Environment Protection Authority v Pal - [2009] NSWLEC 35

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Pal [2009] NSWLEC 35
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Kate Maree Pal

FILE NUMBER(S): 50025 of 2007; 50026 of 2007

CORAM: Sheahan J

KEY ISSUES: PROSECUTION :- Tier 1 offence, plea of guilty, negligent disposal of waste, actual and likely environmental harm, totality principle, absence of contrition, capacity to pay fine etc, futility of orders, sentencing principles and options, need for general deterrence, community service

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Protection of the Environment Operations Act 1997
Crimes (Sentencing Procedure) Regulation 2005

CASES CITED: ACCC v Chen [2003] FCA 897
Aref Rahme (1989) 43 ACrimR 81
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234
Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683
Cobiac v Liddy (1969) 119 CLR 257
Environmental Protection Authority v Barnes [2006] NSWCA 246
Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349
Environment Protection Authority v Coggins [2003] NSWLEC 111 (2003) 126 LGERA 219
Environment Protection Authority v Douglass (No.2) [2002] NSWLEC 94
Environment Protection Authorityv Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147
Environment Protection Authority v Waight (No.3) [2001] NSWLEC 126
Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299
Environment Protection Authority v White (1996) 92 LGERA 264
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2004] FCA 1510
L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157
Mill v The Queen (1988) 166 CLR 59
R v JRD [2007] NSWCCA 55
R v O’Neill [1979] 2 NSWLR 582
R v Thomson; R v Houlton [2000] NSWCCA 309 (2000) 49 NSWLR 383
Smith v The Queen (1991) 25 NSWLR 1
Veen v R (1979) 143 CLR 458 and Veen v R (No.2) (1988) 164 CLR 465

DATES OF HEARING: 28-31 July 2008, 24-25 September 2008

DATE OF JUDGMENT:
31 March 2009

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr S Rushton SC (with Mr M Friedgut at the early stages)
SOLICITORS
Mr P Barley of Depatment of Environment and Climate Change
DEFENDANT
Mr T Ryan
SOLICITORS
Osborne Bricknell Howell

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

31 March 2009

50025 & 50026 of 2007 Environment Protection Authority v Pal
JUDGMENT

Introduction

1 His Honour: The defendant, Kate Maree Pal describes herself as having worked for many years as a “landfill consultant” (rather than the prosecutor’s description “Waste Broker”). She was the principal of a business known as Sydney Earthmoving Solutions, and a director, with her husband Mark, of the company Mattori Haulage Pty Ltd which owned and traded under that business name. (The company was first registered in 1995 and the business name in 1997, but Mr and Ms Pal ceased operating their own trucks for “haulage” in the late 1990s). Essentially thereafter she located sites, usually on the outskirts of Sydney, where excavation and earthmoving contractors could place or dispose of soil and other materials excavated from building and demolition sites (Exhibit D4 par 4).

2 Ms Pal has pleaded guilty to two charges under s115(1) of the Protection of the Environment Operations Act 1997 (“POEO Act”) that she negligently disposed of waste in a manner that harmed or was likely to harm the environment. The court must now decide what penalty to impose.

A short history of the proceedings

3 Camden Council made a written complaint to the prosecutor on or about 10 May 2004 about landfilling operations in the Cobbity area, and an investigation began almost immediately.

4 A statutory notice was served on the defendant on 18 June 2004, but the prosecutor found her response of 13 July 2004 “incomplete”. There were discussions, correspondence, further notices, and a further “incomplete” response dated 30 September 2004, during and covering the period up until 30 November 2004. The prosecutor then sought and obtained a search warrant (Exhibits D6 and P29), which it executed on 1 December 2004. The defendant arranged for her long-time solicitor, Mr Danny Wayne Bricknell (Exhibit D4 par 6), to examine the relevant search warrant file at the Downing Centre on 2 December; he made notes of his examination (Exhibit D5) and sent them to her.

5 The summonses were issued on 4 April 2007, and the defendant appeared for herself until 21 September 2007, when Mr Bricknell came (back) into the matter (apparently after her legal aid was approved (T Day 5, 24.9.08, p68, LL30-32). Following discussions between the parties, and after advice from senior counsel in November 2007, the defendant entered pleas of guilty to both charges on 14 December 2007.

6 On 8 February 2008 she sought leave to withdraw her pleas, and leave was granted by Jagot J on 7 March 2008. By that time Mr Ryan of counsel was appearing for her. The then appointed sentence hearing was vacated, and the matter set down for trial 28 July - 8 August 2008.

7 When the trial commenced on 28 July, the defendant again entered pleas of guilty, and I accepted them. The prosecutor has run the case on the basis that the two offences constitute a single course of conduct, or the “same transaction or enterprise”. L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157, at 168.

The charges

8 In their final form the charges assert the negligent disposal of 18,000 cubic metres of “inert waste” at 26 or 44 (or ?56) Coates Park Road, Cobbitty (“Galea property” – matter No.50025 of 2007), and 44,000 cubic metres of “inert waste” at 15 Colonel Pye Drive, Cobbitty (“Turner property” – matter No.50026 of 2007). The charge periods are between 1 January 2003 and 31 May 2004 for the Galea property, and between 1 December 2002 (submissions refer to 1 January 2003) and 31 May 2004 for the Turner property.

9 The court had the benefit of a comprehensive inspection of both these properties on Day 2 of the hearing (29 July 2008).

10 The summons in each matter alleges that the offending “inert waste” contained “Soil; Rock; Brick; Concrete; Bitumen; Wood; Plastic; Asbestos; Steel; and Other matter”.

11 The particulars of negligence pleaded in the summonses are as follows:

In both matters:

“ The Defendant failed to ensure that:
(i) the Waste could lawfully be disposed of at the Premises;
(ii) the Premises were appropriate, or appropriately prepared, to receive the Waste;
(iii) The area at the Premises where the Waste was disposed of was lined or had mechanisms in place to prevent material or leachate from the Waste migrating into waters or onto land;
(iv) different sorts of waste were dealt with and disposed of at the Premises appropriately, instead the Waste was mixed and disposed of indiscriminately;
(v) the source of the Waste was properly identified by validation certificates;
(vi) the Waste brought to the Premises was properly identified and validated;
(vii) the Waste brought to the Premises was disposed of in a place or position at the Premises that would not cause Water pollution;
(viii) the Waste brought to the Premises was disposed of in a place or position at the Premises that would not cause harm or likely harm to the environment;
(ix) steps were taken when the Waste was received, dealt with and disposed of at the Premises to minimise or prevent harm or likely harm to the environment.
(x) her staff and/or contractors had the requisite skills and knowledge to deal with the Waste in a manner that minimised or prevented harm or likely harm to the Environment; and/or
(xi) each load of Waste delivered to the Premises was adequately inspected prior to its disposal at the Premises.”

“the defendant failed to ensure that the Waste met the criteria specified in the development consent issued by Camden Council.”

12 The particulars of “harm or likely harm to the environment” in each summons are as follows:

“(i) degradation of the environment;

(ii) land pollution, namely, the degradation of land because of the disposal of the Waste on land at the Premises;

(iii) disposal of the Waste in such a manner as to constitute a pollution of waters; and

(iv) disposal of the Waste without any adequate measures to prevent leachate entering waters including groundwaters

13 The maximum penalty for each offence at the time was $250,000 and/or seven years imprisonment (s119 POEO Act). Amendments to s119 which commenced in May 2006 specify different penalties for offences committed wilfully and offences committed negligently, namely, a maximum penalty of $1,000,000 and/or seven years imprisonment for a wilful offence committed by an individual, and $500,000 and/or four years imprisonment for a negligent offence committed by an individual. However, the maximum term of imprisonment which this court can impose in respect of each offence is two years (s214(2) POEO Act).

The facts charged

14 Despite the guilty pleas to the charges (see [76] below), there is disagreement between the parties over some of the important facts surrounding the two offences. The parties disagree, inter alia but primarily, over the nature and quantity of “material” placed by or on behalf of the defendant on the Turner and Galea properties. They could not reach agreement on a Statement of Facts.

15 Matters contained in a “Proposed Statement of Facts” (“PSOF”) served by the prosecutor on the defendant (and in evidence as an attachment to Kate Pal’s affidavit of 23 September 2008) formed the basis of the allegations of fact run by the prosecutor at the sentencing hearing. Many, perhaps most, of them were disputed by the defendant, both in submissions made on her behalf, and in her affidavit and oral evidence (see affidavits of Kate Maree Pal, sworn 22 February 2008 and 23 September 2008, and T Day 5, 24.09.08, pp19-63).

