Environment Protection Authority v Ashmore
[2014] NSWLEC 136
•05 September 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Environment Protection Authority v Ashmore [2014] NSWLEC 136 Hearing dates: 28 August 2014 Decision date: 05 September 2014 Jurisdiction: Class 5 Before: Craig J Decision: Orders as set out at [120]
Catchwords: ENVIRONMENTAL OFFENCES - sentence - pleas of guilty to two offences - s 143 of the Protection of the Environment Operations Act 1997 (NSW) - transported waste to a place that could not lawfully be used as a waste facility for that waste - s 144AA of the Protection of the Environment Operations Act - false weighbridge dockets supplied in the course of dealing with the waste - waste contained asbestos fibres - strict liability offences - objective considerations - potential for harm - level or extent of potential harm unable to be quantified - moderate objective seriousness - subjective considerations - mitigating factors considered - offences committed under duress - failure by defendant to alert Prosecutor of his actions - failure by defendant to report threat to Police - expression of contrition and remorse - need for general deterrence - totality principle applied - fines imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Fines Act 1996 (NSW)
Protection of the Environment Operations Act 1997 (NSW)
Protection of the Environment Operations (Waste) Regulation 2005 (NSW)
Water Management Act 2000 (NSW)Cases Cited: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; 145 LGERA 234
Environment Protection Authority v Aargus Pty Ltd; Kariotoglou; Kelly [2013] NSWLEC 19
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; 148 LGERA 299
Knight v R [2010] NSWCCA 51
Muldrock v The Queen [2011] HCA 39; 244 CLR 120Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66
R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398
R v Holder [1983] 3 NSWLR 245
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Tiknius v R [2011] NSWCCA 215
Zizza v Minister Administering the Water Management Act 2000 [2014] NSWLEC 1017Category: Sentence Parties: Environment Protection Authority (Prosecutor)
Julian James Ashmore (Respondent)Representation: P J English (Prosecutor)
Self-represented (Defendant)
Environment Protection Authority (Prosecutor)
Self-represented (Defendant)
File Number(s): 50219, 50220 of 2014
Judgment
Julian Ashmore has pleaded guilty to two offences under the Protection of the Environment Operations Act 1997 (NSW) (the POEO Act). These offences arise from the transport of waste to properties located in Goolara Road, Mangrove Mountain.
A sentence hearing has been conducted. It is now necessary to determine the penalty that should be imposed upon Mr Ashmore for the commission of the offences with which he has been charged. In so doing I record that Mr Ashmore has, throughout the course of these proceedings, been self-represented.
Offences charged
The offences with which Mr Ashmore has been charged are that:
(i) Between about 28 March 2011 and 12 April 2011 inclusive, at or near Mangrove Mountain, he committed an offence against s 143(1) of the POEO Act by operation of s 169(1) of that Act in that he was, throughout that period, a director of Eco Civil and Demolitions Pty Ltd (Eco Civil) and that company permitted waste to be transported to a place that could not lawfully be used as a waste facility for that waste;
(ii) On or about 8 April 2011, at or near Mangrove Mountain, he committed an offence against s 144AA(1) of the POEO Act in that he supplied information that was false in a material respect about waste to another person in the course of dealing with that waste.
At the time of the commission of the offence against s 143(1) of the POEO Act, Mr Ashmore was the sole director of Eco Civil. That company was deregistered on 10 June 2012.
Statutory provisions relevant to the offences charged
At the time of the commission of the offence charged under s 143 of the POEO Act, that section relevantly provided:
"143 Unlawful transporting or depositing of waste
(1) Offence
If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported:
(a) the person, and
(b) if the person is not the owner of the waste, the owner,
are each guilty of an offence.
Maximum penalty:
(a) in the case of a corporation - $1,000,000, or
(b) in the case of an individual - $250,000."
The remaining provisions of the section are not presently relevant to be noticed.
As will be apparent from my recording of the charge under s 143 of the POEO Act, reliance is placed upon s 169 of that Act in order to found a breach on the part of Mr Ashmore for the acts of Eco Civil. The latter section relevantly provided at the date of the offence:
"169 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation ... is taken to have contravened the same provision, unless the person satisfies the Court that:
(a) (Repealed)
(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation."
As would be apparent from his plea, Mr Ashmore does not rely upon the exculpatory provisions of paragraphs (b) and (c) of s 169(1).
Section 144AA(1) relevantly provided:
"144AA False or misleading information about waste
(1) A person who supplies information, or causes or permits information to be supplied, that is false or misleading in a material respect about waste to another person in the course of dealing with the waste is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation - $250,000, or
(b) in the case of an individual - $120,000."
The phrase "information about waste" is defined in subsection (4) to include information about the transport, deposit and disposal of waste. The relevance of that reference arises by reason of the nature of the false information that is the subject of the charge under s 144AA(1).
Facts pertaining to the commission of the offences
The facts that give rise to the commission of the offences with which Mr Ashmore has been charged are not in contention. They are found in a Statement of Agreed Facts that was signed on 11 August 2014 by both the solicitor for the Prosecutor and by Mr Ashmore (Exhibit A). At the time of committing the offences, Mr Ashmore was not only the sole director of Eco Civil whose business was that of carrying out civil engineering works, but also the sole director of Eco Earthmoving and Plant Hire Pty Ltd (Eco Earthmoving) whose business was that of waste transport. For the purpose of conducting its business, Eco Earthmoving owned two trailer trucks.
Property comprising three lots and known as 55 and 105 Goolara Road Mangrove Mountain (collectively the Zizza property) was owned by Anthony Zizza. At the time of the offences, that property was used by him as a retreat for family holidays.
Constructed on 105 Goolara Road was an earthen dam that, at the time of commission of the offences, was in a state of disrepair. This dam was fed by an unnamed watercourse that ran through the property and led to a National Park located about 4km away. On 55 Goolara Road, gravel quarrying had been carried out in the late 1970's and early 1980's. Gravel extraction had left a quarry void, notwithstanding that the development consent granted for that activity had authorised restoration of the existing landform.
In November 2010, Mr Zizza determined to have the earthen wall of the dam repaired and the landform restored in the area of the former gravel quarry. To this end he entered into an agreement with Mathew Laison to have the dam wall repaired. Mr Laison was understood to be "in the trucking business".
