Environment Protection Authority v Nath

[2024] NSWLEC 10

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Environment Protection Authority v Nath [2024] NSWLEC 10

Hearing dates:

5 February 2024

Date of orders:

16 February 2024

Decision date:

16 February 2024

Jurisdiction:

Class 5

Before:

Pepper J

Decision:

See orders at [145].

Catchwords:

ENVIRONMENTAL OFFENCES: breach of licence – failure to remove waste in contravention of an environmental protection licence – failure to store waste in contravention of an environmental protection licence – pleas of guilty – factors to take into account in determining sentence – whether offender committed offences recklessly – whether environmental harm – potential environmental harm – whether harm foreseeable – whether offender could take practical measures to reduce harm – whether offender had control over commission of offences – whether offender demonstrated contrition and remorse – whether offender is of good character and unlikely to reoffend – whether offences committed for financial gain – whether offences committed without regard for public safety – whether offender has capacity to pay fine – comparable cases – application of totality principle – monetary penalty imposed – moiety order – publication order – costs ordered.

Legislation Cited:

Criminal Procedure Act 1986 ss 215(1), 257B, 257G and 267(3)

Crimes (Sentencing Procedure) Act 1999 ss 3A, 17, 21A(2), 21A(3), 22 and 23

Fines Act 1996 ss 6 and 122

Protection of the Environment Operations Act 1997 ss 3, 64(1), 45, 169(1), 241(1), 241(2) and 250(1)

Cases Cited:

ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357

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

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

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

Environment Protection Authority v Albiston [2020] NSWLEC 80

Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71

Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278

Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45

Environment Protection Authority v BSV Tyre Recycling Australia Pty Ltd (Local Court proceedings numbers 2021/00245615, 2021/00245642, 2021/00245655, 2021/00245660, 2021/00245665, 2021/00245683, 2021/00245685, 2021/00245700, 2021/00245714, 2021/00245722, 2021/00245731)

Environment Protection Authority v BSV Tyre Recycling Australia Pty Ltd (Local Court proceedings number 2021/0096161-2)

Environment Protection Authority v Carbon MF Pty Ltd; Environment Protection Authority v Fair [2023] NSWLEC 120

Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58

Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90

Environment Protection Authority v Eveston (No 3) [2022] NSWLEC 128

Environment Protection Authority v Hanna [2018] NSWLEC 80

Environment Protection Authority v MA Roche Group Pty Ltd [2015] NSWLEC 29

Environment Protection Authority v Maules Creek Coal Pty Ltd [2022] NSWLEC 33

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

Environment Protection Authority v Obaid [2005] NSWLEC 171

Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 10; (2014) 206 LGERA 239

Environment Protection Authority v Richardson; Environment Protection Authority v Behnfeld [2002] NSWLEC 205

Environment Protection Authority v Ridley AgriProducts Pty Ltd [2019] NSWLEC 119

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

Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312

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

Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33

Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA

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

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

Mun v R [2015] NSWCCA 234

Natural Resources Access Regulator v Tony Thompson [2022] NSWLEC 48

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

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

R v Dodd (1991) 57 A Crim R 349

R v Nguyen [2004] NSWCCA 438

R v Nichols (1991) 57 A Crim R 391

R v Oliver (1980) 7 A Crim R 174

R v Stafrace (1997) 96 A Crim R 452

R v Sutton [2004] NSWCCA 225

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

R v Visconti [1982] 2 NSWLR 104

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

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

Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561

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

Category:

Sentence

Parties:

Environment Protection Authority (Prosecutor)
Virendra Nath (Defendant)

Representation:

Counsel:
P Zivkovic (Prosecutor)
L Sims (Defendant)

Solicitors:
Litigation Branch, Environment Protection Authority (Prosecutor)
Fishburn Watson O’Brien (Defendant)

File Number(s):

2023/100443-100446

Publication restriction:

Nil

JUDGMENT

Director Virendra Nath Pleads Guilty to Four Offences for Breach of Conditions of BSV Tyre Recycling Australia Pty Ltd’s Environmental Protection Licence

1. The defendant, Virendra Nath, has pleaded guilty to four offences against s 64(1) of the Protection of the Environment Operations Act 1997 (“the POEOA”) committed at 30 Daisy Street, Revesby (“the premises”). Nath has been charged pursuant to s 169(1) of the POEOA, in that he was a director of BSV Tyre Recycling Australia Pty Ltd (“BSV”) at the relevant times BSV held and contravened the conditions of Environmental Protection Licence no 20387 (“the EPL”).

2. A summary of the conditions of the EPL that have been breached, which comprises the four offences, is as follows:

1. on 30 March 2022 approximately 318.9 tonnes of waste tyres were stored on the premises, in contravention of condition L2.2 of the EPL (“the exceedance offence”);

2. on 30 March 2022 the height of waste tyres stored at the premises was up to approximately 4.8 m in height above ground level, in contravention of condition L2.3 of the EPL (“the height offence”);

3. on 30 March waste tyres were stored "tread up", contrary to Pt 4 of the NSW Fire Brigades Guidelines for Bulk Storage of Rubber Tyres Policy No 2 (“the Fire Brigade Policy”), in contravention of condition O4.1 of the EPL (“the tread up offence”); and

4. between 30 March and 26 July 2022, waste tyres were stored in locations on the premises which were not identified in Figure 5 in the report prepared by MRA Consulting for BSV dated December 2014 (“MRA report”), in contravention of condition O4.2 of the EPL (“the storage offence”).

The Legislative Regime Creating the Offences

3. Section 64(1) of the POEOA creates an offence of failing to comply with a condition of an EPL:

64   Failure to comply with condition

(1)   Offence If any condition of a EPL is contravened by any person, each holder of the EPL is guilty of an offence. Maximum penalty—

(a)   in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or

(b)   in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

4. Section 169(1) of the POEOA provides that an offence against that Act attracts special executive liability:

169   Liability of directors etc for offences by corporation—offences attracting special executive liability

(1)    If a corporation contravenes, whether by act or omission, a provision of this Act attracting special executive liability, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that—

(a)    (Repealed)

(b)    the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(c)    the person, if in such a position, used all due diligence to prevent the contravention by the corporation.

BSV Operates a Waste Tyre Recycling Facility

5. The factual background to the four offences was contained in a statement of agreed facts (“SOAF”). A summary of the salient facts is as follows.

Nath Was a Director at BSV at All Relevant Times

6. BSV was formed in 2013 with Nath, Haissam Hamdan, and Zhongbo Chang, as directors.

7. In 2013 BSV commenced operation of a waste tyre facility at the premises pursuant to development consent DA-843/2013. At all relevant times BSV occupied, but did not own, the premises.

8. In 2019 Chang ceased being a director of BSV. At all relevant times Nath and Hamdam remained directors of BSV.

The EPL

9. At all relevant times BSV was the holder of the EPL and Nath was aware of its conditions. The EPL authorised the carrying out of the scheduled activities of resource recovery and waste storage, both relating to waste tyres, at the premises. The operative conditions of the EPL for present purposes are as follows:

Condition L2.2: The authorised amount of waste (processed and unprocessed) permitted on the Premises cannot exceed 150 tonnes at any one time.

Condition L2.3: The maximum height of any processed or unprocessed waste tyres stored at the Premises cannot exceed 3.7 metres in height above ground level.

Condition O4.1: All waste tyres must be stored in accordance with the NSW Fire Brigades Guidelines for Bulk Storage of Rubber Tyres Policy No. 2.