16 Mr Ryan explained to the court at the very beginning of the hearing on 28 July 2008 that, despite having been briefed in the matter since February 2008, when he represented her in her application to withdraw her plea of guilty so she could defend the charges, he still did not have “absolutely final instructions on certain matters” to inform his cross-examination of prosecution witnesses and finalise an affidavit by Ms Pal he then expected to file on 28 or 29 July (see T Day 1, 28.7.08, p13, LL18-41). On Day 4 of the hearing, 31 July, after all the prosecutor’s witnesses on factual issues had concluded their oral evidence, Mr Ryan indicated that the defendant’s affidavit of her factual evidence would not be filed until her psychological evidence had been updated and the hearing had resumed in September (T Day 4, 31.7.08, p5l, LL34-47).

17 The Prosecutor relied on in excess of 5000 folios of written material, the bulk of it brought into evidence by the following witnesses who provided affidavits and multiple exhibits:

Officers of the Prosecutor

· Ruth Elizabeth Marion Owler (an inspector/investigator in the Waste Operations section)

· Daniel George Benedict Large (senior Environmental Scientist in the Waters and Catchment Science section)

· Julian Thompson (Owler’s supervisor in the Waste Operations section)

· Celeste Mary Forestal (an officer of the Waste Operations section)

· Peter Tennyson Barley (a solicitor with carriage of this prosecution).

Other Prosecution witnesses:

· Gary Kevin Turner, the part owner of the relevant land in charge No.50026, on which he resides and runs horses, and from which he partly supervises his building business.

· Daniel Louis Galea, the owner of the relevant land in charge No.50025, on which he resides and conducts a chicken farming business.

· Geoffrey Barrett Rands, principal of Manbox Recycling Pty Ltd (a skip bin operator licensed by the EPA as a waste transfer and recycling facility).

· Tracey Jean Davies, a relative of the defendant, who undertook some recording tasks on the defendant’s behalf as a “Gate Keeper” at the entry points of the two properties.

· Robert Michael Trosser, a haulage contractor with an EPA Waste Transporter’s licence.

· Neil Leslie Thomson, a development officer employed by Camden Council.

· Sharon Darlene Gaudry, a former Commercial and Industrial Auditor at Camden Council.

· Fiona Stalgis, an environmental health officer, and latterly a team leader, at Camden Council.

· Christopher Arends, an environmental geologist and engineer with URS Australia Pty Ltd, and the principal author of URS’s extensive report characterising “fill mounds” at the properties.

· Seth Molinari, Senior Environmental Engineer with and a Senior Principal of URS Australia Pty Ltd.

· Michael Everingham, director of an eponymous civil construction and general excavation company.

· Charbel John Nassif, an employee of a Nassif family company engaged in excavation and demolition.

· Rodney Michael O’Brien, a bulldozer contractor trading under the name “O’Brien Excavations and Haulage”.

· Stuart Neil de Nett, a registered land surveyor.

· Richard Lawrence McClenahan, a registered land surveyor.

· Rodney John Doggett, Manager Acoustic Soundproofing with Regupol Australia Pty Ltd.

18 Counsel for the defendant relied on the two affidavits sworn by the defendant Pal herself, her oral evidence, two reports and oral evidence from her psychologist, Alexandra Edgar, and oral evidence from his instructing solicitor, Mr Bricknell. He also required the following prosecution witnesses for cross-examination – Turner, Galea, de Nett, Arends, Large, Thompson, and Thomson.

19 As presaged in [14]-[16] above, the Defendant’s affidavit of 23 September 2008 joining issue with much of the PSOF was not produced to the court until after her counsel had concluded his cross-examination of the prosecution witnesses listed in [18], upon whose evidence the PSOF was based. Many of the contentions she advanced in that affidavit, which took issue with almost every aspect of the PSOF, were not put to them in cross-examination. All the prosecution evidence tendered was admitted without any objection from the defence, and the prosecutor had proceeded through the first four days of hearing on the basis that the facts “in contention will be reasonably well confined” (T Day 1, 28.07.08, p2, LL22-23). Ms Pal’s earlier affidavit of 22 February 2008 had been sworn (but was not filed) in support of her application for leave to withdraw her original guilty plea. Neither of her affidavits came before the court until after she commenced her oral evidence on Day 5 of the hearing, 24 September 2008 (see Tp20).

20 Julian Thompson deposes in detail to the regime of waste regulation in New South Wales. The following paragraphs appear in his affidavit affirmed 30 January 2008:

“18. Waste disposal in NSW or non-liquid wastes is regulated with different levels of regulatory scrutiny, commencing from the most environmentally benign waste category and going through to the most environmentally hazardous waste:

· ‘Inert Waste’ (eg, bricks and concrete, building and demolition wastes, Virgin Excavated Natural Materials), is the most environmentally benign category of waste and which is accordingly the subject of the least stringent regulatory regime;

· ‘Solid Waste’ (eg, domestic garbage), presents some potential for significant environmental harm if not managed appropriately, is somewhat more regulated than inert waste. For example all landfill sites disposing of any quantity of ‘Solid Waste’ in the Sydney, Hunter and Illawarra region are required to be licensed under the Act;

· ‘Industrial Waste’ (eg, chemical wastes from industry, contaminated soils) is the second highest category of non-liquid waste because of its higher potential to cause significant environmental harm if not managed properly and is the subject of thorough regulation from the point of generation through its treatment, transport and disposal. For example, all parts of the waste chain (the generator, the transporter and the disposal facility are required to be licensed under the Act); and

· ‘Hazardous Waste’ (eg, flammable, radioactive or toxic chemical waste) is the highest category of waste, being waste that is potentially very harmful to human health and the environment and which, accordingly, cannot lawfully be disposed of to landfill in New South Wales and must either be treated to remove contaminants or remain in a tightly controlled and regulated location.

19. The words

‘Clean Fill’

are often used in the excavation and waste industries to describe certain non-liquid wastes produced in NSW. The POEO Act and the EPA do not use or recognise the term ‘Clean Fill’. This is because the term ‘Clean Fill’ can be misleading as to the classification of a particular waste.

20. The term ‘Clean Fill’ can have many meanings. It can describe different wastes with generally similar physical properties (eg. Soil, clay, rock, sand, gravel) which may have widely varying levels of chemical contaminants which would result in the classification of these wastes varying across the waste classification spectrum from ‘Inert’ to ‘Hazardous’ waste.

21. Therefore waste described as ‘Clean Fill’ could be classified, depending on its level of chemical contamination, as ‘Inert’ waste (eg. If it were excavated from uncontaminated areas) or, if it were excavated from a contaminated site, it may be contaminated to such an extent as to render it classified as ‘Hazardous’ waste.”

21 Thompson also notes (in par 16(c) of his affidavit) that: “Waste containing asbestos is classified as ‘Industrial’ waste in accordance with the POEO Act”.

22 He was cross-examined on his use of definitions, and, on waste classification generally (T Day 3, 30.7.08, pp77-79) he identified two “paths to classification”, viz (T p78, LL17-24):

One is via a direct notation in the Act that a certain type of waste is classified as a certain classification or there’s another way of classifying waste where you undertake chemical testing of that material, work out the chemical and physical and biological contamination levels and then they fit into I guess a table of contaminants and you can then classify that waste in accordance with those chemical contamination thresholds so it’s via sampling and analysis.”

23 He went on to make the following additional comments in answer to defence questioning (T p78, L41-T p79, L35):

Q. Yes, just for example and there may be materials at the surface such as asbestos and bricks and tiles and glass and things like this from a decommissioned factory but it’s possible to have perfectly safe to use VENM, virgin excavated natural material, below those surfaces?

A. Yes. In fact that’s the usual case.

Q. So that effectively, given that VENM is the least problematic and that from your point of view and from ecological point of view you’d want that put into landfill sites one could take the VENM which is underneath the materials, provided they have been properly removed?

A. Yes, in fact that’s the normal course of proceedings in a demolition job, to take away what can be recycled out of the building, take away what can’t be recycled to a landfill and then to access the VENM underneath to use for purposes usually other than landfill although you can take VENM to a landfill if you wish.

Q. And even when materials such as soils and sandstone, et cetera, are contaminated with, say, types of metals they can still be used, can’t they, in landfills provided the level of contamination is below a certain level, is that right?

A. If virgin excavated natural material is contaminated with any chemicals then it can’t be classified as virgin excavated natural material anymore so it then has to be classified on the basis of what contamination it has within it and then its use is then determined by what the classification is so if it were to be classified as hazardous waste on the basis of its contaminates then it would have to be automatically treated, it can’t go to landfill. If it was industrial it has to go to a special industrial waste landfill. If it was solid it has to go to a solid waste landfill and if it was inert there are a number of exemptions from landfill licensing in the Protection of the Environment Operations Act which mean that it either can go to an inert waste landfill or if it’s under a certain tonnage in a certain area of the State then it can be applied to land at a non-licensed landfill.