Mr Ashmore was introduced to Mr Laison on 1 March 2011. Shortly thereafter, they entered into an agreement whereby Mr Ashmore would source civil engineering work for Eco Civil and Mr Laison would co-ordinate the transport of excavated material that was the product of such work to Mr Zizza's property. Costs and profits from the transport work undertaken under this agreement would be shared equally between Eco Civil and Mr Laison.
On or about 16 March 2011, Mr Ashmore, through Eco Civil, was awarded a contract with CLM Infrastructure Pty Ltd (CLM) to undertake potholing and bulk excavation works of soil containing asbestos fibres at the Shell Clyde Refinery site at Rosehill (the Shell site). For the purpose of making its successful tender, Eco Civil had been provided with a report from environmental consultants in which the material to be removed was described as "general solid waste to be managed as asbestos waste". Analysis of the material to be removed, showing the presence of asbestos, was annexed to that report.
As a consequence of being notified of the successful tender, Mr Ashmore, through Eco Civil, engaged a specialist consultant firm to supervise the work required for contaminated waste material and to prepare an asbestos removal control plan. That plan was duly prepared.
The contract for the work at the Shell site was signed by CLM and Mr Ashmore, as director of Eco Civil, on 22 March 2011. The contract sum to be paid to Eco Civil, was $409,086 plus GST. Among the obligations imposed by that contract upon Eco Civil were obligations to comply with all legislative requirements for removal of asbestos; to provide CLM with an asbestos removal plan, and also to provide that company with the receipts from the receiving licensed waste facility for all asbestos waste taken from the Shell site.
Under the contract between Eco Civil and CLM, Eco Civil was responsible not only for excavation but also for supervising the loading of trucks that were transporting the excavated material from the Shell site. At the time of tendering for and entering into the contract with CLM, it was Mr Ashmore's intention to have the excavated material taken to a facility licensed to receive waste containing asbestos. The tender price had been calculated on the basis that this would be done.
Mr Ashmore informed Mr Laison of the successful tender for civil works at the Shell site in accordance with their agreement. As a consequence, Mr Laison arranged to use the two trailer trucks owned by Eco Earthmoving. He also engaged other trucking contractors to transport the excavated material from the Shell site.
Excavation and removal of excavated material was due to commence on Monday 28 March 2011. On Sunday evening 27 March 2011, Mr Ashmore states that he received a telephone call from Mr Laison concerning the transport of excavated material from the Shell site. Mr Laison is said to have told Mr Ashmore that drivers of all trucks transporting excavated material from the Shell site were being directed to deliver all loads to the Zizza property at Mangrove Mountain. None of the material would be delivered to a licensed waste facility that Mr Ashmore had anticipated would be the destination for that waste.
Upon being told of the direction that Mr Laison proposed to give to drivers, Mr Ashmore told him that "it was stupid". Mr Ashmore stated that he was shocked by Mr Laison's statement but, by reason of other statements then made to him, he was scared of Mr Laison and believed that if he took any step to prevent Mr Laison's intended direction from being implemented, there would be "retribution" against him for so doing. Mr Ashmore stated that he was scared for his own safety and for that of his family.
Mr Ashmore acknowledged that the transport of material from the Shell site to the Zizza property involved illegal dumping because of its asbestos content and the fact that the Zizza property was not a licensed facility for that material. However, he took no step to prevent the transport of the material to the Zizza property because of his stated fear.
Between 28 March 2011 and 12 April 2011, material excavated from the Shell site was transported to the Zizza property. Supervision of the excavation and loading of trucks at the Shell site was undertaken by an employee of Eco Civil, while the trucks used to transport this material were those organised by Mr Laison, including the two trucks owned by Eco Earthmoving.
Supervision of trucks at the Zizza property was undertaken by Mr Laison. He directed drivers either to dump loads into the quarry void at 55 Goolara Road or to unload on or near the quarry wall at 105 Goolara Road.
In the period during which excavated material from the Shell site was being transported to the Zizza property, Mr Ashmore visited the Shell site to discuss with his manager the civil works then being undertaken. He had also assumed some management or supervisory role for the earthen wall dam repairs at the Zizza property and had visited that site.
Between 28 March and 12 April 2011, approximately 3,840 tonnes of excavated material was taken from the Shell site to the Zizza property. A record of all trucks entering the Shell site and leaving with waste were recorded by CLM.
On 8 April 2011 Mr Ashmore sent an email to CLM attaching "dockets". These dockets purported to be weighbridge dockets issued by SITA Australia Pty Ltd (SITA), the operator of a waste facility licensed to receive general waste containing asbestos. Those dockets purported to show vehicle registration numbers, time in and out of SITA's landfill facility, together with the weight and type of waste deposited at that landfill. These dockets were attached electronically to Mr Ashmore's email in a PDF file marked "Shell March Dockets". They were sent to CLM in performance of the obligation imposed upon Eco Civil under its contract with CLM, requiring that CLM be provided with dockets from facilities at which waste from the Shell site was received.
The dockets were provided to Mr Ashmore by Mr Laison. At the time at which Mr Ashmore sent these dockets to CLM, he was aware that none of the material from the Shell site had been taken to the SITA facility and that the weighbridge dockets provided to him were false.
When the weighbridge "dockets" were checked by CLM, discrepancies were discovered between its record of loads that left the Shell site and the loads said to be represented in those dockets. When a check was made with SITA, the falsity of the dockets was exposed. CLM immediately directed that all transportation of material from the Shell site cease and Eco Civil was "evicted" from that site. An invoice from Eco Civil to CLM for civil engineering work undertaken up to the time of its "eviction" from the Shell site has never been paid.
Notwithstanding the events of late March and early April 2011, Mr Ashmore continued an association with Mr Laison so far as it involved the depositing of fill material on the Zizza property. Mr Ashmore managed paperwork for that fill and attended the property from time to time to inspect the progress of work, particularly related to the attempts being made to repair the earthen dam wall. Mr Ashmore's association with delivery of fill to that property and with Mr Laison ceased on or about 27 September 2011.
During the time that Mr Ashmore was associated with the depositing of waste or fill material on the Zizza property, approximately 3,556 truckloads of material were delivered to that property, in addition to the waste that was delivered from the Shell site. As all loads were randomly dispersed between the quarry void at 55 Goolara Road and on the dam wall at 105 Goolara Road, it has not been possible to isolate the waste delivered from the Shell site.
