EPA v Ghossayn Group Pty Ltd

[2023] NSWLEC 127

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

Knight v R [2010] NSWCCA 51

Mill v the Queen (1988) 166 CLR 59

Morton v R [2014] NSWCCA 8

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)]

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

R v Wheeler [2000] NSWCCA 34

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:
D Jordan (Prosecutor)
A Djemal SC, R Coffey (Defendant)

Solicitor:
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

1. 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 Protection of the Environment Operations Act 1997 (NSW) (POEO Act). Mr Ghossayn has also been charged with, and has pleaded guilty to, an executive liability offence contrary to s 169A of the POEO Act.

The offences committed by Ghossayn Group and Mr Ghossayn

2. The offences committed by Ghossayn Group fall into five categories:

1. The unlawful transportation of waste, the offence against s 143(1) of the POEO Act;

2. the pollution of land by depositing waste on land, the offence against s 142A(1) of the POEO Act;

3. the unlawful disposal of asbestos waste at a place that cannot lawfully receive the waste, the offence against s 144AAA(1) of the POEO Act;

4. the supply of information about waste to another person which Ghossayn Group knew was false or misleading in a material respect, the offence against s 144AA(2) of the POEO Act; and

5. the supply of information about waste to another person, which was false or misleading in a material respect, the offence against s 144AA(1) of the POEO Act

3. The offence against s 143(1) involves a person transporting waste to a place that cannot lawfully be used as a waste facility for that waste, or causing or permitting waste to be so transported.

4. The offence against s 142A(1) involves a person polluting land. The action of polluting land includes causing or permitting any land to be polluted: s 142A(2). The pollution of land is defined in the Dictionary of the POEO Act as:

land pollution or pollution of land means placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous—

(a) that causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial, or

(b) that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,

but does not include placing in or on, or otherwise introducing into or onto, land any substance excluded from this definition by the regulations.

5. The offence against s 144AAA(1) involves a person disposing of asbestos waste off the site at which it is generated at a place other than a place that can lawfully receive the waste. To “dispose” of asbestos waste includes “to dump, abandon, deposit, discard, reject, discharge or emit anything that constitutes asbestos waste, and also includes to cause or permit the disposal of asbestos waste”: s 144AAA(2) of the POEO Act.

6. The offences against s 144AA involve supplying false or misleading information about waste. The difference in the offences against s 144AA(1) and (2) is that in the first, the information needs only to be false or misleading in a material respect, while in the second, the person needs to know that the information is false or misleading in a material respect. The provisions are as follows:

144AA False or misleading information about waste

(1) A person who supplies information about waste to another person in the course of dealing with the waste, being information that is false or misleading in a material respect, is guilty of an offence.

(2) A person who supplies information about waste to another person in the course of dealing with the waste, being information that the person knows is false or misleading in a material respect, is guilty of an offence.

7. The offences committed by Mr Ghossayn were three offences attracting special executive liability under s 169 of the POEO Act and one special liability offence under s 169A of the POEO Act.

8. Under s 169(1) of the POEO Act, if a corporation contravenes a provision of the POEO Act attracting special executive liability (which are specified in s 169(1A)), a 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 of the matters in s 169(1)(b) or (c). Provisions attracting special executive liability include ss 142A(1), 143(1) and 144AAA(1) of the POEO Act.

9. Section 169(1) was engaged because Ghossayn Group is a corporation which contravened ss 142A(1), 143(1) and 144AAA(1) of the POEO Act and Mr Ghossayn was, and still is, the sole director and secretary of Ghossayn Group, and hence a person with the status specified in s 169(1). Mr Ghossayn’s plea of guilty to the offences obviated the need to consider the matters in s 169(1)(b) and (c).

10. Under s 169A(2) of the POEO Act, a person commits an offence against s 169A if:

“(a) a corporation commits an executive liability offence, and

(b) the person is—

(i) a director of the corporation, or

(ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and

(c) the person—

(i) knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and

(ii) fails to take all reasonable steps to prevent or stop the commission of that offence.”

11. An “executive liability offence” includes an offence against s 144AA(1) of the POEO Act that is committed by a corporation.

12. Section 169A(2) was engaged because Ghossayn Group is a corporation which committed an offence against s 144AA(1) and Mr Ghossayn is the sole director of the corporation.

The facts of the offences

13. Ghossayn Group is a demolition, excavation, plant hire, civil engineering and waste removal company. Mr Ghossayn is the sole director and secretary of the Ghossayn Group. Mr Elie Badr was an estimator employed by Ghossayn Group.

14. On 12 July 2019, Ghossayn Group signed a contract with Didomi Pty Ltd (Didomi) to excavate and remediate a site owned by Didomi in Dulwich Hill (the Dulwich Hill site). Prior to excavation works being undertaken by Ghossayn Group, asbestos-containing material was discovered on the soil surface of the Dulwich Hill site. As a result, the top 0.1 metres of fill material to be excavated was determined to be asbestos waste and the remainder of the fill material to be excavated was determined to be general solid waste.

15. Under the contract with Didomi, Ghossayn Group was required to remove the fill material containing the asbestos waste and general solid waste to a waste facility licensed to receive that waste. The discovery that some of the waste material contained asbestos waste increased the cost of disposal of the waste material. Waste facilities licensed to receive asbestos waste charge more for the disposal of asbestos waste than general solid waste.

16. Ghossayn Group wished to avoid incurring this extra cost for disposal of the waste material at an appropriately licensed waste facility. Mr Ghossayn said, both in his affidavits of 28 September 2023 and 4 October 2023 and in his oral evidence, that in 2019 the company had been experiencing financial hardship. He wished to keep the business running and the staff employed. To this end, he wanted to dispose of the waste material more cheaply, to save money.

17. Ghossayn Group therefore organised to dispose of the waste material, including both the asbestos waste and the general solid waste, at a large residential property in Luddenham, NSW (the Luddenham property). The Luddenham property was not licensed as a waste facility to receive the waste material from the Dulwich Hill site.

18. Mr Cannuli sub-leased the Luddenham property. Mr Cannuli managed a transport company named JPC Earthworx Pty Ltd (JPC). Mr Cannuli agreed to Ghossayn Group depositing the waste material from the Dulwich Hill site at the Luddenham Property for payment of $24,640. This was cheaper than what a licensed waste facility would charge.

19. On 15 and 16 July 2019, Ghossayn Group, using its own trucks and JPC’s trucks, removed 49 truckloads of waste material from the Dulwich Hill site and deposited 45 loads of the waste material at the Luddenham property, as directed by Mr Cannuli, and four loads at a licensed waste facility. The waste material deposited comprised approximately 379 tonnes of asbestos waste and approximately 830 tonnes of general solid waste.

20. The unlawful transportation of the waste material from the Dulwich Hill site to the Luddenham property involved Ghossayn Group committing the offence against s 143(1) of the POEO Act. The unlawful disposal of the waste material containing asbestos waste on the Luddenham property involved Ghossayn Group committing the offences against s 144AAA(1) (unlawful disposal of asbestos waste) and s 142A(1) (pollution of land).

21. The unlawful disposal of the waste material from the Dulwich Hill site at the Luddenham property achieved Ghossayn Group’s wish to avoid disposing of, and paying the higher cost of disposing of, the waste material at an appropriately licensed waste facility. But it did not solve the problem that, under the contract with Didomi, Ghossayn Group needed to demonstrate that it had disposed of the waste material at an appropriately licensed waste facility. This required there to be waste delivery dockets from an appropriately licensed waste facility establishing that the waste material had been disposed of lawfully at that waste facility.