Q. And if we can go on to the term

clean

fill

, a fairly, well, unhelpful way of describing waste, isn’t it?

A. Indeed, I think I wrote that in my affidavit. It’s not a term that is recognised by the Protection of the Environment Operations Act or by the EPA.

Q. And it’s fair enough that it could mean different things to different people?

A. Indeed, I think that’s what I said in the affidavit.

Q. And the term mixed fill is similarly a matter of it could mean different things to different people?

A. Indeed.”

24 I have drawn particular attention to the above evidence regarding the term “clean fill” because the development consent granted to Turner, under which Pal agreed to work on that property, provided in Condition 13:

CLEAN FILL ONLY – Any fill material imported to the site must consist only of clean fill material, ie non-contaminated excavated material and soil, rock or similar material. Putrescible and non-putrescible solid waste (including demolition material) must not be permitted

25 A further complication arises from the fact that Ms Pal in her business operations used her own classification system as a basis for the fees she charged. In her affidavit of 23 September 2008 she says:

“10. Paragraph 4 of the Statement of Facts … alleges that I arrange for the disposal of ‘solid waste’. I have never deliberately sought or placed any waste which could be described as ‘solid waste’ (as I understand that term) on any site on which I have been working throughout my involvement in the industry … At no time did any transporter or generator of waste indicate to me that it was their intention to provide ‘solid waste’ as the materials to be used as fill at the Cobbity properties.

…

15. In respect of paragraph 9 of the Statement of Facts, I note that Mr Everingham brought on some 7,000 tonnes of fill to the Turner property. In his affidavit sworn on these proceedings on 3 July 2007 at paragraph 10 he notes that he used ‘hardcore material’. He concedes that the material can be anything from ‘rock, shale, concrete and brick …’. He says that the material he was bringing on was ‘mostly rock and shale’. He does not say what the remainder of the materials were that he was bringing on. He does not exclude the possibility that there was concrete and brick in the material that he was bringing.

…

29. …I did not use the term ‘inert material’ when speaking to Mr Galea at any time that I can recall as I would not have expected him to understand what that meant. On its own terms, the statement does not make any sense because VENM (as I understand it), under the EPA classifications is in fact ‘inert material’. …

…

38. As Mr Julian Thompson says in his affidavit in these proceedings, the term ‘clean fill’ is not one defined in any legislation and can mean different things to different people. ‘Clean fill’ is referred to in the Development Approval in respect of the Turner property but it is not defined. It simply states that it does not include certain materials. When I was using the term, I meant usually VENM or at least entirely clean material of one kind or another. That is, clean fill meant that it was all clay or all sandstone or all rock or all shale. There was no mixing of different types of fill material together. The term ‘mixed fill’ simply referred to loads that had a combination of various types of landfill. That is, a load that had clay as well as shale and sandstone or rock was ‘mixed fill’. I charged more in respect of mixed fill because it was often necessary to separate the materials before putting them to use on the site. For example, if a load came in that had rocks as well as smaller bits of sandstone and shale, these would need to be separated out and the rocks would need to be crushed. As there was more effort on the part of my company then I charge more for the dumping of such loads. My paperwork features ordinarily three different codes for the different types of materials, that is 1001 – VENM, 2001 – Clean fill and 3001 – Mixed fill. The difference between VENM and the clean fill was simply that the VENM was straight out of the ground whereas materials that might have been VENM once upon a time (and were the same material all the way through the load) were referred to by me as ‘clean fill’.”

26 Mr O’Brien also had a definition of what fill was “clean” – “dirt, rocks, clay, shale and road base, but no building material or house rubbish” (O’Brien affidavit of 23 May 2007, par 66).

The Properties
The Turner Property

27 The Turner property is owned by Gary and Janice Turner who have lived there for about fourteen years. It is a large urban/rural residential property of some 11 hectares upon which are located two dams (see plans and photos, Annexure A, B and C of the affidavit of Gary Turner sworn 1 February 2007). As well as being the site for the Turners’ residence, the land is home to several horses.

28 Mr Turner had obtained development consent (see DA 2282/2000 (23 January 2001), Annexure D of his affidavit, par 4) “to improve the property by raising some levels and improving the soil around an old septic tank and generally reshaping the property to get better pasture”. To undertake this work he engaged Michael Everingham in March 2003 “to start the works which involved bringing virgin excavated natural material (VENM) onto the property... He worked for about 6 months but he did not bring very much material on to the property. I estimate that he brought about 100 truck loads of material onto the property but he said he found it difficult to source good quality material. The material he did bring on was mainly crushed sandstone.” (par 5 of the Turner affidavit of 1 February 2007)

29 The work undertaken by Mr Everingham progressed slowly and Mr Turner became “a bit impatient”. He deposes to becoming aware, in late November/early December 2003, that Kate Pal was working at a golf club where his wife had played. He rang her and enquired about obtaining some “fill”.

30 Mr Turner gave Ms Pal, at her request, a copy of the relevant development consent (see Turner affidavit of 1 February 2007 at par 6 and T Day 5, 24.09.08, p45, LL3-13), condition 13 of which (as noted in [24] above) required that “any fill material imported to the site must consist only of clean fill material, ie non-contaminated excavated material and soil, rock or similar material. Putrescible and non-putrescible solid waste (including demolition material) must not be permitted.” None of this evidence is contested by Ms Pal.

The Galea Property

31 The Galea family has for some time run a chicken farm on the relevant Galea property (approximately 49.5 hectares in area), on which the witness Daniel Galea also has his residence. Mr Galea’s brother had obtained approval in 1998 for the construction of new chicken sheds (see annexures 2 and 3 to the Galea affidavit of 23 January 2007) The new sheds were to be constructed on earthen pads or platforms, and the fill needed to construct these pads was originally to be sourced from within the site (using cut and fill).

32 When it became apparent that some external fill would be needed to finish the pads, Galea spoke to Neil Thomson at Camden Council about importing fill, and Thomson deposes that Council gave “an implied approval that Galea could bring in fill for the last two sheds.” (affidavit of Neil Thomson, 4 May 2007, par 20)

33 Mr Galea saw the filling activities occurring on the Turner property in late 2002/early 2003, and a sign on the entry which said “Sydney Earthmoving Solutions”. He further deposes to talking with Kate Pal and showing her the Construction Certificate plans (approved 22 March 2001) (Exhibit P4), but he cannot remember whether he showed her the development consent. Ms Pal states that she “did not see a copy of the Development Approval itself because I was told by the Council Officer to whom I spoke that the approval for the bringing on of fill was given orally”. She deposes that she believes the officer to be Neil Thomson (affidavit of Kate Pal, 23 September 2008, pars 26, 28)

Control of the properties, and of access to them

34 Both Turner and Galea, upon engaging Ms Pal to undertake the fill operation, placed control of their sites in her hands. (See Turner affidavit of 1 February 2007, par 14, and Galea affidavit of 23 January 2007, par 15).

35 The access gate to the Turner property was fitted with a padlock, with Ms Pal and Mr Turner in possession of the only keys (Turner affidavit, 1 February 2007, par 15). Despite the acknowledgement of Ms Pal that she controlled the site (see Pal affidavit, 23 September 2008, par 18, and, T Day 5, 24.09.08, p.25,14ff), and the fact that she and Mr Turner were the only two people able to open the access gates, several people (e.g. Turner and Doggett) depose to seeing (or have reported to them) that the access gate was unlocked and open (without any evident supervision by Ms Pal). Doggett deposes (in his affidavit, 18 May 2007, par 48) to a conversation he had with Luke McLachlan, a fellow Camden Council employee, who said to him:

“I was at the Turner property out at Cobbitty. I noticed that the gate was open and I couldn’t see anybody around. I saw some trucks go in and dump material on the site.”

36 Kate Pal, either personally or through someone directed to by her (e.g. her husband Mark, or Davies, or occasionally an unidentified “young man”), would “staff” the access gates to the subject properties. One such person was Tracey Davies. It was alleged by the prosecution, and admitted by Ms Davies, that she had “no experience in the waste industry” (see PSOF, par 15, and, Tracey Davies’ affidavit, 1 March 2008, par 3). Ms Pal told Ms Davies “to write down the number plates of the trucks that came to the property each day...[She] also wrote down what company they were coming from, the time that they came, where they were coming from and what they were bringing (soil or fill)” (par 14).

37 Ms Davies further deposes to not checking “the loads when they came out to the sites”, as Ms Pal knew where the fill was coming from and would have pre-inspected it; nor did she ever turn “anybody away from either property” (par 22-23). On the other hand when Mark Pal was on the gate he would often get up on loads, check them visually, and reject “loads that had inappropriate materials in it (sic)” (Kate Pal affidavit, 23 September 2008, par 25; see also Rod O’Brien affidavit, 23 May 2007, par 71).

