Environment Protection Authority v Mouawad (also known as Isaac) (No 4)

Case •

[2023] NSWLEC 76

•

21 July 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Environment Protection Authority v Mouawad (also known as Isaac) (No 4) [2023] NSWLEC 76
Hearing dates: 17 and 18 May 2023
Supplementary submissions filed 24 May 2023 (prosecutor), no supplementary submissions filed by the defendant
Date of orders: 21 July 2023
Decision date: 21 July 2023
Jurisdiction:Class 5
Before: Pritchard J
Decision:

Orders at [265]

Catchwords:

SENTENCING – pollution of land – transportation of waste – offences against ss 142A(1) and 143(1) of the Protection of the Environment Operations Act 1997 (NSW) – guilty plea – self-represented defendant – defendant’s departure from statement of agreed facts – allegation of procedural unfairness –asbestos waste – importation of fill material not in accordance with waste classification certificates – allegation of recklessness – relevance of state of mind to offences against ss 142A(1) and 143(1) of the Protection of the Environment Operations Act 1997 – medium to high objective seriousness – prior criminality – offences committed for financial gain – planned or organised activity – no remorse shown by offender – need for specific deterrence – discount for plea of guilty on the first day of the trial – discount for totality principle

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22, 22A, 23

Criminal Procedure Act 1986 (NSW) ss 247A, 247J, 247K, 247M

Evidence Act 1995 (NSW) ss 4, 191

Protection of the Environment Operations Act 1997 (NSW) ss 3, 142A, 143, 241, Sch 1 cll 49, 50

Protection of the Environment Operations (Waste) Regulation 2014 cll 91, 92, 93

Cases Cited:

Aland B & W Pty Ltd v Blacktown City Council [2023] NSWLEC 13

Axer Pty Ltd v EPA (1993) 113 LGERA 357

Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152

Barbaro v the Queen (2014) 253 CLR 58; [2014] HCA 2

Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34

Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54

City of Parramatta Council v Sydney Trees Excavation and Demolition Pty Ltd [2021] NSWLEC 71

CL v R [2014] NSWCCA 196

Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137

Duffy v R [2009] NSWCCA 304

Elias v The Queen (2013) 248 CLR 48; [2013] HCA 31

Environment Protection Authority v Afram (2022) 252 LGERA 153; [2022] NSWLEC 38

Environment Protection Authority v Albiston [2020] NSWLEC 80

Environment Protection Authority v Aargus Pty Ltd [2013] NSWLEC 19

Environment Protection Authority v Crush and Haul Pty Ltd; Environment Protection Authority v Cauchi [2022] NSWLEC 113

Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70

Environment Protection Authority v Foxman & Ors(No 2) [2016] NSWLEC 120

Environment Protection Authority v Hanna [2010] NSWLEC 98

Environment Protection Authority v Hanna (2018) 235 LGERA 114; [2018] NSWLEC 80

Environment Protection Authority v Hughes [2019] NSWLEC 108

Environment Protection Authority v Laison [2015] NSWLEC 89

Environment Protection Authority v Minto Recycling Pty Ltd [2019] NSWLEC 193

Environment Protection Authority v Mouawad (also known as Boulos Isaac) (No 2) [2023] NSWLEC 38

Environment Protection Authority v Mouawad (Land and Environment Court (NSW), Moore J, 28 September 2022, unrep)

Environment Protection Authority v Mouawad (No 2) [2020] NSWLEC 166

Environment Protection Authority v Mouawad (No 3) [2021] NSWLEC 16

Environment Protection Authority v Mouawad (No 3) [2023] NSWLEC 44

Environment Protection Authority v P&M Quality Small Goods Pty Ltd [2017] NSWLEC 89

Environment Protection Authority v Ramsey Food Processing [2009] NSWLEC 152

Environment Protection Authority v Robinson [2004] NSWLEC 629

Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57

Environment Protection Authority v Smart Skip Pty Ltd [2009] NSWLEC 204

Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100

Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17

Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68

Environment Protection Authority v University of Sydney (2022) 251 LGERA 361; [2022] NSWLEC 41

Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419

Fairfield City Council v Oztech Developments Pty Ltd [2021] NSWLEC 81

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785

GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22

Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242

Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84

Harrison v Perdikaris [2015] NSWLEC 99

Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd (2012) 188 LGERA 273; [2012] NSWLEC 45

Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3

Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46

Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70

Mouawad v The Hills Shire Council (2013) 199 LGERA 28; [2013] NSWLEC 165

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118

Newcastle City Council v Pace Farm Egg Products [2002] NSWLEC 66

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178

R v O’Neill [1979] 2 NSWLR 582

R v Peel [1971] 1 NSWLR 247

R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

Secretary, Department of Planning and Environment v AGL Energy Limited [2017] NSWLEC 2

Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Thuong Nguyen v R [2012] NSWCCA 184

Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Water NSW v Barlow (2019) 244 LGERA 1; [2019] NSWLEC 30

Texts Cited:

Nil

Category:Principal judgment
Parties: Environment Protection Authority (Prosecutor)
Paul Mouawad (also known as Boulos Isaac) (Defendant)
Representation: Counsel:
N Sharp SC with T Phillips and A Ilic (Prosecutor)
Defendant appeared in person
Solicitors:
Legal Services Branch, Environment Protection Authority (Prosecutor)
File Number(s): 2018/260536; 2018/260542
Publication restriction: Nil

JUDGMENT

Introduction to the charges for sentence

Outcome

A self-represented defendant

Onus and standard of proof at sentencing

Evidence

Waste classification guidelines and resource recovery exemptions

Statement of agreed facts, plea deal, and the defendant’s departure from the statement of agreed facts

The defendant’s contentions in relation to procedural fairness

Background facts

Works to be undertaken at the property

Construction deed in relation to the importation of fill at the property

Profit share agreement between the defendant and Mr Levy

Importation of fill to the Arcadia property

General operations of Arcadia Landfill

Payments received by ACN and payments made under the profit share agreement

Waste classification certificates prepared by EI Australia in relation to the Zetland site and Wolli Creek site

Mr Miller’s observations in relation to suspected asbestos in fill imported to the property from the Zetland site

Inspections of the property by Progressive Risk Management

Application to the EPA for a resource recovery order and resource recovery exemption

13 July 2017 inspection of the property by Council

15 August 2017, 7 September 2017 inspections of the property by the prosecutor

28 September 2017 email from the defendant to Mr and Mrs Levy

20 September 2017 clean-up notice issued by the prosecutor, and actions pursuant to the clean-up notice

18 December 2017 volumetric survey on the property

Expert evidence of Mr Andre Smit and Dr Daniel Martens on stockpiled material

Relevant statutory provisions

Objective seriousness of the offence

Nature of the offences

Maximum penalty for the offence

The defendant’s state of mind in committing the offence

Relevance of state of mind in relation to the s 142A(1) offence of polluting land

Relevance of state of mind in relation to the s 143 offence

Conclusions in relation to the defendant’s state of mind

The defendant’s understanding of waste compliance and whether he was responsible for the exemption request letter

The defendant’s control over the process of fill validation

Awareness that imported material was or had a real risk of being contaminated

No lawful authority for all of the fill material to be brought to the property

Conclusion as to the defendant’s state of mind

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

The defendant’s reasons for committing the offence, and the question of financial gain

The practical measures to avoid harm to the environment; the defendant’s control over the causes of harm to the environment: s 241(1)(b) of the POEO Act

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

Control over the causes giving rise to the offences: s 241(1)(d) of the POEO Act

Whether, in committing the offence, the person was complying with orders from an employer or supervising employee: s 241(1)(e) of the POEO Act

The presence of asbestos in the environment: s 241(1)(f) of the POEO Act

Conclusion in relation to objective seriousness

Subjective circumstances of the offender

Prior criminality and character: ss 21A(2)(d), 21A(3)(e) and 21A(3)(f) of the CSP Act

Offences committed without regard for public safety: s 21A(2)(i) of the CSP Act

The offences were committed for financial gain: s 21A(2)(o) of the CSP Act

The offences were part of a planned or organised criminal activity: s 21A(2)(n) of the CSP Act

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

Plea of guilty: ss 21A(3)(k), 22 of the CSP Act

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

Not likely to reoffend: s 21A(3)(g) of the CSP Act

Principles of sentencing to be considered

Proportionality

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

Even-handedness and consistency in sentencing

Totality

Means of the defendant (s 6 Fines Act 1996 (NSW))

The appropriate penalty to be imposed

Payment of share of fine to prosecutor (s 122 Fines Act)

Costs

Orders

JUDGMENT

Introduction to the charges for sentence

  1. The proceedings were commenced on 24 August 2018. On 26 April 2023, the defendant Paul Mouawad (also known as Boulos Isaac) pleaded guilty to one offence of polluting land against s 142A(1) of the Protection of the Environment Operations Act 1997 (POEO Act), and one offence of causing waste to be transported to a place that cannot lawfully be used as a waste facility for that waste against s 143(1) of the POEO Act. It arises for me to sentence the defendant for those offences.

  2. The two offences to which the defendant has pleaded guilty are that:

  1. from on or about 31 January 2017 to on or about 28 August 2017 inclusive, at or near Arcadia in the State of New South Wales, he committed an offence against s 142A(1) of the POEO Act in that he polluted land (the s 142A(1) offence); and

  2. from on or about 31 January 2017 to on or about 28 August 2017 inclusive, at or near Arcadia in the State of New South Wales, he committed an offence against s 143(1) of the POEO Act in that he caused waste to be transported to a place that could not lawfully be used as a waste facility for that waste (the s 143(1) offence).

  1. Both offences, as particularised in amended summonses filed in Court on 26 April 2023, relate to the defendant having caused fill to be brought to and placed on a property at Lot 1 DP 239444, being 22 Geelans Road, Arcadia (the property). The property is bounded by other rural residential properties of a similar character, many of which are heavily vegetated.

  2. The two offences took place over a seven-month period between 31 January 2017 and 28 August 2017 (the charge period).

  3. The “pollutant” in the amended summons in relation to the s 142A(1) offence and the “waste” in the amended summons in relation to the s 143(1) offence are particularised as follows:

Material including soil, bricks, concrete, timber, metal, plastic, tile, rocks, rubble, bitumen, terracotta; asbestos waste within the meaning cl 109 of the Protection of the Environment Operations (General) Regulation 2009 and cl 50 of Sch 1 of the POEO Act.

  1. The manner of breach particularised in relation to the s 143(1) offence is that the defendant caused the waste to be transported to the property by truck.

  2. The manner of breach particularised in relation to the s 142A(1) offence is that:

(1) the defendant:

• caused the pollutant to be placed on, or otherwise introduced into or onto the land; and

• the pollutant caused or was likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial; and/or

• the pollutant was of a prescribed nature, description or class, namely more than 10 tonnes of “asbestos waste” within the meaning of cl 109 of the Protection of the Environment Operations (General) Regulation 2009 and cl 50 of Sch 1 of the POEO Act; and/or

(2) the defendant was the occupier of the premises, being the land from which pollution of the land occurred.

  1. During the charge period, approximately 1,399 truck loads of fill material (the fill material) were transported to the property, each truck having a capacity of approximately 30 tonnes. Some 20,000 tonnes of the fill material, considered by the prosecutor’s expert Mr Andre Smit to be asbestos waste, was deposited at and mixed into a stockpile located south of the residence on the property (the stockpile).

  2. The defendant is a former employee of a company known as Ozzy Earthmovers Pty Ltd (Ozzy Earthmovers), and the son of Mrs Amal Mouawad. During the charge period, Mrs Amal Mouawad was the sole director of Ozzy Earthmovers. On 4 December 2017, the defendant, Mr Mouawad, formally changed his name with the NSW Registry of Births, Deaths and Marriages to Mr Boulos Isaac.

