Environment Protection Authority v Obaid

[2005] NSWLEC 171

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v Obaid [2005] NSWLEC 171
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

PROSECUTOR:
Environment Protection Authority

DEFENDANT:
Juan Manuel Obaid

FILE NUMBER(S):

50060 of 2004; 50061 of 2004; 50062 of 2004 and 50063 of 2004

CORAM:

Lloyd J

KEY ISSUES:

Environmental Offences :- unlawful transport and storage of used tyres - serious risk of harm - ongoing failure to comply with law - conviction - serious offence - general deterrence - specific deterrence - principle of even-handedness - totality principle

Prosecution:- plea of guilty - penalty - mitigation

LEGISLATION CITED:

Criminal Procedure Act 1986, s 253(2)
Crimes (Sentencing Procedure) Act 1999, s 3A
Environmental Planning and Assessment Act 1979, s 25(3)
Environmental Offences and Penalties Act 1989
Fines Act 1996, s 6
Protection of the Environment Operations Act 1999, ss 3(d)(iii), 3(g) 144(1), 169(1), 241, 245(a), 246(1)(b); Schedule.
Waste Minimisation and Management Act 1995, s 63

CASES CITED:

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357;
Camilleri's Stock Feed Pty Limited v Environment Protection Authority (1993) NSWLR 683;
Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000 49 NSWLR 61;
Environment Protection Authority v Richardson; Environment Protection Authority v Behnfeld [2002] NSWLEC 2005;
Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66;
Hannah v Wonah Pty Ltd (1992) 34 AILR 333;
Inspector Petar Ankucic v William George Young [2004] NSWIRComm 184;
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464;
R v Holder [1983] 3 NSWLR 245 at 260.;
R v Oliver (1980) 7 A Crim R 174;
R v Rushby [1977] 1 NSWLR 594;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
R v Visconti (1982) 2 NSWLR 104;
Veen v The Queen [No 2] (1988) 164 CLR 465;
Walden v Hensler (1987) 163 CLR 561;
WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney [1977] NSWIRComm 44.

DATES OF HEARING:

21/03/2005

 
DATE OF JUDGMENT: 

04/15/2005

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr C McElwain (solicitor)
SOLICITORS:
Stephen Garrett
Environment Protection Authority

DEFENDANT:
Mr D A Buchanan SC
SOLICITORS:
Gray & Perkins

JUDGMENT:

- 23 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

LLOYD J

Friday, 15 April 2005

LEC Nos. 50060-50063 of 2004

ENVIRONMENT PROTECTION AUTHORITY V JUAN MANUEL OBAID [2004] NSWLEC 171

JUDGMENT

Introduction

1 LLOYD J: The defendant, Mr Juan Manuel Obaid, pleads guilty to four charges under the Protection of the Environment Operations Act 1997 (the “POEO Act”) in that:

(a) From on or about 5 November 2001 to on or about 18 February 2002 inclusive at Rossmore, New South Wales, he committed an offence against s 144(1) of the POEO Act in that, being a director of Chango Express Pty Ltd (ACN 089 050 966) (“Chango”), a corporation which contravened the said provision, he contravened the same provision as a result of the operation of s 169(1) of the Act (50060 of 2004);

(b) From on or about 8 March 2002 to on or about 11 March 2002 inclusive at Ingleburn in the said State, he committed an offence against s 144(1) of the POEO Act in that, being the occupier of land that could not lawfully be used as a waste facility, he permitted the land to be used as a waste facility (50061 of 2004);

(c) From on or about 5 December 2001 to on or about 19 July 2002 inclusive at Cecil Park in the said State, he committed an offence against s 144(1) of the POEO Act in that, being the occupier of land that could not lawfully be used as a waste facility, he permitted the land to be used as a waste facility (50062 of 2004);

(d) From on or about 16 April 2002 to on or about 12 May 2003 inclusive at Riverstone in the said State, he committed an offence against s 144(1) of the POEO Act in that, being a person concerned in the management of J M Tyre Recycling Pty Ltd (ACN 098 837 560) (“JMTR P/L”), a corporation which contravened the said provision, he contravened the same provision as a result of the operation of s 169(1) of the Act (50063 of 2004).

2 Section 144(1) of the POEO Act provides:

A person who is the owner or occupier of any land that cannot lawfully be used as a waste facility and who permits the land to be used as a waste facility is guilty of an offence.