22. To this end, Mr Ghossayn contacted Mr Dani Geagea, whom he had known socially and through their mutual lines of work for about 15 years. Mr Geagea had mentioned on an earlier occasion that he knew of a person who could produce false waste delivery dockets. Mr Ghossayn contacted Mr Geagea sometime in the month before 16 July 2019. Mr Geagea recounted the conversation in his affidavit of 5 September 2023:

“G. Ghossayn: Dani, you recall you told me that someone you knew could give me dockets if I needed it for waste disposal. I need you to help me get that person [to] provide those dockets.

D. Geagea: I will talk to the guy, and see if he will do it.”

23. The “guy” to which Mr Geagea referred was Mr Ben Killick, a former employee of Mr Geagea. Mr Geagea knew that Mr Killick drank at a hotel in Revesby. Mr Geagea met Mr Killick at that hotel and asked him if he could get false dockets for the disposal of waste. He indicated he could. He said he knew a person who could get these dockets.

24. Mr Ghossayn asked Mr Badr, the estimator employed by Ghossayn Group, to collate the necessary information on the tonnage and waste classification of the waste material that had been removed from the Dulwich Hill site on 15 and 16 July 2019. Mr Badr was asked to send this information to Mr Geagea, who would arrange for the false waste delivery dockets to be created.

25. On 16 July 2019, Mr Badr from Ghossayn Group emailed to Mr Geagea a spreadsheet of the loads of the tonnage and waste classification of the waste material for which false waste delivery dockets were required. That information on the tonnage and the waste classification of waste material reflected the truckloads of waste material that had been excavated and transported from the Dulwich Hill site and deposited at the Luddenham property by Ghossayn Group or JPC.

26. Mr Geagea printed the spreadsheet Mr Badr had emailed and gave it to Mr Killick at the hotel in Revesby. Mr Geagea requested Mr Killick prepare false waste delivery dockets using the information in the spreadsheet. Mr Killick asked for $300 per docket, payable in cash, for the 49 dockets that would need to be prepared for the 49 trucks disposing of the waste material. Mr Killick asked Mr Geagea whether he could prepare the dockets at Mr Geagea’s office. Mr Geagea agreed to this request.

27. On 17 July 2019, Mr Killick and another man wearing a Suez shirt came to Mr Geagea’s office. Suez Recycling Pty Ltd (Suez) operates a licensed waste facility at Kemps Creep, which is authorised to receive waste material of the type removed from the Dulwich Hill site, including asbestos waste. There is no suggestion that the man wearing the Suez shirt was employed by Suez or that Suez had anything to do with what the man did. The man did, however, know what waste delivery dockets issued by Suez looked like and created the false waste delivery dockets to appear as if they had been issued by Suez for delivery of the waste material at Suez’s Kemps Creek waste facility.

28. In the late afternoon of 17 July 2019, Mr Killick and the man wearing the Suez shirt emailed Mr Badr 49 waste delivery dockets, using the email address [email protected] (the UFFCC email address), alleged to be Mr Killick’s. Soon afterwards, Mr Badr telephoned Mr Geagea saying that nine of the dockets had errors in the waste description and needed to be redone and resent.

29. On the morning of 18 July 2019, Mr Killick and the man wearing the Suez shirt corrected and emailed the nine false waste delivery dockets to Mr Badr using the UFFCC email address. On review, Mr Badr telephoned Mr Geagea to say that the waste classification was still incorrect in a further eight dockets. Later on 18 July 2019, Mr Killick and the man wearing the Suez shirt corrected and emailed to Mr Badr using the UFFCC email address the eight further waste delivery dockets. This time, Mr Badr was satisfied with the false waste delivery dockets, which totalled 49 dockets for the 49 truck loads of waste material that had been removed from the Dulwich Hill site.

30. The 49 false waste delivery dockets were false and misleading in the following respects:

1. The dockets stated that Suez had authored and issued the 49 waste delivery dockets when in fact Suez had not done so;

2. The dockets stated that 49 loads of waste material had been transported from the Dulwich Hill site and deposited at Suez landfill at Kemps Creep on 15 and 16 July 2019 when only four such loads had been deposited;

3. In relation to those four loads, the dockets contained incorrect information, including the time in and out, the gross and net weight of the vehicle, and the waste classification of the waste material; and

4. The dockets stated that Ghossayn Group had lawfully disposed of the waste material from the Dulwich Hill site in accordance with the contract with Didomi, when 45 loads of waste material had been unlawfully transported and deposited at the Luddenham property in breach of the contract.

31. On 18 July 2019, Ghossayn Group used the 49 false waste delivery dockets to prepare an invoice to Didomi for the works undertaken by Ghossayn Group at the Dulwich Hill site. The invoice required Didomi to pay $233,429.24 to Ghossayn Group for the services it had provided relating to the cost of excavation, transport and disposal of the waste material at the Suez landfill.

32. The supply of the false waste delivery dockets to Didomi involved Ghossayn Group committing the offence against s 144AA(2) of the POEO Act. Ghossayn Group knew that the waste delivery dockets were false and misleading, in the material respects earlier identified, and supplied them to Didmoi in the course of dealing with the waste.

33. On 31 July 2019, Mr Waters, a management consultant to Didomi, contacted Suez to check the validity of the false waste delivery dockets. Suez advised that the dockets had not been issued by Suez. Mr Waters concluded the dockets were false. Mr Waters advised Didomi and their lawyers that the false waste delivery dockets were fraudulent.

34. Between 1 and 5 August 2019, Didomi sent a number of letters regarding the false waste delivery dockets to Ghossayn Group. On 7 August 2019, Mr Badr emailed requesting time to respond until Mr Ghossayn returned to Australia from overseas.

35. On 14 August 2019, Didomi’s lawyers sent a letter to the Environment Protection Authority advising of the supply of false or misleading information about waste by Ghossayn Group.

36. On 4 October 2019, Ghossayn Group sent a new invoice to Didomi enclosing a new set of waste delivery dockets. This new set comprised new Suez dockets for waste material deposited at the Suez landfill and dockets issued by MET Recycling Pty Ltd for waste material deposited at the waste facility that MET Recycling operated at Silverwater (the MET landfill). These dockets stated that the waste material from the Dulwich Hill site had now been lawfully disposed of at the Suez landfill and the MET landfill. Ghossayn Group sought payment of the originally claimed amount of $223,429.24.

37. Ghossayn Group sent Didomi the new set of waste delivery dockets for disposal of the waste material at the Suez landfill and the MET landfill in the genuine belief that it had now lawfully disposed of the waste material it had originally removed from the Dulwich Hill site. However, the waste material Ghossayn Group disposed of at the Suez landfill and the MET landfill had originated from sources other than the Dulwich Hill site. Ghossayn Group had been misled by Mr Cannuli. This is what occurred.

