Environment Protection Authority v Mouawad (No 3)

[2021] NSWLEC 16

Land and Environment Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

5 February 2021

Date of orders:

26 February 2021

Decision date:

26 February 2021

Jurisdiction:

Class 5

Before:

Pain J

Decision:

See [6] of judgment

Catchwords:

PROSECUTION – finalisation of sentence for two offences of knowingly supply false and misleading information about waste contrary to s 144AA(2) of the Protection of the Environment Operations Act 1997 – intensive correction order made in lieu of terms of imprisonment – community service work condition imposed – publication order made – order that prosecutor’s costs paid by defendant made

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 7, 53A, 69, 73, 73A

Crimes (Sentencing Procedure) Regulation 2017 reg 14

Criminal Procedure Act 1986 (NSW) s 257B

Protection of the Environment Operations Act 1997 (NSW) ss 144AA, 250

Cases Cited:

Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) [2020] NSWLEC 166

Category:

Sentence

Parties:

Environment Protection Authority (Prosecutor)
Paul Mouawad (Defendant)

Representation:

COUNSEL:
J Caldwell (Prosecutor)
P Lange and AJ Karim (Defendant)

SOLICITORS:
NSW Environment Protection Authority (Prosecutor)
Karim Nicol Lawyers (Defendant)

File Number(s):

18/104770 and 18/104772

Judgment

1. In Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) [2020] NSWLEC 166 (Mouawad No 2) I considered the appropriate sentence for the Defendant in relation to two waste offences. As identified at [75] I found that a concurrent custodial sentence of 12 months or suitable alternative was warranted by the circumstances of the offences. It is necessary to convict Mr Mouawad of the two offences and impose penalties and other orders.

2. An assessment by the Parramatta Community Corrections Office was obtained to inform my decision of whether the sentence should be served by way of an intensive correction order (ICO) pursuant to s 69(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act). The assessment dated 27 January 2021 stated that Mr Mouawad was assessed as at a Low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).

3. The report otherwise stated:

…

Supervision plan

Due to Mr Mouawad’s Tier 1 Low risk of reoffending, if the court makes a supervised order, Community Corrections will suspend Mr Mouawad’s supervision in accordance with clause 189I of the Crimes (Administration of Sentences) Regulation 2014.

Mr Mouawad should telephone the Parramatta Community Corrections Office within 7 days to receive instructions about their obligations while supervision is suspended.

Community Corrections may activate supervision if Mr Mouawad is rearrested, information is received that his risk of reoffending has increased, or he breaches the suspension obligations.

Recommended order conditions

Community Corrections considers that no conditions other than a supervision condition are required to implement the supervision plan above.

Community service assessment

Community Corrections has assessed Mr Mouawad as suitable to undertake community service work. Community Corrections can provide the equivalent of up to 21 hours of work per month.

If a community service work condition is made, Mr Mouawad should telephone the Parramatta Community Corrections Office within 7 days.

4. For the purpose of s 53A(2) of the CSP Act, I impose an aggregate sentence for the two offences to be served concurrently. Separate terms of imprisonment I would have imposed are eight months for matter No 104770 of 2018 and four months for matter No 104772 of 2018, specified for the purposes of s 53A(2)(b). Mr Mouawad has been assessed as suitable for a supervised order. In light of Mr Mouawad’s personal circumstances and the above assessment I consider an ICO should be imposed in the terms required by the CSP Act and a community service work condition requiring 250 hours of community service work ordered. The standard conditions in s 73 will be imposed and an additional condition under s 73A(2)(d) imposing a community service work condition will also be imposed. Under reg 14(1)(d) of the Crimes (Sentencing Procedure) Regulation 2017 the maximum number of hours that may be imposed is 750 hours.

5. Additional orders requiring publication of a public notice and payment of the Prosecutor’s costs will also be made, as identified in Mouawad (No 2) at [78] and [79].

Order

6. The Court orders:

1. In matter No 104770 of 2018 (the Ticket List Report offence) Mr Paul Mouawad (also known as Boulos Isaac), is convicted of the offence as charged against s 144AA(2) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), in that on or about 30 June 2016 he supplied information about waste to another person in the course of dealing with the waste, being information that he knew was false or misleading in a material respect.

2. In matter No 104772 of 2018 (the Waste Disposal Dockets offence) Mr Paul Mouawad (also known as Boulos Isaac), is convicted of the offence as charged against s 144AA(2) of the POEO Act, in that on or about 7 July 2016 he supplied information about waste to another person in the course of dealing with the waste, being information that he knew was false or misleading in a material respect.

3. Pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act), Mr Mouawad is sentenced to an aggregate term of imprisonment of 12 months for the Ticket List Report offence and the Waste Disposal Dockets offence, commencing on 26 February 2021 and expiring on 26 February 2022.

4. Pursuant to s 7(1) of the CSP Act, I make an intensive correction order (ICO) directing that the sentence be served by way of intensive correction in the community.

5. Pursuant to s 73 of the CSP Act this ICO order is subject to the following standard conditions:

1. Mr Mouawad must not commit any offences;

2. Mr Mouawad must submit to supervision by the Parramatta Community Corrections District Office; and

3. Mr Mouawad must report to the Parramatta Community Corrections District Office at the times and places directed by the relevant officer.

6. Pursuant to s 73A(1) of the CSP Act this ICO is subject to the following additional conditions:

1. Mr Mouawad must perform 250 hours of community service work;

2. Mr Mouawad must not commit any offence;

3. Mr Mouawad must submit to the supervision of the Parramatta Community Corrections District Office; and

4. Mr Mouawad must report to the Parramatta Community Corrections District Office by 2pm on 5 March 2021 and receive instructions from them.

7. Pursuant to s 250(1)(a) of the POEO Act:

1. within 60 days of this order, Mr Mouawad is to place a notice in the form of Annexure A in the first 10 pages of “The Daily Telegraph” and in the first five pages of “Inside Waste” magazine, with a minimum size of 10 cm x 18 cm; and

2. within 90 days of the date of this order, Mr Mouawad is to provide to the Prosecutor a complete copy of the pages of the publications in which the notice appears.

8. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) Mr Mouawad is to pay the Prosecutor’s costs in the sum of $60,000.

9. The exhibits are returned.

**********

ANNEXURE A

Aussie Earthmovers Pty Ltd and Paul Mouawad (also known as Boulos Isaac) convicted of knowingly supplying false or misleading information about waste

Aussie Earthmovers Pty Ltd and one of its former employees, Paul Mouawad (also known as Boulos Isaac), have each been convicted in the Land and Environment Court of two offences of knowingly supplying false or misleading information about the disposal of waste contaminated with asbestos from a building site in Darlington, NSW.

In June and July 2016, Aussie Earthmovers Pty Ltd and Mr Mouawad arranged for the removal of approximately 1,400 tonnes of asbestos-contaminated soil and supplied false information, including false weighbridge disposal dockets, about where the waste had been disposed.

Aussie Earthmovers Pty Ltd and Mr Mouawad were prosecuted by the Environment Protection Authority (EPA). Aussie Earthmovers Pty Ltd was convicted of two offences, was fined $450,000 and was ordered to pay the EPA’s legal costs. Mr Mouawad was convicted of two offences, was sentenced to a term of imprisonment of 12 months to be served by way of an intensive correction in the community, was ordered to perform 250 hours of community service and was ordered to pay the EPA’s legal costs.

This notice was placed by order of the Land and Environment Court.

Decision last updated: 02 March 2021