Environment Protection Authority v Appleton - [2025] NSWLEC 62

Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Appleton [2025] NSWLEC 62
Hearing dates: 11 November 2024
Date of orders: 19 June 2025
Decision date: 19 June 2025
Jurisdiction: Class 5
Before: Pritchard J
Decision:
See orders at [164] of judgment

Catchwords:
SENTENCING — environmental offences — use of place as waste facility without lawful authority —s 144(1) of the Protection of the Environment Operations Act 1997 (NSW) — guilty plea — potential for significant environment harm — capacity to pay a fine — s 6 of the Fines Act 1966 (NSW) —moiety — restoration order — s 245 of the POEO Act

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22
Criminal Procedure Act 1986 (NSW) ss 257B, 257G, Div 2A
Fines Act 1996 (NSW) ss 6, 122
Protection of the Environment Operations Act 1997 (NSW) ss 3, 91B, 144, 241, 245, Sch 1, Dictionary
Protection of the Environment Operations (General) Regulation 2009 (NSW) (repealed) cl 109
Protection of the Environment Operations (General) Regulation 2021 (NSW) (repealed) cl 148
Protection of the Environment Operations (General) Regulation 2022 (NSW) cl 133
Protection of the Environment Operations (Waste) Regulation 2014 (NSW) cl 76, Part 4

Cases Cited:
ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 4
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34
Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21
Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54
Darter v Diden (2006) 94 SASR 505; (2006) 161 A Crim R 369; [2006] SASC 152
Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; (2009) 197 A Crim R 31; [2009] NSWLEC 137
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280
Environment Protection Authority v BSV Tyre Recycling Pty Ltd [2024] NSWLEC 63
Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90
Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70
Environment Protection Authority v Forestry Corporation of New South Wales [2024] NSWLEC 78
Environment Protection Authority v Laison [2015] NSWLEC 89
Environment Protection Authority v Metropolitan Collieries Pty Ltd [2025] NSWLEC 23
Environment Protection Authority v Mouawad (also known as Isaac) (No 4) [2023] NSWLEC 76
Environment Protection Authority v Nath [2024] NSWLEC 10
Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222
Environment Protection Authority v Richardson; Environment Protection Authority v Behnfeld [2002] NSWLEC 205
Environment Protection Authority v Robinson [2004] NSWLEC 629
Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273; [2008] NSWLEC 264
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
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Harrison v Perdikaris [2015] NSWLEC 99
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Latoudis v Casey (1990) 170 CLR 534; (1990) 50 A Crim R 287; [1990] HCA 59
Le v R [2019] NSWCCA 181
Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3
Liverpool City Council v Leppington Pastoral [2010] NSWLEC 170
Mahdi Jahandideh v R [2014] NSWCA 178
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
Meis v R [2022] NSWCCA 118
Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66
R v O’Neill [1979] 2 NSWLR 582
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Peel (1971) 1 NSWLR 24
R v Thomson (2000) 49 NSWLR 383; (2000) 115 A Crim R 105; [2000] NSWCCA 294
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
SafeWork NSW v Williams Timber Pty Ltd; SafeWork NSW v Easy Fall Guttering Pty Ltd [2021] NSWCCA 233
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 and Environment v Khouzame (2024) 261 LGERA 49; [2024] NSWLEC 54
Smith v The Queen (1991) 25 NSWLR 1; (1991) 56 A Crim R 148
Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Texts Cited:
B Preston, “Principled Sentencing for Environmental Offences”, a paper presented to the 4th International IUCN Academy of Environmental Law Colloquium, 16-20 October 2006

Category: Principal judgment
Parties: Environment Protection Authority (Prosecutor)
Luke Nathian Appleton (Defendant)
Representation:
Counsel:
B Nicols, solicitor (Prosecutor)
J Gunson, solicitor (Defendant)
Solicitors:
Legal Services Branch, Environment Protection Authority (Prosecutor)
Gibney & Gunson (Defendant)

File Number(s): 2024/11650
Publication restriction: Nil

JUDGMENT

Introduction
Outcome
Evidence
Statement of agreed facts
The defendant
The premises
Mr Appleton enters into business with Mr Mark Fair
The EPA investigation
Clean-up of premises
Agreed facts on environmental harm
Background
Risk of fire from storage of waste tyres on the premises
Likely harm from tyre fire on the premises
Prior history

Defendant’s evidence

Relevant legislation and legislative history
Onus and standard of proof at sentencing
Objective seriousness of the offence
General submissions in relation to objective seriousness
Nature of the offence
Maximum penalty
The defendant’s state of mind in committing the offence
The harm caused or likely to be caused to the environment by the commission of the offence: s 241(1)(a) of the POEO Act
The defendant’s reasons for committing the offence
The practical measures that may be taken to prevent, control, abate or mitigate the harm: s 241(1)(b) of the POEO Act
The foreseeability of harm caused or likely to have been caused to the environment: s 241(1)(c) of the POEO Act
The defendant’s control over the causes that gave rise to the offence: s 241(1)(d) of the POEO Act
Conclusions as to objective seriousness

Subjective circumstances of the offender
General submissions ins relation to subjective circumstances
Prior criminality: s 21A(3)(e) of the CSP Act
Good character: s 21A(3)(f) of the CSP Act
Remorse shown by the offender: s 21A(3)(i) of the CSP Act
Assistance to authorities: ss 21A(3)(m) and 22 of the CSP Act
Guilty plea: ss 21A(3)(k), 22 of the CSP Act
Conclusions regarding subjective considerations

Other principles of sentencing to be considered
Proportionality
General and specific deterrence: s 3A(b) of the CSP Act
Even-handedness and consistency in sentencing

Capacity to pay a fine (s 6 of the Fines Act)
The “instinctive synthesis approach” and the appropriate penalty to be imposed
Additional orders sought
Restoration order: s 245 of the POEO Act
Professional costs
Moiety

Orders

JUDGMENT

Introduction

By summons filed on 10 January 2024 in proceedings 2024/11650, the Environment Protection Authority (EPA) (the prosecutor) commenced Class 5 proceedings against Mr Luke Nathian Appleton (the defendant) alleging that between about 30 August 2020 and about 1 March 2023 he committed an offence against s 144(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act).
Section 144(1) of the POEO Act provides an offence where a person who is the owner or occupier of any place and who uses the place, or causes or permits the place to be used, as a waste facility without lawful authority. At the time of the alleged offence, the maximum penalty for an individual where the offence does not involve asbestos was $250,000 and, for a continuing offence, a further penalty of $60,000 for each day the offence continues: s 144(1)(b).
The particulars of the offence are as follows:

(a)   Place
At or near 63 Range View Drive, Jindera, in the State of New South Wales being Lot 6 in Deposited Plan 1164647 (the Place).
(b)   Waste
Waste tyres within the meaning of cl 109(1)(d) of the Protection of the Environment Operations (General) Regulation 2009, cl 148(1)(d) of the Protection of the Environment Operations (General) Regulation 2021, and cl 133(1)(d) of the Protection of the Environment Operations (General) Regulation 2022 and cl 50(1) of Sch 1 of the Act (the Waste).
(c)   Manner of breach
The Defendant permitted the Place to be used for the storage of the Waste.
(d)   Date on which evidence of the offence first came to attention of an authorised officer
Evidence of the offence first came to the attention of an authorised officer of the EPA, Arron Nelson, on 12 January 2021 upon receiving a report about the Land.

On 31 May 2024, the defendant pleaded guilty to the offence as charged.
The place of the offence is 63 Range View Drive, Jindera, in the State of New South Wales being Lot 6 in Deposited Plan 1164647 (the premises).
On 10 January 2024, the prosecutor also filed a separate summons against the defendant in proceedings 2024/11649 for an alleged offence against s 142A(1) of the POEO Act. At the hearing on 11 November 2024, the prosecutor withdrew proceedings 2024/11649.
The proceedings were listed before me on 11 November 2024 for hearing on sentence.

Outcome

The defendant has pleaded guilty to and is convicted of an offence against s 144(1) of the POEO Act. I would fix a penalty of $50,000 for the offence against s 144(1) committed between about 30 August 2020 and about 1 March 2023. To this, I apply a combined discount of 50% reflecting a plea of guilty, remorse and cooperation with the authorities. This produces a total penalty of $25,000.
I would then propose to make an order that 50% of the penalty be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).
I also propose to make an order that the defendant pays the prosecutor’s professional costs pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 (NSW). I also propose to make restoration orders pursuant to s 245(a) of the POEO Act.

Evidence

Statement of agreed facts

The parties tendered an extensive statement of agreed facts (SOAF) filed on 21 August 2024, including in relation to environmental harm. The SOAF annexed the following documents:

plans created by Mr Daniel Craker of Freeburn Surveying during his survey of the premises on 1 March 2023, when the EPA executed a search warrant, showing the stockpiles of waste tyres as at that date;

the “Fire Safety Guideline: Guideline for bulk storage of Rubber Tyres”, published by the Fire Safety Branch, Community Safety Directorate, Fire & Rescue NSW (version 03), dated 5 December 2024 (FRNSW guideline) which details Fire & Rescue NSW’s guidelines for the bulk storage of rubber tyres, including those in open yards, which should be used by managers of facilities on which it is intended to store new or used rubber tyres in bulk quantities; and

the defendant’s criminal history for other offences in NSW dated 25 July 2024.

The agreed facts in the SOAF are summarised as follows:

The defendant

The defendant was at all relevant times the owner and occupier of the premises. On 1 August 2023, he was declared bankrupt and at the time of drafting the SOAF, he remained an undischarged bankrupt.

The premises

The premises are semi-rural land of approximately 20 hectares in Jindera, north of Albury. The defendant purchased the premises in 2017. There is not and never has been any development approval or environment protection licence in place that permitted the use of the premises to store waste tyres.

Mr Appleton enters into business with Mr Mark Fair

In late 2020, the defendant entered into business with Mr Mark Fair and became a shareholder in Carbon MF Pty Limited (Carbon MF). The defendant invested around $100,000 in Carbon MF and was involved in the processing of waste tyres by Carbon MF.
Between about 30 August 2020 and 10 December 2020, as part of the Carbon MF business, waste tyres commenced to be brought onto and stored on the premises. The image below is an aerial image of part of the premises taken on 30 August 2020, before waste tyres commenced being stored on the premises:

The image below is an aerial image of the same part of the premises, taken on 10 December 2020, after waste tyres commenced being stored on the premises.