Eco Civil entered into external administration on 17 June 2011. The company was deregistered in June 2012.
Sentencing considerations
The purpose for which the Court may impose a sentence is identified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act). Those purposes are identified as being:
"(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."
As the Prosecutor submitted, those matters identified in paragraphs (a), (b), (e) and (f) are particularly relevant in the present case.
In addition to the general considerations upon sentence imposed by the CSP Act, s 241(1) of the POEO Act identifies particular matters that must be considered when imposing a penalty for offences of the present kind. Subsection (1) of that section provides:
"(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 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."
As s 241(2) makes clear, matters relevant to be considered are not confined to those identified in s 241(1).
When determining the objective gravity or seriousness of an offence, there are matters to be considered beyond those identified in s 241(1). These include:
(a) the nature of the offence;
(b) the maximum penalty for that offence;
(c) the defendant's state of mind in committing the offence; and
(d) the defendant's reasons for committing the offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; 145 LGERA 234 at [163]).
Objective seriousness
Nature of the offence
A fundamental consideration of relevance to the commission of environmental offences is the degree to which the offender's conduct is seen to offend against the objects of the legislation creating the offence. Relevantly, the objects of the POEO Act, identified in s 3, include:
"(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,
...
(e) to rationalise, simplify and strengthen the regulatory framework for environment protection,
...".
Part of the regulatory framework identified in s 3(e) is found in the Protection of the Environment Operations (Waste) Regulation 2005 (NSW) (the Waste Regulation).
The combination of the provisions of the POEO Act and the Waste Regulation establish a highly regulated scheme for the transport and disposal of waste. Clause 42 of the Waste Regulation makes detailed provision for the transport, disposal and re-use or recycling of any type of asbestos waste. This regulation recognises potential for serious harm to the environment, particularly harm to human health, that is posed by material containing asbestos when being transported and deposited to land.
Having regard to the definitions of both "pollution" and "harm" found in the POEO Act, disposal of waste other than to a licensed facility is taken, for the purposes of that Act, to have caused environmental harm. This circumstance, coupled with the regulatory regime to which I have referred, specifically directed to the disposal of material containing asbestos, is ample demonstration of the undermining of the important objects of the POEO Act to which I have referred. A breach of s 143(1) of the POEO Act is therefore potentially serious.
I identified the importance of s 144AA in the statutory scheme for management of waste in Environment Protection Authority v Aargus Pty Ltd; Kariotoglou; Kelly [2013] NSWLEC 19. The observations there made at [54] are pertinent to the present case and should be repeated:
"54 The need to be scrupulous in supplying accurate information about "waste" so that it is correctly categorised is necessary to ensure that pollution is prevented, and that harmful wastes can be eliminated. Moreover, the imposition of an offence for "false or misleading" information about waste is a mechanism designed to "strengthen the regulatory framework for environmental protection"".
The provision by Mr Ashmore of false weighbridge dockets to CLM and concealing from CLM that waste had not been deposited at a licensed facility, undermined the object of the POEO Act. The offence against s 144AA is also potentially serious.
Maximum penalty
I have earlier identified the maximum penalty which may be imposed upon Mr Ashmore under each of the offences to which he has pleaded guilty. The maximum of $250,000 for an offence against s 143 and the maximum of $120,000 for an offence against s 144AA are each a demonstration of the seriousness with which the Parliament, reflecting community values, regards the commission of these offences. They bear significantly upon determination of the objective seriousness of each offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).
Defendant's state of mind
Each of the offences with which Mr Ashmore has been charged is an offence of strict liability. However, if committed intentionally, recklessly or negligently, such a circumstance will increase the seriousness of each offence.
As I have earlier recorded, the contract sum to be paid by CLM to Eco Civil for the civil works at the Shell site was $409,086 plus GST. According to the Prosecutor, the levy payable under the Waste Regulation for depositing general waste containing asbestos at a licensed facility was calculated at the rate of $70.30 per tonne. The total payable therefore was $269,952. As the tender submitted by Mr Ashmore on behalf of Eco Civil anticipated incurring such a levy, it can be assumed that by avoiding the licensed facility, this sum of money was saved, with the consequence that the potential profit under the contract would be considerably increased.
However, Mr Ashmore denies that this was his motive. As earlier recorded, Mr Ashmore claims that he did nothing to prevent delivery of the waste from the Shell site to the Zizza property because he was "scared" of Mr Laison. This gives rise to a consideration of his fundamental explanation for commission of the offences which is effectively one of duress. I will consider this claim when addressing the subjective considerations that Mr Ashmore submits should be brought to bear in mitigating the penalty otherwise to be imposed upon him.
Statutory considerations: s 240(1) of the POEO Act
(a) Harm caused or likely to be caused to the environment
"Harm" to be considered in the present case is that which is the consequence of waste containing asbestos being deposited on the Zizza property. The harm that is to be considered is both actual harm and potential harm (Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; 148 LGERA 299 at [145]). The likely harm that is required to be considered is harm that presents as a real and not remote chance or possibility of occurring (Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 at [44]).
The Prosecutor tendered, without objection, the evidence of Mr Allan Ly, an environmental scientist. Mr Ly was requested to provide an expert report directed to harm. For that purpose he visited the Zizza property on 10 February 2014. At both the dam site and old quarry site on that property he observed a large amount of fill with fragments of fibre cement sheeting randomly distributed on the ground surface. There was potential for those fragments to contain asbestos but none of those fragments were collected and tested.
Mr Ly stated that he was unable to determine the extent of any actual harm or likely future harm consequent upon transporting and depositing the fill from the Shell site on the Zizza property. Neither the concentration levels of asbestos in the waste material from the Shell site nor the precise location of that waste at the Zizza property was known. Further, the deposit of fill and waste from other sources at the property denied him the capacity to assess the harm of likely harm from the waste deposit that is the subject of the present charges.
In his report, Mr Ly stated that all forms of asbestos are carcinogenic to humans. Asbestos is considered to exhibit non-threshold toxicity, meaning that there is no dose below which no adverse effect will occur. He had access to the analysis of samples taken at the Shell site before excavation occurred. That analysis identified the presence of asbestos in the material. Having regard to that analysis, Mr Ly considered that asbestos fibres "could have become airborne during the earth-working process."