Condition O4.2: All waste tyres must be stored in accordance with Figure 5 - (Site Plan showing location of tyres storage areas and facility gates) in the report compiled by MRA Consulting on Behalf of BSV dated December 2014.

10. In relation to condition O4.1, the relevant extract from the Fire Brigade Policy indicated that the storage of tyres “tread up” was not acceptable, whereas tyres stacked outdoors in a lace arrangement was.

11. In relation to condition O4.2, Figure 5 from the MRA Report is a site plan of the premises showing the permitted location of tyre storage areas and facility gas:

BSV’s Business and Operations

12. BSV’s business involved receiving waste tyres at the premises and processing them into bailed tyres, shredded tyres, and crumb rubber (“waste tyre products”). BSV dealt with its waste tyre products by:

1. exporting bailed tyres to overseas markets until the export of bailed tyre was banned;

2. exporting shredded tyres to overseas markets; and

3. selling crumb rubber to the domestic market.

13. The day-to-day management of BSV operated in this manner:

1. Nath was in charge of administration in the office and, due to the nature of his role, he would also be in the outdoor yard of the premises daily. Nath spent his time in an office at the premises and regularly communicated with the Environment Protection Authority (“EPA”) regarding compliance. Nath met every Friday with Hamdan and Peter Koufelos regarding the storage of waste tyres and waste tyre products on the premises;

2. Hamdan was in charge of logistics until he ceased to be actively involved with BSV sometime between January 2022 and July 2022. Hamdan’s role primarily consisted of sourcing waste tyres and waste tyre products and driving, or instructing others to drive, waste tyres and waste tyre products to the premises. He did not spend time in the office at the premises or perform any administrative work. Hamdan brought tyres to the premises outside of hours and on weekends and did not always weigh the tyres using BSV’s weighbridge. Sometimes Hamdan collected cash in exchange for taking tyres to the premises;

3. Neetika Bhargava was an administration officer at BSV. Bhargava worked under the direction of both Nath and Koufelos;

4. Koufelos operated machines to process tyres and drive trucks to pick up tyres to bring back to the premises. Koufelos was described as a “supervisor” by Bhargava. Koufelos was instructed by Nath in respect of the storage of tyres at the premises. Koufelos took instructions from both Nath and Hamdan until Hamdan ceased working at BSV. Koufelos did not always follow those instructions and occasionally brought tyres to the premises even after he had been told not to; and

5. Raymon Mousa drove trucks to pick up tyres to bring back to the premises. Mousa collected cash for tyres to be brought to the premises and gave the cash to Hamdan.

14. In terms of environmental compliance, Nath instructed BSV staff that:

1. BSV was limited to having 150 tonnes of tyre waste on the premises at any time and to not overfill the yard;

2. stockpiles of tyres had to be below 3.7 m; and

3. BSV was required to comply with storage requirements for waste tyres pursuant to the EPL.

The Regulation of the Export of Waste Tyres

15. In March 2020 the Council of Australia Governments agreed to establish a ban on the export of waste. The ban included waste tyres.

16. In 2021 the Commonwealth announced that it intended to ban the export of whole-baled waste tyres.

17. Later in October 2021 the Recycling and Waste Reduction (Export-Waste Tyres) Rules 2021 (Cth) (“the Export-Waste Tyres Rules”) were made under the Recycling and Waste Reduction Act 2020 (Cth). Among other things, the Export-Waste Tyres Rules required exporters of waste tyres to hold a waste export licence.

18. Between October and November 2021 BSV applied for a waste export licence.

Ban on the Export of Certain Waste Tyres

19. In December 2021 the export of whole-baled waste tyres (“tyre export ban”) was banned by the Export-Waste Tyre Rules. As a result of the tyre export ban, the following waste tyres could only be exported under a waste export licence:

1. tyres that had been processed into shreds or crumb of not more than 150 mm for use as tyre derived fuel;

2. tyres for retread by an appropriate retreading facility, for example, a facility that is verified by Tyre Stewardship Australia's Foreign End Market program;

3. tyres to an appropriate importer for re-use as a second-hand tyre on a vehicle; and

4. tyres that have been processed into shreds, crumbs (when the shred or crumb are not for use as tyre derived fuel), buffings or granules.

20. In June 2022 BSV obtained a waste export licence to export crumb rubber and shredded tyres.

Machinery Breakdown At BSV

21. On 30 March 2022 BSV’s tyre shredding machine broke down for a period of three months. As a consequence, waste tyres at the premises could not be processed for export.

The EPA Investigation

22. The EPA investigation involved four inspections of the premises on 30 March, 10 May, 31 May and 26 July 2022.

23. In relation to the exceedance offence, on 30 March 2022 approximately 318.9 tonnes of waste tyres and waste tyre products were observed on the premises, in contravention of condition L2.2 of the EPL. This was rectified by the time of the EPA’s inspection on 10 May 2022.

24. In relation to the height offence, on 30 March 2022 the EPA found waste tyres and waste tyre products stored approximately 4.8 m above ground level, between the western covered area and the eastern covered area of the premises, in contravention of condition L2.3 of the EPL. This had also been remediated by the time of the EPA’s inspection on 10 May 2022.

25. In relation to the tread up offence, on 30 March 2022 EPA officers observed tyres at the premises stored “tread up” between the western covered area and the eastern covered area, in contravention of condition O4.1 of the EPL. This was not rectified by the time of the EPA’s inspection on 10 May 2022. During the EPA’s inspection on 31 May 2022, EPA officers found tyres stored “tread up” only within and around the eastern covered area of the premises. On 26 July 2022, the EPA found that the tyres that were stored “tread up” between the western covered area and the eastern covered area, as well as within and around the eastern covered area of the premises.

26. In relation to the storage offence, on 30 March 2022 tyres were found being stored on the premises contrary to Figure 5 of the MRA Report, in contravention of condition O4.2 of the EPL. This remained as at the EPA’s inspections on 10 May, 31 May and 26 July 2022.

Efforts to Bring the Premises into Compliance with the EPL

27. On 8 April 2022 the EPA issued a Prevention Notice to BSV pursuant to s 96 of the POEOA. The Prevention Notice required BSV to, among other things, reduce the amount of waste tyres and waste tyre products on the premises to no more than 150 tonnes, to bring BSV into compliance with condition L2.2 of the EPL.

28. In March 2022 BSV obtained $150,000 from Lumi Finance Pty Ltd to reduce the number of waste tyres stored at the premises. Nath and Hamdan gave personal guarantees to secure the loan.

29. By August 2022 BSV had entered into voluntary administration.

30. On 31 October 2022 BSV’s voluntary administration ceased. That same day, Nath and Hamdan’s respective directorships of BSV ceased, and Houssam Taleb was appointed as a director of BSV. On 4 November 2022 Wessam Taleb and Hussein Taleb were also appointed directors of BSV.

31. Between 3 and 7 November 2022 approximately 257.88 tonnes of waste tyres and waste tyre material were removed as part of a clean-up of the premises.