The defendant and Mr Fair made the decision to use the premises to store waste tyres in advance of Carbon MF’s main site at Thurgoona commencing operations. Employees of Carbon MF brought waste tyres onto the premises by using a truck in loads of between 100 and 300 tyres, depending on the size of the tyres. Once waste tyres commenced being brought onto the premises, it took half a day for the number of waste tyres to exceed 500. Waste tyres continued to be brought onto the premises as part of the Carbon MF business for approximately two months.
Mr Fair was responsible for sourcing the waste tyres from tyre retailers and for transporting them, or arranging for their transport, to the premises. The defendant provided general direction as to the placement of the waste tyres on the premises. The defendant was sometimes, but not always, present when waste tyres were brought onto the premises. He was unaware of the exact number of tyres brought onto the premises and did not keep records of deliveries of waste tyres. Mr Fair agreed to pay Council rates for the premises, although this was never done. The defendant did not receive a wage from Carbon MF or any other monetary compensation.
In early 2022, the defendant had a falling out with Mr Fair, and tyres ceased being brought onto or taken off the premises.
On 10 January 2022, the defendant ceased to be a shareholder in Carbon MF Pty Ltd.
The number and position of waste tyres and the ways in which they were stored on the premises remained the same from 1 May 2022 until the clean-up of the premises commenced on 2 April 2024.
The image below is an aerial image of the same part of the premises as the images at [16] and [17] above, taken on 1 May 2022:

The EPA investigation

On 12 January 2021, Greater Hume Shire Council (Council) notified the EPA that around 1,000 tyres were stored on the premises. EPA officer Mr Arron Nelson conducted a drive by inspection of the premises but could not determine whether there were more than 500 tyres on the premises.
On 25 January 2022, Council officers informed the EPA that tyres were still being stored on the premises.
On 1 March 2023, the EPA executed a search warrant on the premises, accompanied by officers from NSW Police, NSW Rural Fire Service, Council and NSW National Parks and Wildlife Services, and Mr Daniel Craker of Freeburn Surveying.
Mr Craker had been engaged by the EPA to conduct a volumetric survey of the waste tyres stored on the premises. During the execution of the search warrant, Mr Craker surveyed the premises, collecting data to create a 3-dimensional model to calculate the number of tyres based on volume.
The following plan created by Mr Craker during his survey of the premises on 1 March 2023 shows the stockpiles of waste tyres as at that date:

Mr Craker calculated the volume of the stockpiles of waste tyres on the premises as at 1 March 2023 to be around 1,877m³, which equated to approximately 7,500 waste tyres. This comprised:

two large stockpiles of waste tyres in the part of the premises visible in the images extracted above at [16], [17] and [23], with volumes of 629m³ and 882m³, marked as stockpile 1 and stockpile 2 respectively on the plan above at [28] (stockpile 1 and stockpile 2);

five smaller stockpiles of waste tyres in the same part of the premises, with volumes ranging from 3m³ to 52m³, marked as “Stockpiles 3-7” in plan above at [28] (stockpiles 3-7);

numerous stockpiles of waste tyres in the south-west of the premises, totalling 199m³, marked as “Stockpiles” in the plan above at [28] (the south-west stockpiles); and

a mixed stockpile of bricks and waste tyres in the east of the premises, totalling 32m³, marked as “Mixed Bricks & Tyres” in the plan above at [28] (the eastern stockpile).

At the same time, EPA officers conducted a count of waste tyres stored on the premises by dividing the premises into areas and counting each area in teams of two. The EPA officers counted a total of 7,418 waste tyres across three areas:

EPA officers Ms Briohny Seaman and Ms Shelby Wilde counted 3,609 waste tyres in the area comprising stockpiles 2, 3, 4, and 5;

EPA officers Ms Jessica Creed and Ms Ruby Sutherland counted 2,918 waste tyres in the area comprising stockpiles 1, 6 and 7 and the eastern stockpile.

EPA officers Mr Michael Waanders and Mr Cameron Forrest counted 891 waste tyres in the area comprising the south-west stockpiles.

The image below is a photograph taken by EPA officer Ms Seaman on 1 March 2023 of a portion of stockpile 2:

The image below is a photograph taken by EPA officer Ms Creed on 1 March 2023 with a portion of stockpile 7 in the foreground and a portion of stockpile 1 in the background.

The image below is a photograph taken by EPA officer Mr Waanders on 1 March 2023 of a portion of the south-west stockpiles:

During the execution of the search warrant, EPA officer Mr Simon Lemont conducted a voluntary interview with the defendant under caution. During the interview, the defendant stated that he was unaware that the lawful storage of tyres required a development approval or an environment protection licence.

Clean-up of premises

On 17 October 2023, the EPA issued a clean-up notice to the defendant requiring him, among other things, to reduce the number of waste tyres on the premises to below 500 waste tyres and to remove all waste tyres buried at the premises by 26 April 2024 (the clean-up notice).
On 2 April 2024, ELT Recycling Australia Pty Limited (ELT) began removing the waste tyres from the premises.
On 16 May 2024, the EPA varied the clean-up notice to extend the time for compliance with the clean-up direction to 30 June 2024.
At the date of the SOAF:

9,542 whole waste tyres had been removed from the premises;

45.36 tonnes of shredded tyres had been removed from the premises;

approximately 1,500-2,500 whole waste tyres remained on the premises; and

all of the shredded tyres had been removed from the premises.

Agreed facts on environmental harm

The following facts were agreed in relation to environmental harm.

Background

Tyres are not easily ignitable; however, due to their high energy content, once alight, tyres burn extremely hot. Due to the heat with which tyres burn, and their high energy content, it is generally not possible to extinguish a stockpile of waste tyres once it ignites, only to manage the fire and attempt to stop its spread. Generally, this is done using large volumes of water to fight the fire while using heavy machinery to attempt to remove unignited tyres and deprive the fire of fuel.
The high heat of tyre fires and the considerable volume of smoke being generated present a high hazard to the community, environment, and firefighters. The smoke generated by tyre fires is dark, thick, and contains high levels of carbon dioxide, carbon monoxide, and soot which can cause health issues. In addition, the runoff from any water used to fight the fire poses a risk to the community, the environment and firefighters because it contains carcinogenic compounds and heavy metals from the tyres.

Risk of fire from storage of waste tyres on the premises

The FRNSW guideline contains standards for the bulk storage of tyres. The waste tyres at the premises were not stored in a way consistent with the FRNSW guideline, and far below the standard that would be expected from an approved waste facility, because:

the majority of the tyres were not stored in accordance with one of the five acceptable tyre storage methods listed in cl 4 of the FRNSW guideline which provides that:

4   Acceptable rubber tyre storage
(a) Bundled tyres – a number of tyres strapped together in bundles and stacked either within a system or on their sides …
(b) Pallet systems – a system containing a number of tyres which includes stringers for material handling equipment …
(c) Horizontal systems – a system (e.g. pallets, shelving, racks) where tyres are stacked upright along a horizontal length exceeding 1.5m …
(d) Laced storage (outdoor storage only) – tyres which are stacked overlapping to create a woven or laced arrangement …
(e) Portable systems – small portable systems that can be readily moved by fork lift …

some of the tyres were stacked vertically on their treads, which is identified as an unacceptable tyre storage method in cl 5 of the FRNSW guideline. This storage method can facilitate the spread of any fire as ignited tyres can roll out of burning tyre stockpiles. Clause 5 of the FRNSW guideline provides that:

5   Unacceptable rubber tyre storage
Tyres stacked on their treads, known as ‘tread up’ storage, is not acceptable… In the event of fire, tread up tyres easily roll away and ignite neighbouring stacks unless they are retained within a suitable rack storage system.

there was no fire hydrant system that complies with Australian Standard AS 2419.1 on the premises as required by cl 6.1 of the FRNSW guideline which provides that:

6   External tyre storage
6.1   General requirements
The external tyre storage site (i.e. open yard) should be level, clear of all rubbish and combustible materials, and enclosed by fences or walls constructed of non-combustible materials.
Note:   The fence or wall should be sufficient height to keep aunauthorised persons from entering.
A hydrant system complying with Australian Standard AS 2419.1 should be provided when the total quantity of outdoor storage will exceed 50 tonnes in weight.

the stockpiles of tyres on the premises were not kept clear of combustible material and sources of ignition, as also required by cl 6.1 of the FRNSW guideline;

the stockpiles of tyres, and particularly stockpiles 1 and 2, were larger in area and weight than permitted by the FRNSW guideline; and

the placement of the stockpiles on the premises did not comply with the minimum clear separation of 18m specified in cl 6.2 of the FRNSW guideline which provides that:

6.2   Size of tyre stacks and piles
Individual tyre stacks should not exceed 3.7m in height, 60m²in area and 12.5 tonnes in weight …
A maximum of four (4) individual tyre stacks can be grouped into a stack pile. A minimum clear separation of 2.5m at the base must be maintained between each stack …
A minimum clear separation of 18m must be maintained between each stack pile of four stacks …
If the storage of tyres exceed a single (4) stack pile then the facility has the capacity to exceed 50 tonnes of storage thus will be regarded as a ‘large’ tyre storage facility.
Note: A facility not having the capacity to store more than one stack pile (i.e. less than 50 tonnes) is regarded as a small tyre facility.

As a result of the way in which waste tyres were stored at the premises and the noncompliance with the FRNSW guideline, there was a high risk of a fire, particularly arising from stockpile 1 which was adjacent to the buildings and workshop on the premises which contained various fuel and ignition sources.
While the specific risk of a fire on any particular day would vary depending on the meteorological conditions, the risk would have continued while the waste tyres were stored at the premises in the same way as they were on 1 March 2023.

Likely harm from tyre fire on the premises

If there had been a tyre fire on the premises, it would have been very difficult to fight effectively. This is because:

safe access by fire trucks to any potential fire would be restricted by the buildings, other stockpiles, vehicles, the dams, and vegetation on the premises;

there is no fire hydrant on the premises to supply water for firefighting purposes; and

it was unknown if the dams on the premises are sufficiently deep to supply water and, even if they were, they might be inaccessible due to smoke and radiant heat from any fire.

The dark, thick smoke generated by any tyre fire would pose a risk to any person in the area, including firefighters and members of the community by making it difficult to breathe and causing respiratory distress. Any firefighters within the area of the fire would need to use a breathing apparatus. The heat generated by such a fire would pose the risk of burns and heat stress from radiant heat to any person in the area.
The firefighting runoff from fighting any tyre fire on the premises would also pose a risk to firefighters, the community, and the environment by exposing people and the environment to water containing carcinogenic compounds and heavy metals from the tyres. It is moderately to highly likely that any tyre fire would spread beyond the premises due to the ignition of vegetation which may have necessitated the evacuation of nearby residents and caused further damage to property or harm to people.

