Environment Protection Authority v Calleija; Environment Protection Authority v Budget Waste Recycling Pty Ltd - [2024] NSWLEC 119

Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Calleija; Environment Protection Authority v Budget Waste Recycling Pty Ltd [2024] NSWLEC 119
Hearing dates: 16 and 17 April 2024, further submissions 19 and 22 April 2024
Date of orders: 13 November 2024
Decision date: 13 November 2024
Jurisdiction: Class 5
Before: Pritchard J
Decision:
The Court makes the following orders:
In proceedings 164057 of 2023:
(1) The defendant, Budget Waste Recycling Pty Limited, is convicted of the continuing offence against section 97 of the Protection of the Environment Operations Act 1997 (NSW) as charged.
(2)   Budget Waste Recycling Pty Limited is to pay a fine in the amount of $234,000.
In proceedings 164049 of 2023:
(3) The defendant, Mr Michael Calleija, is convicted of the continuing offence against section 169A of the Protection of the Environment Operations Act 1997 (NSW) as charged.
(4)   Mr Michael Calleija is to pay a fine in the amount of $25,000.
In proceedings 324738 of 2023:
(5) The defendant, Mr Michael Calleija, is convicted of the continuing offence against section 97 of the Protection of the Environment Operations Act 1997 (NSW) as charged.
(6)   Mr Michael Calleija is to pay a fine in the amount of $75,000.
In proceedings 164049 of 2023, 164057 of 2023, and 324738 of 2023:
(7) Pursuant to s 122 of the Fines Act 1996 (NSW), a moiety of 50 percent of any fine determined by the Court be paid to the prosecutor.
(8) Pursuant to s 248 of the Protection of the Environment Operations Act 1997 (NSW), the defendants to pay $3,100.00 to the Environment Protection Authority for its costs and expenses reasonably incurred during its investigation of the offences.
(9) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendants to pay the legal costs of the Environment Protection Authority as agreed or as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
(10) Pursuant to s 250(1)(b) of the Protection of the Environment Operations Act 1997 (NSW), the defendants, at their expense:
(a)   within 60 days of the date of these orders, cause a notice at a minimum size of 139mm x 129mm to be published within the first 12 pages of the Sydney Morning Herald with the text of such notice and the Budget Waste Recycling Pty Limited (ACN 112 980 293) logo (of reasonable size) as set out in Annexure A to these orders; and
(b)   within 60 days of the date of these orders, cause a notice at a minimum size of a quarter of a page to be published within the first 12 pages of Inside Waste with the text of such notice and the Budget Waste Recycling Pty Limited (ACN 112 980 293) logo (of reasonable size) as set out in Annexure A to these orders.
(11)   Within seven days of the date of publication of the notices referred to in order 10, the defendants to provide the prosecutor with a complete copy of the notices published pursuant to that order.

Catchwords:
EVIDENCE — relevance — probative value — danger of unfair prejudice — Latent duplicity objections — objections to purported expert report — compliance with the Expert Witness Code of Conduct — whether there is lack of impartiality
SENTENCING — environmental offences — s 97 of the Protection of the Environment Operations Act 1997 (NSW) — guilty plea — failure to comply with a prevention notice — waste — real risk of environmental harm — objectively very serious — good character — remorse — publication order — moiety
SENTENCING — environmental offences — s 169A of the Protection of the Environment Operations Act 1997 (NSW) — executive liability offence — guilty plea — objectively serious — good character — remorse — publication order — moiety — totality
SENTENCING — environmental offences — s 97 of the Protection of the Environment Operations Act 1997 (NSW) — real risk of environmental harm —objectively very serious — good character — remorse — publication order — moiety — totality

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22, 23
Criminal Procedure Act 1986 (NSW) ss 257B, 257G
Environment Legislation Amendment Act 2022 No 3 (NSW) Sch 5
Evidence Act 1995 (NSW) ss 4, 55, 56, 78
Fines Act 1996 (NSW) s 6, 122
Protection of the Environment Operations Act 1997 (NSW) (as in force between 25 May 2022 and 24 January 2023) ss 3, 6, 55, 88, 95, 96, 96A, 97, 99, 169A, 191, 211, 215, 241, 242, 248, 250, 289, 319A, Dictionary
Protection of the Environment Operations Act 1997 (NSW) s 215
Protection of the Environment Operations (Waste) Regulation 2014 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) Sch 7

Cases Cited:
ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4
Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357
B v R (2008) 76 NSWLR 533; (2008) 208 A Crim R 441; [2008] NSWCCA 85
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 (2005) 139 LGERA 449; [2005] NSWCCA 157
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21
Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden (2010) 172 LGERA 52; [2010] NSWLEC 3
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
Environment Protection Authority v Albiston [2020] NSWLEC 80
Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280
Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79
Environment Protection Authority v Carbon MF Pty Ltd; Environment Protection Authority v Fair [2023] NSWLEC 120
Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178
Environment Protection Authority v Crush and Haul Pty Ltd; Environment Protection Authority v Cauchi [2022] NSWLEC 113
Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90
Environment Protection Authority v Eveston (No 3) [2022] NSWLEC 128
Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70
Environment Protection Authority v Hughes [2019] NSWLEC 108
Environment Protection Authority v Hughes [2024] NSWLEC 91
Environment Protection Authority v Laison [2015] NSWLEC 89
Environment Protection Authority v Nath [2024] NSWLEC 10
Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57
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 Sydney Water Corporation [2023] NSWLEC 68
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Environment Protection Authority v Zoya Investments Pty Ltd [2022] NSWLEC 149
Fairfield City Council v Oztech Developments Pty Ltd; Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81
Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Georges River Council v SAF Developments Pty Ltd [2023] NSWLEC 50
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242
Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Henry Payson Pty Ltd [2023] NSWLEC 5
Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113
Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Salvestro [2023] NSWLEC 423
Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Robert Beltrame [2023] NSWLEC 18
Hardt v Environment Protection Authority (2007) 156 LGERA 337; [2007] NSWCCA 338
Harris v Harrison (2014) 86 NSWLR 422; (2014) 201 LGERA 277; [2014] NSWCCA 84
Harrison v Perdikaris [2015] NSWLEC 99
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77
Lake Macquarie City Council v Australian Native Landscapes Pty Ltd [2015] NSWLEC 92
Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3
Lozanovski v R [2006] NSWCCA 143
Markarian v The Queen (2005) 229 CLR 357; [2005] HCA 25
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4
Pittwater Council v AI Professional Tree Recycling Pty Ltd (2008) 165 LGERA 1; [2008] NSWLEC 325
Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178
R v AEM [2002] NSWCCA 58
R v Agius; R v Abibadra; R v Jandagi; R v Zerafa (2011) 251 FLR 375; [2011] NSWSC 367
R v Bourchas (2002) 133 A Crim R 413; [2002] NSWCCA 373
R v Carroll (2008) 188 A Crim R 253; [2008] NSWCCA 218
R v McNaughton (2006) 66 NSWLR 566; (2006) 163 A Crim R 381; [2006] NSWCCA 242
R v O’Neill [1979] 2 NSWLR 582
R v Peel [1971] 1 NSWLR 247
R v Sinanovic [2000] NSWCCA 394
R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
R v Thomson (2000) 49 NSWLR 383; (2000) 115 A Crim R 104; [2000] NSWCCA 294
R v Wheeler [2015] SASCFC 83
RLS v R [2012] NSWCCA 236
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154
Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2019] NSWLEC 48
Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2022] NSWLEC 60
Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2) [2020] NSWLEC 126
Smith v The Queen [2007] NSWCCA 138
Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd (2018) 362 ALR 359; [2018] NSWCCA 202
Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Transport for New South Wales v Estuary Constructions Pty Ltd; Transport for New South Wales v Sampson [2022] NSWLEC 23
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26
Water NSW v Barlow (2019) 244 LGERA 1; [2019] NSWLEC 30
Williams v R (2012) 203 A Crim R 172; [2012] NSWCCA 172
Zreika v R [2012] A Crim R 460; [2012] NSWCCA 44

Category: Sentence
Parties: In proceedings 2023/324738 and 2023/164049:
Environment Protection Authority (Prosecutor)
Michael Joseph Calleija (Defendant)
In proceedings 2023/164057:
Environment Protection Authority (Prosecutor)
Budget Waste Recycling Pty Ltd (Defendant)
Representation: Counsel:
M McAuliffe (Prosecutor)
A Galasso SC and Z Shahnawaz (Defendants)
Solicitors:
Environment Protection Authority (Prosecutor)
Pikes & Verekers Lawyers (Defendants)

File Number(s): 2023/324738; 2023/164049; 2023/164057
Publication restriction: Nil

JUDGMENT

Introduction
Issues
Outcome
Factual background
The defendants
The premises
The EPL
The EPA’s investigation prior to the prevention notice
The prevention notice given on 25 May 2022 to Budget Waste
EPA investigation after the prevention notice was given on 25 May 2022
Class 1 appeal of the prevention notice
Further investigation
Supplementary prevention notice given on 25 November 2022 to Mr Calleija
Class 1 appeal of the supplementary prevention notice
Contraventions of the notices
The first offence
The second offence
The third offence
Environmental harm
Criminal history

Relevant legislative provisions and legislative history
Onus and standard of proof at sentencing
Objections to the prosecutor’s evidence
The relevance objections
Defendants’ submissions
Prosecutor’s submissions
Conclusions in relation to the relevance objections

The latent duplicity objections
Defendants’ submissions
Prosecutor’s submissions
Conclusions in relation to the latent duplicity objections

The evidence of harm objection
Defendants’ submissions
Prosecutor’s submissions
Conclusions in relation to the evidence of harm objection

Evidence of the prosecutor upon which I have ruled
Mr Campbell, unit head in the regulatory operations division, EPA
The prosecutor’s expert Mr Burton
Ms Fleming, senior operations officer at the EPA

Defendants’ evidence
Mr Calleija
Other evidence tendered by the defendants

Objective seriousness of the offences
Nature of the offences
Prosecutor’s submissions in relation to the first offence
Prosecutor’s submissions in relation to the second offence
Prosecutor’s submissions in relation to the third offence
The defendants made no submissions in relation to the nature of the offences

Maximum penalties for the offences
Prosecutor’s submissions in relation to all offences
Defendants’ submissions in relation to all offences

The defendants’ state of mind in committing the offences
Prosecutor’s submissions in relation to the first and third offences
Defendants’ submissions in relation to the first and third offences
Prosecutor’s submissions in relation to the second offence
Mr Calleija’s submissions in relation to the second offence

The harm caused or likely to be caused to the environment: s 241(1)(a) of the POEO Act
Prosecutor’s submissions in relation to the first and third offences
Prosecutor’s submissions in relation to the second offence
Defendants’ submissions in relation to all offences

The defendants’ reasons for committing the offences, and the question of financial gain
The practical measures taken to avoid harm to the environment: s 241(1)(b) of the POEO Act
Prosecutor’s submissions in relation to all offences
Defendants’ submissions in relation to all offences