The maximum penalty is $120, 000 in the case of an individual.

3 The Dictionary to the POEO Act defines:

waste facility means any premises used for the storage, treatment, reprocessing, sorting or disposal of waste (except as provided by the regulations).

4 “Waste” is also defined in the Dictionary as including “any discarded, rejected, unwanted, surplus or abandoned substance”, among other things.

5 Section 169(1) of the POEO Act relevantly provides:

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, 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) the corporation contravened the provision without the knowledge actual, imputed or constructive of the person, or
(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.
….

6 The question for determination is what is the appropriate penalty for the offences.

Background

7 From approximately January 2001 to May 2003, Mr Obaid was engaged in the business of collecting and storing used tyres from various tyre retailers in the Sydney area. During this period, Mr Obaid stored the collected tyres at the following locations:

• 5 King Street, Rossmore (the “Rossmore site”);
• Units 4 and 5, 39 York Street, Ingleburn (the “Ingleburn site”);
• 2073-2081 Elizabeth Drive, Cecil Park (the “Cecil Park site”);
• 81 Riverstone Parade, Riverstone (the “Riverstone site”).

8 In April 2001, the Environment Protection Authority (the “EPA”) granted Mr Obaid a licence to transport used, unwanted or rejected tyres. This licence has since been revoked.

9 Mr Obaid however, never obtained environment protection licences to store more than 50 tonnes of used tyres on any of the sites as required under Schedule 1 of the POEA Act. Further, development consent has not been obtained from any of the relevant local councils for the storage of tyres at any of the sites.

10 Significantly, invoice receipts obtained from Mr Obaid in response to a statutory notice issued to JMTR P/L indicate that in the period from January 2001 to October 2002, JMTR P/L was paid approximately $160, 000 by retailers to collect approximately 100,000 tyres of various sizes.

11 Mr Obaid has conducted his tyre collection business using a variety of legal structures. The name “J M Tyre Recycling Services” has consistently been used as a trading name, though this title has never existed as a legal person and does not appear to have been registered as a business name.

12 The details of the two companies involved in these proceedings are as follows:

(a) Chango: Mr Obaid was the director, secretary and manager of this company up until the time it was deregistered on 18 February 2002; and

(b) JMTR P/L: This company was registered on 22 November 2001 and deregistered on the 25 August 2003. Mr Obaid was not a director of this company, but admits he was a manager. Mr Obaid’s friend, Juan Carlos Invernizzi, and wife, Lilia Obaid, were directors of this company. Mrs Obaid did not play an active role either as a director or in the business, and although Mr Invernizzi was a director, he also functioned as an employee of the company and performed tasks such as driving trucks and loading and unloading tyres at the direction of Mr Obaid.

Storage at the Rossmore Site (5 November 2001 – 18 February 2002)

13 The Rossmore site is located in the Liverpool City Council area.

14 On 28 April 2001, Chango leased a steel shed located on the Rossmore site from Condone Pty Ltd, the company that owns the site.

15 Mr Kontista, Director of Condone Pty Ltd, observed Mr Obaid and another workman unloading tyres into the shed on at least one occasion and became concerned by the potential fire hazard. Consequently, he made a complaint to the Liverpool Council concerning the storage of tyres and the Council attempted to compel Mr Obaid to remove the tyres from the site by issuing a notice, an order and a penalty notice pursuant to the Environmental Planning and Assessment Act 1979 (NSW) (“the EP&A Act”). However, none of these measures succeeded.

16 After inspecting the property on the 6 November 2002, the EPA issued a clean up notice on the 18 November 2002. However, Mr Obaid failed to comply with this notice.

17 On the 26 November 2002, a survey of the site estimated that approximately 61.6 tonnes of tyres, consisting of 54.1 tonnes of car tyres and 7.5 tonnes of truck tyres, were stored in the shed on the Rossmore site.

18 Mr Obaid states that he removed 7 truckloads of tyres, approximately 28 tonnes, from the Rossmore site to the Riverstone site during late 2002.

19 Mr Obaid made the following admissions during his interview with the Department of Environment and Conservation on the 20 February 2003:

• He organised the collection of the used tyres that were taken to the Rossmore property;
• It was his decision that tyres be transported to the shed on the site;
• He had participated in unloading tyres into the shed;
• The shed at Rossmore was full of tyres;
• More than 50 tonnes of tyres had been stored there (although he is not clear on when this limit might have been reached); and
• He estimates that he took 15,000 tyres to the Rossmore site (conservatively, 85.5 tonnes)

20 At the relevant time, Chango was the occupier of the Rossmore site and Mr Obaid was the Director of the company and managed the tyre storage at the site.