  3. Arcadia Investment Holdings Pty Ltd (Arcadia Investment) is the owner of the property. From the date of Arcadia Investment’s registration on 24 April 2013 with the Australian Securities and Investments Commission (ASIC) pursuant to s 118 of the Corporations Act 2001 (Cth) (Corporations Act) to at least 26 September 2017, Mr David Mark Levy was the sole director and shareholder of Arcadia Investment. Mr Levy also arranged for a further company, A.C.N. 616 168 695 Pty Ltd (ACN), to be registered as a special purpose vehicle for dealings with contractors and subcontractors in relation to future works on the property.

  4. Between 1 October 2016 and 10 March 2017, Mr Levy lived with Mrs Maria Teresa Levy and their children at a residence located on the property. From 10 March 2017, Mr Ian Miller, a contractor of ACN, lived at the residence on the property.

Outcome

  1. During the charge period, the maximum penalty for each of the offences against s 143(1) and s 142A(1) of the POEO Act, in the case of an individual, was $250,000. I have determined to impose the following monetary penalties on the defendant, reflecting a 10 percent discount for the utilitarian value of his guilty pleas entered on 26 April 2023:

  1. a penalty in the amount of $135,000 in relation to the s 142A(1) offence; and

  2. a penalty in the amount of $135,000 in relation to the s 143(1) offence,

to which I have applied a further discount of 30 percent having regard to the totality principle. This produces a total penalty for the two offences in the amount of $189,000.

  1. Orders to that effect, and related orders, are set out at the conclusion of these reasons.

A self-represented defendant

  1. At the sentencing hearing, the defendant was self-represented. This followed the decision of Duggan J in Environment Protection Authority v Mouawad (No 3) [2023] NSWLEC 44 in which, by notice of motion, the defendant raised his fitness to be tried in relation to three charges then alleged by the prosecutor for breaches of the POEO Act (the fitness judgment). The defendant had argued that his mental illness resulted in him being unfit for trial. It was not in dispute that the defendant suffered from severe depression. The defendant and the prosecutor both submitted psychological evidence as to the impact of the defendant’s mental illness on his fitness for trial. Her Honour, Duggan J, dismissed the defendant’s notice of motion, finding the defendant fit to stand trial,[1] and accepting the opinion of the prosecutor’s neuropsychologist.

    1. Environment Protection Authority v Mouawad (No 3) [2023] NSWLEC 44 (Mouawad No 3) at [42].

  2. Duggan J held that the opinion of the prosecutor’s neuropsychologist was confirmed by the defendant’s interactions with the Court. The defendant was able to understand the directions given, respond to specific questions, respond in a focused manner to the evidence and submissions put by senior counsel for the prosecutor, and cross-examine a witness to a standard comparable to most self-represented litigants. [2]

    2. Mouawad No 3 at [36]-[37].

  3. At the commencement of the sentencing hearing, I made some remarks in relation to the procedures to be followed in the hearing. I provided the parties with copies of relevant statutory provisions, namely, ss 142A and 143 of the POEO Act in relation to the two offences to which the defendant had pleaded guilty, and s 241 of the POEO Act and ss 3A and 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) in relation to the determination of sentence. I confirmed that each party would have the opportunity to address the Court, and explained to the defendant the difference between submissions and evidence:

HER HONOUR: I will shortly ask the prosecutor to give an outline of the case in relation to sentence it anticipates to establish, through the evidence. The purpose of the prosecutor's opening address is to assist the Court in understanding the evidence, as it is given during the sentence hearing. What the prosecutor says in its opening address is not evidence; it is nothing more than an outline of what the prosecutor expects the evidence will establish. After the prosecutor has completed its opening address, you have the right to provide your own opening address. You can refer to any issues which you dispute, or which you do not dispute, however, at this stage, your address must be limited to the matters dealt with in the prosecutor's opening address, and, if you wish, to the matters you propose to raise, in relation to your sentence. Just like the prosecutor's opening address, what you say at this stage is not evidence.

…

HER HONOUR: … You must understand that if during your address you assert facts about the charges which are not supported by your evidence, I may give the prosecutor permission to make a supplementary submission or another address replying to any such assertion: see s 162 of the Criminal Procedure Act. Mr Mouawad, if you would like me to further explain anything I have told you, please let me know now or when the particular matter arises.

  1. I also took the defendant to the documents that had been filed by the prosecutor. The defendant confirmed that he had copies of those documents.

Onus and standard of proof at sentencing

  1. A plea of guilty admits those matters which are the essence of the charge, or the legal “ingredients” of each of the offences. [3] It does not admit the non-essential ingredients an offence. [4] 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 at [30],[5] the High Court said of 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.

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 offender unless those facts have been established beyond reasonable doubt. [6]

3. Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 at 508-510 (Dawson and McHugh JJ); Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 at [32]-[33] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) (Strbak).

4. R v O’Neill [1979] 2 NSWLR 582 at 588 (Moffitt ACJ) (O’Neill); Duffy v R [2009] NSWCCA 304 at [21] (Fullerton J) (Duffy).

5. (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) (Laison).

6. 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); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64], [66] (French CJ, Bell, Keane and Nettle JJ); Strbak at [27]-[28]; Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70 at [45] (Robson J).

Evidence

  1. The prosecutor relied on a bundle of primary documents filed 22 January 2021 and documents identified in an amended list of documents filed on 11 May 2023, a NSW criminal history produced by NSW Police on 9 May 2023, and the Court’s judgment in Mouawad v The Hills Shire Council (2013) 199 LGERA 28; [2013] NSWLEC 165 (Mouawad v The Hills Shire Council). The prosecutor also read the following affidavits:

  1. Ryan Verzosa, affirmed 4 April 2023 (as to the procedural history of the proceedings);

  2. Ryan Verzosa, affirmed 28 April 2023 (as to the costs of the investigation);

  3. Ryan Verzosa, affirmed 5 May 2023 (as to the costs of the investigation);

  4. Ryan Verzosa, affirmed 10 May 2023 (as to searches undertaken in relation to the defendant’s continued involvement in the earthmoving industry through the company Dynamic Dwellings Earthworx Pty Ltd (Dynamic Dwellings Earthworx)); and

  5. Shanna Staples, affirmed 3 February 2018 (a resident at 14 Geelans Road, Arcadia, who had observed the movements of trucks transporting fill material to the property).

Waste classification guidelines and resource recovery exemptions

  1. The prosecutor also relied on a document titled “Waste Classification Guidelines Part 1: Classifying Waste” published by the prosecutor (the Environment Protection Authority (EPA)) in November 2014 (the waste classification guidelines). The waste classification guidelines are defined in cl 50 of Sch 1 to the POEO Act as follows:

Waste Classification Guidelines means the document entitled Waste Classification Guidelines, published by the EPA and as in force from time to time, copies of which are held in the offices of the EPA.

  1. Under the heading “Introduction”, the waste classification guidelines provide that:

This part of the Waste Classification Guidelines (the Guidelines) covers the classification of wastes into groups that pose similar risks to the environment and human health.

The following classes of waste are defined in clause 49 of Schedule 1 of the Protection of the Environment Operations Act 1997 (POEO Act):

• special waste

• liquid waste

• hazardous waste

• restricted solid waste

• general solid waste (putrescible)

• general solid waste (non-putrescible).

To determine which of the above classifications applies to your waste, the following steps must be followed in the order below. Once a waste’s classification has been established under a particular step, do not go to the next step; the waste will be taken to have that classification and must be managed accordingly.

  1. The prosecutor further relied on the following documents:

  1. Resource Recovery Exemption under Part 9, cll 91 and 92 of the Protection of the Environment Operations (Waste) Regulation 2014 (POEO Waste Regulation) (resource recovery exemption), published in the NSW Government Gazette on 21 November 2014, titled “The excavated natural material exemption 2014”, to be read in conjunction with “excavated natural material under 2014”, and exempting a consumer of excavated natural material (ENM) from certain requirements under the POEO Act and the POEO Waste Regulation in relation to the application of that waste to land provided the consumer complies with the conditions of the exemption (the ENM exemption);

  2. Resource Recovery Order under Part 9, cl 93 of the POEO Waste Regulation (resource recovery order), also published in the NSW Government Gazette on 21 November 2014, titled “The excavated natural material order 2014”, and imposing the requirements that must be met by suppliers of ENM to which the ENM exemption applies (the ENM order); and

  3. a resource recovery exemption in relation to recovered aggregate (the recovered aggregate exemption), and a resource recovery order in relation to recovered aggregate (the recovered aggregate order), also published in the NSW Government Gazette on 21 November 2014, and issued by the EPA under cll 91 and 92, and cl 93 of the POEO Waste Regulation respectively.

  1. The ENM Exemption provided at all relevant times relevantly as follows:

1. Waste to which this exemption applies

1.1. This exemption applies to excavated natural material that is, or is intended to be, applied to land as engineering fill or for use in earthworks.

1.2. Excavated natural material is naturally occurring rock and soil (including but not limited to materials such as sandstone, shale, clay and soil) that has:

a) been excavated from the ground, and

b) contains at least 98% (by weight) natural material, and

c) does not meet the definition of Virgin Excavated Natural Material in the Act.

Excavated natural material does not include material located in a hotspot; that has been processed; or that contains asbestos, Acid Sulfate Soils (ASS), Potential Acid Sulfate soils (PASS) or sulfidic ores.

2. Persons to whom this exemption applies

2.1. This exemption applies to any person who applies or intends to apply excavated natural material to land as set out in 1.1.

…

7. Conditions of exemption

The exemption is subject to the following conditions:

7.1. At the time the excavated natural material is received at the premises, the material must meet all chemical and other material requirements for excavated natural material which are required on or before the supply of excavated natural material under ‘the excavated natural material order 2014’.

7.2. The excavated natural material can only be applied to land as engineering fill or for use in earthworks.

7.3. The consumer must keep a written record of the following for a period of six years:

• the quantity of any excavated natural material received; and

• the name and address of the supplier of the excavated natural material received.

7.4. The consumer must make any records required to be kept under this exemption available to authorised officers of the EPA on request.

7.5. The consumer must ensure that any application of excavated natural material to land must occur within a reasonable period of time after its receipt.

  1. The ENM order provided at all relevant times the following notification requirement on or before each transaction:

Notification

4.9. On or before each transaction, the generator must provide the following to each person to whom the generator supplies the excavated natural material:

• a written statement of compliance certifying that all the requirements set out in this order have been met;

• a copy of the excavated natural material exemption, or a link to the EPA website where the excavated natural material exemption can be found; and

• a copy of the excavated natural material order, or a link to the EPA website where the excavated natural material order can be found.

Statement of agreed facts, plea deal, and the defendant’s departure from the statement of agreed facts

  1. The parties filed an extensive statement of agreed facts dated 28 April 2023 (SOAF). The defendant agreed to the SOAF as a condition of an arrangement pursuant to which the prosecutor withdrew a charge against s 144 of the POEO Act in exchange for his plea to the ss 142A(1) and 143(1) offences (the plea deal).

  2. The correspondence in relation to the plea deal established that:

  1. on 25 April 2023, the prosecutor sent a letter to the defendant making a plea offer;

  2. the terms of the plea deal included that the defendant would accept the Further Amended Statement of Facts served on him by the prosecutor on 12 January 2022 (the preponderance of which was by then reflected in the SOAF), and plead guilty to the s 142A(1) and s 143(1) offences in exchange for the prosecutor withdrawing the s 144 charge and related particulars; and

  3. the defendant accepted that offer on those terms by his email to the prosecutor on 26 April 2023. The email chain containing the defendant’s acceptance of the plea deal was in evidence.

