to set out her description of her role with the Company in her further affidavit. The relevant paragraphs are in the following terms:

Background

5   I have worked at ACE since November 2002.

6   My formal role in ACE is office manager. That role encompasses a wide range of responsibilities, including:

a.   personal assistant to Mr Sami Allam, the sole director of ACE;

b.   office manager;

c.   fleet manager;

d.   safety manager; and

e.   compliance manager.

7   As part of my role, I report directly to Mr Sami Allam, and I speak to him on a regular basis.

238. Part 8.3 of the POEO Act permits the making of additional orders upon conviction for offences under this legislation. Section 250(1)(a), earlier set out, expressly makes it clear that orders made pursuant to Pt 8.3 are in addition to and not in substitution for the appropriate punishment for an offence for which a conviction (here relevant) is entered. The difference between penalties imposed on conviction and additional orders was addressed by the Court of Criminal Appeal in Budvalt. In that matter, Price J (Preston CJ of LEC and Adamson J agreeing) said, at [56] to [68]:

56 The appellant company’s complaint is that the judge rejected Mr Elliott’s submission that the making of a publication order would be a matter to be taken into account in determining the amount of any fine. His Honour said that an order under s 353G of the WMA was an “additional” order and Mr Elliott had not cited any authority for his submission. [18]

57   The appellant company’s argument in this Court is founded on the deterrent effect of a publication order. The argument is that the amount of the fine may be reduced as the need for deterrence is lessened when a publication order is made.

58   The deterrent effect of publication orders is well recognised. As Preston CJ of LEC explained in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 (“Waste Recycling and Processing”) at [242]:

“[242] Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma...”

59   Publication orders serve purposes other than deterrence. In Harris v Harrison, [19] Simpson J observed at [118] “that a publication order, while not a penalty, is intended to be remedial and even educative, rather than punitive, and to have a deterrent effect”.

60 The construction of the WMA does not support the appellant company’s argument. Orders under s 353G fall within Part 3A of the WMA whereas penalties which are imposed under s 363B fall within Part 5 of the WMA.

61   Part 3A provides for the making of court orders in connection with offences and applies when a court finds a person guilty of an offence against the WMA.

62 The orders that may be made under Part 3A specifically include orders for restoration and prevention (s 353B), orders for costs, expenses and compensation (s 353C), and orders regarding monetary benefits (s 353F). An order for publication under s 353G(1)(a) is an additional order to the orders that may be made under the Part. Section 353A is as follows:

353A   Orders generally

(1)   One or more orders may be made under this Part against the offender.

(2)   Orders may be made under this Part in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. (emphasis added)

63   Part 5 of the WMA provides for legal proceedings and appeals which includes the maximum penalties for offences (s 363B), proceedings for offences (s 364) and matters to be considered in imposing a penalty for an offence against the WMA (s 364A).

64   The separation of orders and penalties in distinct parts of the WMA and the language employed in s 353A(2) point to the independent determination of penalties and orders as does the sentencing regime for penalties established by s 364A.

65   Section 364A(1) specifies in sub‑paragraphs (a) to (k) the matters that “the court is to take into consideration” when imposing a penalty, none of which includes the making of a publication order. Furthermore, s 364A(1) does not require a court when imposing a penalty to take into consideration any of the orders that a court might make under Part 3A.

66   The absence of any reference to Part 3A orders in s 364 stands in stark contrast to s 364A(1)(k), which obliges the court to take into consideration:

364A   Matters to be considered in imposing penalty

…

(k)   any civil penalty that has been imposed on the person under section 60G in relation to the conduct from which the offence arises.

67   Section 60G enables the Minister to impose “a charge for water taken (which may include a penalty component) not exceeding 5 times the value of the water so taken…” [20]

68   I am not persuaded that the court is obliged when determining the appropriate penalty to take into consideration the making of a publication order. The determination of the appropriate penalty is a discretionary judgment which is to be exercised separately from the exercise of the discretion to make a publication order or any other order under Part 3A.