31. After Mr Ghossayn became aware that Didomi had rejected the invoice and attached waste delivery dockets as false, he met with Mr Cannuli who was the sublessee of the Luddenham property. Ghossayn Group had disposed of the waste material from the Dulwich Hill site at the Luddenham Property with the agreement of Mr Cannuli. However, when Mr Ghossayn met Mr Cannuli after Didomi had rejected the invoice and waste delivery dockets, Mr Cannuli told Mr Ghossayn that the waste material that Ghossayn Group had deposited at the Luddenhan property had been relocated to another property at 15A Findley Drive, Bringelly (the Bringelly property). Mr Ghossayn did not make any inquires to confirm that this was in fact the case.

32. On 5 and 6 September 2019, Ghossayn Group trucks removed waste material from the Bringelly property and transported it to the Suez landfill. Ghossayn Group transported and disposed of approximately 591 tonnes of waste material. That waste material was not in fact sourced from the Dulwich Hill site but instead had been deposited on the Bringelly property by Mr Cannuli in April 2019. That waste material contained dirt, rocks, bricks, concrete and shale. Ghossayn Group, however, believed it to be the waste material from the Dulwich Hill site that had been relocated from the Luddenham property. As the waste material from the Dulwich Hill site contained about 379 tonnes of asbestos waste, Ghossayn Group advised the Suez landfill that 16 of the 24 loads of material contained asbestos waste, which amounted to approximately 375 tonnes of waste material.

33. At the same time, Mr Cannuli and other truck drivers engaged by him were depositing waste material, removed from a range of sites including Randwick, Hurstville and other sites and not from the Bringelly property, at the MET landfill. This was done to make up the necessary tonnage for the waste material that Mr Cannuli had falsely represented to Ghossayn Group was the Dulwich Hill site waste material that had been removed from the Luddenham property.

34. At the time of depositing this waste from other sites at the MET landfill, Mr Cannuli advised MET Recycling that the material deposited should be charged to the Ghossayn Group account and was associated with the Bringelly property. Ghossayn Group held an account at the MET landfill. Prior to any waste material being disposed of at the MET landfill, Ghossayn Group had sent MET Recycling the waste classification for the Dulwich Hill site identifying it as general solid waste.

35. As a result, any waste material deposited at the MET landfill under the Ghossayn Group account was linked to that waste classification report and the waste delivery dockets issued by the MET landfill were labelled with the source site as “Findley Road, Bringelly”. Mr Cannuli falsely informed Ghossayn Group that the waste material he was depositing at the MET landfill had been removed from the Bringelly property, which in turn had been relocated from the Luddeham property.

36. To complete the deception, Mr Cannuli even disposed of six loads of material that had been purchased earlier from the MET landfill, driven around for a short period of time before being deposited back at the MET landfill. This was done to make up the total tonnage of waste material to accord with the tonnage of waste material that that had been removed from the Dulwich Hill site.

37. Ghossayn Group and Mr Ghossayn were unaware of these deceptions. They believed that all of the waste material that had been removed from the Dulwich Hill site and deposited at the Luddenham property had been, firstly, relocated to the Bringelly property and, secondly, transported to and deposited at the Suez landfill by Ghossayn Group and at the MET landfill by Mr Cannuli and his contractors. In fact, none of the waste material from the Dulwich Hill site that had been deposited at the Luddenham property had been removed and disposed of at the Suez landfill or the MET landfill. The waste material disposed of at the Suez landfill and the MET landfill was sourced from the Bringelly property and a range of other sources.

38. As a result, Ghossayn Group’s second invoice to Didomi and the enclosed new set of waste delivery dockets issued by Suez and MET Recycling were false or misleading in material respects. The new set of waste delivery dockets purported to demonstrate that Ghossayn Group had now lawfully disposed of the waste material from the Dulwich Hill site, when that was not correct. This supply of the new set of waste delivery dockets to Didomi involved Ghossayn Group committing the offence against s 144AA(1) of the POEO Act.

39. The waste material deposited by Ghossayn Group at the Luddenham property was removed by the owner of the Luddenham property between 2021-2022. The owners of the Luddenham property engaged Comeda Constructions Pty Ltd to remove not only the waste material from the Dulwich Hill site, which was about 800 tonnes, but also all other waste deposited by other people on the Luddenham Property. The waste material in total was approximately 4,280 m³ and weighed approximately 6,848 tonnes. Comeda Constructions Pty Ltd in turn engaged Masters Civil (Aust) Pty Ltd (Mr Geagea’s business) to assist with transportation of the waste material. Masters Civil were paid $1,611,672.76 for the clean-up works at the Luddenham property.

Objective seriousness of the offence

47. The objective seriousness of the offences committed by Ghossayn Group and Mr Ghossayn is affected by:

1. the nature of the offending;

2. the maximum penalty for the offences;

3. the state of mind in committing the offences;

4. the harm or likely harm to the environment caused by commission of the offences;

5. the practical measures to prevent that harm;

6. the foreseeability of harm;

7. the control over the causes of the offence;

8. whether the offences were committed for financial gain; and

9. whether the offences were part of a planned or organised criminal activity.

Nature of the offending

48. The offences committed by Ghossayn Group and Mr Ghossayn are of different types, but all are directed to ensuring that the transportation and disposal of waste does not cause harm to human health and the environment. The offence against s 143(1) regulates the transportation of waste. The offences against s 142A(1) and s 144AAA(1) regulate the disposal of material, including asbestos waste, on land so as not to cause pollution of land. The offences against s144AA(1) and (2) regulate the supply of information about waste so that information is not false or misleading. Together, these provisions create a regulation framework for environment protection for the management of waste.

49. The offences committed by Ghossayn Group against these provisions did in fact offend against both the legislative objectives expressed in these provisions and the objectives of the POEO Act. In so doing, the offences undermined the integrity of the regulatory framework for environment protection.

50. Ghossayn Group’s conduct of transporting and disposing of the waste material at the Luddenham property to avoid the payment of waste disposal fees at an appropriately licensed waste facility undermined the integrity of the regulatory system for the management of waste. Because the Luddenham property was not a licensed waste facility authorised to receive waste, the necessary environmental management systems were not in place to ensure environment protection. This was especially significant as the waste material disposed of at the Luddenham property contained asbestos waste. Ghossayn Group’s conduct bypassed the approved practices and regulations for the disposal of asbestos waste.

51. Mr Ghossayn, as the sole director of Ghossayn Group, had the management and control of the company’s actions. By not exercising that management and control to prevent the company from committing the offences, Mr Ghossayn’s conduct itself offended against the legislative objectives expressed in those offences committed by Ghossayn Group as well as the legislative objectives expressed in the offences against s 169(1) and s 169A of the POEO Act committed by Mr Ghossayn.

Maximum penalties

52. The maximum penalties for the waste transportation and disposal offences against ss 142A(1), 143(1) and 144AAA(1) of the POEO Act are $2,000,000 for a corporation and $500,000 for an individual, as the offences involved asbestos waste. Ghossayn Group is therefore liable to a maximum penalty of $2,000,000 for committing each of these offences.

53. The maximum penalties for the offences of supplying false or misleading information about waste differ between the offence against s 144AA(1) and the offence against s 144AA(2) of the POEO Act.

54. The maximum penalty for the offence against s 144AA(1) is $250,000 for corporation and $120,000 for an individual. Ghossayn Group is liable to the maximum penalty of $250,000 for committing the offence against s 144AA(1) in supplying false or misleading information about waste in the second set of waste delivery dockets from Suez and MET Recycling.

