Environment Protection Authority v Afram - [2022] NSWLEC 38

Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Afram [2022] NSWLEC 38
Hearing dates: 10 February 2022
Date of orders: 13 April 2022
Decision date: 13 April 2022
Jurisdiction: Class 5
Before: Pain J
Decision:
See [165]

Catchwords:
SENTENCING – pleas of guilty to three offences of supply of misleading information in a material respect about waste in the course of dealing with waste – defendant already sentenced for overlapping fraud offence under Crimes Act – potential for significant environmental harm as asbestos waste delivered to rural property – early plea of guilty – limited other mitigating circumstances
SENTENCING – plea of guilty to land pollution offence – deposition of asbestos and other waste on rural property unbeknownst to land holder who expected clean fill to be supplied – actual harm to the environment caused – potential for significant environmental harm – early guilty plea – limited other mitigating circumstances

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23
Crimes Act 1900 (NSW), s 192E
Criminal Procedure Act 1986 (NSW), ss 257B, 257G
Fines Act 1996 (NSW), ss 6, 122
Protection of the Environment Amendment Act 2005 (NSW)
Protection of the Environment Operations (General) Regulation 2009 (NSW) (repealed), cl 109
Protection of the Environment Operations Act 1997 (NSW), ss 3, 142A, 144AA, 241, 248, 250, Sch 1, Dictionary
Protection of the Environment Operations Amendment (Illegal Waste Disposal) Act 2013 (NSW)

Cases Cited:
Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152
Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chief Executive Office of Environment and Heritage v Somerville (No 2) [2021] NSWLEC 78
Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Environment Protection Authority v Aargus Pty Ltd; Kariotoglu; Kelly [2013] NSWLEC 19
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Complete Asbestos Removal Pty Ltd (2016) 221 LGERA 24; [2016] NSWLEC 167
Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60
Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (2019) 101 NSWLR 245; [2019] NSWCCA 174
Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 4) [2021] NSWLEC 123
Environment Protection Authority v Hanna (2018) 235 LGERA 114; [2018] NSWLEC 80
Environment Protection Authority v Hughes [2019] NSWLEC 108
Environment Protection Authority v Laison [2018] NSWLEC 76
Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) (2020) 247 LGERA 23; [2020] NSWLEC 166
Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57
Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24
Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312
Garrett v Freeman(No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1
Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785
Georgopolous v R [2010] NSWCCA 246
Hanna v Environment Protection Authority (2019) 280 A Crim R 575; [2019] NSWCCA 299
Hewitt v R (2007) 180 A Crim R 306; [2007] NSWCCA 353
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
Hurstville City Council v Romanous Construction Pty Ltd; Hurstville City Council v Romanous Contractors Pty Ltd [2016] NSWLEC 24
Kirby v R [2021] NSWCCA 162
Markarianv The Queen (2005) 228 CLR 357; [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Mun v R [2015] NSWCCA 234
NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Pfeiffer v R [2009] NSWCCA 145
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Anderson (1980) 2 A Crim R 379; [1981] VR 155
R v Badanjak [2004] NSWCCA 395
R v Dennison [2011] NSWCCA 114
R v Edwards (1996) 90 A Crim R 510
R v Israil [2002] NSWCCA 255
R v Kennedy [2000] NSWCCA 527
R v Leroy [1984] 2 NSWLR 441
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Peel [1971] 1 NSWLR 247
R v Smith (1987) 44 SASR 587
R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Visconti [1982] 2 NSWLR 104
Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2
Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd (2020) 245 LGERA 241; [2020] NSWLEC 125
Skelton v R [2015] NSWCCA 320
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7
Veen v The Queen(No 2) (1988) 164 CLR 465; [1988] HCA 14

Texts Cited:
T Walsh, H Douglas, "Sentencing Parents: The Consideration of Dependent Children" (2016) 37(1) Adelaide Law Review 135
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 May 2013
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 September 2005
Judicial Commission of NSW, Sentencing Bench Book (as at June 2021)
The Laws of Australia, vol 12, Criminal Sentencing (online as at 7 March 2022)

Category: Sentence
Parties: Environment Protection Authority (Prosecutor)
Fayed Afram a.k.a Fred Fram and Faid Fram (Defendant)
Representation:
Counsel:
H El-Hage (Prosecutor)
S Young (Defendant)
Solicitors:
Environment Protection Authority (Prosecutor)
Abbas Jacobs Lawyers (Defendant)

File Number(s): 2021/71054
2021/71052
2021/71048
2021/236724

Judgment

Mr Fayed Afram, also known as Fred Fram and Faid Fram, the Defendant has pleaded guilty to four offences under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) which took place from on or about 26 October 2016 to on or about 28 August 2017. In matter no. 2021/71054, 2021/71052 and 2021/71048 the Defendant has pleaded guilty to three contraventions of s 144AA(1) of the POEO Act of supplying false or misleading information in a material respect about waste in the course of removal of building and demolition material by the company of which he was a director, SSADCO Contractors Pty Ltd (SSADCO), at a project in Green Square Sydney for a company Ertech Pty Ltd (Ertech) (the Misleading Information Offences). In matter no. 2021/236724 the Defendant has pleaded guilty to an offence against s 142A(1) of the POEO Act which criminalises pollution of land (the Land Pollution Offence), occurring on land at 117 Cherry Lane, Kulnura NSW (the Kulnura site). The pollutants the subject of that charge were sourced from the Green Square project and numerous other locations.
It is necessary to sentence the Defendant for these offences. A plea of guilty can be considered as an admission of the essential elements of an offence. The offences are strict liability so that mens rea is not an essential element. When sentencing, any matter adverse to a defendant must be proved by a prosecutor beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich) at 281. Any contested matter relied on by a defendant must be established on the balance of probabilities: Olbrich at 281.

Particulars of offences

The summonses for the four charged offences specified the following particulars, summarised as follows.

Misleading information Offences

In relation to matter no. 21/71054 an offence against s 144AA(1) of the POEO Act, the summons particularised emails dated 26 October 2016 and three dated 17 November 2016, which purported to attach in total 132 false Weighbridge Disposal Dockets (WBDDs) and six false Weighbridge Waste Disposal Transaction Repots (WWDTRs) supplied to Ertech in the course of disposing of waste material including asbestos contaminated soil from a site in Green Square.
In relation to matter no. 21/71052 an offence against s 144AA(1) of the POEO Act, the summons particularised emails dated 1 February 2017, four dated 27 February 2017, six dated 27 March 2017, and one dated 31 March 2017 which purported to attach in total 183 false WBDDs and 16 false WWDTRs supplied to Ertech in the course of disposing of waste material including asbestos contaminated soil from a site in Green Square.
In relation to matter no. 21/71048 an offence against s 144AA(1) of the POEO Act, the summons particularised emails dated 28 April 2017, 30 May 2017, two dated 4 August 2017, and one dated 28 August 2017, which purported to attach in total 31 false WBDDs and 14 false WWDTRs supplied to Ertech in the course of disposing of waste material including asbestos contaminated soil from a site in Green Square.

Land Pollution Offence

In relation to matter no. 21/236724 an offence against s 142A(1) of the POEO Act, the summons specified the charge that from on or about 20 February 2017 to on or about 2 June 2017 inclusive at or near the Kulnura site, the Defendant polluted land. The pollutant specified was material including soil, wood, brick, concrete, tile, metal, plastic, glass, terracotta, more than 10 tonnes of asbestos waste within the meaning of cl 109 of the now repealed Protection of the Environment Operations (General) Regulation 2009 (NSW) (the POEO General Regulation) and cl 50 of Sch 1 of the POEO Act and/or restricted solid waste within the meaning of cl 109 of the POEO General Regulation and cl 49 of Sch 1 of the POEO Act. The pollutant was of a prescribed nature given its characteristics. The manner of breach specified included that the Defendant caused the pollutant to be placed in or on or otherwise introduced it onto the land and the pollutant caused or was likely to cause degradation of the land resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage that is not trivial.

Horsley Park site

The parties agreed in advance of the guilty pleas in these matters that the Defendant would plead guilty to the Land Pollution Offence considered in this judgment and the Prosecutor would not proceed with another charge under s 142A of the POEO Act (matter no. 21/236723) which occurred at 84-98 Truman Road, Horsley Park (the Horsley Park site). This agreement was recorded in order 3 of the short minutes of order dated 19 November 2021 in the Land Pollution Offence (matter no. 21/236724). This understanding was reached on the basis that the Court could take into account the facts and circumstances of the withdrawn charge pursuant to the common law sentencing principle discussed in Hanna v Environment Protection Authority (2019) 280 A Crim R 575; [2019] NSWCCA 299 (Hanna CCA) at [23]-[28].
A document entitled “Offence the Defendant wants the court to take into account when dealing with the offender for the offences” dated 8 February 2022 stated as follows, footnotes in square brackets:

1. The Offence [the conduct referred to at paragraph [56]…of the Statement of Agreed Facts in these matters. The basis of this document is the summons in the matter 21/236723]
That from on or about 9 August 2016 to on or about 4 November 2016 inclusive, at or near Horsley Park in the State of New South Wales, the Defendant committed an offence against section 142A(1) of the Protection of the Environment Operations Act 1997, in that he polluted land.
2. Particulars of the Offence
(a) Land
At or near 84-98 Truman Road, Horsley Park in the State of New South Wales (the Land).
(b) Pollutant
Material including soil, brick, tile, wood, metal, glass, concrete, roofing, plastic; asbestos waste within the meaning of cl 109 of the Protection of the Environment Operations (General) Regulation 2009 and cl 50 of Sch 1 of the Protection of the Environment Operations Act 1997; restricted solid waste within the meaning of cl 109 of the Protection of the Environment Operations (General) Regulation 2009 and cl 49 of Sch 1 of the Protection of the Environment Operations Act 1997.
(c) Manner of Breach
The Defendant:
• caused the Pollutant to be placed in or on, or otherwise introduced into or onto the Land; and
• the Pollutant caused or was likely to cause degradation of the Land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial; and/or
the Pollutant was of a prescribed nature, description or class namely, more than 10 tonnes of “asbestos waste” within the meaning of cl. 109 of the Protection of the Environment Operations (General) Regulation 2009 and cl 50 of Sch 1 of the Protection of the Environment Operations Act 1997 and/or “restricted solid waste” within the meaning of cl 109 of the Protection of the Environment Operations (General) Regulation 2009 and cl 49 of Sch 1 of the Protection of the Environment Operations Act 1997.