The foreseeability of harm caused or likely to have been caused to the environment: s 241(1)(c) of the POEO Act
Prosecutor’s submissions in relation to all offences
Defendants’ submissions in relation to all offences

The defendants’ control over the causes that gave rise to the offences: s 241(1)(d) of the POEO Act
Prosecutor’s submissions in relation to all offences
Defendants’ submissions

The parties’ general submissions in relation to objective seriousness
Prosecutor’s submissions
Defendants’ submissions

Conclusions in relation to the objective seriousness of the offences

Subjective circumstances of the offenders
Series of criminal acts: s 21A(2)(m) of the CSP Act
Prosecutor’s submissions
Defendants’ submissions

Financial gain: s 21A(2)(o) of the CSP Act
Prosecutor’s submissions in relation to the first and third offences
Prosecutor’s submissions in relation to the second offence
Defendants’ submissions in relation to the first and third offences
Mr Calleija’s submissions in relation to the second offence

Record of previous convictions: ss 21A(2)(d), 21A(3)(e) of the CSP Act
Good character: ss 21A(3)(f) of the CSP Act
Defendants’ submissions in relation to all offences

Remorse shown by the offender: s 21A(3)(i) of the CSP Act
Prosecutor’s submissions in relation to all offences
Defendants’ submissions in relation to all offences

Guilty pleas: ss 21A(3)(k), 22 of the CSP Act
Assistance to authorities: ss 21A(3)(m), 23 of the CSP Act

Conclusions in relation to the subjective circumstances of the offender
Other principles of sentencing to be considered
Proportionality
Specific and general deterrence: s 3A(b) of the CSP Act
Prosecutor’s submissions in relation to all offences
Defendants’ submissions in relation to all offences

Conclusions in relation to specific and general deterrence
Even-handedness and consistency in sentencing
Prosecutor’s submissions in relation to all offences
Defendants’ submissions in relation to all offences

Totality

Capacity to pay: s 6 of the Fines Act
The “instinctive synthesis approach” and the appropriate penalties to be imposed
Payment of share of fine to prosecutor: s 122 of the Fines Act
Publication order: s 250(1)(a) of the POEO Act
Investigation costs: s 248 of the POEO Act
Professional costs
Orders
In proceedings 164057 of 2023:
In proceedings 164049 of 2023:
In proceedings 324738 of 2023:
In proceedings 164049 of 2023, 164057 of 2023 and 324738 of 2023:

JUDGMENT

Introduction

The first defendant, Budget Waste Recycling Pty Ltd (ACN 112 980 293) (Budget Waste) is an Australian waste company and the holder of environment protection licence number 20645 (the EPL) authorising it to carry on the scheduled activities of resource recovery and waste storage in a defined area of 311 Doonside Road, Arndell Park, New South Wales (the premises).
At all relevant times, the second defendant, Mr Michael Joseph Calleija (Mr Calleija) was the sole director and sole shareholder of Budget Waste. Budget Waste and Mr Calleija will be collectively referred to as the defendants throughout this judgment.
On 11 August 2023, in proceeding no 2023/164057 Budget Waste pleaded guilty to an offence against s 97 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) of failing to comply with a prevention notice given on 25 May 2022, as charged in the summons filed by the Environment Protection Authority (the EPA) (the prosecutor) on 23 May 2023 (the first offence).
On 11 August 2023, in proceeding no 2023/164049 Mr Calleija pleaded guilty to an offence against s 169A of the POEO Act of committing an executive liability offence in his capacity as director of Budget Waste, from about 1 June 2022, as charged in the prosecutor’s summons filed on 23 May 2023 (the second offence).
On 8 December 2023, in proceeding no 2023/324738 Mr Calleija pleaded guilty to an offence against s 97 of the POEO Act of failing to comply with a prevention notice given on 25 November 2022, as charged in the prosecutor’s summons filed on 13 October 2023 (the third offence).
The three offences to which the defendants have pleaded guilty are as follows:

The first offence is that Budget Waste failed to comply with direction 1 of prevention notice number 3502561 given under s 96 of the POEO Act on 25 May 2022 (the prevention notice). Direction 1 of the prevention notice required that Budget Waste “immediately, cease the receival of all waste to the Premises until the EPA is satisfied that you have demonstrated compliance with Directions 2-3 of this Notice and approves in writing that the activity can resume”. However, waste was received at or near the premises in contravention of that notice from about 25 May 2022 and continuing to about 23 December 2022 (the charge 1 period). (I note that the agreed facts say “receival of waste occurred from 26 May 2022 until 23 December 2022”).

The second offence is that in contravention of s 169A of the POEO Act, Mr Calleija, as a director of Budget Waste at all relevant times, knew or ought reasonably to have known that an offence against s 97 of the POEO Act would be or was being committed and failed to take all reasonable steps to prevent or stop the commission of that offence. Budget Waste contravened s 97 by failing to provide to the EPA a volumetric and topographical survey (the survey) of the kind described in direction 2 of the prevention notice in contravention of direction 2(d) of the prevention notice “[f]rom about 1 June 2022 and continuing to about 24 January 2023” (the charge 2 period).

The third offence is that Mr Calleija failed to comply with direction 1 of supplementary prevention notice no 3504232 given under s 96A of the POEO Act on 25 November 2022 (the supplementary prevention notice). Direction 1 of the supplementary prevention notice required that Mr Michael Calleija “immediately, cease the receival of all waste to the Premises until the EPA is satisfied you have demonstrated compliance with Directions 2-5 of this Notice and approves in writing that the activity can resume”. However, waste was received in contravention of that notice on 25 November 2022 and continuing until 23 December 2022 (the charge 3 period). (I note in relation to the third charge period that the agreed facts refer to the period “26 November 2022 until 23 December 2022”).

The elements of the offences, as set out in the prosecutor’s written submissions filed on 3 April 2024, and apparently agreed by the defendants are:

In relation to the offence against s 97 of the POEO Act:

a prevention notice was given to the occupier of the premises or a person carrying out an activity; and

that person did not comply with the prevention notice.

In relation to the offence against s 97 of the POEO Act where the prevention notice is a supplementary prevention notice given under s 96A:

a prevention notice was given to the corporation under s 96 of the POEO Act in relation to an activity;

the corporation did not comply with the previous prevention notice within the period specified in the notice;

a supplementary prevention notice was given to a director of the corporation under s 96A of the POEO Act; and

the director did not comply with the supplementary prevention notice.

In relation to the offence against s 169A of the POEO Act:

a corporation commits an executive liability offence such as an offence against s 97 of the POEO Act;

the person is a director of the corporation (or is concerned in the management of the corporation);

the person knows or ought reasonably to know that the executive liability offence, or an offence of the same type, would be or is being committed; and

the person failed to take all reasonable steps to prevent or stop the commission of that offence.

It was an agreed fact that all three offences are continuing offences for the purposes of s 242(1) of the POEO Act.
The proceedings were listed before me for a hearing on sentence on 16 and 17 April 2024.

Issues

The issues which arise for determination are:

the defendants’ relevance objections to the evidence sought to be relied on by the prosecutor for the purpose of the hearing on sentence;

the defendants’ latent duplicity objections to the evidence sought to be relied on by the prosecutor for the purpose of the hearing on sentence;

the defendants’ evidence of harm objections to the evidence sought to be relied on by the prosecutor for the purpose of the hearing on sentence; and

a sentence in relation to each of the three offences to which the defendants have pleaded guilty.

Outcome

I have ruled against the defendants’ relevance objections, latent duplicity objections and evidence of harm objections.
In relation to the first offence, Budget Waste has pleaded guilty to and is convicted of one offence against s 97 of the POEO Act, as charged.
In relation to the second offence and third offence, Mr Calleija has pleaded guilty to and is convicted of one offence against s 169A of the POEO Act, and one offence against s 97 of the POEO Act, as charged.
In relation to each of the offences, I would fix the following penalties:

In relation to the first offence, the amount of $100,000, with a further amount of $1,000 a day for a period of 212 days. To this, I apply a discount of 25% for the utilitarian value of its guilty plea which produces $234,000.

In relation to the second offence, the amount of $60,000, with a further amount of $600 a day for a period of 237 days. To this, I apply a discount of 25% for the utilitarian value of its guilty plea which produces $151,650.

In relation to the third offence, the amount of $75,000, with a further amount of $1,000 a day for the period of 28 days. To this, I apply a discount of 25% for the utilitarian value of its guilty plea which produces $77,250.

Having regard to the totality principle, as considered below at [299]-[302] and [311], I will make orders that:

In relation to the first offence, and Budget Waste, a penalty in the amount of $234,000.

In relation to the second offence, and Mr Calleija, a penalty in the amount of $25,000.

In relation to the third offence, and Mr Calleija, a penalty in the amount of $75,000.

I would then propose to make an order that 50% of each of the penalties be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW) (Fines Act).
I also propose to make orders that the defendants pay the EPA’s investigative costs pursuant to s 248 of the POEO Act, and that the defendants pay the EPA’s legal costs pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act). I propose to make publication orders pursuant to s 250(1)(b) of the POEO Act. My orders to such effect are set out at the conclusion of these reasons for decision.

Factual background

On 19 March 2024, the parties filed an extensive statement of agreed facts (the SOAF). The following recitation of agreed facts is largely derived from the SOAF with some immaterial alterations in light of the Court’s own review of the underlying documents, and the Court’s rulings in relation to the defendants’ objections to the prosecutor’s evidence (as to which, see [101]-[108], [115]-[122] and [135]-[140] below, and Annexure B).

The defendants

Budget Waste is an Australian waste company with a registered office and principal place of business at the premises. The title of the premises is Lot 1 in Deposited Plan 509194. At all relevant times the registered owner of the premises was Mr Calleija. At all relevant times, Mr Calleija was the sole director of Budget Waste. At all relevant times, Mr Calleija’s sons, Mr Matthew Calleija and Mr Christopher Calleija, were not employees of Budget Waste.
Budget Waste holds an EPL for a “scheduled waste facility” for the purposes of the Protection of the Environment Operations (Waste) Regulation 2014 (NSW) (POEO Waste Regulation). Under cl 22 of the POEO Waste Regulation, Budget Waste is required to submit monthly self-reported waste contribution reports via the EPA’s Waste and Resource Recovery Portal (WARRP).
At all relevant times, s 191 of the POEO Act provided that the EPA may, by notice in writing given to a person, require the person to furnish to it information or records as it requires. In the course of the EPA’s investigation the EPA required the defendants to provide records pursuant to s 191 of the POEO Act, including Excel spreadsheets which provided incoming waste information about waste received at the premises during different periods (the s 191 POEO Act responses).

The premises

An aerial photo of the premises dated 11 September 2022 is reproduced below:

To the west of the premises is Doonside Road. Across Doonside Road is Bungarribee Park. Bungarribee Park is part of the Western Sydney Parklands. The boundaries to the east and south of the premises are shared by Toll North Pty Ltd, known as Toll Chemical Services (Toll). Toll is licenced by the EPA to store chemicals and waste. There is no evidence that Toll’s operations were impacted by any of the offences.