Prior history

The defendant had no prior convictions for environmental offences.

Defendant’s evidence

The defendant tendered the medical report of Dr Emmanuel Beloved dated 10 August 2024. Dr Beloved said that the defendant had been under management for anxiety and depression.
The defendant also read the following affidavits:

Mrs Ruth Helen Appleton, the defendant’s mother, dated 31 July 2024;

the defendant, Mr Luke Nathian Appleton, dated 2 August 2024 which annexes a certificate of appointment of trustee dated 8 August 2023, and ASIC document no 1EXK61381 which shows the change of company details of Carbon MF Pty Ltd ACN 644 164 394 and ASIC document no 5EFD63644 which shows changes to company details for Carbon MF;

the defendant dated 13 August 2024 which annexes a list of creditor claims as at 7 August 2024 of the defendant’s bankrupt estate and an email from Mr Daniel Drayton, accountant to Mr John Gunson, solicitor, dated 7 August 2024; and

the defendant dated 4 November 2024.

In his affidavit dated 2 August 2024, the defendant says that:

he lives with his mother Mrs Appleton and his son Cooper who is a 17-year-old high school student;

he has several prior convictions and served a six-month term of imprisonment beginning on 1 March 2023;

he receives a Centrelink Jobseeker allowance;

he has undergone mental health assessments and recalls being informed that it was possible he has schizophrenia or bipolar disorder;

he is bankrupt and has $374 in weekly expenses;

on 9 November 2012, he was injured in a motor vehicle accident and his claim was settled on 17 May 2016. From this he received $262,450. He purchased the premises for $380,000;

in late 2020, he was approached by Mr Mark Fair who showed him a business plan for recycling tyres and on 24 November 2024 he became a shareholder in Carbon MF;

Carbon MF leased separate premises and Albury Council initially refused to allow those leased premises to be used for storing tyres. This was later resolved and Albury Council allowed those leased premises to be used to store tyres. In the interim, the tyres were delivered to the defendant’s property. Tyres were delivered to the property for about 6-8 weeks and then the defendant became concerned about the volume of tyres and he “put a stop to the delivery of tyres”;

he received “correspondence requiring that the tyres be removed” and on 10 January 2022 he transferred his shares in Carbon MF to Mr Fair;

about 70% of the tyres have been removed. This was funded by Mr Appleton’s mother and project managed by the defendant;

he is “deeply regretful for what occurred” at the premises; and

he has lost the premises which he believed to be worth $550,000.

In his affidavit dated 4 November 2024, the defendant says that:

on 12 September 2024 “[w]hilst driving to Albury, I collided with a vehicle. The driver of the other vehicle was seriously injured and later died”. The defendant sustained a head injury and fracture to the lower right leg, and the fatal accident has been “damaging to [his] mental health”;

he has been charged by police with “dangerous driving occasioning death”, and at his first court appearance he was released on bail. A condition of his bail prevents him from driving; and

he has “obtained employment on a casual basis for three days per week on a trial basis with a farmer in Howlong” and that the agreed hourly rate is “$35 per hour”.

Relevant legislation and legislative history

Section 3 of the POEO Act provides the objects of the Act as follows:

3 Objects of Act
The objects of this Act are as follows—
(a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,
…
(d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following—
(i) pollution prevention and cleaner production,
(ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,
(iia) the elimination of harmful wastes,
(iii) the reduction in the use of materials and the re-use, recovery or recycling of materials,
(iv) the making of progressive environmental improvements, including the reduction of pollution at source,
(v) the monitoring and reporting of environmental quality on a regular basis,
(vi) the proper environmental management of chemicals throughout their whole lifecycle,

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

Section 144 of the POEO Act (at all relevant times) provided in relation to use of place as a waste facility without lawful authority:

144 Use of place as waste facility without lawful authority
(1) A person who is the owner or occupier of any place and who uses the place, or causes or permits the place to be used, as a waste facility without lawful authority is guilty of an offence.
Maximum penalty—
…
(b) in the case of an individual—$500,000 (if the offence involves asbestos waste) or $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

Section 241 of the POEO Act provides in relation to the matters to be considered in imposing a penalty for an offence against the Act or the regulations:

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,
(f) the presence of asbestos in the environment.

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

Section 245 of the POEO Act provides in relation to orders for restoration and prevention:

245 Orders for restoration and prevention
The court may order the offender to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow)—
(a) to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence, or
(b) to make good any resulting environmental damage, or
(c) to prevent the continuance or recurrence of the offence.

Clause 50(1) of Schedule 1 to the POEO Act provides the following definition of waste tyres:

waste tyres means used, rejected or unwanted tyres, including casings, seconds, shredded tyres or tyre pieces.

The Dictionary to the POEO Act provides the following relevant definitions:

environment means components of the earth, including—
(a) land, air and water, and
(b) any layer of the atmosphere, and
(c) any organic or inorganic matter and any living organism, and
(d) human-made or modified structures and areas,
and includes interacting natural ecosystems that include components referred to in paragraphs (a)–(c).
…
harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.

The purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) are as follows:

3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.

Section 21A of the CSP Act identifies aggravating, mitigating and other factors to be taken into account in sentencing. These are extracted as relevant below:

21A Aggravating, mitigating and other factors in sentencing
(1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters-
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—
…
(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a personal violence offence and has a record of previous convictions for serious personal violence offences),
…

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offender was not part of a planned or organised criminal activity,
…
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,
(i) the remorse shown by the offender for the offence, but only if—
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…
(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),
…
(m) assistance by the offender to law enforcement authorities (as provided by section 23),
…

Section 22 of the CSP Act provides for the matters that a court in passing sentence for an offence on an offender who has pleaded guilty to an offence must take into account:

22 Guilty plea to be taken into account for offences not dealt with on indictment
(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account—
(a) the fact that the offender has pleaded guilty, and
(b) when the offender pleaded guilty or indicated an intention to plead guilty, and
(c) the circumstances in which the offender indicated an intention to plead guilty,

and may accordingly impose a lesser penalty than it would otherwise have imposed.
(1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
…

Section 6 of the Fines Act provides as follows in relation to consideration of the accused's means to pay in fixing the amount of any fine:

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.

Section 122 of the Fines Act provides in relation to the payment of a share of a fine to the prosecutor:

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.
(3) For the purposes of this section, fine does not include an amount of the kind referred to in section 4 (1) (e) or (f).

Onus and standard of proof at sentencing

A plea of guilty admits those matters which are the essence of the charge, or the legal “ingredients” of each of the offences.^[1] It does not admit the non-essential ingredients an offence.^[2] It also does not relieve the prosecutor of its obligation to prove the facts on which it seeks to have the offender sentenced without the offender’s assistance. In GAS v The Queen^[3] at [30], the High Court said as follows in relation to fact finding following a plea of guilty where there is an agreed statement of facts:

In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge’s capacity to find potentially relevant facts in a given case.
1. Maxwell v The Queen (1996) 184 CLR 501 at 508-510; [1996] HCA 46 (Dawson and McHugh JJ); Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 (Strbak) at [32]-[33] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).
2. R v O’Neill [1979] 2 NSWLR 582 at 588 (Moffitt ACJ).
3. (2004) 217 CLR 198; [2004] HCA 22 at [30] (Gleeson CJ, Gummow J, Kirby J, Hayne J and Heydon JJ); Environment Protection Authority v Laison [2015] NSWLEC 89 at [33] (Pain J).

In relation to the standard of proof, a court may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the court proposed to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.^[4]
4. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]-[28] (Gleeson CJ, Gaudron, Hayne and Callinan JJ) citing R v Storey [1998] 1 VR 359 at 369 (Winneke P, Brooking and Hayne JJA, and Southwell AJA). See also Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41] (Gleeson CJ); Strbak at [27]-[28] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70 at [45] (Robson J).

Where the prosecutor contends that a particular sentencing consideration should be treated as an aggravating factor, it must establish by evidence, beyond a reasonable doubt, the presence of such aggravating factor. Where the defendants contend for the presence of a mitigating factor, it must be established on the balance of probabilities: R v Olbrich^[5] at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Environment Protection Authority v Metropolitan Collieries Pty Ltd^[6] at [76] (Robson J); Environment Protection Authority v Sydney Water Corporation^[7] at [131] (Pepper J).

Objective seriousness of the offence

5. (1999) 199 CLR 270; [1999] HCA 54; citing R v Storey at 369 (Winneke P, Brooking and Hayne JJA, and Southwell AJA).

6. [2025] NSWLEC 23.

7. [2019] NSWLEC 100 at [131] (Pepper J).

General submissions in relation to objective seriousness

The prosecutor submitted that the offence is at the upper end of the low range of objective seriousness. While no actual environmental harm was occasioned by using the premises as a waste facility without lawful authority, there was significant potential for harm to the environment arising from the high risk of fire at the premises.
The defendant agreed with the prosecutor’s submissions regarding objective considerations. The defendant accepted that his conduct undermined the integrity of the regulatory system and that by allowing the “improper storage” of waste tyres he created a real and serious risk of harm to the environment. Further, the defendant accepted that he should have made appropriate enquiries and known that the improper storage of waste tyres posed a fire risk, and that he had control over whether or not the premises was used as an unlawful waste facility.
The defendant agreed with the prosecutor’s submission that the offending was at the upper end of the low range of objective seriousness.

