Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott

[2016] NSWLEC 167

Land and Environment Court

New South Wales

Medium Neutral Citation:	Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott [2016] NSWLEC 167
Hearing dates:	15 December 2016
Date of orders:	16 December 2016
Decision date:	16 December 2016
Jurisdiction:	Class 5
Before:	Preston CJ
Decision:	Orders as set out at [138]
Catchwords:	OFFENCES AND PENALTIES – sentence – knowingly supplying false or misleading information – false bonded asbestos clearance certificates – false waste disposal documents – false asbestos clearance report – objective seriousness of offences – environmental harm not caused – harm foreseeable – offenders had complete control over causes giving rise to the offences – offences not committed without regard for public safety – offences not part of planned or organised activity – financial gain by avoiding expenses – low, low to medium, or medium overall objective seriousness of offences – subjective circumstances of offenders – early pleas of guilty – no prior convictions – offenders of good character – offenders genuinely remorseful – offenders unlikely to re-offend – offenders co-operated with regulatory authority – offenders agreed to pay prosecutor’s legal costs – general deterrence necessary – specific deterrence unnecessary – fines appropriate penalty – totality principle applied to account for accidental multiplicity of offenders – offenders convicted – offenders ordered to pay fines – offenders ordered to pay prosecutor’s legal costs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A(1), 21A(2), 21A(3), 22(1)(a), 23 Fines Act 1996 s 6 Protection of the Environment Operations Act 1997 ss 3(e), 191(1), 144AA(1), 144AA(2), 211(2), 241, Ch 7
Cases Cited:	Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Environment Protection Authority v Aargus Pty Ltd [2013] NSWLEC 19 Environment Protection Authority v Alcobell Pty Ltd [2015] NSWLEC 123 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Hargraves (No 2) (2003) 124 LGERA 57; [2003] NSWLEC 15 Environment Protection Authority v Peters (2006) 153 LGERA 238; [2006] NSWLEC 612 Environment Protection Authority v Unomedical Pty Ltd (No 4) [2011] NSWLEC 131 Fahs v The Queen [2007] NSWCCA 26 Hewitt v The Queen (2007) 180 A Crim R 306; [2007] NSWCCA 353 Keir v Sutherland Shire Council [2004] NSWLEC 754 Knight v The Queen [2010] NSWCCA 51 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Campbell [2014] NSWCCA 102 R v Delcaro (1989) 41 A Crim R 33 R v Morabito (1992) 62 A Crim R 82 R v Rahme (1989) 43 A Crim R 81 R v Reynolds [2004] NSWCCA 51 R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Wheeler [2000] NSWCCA 34 R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97 Saddler v The Queen (2009) 194 A Crim R 452; [2009] NSWCCA 83 Tiger Nominees Pty Ltd v The State Pollution and Control Commission (1992) 25 NSWLR 715 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	Environment Protection Authority (Prosecutor) Complete Asbestos Removal Pty Ltd (Defendant in proceedings 2016/00149752) Peter Darcy Endacott (Defendant in proceedings 2016/00149803, 2016/00149832 and 2016/00149863)
Representation:	Counsel: Ms S Anderson (Solicitor) (Prosecutor) Mr J Johnson (Defendants)   Solicitors: Office of Environment and Heritage, Legal Services Division (Prosecutor) Hannaford Cox Connellan & McFarland (Defendants)
File Number(s):	2016/00149752; 2016/00149803, 2016/00149832 and 2016/00149863
Publication restriction:	No

JUDGMENT

Offences of knowingly supplying false or misleading information are committed

1. Complete Asbestos Removal Pty Ltd (‘CAR’) and its sole director and secretary, Mr Peter Endacott, have supplied information that they knew to be false or misleading.

2. CAR provided records to the Environment Protection Authority (‘EPA’) in response to a notice to provide information and/or records under s 191(1) of the Protection of the Environment Operations Act 1997 (‘POEO Act’). The records were eleven documents titled “Bonded Asbestos Clearance Certificate” and purportedly bearing the signature of a Mr Stephen Parsons, and a builders licence number 176016C, that had been forged by Mr Endacott.

3. Mr Parsons was a licensed builder but he did not prepare or sign the certificates. Mr Endacott prepared the certificates and signed Mr Parsons’ name and used his builders licence number. In so doing, CAR committed an offence against s 211(2) of the POEO Act in that CAR furnished information in purported compliance with a requirement made under Ch 7 of the POEO Act (under s 191(1)), knowing that it was false and misleading in a material respect.

4. Mr Endacott prepared three other sets of documents about demolition and asbestos waste, which he supplied to another person.

5. CAR had been contracted by a company, Cobbora Holding Company Pty Ltd (‘Cobbora’), which was preparing to develop an open cut coal mine on various properties, to demolish houses on the properties and to lawfully dispose of the demolition waste. Mr Endacott forged a document on the letterhead of a hazardous materials laboratory and consultancy called Regional EnviroScience Pty Ltd, purporting to be an asbestos removal clearance report for a property known as “Harpley”, and purporting to be signed by an occupational hygienist of Regional EnviroScience, Ms Juliet Duffy. Neither Regional EnviroScience or Ms Duffy prepared or signed the report. Mr Endacott forged the report by cutting and pasting from another report that Regional EnviroScience had prepared for a different property, including by pasting Ms Duffy’s signature.

6. Mr Endacott also prepared another bonded asbestos clearance certificate in respect of the Harpley property, purporting to be signed by Mr Parsons. Mr Parsons neither prepared nor signed that certificate. The certificate was forged by Mr Endacott. Mr Endacott supplied the false asbestos removal clearance report and the false bonded asbestos clearance certificate to Cobbora.

7. CAR transported and disposed of demolition waste, including asbestos waste, from the demolition of the buildings on Cobbora’s properties at the Mudgee Waste Facility, an authorised waste facility. Mr Endacott received weighbridge documents and receipts for waste disposal on each occasion that waste was disposed of at the Mudgee Waste Facility.

8. Mr Endacott thought that he had forwarded these documents to Cobbora at the time of waste disposal. Subsequently, Cobbora requested the documents. Not being able to find either the originals, or any copies of the documents, Mr Endacott forged seven documents purporting to be weighbridge dockets issued by a different waste facility, the Whylandra Waste and Recycling Centre at Dubbo, and two documents purporting to be weighbridge dockets issued by Mudgee Waste Facility.

9. Mr Endacott estimated the waste that would have been disposed of on each occasion by reference to his original quotations for the work. All of the weighbridge documents were false. Mr Endacott supplied these false weighbridge documents to Cobbora.

10. Finally, Mr Endacott forged eight documents purporting to be bonded asbestos clearance certificates for eight Cobbora properties at which CAR had undertaken demolition work, and which purported to be signed by Mr Parsons. These were part of the records which CAR had provided to the EPA. Mr Parsons did not prepare or sign the documents. Mr Endacott prepared them and forged Mr Parsons’ signature and used his builders licence number. Mr Endacott supplied these certificates to Cobbora.

11. In supplying these false documents to Cobbora, Mr Endacott committed offences against s 144AA(2) of the POEO Act, in that he supplied information about waste to another person (Cobbora) in the course of dealing with the waste, being information that Mr Endacott knew was false or misleading in a material respect.

The defendants are charged and plead guilty to the offences

12. CAR and Mr Endacott have each been charged with committing offences, CAR with one offence against s 211(2) of the POEO Act, and Mr Endacott with three offences against s 144AA(2) of the POEO Act. CAR and Mr Endacott have pleaded guilty to the offences with which they are charged.

13. A sentence hearing was held yesterday. The Court’s task is to determine the appropriate sentences to be imposed on CAR and Mr Endacott for the offences they have committed.