240. That discussion was in the context of a proposal on behalf of the defendant in those proceedings that the cost of compliance with a publication order made pursuant to s 353G of the Water Management Act 2000 (the Water Management Act) should be taken into account when fixing the financial penalty to be imposed as a consequence of that defendant’s offending conduct. Although the prosecution in Budvalt was for a breach of the Water Management Act, the principles discussed in the decision of the Court of Criminal Appeal are equally applicable here as the publication order was made pursuant to s 353G of the Water Management Act, a provision in Pt 3A of that Act, a Part which is in the same terms as Pt 8.3 of the POEO Act.

241. What arises in these sentencing proceedings is not the proposal that the cost of compliance with a publication notice should be taken into account in fixing the penalties here appropriate to be imposed on the Company. Instead, what is advanced on behalf of the Company is that making an order imposing the requirement for a publication notice, if imposed for the purposes of general deterrence, would be contrary to the objectives for sentencing, in particular, that contained in s 3A(b) of the Sentencing Procedure Act. This provision (emphasis added) is in the following terms:

3A   Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows—

(a)   …,

(b)   to prevent crime by deterring the offender and other persons from committing similar offences, The Company's submissions

The submissions for the Company

242. Mr Potts outlined, in his oral submissions, why it was submitted for the Company that I could not impose a publication order because to do so would be contrary to the above quoted objective of the Sentencing Procedure Act. He submitted (Transcript 23 August 2022, page 514, line 13 to page 515, line 25):

POTTS: … But, what we say in substance is this, your Honour, that it doesn’t seem to be in dispute that pt 8.3 of the POEO Act contains orders that are consequent upon either conviction or s 10 finding.

HIS HONOUR: Yes.

POTTS: And so they're logically discrete and separate from a sentencing power. So, the sentencing exercise is entirely discrete and separate from what I’ll call the additional orders power in pt 8.3.

HIS HONOUR: Yes.

POTTS: It’s clear, we say, that when determining whether to exercise any of the various powers under pt 8.3, the purpose actuating the Court’s discretion, so the reason why the Court makes an order and exercises its undoubted discretion to make additional orders under pt 8.3, cannot be, we submit, a punitive purpose in order to impose additional punishment.

HIS HONOUR: I accept that proposition as a broad proposition.

POTTS: That may be an incident effect, if there’s another purpose, what we call a remedial or preventative purpose. If there’s an incident effect, that much would be fine. But if the purpose which drives the Court to exercise the discretion is to impose additional punishment, we say that would be an impermissible purpose, and one which seeks to impose an additional punishment not authorised by law.

And so our point is, in order to be persuaded, your Honour should make, I’m sorry, there’s an extension to that which requires some elaboration, and it’s this, that under the Crimes (Sentencing Procedure) Act 1999, what the Court is told by that Act is that there are various purposes for sentencing in s 3A of that Act, and 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, et cetera.

We develop our submission by putting this proposition, that deterring other persons from committing similar offences is by dint of that statutory description of the purposes an aspect of the sentencing process and an aspect of the punishment process for which the sentence is imposed. It’s built in, we say, to the sentence that your Honour is authorised to impose under s 144AA(1) and 144AA(2). I'll come to Budvalt in a moment to address your Honour on what that case did and did not decide.

What we submit by extension of the first proposition which in general terms I put to your Honour is that if the only purpose of making a pt 8.3 order, including a publication order, were to instil general deterrence, that, we say, is an impermissible purpose because it’s part of the punishment and part of the sentence. What we say is, on a proper view, on a statutory construction view of pt 8.3, the real purposes of pt 8.3 are to either remediate consequences of the offending, to take some step to prevent the ongoing consequence of those offending, or it has to be, in our respective submission, remedial and corrective in nature. It can't be punitive.