Nature of the offence

For environmental offences, the extent to which the defendant’s conduct offends against the legislative objectives of the offence provision is fundamental to the assessment of objective seriousness.^[8] In considering the penalty for an offence, the Court should determine the degree by which the offender’s conduct offends against the legislative objectives.^[9] Offences that undermine the integrity of a regulatory system are objectively serious.^[10]
8. See Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; (2009) 197 A Crim R 31; [2009] NSWLEC 137 at [15]; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [51]-[71], [168]-[169] (Preston CJ of LEC).
9. See R v Peel (1971) 1 NSWLR 247 at 262 (Herron CJ, Manning JA and O’Brien J); cited with approval in R v To (2007) 172 A Crim R 121 at 126; [2007] NSWCCA 220 at [19] (Hulme J).
10. Harrison v Perdikaris [2015] NSWLEC 99 at [47] (Preston CJ of LEC).
Relevantly, the objectives of the POEO Act set out in s 3 are extracted above at [53].
In Bankstown City Council v Hanna^[11] (Bankstown City Council v Hanna) at [53]-[55], Preston CJ of LEC said of the specific proscription in s 144(1) of the POEO Act, an offence against which thwarts the achievement of the objects of the POEO Act, including ecologically sustainable development, and which undermines the integrity of the regulatory scheme under the Act:

54. … the POEO Act also specifically proscribes certain conduct concerning the transporting and depositing of waste without lawful authority. This includes the use of a place as a waste facility (being premises used for the storage, treatment, processing, sorting or disposal of waste: see Dictionary to the POEO Act) (s 144(1) of the POEO Act) … A person can only carry out the conduct if a licence has been issued authorising the person to do so. Application for and approval of a licence ensures the proper assessment of the conduct, the land on which the conduct is proposed to be carried out, and the environmental impacts of the conduct …
55. The statutory provisions requiring application for approval, assessment and approval of activities are linchpins of the statutory scheme. An offence against these provisions thwarts the achievement of the objects of the POEO Act, including ecologically sustainable development, and undermines the integrity of the regulatory scheme under the POEO Act.
11. (2014) 205 LGERA 39; [2014] NSWLEC 152 at [53]-[54] (Preston CJ of LEC).

Similarly, in Environment Protection Authority v Robinson^[12] (EPA v Robinson) Lloyd J at [31] said of the offence created under s 144:

Section 144 of the POEO Act prohibits landowners and occupiers from permitting their land to be used as a waste facility where it cannot lawfully be used for that purpose. That provision reinforces the need for landowners and occupiers to gain approval for such a facility. The assessment process provides an important procedural step in the protection of the environment. The offence created under s 144 serves the objectives of waste minimalization and waste avoidance.
12. [2004] NSWLEC 629 at [31] (Lloyd J).

The prosecutor submitted that the defendant’s conduct, in causing the premises to be used as a place for the disposal and storage of waste without lawful authority, undermined the primary objective of the POEO Act which is to protect, restore and enhance the quality of the environment in New South Wales. The defendant’s actions in causing waste to be disposed of and stored at the premises without first applying for, and obtaining, the necessary approval under an environment protection licence, undermined the statutory scheme (this being a consideration for the Court under s 241(2) of the POEO Act) because:

there was no development approval or environment protection licence for the use of the premises as a waste facility, and consequently no “proper” environmental assessment of the impacts of storing the waste tyres; and

there were no controls in place, such as those in the FRNSW guideline, to mitigate the possibility of any harm to the environment.

Maximum penalty

The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence and a yardstick against which to measure the relevant features of the offence for which the defendant is to be sentenced.^[13] Careful attention to maximum penalties will almost always be required because, amongst other things, they invite comparison between the worst possible case and the case before the court at the time.^[14]
13. Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280 at [23] (Preston CJ of LEC).
14. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [31] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Harrison v Perdikaris [2015] NSWLEC 99 at [49] (Preston CJ of LEC); Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; (1993) 82 LGERA 21 (Camilleri’s Stock Feeds) at 36 (Kirby P, Campbell and James JJ agreeing).
Here, the maximum penalty for an individual for an offence against s 144(1) of the POEO Act not involving asbestos waste was, at the relevant time, $250,000.

The defendant’s state of mind in committing the offence

Neither party made any submission in relation to the defendant’s state of mind in committing the offence.

The harm caused or likely to be caused to the environment by the commission of the offence: s 241(1)(a) of the POEO Act

The Dictionary to the POEO Act defines “harm” as follows:

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.

In environmental offences, “harm” includes both actual harm, as well as the potential or risk of harm and can be direct or indirect, individual or cumulative. In Environment Protection Authority v Waste Recycling and Processing Corporation^[15] (EPA v Waste Recycling), Preston CJ of LEC said at [145]-[147] (emphasis added):

145. Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life.
146. Harm can include harm to the environment and its ecology …
147. Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously.
15. (2006) 148 LGERA 299; [2006] NSWLEC 419 at [145]-[147] (Preston CJ of LEC).

In Newcastle City Council v Pace Farm Egg Products Pty Ltd^[16] Lloyd J at [44] considered the meaning of harm that is “likely to be caused to the environment” for the purposes of s 241(1)(a) of the POEO Act:

In considering the harm likely to be caused to the environment, it is to be noted that the word “likely” in this context has been held to mean “a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance” (Mathews v Goulburn Wool Processors, NSWSC, Smart J, 6 November 1986, unreported) …
16. [2002] NSWLEC 66 at [44] (Lloyd J).

When considering s 241(1)(a) in the context of offences involving the use of a place as a waste facility without lawful authority for the storage of waste tyres, the Court has taken the extent of the potential or risk of harm into account, particularly the environmental risks arising from fires.^[17]
17. See Environment Protection Authority v Nath [2024] NSWLEC 10 at [68], [70]-[73] (Pepper J); Environment Protection Authority v BSV Tyre Recycling Pty Ltd [2024] NSWLEC 63 at [71]-[73] (Pepper J); Environment Protection Authority v Carbon MF Pty Ltd; Environment Protection Authority v Fair [2023] NSWLEC 120 (EPA v Carbon MF; Fair) at [41]-[42] (Duggan J).
In this case, the prosecutor did not contend that the storage of waste tyres on the premises resulted in actual harm to the environment. Rather, the prosecutor submitted that the “improper” storage of waste tyres on the premises posed a real and serious risk of harm to the environment due to the nature and extent of the fire risk. The prosecutor submitted that waste tyre fires are particularly harmful to the environment (including humans) due to:

the high energy content of waste tyres which means they burn extremely hot and are very difficult to extinguish which, in turn, poses the risk of burns and heat stress and can potentially lead to other fires;

the smoke produced by waste tyres which is dark, thick and contains high levels of carbon dioxide, carbon monoxide, and soot; this smoke enters the atmosphere and can cause respiratory issues; and

the runoff from large volumes of water used to fight waste tyre fires which contains carcinogenic compounds and heavy metals from the tyres.

The prosecutor further submitted that the way in which the tyres were stored at the premises as a result of the offence posed a high risk of such a fire. In particular, the waste tyres were not stored in compliance with the FRNSW guideline which provides the standards for bulk storage of tyres, including waste tyres. If a fire had ignited in one of the stockpiles of waste tyres, the lack of safe access for firefighters and the absence of available sources of water would have made it difficult to safely and effectively fight the fire. This increased the potential for harm to the environment as such a fire would be more likely to spread, including beyond the boundary of the premises. This level of potential for harm arising from a fire continued for the period the tyres were stored in this way; that is, until the clean-up of the premises commenced on 2 April 2024.
As no actual harm occurred, the prosecutor did not contend that the offence caused substantial harm within the meaning of s 21A(2)(g) of the CSP Act. However, due to the nature and extent of the risk of harm to the environment, the prosecutor submitted that the offence was committed without regard to public safety, an aggravating factor under s 21A(2)(i) of the CSP Act. This was because it would have been very difficult to fight any such waste tyre fire effectively and safely. The potential harm would be particularly severe for firefighters due to their close proximity to the fire.
The defendant accepted that “by allowing the improper storage of waste tyres he created a real and serious risk of harm to the environment”.

The defendant’s reasons for committing the offence

The reasons for the occurrence of crime are relevant to the objective gravity of the criminality involved.^[18]
18. Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 (Badgery-Parker J, Mahoney JA and Finlay J agreeing).
Neither party made any submission in relation to the defendant’s reasons for committing the offence.

The practical measures that may be taken to prevent, control, abate or mitigate the harm: s 241(1)(b) of the POEO Act

The prosecutor submitted that the Court has taken a counterfactual approach to s 241(1)(b) of the POEO Act, considering the practical measures that could have been taken at the time of the offending to prevent, control, abate or mitigate the harm (or the potential harm or risk of harm) at the time of the offending.^[19]
19. See, for example, Environment Protection Authority v BSV Pty Ltd [2024] NSWLEC 63 at [79]-[82] (Pepper J); EPA v Carbon MF; Fair.
The prosecutor submitted that practically, the potential harm or risk of harm may have been prevented by the defendant refusing to permit the premises to be used for the storage of “so many” waste tyres. Once waste tyres were present on the premises, the risk could have been reduced by lawfully disposing of the waste tyres and “appropriately reducing the numbers of waste tyres”. Further, the potential harm or risk of harm may have been mitigated by ensuring the waste tyres were stored on the premises in compliance with the FRNSW guideline or, at least, by ensuring a higher degree of compliance.
The defendant submitted that he “should have made appropriate enquires”, and accepted the prosecutor’s submissions in relation to the practical measures that may be taken to prevent, control, abate or mitigate the harm.
I take into account the actions taken by the defendant to clean-up the premises in my consideration of the subjective circumstances of the defendant at [112]-[118] below.

The foreseeability of harm caused or likely to have been caused to the environment: s 241(1)(c) of the POEO Act

For harm to be foreseeable, the precise cause of an incident is not required to be foreseen.^[20] The prosecutor referred to the decision of Preston CJ of LEC in Environment Protection Authority v Hanna^[21] where the chief judge said at [129]:

129. The question that must be asked is: “to what extent (if any) a reasonable person in the position of the offender could have foreseen the harm caused or likely to be caused by the commission of the offence? The position of the offender involves a consideration of all the available evidence including what the offender actually knew or ought reasonably to have known that was relevant to the issue of the foreseeability of the harm caused or likely to be caused.”
20. See, for example, Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273; [2008] NSWLEC 264 at [145]-[151] (Biscoe J).
21. [2018] NSWLEC 80 at [129] (Preston CJ of LEC).

In this case, in relation to the foreseeability of harm, the defendant was a shareholder in the Carbon MF tyre recycling business and made the decision, with Mr Fair, to bring the waste tyres onto the premises. The defendant accepted that he “should have known that the improper storage of waste tyres posed a fire risk”.