An elaboration of the facts of the offences

CAR is engaged to undertake asbestos removal and demolition

14. CAR carries out demolition of buildings and asbestos removal work. Mr Peter Endacott is the sole director and secretary of CAR.

15. CAR holds a “Non-friable asbestos removal work” licence issued under the Work Health and Safety Regulation 2011 and a “Restricted demolition” licence issued by SafeWork NSW (formerly WorkCover). Mr Endacott has undertaken the courses “bonded asbestos removal” and “bonded asbestos supervisor” at TAFE NSW Western Institute, Orange Campus.

16. CAR was engaged by Cobbora to demolish buildings on 12 properties that Cobbora owned and was developing for the purpose of an open cut coal mine southwest of Dunedoo in central western New South Wales and to lawfully dispose of the resulting waste, including asbestos waste.

17. The contract between Cobbora and CAR required CAR to:

1. transport all demolition and asbestos waste from the demolition sites to an approved waste management facility;

2. provide to Cobbora a waste management report and proof of disposal of the waste, including asbestos waste, at the completion of works; and

3. provide to Cobbora a visual clearance report from a suitably competent person at the completion of the asbestos removal work to certify that all visible asbestos had been removed from each property.

18. Cobbora also instructed CAR to transport recyclable material from the demolition sites to another property owned by Cobbora at Dunedoo, referred to as the Laydown Area.

19. In practice, the demolition work undertaken by CAR proceeded in two stages. The first stage involved the removal of visible asbestos from the buildings to be demolished. For all houses except the two houses on the Harpley property, this was in the form of bonded asbestos sheeting used in the interior or exterior walls, the ceilings or the rooves of the houses. CAR’s procedure for demolishing a house containing bonded asbestos involved CAR:

1. removing any furniture and other items from the house;

2. lining the house with plastic sheets taped together in one piece;

3. removing wetted down asbestos from the outside and inside of the house;

4. removing any nails that were used through the asbestos sheets;

5. vacuuming with a SafeWork NSW approved vacuum cleaner to remove any remaining pieces of asbestos from the timber beams;

6. spraying the timbers with a sealant;

7. vacuuming and sealing the floors; and

8. placing the asbestos into sealed “Hazibags” (specially designed bags for transporting asbestos waste) and transporting it to Mudgee Waste Facility.

20. For the properties that contained bonded asbestos and no friable asbestos, once the asbestos had been removed, CAR was required to ensure that an independent competent person carried out a visual clearance inspection to verify that the area was safe for use and did not pose a risk to health and safety from exposure to asbestos. That competent person should then have issued a clearance certificate to certify that the area was free from visible asbestos, before workers re-entered the premises for the purposes of demolition continuing.

21. Mr Stephen Parsons, who worked for CAR on the removal of asbestos and demolition of houses on many of the properties, was a licenced builder and a competent person to issue clearance certificates.

22. At the conclusion of the asbestos removal work, a bonded asbestos clearance certificate was to be issued certifying, amongst other things, that all asbestos had been removed and that the asbestos removal work area and the surrounding area was free from any visible asbestos.

23. After issuance of the clearance certificate, stage two of the demolition work could proceed. The recyclable demolition waste from this stage, provided it did not contain asbestos, was transported to and disposed of at the Laydown Area.

24. Between 29 October 2012 and 28 October 2013 and between 28 July 2014 and 2 September 2014, CAR demolished buildings on the properties and transported the demolition and asbestos waste to the Mudgee Waste Facility and the other demolition waste (which was meant to be recyclable) to the Laydown Area.

25. The asbestos removal and demolition work was undertaken in the manner I have summarised. At each of the demolition sites, except for the two houses on the Harpley property, at the end of the first stage, Mr Endacott advised his employees that a clearance certificate had been obtained and so it was safe for the employees to proceed with demolishing the remainder of the house. This was false in that Mr Endacott knew that no clearance certificate had been issued or signed by an independent competent person. However, the CAR employees, Mr Clarke and/or Mr Parsons, had checked the site and considered that it was clear of asbestos before demolition started (which involved the second stage).

26. CAR transported asbestos waste from these properties to the Mudgee waste facility. When CAR’s employees or contractors deposited waste at the Mudgee Waste Facility, they were provided with weighbridge dockets which they gave to Mr Endacott. CAR was required under the contract to provide these dockets to Cobbora to show the volume of waste deposited at the facility and the tipping fees.

27. CAR transported the remaining demolition waste from the properties to the Laydown Area.

The supply of false bonded asbestos clearance certificates for numerous properties

28. Cobbora requested CAR to supply various documents that CAR was required to provide under the contract, including the clearance certificates for the houses on which CAR had undertaken asbestos removal work.

29. On 16 October 2014, Mr Endacott provided, under cover of an email to Mr O’Brien, with a copy to Mr White, both of Cobbora, eight documents each titled “Bonded Asbestos Clearance Certificate” in respect of the properties known as “Glenroy”, “Ellery”, “Mount Dapper”, “Sonoma”, “No 1 Suzanne Road”, “No 2 Suzanne Road”, “No 21 Suzanne Road” and “No 42 Suzanne Road.” The certificates purported to be signed by Mr Parsons and gave his builders licence number. Each certificate provided details of the asbestos removal work performed at that property, including the date the removal work was performed, the site address where removal work was carried out and the details of the specific asbestos removal work area (such as “interior and exterior walls of house”). The certificates stated the date and time of the clearance inspection. This was usually between one and ten days after the last date the removal work was stated to have been performed. The certificate then set out the clearance declaration that:

I declare that:

●   The asbestos removal work area and the surrounding area is free from any visible asbestos.

●   The transit route and waste routes are free from any visible asbestos.

●   All asbestos in the scope of the removal work has been removed and any known asbestos is intact.

30. Underneath the clearance declaration was a space for the “signature of licensed assessor/competent person”. This is where Mr Endacott signed Mr Parson’s name. Beneath the signature was a space for the “name of assessor/competent person”. Mr Endacott typed in the name of “Stephen Parsons” in this space. To the right of the signature was a space for “assessor licence number (if applicable)”. Mr Endacott typed in Mr Parson’s “Builders Lic 176016C” in this space.

31. All of these certificates were false in that Mr Parsons did not prepare the certificate, make the clearance declarations in them or sign them. In particular, the bonded asbestos clearance certificates were false in that they:

1. contained a signature written by Mr Endacott, purporting to be that of Mr Parsons;

2. were not issued by Mr Parsons;

3. state a time and date of a clearance inspection by Mr Parsons which Mr Parsons did not undertake; and

4. contain a declaration purportedly from Mr Parsons, that Mr Parsons did not make, that the asbestos removal work area and surrounding area is free from visible asbestos, that the transit route and waste routes are free of visible asbestos, and that all asbestos within the scope of the removal work was removed and any known asbestos was intact.

The supply of the false asbestos removal clearance report and the bonded asbestos clearance certificate for the Harpley property

32. The work undertaken at the Harpley property was different to the work undertaken at the other properties owned by Cobbora. Early in July 2013, Mr Endacott and Mr White from Cobbora visited the Harpley property and discovered that the two houses on the property had been demolished and vandalised (referred to as the R Harpley house and the M Harpley house). A fire had been lit at the R Harley house and parts of the destroyed house had been used in the fire. Small pieces of asbestos were located next to the fire. The scope of the works, therefore, changed from “demolition and asbestos removal” to “asbestos removal and remediation work and general rubbish clean up with only some minor demolition required”, according to Mr Endacott.