38 The Galea property would appear to have had two main access gates suitable for truck access, for simplicity referred to in evidence (see Exhibit P20 (NT5)) as gates 1 and 2, with gate 1 being towards the Northern end of the Galea property‘s frontage to Coates Park Road and gate 2 further to the South.

39 Rodney O’Brien (the bulldozer driver retained by Ms Pal to level fill brought onto the properties) deposes to seeing “trucks bringing fill onto the [Galea] property using both access points”. He refers to “X1” and “X2”, but they accord with gates 1 and 2 respectively. He states that “X2” was used at the beginning of the operations, but, once “X1” was “cleaned up by putting clay and shale materials on it to make it a better road”, “X2” was padlocked and not used (affidavit of Rodney O’Brien, filed 23 May 2007, pars 53-54 and Annexure C).

40 Camden Council’s Neil Thomson deposes to entering the tipping area on the Galea property on at least two occasions through gate 2 (affidavit of Neil Thomson, 4 May 2007, pars 42 and 52). There also appeared to him to be a third entrance (gate 3?) to the Galea property from Coates Park Road, located further to the South of gate 2 (see Exhibit P20 (NT5)). Neil Thomson deposes to seeing trucks entering the Galea property via gate 3, and adds that “it did not seem unusual that the truck was using this entrance considering the state of the road from the Gate 1 entrance” (par 54).

41 Robert Trosser (a waste transporter) deposes to taking material to the Galea property where there was “an arrow telling you which one [of two entrances] to use. ...” (affidavit of Robert Trosser, 12 February 2007, par 16).

42 Mr Galea testified that gate 1 was used by Ms Pal to import fill, and gate 2 was used for the delivery of supplies for his chicken farm (the road being suitable for trucks) (T Day 3, 30.07.08, p.30, LL24-40; p.34, LL1-3). Ms Pal deposes that she does “not recall any trucks authorised by me to take alternative routes through the property” (ie, other than through gate 1) (Kate Pal affidavit, 23 September 2008, par 33).

The offending materials

43 Despite the control Ms Pal purported to exercise over the Turner and Galea properties, offending waste materials, including bricks, piping, asbestos, plastic, concrete and bitumen, were dumped at the two properties while she was organising supposedly “clean” fill for them. She acknowledged in cross-examination the existence of such material at the properties, but stated that any such material was placed at the two properties without her knowledge or consent (T Day 5, 24.09.08, p.25, LL14-48).

44 The prosecutor settled upon 44,000 cubic metres (Turner) and 18,000 cubic metres (Galea) as the amounts/volume of offending waste to include in the charges. These numbers were derived from volumetric surveys done, principally, by de Nett, and they represent a conservative approach to the available evidence (see also Exhibit P3, par 4.9). (Ms Pal in her voluntary response to the EPA’s statutory notice nominated fill volumes of 63,000 cubic metres at the Turner property and 41,000 cubic metres at the Galea property. In her affidavit of 23 September (par 37) she says they were “guesstimates”, and almost agrees to accept the URS estimates).

45 As Mr Ryan submits, it is quite possible that those surveys may have included some materials from non-Pal sources, both Turner and Galea conceding that there were over time other sources of fill drawn upon (notably Everingham in August 2002, in the case of the Turner property), and family members and others at various times (such as Rands for road materials) in the case of the Galea property.

46 On the other hand, neither of these landholders had any interest at any time in substandard fill being imported on to the subject lands, let alone fill so contaminated as to prove useless for its intended purposes on each property.

47 Both men were seriously tested by cross-examination, and both made fair concessions, but nothing sufficient to derogate from the conservative estimates charged, to the extent of creating any reasonable doubt that the correct volumes are of that order.

48 In the final analysis all the controversy about whether or not 100 truck or “bin” movements per day could be managed at the Turner property proved to be relevant only to Mr Turner’s credit, as compared to Ms Pal’s, rather than helping the court on the issues of quantity of fill. Mr Turner says he observed an estimated 100 movements per day, and Ms Pal says the Turner site could handle only 45 (her affidavit 23 September, par 23). I found the evidence of both Turner and Galea very frank, cogent and credible on these and other matters, and I accept it. On the other hand, I found Ms Pal’s evidence largely uncorroborated and generally unconvincing, especially as given in the witness box.

49 I, therefore, have concluded that the estimates of 44,000 and 18,000 cubic metres respectively have been proven beyond reasonable doubt.

50 The nature and quality of the waste can be seen in many photographs among the evidence (see especially Exhibits P15, P16, P17, P21 and relevant parts of P1 and P20) taken prior to the view. The waste was subjected to expert sampling and testing. Mr Ryan challenged the expertise deployed by the prosecutor, and the findings, but asbestos was clearly detected among the waste on both properties (see “R08” in Exhibit P1), and Mr Arends convincingly defended, in cross-examination, the test methods, and the results in the report prepared by URS Australia (Exhibit P23).

51 At the end of the day URS concluded that, across the two sites, 20% of the fill materials “clearly shouldn’t be there” (e.g. steel, timber, fibro, bitumen, rubber, plastics, etc), and that an unclear proportion of the other 80% is also “contaminated” by non-VENM (e.g. concrete, brick, etc). URS also estimated that imported fill covered approximately 35% of the 11 hectare Turner property (approximately 4ha), and approximately 10% of the 49.5 hectare Galea property (approximately 5ha). URS opined that the correct classification of the Pal material would be “industrial waste”, and some samples showed leachate levels consistent with “inert waste” (see Exhibit P23 “ESI”).

52 The evidence also indicates that the quality of the waste organised by Ms Pal deteriorated over time. O’Brien deposed (pars 66-67 of his affidavit 23 May 2007) that “the fill coming on to the properties was not 100% clean”, in the sense of “dirt, rocks, clay, shale and road base, but no building material or house rubbish”. By early 2004, building and demolition waste was clearly included in the imported fill.

53 I accept the URS evidence also as to nature and quality of the materials.

The Defendant’s case

54 In earlier sections of this judgment I have set out at least the thrust of the factual evidence Ms Pal has given regarding the facts as they are asserted by the prosecutor. In fairness to the seriousness of her situation, and before the court embarks on the sentencing function, I should also set out some more of her own words and also the medical/psychological evidence before the court.

55 In her affidavit of 22 February 2008 (to which she adhered in her later affidavit) the defendant made the following comments:

“6. A search warrant was executed at my home on 1 December 2004. This process took many hours and caused a great deal of upset to myself and my family. I had never been the subject of such a process before and found it humiliating and distressing.

7. As a result of this, the ongoing investigation and the instigation and conduct of these proceedings, my mental and physical health has significantly deteriorated.

8. Amongst other problems which I now have, I suffer from a serious tendency to indecisiveness and very poor concentration. It has at times affected the quality and timing of my instructions to my solicitor who has the conduct of these proceedings.

…

14. [In late November 2007] I understood [Lloyd QC] to be saying that my liability arose (at least in the matter relating to the Turner property) from my inability to totally secure the property so as to prevent other unknown persons from dumping the waste complained of in the summonses on that property. That is; I was ‘negligent’ because I failed to stop dumping of the offending materials on the site regardless of any precautions I took to prevent this happening. I did not understand at that time that it was being suggested that I, in fact, contracted with people to do so.

…

21. I do not believe that anything but ‘clean fill’ was placed on the Turner and Galea properties by people with whom I contracted.

22. Furthermore, it is my belief that any contaminated or inappropriate materials placed on these sites was done by people over whom I had no control and without my knowledge. It was done despite what I considered to be reasonable efforts by me to prevent this happening.”

56 The following extracts from her affidavit of 23 September should also be particularly noted:

“7. I have now decided to accept the advice of Counsel and enter pleas of guilty to each of the charges. I accept that I was negligent in the conduct of the filling works at each of the properties referred to above. However, I do not accept that the proposed ‘Agreed Statement of Facts’ drafted by the Prosecution and provided to my legal representatives earlier this year, fairly represents the facts of this case.

…

12. I had left school in 1986, having completed Year 10 at The Entrance High School. I do not have any tertiary qualifications and I learnt about the landfill industry as I went along. Over the years that I have been in the landfill industry I have sought to create internal procedures and standards with respect to doing jobs which aim at ensuring that no illegal substances are transported by or on behalf of my company to landfill sites.

18. … I agree that I, generally speaking, had control of what material came onto the Turner property. However, there were occasions when, sometimes for weeks, we were not actually working on the property when access to fill dried up. In fact there was a period of 2-3 weeks just before Mr Turner raised the issue of the quality of materials coming onto the site and indicated to us the various stockpiles with which he marked a blue ‘X’. I do not believe that those piles were brought on by transporters whom we had arranged to provide fill to the site or if they did, they did so without our knowledge.