That’s really our point, and we say, in order to properly and lawfully exercise the discretion, your Honour needs to be satisfied, even if there is an incidental punishment purpose, but your Honour needs to be satisfied what is the purpose for which I'm being asked to do this, how is it relevantly remedial in the sense that it will remediate some consequence of the offending conduct or prevent its occurrence, and it’s only if your Honour can form a view that there is a purpose of that character which is properly within the statutory purposes of the provisions in that part, your Honour can then make the publication order.

243. As can be seen from the above transcript extract, Mr Potts acknowledged that this was a novel proposition advanced on behalf of the Company, one which, as far as he was aware, had not previously been addressed.

The Prosecutor’s subsequent response

244. After the conclusion of the submissions for the Company, the Prosecutor responded, briefly, to what had been advanced on behalf of the Company in resisting me making a publication order. The Prosecutor submitted (Transcript 23 August 2022, page 520, line 46 to page 521, line 1):

PROSECUTOR: The other matter is a matter of law, your Honour, and that is the proper construction of pt 8.3 of the POEO Act. So far as concerns publication orders, your Honour, we submit that the purpose is to instil confidence in the regulatory scheme by bringing home to people that offenders against the requirements of the scheme, the obligations imposed by the scheme, will be punished.

Consideration

245. I have earlier explained why, in my fixing of the penalties appropriate to be imposed on the Company for the four offences of which it is to be convicted, sentencing the Company having regard to the objective circumstances of its offending conduct in each instance and having regard to the Company's subjective circumstances, is the process of instinctive synthesis demanded for my determination of what the appropriate starting monetary penalties are for each of the offences. This step is the necessary prerequisite to applying the discount I have considered appropriate for the Company's guilty pleas to the four offences for which it is being sentenced and, then, moving to consider questions of totality and accumulation in the fashion I have also addressed earlier as giving rise to a degree of moderation of the penalties finally to be imposed. Having regard to the need for general deterrence is an element of that instinctive synthesis process.

246. The making of a publication order, in conjunction with the imposition of financial penalties imposed for breaches of the POEO Act, has become a common occurrence as an outcome for environmental prosecutions in this Court (bearing in mind that less serious environmental prosecutions are not infrequently undertaken in the Local Court, a tribunal where the power to impose additional orders pursuant to Pt 8.3 of the POEO Act is not available to a sentencing Magistrate).

247. Whilst there has been frequent commentary in sentencing decisions of this Court as to the utility of publication orders for general deterrence purposes and some commentary concerning the “name and shame” utility of such orders, such commentary has been made in the context where there has been no resistance to the making of such publication orders (although there have been disputes as to wording or as to the publications to be specified for the publication of the notice describing the particular defendant’s conviction).

248. Indeed, in two recent decisions of my own (Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75 at [91] and Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113 at [179] and [180]), I have written of the desirability of sending a deterrent message to others involved in the relevant industry in which the defendant in each of those cases was engaged.

249. However, as I observed to Mr Potts during the course of his submissions on this topic, a publication notice should be regarded as having a broader community educative function about environmental law enforcement, an educative function not directed merely at those who might also be engaged in the same industry as the defendant.

250. Here, although the specific requirement for publishing the notice in Inside Waste magazine is likely to have, as its dominant outcome, communication of an industry specific deterrent effect (and accepting that the casual readership of this publication is likely to be low), the publication of the notice in the Daily Telegraph (this being the publication which I have selected as that which is appropriate, from the two options proposed by the Prosecutor) will undoubtedly have that broader community educative outcome.

251. Indeed, given that there is, unfortunately, a reasonably regular stream of such publication orders across a range of industries as a result of environmental transgressions, the publication order being made with respect to the Company's offending conduct merely provides an additional element in a mosaic of such orders, making it clear in a broad community context that breaches of environmental laws are not matters to be dealt with in a trifling fashion.

252. This broad community educative function is, in itself, sufficient to provide a separate and discrete basis for imposing such a publication requirement on the Company.