33. Mr White of Cobbora and Mr Endacott disagreed as to whether the asbestos present at the fire site was friable asbestos, Mr White insisting that it was and Mr Endacott of the view that it was not friable asbestos. If it was friable asbestos, it needed to be handled and removed differently to non-friable asbestos. Friable asbestos can only be removed by a person with a Class A licence. CAR only held a Class B licence for “non-friable asbestos removal work”. Hence, if the asbestos at the Harpley houses was friable asbestos, CAR would have needed to engage a person with a Class A licence permitting the removal of friable asbestos. Once friable asbestos is removed, an independent licensed asbestos assessor is required to carry out a clearance inspection of the area from which asbestos has been removed. The independent licensed asbestos assessor is required to inspect the property to verify that the area is safe for use and the risk to health and safety from exposure to asbestos is removed. This inspection involves a visual inspection and air monitoring. Before the area is used or occupied, a licensed asbestos assessor must issue a clearance certificate certifying that the area is free of visible asbestos and that the air monitoring showed asbestos fibres below 0.01 fibres per millilitre of air.

34. Asbestos fibres can be released into the air when asbestos products are incorrectly handled, stored or transported. Air monitoring for airborne asbestos fibres must be undertaken during friable asbestos removal due to the very small size of asbestos fibres, which are measured in microns. Air monitoring is the only method to ensure that the asbestos removal has occurred without releasing airborne asbestos fibres.

35. Regional EnviroScience, a hazardous materials laboratory and consultancy firm, held a Class A licence and an asbestos assessor licence and could have undertaken the removal of friable asbestos, air monitoring, and the clearance inspection, and issued a clearance certificate.

36. After the inspection of the Harpley property, Dr Barton, an HSEC [Health, Safety, Environment and Community] supervisor with Cobbora, requested Mr Endacott to telephone WorkCover to seek its advice as to how to deal with the asbestos incident at the Harpley property. Dr Barton recorded that WorkCover informed Mr Endacott that:

WorkCover is satisfied with the way the site is being managed and verbally approved the way in which the site is planned to be temporarily encapsulated pending removal of the material. Complete Asbestos Removal (CAB) are planning this encapsulation asap and preferably by Saturday. The material will be covered in plastic to prevent release of airborne material. The encapsulation will take place in full safety suits according to CAB’s demolition and removal processes.

There is no immediate need for air or soil monitoring.

A suitably qualified hygienist should be engaged through CAB to write a report on the site prior to removal and in support of the application for removal.

At the time of removal, the hygienist should be engaged to monitor air quality.

The hygienist should assess the need for soil monitoring.

37. On 3 September 2013, Mr Endacott wrote to Mr White of Cobbora stating:

After visiting the above mentioned sites I wish to confirm that the scope of works for these 2 jobs has changed from demolition and asbestos removal to asbestos removal and remediation work and general rubbish clean up with only some minor demolition required. The state in which these two properties were left in when the tenants vacated has facilitated the scope of works and the pricing to be reviewed.

The property known as R Harpley also has what is regarded as “high risk asbestos” due to a fire being lit and asbestos sheeting being thrown onto the fire, this now constitutes “friable asbestos” and as such requires air monitoring for the duration of the removal of the friable asbestos. The air monitoring is a WorkCover NSW requirement and must be adhered to.

The large amount of broken bonded asbestos sheeting that is now scattered over a vast area at both properties has also added to the cost of the removal/remediation work. After giving due consideration to the new scope of works that is required for these sites and the fact that air monitoring by a third party Occupational Hygienist is required, I have reviewed the quote and I can confirm that the original price quoted to do this work has not changed and remains the same...

38. On 28 September 2013, Mr Endacott lodged with WorkCover a “Notice of intent to remove friable asbestos” in relation to the “R Harpley” property, as required by cl 466 of the Work Health and Safety Regulation 2011. That notice stated that CAR proposed, between 4 October 2013 and 1 November 2013, to remove from “R Harpley” fire damaged asbestos sheeting. That notice also asserted that licenced asbestos assessor, Juliet Duffy of Regional EnviroScience would be the licenced asbestos assessor for that job. Regional EnviroScience provides services in occupational and environmental hygiene.

39. Notwithstanding what had been agreed between Cobbora and CAR about the work to be done on the Harpley property and Mr Endacott’s representations that he would engage an occupational hygienist to undertake air monitoring and a licenced asbestos assessor for the asbestos removal process, CAR did not engage an occupational hygienist before, during or after the removal of asbestos from the Harpley property. Neither Ms Duffy nor any other licenced asbestos assessor was engaged by CAR to attend the R Harpley house during removal of asbestos or afterwards. Ms Duffy played no role in supervising CAR’s work at the R Harpley house. No air monitoring was carried out whilst CAR removed asbestos waste from the R Harpley house.

40. On 21 November 2013, Mr Endacott provided, under cover of an email to Mr White of Cobbora, a report described as an “Asbestos Removal Clearance” purporting to be by Regional EnviroScience and signed by the occupational hygienist named Juliet Duffy with respect to the Harpley property. This asbestos removal clearance report stated:

Regional EnviroScience was engaged by Complete Asbestos Removal Company Pty Ltd to undertake a visual inspection after the removal of asbestos from the above mentioned property [the Harpley property].

Utilising wet suppression techniques, and appropriate personal protective equipment and appropriate site engineering controls, the friable and bonded asbestos materials were removed under controlled conditions until no asbestos or associated visual asbestos debris was sighted in the above area.

During the removal works and at the completion of removal works, airborne asbestos monitoring was conducted, with samples taken indicating normal background levels of airborne asbestos fibres (<0.01 fibres/millilitre of air). These results confirm the safe working environment within the area. The fibres were counted in accordance with the National Occupational Health and Safety Commission’s “Asbestos: Code of Practice and Guidance Notes - Guidance Note on the Membrane Filter Method for Estimating Airborne Asbestos Dust” [NOHSC:3003 (2005)].

At the completion of the specific asbestos removal works a visual inspection of the area was undertaken. The purpose of the inspection was to confirm that the friable and bonded asbestos containing materials and associated residues had been successfully removed and remediated from the area.

The inspection was carried out at the completion of the asbestos removal on 28 October 2013. It was found that the damaged visible asbestos contamination had been satisfactorily remediated.

Accessing of the area can safely proceed.

Reported by:

Juliet Duffy MSM Syd Uni

Occupational Hygienist.

41. Also on 21 November 2013, Mr Endacott sent to Cobbora another document, described as “Bonded Asbestos Clearance Certificate”, purporting to be signed by “Steven Parsons” with respect to the M Harpley house. This Bonded Asbestos Clearance Certificate stated that the specific asbestos removal work involved removal of “broken bonded asbestos sheeting” and was undertaken between 10 September and 15 October 2013. The clearance inspection was said to have been undertaken on 18 October 2013. The clearance declaration was in the same terms as the other certificates.

42. Both of these documents were forged by Mr Endacott. Neither Regional EnviroScience nor Ms Duffy had prepared the asbestos removal clearance report for the R Harpley property. Regional EnviroScience had not been engaged by CAR to undertake the asbestos removal work or a visual inspection after the removal of asbestos. Regional EnviroScience did not do any of the asbestos removal work or airborne asbestos monitoring that was said to have been done in the asbestos removal clearance report.

43. Mr Endacott previously had received a report from Regional EnviroScience for work done on an unrelated property and he cut and pasted from this previous report and added text to create the false asbestos removal clearance report for the R Harpley property.