…

20. I do not know how often people did this kind of unauthorised dumping on the sites but a similar problem occurred with both the Turner and the Galea property from time to time. When we discovered the materials we ordinarily took them away as I didn’t want that kind of material (demolition and other waste not included in the Development Approval) on the site.

…

25. … I was, to the best of my ability, diligent in trying to prevent inappropriate fill materials coming onto the site throughout the entirety of the job. My husband, Mark, was working on the job and he often got up on loads and checked them visually and rejected them. From time to time I also rejected loads that had inappropriate materials in it. Sometimes, however, loads were brought and pushed over before we were able to properly check them. I do remember on occasions that loads were on-site in stockpiles and it was possible to pull inappropriate waste materials out of the stockpiles and remove them. I do not know how the materials such as household waste got onto the site unless this was done by people unauthorised by me. I accept that I should have been more diligent in securing the sites but of course these were not industrial sites but they were places where people lived and I could not control access to each of these sites 24 hours a day. With respect to the Turner property, I commenced removing the stockpiled materials which were marked with blue ‘X’s by Mr Turner. I had removed 10 truckloads by the time the EPA became involved and told me not to come onto the site any longer. Had the EPA not become involved, I would have removed all of the materials which I was made aware of that should not have been on the site.

…

29. … occasionally, no matter what one does, loads can have some minimal amount of building and demolition waste and other waste that can get into loads, no matter what one does and it is necessary to remove such materials by hand or one has to reject the whole load if that cannot be done… I did indicate to Mr Galea that I intended bringing in materials that may include bricks and concrete but only for the roads within the property which needed constant upkeep and re-doing because of the level of traffic through the property in the nature of the trucks bringing in the landfill. It was never my intention for bricks and concrete to be part of the landfill itself.

38. … I deny that I ever ‘knowingly’ imported material onto the Turner property or the Galea property which should not have been brought there….

39. … it is not the case that ‘most of the waste’ was not validated. I provided validations to the EPA. I have provided them to the Council. At one stage persons from the Council actually lost a large group of validations which I provided them with. It is not my understanding that the materials which I was receiving were ‘validated’ as something other than ‘virgin excavated natural material’. In any event, it wasn’t necessary that I bring VENM onto the site, only that I not bring inappropriate materials such as building and demolition waste, etc. I invariably inspected sites from which we obtained materials. I obtained validations from the sites. I was aware that on occasions there were other materials on site which would not be the subject of transport to sites which I was landfilling. That is, on occasions there might be building and industrial waste or other contaminated materials in the ground down to a certain point. I would insist on taking the materials other than those materials that were contaminated and inappropriate.

…

43. … The owners of those properties, Mr Turner and Mr Galea, had an obligation to use sediment and erosion controls before I did any work on their properties. I never at any time agreed specifically to take care of any sediment and erosion problems except after this was raised by Council. In hindsight, I should have been more careful to keep up those controls and I regret not doing so.

…

45. Despite my disagreement with the facts set out in the Statement of Facts, I regret the state of the properties which resulted at least partially from the landfill works which I was doing. As I indicated earlier in this affidavit, I had standard procedures and paperwork which sought to prevent any problems of this (sic) arising but in hindsight I can only say that I must not have pursued those standards and enforced those procedures diligently enough.

46. As is obvious from the contents of my Affidavit of 22 February 2008 and particularly the psychological report attached to it, I have myself suffered quite greatly from the stresses arising from the investigation and ultimate prosecution of me in regards to this case. I considered that I had a good reputation in the business and this was destroyed by these incidents. I lost my business and ultimately we had to sell the house and move. I had what I can only describe as a ‘nervous breakdown’ as a result of this and I am still suffering very badly from the effects of the same.

47. I am not working and I have no property. I would not have any significant ability to pay a fine in this case as I understand that the fines often imposed by Courts in these cases are quite large.

48. I have no intention of taking part in any business involving waste disposal or landfill or industry of that kind at all ever again. I could not possibly take the stress involved in wondering each moment I was conducting such a business as to whether or not I was complying with the appropriate standards and I have, in any event, lost contact with everyone I ever knew in that business. As I said above, my reputation was destroyed as a result of these incidents.”

57 Fairly early in her cross-examination Ms Pal gave the following responses to the prosecutor (T Day 5, 24.9.08, p25, LL14-48):

“Q. Do you accept that it was you and your business that had control of the Turner property?

A. Yes I do.

Q. Do you accept that it was you and your business that had control of the Galea property?

A. Yes I do.

Q. Do you agree that you became aware from time to time between the period set out in the charges, that is March 2003 to May 2004, that material was being placed upon those properties that should not have been placed?

A. Yes.

Q. Is it fair to say that it came to your attention that some of the material which was being placed on the properties contained bricks?

A. That’s correct.

Q. Pieces of piping?

A. That’s correct.

Q. Pieces of asbestos?

A. That’s correct.

Q. Pieces of plastic?

A. That’s correct.

Q. Broken concrete?

A. Correct.

Q. Bitumen?

A. Correct.

Q. Do you say to this court that the loads which contained that sort of material were placed at the two properties without your knowledge and consent?

A. That’s correct.”

Medical and Psychological Evidence

58 Mr Bricknell referred Ms Pal to Ms Alexandra Edgar, a UK-trained forensic psychologist, by letter dated 13 December 2007 (Exhibit D4). Ms Edgar has practised in her own right since August 2001, and in New South Wales since March 2006, and is now located in Chatswood.

59 Mr Bricknell described Ms Pal to Ms Edgar as a highly intelligent, down-to-earth, independent, pragmatic and capable woman, who had survived well in a “cut throat industry” dominated by men (Exhibit D4 par 6). He sought Edgar’s opinion, he said, because “the EPA investigations and this current prosecution have had significant long-term impacts” on Ms Pal’s “mental and emotional health”. He noted that she was on medication for depression and had “suffered a ‘breakdown’ following the execution of a search warrant by EPA officers at her home in December 2005”, an exercise lasting from 7.30am to 7pm, whereafter her business failed “because of her ill health”, and she left the industry, sold her property and relocated several times.

60 Ms Edgar submitted her report to Mr Bricknell on 22 January 2008 (Exhibit D2). Mr Bricknell had apparently written a further letter to Ms Edgar on 9 January 2008, but that is not in evidence. Ms Edgar had administered a test known as “Millon Clinical Multiaxial Inventory III” and Ms Pal’s response had been “frank and open”, her results suggesting effective mental health functioning and no severe or clinical personality disturbance. Ms Edgar noted, however, that Ms Pal returned an elevated score for post-traumatic stress disorder.

61 She reported that Ms Pal has a “very supportive and stable family life”, featuring a “strong” relationship with her husband and children, and a “close and supportive” relationship with her mother and sisters and four long-term friends, but that she had “suffered a breakdown as a result of the investigations into her working practice”.

62 Ms Edgar noted that Ms Pal had been diagnosed with depression in 2004 (no precise date or even month is given), and that she became severely anxious whenever she visited a landfill site, but that she was improving and should continue to do so with continued mental health intervention and assistance.

63 The history Ms Edgar recounted of “the offences” speaks of “the illegal tipping of half a million cubic metres of asbestos”, “illegally obtaining $19M from illegal tipping”, and operating without appropriate development approvals, in addition to the content of the actual charges before the court. Ms Edgar also referred to “this and the previous investigations”, and to “repeated” searches of the family property and possessions “frequently” throughout the previous five years, each lasting 5-12 hours, until the alleged making in 2006 of some “court order against the EPA preventing them from attending her property”.

64 On the basis of the history she obtained Ms Edgar blamed the “significant deterioration” of Ms Pal’s “physical and mental health functioning” on “the ongoing EPA investigations”. She opined, in conclusion, that:

I would consider the loss of Ms Pal’s business, family home, social life and contribution to and engagement in the local community, as well as the impact upon her physical and mental health functioning and her family life to be considered punishment enough, as she will no doubt continue to experience long-term emotional repercussions. I would therefore respectfully recommend that consideration be given to her engagement in community service, as I would consider a custodial outcome to be quite debilitating for her in that it is unlikely to facilitate any therapeutic effect and rather, may exacerbate the deterioration in her already fragile psychological functioning

65 Ms Edgar’s report came into evidence via Ms Pal’s affidavit of 22 February 2008, in which she deposed (par 9): “That report accurately reflects what I told Ms Edgar about the history and current state of the problems which I have been suffering”. She may have frankly described her symptoms, but the factual picture given of the investigation and prosecution has been proven to be seriously inaccurate.

66 Ms Edgar was asked to review Ms Pal before the resumption of the sentencing hearing in September and the court has the benefit of her further report dated 8 September 2008 (Exhibit D3). Mr Bricknell’s letter of referral dated 3 September is not, however, in evidence.