21 At no time did Liverpool City Council grant development consent to store used tyres at the Rossmore site.

Storage at the Ingleburn Site (8 March 2002– 11 March 2002)

22 The Ingleburn site is located in the Campbelltown City Council area.

23 The site consists of two adjacent factory units located in a one-story brick building. Mr Obaid and Mr Invernizzi signed the leases for the units as “Juan Carlos Invernizzi and Juan Ovaid (sic) T/As J M Tyre Recycling Services”.

24 Mr Obaid intended to operate tyre-shredding equipment in the factory units, however the electrical system at the units was not sufficient to provide power to the machinery so he used the units instead for the storage of tyres.

25 Mr Obaid failed to pay rent. Consequently, Ms Debbie Nelson, a real estate agent, went to the units on 8 March 2002 to change the locks and saw that Unit 4 was full of tyres, Unit 5 had some tyres in it and there were some tyres outside. At that time the locks were changed and from about 12 March 2002 Mr Obaid was no longer the occupier of the site.

26 On numerous occasions Mr Obaid made arrangements with Ms Nelson to obtain access to the property for the purpose of removing the tyres. On at least four of these occasions, however, trucks arrived at the premises to remove tyres but the drivers were unable to obtain access as neither Ms Nelson, nor her nominee, attended to open the premises.

27 Mr Obaid removed approximately 12.7 tonnes from the Ingleburn site to the Riverstone site. However, a survey conducted on the 19 July 2002, revealed that approximately 70.32 tonnes of tyres remained at the site.

28 The EPA issued a clean up notice to Mr Obaid regarding the Ingleburn site. The notice required him to remove all the tyres from the site by 17 May 2002. Mr Obaid did not comply with this notice and the tyres were removed at the owner’s expense.

29 Mr Obaid made the following admissions regarding the Ingleburn site during the Record of Interview on the 20 February 2002:

• It was his decision that the tyres be transported to the site;
• He had participated in unloading tyres into the units;
• The tyres were stacked from the floor to the ceiling of Unit 4;
• More than 50 tonnes of tyres had been stored in Unit 4 (although he is not clear on when this limit might have been reached); and
• He estimates that he took 20,000 tyres to the Rossmore site (conservatively, 114 tonnes).

30 At the relevant time, Mr Obaid was in management and control of Unit 4 and Unit 5 and so was the occupier of the premises.

31 Campbelltown City Council had not granted development consent to store used tyres at Ingleburn site.

Storage at the Cecil Park Site (5 December 2001 – 19 July 2002)

32 The Cecil Park site is located in the Fairfield City Council area.

33 On 5 November 2001, Mr Obaid leased a number of sheds on this site for the purpose of “tyre storage”. The lease was signed “Juan M Obaid t/as J M Tyre Recycling Services”.

34 After inspecting the Cecil Park site, the Regional Illegal Dumping (RID) Squad conducted an interview with Mr Obaid on the 4 December 2001, during which he acknowledge that he was leasing the sheds and storing about 60 tonnes of tyres in them. The RID Squad informed Mr Obaid that it was unlawful to store tyres as such without both council approval and an EPA licence.

35 On 3 January 2002, the EPA issued a clean up notice to Mr Obaid, requiring him to immediately stop bringing tyres to the site and remove all used tyres from the site by 28 February 2002. Follow up inspections revealed that Mr Obaid had not complied with the requirement to remove all the tyres, although Mr Obaid claimed he removed approximately 40 tonnes of tyres to the Riverstone site.

36 On 30 April 2002, Mr Obaid unsuccessfully applied to the EPA for a licence to store tyres at the Cecil Park site.

37 On the 19 July 2002, a survey of the site estimated that approximately 139.3 tonnes of tyres were stored in the sheds on the Cecil Park site.