44. The asbestos removal clearance report provided to Cobbora on 21 November 2013 was false in that it:

1. falsely stated that Regional EnviroScience was engaged by CAR to undertake a visual inspection after removal of asbestos from the R Harpley property;

2. falsely stated that after the removal of asbestos, Regional EnviroScience saw no asbestos or associated visual asbestos debris on the R Harpley property;

3. falsely stated that during and after removal of asbestos on the R Harpley property, airborne asbestos monitoring was conducted;

4. falsely stated that on 28 October 2013, Regional EnviroScience visually inspected the area after the asbestos had been removed and found that visual asbestos contamination had been remediated; and

5. falsely purported to have been prepared and signed by Juliet Duffy.

45. Mr Parsons did not prepare the bonded asbestos clearance certificate for the M Harpley house. Mr Endacott prepared the bonded asbestos clearance certificate for the M Harpley house and inserted Mr Parsons’ name and builders licence number and forged Mr Parsons’ signature on the certificate.

46. The bonded asbestos clearance certificate purportedly signed by Mr Parsons for the M Harpley house was false in that it:

1. contained a forged signature of Mr Parsons;

2. was not issued by Mr Parsons;

3. stated a time and date of a clearance inspection by Mr Parsons which Mr Parsons did not undertake; and

4. contained a declaration purportedly from Mr Parsons, that Mr Parsons did not make, that the asbestos removal work area and surrounding area was free from visible asbestos, that the transit route and waste routes were free of visible asbestos, and that all asbestos within the scope of the removal work was removed and any known asbestos was intact.

The supply of false weighbridge dockets

47. Asbestos waste must be disposed of at an appropriately licensed waste facility. There were two such licensed facilities reasonably proximate to the demolition sites on which CAR performed work for Cobbora, the Whylandra Waste and Recycling Centre at Dubbo and the Mudgee Waste Facility.

48. CAR’s employees received weighbridge dockets from the Mudgee Waste Facility for all asbestos waste taken to that facility.

49. On 19 June 2014, Mr Endacott was requested to provide to Cobbora copies of documents relating to CAR’s work under the contract, including the weighbridge dockets.

50. Mr Endacott said that he had supplied the weighbridge dockets for waste disposed of at the Mudgee Waste Facility to a Mr Daniel Johnston of Cobbora at the time of disposal of the waste. When Mr Johnston left Cobbora, Mr O’Brien of Cobbora was not able to find the dockets and contacted Mr Endacott asking him to re-supply them. Mr Endacott said that, on 19 June 2014, he received an email from Mr O’Brien seeking information about the work CAR had carried out and especially concerning the provision of the weighbridge dockets. Mr O’Brien said to Mr Endacott:

If you want to be considered for the next round of demolition work that (sic) it would be in your best interest to supply all information that I have requested as it would help in making the final decision on the awarding of the jobs that were currently up for tender.

51. On 27 June 2014, Mr Endacott supplied, under cover of an email to Mr O’Brien of Cobbora, seven documents purporting to be weighbridge dockets for asbestos waste transported to the Whylandra Waste Disposal Depot in Dubbo and two documents purporting to be weighbridge dockets for asbestos waste transported to Mudgee Waste Facility.

52. The seven false weighbridge dockets purportedly issued by Whylandra Waste Disposal Depot, which Mr Endacott provided to Cobbora, were not issued by Whylandra Waste Disposal Depot. They were created by Mr Endacott. They were false in that they:

1. were not genuine waste dockets;

2. were not issued by Whylandra Waste Disposal Depot;

3. contained a false docket number;

4. falsely represented that particular loads of waste were disposed of at Whylandra Waste Disposal Depot at the time and date shown; and

5. falsely represented that particular sums of money were paid by CAR to Whylandra Waste Disposal Depot.

53. The two false weighbridge dockets purportedly issued by Mudgee Waste Facility that Mr Endacott provided to Cobbora were not issued by Mudgee Waste Facility. They were created by Mr Endacott. They were false in that they:

1. were not genuine waste dockets;

2. were not issued by Mudgee Waste Facility;

3. contained a false docket number;

4. falsely represented that particular loads of waste were disposed of at Mudgee Waste Facility at the times and dates shown; and

5. falsely represented that particular sums of money were paid by CAR to Mudgee Waste Facility.

54. Mr Endacott’s explanation for creating these fake weighbridge dockets was as follows:

At the time I received the email, I panicked. I believed then that the asbestos waste from the properties had gone to Dubbo tip. I searched for and could not find the paperwork from the jobs the company had done. The company had moved offices twice since 2012, and I was desperate to demonstrate that the company had done the work it had carried out for Cobbora. I became very agitated and in my mental state at the time considered that I had better provide Cobbora with something. I created the false receipts from the Dubbo tip and provided volumes of materials from the estimates that I had made when I was quoting for the work. This was completely the wrong thing to do, and I acknowledge that. If I had been thinking straight, I should have realised that the company had provided the tip dockets from Mudgee Tip to Cobbora at the time the demolition occurred. Nevertheless, I was not thinking clearly, and provided the false documents to Cobbora...

The furnishing of false information to the EPA

55. On 2 February 2015, the EPA issued a notice under s 191 of the POEO Act to CAR requiring CAR to provide records including:

In relation to each property on which the Works were carried out or to or from which Waste Materials were transported and/or stockpile for [Cobbora] [from about 1 January 2012 to 19 November 2014], provide a copy of:

(x) all records relating to the type and volumes of Waste Materials including, but not limited to, sample results, classification or validation reports, or clearance certificates...

56. The requirement placed on CAR to provide information and records under the s 191 notice constituted a requirement made under Ch 7 of the POEO Act.

57. On or about 17 April 2015, the EPA received CAR’s response to the s 191 notice. The response included 11 false bonded asbestos clearance certificates that Mr Endacott/CAR had previously provided to Cobbora, for the properties known as “Mount Dapper”, “Ellery”, “Glenroy”, “M Harpley”, “Greshams”, “Eurama Downs”, “Sonoma”, “Number 1 Suzanne Road”, “Number 2 Suzanne Road”, “Number 21 Suzanne Road” and “Number 42 Suzanne Road”. Mr Endacott on behalf of CAR had collated the information and records in the notice and response and provided it to the EPA.

58. As Mr Endacott had created each of the false documents, he knew that he was providing false and misleading information to the EPA when he furnished those documents. Mr Endacott’s state of mind is attributable to CAR as he was the sole director of CAR.

Objective seriousness of the offences

59. The sentences that are to be imposed on CAR and Mr Endacott for the offences must be proportionate to both the objective gravity or seriousness of the offences and the personal or subjective circumstances of CAR and Mr Endacott.

60. The objective circumstances of relevance to the offences committed by CAR and Mr Endacott are: the nature of the offences; the maximum penalties for the offences; the statutory considerations in s 241 of the POEO Act, including the harm to the environment, the practical measures to prevent environmental harm, the foreseeability of the environmental harm and the control over the causes of the offences; whether the offences were or were not isolated incidents; whether the offences were committed without regard for public safety; whether the offences were part of a planned or organised criminal activity; and whether the offences were committed for financial gain.

Nature of the offences

61. Both the offence under s 144AA(2) of the POEO Act and the offence under s 211(2) of the POEO Act involve knowingly supplying false or misleading information. They recognise that the supply of false or misleading information undermines regulatory objectives.

62. In the case of the offence under s 144AA(2) of the POEO Act, the regulatory objectives include ensuring the proper description of waste; handling, storage, treatment, dealing with and using waste; transporting of waste; and disposing of waste. As was said in the Second Reading Speech for the Protection of the Environment Operations Amendments Bill 2005 that introduced the original version of s 144AA, “It is critical that waste is properly described so that people know what licences to obtain, what precautions to take, what uses the waste could be lawfully put to and where the waste can be lawfully taken” (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 September 2005 at 17643).