In Hanna CCA at [23] the Court of Criminal Appeal referred to a common law sentencing principle which permits additional offences admitted by a defendant to be taken into account in the sentencing process. The appellant in Hanna CCA like the parties in this matter did not dispute the existence of such a common law principle: at [27]. I will adopt a similar approach of considering the Horsley Park site circumstances as part of the necessary instinctive synthesis I am required to undertake in determining the appropriate sentence in relation to the Land Pollution Offence as there is a substantial overlap broadly in relation to the circumstances of the two offences. The volume of waste identified on the Horsley Park site and its environmental and human health impact is identified below at [23]-[25].

Fraud Offence

Another matter relevant to this sentencing process is a prosecution of the Defendant in the District Court for a charge of dishonestly causing financial disadvantage by deception under s 192E(1) of the Crimes Act 1900 (NSW) (Crimes Act) (the s 192E offence). The charge period was between 2 September 2016 and 29 September 2017. The charge specified that the Defendant caused financial disadvantage to Ertech by deception, namely $4,228,228, by way of the provision of false weighbridge documents and false invoices. The Defendant pleaded guilty to this offence in matter no. 2018/00254059 on 4 March 2021. On 24 June 2021 he was sentenced to two years’ imprisonment served by way of intensive correction order.

Sentencing remarks of King SC DCJ

Relevant extracts of the sentencing remarks of King SC DCJ in the District Court for the s 192E offence follow:

HIS HONOUR: Fayed Afram appears for sentence in respect of a single offence, being cause a financial advantage by deception, according to s 192E(1)(b) of the Crimes Act 1900. The maximum penalty provided is ten years’ imprisonment and there is no relevant standard non-parole period.
The offender was arrested on 17 August 2018 and was in custody for a period of 14 days. The matter was originally listed for trial to commence on 13 November 2020, and eventually on 16 November 2020 the trial date was vacated. On 4 March 2021, the offender entered a plea of guilty to the one count that I have referred to. That was a very belated plea of guilty, but I will allow 5% for the utility of the plea alone, as provided by the Earlier Appropriate Guilty Plea scheme.
The charge was that the offender between 2 September 2016 and 29 September 2017 at Zetland, did by deception, that is by the provision of false weighbridge documents and false invoices, cause a financial disadvantage to Ertech Pty Ltd, namely $4,228,228. The facts have been agreed and are as follows:
…
14. The monies claimed on the EPA waste levy of $2,398,656 have not been paid to the NSW state government. Whilst Ertech and the City of Sydney did not suffer any financial loss due to the conduct of the offender, they both suffered the risk of such loss.
…
16. The activities of the offender to facilitate this offending involved the offender engaging in a series of organised and coordinated activities to arrange the collection of the waste material, the unlawful disposal of the waste material, the production of approximately 600 counterfeit waste disposal dockets. The offender solely negotiated and was award the contract for the haulage of the disposal and organised in excess of 50 different trucks and all of the associated drives to cart the tonnes of waste across 600 individual truck movements.
17. The activities of the offender have exposed Ertech Pty Ltd to a significant financial disadvantage and occasioned the breaches of the various contracts, including the EPA levy required, a total amount of $4,228,288.
…
21…I must sentence the offender on the basis of the charge that has been laid on the agreed facts that have been provided to the court. I note however that in my view the real victims of the offence were the New South Wales community, as the NSW Environment Protection Authority did not receive the funds which would have then been applied to appropriate purposes on behalf of the community.
In addition, in my view, a major victim of the offence, at least to the extent that 10 tonnes of the waste was asbestos-contaminated and is part of what was illegally dumped on the private property in Cherry Lane, Kulnura, unbeknownst to the landowners. The dumping of contaminated waste on a private rural property must inevitably mean that the value of the property has been significantly diminished, or alternatively that the owner of the property is likely to be put to great expense to remove the contaminated material at some time in the future.
The offender demonstrated a significant disregard to the contractual obligations, as well as a significant disregard for the environment and the harm that he caused to at least the owner of the private property. As there is no standard non-parole period, it is not relevant to refer to the matter in terms of objective seriousness in relation to any range, including a midrange. In my view however, the offending is a serious example of such an offence.
…
It is unfortunate that the offender did not enter a plea of guilty at a much earlier time when a discount for the utility of the plea could have been considerably larger than the 5% that I have referred to. However, he also has the benefit of what I have previously referred to as matters relating to s 23 [of the Crimes (Sentencing Procedure) Act 1999 (NSW), ‘Power to reduce penalties for assistance provided to law enforcement authorities’]. In my view, those matters are significant and I am required to indicate a percentage discount in that respect. The Crown’s submission in the absence of any submission on behalf of the offender was that a range of 20 to 30% would be appropriate. I accept that that is an appropriate range, and I accept that 30% should be provided to the offender for the s 23 matters.
There is no necessity in relation to what is before me in that regard of any future assistance. I attribute the 30% to past assistance in its entirety. It is of course to be hoped that the offence will continue to provide, if he is in a position to do so, future assistance. But in the absence of any clear indication that any future assistance is either required or at least highly likely, it is impossible to determine a discount for future assistance. But as I have said, I will provide 30% entirely for past assistance.
…

The parties disputed whether the facts underlying this offence overlapped substantially or totally with those underlying the Misleading Information Offences, a question which I consider below.

Protection of the Environment Operations Act 1997 (NSW)

Relevant sections of the POEO Act in force at the time of the offences provided:

Chapter 1 Preliminary
…
3 Objects of Act
The objects of this Act are as follows:
(a)   to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,
…
(d)   to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following:
(i)   pollution prevention and cleaner production,
(ii)   the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,
(iia)   the elimination of harmful wastes,
…
(v)   the monitoring and reporting of environmental quality on a regular basis,

(e)   to rationalise, simplify and strengthen the regulatory framework for environment protection.
…
Chapter 5 Environment protection offences
…
Division 2 Land pollution
142A   Pollution of land
(1) A person who pollutes land is guilty of an offence.
Maximum penalty:
(a)  in the case of a corporation—$1,000,000, and in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b)  in the case of an individual—$250,000, and in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

(2) In this section:
pollute land includes cause or permit any land to be polluted.
…
Division 3 Waste offences
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)  in the case of a corporation—$250,000, or
(b)  in the case of 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) in the case of a corporation—$500,000, or
(b) in the case of an individual—$240,000 or imprisonment for 18 months, or both.

…
(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.
…
Chapter 8 Criminal and other proceedings
…
Part 8.2 Proceedings for offences
…
Division 5 Sentencing
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.
…
Part 8.3 Court orders in connection with offences
…
248   Orders regarding costs and expenses of investigation
(1) The court may, if it appears to the court that a regulatory authority has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the regulatory authority the costs and expenses so incurred in such amount as is fixed by the order.
(2) An order made by the Land and Environment Court under subsection (1) is enforceable as if it were an order made by the Court in Class 4 proceedings under the Land and Environment Court Act 1979. An order made by the Local Court under subsection (1) is enforceable as if it were an order made by the court when exercising jurisdiction under the Civil Procedure Act 2005.
(3) In this section:
costs and expenses, in relation to the investigation of an offence, means the costs and expenses:
(a)  in taking any sample or conducting any inspection, test, measurement or analysis, or
(b)  of transporting, storing or disposing of evidence,
during the investigation of the offence.

…
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,
(b)  order the offender to take specified action to notify specified persons or classes of persons of the offence (including the circumstances of the offence) and its environmental and other consequences and of any orders made against the person (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender’s conduct),
…

Schedule 1 Scheduled activities
…
Part 3 Definitions
Division 1 Waste classifications
49   Definitions of waste classifications
…
restricted solid wastemeans any waste (other than special waste, hazardous waste or liquid waste) that includes any of the following:
(a)  anything that is classified as restricted solid waste pursuant to the Waste Classification Guidelines,
(b)  anything that is classified as restricted solid waste pursuant to an EPA Gazettal notice.
special waste means any of the following:
(a)  clinical and related waste,
(b)  asbestos waste,
(c)  waste tyres,
(d)  anything that is classified as special waste pursuant to an EPA Gazettal notice.
(2) Despite subclause (1), in this Schedule, any waste that is classified as one of the following classes of waste, in accordance with an immobilised contaminants approval granted under Part 10 of the Protection of the Environment Operations (Waste) Regulation 2014, is taken to be waste of that class:
(a)  general solid waste (non-putrescible),
(b)  general solid waste (putrescible),
(c)  hazardous waste,
(d)  restricted solid waste,
(e)  special waste.
Division 2 Other definitions
50 Other definitions
(1) In this Schedule:
…
asbestos means the fibrous form of those mineral silicates that belong to the serpentine or amphibole groups of rock-forming minerals, including actinolite, amosite (brown asbestos), anthophyllite, chrysotile (white asbestos), crocidolite (blue asbestos) and tremolite.
asbestos waste means any waste that contains asbestos.
…
Dictionary
…
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.
…
land pollution or pollution of land means placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous:
(a)  that causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial, or
(b)  that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,
but does not include placing in or on, or otherwise introducing into or onto, land any substance excluded from this definition by the regulations.

Protection of the Environment Operations (General) Regulation 2009

Relevant clauses of the POEO General Regulation in force at the time of the offences provided:

Chapter 7 Miscellaneous
…
Part 4 Other
…
109   Definition of “land pollution”
(1) For the purposes of paragraph (b) of the definition of land pollution or pollution of land in the Dictionary to the Act, the following matter is prescribed:
(a)  hazardous waste,
(b)  restricted solid waste,
(c)  more than 10 tonnes of asbestos waste,
(d)  more than 5 tonnes of waste tyres or more than 500 waste tyres.
…
(2) In this clause:
asbestos waste, hazardous waste, restricted solid waste and waste tyres have the same meanings as they have in Schedule 1 to the Act.