  1. Following the entry of guilty pleas on 26 April 2023, the defendant was directed to file any evidence by 10 May 2023, and an outline of written submissions, if he so chose, by Monday 15 May 2023. The defendant did not file any evidence or submissions prior to the hearing which commenced on 17 May 2023.

  2. On the first day of the hearing, after the prosecutor’s opening, the defendant asked whether he could provide written opening submissions. The prosecutor consented to that course. I again explained to the defendant the distinction between submissions and evidence. I directed the defendant to file and serve written opening submissions by 9am on 18 May 2023. The defendant, through the prosecutor, emailed a scanned handwritten document to my associate at about 9.30am. At the resumption of the hearing on 18 May 2023, the prosecutor submitted that the document provided by the defendant contained both evidence and submissions. The prosecutor submitted that if the document was admitted as evidence, the defendant should be subject to cross-examination. The defendant consented to being called as a witness, and the handwritten document was tendered (Exhibit E).

  3. In cross-examination, the defendant made various statements that contradicted the agreed facts in the SOAF, especially in relation to his state of mind which the prosecutor sought to establish was one of recklessness.

  4. The defendant sought to resile from the SOAF, in particular, in the following respects:

  1. Contrary to paragraph [13] of the SOAF, the defendant denied that it was his role, on behalf of Ozzy Earthmovers, to ensure that all fill material imported to the property was “virgin excavated natural material” (VENM) or “other approved material” as prescribed in the construction deed entered into by Ozzy Earthmovers, Arcadia Investment and Royal Development Group Pty Limited (Royal Development) on 15 December 2016 in relation to landform modification works at the property (the construction deed).

  2. Contrary to paragraph [34] of the SOAF, the defendant denied sending a letter on behalf of Ozzy Earthmovers to the prosecutor (the letter being dated 23 March 2017, but sent by email on 28 March 2017), requesting a resource recovery exemption in relation to fill transported to the property (the exemption request letter). The defendant said that he had not seen this letter, and that it was not his signature affixed at the end of the letter.

  3. Contrary to paragraph [35] of the SOAF, the defendant denied receiving a letter from the prosecutor dated 12 April 2017 in reply to the exemption request letter, stating that the prosecutor would not be progressing the defendant’s application for a resource recovery exemption any further.

  4. Contrary to paragraphs [43] and [44] of the SOAF, the defendant denied having a conversation with the contractor of ACN, Mr Miller, on or around 10 March 2017, in which Mr Miller expressed concern about “rubbish” being transported to the property, and the defendant reassured Mr Miller that “it comes in the classification of ENM”; and that he “would always find a little bit of perhaps Asbestos because it’s coming from an old site and this particular site had a lot of Asbestos on it”.

  5. Contrary to paragraph [60] of the SOAF, the defendant denied having a conversation with Mr Lee Brown from environmental consultancy firm Progressive Risk Management (PRM) in which he told Mr Brown that he had organised a resource recovery exemption with the prosecutor to receive material with a high rubble content. More generally, the defendant denied speaking to any environmental consultant from PRM.

  1. In terms of his responsibility to verify that the fill transported to the property was compliant with any relevant resource recovery exemption, the defendant gave the following evidence:

No, that's what I'm trying to say.  This was never my role.  I did peruse it generally, but the role was for the environmental consultant who was engaged by Dave Levy to approve it, and Ian Miller was to monitor and track all the loads.  I was in an excavator, madam, for 10 hours a day on a 25‑acre site probably hundreds of meters away.  I did not control that, it wasn't my role. 

…

I could not approve for it to come in, it had to go through Dave [Levy]'s consultant. I could not approve the opening of the site because that was Ian Miller's role. I could not physically check the loads because I was in an excavator hundreds of meters away excavating building a rock wall, so I wouldn't take on that responsibility. That's the truth however it is. Yes, I made inquiries.

  1. On 24 May 2023, after the conclusion of the sentencing hearing, with leave, the prosecutor filed supplementary submissions in relation to the weight to be given to the defendant’s evidence to the extent that it contradicted the SOAF.

  2. The prosecutor submitted that the case involved an unusual situation in which an unrepresented defendant gave oral evidence in cross-examination that contradicted aspects of an agreed set of facts which formed the basis of his guilty pleas, and which statement of agreed facts had been tendered by consent.

  3. The prosecutor submitted that the starting point in relation to a plea of guilty is the formal admission of each of the legal ingredients of the offence[7] (not the non-essential ingredients of the offence). [8]

    7. Strbak at [32].

    8. O'Neill at 587; Duffy at [21].

  4. The prosecutor submitted, and I accept, that in pleading to the offences, the defendant necessarily admitted that he could not avail himself of the defence of honest and reasonable mistake of fact, referring in relation to the operation of this defence, in the context of an offence against s 143 of the POEO Act, to Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd. [9]

    9. (2012) 188 LGERA 273; [2012] NSWLEC 45 at [171]-[174] (Biscoe J).

  5. The prosecutor submitted, and I accept nothing turns on the fact that the SOAF was not signed by the defendant. It was clear from the correspondence in relation to the plea deal that the defendant’s acceptance of the SOAF was a condition of the prosecutor withdrawing the charge against s 144 of the POEO Act. During the sentencing hearing, the prosecutor said that the facts were agreed, and the defendant did not demur. On a number of occasions, the defendant informed the Court that he had agreed to the SOAF. Accordingly, I find beyond reasonable doubt that the defendant, by his conduct, adopted the SOAF.

  6. It was not submitted and I do not consider that I should make a direction that the Evidence Act 1995 (NSW) (Evidence Act) applied to these sentencing proceedings. [10] Had the Evidence Act applied, the defendant would have required leave to adduce evidence contradicting or qualifying any agreed fact. [11] No question arises as to whether leave should now be given to adduce such evidence. That is because the defendant gave oral evidence in answer to questions in cross-examination.

    10. Evidence Act ss 4(1)(d), 4(2).

    11. Evidence Act s 191(2).

  7. The prosecutor submitted that the questions which arose as a consequence of the defendant seeking to resile from the SOAF were:

  1. the evidential status of the SOAF; and

  2. the weight that should be placed upon the oral evidence given by the defendant insofar as it contradicted matters the subject of the SOAF.

  1. As to the evidential status of the SOAF, much of its contents was already the subject of agreement in the amended notice pursuant to s 247K of the Criminal Procedure Act 1986 (NSW) (CPA) (the amended s 247K notice), served on the prosecutor on 21 December 2020 at a time when the defendant was legally represented and subject to a direction requiring him to serve such a notice. The facts agreed in the amended s 247K notice included those relating to:

  1. the terms of the construction deed entered into on 15 December 2016 between ACN, Royal Development and Ozzy Earthmovers for landform modification work, including the importation of fill, at the property (see above at [30(1)]);

  2. the exemption request letter of 23 March 2017 sent from the defendant to the prosecutor applying for a resource recovery exemption (see above at [30(2)]);

  3. an email sent from the defendant to Mr and Mrs Levy on 28 September 2017 in relation to the profit share agreement and the detection of asbestos containing material on the property (the 28 September 2017 email); and

  4. the defendant’s exchanges with officers of the prosecutor at the property on 15 August 2017 about his role at the site and reflecting his awareness of the waste certification process that had been put in place.

  1. Section 247M of the CPA, which applies to proceedings in the Court's summary jurisdiction,[12] relevantly provides:

247M   Dispensing with formal proof

(1) If a fact, matter or circumstance was alleged in a notice required to be given to the defendant by the prosecutor in accordance with this Division and the defendant was required to give a defence response under section 247K but did not disclose in the response an intention to dispute or require proof of the fact, matter or circumstance, the court may order that-

(a) a document asserting the alleged fact, matter or circumstance may be admitted at the hearing of the proceedings as evidence of the fact, matter or circumstance, and

(b) evidence may not, without the leave of the court, be adduced to contradict or qualify the alleged fact, matter or circumstance.

12. See CPA s 247A(b).

  1. Section 247M of the CPA gives presumptive evidential force to facts alleged by a prosecutor in a s 247J notice not disputed by a defendant in a s 247K notice, and reflects the statutory imperative to hold defendants to positions they adopt as to factual matters in the context of trial preparations.

  2. It would be inconsistent with the statutory purpose of the pre-trial processes provided in the CPA for matters resolved at an early stage of proceedings to be able to be re-agitated at a later stage without some cogent cause being shown for the change in position. I find that the defendant has not shown any cogent cause for his change in position here.

  3. More generally, and independently of the operation of s 247M of the CPA, I have had regard to the contents of the SOAF as part of the sentencing exercise on the basis that the contents were acknowledged by the defendant, in the course of the sentencing hearing, to be agreed by him.

  4. The prosecutor relied on the decision of Biscoe J in EPA v Ramsey Food Processing (Ramsey)[13] in which his Honour considered circumstances in which the defendant sought leave (by way of a formal application on the third day of a sentencing hearing) to contradict or qualify facts agreed in the parties’ statement of agreed facts. [14] In Ramsey, the agreed facts had been signed, but did not appear to have been prepared pursuant to the pre-trial processes contemplated by the provisions of the CPA. Relevantly, Biscoe J:

    13. [2009] NSWLEC 152 (Biscoe J).

    14. Ramsey at [1].

  1. considered the impact of s 4 of the Evidence Act, and held that s 191 did not apply in sentencing in the absence of a direction; [15]

    15. Ramsey at [11].

  2. considered cases, but did not find any to be analogous, relating to applications for leave to withdraw a plea of guilty or where the Crown was permitted to adduce evidence on an issue where the defendant had made admissions; [16]

    16. Ramsey at [12]-[15].

  3. held that “[t]he onus is on the party seeking leave to contradict or qualify agreed facts to make out a case for leave including as to the circumstances in which they came to agree the facts”; [17]

  4. highlighted the strong policy reasoning underlying the need to uphold agreed facts, namely that:

[a]n application to contradict or qualify agreed facts after considered negotiation and legal advice, particularly when made as late as the hearing, challenges the integrity of the agreed facts procedure and should be approached with caution. There has to be an incentive for parties to agree facts. To allow a party to back out of such an agreement easily does not encourage agreement in the first place. In a general sense, there is prejudice in denying to a party the right to rely on something that they reasonably thought was agreed”; [18]

and

  1. identified factors weighing against the grant of leave, and which in the prosecutor’s submission here, by analogy, ought weigh in favour of the agreed facts being preferred to any evidence given by the defendant in cross-examination which sought to contradict or qualify the agreed facts.

    17. Ramsey at [16].

    18. Ramsey at [16].

  1. I am satisfied that the SOAF was negotiated and agreed after a careful process of negotiation. There would be considerable prejudice to the prosecutor in the defendant being given leave to adduce the contradictory/ qualifying evidence sought to be given by him in cross-examination. [19]

    19. Ramsey at [17]-[19].

  2. I find that the factors identified by Biscoe J in Ramsey tend firmly against the grant of leave to permit the defendant to withdraw his acceptance of the SOAF (observing that no such application was made by the defendant, in any event). There was nothing before me capable of supporting a finding that the defendant ought not be bound by his conduct in agreeing to the SOAF. [20] The defendant’s agreement to the SOAF was the basis upon which he pleaded guilty. There are sound policy reasons, having regard to the provisions of the CPA and the administration of justice, not to permit the defendant to depart from that agreement in his oral evidence before the Court.