67 Ms Edgar reported that Ms Pal acknowledged that some of her comments to Ms Edgar during preparation of the first report “were unintentionally inaccurate”. The innocence of the inaccuracies has not been demonstrated by the defence case.

68 In speaking of Ms Pal’s continuing to ruminate on the fact that if “she was not around the events of the past five years would not have occurred”, Ms Edgar noted that Ms Pal “accepts the situation is not her fault”, but wishes it was “different”. Ms Edgar opines that Ms Pal’s mental health will gradually improve when her case is concluded.

69 Ms Pal’s medication appears to have doubled from 20mg Cipramil to 40mg, and she has also continued counselling. It is noted that Mr Pal had also commenced 20mg Cipramil, but there is no medical evidence whatsoever before the court. (Her unnamed medical practitioner was consulted by the Probation and Parole Service, but apparently not by Ms Edgar).

70 The Pre-sentence Report dated 19 September (Exhibit P28) was compiled by Campbelltown Probation and Parole officer Julie Crawford. Under the heading “Attitude to the Offences”, Ms Crawford reported:

“Mrs Pal agrees that as the leasee (sic) of the site at Cobbity she was ultimately responsible for any materials placed on the property. However, she is adamant that she did not place any illegal materials at the site, stating she has since learned that the materials were illegally dumped by another party. Mrs Pal has indicated that the time frame and costs of the matter before the court has been of significant detriment to her and her family both financially and emotionally.”

71 Ms Crawford later noted that Ms Pal “acknowledged her role and responsibility for materials placed on the site in question”. Her report does not deal with full-time imprisonment as an option, but finds Ms Pal unsuitable for Periodic Detention, as she has childcare responsibilities. She also noted that Mr Pal can be called out without warning to fulfil his duties as a Deputy Captain in the Rural Fire Service.

72 Ms Crawford noted that Ms Pal “has agreed to undertake community-based sentencing”, even though “her current emotional wellbeing appears to be fragile”. Ms Crawford has assessed Ms Pal as “suitable for a Community Service Order as per the requirements of the Crimes (Sentencing Procedure) Act 1999 s86(1)”, and had her sign the undertaking required by s.86(5) of that Act. She opined that Ms Pal does not need supervision by the Probation and Parole Service.

Sentencing considerations
Introduction

73 The legislature has prescribed various lists of considerations which I am obliged to take into account, and I will pay close attention to s241 of the POEO Act, and ss 3A, 5, and 21A of the Crimes (Sentencing Procedure) Act 1999, among which provisions there can be overlap.

74 Substantial guidance is also provided by leading cases such as Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (“Camilleri”) (1993) 32 NSWLR 683, Axer Pty Ltd v Environment Protection Authority (“Axer”) (1993) 113 LGERA 357, Environment Protection Authority v Capdate Pty Ltd (“Capdate”) (1993) 78 LGERA 349, Environmental Protection Authority v Barnes (“Barnes”) [2006] NSWCA 246, Environment Protection Authority v Waste Recycling and Processing Corp (“Waste Recycling”) (2006) 148 LGERA 299, and Bentley v BGP Properties Pty Ltd (“Bentley”) (2006) 145 LGERA 234.

75 Section 3A mandates that the penalty imposed must be “condign” (as in adequate) punishment for the offence, must denounce the conduct of the offender, and must make her “accountable” for her actions. As Camilleri noted, Parliament publicly expresses by the maximum penalties it prescribes, what offences the community regards as deserving of severe punishment. In “Tier 1” (as in the “most serious”) environmental offences, such as are charged here, the legislature has prescribed either or both of imprisonment and a large fine for an individual offender for each offence.

76 The penalty imposed must reflect both the proven objective circumstances of the offence and the personal or subjective circumstances of the defendant (Veen v R (1979) 143 CLR 458 and Veen v R (No.2) (1988) 164 CLR 465). The plea of guilty admits the “essential legal ingredients” of the offence “and no more” (R v O’Neill [1979] 2 NSWLR 582 at 588).

77 The penalty imposed must be proportionate to the gravity of the offence despite balancing the subjective factors (Waste Recycling at 324-5), but it must serve to prevent crime by deterring both the offender and others (s3A(b)).

78 The “objective circumstances” include the maximum penalty and the objective seriousness of the offence (here its inclusion in Tier 1). Another key objective circumstance to be reflected in the penalty is the extent of harm caused by, or likely to flow from, the offence (s3A(g) and s241(1)(a)). Others include the extent to which the offender had control of the causes of the offence (s241(1)(d)), the foreseeability of the risk of harm (s241(1)(c)), the practical measures which should have been taken to avoid that harm (s241(1)(b)), her state of mind, and her reason for committing the offence.

79 The “effective” maximum penalty in this instance (see [13] above) is two years imprisonment and/or a fine of $500,000, for each of the two offences. The prosecutor submits that this present offender and her offences must be severely punished, despite the dilemmas posed for the court by her approach to the trial and by her personal circumstances. Section 5 tells the court not to sentence to imprisonment (however served) unless, after a full consideration of all punishment options, no other penalty is appropriate. As Ms Pal is to be sentenced as if for one offence the principle of “totality” must be applied. See Mill v The Queen (1988) 166 CLR 59; R v JRD [2007] NSWCCA 55; Camilleri; and Barnes.

80 In all the circumstances of the case the court must take into account “aggravating” factors (s21A(2)) such as:

· (g) harm caused was substantial;

· (k) abuse of position of trust; and

· (o) offence committed for financial gain;

mitigating

· (e) no record of convictions;

· (f) good character;

· (g) unlikely to re-offend;

· (i) remorse shown (subject to stated conditions);

· (k) plea of guilty;

· (l) pre-trial disclosure; and

· (m) assistance to authorities.

81 I turn now to consider those issues as they arise in this case.

Deterrence

82 The departure of Ms Pal from the industry and her stated ambitions to work in an area far divorced from landfill leads the court to conclude that specific deterrence need play only a small part in setting the penalty in this matter.

83 However, I agree with the prosecutor that general deterrence must be a major consideration in this case, and in environmental crime generally.

84 The sentence must discourage players and potential players in the landfill industry from any thought that environmental offences do not attract substantial penalties. As Preston ChJ said in Waste Recycling (at [229]), it must not be seen as cheaper to offend than to act to protect the environment, the cost of offending must outweigh likely gains, and any fine should not appear to be a licence fee. See also Axer (at 359). Nor should the penalty be seen as mere “admonition” or a “gesture”. See Smith v The Queen (1991) 25 NSWLR 1 per Mahoney JA (at 23).

Environmental harm

85 “Industrial Waste” is so classified because of its higher potential to cause significant environmental harm if not properly managed in accordance with the thorough regulatory regime it attracts.

86 Clearly the Turner and Galea lands have been significantly degraded (Exhibit P1 “R02”, “R08”, “R09”). The incidence, however small the proportion in this case, of any asbestos, constitutes significant actual environmental harm. Also, Mr Large observed actual environmental harm by way of covering natural drainage lines and so smothering ecology and habitat in ephemeral creeks on both properties. Some earthworks done by or on behalf of Turner and Galea may also have contributed to this harm and they had some responsibility for sediment control.

87 On the other hand, Mr Large also opined that the prolonged dry weather had limited the export of sediment and production of leachate, but that any significant future rainfall events will heighten the potential for further environmental harm on a long term basis, especially if there is any serious restriction, financial or otherwise, on remediation efforts (see affidavit of Mr Large 20 March 2007 and his oral evidence).

Control over causes

88 This pollution event was neither accidental nor inadvertent. The court accepts that it was not deliberate or wilful, but it was at least negligent, if not verging on the reckless. Ms Pal does not admit “that she turned a blind eye to the bringing” on of “contaminated material” (T Day 6, 25.9.08, p26, LL20-24).

89 Ms Pal had almost total control of the Turner site and effective control of the Galea site. She had the keys, and she chose the suppliers, the site manager for each day, and the bulldozer driver. She decided who brought fill on, what it should comprise, and where it should be placed. Davies and O’Brien worked to her instructions on the sites.

90 The court accepts Mr Ryan’s submission that she did not have total control over all the things that could affect in some way the ecology of the land she filled (T Day 6, 25.9.08, p21, LL27-32). However, he did explain that she pleaded guilty because she failed to “detect and remove” the offending materials “in a timely and efficient manner” (T Day 6, 25.9.08, p.26, LL21-22).

Foreseeability

91 The harm or risk of harm to the environment in the circumstances of this case were reasonably foreseeable to a person of Ms Pal’s experience in the industry. Even a cursory look at the stockpiled materials reveals building material amongst the fill.

92 Ms Pal familiarised herself with the sites before filling commenced and says she attended them regularly. Dams and watercourses were clearly evident, so it was reasonably foreseeable that careless filling would threaten them and associated habitat.