Based on that evidence, the Statement of Agreed Facts records at [73] the consequence as being:
"(i) There is a potential for harm to human health if proper work procedures were not in place during the depositing and subsequent disturbance of the asbestos at the Property. Harm to people exposed to the airborne asbestos fibres may have resulted.
(ii) If the asbestos waste on the Property exceeds the relevant National Environment Protection Measure (NEPM) health screening for asbestos in soil, and if the asbestos waste was deposited on or near the ground surface with less than half a metre of uncontaminated cover material, harm could potentially have been caused to humans by the [depositing] incident."
Dr Kate Langdon is a Principal Scientist in the Contaminants and Risk Team of the Environment Protection Science Branch of the Office of Environment and Heritage. Her expertise is in the behaviour of contaminants in the terrestrial environment, including terrestrial eco toxicology, soil chemistry and terrestrial risk assessment. A report from Dr Langdon was tendered in evidence.
For the purpose of preparing her evidence, Dr Langdon also visited the Zizza property in February 2014. Like Mr Ly and for the reasons that he had stated, she said that it was not possible to establish the extent of any actual or likely harm occasioned by the waste taken to and deposited on the Zizza property. In her opinion, the extent of any harm that could potentially be caused by the content of the waste, other than asbestos, was considered "in most cases to be low to very low." This conclusion is drawn on the basis of analytes reported for the material to be excavated at the Shell site prior to excavation occurring. Whether all or some of that material was material taken to the Zizza property is not known. Although some analytes were at elevated levels in the undisturbed material at the Shell site, the effect of Dr Langdon's evidence is that the existence of elevated levels in those same analytes at the Zizza property would involve further testing and given that the location of the critical waste on that property was unknown, no meaningful conclusion could be drawn.
In summary, the expert evidence reveals that while the potential exists for harm to human health from the disturbance of material containing asbestos within the waste taken to the Zizza property, the level or extent of that harm simply cannot be quantified. No testing could or can be done to assist this assessment because the location of waste that is the subject of the present charges cannot be identified. Mr Ashmore was not present when waste from the Shell site was unloaded at the Zizza property.
When considering harm, the Prosecutor submits that I should also take into account observations made by a Commissioner of this Court when determining an appeal by Mr Zizza directed to work undertaken on the dam at 105 Goolara Road. Following concern as to the stability of the earthen dam wall, a direction had been given to Mr Zizza under the provisions of the Water Management Act 2000 (NSW), requiring that the dam be "decommissioned" and that it be restored to the condition in which it was prior to fill material being placed upon it. Mr Zizza appealed to this Court against that direction.
On 5 February 2014 the appeal was dismissed (Zizza v Minister Administering the Water Management Act2000 [2014] NSWLEC 1017). In dismissing the appeal and upholding the direction, the Commissioner said (at [80]):
"The evidence regarding the significant problems posed by the existing dam is overwhelming. The experts agreed that the entire structure of the dam is prone to failure ... In order to eliminate the significant threat the dam poses to safety and environmental damage, it should be decommissioned."
As waste from the Shell site was part of the total volume of material taken to the Zizza property in an endeavour to fix the dam, the Prosecutor submits that the waste has contributed to the "significant threat the dam poses to safety and environmental damage". I should therefore take that finding into account as reflecting the potential harm occasioned by the actions of the Mr Ashmore.
I do not accept that I should do so. In proceedings to which Mr Ashmore was not a party, the Commissioner relied upon evidence before her to draw the conclusion that I have quoted. That evidence is not before me. Moreover, I have no evidence to demonstrate the extent to which waste from the Shell site contributed, if at all, to the instability or "significant problems" posed by the existing dam. Given that the Prosecutor bears an onus to establish that matter beyond reasonable doubt, I am not persuaded to the requisite standard that this evidence should be considered as bearing upon the potential harm consequent upon Mr Ashmore's actions.
(b) Practical measures to prevent control, abate or mitigate harm
While the extent of actual or likely harm cannot be identified, the potential for harm exists, albeit that no opinion is able to be expressed as to whether the potential will be realised. As would be obvious, even the potential for environmental harm at or originating from the Zizza property could have been avoided by insisting that waste be taken to a licensed facility for that waste. The Prosecutor correctly submits that another practical measure that might have been taken to control, abate or mitigate any harm or potential harm would have been the early reporting to either the Prosecutor or to the Police of Mr Laison's stated intentions to direct all truck deliveries to the Zizza property. Early intervention by the authorities would not only be likely to have intercepted the delivery of waste from the Shell site but, to the extent that such waste had already been delivered, would more readily have facilitated its identification and likely removal from the property.
(c) Forseeability of harm
As the Prosecutor submitted, it was plainly foreseeable that by depositing waste containing asbestos on the Zizza property there was potential to cause harm to the environment. Particularly was this the case when the material was being used in an attempt to repair a dam. That work involved machinery moving around the site and thereby crushing material with the potential to release asbestos fibres to the atmosphere. That activity, as Mr Ly stated, had the potential to occasion harm to those present on the site.
(d) Control over causes
Mr Ashmore clearly had control over the causes that gave rise to the commission of the offences with which he is charged. He took no action to prevent Mr Laison from transporting waste to the Zizza property when he was contractually bound to deliver that waste to a licensed facility able to receive that waste. Furthermore, Mr Ashmore himself emailed the weighbridge dockets to CLM, knowing that they were false.
(e) Complying with orders
In committing these offences, Mr Ashmore was not complying with orders from an employer or supervising employee. While his evidence is that he took the actions that he did in accordance with the directions or requirements of Mr Laison, Mr Laison was a business partner or associate. His directions or requirements are not of a kind that engaged the provisions of s 241(1)(e) of the POEO Act.
Conclusions on objective seriousness
The Prosecutor submits that the offences are at least of moderate objective seriousness. I accept this description as appropriate. The matters that I have discussed support that conclusion.
This is not a case where, although the offences are of strict liability, Mr Ashmore was ignorant of the essential elements of each offence. He knew that the waste contained asbestos and that it was required to be taken to a licensed facility for that waste. He also knew that the weighbridge dockets sent by him to CLM were false. At the time of committing the offence he stood to gain financially from the depositing of the waste without incurring the fee that would be charged for so doing at a licensed facility. The circumstance that the unlawful disposal of the waste was discovered by CLM with the consequence that Mr Ashmore was not paid and therefore did not realise any financial gain, does not detract from the seriousness of the offences to which he has pleaded guilty.