    20. CL v R [2014] NSWCCA 196 at [43]-[44] (Adamson J, Fullerton J and Hoeben CJ at CL agreeing).

  3. I do not accept as credible the defendant’s oral evidence seeking to minimise his responsibility for the offending in a manner cutting across statements in the SOAF. An example is in relation to the amended s 247K notice in which the defendant agreed that on or about 28 March 2017 (by letter bearing the date 23 March 2017), he sent the exemption request letter to the prosecutor for and on behalf of Ozzy Earthmovers, requesting a resource recovery exemption for the application of waste soils to land at the property. However, during cross-examination, having been shown the same correspondence referred to in the SOAF, the defendant sought to distance himself from that letter (see above at [30(2)]). I find that the defendant’s contrary account is inherently implausible and should not be accepted.

  4. In relation to the weight to be attributed to the defendant’s evidence in cross-examination, to the extent that his evidence resiled from the SOAF, my findings are, beyond reasonable doubt, in accordance with the SOAF.

The defendant’s contentions in relation to procedural fairness

  1. On several occasions during cross-examination, the defendant asserted some unfairness insofar as the prosecutor was relying on documents to which he said he did not have access either from his phone or hard-drive, apparently in support of a submission that it had not been possible for him to interrogate the provenance or contents of the documents.

  2. The prosecutor submitted that there was no substance to these claims. The prosecutor referred to on a materially similar contention raised by the defendant at the hearing of an amended notice of motion filed by the prosecutor on 15 July 2022. On 28 September 2022, Moore J delivered an ex-tempore judgment, putting in place steps to ensure that the data that had been imaged from the defendant’s devices when a search warrant was executed at his residential premises was made available to him. Moore J was satisfied that those steps had been completed. His Honour said: [21]

As a part of the various interlocutory proceedings that have taken place I am now satisfied that all of the potential material that may be sought to be relied upon by the prosecutor either has been made available to Mr Mouawad or has been provided to him in a form which after this morning's hearing he should be able to access electronically being on a hard drive that has been served upon him. However, against the eventuality that the instructions provided to him today are not able to permit him to access the remainder of the material, the relevant software issues having been resolved or rendered resolvable this morning, I have afforded a further time limited opportunity for Mr Mouawad to seek to have the matter relisted before me if he is unable to access that material.

21. Environment Protection Authority v Mouawad (Land and Environment Court (NSW), Moore J, 28 September 2022, unrep) tcpt at p 2(5).

  1. There is nothing in the material before me capable of supporting a finding that the defendant did not have access to the material relied on by the prosecutor.

Background facts

  1. I now turn to the background facts. The following background facts are largely derived from the SOAF, and the underlying evidence referred to therein.

Works to be undertaken at the property

  1. On 10 August 2015, Hornsby Shire Council (Council) approved development consent no 1373/2014 for the construction of a horse arena, stables, and landform modifications at the property (the development consent). As part of the landform modifications, the development consent allowed fill to be imported to the property to achieve the filled finished levels required for the development. Condition 28 of the development consent provided as follows in relation to the import of landfill:

28. Landfill

Landfill must be constructed in accordance with Council's 'Construction Specification 2005' and the following requirements:

a) All fill material imported to the site is to wholly consist of Virgin Excavated Natural Material (VENM) as defined in Schedule 1 of the Protection of the Environment Operations Act 1997 or a material approved under the Department of Environment and Climate Change's general resource recovery exemption.

  1. VENM is defined in Part 3 of Schedule 1 to the POEO Act as follows:

virgin excavated natural material means natural material (such as clay, gravel, sand, soil or rock fines)—

(a)  that has been excavated or quarried from areas that are not contaminated with manufactured chemicals, or with process residues, as a result of industrial, commercial, mining or agricultural activities, and

(b)  that does not contain any sulfidic ores or soils or any other waste,

and includes excavated natural material that meets such criteria for virgin excavated natural material as may be approved for the time being pursuant to an EPA Gazettal notice.

  1. From mid to late 2016, the defendant attended the property intermittently, and commenced undertaking investigations to determine how much stone was required to build a retaining wall and carry out “preparatory works”, such as clearing the land in preparation for the importation of fill. The defendant advised Mr Levy that the development works would take 12 to 14 months, that he would need one machine at $1,200 a day for an initial period of 6 weeks, and another machine at $1,000 a day for the duration of the project. The defendant also suggested that fill suppliers should be paying to supply fill, rather than supplying it for free. There was no agreement between the defendant and Mr Levy at the time in relation to preparatory works on the property.

  2. On 29 November 2016, ACN was established as an Australian registered company within the meaning of the Corporations Act. Mr Luke Armstrong was initially appointed as the sole director of ACN at the request of Mr Levy who had “extensive borrowings with the bank”, and was worried about construction-related claims from contractors or sub-contractors, and accordingly “wanted to keep himself at arm’s length”. From 3 October 2017 to the filing of the SOAF on 28 April 2023, Mr Levy was the sole director of ACN.

Construction deed in relation to the importation of fill at the property

  1. On 15 December 2016, ACN entered into the construction deed with Royal Development and Ozzy Earthmovers for the carrying out of landform modification work on the property as required under the development consent, including in relation to the importation of fill at the property. Under the construction deed, ACN was nominated as the “developer”. Royal Development, as the “contractor”, was required to procure at least 7,000 loads of “fill material” to be imported onto the property. Ozzy Earthmovers, as the “subcontractor”, was required to ensure that all fill material imported to the property:

  1. was VENM, as defined under Sch 1 to the POEO Act or “Other Approved Material”, defined under the construction deed to mean “material approved under the Department of Environment and Climate Change’s general resource recovery exemption and which complies with and is approved in accordance with all Legislative Requirements, the Law, the Environmental Law and Environmental Requirements”;

  2. had undergone validation testing in accordance with the relevant EPA and Department of Environment and Climate Change regulatory guidelines to confirm soil suitability and that a “Certificate”, defined as “a certificate issued in accordance with the Environmental Requirements certifying that the Fill Material is VENM or Other Approved Material”, had been issued (waste classification certificate);

  3. complied with resource recovery orders and resource recovery exemptions;

  4. complied with the “Waste Regulation”, defined under the construction deed to mean the POEO Waste Regulation;

  5. was free from any waste, rubbish and asbestos or other hazardous materials;

  6. had not been tampered with or added to following certification; and

  7. was treated, handled, transported and imported:

  1. in strict compliance with any applicable “Environmental Requirements”, “WHS Requirements” and other “Legislative Requirements” (as defined in the construction deed);

  2. in accordance with the development consent; and

  3. consistent with any directions from ACN, being the developer under the construction deed.

Profit share agreement between the defendant and Mr Levy

  1. In about December 2016, Mr Levy and the defendant entered into a verbal agreement that any funds received from the importation of fill that were left after expenses, GST and a 30% retention fund would be shared “50/50” between Mr Levy and the defendant (the profit share agreement). The funds received for the fill material were to be directed to ACN, and under the profit share agreement, ACN was to make discretionary payments to EJOI Management Services Pty Ltd (EJOI) for the defendant’s share of the profit.

Importation of fill to the Arcadia property

  1. On 6 September 2016, the defendant sent a text message to Mr Sami Allam of Ace Demolition & Excavation Pty Ltd (Ace Demolition) in the following terms:

Hi Sami

I now operate and manage a sandstone quarry and landfill in Arcadia.

We can accept all validated natural fill materials.

We also can supply sandstone products, from large boulders, rubble rock and crushed sandstone filling for slab preparation and sub base.

Let me know if I can be of assistance to you

Regards Paul

  1. From about December 2016, the defendant contacted possible landfill suppliers and made arrangements for fill to be brought to the property. Fill material was transported to the property from eight source sites (the source sites) as follows:

  1. on about 7 December 2016, 3 loads of material described as “clean soil” were transported from a site at 90 Veterans Parade, Narrabeen (the Narrabeen site) to the property;

  2. between 1 and 4 February 2017, 17 loads of material described as “VENM” were transported from a site at 1A Coulson Street, Erskineville (the Erskineville site) to the property;

  3. on 4 February 2017, 2 loads of material described as “VENM” were transported from a site at 32 Fitzwilliam Road, Vaucluse (the Vaucluse site) to the property;

  4. between 10 March 2017 and 28 August 2017, 236 loads of material described as “ENM”, and 1,039 loads of material described as “recovered aggregate” were transported from a site at 105-115 Portman Street, Zetland (the Zetland site) to the property;

  5. between 22 and 23 March 2017, 52 loads of material described as “ENM” were transported from a site at 40-50 Arncliffe Street, Wolli Creek (the Wolli Creek site) to the property;

  6. between 3 and 18 May 2017, 42 loads of material described as “ENM” were transported from a site at 23 Bennelong Parkway, Wentworth Point (the Wentworth Point site) to the property;

  7. between 19 and 26 May 2017, 6 loads of material described as “ENM” were transported from a site at 350 Northern Road, Castle Hill (the Castle Hill site) to the property; and

  8. on 27 July 2017, 2 loads of material described as “recovered aggregate” were transported from a site at Willows Retirement Village, Northmead (the Northmead site) to the property

  1. This produces a total of 1,399 loads of material transported to the property during the charge period of 31 January 2017 to 28 August 2017.

  2. While it was not an agreed fact, there was evidence capable of supporting a finding, beyond reasonable doubt, that a “load” or “truck load” of material refers to the amount of fill that a “truck and dog”, meaning a truck and attached trailer, can carry. A report titled “Stakeholder Engagement Plan” dated March 2018, prepared by Newgate Engage on behalf of Arcadia Investment, stated that a truck and dog trailer can carry approximately 30 tonnes of soil. The defendant also gave oral evidence that he knows a “truck and dog” to carry approximately 30 tonnes of fill material.

  3. In January and February of 2017, the builders at the Wolli Creek site and at the Zetland site entered into subcontracts with Ace Demolition for the excavation, removal and disposal of material excavated at those sites.

  4. On 9 February 2017, the defendant sent text message to Mrs Levy, requesting that she register “Arcadia Landfill” as the business name of “the company” in order to assist with dealing with landfill suppliers. On 28 March 2017, the name “Arcadia Landfill” was registered with ASIC as the business name of ACN, and was subsequently used on documentation and emails issued by ACN (Arcadia Landfill).

  5. On 7 March 2017, at 2:48pm, the defendant sent a text message to Mr Levy stating, “Just left Arcadia. On my way to meeting to negotiate the rates for the fill”. At 7:56pm on the same day, the defendant sent a text message to Mrs Levy stating:

Hi Maria,

I need you to send a quote to Sami Allam of Ace Demolition and Excavation

Site address is Cnr Dunning Avenue and Portman St, Zetland

Description of material:

ENM and Course Granular Material $1,140,00 + GST per truck and dog load

On 21 March 2017, the defendant sent a text message to Mrs Levy advising that the rate for ENM material from the Wolli Creek site would also be $1,140 per truck and dog load, being “the same as Zetland”.

  1. The SOAF similarly reproduced a number of text message exchanges between the defendant and suppliers at the source sites, in particular Mr Allam, arranging the transport of fill to the property and negotiating rates during the charge period.

  2. On 9 March 2017, the defendant sent an email to Mr Allam of Ace Demolition attaching a document titled “waste tracking form” setting out details such as “waste generator”, “waste type”, “transporter” and “waste recovery facility” (waste tracking form). The defendant said in his email to Mr Allam that the waste tracking form was to be “signed, filled out and provided with each and every truck load” and be provided to “our man at the gate”, being Mr Miller. The waste tracking form did not contain any prompt to record details of a particular waste classification certificate verifying the classification of fill material subject of the waste tracking form.