POEO Act amendments 2005, 2013 – Second Reading Speeches

Sections 142A(1) and 144AA(1) of the POEO Act were inserted by the Protection of the Environment Amendment Act 2005 (NSW) (the 2005 Act), Sch 1 [66] and [70]. The Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 September 2005 at 17642) stated relevantly in relation to s 142A(1):

I will take this opportunity to highlight two of the more significant changes being proposed by the Government. These relate to waste regulation and higher fines and penalties for polluters. Smarter regulation of waste transport and disposal is necessary to keep ahead of those fly-by-night waste operators who choose to flout the law. The bill will significantly change the current Act's waste regulatory framework. These amendments are also necessary to prevent environmental harm caused by the dangerous re-use of waste, particularly as fill, fertiliser or fuel.
For example, there have been incidents where unscrupulous operators have told land-holders in Western Sydney and the Hunter region that they are offering “clean” fill, when in fact the waste is contaminated with building and demolition waste and in some cases asbestos. The operator dumps the waste and disappears, leaving the innocent land-holder with a contaminated site and significant clean-up costs. We need to improve the way we protect the environment from the inappropriate use of waste as fertiliser or landfill. The bill makes it clear that “waste” includes any processed, recycled, reused or recovered material produced from waste that is applied to land or used as fuel in certain circumstances. This will stop the inappropriate re-use of waste that may be harmful to the environment or human health…

The Second Reading Speech included the following in respect of s 144AA(1) at 17643:

The bill also introduces a new strict liability offence for a person who supplies false or misleading information about waste. The consultation process revealed strong support for this offence from both waste industry and environmental groups. Stakeholder feedback from the waste industry has confirmed that the failure to accurately identify waste is a widespread problem. Enforcement action by the Environment Protection Authority has revealed numerous incidents where wastes are deliberately being falsely described to avoid the cost of proper disposal and make a quick profit. For example, solvents and hydrocarbon oils mixed with food wastes have been applied to grazing land on a dairy farm without the landowner being aware of the harmful presence of the solvents and hydrocarbons. It is critical that waste is properly described so that people know what licences to obtain, what precautions to take, what uses the waste can be lawfully put to and where the waste can be lawfully taken.

The Protection of the Environment Operations Amendment (Illegal Waste Disposal) Act 2013 (NSW) (the 2013 Act), created the aggravated offence of knowingly supplying false or misleading information (s 144A(2)). In addition to amending s 144AA, the 2013 Act also restructured the EPA Waste Levy. As the Second Reading Speech for the 2013 Act (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 May 2013 at 21355-21356) explained:

The waste levy is the Government's key economic instrument to drive waste avoidance and recycling in New South Wales. It has traditionally been applied at the landfill gate to drive increased waste avoidance and the recovery, reuse and recycling of materials.
The idea with the waste levy is that it is a marketplace mechanism to drive down what goes to landfill and increase recycling. The more recycling there is the less that goes into landfill…
…
Recent Environment Protection Authority investigations have also uncovered sophisticated waste levy evasion schemes. In a recent example the authority uncovered a levy evasion scheme between a landfill and recycler which amounted to $3 million in unpaid waste levies. These operators are not only defrauding the New South Wales Government of millions of dollars, but they are also distorting the waste market and undermining legitimate waste and recycling businesses. These are serious crimes. While there is already a tier two, strict liability offence for providing false or misleading information about waste, this bill includes a new offence for knowingly supplying false and misleading information.

Evidence

Statement of Agreed Facts

The parties prepared a Statement Of Agreed Facts (SOAF) dated 23 December 2021 which was tendered as Exhibit A and stated as follows (annexures omitted and footnotes placed in square brackets):

STATEMENT OF AGREED FACTS
The Offences
1. Mr Fayed Afram, also known as Fred Fram and Faid Fram, (Date of birth: 2 June 1970) (Mr Afram) has pleaded guilty to the following three offences against s 144AA(1) of the Protection of the Environment Operations Act 1997 (the POEO Act) (the Proceedings):
a.   In matter 71054 or 2021, that between about 26 October 2016 and 17 November 2016 he supplied information about waste to another person in the course of dealing with the waste, being information that was false or misleading in a material respect [Matter 71054/2021].
b.   In matter 71052 of 2021, that between about 1 February 2017 and 31 March 2017, he supplied information about waste to another person in the course of dealing with the waste, being information that was false or misleading in a material respect [Matter 71052/21].
c.   In matter 71048 of 2021, that between about 28 April 2017 and 28 August 2017, he supplied information about waste to another person in the course of dealing with the waste, being information that was false or misleading in a material respect [Matter 71048/21].

2. Mr Afram has also pleaded guilty to an offence against s 142A of the Protection of the Environment Operations Act 1997 (the POEO Act), that between 20 February 2017 and about 2 June 2017 he polluted land at 117 Cherry Lane, Kulnura NSW (the Land Pollution Proceedings) also known as Lot 222 of Deposited Plan 1134133 [Matter 236724/21].
The Defendant
3. Mr Afram was a director of SSADCO Contractors Pty Ltd (ACN 603 228 833) (SSADCO), (now de-registered), between 5 December 2014 and 1 May 2017. SSADCO specialised in excavation services and waste transportation, including the transportation and disposal of waste, including asbestos contaminated waste (ACM) and restricted solid waste (RSW).
Background
4. The Green Square development site was a multi-million-dollar development site for residential and commercial properties in the suburb of Zetland in Sydney. On 2 June 2016 Ertech Pty Ltd (ABN 46 094 416 887) were hired by the owners of the site, the City of Sydney Council to undertake civil infrastructure works (including demolition and earthworks) for stage 3A of the construction of the Green Square Town Centre in Zetland, bounded by Botany Road, Hansard Street, Joynton Avenue, Elizabeth Street and Bourke Street (Green Square Site). This construction project became known as the Geddes Avenue Project. The total estimated for the waste from the project was 17,000 tonnes of material.
5. During the course of the preparation of the project it was identified that the site contained ACM as well as RWS.
6. Ertech Pty Ltd sought tenders for a contract for the collection and disposal of that waste as it did not have bulk transport capabilities, it invited a number of companies to submit tenders for the removal of the waste material, including the ACM and RSW. Amongst the several tenders received was one from the Defendant’s company, SSADCO Contractors. The Defendant, Mr Afram, on behalf of his company SSADCO applied for and won the tender for the project to cart and dispose of the waste. The Defendant represented himself as a director of the company and attended to all the negotiations and the signing and completion of the major subcontract agreement between Ertech and SSADCO dated 11 July 2016.
7. Mr Wilson Hyland was the Project Manager employed by Ertech at the Green Square Site. On 6 July 2016 Mr Afram sent an email to Mr Hyland titled ‘company details’ with information including SSADCO’s bank account, postal address, mobile phone number and contact email [email protected].
8. Asbestos contaminated material, as with other such materials, incur a Government levy imposed and enforced by the Environment Protection Authority (EPA) provided that they are disposed of in a relevant government approved facility.
9. This levy was at time of these matters $135.70 per tonne of this material. This levy is collected by the receiving licensed facility and was included in the quoted price for cartage per tonne provided by the Defendant to Ertech, being $196.00 for asbestos waste, $360.00 for restricted solid waste and $170.00 for General solid waste.
10. The Major Subcontract Agreement between Ertech and SSADCO provided (among other conditions), the following requirements be met:
a.   Ertech was to receive from SSADCO written notice of the sites to which waste was being disposed of;
b.   The waste must be disposed of at a licensed landfill; and
c.   The Defendant was to email regular invoices containing the details of the waste removed and the amount owed and supply the tipping dockets from the various facilities used.

11. The Major Subcontract Agreement between SSADCO and Ertech was signed by Mr Afram and Mr Hyland (of Ertech) and also included the following conditions:
a.   "…contractor accepted rates, the sum ascertained by calculating the products of the rates and the corresponding quantities in the Schedule of Rates identified in in Annexure G2" (Annexure G2 of the Major Subcontract Agreement has the schedule of rates which includes item 1 Haulage and Disposal of Asbestos Contaminated Material at $196 per tonne)
b.   subcontractor warranties "comply with all the requirements of the Subcontract and all Legislative Requirements"
c.    "the subcontractor shall comply with the requirements of all Acts and Ordinances and all regulations, by-laws, orders and proclamations made or given under Acts and Ordinances (legislative requirements) relevant to the WUS (works under subcontract) and shall ensure that the subcontract works comply with all legislative requirements relevant to the WUS"
d.    "The Subcontractor agrees to assume the risk of… any latent conditions…(iii) contamination including prescribed waste and asbestos…"
e.   "1.1 Classification of Material or Spoil. Classification of the material or spoil for haulage and disposal or treatment purposes will be determined solely by Ertech whose determination shall be final and binding. The classification will be in accordance with NSW EPA Waste Classification Guidelines - Part 1: Classification of Waste….1.2 Spoil Receival Sites ….prior to transporting waste to a spoil receival that is not a licensed landfill…"

f. "payment of all tolls, fees, levies and all other costs with the management, loading, transportation and receival of all spoil…"

12. Mr Hyland provided Mr Afram with an updated AECOM waste classification report for the Green Square site on 11 July 2016. This report classified the fill material proposed to be removed from the Green Square Site as General Solid Waste (Special Waste [Asbestos Waste]) and 3 test pit locations classified as Restricted Solid Waste (Special Waste [Asbestos Waste]).
13. On 13 July 2016 Mr Afram emailed Mr Hyland a copy of the environment protection licence held by Sita Australia Pty Ltd, now known as Suez, at 1725 Elizabeth Drive Kemps Creek (Suez Landfill).
14. Upon the award of the contract Mr Afram arranged for a series of drivers and vehicles to collect the waste from the site. He nominated to Ertech that he would dispose of the waste at two recycling facilities, which are two of only a small number of licensed facilities that can accept such material:
a. the Elizabeth Drive Management Centre at 1725 Elizabeth Drive, Kemps Creek owned by Suez Recycling & Recovery Pty Ltd (ABN 70 002 902 650); or
b. Bowral Landfill at 8 Kiama Street, Bowral.