The EPL

At all relevant times, Budget Waste held the EPL, issued under s 55 of the POEO Act. Pursuant to condition A1 of the EPL, Budget Waste is authorised to carry on the scheduled activities of resource recovery and waste storage in a 4,708 square metre (m²) portion of the premises, as identified in EPL condition A2 (the hatched area) shown below:

Pursuant to condition L2.1 of the EPL, waste permitted to be stored and recovered at the premises was:

paper, plastics, glass, metal and timber;

excavated natural material;

virgin excavated natural material; and

building and demolition waste.

Throughout 2022, the waste stored at the premises was predominantly building and demolition waste.
The EPL provided a number of restrictions upon the volume and manner of storage of waste. At all relevant times, those conditions included:

condition L2.2: “The authorised amount of waste permitted on the premises cannot exceed 5,000 tonnes at any one time”; and

condition L2.3: “No stockpile on the premises may exceed a height of 5 metres at any time”.

The EPA’s investigation prior to the prevention notice

In April 2022, EPA officers conducted a desktop assessment of the premises using Nearmap high-resolution aerial imagery from 17 February 2022 which caused the EPA concern that an activity was being carried on in an environmentally unsatisfactory manner at the premises.
On 9 May 2022, EPA officers conducted an inspection of the premises which led to the issue of a draft prevention notice to Budget Waste on 13 May 2022. On the same day, EPA authorised officer Ms Jessica Fleming received a phone call from Mr Calleija where words to the following effect were exchanged:

Mr Calleija: “I’ve received the draft Prevention Notice but haven’t read it and passed it onto my solicitors”.
“I don't go onto site much, Dump It run the day to day activities and Dump It is run by my sons.”
“Rain has held us up and I don’t have much to do with the site anymore”.
Ms Fleming: “If you need more time to review the notice, please give me a call or send me an email”.

On 17 May 2022, the EPA received comments on the draft prevention notice from Budget Waste. The response stated (among other things):

a. “Budget Waste Recycling Pty Ltd (BWR) acknowledges the EPA’s concerns arising from the site inspection on 9 May 2022. In particular, the concerns including the height and location of the stockpiled material, the tip and spread process underway at the time of the inspection and the concerns regarding access to weighbridge data. BWR is committed to working with the EPA to address these issues and to reach full compliance.”
b. “The current Omicron wave has impacted our staffing levels through positive tests, quarantine requirements, vaccination induced illness and departures due to our vaccine mandate. In the first quarter of this year this has impacted our ability process waste and maintain the site.”
c. “The rainfall received at the premises in the first quarter of this year was beyond anything we have previously experienced. It has made it difficult for our plant to process the stockpiled material and caused regular shutdowns for repairs and maintenance. The waste that we have been sending to landfill is more expensive to dispose of due to the accumulated water in the waste. In addition, some landfills have been closed during this period and others have increased their rates. This has placed significant commercial pressure on BWR’s business and its cashflow …”
d. “We also note that BWR has ordered a Flip Flow Screen at a cost of $250,000 to improve its ability to process waste impacted by water.”

Budget Waste proposed a joint site inspection with the EPA to take place in the week commencing 30 May 2022 “to demonstrate our progress and improvement”. On 18 May 2022, EPA officers conducted a drive-by inspection of the premises which led to the giving of a final prevention notice.

The prevention notice given on 25 May 2022 to Budget Waste

On 25 May 2022, the EPA gave the prevention notice to Budget Waste under s 96 of the POEO Act. The prevention notice provided at [R]-[S]:

R. The EPA reasonably suspects the activities of resource recovery and waste storage are being carried on in an environmentally unsatisfactory manner at the Premises by Budget Waste Recycling Pty Limited that the activities are carried on in a manner that is likely to lead to a contravention of Licence Conditions A2.1, L2.2, L2.3, O3.1-3, and O5.2 of the Licence.
S. The EPA reasonably believes the activities are carried on at the premises in a manner that is likely to lead to a contravention of Conditions A2.1, L2.2, L2.3, O3.1-3, and O5.2 of the Licence because:
i. Waste was stockpiled outside the hatched area indicated in the site map in Condition A2.2 of the Licence; and
ii. Aerial imagery showing significant stockpiles at the Premises, with onsite staff unable to produce documentation of waste volumes at the time of inspection; and
iii. The stockpile in the centre of the Premises was significantly large, with no appropriate method for the licensee to assess their compliance with Condition L2.3 of the Licence; and
iv. Dust was generated as a result of the activities on the site and no dust suppression methods during tipping were observed at the time of the inspection; and
v. There were no sediment controls observed at the time of the inspection and sediment was observed on Penelope Crescent, tracked from the Premises. The EPA is also in receipt of reports of sediment on the road; and
vi. There was little or no segregation of stockpiled wastes.

The prevention notice directed Budget Waste to take the following preventative actions:

1. “Immediately, cease the receival of all waste to the Premises until the EPA is satisfied you have demonstrated compliance with the prevention notice.
2. By 1 June 2022 or earlier, the licensee must undertake a volumetric and topographical survey (the Survey) of the Premises. The Survey must:
a. Be completed by an independent, suitably qualified, and registered surveyor as defined in Clause 7 of the Protection of the Environment Operations (Waste) Regulation 2014; and
b. Be conducted in accordance with sections 5.5 - 5.7 of the Waste Levy Guidelines 2018; and
c. Provide evidence of compliance with Conditions A2.1, L2.2, L2.3, and O5.2 of the Licence; and
d. Provide the Survey, including the Survey methodology, to the EPA in writing immediately after receiving the survey results.

EPA investigation after the prevention notice was given on 25 May 2022

On 27 May 2022, EPA authorised officer Ms Fleming spoke with Mr Calleija. During that conversation, Mr Calleija said words to the following effect:

a. “I am surprised that the EPA issued the notice”.
b. “It is going to cost approximately $20,000 to undertake the volumetric survey and I have been operating for 30 years and measuring metres cubes is a pointless exercise”.
c. “Since the notice was issued, I have been out on site every day and taken over management of the day-to-day operations from my sons to ensure the notice is complied with”.
d. “I've owned the site since 1996, this isn’t a situation where we would fill the site and leave giving the clean-up cost to the EPA”.
e. “I can send you regular updates to show the amount of waste leaving the site”. Ms Fleming said, “That would be great. The more updates you send the EPA, the sooner we may be able to revoke direction one of the notice.”
f. “I know there is an issue at my site. I told my sons 6 to 8 months ago, in October, that they needed to reduce the amount of waste on site. My sons told me if they stopped accepting waste then they would go broke.”
g. “Covid and increased rainfall are excuses but I know we still need to comply, I know there is an issue at the site and we're looking at installing stockpile height markers asap”.
h. “We’re struggling to find landfills to accept the waste but we’re trying to find B double trucks to take the waste away”.

On 1 June 2022, Ms Fleming spoke with Mr Calleija, and words to the following effect were exchanged (emphasis added):

a. Mr Calleija: “Trucks are hard to get out to site and it is a big battle, we've borrowed a truck from a cousin who has a similar site on central coast to help us move waste, we've been taking waste from site to Cleanaway Kemps Creek, our paperwork shows we're close to 5000T. We're looking to appeal the notice and I've been talking with my solicitor. The waste might be double the weight because of the amount of rain and we would likely be over the licence limits because of that. Converting a metre cube measurement to tonne weight measurement is a pointless exercise and it is smarter to take a visual assessment.”
b. “I understand the intent of the notice is for the amount of waste at our site to not increase, I've got to get rid of it. I know you want to see a pattern of waste leaving the site. The flip-flow screen will likely arrive in July”.
c. “We are using a walking floor truck three times a week removing approximately 80t of waste a day, the tripping issue of the prevention notice is the volumetric survey.”
d. Ms Fleming: “Have you received quotes for the volumetric survey?”
e. Mr Calleija: “I haven't organised any quotes, but someone told me that it was going to cost $20,000 to get done and I don't have that money.”

On 1 June 2022 and 10 June 2022, EPA officers conducted drive-by inspections of the premises.

Class 1 appeal of the prevention notice

On 10 June 2022, by way of Class 1 proceedings in this Court, Budget Waste commenced an appeal against the prevention notice.
In the Class 1 proceedings, Budget Waste prepared and filed a statement of facts and contentions dated 28 June 2022. The statement of facts and contentions was signed by Budget Waste’s then solicitor and provided as follows:

a. “Full compliance with condition L2.2 is anticipated within 31 August 2022.”
b. “Full compliance with condition L2.3 is anticipated within 31 August 2022.”

On 24 October 2022, a conciliation conference was held between Budget Waste and the EPA, which was attended by Mr Calleija and Mr Matthew Calleija. On 31 October 2022, Budget Waste discontinued the Class 1 appeal.

Further investigation

On 12 July 2022, EPA officers conducted an inspection of the premises. During the inspection, EPA officer Ms Fleming and Mr Calleija had the following conversation:

Mr Calleija: “Okay, we’re trying to do our best seriously, we need it to stop raining, it's probably depressing for you to go to work when it rains, for us its 100 times depressing cause any work we’ve done just gets shot down and rained on, I mean we’re seriously trying to do, were not trying to make money and leave this sitting, this place belongs to me you know we’re not trying to just run off and do something illegal you know. … All these boys here are dedicated to their jobs we’ve kept them working”.
Mr Calleija: “It’s when it gets warmer, if it gets warmer, you know, as soon as it gets warmer we’re ready to go and this will be gone, you know for a fact that if you go back to your time when you got pictures there was no great deal here but if you go back to I think October if you look back and you saw that there wasn’t that much stuff here it all happened as soon as it rained and it just got caught, we got caught with a little wet pile and then a little bit of wet pile and then next thing you know bang we’ve got this, we’re trying to stop it, we’re trying to dry it up as much as we can you know, I mean if you shut us down right now this will still sit here forever.”
Ms Fleming: “And you’ve been sorting things that have been coming in for the last three days, is that correct?”
Mr Calleija: “Absolutely. Yeah. They’ve been working every day”.
Ms Fleming: “So waste is still coming in and it’s being sorted?”
Mr Calleija: “Waste is being processed. Absolutely. Waste is being processed”.

On 12 July 2022, a volumetric survey of the premises was conducted by Australian Aerial Imagery Pty Ltd (Australian Aerial Imagery) using a drone. The EPA paid $1,550.00 in investigation costs to Australian Aerial Imagery.
On 19 October 2022, EPA officers attended outside the premises to conduct another volumetric survey. While near the premises, EPA officers made the following observation: “Trucks labelled ‘Dump It’, were tipping skip bins containing waste onto the Premises.”
On 19 October 2022, a volumetric survey of the premises was again conducted by Australian Aerial Imagery using a drone. The EPA paid a further $1,550.00 in investigation costs to Australian Aerial Imagery.