The defendant’s control over the causes that gave rise to the offence: s 241(1)(d) of the POEO Act

In relation to the defendant’s control over the causes that gave rise to the offence (s 241(1)(d) of the POEO Act), as the chief judge observed in Bankstown City Council v Hanna at [88], the degree of control a person exercises over the causes giving rise to the offence affects the objective seriousness of the offence.^[22]
22. See Bankstown City Council v Hanna at [88] (Preston CJ of LEC).
The prosecutor accepted that the defendant exercised general, rather than specific control over how the premises were used as an unlawful waste facility; he provided general direction as to the placement of waste tyres, but was not involved in sourcing waste tyres or arranging their transport to the premises. However, the use of the premises as an unlawful waste facility was only possible because the defendant made the premises available for that use. He was the owner of the premises and made the decision to use the premises, in conjunction with Mr Fair, as part of the Carbon MF business.
Therefore, the prosecutor submitted, the defendant ultimately had control over whether or not the premises were used as an unlawful waste facility.
The defendant accepted that he had control over whether or not the property was used as an unlawful waste facility.

Conclusions as to objective seriousness

I have concluded that the offence is at the upper end of the low range of objective seriousness. In particular:

While no actual environmental harm was occasioned by using the premises as a waste facility without lawful authority, there was the potential or risk of harm to the environment arising from the risk of fire at the premises over which the defendant had control.

The nature of the offence was such as to thwart the achievement of the objectives of the POEO Act (in particular that in s 3(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) and to undermine the integrity of the regulatory scheme (being a consideration under s 241(2) of the POEO Act). In Blacktown City Council v Hanna, the chief judge at [55] referred to an offence against s 144(1) of the POEO Act as one which thwarts the achievement of the objects of the POEO Act and undermines the integrity of the regulatory system under the Act. Section 144, as observed by Lloyd J in EPA v Robinson at [31] reinforces the need for landowners and occupiers to gain approval for a waste facility. The nature of the offence was that there was no approval or environment protection licence for, and no environmental assessment of the impact of the storage of waste tyres on the premises, and no controls in place such as those in the FRNSW guideline to mitigate the potential of harm to the environment.

At the relevant time, the maximum penalty for an individual for an offence against s 144(1) not involving asbestos waste was $250,000.

I do not find that the prosecutor established beyond reasonable doubt that the offence caused actual harm to the environment. Nor, to be fair to the prosecutor, did the prosecutor so contend. However, as the chief judge observed in EPA v Waste Recycling at [145]-[147] “harmfulness” need not only be considered in terms of actual harm. The potential or risk of harm should also be taken into account, and harm can also be direct or indirect, individual or cumulative. I find, as contended by the prosecutor, that the storage of waste tyres on the premises posed a real and serious risk of environmental harm due to the nature and extent of the fire risk, and the harmfulness of waste tyre fires to the environment (including humans). The manner in which the tyres were stored, other than in compliance with the FRNSW guideline, posed a high risk of fire and a real and serious risk to the environment, and especially to humans, and beyond the boundary of the premises.

In relation to practical measures that may have been taken to prevent, control, abate or mitigate the harm (s 241(b) of the POEO Act), I find, as was accepted by the defendant, that he should have made appropriate enquiries, and otherwise find the practical measures that may have been taken to have been as submitted by the prosecutor.

In relation to the foreseeability of the harm caused or likely to have been caused to the environment (s 241(1)(c) of the POEO Act), I find that while the defendant was not aware of requirements to hold a development approval or environment protection licence, a person in the defendant's position ought reasonably to have made appropriate enquiries and known that the storage of waste tyres posed a potential or risk of fire, and ought reasonably have foreseen the harm caused or likely to have been caused to the environment by bringing the waste tyres onto the premises.

In relation to the defendant’s control over the causes that gave rise to the offence (s 241(1)(d) of the POEO Act), I find, as the defendant accepted, that he had control over whether or not the property was used as an unlawful waste facility. I acknowledge, however, the prosecutor’s submission that the defendant exercised general rather than specific control over how the premises were used as an unlawful waste facility.

Subjective circumstances of the offender

General submissions in relation to subjective circumstances

The parties agreed that subjective considerations were broadly favourable to the defendant.
The defendant further submitted that the financial consequences of the failed business venture are catastrophic. He lost the premises. He will be 46 years of age when he exits his bankruptcy. His prospects of ever being able to buy a home are problematic as his credit rating will be an obstacle. He cannot rely on an inheritance as his mother has adjusted her testamentary plan in order to provide financial support.

Prior criminality: s 21A(3)(e) of the CSP Act

Section 21A(2)(d) of the CSP Act provides that a record of previous convictions is an aggravating factor. Conversely s 21A(3)(e) provides that no record (or no significant record) of previous convictions is a mitigating factor.
The defendant’s criminal record includes convictions for multiple offences relating to the unsafe storage and unauthorised possession of firearms.
The prosecutor submitted that the defendant’s criminal record is not insignificant in the sense that it includes recent convictions relating to unsafe and unlicenced firearm activities, and that it is therefore not a mitigating factor for the purposes of s 21A(3)(e). However, as the defendant’s prior record does not contain environmental offences or offences arising from similar conduct to that of the offence, it does little to “illuminate the moral capability”^[23] of the defendant in relation to the offence.^[24] The prosecutor therefore submitted that in this case the defendant’s criminal record is a “neutral factor” in assessing the defendant’s moral culpability as s 21A(2)(d) is not applicable.^[25]
23. Veen v The Queen (No 2), cited in Meis v R at [41] (Simpson AJA) (Rothman and Button JJ agreeing).
24. See Meis v R at [51]-[52] (Simpson AJA) (Rothman and Button JJ agreeing).
25. See Meis v R at [51]-[52] (Simpson AJA) (Rothman and Button JJ agreeing).
The defendant submitted that he has no prior offences under the POEO Act and otherwise agreed with the prosecutor’s submission that his criminal record is a neutral factor.
In Meis v R,^[26] Simpson AJA held that a record of previous convictions may be neutral, if it is significant enough so as not to be taken into account as a mitigating factor under s 21A(3)(e), but not of a nature that may properly be taken into account as an aggravating factor under s 21A(2)(d), having regard to the common law principles stated in Veen v The Queen (No 2).^[27]
26. Meis v R at [51]-[52] (Simpson AJA) (Rothman and Button JJ agreeing).
27. (1988) 164 CLR 465 at 477; [1988] HCA 14.
In Connell v Santos NSW Pty Limited^[28] (Connell v Santos) the chief judge sentenced Santos NSW Pty Limited for four charges under s 136A(1) of the Petroleum (Onshore) Act 1991 (NSW). The defendant did not have any prior convictions for environmental offences, but had been recently convicted for an offence concerning the death of a contractor (at [118]). The chief judge held that the previous offence was of a quite different nature, arose in “quite different” circumstances and did not reveal a continuing attitude of disobedience of the law or that retribution, deterrence and protection of society indicated that a more severe sentence was warranted by the defendant's prior conviction (at [121]). The chief judge did not find that the previous conviction should be taken into account as an aggravating factor under s 21A(2)(d), but held that the defendant could not rely on s 21A(3)(e) of the CSP Act as a mitigating factor (at [121]-[122]).
28. [2014] NSWLEC 1.
In Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd^[29] the defendants Ronald Lewis Greentree and Auen Grain Pty Ltd (Auen Grain) were sentenced for offences against s 12 of the Native Vegetation Act 2003 (NSW) and s 60N of the Local Land Services Act 2013 (NSW). In 2004, the defendants were found to have contravened s 16(1) of the Environment Protection and Biodiversity Conservation Act1999 (Cth), and Auen Grain had in addition a single prior conviction for a work, health and safety offence arising from an injury to an agricultural worker. Justice Robson held that despite the antecedents, the defendants were entitled to some mitigation as they had not been convicted of an offence against the sections of the Acts the subject of the offences before the Court.
29. [2024] NSWLEC 131.
In Environment Protection Authority v O’Brien^[30], the defendant was sentenced for three offences against s 144AA(1) of the POEO Act. The defendant had an “extensive criminal history”, however Robson J considered that the defendant’s prior offences had limited relevance to the sentencing task before the Court which concerned environmental offences (at [58]). Justice Robson considered the defendant’s criminal record in determining whether the defendant was of good character and the defendant’s prospects of rehabilitation (at [59]-[63]).
30. [2025] NSWLEC 14.

Good character: s 21A(3)(f) of the CSP Act

Neither the prosecutor nor the defendant made any submission in relation to good character within the meaning of s 21A(3)(f) of the CSP Act.

Remorse shown by the offender: s 21A(3)(i) of the CSP Act

Section 21A(3) of the CSP Act provides that one of the mitigating factors to be taken into account in determining the appropriate sentence for an offence is (i) the remorse shown by the offender for the offence, but only if (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).
In EPA v Waste Recycling, the chief judge at [203] said that “[c]ontrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives …”.
The prosecutor accepted that the defendant had given evidence, by way of affidavit, in which he apologised for allowing the premises to be used for the storage of waste tyres and that he accepted the potential for harm arising from the risk of fire at the premises. While the defendant was required to remove the waste tyres under the clean-up notice issued to him by the EPA,^[31] he did cooperate with the EPA in relation to the clean-up and removed a significant number of the waste tyres, as outlined in his affidavit affirmed 2 August 2024. Given the defendant’s personal circumstances (including limited financial capacity), this demonstrated a significant attempt to make reparations and reduce the potential for harm arising from the offence.
31. POEO Act s 91B.
The prosecutor also accepted that the defendant was willing to participate in a voluntary interview with the EPA and made admissions about his offending, which indicated contrition. The defendant‘s mother Ms Ruth Appleton worked with her son to remove the tyres from the premises. Ms Appleton supported the tyre removal project financially.
The prosecutor referred to the evidence in the defendant’s affidavit dated 2 August 2024 in relation to cooperation with the EPA in relation to the clean-up. The defendant had initiated enquiries with recycling contractors and other persons with equipment suitable for removing tyres. He obtained cost estimates and quotations. He and his mother participated in a meeting with the contractor they considered likely best suited to attend the job because of its history in the recycling industry, ELT of Melbourne. The defendant attended an on-site inspection with an officer of ELT. A cost estimate was obtained for removing the tyres from the Jindera property. The defendant instructed the family solicitor to contact the liquidator and the Commonwealth Bank for permission to access the Jindera property to remove the tyres, he having lost the right to enter the property. A contract was entered into with ELT. The EPA at Albury was kept informed of all developments.
The defendant submitted that he:

met and liaised with the recycling contractor, including making phone calls, sending emails, and attending on-site meetings;

made many visits to the premises;

organised aerial photography using a drone;

reviewed the budget as the project evolved, including discussions and negotiations with the contractor;

correlated the “contractor’s invoices with the tyre count and the estimates provided”;

authorised payments to the contractor from funds placed by his mother in the trust account of the family solicitor;

kept the EPA informed of the progress of the project; and

attended on-site meetings with the EPA officer based at Albury.