15. Works commenced at the Green Square Site from approximately July 2016 until about September 2017. Mr Hyland met Mr Afram a number of times at the Green Square Site and spoke to him on Mr Afram's mobile number. Mr Afram was the only person Mr Hyland dealt with from SSADCO during the course of the Green Square project.
16. Geoffrey Fish was a site superintendent at the Green Square Site employed by Ertech. Mr Fish met Mr Afram on site five or six times and spoke with him often on his mobile phone. Mr Fish would ring Mr Afram when the stockpiles reached about 3000 cubic metres or when space was needed at the Green Square site and the materials would be taken away in SSADCO trucks. When Mr Afram went overseas about half- way through the project Mr Afram told him to call 'Dan' to organise the trucks; Mr Fish never met 'Dan', but spoke to him on the phone. Throughout the Relevant Period, Mr Fish periodically emailed Mr Afram ([email protected]) and later also 'Dan' a copy of each of the Ertech ‘Export Tracking Sheets’ so that SSADCO could raise invoices.
17. From July 2016 until September 2017 approximately 600 truck movements occurred collecting the waste from the Green Square site and carting them away. It was agreed that SSADCO would provide the tipping trucks at the site which were loaded by excavators operated by Ertech.
18. When trucks attended the Green Square Site, each truck would be loaded by excavators operated by subcontractors engaged by Ertech. For each truck movement into and out of the Green Square Site, the driver's name, SSADCO, vehicle registration and site entry and exit time were recorded by site traffic controllers contracted by Ertech on 'truck movement registers'.
19. Mr Fish would send a copy of the truck movement registers to Mr Afram by email after SSADCO trucks had been to the Green Square Site so that Mr Afram could raise invoices for payment by Ertech.
CREATION OF THE DOCUMENTS
20. Mr Afram supplied false and misleading information to Mr Hyland about waste via emails on 11 dates between 26 October 2016 and 28 August 2017, the detail of which is set out further below at paragraphs [27] – [56]. The information was supplied by Mr Afram via email(s) on each occasion from [email protected] to Mr Hyland. The account settings for the email account [email protected] listed Mr Afram’s name, and mobile number.
21. SSADCO employed an office administrative assistant, Ms Naha Haklane, and IT/data entry person, Mr Eddie Issa. To create the documents Mr Afram would provide Mr Issa with details of what needed to be entered into a preformatted, template being weighbridge disposal tipping dockets numbers and weighbridge waste disposal transaction reports. Mr Issa would enter the information into the template documents and provide the filled documents to Ms Haklane which included Suez weighbridge dockets and weighbridge reports. Ms Haklane would email Mr Afram the invoices and weighbridge dockets and he would send them on to the customer.
22. Approximately once or so per month, Mr Afram would email to Mr Hyland an invoice containing the details of waste removed and disposed of from the Green Square site and the amount owed by Ertech to SSADCO for the disposal. In support of the invoices, Mr Afram supplied Mr Hyland with documents purporting to be weighbridge disposal tipping dockets and weighbridge waste disposal transaction reports from the landfill at which the waste had purportedly been disposed, so that Ertech could reconcile the figures and amounts with its own records, including the truck movement registers, and arrange payment to SSADCO. Each invoice was paid by Ertech to SSADCO's bank account.
23. The Green Square Site works were completed by Ertech in about October 2017. Environmental consultants AECOM were engaged to complete an audit to ensure waste removed from the site had been disposed of correctly. Ertech provided to AECOM the waste disposal information that it had received from SSADCO, including weighbridge disposal dockets and invoices. During the audit, AECOM discovered inconsistences within the supplied dockets and invoices, including spelling errors in the dockets, duplication of docket reference numbers, inconsistent waste type information within the dockets and tipping times that were outside of the landfill operating hours.
24. An EPA authorised officer first became aware of evidence of the offences on 21 March 2018 via an email notification from the City of Sydney Council.
25. Ertech presented the information to NSW Police who subsequently began a fraud investigation. As a result of the NSW Police investigation, Mr Afram was arrested on 17 August 2018. Following Mr Afram’s arrest the NSW Police executed a number of search warrants at Mr Afram’s residence and SSADCO business premises. During one of the search warrants, police seized 2 SSADCO business diaries marked 2016 and 2017, completed by SSADCO employees which contained various source sites, nature of the materials at those source sites and movements of SSADCO trucks transporting those materials to various non EPA licenced tipping sites.
26. Between 19th July 2016 and 28th August 2017, the Defendant emailed a number of invoices to Ertech, requesting payment in the sum of $4,3262,804.24, of which $4,228,288.38 was for the disposal of either Asbestos Contaminated Waste, Restricted Solid Waste or General Solid Waste. The Defendant supplied Ertech with fraudulent receipts from the approved waste disposal sites, purporting that the waste was disposed of at those sites on each occasion.
Details of the Information provided
Offence 1 (matter 21/71054)
27. This offence relates to the provision of 132 false dockets and 6 false reports between 26 October 2016 and 17 November 2016.
28. On 26 October 2016, Mr Afram sent an email to Winston Hyland of Ertech with attachments including the following information:
a. ten documents purporting to be copies of weighbridge disposal dockets (WBDDs) issued by Suez Recycling & Recovery Pty Ltd (previously known as SITA Australia Pty Ltd) (Suez) for ten truckloads of waste material delivered from the construction site at Green Square to the Suez Elizabeth Drive Landfill at 1725 Elizabeth Drive Kemps Creek NSW (Suez Landfill) and two documents purporting to be weighbridge waste disposal transaction reports (Weighbridge Reports) issued by Suez;

29. On 17 November 2016, Mr Afram sent three emails to Winston Hyland of Ertech:
a.   an email at 3.02pm attaching documents including twenty-one documents purporting to be copies of WBDDs issued by Suez for twenty-one truckloads of waste material delivered from the construction site at Green Square to the Suez Landfill and one document purporting to be a Weighbridge Report issued by Suez;
b.   an email at 3.02pm attaching documents including sixty-six documents purporting to be copies of WBDDs issued by Suez for sixty-six truckloads of waste material delivered from the construction site at Green Square to the Suez Landfill and two documents purporting to be Weighbridge Reports issued by Suez; and
c.   an email at 3.15pm attaching documents including thirty-six documents purporting to be copies of WBDDs issued by Suez for thirty-six truckloads of waste material delivered from the construction site at Green Square to the Suez Landfill and one document purporting to be a Weighbridge Report issued by Suez.

30. All information set out in the above two paragraphs was false or misleading in a material respect because the WBDDs and Weighbridge Reports referred to in the above paragraphs were not created or issued by Suez in relation to the waste and the truckloads of waste were not disposed of at the Suez Landfill.
31. TAB 1 contains a representative sample of these documents.
Offence 2 (matter 21/71052)
32. This offence relates to the provision of 183 false dockets and 16 false reports between 1 February 2017 and 31 March 2017.
33. On 1 February 2017, Mr Afram sent an email to Winston Hyland of Ertech with attachments including the following information:
a. twenty-two documents purporting to be copies of WBDDs issued by Suez for twenty-two truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and two documents purporting to be Weighbridge Reports issued by Suez.

34. On 27 February 2017, Mr Afram sent four emails to Winston Hyland of Ertech:
a.   an email at 8.20pm attaching documents including thirty-two documents purporting to be copies of WBDDs issued by Suez for thirty-two truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and one document purporting to be a Weighbridge Report issued by Suez;
b.   an email at 8.20pm attaching documents including twenty-six documents purporting to be copies of WBDDs issued by Suez for twenty-six truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and one document purporting to be a Weighbridge Report issued by Suez;
c.   an email at 8.19pm attaching documents including thirty-one documents purporting to be copies of WBDDs issued by Suez for thirty-one truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and one document purporting to be a Weighbridge Report issued by Suez;
d.   an email at 8.19pm attaching documents including forty-one documents purporting to be copies of WBDDs issued by Suez for forty-one truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and one document purporting to be a Weighbridge Report issued by Suez;

Mr Afram also emailed SSADCO invoice #01091 to Mr Hyland at 8.18pm on 27 February 2017.
35. On 27 March 2017, Mr Afram sent six emails to Winston Hyland of Ertech:
a.   an email at 4.53pm attaching documents including three documents purporting to be copies of WBDDs issued by Suez for three truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and one document purporting to be a Weighbridge Report issued by Suez;
b.   an email at 4.53pm attaching documents including four documents purporting to be copies of WBDDs issued by Suez for four truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and one document purporting to be a Weighbridge Report issued by Suez;
c.   an email at 4.53pm attaching documents including nine documents purporting to be copies of WBDDs issued by Suez for nine truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and one document purporting to be a Weighbridge Report issued by Suez;
d.   an email at 4.54pm attaching documents including five documents purporting to be copies of WBDDs issued by Suez for five truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and one document purporting to be a Weighbridge Report issued by Suez;
e.   an email at 4.54pm attaching documents including two documents purporting to be copies of WBDDs issued by Suez for two truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and one document purporting to be a Weighbridge Report issued by Suez;
f.   an email at 4.55pm attaching documents including three documents purporting to be copies of WBDDs issued by Suez for three truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and one document purporting to be a Weighbridge Report issued by Suez;

36. On 31 March 2017, Mr Afram sent an email to Winston Hyland of Ertech with attachments including the following information:
a. five documents purporting to be copies of WBDDs issued by Suez for five truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and four documents purporting to be Weighbridge Reports issued by Suez.

37. The information set out in the above paragraphs 32 – 36 was false or misleading in a material respect because the WBDDs and Weighbridge Reports referred to in the above paragraphs were not created or issued by Suez in relation to the waste and the truckloads of waste were not disposed of at the Suez Landfill.
38. TAB 2 contains a representative sample of these documents.
Offence 3 (matter 21/71048) [Matter 71048/21 – covering original charges 7 – 11]
39. This offence relates to the provision of 31 false dockets and 14 false reports between 28 April 2017 and 28 August 2017.
40. On 28 April 2017, Mr Afram sent an email to Winston Hyland of Ertech with attachments including the following information:
a. four documents purporting to be copies of WBDDs issued by Suez for four truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and two documents purporting to be Weighbridge Reports issued by Suez.

41. On 30 May 2017, Mr Afram sent an email to Winston Hyland of Ertech with attachments including the following information:
a. nine documents purporting to be copies of WBDDs issued by Suez for nine truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and four documents purporting to be Weighbridge Reports issued by Suez.

42. On 4 August 2017, Mr Afram sent an email to Winston Hyland of Ertech with attachments including the following information:
a. six documents purporting to be copies of WBDDs issued by Suez for six truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and two documents purporting to be Weighbridge Reports issued by Suez.

43. On 4 August 2017, Mr Afram sent an email to Winston Hyland of Ertech with attachments including the following information:
a. five documents purporting to be copies of WBDDs issued by Suez for five truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and three documents purporting to be Weighbridge Reports issued by Suez.

44. On 28 August 2017, Mr Afram sent an email to Winston Hyland of Ertech with attachments including the following information:
a. seven documents purporting to be copies of WBDDs issued by Suez for seven truckloads of waste material delivered from a construction site at Green Square to the Suez Landfill and three documents purporting to be Weighbridge Reports issued by Suez.