Supplementary prevention notice given on 25 November 2022 to Mr Calleija

On 4 November 2022, the EPA issued a draft supplementary prevention notice to Mr Calleija. On 8 November 2022, EPA authorised officer Ms Fleming spoke with Mr Calleija on the phone. Their conversation included the following (emphasis added):

Mr Calleija: “On the portal we have indicated there is approximately 10,000 tonnes of waste on their premises. We had a drone fly over site yesterday to take visual images of the premises to show a change over time. We're planning on using a drone to fly over the premises to collect visual images once a week on a Monday morning. We have reduced the amount of waste we are accepting at the site to 100 - 120 tonnes per day and have been removing approximately 350 to 400 tonnes off site per day. We’re getting rid of a third, but need more time.”

Mr Calleija: “In July we said we needed to wait until October to start removing the waste due to increased warm weather drying out the wet waste and that the weather is now good so we’ve been making good progress with removing the waste. If we cease accepting waste then we will not be able to afford the cost to remove the waste and will need to go into liquidation which is not a good outcome”.
Ms Fleming: “Thank you for outlining your concerns. At the conciliation conference you stated the absolute minimum waste you could accept to be financially viable would be 200 tonnes but you have reduced that further to 100-120 tonnes and that the intention of the cease accepting waste requirements is to reduce the waste incoming so you can remove the waste without the volume continuing to rise. Please put all these comments in writing by the draft comment period, this Friday, and if you need more time to hire a new lawyer please put an extension of time to review the draft notice request in writing to me with a proposed date. …”
Ms Fleming: “Please include as much evidence as you can in your response to the draft supplementary prevention notice, this may include weighbridge dockets and data to support your claim of only accepting 100-120 tonnes of waste, where the waste was going and to include the drone images taken yesterday.”
Mr Calleija said: “I would be proposing end of January as the final compliance date on the notice. We receive less construction contracts in the December January Christmas period and would be able to process waste faster due to this. I can send you the images/footage from yesterday's drone flight and the drone footage weekly. A volumetric survey is a pointless exercise but I do see the value of undertaking a volumetric survey at the end of the process.”

On 15 November 2022, Mr Calleija’s legal representative made a submission to the EPA in relation to the draft supplementary prevention notice which stated as follows (emphasis added):

a. Mr Calleija’s fundamental issue with the Draft Notice is that it requires the immediate cessation of the receival of all waste to the Premises. We are instructed that approximately 50 staff are employed by the facility. If such a direction were made, most of those staff would unfortunately be made redundant.
b. We are instructed that Mr Calleija would agree to: … Provide a volumetric survey and report demonstrating full compliance with the EPL by 31 January 2023.

On 23 November 2022, EPA officers conducted a drive-by inspection of the premises. On 25 November 2022, the EPA gave the supplementary prevention notice to Mr Calleija. The supplementary prevention notice directed Mr Calleija to take the following preventative action:

1. Immediately, cease the receival of all waste to the Premises until the EPA is satisfied you have demonstrated compliance with Directions 2-5 of this Notice and approves in writing that the activity can resume.
2. By 5:00pm 29 November 2022, you must:
(a) Install a sign at the front gates, large and clear enough to be visible from 30 metres stating that the Premises is not accepting waste pursuant to a direction given under section 96A of the POEO Act.
(b) Send a written notification to all clients who have used the services at 311 Doonside Road Arndell Park in the previous year, stating that the Premises is unable to receive waste until Direction 1 of this notice is lifted by the EPA, pursuant to a direction given under section 96A of the POEO Act, and that under section 143 of the POEO Act the owner of the waste and transporter are each guilty of an offence when waste is transported to a place that cannot lawfully be used as a waste facility.
(c) Provide evidence in writing to the EPA, by way of (but not limited to) photographs, copies of letters and receipts for receipt for notifications, to demonstrate compliance with Direction 2(a)-(c).

3. By 5:00pm 7 December 2022, you must engage a suitably qualified independent person to complete the following:
(a) Conduct an inspection across the entire Premises to identify where waste material has been received and has either been land applied, processed, or stockpiled at the Premises; and
(b) Classify each type of waste mate rial that has been received at the Premises and either been land applied, processed, or stockpiled in accordance with the Waste Classification Guidelines, part 1: classifying waste, EPA 2014 or whether the material meets a general resource recovery order; and
(c) Provide a report, including the methodology and outcomes of the inspection and waste classification process, to the EPA in writing immediately after receiving the report from the suitably qualified and independent person.

4. By 5:00pm 21 December 2022 you must:
(a) Remove waste from the Premises until the amount of waste on site below the authorised amount, as specified in Licence Condition L2.2.
(b) Ensure adequate stockpile separation distances of waste stockpiles on the Premises; and
(c) Undertake a volumetric survey (the Survey) of the Premises and collect bulk density soil samples reflective of the stockpile material, to confirm the amount of waste remaining onsite is below the authorised amount, as specified in Licence Condition L2.2. The Survey must:
i. Be completed by an independent, suitably qualified, and registered surveyor as defined in clause 7 of the Protection of the Environment Operations (Waste) Regulation 2014; and
ii. Be conducted in accordance with sections 5.5 - 5.7 of the Waste Levy Guidelines 2018; and
iii. Include any waste (processed or not) both inside and outside any building on the Premises; and
iv. Provide evidence of compliance with Conditions A2.1, L2.2, L2.3, and 05.2 of the Licence; and
v. Provide the Survey and bulk density soil testing results, including the Survey methodology, to the EPA in writing immediately after receiving the survey results.

5. By 5:00pm 22 December 2022, you must:
(a) Ensure waste is only stored within the Premises as demarcated by the hatched area on the site map in Condition A2.2 of the Licence.
(b) Install permanent stockpile height markers, and train employees on the use of these, so the markers can be accurately measured by visual comparison to the stockpile height from ground level and are positioned in such a way that it is possible to determine the height of the markers by staff working within processing and storage areas of the yard; and
(c) Submit a report to the EPA demonstrating compliance with Directions 1-5 of this notice.

Class 1 appeal of the supplementary prevention notice

On 1 December 2022, by way of Class 1 proceedings in this Court, Mr Calleija appealed the supplementary prevention notice, and filed a notice of motion seeking a stay of the supplementary prevention notice until final determination of the proceedings. On 6 December 2022, the EPA filed evidence identifying potential environmental risks. Mr Calleija indicated that he would not be moving on the motion as he intended to file evidence in reply.
On 8 December 2022, the notice of motion was listed for return before the Deputy Registrar. The Deputy Registrar stated that the first available date for the hearing of the motion was 31 January 2023. The motion was listed for hearing on 3 February 2023. Ultimately, Mr Calleija did not move on the motion. On 14 June 2023, a conciliation conference was held in this Court between Mr Calleija and the EPA.

Contraventions of the notices

The first offence

Budget Waste continued to accept and receive waste at the premises after it became aware of the prevention notice given on 25 May 2022 at 5:40pm. The receival of waste occurred from about 25 May 2022 until 23 December 2022. The continued receival of waste during the charge 1 period constitutes the offence by Budget Waste against s 97 of the POEO Act.
The monthly WARRP reports submitted by Budget Waste record that Budget Waste received up to a total of 26,247.88 tonnes (t) of waste during the charge 1 period. The monthly data is set out in the table below:

Month 2022

Waste received (t)

Waste removed (t)

Closing stock (t)

Net increase or decrease (t)

May

3,676.30

2,786.76

4,964.18

-

June

3,693.98

3,238.06

5,420.10

455.92 increase

July

4,016.96

2,068.48

7,368.58

1,948.48 increase

August

3,893.26

2,788.34

8,473.50

1,104.92 increase

September

2,752.04

2,046.92

8,859.26

705.12 increase

October

2,663.08

2,982.44

8,859.26

319.36 increase

November

3,627.78

5,051.54

7,435.50

1,423.76 decrease

December

1,924.48

4,670.16

4,689.2

2,745.68 decrease

The second offence

Direction 2 of the prevention notice given on 25 May 2022 required Budget Waste to undertake a volumetric and typographical survey of the premises and by 1 June 2022, and provide the survey to the EPA immediately upon receiving the results. Between 1 June 2022 and 24 January 2023, Budget Waste did not provide a survey to the EPA as required by direction 2(d) of the prevention notice. This failure constitutes an offence against s 97 of the POEO Act.
At all times, Mr Calleija was a director of Budget Waste. Mr Calleija knew or ought reasonably to have known that Budget Waste was committing an offence against s 97 by not providing a survey of the kind required by direction 2 of the prevention notice. Mr Calleija failed to take all reasonable steps to prevent Budget Waste from failing to comply with direction 2(d) of the prevention notice.

The third offence

Mr Calleija did not prevent the receival of waste at the premises after he became aware of the supplementary prevention notice given on 25 November 2022 and until 23 December 2022.
During the period from 26 November 2022 until 23 December 2022, the s 191 POEO Act responses record that Budget Waste received 873 loads of waste. In total, over 2,319t of waste was delivered to the premises during the charge 3 period.
The monthly WARRP reports submitted by Budget Waste record that Budget Waste received a total of up to 5,552.26t of waste during the charge 3 period. That amount was calculated by adding the waste received in November 2022 (3,627.78t) and the waste received in December 2022 (1,924.48t) from the WARRP monthly table extracted in the table above at [50].^[1]

Environmental harm

1. Whilst this was an agreed fact having regard to the monthly WARRP data set out in [47] above, that data is a monthly summary, and does not record the actual waste received during the charge 3 period.

The defendants’ conduct increased the volume of waste at the premises which led to a larger footprint of waste at the premises.

Criminal history

Budget Waste has no known prior convictions for environmental offences.
On 8 February 2024, Mr Calleija was convicted in the Local Court of one offence against s 211(3A) of the POEO Act of wilfully obstructing an EPA authorised officer on 12 July 2022, and fined $6,000. As at the date of this judgment, the decision of the Local Court is the subject of appeal to this Court. Mr Calleija has no other known convictions for environmental offences.

Relevant legislative provisions and legislative history

Section 3 of the POEO Act sets out 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,
…

(e) to rationalise, simplify and strengthen the regulatory framework for environment protection,
(f) to improve the efficiency of administration of the environment protection legislation,
…

Section 6(1) of the POEO Act provides that the EPA is the appropriate regulatory authority for the purposes of the Act (except as provided by this section).
Section 95 of the POEO Act provides as follows in relation to the meaning of “environmentally unsatisfactory manner”:

95   Meaning of environmentally unsatisfactory manner
For the purposes of this Part an activity is carried on in an environmentally unsatisfactory manner if—
(a)  it is carried on in contravention of, or in a manner that is likely to lead to a contravention of, this Act, the regulations or a condition attached to an environment protection licence (including a condition of a surrender of a licence) or an exemption given under this Act or the regulations, or
(b)  it causes, or is likely to cause, a pollution incident, or
(c)  it is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution, the emission of any noise or the generation of waste, or
(d)  it is not carried on in accordance with good environmental practice.