Subjective considerations
Early plea of guilty
As I have earlier recorded, Mr Ashmore has at all times been self-represented. He pleaded guilty to the offence on the second call-over of these proceedings. In conducting the proceedings he demonstrated unfamiliarity with the processes of the Court in proceedings of the present kind. Relevantly, it is not apparent to me that the utilitarian value of an early plea of guilty was diminished by the one adjournment of the proceedings before his guilty plea was entered. The prosecution does not contend to the contrary. In the circumstances, I consider that Mr Ashmore is entitled to the full discount of 25% for his early plea of guilty.
No prior convictions
The Prosecutor accepts that Mr Ashmore has no prior convictions for an environmental offence. Further, there is no evidence before me of his conviction of an offence of any other kind. The fact that he does not have any record of prior convictions is a matter to be considered in mitigation of the penalty to be imposed (s 21A(3)(e) of the CSP Act).
Planned criminal activity
In oral submissions, although not in its written outline, the Prosecutor submitted that the commission of these offences by Mr Ashmore was part of a planned or organised criminal activity within the meaning of s 21A(2)(n) of the CSP Act and therefore should be considered as an aggregating factor. I do not accept that the Prosecutor has established, beyond reasonable doubt, conduct on the part of Mr Ashmore that falls within that provision (cf Knight v R [2010] NSWCCA 51 at [16]).
For reasons I will elaborate when addressing Mr Ashmore's reliance upon duress, I accept that he acted in the belief that both he and his family were in some danger if he did not abide Mr Laison's directions. Whether, objectively judged, the evidence establishes that his belief was well-founded, is presently irrelevant. I accept that he genuinely held that belief. The fact that he held that belief is antithetical to a determination that the commission of these offences was part of a planned or organised activity.
Mr Ashmore was first confronted with an unforseen statement from Mr Laison that trucks transporting waste from the Shell site would be directed to take that waste to the Zizza property, a statement made on the evening prior to commencement of work by Eco Civil at the Shell site. Having interpreted that statement as indicating a position that was implacable, Mr Ashmore felt compelled not only to abide the consequence but, as the contract with CLM required, also to provide to that company the weighbridge dockets with which he was presented by Mr Laison.
Taken together, these circumstances do not inform a planned or organised criminal activity. Mr Ashmore neither planned nor organised either event giving rise to the present offences.
Duress
The matter upon which Mr Ashmore placed considerable emphasis was his claim that the offences were committed under duress (s 21A(3)(d) CSP Act). Shortly prior to the sentence hearing before me, two affidavits were sworn by him in which he gave evidence of matters directed to this issue. At the hearing he chose to read those affidavits. He was cross-examined on them by the Prosecutor.
As Mr Ashmore's plea demonstrates, he did not rely upon exculpatory duress. The onus of establishing that duress should be accepted as a mitigating factor rests upon Mr Ashmore (The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [26]-[27]). As was observed in Tiknius v R [2011] NSWCCA 215 at [45], a sentencing court addressing a claim of duress is entitled to approach such claim "with a significant degree of circumspection." This necessitates a close assessment of the evidence adduced to support such a claim.
Where the onus is discharged, it nonetheless remains for the Court to determine the weight to be given to that factor on sentence. Even where, as here, the offence is one of strict liability, proof that the offences were committed out of fear diminishes a claim that a defendant's state of mind in committing an offence was the prospect of financial advantage. The circumstance that a defendant acted out of fear could also be relevant in considering whether that person is likely to re-offend, assuming the source of fear to have been removed.
When considering the weight to be given to duress, once established, the observations of Johnson J (Tobias AJA and Hall J agreeing) in Tiknius should be noticed. His Honour there said:
"49 This will involve, amongst other things, consideration of the form and duration of the offender's criminal conduct, the nature of the threats made and consideration of opportunities which were available to the offender to report the matter to relevant authorities.
50 In addition, it is necessary to keep in mind, even at the sentencing stage, some of the policy considerations underlying the law of duress. In Taiapa v The Queen [2009] HCA 53; 240 CLR 95 at 106 [31], French CJ, Heydon, Crennan, Kiefel and Bell JJ, accepted as a starting point when considering the reasonableness of a person's actions (concerning the defence of duress), the proposition stated by King CJ in R v Brown (1986) 43 SASR 33 at 40:
'The ordinary way in which a citizen renders ineffective criminal intimidation is to report the intimidators and to seek the protection of the police. That must be assumed, under ordinary circumstances, to be an effective means of neutralising intimidation. If it were not so, society would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation.'".
Mr Ashmore gave evidence that he first had contact with Mr Laison in early 2011. At the time, Mr Ashmore's businesses, particularly that of Eco Earthmoving, were experiencing financial difficulty. The prospect of additional work for his businesses, by engaging with a transport operator such as Mr Laison, was attractive to Mr Ashmore. It was in this context that he entered into the agreement with Mr Laison earlier described at [13].
Following their agreement, sources of fill for use at the Zizza property were identified and the transport of that fill to the property commenced. However, securing the contract for the Shell site at Rosehill was considered to be significant to the new business arrangement. Until the events of 26 March 2011, nothing had occurred that caused Mr Ashmore any concern as to the manner in which the joint enterprise with Mr Laison would be conducted.
I have earlier described the substance of the telephone call that Mr Ashmore had with Mr Laison on the eve of work commencing on the Shell site. Mr Ashmore claims that he was shocked at Mr Laison's statement and responded by saying that it was stupid. According to Mr Ashmore, Mr Laison replied by relating incidents of personal harm that had come to people who had not abided by his requirements. Mr Laison stated that he had access to people who would ensure that his directions were observed. He said that he could not return to New Zealand because of the reputation he had among those that did not meet his wishes. He claimed to be aware of another contractor who was "unhappy" with Mr Ashmore but that he, Mr Laison, would protect him from harm.
That conversation, according to Mr Ashmore, was understood by him as a threat. He believed that unless he did as Mr Laison directed, both he and his family might be harmed. He was conscious that his home address was known to Mr Laison.
Shortly after that conversation, he was informed by Mr Laison that a trucking contractor was threatening harm to Mr Ashmore but that Mr Laison would endeavour to protect him. Mr Ashmore, together with his wife and child stayed at a hotel for several days for fear of physical harm if they remained at their home.