45. The information set out in the above paragraphs 40 – 44 was false or misleading in a material respect because the WBDDs and Weighbridge Reports referred to in the above paragraphs were not created or issued by Suez in relation to the waste and the truckloads of waste were not disposed of at the Suez Landfill.
46. TAB 3 contains a representative sample of these documents.
Conclusion (regarding the s144AA(1) POEO Act offences)
47. In total, Mr Afram supplied Mr Hyland with 347 false WBDDs and 36 falsified weighbridge waste disposal transaction reports throughout the period 26 October 2016 and 28 August 2017.
48. Each of the WBDDs and weighbridge waste disposal transaction reports supplied by Mr Afram to Mr Hyland were false and misleading in a material respect.
49. On all WBDDs the Suez Landfill name is misspelt as “Elizabeth Drive Wastement Management Centre”. A Suez issued WBDD contains the address “Elizabeth Drive Waste Management Centre.”
50. Some of the WBDDs contain the description ‘General Solid Waste’ and ‘Asbestos Contaminated Material’ as the weighed waste. Neither are description options that can be selected in Suez’s electronic weighbridge system software to describe the type of waste. SSADCO was not a customer of Suez and does not have a registered account (which is required to dispose of asbestos waste at the Suez landfill).
51. On all WBDDs the phrase ‘delivery docket’ is typed under the Suez logo and ‘Suez Recycling & Recovery Pty Limited’ title. The phrase ‘delivery docket’ on a Suez issued WBDD is typed under the ABN.
52. Although each WBDD docket number exists in Suez’s electronic weighbridge system, the vehicle registration, weight, time in and time out did not match the information for the corresponding docket number in Suez’s records.^.
53. None of the vehicle registrations recorded on any of the WBDDs are recorded in Suez’s electronic weighbridge system as disposing of waste at the Suez Landfill for SSADCO Contractors Pty Ltd during the period 26 October 2016 and 28 August 2017.
54. Approximately 17,600 tonnes of soil was removed from the Green Square Site in total during the Relevant Period by SSADCO. About eighty per cent of the waste was purported to have been disposed of at the Suez Landfill. However, the dockets supplied by Mr Afram to Ertech referred to above were false as the waste had not in fact been transported to the Suez Landfill.
55. Ertech made payments to SSADCO as per the monthly invoices issued to it, totalling about $4 million for the removal of waste by SSADCO at the Green Square Site during the Relevant Period.
56. None of the waste subject of the above information was dumped at Elizabeth Drive Management Centre nor the Bowral landfill. The majority of the waste was illegally dumped on a privately owned semi-rural property at 117 Cherry Lane, Kulnura, unbeknownst to the landowners who had contracted the Defendant to build a road on their property. Other waste was taken to a property at 84 – 98 Horsley Park. Detectives executed a crime scene warrant at 117 Cherry Lane, Kulnura with the assistance of the EPA.
LAND POLLUTION OFFENCE [Matter 21/236724]
117 Cherry Lane, Kulnura NSW (the Kulnura Site)
57. The Kulnura Site is a large rural property zoned ‘RU1’ – Primary production, owned by Luke and Soraya van Tilborg. The couple purchased the property in October 2011, at which time there was no house on site.
58. In May 2014, Mr van Tilborg contacted Wayne Latham, the sole director of Kuringai Soil Recycling Pty Ltd (KSR), to carry out work at the Kulnura Site including civil earthworks to create access roads and other areas for development. KSR specialises in the transportation and disposal of natural materials and recycled natural materials from civil excavations on construction sites throughout the greater Sydney metropolitan area. Mr van Tilborg requested KSR to provide sands and soil for top dressing paddocks, and rocky spoil for driveways to allow easy access to the Kulnura Site and for a future house pad.
59. From approximately 29 July 2014, KSR started transporting soil materials to the Kulnura Site. KSR delivered various materials sporadically over a period of two to three years. The van Tilborgs became unhappy with KSR’s work at the Kulnura Site, namely because of the lack of progress and failure to create a proper access track to the proposed house pad. After relaying this to a number of truck drivers transporting material to the Kulnura Site, Mr van Tilborg received a phone call from an individual who introduced himself as Mr Afram. This was towards the end of 2016.

60. Sometime in late 2016, Mr Afram, then director of SSADCO, visited the Kulnura Site with his employee Mr Dan Gaylor (Mr Gaylor) where they met with Luke van Tilborg. Mr van Tilborg explained what he wanted to do on the property, including building an access road to the house pad and creating a large flat area to use as a horse training/show arena. Mr van Tilborg wanted sufficient fill material to create a level site for the horse arena.
61. Mr van Tilborg and Mr Afram made a ‘handshake agreement’ whereby Mr Afram would supply various types of cleanfill material and earth moving equipment to complete the works on the Kulnura Site. Mr Afram supplied an excavator and large ‘D6’ bulldozer with a wide blade. The van Tilborgs were not charged for any of the fill material supplied and delivered, equipment, or works carried out. There was no written contract governing this arrangement.
62. Mr Afram directed Mr Gaylor to allocate SSADCO drivers to take loads of excavated material from the re-development of the Green Square Site to the Kulnura Site. Mr Gaylor started by allocating five SSADCO trucks to the job. The trucks were on turnaround, which meant they would go back and forth from the Green Square Site, and later other sites, to the Kulnura Site as many times as they could during their shift. Another employee of Mr Afram/SSADCO, Mr Cheyenne Pukeroa (Mr Pukeroa), operated various earth moving machinery at the Kulnura site.
63. At the start of the job, when there were five trucks allocated to the job, the drivers would complete about three turnarounds. Mr Gaylor later increased this number to 10 to 12 trucks per day, at which point the drivers completed two turnarounds each. This lasted a few months. The SSADCO diaries created by SSADCO employee, Ms Naha Haklane, document the SSADCO truck movements during this period and demonstrate what days truck were taking material.
64. At various times Mr Gaylor emailed soil validation reports to Mr van Tilborg to demonstrate that the fill material SSADCO was bringing to the Kulnura Site was ‘clean’.
65. Mr van Tilborg mostly dealt with Mr Gaylor about the fill material that went to the Kulnura Site. Mr van Tilborg would call Mr Gaylor on his mobile and tell him what fill was required on site. Mr Gaylor would then call Mr van Tilborg to tell him what fill SSADCO had and when it could be delivered.
66. Based on entries from the SSADCO Diaries, waste from the Green Square Site was delivered to the Kulnura Site during the charge period from February 2017 until June 2017. TAB 4 contains examples of SSADCO Diary Records.
67. SSADCO trucks deposited waste material at various locations across the Kulnura Site. Mr Gaylor and Mr Pukeora then used a bulldozer to flatten the waste and fill the landscape in accordance with the van Tilborg’s specifications.
68. Mr Afram’s team finished construction of the internal road running through the Kulnura Site, and filled and levelled a large area towards the rear of the property for use as a horse arena.
69. The site owners were unaware that asbestos contaminated waste had been brought onto their land.
Inspection of the Kulnura Site
70. On 24 August 2018, after the existence of the Kulnura Site was made known to EPA officers and NSW Police, EPA Senior Investigator James Christie conducted a satellite imagery search of the property on ‘NearMaps’. Mr Christie found that the Kulnura Site was a large rural property with a residence. Seven aerial images taken between 23 February 2016 and 15 July 2018 showed clear changes to the landscape and apparent filling on site.
71. On 29 August 2018, EPA officers assisted NSW Police in executing a ‘crime scene’ search warrant at the Kulnura Site. EPA officers James Christie, Damien Smith, Laura Ansted, Joshua Madden, Stephanie Todd, and Robert Patterson were in attendance. The EPA also engaged Environmanage Systems Pty Ltd (ACN 613 225 157) (EMS) to assist EPA officers with excavation and extraction of soil samples from the Kulnura Site. EMS employees Rhyon Parata and Grant Buckley were present with an excavator. EPA officers Laura Ansted, Stephanie Todd, Joshua Madden and Damien Smith took soil samples at the premises. The EPA officers also used a MicroPhazir handheld Asbestor Analyser to test material on site for asbestos.
72. The Kulnura Site was divided into seven locations for the purposes of the EPA inspection. The areas covered, and samples taken, are described below.
Photographs and Layout of the Kulnura Site.
73. TAB 5 contains photographs of the Kulnura site, including a table identifying where on the site the photographs were taken.
74. TAB 6 contains 2 maps of the Kulnura site, one prepared by EPA officers and another prepared as part of a volumetric survey by Bannister and Hunter Engineering Pty Ltd (Bannister & Hunter), also engaged by the EPA. Both maps refer to areas/locations of the site using different labelling. The table below sets out the correlations between how the areas are referred to. Note that in this statement of facts, the EPA labelling references of the areas will be used.

EPA MAP REFERENCE

VOLUMETRIC SURVEY REFERENCE

DESCRIPTION

Location 1

Area 1 and part of Area 3

Area around the residence including house pad and internal road

Location 2

Area 4 and Area 5

West of location 1, circular pad and roadway

Location 3

Area 3

South-east portion of the site. large flat area and a batter on the eastern side, included a pond

Location 4

Area 4 and Area 6

Centre of the site, including an internal road running east to west, an open, mostly vegetated area to the north, and a fenced paddock to the south which housed some horses

Location 5

Area 2

Proposed Horse arena

Location 6

Area 6

centre western part of the Kulnura Site with the internal road extending east to west and the remainder well vegetated with ground cover and trees on a downhill slope