Practical measures

93 Given her total access to the sites and control of the land filling job, she had every opportunity to maintain higher standards in source selection, recruitment of site personnel, site security, and load validation and checking.

State of mind

94 The factual evidence indicates that Ms Pal was a successful “landfill consultant” over a ten year career, during which she had a comfortable lifestyle (Exhibit P28), and she was clearly active in her business at the relevant time and keen to run it profitably.

95 The evidence goes no higher than to place the commencement of Ms Pal’s treatment for depression at some time during the year 2004, whereas the charge dates are 1 December 2002 to 31 May 2004.

96 The evidence of her psychologist, Alexandra Edgar, is somewhat problematic. Having been misled about many of Ms Pal’s alleged stressors, Ms Edgar diagnosed only symptoms of Post Traumatic Stress Disorder, and not the actual disorder, but she blamed it on an exaggerated version given to her of what the EPA had done. Those exaggerations were not identified by the psychometric test she administered. I must say that Ms Edgar’s oral evidence clearly indicated to the court that her written evidence was hardly “impartial” in the sense required of the expert witness codes and I give it little weight.

97 In any event, the Edgar evidence does not help the court on the defendant’s state of mind at the relevant time.

Reason for commission of offence

98 The prosecutor submits simply that Ms Pal ignored the foreseeable risk, her contractual commitments to Turner and Galea, and her obligations under the various restrictions and levy regimes of her industry, in favour of pursuing maximum financial gain, and I accept that submission.

Aggravating factors

99 I have already dealt with the fact that the resulting harm was substantial and largely the defendant’s fault (see [85]-[87] above).

100 A second aggravating factor is the element of abuse of a position of trust in this offence. (The authorities speak of more formal trust relationships than exist here, but there are some analogous factual circumstances in this case, which arise for consideration under s241(2) of the POEO Act, if not strictly under s21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999).

101 Ms Pal gave Mr Turner to understand that when she took control of filling his land she would discharge his commitments under the terms and conditions of his development consent. She well knew that he needed only “clean fill” to raise levels and improve pasture. Demolition waste was clearly not to be imported onto his site.

102 Likewise, Ms Pal gave Mr Galea to understand that she would ensure his compliance with similar limitations in the oral approval he obtained from Camden Council. She was in touch with Council and knew only “validated (clean) fill” was acceptable on the Galea site.

103 Both men placed significant trust in her, but when later confronted by both clients with evidence of contaminated fill imported during the currency of her arrangements with them, she did not claim (as she does now) that the material was dumped without her knowledge or approval, and she undertook to remove it (which she has not).

104 A third aggravating factor in the commission of this offence is the fact that the offending work was done for financial gain.

105 Ms Pal denies that she was motivated only by money, and also denies that she made substantial money from the Cobbity jobs (there was a third property). Invoices issued to various contractors who dumped materials at the subject sites amount to $348,627 (Exhibit P1(RO68)). She contends that not all of this is “ill-gotten gains”, but she certainly had low overheads, and incurred no outlays for compliance and approval costs, so the court infers that the job was profitable for her.

106 A conservative figure advanced by the prosecution as to the cost of disposing of this material at a waste collection facility, rather than through the defendant, would be around $1.7M, calculated on the basis that 62,000m3 of fill would probably weigh about 90,000 tonnes, and that each tonne of “inert waste” would attract a levy of $17-19.80.

107 Ms Pal had a commercial purpose and made commercial gains. Not only did she personally gain financially from the offence, but so did the contractors who used her sites; Ms Pal facilitated these levy savings, and caused the levies to be foregone by the State.

Mitigating factors

108 Ms Pal has no criminal record, and there is no adverse character evidence. I have no reason to doubt what Mr Bricknell says about her ([59] above).

109 However, the court is not satisfied that seriously misinforming her psychologist was an innocent mistake. She clearly wanted Ms Edgar to blame the prosecutor for all her symptoms and problems, and to convince the court that she has already suffered enough, but neither of them accepts the charge that Ms Pal lied to Ms Edgar.

110 Although pleading guilty, she did so at the last moment, and has sought to minimise her own role, and to blame others for all the prosecutor has proven. Nonetheless, her plea must attract a discount, which I believe should be at the bottom of the scale 10-25% prescribed in R v Thomson; R v Houlton (“R v Thomson”) [2000] NSWCCA 309; (2000) 49 NSWLR 383.

111 Having left the industry she is unlikely to re-offend.

112 There is no cogent evidence of remorse. What there is by way of expressed contrition is grudging at best. She regrets “the state of the properties” (see [56] par 45). Despite her acknowledgement that she “should have been more diligent in securing the sites”, she belittled that acknowledgement by adding that “these sites were not industrial sites but they were places where people lived and I could not control access to each of these sites 24 hours a day” (see par [56] par 25 above). See also what Ms Edgar and Ms Crawford recorded of what she told them ([68] and [70]-[71] respectively). Her counsel, Mr Ryan, asked her no questions about contrition or remorse. When asked by the prosecutor if she is sorry for what she has done, she replied only “I wish this had never happened” (T Day 5, 24.9.08, p57, LL1-3). The best her counsel could say in response to that was that it was “not inconsistent” with contrition (T Day 6, 25.9.08, p33, L41-p34, L4).

113 There is little to be found by way of mitigation in terms of pre-trial disclosure and assistance to authorities in this case (see [4] above).

114 Section 6 of the Fines Act 1996 provides:

“

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.”

115 The only evidence of means in this case is that:

breakdown

116 Impecuniosity is asserted, but the defence sought to prove it only by Ms Pal’s sketchy and uncorroborated evidence, and to explain that failing by complaining that the prosecutor seized all her records. In fact, the EPA returned to her copies of everything it took, and the court would expect someone with her banking/finance/accounting experience to be able to better explain to the court how her financial position could deteriorate so badly. Her responses to questions on this issue during cross-examination were evasive.

117 In Environment Protection Authority v Douglass (No.2) [2002] NSWLEC 94, Lloyd J had to deal post-conviction with an offender against whom the prosecutor sought a fine (the prescribed maximum being $60,000 for the offence charged), a costs order in the agreed sum of $49,517, and an order for a payment of $1.17M for “mitigation of harm to the environment”.

118 His Honour came to the view that the offence was so serious that the penalty should be 75% of the maximum, but noted that the defendant had no fixed place of abode, and only casual employment. His only assets were his seriously degraded land, his second-hand vehicle, and his tools of trade.

119 His Honour said that general deterrence was an important objective of any penalty and other orders, and proceeded to impose a fine of $45,000, the costs order, and the mitigation costs order, recognising, in terms, that bankruptcy proceedings may flow from enforcement action.

120 In Bentley the defendant company had gone into liquidation, but the reasons for its failure were not in evidence, and in Capdate the presiding judge knew only that the defendant company was no longer trading. See also Environment Protection Authority v Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147. The courts had more information available in Barnes, and so did I in Environment Protection Authority v Waight (No.3) (“Waight”) [2001] NSWLEC 126. See also the judgments of the Court of Criminal Appeal in Aref Rahme (1989) 43 A Crim R 81 (to which I will return).

121 The principle, therefore, is that impecuniosity cannot be urged upon the court successfully as a justification for not imposing the appropriate penalty, and not making other appropriate orders to which a financial cost is inevitably attached, such as “remediation” orders under s245 of the POEO Act (headed “orders for restoration and prevention”).

122 There is, however, an equally important principle that a court should not make orders which can be clearly seen to be “futile” in all the circumstances. See Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2004] FCA 1510 per Allsop J at [70]; and ACCC v Chen [2003] FCA 897 per Sackville J at [45].

123 Mr Ryan submitted (T Day 6, 25.9.08, p31, LL22-29) that:

If your Honour makes a remediation order, well you’re just setting the defendant up for a fall, in my submission. She, and as I say, this is unchallenged - she simply doesn’t have the money, and there’s no reason to believe that she does. She’s not working, she’s out of the business, the business is gone, she’s not doing any other business, she just doesn’t have the money, because the money to do it, I accept, would be very great indeed. So that it wouldn’t be appropriate in my submission to make a remediation order in this case, in those circumstances

124 He acknowledged, however, that this court could grant time to pay any costs order it makes, and that his client could make application under the Fines Act for time to pay any fine the court might impose.

125 On the other hand, the prosecutor submits that this is a serious matter calling for serious punishment, but he has proceeded on the assumption that the court would probably find it “futile” (not his chosen word) to make a remediation order in this case, given the lack of any real evidence of means.

Discussion

126 There is strong evidence to make out all the particulars of both negligence and harm pleaded in the charges (see [11] and [12] above), and clearly the defendant should be convicted on both charges.