63. The importance of s 144AA to the statutory regime for the management of waste and the statutory objectives was recognised by Craig J in Environment Protection Authority v Aargus Pty Ltd [2013] NSWLEC 19 at [54]:

The need to be scrupulous in supplying accurate information about ‘waste’ so that it is correctly categorised is necessary to ensure that pollution is prevented, and that harmful wastes can be eliminated. Moreover, the imposition of an offence for ‘false or misleading’ information about waste is a mechanism designed to ‘strengthen the regulatory framework for environmental protection’.

64. On 1 October 2013, by the Protection of the Environment Operations Amendment (Illegal Waste Disposal) Act 2013, s 144AA was amended to add the offence under s 144AA(2) of supplying information about waste to another person in the course of dealing with the waste, being information that the person supplying the information knows is false or misleading in a material respect.

65. The mens rea offence of knowingly supplying false or misleading information about waste in s 144AA(2) is a more serious offence than the strict liability offence of simply supplying false or misleading information about waste in s 144AA(1), as revealed by the two-fold greater maximum monetary penalties for both corporate and individual offenders and the penalty of imprisonment for an individual offender for the offence in s 144AA(2). These higher maximum penalties were said by the then Minister for the Environment and Minister for Heritage in the Second Reading Speech of the Protection of the Environment Operations Amendment (Legal Waste Disposal) Bill 2013, which introduced the offence under s 144AA(2), to be to “ensure that the penalties for waste levy evasion schemes are consistent with penalties in other legislation for fraudulent activities” (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 May 2013 at 21356).

66. In the case of the offence under s 211(2) of the POEO, the regulatory objectives include ensuring the integrity, efficacy and efficiency of the investigation powers and functions of the regulator, the EPA, under Ch 7 of the POEO Act (s 3(e)). The offence under s 211(2) is a mechanism to “strengthen the regulatory framework for environment protection”, one of the objects of s 3(e) of the POEO Act. Provision of false or misleading information to the regulator impedes the investigation of whether there has been compliance with or contravention of the POEO Act, the administration of the POEO Act and the protection of the environment. The seriousness with which Parliament views the offence of knowingly furnishing false or misleading information to the regulator in s 211(2) is revealed by the high maximum monetary penalties, which in the case of a corporation is double the maximum penalty for the offence under s 144AA(2) of the POEO Act.

The maximum penalties for the offences

67. The maximum penalties for the offences are relevant in determining the objective gravity of the offences. As I have noted, the maximum penalty for an offence is a public expression by Parliament of the seriousness of the offence: see Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. It also provides a sentencing yardstick for the offences before the Court: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31]. The maximum penalty for an offence is used to measure the relevant features of a particular instance of an offence against the worst case: R v Campbell [2014] NSWCCA 102 at [28].

68. The maximum penalty for the offence of knowingly supplying false or misleading information about waste under s 144AA(2) of the POEO Act is, in the case of an individual, $240,000 or imprisonment for 18 months, or both. The maximum penalty for the offence of knowingly furnishing false or misleading information under s 211(2) of the POEO Act is, 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. In this case, CAR is not charged with a continuing offence.

The harm or likely harm to the environment

69. The objective seriousness of the offence is affected by the objective harmfulness of the offender’s actions. The extent of the harm caused or likely to be caused to the environment by the commission of the offence is required to be taken into consideration: s 241(1)(a) of the POEO Act. The causing of “substantial” injury, loss or damage by commission of the offence is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act”).

70. CAR’s commission of the offence under s 211(2) of the POEO Act by furnishing copies of the false bonded asbestos clearance certificates to the EPA did not cause and was not likely to cause harm to the environment. The false certificates were furnished to the EPA on 17 April 2015, well after the certificates were created and sent to Cobbora (on 21 November 2013 for the M Harpley house and 16 October 2014 for the other properties) and after the asbestos removal and demolition of the houses had been completed.

71. The purpose of the bonded asbestos clearance certificates was to confirm that all asbestos in the scope of the removal work had been removed and that the asbestos removal work area and surrounding area were free from any visible asbestos, and that demolition could therefore safely be carried out. By the time the false certificates were furnished to the EPA, that purpose had been spent. The asbestos had been removed and demolition had taken place half a year to one and a half years before the EPA received the false certificates. There was nothing for the EPA to investigate.

72. Mr Endacott’s commission of the offence against s 144AA(2) of POEO Act by supplying the false bonded asbestos clearance certificates to Cobbora also did not cause and was not likely to cause harm to the environment. Mr Endacott supplied the false certificates on 21 November 2013 for the M Harpley house and on 16 October 2014 for the other properties. By these dates, CAR had already carried out the demolition of the houses. There was no evidence that representatives of Cobbora entered the houses after asbestos had been removed but before demolition of the houses commenced. They were not misled by the false certificates to do so.

73. CAR employees also were not misled by the false certificates. Those false certificates were provided to Cobbora not to CAR employees. It is an agreed fact that, at each of the demolition sites, Mr Endacott advised his employees that a clearance certificate had been obtained and so it was safe for the employees to proceed with demolishing the remainder of the house. This was false because Mr Endacott knew that no clearance certificate had been issued or signed by an independent competent person. However, it is also an agreed fact that the CAR employees, Mr Clarke and Mr Parsons, who supervised the asbestos removal work and would have been competent to have issued clearance certificates, although they did not in fact do so, checked each demolition site that they were working at and considered that it was clear of asbestos before demolition started. Hence, it is not established that the issuing of the false asbestos clearance certificates caused demolition work to be commenced before the houses were free of visible asbestos or that workers engaging in the demolition work were exposed to visible asbestos.

74. The EPA submitted that because Mr Endacott did not obtain valid asbestos clearance certificates, there was a risk of visible asbestos remaining in the houses that were to be demolished and being in the demolition waste that was taken to the Laydown Area. In these circumstances, the EPA submitted, workers handling and depositing the demolition waste at the Laydown Area might have been at risk of exposure to any airborne asbestos fibres that were present in and released from the demolition waste.

75. Such a risk has not been established on the evidence. As I have noted, an agreed fact is that the supervising CAR employees checked each demolition site after asbestos removal work had been undertaken and considered that it was clear of asbestos before demolition work started. These supervising employees then undertook and supervised the undertaking of the demolition work. There is no evidence, and it is improbable, that they would have undertaken the demolition work if there was any visible asbestos remaining in the houses to be demolished. In these circumstances, it is not established that there was any visible asbestos remaining on the housing materials that were transported to the Laydown Area.

76. Mr Endacott’s commission of the offence under s 144AA(2) of the POEO Act by supplying false weighbridge dockets to Cobbora did not cause and was not likely to cause harm to the environment. The false weighbridge dockets were created by Mr Endacott to replace the original weighbridge dockets that had been issued when waste had been transported to the Mudgee Waste Facility. There was no harm or likelihood of harm to the environment caused by Mr Endacott creating these false weighbridge dockets.

77. Finally, Mr Endacott’s commission of the offence under s 144AA(2) of the POEO Act by supplying the false asbestos removal clearance report for the R Harpley house did not cause and was not likely to cause harm to the environment. The false asbestos removal report was issued after CAR had removed the broken bonded asbestos sheeting at the R Harpley house. This house had already been demolished and vandalised by the time CAR started the work. CAR removed all of the visible asbestos at the house site. The evidence does not establish that, had a valid asbestos removal clearance report been obtained instead of the false report, the house site would have been in any different condition. The supply of the false report did not cause any harm to the environment.

Practical measures to prevent harm

78. There were practical measures that could and should have been taken to prevent harm to the environment: see s 241(1)(b) of the POEO Act. Mr Endacott clearly should not have forged the various documents that he supplied to Cobbora and furnished to the EPA.