55. The maximum penalty for the offence against s 144AA(2) is $500,000 for a corporation and $240,000 or 18 months imprisonment or both for an individual. Ghossayn Group is liable to the maximum penalty of $500,000 for committing the offence against s 144AA(2) in supplying false or misleading information about waste in the first set of waste delivery dockets falsely said to be issued by Suez.

56. A director of a corporation that commits an offence attracting special executive liability under s 169(2) of the POEO Act is taken to have committed the same offence: s 169(1). That means that Mr Ghossayn is taken to have committed offences against s 142A(1), s 143(1) and s 144AAA(1) and is liable to the maximum penalty for those offences committed by an individual of $500,000.

57. A director of a corporation that commits an executive liability offence under s 169A(1) of the POEO Act commits an offence against s 169A. That means that Mr Ghossayn committed an offence against s 169A by Ghossayn Group committing an offence against s 144AA(1) and is liable to a maximum penalty for that offence committed by an individual of $120,000.

State of mind in committing the offences

58. The state of mind of an offender in committing a strict liability offence, which has no mental element, can increase the objective seriousness of the offence. The waste transportation and disposal offences against s 142A(1), s 143(1) and s 144AAA(1), are strict liability offences.

59. The evidence establishes that Ghossayn Group intentionally committed the offences against s 143(1) and s 144AAA(1), and recklessly committed the offence against s 142A(1).

60. Ghossayn Group’s conduct in transporting and disposing of the waste material from the Dulwich Hill site at the Luddenham property was intentional - Ghossayn Group wanted to avoid paying the waste disposal fees that would be charged by an appropriately licensed waste facility. This purpose could only be achieved if the place to which the waste material was transported and at which the waste was deposited was not a place that could lawfully be used as a waste facility and could lawfully receive the waste. This was Ghossayn Group’s intention in transporting and disposing of the waste material at the Luddenham property, rather than the Suez landfill or any other licensed waste facility. In these circumstances, I find beyond reasonable doubt that Ghossayn Group intentionally committed the offence against ss 143(1) and 144AAA(1).

61. Ghossayn Group’s commission of the offence against s 142A(1) involved a different state of mind. Ghossayn Group knew that the waste material from the Dulwich Hill site contained asbestos waste. That was one of the reasons for Ghossayn Group wishing to dispose of the waste material at a place other than a licensed waste facility that could lawfully receive asbestos waste.

62. This way it could avoid paying the higher fee that a licensed waste facility would charge for disposal of asbestos waste. Ghossayn Group knew that the Luddenham property was not a licensed waste facility. But it did not know whether and in what way disposal of the waste material from the Dulwich Hill site, which included asbestos waste, might actually cause harm to human health or the environment at the Luddenham property. In this circumstance, Ghossayn Group cannot be proved to have intentionally committed the offence against s 121A(1) of polluting land at the Luddenham property.

63. Nevertheless, Ghossayn Group was reckless. Recklessness refers to the state of mind of the offender who, in undertaking the conduct that constitutes the offence – here, the depositing of the waste material on the land – is aware of a risk that a particular consequence or circumstance is likely to result – here, the pollution of land. The offender is reckless when he or she has knowledge or foresight of the likelihood of the consequence or circumstance occurring: Chief Executive Office of Environment and Heritage v Brummell (2019) 242 LGERA 241; [2019] NSWLEC 114 at [52].

64. Ghossayn Group knew that the Luddenham property was not a licensed waste facility and hence would not have the necessary environmental management systems in place to manage the risks of harm to human health and the environment that would arise by unlawfully disposing of waste material on the land. Ghossayn Group disposed of the waste material simply by dumping it in a stockpile. No environmental management measures were undertaken. In these circumstances, Ghossayn Group had knowledge or foresight of the likelihood of the consequence of pollution of the land occurring by disposal of the waste material at the Luddenham property.

65. Mr Ghossayn, who by reason of s 169(1) of the POEO Act, is taken to have contravened the same provisions of ss 142A(1), 143(1) and 144AAA(1) as Ghossayn Group contravened, committed those offences with the same state of mind. Mr Ghossayn committed the offence against s 143(1) and s 144AAA(1) intentionally. Ghossayn Group committed the offences against those provisions at the direction of Mr Ghossayn. As he said in evidence, he wished to keep the company operating by avoiding paying the fees charged for disposal of waste material, including asbestos waste, at a licensed waste facility. Mr Ghossayn knew that the waste material from the Dulwich Hill site contained asbestos waste and would be disposed of at a place other than a licensed waste facility authorised to receive that waste.

66. Like Ghossayn Group, however, Mr Ghossayn did not commit the offence against s 142A(1) intentionally, but rather recklessly. Mr Ghossayn knew that the land to which the waste material from the Dulwich Hill site would be transported and at which it would be deposited would not be a licensed waste facility with the appropriate environmental management systems. He was aware that the waste material contained asbestos waste. He was aware of the risks that depositing waste material containing asbestos waste at a place that cannot lawfully receive that waste could cause the pollution of that land. Mr Ghossayn acted recklessly in allowing the disposal of the waste material on the land when he had that knowledge or foresight of the likelihood of this consequence occurring.

67. The Ghossayn Group’s commission of the offence against s 144AA(2) of the POEO Act does not involve any heightened state of mind, as Ghossayn Group’s knowledge that the information supplied was false or misleading is an element of the offence.

68. The offence against s 144AA(1), however, is a strict liability offence, there being no mental element of this offence. Ghossayn Group committed this offence by supplying the second set of waste delivery dockets to Didomi representing that the waste material from the Dulwich Hill site had, finally, been disposed of lawfully at the Suez landfill and the MET landfill. That representation was incorrect as those dockets were for the disposal of waste material from the Bringelly property and other sources, not from the Dulwich Hill site.

69. Both Ghossayn Group and Mr Ghossayn were unaware of this fact, having been deceived by Mr Cannuli into believing that the waste material disposed of at those waste facilities was the waste material from the Dulwich Hill site that Ghossayn Group had deposited at the Luddenham property, but which Mr Cannuli had moved to the Bringelly property. This lack of subjective knowledge that the information supplied was false or misleading means that neither Ghossayn Group nor Mr Ghossayn committed the offence against s 144AA(1) intentionally or recklessly. But their conduct was negligent.

70. The critical difference between the mental states of intention and recklessness and of negligence is that the first two states of mind are measured on a subjective standard (the referent being the offender) while the third state of mind is measured on an objective standard (the referent being a hypothetical reasonable person). Negligence assesses the offender’s conduct not by reference to what the offender knew, foresaw or did, but rather by reference to what a hypothetical reasonable person would have known, foreseen or done in the circumstances: Chief Executive, Office of Environment and Heritage v Brummell at [51], [53].

71. In the context of s 144AA(1) of the POEO Act, negligence refers to whether a hypothetical reasonable person in the position of Ghossayn Group or Mr Ghossayn would have known or foreseen that the consequence or circumstance, that the information supplied is false or misleading in a material respect, is likely to result.

72. Negligence in this respect is established, beyond reasonable doubt, in the circumstances of this case. Ghossayn Group and Mr Ghossayn took no steps to verify any of the statements of Mr Cannuli, including that all of the waste material from the Dulwich Hill site that Ghossayn Group had deposited on the Luddenham property had actually been removed from that property and deposited on the Bringelly property; that the waste material on the Bringelly property, which was evidently different in nature and volume, included the waste material from the Dulwich Hill site; that Mr Cannuli had actually removed the waste material he disposed of at the MET landfill from the Bringelly property and not from other sources; and that the waste material disposed of at the Suez landfill and the MET landfill met the tonnage and waste classification of the waste material from the Dulwich Hill site.