38 At the record of interview conducted on the 20 February 2003, Mr Obaid made the following admissions in relation to the Cecil Park site:

• The purpose of renting the sheds was to store tyres;
• He had never submitted a development application to Fairfield Council seeking approval to use the sheds for tyre storage;
• He was aware from the time of his record of interview with the RID Squad in December that a licence from EPA was required to authorise the storage of tyres;
• It was his decision that used tyres be transported to the property;
• He personally unloaded the tyres into the sheds;
• He directed Invernizzi to collect and deliver tyres to the site;
• He had not removed all the tyres by 28 February 2002;
• More than 50 tonnes of tyres were still stored on the site as at 20 February 2003; and
• He estimates that he took 30,000 tyres to the Cecil Park site (conservatively, 171 tonnes).

39 During the relevant period, Mr Obaid was in management and control of the Cecil Park site.

40 Fairfield City Council had not granted development consent to store used tyres at the Cecil Park site.

Storage at the Riverstone Site (16 April 2002 to 12 May 2003)

41 The Riverstone site is located in Blacktown City Council area. The site, consisting of a large brick factory, was leased by “J M Tyre Recycling Services” (with JMTR P/L’s ABN) from 11 March 2002 to 11 March 2003.

42 Mr Obaid intended to carry out tyre reprocessing activities on the site, with equipment, capable of removing wire and other metal components from tyres and of shredding tyres into small pieces, being located at the site.

43 On several inspections of the site, the EPA officers observed large numbers of used tyres being stored on the site. On the 10 March 2003, the EPA issued a clean up notice in relation to the site which directed that a sufficient number of tyres be removed so that the amount of tyres remaining on the property would be less than the threshold required for a licence, that is, less that 50 tonnes by the 10 May 2003.

44 On 26 February 2003, a survey revealed that approximately 119.7 tonnes of tyres were being stored on the Cecil Park site. A further survey on 12 May 2003, later indicated that the amount had reduced to approximately 85.5 tonnes. Since this time, Mr Obaid has been progressively removing the tyres from the site.

45 During the Record of Interview conducted on 20 February 2003, Mr Obaid made the following admissions concerning his activities at the Riverstone site:

• He was a manager of JMTR P/L;
• He had directed employees of JMTR P/L to collect used tyres and transport them to the Riverstone site;
• Over 50 tonnes of tyres were present in the buildings at the site as at the date of the interview (Mr Obaid estimates between 15,000 (conservatively 85.5 tonnes) and 20,000 (conservatively 114 tonnes); and
• He estimates that he took 47,000 tyres to the Riverstone site (conservatively, 267.9 tonnes).

46 JMTR P/L was the occupier of the Riverstone site at the time of the offence. Although, Mr Obaid was not a director of JMTR P/L, he admits that he was the General Manager and made all the relevant decisions with respect to the Riverstone site. As such, Mr Obaid is a person concerned in the management of JMTR P/L and is liable under s 169(1) of the POEO Act.

47 Blacktown City Council had not granted development consent to store used tyres at the Riverstone site.

Sentencing Considerations

48 Section 241(1) of the POEO Act sets out the matters that the Court is to take into consideration in imposing a penalty for an offence under the 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,
(e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee.
(2) The court may take into consideration other matters that it considers relevant.

I shall consider each of these considerations in turn.

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

49 Although there is no evidence of actual harm to the environment in this case, the risks created by the stockpiling of large amounts of tyres at all of the sites are obvious and potentially catastrophic.

50 Mr Mark Castelli is a Fire Safety Officer who has been employed by the New South Wales Fire Brigades Fire Safety Division since March 2002. In Mr Castelli’s affidavits dated 21 October 2002, 6 February 2003 and 25 June 2003, he identifies the following risks which are associated with tyre fires:

(a) they are intensely hot fires, which means that they can burn for hours or days, making them hard to extinguish;
(b) they require extensive resources to manage;
(c) they often destroy the buildings within which the tyres are contained and can spread to nearby buildings. Further, in this case, as the tyres at these sites are not stored in stacks with adequate spacing between the stacks, there is a high risk that if any of the tyres in these building should catch fire, the other tyres would also be ignited;
(d) they are smoky fires with the smoke and fumes endangering the lives of fire fighters and nearby residents, leading to the evacuation of nearby residents; and

(e) in the case of the Riverstone site, there was no method of containing used fire fighting water and so contaminated runoff would drain downhill to Eastern Creek, some 500 metres behind those premises.

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

51 It is possible that the Mr Obaid may not have been initially aware of the risks created by his tyre storage activities. On 4 December 2001, however, he was informed by the RID Squad that his actions were unlawful and required development consent and an EPA licence.