Risk Posed by Waste Tyres and Waste Tyre Products

32. It was not in contention that the fire risks that waste tyres and waste tyre products pose were as follows:

1. should tyres catch alight, each tyre can emit around two litres of oil during combustion, thereby serving to increase the fire risk and the spread of any fire;

2. if stacked tyres catch alight, the lower combusting tyres are compressed. This will result in tyres higher up the stack moving deeper into the stack, and therefore, into the heat of the combustion zone. In tyre stacks that are vertical a “chimney effect” may occur. This causes air to be drawn in from the bottom (one side) of the tyre and travel upwards via the combustion zone. This encourages the flaming combustion to stay inside the tyre. Additionally, combusting tyres can roll off the stack and spread fire to other stacks if tyres are stored “tread-up”;

3. even after flaming combustion ceases, the smouldering may continue for a long period. During the smouldering phase, combustion by-products continue to be emitted by the tyres;

4. the fire dynamics associated with a burning stack of tyres maintains the flaming combustion on the inside of the tyres. This makes it hard, if not impossible, for firefighting extinguishing agents to reach the combustion zone, especially if the stack is tall. Therefore, the outcome often is an excessive amount of firefighting water discharged at the fires;

5. as excessive amounts of firefighting water is discharged onto tyre fires, this results in large amounts of fire water runoff, which needs to be managed. Atmospheric emissions include carbon monoxide, sulphur oxides, nitrogen oxides, volatile organic compounds, cyclic aromatic hydrocarbons, hydrogen chloride, benzene, and polychlorinated biphenyls. Liquid emissions are mainly an oil or hydrocarbon substance, which can adversely impact water ways. This oily by-product contains several other substances including, naphthalene, benzene, anthracene, sulphur compounds, arsenic, and cyanide; and

6. there are various available ignition sources for tyre fires to occur at facilities such as the premises. In waste or recycling tyre facilities, tyre fire ignition causes are generally arson, bush or grass fires, on-site machinery fires, and lightning strikes.

Fire Brigade Policy

33. It was not in dispute that at all relevant times Nath was aware of the Fire Brigade Policy.

34. The Fire Brigade Policy (see condition O4.1 of the EPL) provided information regarding the risk of tyre fires. It stated that:

Rubber tyres are not easily ignitable, however when alight, they are extremely difficult to extinguish. The Calorific value of rubber is nearly 40 000 kilojoules/kilogram, which is generally twice that of other common combustible materials.

Note: When tyres burn, the high energy release rate results in a very hot fire and a considerable volume of smoke being generated, both of which present a high hazard to the community, environment and firefighters.

The physical properties of rubber tyres also cause difficulty when trying to extinguish tyre fires. The shape of tyres and the tyre stacking arrangement result in many pockets which are difficult to penetrate with extinguishing mediums quickly being shed and drained away.

Due to these reasons, tyre stacks involved in fire must be physically separated in order to be extinguished. Adopting recommendations in this document will assist the [New South Wales Fire Brigade] to contain and extinguish tyre fires.

35. The Fire Brigade Policy went on to provide the following information in respect of the “tread up” storage of tyres:

Tyres stacked on their treads, known as ‘tread up’ storage, is not acceptable… In the event of a fire, tread up tyres easily roll away and ignite neighbouring stacks unless they are retained within a suitable rack storage system.

MRA Consulting Report

36. In addition to awareness of the Fire Brigade Policy, Nath was also cognisant of the content of the MRA Report.

37. Figure 5 in the MRA Report was incorporated into the EPL by condition O4.2. The MRA Report said as follows in relation to the risks of air pollutants from tyre fires:

Discharge of pollutants to air would only occur in the event of a fire when tyres break down releasing hazardous compounds including gases, heavy metals and oil. The smoke generated by tyre fires is thick and includes a large number of toxic gases.

Mitigation of the threat from outbreak of a tyre fire on the premises is assured by strict compliance at all times with the NSW Fire Brigades Policy No. 2 Guidelines for Bulk Storage of Rubber Tyres.

38. Regarding the importance of compliance with the Fire Brigade Policy, the MRA Report stated:

BSV is aware that compliance at all times with the Fire Brigade Guidelines is required for all facilities intending to store new or used rubber tyres and is committed to always adhere to these guidelines.

39. Under the section titled “Environmental outcomes”, the MRA Report stated that:

The environmental goals for the BSV site relate primarily to the prevention and control of fire at the property, which represents the greatest risk to the environment.

40. The Pollution Incident Response Management Plan (“PIRMP”) attached to the MRA Report specified that:

Tyres are difficult to ignite, but once alight burn furiously and are difficult to extinguish. Burning tyres emit toxic fumes that are harmful to the environment.

The risk of a tyre fire represents the greatest hazard on site, therefore prevention of fire is the most important hazard minimisation practice on site.

41. In respect of local waterways, the PIRMP went on to note that:

If a fire event occurs, the main risk to surface water quality is caused by contaminated fire quench water from site entering drains and being discharged into the local stormwater system. There are stormwater pits installed on site to retain this water, however they are potentially not of sufficient size to contain all water.

42. Addressing airborne impurities and toxins, the PIRMP then provided that:

Due to the nature of waste tyres, they are stable and not considered to be a hazardous material. However if there is a fire, tyres generate thick smoke while breaking down into hazardous compounds including gases, heavy metals, and oil.

Tyre fires are rare and BSV is well prepared to prevent them therefore, under normal circumstances, it can be considered that the processing and storages of waste tyres poses a low threat of generating air pollution. Mitigation of the threat of outbreak of a tyre fire on the premises is assured by the implementation of BSV's Site Compliance Plan, which related to the NSW Fire Brigades Policy No. 2 Guidelines for Bulk Storage of Rubber Tyres.

43. Finally, the MRA Report contained a “BSV Site Compliance Plan” which included the following:

BSV is committed to ensuring that the flow of tyres arriving on site for processing is compatible with the maximum number of tyres that can be dealt with in one day to prevent undesirable stockpile build-up. If the number of tyres and/or volume of tyre product are approaching the limits permitted in the EPL (once issued), no further tyres will be accepted on site until shipping containers of reusable, shredded or baled tyres are transported off-site.

The Evidence Relied Upon by the Parties

44. The EPA relied upon the SOAF.

45. Nath also read the following affidavits:

1. an affidavit sworn by him on 1 September 2023 (“the first Nath affidavit”); and

2. an affidavit sworn by him on 29 January 2024.

Sentencing Principles

The Purpose of Sentencing

46. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”), which are not recited here.

Statutory Matters Required to be Taken into Account in Sentencing

47. Subsections 21A(2) and (3) of the CSPA sets out aggravating and mitigating factors that the Court must consider. The factors relevant to the facts of this case are:

21A   Aggravating, mitigating and other factors in sentencing

…

(2)   Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows

…

(d)   the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),

…

(i)   the offence was committed without regard for public safety,

…

(o)   the offence was committed for financial gain…

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3)   Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows–

…

(e)   the offender does not have any record (or any significant record) of previous convictions,

(f)   the offender was a person of good character,

(g)   the offender is unlikely to re-offend,

(h)   the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i)   the remorse shown by the offender for the offence, but only if–

(i)   the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)   the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…

(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),

…

(m) assistance by the offender to law enforcement authorities (as provided by section 23)…

48. For offences created by the POEOA, the Court is also required to consider the matters set out in s 241(1) of that Act:

241   Matters to be considered in imposing penalty

(1)    In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant)—

(a)    the extent of the harm caused or likely to be caused to the environment by the commission of the offence,

(b)    the practical measures that may be taken to prevent, control, abate or mitigate that harm,

(c)    the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,

(d)    the extent to which the person who committed the offence had control over the causes that gave rise to the offence,

…

(2)    The court may take into consideration other matters that it considers relevant.

49. The appropriate sentence for Nath is to be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of the case (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357).