253. However, it is also necessary to address what Mr Potts advanced on behalf of the Company concerning what I understood to be a submission that, in effect, incorporating an element of general deterrence in the monetary penalty to be imposed and making a publication order also for deterrent purposes would amount to double imposition of a penalty for this purpose.

254. I am satisfied that that position is also to be rejected, separately, from the community educative basis upon which such an order might be founded. It is in this context that I am satisfied that the reasoning of the Court of Criminal Appeal in Budvalt as earlier set out applies by analogy. The financial penalties imposed as a result of consideration mandated not only by the objectives of the Sentencing Procedure Act, but also the specific factors potentially or actually engaged in consideration of matters in s 21A(2) and (3) of that Act, lead to the determination of what is the potential financial penalty to be imposed within the upper limit of the maximum financial penalty defined by the offence creating statutory provision.

255. Here, the Company stands to be sentenced for one offence where the maximum penalty available to be imposed is half of that of the maximum penalty available for each of the other three offences to which the Company has pleaded guilty.

256. In each of the instances, the mandated process of instinctive synthesis has been undertaken by me to determine the appropriate starting penalty for each of the four charges. That instinctive synthesis process, one requiring me to have regard to the objective characterisation of the Company's offending conduct and of the specific factors peculiar to the Company leads to my determining those pre‑discount and pre‑moderation starting penalties.

257. Part 8.3 of the POEO Act sits separately from, and expressly in addition to, any monetary penalties determined through the mandated instinctive synthesis process requiring consideration of the relevant objective and subjective factors.

258. It seems to me that the sentencing exercise undertaken through the framework set out by the Sentencing Procedure Act permits the necessity for general deterrence to be considered in the fixing of financial penalties. However, because publication orders are expressly separate from, and in addition to, those monetary penalties, a purposive reading of how this total potential sentencing regime under the POEO Act operates means that the incorporation of the desirability of deterring others as provided for in s 3A(b) of the Sentencing Procedure Act cannot operate to exclude an order pursuant to s 250(1)(a) of the POEO Act, even if the purpose of the resulting publication was to be regarded as being exclusively for general deterrent purposes.

The terms of the notice to be published

259. Three matters arose in the context of the Prosecutor’s proposed publication order. The first related to the choice of the general publication in which the notice is to be inserted. After I raised with the Prosecutor whether or not the Daily Telegraph might be a more appropriate publication than the Sydney Morning Herald, the Prosecutor subsequently indicated that it was appropriate for me to choose which of those publications was the appropriate vehicle for the notice. I am satisfied that, for the purposes of achieving the broader community educative function, publication in the Daily Telegraph would be appropriate.

260. Two aspects of the proposed text of the notice were raised by the Company.

261. For the first of them, the Company proposed that, after the words “ACE Demolition & Excavation Pty Ltd”, in the second paragraph of the notice, the following additional words should be added:

by one of its employees sending four emails

so that the relevant sentence would read, in its entirety:

In April, June and December 2017, Ace Demolition & Excavation Pty Ltd, by one of its employees sending four emails, supplied a total of approximately 603 weighbridge disposal dockets (also known as tipping dockets) and three documents containing summaries of information relating to the disposal of waste which variously misrepresented or falsely recorded the source site of asbestos and other waste deposited at three landfill facilities.

262. This position was opposed by the Prosecutor on the basis that (Transcript 23 August 2022, page 519, lines 3 to 15):

Your Honour, the insertion proposed in the second paragraph, of the words “by one of its employees sending four emails”, minimises what it was that was done. Firstly, anything a company done will always be by its employees or officers or its board, and really isn’t the issue that needs to be brought home to people, that the breach of the legislation brings with it punishment, but, secondly, it was more than just four emails.

There were all these attachments, and it was the attachments that did the harm, in our respectful submission, and they involved dishonesty, and they were what resulted in the emails being false and misleading, not the emails themselves, so unless there is a far more detailed description to accompany the reference to four emails, we would submit that the proposal that those extra words be inserted not be accepted.