The defendant submitted that about 80% of the tyres had been removed by ELT (the recycling contractor). In his affidavit of 2 August 2024, he had deposed that about 70% of the tyres had been removed at that time. In written submissions, the defendant submitted that further removal took place on the weekend of 3 August 2024. He considered that this event reduced the remaining tyres to about 20%, and that the removal process had met the EPA’s requirements for the disposal of tyres. The “all-up” cost of removing the tyres was submitted by the defendant to be $148,819.00 consisting of money paid to ELT. As the defendant was not in a position to repay his mother, Ms Appleton, she had changed her will to provide a testamentary adjustment between the defendant and his brother to reflect the financial assistance received by the defendant.
The defendant’s remorse was submitted to be evidenced by his actions to remove most of the tyres, by the evidence of his mother, and by the expressions of regret and apology in his affidavit. Although not required to do so, on two occasions, including on the entry of the plea of guilty, he drove to Sydney from Albury to attend Court in person. This was submitted to reflect his understanding of the seriousness of the matter, his respect for the Court and its processes, and his contrition.
The defendant submitted that the Court would be satisfied that the prospects of his reoffending are minimal. Of its nature, the offence required the defendant to exercise dominion over land. The defendant has lost his property, and it would be “very difficult” for him to own land again. The defendant’s “responsible actions” in relation to the removal of the tyres prove that he is aware that environmental transgressions attract serious sanctions that must be addressed. The consequences of the offending behaviour have been crushing, including loss of the Jindera property and bankruptcy, “which consequences reinforce the conclusion that a lesson has been learned by the defendant, albeit in a very hard way.”

Assistance to authorities: ss 21A(3)(m) and 23 of the CSP Act

The prosecutor submitted that assistance in preparing the SOAF and the defendant’s participation in a voluntary interview is not assistance to law enforcement authorities within the meaning of s 23 of the CSP Act.^[32]
32. In relation to voluntary interviews see Le v R [2019] NSWCCA 181 at [50]-[54] (N Adams J) (Bathurst CJ and Price J agreeing). In relation to the preparation of a SOAF see ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 4 (ACE Demolition) at [92]-[103] (Leeming JA) (Garling and Cavanagh JJ agreeing).
The defendant submitted that both directly and with his mother's involvement, he engaged with the EPA at Albury in relation to the removal of the tyres. This included meetings on-site, the main purpose of the meetings on-site and other communications with the EPA being “to ensure that the tyres were removed in conformity with the regulations”. He submitted that the defendant and his mother “have greatly appreciated the generous input of the EPA staff at Albury, which has been invaluable”.
In Ace Demolition, the Court of Criminal Appeal drew attention to the potential for overlap between assistance to authorities, a plea of guilty and expressions of contrition and remorse as follows:

98 There may be exceptional cases where an offender’s participation in a statement of agreed facts nonetheless amounts to assistance for the purposes of s 21A(3)(m), because of admissions which materially alter the prosecutor’s understanding of the nature of the offending. For example, if ACE had agreed to statements identifying where the thousands of tonnes of ACM had in fact been disposed, or had identified the amount of profit it had made from the offending conduct, then the position might be different. (To be clear, I am not to be understood as implying that ACE was under any duty to do so; to the contrary, it was entitled to let the EPA prove its case beyond reasonable doubt.) Although the statement of agreed facts is quite long, it contains nothing which goes much beyond the documentary evidence concerning the actual fraud (essentially, readily proven emails which were simplistic forgeries) and insofar as the agreed facts extend to acknowledgements of knowledge that the documents were false, they go no further than the guilty pleas.
99 The course taken by primary judge may lead to double counting. Participating in an agreed statement of facts is inherently linked to a “plea of guilty by the offender”, a form of utilitarian assistance that is discretely rewarded, regard to which is required by s 21A(3)(k). That point was made in the hearing:
GARLING J: Mr Potts, just before you leave para 131, I’m not sure that I follow quite what the sentencing judge is putting there. The company pleads guilty, of course, any accused or defendant doesn’t have to agree on the facts, if they don’t, the prosecution proves the facts relevant to sentencing. It diminishes the value of the plea. Because if the judge has to hear the facts for five days relevant to sentence then the value of the plea is less in terms of its utility to the administration of justice. Why does a party that agrees facts get a positive benefit in its favour under s 21A(3)(m)? After all, it’s getting that benefit from the – it’s a number assigned to the plea which is a separate head of consideration under the Sentencing Procedure Act.

100 This point was exposed in Preston CJ of LEC’s reasons in Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 at [219]:
The offender’s willingness to assist the authorities may form a complex of inter-related considerations with its plea of guilty and expressions of contrition and remorse. For this reason, the factor of willingness to assist with authorities may be included as part of a single combined discount reflecting a guilty plea, contrition and remorse and cooperation with authorities

101 Participating in an agreed statement of facts may also contribute to a finding of remorse, regard to which is required by s 21A(3)(i), especially in light of the fact that this factor may only be made out if there has been an acknowledgement of any injury loss or damage or if reparations have been made.
102 The potential for overlap is especially acute in the present case, where ACE was sentenced on the basis of a 10% discount for its plea made after an eight day hearing at which the entirety of the evidence was adduced and a further unquantified benefit for assistance.
103 For those reasons, there is no good reason for ACE’s adherence to a statement of agreed facts to amount to a finding of assistance. Accordingly, ACE is not entitled to the benefit of a further mitigating factor pursuant to s 21A(3)(m) by reason of its adherence to the statement of agreed facts.

Whether or not the defendant’s assistance in preparing the SOAF and his participation in a voluntary interview is assistance to law enforcement authorities within the meaning of ss 21A(3)(m) and 23 of the CSP Act, acknowledging the potential for overlap and risk of double-counting, I am satisfied here that the defendant’s participation in the preparation of the SOAF and participation in the voluntary interview are matters indicating his contrition and remorse. As the chief judge said in EPA v Waste Recycling at [219]:

The offender’s willingness to assist the authorities may form a complex of inter-related considerations with its plea of guilty and expressions of contrition and remorse. For this reason, the factor of willingness to assist with authorities may be included as part of a single combined discount reflecting a guilty plea, contrition and remorse and cooperation with authorities: R v Gallagher (1991) 23 NSWLR 220 at 228; R v Thomson at [160]; R v El Hani [2004] NSWCCA 162 (21 May 2004) at [65]-[69]; R v A [2004] NSWCCA 292 (16 December 2004) at [27]; R v Waqa (No 2) (2005) 156 A Crim R 454 at [14] and [21], [24] and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [165].

I will proceed below to make a single combined discount for the defendant’s willingness to assist the authorities, his plea of guilty and his expression of remorse.

Guilty plea: ss 21A(3)(k), 22 of the CSP Act

A plea of guilty is a mitigating factor pursuant to ss 21A(3)(k) and 22 of the CSP Act. However, pursuant to s 22(1A), a lesser penalty imposed under s 22 must not be unreasonably disproportionate to the nature and circumstances of the offence.
In R v Thomson; R v Houlton^[33] at 419, Spigelman CJ (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing), said as follows in relation to pleas of guilty:

160. The Court should adopt the following guideline applicable to offences against State laws:
(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.
(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant — contrition, witness vulnerability and utilitarian value — but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate.
(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.
33. (2000) 49 NSWLR 383 at 419 [160]; (2000) 115 A Crim R 105; [2000] NSWCCA 294 (Spigelman CJ) (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing).

Further, it should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.^[34] I attach weight here to the defendant’s willingness to facilitate the course of justice.
34. Cameron v The Queen (2002) 209 CLR 339 at 343; [2002] HCA 6 at [11]-[14] (Gaudron, Gummow and Callinan JJ); Tyler v R; R v Chalmers (2007) 173 A Crim R 458 at 476; [2007] NSWCCA 247 (Simpson J, Spigelman CJ and Harrison J agreeing).
In this case, the prosecutor submitted that the defendant entered a plea of guilty relatively early in the sense that it occurred at the third mention following service of the summons, and before case management measures were taken pursuant to Division 2A of the Criminal Procedure Act. The early guilty plea therefore has a relatively high utilitarian value.
The defendant agreed with the prosecutor’s submission that his early guilty plea has a relatively high utilitarian value. The utilitarian value of an early plea of guilty “should generally be assessed in the range of 10-25 per cent discount on sentence”: R v Thomson; R v Houlton at 419 [160] (Spigelman CJ; Wood CJ at CL, Foster AJA, James and Grove JJ agreeing).^[35]

Conclusions regarding subjective considerations

35. See also Regina v Sharma (2002) 54 NSWLR 300 at 315-316; (2002) A Crim R 238; [2002] NSWCCA 142 (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ); SZ v R (2007) 168 A Crim R 249; [2007] NSWCCA 19 at [9] (Howie J).

In relation to subjective seriousness, I have concluded that the subjective considerations are overwhelmingly favourable to the defendant. In particular:

I am satisfied that the financial consequences of the failed business enterprise with Mr Fair have been catastrophic to him. His reputation has taken a battering, submitted to be no small consideration in a tight-knit community. Although he was slow to commence removal of the tyres, once that project commenced, it progressed briskly, with “encouragement, support, and advice from the EPA at Albury”. As at the date of the hearing on sentence, about 80% of the tyres had been removed. He entered an early plea, abided by Court processes, attended Court on two occasions when not required to do so, and established a cooperative relationship with the EPA in relation to the removal of the tyres, resulting in substantial abatement of the fire risk as summer approached.

In relation to the defendant’s record of previous convictions for firearm offences, it is of significance that he comes before the Court for sentencing without any record of conviction for an environmental offence. Ultimately, I find, as Simpson AJA held in Meis v R at [51]-[52] that that record is neutral in circumstances where it is significant enough so as not to be taken into account as a mitigating factor under s 21A(3)(e), but not an aggravating factor under s 21A(2)(d). A similar approach to sentencing was adopted by the chief judge in Connell v Santos. The prosecutor made no submission as to whether the defendant’s firearm offences bear upon his good character within the meaning of s 21A(3)(f), and I make no such finding.