Objective Seriousness of the Offences

50. The objective gravity of the offences fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at [354]). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at [354] and R v Nichols (1991) 57 A Crim R 391 at [395]).

51. The objective gravity of the offence is judged having regard to two principal components, first, the acts or omissions of the offender, and second, the consequences of those acts or omissions (Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [22]).

Nature of the Offences

52. The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are relevant to the determination of the objective seriousness of the commission of an environmental offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]).

53. The relevant objects contained in s 3(a),(d),(e) and (g) of the POEOA identify the purpose of creating the offences with which Nath has been charged.

54. These objects reinforce the beneficial nature of the statutory framework and the essential role that the regulation of pollution plays in achieving those objects, notably through the promulgation of a licensing regime (Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 at [49]-[51]).

55. There is a need for strict compliance with the conditions imposed by an EPL. The EPL is the statutory instrument that authorises pollution. It is the price to be paid by polluters for engaging in such activity. As such, failure to observe the conditions of authorisation undermines the achievement of the objects of the POEOA (Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 at [204] and Environment Protection Authority v Ridley AgriProducts Pty Ltd [2019] NSWLEC 119 at [46]).

56. The storage of waste, including waste tyres, contrary to the EPL undermines the regulatory scheme as it relates to waste generally, and more specifically, to tyre waste (Environment Protection Authority v Albiston [2020] NSWLEC 80 at [76]).

Maximum Penalty

57. The maximum penalty provided for an offence indicates the seriousness with which Parliament views the commission of the offence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359 and Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).

58. Nath is charged with four breaches of s 64(1) of the POEOA, each of which carry a maximum penalty of $250,000 in the case of an individual, and in the case of a continuing offence (the storage offence), a further penalty of $60,000 for each day the offence continues.

Nath’s State of Mind at the Time of the Commission of the Offence

59. The offences are crimes of strict liability which means that mens rea is not an element of the offence. However, the state of mind of Nath at the time of their commission is nevertheless relevant in the determination of an appropriate sentence (s 241(2) of the POEOA and Environment Protection Authority v Eveston (No 3) [2022] NSWLEC 128 and Environment Protection Authority v Maules Creek Coal Pty Ltd [2022] NSWLEC 33 at [153]).

60. A strict liability offence that is committed intentionally, negligently, or recklessly, is objectively more serious than one committed accidentally (Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123], Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42] and Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312 at [72]-[75]).

61. The POEOA does not contain an offence that has mens rea as an element of it in respect of a contravention of an EPL. Accordingly, the principle in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 does not arise.

62. The EPA submitted that Nath committed the offences recklessly and that this served to aggravate their seriousness. The test for recklessness was set out in Albiston (at [99]):

99.    An offender’s conduct will be found to be reckless if he, she or they are put on notice, in the sense that he, she or they believe or suspects, that an act or omission may be unlawful but nevertheless proceeds to engage in it without making further enquiries.

63. The EPA submitted that Nath’s recklessness could be inferred from the following:

1. at all relevant times Nath was aware of the requirements contained in the EPL, the Fire Brigade Policy and the MRA Report. Therefore, Nath knew how many waste tyres ought to be stored at the premises, the correct manner of their storage, and the likely consequences of their improper storage;

2. Nath was in the outdoor yard of the premises every day. Therefore, Nath had the opportunity to observe how and where waste tyres were being stored at the premises and to note whether their storage was in compliance with the EPL; and

3. pursuant to condition O5.1 of the EPL, vehicles had to be weighed when they entered and left the premises. Since Nath was in charge of the administration of BSV and supervised administration officer Bhargava, Nath would have been aware of the volume of waste tyres entering the premises for the purposes of the exceedance offence.

64. Nath conceded that it was open to the Court to find that overall he acted recklessly and that this was a contributing factor to the commission of the offences. He further submitted, however, that the following contextual matters ought to be taken into account by the Court, namely:

1. he was aware of the conditions of the EPL, including the 150 tonne limit, the stockpile height, and the storage requirements, and he took positive steps to make BSV staff aware of these requirements. However, BSV staff did not always follow his instructions, and on occasion, would import tyres to the premises even after they had been told not to do so; and

2. employees would bring waste tyres to the premises without his knowledge, including after he had told them not to. Therefore, despite him positively encouraging compliance with the EPL, the action of others subverted these efforts.

65. I take these matters into account, however, I find that Nath acted recklessly in the commission of the four offences, in that he was at all relevant times aware of the conditions of the EPL, and was put on notice that BSV was in breach of them by accepting waste tyres in exceedance of its authorised limit and by improperly storing them at the premises.

The Environmental Harm Occasioned or Likely to be Occasioned by the Commission of the Offences

66. Section 241(1)(a) of the POEOA requires the Court to take into account the extent of the harm caused, or likely to be caused, to the environment by the commission of the offences.

67. The composite term “harm to the environment” is broadly defined in the Dictionary of the POEOA:

Harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.

68. The concept of harm in the context of environmental offences extends to both actual and potential harm (Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[149]). In terms of offences involving the improper storage of waste tyres, the Court has taken into consideration the potential for environmental harm resulting from this unlawful conduct (Environment Protection Authority v Richardson; Environment Protection Authority v Behnfeld [2002] NSWLEC 205 and Environment Protection Authority v Obaid [2005] NSWLEC 171).

69. There is, however, a distinction between actual harm to the environment and harm to the regulatory regime (ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 at [65]). While the former should be considered under s 241(1(a) of the POEOA, the latter is a relevant factor under s 241(2) of that Act only.

70. The extent of harm caused by the commission of the four offences was not in dispute. The offences did not cause actual harm to the environment, rather they caused potential harm by reason of the manner in which the waste tyres and waste tyre products were stored on the premises. The potential harm is summarised below:

1. in respect of the exceedance offence, the volume of waste tyres and waste tyre products on the premises meant that on 30 March 2022, there was an elevated fire risk and any tyre fire that occurred would be larger and more difficult to extinguish. This also meant that if any fire event occurred, more water would be needed to control and suppress the fire, which would increase the likelihood of soil and groundwater contamination due to runoff from the water being used to extinguish. This would increase the potential for harm to the environment;

2. in respect of the height offence, the height of the waste tyres and waste tyre products on the premises meant that on 30 March 2022, any tyre fire that occurred would be more difficult to extinguish due to the “chimney effect”. This would increase the potential for harm to the environment;

3. in respect of the tread up offence, the storing of waste tyres and waste tyre products on the premises “tread-up” meant that any tyres that caught alight could roll into other areas of the premises, potentially causing other waste tyres and waste tyre products to catch alight. This would increase the potential for harm to the environment, as outlined immediately below. This meant that, on 30 March 2022, the premises were in a state conducive for a tyre fire to spread if it were ignited at the premises;

4. in respect of the storage offence, the storing of waste tyres and waste tyre products on the premises in contravention of Figure 5 of the MRA Report meant that, between 30 March and 26 July 2022, any fire on the premises would be difficult to contain.