52 Subsequently, Mr Obaid also received three Clean Up Notices in relation to the sites, which required the removal of the used tyres and/or the storage of any remaining tyres in accordance with the New South Wales Fire Brigade’s Guideline for Bulk Storage of Rubber Tyres. The first of these notices was issued on the 3 January 2002. Although Mr Obaid removed some of the tyres from the Rossmore, Ingleburn and Cecil Park sites to the Riverstone site, he did not adequately comply with any of the Clean Up Notices within the required time and the removal of those tyres was insufficient to prevent the likely environmental harm that would occur in the event of a tyre fire.

53 As a result, the tyres remaining at the Rossmore and Ingleburn sites were cleared and disposed of by the landowners and the tyres at the Riverstone site were partially cleared by the subsequent occupiers.

54 Despite the RID Squad warning, the Clean Up Notices and observing the preventative actions of others, Mr Obaid did not take any specific steps to mitigate the harm in relation to the storage of the tyres at the Rossmore, Ingleburn, and Riverstone sites. Moreover, he did not take any practical measure to remove the remaining tyres at Cecil Park until the eve of these proceedings (20 March 2005).

(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

55 As previously discussed in relation to s 241(1)(b), the likely harm was clearly foreseeable to Mr Obaid from 4 December 2001 when he RID Squad informed him that it was unlawful to store tyres without council approval and an EPA licence. Furthermore, at the very latest, Mr Obaid must have reasonably foreseen the risk of harm, which may have resulted from the storage of the tyres when the Clean Up Notices were served on him (the first of which was served on 3 January 2002 in relation to Cecil Park). The foreseeability of risk is also relevant to assessing the culpability of the defendant and the seriousness of the offence: Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 61at 81; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 464 at 476.

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

56 Mr Obaid had complete control over the events giving rise to all of the offences. At all relevant times, he was either the director of, or a person concerned in the management of, the occupying company, being Chango and JMTR P/L at the Rossmore and Riverstone sites respectively (s 169(1) POEO Act), or the occupier himself, being in management and control of the premises at both the Ingleburn and Cecil Park sites.

(e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee

57 This is not a relevant consideration in this case as Mr Obaid had complete control over the collection and storage of the used tyres at all of the sites.

58 Section 241(2) of the POEO Act states that the Court may take into consideration other matters that it considers relevant.

59 The primary consideration in sentencing is the objective gravity or seriousness of the offence: Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-81; Lawrenson Diecasting (at 474). A number of factors indicate the seriousness of the offences in question.

60 Firstly, the actual or likely consequences of a breach may be taken into account in assessing the gravity of the offence: Hannah v Wonah Pty Ltd (1992) 34 AILR 333; WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney [1977] NSWIRComm 44 at [10]. In this case, Parliament’s prescription of the maximum penalty for a breach of s 144 of the POEO Act, namely a penalty of $120,000, is a very clear factor evidencing the objective gravity of the offence. In Camilleri’s Stock Feed Pty Ltd v Environment Protection Authority (1993) NSWLR 683 at 698, Kirby P, with whom Campbell and James JJ agreed, said:

While it is the function of the Court itself to assess the seriousness of the offence in question, the maximum penalty available for an offence reflects the “public expression” by parliament about the seriousness of the offence: R v H (1980) 3 A Crim R 53 at 65. Here, the maximum penalty is $125,000. Such a large penalty indicates the gravity of the offence as perceived by the community… The task of the court is to assess the relative seriousness of the offender’s particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum.

61 In addition, the following circumstances highlight the seriousness of the offences in this case. At each of the sites, the Mr Obaid had collected and stored well over 50 tonnes of tyres, that being the quantity of tyres permitted without an EPA licence (the least amount was 61.6 tonnes which was stored at the Rossmore site). However, he knew of the legal requirements to obtain council approval and EPA licences for the collection and storage of such quantities of tyres. In fact, Mr Obaid obtained a licence to transport used tyres, which was subsequently revoked. Further, he continued to operate without the required licences and consents after being made aware of the serious risks of his actions through a RID Squad warning and Clean Up Notices. Moreover, he subsequently failed to comply with the Clean Up Notices and failed to take proper precautions to prevent or minimise the risk of tyre fires at all of the sites. Finally, in committing these offences, Mr Obaid obtained a financial advantage as he failed to incur expenses that other lawful operators need to meet. In particular, in addition to not having proper consents and licences, he did not adopt the proper arrangements of the tyres during storage, have appropriate equipment for the shredding of the tyres, install containment devices to control used fire fighting water or pay for the lawful disposal of the tyres. All of these factors highlight the seriousness of the offence.