79. However, it has not been established in the particular circumstances of these offences that Mr Endacott’s failure to take this action of not forging the documents would have prevented any harm to the environment.

The foreseeability of the risk of harm

80. The extent to which an offender could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence is another relevant factor affecting the objective seriousness of the offence: s 241(1)(c) of the POEO Act.

81. In this case, it was clearly foreseeable that the provision of false documents about the asbestos at the houses to be demolished might cause harm to human health and the environment. As it happened, however, such harm to human health and the environment has not been established to have occurred. But it could have occurred. The purpose of the bonded asbestos clearance certificates and the asbestos removal clearance reports were to confirm that all visible asbestos had been removed so that it was safe for workers and the environment and for demolition work to proceed. By issuing the false clearance certificates and report, a proper clearance inspection was not undertaken and proper clearance certificates and report were not issued. This meant that there was a risk that all visible asbestos had not been removed and the houses were not safe to be demolished. The fact that this risk did not appear to eventuate does not detract from this conclusion concerning the foreseeability of the risk.

Control over the causes of the offences

82. CAR and Mr Endacott had full control over the causes that gave rise to the offence. They did the actions that constituted the offences: see s 241(1)(d) of POEO Act.

Whether or not the offences were isolated incidents

83. The EPA submitted that a factor increasing the objective seriousness of the offences is that they were not isolated incidents of knowingly supplying false or misleading information, but rather were numerous acts of knowingly providing false information over a period of time, citing R v Delcaro (1989) 41 A Crim R 33 at 38 and Environment Protection Authority v Unomedical Pty Ltd (No 4) [2011] NSWLEC 131 at [51].

84. The offences took place over a number of years; that is, on 21 November 2013, 27 June 2014 and 16 October 2014 (for the offences by Mr Endacott) and 17 April 2015 (for the offence by CAR). In addition to the provision of false information that is the subject of the charges, the EPA noted that Mr Endacott also repeatedly misled the EPA during its investigation on numerous topics and Mr Endacott misled WorkCover by stating that Regional EnviroScience was the licensed asbestos assessor for the removal of friable asbestos from the R Harpley property.

85. CAR and Mr Endacott submitted that those cases are inapplicable to the particular circumstances here. The fact that there were multiple incidents of offending is already captured by the multiple charges laid against Mr Endacott and CAR. Mr Endacott is charged with three offences corresponding with his wrongful conduct of supplying false information on three occasions throughout those years. CAR is charged with one offence for the other occasion on which false information was supplied.

86. I agree with CAR and Mr Endacott that this is not a case where the multiple wrongdoing by Mr Endacott and CAR increases the objective seriousness of each offence with which they are charged. At best, the fact that there is multiple wrongdoing means that CAR and Mr Endacott’s offences cannot be considered to be “uncharacteristic aberrations”: see Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477 and Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority at 700.

Whether offences committed without regard to public safety

87. The EPA submitted that the offences were committed without regard for public safety: s 21A(2)(i) of the Sentencing Act. The reason given was the risk to human health and the environment.

88. CAR and Mr Endacott disputed this. The evidence did not establish that, in the particular circumstances of this case, the supplying of false documents caused or was likely to cause harm to human health or to the environment. Hence, it cannot be shown that the offences were committed without regard for public safety.

89. I agree with CAR and Mr Endacott. The evidence does not establish that CAR and Mr Endacott committed the offences without regard for public safety.

Whether offences part of planned or organised criminal activity

90. The EPA submitted that the offences committed by CAR and Mr Endacott were part of a planned or organised criminal activity: s 21A(2)(n) of the Sentencing Act.

91. The EPA submitted that the offences involved sufficient repetition to lead to the conclusion that they were planned and organised within the meaning of s 21A(2)(n): see, for example, NCR Australia Pty Ltd v Credit ConnectionPty Ltd [2005] NSWSC 1118 at [72]-[76]; R v Reynolds [2004] NSWCCA 51 at [37]-[41]. The offences were not committed on the spur of the moment. Rather, Mr Endacott went to the effort of creating the false clearance certificates and weighbridge dockets and supplying them to Cobbora and the EPA. He failed to obtain genuine asbestos clearance certificates over a period from October 2012 to September 2014. The large measure of premeditation makes an offence more serious than when it is committed on the spur of the moment: R  v  Morabito (1992) 62 A Crim R 82 at 86.

92. CAR and Mr Endacott disputed that there was any planned or organised criminal activity. There is no evidence that would permit a finding beyond reasonable doubt that the degree of planning in this case exceeded what would ordinarily be expected of an offence of this kind: R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97 at [39]; Saddler v The Queen (2009) 194 A Crim R 452; [2009] NSWCCA 83 at [32]-[36] and Fahs v The Queen [2007] NSWCCA 26 at [21]-[22].

93. The meaning and application of s 21A(2)(n) of the Sentencing Act was comprehensively discussed in Hewitt v The Queen (2007) 180 A Crim R 306; [2007] NSWCCA 353 at [25].

94. In Knight v The Queen [2010] NSWCCA 51, the Court of Criminal Appeal emphasised at [16] that a sentencing judge should not find that the aggravating factor in s 21A(2)(n) was present, unless there is evidence that would permit a finding beyond reasonable doubt that the degree of planning in the instant case exceeded the degree of planning which would ordinarily be expected in an offence of that kind.

95. CAR and Mr Endacott submitted that there was no evidence of any such level of planning for any of the offences:

1. With respect to the bonded asbestos clearance certificates, CAR already had the form of the documents. Mr Endacott amended and provided the forged documents to Cobbora. Those acts constituted the actus reus of the offence, not planning to carry out the offence. Similarly, with respect to the asbestos removal clearance report, the CAR already had a report provided by Regional EnviroScience with respect to another property. Mr Endacott opportunistically used that report to create the forged asbestos removal clearance report.

2. With respect to the weighbridge dockets, the evidence is that, when asked for copies of the weighbridge dockets many months after the originals had already been provided to Cobbora, Mr Endacott panicked and created ‘new’ ones because he didn’t have copies of the original. There was not a sufficient level of planning to amount to aggravation.

3. As to the furnishing of documents to the EPA, there was no planning at all. CAR simply forwarded documents that Mr Endacott had already created in the past. The breach was in failing to point out to the EPA that the documents so furnished were false or misleading in material respects.

96. I agree with CAR and Mr Endacott that it is not established on the evidence that the offences committed by CAR and Mr Endacott were part of a planned or organised criminal activity. Mr Endacott falsified the documents on each occasion to deal with the problem that he perceived he had on each occasion. There was no greater planning or organisation involved than what he did on each occasion.

Whether offences committed for financial gain

97. The EPA submitted that CAR and Mr Endacott committed the offences for financial gain: s 21A(2)(o) of the Sentencing Act.

98. CAR saved the expense of having to pay an independent competent person to issue the bonded asbestos clearance certificates and the asbestos removal clearance report. Mr Endacott admitted that it would have cost more money to obtain a genuine clearance report from Regional EnviroScience. A schedule of rates for demolition and asbestos removal provided by CAR to Cobbora stated that the cost of obtaining an asbestos clearance certificate from an independent hygienist was $560. Mr Parsons said that he would have charged Mr Endacott around $400 to $500 per bonded asbestos clearance certificate if he had provided those certificates. CAR avoided paying Regional EnviroScience, Mr Parson or any other suitably qualified person for the work required to prepare the bonded asbestos clearance certificate and the asbestos removal clearance report.

99. CAR and Mr Endacott admitted that by not engaging an independent competent person, money was saved. However, there is no evidence to support the suggestion that Mr Endacott provided the documents to avoid paying for the various certificates.