71. As a consequence of the commission of the offences, the potential harm to the environment that occurred on 30 March 2022, and between 30 March and 26 July 2022, included:

1. harm to air quality: when tyre fires burn, or when they continue to smoulder following extinguishment, carbon monoxide, sulphur oxides, nitrogen oxides, volatile organic compounds, cyclic aromatic hydrocarbons, hydrogen chloride, benzene, and polychlorinated are emitted into the air. Further, a considerable amount of smoke is typically emitted from a tyre fire. The MRA Report described the pollutants released into the air from tyre fires as being “hazardous” and including “gases, heavy metals and oils”, stating that such smoke is “thick and includes a large number of toxic gases”;

2. harm to land and waters: when waste tyres or waste tyre products burn, liquids in the form of oil or hydrocarbons are emitted, which can impact the land over which the liquid flows and can impact any waterways that the liquids enter. This oily by-product contains substances including, naphthalene, benzene, anthracene, sulphur compounds, arsenic, and cyanide;

3. harm to human health: if waste tyres and waste tyre products were to catch fire at the premises this could pose a risk to human health. Those potentially impacted include people working at the premises, people nearby the premises if the fire spread, and firefighters who would be required to attend and extinguish the fire. In terms of the latter, the Fire Brigade Policy indicated that the smoke being released from a tyre fire is “a high hazard to the community, environment and firefighters”. Tyre fires can be deadly and those exposed to fires risk burns and serious injuries; and

1. harm to neighbouring premises: if waste tyres and waste tyre products caught fire at the premises, this could pose a risk to neighbouring properties, which were predominately commercial in nature.

72. Counsel for Nath submitted that the relevant degree of risk was diminished because:

1. first, three of the four offences each occurred on a single day. Accordingly, the risk of harm to be considered was only the risk presented by the commission of the offences on those individual days. That is, the likelihood of a fire occurring on any particular day was less than if the offence were to occur over multiple days;

2. second, in relation to the tread up offence, it was submitted that the photographic evidence demonstrated that not all tyres were stored tread up; and

3. third, although the tyres were not stored in compliance with condition O4.2 of the EPL, the purpose of that condition was to provide access for firefighting purposes. The photograph demonstrated that such access was provided, albeit not in the manner required by condition O4.2.

73. I am satisfied beyond reasonable doubt that Nath’s offending conduct occasioned potential environmental harm in the manner set out above. It should be recalled that the storage offence, which was affected by all of the risks described above, was committed over 118 days, a considerable period.

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences

74. Section 241(1)(c) of the POEOA obliges the Court to have regard to the extent to which the offender could reasonably have foreseen the harm caused, or likely to be caused, to the environment.

75. At all relevant times, Nath was aware of the conditions of the EPL, as well as the Fire Brigade Policy and MRA Report. The Fire Brigade Policy set out the fire risks rubber tyres pose and the MRA Report outlined the risks of air pollutants from tyre fires. Both stated the importance of proper storage of tyres to mitigate such risks. Nath was therefore aware of the possibility of potential environmental harm caused from non-compliance with the conditions of the EPL. I am therefore satisfied that the potential harm was reasonably foreseeable.

Practical Measures that Could Have Been Taken to Prevent or Mitigate the Environmental Harm

76. Section 241(1)(b) of the POEOA requires the Court to take into account the practical measures that may be taken to prevent, control, abate or mitigate harm to the environment.

77. The EPA submitted that as one of two directors at BSV at all relevant times, Nath could have undertaken the following practical measures to mitigate the risk of harm caused by the offences:

1. in respect of the exceedance offence, by refusing to accept tyres at the premises in excess of the EPL limit. This practical measure was open to Nath at all times and neither the tyre export ban or the breakdown of the tyre shredding machine were obstacles to this practical measure being implemented;

2. in respect of the height offence, by directing employees not to stack tyres beyond the limit set by the EPL. Again, this measure was open to Nath at all times. Nath met with Hamdan and Koufelos each week regarding the storage of waste tyres and waste tyre products on the premises and was also in the outdoor yard of the premises every day;

3. in respect of the tread up offence, by directing employees to not store them in this way. As the EPA submitted, this would have been easier to implement had Nath ensured that no more than 150 tonnes of waste tyres were on the premises at any given time; and

4. in respect of the storage offence, by directing employees to store the tyres correctly on the premises.

78. Nath agreed that further practical measures could have been taken by him to prevent the risk of harm occurring, however, he noted that he did undertake the following proactive steps, namely:

1. holding meetings with his fellow director, Hamdan, and employees of BSV, regarding the storage of waste tyres and waste tyre products on the premises. In this respect, Nath instructed BSV staff that it was limited to having 150 tonnes on the premises at any time and to not overfill the yard, that stockpiles of tyres had to be below 3.7 m, and that BSV was required to comply with storage requirements for waste tyres, such as Figure 5 of the MRA Report, pursuant to the EPL;

2. taking steps to reduce the tyres on the premises by arranging for waste tyres to be disposed of by a waste management company, demonstrating his attempt to bring BSV into compliance; and

3. obtaining finance and personal guarantees to enable the repair of BSV’s tyre shredding machine. This measure was to address the fact that Nath’s fellow director continued to bring tyres onto the premises despite the shredding machine being broken, either without Nath’s knowledge or after Nath had told him not to do so.

79. Relevantly, in cross-examination Nath explained that difficulties in obtaining parts to fix BSV’s tyre shredding machine and the tyre export ban had hindered his ability to take practical steps to mitigate the risk of harm (T4:34-41):

Prosecutor:    At the time of the offences, you were able to observe the storage of tyres at the premises when you were in the outdoor yard, weren’t you?

Nath:   Yeah, there is a control - there was a control, but it went out when the machine broke down. It took us 6 months to get it and EPA came and took the photos of the repairing of the machines and as a proof, they - I told them - explained to them what had - was happening, and there was a bit of an issue with the other business partner where he was not listening, so then - since then that matter just went out of control.

…

Prosecutor:   Do you agree that BSV could have fixed the tyre shredder machine earlier than it did?

Nath:   Depends. If the machine was a German machine, the parts were not available, so they had to bring it down from Germany.

…

Prosecutor:   Do you agree that BSV could have reduced the number of tyres at the premises before June and August 2022?

Nath:   There’s a bit of a contributing factor. First of all, the machine was that the machine was a primary shredder machine. Environmental - the law was passed that we could not just dump the tyres. It just has to be cut to the certain size. And for that, there was like a - became very handicap.

80. When questioned about the tread up offence Nath stated (T5:06-12):

Prosecutor:    When you were in the outdoor area of the premises at the time of the offences, were you able to see that tyres were stored tread up?

Nath:    There was a supervisor, sort of a head excavator, throwing a tyre on top of it, which I’ve been constantly telling him, “Stop it” nicely - “Stop it” nicely. “Oh, we’ll clean it up. We’ll clean it up”. So the situations went so drastically upside down where they stopped listening to me. That’s how - that’s how the issue started.

81. I accept that Nath undertook practical steps to prevent the risk of harm posed by the waste tyres. I also accept that there were extenuating factors, including the tyre export ban, the broken machine, and the fact that BSV staff were not complying with Nath’s directions, which limited the actions practically available to Nath to prevent the commission of the offences. Despite these factors, I find that Nath could have taken further steps to direct BSV’s staff to properly store waste tyres.

Control over the Causes of the Commission of the Offences

82. Section 241(1)(d) of the POEOA requires the Court to take into account the extent to which the person who committed the offence had control over the causes that gave rise to it.