73. A hypothetical reasonable person in the position of Ghossayn Group or Mr Ghossayn would have taken such steps and thereby verified that the information was false or misleading. By Ghossayn Group and Mr Ghossayn not doing what a hypothetical reasonable person would have done, they committed the offence against s 144AA(1) (for Ghossayn Group) and s 169A(1) (for Mr Ghossayn) negligently.

Harm or likely harm to the environment

74. Section 241(1)(a) of the POEO Act provides that the Court is to taken into consideration the extent of harm caused or likely to be caused to the environment by the commission of the offence.

75. The commission of two offences against s 142A(1) and s 144AAA(1) concerning the disposal of the waste material, including asbestos waste, on the Luddenham property caused actual environment harm. The dumping of the waste material on the Luddenham property caused physical compaction of the soil, degrading its quality and agronomic amenity, and had the potential to cause a risk to human health and other living organisms due to the presence of asbestos and benzo(a)pyrene. The waste material exceeded relevant criteria for human health and ecological criteria by:

1. the levels of benzo(a)pyrene TEQ being above the published health investigation levels for low density residential use;

2. concentrations of fibrous asbestos and asbestos fibres being above the adopted criteria for human health;

3. numerous fragments of asbestos contaminated material being collected in exceedance of published health screening levels; and

1. levels of benzo(a)pyrene being above the ecological screening levels for urban residential and open space use.

76. The commission of the offence against s 143(1) of transporting the waste material to the Luddenham property led to this harm to the environment being caused, upon the waste material being deposited on the land. Although in terms, s 143(1) only addresses the unlawful transporting of waste to a place that cannot lawfully be used as a waste facility, it assumes that the transportation culminates with the deposition of the waste transported at the place. This flows from the defence to the offence in s 143(3C) of the POEO Act: “It is a defence in any proceedings for an offence under this section if the defendant establishes that the waste transported by the defendant was not deposited by the defendant or any other person at the place to which it was transported.”

77. In the present case, the waste material transported by Ghossayn Group to the Luddenham property was deposited at the Luddenham property, so the defence to the offence was not available. This means that the environmental harm resulting from the deposition of the waste material on the Luddenham property can be seen to be caused by the commission of the offence against s 143(1) of transporting that waste material to that place.

78. The commission of the offence against s 144AA(2) by Ghossayn Group and s 144AA(1) by Mr Ghossayn by suppling the first set of false waste delivery dockets had the potential to cause harm or likely harm to the environment. The purpose of supplying the false waste delivery dockets was to conceal the fact that the waste material had been unlawfully deposited at a place other than a licensed waste facility authorised to receive the waste. That place was known to Ghossayn Group and Mr Ghossayn to be the Luddenham property. As I have found earlier, Ghossayn Group and Mr Ghossayn were aware that, as the Luddenham property was not a place that could lawfully receive waste, including asbestos waste, it would have no environmental management systems in place to ensure environment protection. In these circumstances, the commission of the offences against s 144AA(1) and (2) by Mr Ghossayn and Ghossayn Group respectively had the potential to cause harm or likely harm to the environment: Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) (2020) 247 LGERA 23; [2020] NSWLEC 166 at [22]-[24].

Practical measures to prevent harm

79. Section 241(1)(b) of the POEO Act provides that the Court is to take into consideration the practical measures that may be taken to prevent, control, abate or mitigate that harm.

80. In the present case, the practical measures that should have been taken by Ghossayn Group and Mr Ghossayn were obvious: not to carry out the conduct that constituted each of the offences. What caused or was likely to cause harm to the environment was not the manner in which the conduct constituting the offences was carried out, but the carrying out of the conduct in the first place. No environmental harm could have been caused if the waste material, including asbestos waste, had not been transported to and deposited at the Luddenham property and that unlawful conduct could not have been enabled if the information about the waste that was false or misleading in material respects had not been supplied.

Foreseeability of harm

81. Section 241(1)(c) of the POEO Act provides that the Court is to take into consideration 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.

82. For the reasons I have given earlier when addressing Ghossayn Group’s and Mr Ghossayn’s state of mind in committing the offences and the harm caused to the environment, both Ghossayn Group and Mr Ghossayn could reasonably have foreseen the harm caused or likely to be caused to the environment by their commission of the offences.

Control over the causes of the offences

83. Section 241(1)(d) of the POEO Act provides that the Court is to take into consideration the extent to which the person who committed the offence had control over the causes that gave rise to the offence.

84. In the present case, Ghossayn Group and Mr Ghossayn had complete control over the causes that gave rise to their committing the offences against ss 142A(1), 143(1) and 144AAA(1) of unlawfully transporting and depositing the waste material at the Luddenham property and the offence against s 144AA(2) (for Ghossayn Group) and ss 144AA(1) and 169A (for Mr Ghossayn) of supplying false or misleading information in the first set of waste delivery dockets. Their conduct was the cause of the offences.

85. Ghossayn Group’s control over the causes of the offence against s 144AA(1) of supplying false or misleading information in the second set of waste delivery dockets was less, but still present. Had Ghossayn Group taken the steps a hypothetical reasonable person in its position would have taken to verify that the waste material disposed of at the Suez landfill and the MET landfill was in fact the waste material from the Dulwich Hill site, it could readily have discovered that the information in the second set of waste delivery dockets was false and not supplied these false dockets to Didomi.

Committing the offences for financial gain.

86. An offence committed for financial gain is objectively more serious: s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act).

87. All of the offences committed by Ghossayn Group and Mr Ghossayn were committed for financial gain. Ghossayn Group wished to save incurring the expense of paying the high fees charged by licensed waste facilities for disposing of waste, including asbestos waste, at these waste facilities. The conduct constituting each of the offences was motivated by this goal. The amount saved was not quantified, but Mr Ghossayn said in oral evidence that there would be a saving (a discount) of around 80% of the fees that would have been payable to dispose of the waste material at a licensed waste facility.

88. As events transpired, Ghossayn Group did not in fact gain financially. Although Ghossayn Group avoided paying the fees when it deposited the waste material at the Luddenham property, it had to pay fees to Suez and MET Recycling for the disposal of the waste material removed from the Bringelly property and other sources. In aggregate, these fees would have been greater than the fees it would have had to pay had it deposited the waste material from the Dulwich Hill site at a licensed waste facility in the first place.

89. Ghossayn Group also incurred the expense of paying Mr Killick $300 for each of the false waste delivery dockets; Mr Cannuli for depositing the waste material on the Luddenham property a total of $24,640, Mr Cannuli for removing waste material from the Bringelly property and other sites and transporting it to the MET landfill; and paying for Ghossayn Group’s own trucks and employees in transporting and disposing of waste material first at the Luddenham property and later at the Suez landfill.

90. Ghossayn Group has also suffered financial loss in that it has not been paid by Didomi for its work under the contract for excavation works at the Dulwich Hill site. Ghossayn Group’s first invoice for $233,429.24 with the first set of waste delivery dockets was rejected by Didomi as fraudulent. Ghossayn Group’s second invoice for the same amount with the second set of waste delivery docktes was also rejected by Didomi. Mr Ghossayn said a settlement had later been reached between Didomi and Ghossayn Group, but this did not involve Didomi paying either of these invoices.