In relation to remorse (s 21A(3)(i)), I am satisfied that the defendant has shown a quite conspicuous and commendable level of remorse. He has provided evidence that he has accepted responsibility for his actions (s 21A(3)(i)(i)), and has acknowledged any injury, loss or damage caused by his actions and sought to make reparations for such injury, loss or damage. This amounts to considerably more than offering “smooth apologies through his legal representatives”. He participated in a voluntary interview with the EPA and made admissions about his offending, initiated enquiries with recycling contractors and other persons with equipment suitable for removing tyres and obtained cost quotations, and instructed the family solicitor to contact the liquidator and the Commonwealth Bank for permission to access the premises to remove the tyres (after having lost the right to enter the property). He cooperated with the EPA in relation to the clean-up and removed a significant number of the tyres. He informed the EPA at Albury of all developments. The prosecutor accepted that given his personal circumstances (including limited financial capacity) this demonstrated a significant attempt to make reparations and reduce the potential for harm arising from the offence. He entered a plea of guilty, and whilst he was able to, drove to Sydney from Albury to attend Court in person. I am satisfied that this reflected his understanding of the seriousness of his offending, his respect for the Court and its processes, and his remorse. In relation to remorse it is of significance that the prosecutor submitted that the Court should give “significant weight” to the fact that the clean-up of the premises occurred in the context of “quite difficult personal and financial circumstances” for the defendant. Those circumstances include the loss of the Jindera property and his bankruptcy.

In relation to the defendant’s quite conspicuous and commendable level of assistance to authorities (ss 21(3)(m) and 23 of the CSP Act), I will, as I have indicated above, apply a single combined discount in relation to the defendant’s willingness to assist the authorities, his guilty plea and his expression of remorse.

Ordinarily, I would provide a discount of 25% on the sentence to be imposed on the defendant for the relatively high utilitarian value of his early guilty plea. However, in light of the complex inter-related considerations arising from the defendant’s guilty plea, his assistance to the authorities and his expressions of (and actions demonstrating) remorse, I will apply a single combined discount of 50% reflecting a guilty plea, remorse and cooperation with authorities.

Other principles of sentencing to be considered

Proportionality

Neither the prosecutor nor the defendants made any submission in relation to the principle of proportionality, Nonetheless, I have had regard to the principle of proportionality in determining the appropriate penalty to be imposed here. It is a fundamental principle of sentencing that the sentence should not exceed what is proportionate to the gravity of the offence, having regard to its objective circumstances.

General and specific deterrence: s 3A(b) of the CSP Act

The penalty to be imposed should serve the function of both general and specific deterrence. Section 3A(b) of the CSP Act identifies as a purpose of sentencing “to prevent crime by deterring the offender and other persons from committing similar offences”.
The prosecutor submitted that specific deterrence is of less weight where the defendant no longer works in the waste industry.^[36]
36. Cf Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 at [48] (Pain J).
However, general deterrence is of particular relevance to environmental offences. As observed by Preston CJ of LEC in Bentley v BGP Properties Pty Limited^[37] (Bentley) at [139]-[140]:

139 The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed…
140 This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines.^[38]
37. (2006) 145 LGERA 234; [2006] NSWLEC 34 at [139]-[140] (Preston CJ of LEC).
38. See also B Preston, “Principled Sentencing for Environmental Offences”, a paper presented to the 4th International IUCN Academy of Environmental Law Colloquium, 16-10 October 2006 at p 5.

The prosecutor submitted that general deterrence is of particular importance in this case given:

the statutory context and purpose of s 144 of the POEO Act; and

the general risks associated with the “improper storage” of waste tyres.

In relation to specific deterrence, I find that given the defendant’s personal circumstances, his early plea of guilty, cooperation with the authorities and remorse, there is little, if any, need for specific deterrence. In relation to general deterrence, I find that the sentence I am to impose must operate as a powerful factor in preventing the commission of a similar environmental crime by those who might otherwise be tempted by the prospect that only light publishment will be imposed.

Even-handedness and consistency in sentencing

Consistency of sentencing is important. The consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.^[39] In seeking consistency, judges must have regard to what has been done in other cases which may establish a range of sentences which have been imposed.^[40] However, that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion.^[41] The history stands as a yardstick against which to examine a proposed sentence.^[42] When considering past sentences, “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned”.^[43]
39. Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [46] (McHugh J).
40. Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [48]-[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 (Barbaro) at [40] (French CJ, Hayne, Kiefel and Bell JJ).
41. Barbaro at [41] (French CJ, Hayne, Kiefel and Bell JJ).
42. Hili at [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
43. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [304] (Simpson J), citing Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 (Wong v The Queen) at [59] (Gaudron, Gummow and Hayne JJ), cited in Hili at [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
As the chief judge observed in Environment Protection Authority v Ditchfield Contracting Pty Ltd^[44] at [72], the more appropriate yardstick against which the sentences in this case should be compared is the penalty set by Parliament, rather than the amount of fines imposed in past cases.
44. [2018] NSWLEC 90 at [72] (Preston CJ of LEC).
Neither party drew the Court’s attention to any past sentence said to inform the exercise of the sentencing discretion here.
At the relevant time, the maximum penalty for an individual for an offence not involving asbestos waste was $250,000 and, for a continuing offence, a further penalty of $60,000 for each day the offence continues: s 144(1)(b) of the POEO Act.

Capacity to pay a fine (s 6 of the Fines Act)

In exercising my discretion to fix the amount of a fine, I am required by s 6 of the Fines Act 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.
In Morris McMahon & Co Pty Limited v SafeWork NSW^[45] at [93]-[95] the Court of Criminal Appeal said as follows in relation to s 6 of the Fines Act (emphasis added):

93. If it is concluded that the evidence establishes that an offender’s financial resources will result in the penalty imposing a considerable burden, for example pushing a smaller corporation to the verge of insolvency, or over, as Basten JA discussed in Silver City at [58], that must be taken into account in arriving at the fine imposed.
94. But while the result of that consideration may be that a lower penalty than that which would otherwise have been imposed will be arrived at, that will not necessarily be the result. That is because consideration of evidence of means is a relevant, but not decisive matter and in the particular case, a fine may need to be increased, rather than decreased because, for example, of the need to deter the offender: Mahdi Jahandideh v R [2014] NSWCCA 178 at [16]-[17].
95. Even if the fine imposed is lower than it would otherwise have been in the absence of evidence as to means, that will not preclude a substantial fine being imposed. That is because every sentence must be determined in light of the applicable maximum penalty and the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act, which includes the statutory expression of the principle of proportionality, that is, that the punishment must fit the crime …
45. [2019] NSWCCA 36 at [93]-[95] (Schmidt J) (Hoeben CJ at CL and Adamson J agreeing).

In Environment Protection Authority v Hanna^[46] at [267] Preston CJ of LEC said in relation to the means of an offender to pay a fine:

267 However, whilst the means of an offender to pay any fine is a mandatory consideration, it may not be decisive. Other sentencing considerations, such as achieving general deterrence, may justify imposing a fine in a certain amount, even if the offender is unlikely to be able to pay the fine.^[47]
46. [2018] NSWLEC 80 at [267] (Preston CJ of LEC).
47. Citing Smith v The Queen (1991) 25 NSWLR 1 at 23, 24; (1991) 56 A Crim R 148 (Mahoney JA); Darter v Diden (2006) 94 SASR 505; (2006) 161 A Crim R 369; [2006] SASC 152 at [29]-[32] (Doyle CJ); Mahdi Jahandideh v R [2014] NSWCA 178 at [15]-[17] (Ward JA, McColl and Barrett JJA agreeing).

In Environment Protection Authority v Routledge^[48] (Routledge) at [49]-[52], Duggan J applied a 70% discount to the fine that would otherwise be appropriate having regard to the objective and subjective circumstances of the offence. This approach would achieve the purpose of general deterrence (in setting a fine that reflects the seriousness of the offence), while ensuring that the defendant’s ability to pay is also taken into account. In EPA v Carbon MF; Fair, Duggan J applied a 70% discount to the fine imposed on the defendant, consistent with her Honour’s decision in Routledge.
48. [2024] NSWLEC 8 at [49]-[52] (Duggan J).
As at the date of the penalty hearing, the defendant was an undischarged bankrupt. The prosecutor accepted that the defendant has limited means to pay any fine imposed by the Court. However, given the importance of general deterrence, the prosecutor submitted that any fine imposed should not be nominal.
The defendant submitted that his superannuation is not readily able to be accessed. The Australian Tax Office’s online information is to the effect that a financial hardship application may only be made if the defendant is in receipt of benefits for at least 26 weeks and is unable to meet reasonable and immediate family living expenses. If the criteria are satisfied, the maximum annual withdrawal is $10,000.00. Once the fine imposed by the Court is known to the defendant, he will seek superannuation release to assist in commencing payment.
The defendant also submitted that his weekly expenses total $374. As at the date of the penalty hearing, he received on average $750.00 per fortnight from Centrelink. He had just commenced a three-day per week casual position as a farmhand at an hourly rate of $35.00, which earnings he must declare to Centrelink. He has a significant lower right leg injury, and it remained to be seen whether he could accomplish the tasks of the position (which were likely to be strenuous).
In oral submissions, Mr Gunson for the defendant referred to EPA v Carbon MF; Fair, a case which concerned the defendant’s former business partner Mr Fair. Duggan J at [80] reduced the fine imposed upon Mr Fair by an amount of 70% below that which she “would otherwise determine to reflect his strained circumstances”. Mr Fair’s strained circumstances included that he had been declared bankrupt, was unemployed with no expectation of employment in the short term. However, her Honour found that he had capacity to continue in employment (at [80]).
Mr Gunson submitted that the Court should consider a discount of 70% or “perhaps a little more” in light of the defendant’s financial and personal circumstances. In comparison to Mr Fair, the defendant’s circumstances were “somewhat grimmer”. Specifically, Mr Gunson referred to the following circumstances of the defendant: “he has the burden of the injury, he has the quite extensive record which we would say narrows down his employment prospects and he now confronts the possibility of a… quite lengthy gaol sentence [in relation to unrelated court proceedings] which would narrow his prospects down even further.”
Mr Gunson noted that the Court would need to balance matters such as general deterrence, but submitted that a “significantly lower fine than what your Honour might otherwise impose would likely be appropriate after an application of s 6 of the Fines Act”.
In relation to the defendant’s capacity to pay, I find that the defendant’s capacity to pay a fine is such that his financial resources would result in a considerable burden. Although the sentencing consideration of achieving general deterrence weighs heavily here and I consider that it would not be appropriate to impose a fine that would be nominal, I am satisfied that it is appropriate to impose a lower penalty than that which I would otherwise have imposed in light of the defendant’s strained financial circumstances and limited prosects of employment.