83. The EPA submitted that, by virtue of Nath’s role as director at BSV at all material times, he had control over the causes of each of the offences. Namely, control over the number of waste tyres that were accepted at the premises and the way in which those waste tyres were stored. This submission was premised on the following facts:

1. Nath’s role included meeting with Hamdan and Koufelos each week regarding the storage of waste tyres and waste tyre products on the premises;

2. Bhargava worked under the direction of Nath;

3. Koufelos was instructed by Nath as to the storage of tyres at the premises. Koufelos took instructions from both Nath and Hamdan until Hamdan ceased working at BSV; and

4. Nath instructed BSV staff more generally as to the requirements of conditions L2.2, L2.3 and O4.2 of the EPL.

84. In relation to the tyre export ban and the breakdown of BSV’s machinery, the EPA submitted that Nath nevertheless knew that BSV could not bring more than 150 tonnes of waste tyres to the premises. The fact that waste tyres could not be processed, it submitted, should have meant that Nath ensured that BSV did not accept further tyres at the premises. This was particularly so in circumstances where Nath knew that BSV could not afford to repair the broken machine.

85. While Nath agreed that he had a degree of control of the premises, he disputed that he had complete control over the causes of the commission of the offences on the basis that:

1. at all relevant times Hamdan’s role consisted of sourcing waste tyres and waste tyre products and driving, or instructing others to drive, these waste tyres and waste tyre products to the premises;

2. Hamdan brought tyres to the premises outside business hours and on weekends, and did not weigh the tyres using BSV’s weighbridge. In this respect, despite the machinery breakdowns, others brought waste tyres onto the premises without his knowledge and contrary to an instruction not to do so;

3. Koufelos did not always follow instructions and would bring tyres to the premises even after he had been told not to by Nath; and

4. Nath filed a police report in respect of Hamdan bringing tyres onto the premises without accounting for them through BSV.

86. In relation to Hamdan and BSV’s staff not complying with Nath’s directions, the EPA submitted that it was open to Nath as director of BSV to take action against them to prevent tyres being accepted and stored improperly at the premises.

87. I find in all the circumstances that as one of two directors of BSV, Nath had almost complete control over the commission of the offences.

Whether the Offences Were Committed for Financial Gain

88. Where an offence is committed for financial gain, this serves to aggravate the seriousness of an offence, pursuant to s 21A(2)(o) of the CSPA.

89. The EPA relied on the decision of Environment Protection Authority v Carbon MF Pty Ltd; Environment Protection Authority v Fair [2023] NSWLEC 120 (at [49]-[50]) to argue that the only reasonable inference to be drawn from the commission of the waste exceedance offence was that it was committed for financial gain. That is, because BSV's business concerned the receipt and processing of waste tyres, the more waste tyres brought onto the premises and processed, the greater the financial benefit to BSV, and by extension to Nath.

90. Nath, by contrast, relied on Natural Resources Access Regulator v Tony Thompson [2022] NSWLEC 48 (at [133]) to argue that the mere fact of offending conduct occurring is not sufficient to prove financial gain.

91. In circumstances where Nath had taken active steps to instruct BSV staff not to bring tyres to the premises, and where tyres were brought onto the premises for cash that was received by another director, Nath submitted that he did not commit the offences for financial gain. I agree. The EPA has not demonstrated beyond reasonable doubt that the commission of this offence was motivated by financial reward.

Whether the Offences Were Committed Without Regard to Public Safety

92. If an offence is committed without regard to public safety, this serves to aggravate the seriousness of an offence pursuant to s 21A(2)(i) of the CSPA.

93. The EPA argued that Nath committed the offences without regard to public safety. That is, despite having knowledge of the fire risks posed by the improper storage of waste tyres at the premises he nevertheless committed the offences. It alleged that Nath exercised a general disregard for the EPL and, as a consequence, the safety of the public, given the risk of a tyre fire (Carbon MF Pty Ltd at [43]-[44]).

94. In cross-examination, Nath agreed that he had a good understanding of the risks associated with the improper storage of waste tyres. He also agreed that he knew the purpose of the EPL was to safeguard the environment.

95. I accept the EPA’s submission and find that the offences were committed without regard to public safety.

Conclusion on the Objective Seriousness of the Offending Conduct

96. Considering the objective circumstances of the commission of the offences, I find that all four offences are of low to moderate objective seriousness.

Subjective Circumstances of Nath

97. A proportionate sentence requires the Court to take into account any mitigating factors that are personal to Nath (s 21A(3) of the CSPA). The relevant subjective circumstances are considered below.

Contrition and Remorse

98. Pursuant to s 21A(3)(i) of the CSPA, remorse is only a mitigating factor if:

(i)   the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)   the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

99. In Waste Recycling Preston J remarked that "contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives" (at [203]). His Honour went on to suggest four ways by which an offender may demonstrate genuine contrition and remorse, which are relied upon without repetition (at [204], [210], [212] and [214]).

100. In the first Nath affidavit, he provided the following statement of contrition and remorse:

35.    In my record of interview with the EPA that was conducted in around 10 November 2022 (Record of Interview), I said that a major reason why BSV had difficulties, including those which contributed to the offences, was due to the breakdown of BSV’s tyre shredding machine and the fact that my business partner, Mr Hamdam, had brought tyre to BSV without my knowing, including while the shredding machine was not working, and after I had told him not to. I also told him not to. I also said that I filed a police report against Mr Hamdam for bringing tyres to the Premises without accounting for them through BSV.

36.    Notwithstanding my falling out with Mr Hamdam and the factors that contributed to the offences, I acknowledge that I was also responsible for ensuring BSV’s compliance with its EPL.

37.    I am ashamed and embarrassed by the fact that BSV committed and offence while I was in control of the company.

38.    I accept that, by failing to comply with conditions of BSV’s EPL, the risk of the potential for harm to be caused to the environment or human health was increased.

39.    I recognised the importance of maintaining a high standard of care and in particular, compliance with the conditions of an EPL, reduces the risk for serious harm to be caused to the environment or human health.

40.    I apologise for my actions and role in enabling BSV to commit the offences that have led to these proceedings.

101. The EPA submitted that this was insufficient because:

1. a court is not obliged to accept assertions of contrition made by an offender (R v Stafrace (1997) 96 A Crim R 452 per Hunt CJ at CL, followed in R v Nguyen [2004] NSWCCA 438 at [21]). An assessment of the genuineness of remorse is likely to be better informed when expressed directly, that is, face to face because it is intrinsically a subjective matter (Mun v R [2015] NSWCCA 234 at [39]);

2. contrition and remorse are better demonstrated through actions taken by a defendant rather than statements made by a defendant; and

3. the strength of the Crown case is a relevant consideration in relation to the evaluation of remorse (R v Sutton [2004] NSWCCA 225 at [12]).

102. In response, Nath emphasised his cooperation with the EPA throughout the course of the proceedings and his early guilty pleas, as further expressions of genuine contrition and remorse.

103. I find Nath’s actions in cooperating with the EPA and in entering an early plea, together with his affidavit evidence (which I accept as genuine despite any attempted cross-examination to the contrary) as evidence of contrition and remorse, which is a mitigating factor in his sentencing.

Early Pleas of Guilty

104. A guilty plea entered at the earliest available opportunity entitles a defendant to the full 25% discount for the utilitarian value of that early plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]).

105. The EPA submits that Nath’s early pleas of guilty are mitigating factors entitling Nath to a substantial utilitarian discount. It submitted, however, that Nath only entered a plea of guilty at the third mention of this matter.

106. By contrast, Nath argued that where the charges were amended on 30 June 2023, and pleas were entered on that date, the pleas were entered at the first opportunity. I agree.

107. Nath has not acted in a manner that disentitles him to the full discount for the utilitarian value of his guilty pleas and I therefore find that he is entitled to a 25% discount for his early pleas of guilty.