Section 96 of the POEO Act provides as follows in relation to prevention notices:

96 Preventive action
(1) Application of section This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises).
(2) Prevention notices The appropriate regulatory authority may, by notice in writing, do either or both of the following—
(a) direct the occupier of the premises,
(b) direct the person carrying on the activity (whether or not at premises),

to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner.
(3) Examples The action to be taken may (without limitation) include any of the following—
…
(d) ceasing to carry on or not commencing to carry on an activity,
…
(h) action with respect to the transportation, collection, reception, re-use, recovery, recycling, processing, storage or disposal of any waste or other substance,
…
(j) reviewing the carrying out of an activity.
…

…
(5) Reports A prevention notice may require the person to whom the notice is given to furnish reports to the appropriate regulatory authority regarding progress on carrying out the action required to be taken by the notice.

Section 96A of the POEO Act commenced on 24 March 2022^[2] and enables an appropriate regulatory authority to issue a prevention notice to current and former directors of a corporation and related bodies corporate, if a prevention notice has been given to a corporation and the corporation has failed to comply with the notice. Section 96A of the POEO Act provides as follows:
2. Environment Legislation Amendment Act 2022 No 3 (NSW) Sch 5.

96A Prevention notices may be given to directors and related bodies corporate
(1) This section applies if —
(a) the appropriate regulatory authority has given a prevention notice under section 96 (the previous prevention notice) to a corporation in relation to an activity, and
(b) the corporation has not complied with the previous prevention notice within the period specified in the notice.

(2) The appropriate regulatory authority may, by written notice (the supplementary prevention notice), direct 1 or more of the following to take the action specified in the notice within the period, if any, specified in the notice to ensure that the activity is carried on in future in an environmentally satisfactory manner—
(a) a current director of the corporation,
(b) a former director of the corporation,
(c) a related body corporate.

…

Section 97, the offence provision for the first and third offences, provided as follows:

97 Offence
A person who does not comply with a prevention notice given to the person is guilty of an offence.
Maximum penalty—
(a) in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b) in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

Note—
An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.

Section 99(1) of the POEO Act provides in relation to the commencement of operation of prevention notices or of variations of a prevention notice that the notice or variation “operates from the day the notice or notice of the variation is given or from such later day as the notice specifies”.
Section 169A, the offence provision for the second offence, provides as follows in relation to executive liability offences:

169A Liability of directors etc for offences by corporation—offences attracting executive liability generally
(1) For the purposes of this section, an executive liability offence is an offence against any of the following provisions of this Act that is committed by a corporation—
…
(e) section 97,
…

(2) A person commits an offence against this section if—
(a) a corporation commits an executive liability offence, and
(b) the person is—
(i) a director of the corporation, or
(ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and

(c) the person—
(i) knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and
(ii) fails to take all reasonable steps to prevent or stop the commission of that offence.

Maximum penalty—The maximum penalty for the executive liability offence if committed by an individual.

…
(7) In this section—
director has the same meaning it has in the Corporations Act 2001 of the Commonwealth.
reasonable steps, in relation to the commission of an executive liability offence, includes, but is not limited to, such action (if any) of the following kinds as is reasonable in all the circumstances—
(a)  action towards—
(i)  assessing the corporation’s compliance with the provision creating the executive liability offence, and
(ii)  ensuring that the corporation arranged regular professional assessments of its compliance with the provision,

(b)  action towards ensuring that the corporation’s employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,
(c)  action towards ensuring that—
(i)  the plant, equipment and other resources, and
(ii)  the structures, work systems and other processes,

relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d) action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

Section 215 (as in force at the relevant time) provided, relevantly, as follows in relation to proceedings for an offence arising under the POEO Act:^[3]
3. The penalty recorded in s 215(2) has been doubled to 2,000 penalty units.

215 Proceedings for other offences
(1) Proceedings for an offence arising under this Act or the regulations (other than under Part 5.2) may be dealt with—
(a) summarily before the Local Court, or
(b) summarily before the Land and Environment Court in its summary jurisdiction.

(2) If any such proceedings are brought in the Local Court, the maximum monetary penalty that the Court may impose for the offence is 1,000 penalty units, despite any other provision of this Act.

Section 241 of the POEO Act provides in relation to matters to be considered in imposing a penalty:

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 242 of the POEO Act provides in relation to continuing offences:

242 Continuing offences
(1) A person who is guilty of an offence because the person contravenes a requirement made by or under this Act or the regulations (whether the requirement is imposed by a notice or otherwise) to do or cease to do something (whether or not within a specified period or before a particular time)—
(a) continues, until the requirement is complied with and despite the fact that any specified period has expired or time has passed, to be liable to comply with the requirement, and
(b) is guilty of a continuing offence for each day the contravention continues.

(2) This section does not apply to an offence if the relevant provision of this Act or the regulations does not provide for a penalty for a continuing offence.
…

Section 248 of the POEO Act provides as follows in relation to orders regarding costs and expenses reasonably incurred during the investigation of the offence:

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

during the investigation of the offence.

Section 319A provides in relation to the continuing effect of notices given and conditions imposed under the POEO Act (or the regulations):

319A Continuing effect of notices and conditions
(1) A notice given, or a condition of a licence imposed, under this Act or the regulations that specifies a time by which, or period within which, the notice or condition must be complied with continues to have effect until the notice or condition is complied with even though the time has passed or the period has expired.
(2) A notice that does not specify a time by which, or period within which, the notice must be complied with continues to have effect until the notice is complied with.
(3) This section does not apply to the extent that any requirement under a notice or a condition of a licence is revoked.
(4) Nothing in this section affects the powers of a regulatory authority with respect to the enforcement of a notice or a condition of a licence.

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 for consideration in sentencing. The following subsections (as relevant) are extracted 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—
…
(m) the offence involved multiple victims or a series of criminal acts,
…
(o) the offence was committed for financial gain,
…

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—
…
(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;
…
(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 as follows in relation to the taking into account of a guilty plea in passing sentence:

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:

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 as follows in relation to the payment of a share of the 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.^[4] It does not admit the non-essential ingredients an offence.^[5] 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^[6] at [30], the High Court said as follows in relation to fact finding following a plea of guilty:

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.
4. 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); cited in Environment Protection Authority v Mouawad (also known as Isaac) (No 4) [2023] NSWLEC 76 at (Mouawad (No 4)) at [18] (Pritchard J).
5. R v O’Neill [1979] 2 NSWLR 582 at 588 (Moffitt ACJ); cited in Mouawad (No 4) at [18] (Pritchard J).
6. (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) cited in Mouawad (No 4) at [18] (Pritchard 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 offenders unless those facts have been established beyond reasonable doubt.^[7]
7. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]-[28] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); 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: Environment Protection Authority v Sydney Water Corporation^[8] at [131] (Pepper J).

Objections to the prosecutor’s evidence

8. [2019] NSWLEC 100 at [131] (Pepper J).

At 9:23am on the first day of the hearing on sentence, the defendants emailed the Court voluminous submissions on objections to the evidence sought to be relied on by the prosecutor. On the second day of the hearing, the prosecutor emailed the Court submissions in relation to the defendants’ evidentiary objections. Given the lateness of notice of the extensive evidentiary objections, I informed the parties that I would consider them as part of the Court’s decision on sentence.
The defendants’ evidentiary objections were in three categories:

objections to the observations made and photographs taken during inspections conducted by the EPA throughout the “offence period” in circumstances where the observations and photographs were submitted not to be relevant to any fact in issue and to be prejudicial to the defendants (the relevance objections);

objections to evidence of “[e]ach instance that waste was received” at the premises which, the prosecutor submitted, was “a separate criminal act” (the latent duplicity objections). The offences were particularised in the summonses as a single continuing offence, and the defendants entered pleas of guilty on that basis. The prosecutor’s approach to the evidence on sentence was submitted to be unfair to the defendants and to disclose a latent duplicity in the prosecution evidence; and

objections to the evidence of the prosecutor purporting to establish environmental harm. The prosecutor’s expert Mr Burton, senior advisor – waste assessment at the EPA, was submitted to lack the requisite specialised knowledge, to lack impartiality, not to have complied with r 2 of the Expert Witness Code of Conduct (the Expert Witness Code of Conduct) contained in Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), and to have failed to justify his opinions (the evidence of harm objections).

At the outset, before proceeding to consider the defendants’ evidentiary objections, it is significant to note that if a proceeding in a NSW court relates to sentencing, s 4(2) of the Evidence Act 1995 (NSW) (Evidence Act) provides that:

(a) this Act applies only if the court directs that the law of evidence applies in the proceeding, and
(b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters–the direction has effect accordingly.

In accordance with s 4(3), the court must make a direction if:

(a) a party to the proceeding applies for such a direction in relation to the proof of a fact, and
(b) in the court’s opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding.

And in accordance with s 4(4), the court must make a direction if the court considers it appropriate to make such a direction in the interests of justice.
Here, notwithstanding their extensive evidentiary objections, the defendants made no application pursuant to s 4(3) of the Evidence Act. Nor did the defendants make any submissions to the court in relation to the interests of justice.

The relevance objections

On the ground of relevance, the defendants objected to the following observations, photographs and video:

affidavit of Mr Hamish Gordon Campbell, senior technical adviser – waste assessment in technical services – chemicals, land and radiation branch, EPA, dated 22 May 2023 (Campbell affidavit), at [54], [58]-[59], [68]-[69], [72]-[73], [76] and [78];

exhibit HC-1 to the Campbell affidavit, tabs 33, 38 and 39 (6 photographs taken on 12 July 2022, 19 October 2022 and 23 November 2022);

affidavit of Ms Jessica Caroline Fleming, senior operations officer in the regulatory operations division at the EPA, dated 22 May 2023 (Fleming affidavit), at [63], [65], [68]-[69], [73]-[75], [85], [90], [108], [112], [115]-[116], [120]-[122], [125]-[129], [139], [141], [159], [160]-[161] and [165];

exhibit JF-1 to the Fleming affidavit, tabs 35, 42, 50 (24 photographs taken on 1 June 2022, 12 July 2022, 19 October 2022), and tab 64 (one video dated 23 November 2022);

supplementary affidavit of Ms Fleming dated 20 March 2024 (supplementary Fleming affidavit), at [8]; and

exhibit JF-2 to the supplementary Fleming affidavit, tabs 5, 6 and 8 (16 photographs taken on 17 February 2022, 16 April 2022, 19 May 2022, 12 July 2022, 21 August 2022, 11 September 2022, 19 October 2022 and 23 November 2022).

Defendants’ submissions

In relation to the evidence sought to be relied by the prosecutor in relation to inspections conducted by EPA officers on 1 June 2022, 10 June 2022, 12 July 2022, 19 October 2022, and 23 November 2022, each during the period of the admitted offences, the defendants submitted that the evidence sought to be relied on by the prosecutor contains numerous allegations that the defendants were operating in breach of the EPL. For example:

“I observed waste extend to the west, well beyond the hatched area which demarcates the licensed area”: Campbell affidavit at [59], similar allegations at [68], [69] and [78], and Fleming affidavit at [125]. This was submitted by the defendants to be an allegation that the defendants were operating outside condition A2.2 of the EPL which specifies the licensed area:

“I estimated the height of the majority of the stockpiled waste to be greater than 5 metres in height”: Campbell affidavit at [58], similar allegations at [78], and in Fleming affidavit at [160]. This was submitted by the defendants to be an allegation that the defendants were operating in breach of condition L2.3 of the EPL which provides that “[n]o stockpile on the premises may exceed a height of 5 metres at any time”.