On 8 March 2011, Mr Laison came to Mr Ashmore with the false weighbridge dockets, requesting that the latter send those dockets to a nominated employee at CLM. The false dockets were in a printed form and contained information of the kind contained in weighbridge dockets issued by SITA. Mr Ashmore recognised that the loads recorded on those dockets would not match the records kept by CLM of loads dispatched from the Shell site, a circumstance likely to lead to the early discovery of the wrong that had been committed.
Having sent the dockets to CLM, Mr Ashmore said that he was so distressed by what had occurred, he "fled" to New Zealand with his wife and child. However, he returned four days later, recognising that he had to deal with the consequences of what had occurred. Nevertheless, he says there were at least two other occasions on which he, his wife and child left their home to stay in temporary accommodation because of threats either from Mr Laison or from "associated parties".
Mr Ashmore acknowledged that, notwithstanding the events just related concerning the Shell site, he retained an association with Mr Laison and the transport of fill or waste to the Zizza property. He kept records of loads delivered to that property and undertook some supervisory work directed to the repair of the dam. His evidence is that he did so in an endeavour to assist Mr Zizza in addressing the potential problems created by the manner in which fill was deposited on the property generally and in particular those consequent upon the depositing of asbestos fill on the property. This included ensuring that there was "clean fill" placed over the two areas of the Zizza property where waste from the Shell site had been deposited (Affidavit 26 August 2014).
Mr Ashmore states that he continues to have contact with Mr Zizza, endeavouring to assist him in an advisory capacity. I record that Mr Zizza attended the hearing before me, apparently to offer support to Mr Ashmore. However, Mr Zizza was not called to give evidence.
Mr Ashmore's direct involvement with the depositing of fill on Mr Zizza's property continued until late September 2011. Thereafter, he sold his home in Sydney and moved with his family to Queensland. In his affidavit sworn 26 August 2014 he states:
"Due to the financial implications of the contract being terminated and other financial pressures from the previous business complications and accompanied by the constant threat of retribution we moved from our home and moved interstate where we reside to this day unable to safely return."
The number of trucks delivering material to the Zizza property had come under notice from March 2011, leading to investigation by officers of the Prosecutor. In August 2011 an officer of the Prosecutor telephoned Mr Ashmore concerning a load or loads of fill that had been deposited on the Zizza property. He was again contacted by that officer in September 2011 following service by the Prosecutor on Mr Zizza of a clean-up notice, given under the provisions of the POEO Act. Mr Ashmore's name had been given to the EPA by Mr Laison as being the contact person for details of fill delivered. In neither telephone conversation did Mr Ashmore disclose that waste containing asbestos had been brought to the property or of his involvement as a consequence of intimidation by or fear of Mr Laison. Each of those telephone conversations were, to Mr Ashmore's understanding, private conversations in that there was no other person present with him when the conversations were had.
Mr Ashmore was first interviewed by an investigator on behalf of the Prosecutor on 11 October 2012. That interview was recorded. Mr Ashmore disclosed for the first time in the course of that interview that he had acted as he did because he was "scared" of Mr Laison and that there could have been "retribution" if he had spoken out about the events that were occurring in March and April 2011 (Exhibit A at [25]).
In a further record of interview with Roberto Pupo, an officer of the Prosecutor, that took place in January 2014, Mr Ashmore was asked about the false weighbridge dockets that he had provided to CLM. In that context, the following questions and answers are recorded:
"A By this time, Rob, I was seriously threatened for my life, so I just did as I was told.
Q 166. Okay. By whom"
A Mathew Laison.
Q 167. And (indistinct)
A (indistinct) the whole lot. So I just got to this point where I just, you know what, you lock yourself up in a zone, you do as you're told and you hope that you go home at night.
Q 168. Okay. Threatened in what manner
A Physically, death, whatever.
Q 169. Did you report it to the police?
A No.
Q 170. Why not?
A Too scared."
The Prosecutor challenges Mr Ashmore's claim to have acted as he did because he was "scared" of, or by, Mr Laison. Notwithstanding that challenge made in cross-examination, Mr Ashmore did not resile from his statement that he was and remained scared. He stated that he had never before been exposed to threats of the kind he understood Mr Laison to be making and acted in a manner that, with hindsight, he would not have acted now.
Mr English, on behalf of the Prosecutor, points to a number of objective facts that he submits militate against acceptance of Mr Ashmore's evidence. First, he points to the opportunity that Mr Ashmore had to report the position in which he found himself in 2011 either to the Prosecutor or to the Police. The failure to do so suggests either that the threats were not made at all or, if they were made, Mr Ashmore was not scared or did not feel intimidated as he claims to have been.
Mr English also points to ASIC searches that were tendered before me (Exhibits B, C and D). These reveal that on 14 June 2011 Mr Laison was appointed as a director and secretary of Eco Earthmoving. That is the company of which Mr Ashmore had been director and secretary since November 2000. According to the ASIC search, while Mr Ashmore resigned his position as director and secretary on the date upon which Mr Laison's appointment to those positions took effect, Mr Ashmore remained the sole shareholder of the company following Mr Laison's appointment as a director. This evidence reveals, so it is submitted, that there was an ongoing business relationship between Mr Ashmore and Mr Laison in the period during which Mr Ashmore claims that he was scared and intimidated.
The essence of this last submission was put to Mr Ashmore in cross-examination. He did not accept it as reflecting the true position. In April 2011, Eco Earthmoving was under administration, the administrator having been appointed in September 2009. While Mr Ashmore had no recollection of signing any documents either resigning his appointment as a director or consenting to the appointment of Mr Laison as a director of that company, he accepts that such a change was anticipated. From the outset of their business relationship, Mr Ashmore agreed to assist Mr Laison to establish his trucking business. It was Mr Ashmore's intention to transfer the trucking side of his business to Mr Laison. He therefore believed that registration of the change in directors in June 2011 was consequent upon delay on the part of the administrator in attending to the registration of transfers intended to take place some months earlier.
The initial offer to assist Mr Laison to establish his trucking business is also the response given by Mr Ashmore to a further matter upon which he was challenged by Mr English. In his record of interview dated 31 January 2014, Mr Ashmore stated that he had given Mr Laison $180,000 to start up his business. Mr Ashmore explained that he had not given that amount to Mr Laison as a direct payment but rather had contributed plant, wages and made payments on behalf of Mr Laison to that value. He had hoped ultimately to recoup this contribution but following the events of late April 2011, had come to realise that this was unlikely to occur. Mr Ashmore states that following those events he lost interest in his business and just wanted to cut his losses and phase out of it.