62 General deterrence is also a major consideration in the imposition of penalties for environmental offences: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701; and Capral Aluminium. In particular, Mahoney JA in Axer recognised that (at 359):

The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur.

63 Thus, a penalty for a breach must be sufficient to draw attention to the seriousness of such offences to ensure that Mr Obaid, and others, are encouraged to comply with the law and that the environment is not exposed to risk of harm. For strict liability offences, however, care must be taken to ensure that the penalty imposed does not cause the offender to shoulder an unfair burden of community education: Walden v Hensler (1987) 163 CLR 561 at 570.

64 Section 144 of the POEO Act prohibits landowners and occupiers from permitting their land to be used as a waste facility where it cannot lawfully be used for that purpose. That provision reinforces the need for landowners and occupiers to gain approval for such a facility. The assessment and approval process provides an important procedural step in the protection of the environment. The offence created under s 144 also serves the objectives of waste minimisation and waste avoidance: sub-ss 3(d)(iii) and 3(g) of the POEO Act. The penalty, therefore, should reflect the need to ensure future compliance with those objectives.

65 Similarly, specific deterrence is also an important consideration as it aims to deter the offender from repeating the environmental offence that has been committed. Mr Buchanan SC, appearing for the defendant, submits that there is no risk of Mr Obaid re-offending as he has resigned from being the Technical Director to being a staff member of Aussie Tyre Recycling (ABN 87 104 076 208) (ATR), and further that ATR is only involved in the sale and manufacture of tyres and not in the recycling of tyres.

66 The prosecutor, however, submits that a risk of re-offending still exists and Mr Obaid needs to be made aware that, when working in an area where environmental laws and approvals operate to protect the environment, those laws and approvals must be complied with and appropriate precautions may also be required to be taken. In particular, the prosecutor submits that Mr Obaid must know that it is not acceptable to treat compliance with the provisions of the environment protection legislation as giving way to commercial considerations. I am mindful that Mahoney JA addressed this concern in Axer (at 359):

The legislation envisages that in many cases care must be supplemented by positive precautions; business must be arranged and precautions taken so as to ensure that pollution will not occur.
Precautions may be costly. The costs of precautions to avoid pollution will not doubt become accepted, in due course, as an ordinary cost of operating in an industry where, absent precautions, pollution may occur. … But I believe legislation of this kind contemplates that, in general, the cost of preventing pollution will be absorbed into the costing of the relevant industries and in that way will be borne by the community or by that part of it which uses the product which the industry produces. … The fine should be such as will make it worthwhile that the costs of precautions be undertaken. … Ordinarily, the fine to be imposed should be such as to make it worthwhile that costs of this kind be incurred.

67 I accept that the risk of Mr Obaid re-offending is low. However since he continues to work in an area in which laws enacted to protect the environment operate, the penalty should reflect some element of specific deterrence.

68 A further consideration is the principle of even-handedness, which requires the Court to consider any pattern in sentencing for the particular offence in order to pursue a consistent approach in the imposition of penalties. Street CJ described this consideration in R v Visconti (1982) 2 NSWLR 104, where his Honour quoted a passage from his earlier judgment in R v Oliver (1980) 7 A Crim R 174 (at 107):

The second initial consideration is the ascertainment of the existence of the general pattern of sentencing by criminal courts for offences such as those under consideration. The task of the sentencing judge, no less than the task of an appellate court, is to pursue the ideal of even-handedness in the matter of sentencing. Full weight is to be given to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature. That collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand.

69 In Axer, however, Badgery-Parker J acknowledged the difficulty in applying this principle (at 365):

There is always a difficulty in attempting to compare the penalty in one case with the penalty in another because of the wide divergence of facts and circumstances; that task is difficult enough when one has the full text of all the relevant judgments and more difficult where the material is provided in this summary form.

70 The prosecutor submits that the principle of even-handedness is, therefore, not an object of sentencing in itself, but the “ideal” that will result from the proper application in other cases of the objectives of sentencing namely, the protection of the public, retribution, denunciation, deterrence, rehabilitation and restoration. As such, the objectives are said to operate as “guideposts to the appropriate sentence”: Veen v The Queen [No 2] (1988) 164 CLR 465 Mason CJ, Brennan, Dawson, Toohey JJ at 476.