Assistance to the EPA

108. Nath provided assistance to the EPA in the prosecution of the offences (ss 21A(3)(m) and 23 of the CSPA), including by participating in the preparation of an agreed statement of facts. I take this factor in mitigation into account.

Prior Convictions of Nath

109. Nath has no prior convictions for environmental offences (s 21A(3)(e) of the CSPA). To the extent that the EPA sought to rely upon the prior convictions of BSV in respect of offences against the POEOA in relation to waste while Nath was a director of that company, this ought to be disregarded for present purposes. The convictions of BSV are not those of Nath.

The Good Character of Nath and the Likelihood that He Will Reoffend

110. In addition to having no prior convictions for environmental offences, Nath relies on the fact that the EPA has granted him an EPL in respect of his new waste transport business as evidence of his good character. That is, because the EPA considers that Nath is a fit and proper person in granting the EPL (s 45(f) of the POEOA), it has accepted that he is of good character and that he is unlikely to reoffend.

111. I find Nath is of good character pursuant to s 21A(3)(f) of the CSPA.

112. I also find the likelihood that Nath will reoffend to be extremely low, and moreover, that his prospects of rehabilitation are very good (s 21A(3)(g) and (h) of the CSPA).

Deterrence, Denunciation and Retribution

113. The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at [569]-[570] per Brennan J).

114. The penalty imposed by the Court must serve as a general deterrent (Axer at [359]; Camilleri’s Stock Feeds at [701] and Bentley at [139]; see also s 3A(b) of the CSPA). In Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; [2006] NSWLEC 289 Preston J discussed general deterrence in the context of sentencing for environmental crime (at [66]-[68]). Those principles are applied here.

115. I accept that embedded in the determination of the appropriate sentence to be imposed on Nath is an element of general deterrence in order to ensure that holders of EPLs comply with the attached conditions when undertaking waste management activities.

116. In relation to specific deterrence (s 3A(b) of the CSPA), the EPA submitted that because Nath was the director of BSV when it was convicted of a waste offence and has been granted an EPL to operate his own company in that industry, this justifies the need for specific deterrence.

117. I accept this submission. Nath has now committed four environmental offences. He will continue to be involved in the waste industry as director of his new company. The penalty imposed upon Nath must serve to ensure that all future waste related activities carried out by him are in compliance with the terms of the new EPL.

113. Finally, the Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and making Nath accountable for his actions.

The Totality Principle

119. The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63], Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40], Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18] and Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [111]-[112]).

120. Because the four offences arise out of the same, common or related conduct, the totality principle applies. The effect of the totality principle is to require the Court to review the totality of the sentence to consider whether the penalty imposed is just and appropriate and whether it reflects the overall criminality of the offender before the Court. Care must nevertheless be taken “to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender’s conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence” (Plath vRawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [222] and Gittany Constructions at [199] and [201]).

Consistency in Sentencing

121. The task of the sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at [177] and R v Visconti [1982] 2 NSWLR 104 at [107]). Care must be taken in comparing cases where the circumstances of, and facts relating to, the offences may be quite different (Axer at 365).

122. The EPA provided to the Court a table of five comparable cases that it submitted were of assistance in ensuring even-handedness in sentencing. These included: Eveston (No 3), Environment Protection Authority v Minto Recycling Pty Ltd [2019] NSWLEC 193, Environment Protection Authority v MA Roche Group Pty Ltd [2015] NSWLEC 29, Environment Protection Authority v BSV Tyre Recycling Australia Pty Ltd (Local Court proceedings numbers 2021/00245615, 2021/00245642, 2021/00245655, 2021/00245660, 2021/00245665, 2021/00245683, 2021/00245685, 2021/00245700, 2021/00245714, 2021/00245722, 2021/00245731) and Environment Protection Authority v BSV Tyre Recycling Australia Pty Ltd (Local Court proceedings number 2021/0096161-2).

123. Nath submitted that the most comparable of these cases is Environment Protection Authority v BSV Tyre Recycling Australia (Local Court proceedings number 2021/0096161-2) given that the proceedings relate to broadly the same breach of EPL conditions. That decision concerned BSV’s breach of two conditions including those stipulating the amount of tyre waste permitted at the premises and the manner of storing the tyres. The Local Court accepted that despite there being no actual harm caused by the commission of the offences, the exceedance of tyres brought onto the premises by five times that authorised by the EPL created a very serious risk of a fire. BSV was fined $9,000 for the first offence and $5,000 for the second, with 50% of the fine paid to EPA as moiety. It should be noted that the Local Court was limited to imposing a fine of $11,000 (s 267(3) of the Criminal Procedure Act 1986 and s 17 of the CSPA).

124. I have had particular regard to Eveston (No 3). That case concerned the failure of a defendant to ensure that no more than 3,195 m³ of waste was emplaced upon a property and to remove all waste from a premises, in breach of s 64(1) of the POEOA. In that decision, the Court found that the commission of the offences were within the control of the defendant (at [71]) and caused potential harm by the generation of leachate (at [64]). The potential harm was foreseeable (at [66]), and practical measures were available to mitigate that harm (at [72]-[75]). Mitigating factors included that the defendant provided assistance to authorities (at [93]), was of good character, and had a low likelihood of reoffending (at [95]-[96]). Limited weight was placed on the contrition and remorse of the defendant as a mitigating factor (at [78]-[84]). The Court applied a 25% discount for the utilitarian value of the defendant’s early guilty plea and imposed a fine of $37,500 for each offence, the totality of which was reduced to $55,000. An order for moiety and a publication order were made.

125. I have also considered the cases relied upon by the EPA in sentencing Nath for the offences he has committed.

Capacity to Pay a Fine

126. Section 6 of the Fines Act 1996 provides that:

6   Consideration of accused’s means to pay

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider––

(a)   such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b)   such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

127. Section 6 of the Fines Act1996 places the onus upon Nath to prove that he is unable to pay any monetary penalty imposed by the Court. To discharge this onus Nath must provide financial information to the Court which is reasonably and practically available to him demonstrating that he is impecunious (see Albiston at [183]-[184]).

128. A defendant’s capacity to pay is one of many factors that the Court must consider when imposing a sentence. In Environment Protection Authority v Hanna [2018] NSWLEC 80 Preston J opined (at [267]):

267   However, whilst the means of an offender to pay any fine is a mandatory consideration, it may not be decisive. Other sentencing considerations, such as achieving general deterrence, may justify imposing a fine in a certain amount, even if the offender is unlikely to be able to pay the fine: Smith v The Queen at 23, 24; Darter v Diden (2006) 94 SASR 505; [2006] SASC 152 at [29]-[32]; Mahdi Jahandideh v R [2014] NSWCA 178 at [15]-[17]. This may particularly be the case in sentencing for offences where general deterrence is needed and where the offender is a corporation rather than a natural person: see Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 353; Environment Protection Authority v Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147; Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94 at [16]; Bentley v BGP Properties Pty Ltd at [270]-[275].

129. Nath submitted that he had limited capacity to pay a significant fine in addition to the EPA’s costs because:

1. he is presently unemployed and is attempting to establish a business to generate an income to pay off the debts that he is liable for as guarantor of the finance associated with BSV;

2. he has accessed money from his superannuation fund to pay debts and legal costs, and to establish the new business. He has already sold assets to repay some of the debt owed by BSV; and

3. he has recently commenced a business to generate income and repay the debt owed by BSV. To date, all revenue generated from that business has been used to establish it, and Nath is yet to receive any income from it.