General operations of Arcadia Landfill

  1. It was agreed, and I find beyond reasonable doubt, that during the charge period the defendant was the site manager at the property and was responsible for the day-to-day running of the site which included arranging trucks containing material to be delivered, arranging subcontractors and personnel to assist him and making decisions on where material would go. The defendant operated machines on the property and controlled where material was placed. The defendant gave all instructions to drivers either directly from his machine or using his mobile phone.

  2. During the charge period, the general operations at Arcadia Landfill were as follows:

  1. The defendant organised arrangements with the landfill suppliers using his contacts to source fill from various sites.

  2. When the defendant found a potential source site, he requested ACN to provide a price list for the receipt of fill from site, with details which were provided by the defendant.

  3. Mrs Levy, on behalf of ACN, prepared a document titled “Landfill Price List” which provided a quote to the potential supplier for the cost of disposing the material at the property. The “Landfill Price List” was supplied to the source site, usually by email from Mrs Levy.

  4. The source site fill confirmed to Mrs Levy or the defendant whether it agreed with the price quoted by ACN. If so, the defendant made arrangements with the source site for the material to be transported to the property. The source site generally supplied its own trucks. However, on some occasions, the defendant arranged trucks for the transport of material to the property.

  5. Mrs Levy issued invoices to the source site for the disposal of material at the property. The source site made payment directly to the bank account nominated by ACN.

  1. Mr Levy engaged Mr Miller, as a contractor of ACN, as gatekeeper at the property. Mr Miller’s role was to secure the site, to retain records of what material was transported to the property, and to visually inspect loads of material brought to the property. Mr Levy visited the property initially every few days, but as the project progressed, every few weeks to see how the works under the development consent were progressing.

  2. When a truck containing fill material arrived at the property, the following process was ordinarily followed:

  1. The truck entered the property and drove past the residence into a turning circle. The defendant was in control of the site, and directed which trucks to enter and at what stage.

  2. The truck entered the turning circle. Mr Miller, the gatekeeper, took the truck driver’s delivery paperwork (that is, the waste tracking form), and verified the supplying vehicle and driver details. From the waste tracking forms received over the course of the day, Mr Miller later prepared run sheets which recorded the number of trucks that had delivered a load on a particular day (truck run sheets). The truck run sheets were created by Mr Miller to assist Mrs Levy in invoicing source sites which had deposited material at the property.

  3. The trucks unloaded in an area located behind the residence, as designated by the defendant.

  4. As soon as the trucks unloaded, the material was moved and stockpiled around the property with excavators by either the defendant or Mr Wayne Bogal, an employee of the defendant.

Payments received by ACN and payments made under the profit share agreement

  1. The below table, reproduced from the SOAF, summarises the payments ACN received in relation to the transport of material to the property from the eight source sites listed above at [60]:

  1. The below table, also reproduced from the SOAF, summarises the payments from ACN to EJOI for the defendant’s profit share pursuant to the profit share agreement:

Waste classification certificates prepared by EI Australia in relation to the Zetland site and Wolli Creek site

  1. In March 2017, Mr Levy on behalf of ACN engaged independent environmental consultants PRM to carry out consultancy work in relation to the property. On 9 March 2017, Mr Nicholas Passlow, director and principal consultant – environmental risk at PRM, sent an email to Mr Levy in relation to PRM’s proposed involvement with the property. Mr Passlow said:

As discussed, PRM involvement will be as follows:

• Review of reports provided for source sites.

• Confirmation inspection of each source site.

• Collection of samples if required.

• Communication to gate-keeper of relevant information from source site inspections.

• Weekly inspection of receiving site, collection of progress photos and discussion with gate-keeper.

• Compilation of all data into final Filling Overview Report including a comprehensive photograph log.

  1. The task of reviewing “reports provided for source sites” refers to waste classification reports prepared by the environmental consultants engaged by the source sites (waste classification reports), in this case, EI Australia Pty Ltd (EI Australia), engaged by Ace Demolition in relation to the Wolli Creek site and the Zetland site. Under the construction deed, Ozzy Earthmovers was required to ensure that the source sites, or the environmental consultants on behalf of the source sites, had issued a waste classification certificate verifying the classification of the waste type of the material leaving the source site and entering the property, such classification being undertaken in accordance with the waste classification guidelines.

  2. In relation to the Wolli Creek site, on 2 March 2017, Mr Tony Guirguis, environmental consultant at EI Australia, provided a waste classification certificate of the same date to Mr Allam and the defendant relating to approximately 250m3 or 400 tonnes of material. The material from the Wolli Creek site, described as “Stockpiled material (SP5) resultant of excavations on the western portion of the [Wolli Creek] site”, was classified as ENM. Under “Classification Comments”, the waste classification certificate said (emphasis in original):

The material delivered must be consistent with the description given in the Material Characterisation section, above.

The Waste Management Facility must satisfy itself that it is appropriately licensed to receive the material described in this certificate, Table 1 and attachments.

The waste must be removed from the site and disposed to a facility to accept this type of waste, in accordance with the NSW Waste Regulation 2014.

This Classification is only applicable to SP5 and not applicable to any other material present at the site.

  1. However, it was an agreed fact that 52 loads (approximately 1,560 tonnes) of material described as “ENM” were brought to the property from the Wolli Creek site. This exceeded the 400 tonnes of material the subject of the waste classification certificate in relation to the Wolli Creek site.

  2. In relation to the Zetland site, material was brought to the property in two different periods: between 10 March 2017 and 29 March 2017 (the first Zetland period), and between 9 June 2017 and 28 August 2017 (the second Zetland period).

  3. As to the first Zetland period, on 7 March 2017 Mr Allam of Ace Demolition sent an email to the defendant attaching a waste classification certificate prepared by EI Australia and dated 23 February 2017. The volume of material from the Zetland site, described as “Stockpile (SP2), locate[d] in eastern portion of the site”, was in the amount of 2,000m3 or 3,600 tonnes, and was classified as ENM. The “Classification Comments” were in the same terms as those set out above in relation to the Wolli Creek site.

  4. As to the second Zetland period, on 26 May 2017 Mr Guirguis provided a waste classification certificate of the same date to Mr Allam and to the defendant. The source material of the waste classification certificate had an approximate volume of 875m3 or 1,400 tonnes, and was described as “recovered aggregate materials stockpiled (SP20), resultant of material excavation on the eastern portion of the [Zetland] site”. The following comment was noted on the waste classification certificate (emphasis in original): “Material IS suitable for use in accordance with the resource recovery order and exemption (EPA, 2014)”.

  5. There were two further waste classification certificates in evidence in relation to the Zetland site which Mr Allam provided to the defendant on 15 August 2017:

  1. A waste classification certificate prepared by EI Australia and dated 18 May 2017, identifying the “sampling date” as 11 July 2017. The material the subject of the waste classification certificate was described as “stockpiled aggregate material (SP42) resultant of excavations on the eastern portion of the [Zetland] site” in the volume of 4,000 tonnes. The material was classified as recovered aggregate.

  2. A waste classification certificate prepared by EI Australia and dated 11 August 2017 in relation to material described as “stockpiled materials (SP43), resulting from excavations in the eastern portion of the site” in the volume of 2,200m3 or 3,960 tonnes. The material was classified as ENM.

  1. It was an agreed fact that 236 loads (that is, approximately 7,080 tonnes on the assumption that each truck carried 30 tonnes) of material described as “ENM” and 1,039 loads (similarly, approximately 31,170 tonnes) of material described as “recovered aggregate” were received at the property from the Zetland site between 10 March 2017 and 28 August 2017, exceeding the amounts specified in the waste classification certificates for the first and second Zetland periods.

Mr Miller’s observations in relation to suspected asbestos in fill imported to the property from the Zetland site

  1. According to a diary entry of the defendant, on or around 6 March 2017, the defendant visited the Zetland site “to inspect fill material” for Ace Demolition.

  2. On 10 March 2017, truck loads of material from the Zetland site commenced being transported to the property. As the first few loads arrived, Mr Miller expressed his concern to the defendant that he could see bricks and tiles in the material coming from the Zetland site. Mr Miller said words to the effect of, “we’re getting rubbish”. Mr Miller recalled the defendant replying in words to the effect of, “No, no, no…It’s all okay, it comes in the classification of ENM”.

  3. Later that day, on 10 March 2017, Mr Miller observed material that he suspected to be asbestos in a load delivered to the property by Ace Demolition from the Zetland site. Mr Miller told the defendant about the suspect material. The defendant responded with words to the effect of:

Look, don’t worry about that. It doesn’t matter what you bring in that you would always find a little bit of perhaps Asbestos because it’s coming from an old site and this particular site had a lot of Asbestos on it, so you will always find a piece of Asbestos at some stage during the material coming in.

  1. On 11 March 2017, Mr Miller observed a further piece of suspected asbestos in material delivered from the Zetland site. Mr Miller put a sample of the suspected asbestos in a plastic bag which he later provided to the EPA, and which was subsequently analysed and tested positive for asbestos.

  2. On either 11 or 12 March 2017, Mr Miller, Mr Levy and the defendant held a meeting in the garage on the property. The defendant said to Mr Miller words to the effect of: “[y]our role is to do what I tell you, look after the trucks and do the paperwork. I’ve had complaints that you’ve been getting in the way and trying to listen to my conversations.”

  3. Mr Levy also said to Mr Miller words to the effect of: “your role is [sic] look after all of the paperwork and keep an eye on what is coming in to make sure that it is material according to the DA. But in the end Paul is in charge of the site, so if anyone comes on [sic] from Council then they should speak to Paul.”

Inspections of the property by Progressive Risk Management

  1. On 13 March 2017, Mr Brown and Mr Passlow of PRM attended the property, and met with Mr Levy and Mr Miller. Mr Passlow observed some stockpiled material which appeared to contain a high concentration of building rubble, and not to reconcile with information in the waste classification reports that had been provided to him by Mr Levy. Mr Levy and Mr Miller told Mr Passlow that no fill materials had, at that stage, yet been imported to the property, and that they were in the process of obtaining an exemption from the EPA for material coming to the site.

  2. On 16 March 2017, Mr Brown inspected the Wolli Creek site and the Zetland site. Prior to his inspections, Mr Brown was provided with the waste classification certificate dated 2 March 2017 in relation to the Wolli Creek site (see above at [76]) and the waste classification certificate dated 23 February 2017 in relation to the Zetland site (see above at [79]). The certificates which indicated that approximately 400 tonnes of material from the Wolli Creek site and 3,600 tonnes of material from the Zetland site was classified as ENM.

  3. Upon his inspection at the Wolli Creek site, Mr Brown observed a stockpile of material with two soil profiles: an upper profile consisting of black sands and rubble, and a lower profile consisting of grey/white sands. Mr Brown considered the lower soil profile to be suitable to import to the property, but that the upper soil profile was not suitable.

  4. Upon his inspection at the Zetland site, Mr Brown observed excavated material being processed through sieves and screening machinery. Mr Brown considered the resulting processed material not to be ENM and not suitable to import to the property as he observed the presence of building rubble and what he suspected to be asbestos containing materials within the soil.

  5. On 16 March 2017, following his inspection at the Wolli Creek site and the Zetland site, Mr Brown conducted an inspection at the property with Mr Miller present. Mr Brown observed that material had been placed in one large stockpile, and what he suspected to be asbestos containing material and small fragments of building rubble including brick, terracotta, ceramic tile, glass and concrete in the material. Mr Brown considered that the stockpiled material was not ENM, and he observed that the material was very similar in appearance to the material he had seen at the Zetland site. Mr Brown also observed three pieces of what he suspected to be asbestos containing material on the ground near the turning circle.