71 As such, the prosecutor invites the court to consider the decision of the Court in Environment Protection Authority v Richardson; Environment Protection Authority v Behnfeld [2002] NSWLEC 2005. In those cases, the defendants were charged with offences against the Environmental Offences and Penalties Act 1989 (NSW) for unlawfully transporting waste to a place that could not lawfully be used as a waste facility contrary to s 63 of the Waste Minimisation and Management Act 1995 (NSW). Similarly to this case, the defendants were charged on the basis that they caused or permitted the transport of waste in the form of scrap tyres collected from various tyre retailers, and both knew that EPA licences were required for such transportation. Importantly, in these cases, however, the quantity of tyres involved and the risk of environmental harm were much greater than in this instance. The court determined that (at par [16]):

…the primary motive for continuing to collect the tyres and storing them at an unlicensed facility without any realistic prospect of an economic disposal, was the opportunity to derive income without taking responsibility for meeting the costs inherent in complying with the law, either by disposing of the tyres legitimately or obtaining the necessary approvals…[The defendants] avoided the regulatory conditions that reasonably could be accepted to be attached to relevant consents and licences to enable either of the sites to be lawfully used as a waste facility…

Following this, the court accepted the submission of the prosecutor in that case (Mr Buchanan) that (at par [18]):

The wilful disregard by the defendants of the requirements of the legislation for regulatory control of waste facilities which received used tyres takes this case out of the realm of that level of seriousness of offending referable to the need to ensure that the cost of preventing pollution is absorbed into the costing of the relevant industries (Axer) at 359). A significant income stream for the defendants was the payments they received from tyre retailers and service stations for relieving them of the environmental cost of disposal….By reason of their motive for their offences and their contumacious disregard of the law, the sentences to be imposed upon these defendants need to reflect the high levels of general deterrence, individual deterrence and punishment.

In those cases, the maximum statutory penalty was $60,000 and each of the defendants was fined $30,000 taking into consideration the utilitarian value of their early pleas of guilty, their contrition and acceptance of liability for the costs of the clean up of the site, and their co-operation with the prosecutor. In addition, the court recognised that Mr Behnfeld played the leading role in the enterprise and thus had a greater degree of culpability, and ordered that he pay the whole of the prosecutor’s costs in the sum of $40,000 as agreed.

72 In addition, given the circumstances of the commission of the four offences, it is appropriate for the Court to consider the overall criminality involved in all of the offences and, where appropriate, reduce the individual penalties so that they reflect the totality of Mr Obaid’s criminality, in accordance with the principle of totality: Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 703; R v Holder [1983] 3 NSWLR 245 at 260.

73 Finally, several subjective factors, both aggravating and mitigating, are also relevant considerations in determining an appropriate penalty, but are secondary to the factors relating to the seriousness of the offence: R v Rushby [1977] 1 NSWLR 594 at 597; Fletcher Constructions at 77; Lawrenson Diecasting at 474-475. This is because the objective features of an offence relate to the facts concerning the offence, whereas the subjective features relate to the facts concerning the offender: Inspector Petar Ankucic v William George Young [2004] NSWIRComm 184 at par [38].

74 There are two serious aggravating factors which must be considered. Firstly, Mr Obaid continued to act in defiance of the law knowingly operating without the required licences and consents and failing to comply with the Clean Up Notices and take proper precautions to prevent or minimise the risk of tyre fires at all of the sites. Additionally, his more recent steps to remove and dispose of the remaining used tyres and repay Ms Cozzarin the costs incurred as a result of removing the tyres from the Ingleburn site have come well after the commencement of these proceedings. It should not be that an offender should wait to see if he is prosecuted before he takes steps to make good the injuries caused by his offences with a view to obtaining a nominal or low penalty. Both of these factors show that the four offences were not an uncharacteristic aberration of Mr Obaid.

75 The mitigating factors relevant in this instance are that Mr Obaid does not have any previous convictions for environmental offences against the environment protection legislation in New South Wales, he entered an early plea of guilty, and he cooperated with the prosecutor in taking part in two recorded interviews, providing documents and agreeing on a statement of facts. Mr Buchanan SC, appearing for the defendant, also submits that Mr Obaid is contrite and has personally accepted responsibility for the offences and is prepared to undertake, or pay the cost of, the clean up. In addition, Mr Obaid has agreed to pay the legal costs of the prosecution in respect of all of the charges. Finally, evidence was also adduced as to Mr Obaid’s financial means, being an income of $60,000 per annum, and the consequent hardship which he will suffer as a result of the clean up costs and the agreed costs the of prosecution.