“I observed ... no physical separation of waste materials into waste type and streams”: Campbell affidavit at [58], similar allegation at [69], and in Fleming affidavit at [125]. This was submitted by the defendants to be an allegation that the defendants were operating in breach of condition O5.2 of the EPL which provides that “[e]ach type of waste stored on site for recovery/recycling must be stockpiled separately”.

It is true, as the defendants submitted, that the defendants have not been charged with a breach of a licence condition. However, I am not satisfied that the evidence capable of establishing that the defendants were operating in breach of conditions of the EPL is relevantly prejudicial to them. The observations made by EPA officers during site inspections is relevant to the issue of the receipt of waste at the premises and the state of the premises during the period of offending which, in turn, is relevant to each of the three offences with which the defendants are charged.
The defendants also submitted that the evidence contained observations which were inadmissible opinion evidence, namely, Mr Campbell’s observations about “significant quantities of waste” ([58]) and “extensive” waste ([59], [73]).
If the rules of evidence apply, notwithstanding s 4(2) of the Evidence Act, I would consider the evidence to be admissible pursuant to s 78 of the Evidence Act, being evidence of an opinion expressed by a person where the opinion is based on what the person saw, heard or otherwise perceived about a matter or event and evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.
The defendants further submitted that the following evidence in relation to the inspections conducted by the EPA was otherwise about facts not in issue:

evidence that the EPA conducted inspections (Fleming affidavit at [63], [68], [73], [74], [75], [85], [90], [116], [120], [121], [126], [128], and [161]); the SOAF at [27], [28], [33], [36] and [42]);

observations about waste being received (Campbell affidavit at [54], [72]), there being no dispute that the defendants continued to receive waste during the period of offending;

observations about the volume of waste (Campbell affidavit at [76], [78]; Fleming affidavit at [63], [73], [65], [112], [141], [160], [161], and [165]), the amount of waste received being the subject of agreed facts (the SOAF at [48]);

observations about the composition of waste (Campbell affidavit at [78]; Fleming affidavit at [108], [115], [127] and [129]), the composition of the waste received is the subject of agreed facts: the SOAF at [13]-[14]; and

evidence of the purpose of observations being to assess compliance with the prevention notice (Campbell affidavit at [53]; Fleming affidavit at [69] and [139]), the breaches of the prevention notice and the supplementary prevention notice having being admitted by the defendants.

Defendants’ submissions in relation to all offences

The defendants accepted that general deterrence should be reflected in the penalties. However, in light of the waste stored continuing to be reduced and remaining under the limit, there was no demonstrated need for specific deterrence. The defendants continued to self-report the volumes of waste received. The evidence of Mr Calleija, the owner of the premises, was that he “never intended to leave the [p]remises in an environmentally unsatisfactory way and nor would he do so”.

Conclusions in relation to specific and general deterrence

As accepted by the defendants, general deterrence will be reflected in the penalties. I will also reflect in the penalties I impose the deliberate nature of the offending over a significant period; that is, in relation to the first offence, a period of 212 days (from about 25 May 2022 continuing until about 23 December 2022), in relation to the second offence a period of 237 days (from about 1 June 2022 continuing to about 24 January 2023), and in relation to the third offence a period of 28 days (from about 25 November 2022 continuing until about 23 December 2022).
In relation to specific deterrence, I attach no weight to Mr Calleija’s evidence that he “never intended to leave the [p]remises in an environmentally unsatisfactory way and nor would he do so”.

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.^[67] In seeking consistency, judges must have regard to previous cases and “[n]ot just to what has been done in other cases but why it was done”.^[68] What has been done in other cases may establish a range of sentences which have been imposed.^[69] However, that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion.^[70] The history stands as a yardstick against which to examine a proposed sentence.^[71] 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.
67. Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [46] (McHugh J).
68. Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [18] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
69. 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).
70. Barbaro at [41] (French CJ, Hayne, Kiefel and Bell JJ).
71. 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^[72] (Ditchfield Contracting) at [72], the more appropriate yardstick against which sentences should be compared is the penalty set by Parliament, rather than the amount of fines imposed in past cases.

Prosecutor’s submissions in relation to all offences

72. [2018] NSWLEC 90 at [72] (Preston CJ of LEC).

The prosecutor submitted that the type and nature of offending that may fall within the scope of ss 97 and 169A of the POEO Act is extremely broad. The breadth of offending limits the usefulness of comparative cases in the application of the principle of even-handedness as it is necessary to consider the entirety of the circumstances which resulted in a particular sentence being imposed in a particular case: RLS v R^[73] at [132] (Bellew J). The prosecutor submitted that there were no reasonably comparable cases from which a sentencing pattern could be derived, citing Duggan J in Transport for New South Wales v Estuary Constructions Pty Ltd; Transport for New South Wales v Sampson^[74] which concerned a number of offences, including offences against ss 97 and 169A of the POEO Act. There her Honour said:
73. [2012] NSWCCA 236 at [132] (Bellew J) (McClellan CJ of CL and Johnson J agreeing).
74. [2022] NSWLEC 23 at [126] (Duggan J).
The prosecutor submitted orally that Environment Protection Authority v Eveston (No 3)^[75] (EPA v Eveston (No 3)) and Environment Protection Authority v Nath^[76] (EPA v Nath), cases to which the defendants referred to as comparable to the present offending, concerned s 64 of the POEO Act, and not the offences before the Court, being offences against ss 97 and 169A.

Defendants’ submissions in relation to all offences

75. [2022] NSWLEC 128 (Pepper J).

76. [2024] NSWLEC 10 (Pepper J).

The defendants submitted EPA v Eveston (No 3) and EPA v Nath are comparable to the present offending.
In EPA v Eveston (No 3), the defendant pleaded guilty to two offences against s 64(1) of the POEO Act for breaches of a notice of revocation of an EPL for failing to ensure no more than 3,195m³ of waste was on the property as at 21 May 2019 (the exceedance offence), and failing to remove all waste from the property by 5pm on 21 September 2019 (the removal offence). Pepper J considered both offences to be of low objective seriousness. At [137], Pepper J fined the defendant $37,500 for the exceedance offence and $18,000 for the removal offence.
In EPA v Nath, the defendant pleaded guilty to four offences against s 64(1) of the POEO Act for breaching conditions of its EPL. The most comparable offence was that on 30 March 2022 approximately 318.9t of waste tyres were stored on the premises in circumstances where the EPL specified that the waste could not exceed 150t (the exceedance offence). At [145], Pepper J fined the defendant $30,000 for the exceedance offence.
In relation to even-handedness and consistency in sentencing, as the chief judge observed in Ditchfield Contracting at [72], the more appropriate yardstick against which sentences should be compared is the penalty set by Parliament, rather than the amount of fines imposed in past cases. It is regrettable but perhaps unavoidable that the prosecutor was unable to assist the Court by identifying any reasonably comparable cases from which a sentence pattern could be derived. The two cases upon which the defendants relied, EPA v Eveston (No 3) and EPA v Nath concerned offences against s 64 of the POEO Act, and not against ss 97 and 169A with which I am here concerned.
Nonetheless, in seeking consistency in fixing penalties, I have regard to the cases on which the defendants relied as comparable to the present offending.

Totality

The totality principle applies where a court imposes more than one non-custodial sentence, or a mixture of different non-custodial sentences, or imprisonment is imposed with an additional penalty or order: Camilleri’s Stock Feeds at 704 (Kirby P). In ACE Demolition at [111], Leeming JA (Garling and Cavanagh JJ agreeing) said that “the principled approach … is to leave questions of totality to the end, and apply a final check of the aggregate against whether it is a just and appropriate punishment for the entire criminality”.
In oral submissions, Mr McAuliffe for the prosecutor submitted that it was open to the Court to apply the totality principle. Mr McAuliffe submitted that while the totality principle does not strictly apply to the waste offences because they are separate and against different defendants, they do arise from the EPA’s continuing prohibition on the receipt of waste at the premises, and that Mr Calleija is the sole director of Budget Waste. The prosecutor referred to the decision of Pepper J in Cessnock City Council v Quintaz (Cessnock City Council) where her Honour said at [136]-[138]:

136 … It was this one incident that generated the respective Notices, the respective failures of both defendants to comply with the Notices, the respective summonses and the respective pleas of guilty. Thus in these circumstances, and where Mr McCudden is the sole director of Quintaz, the Court ought to adjust the monetary penalties in order to have regard to the close connection of the two offences (see R v Hammoud (2000) 118 A Crim R 66). Moreover, the reality is that in each case it will be Mr McCudden who suffers the penalty, and therefore, there is a need to look at the overall criminality of Mr McCudden and Quintaz and the totality principle therefore applies in a de facto sense (see Keir v Sutherland Shire Council [2004] NSWLEC 754 at [16]).
137 In Gittany the Court described the totality principle and its application as (at [196], [199] and [200]):
[196] The totality principle is a principle of sentencing which must be applied when sentencing an offender who has committed more than one offence. The court should consider questions of cumulation or concurrence as well as questions of totality. When reviewing the aggregate sentence, the Court must consider whether it is “just and appropriate” and reflects the total criminality before the court: see Mill v Queen (1988) 166 CLR 59 at 62-63; Pearce v The Queen (1988) 194 CLR 610 at [49]; R v Kalache (2000) 11 A Crim R 152 at [110], [180]; R v AEM [2002] NSWCCA 58 at [70]; and R v Bahsa (2003) 138 A Crim R 245 at [62], [63].
…
[199] In determining an appropriate aggregate sentence, the Court must consider the need to uphold public confidence in the administration of justice. If sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences: R v Wheeler [2000] NSWCCA 34 at [36]-[37].
[200] In applying the totality principle, the Court must avoid determining a sentence that is disproportionate to the seriousness of the offence: R v A at [32]. The Court must first fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality: Pearce v The Queen at [45]; R v Wheeler at [31], [32] and R v AEM [64], [67].

138 However, as stated in Rawson (at [222] and see the authorities cited thereat), “[c]are must be taken, however, to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender’s conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence”.

In relation to totality, the defendants submitted that the first and third offences arose from the same conduct, and the second offence from related conduct. Accordingly, the Court must give effect to totality. This requires the Court to review the totality of the sentence, and consider whether the penalty imposed is just and appropriate and whether it reflects the overall criminality of the offender before the Court.^[77]
77. EPA v Eveston (No 3) at [104] (Pepper J).
I accept, as submitted by the defendants, that the first and third offences arose from essentially the same conduct, and that the second offence arose from related conduct. In fixing penalties for the three offences, I have regard to the totality principle.

