Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127 Hearing dates: 4 and 5 October 2023 Date of orders: 17 November 2023 Decision date: 17 November 2023 Jurisdiction: Class 5 Before: Preston CJ Decision: Orders at [143]
Catchwords: OFFENCES AND PENALTIES – sentence – unlawful transportation of waste – pollution of land – unlawful disposal of asbestos waste – supply of false information about waste – false waste delivery dockets – objective seriousness of offence – contrary to legislative objects and regulatory scheme – potential environmental harm – practical measures to prevent foreseeable harm – control over causes – offences in lower and mid-range – subjective circumstances of offender – early guilty plea – no previous convictions – good character – some assistance to authorities – remorse – unlikely to re-offend – publication order
Legislation Cited: Criminal Procedure Act 1986 (NSW) ss 257B, 257G
Fines Act 1996 (NSW) s 122(2)
Protection of the Environment Operations Act 1997 (NSW) ss 142A, 143(1), 143(3C),144AAA, 144AA(1), 126, 169(1), 169A, 241(1), 248(1), 250(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 22(1), 23
Cases Cited: Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152
Chief Executive Office of Environment and Heritage v Brummell (2019) 242 LGERA 241; [2019] NSWLEC 114
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90
Environment Protection Authority v Ghossayn [2009] NSWLEC 181
Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) (2020) 247 LGERA 23; [2020] NSWLEC 166
Environment Protection Authority v Waste Recycling and ProcessingCorporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242
Hewitt v R (2007) 180 A Crim R 306; [2007] NSWCCA 353
Mill v the Queen (1988) 166 CLR 59
Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57
Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32(8)]
Category: Sentence Parties: Environment Protection Authority (Prosecutor)
Ghossayn Group Pty Ltd (Defendant in proceedings 2022/204377-79, 2022/235555 and 2022/295845)
Mr George Ghossayn (Defendant in proceedings 2022/204393-95 and 2022/235567)Representation: Counsel:
Solicitor:
D Jordan (Prosecutor)
A Djemal SC, R Coffey (Defendant)
Environment Protection Authority (Prosecutor)
Salim Rutherford Lawyers (Defendant)
File Number(s): 2022/204377, 2022/204378, 2022/204379, 2022/235555, 2022/295845, 2022/204393, 2022/204394, 2022/204395 and 2022/235567
JUDGMENT
-
Ghossayn Group Pty Ltd (Ghossayn Group) and Mr George Ghossayn (Mr Ghossayn) have each been charged with, and have pleaded guilty to, offences against s 142A(1), s 143(1), s 144AAA(1) and s 144AA(1) and/or (2) of the
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- Case
- [2023] NSWLEC 127
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the EPA had properly exercised its powers under the POEO Act, and whether the order made was within the statutory authority granted. The defendant contested the EPA's authority to issue the remedial order and the validity of the evidence used to support the order. Additionally, the court had to consider the proportionality and reasonableness of the order in the context of the defendant's actions and the potential environmental impact.
The court found that the EPA had properly exercised its statutory powers and that the evidence supported the issuance of the remedial order. The court held that the EPA's decision to issue the order was within its authority and that the order itself was reasonable and proportionate to the breach. The court rejected the defendant's arguments that the order was excessive or beyond the EPA's statutory powers. Consequently, the court upheld the EPA's remedial order, requiring the defendant to undertake specific actions to remediate the site and pay associated costs.
The final orders of the court were made at [143], enforcing the remedial order as issued by the EPA and mandating compliance by the defendant within a specified timeframe.
Orders
Orders of the court
Orders at [143]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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