The “instinctive synthesis approach” and the appropriate penalty to be imposed

In determining the appropriate penalty to be imposed, after weighing all the relevant factors, the court must apply the instinctive synthesis approach which seeks to identify all of the circumstances of the offences and the offender.^[49] In Markarian v The Queen at [37], Gleeson CJ, Gummow, Hayne and Callinan JJ referred to that task as described by Gaudron, Gummow and Hayne JJ in Wong v The Queen at [75] as follows:

In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed. As Gaudron, Gummow and Hayne JJ said in Wong:
"Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.
It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say 'may be' quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.

... the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an “instinctive synthesis” …

49. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ) quoting Wong v The Queen at [75] (Gaudron, Gummow and Hayne JJ).

The determination of an appropriate sentence is to be undertaken bearing in mind what Preston CJ of LEC said at [162] in Bentley: “[a] sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its subjective circumstances.”
In sentencing here, I have had regard, in particular, to the objective seriousness of the offence (which I have found to be in the upper end of the low range of objective seriousness), that there was a potential or risk of harm to the environment arising from the risk of fire, that the risk was real and serious, that the potential for harm was foreseeable, that the defendant had general control over the causes of the offence, his early plea of guilty, his commendable assistance to authorities, his demonstrated contrition and remorse, his personal circumstances including his limited capacity to pay, and the need for general deterrence.
The matters set out above enable the Court to synthesise the relevant objective and subjective circumstances of the offence and the offender in light of the relevant purposes of sentencing set out in s 3A of the CSP Act, and the maximum penalty for the offence (in the case of an offence against s 144(1) of the POEO Act not involving asbestos in the case of an individual $250,000). This would produce a penalty in the amount of $50,000. However, I have also determined to apply a discount of 50% in light of the defendant’s early plea of guilty, his remorse and his cooperation with the authorities.
Taking into account the objective seriousness of the offences and the other objective and subjective factors identified above, and applying a discount of 50%, I consider the appropriate fine to be in the amount of $25,000.

Additional orders sought

Restoration order: s 245 of the POEO Act

The prosecutor also sought an order pursuant to s 245(a) of the POEO Act that the defendant prevent the risk of harm to the environment caused by the commission of the offence by taking action to remove and lawfully dispose of the waste tyres remaining on the premises, by 31 October 2025. This action would prevent the remaining potential for harm arising from the commission of the offence.
I will make an order pursuant to s 245(a) of the POEO Act to the effect sought by the prosecutor.

Professional costs

The prosecutor sought an order that the defendant pay the prosecutor’s professional costs, as agreed or assessed, under ss 257B and 257G of the Criminal Procedure Act. An order for costs is compensatory in nature, not punitive.^[50] The Court may consider the quantum of costs in determining penalty to the extent that it is relevant to the defendant’s capacity to pay any penalty. However, an order for costs is not a reason for reducing the penalty to an amount that is lower than that suggested by the general pattern of sentencing for the relevant offence. Payment of the prosecutor’s costs is a common aspect of sentencing for environmental offences, such that it is embedded in the general pattern of sentencing for all such offences.^[51]
50. Latoudis v Casey (1990) 170 CLR 534 at 543; (1990) 50 A Crim R 287; [1990] HCA 59 (Mason CJ); SafeWork NSW v Williams Timber Pty Ltd; SafeWork NSW v Easy Fall Guttering Pty Ltd [2021] NSWCCA 233 at [37] (Wilson J) (Beech-Jones CJ at CL and R A Hulme J agreeing).
51. Liverpool City Council v Leppington Pastoral [2010] NSWLEC 170 at [50] (Biscoe J) cited in Secretary, Department of Planning and Environment v Khouzame (2024) 261 LGERA 49; [2024] NSWLEC 54 at [125]-[126] (Preston CJ of LEC) and Environment Protection Authority v Forestry Corporation of New South Wales [2024] NSWLEC 78 (EPA v Forestry) at [157] (Pepper J).
I will make an order for the prosecutor’s professional costs as agreed or as may be determined in accordance with s 257G of the Criminal Procedure Act.

Moiety

The prosecutor also sought an order pursuant to s 122 of the Fines Act for half of any fine ordered to be paid by the defendant be paid to the prosecutor. This order was sought in order to “support the sustaining, on a more general basis, of environmental law enforcement activities of the prosecuting authority.”^[52]
52. EPA v Forestry at [158] (Pepper J).
An order for a moiety is discretionary.^[53] Such an order is available regardless of whether or not the prosecutor has sought or is able to seek investigation costs.^[54]
53. Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 at [157] (Moore J).
54. 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 at [150]-[155] (Moore J).
I will make an order pursuant to s 122 of the Fines Act for half of the fine ordered to be paid by the defendant be paid to the prosecutor.

Orders

For the foregoing reasons, the Court makes the following orders:

The defendant, Luke Nathian Appleton, is convicted of the offence against s 144 of the Protection of the Environment Operations Act 1997 (NSW) as charged.

Pursuant to s 144(1) of the Protection of the Environment Operations Act 1997 (NSW) the defendant to pay a penalty in the amount of $25,000.

Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the penalty imposed by the Court in order (2) to be paid to the prosecutor.

Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant to pay the prosecutor’s professional costs as may be agreed or assessed pursuant to s 257G of the Criminal Procedure Act 1986 (NSW).

Pursuant to s 245(a) of the Protection of the Environment Operations Act 1997 (NSW), the defendant to take the following steps, or cause the following steps to be taken, within the times specified to prevent any potential harm to the environment caused by the commission of the offence:

By 5:00pm on 31 October 2025:

remove all remaining waste tyres on 63 Range View Drive, Jindera, in the State of New South Wales, being Lot 6 in Deposited Plan 1164647 (the premises);

in advance of undertaking any earthworks to remove any buried waste tyres on the premises, implement sediment and erosion control measures to prevent harm to the environment; and

dispose of the waste tyres by taking them to a place that can lawfully receive them.

By 5:00pm on 1 November 2025:

Provide the Environment Protection Authority, by email to [email protected], with evidence of the lawful disposal of the waste tyres in the form of:

copies of waste disposal dockets for the lawful disposal of the waste tyres;

if the waste tyres are transported within New South Wales, the unique consignment code, within the meaning of cl 76 of the Protection of the Environment Operations (Waste) Regulation 2014 (NSW), for each load of waste tyres so transported; and

if the waste tyres are transported outside of New South Wales, copies of the waste transport certificate, within the meaning of Part 4 of the Protection of the Environment Operations (Waste) Regulation 2014 (NSW), for each load of waste tyres so transported.

**********

Endnotes

Decision last updated: 19 June 2025

Medium Neutral Citation:	Environment Protection Authority v Appleton [2025] NSWLEC 62
Hearing dates:	11 November 2024
Date of orders:	19 June 2025
Decision date:	19 June 2025
Jurisdiction:	Class 5
Before:	Pritchard J
Decision:	See orders at [164] of judgment
Catchwords:	SENTENCING — environmental offences — use of place as waste facility without lawful authority —s 144(1) of the Protection of the Environment Operations Act 1997 (NSW) — guilty plea — potential for significant environment harm — capacity to pay a fine — s 6 of the Fines Act 1966 (NSW) —moiety — restoration order — s 245 of the POEO Act
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22 Criminal Procedure Act 1986 (NSW) ss 257B, 257G, Div 2A Fines Act 1996 (NSW) ss 6, 122 Protection of the Environment Operations Act 1997 (NSW) ss 3, 91B, 144, 241, 245, Sch 1, Dictionary Protection of the Environment Operations (General) Regulation 2009 (NSW) (repealed) cl 109 Protection of the Environment Operations (General) Regulation 2021 (NSW) (repealed) cl 148 Protection of the Environment Operations (General) Regulation 2022 (NSW) cl 133 Protection of the Environment Operations (Waste) Regulation 2014 (NSW) cl 76, Part 4
Cases Cited:	ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 4 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152 Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21 Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 Darter v Diden (2006) 94 SASR 505; (2006) 161 A Crim R 369; [2006] SASC 152 Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; (2009) 197 A Crim R 31; [2009] NSWLEC 137 Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280 Environment Protection Authority v BSV Tyre Recycling Pty Ltd [2024] NSWLEC 63 Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70 Environment Protection Authority v Forestry Corporation of New South Wales [2024] NSWLEC 78 Environment Protection Authority v Laison [2015] NSWLEC 89 Environment Protection Authority v Metropolitan Collieries Pty Ltd [2025] NSWLEC 23 Environment Protection Authority v Mouawad (also known as Isaac) (No 4) [2023] NSWLEC 76 Environment Protection Authority v Nath [2024] NSWLEC 10 Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 Environment Protection Authority v Richardson; Environment Protection Authority v Behnfeld [2002] NSWLEC 205 Environment Protection Authority v Robinson [2004] NSWLEC 629 Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273; [2008] NSWLEC 264 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 GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 Harrison v Perdikaris [2015] NSWLEC 99 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Latoudis v Casey (1990) 170 CLR 534; (1990) 50 A Crim R 287; [1990] HCA 59 Le v R [2019] NSWCCA 181 Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 Liverpool City Council v Leppington Pastoral [2010] NSWLEC 170 Mahdi Jahandideh v R [2014] NSWCA 178 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 Meis v R [2022] NSWCCA 118 Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 R v O’Neill [1979] 2 NSWLR 582 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Peel (1971) 1 NSWLR 24 R v Thomson (2000) 49 NSWLR 383; (2000) 115 A Crim R 105; [2000] NSWCCA 294 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 SafeWork NSW v Williams Timber Pty Ltd; SafeWork NSW v Easy Fall Guttering Pty Ltd [2021] NSWCCA 233 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 and Environment v Khouzame (2024) 261 LGERA 49; [2024] NSWLEC 54 Smith v The Queen (1991) 25 NSWLR 1; (1991) 56 A Crim R 148 Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Texts Cited:	B Preston, “Principled Sentencing for Environmental Offences”, a paper presented to the 4th International IUCN Academy of Environmental Law Colloquium, 16-20 October 2006
Category:	Principal judgment
Parties:	Environment Protection Authority (Prosecutor) Luke Nathian Appleton (Defendant)
Representation:	Counsel: B Nicols, solicitor (Prosecutor) J Gunson, solicitor (Defendant) Solicitors: Legal Services Branch, Environment Protection Authority (Prosecutor) Gibney & Gunson (Defendant)
File Number(s):	2024/11650
Publication restriction:	Nil