127 Ms Pal is not charged with deliberately dumping what she describes as “shit” or “crap”. She saw her obligation to Turner and Galea not as providing only “VENM” for their purposes, but as not bringing on to their lands, or leaving on them, any inappropriate materials (see [56] par 39). She marketed her services on the basis of taking great care to locate, and always “validate”, appropriate sources of appropriate fill, and she says she was, certainly in the early stages of the job, diligent about it. In the later stages, some inappropriate materials “slipped through”, and she accepts she is “ultimately responsible” for “system failures” which allowed inappropriate “mixed” fill to be spread on the two properties.

128 She refutes the prosecutor’s allegation that she knowingly admitted “mixed” waste to the subject lands, and failed to separate it out, even though she charged suppliers higher rates to cover the cost of the sorting processes.

129 “Validation” is the certification of the contents of waste according to the prosecutor’s code or classification system (explained in [20] above), and Ms Pal denies the allegation that “most” of the waste she organised to be delivered was not validated, or not correctly validated (T Day 1, 28.07.08, p11, LL10-11). However, few validations were produced by her or found by the prosecutor. Ms Pal infers that many were lost by Camden Council, and she also relies on evidence that her husband sometimes carried out precautionary checks on loads.

130 At the end of the day, however, the evidence is that 90,000 tonnes or 62,000m3 of unsatisfactory waste has left 9ha of beautiful rural residential land in a “shambolick” (sic) state (T Day 6, 25.09.08, p2, L5) which must be addressed, with 20% significantly contaminated, and demolition waste spread also throughout the other 80%. The photographic evidence of the test trenches show no evidence of any (genuine) separation efforts, and $1.7M in statutory levies has been evaded.

Penalty

131 The difficult task of fashioning the “right” combination of penalties and other orders in criminal cases is well canvassed in the two judgments in Aref Rahme, in which Finlay J usefully surveys many authorities.

132 In that case the Court of Criminal Appeal was determining an appeal against the severity of a sentence imposed in respect of a drug cultivation offence to which the appellant had pleaded guilty. The offender had sought periodic detention and a “very substantial fine” in order to avoid a term of full-time imprisonment such as would normally be imposed. No limitation on the amount of the fine was put to the sentencing judge, despite making His Honour aware of the offender’s limited means. His Honour set the fine by reference to the profit which would have flowed from the success of the criminal venture, and imposed a term of imprisonment of 18 months to be served by periodic detention.

133 Finlay J (with whom Studdert J agreed) reduced the fine from $22,000 to $5,000 on the grounds of limited means. In dissent, Smart J said that, while capacity to pay was an important consideration, a reduction in the fine component of the sentence took it below the “range of sound discretionary judgment” in sentencing (at 90), and made it “inappropriately light” (at 91).

134 Each case turns on its own peculiar facts, and in each case the sentencing judge has to arrive at a “sentencing package” which meets the prescribed objectives ([75]-[78]), and, hopefully, the imperative of environmental remediation as well.

135 I agree with the prosecutor that Ms Pal has committed and admitted a very serious negligence offence, deserving of severe punishment. She has exhibited no real remorse, and accepted no real responsibility for the serious consequences of her negligence. Her plea of guilty is based on an admission only that she was “not diligent enough” and some things in the nature of “system failures” resulted in unfortunate consequences which were beyond her control. Everything “bad” at the Turner and Galea properties is said to be someone else’s fault.

136 I am conscious there are some sad personal circumstances affecting the defendant. She has experienced some health problems, and, if one accepts her evidence, some quite serious financial problems, losing her landfill business and her home, in circumstances not fully explained. Not all of her problems can be sheeted home to these charges. Her future prospects would appear to be only fair, but she is only 42 years of age, a respected citizen, a caring mother, and a woman of sober habits and community orientation, with a supportive family and a good work ethic. The High Court has warned us that justice must be tempered with mercy (Cobiac v Liddy (1969) 119 CLR 257, at 269).

137 A term of imprisonment does not appear to me to be appropriate in this case, even if suspended; periodic detention has also been ruled out by the Probation and Parole Service; and it seems to me that a bond serves no useful purpose in punishing or deterring her, or in warning her former industry that breaches of important regulatory controls will be severely punished by this court.

138 The prosecutor submits that a community service order may send a “bad message” to the landfill industry; it might be seen as a “minor punishment”, or a “mere slap on the wrist” by those inclined to flout the law.

139 However, community service orders have previously been made in environmental offences prosecuted in this court – see, for example, Environment Protection Authority v White (“White”) (1996) 92 LGERA 264, and Environment Protection Authority v Coggins (“Coggins”) [2003] NSWLEC 111; (2003) 126 LGERA 219.

140 I have concluded that such an order is appropriate to all the circumstances of this case, provided that it is accompanied by both a fine, and an order that the defendant pay the prosecutor’s costs, as occurred in both White and Coggins.

141 It is desirable to include a remediation order in the “sentencing package” in a case like this – see, for example, Waight – but I reluctantly accept the apparent futility of my making any order under s245 of the POEO Act in this case. The defendant made no offer or proposal in this regard.

142 I note Mr Barley’s estimate (in his affidavit of 23 September 2008) that the prosecutor’s legal costs and investigation expenses are likely to exceed $184,000, and his evidence that his offer to settle with the defence the amount of costs and disbursements “at a very significant discount” was rebuffed.

143 In this court the maximum punishment for each of these charges is a fine of $500,000, plus a two year term of imprisonment. Under s8 of the Crimes (Sentencing Procedure) Act 1999 and cl 22 of the Crimes (Sentencing Procedure) Regulation 2005, that maximum translates to $500,000 plus 500 hours community service, for each charge.

144 Given the assertion of impecuniosity, the likely amount of the prosecutor’s costs and expenses, the circumstances of the case, and the “totality” principle, I have decided that Ms Pal’s penalty should involve a substantial number of hours of community service – more than in White and Coggins, to reflect relative culpability and the absence of any remediation – and a fine far lower than Ms Pal’s degree of culpability would normally attract.

Conclusion

145 The R v Thomson discount of 10% will be applied to a sentence of 500 hours community service and a fine of $50,000, and I will make the usual order as to costs and investigation expenses, but set a lengthy time within which to pay those costs to the prosecutor.

146 The Orders of the court will, therefore, be:

Exhibit P28

28/04/2009 - Paragraph 13 amended. Orders vacated in favour of orders made in EPA v Pal No.2 NSWLEC 60 - Paragraph(s) 13, 146

Citations

Environment Protection Authority v Pal [2009] NSWLEC 35

Most Recent Citation

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15

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El Cheikh v City of Canterbury Council [2015] NSWLEC 183

Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150

Cases Cited

21

Statutory Material Cited

4

R v Tadrosse [2005] NSWCCA 145

Zarth v Williamson [2006] NSWCA 246

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CITATION:	Environment Protection Authority v Pal [2009] NSWLEC 35 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Kate Maree Pal
FILE NUMBER(S):	50025 of 2007; 50026 of 2007
CORAM:	Sheahan J
KEY ISSUES:	PROSECUTION :- Tier 1 offence, plea of guilty, negligent disposal of waste, actual and likely environmental harm, totality principle, absence of contrition, capacity to pay fine etc, futility of orders, sentencing principles and options, need for general deterrence, community service
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Protection of the Environment Operations Act 1997 Crimes (Sentencing Procedure) Regulation 2005
CASES CITED:	ACCC v Chen [2003] FCA 897 Aref Rahme (1989) 43 ACrimR 81 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 Cobiac v Liddy (1969) 119 CLR 257 Environmental Protection Authority v Barnes [2006] NSWCA 246 Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 Environment Protection Authority v Coggins [2003] NSWLEC 111 (2003) 126 LGERA 219 Environment Protection Authority v Douglass (No.2) [2002] NSWLEC 94 Environment Protection Authorityv Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147 Environment Protection Authority v Waight (No.3) [2001] NSWLEC 126 Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299 Environment Protection Authority v White (1996) 92 LGERA 264 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2004] FCA 1510 L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 Mill v The Queen (1988) 166 CLR 59 R v JRD [2007] NSWCCA 55 R v O’Neill [1979] 2 NSWLR 582 R v Thomson; R v Houlton [2000] NSWCCA 309 (2000) 49 NSWLR 383 Smith v The Queen (1991) 25 NSWLR 1 Veen v R (1979) 143 CLR 458 and Veen v R (No.2) (1988) 164 CLR 465
DATES OF HEARING:	28-31 July 2008, 24-25 September 2008
DATE OF JUDGMENT:	31 March 2009
LEGAL REPRESENTATIVES:	PROSECUTOR Mr S Rushton SC (with Mr M Friedgut at the early stages) SOLICITORS Mr P Barley of Depatment of Environment and Climate Change DEFENDANT Mr T Ryan SOLICITORS Osborne Bricknell Howell