The matters to which the Prosecutor referred do, at face value, tend to undermine the strength of Mr Ashmore's claimed duress. Nonetheless, I am satisfied, on the balance of probabilities, that at the time of committing the offences charged, Mr Ashmore did hold a fear that unless he acted in accordance with the directions of Mr Laison, he or his family might be harmed. Whether, with hindsight, his perception of that fear and his response to it were rational are matters, so it seems to me, that are relevant to the weight I should attribute to that duress in mitigation of the penalty.
I had the opportunity to observe Mr Ashmore under cross-examination for a period of about two hours. His evidence and the manner of its delivery persuaded me that he genuinely held the fear he expressed. Importantly, his actions in moving his family out of the family home on at least three occasions proximate to the events of April 2011 when he felt under threat provided objective support for his expressed fear.
Although, in his final submissions, Mr English questioned whether the temporary episodes of relocating his family actually occurred because Mr Ashmore did not bring to Court any evidence of the cost of this temporary accommodation, I do not regard that contention to be a serious challenge to this aspect of Mr Ashmore's evidence. I take into account that Mr Ashmore conducted his own case and, as earlier observed, showed no great familiarity with the processes of the Court. In the circumstances, it is unsurprising that Mr Ashmore may not have thought to bring the accommodation receipts with him. Moreover, the claim that he had thought it necessary to relocate his family on a temporary basis in response to threats was not a claim made for the first time in the witness box.
I also accept that the fear expressed by Mr Ashmore as to his personal safety and that of his family was a factor informing his decision to move interstate in an endeavour to achieve a degree of anonymity. However, as the evidence earlier quoted (at [81]) from Mr Ashmore's most recent affidavit reveals, there was also a financial consideration informing the decision to move interstate.
While I accept that the commission of the present offences was affected by duress, the weight that might otherwise attach to that circumstance is reduced by Mr Ashmore's failure to alert the Prosecutor to his actions when the opportunity presented itself so to do in August and again in September 2011. So also is the fact that the serious intimidation alleged by Mr Ashmore was not reported to the Police. While a residual fear undoubtedly lingered, I gained the clear impression from Mr Ashmore's evidence that, with the passage of time, financial considerations became a factor in his decision-making, if only directed to extracting himself from the dilemma with which he was confronted.
Co-operate with authorities
The Prosecutor accepts that once interviewed, Mr Ashmore admitted the facts giving rise to the present offences and the circumstances in which they occurred. He voluntarily participated in two records of interview and has co-operated with the Prosecutor in the investigation of these offences (Exhibit A at [77]). He is entitled to have that co-operation and assistance considered in mitigation (s 21A(3)(m) CSP Act).
Remorse
Mr Ashmore has stated in evidence that he is truly remorseful for committing the offences with which he has been charged. He was not challenged on that statement in cross-examination. That remorse is demonstrated by his continuing concern for Mr Zizza's property and his contact with Mr Zizza, offering advice as to the management of fill and waste on the property.
Mr English submitted that Mr Ashmore had not shown insight into his wrongdoing because he had maintained that others were to blame for what had occurred. I do not accept this to be the case. While Mr Ashmore did maintain his claim of non-exculpatory duress, he did not resile from his guilty plea. He also stated in his affidavit that confronted now with the same situation, he would have acted differently.
I accept Mr Ashmore's expression of contrition and remorse. The manner in which he has done so satisfies the requirements of s 21A(3)(i) of the CSP Act.
The appropriate sentence
I have earlier identified the purposes of sentencing as expressed in s 3A of the CSP Act. In [32] I have identified those paragraphs of the section that are presently relevant and that I take into account when determining the appropriate penalty. Paragraph (b) of s 3A identifies deterrence as one of the relevant factors in imposing a sentence.
General deterrence
The need to enforce observance of the statutory regime for waste disposal is important. It is notorious that unlawful dumping of waste in both urban areas and non-urban areas, easily accessible from centres of population, is a problem with which authorities must contend. That notoriety extends to the avoidance, by unscrupulous truck operators, of licensed landfill facilities where building waste contains fibrous material, a component of which is potentially a form of asbestos. Imposition of inadequate penalties will do nothing to deter those who would avoid facilities licensed to receive waste of that kind in order to avoid the regulatory charges imposed at the licensed facilities. General deterrence must therefore reflect this circumstance by imposing an appropriate penalty.
Further, the accurate reporting of the content of waste together with the truthful reporting of the licensed facility to which the waste is transported serves an important role in the environmental management of that material. The importance of that role must be reflected in a penalty to be imposed on those who have failed to comply with those requirements.
Specific deterrence
I am satisfied by the evidence before me that there is little need for a component of any penalty to reflect specific deterrence upon Mr Ashmore. The circumstances in which the present offences were committed have already been recited at length. As I have accepted that the offences were committed under duress and that those circumstances have had a significant impact upon the life of Mr Ashmore and his family, the prospect of his re-offending is, to say the least, remote. Although the Prosecutor has referred to the fact that Mr Ashmore remains employed in undertaking civil works associated with building demolition, I do not accept this circumstance as necessitating that the penalty include a component for specific deterrence.
Evenhandedness
In determining an appropriate penalty, it is necessary that I take into account those decided cases that have been cited to me, reflecting penalties imposed for offences similar to those with which Mr Ashmore is charged. As has been frequently observed, reference to other cases is useful only to demonstrate a pattern of sentencing for like offences. Caution must be exercised in applying penalties imposed in an individual case to determine the penalty in the case being determined.
In those cases to which the Prosecutor has referred, involving an offence against s 143 of the POEO Act, both the corporation and a director of that corporation were charged as a consequence of the same breach. Fines imposed upon the corporation ranged between $40,000 and $80,000, while the penalty imposed upon the individual director ranged between $20,000 and $30,000. The case in which the volume of material deposited approximated that deposited in the present case and in which the breach was determined to be of moderate objective seriousness payable by the corporation resulted in a fine of $50,000 and a fine of $30,000 payable by the director of that corporation.