130. In the first Nath affidavit, he set out his assets, current employment, income, and liabilities as follows:

Assets

25.    As at the date of this affidavit, my assets are as follows:

(a)    My family home, known as…which I estimate is valued at approximately $1 million to $1.2 million, of which $395,000 is loaned to NAB.

(b)    Land that I own known as…which I estimate is valued at approximately $40,000.

(c)    Land that I own known as…which I estimate is valued at approximately $40,000.

(d)    My car, which is a 1992 Mitsubishi Pajero, which I estimate is valued at approximately $500.

(e)    My wife’s care, which is registered in my name, is a 2010 Toyota Camry, which I estimate is valued at approximately $4,000.

Current employment

26.    I am now an employee at Traco Pty Ltd (known as Australia Tyre Recycling (Traco), which operates a waste tyre facility at premises known as 191 Arthur Street, Homebush West, 2140, to make ends meet for my family. I do not hold a pivotal role at Traco.

Current income

27.    My weekly income from Traco, after tax, is approximately $1,800.

28.   My wife’s weekly income as a teacher, after tax, is approximately $1,500.

Liabilities

29.    I currently pay NAB $1,900 per fortnight towards the remaining $395,000 mortgage on my family home.

30.   I currently pay $100 per month to Bank West towards credit card debt of approximately $12,000. The usual repayments are higher than $100, but I have negotiated a lower rate due to financial stress.

31.    I currently pay approximately $890 per month to Pepper Money towards a car loan of approximately $50,000 that I took out to purchase a car for my daughter.

131. He went on to state that (at [34]), “I fear that I am going to have to sell my family home and declare bankruptcy”.

132. Nath was not cross-examined on this evidence.

133. While Nath did not adduce any contemporaneous financial records, I accept his unchallenged evidence that he is unable to pay a significant monetary penalty.

Costs

134. The EPA sought an order for its professional costs pursuant to s 215(1)(a) of the CPAA, as agreed or assessed under ss 257B and 257G of that Act.

135. In the exercise of its sentencing discretion the Court can take into account any costs payable by the defendant (Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78]-[88]).

136. I have taken the payment of the costs for which Nath is liable into account in determining the sentence to be imposed upon him.

Appropriate Sentence

137. Having regard to the objective seriousness of the offences and the mitigating subjective factors of Nath, together with the penalties imposed in the relevant comparable cases, I find that the imposition of a monetary penalty is warranted for each offence as follows:

1. for the exceedance offence a fine of $40,000;

2. for the height offence a fine of $40,000;

3. for the tread up offence a fine of $40,000; and

4. for the storage offence a fine of $60,000.

138. After the application of the 25% discount for the utilitarian value of the early guilty pleas, the penalty for the commission of each offence is reduced to:

1. for the exceedance offence a fine of $30,000;

2. for the height offence a fine of $30,000;

3. for the tread up offence a fine of $30,000; and

4. for the storage offence a fine of $45,000.

139. Applying the totality principle, the final penalty for the commission of the offences is as follows:

1. for the exceedance offence a fine of $30,000;

2. for the height offence a fine of $10,000;

3. for the tread up offence a fine of $10,000; and

4. for the storage offence a fine of $15,000.

140. This brings the total amount of the monetary penalty to be imposed to be $65,000.

Moiety

141. The EPA contended that half of any monetary penalty imposed by the Court ought to be paid to it pursuant to s 122 of the Fines Act 1996. Nath did not cavil with the making of the order. Having regard to all of the circumstances of the case, I find that it is appropriate to make such an order.

Publication Order

142. The EPA seeks a publication order pursuant to s 250(1)(a) of the POEOA. Nath does not oppose the making of such an order. The terms of the agreed publication order are set out at annexure ‘A’ to this judgment.

143. In the context of sentencing, a publication order serves the functions of general deterrence, denunciation and a recognition of the harm caused by the offending conduct (Bartter Enterprises Pty Ltd (No 4) at [105] and Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [76]).

144. Nath’s offending conduct was not trivial and occasioned potential environmental harm. Nath continues to work in the waste management industry. These factors weigh in favour of making a publication order. The order reflects the seriousness of Nath’s offending conduct and serves as a deterrent to others. Having regard to the circumstances of this case, I find that the making of a publication order is appropriate.

Orders

145. In conformity with the reasons given above, the Court makes the following orders:

In proceedings 2023/100443

1. the defendant is convicted of the offence contrary to s 64(1) of the Protection of the Environment Operations Act 1997 as charged;

2. the defendant is fined the sum of $30,000;

In proceedings 2023/100444

3. the defendant is convicted of the offence contrary to s 64(1) of the Protection of the Environment Operations Act 1997, as charged;

4. the defendant is fined the sum of $10,000;

In proceedings 2023/100445

5. the defendant is convicted of the offence contrary to s 64(1) of the Protection of the Environment Operations Act 1997, as charged;

6. the defendant is fined the sum of $10,000;

In proceedings 2023/100446

7. the defendant is convicted of the offence contrary to s 64(1) of the Protection of the Environment Operations Act 1997, as charged;

8. the defendant is fined the sum of $15,000;

In proceedings 2023/100443-6

9. pursuant to s 122 of the Fines Act 1996, 50% of each fine imposed on the defendant is to be paid to the prosecutor as a moiety;

10. pursuant to s 257B of the Criminal Procedure Act 1986 the defendant is to pay the prosecutor’s legal costs as agreed or assessed under s 257G of that Act;

11. within 28 days of the date of this order and pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, the defendant must, at his expense, cause a notice the size of a quarter of a page to be published in The Daily Telegraph and in Inside Waste, with the text of such notice to be as set out in annexure “A” to these orders;

12. within seven days of the date of publication of the notice referred to in order 11, the defendant must provide the prosecutor with a complete copy of the notice as published pursuant to order 11; and

13. the exhibits are to be returned.

Annexure A

Virendra Nath is Convicted and Penalised for Improper Storage of Tyres at Premises in Revesby, NSW

Virendra Nath has been prosecuted by the Environment Protection Authority (“EPA”) for four offences of contravening an environment protection licence (“EPL”). The prosecutions were brought after BSV Tyre Recycling Australia Pty Ltd (“BSV”), of which Nath was one of two directors, stored waste tyres and waste tyre products in contravention of its EPL at its premises in Revesby, NSW. The offences occurred on 30 March, and between 30 March and 26 July 2022, respectively.

Waste tyres and waste tyre products represent a fire hazard if not stored in a proper manner. If waste tyres and waste tyre products catch alight, they are capable of causing actual harm to the environment. In this case, although no fire occurred, the offences caused potential harm to the environment. This included potential harm to air quality, nearby land and waters, human health, and property on neighbouring premises.

On 16 February 2024, the Land and Environment Court of NSW convicted Nath of four offences of contravening the EPL, by virtue of being a director of BSV at the time that BSV contravened its licence, and ordered Nath to:

1. pay fines totalling $65,000;

2. pay the EPA’s legal costs as agreed or assessed; and

3. cause this notice to be published at his own expense.

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Amendments

21 February 2024 - Amended typographical error in Annexure A to read "environment protection licence ("EPL")" instead of "environment protection EPL ("EPL")"

18 October 2024 - Amended typographical error in paragraph [59] to read "s 241(2)" instead of "s 241(1)".

Decision last updated: 18 October 2024