Area 7

Location 1 [This is referred to as Area 1 in the Volumetric Survey and GHD reports]
75. Location 1 covered the inhabited residence and surrounding gravel driveway. EPA officers observed waste material around the residence that had been imported to the area including soil-like material not consistent with the natural soil in the area, and fill material contaminated with bits of wood, tile, brick and concrete, glass, plastic (PVC piping), golf balls, and fragments of potential asbestos containing material (PACM).
76. Ms Ansted collected six PACM samples from Location 1. These were taken from different areas to the east and south of the residence and along the northern side of the driveway. The samples were labelled GSK-1-AS1, GSK-1-AS2, GSK-1-AS3, GSK-1-AS4, GSK-1-AS5, and GSK-1-AS6.
77. Mr Madden collected and tested one fragment believed to be PACM with a MicroPhazir handheld Asbestor Analyser which returned a positive result.
78. Mr Smith also observed four fragments of fibrous boarding that he suspected to contain asbestos.
79. Origins of the waste observed in Location 1: KSR had completed some works in this area and Mr Afram’s operations also supplied material to this area and finished construction of the internal road in this area.
Location 2 [This is referred to as Area 4 and 5 in the Volumetric Survey and GHD reports]
80. Location 2 covered an area of land to the west of Location 1 with a mulch stockpile and vegetated downhill slope in the north-east corner. There was little vegetation cover in the southern area of this location, and a circular pad and roadway leading to the west of the site. EPA officers observed similar soil like material on the downhill slope and southern part of Location 2 as found in Location 1. The material was not consistent with the natural soil in the area, and fill material was contaminated with bits of wood, tile, brick and concrete, glass, plastic, PVC piping, golf balls, and fragments of PACM.
81. Ms Ansted collected 11 PACM samples from the eastern part of Location 2. The samples were labelled GSK-2-AS7, GSK-2-AS8, GSK-2-AS9, GSK-2-AS10, GSK-2-AS11, GSK-2-AS12, GSK-2-AS13, GSK-2-AS14, GSK-2-AS15, GSK-2-AS16, and GSK-2-AS17. Ms Ansted observed more potential asbestos containing material in this area than was sampled.
82. Origins of the waste observed in Location 2: Mr Afram’s operations supplied material to this area. His employees fixed the road and added material and cleared up the edges in this location. They also finished off the internal road at this location.
Location 3 [This is referred to as Area 3 in the Volumetric Survey and GHD reports]
83. Location 3 covered an area of land in the south-east part of the Kulnura Site. There was a large flat area and a batter on the eastern side with gradual slopes to the east and south, and a pond to the south outside of the location. The slopes were predominantly vegetated and mulched.
84. The waste deposited here included soil containing building and demolition waste including concrete, terracotta tiles, ceramic tiles, glass and PACM. The concentration of waste materials in this area was higher than in Locations 1 and 2.
85. Ms Ansted collected 10 PACM samples across the landing and slopes of Location 3. The samples were labelled GSK-3-AS18, GSK-3-AS19, GSK-3-AS20, GSK-3-AS21, GSK-3-AS22, GSK-3-AS23, GSK-3-AS24, GSK-3-AS25, GSK-3-AS26, and GSK-3-AS27. Ms Ansted noted that there was significantly more potential asbestos containing materials than was sampled.
86. Mr Smith and Mr Madden also inspected Location 3. They worked with EMS employees, who supplied a small excavator, to obtain intrusive material samples from below the soil surface. These are known as test pits. Mr Smith selected two spots for EMS to dig test pits – one on the eastern side (Test Pit 1) and one towards the centre of the location (Test Pit 2).
87. On the surface of the ground around Test Pit 1, Mr Madden collected PACM samples GSK-JM-3-AS13A, GSK-JM-3-AS14, GSK-JM-3-AS15, and GSK-JM-3-AS16.
88. EMS employees excavated Test Pit 1 to a depth of about 0.8 metres. The excavated soil was placed in a pile on the ground so that a stratified sequence of the test pit could be seen. The material from Test Pit 1 included building and demolition waste such as glass, metal, tile, concrete, shells, wood and PACM fragments.
89. Mr Madden collected soil samples and two PACM fragments from the pit which were labelled GSK-JM-3-AS17 and GSK-JM-3-AS18.
90. Test Pit 2 was excavated to a depth of about 0.5 metres. The material from the surface until 0.3 metres in depth was a dark sandy colour and contained foreign materials such as wood and PACM fragments. The material below 0.3 metres was a yellow sandy colour consistent with the natural earth of the Kulnura Site.
91. Origins of the waste observed in Location 3: Mr Afram’s operations supplied material to this area. KSR also worked in this area.
Location 4 [This is referred to as Area 6 in the Volumetric Survey and GHD reports]
92. Location 4 covered an area in the centre of the Kulnura Site consisting of an internal road running east to west, an open, mostly vegetated area to the north, and a fenced paddock to the south which housed some horses.
93. The waste in this area included plastic, bitumen, concrete and PACM in the fenced paddock. There was also soil containing waste materials including concrete, terracotta tiles, ceramic tiles, clay pipe and PACM.
94. Ms Ansted collected 10 PACM samples from Location 4. These were taken from the fenced paddock to the south of the internal road and along the northern edge of the internal road. The samples were labelled GSK-4-AS28, GSK-4-AS29, GSK-4-AS30, GSK-4-AS31, GSK-4-AS31, GSK-4-AS32, GSK-4-AS33, GSK-4-AS34, GSK-4-AS35, GSK-4-AS36, and GSK-4-AS37.
95. Origins of the waste observed in Location 3: Only Mr Afram’s operations supplied waste to this area and operated here.
Location 5 [This is referred to as Area 2 in the Volumetric Survey and GHD reports]
96. Location 5 covered an area in the south west part of the Kulnura Site. It contained a large, raised, formed pad of soil-like material, approximately 90-100 metres by 50 metres in size. This was the part of the site which intended to be the horse arena. The pad did not have any substantial vegetation, but it was surrounded by trees and mature vegetation.
97. The following waste material was found at this location: fill material contaminated with brick, concrete, tile, wire, plastic film, concrete slabs and fragments of PACM material.
98. At this location, Mr Smith and Mr Madden worked with EMS employees to obtain material samples from test pits. Mr Smith selected two spots for EMS to dig test pits – one on the western side of the location (Test Pit 1) and one on the southern side (Test Pit 2).
99. At Test Pit 1, Mr Madden observed eight PACM fragments on the soil surface and collected five samples. These were labelled GSK-JM-5-AS1, GSK-JM-5-AS2, GSK-JM-5-AS3, GSK-JM-5-AS4, and GSK-JM-5-AS5.
100. EMS employees excavated Test Pit 1 to a depth of about 1.5 metres. The excavated soil was piled onto the surface of the pad. In this pile there was dark coloured soil with large clumps of clay and physical contaminants including brick, glass, concrete, plastic, tile, gravel, plastic film and fragments of suspected PACM. Mr Madden collected the PACM fragments. These were labelled GSK-JM-5-AS6, GSK-JM-5-AS7, GSK-JM-5-AS8, and GSK-JM-5-AS9. Mr Madden also collected soil samples from Test Pit 1.
101. Around Test Pit 2 there were PACM fragments on the soil surface. EMS employees excavated Test Pit 2 to a depth of about 1.4 metres. In the walls of the pit there was waste material observed such as brick, tile, glass, plastic pipe, concrete, mulch, shells, metal bar and PVC piping. Some of the soil had dark staining and a strong hydrocarbon odour of fuel and oil. Mr Madden collected soil samples.
102. Origins of the waste observed in Location 5: Only Mr Afram’s operations supplied waste to this area and operated here.
Location 6 [This is referred to as Area 6 in the Volumetric Survey and GHD reports]
103. Location 6 covered an area in the centre western part of the Kulnura Site with the internal road extending east to west and the remainder well vegetated with ground cover and trees on a downhill slope. The following waste material was found at this area: soil containing waste materials including bricks, concrete, tiles, PVC piping, and potential asbestos containing materials. There appeared to be a higher concentration of waste materials at this location in comparison to Location 4.
104. Ms Ansted took eight PACM samples from Location 6. Ms Ansted observed more potential asbestos containing material than was sampled in this location.
105. Origins of the waste observed in Location 6: Only Mr Afram’s operations supplied waste to this area and operated here.
Location 7
106. Location 7 covered an area in the north western part of the Kulnura Site. There appeared to be an excavated dam in this area. EPA officers did not observe any physical contaminants on the soil surface, and no samples were taken.
Testing of Samples from Kulnura Site
107. On 30 August 2018, Mr Smith delivered the samples collected by EPA officers from the Kulnura Site to the NSW Office of Environment and Heritage laboratories. Mr Smith requested that the soil samples be tested against EPA Waste Classification Guidelines.
108. Testing of the PACM fragments was outsourced to Envirolabs Services Pty Ltd (ABN 37 112 535 645). Due to the large number of PACM fragments collected, Mr Smith requested that every fourth fragment be tested. Of the 17 fragments tested, 16 returned positive results for asbestos.
109. On 28 September 2018, the Office of Environment and Heritage laboratories issued the analysis report for the Kulnura Site samples.
110. TAB 7 contains results of the samples taken at the site.
Amount of waste taken to the site by Mr Afram’s operations
111. The waste deposited at the Kulnura site was deposited in Locations:
a.   Location 1: Mr Afram supplied waste and finished construction of the internal road. Material in this location was also sourced from KSR.
b.   Location 2: Mr Afram supplied this material. KSR also sourced and supplied some material.
c.   Location 3: Mr Afram supplied this material. KSR also sourced and supplied some material.
d.   Location 4: Mr Afram supplied the majority of the material.
e.   Location 5: Mr Afram was the only person who operated in this area. Material was transported by Afram and then topped up with clay from the van Tilborg’s dam. Mr Afram had supplied all of the material for this location.
f.   Location 6: Mr Afram was the only person who operated in this area.

112. TAB 8 is a spreadsheet setting out the amounts of waste taken to the Kulnura site by Afram, and their origin, based on records obtained by the NSW Police and EPA. The spreadsheet indicates:
•   An estimated total weight of 11530 tonnes of waste was taken to the Kulnura site at the direction of Mr Afram.
•   Of this, a total of at least approximately 4050 tonnes of waste material that was deposited at the Kulnura site was waste that originated from the Green Square Site.
•   Waste from other sites was also deposited at the Kulnura site by Afram.
•   There were 563 Truck and Dog loads and 74 Bogie loads taken to the site.

113. On 25 and 26 September 2018 the volumetric survey of the site undertaken by Banister and Hunter which delineated the extent of imported waste material to the site [sic]. TAB 9 is the Affidavit of Rachel Brown including attached volumetric survey.
Waste classification of material taken to the Kulnura site
114. The EPA also engaged environmental consultant firm GHD Pty Ltd (GHD) which undertook a waste classification of the material at the Kulnura site, the results of which are as follows:
a.   Due to the presence of asbestos, all of the imported fill material at the Kulnura Site was classified as Special Waste – Asbestos Waste;
b.   The estimated tonnage of Special Waste – Asbestos Waste at the Kulnura Site was approximately 35,427 tonnes; and
c.   Of the 35,427 tonnes of Special Waste – Asbestos Waste, approximately 13,816 tonnes was classified as Restricted Solid Waste.

115. It is noted that AECOM Australia Pty Ltd provided a waste classification report to the Council of the City of Sydney, the owners of the Green Square Site before waste was removed. This report classified all of the fill material proposed to be removed from the Green Square Site as General Solid Waste (Special Waste [Asbestos Waste]) other than 3 test pit locations which were classified as Restricted Solid Waste (Special Waste [Asbestos Waste]).
ENVIRONMENTAL HARM – Kulnura Site
116. The EPA engaged Dr Kylie Dodd of GHD to provide expert evidence on the environmental harm resulting from the disposal of the waste material at the Kulnura Site (GHD Report).
117. A copy of an extract of Dr Dodd’s report is at TAB 10.
Alteration to the land
118. Based on the observations and laboratory analytical data documented by GHD, it was Dr Dodd’s opinion that the deposition of fill material at the Kulnura Site had caused an alteration to the land. The basis for this opinion is as follows:
a. Anthropogenic material: A variety of anthropogenic material was identified within the deposited fill material, including decomposing organic matter, demolition waste, (bricks, pavers, concrete, treated timber, metal, glass, fibreglass), bones, shells and fabric. Visual and olfactory indications of contamination (dark staining, discoloration and hydrocarbon and organic odours) were also identified within the fill material. In contrast, the natural geology of the property was characterised by clayey and sandy material, without anthropogenic material or visual or olfactory indications of contamination. The widespread presence of anthropogenic material within the fill material is not consistent with the current and historical residential and agricultural land uses of the property.
b. Asbestos: Asbestos containing material (ACM) was identified on the ground surface and within the fill material but not in the samples logged as natural soil. Asbestos can be associated with residential and agricultural land uses but on the basis of the observations recorded and results of laboratory analyses, GHD concluded that, with the exception of ACM identified on the ground surface near the residence, it is unlikely that ACM on the ground surface and within the fill material was introduced subsequent to fill material importation and placement.