Penalty

76 Taking into account all of the circumstances including the means of the Mr Obaid to pay a fine (s 6, Fines Act 1996), it is appropriate to impose a significant monetary penalty for these offences as they are serious offences and the penalty should reflect the objective seriousness of the offence as the primary consideration. Further, it would not be appropriate to impose a nominal or low fine, as the penalty must also take account of the need for specific deterrence as well as general deterrence having regard to the recognised prevalence of tyre dumping and the potential adverse environmental consequences: Environment Protection Authority v Richardson, Environment Protection Authority v Benfeld [2002] NSWLEC 2005 (at par [31]).

77 The maximum penalty under the POEO Act for a breach of s 144 by an individual is $120,000. The purpose of imposing penalties is to ensure that the offender is adequately punished for the offence and for the prevention and deterrence of similar offences: Crimes (Sentencing Procedure) Act 1999, s 3A. Having regard to all the circumstances of this case and the factors considered above, I find that the appropriate penalties are a fine of $60,000 for charge 50060 of 2004, $30,000 for charge 50061 of 2004, $15,000 for charge 50062 of 2004 and $7,500 for charge 50063 of 2004, being a total of $112,500. These amounts are to be discounted by 25% for the utilitarian value of the early plea of guilty: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419. I also allow a further discount of 10% taking into account all other relevant matters including the contrition of Mr Obaid, his acceptance of liability for the costs of the clean up of the site, and his co-operation with the prosecutor. This results in a total penalty of $73,125. In addition, as noted above, Mr Obaid has agreed to pay the prosecutor’s costs agreed in the sum of $30,000.

Court Orders

78 The Court makes the following orders:

No. 50060 of 2004
1. The defendant is convicted of the offence as charged.
2. The defendant is fined an amount of $39,000.
3. Pursuant to s 246(1)(b) of the Protection of the Environment Operations Act 1997, the defendant pay Condone Pty Ltd (ACN 000 381 251) the sum of $17,371.20, being the costs or expenses incurred as a result of the removal of the used tyres from No. 5 King Street, Rossmore, New South Wales by not later than Tuesday, 21 June 2005.
4. The defendant pay the prosecutor’s costs of $7,500 in accordance with s 253(2) of the Criminal Procedure Act 1986.
5. The exhibits may be returned.

No. 50061 of 2004
1. The defendant is convicted of the offence as charged.
2. The defendant is fined an amount of $19,500.
3. The defendant pay the prosecutor’s costs of $7,500 in accordance with s 253(2) of the Criminal Procedure Act 1986.
4. The exhibits may be returned.

No. 50062 of 2004
1. The defendant is convicted of the offence as charged.
2. The defendant is fined an amount of $9,750.
3. Pursuant to s 245(a) of the Protection of the Environment Operations Act 1997, the defendant remove all of the used tyres located in the two sheds at Nos. 2073-2081 Elizabeth Drive, Cecil Park to a place that can lawfully receive them by not later than Tuesday, 19 April 2005.
4. Pursuant to s 245(a) of the Protection of the Environment Operations Act 1997, the defendant obtain written receipts from any person receiving the used tyres referred to in Order 3 above stating at least the date and the amount of tyres received.
5. Pursuant to s 245(a) of the Protection of the Environment Operations Act 1997, the defendant provide a copy of those receipts to the Manager, Sydney Waste, Department of Environment and Conservation, 59 Goulburn Street, Sydney NSW 2000 by not later than Monday 2 May 2005.
6. The defendant pay the prosecutor’s costs of $7,500 in accordance with s 253(2) of the Criminal Procedure Act 1986.
7. The exhibits may be returned.


No. 50063 of 2004
1. The defendant is convicted of the offence as charged.
2. The defendant is fined an amount of $4,875.
3. The defendant pay the prosecutor’s costs of $7,500 in accordance with s 253(2) of the Criminal Procedure Act 1986.
4. The exhibits may be returned.
   
   

   I hereby certify that the preceding 78 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

   Associate

   Dated: 15 April 2005
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