91. In these circumstances, whilst the offences were committed with the motivation of financial gain, no financial gain eventuated. Nevertheless, this motivation of financial gain is taken into account under s 21A(2)(o) of the Sentencing Act.

No planned or organised criminal activity

92. An offence is aggravated if it was part of a planned or organised criminal activity: s 21A(2)(n) of the Sentencing Act. “Organised criminal activity” may involve the activities of several people that are planned or coordinated to carry out the crime, or an activity that is carried out by one person if that person engages in planning or preparation: NCR Australia v Credit Connection [2005] NSWSC 1118 at [72]; Hewitt v R (2007) 180 A Crim R 306; [2007] NSWCCA 353 at [25].

93. This aggravating factor will not be established unless there is evidence that would permit a finding beyond reasonable doubt that the degree of planning in the case exceeded the degree of planning which would ordinarily be expected in an offence of that kind: Knight v R [2010] NSWCCA 51 at [16].

94. The commission of the offences by Ghossayn Group and Mr Ghossayn did involve a degree of planning by them and involvement by other persons in order to undertake the conduct constituting the offences. Ghossayn Group and Mr Ghossayn needed to identify and obtain the agreement of an occupier of land to which the waste material from the Dulwich Hill site could be transported and at which the waste material could be deposited. That was Mr Cannuli, the sublessee of the Luddenham property. Ghossayn Group and Mr Ghossayn needed to identify and obtain the agreement of a person who could procure false waste delivery dockets for the waste material that would be disposed of unlawfully at a place not authorised to receive the waste. That was Mr Geagea initially, and Mr Killick and the man in the Suez shirt afterwards.

95. Nevertheless, the planning of the conduct and dealings with these people involved no more than was necessary to undertake the conduct constituting the commission of the offences. That is insufficient to establish the aggravating factor that the offences were part of a planned or organised criminal activity.

Conclusion of objective circumstances

96. Having regard to the objective circumstances that I have found established, I find the offences committed by Ghossayn Group and Mr Ghossayn fall within the following ranges:

1. offence against s 142A(1): low range.

2. offence against s 143(1): low to mid-range.

3. offence against s 144AAA(1): low to mid-range.

4. offence against s 144AA(2) (Ghossayn Group for first set of waste delivery dockets): lower end of mid-range.

5. offence against s 144AA(1) (Mr Ghossayn for first set of waste delivery dockets): lower end of mid-range.

6. offence against s 144AA(1) (Ghossayn Group for second set of dockets): lower end of low range.

Subjective circumstances of the offenders

97. Within the limits set by the objective seriousness of the offences, the court is to take into account the subjective circumstances of the offender that mitigate the offences. Of relevance here are: early pleas of guilty, no substantial record of previous convictions, remorse for the offences, assistance to authorities, good character and unlikelihood of reoffending.

Pleas of guilty

98. Ghossayn Group and Mr Ghossayn are entitled to a discount on sentence for their pleas of guilty: s 21A(3)(k) and s 22(1) of the Sentencing Act. A plea of guilty has utilitarian value to the criminal justice system. A discount of up to 25% can be allowed for guilty pleas entered at the earliest possible opportunity: R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [155], [160].

99. Proceedings for the offences committed by Ghossayn Group were commenced on three dates, the earliest being 13 July 2022 and latest being 5 October 2022. Ghossayn Group entered a plea of guilty to five charges on 24 February 2023. This was the second attendance after the final charge was commenced on 5 October 2022. During the intervening period the prosecutor continued to serve further evidence.

100. The proceedings for the offences committed by Mr Ghossayn were commenced on two dates, the earliest on 13 July 2022 and the latest on 10 August 2022. Mr Ghossayn entered a plea of guilty to the four charges on 24 February 2023. This was the fourth attendance after the final charge was commenced on 10 August 2022. During the intervening period the prosecutor continued to serve further evidence.

101. The prosecutor submitted that the delay in entering pleas of guilty to all of the charges meant that the maximum discount of 25% for the utilitarian value of the plea of guilty was not justified, however a discount in the high range was appropriate. Ghossayn Group and Mr Ghossayn contended that the maximum discount of 25% was appropriate.

102. I find a discount of 20% is appropriate. There was delay in both Ghossayn Group and Mr Ghossayn entering their pleas of guilty to the charges. That delay might be explained by the prosecutor continuing to serve evidence after it commenced each proceeding. However, ordinarily the reason for a delay in the entry of a guilty plea is irrelevant as delay lessens the utilitarian value of a plea of guilty: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32(8)]; Morton v R [2014] NSWCCA 8 at [32], [33].

No significant record of previous convictions

103. A mitigating factor is if the offender does not have a record, or any significant record, of previous convictions: s 21A(3)(e) of the Sentencing Act.

104. Ghossayn Group does not have a record of previous convictions. Mr Ghossayn has been prosecuted for two environmental offences, one against s 126 and the other against s 144 of the POEO Act, committed in the operation of a waste facility in 2007: Environment Protection Authority v Ghossayn [2009] NSWLEC 181. Mr Ghossayn committed the offences by operation of s 169 of the POEO Act, as he was a director of the company, which operated the waste facility and contravened those provisions.

105. In these circumstances, Ghossayn Group does not have a record of previous convictions and Mr Ghossayn does not have a significant record of previous convictions for the purposes of s 21A(3)(e) of the Sentencing Act.

Remorse for the offences

106. A mitigating factor is the remorse shown by the offender for the offence: s 21A(3)(i) of the Sentencing Act. For remorse to be mitigating, the offender must provide evidence that he or she has accepted responsibility for his or her actions and acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage: s 21A(3)(i)(i) and (ii) of the Sentencing Act.

107. The genuineness of the offender’s remorse can be evaluated by reference to whether the offender has taken four forms of action:

1. the speed and efficiency of action to rectify any harm caused or likely to continue to be caused by the commission of the offence;

2. voluntarily reporting of the commission of the offence and any concomitant environmental harm to relevant authorities;

3. the taking of action to address the causes of the offence; and

4. the personal appearance of corporate executives in count and their personal evidence outlining the company’s genuine regret and stating future plans to avoid repetition of such offences: Environment Protection Authority v Waste Recycling and ProcessingCorporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [203], [204], [210], [212] and [214].

108. In the present case, Mr Ghossayn gave evidence, both by way of his affidavits of 28 September 2023 and 4 October 2023 and a confidential affidavit of 28 September 2023 and oral evidence at the sentence hearing, on behalf of his company, Ghossayn Group, and on his own behalf. Mr Ghossayn accepted responsibility for the actions constituting the offences; acknowledged the impacts the actions have had on Didomi at the Dulwich Hill site and the owners of the land at the Luddenham property; and apologised to those persons for causing those impacts and to the Environment Protection Authority for its trouble and expense in investigating and remedying the offences.

109. Mr Ghossayn explained that he has caused a review to be conducted of Ghossayn Group’s systems and procedures. Ghossayn Group has spent $4,565 to have GPS trackers installed in its transport fleet, which provide real time and auditable tracking of its trucks. Ghossayn Group has arranged for an independent audit company to attend its depot and work sites and to audit compliance with contracts and the transporting and depositing of waste at approved and lawful sites.