In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (Pearce) the High Court explained that:

40. To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts…
42… The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by "excessive subtleties and refinements". It should be approached as a matter of common sense, not as a matter of semantics.

In R v Dennison [2011] NSWCCA 114 at [95], Schmidt J (as her Honour then was) (Whealy JA and McCallum J agreeing) stated in relation to the application of this injunction against double punishment:

It is not only the commonality of the legal elements of the offences which had to be considered, but also the commonality of the facts and circumstances (see R v Hilton [2005] NSWCCA 317; (2005) 157 A.Crim.R. 504 at [15]). As explained in R v Elphick [2010] NSWCCA 112, when an offender is being punished for more than one offence arising out of the same set of facts, the need to avoid punishing an offender twice does not require that elements which are common to any overlapping offences with which the offender is charged be ignored. Rather, it is necessary to consider, independently, the facts and circumstances relevant to the sentence imposed for the first offence and to sentence accordingly. Then, when turning to deal with the second offence, “any necessary step in assessment of punishment for that crime to avoid that which would amount to double punishment can be taken (at [29]) ...

The Prosecutor accepted that there was likely to be at least significant overlap, but not total, between the conduct underlying the Misleading Information Offences and the s 192E offence. The Prosecutor maintained that given the sentencing remarks in the District Court that King SC DCJ was concerned with “the provision to Ertech of 600 false weighbridge documents and a number of false invoices” (see above in par 16 of the sentencing remarks above in [12]) whereas these proceedings concern the provision of a total of 346 false WBDDs and 36 false transaction reports, the Prosecutor could not be sure that the conduct underlying the s 192E offence and the Misleading Information offences overlap entirely.
The Defendant submitted that the conduct underlying the s 192E offence and the Misleading Information Offences did overlap entirely and consequently no further penalty should be imposed for those offences. The charge period in the District Court encompasses the period of offending in the Misleading Information Offences and the Court can infer to the requisite standard that approximately 600 false documents with which the District Court was concerned must have included the 382 documents with which this Court is concerned. The sentencing judge took into account to some degree the environmental consequences of the s 192E offence at [21] of his sentencing remarks (see above in [12]). This is to be contrasted with the facts of Mouawad No 2 where the District Court, in punishing the defendant for an offence against s 192E involving conduct that was narrower in scope than the conduct the subject of proceedings in this Court, did not have regard to the offence of waste disposal.
Considering the elements of the s 192E offence and the Misleading Information Offences, the elements are not common so that double punishment does not arise on that basis. Separately, the facts and circumstances are common in that all the offences arise from virtually the same set of facts. I agree with the Defendant that there is likely to be complete overlap between the circumstances. The false documents the subject of the s 192E offence are far greater in number than the documents cited in the Misleading Information Offences and extend over the same period.
I will apply the double punishment principle in these matters to partially reduce the sentence to be given in respect of the Misleading Information Offences but consider the different nature of these offences and the harm they caused do not overlap with the fraud offence and do warrant separate punishment.
The Defendant accepted that a further penalty is warranted for the Land Pollution Offences but submitted that the sentence for the Land Pollution Offence ought to be mitigated because the consequences of the Land Pollution Offence were expressly considered by the District Court including environmental consequences. I have already held above in [71] that environmental harm is to be considered in relation to the Land Pollution Offence because environmental harm was considered only cursorily in the sentencing remarks of King SC DCJ in respect of the s 192E offence.

Totality

The sentencing principle of totality is relevant where more than one similar offence is being considered to ensure that the sum of any fines imposed is not disproportionate to the total criminality of a defendant: Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [98] citing Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 62; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; and Pearce at [45].
The Prosecutor submitted that I must take into account the totality principle in relation to the Misleading Information Offences, noting the special operation of the principle in respect of fine-only offences: Environment Protection Authority v Barnes [2006] NSWCCA 246 (Barnes CCA) at [50] (Kirby J, Mason P and Hoeben J agreeing). In Barnes CCA, Kirby J observed that:

50. Where there are multiple offences, each punishable by a custodial sentence, the totality principle may find expression through the complete or partial accumulation of sentences, or through making all or some of the sentences concurrent (cf Pearce v The Queen (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at 624 (para 45)). However, there is obviously no room for partial accumulation or concurrence in the case of fines. If the sentencing Judge believed that the totality principle required an adjustment to the fines which may otherwise be appropriate, the amount of each fine had to be altered, applying the sentencing principles suggested in Johnson v The Queen (2004) 205 ALR 346.

I agree that the totality principle should apply to the Misleading Information offences.
The Land Pollution Offence is a separate offence and the sources of pollution extend beyond the Green Square site and were substantial given the agreement in the SOAF at par 112. I will not apply any consideration of totality to the Land Pollution Offence.

Ability to pay fine

Section 6 of the Fines Act 1996 (NSW) (Fines Act) provides:

Part 2 Fines imposed by courts
Division 1 General
…
6   Consideration of accused’s means to pay
In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider—
(a)  such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and
(b)  such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

The Prosecutor submitted that the Defendant’s evidence (see above in [37]) of his finances is lacking and not cogent. The Defendant’s evidence of his bank account statement and the balance of $608.26 as at 14 November 2021 does not take the matter very far as it does not exclude the possibility that the Defendant may have other assets or sources of income.
The Defendant accepted that there is no direct evidence that the Defendant’s assets and income are limited to those constituted by or reflected in the bank account statement in evidence. The Defendant submitted that the Court can take judicial notice of the fact that Centrelink payments are generally means tested. The Defendant receives fortnightly Centrelink payments, including carer’s payments in the amount of $1,361.10. This, it was submitted, allows the Court to infer to the requisite standard that the Defendant has very few assets and income and would have little capacity to pay a fine imposed by the Court.
The Defendant also submitted that his poor health does affect his ability to earn income. The Defendant further submitted that the Court should take into account the total financial burden of any fine, the Prosecutor’s professional costs and investigation costs in fixing the total quantum of any fine.
The information supplied by the Defendant concerning his financial affairs is quite inadequate, consisting of bank account statements for one account. No statement of assets is provided. No tax returns have been provided. While the bank account shows that Centrelink payments are received, the Defendant’s affidavit provides very limited information with the submission made that Centrelink payments are means tested. I am not able to infer that the Defendant lacks means to pay substantial fines.

Publication order – POEO Act s 250(1)(a) and (b)

The Prosecutor applied for a publication order under s 250(1)(a) and (b) of the POEO Act. The Defendant did not oppose such an order. The terms of the order are set out in Annexure A to this judgment and such an order is appropriate in the circumstances of this case.

Investigation expenses

The Prosecutor applied for an order under s 248 of the POEO Act to the effect that the Defendant pay the EPA’s investigation costs and expenses. The Defendant accepted that the Court should make orders under s 248 of the POEO Act that the Defendant pay the Prosecutor’s reasonably incurred costs and expenses during the investigation of $125,001.

Moiety

The Fines Act provides for the possibility of an order for moiety, as follows:

Part 9 Miscellaneous
…
122   Payment of share of fine to prosecutor
(1) This section applies where—
(a)  the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and
(b)  the prosecutor is not a police officer.

(2) The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor.
…

The Prosecutor applied for an order under s 122 of the Fines Act for half of the fine against the Defendant to be paid to the Prosecutor. That there is an independent right to recovery of investigation costs (e.g. through an order under s 248(1) of the POEO Act) does not mean the Court has no power to impose a moiety: Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 (AGL) at [154]-[155] (Moore J). Moore J in AGL considered that a basis may exist for a prosecutor to seek investigation expenses and a moiety, as in this matter, where it could be demonstrated that additional payment might generally support the environmental law enforcement activities of the prosecutor: at [158]. The Prosecutor submitted that the order sought for reimbursement of investigation expenses would not fully compensate the EPA for its expenses, nor would a professional costs order under the Criminal Procedure Act 1986 (NSW) (CP Act).
The Defendant did not oppose an order for moiety. I will make an order for moiety of half of any fines imposed.

Costs

The Prosecutor sought an order that the Defendant pay its professional costs as agreed or assessed under s 257B of the CP Act. On the day of the hearing the parties reached agreement that the Defendant would pay professional costs in the amount of $95,000 pursuant to s 257B of the CP Act. Such an amount can be taken into account when determining penalty: Barnes CCA at [88].

Appropriate penalty

When sentencing, the Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a “value judgment as to what is the appropriate sentence given all the factors of the case:” Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26] unanimously following Markarianv The Queen (2005) 228 CLR 357; [2005] HCA 25at [51] per McHugh J.
Considering the Misleading Information Offences, as considered above at [136]-[140], the Defendant submitted that no further penalty should be imposed for these given the overlap with the s 192E offence. I consider penalties should be imposed for the Misleading Information Offences. The overlap with the s 192E offence concerns the commission of the offence for financial gain as already identified above in [93] and I do not take that matter into account as an aggravated factor in relation to these three offences. I have found above in [96] that the offences are in the low range of high objective seriousness. Any penalty imposed is subject to a discount of 25% given the early guilty pleas. There are otherwise no other mitigating circumstances given the absence of contrition. As held above at [143] I will take into account the totality principle in relation to these three offences given their similarity and relatively close proximity in time.
There are differences between the circumstances of each of the three offences. Matter no. 21/71052 is the most serious as it has the highest number of falsified documents (183 WBDDs, 16 WWDTRs) supplied to Ertech concerning asbestos waste. Matter no. 21/71048 is the least serious in that it involved a lesser number of false documents (31 WBDDs, 14 WWDTRs). Matter no. 21/71054 concerned 132 WBDDs and 6 WWDTRs.
I will impose a penalty of $90,000 for the offence in matter no. 21/71052 reduced by 25% to $67,500 in light of the early plea of guilty.
An appropriate penalty in matter no. 21/71054 would be $70,000 reduced by 25% to $52,500 in light of the early guilty plea.
An appropriate penalty for matter no. 21/71048 the least serious offence would be $60,000 reduced by 25% to $45,000 in light of the early guilty plea.
Taking into account the totality principle the second and third penalties should be reduced to reflect the overall culpability of the Defendant in relation to these three offences. I will impose a penalty of $30,000 for matter no. 21/71054. I will impose a penalty of $15,000 for matter no. 21/71048.
Considering the Land Pollution Offence I have found above in matter no. 21/236724 at [101] that the offence was in the middle of the high range of objective seriousness. The Defendant accepted that a penalty was warranted but submitted that it should be mitigated as the consequences of the pollution of the Kulnura site were expressly taken into account by the District Court. I rejected that submission above in [140]. In addition to the objective and subjective matters relevant to this offence set out above I also take into account the Horsley Park site circumstances identified above in [9], [23]-[25] which were broadly similar and earlier in time, further increasing the seriousness of the Land Pollution Offence. The environmental impacts of that conduct were similar to those at the Kulnura property and are described in Dr Dodd’s report, in [23]-[25] above. One difference is that no concentration of lead in the fill material samples exceeding the human health threshold was found at the Horsley Park site. Anthropogenic material, asbestos and carcinogenic PAH was otherwise deposited at the Horsley Park site, which caused land pollution as defined in the POEO Act.
I consider a penalty of $170,000 is appropriate which should be reduced by 25% in light of the early guilty plea to $127,500.