263. I am satisfied that the position advanced by the Prosecutor in resisting this amendment is to be preferred. The proposed amendment would have the effect of limiting a proper understanding of the scope of the Company's offending conduct. I am also satisfied that the position advanced by the Prosecutor is an appropriately balanced one under the circumstances.

264. The second amendment sought by the Company (being a reference to asbestos), was accepted by the Prosecutor as being appropriate in light of what was now reflected in the Statement of Agreed Facts. This accepted amendment is reflected in the terms of the wording of the notice set out in Annexure B to this decision.

265. During the course of the hearing, I had asked the Prosecutor whether any publication order which I made should encompass publication on the Company's website and any social media account which the Company might maintain. The Prosecutor subsequently advised me that no order for social media publication in a broad sense was proposed for the notice proposed to be ordered pursuant to section 250 (1) (a) of the POEO Act but that the Prosecutor considered it appropriate that I order the notice be published on the Company's homepage on its website.

266. I am satisfied that such electronic publication would be appropriate and this will be included in the orders at the conclusion of this judgment (together with a requirement as to the time period during which the notice is to appear on the Company's website and a requirement that a screenshot of the Company's homepage on its website be provided to the Prosecutor at the same time as the relevant pages of the publications in which the notice is to be printed are provided to the Prosecutor).

A moiety order

267. Section 122 of the Fines Act provides the basis upon which a prosecutor can be awarded a moiety (50%) of any fine which is imposed on a defendant as punishment for offending conduct. In its oral submissions, the Prosecutor sought that a moiety of the overall penalty to be imposed on the Company be paid to the Prosecutor.

268. Preston CJ discussed, in Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 between [102] and [111], the origins of, and broad operative scope for, orders awarding a moiety to a prosecutor pursuant to s 122 of the Fines Act.

269. Making such orders provides money, in addition to a prosecutor’s conventional budgetary funding, which is likely to support the sustaining, on a more general basis, of environmental law enforcement activities of the prosecuting authority.

270. Making such an order concerning the total of the financial penalties to be imposed, in this instance, is not objected to by the Company.

271. It is also sufficient to note that the discretion to make such an order is broad and has frequently been exercised in this Court (as I will in this instance).

Investigation costs

272. The Prosecutor does not seek an order that the Company pay any investigation costs arising out of these proceedings.

Costs

273. As earlier discussed, the Company does not contest that it is appropriate that I make an order pursuant to s 257G(b) of the Criminal Procedure Act that the Company pay the Prosecutor's costs of its prosecution of the Company has agreed or assessed. I am satisfied that it is appropriate to make that order.

Orders

274. In Matter No 357465 of 2020, the orders of the Court are:

1. ACE Demolition and Excavation Pty Ltd (the Defendant) is guilty of an offence pursuant to s 144AA(2) of the Protection of the Environment Operations Act 1997 in that, on or about 18 April 2017, the Defendant transmitted information concerning waste during the course of dealing with waste where that information was false or misleading in a material respect and the Defendant knew that the information was false or misleading in a material respect;

2. The Defendant is convicted;

3. The Defendant is fined $300,000; and

4. The Defendant is to pay a moiety (50%) of the fine to the Registrar of the Court for payment to the Prosecutor pursuant to s 122 of the Fines Act 1996.

275. In Matter No 357466 of 2020, the orders of the Court are:

1. ACE Demolition and Excavation Pty Ltd (the Defendant) is guilty of an offence pursuant to s 144AA(2) of the Protection of the Environment Operations Act 1997 in that, on or about 2 June 2017, the Defendant transmitted information concerning waste during the course of dealing with waste where that information was false or misleading in a material respect and the Defendant knew that the information was false or misleading in a material respect;