110. Mr Ghossayn explained the actions and the costs incurred by Ghossayn Group in cleaning up the Bringelly site voluntarily, in the mistaken belief that the waste material from the Dulwich Hill site had been moved to that place. Mr Ghossayn estimated Ghossayn Group spent $208,419.75 in clean-up costs. Those actions were undertaken and costs incurred to make reparation for the harm caused by the unlawful disposal of the waste material from the Dulwich Hill site.

111. Mr Ghossayn also explained what efforts Ghossayn Group had made to attempt to clean up the waste material at, or otherwise to make reparation for harm to, the Luddenham property. The total volume of waste material at the Luddenham property was far greater than the volume of waste material that Ghossayn Group had deposited from the Dulwich Hill site. Ghossayn Group quoted the owners of the Luddenham property an amount to remove all of the waste material and offered to subtract the cost of cleaning up the waste material deposited by Ghossayn Group from the total cost of the clean-up. The owners of the Luddenham property did not accept Ghossayn Group’s offer to clean up the site. The owners instead engaged Combeda Constructions Pty, which in turn engaged Masters Civil (Aust) Pty Ltd, to clean up the site. Ghossayn Group offered to contribute $88,000 towards the cost of the clean-up. Although a representative of Combeda Constructions Pty Ltd agreed for that sum to be paid and provided a draft deed of release between Ghossayn Group and the owners, the owners did not accept Ghossayn Group’s offer.

112. I find that these statements and actions of Ghossayn Group and Mr Ghossayn evidence their remorse for the offences, which is a mitigating factor under s 21A(3)(i) of the Sentencing Act.

Assistance to authorities

113. The provision by an offender of assistance to law enforcement authorities is a mitigator factor: s 21A(3)(m) of the Sentencing Act. The court may impose a lesser penalty than it would otherwise impose on the offender, having regard to the degree to which the offender has assisted or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence or any other offence: s 23(1) of the Sentencing Act.

114. In deciding whether to impose a lesser penalty for an offence, the court must consider, amongst other matters, the significance and usefulness of the offender’s assistance to the law enforcement authorities; the truthfulness, completeness and reliability of any information or evidence provided by the offender; the timelessness of the assistance or undertaking to assist; and whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence: s 23(2)(b), (c), (d), (e) and (i) of the Sentencing Act.

115. If a lesser penalty is to be imposed, it must not be unreasonably disproportionate to the nature and circumstances of the offence: s 23(3) of the Sentencing Act. A court that imposes a lesser penalty on the offender because the offender has assisted or undertaken to assist law enforcement authorities is to indicate to the offender and record the fact that a lesser penalty is being imposed for either reason, state the penalty it would otherwise have imposed, and state the amount by which the penalty has been reduced for either reason: s 23(4) of the Sentencing Act.

116. Ghossayn Group and Mr Ghossayn have provided some, although limited, assistance to the prosecutor in this case by agreeing to a statement of facts. Those facts state essentially what would have been proven by the affidavits and documents served by the prosecutor in any event. In this regard, agreeing to a statement of the facts that would have been proven in any event did not provide significant assistance to the prosecutor: Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152 at [138].

113. Other assistance will be provided by Ghossayn Group and Mr Ghossayn to the Environment Protection Authority in their future investigations of the waste industry generally. The precise nature and extent of that assistance is the subject of orders under the Court Suppression and Non-Publication Orders Act 2010 (NSW). I assess that assistance to be of some, but limited, value.

114. In aggregate, I assess the assistance Ghossayn Group and Mr Ghossayn have provided and will provide to law enforcement authorities to justify a reduction in the penalty that would otherwise be appropriate by 5%.

Good character

119. A mitigating factor is if the offender is a person of good character: s 21A(3)(f) of the Sentencing Act.

120. Ghossayn Group submitted that its corporate good character is evidenced by it having no convictions for previous environmental offences. Mr Ghossayn said that Ghossayn Group’s charitable works have extended to hospitals and education institutions and that Ghossayn Group promotes higher learning through the University of Sydney’s Australian Lebanese Foundation, by sponsoring a range of programs, including the Art and Culture Unit & Talent Showcase.

121. Mr Ghossayn submitted he is a person of good character. He gave evidence of the awards and recognitions he has received, in Australia and in Lebanon. He explained his active involvement, together with his wife, in their community by supporting local and global programs to foster higher learning and personal development and being engaged in numerous charitable organisations.

122. This evidence supports a finding that Ghossayn Group and Mr Ghossayn are persons of good character.

Unlikelihood of reoffending

123. A mitigating factor is if the offender is unlikely to reoffend: s 21A(3)(g) of the Sentencing Act.

124. Ghossayn Group and Mr Ghossayn submitted that they are unlikely to reoffend having regard to their pleas of guilty, their remorse for the offences, and the actions they have taken to improve management and audit systems. I accept that submission.

Appropriate sentences for the offences

125. Synthesising the objective circumstances of the offences and the subjective circumstances of the offenders, I consider the appropriate penalty for each offence is a fine in the following amounts:

1. For Ghossayn Group:

1. s 142A(1) offence (pollute land): $150,000

2. s 143(1) offence (transport waste): $250,000

3. s 144AAA(1) offence (dispose of asbestos waste): $250,000

4. s 144AA(2) offence (knowingly supply false or misleading information in first set of waste delivery dockets): $150,000

5. s 144AA(1) offence (supply false or misleading information in second set of waste delivery dockets): $20,000

2. for Mr Ghossayn :

1. s 142A(1) offence (pollute land): $37,500

2. s 143(1) offence (transport waste): $ 62,500

3. s 144AAA(1) offence (dispose of asbestos waste): $62,500

4. s 144AA(1) offence (supply false or misleading information in first set of waste delivery dockets): $36,000

126. These amounts need to be discounted by 20% for the utilitarian value of the pleas of guilty and 5% for assistance to law enforcement authorities (a combined discount of 25%). The resultant amounts are:

1. For Ghossayn Group:

1. s 142A(1) offence: $112,500

2. s 143(1) offence: $187,500

3. s 144AAA(1) offence: $187,500

4. s 144AA(2) offence: $112,500

5. s 144AA(1) offence: $15,000

2. For Mr Ghossayn:

1. s 142A(1) offence: $28,125

2. s 143(1) offence: $46,875

3. s 144AAA(1) offence: $46,875

4. s 144AA(1) offence: $27,000

Reviewing the appropriate sentences

127. The sentences I have determined to be appropriate for each offence committed by Ghossayn Group and Mr Ghossayn need to be reviewed for considerations of totality and parity.

128. The totality principle applies where an offender has committed, and is to be sentenced for, multiple offences. The effect of the totality principle is to require the court in passing a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is “just and appropriate” and reflects the total criminality before the court: Mill v the Queen (1988) 166 CLR 59 at 62-63; [1998] HCA 70; Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57 at [49]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [196]. In the case of a sentence of a fine, if the Court believes the totality principle requires an adjustment to the individual fines that would otherwise be appropriate, the amount of each fine can be altered: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [50].

129. Care must be taken to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender’s conduct or the sentence for any individual sentence to become disproportionate to the objective seriousness of the offence: Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 at [222].

130. In determining the appropriate sentence for each offence, the Court must consider the need to uphold confidence in the administration of justice. If sentences are reduced substantially, offenders may be of the view that they can escape punishment for a deliberate series of discrete offences: R v Wheeler [2000] NSWCCA 34 at [36]-[37].