Only one prosecution was identified involving breach of s 144AA of the POEO Act. That was the case earlier cited of Environment Protection Authority v Aargus Pty Ltd; Kariotoglou; Kelly. A plea of guilty was entered by the defendants with penalties ranging from $15,000 to $3,000.
In all cases the defendants were ordered to pay the prosecutor's costs. I take the matters into account when assessing the penalty to be imposed in the present case. As the Prosecutor acknowledged, the cases cited were of little assistance in deriving appropriate penalties in the present case.
Totality
The Prosecutor accepts that the single purpose of both offences with which Mr Ashmore was charged was to have the waste removed from the Shell site and taken to the Zizza property so as to avoid the cost of incurring the charges that would otherwise be imposed on that waste if deposited at a licensed landfill facility able to receive that waste. In that circumstance the Prosecutor also accepts that the principle of totality should be applied so that a downward adjustment to the aggregate penalty that would otherwise be applicable would be appropriate (R v Holder [1983] 3 NSWLR 245 at 260).
I propose to apply this principle in determining the penalty to be imposed.
Dismissal of charges under s 10 of CSP Act
In his affidavit of 26 August, Mr Ashmore not only set out evidentiary material upon which he relied, but also included material that was, in substance, advanced by way of submission. No objection was made to the affidavit by the Prosecutor on that account. In the latter category was reference to s 10 of the CSP Act. Mr Ashmore submitted that in the extenuating circumstances that gave rise to the commission of his offences, the provisions of that section should be applied with the consequence that no pecuniary penalty should be imposed upon him. Apart from that reference in the affidavit, the submission was not further developed in the course of the hearing.
Section 10(1) of the CSP Act affords a discretion to a court that finds a person guilty of an offence, without proceeding to conviction, to make orders that (as presently relevant) direct either the dismissal of the charge or an order discharging the person, on condition that the person enter a good behaviour bond for a term not exceeding two years. Section 10(3) identifies the factors to which the Court is to have regard in deciding whether to make such an order. That subsection relevantly provides:
"(3) In deciding whether to make an order referred to in subsection (1), the Court is to have regard to the following factors:
(a) the person's character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the Court thinks proper to consider.
I do not accept that this is a case in which the discretion available under s 10 is appropriate to be exercised. While the duress that I have already identified may involve an extenuating circumstance, the offences with which Mr Ashmore has been charged cannot be described as trivial. The offence against s 144AA did not involve inadvertent omission from information concerning waste: it involved a deliberate act of dishonesty. Had Mr Ashmore acted promptly in disclosing to either the Prosecutor or to the Police the intimidatory conduct under which he acted, different considerations may have been brought to bear upon the application of s 10. However, the fact that responsibility for commission of the offences was not admitted until Mr Ashmore was first interviewed more than 12 months after the commission of the offences is a further factor weighing against the exercise of the discretion available under the section. The earlier telephone conversations with an officer of the prosecutor presented an opportunity for admission but was an opportunity not taken.
Costs
The Prosecutor seeks an order for legal costs pursuant to s 257B of the Criminal Procedure Act 1986 (NSW). No submission was made by Mr Ashmore directed to that application and I see no basis upon which to decline making the order sought.
Extra-curial punishment
In his affidavit evidence, Mr Ashmore has stated that he and his family have suffered considerably as a result of committing the present offences. He has referred to the "gross financial and emotional damage" as a consequence of so doing, resulting in his life and that of his family having to be lived differently from that which they enjoyed prior to the commission of the offence. The demonstration that he gives of this fact is the need to have moved interstate for a feeling of security and to maintain a degree of anonymity so that his address remains unknown. It was not disclosed for the purpose of these proceedings.
In R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398 at [62] the Court of Criminal Appeal accepted that a sentencing court "can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence." The leading judgment of James J (in which Tobias JA and Hume J agreed) continued:
"In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment."
As was acknowledged, the weight to be given to any extra-curial punishment will depend upon the circumstances of the case.
Unfortunately, the description of the extra-curial punishment upon which, in substance, Mr Ashmore sought to rely, did not extend beyond the general description that I have already given. While I have concluded that the evidence given supports the making of some allowance for the extra-curial punishment that has been suffered, the lack of particularity limits the weight to be given to this aspect of punishment.
The Defendant's means to pay
The lack of any detailed information directed to this topic may also be the product of Mr Ashmore's decision to be self-represented. He did state that he was unable to afford legal representation. He also made general references in his affidavit to the financial loss that he suffered following upon the commission of the offences and stated that he has been "financially ruined" by what has occurred. This information, or rather lack of it, presents difficulty in any meaningful application of s 6 of the Fines Act 1996 (NSW) when fixing the amount of fines to be imposed upon Mr Ashmore.
Conclusion on penalty
The determination of an appropriate penalty ultimately requires an instinctive synthesis of all factors, both objective and subjective, relevant to sentence (Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [26]). Balancing the objective and subjective circumstances and considering the purposes of sentencing, I consider that an appropriate penalty for the offence against s 143 of the POEO Act is the sum of $40,000. To this sum I apply a discount of 30% which includes the discount earlier identified for the early plea of guilty resulting in a potential penalty of $28,000.
Applying the same balancing process to commission of the offence against s 144AA of the POEO Act, I consider that an appropriate penalty is $20,000. That sum should also be discounted by 30% to take account of the factors that I have earlier identified, resulting in a potential penalty of $14,000.
A further downward adjustment of both penalties is required to reflect the total criminality involved in the commission of these two offences. Making that adjustment, the penalty imposed for the offence against s 143 should be reduced to $24,000 and the penalty for the offence against s 144AA reduced to $12,000. An aggregate penalty of $36,000 reflects, so it seems to me, an appropriate application of the principle of totality.
Orders
In accordance with these reasons, I make the following orders:
1. In proceedings 50219 of 2014:
(1) The Defendant is convicted of the offence as charged.
(2) The Defendant is fined the sum of $24,000 for this offence.
2. In proceedings 50220 of 2014:
(1) The Defendant is convicted of the offence as charged.
(2) The Defendant is fined the sum of $12,000 for this offence.
3. Pursuant to s 257B of the Criminal Procedure Act 1936 (NSW), the Defendant is ordered to pay to the Registrar of the Court for payment to the Prosecutor, the Prosecutor's legal costs, the amount of those costs to be determined in accordance with s 257G of that Act.
4. Exhibits may be returned.
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Decision last updated: 08 September 2014
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