Penalty/orders

The Court orders that:

Misleading information Offences

In matter no. 71052 of 2021 the Defendant is convicted of the offence as charged against s 144AA(1) of the Protection of the Environment Operations Act 1997 (NSW), in that between about 1 February 2017 and 31 March 2017 he supplied information about waste to another person in the course of dealing with the waste, being information that was false or misleading in a material respect.
In matter no. 71052 of 2021 the Defendant is fined $67,500.
In matter no. 71054 of 2021 the Defendant is convicted of the offence as charged against s 144AA(1) of the Protection of the Environment Operations Act 1997 (NSW), in that between about 26 October 2016 and 17 November 2016 he supplied information about waste to another person in the course of dealing with the waste, being information that was false or misleading in a material respect.
In matter no. 71054 of 2021 the Defendant is fined $30,000.
In matter no. 71048 of 2021 the Defendant is convicted of the offence as charged against s 144AA(1) of the Protection of the Environment Operations Act 1997 (NSW), in that between about 28 April 2017 and 28 August 2017 he supplied information about waste to another person in the course of dealing with the waste, being information that was false or misleading in a material respect.
In matter no. 71048 of 2021 the Defendant is fined $15,000.

Land Pollution Offence

In matter no. 236724 of 2021 the Defendant is convicted of the offence as charged against s 142A(1) of the Protection of the Environment Operations Act 1997 (NSW) that from on or about 20 February 2017 to on or about 2 June 2017 inclusive, at or near Kulnura in the State of New South Wales, he polluted land.
In matter no. 236724 of 2021 the Defendant is fined $127,500.

In matters nos. 71052 of 2021, 71054 of 2021, 71048 of 2021 and 236724 of 2021:

Pursuant to s 122(2) of the Fines Act 1996 (NSW) the Defendant is to pay one half of any fines imposed on the Defendant to the Prosecutor.
Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the Defendant is to pay the Prosecutor’s costs in the amount of $95,000.
The Defendant is to pay to the Prosecutor’s expenses in the amount of $125,001 incurred in connection with the inspection, sampling, analysis and measurement of contaminants during the investigation of the offences pursuant to s 248(1) of the Protection of the Environment Operations Act 1997 (NSW).
Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW) the Defendant must:

At his own expense, cause a notice, in the form set out in an ‘Annexure A’, to be placed within the first 10 pages of the following publications, in the following timeframe, at a minimum size of 15 cm x 15 cm:

The Daily Telegraph, within 28 days of the date of this order.

Inside Waste Magazine, in the first edition of that Magazine published following the date of this order.

Within 7 days of the publication of each notice referred to in order 12(a) provide to the Prosecutor a complete copy of the pages of the publications in which the notice appears.

The Exhibits are returned.

**********

Annexure A

"Fayed Afram convicted for four waste offences”

On 13 April 2022 Fayed Afram, a former director of SSADCO Contractors Pty Ltd (now de-registered), was convicted by the Land and Environment Court of NSW of the following offences against the Protection of the Environment Operations Act 1997:

A. One offence of land pollution contrary to s 142A(1);
B. Three offences of supplying information about waste to another person that was false or misleading in a material respect contrary to s144AA(1).

The offences were committed between 26 October 2016 and 28 August 2017.

During 2016-2017 SSADCO Contractors Pty Ltd was contracted to remove asbestos and restricted solid waste from a development site in Green Square. Between 26 October 2016 and 28 August 2017, Mr Afram supplied a total of approximately 346 false weighbridge disposal dockets (also known as tipping dockets) and 36 false Transaction Reports to Ertech Pty Ltd (being the company responsible for undertaking the civil infrastructure works at the Green Square site). The documents misrepresented that the waste had been taken to a lawful facility for disposal.

Mr Afram caused 637 truckloads of waste material to be transported from the Green Square site and applied to a rural property at Kulnura NSW. At least 4,050 tonnes of waste material was taken from the Green Square development site to the rural property at Kulnura NSW. The waste comprised processed and unprocessed building and demolition material including soil, wood, brick, concrete, tile, metal, plastic, glass, terracotta, asbestos and restricted solid waste.

Mr Afram was prosecuted by the NSW Environment Protection Authority and pleaded guilty to the four offences. Following a hearing on sentence, the Court:

a. fined the Defendant $240,000; and
b. ordered the Defendant to pay the Prosecutor’s legal costs of $95,000 and investigation expenses in the amount of $125,001.

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

Decision last updated: 20 April 2022

Medium Neutral Citation:	Environment Protection Authority v Afram [2022] NSWLEC 38
Hearing dates:	10 February 2022
Date of orders:	13 April 2022
Decision date:	13 April 2022
Jurisdiction:	Class 5
Before:	Pain J
Decision:	See [165]
Catchwords:	SENTENCING – pleas of guilty to three offences of supply of misleading information in a material respect about waste in the course of dealing with waste – defendant already sentenced for overlapping fraud offence under Crimes Act – potential for significant environmental harm as asbestos waste delivered to rural property – early plea of guilty – limited other mitigating circumstances SENTENCING – plea of guilty to land pollution offence – deposition of asbestos and other waste on rural property unbeknownst to land holder who expected clean fill to be supplied – actual harm to the environment caused – potential for significant environmental harm – early guilty plea – limited other mitigating circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23 Crimes Act 1900 (NSW), s 192E Criminal Procedure Act 1986 (NSW), ss 257B, 257G Fines Act 1996 (NSW), ss 6, 122 Protection of the Environment Amendment Act 2005 (NSW) Protection of the Environment Operations (General) Regulation 2009 (NSW) (repealed), cl 109 Protection of the Environment Operations Act 1997 (NSW), ss 3, 142A, 144AA, 241, 248, 250, Sch 1, Dictionary Protection of the Environment Operations Amendment (Illegal Waste Disposal) Act 2013 (NSW)
Cases Cited:	Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152 Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive Office of Environment and Heritage v Somerville (No 2) [2021] NSWLEC 78 Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Environment Protection Authority v Aargus Pty Ltd; Kariotoglu; Kelly [2013] NSWLEC 19 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Complete Asbestos Removal Pty Ltd (2016) 221 LGERA 24; [2016] NSWLEC 167 Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60 Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (2019) 101 NSWLR 245; [2019] NSWCCA 174 Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 4) [2021] NSWLEC 123 Environment Protection Authority v Hanna (2018) 235 LGERA 114; [2018] NSWLEC 80 Environment Protection Authority v Hughes [2019] NSWLEC 108 Environment Protection Authority v Laison [2018] NSWLEC 76 Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) (2020) 247 LGERA 23; [2020] NSWLEC 166 Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312 Garrett v Freeman(No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 Georgopolous v R [2010] NSWCCA 246 Hanna v Environment Protection Authority (2019) 280 A Crim R 575; [2019] NSWCCA 299 Hewitt v R (2007) 180 A Crim R 306; [2007] NSWCCA 353 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Hurstville City Council v Romanous Construction Pty Ltd; Hurstville City Council v Romanous Contractors Pty Ltd [2016] NSWLEC 24 Kirby v R [2021] NSWCCA 162 Markarianv The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Mun v R [2015] NSWCCA 234 NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Pfeiffer v R [2009] NSWCCA 145 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Anderson (1980) 2 A Crim R 379; [1981] VR 155 R v Badanjak [2004] NSWCCA 395 R v Dennison [2011] NSWCCA 114 R v Edwards (1996) 90 A Crim R 510 R v Israil [2002] NSWCCA 255 R v Kennedy [2000] NSWCCA 527 R v Leroy [1984] 2 NSWLR 441 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Peel [1971] 1 NSWLR 247 R v Smith (1987) 44 SASR 587 R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Visconti [1982] 2 NSWLR 104 Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd (2020) 245 LGERA 241; [2020] NSWLEC 125 Skelton v R [2015] NSWCCA 320 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen(No 2) (1988) 164 CLR 465; [1988] HCA 14
Texts Cited:	T Walsh, H Douglas, "Sentencing Parents: The Consideration of Dependent Children" (2016) 37(1) Adelaide Law Review 135 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 May 2013 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 September 2005 Judicial Commission of NSW, Sentencing Bench Book (as at June 2021) The Laws of Australia, vol 12, Criminal Sentencing (online as at 7 March 2022)
Category:	Sentence
Parties:	Environment Protection Authority (Prosecutor) Fayed Afram a.k.a Fred Fram and Faid Fram (Defendant)
Representation:	Counsel: H El-Hage (Prosecutor) S Young (Defendant) Solicitors: Environment Protection Authority (Prosecutor) Abbas Jacobs Lawyers (Defendant)
File Number(s):	2021/71054 2021/71052 2021/71048 2021/236724

EPA MAP REFERENCE	VOLUMETRIC SURVEY REFERENCE	DESCRIPTION
Location 1	Area 1 and part of Area 3	Area around the residence including house pad and internal road
Location 2	Area 4 and Area 5	West of location 1, circular pad and roadway
Location 3	Area 3	South-east portion of the site. large flat area and a batter on the eastern side, included a pond
Location 4	Area 4 and Area 6	Centre of the site, including an internal road running east to west, an open, mostly vegetated area to the north, and a fenced paddock to the south which housed some horses
Location 5	Area 2	Proposed Horse arena
Location 6	Area 6	centre western part of the Kulnura Site with the internal road extending east to west and the remainder well vegetated with ground cover and trees on a downhill slope
Area 7