100. I find that CAR did benefit financially by the commission of the offences by CAR and Mr Endacott in that it saved having to incur the expense of paying competent persons to issue the bonded asbestos clearance certificates and asbestos removal clearance report.

101. This is particularly true for the asbestos removal clearance report. That report was necessary because the asbestos at the R Harpley house site was considered by Cobbora to contain friable asbestos. CAR was not licensed to remove friable asbestos. It would have needed to engage a firm such as Regional EnviroScience, which had a Class A licence to remove friable asbestos and an asbestos assessor licence, to undertake the asbestos removal, inspect the property afterwards and issue a clearance certificate. Engaging such a firm to undertake this work clearly would involve expense. CAR avoided incurring such expense by forging the asbestos removal clearance report by Regional EnviroScience. This was done by Mr Endacott, the sole director of CAR. Mr Endacott did not personally financially benefit from so doing. Nevertheless by his actions of not engaging a firm such as Regional EnviroScience, he saved CAR incurring the expense of paying for such work.

Conclusion on objective seriousness of the offences

102. Having regard to all of the circumstances, I find that:

1. the offence under s 211(2) of the POEO Act committed by CAR is at the lower end of objective seriousness;

2. the offence under s 144AA(2) of the POEO Act committed by Mr Endacott in supplying false weighbridge dockets is at the lower end of objective seriousness;

3. the offence under s 144AA(2) of the POEO Act committed by Mr Endacott in supplying the false bonded asbestos clearance certificates is of low to medium objective seriousness; and

4. the offence under s 144AA(2) of the POEO Act committed by Mr Endacott in supplying the false asbestos removal clearance report and false M Harpley bonded asbestos clearance certificate is of medium objective seriousness.

Subjective circumstances of offenders

103. Within the limits set by the objective seriousness of the offences, I take into account the factors personal to CAR and Mr Endacott. These include: the early pleas of guilty; no prior convictions; good character; remorse for the offences; unlikelihood of re-offending; and extent of co-operation with regulatory authorities.

Early pleas of guilty

104. CAR and Mr Endacott entered pleas of guilty at an early point in time. The first return of each summons was on 1 April 2016, but the summons and orders had only just been served on the defendants before that date and, by consent, the matters were adjourned for two weeks to 15 April 2016. On the next occasion, CAR and Mr Endacott entered pleas of guilty to each charge. This should be considered as pleas of guilty at the earliest practicable occasion and the defendants should be afforded the full discount of 25% for the utilitarian value of the pleas of guilty to the criminal justice system: s 21A(3)(k) and s 22(1)(a) of the Sentencing Act and R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [152] and [160].

No prior convictions

105. Neither CAR nor Mr Endacott have any prior convictions. This is a mitigating factor: s 21A(3)(e) of the Sentencing Act .

Good character

106. There is evidence that CAR and Mr Endacott have been, otherwise than committing the offences with which they are charged, persons of good character. This is a mitigating factor: s 21A(3)(f) of the Sentencing Act.

107. Prior good character can have both a negative and a positive aspect. The negative aspect of good character can refer to the absence of prior convictions and otherwise not having engaged in other criminal conduct. The positive aspect of good character can include a history of prior good works and contribution to the community: see Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 at [143].

108. In this case, Mr Tim O’Brien, a licensed real estate agent in Mudgee, provided a character reference for Mr Endacott. Mr Endacott said that he had advised Mr O’Brien of the nature of the particular offences with which he was charged and to which he had pleaded guilty prior to Mr O’Brien providing the reference. Mr O’Brien said that he had known Mr Endacott for over 40 years, initially by growing up and playing sport together and later through an ongoing business relationship. Mr O’Brien said that Mr Endacott is committed to fair play in sport and in business; “he is a man of his word, a person of the highest integrity and moral values in life”. Mr O’Brien commented that Mr Endacott had “given unselfishly to the Mudgee community through his involvement with Mudgee junior cricket, junior league, Mudgee senior cricket and numerous other community activities over many years”. Mr Endacott is seen as “a valuable member of the Mudgee community, a hardworking, honest family man, always with the welfare of others in mind.”

106. Mr Endacott was awarded the “NSW volunteer of the year award, Central West, adult volunteer of the year” in 2015. Mr Endacott said this was awarded primarily for his work in establishing sporting opportunities for underprivileged children and a separate cricket competition for girls in the Mudgee district.

107. The EPA submitted that the factor of prior good character is of less weight in a situation of repeated offences over a period of time, than when the offence committed is an isolated one: R v Delcaro at 38.

108. I find that Mr Endacott has been, otherwise than committing the three offences with which he has been charged, a person of good character. Mr O’Brien’s reference and the volunteer award speak of the positive aspects of his good character. The absence of prior convictions and evidence of any other criminal conduct speak of the negative aspect of his good character. I do not consider that the fact that he has been charged with three offences should diminish the weight of this mitigating factor of prior good character in sentencing for these offences on this occasion.

Remorse for the offences

112. Genuine contrition and remorse of an offender is a mitigating factor, but only if the offender has provided evidence that the offender has accepted responsibility for his or her actions and 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): s 21A(3)(i) of the Sentencing Act.

113. Mr Endacott, personally and on behalf of CAR as the sole director of CAR, expressed remorse for committing the offences. He did so in his affidavit and in his oral evidence at the sentence hearing. He accepted full responsibility for the wrongful conduct of forging the documents and supplying those false documents to Cobbora and the EPA.

114. The EPA submitted that these expressions of remorse are belated. The EPA noted that Mr Endacott had initially endeavoured to avoid responsibility by blaming others or denying that he created the false documents. Mr Endacott had made false statements about the documents when he was interviewed by the EPA on 27 May 2015. In his affidavit of 14 September 2016, Mr Endacott also appeared to lay some blame on employees, suggesting that they had done something wrong.

115. I find that Mr Endacott is now genuinely remorseful for the offences committed by him and CAR. It is true that he took some time to accept full responsibility for all of his actions. At earlier times in the process of investigation and prosecution of him and CAR, Mr Endacott may not have been genuinely remorseful because he was yet to accept full responsibility for his actions. But that full acceptance of responsibility has ultimately come. I accept his statements, given in evidence at the sentencing hearing, that what he did was wrong and that no-one else caused him to do it or was responsible for him forging the documents and supplying the false documents to Cobbora and the EPA. He apologised for his wrongful conduct. I accept that these statements in evidence are genuine.

Unlikelihood of re-offending   

116. I find that, by reason of the early pleas of guilty, the lack of prior convictions, the evidence of good character and the remorse for the offences, CAR and Mr Endacott are unlikely to reoffend: s 21A(3)(g) of the Sentencing Act.

117. Mr Endacott said that he has decided to no longer do asbestos removal work. This would mean that CAR and he would no longer need to issue or arrange for the issue of asbestos clearance certificates or asbestos removal clearance reports or other documents dealing with asbestos waste. If this occurs, this would also diminish the likelihood of re-offending in the particular way that occurred in these offences.

Co-operation with regulatory authority

118. CAR and Mr Endacott have co-operated to an extent with the EPA. At first, there was a lack of co-operation in that Mr Endacott gave false statements in the interview he had with the EPA. However, after being prosecuted, CAR and Mr Endacott became more co-operative. They pleaded guilty at an early occasion. They agreed a statement of agreed facts. They have each agreed to pay 50% of the EPA’s legal costs of the proceedings (which would amount to each paying $25,000). Assistance to law enforcement authorities is a mitigating factor: s 21A(3)(m) and s 23 of the Sentencing Act.

The appropriate sentences

119. I take into account the objective circumstances of the offences and the subjective circumstances of CAR and Mr Endacott that I have discussed above.