2. The Defendant is convicted;

3. The Defendant is fined $270,000; and

4. The Defendant is to pay a moiety (50%) of the fine to the Prosecutor pursuant to s 122 of the Fines Act 1996.

276. In Matter No 357468 of 2020, the orders of the Court are:

1. ACE Demolition and Excavation Pty Ltd (the Defendant) is guilty of an offence pursuant to s 144AA(2) of the Protection of the Environment Operations Act 1997 in that, on or about 2 December 2017, the Defendant transmitted information concerning waste during the course of dealing with waste where that information was false or misleading in a material respect and the Defendant knew that the information was false or misleading in a material respect;

2. The Defendant is convicted;

3. The Defendant is fined $240,000; and

4. The Defendant is to pay a moiety (50%) of the to the Prosecutor pursuant to s 122 of the Fines Act 1996.

277. In Matter No 357467 of 2020, the orders of the Court are:

1. ACE Demolition and Excavation Pty Ltd (the Defendant) is guilty of an offence pursuant to s 144AA(1) of the Protection of the Environment Operations Act 1997 in that, on or about 12 June 2017, the Defendant transmitted information concerning waste during the course of dealing with waste where that information was false or misleading in a material respect;

2. The Defendant is convicted;

3. The Defendant is fined $133,650; and

4. The Defendant is to pay a moiety (50%) of the fine to the Prosecutor pursuant to s 122 of the Fines Act 1996.

278. In all matters, the orders of the Court are:

1. ACE Demolition and Excavation Pty Ltd (the Defendant) is to pay the Prosecutor's costs as agreed or assessed pursuant to s 257G(b) of the Criminal Procedure Act 1989;

2. The exhibits are returned; and

3. Pursuant to section 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the Defendant, at its own expense, must, within 28 days of this order, cause a notice in the form of Annexure “B” to be placed within the following publications:

1. Inside Waste magazine within the first 15 pages of the next available issue at a minimum size of a quarter of a page;

2. The Daily Telegraph within the first 15 pages on a right‑hand page at a minimum size of a quarter of a page; and

3. Pursuant to section 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the Defendant, at its own expense, must, within 28 days of this order, cause a notice in the form of Annexure “A” to be placed on the “home page” section of its website for a minimum of 30 days.

4. Within 42 days of the date of this order, the Defendant must provide to the Prosecutor a complete copy of the pages of the publications on which the notice appears.

**********

I certify that this and the 124 preceding pages are a true copy of the reasons for the judgment of the Honourable Justice Moore.

………….……………………………….