  6. Mr Miller informed Mr Brown that the material he had observed at the property had been delivered from the Zetland site, and that approximately 20 truckloads of material had been delivered to the property from the Zetland site. Mr Brown expressed to Mr Miller his “major concerns” that he had observed asbestos containing material at the property, and that the material was not compliant with VENM or ENM. Mr Miller said to Mr Brown that it was a “one-off incident” caused by a truck from the Zetland site, and that he had already organised for the material to be reloaded on the truck and transported off the property. Mr Miller also advised Mr Brown that “we have the exemption from the EPA, which allows the importation of minor rubble within the soil”, and that he would send such an exemption and the development consent to Mr Brown by email. Mr Brown “strongly suggest[ed]” that Mr Miller “cease importation of all material from the Zetland [site] immediately”.

  7. On 17 March 2017, Mr Passlow sent an email to Mr Levy and Mr Miller outlining the result of Mr Brown’s inspections on 16 March 2017. In his email, Mr Passlow provided the following summary:

• Based upon the results of the visual inspections, material not represented by the provided certificates has been deposited at your site. Currently the extent of chemical and asbestos contamination of this material is not known. This material is not considered to comply with the conditions of your DA.

• If council or the EPA were to inspect your site immediately, they would issue a cleanup notice as well as potentially rescind your DA.

  1. On 21 March 2017, Mr Miller sent an email to Mr Passlow, stating that Mr Brown had inspected the property after an extensive and consistent series of rain events, and that on 13 March 2017 Mr Miller had identified and removed from the property three pieces of suspected asbestos from a truckload.

  2. On 27 March 2017, Mr Brown conducted a further inspection of the property, with Mr Miller present. Mr Brown again observed in the stockpile what he suspected to be asbestos containing material. On this occasion, Mr Miller told Mr Brown that the defendant had organised an “EPA exemption” to import building rubble onto the site.

  3. On 30 March 2017, Mr Brown sent an email to Mr Miller, copied to Mr Levy, containing a link to the NSW EPA website with information on how to apply for an environment protection licence.

  4. On 13 June 2017, Mr Brown conducted a further inspection of the property, and spoke to Mr Miller and the defendant. Mr Brown again expressed his concern about the suspected asbestos containing material and the amount of rubble in the stockpiled material. On that occasion, the defendant told Mr Brown that he had “organised an exemption from the EPA to receive material with a high rubble content”.

  5. Mr Brown deposed that he never received a copy of any such EPA exemption.

  6. In September 2017, PRM withdrew its services from Mr Levy and Mr Miller for the reason that it had become apparent to Mr Passlow and Mr Brown after 13 June 2017 that Mr Levy and Mr Miller were not acting in accordance with PRM’s advice.

Application to the EPA for a resource recovery order and resource recovery exemption

  1. On or about 28 March 2017, Ms Aisling Carroll, Waste and Resource Recovery at the prosecutor, received an email from “[email protected]” with the subject line “Resource Recovery Exemption”. Mr Guirguis of EI Australia was also copied into the email. That email said:

I spoke to you a few weeks ago regarding our landform modification project in Arcadia. It’s a little while getting the required information for the application but finally it’s done!

I have attached the application for your perusal and assessment.

Tony, our environmental consultants details are on the application so feel free to contact should you require clarification. And of course you can call me directly on …

We have commenced the early works and land clearing and with that in mind your earliest attention would be much appreciated.

  1. Attached to the email was the exemption request letter of 23 March 2017, addressed to Ms Carroll with the subject line “RE: Application for a Resource Recovery Exemption Lot 1 DP239444, Geelans Road, Arcadia, NSW”. The email was signed off by Paul Mouawad “[f]or and on behalf of Ozzy Earthmovers Pty Ltd”. The letter said:

2. Background Information

Ozzy Earthmovers Pty Ltd is the nominated civil contractor on behalf of the site owner (Mr David Levy and Mrs Maria Levy of Arcadia Holdings) to modify the landform of the site as approved by The Council of the Shire of Hornsby under DA/1373/2014. The development involves the construction [sic] a horse arena and stables. I have attached a copy (Appendix B) of the Development Consent including the Construction and Environmental Management Plan which formed part of the council issued Construction Certificate for your reference.

The civil works will require the importation of an estimated quantity of suitable fill material of approximately 120,000m3. The majority of the required fill will not require specific geotechnical properties (eg. Compactable clays) and can include sands, gravels, clays, rock or a combination of these. Foreign inclusions such as brick and concrete would form characteristics of the type of soil suitable to be imported for the purpose of backfill.

The fill material is required to be sourced largely from various excavation sites in Sydney. Due to the large quantity of materials required, the material will need to be assessed on a project by project basis to ensure that the chemical composition is suitable for application to the site.

3. Characterisation of the Source Material

The source material is to be characterised according to the schedule presented as Appendix A.

Assessment of the source material must be conducted by the source entity and will need to include the following:

• Property location, description and history (i.e. current and previous uses);

• Detailed description of the assessed materials including a photographic log and borehole logs (borehole logs where the assessed material is insitu);

• Methodology sampling and analysis. Analysis must be conducted by a NATA Accredited laboratory;

• Laboratory results;

• QA/QC results and discussion;

• Calculation of the average concentration, the sample standard deviation and the 95% upper confidence limit (UCL) of the average concentration for each chemical of concern per batch.

• Conclusion that the 95% UCL for the mean concentration, or highest concentration if less than 10 samples collected, is less than or equal to the limit value specified for that chemical of concern in a batch;

• Statement regarding the suitability of the material in relation to the criteria;

Source assessment certificates for each batch of source material will be required to undergo review by the environmental consultant (EI Australia) and an inspection of the source materials prior to approval of the source material for transport to the site.

…

7. Quality Assurance and Controls

Quality control will be a requirement during the soil investigation and classification phase from the source properties (as detailed above).

All Materials imported to the site will be visually assessed by Ozzy Earthmovers Pty Ltd during unloading to ensure the characteristics of the material as received are consistent with those identified in the source assessment certificate. Additionally, all materials imported to the site will be logged and recorded for each and every individual load with truck trucking [sic] dockets issued to the drivers.

Any materials which fail the visual assessment will be held separately onsite and bunded. No further materials from a source property will be allowed onsite until verification by the site environmental consultant. Where the site environmental consultant identifies the materials to be unsuitable the materials will be reloaded for transport back to the source property.

  1. On 12 April 2017, Ms Helen Prifti, Manager Waste Strategy and Innovation at the prosecutor, sent a letter to the defendant in response to the defendant’s application received 28 March 2017 for a resource recovery order and resource recovery exemption. Ms Prifti wrote:

Following consultation with your environmental consultant Tony Guirguis of EI Australia, the Environment Protection Authority (‘EPA’) considers that the material you propose to source may be able to be land applied under the following:

• ‘The excavated natural material order 2014’ and ‘The excavated natural material exemption 2014’; and

• ‘The ‘batch process’ recovered fined order 2014’ and ‘The ‘batch process’ recovered fines exemption 2014’.

As a result, the EPA will not be progressing your application any further, If the excavated material does not meet the requirements of the above-mentioned Orders, then the EPA would be happy to assess the material for land application as fill under a specific Order and Exemption.

  1. The prior convictions of the defendant are as follows:

  1. On 9 March 2011, the defendant, as the director of Frontier Civil Engineering Pty Ltd, was convicted in the Local Court of an offence of unlawfully transporting waste contrary to s 143(1) of the POEO Act. He was fined $15,000 and ordered to pay the prosecutor’s costs.

  2. On 19 December 2018, following a plea of guilty, the defendant was convicted in the Local Court of a principal offence of dishonestly obtaining financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), and was sentenced to a term of imprisonment of 18 months, with a non-parole period of 12 months. On appeal to the District Court, the sentence was reduced to an intensive correction order of 15 months. The defendant was ordered to perform 280 hours of community service work and pay compensation to Peter O'Brien Constructions in the sum of $225,056.

  3. On 26 February 2021, the defendant was convicted, following a plea of guilty, to two offences of knowingly supplying false and misleading information about waste contrary to s 144AA(2) of the POEO Act. [64] The Court made an intensive correction order pursuant to s 7(1) of the CSP Act, directing that the sentence be served by way of intensive correction in the community, and ordered 250 hours of community service work. [65]

    64. Environment Protection Authority v Mouawad (No 3) [2021] NSWLEC 16 (Pain J) (Mouawad No 3) at [6(1)-(2)].

    65. Mouawad No 3 at [6(3)-(6)].

  1. I find that the defendant’s previous criminal offending was characterised by:

  1. carrying out demolition, excavation and waste transportation activities in the course of his employment; and

  2. the transport and disposal of asbestos waste.

  1. The defendant’s criminal history is an aggravating matter denying the defendant the ability to rely on any assertion of good character.

Offences committed without regard for public safety: s 21A(2)(i) of the CSP Act

  1. The prosecutor submitted that the offences were committed without regard for public safety which is an aggravating factor to be taken into account in determining the appropriate sentence for an offence pursuant to s 21A(2)(i) of the CSP Act. Whilst accepting that some steps were taken to obtain waste classification certificates for the imported fill, I find that the defendant was on notice of the real prospect that asbestos containing materials had been and were continuing to be imported into a rural-residential neighbourhood. But he did not take steps to cease this by halting deliveries from, at least, the Zetland site.

  2. The prosecutor submitted that if I take into account that it was foreseeable that the offences would be likely to cause environmental harm, I should take care to avoid double-counting as likely harm to the environment includes public safety. [66] I accept that submission, and have taken care to avoid double counting.

    66. Environment Protection Authority v Aargus Pty Ltd [2013] NSWLEC 19 at [93] (Craig J).

The offences were committed for financial gain: s 21A(2)(o) of the CSP Act

  1. The prosecutor submitted that the Court should find that the offences were committed for financial gain. I have considered that submission above at [193]-[194], and have so found, beyond reasonable doubt.

The offences were part of a planned or organised criminal activity: s 21A(2)(n) of the CSP Act

  1. The prosecutor submitted that the ss 142A and 143(1) offences, involving the transportation and deposit over a period of approximately 7 months of 1,399 loads of waste materials to and at the property (see above at [60]), a site not licensed under the POEO Act for waste disposal/storage but which operated under the Arcadia Landfill business name, was part of a planned criminal activity. [67]

    67. CSP Act s 21A(2)(n).

  2. I find, beyond reasonable doubt, that the significant level of organisation, planning and preparation for the offences by the defendant are established by the registration of the business name Arcadia Landfill on 28 March 2017, and the defendant’s exchanges with Mr and Mrs Levy and with source sites in the charge period (as to examples of which see above at [65]-[67]) around procuring fill and organising payments for fill. I find that the offences committed over the charge period, even by one person (the defendant), involved sufficient repetition and system to lead to the conclusion that they were organised within the meaning of s 21A(2)(n). [68]

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

68. NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 at [72], [76] (Campbell J).

  1. The defendant showed no expression of remorse for his offending, within the meaning of s 21A(3)(i) of the CSP Act, or at all. He gave no evidence that he has accepted responsibility for his actions (s 21A(3)(i)(1)), or acknowledged any injury, loss or damage caused by his actions or made reparation for such injury, loss or damage (or both) (s 21A(3)(i)(2)).

  2. I cannot accept anything in the evidence or submissions advanced by the defendant as an expression of remorse for his criminality. The effect of his oral evidence was that others were responsible for validating the fill imported to the property. [69]

    69. For example, T43.21-T43.29; T44.10-T44.11; T46.11-T46.18; T50.14-T50.19; TS0.21-46 and T51.45-T51.50.

  3. The statement in Exhibit E that “I do not accept that it is acceptable to contaminate land, commit an offence” was cast in general terms. That statement does not amount to an expression of contrition for the effect of his acts on the environment and the community. The defendant’s repeated attempts in Exhibit E to attribute responsibility for the filling activities to other persons is inconsistent with an acceptance of responsibility for his actions.