Capacity to pay: s 6 of the Fines Act

In exercising my discretion to fix the amount of a fine, I am required to consider such information regarding the means of the accused as is reasonably and practicably available to the court for consideration and such other matters as, in the opinion of the court, are relevant to the fixing of that amount.^[78]
78. Fines Act s 6.
The prosecutor submitted that s 6 of the Fines Act imposes an onus on the defendants to prove they are unable to pay a monetary penalty imposed by the Court. To do so, it was necessary to provide a comprehensive picture of each defendant's financial situation: Albiston at [184] (Pepper J). A defendant's capacity to pay is one factor of many for the Court to consider when imposing a sentence. In Hanna, the chief judge said at [267] in relation to capacity to pay:

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 … : Smith v The Queen at 23, 24; Darter v Diden (2006) 94 SASR 505; [2006] SASC 152 at [29]-[32]; Mahdi Jahandideh v R [2014} NSWCA 178 at [15][17]. This may particularly be the case in sentencing for offences where general deterrence is needed and where the offender is a corporation rather than a natural person …: see Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 353; Environment Protection Authority v Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147; Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94 at [16]; Bentley v BGP Properties Pty Ltd at [270]-[275].

In relation to capacity to pay, there was no evidence before me in relation to the financial position of the defendants.

The “instinctive synthesis approach” and the appropriate penalties 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.^[79] The determination of an appropriate sentence is to be undertaken bearing in mind what Preston CJ of LEC said at [162] in Bentley LEC: “[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.”
79. Markarian at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ) quoting Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [75] (Gaudron, Gummow and Hayne JJ).
In sentencing here, I must first fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as questions of totality: Pearce v The Queen^[80] at [45]; R v Wheeler^[81] at [31]-[32]; R v AEM^[82] at [64], [67]; Gittany Constructions Pty Ltd v Sutherland Shire Council^[83] at [196], [199]-[200]; Cessnock City Council v Quintaz at [136]-[138] (Pepper J).
80. (1998) 194 CLR 610; [1998] HCA 57 at [45] (McHugh, Hayne and Callinan JJ).
81. [2015] SASCFC 83 at [31]-[32] (Stanley J) (Gray and Peek JJ agreeing).
82. [2002] NSWCCA 58 at [196], [199]-[200] (Beazley JA, Wood CJ at CL and Sully J).
83. (2006) 145 LGERA 189; [2006] NSWLEC 242 at [196], [199]-[200] (Preston CJ of LEC).
The onus was on the defendants to prove, on the balance of probabilities, that they are unable to pay a monetary penalty imposed by the Court. They chose not to put on any evidence capable of providing a comprehensive picture of each defendant’s financial situation: Albiston at [184] (Pepper J).
Synthesising all the relevant objective and subjective circumstances of the offences and the offenders, in particular, the deliberate nature of the offending over significant periods of time, the absence of actual environmental harm, good character as a significant mitigating factor, the demonstration of remorse by the entry of pleas and the making of apologies and acceptance of responsibility, and considering the relevant purposes of sentencing, the maximum penalties set by Parliament, the check or yardstick provided by the two cases referred to by the defendants concerning s 64 of the POEO Act (which unlike ss 97 and 169A do not provide for continuing offences), the principle of proportionality, the absence of any evidence in relation to the defendants’ capacity to pay, I determine that it would be appropriate to fix the following sentences in relation to each of the offences, before turning to consider questions of totality:

In relation to the first offence, which continued for 212 days and which I have found to be a very serious offence, and the defendant Budget Waste to have shown flagrant disregard of the regulatory system, I find that a monetary penalty in the amount of $100,000, with a further amount of $1,000 a day for a period of 212 days would be appropriate.

In relation to the second offence, which continued for 237 days and which I have found to be a serious offence, I find that a monetary penalty in the amount of $60,000, with a further amount of $600 a day for a period of 237 days, would be appropriate.

In relation to the third offence, which continued for 28 days and which I have found to be a very serious offence, I find that a monetary penalty in the amount of $75,000, with a further $1,000 a day for a period of 28 days, would be appropriate.

This produces a total of $312,000 for the first offence, $202,200 for the second offence, and $103,000 for the third offence.
In relation to each offence, I apply a discount of 25% for the entry of a guilty plea. This produces a total of $234,000 for the first offence, a total of $151,650 for the second offence, and a total of $77,250 for the third offence.
It now arises as, a final check, to determine aggregate sentences which are just and appropriate, and reflect the totality of the criminality before the Court.
In applying the totality principle, I take into consideration that each of the offences arises from the continuing receipt of waste at the premises, that there is extensive overlap between the periods of offending in relation to the first and second offences, the second and third offences and the first and third offences, and also that Mr Calleija who is to be sentenced in relation to the second and third offences is the sole director and shareholder of Budget Waste, the defendant to be sentenced in relation to the first offence. In the application of the totality principle, I have decided to reduce the monetary penalties in relation to each of the offences as follows:

The penalty for the first offence will remain fixed at $234,000.

The penalty for the second offence will be reduced to $25,000 reflecting that Mr Calleija is the sole director and shareholder of Budget Waste, and that the period of offending exceeded that of the first offence by 25 days.

The penalty for the third offence will be reduced to $75,000 reflecting that Mr Calleija is the sole director and shareholder of Budget Waste, and that the period of offending is wholly subsumed within that of the first offence.

It follows that I will make order imposing the following monetary penalties in relation to each of the offences:

In relation to the first offence, and Budget Waste, a penalty in the amount of $234,000.

In relation to the second offence, and Mr Calleija, a penalty in the amount of $25,000.

In relation to the third offence, and Mr Calleija, a penalty in the amount of $75,000.

This produces in relation to Budget Waste, a penalty in the amount of $234,000 for the first offence, and in relation to Mr Michael Calleija, a total penalty of $100,000 for the second and third offences.

Payment of share of fine to prosecutor: s 122 of the Fines Act

The prosecutor seeks an order under s 122 of the Fines Act that half of the monetary penalty be paid to the EPA. In oral submissions, Mr McAuliffe for the prosecutor referred to Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited^[84] where the chief judge at [62] said as follows:

62. A justification for making a direction under s 122 of the Fines Act in this case is that, under the Environmental Planning and Assessment Act, the Court cannot make an order that the prosecutor be paid the costs and expenses it reasonably incurred during the investigation of the offence, unlike under s 248(1) of the Protection of the Environment Operations Act 1997. An order that the offender pay the prosecutor's legal costs of the proceedings does not include costs and expenses incurred during the investigation of an offence and before the prosecution has been commenced. Payment of a moiety in the fine to the prosecutor may compensate the prosecutor for the costs and expenses it incurred during the investigation of the offence.
84. [2014] NSWLEC 154 (Boggabri Coal) at [62] (Preston CJ of LEC).

I will make such an order.

Publication order: s 250(1)(a) of the POEO Act

The prosecutor seeks an order that the defendants take specified action to publicise the offences in accordance with s 250(1)(a) of the POEO Act in the form proposed in Annexure A to this judgment. In Environment Protection Authority v Crown in the Right of New South Wales^[85] at [84], Duggan J set out the principles applicable to whether a publication order should be made:
85. [2019] NSWLEC 178 at [84] (Duggan J).

(1) The Court has a wide discretion as to whether to impose a publication order and the POEO Act does not identify, in terms, the circumstances in which such an order should or should not be made: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [36];
(2) Publication orders assist in serving a deterrent purpose in environmental crimes: EPA v Waste Recycling Corporation (2006) 148 LGERA 299. Such a notice informs or reminds the public that such an offence exists, and may add some “sting” to the imposition of a fine. The objectives of general and specific deterrence are thus satisfied: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [163]. A publication order operates as a message to the community that a holder of an EPL is under a heightened responsibility to ensure that their operations are conducted in accordance with the conditions of such licence: Environment Protection Authority v Biosolids Management Pty Limited [2004] NSWLEC 90;
(3) Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma: Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 at [242];
(4) Because a publication order is made in addition to, rather than instead of, any penalty, it ought not be considered in determining the quantum of any monetary penalty to be imposed (Environment Protection Authority v Incitec Ltd; (2003) 131 LGERA 176 at [58]-[59]);
(5) If an order under s 250(1)(e) is imposed a publication order ought be made because it is important to publicise to the community at the time such an order is made that any works being undertaken are as a result of committing an offence: Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732 at [141];
(6) Existing adverse publicity in the media or an intention to self-publicise a conviction will not necessarily preclude the making of a publication order: Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160 at [104];
(7) The circumstances of the case may dictate that the interests of justice and the purpose of the publication will not be served if publication is ordered such as: where the offence is a first offence and the harm and objective seriousness of the offence is low; where publication of the offence is likely to confuse or mislead the reader in light of the substance earlier Court ordered publication: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [41]; Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd [2007] NSWLEC 466 at [169];
(8) Such an order is no less appropriate because the offences have been found to be of a low level of objective seriousness: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [164].

That statement of principles by Duggan J was applied by Pepper J in Georges River Council v SAF Developments Pty Ltd^[86] at [143].
86. [2023] NSWLEC 50 at [143] (Pepper J).
I find that in the present case the important objectives of general and specific deterrence would be served by the proposed publication orders in relation to both defendants. I will make such an order.

Investigation costs: s 248 of the POEO Act

The prosecutor also seeks an order under s 248 of the POEO Act for the reimbursement of costs incurred during the investigation of the offences in the amount of $3,100.00 for the aerial volumetric surveys of the premises carried out by Australian Aerial Imagery on 12 July 2022 and 19 October 2023. In considering the appropriate penalty, it is “legitimate to take into account any associated costs order”.^[87] In oral submissions, the prosecutor submitted that the amount of $3,100.00 does not include the significant time spent in investigating the offences.^[88]
87. Harris v Harrison at [100] (Simpson J) (Hall and Schmidt JJ agreeing).
88. Boggabri Coal at [62] (Preston CJ of LEC).
I will make an order under s 248 of the POEO Act that the defendants pay the prosecutor the amount of $3,100.00 incurred in the investigation of the offences.

Professional costs

The prosecutor also seeks an order for its professional costs as agreed or assessed under ss 257B and 257G of the Criminal Procedure Act.
In oral submissions, Mr Galasso for the defendants said that he was advised that the prosecutor’s estimate of the quantum of its costs excluding the investigation costs of $3,100 was “$130,000”. Mr Galasso submitted that if the Court was looking to matters that “tended to reduce rather than increase [penalty], it would undoubtedly be in the first category”.
I will make an order for the prosecutor’s professional costs as agreed or as may be determined under s 257G of the Criminal Procedure Act.

Orders

The Court makes the following orders:

In proceedings 164057 of 2023:

The defendant, Budget Waste Recycling Pty Limited, is convicted of the continuing offence against section 97 of the Protection of the Environment Operations Act 1997 (NSW) as charged.
Budget Waste Recycling Pty Limited is to pay a fine in the amount of $234,000.