Associate

2 February 2023

Annexure A

Summary Table of Charges

Charge No.	Relevant POEO Sections	Details of Email	Pleaded particulars re false or misleading in a material respect
ACE ‑ 2020/357465 Allam ‑ 2020/357476	ACE ‑ 144AA(2) Allam ‑ 169A (144AA(1))	Email sent on 18 April 2017 at 7:23pm by Munaf Al Sarray to Peter Maroun (Top Pacific Construction Aust Pty Ltd)	(i) In respect of 70 documents purporting to be weighbridge dockets issued by SUEZ in relation to disposal of 70 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the Suez Elizabeth Drive Landfill ‑ the dockets were not issued by Suez in relation to those circumstances; and/or (ii) In respect of 148 purported weighbridge dockets issued by Dial‑A‑Dump in relation to disposal of 148 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the Dial‑A‑Dump Landfill ‑ 140 of the documents were not dockets issued by Dial‑A‑Dump in relation to those circumstances.
ACE ‑ 2020/357466 Allam ‑ 2020/357475	ACE ‑ 144AA(2) Allam ‑ 169A (144AA(1))	Email sent on 2 June 2017 at 12:50pm by Munaf Al Sarray to Glen Allen (Westbourne Constructions Pty Ltd)	(i) In respect of 70 documents purporting to be weighbridge dockets issued by SUEZ in relation to disposal of 70 truckloads of soil contaminated with asbestos from the Zetland Premises to the Suez Elizabeth Drive Landfill ‑ those dockets were not issued by Suez in relation to those circumstances; and/or (ii) In respect of 147 purported weighbridge dockets issued by Dial‑A‑Dump in relation to disposal of 147 truckloads of soil contaminated with asbestos from the Zetland Premises to the Dial‑A‑Dump Landfill ‑ 134 of the documents were not dockets issued by Dial‑A‑Dump in relation to those circumstances.
ACE ‑ 2020/357467	ACE ‑ 144AA(1)	Email sent on 12 June 2017 at 11:24am by "[email protected]" to Eric Gerges (El Australia Pty Ltd)	(i) In respect of 48 dockets purporting to be weighbridge disposal dockets issued by SUEZ purporting to contain info re disposal of 48 truckloads of soil contaminated with asbestos from Wolli Creek Premises to Suez Elizabeth Drive Landfill ‑ the dockets were not issued by SUEZ in relation to those circumstances; and/or (ii) In respect of an Excel spreadsheet titled “Ace 120217 to 300317” purporting to contain info re disposal of 70 truckloads of soil contaminated with asbestos from Wolli Creek Premises to Suez Elizabeth Drive Landfill ‑ the 70 truckloads were not related to disposal of soil from Wolli Creek to Suez; and/or (iii) In respect of 153 purported weighbridge dockets issued by Dial‑A‑Dump re disposal of 153 truckloads of waste material from Wolli Creek Premises to the Dial‑A‑Dump Landfill ‑ 141 of these were not dockets issued by Dial‑A‑Dump in relation to those circumstances; and/or (iv) In respect of an Excel spreadsheet titled “Wolli Creek Summary” purporting to contain info re disposal of 95 truckloads of soil contaminated with asbestos from Wolli Creek Premises to the Dial‑A‑Dump Landfill ‑ 89 of these truckloads were not related to those circumstances.
ACE ‑ 2020/357468 Allam ‑ 2020/357477	ACE ‑ 144AA(2) Allam ‑ 169A (144AA(1))	Email sent on 2 December 2017 at 1:53pm by Ameer Sidawi to Eric Gerges (El Australia Pty Ltd)	In respect of a document titled ‘Wolli Creek Summary’ purportedly created by Besmaw purporting to contain information regarding the disposal of approximately 622 truckloads of waste material from the Wolli Creek Premises to the Holt Landfill ‑ that document was not created by Besmaw, and none of the truckloads referred to in the document were related to the disposal of waste material from Wolli Creek Premises to the Holt Landfill.

Annexure B

Ace Demolition & Excavation Pty Ltd convicted of supplying information about waste knowing that the information was false or misleading

On 2 February 2023, Ace Demolition & Excavation Pty Ltd was convicted by the Land and Environment Court of NSW of three offences of supplying information about waste knowing that the information was false or misleading in a material respect pursuant to section 144AA(2) of the Protection of the Environment Operations Act 1997 (NSW), and one offence of supplying information about waste that was false or misleading in a material respect pursuant to section 144AA(1) of the Protection of the Environment Operations Act 1997 (NSW).

In April, June and December 2017, Ace Demolition & Excavation Pty Ltd supplied a total of approximately 603 weighbridge disposal dockets (also known as tipping dockets) and three documents containing summaries of information relating to the disposal of waste which variously misrepresented or falsely recorded the source site of asbestos and other waste deposited at three landfill facilities.

The weighbridge disposal dockets and summaries were supplied by Ace Demolition & Excavation Pty Ltd to two separate entities who were clients of the company, as well as to the environmental consultants for one of the entities, in relation to two separate development sites located in Wolli Creek and Zetland in Sydney, respectively.

Ace Demolition & Excavation Pty Ltd was prosecuted by the NSW Environment Protection Authority and pleaded guilty to the four offences. The company was sentenced by the Land and Environment Court to:

1.       pay fines totalling $943,650; and

2.       pay the Environment Protection Authority’s legal costs.

This notice was placed by order of the Land and Environment Court of New South Wales.

Decision last updated: 02 February 2023