Plea of guilty: ss 21A(3)(k), 22 of the CSP Act

  1. In determining a penalty for the offences committed by the defendant, I take into account that the defendant pleaded guilty (s 21A(3)(k), s 22(1)(a)), when the defendant pleaded guilty (s 22(1)(b)), and the circumstances in which the indicated an intention to plead guilty (s 22(1)(c)).

  2. I may impose a lesser penalty on account of the plea than I would otherwise have imposed: s 22. However, a lesser penalty imposed due to a guilty plea must not be unreasonably disproportionate to the nature and circumstances of the offence: s 22A(1).

  3. The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of a 10 to 25 per cent discount on sentence. The primary consideration in determining where in the range a particular case should fall is the timing of the plea. A discount at the top of the range would be expected to be restricted to pleas entered at the earliest possible opportunity. A discount towards the bottom of the range is appropriate for late pleas, such as those entered on the date fixed for trial. In some cases, no discount is appropriate at all. [70]

    70. R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at 419 [160] (Spigelman CJ, Wood CJ at CL, Foster AJA and Grove and James JJ agreeing).

  4. These proceedings were commenced on 28 August 2018, listed for first mention on 5 October 2018, and adjourned on at least eight occasions over the course of 2018 to 2020, including to enable the defendant to obtain legal representation. As at the date of the sentencing hearing before me, the defendant had been represented by three different firms, and unrepresented. The lengthy procedural history of the matter is recorded in the affidavit of Ryan Verzosa affirmed 4 April 2023, parts of which are outlined by me in Environment Protection Authority v Mouawad (also known as Boulos Isaac) (No 2). [71]

    71. [2023] NSWLEC 38 at [9]-[34] (Pritchard J).

  5. The prosecutor submitted that the Court should take the following circumstances into account in considering any plea discount:

  1. that the defendant pleaded not guilty to the offences on 23 November 2018;

  2. that the defendant resisted making key concessions as to factual matters in the amended s 247K notice served by his then legal representatives on 21 December 2020;

  3. that the defendant applied for an adjournment of the trial set down for hearing between 25 October and 19 November 2021;

  4. that the defendant resisted a notice of motion filed by the prosecutor on 29 April 2022 to rely on certain additional evidence, which application was granted by Moore J in September 2022;

  5. that the defendant, by notice of motion filed by his wife as his agent on 3 April 2023, sought to have the trial dates set down for 26 April 2023 to 25 May 2023 vacated on fitness grounds; and

  6. that the defendant pleaded guilty to the two offences here charged on 26 April 2023, the first day of a four-week trial which had been listed for hearing in September 2022. At that point in time, the proceedings had been on foot for over four and a half years, significant time had been expended in preparation of a court book for the hearing, significant monetary and environmental expense incurred in printing documents, lengthy written submissions prepared and served by the prosecutor, and the prosecutor had prepared for the hearing.

  1. I find that while the guilty pleas entered on 26 April 2023, the first day of a four-week trial listed for hearing in September 2022 to commence on 26 April 2023, avoided the need for a four-week trial, the pleas are of limited utilitarian value. I consider relevant the Court’s decision in Mouawad (No 2), where Mr Mouawad entered guilty pleas almost eight months after the proceedings were commenced, and sought leave to reverse his pleas over a period of nine months, thereby requiring the preparation of evidence and written submissions and a full day’s hearing. Pain J found at [48] that Mr Mouawad’s pleas had “minimal utilitarian value”.

  2. Having regard to the circumstances identified by the prosecutor set out at [227] above, I apply a discount of 10 percent for the pleas of guilty entered by the defendant on the first day of the hearing in relation to sentence for the offences here.

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

  1. There was no evidence, nor any submission, that the defendant provided any assistance to the prosecutor in its investigations.

Not likely to reoffend: s 21A(3)(g) of the CSP Act

  1. Having regard to the defendant’s previous criminal offending (see above at [212]), including his convictions for offences of dishonesty, and the evidence given by him at the sentencing hearing before me which I have found not to be credible, I find that the defendant has displayed a continuing attitude of disobedience to the law and that he has a propensity to reoffend. This indicates that more severe penalties should be imposed. [72]

    72. For example, Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 at [141] (Robson J), citing Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen No 2) at 477 (Mason CJ Brennan, Dawson, Toohey JJ).

  2. The defendant’s antecedent criminal history is relevant to whether the instant offences are an uncharacteristic aberration or whether the defendant has manifested in his commission of the instant offences a continuing attitude of disobedience of the law. In this case, retribution, deterrence and protection of society indicate that more severe penalties are warranted. [73]

Principles of sentencing to be considered

73. Veen (No 2) at 477 (Mason CJ Brennan, Dawson, Toohey JJ).

Proportionality

  1. Neither the prosecutor nor the defendant made any submission in relation to proportionality, Nonetheless, I have had regard to the principle of proportionality in determining appropriate penalties for the two offences here. It is a fundamental principle of sentencing that the sentence should not exceed what is proportionate to the gravity of the offence, having regard to its objective circumstances. I have considered this principle in arriving at the sentence to be imposed for the two offences here. [74]

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

74. Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68 at [157] (Pritchard J).

  1. The penalties to be imposed should serve the function of both general and specific deterrence. Section 3A(b) of the CSP Act identifies as a purpose of sentencing “(b) to prevent crime by deterring the offender and other persons from committing similar offences”.

  2. The prosecutor submitted that consistent with s 3A(b) of the CSP Act, the sentence imposed by the Court for the defendant’s offences here must serve as a general deterrent. In relation to environmental offences, general deterrence is of some primacy. [75] Persons will not be deterred from committing environmental offences by only nominal fines. [76]

    75. See Environment Protection Authority v P&M Quality Small Goods Pty Ltd [2017] NSWLEC 89 at [87] (Robson J), citing Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349; [2006] NSWLEC 47 at [71]-[81] (Preston CJ); Gittany Constructions Pty Limited v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [103]-[104] (Preston CJ); Burwood Council v Erector Group Pty Ltd; Burwood Council v Liverpool Developing Pty Ltd [2017] NSWLEC 20 at [67]-[69] (Preston CJ). See also Environment Protection Authority v Grafil Pty Ltd (2002) 254 LGERA 76; [2022] NSWCCA 268 at [104]-[109] (Bellew J, Gleeson JA and Hamill J agreeing).

    76. Bentley at [139]-[141], [150]-[151] (Preston CJ).

  3. As Pain J said in Environment Protection Authority v Smart Skip Pty Ltd [77] at [35] in relation to an offence against s 144 of the POEO Act: “[g]iven the importance of enforcing the regulatory regime for the management of waste by those operating waste facilities for profit, general deterrence is an important consideration. A nominal fine will not be sufficient”.

    77. [2009] NSWLEC 204 (Pain J).

  4. In BCC v Hanna, Preston CJ said at [152] in relation to the need for general deterrence:

…the sentence of the court needs to be of such a magnitude as to change the economic calculus of persons in determining whether to comply with or contravene environmental laws. It should not be cheaper to offend than prevent the commission of the offence. Environmental crime will remain profitable until the financial cost to offenders outweighs the likely gains by offending. The amount of any fine needs to be such as will make it worthwhile to incur the costs of complying with the law and undertaking the necessary precautions. The amount of the fine must be substantial enough so as not to appear as a mere licence fee for illegal activity.

  1. In Environment Protection Authority v Robinson, Lloyd J observed that “a penalty for a breach must be sufficient to compel attention to the environmental issues to ensure that the defendant, and others, are encouraged to comply with the law and that the environment is not exposed to risk of harm”. [78]

    78. [2004] NSWLEC 629 at [30] (Lloyd J) (Robinson).

  2. I accept the prosecutor’s submission that the sentence to be imposed here should “reflect the strong need for general deterrence”.

  3. As to specific deterrence, in Robinson [79] Lloyd J said at [31] that “[s]pecific deterrence aims to deter the offender from repeating the environmental offence that has been committed”.

    79. Robinson at [31].

  4. As recorded in the fitness judgment of Duggan J at [20], the defendant continues to work as a heavy machine operator. The prosecutor submitted that the evidence reveals, and I find beyond reasonable doubt, that the defendant is presently involved in the excavation and piling of fill with Dynamic Dwellings Earthworx. He is a shareholder of that company, and his mobile number is given as a contact point on the company’s Instagram page.

  5. There is an important role for specific deterrence in the fixing of appropriate penalties for the two offences here. This is particularly so in light of the defendant’s previous offending, and that he has a conviction for a previous offence against s 143 of the POEO Act (see above at [212(1)]).

Even-handedness and consistency in sentencing

  1. Acknowledging that care must be taken when comparing cases as there may be many divergent facts and circumstances,[80] the prosecutor prepared a schedule of comparable cases in relation to asbestos offences under ss 142A and 143 of the POEO Act to assist the Court in achieving consistency in sentencing. [81] The prosecutor said that the presentation of such sentencing information was not intended to suggest that an appropriate range is discernible from any of these other cases, but rather to show what has been done in other (more or less) comparable cases. [82] I have considered those cases, and find the following to be of some relevance here:

    80. Axer Pty Ltd v EPA (1993) 113 LGERA 357 at 365 (Badgery-Parker J).

    81. BCC v Hanna; Abbas; Afram; Mouawad v The Hills Shire Council; Laison; Foxman (No 2); Hurstville City Council v Romanous Constructions Pty Ltd; Hurstville City Council v Romanous Contractors Pty Ltd [2016] NSWLEC 24 (Pain J); Hills Shire Council v Suciu (No 3) [2009] NSWLEC 192 (Pepper J); Environment Protection Authority v Hanna [2010] NSWLEC 98 (Craig J) (EPA v Hanna 2010); The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd & Kinnarney (No 2) [2012] NSWLEC 95 (Biscoe J); Environment Protection Authority v Ashmore [2014] NSWLEC 136 (Craig J); Environment Protection Authority v Alcobell Pty Ltd; Environment Protection Authority v Campbell [2015] NSWLEC 123 (Pain J).

    82. Barbaro v the Queen (2014) 253 CLR 58; [2014] HCA 2 at [39] (French CJ, Hayne, Kiefel and Bell JJ).

  1. In BCC v Hanna, the defendant pleaded guilty to two charges against s 142A and two charges against s 143 of the POEO Act for transporting and depositing approximately 90 tonnes of waste containing asbestos to two sites. Preston CJ found that the defendant committed the offences deliberately, to save incurring the expense of paying a tipping fee. [83] His Honour determined the offences to be of “medium” objective seriousness. [84] The defendant was fined $88,000 for the two offences against s 142A and $137,000 for the two offences against s 143, calculated after applying the totality principle and a discount of 25 percent for an early guilty plea.

    83. BCC v Hanna at [72], [81].

    84. BCC v Hanna at [91].

  2. In Abbas, the defendant pleaded guilty to one charge each against ss 142A, 143 and 144 of the POEO Act for transporting approximately 21,990 tonnes of waste containing asbestos and general rubbish. Pain J accepted the defendant’s reasons for committing the offence, and found that while the defendant was careless in not paying greater attention to the content and volume of fill delivered, the offence was not committed recklessly or negligently. [85] Her Honour considered the offences to be in the “low-to-mid range of the medium range of objective seriousness”. [86] The defendant was fined $10,000 for the offence against s 142A, $60,000 for the offence against s 143, and $30,000 for the offence against s 144, calculated after applying the totality principle and a 15 percent discount for an early guilty plea.