120. I take into account the purposes of sentencing in s 3A of the Sentencing Act. The purposes of punishment, retribution and denunciation are relevant. There is a need for the Court, through the sentences it imposes, to ensure that CAR and Mr Endacott are adequately punished for the offences, to hold them accountable for their actions, and to denounce the conduct of CAR and Mr Endacott, in proportion to the seriousness of the offences.

121. The sentences also need to act as a deterrent. The purpose of general deterrence is important to deter other persons who might be tempted to supply false or misleading information about waste to other persons or to the EPA if light punishment were to be given for these offences.

122. In the circumstances of this case, having regard to CAR’s and Mr Endacott’s early pleas of guilty, lack of prior convictions, genuine remorse for the offence and good character, and the unlikelihood of their re-offending, there is no particular need for specific deterrence of CAR or Mr Endacott.

123. In determining the appropriate penalty, the Court should be consistent with a pattern of sentencing for like offences. I have had regard to the sentences imposed by this Court in other cases, to which the parties have drawn my attention, including Environment Protection Authority v Peters (2006) 153 LGERA 238; [2006] NSWLEC 612; Environment Protection Authority v Hargraves (No 2) (2003) 124 LGERA 57; [2003] NSWLEC 15; and Environment Protection Authority v Alcobell Pty Ltd [2015] NSWLEC 123. I have considered the sentences imposed and the objective and subjective circumstances of the offences and the offenders involved that led the Court to impose those particular sentences. I note, however, that none of the sentences to which the parties have taken me involved an offence against s 144AA(2) of the POEO Act. The sentence that I consider appropriate to be imposed on CAR and Mr Endacott for the offences they have committed are not inconsistent with the sentences imposed in those other cases, which collectively provide a check or a yardstick.

124. Synthesising all of the relevant objective and subjective circumstances of the offences and the offenders, and considering the relevant purposes of sentencing, I consider that the appropriate penalty for each offence is a fine. I consider the appropriate amounts of the fines should be:

1. For CAR’s offence under s 211(2) of the POEO Act: $80,000;

2. For Mr Endacott’s offence under s 144AA(2) of the POEO Act for the false weighbridge dockets: $24,000.

3. For Mr Endacott’s offence under s 144AA(2) of the POEO Act for the false bonded asbestos clearance certificates: $48,000.

4. For Mr Endacott’s offence under s 144AA(2) of the POEO Act for the false asbestos removal clearance report and the false bonded asbestos clearance certificate for the M Harpley property: $96,000.

125. These amounts should be discounted by 25% for the utilitarian value of the pleas of guilty, giving $60,000 for CAR and $18,000, $36,000 and $72,000 respectively for Mr Endacott.

126. Because there are multiple offences, consideration needs to be given to the totality principle. The effect of the totality principle is to require the Court in passing a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is “just and appropriate” and reflects the total criminality before the Court: Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 62-63; Pearce  v  The Queen (1998) 194 CLR 610; [1998] HCA 57 at [49] and Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152 at [163].

127. In the case of a sentence of a fine, if the Court believes that the totality principle requires an adjustment to the individual fines that would otherwise be appropriate, the amount of each fine can be altered: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [50].

128. Care must be taken 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 seriousness of the offence: Plath v Rawson [222] and cases therein cited.

129. In determining an appropriate sentence, the Court must consider the need to uphold confidence in the administration of justice. If sentences are reduced substantially, offenders may be of the view that they can escape punishment for a deliberate series of discrete offences: R v Wheeler [2000] NSWCCA 34 at [36]-[37].

130. In this case, I consider that the totality principle does require some adjustment of the fines to be imposed on CAR and Mr Endacott for the offences committed by those persons that overlap. Mr Endacott committed an offence under s 144AA(2) by supplying the false bonded asbestos clearance certificates to Cobbora but he also caused CAR to commit an offence under s 211(2) when he supplied those same false certificates to the EPA. Mr Endacott is the effective mind of CAR. In these circumstances, it is important to bear in mind that the multiplicity of offenders is, in reality, accidental and unrelated to the merits of the case. This position was commented upon by Gleeson CJ in Tiger Nominees Pty Ltd v The State Pollution and Control Commission (1992) 25 NSWLR 715 at 722 and by McClellan CJ in Keir v Sutherland Shire Council [2004] NSWLEC 754 at [16].

131. In these circumstances, it is appropriate to impose a penalty upon both CAR and Mr Endacott which is sufficient in the circumstances but which takes account of the fact that that penalty will, in reality, come from Mr Endacott’s pocket: Keir v Sutherland Shire Council at [17].

132. It is appropriate, therefore, to reduce the aggregate of the fines that would otherwise be appropriate for the offence committed by CAR and the offence committed by Mr Endacott involving the supply of the false bonded asbestos clearance certificates. The aggregate of those otherwise appropriate fines is $96,000. This should be adjusted to $48,000. This should be apportioned $24,000 to each of CAR and Mr Endacott.

133. In fixing the amount of the fines, the Court is required to consider the financial means of the offenders to pay a fine from such information as is reasonably and practically available to the Court: s 6 of the Fines Act 1996. If the Court is satisfied that the offender would be unable to pay the amount of the fine determined by the Court to be otherwise appropriate, the Court may reduce the amount of the fine to take account of the offender’s means and impecuniosity: R v Rahme (1989) 43 A Crim R 81 at 87.

134. The fine may be only part of the penalty imposed on the offender. Consideration can also be given to other monetary amounts that the offender may be ordered to pay, including the prosecutor’s legal costs of the proceedings: Environment Protection Authority v Barnes at [78]-[88].

135. Mr Endacott adduced some evidence of the financial position of each of CAR and himself. This financial information was unsatisfactory in a number of respects, particularly as it was not audited or verified in any way. Nevertheless, I have had regard to the financial position of CAR and Mr Endacott as disclosed in the information provided.

136. I consider, however, that the fines that would otherwise be appropriate, as adjusted in the manner I have said above, are not beyond the financial means of Mr Endacott and CAR. In these circumstances, I do not consider that any further adjustment of the fines should be made, having regard to the financial means of CAR and Mr Endacott.

137. I note that Mr Endacott and CAR have agreed to pay, and I consider it is appropriate to order CAR and Mr Endacott to pay, the EPA’s legal costs in the sum of $25,000 each.

Orders

138. The Court makes the following orders:

In proceedings 2016/00149752:

(1) Complete Asbestos Removal Pty Ltd (ACN 153 340 535) is convicted of the offence against section 211(2) of the Protection of the Environment Operations Act 1997 as charged.

(2)   Complete Asbestos Removal Pty Ltd (ACN 153 340 535) is fined $24,000.

In proceedings 2016/00149803:

(1) Mr Endacott is convicted of the offence against section 144AA(2) of the Protection of the Environment Operations Act 1997 as charged.

(2)   Mr Endacott is fined $72,000.

In proceedings 2016/00149832:

(1) Mr Endacott is convicted of the offence against section 144AA(2) of the Protection of the Environment Operations Act 1997 as charged.

(2)   Mr Endacott is fined $18,000.

In proceedings 2016/00149863:

(1) Mr Endacott is convicted of the offence against section 144AA(2) of the Protection of the Environment Operations Act 1997 as charged.

(2)   Mr Endacott is fined $24,000.

In all of the proceedings (2016/00149752, 2016/00149803, 2016/00149832 and 2016/00149863):

(1)   Complete Asbestos Removal Pty Ltd (ACN 153 340 535) and Mr Endacott are each to pay $25,000 for the Environment Protection Authority’s legal costs.

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Decision last updated: 23 December 2016