In proceedings 164049 of 2023:

The defendant, Mr Michael Calleija, is convicted of the continuing offence against section 169A of the Protection of the Environment Operations Act 1997 (NSW) as charged.
Mr Michael Calleija is to pay a fine in the amount of $25,000.

In proceedings 324738 of 2023:

The defendant, Mr Michael Calleija, is convicted of the continuing offence against section 97 of the Protection of the Environment Operations Act 1997 (NSW) as charged.
Mr Michael Calleija is to pay a fine in the amount of $75,000.

In proceedings 164049 of 2023, 164057 of 2023 and 324738 of 2023:

Pursuant to s 122 of the Fines Act 1996 (NSW), a moiety of 50 percent of any fine determined by the Court be paid to the prosecutor.
Pursuant to s 248 of the Protection of the Environment Operations Act 1997 (NSW), the defendants to pay $3,100.00 to the Environment Protection Authority for its costs and expenses reasonably incurred during its investigation of the offences.
Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendants to pay the legal costs of the Environment Protection Authority as agreed or as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
Pursuant to s 250(1)(b) of the Protection of the Environment Operations Act 1997 (NSW), the defendants, at their expense:

within 60 days of the date of these orders, cause a notice at a minimum size of 139mm x 129mm to be published within the first 12 pages of the Sydney Morning Herald with the text of such notice and the Budget Waste Recycling Pty Limited (ACN 112 980 293) logo (of reasonable size) as set out in Annexure A to these orders; and

within 60 days of the date of these orders, cause a notice at a minimum size of a quarter of a page to be published within the first 12 pages of Inside Waste with the text of such notice and the Budget Waste Recycling Pty Limited (ACN 112 980 293) logo (of reasonable size) as set out in Annexure A to these orders.

Within seven days of the date of publication of the notices referred to in order 10, the defendants to provide the prosecutor with a complete copy of the notices published pursuant to that order.

**********

Annexure A

Annexure B

Endnotes

Decision last updated: 13 November 2024

Medium Neutral Citation:	Environment Protection Authority v Calleija; Environment Protection Authority v Budget Waste Recycling Pty Ltd [2024] NSWLEC 119
Hearing dates:	16 and 17 April 2024, further submissions 19 and 22 April 2024
Date of orders:	13 November 2024
Decision date:	13 November 2024
Jurisdiction:	Class 5
Before:	Pritchard J
Decision:	The Court makes the following orders: In proceedings 164057 of 2023: (1) The defendant, Budget Waste Recycling Pty Limited, is convicted of the continuing offence against section 97 of the Protection of the Environment Operations Act 1997 (NSW) as charged. (2) Budget Waste Recycling Pty Limited is to pay a fine in the amount of $234,000. In proceedings 164049 of 2023: (3) The defendant, Mr Michael Calleija, is convicted of the continuing offence against section 169A of the Protection of the Environment Operations Act 1997 (NSW) as charged. (4) Mr Michael Calleija is to pay a fine in the amount of $25,000. In proceedings 324738 of 2023: (5) The defendant, Mr Michael Calleija, is convicted of the continuing offence against section 97 of the Protection of the Environment Operations Act 1997 (NSW) as charged. (6) Mr Michael Calleija is to pay a fine in the amount of $75,000. In proceedings 164049 of 2023, 164057 of 2023, and 324738 of 2023: (7) Pursuant to s 122 of the Fines Act 1996 (NSW), a moiety of 50 percent of any fine determined by the Court be paid to the prosecutor. (8) Pursuant to s 248 of the Protection of the Environment Operations Act 1997 (NSW), the defendants to pay $3,100.00 to the Environment Protection Authority for its costs and expenses reasonably incurred during its investigation of the offences. (9) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendants to pay the legal costs of the Environment Protection Authority as agreed or as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW). (10) Pursuant to s 250(1)(b) of the Protection of the Environment Operations Act 1997 (NSW), the defendants, at their expense: (a) within 60 days of the date of these orders, cause a notice at a minimum size of 139mm x 129mm to be published within the first 12 pages of the Sydney Morning Herald with the text of such notice and the Budget Waste Recycling Pty Limited (ACN 112 980 293) logo (of reasonable size) as set out in Annexure A to these orders; and (b) within 60 days of the date of these orders, cause a notice at a minimum size of a quarter of a page to be published within the first 12 pages of Inside Waste with the text of such notice and the Budget Waste Recycling Pty Limited (ACN 112 980 293) logo (of reasonable size) as set out in Annexure A to these orders. (11) Within seven days of the date of publication of the notices referred to in order 10, the defendants to provide the prosecutor with a complete copy of the notices published pursuant to that order.
Catchwords:	EVIDENCE — relevance — probative value — danger of unfair prejudice — Latent duplicity objections — objections to purported expert report — compliance with the Expert Witness Code of Conduct — whether there is lack of impartiality SENTENCING — environmental offences — s 97 of the Protection of the Environment Operations Act 1997 (NSW) — guilty plea — failure to comply with a prevention notice — waste — real risk of environmental harm — objectively very serious — good character — remorse — publication order — moiety SENTENCING — environmental offences — s 169A of the Protection of the Environment Operations Act 1997 (NSW) — executive liability offence — guilty plea — objectively serious — good character — remorse — publication order — moiety — totality SENTENCING — environmental offences — s 97 of the Protection of the Environment Operations Act 1997 (NSW) — real risk of environmental harm —objectively very serious — good character — remorse — publication order — moiety — totality
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22, 23 Criminal Procedure Act 1986 (NSW) ss 257B, 257G Environment Legislation Amendment Act 2022 No 3 (NSW) Sch 5 Evidence Act 1995 (NSW) ss 4, 55, 56, 78 Fines Act 1996 (NSW) s 6, 122 Protection of the Environment Operations Act 1997 (NSW) (as in force between 25 May 2022 and 24 January 2023) ss 3, 6, 55, 88, 95, 96, 96A, 97, 99, 169A, 191, 211, 215, 241, 242, 248, 250, 289, 319A, Dictionary Protection of the Environment Operations Act 1997 (NSW) s 215 Protection of the Environment Operations (Waste) Regulation 2014 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Sch 7
Cases Cited:	ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 B v R (2008) 76 NSWLR 533; (2008) 208 A Crim R 441; [2008] NSWCCA 85 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 (2005) 139 LGERA 449; [2005] NSWCCA 157 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21 Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden (2010) 172 LGERA 52; [2010] NSWLEC 3 Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 Environment Protection Authority v Albiston [2020] NSWLEC 80 Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280 Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 Environment Protection Authority v Carbon MF Pty Ltd; Environment Protection Authority v Fair [2023] NSWLEC 120 Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 Environment Protection Authority v Crush and Haul Pty Ltd; Environment Protection Authority v Cauchi [2022] NSWLEC 113 Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 Environment Protection Authority v Eveston (No 3) [2022] NSWLEC 128 Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70 Environment Protection Authority v Hughes [2019] NSWLEC 108 Environment Protection Authority v Hughes [2024] NSWLEC 91 Environment Protection Authority v Laison [2015] NSWLEC 89 Environment Protection Authority v Nath [2024] NSWLEC 10 Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 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 Sydney Water Corporation [2023] NSWLEC 68 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Environment Protection Authority v Zoya Investments Pty Ltd [2022] NSWLEC 149 Fairfield City Council v Oztech Developments Pty Ltd; Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81 Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 Georges River Council v SAF Developments Pty Ltd [2023] NSWLEC 50 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Henry Payson Pty Ltd [2023] NSWLEC 5 Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113 Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Salvestro [2023] NSWLEC 423 Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Robert Beltrame [2023] NSWLEC 18 Hardt v Environment Protection Authority (2007) 156 LGERA 337; [2007] NSWCCA 338 Harris v Harrison (2014) 86 NSWLR 422; (2014) 201 LGERA 277; [2014] NSWCCA 84 Harrison v Perdikaris [2015] NSWLEC 99 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 Lake Macquarie City Council v Australian Native Landscapes Pty Ltd [2015] NSWLEC 92 Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 Lozanovski v R [2006] NSWCCA 143 Markarian v The Queen (2005) 229 CLR 357; [2005] HCA 25 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4 Pittwater Council v AI Professional Tree Recycling Pty Ltd (2008) 165 LGERA 1; [2008] NSWLEC 325 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v AEM [2002] NSWCCA 58 R v Agius; R v Abibadra; R v Jandagi; R v Zerafa (2011) 251 FLR 375; [2011] NSWSC 367 R v Bourchas (2002) 133 A Crim R 413; [2002] NSWCCA 373 R v Carroll (2008) 188 A Crim R 253; [2008] NSWCCA 218 R v McNaughton (2006) 66 NSWLR 566; (2006) 163 A Crim R 381; [2006] NSWCCA 242 R v O’Neill [1979] 2 NSWLR 582 R v Peel [1971] 1 NSWLR 247 R v Sinanovic [2000] NSWCCA 394 R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 R v Thomson (2000) 49 NSWLR 383; (2000) 115 A Crim R 104; [2000] NSWCCA 294 R v Wheeler [2015] SASCFC 83 RLS v R [2012] NSWCCA 236 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2019] NSWLEC 48 Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2022] NSWLEC 60 Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2) [2020] NSWLEC 126 Smith v The Queen [2007] NSWCCA 138 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd (2018) 362 ALR 359; [2018] NSWCCA 202 Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Transport for New South Wales v Estuary Constructions Pty Ltd; Transport for New South Wales v Sampson [2022] NSWLEC 23 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 Water NSW v Barlow (2019) 244 LGERA 1; [2019] NSWLEC 30 Williams v R (2012) 203 A Crim R 172; [2012] NSWCCA 172 Zreika v R [2012] A Crim R 460; [2012] NSWCCA 44
Category:	Sentence
Parties:	In proceedings 2023/324738 and 2023/164049: Environment Protection Authority (Prosecutor) Michael Joseph Calleija (Defendant) In proceedings 2023/164057: Environment Protection Authority (Prosecutor) Budget Waste Recycling Pty Ltd (Defendant)
Representation:	Counsel: M McAuliffe (Prosecutor) A Galasso SC and Z Shahnawaz (Defendants) Solicitors: Environment Protection Authority (Prosecutor) Pikes & Verekers Lawyers (Defendants)
File Number(s):	2023/324738; 2023/164049; 2023/164057
Publication restriction:	Nil

Month 2022	Waste received (t)	Waste removed (t)	Closing stock (t)	Net increase or decrease (t)
May	3,676.30	2,786.76	4,964.18	-
June	3,693.98	3,238.06	5,420.10	455.92 increase
July	4,016.96	2,068.48	7,368.58	1,948.48 increase
August	3,893.26	2,788.34	8,473.50	1,104.92 increase
September	2,752.04	2,046.92	8,859.26	705.12 increase
October	2,663.08	2,982.44	8,859.26	319.36 increase
November	3,627.78	5,051.54	7,435.50	1,423.76 decrease
December	1,924.48	4,670.16	4,689.2	2,745.68 decrease