  3. In Afram, the defendant pleaded guilty to one charge against s 142A and three charges against s 144AA of the POEO Act in relation to the pollution of a site with 4,050 tonnes of waste. In relation to the offence against s 142A, Pain J found that the defendant had complete control over the activity which resulted in the offence, the offence was avoidable, the defendant obtained substantial financial benefit as a result of the offence, and the offence was part of a planned criminal activity. [87] Her Honour considered the offence against s 142A to be in the “middle of the high range” of objective seriousness. [88] The defendant was fined $127,500 for the offence against s 142A, calculated after applying a 25 percent discount for an early guilty plea.

  4. In Environment Protection Authority v Hanna,[89] the defendant pleaded guilty to four charges against 143 of the POEO Act for transporting 4 truck loads of asbestos waste, estimated to weigh 6-7 tonnes each, to 4 sites. Craig J found that the offences were “premeditated and intentionally done with knowledge of its illegality”. [90] His Honour regarded the offences to be closer to medium rather than low objective gravity. [91] The defendant was fined $32,000 for the first charge, $16,000 for the second charge, $32,000 for the third charge and $24,000 for the fourth charge, calculated after applying the totality principle and a 15 per cent discount for the defendant’s guilty pleas.

  1. In Mouawad v The Hills Shire Council, the defendant (the same defendant in the present case) and his wife were each found guilty of an offence against s 143 of the POEO Act for transporting between 5 to 7 truck loads of waste containing soil, clay, rock, and construction and demolition rubble, including bricks, plastic, concrete, glass, and asbestos. Pepper J found that the harm occasioned to the environment by the commission of the offences was at the lower end of the scale, as the majority of the material deposited was ENM. [92] Her Honour also found that there was no evidence to suggest that either of the defendants was aware that material other than clean topsoil would be taken. Her Honour considered that the offences were of low objective seriousness. [93] The defendant was fined $15,000 and his wife was fined $9,000.

  2. In Foxman (No 2), there were three defendants, two of which were companies. The individual defendant Mr Foxman was found guilty of two offences against s 143 and one offence against s 144 of the POEO Act for transporting approximately 15,900 tonnes of construction and demolition waste containing asbestos. Sheahan J considered the combined objective seriousness of all the offences, in terms of the harm occasioned to the environment and to the regulatory system, to be moderate to high. [94] His Honour considered that the major burden of the sentence should fall on Mr Foxman, “the author and chief manager of the scheme”. [95] Mr Foxman was fined $75,000 for each of the offences against s 143, and $100,000 for the offence against s 144, calculated after applying the totality principle.

    85. Abbas at [51]-[52].

    86. Abbas at [97].

    87. Afram at [97].

    88. Afram at [101].

    89. EPA v Hanna 2010.

    90. EPA v Hanna 2010 at [48].

    91. EPA v Hanna 2010 at [55].

    92. Mouawad v The Hills Shire Council at [170].

    93. Mouawad v The Hills Shire Council at [181].

    94. Foxman (No 2) at [82].

    95. Foxman (No 2) at [121].

Totality

  1. In accordance with the totality principle, where, as here, the Court sentences a defendant for more than one offence, the aggregate or overall sentence must be “just and appropriate” and reflect the total criminality before the Court. [96] In the case of a sentence for a fine, if the court considers that the totality principle requires an adjustment to individual fines that would otherwise be appropriate, the amount of each fine can be altered. [97]

    96. BCC v Hanna at [163] (Preston CJ); Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70 at [8] (Wilson, Deane, Dawson, Toohey and Gaudron JJ); Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242; at [196] (Preston CJ); Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40] (McHugh, Hayne and Callinan JJ); Water NSW v Barlow (2019) 244 LGERA 1; [2019] NSWLEC 30 (Barlow) at [111] (Preston CJ).

    97. BCC v Hanna at [163] (Preston CJ), citing EPA v Barnes [2006] NSWCCA 246 at [50] (Kirby J, Mason P and Hoeben JJ agreeing).

  2. The prosecutor accepted that the totality principle has some application with respect to the offences here in contravention of ss 142A(1) and 143(1) of the POEO Act because of the common underlying factual substratum. However, the prosecutor submitted that the criminality involved in the two offences was not conterminous; rather, the offence under s 143(1) is a conduct offence, while the offence under s 142A is a result offence involving the additional element of land degradation or the placed pollutant being of a prescribed nature. Accordingly, the prosecutor submitted that the totality principle ought be applied on the basis that there is some, but not an extensive degree of overlap. [98] I accept that submission, having regard to the circumstances of the s 143(1) offence, as charged, concerning only the transportation of waste.

    98. For example, BCC v Hanna at [168]-[172] (Preston CJ).

  3. In accordance with the totality principle, I have considered the appropriate sentence for each offence and reviewed the aggregate to ensure that it reflects the total criminality of the defendant. [99]

Means of the defendant (s 6 Fines Act 1996 (NSW))

99. Barlow at [111] (Preston CJ).

  1. Pursuant to s 6 of the Fines Act 1996 (NSW) (Fines Act), 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.

  2. The defendant submitted that his “lack of funds” contributed to his decision to accept the plea deal. Accordingly, in fixing the amount of fines for the offences here, I have little basis upon which to consider the means of the defendant.

The appropriate penalty to be imposed

  1. Synthesising the relevant objective and subjective circumstances of the offences and the offender, the relevant purposes of sentencing here the need for general and specific deterrence, the timing of the pleas, the absence of any evidence of assistance provided to the prosecutor in its investigations, my findings in relation to credit and contrition, the maximum penalty now set by Parliament in the case of an individual ($250,000 for each of the offences), the check or yardstick provided by the cases in this Court referred to at [243] above, my finding of recklessness in relation to the s 142A offence, and my finding that the s 143(1) offence, as charged, is a “conduct” offence as opposed to s 142A(1), as charged, being a “result” offence, I consider that the appropriate monetary penalty:

  1. for the offence against s 142A(1) of the POEO Act to be $150,000;

  2. for the offence against s 143(1) of the POEO Act to be $150,000.

  1. These amounts should be discounted for the utilitarian value of the pleas of guilty by 10 percent.

  2. This results in a monetary penalty:

  1. for the offence against s 142A(1), in the amount of $135,000;

  2. for the offence against s 143(1), in the amount of $135,000.

  1. Having regard to the totality principle, and the common underlying factual substratum of the two offences, but accepting the prosecutor’s submission that the criminality involved in each of the offences is not conterminous, I apply a further discount of 30 percent.

  2. This results in a penalty for the two offences in the amount of $94,500 for the offence against s 142A(1), and in the amount of $94,500 for the offence against s 143(1).

  3. I will make an order that 50 percent of those amounts be paid to the Environmental Trust established under the Environmental Trust Act 1998 (NSW), pursuant to s 250(1)(e) of the POEO Act, for general environment purposes, and the remaining 50 percent be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).

Payment of share of fine to prosecutor (s 122 Fines Act)

  1. The prosecutor sought an order under s 122 of the Fines Act for half of any fine ordered against the defendant to be paid to the prosecutor. Pursuant to s 122(1)(a) of the Fines Act, s 122 applies where the Act that authorises the imposition of a penalty does not make any provision for its application when recovered. The penalties for offences against ss 142A(1) and 143(1) of the POEO Act do not make provision for the application of a fine once recovered by the courts. The condition in s 122(1)(b) of the Fines Act is also satisfied as the prosecutor, the EPA, is not a police officer.

  2. The award of a moiety to a prosecutor is discretionary. [100] One circumstance justifying the making of an order for a moiety is when a prosecutor does not have an independent right to recovery of investigation costs.

    100. Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 at [157] (Moore J).

  3. In Secretary, Department of Planning and Environment v AGL Energy Limited (AGL energy),[101] Moore J made an order under s 122 of the Fines Act in Class 5 sentence proceedings for an offence against the Environmental Planning and Assessment Act 1979 (NSW). His Honour held (at [150]) that a moiety could be validly ordered when “the full suite of additional therapeutic (but not punitive) powers contained in Pt 8.3 of the POEO Act were available”, including the power to order costs and expenses of investigation. His Honour held (at [155]) that the Court might decline “to exercise a discretion to award a moiety in circumstances where a statutorily based order [to pay costs] would have achieved the same outcome”. His Honour went on to say at [158]:

158. Specifically, it seems to me that there may be a basis for a prosecutor to seek both reimbursement of investigation expenses and a moiety of a fine in circumstances where a prosecutor could demonstrate that such an additional payment might support the sustaining, on a more general basis, of environmental law enforcement activities of the prosecuting authority.

101. [2017] NSWLEC 2 (Moore J) (AGL Energy).

  1. Here, the prosecutor seeks an order under s 248 of the POEO Act for the reimbursement of specific investigation expenses only. Those expenses, it submitted, do not include the significant time spent by the prosecutor’s officers investigating the two offences and accordingly do not fully compensate the prosecutor for its expenses. A similar submission was recorded by Moore J in AGL Energy at [143]. [102]

    102. AGL Energy at [143] citing Secretary, Department of Planning and Environment v Boggabri Coal [2014] NSWLEC 154 at [62] (Preston CJ).

  2. In the circumstances here, I do not consider that an order under s 122 of the Fines Act for half of any fine ordered against the defendant to be paid to the prosecutor would represent an unjustified “windfall” for the prosecutor. I will make an order accordingly.

Costs

  1. The prosecutor also seeks an order that the defendant pay the prosecutor’s investigation costs and expenses pursuant to s 248 of the POEO Act in the amount of $33,647. Those costs and expenses relate to the following:

  2. I will make an order accordingly.

  3. The prosecutor also seeks an order for its professional costs as agreed or assessed under s 257B of the CPA.

  4. In considering the appropriate penalty, it is legitimate to take into account any associated costs order. [103] I accept the prosecutor’s submission that an order for costs is not a reason for reducing any penalty to an amount lower than that suggested by the general pattern of sentencing for the relevant offence. [104]

    103. Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 at [100] (Simpson J, Hall and Schmidt JJ agreeing).

    104. Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50] (Biscoe J).

  5. I will make an order for the prosecutor’s professional costs as agreed or assessed under s 257B of the CPA Act.

Orders

  1. I make the following orders:

  1. In proceedings 2018/260536, the defendant is convicted of the offence against s 143(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) as charged.

  2. In proceedings 2018/260542, the defendant is convicted of the offence against s 142A(1) of the POEO Act as charged.

  3. In proceedings 2018/260536, the defendant is to pay a monetary penalty in the sum of $94,500.

  4. In proceedings 2018/260542, the defendant is to pay a monetary penalty in the sum of $94,500.

  5. Pursuant to s 250(1)(e) of the POEO Act, 50 percent of the monetary penalty imposed on the defendant in Orders 3 and 4 is to be paid to the Environmental Trust established under the Environmental Trust Act 1998 (NSW).

  6. Pursuant to s 122(2) of the Fines Act 1996 (NSW), the remaining 50 percent of the monetary penalty imposed on the defendant in Orders 3 and 4 is to be paid to the prosecutor.

  7. Pursuant to s 248 of the POEO Act, the defendant is to pay the prosecutor’s investigation costs of the proceedings in the amount of $33,647.

  8. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) (CPA), the defendant is to pay the prosecutor’s professional costs of the proceedings in an amount as agreed or assessed under s 257G of the CPA.

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Endnotes


Amendments

21 July 2023 - Table at [260] missing in upload reinserted.

Decision last updated: 21 July 2023

Most Recent Citation
Cases Cited

81

Statutory Material Cited

5

Aland B & W Pty Ltd v Blacktown City Council [2023] NSWLEC 13
Bankstown City Council v Hanna [2014] NSWLEC 152
Bankstown City Council v Hanna [2014] NSWLEC 152