131. In this case, I consider the totality principle does require there to be some adjustment of the fines for the offences in one group but not the other two groups of offences. The first group is the waste transportation and disposal offences against ss 142A(1), 143(1) and 144AAA(1). The second group is the supply of false and misleading information offences against s 144AA(2) and s 169A(1) concerning the first set of waste delivery dockets. The third group is the supply of false and misleading information offence against s 144AA(1) concerning the second set of waste delivery dockets.

132. The adjustment I consider just and appropriate is of the sentences for the offences in the first group of offences, but not of the sentences for the offences between the three groups. Whilst there is some overlap in the conduct that led to the commission of the three offences in the first group, justifying an adjustment of the sentences to account for that overlap, there is little overlap between the offences in the first group and the offences in the second and third groups, and even less overlap between the offences in the second and third groups themselves.

133. In the first group of offences, the aggregate of the sentences I have determined to be otherwise appropriate for the offences against ss 142A(1), 143(1) and 144AAA(1), committed by Ghossayn Group is $487,500 and committed by Mr Ghossayn is $121,875. The overlap between these offences concerns the depositing of the waste material on the land, not the transportation of the waste material to the land. The depositing of the waste material, which contained asbestos waste, led to the commission of the offence against s 144AAA(1) of unlawfully disposing of asbestos waste as well as the commission of the offence against s 142A(1) of polluting land by reason of the depositing of asbestos waste on the land. Whilst the offence against s 143(1) is committed by the unlawful transportation of waste, it is a defence to the offence that the waste transported was not deposited on the land. In that regard, there is a degree of overlap between the offences: ss 142A(1) and 144AA(1) and the offence against s 143(1).

134. The aggregate of the sentences for the two offences against s 142A(1) and s 144AAA(1) of $300,000 for Ghossayn Group and $75,000 for Mr Ghossayn marginally exceeds the total criminality involved in disposing of the waste material on the land. A downward adjustment of the fines for the offences is appropriate. For Ghossayn Group, I consider an aggregate fine for these two offences of $260,000 (apportioned $97,500 for the s 142A(1) offence and $162,500 for the s 144AAA(1) offence) is appropriate. For Mr Ghossayn, I consider an aggregate fine of $65,000 (apportioned $24,375 for the s 142A(1) offence and $40,625 for the s 144AAA(1) offence) is appropriate.

135. There should also be an adjustment of the fine I have determined to be appropriate for the offence against s 143(1) of unlawfully transporting to take account of the overlap with the offences against ss 142A(1) and 144AAA(1). A downward adjustment of the same magnitude as the adjustment of the offence against s 144AAA(1) is appropriate. The fine for the offence against s 143(1) would then become $162,500 for the Ghossayn Group and $40,625 for Mr Ghossayn.

136. As I have also earlier found, I do not consider the totality principle justifies reducing the fines I have determined to be appropriate for the offence against s 144AA(2) for the knowing supply of false or misleading information in the first set of waste delivery dockets committed by Ghossayn Group ($112,500) or for the offence against s 144AA(1) and s 169A of supplying false or misleading information in the first set of waste delivery dockets committed by Mr Ghossayn ($27,000).

137. No adjustment for totality is justified of the fine for the offence committed by Ghossayn Group against s 144AA(1) for supplying false or misleading information in the second set of waste delivery dockets ($15,000). That offence is a discrete offence, unrelated to the offences.

138. The other check on the sentences arises from the principle of parity. Mr Geagea, the person whom Mr Ghossayn asked to arrange for false waste delivery dockets to be provided to Ghossayn Group, has also been prosecuted for an offence against s 144AA(2). He will be sentenced at the same time as Mr Ghossayn. I have determined that the appropriate fine for the offence committed by Mr Geagea is $54,000. This is greater than the fine I have determined for Mr Ghossayn ($27,000) as each person was charged with different offences. Mr Geagea was charged with committing of the offence against s 144AA(2), which had a maximum penalty at the time of $240,000 for an individual, while Mr Ghossayn was charged with committing an offence against s 144AA(1), which had a maximum penalty at the time of $120,000 for an individual. The difference in the amounts of the fines imposed on Mr Geagea and Mr Ghossayn reflects these different maximum penalties. I find their relative culpabilities in committing the offences with which they were charged to be the same. The parity principle, therefore, does not justify any adjustment of the fine for Mr Ghossayn’s commission of the offence against s 144AA(1).

Other sentencing orders

139. The prosecutor sought an order under s 248(1) of the POEO Act that Ghossayn Group and Mr Ghossayn pay the EPA’s reasonable costs and expenses incurred in the investigation of the offences. Those costs and expenses were quantified at $14,468.60. Ghossayn Group and Mr Ghossayn do not contest this order. I consider it appropriate. For ease of enforcement, I will make the order only against Ghossayn Group in one of the proceedings and not against Mr Ghossayn also.

140. The prosecutor sought a publication order under s 250(1)(a) of the POEO Act. The prosecutor provided a form of the publication order. Ghossayn Group and Mr Ghossayn do not contest the Court making a publication order. I consider a publication order is appropriate, including to promote general deterrence: Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [76].

141. The prosecutor sought an order under s 122(2) of the Fines Act 1996 (NSW) directing one half of the fines be paid to the prosecutor. Ghossayn Group and Mr Ghossayn did not contest that order. I agree to making the order.

142. Finally, the prosecutor seeks an order that Ghossayn Group and Mr Ghossayn pay its professional costs as agreed or assessed, under s 257B of the Criminal Procedure Act 1986 (NSW). Ghossayn Group and Mr Ghossayn accept that a costs order is appropriate to compensate the prosecutor. I agree.

143. The Court orders:

(a)       In proceedings 2022/204377:

(1) Ghossayn Group Pty Ltd is convicted of the offence against s 142A(1) of the Protection of the Environment Operations Act 1997, as charged.

(2)   Ghossayn Group Pty Ltd is fined $97,500.

(3)   One-half of the fine in order 2 is to be paid to the prosecutor.

(4) Ghossayn Group Pty Ltd is to pay $14,468.60 to the prosecutor for its investigation costs under s 248(1) of the Protection of the Environment Operations Act 1997.

(5) Ghossayn Group Pty Ltd is to pay the prosecutor’s costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986.

(b)       In proceedings 2022/204378:

(1) Ghossayn Group Pty Ltd is convicted of the offence against s 143(1) of the Protection of the Environment Operations Act 1997 as charged.

(2)   Ghossayn Group Pty Ltd is fined $162,500.

(3)   One-half of the fine in order 2 is to be paid to the prosecutor.

(4) Ghossayn Group Pty Ltd is to pay the prosecutor’s costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986.

(c)       In proceedings 2022/204379:

(1) Ghossayn Group Pty Ltd is convicted of the offence against s 144AAA(1) of the Protection of the Environment Operations Act 1997, as charged.

(2)   Ghossayn Group Pty Ltd is fined $162,500.

(3)   One-half of the fine in order 2 is to be paid to the prosecutor.

(4) Ghossayn Group Pty Ltd is to pay the prosecutor’s costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986.

(d)       In proceedings 2022/235555:

(1) Ghossayn Group Pty Ltd is convicted of the offence against s 144AA(2) of the Protection of the Environment Operations Act 1997, as charged.

(2)   Ghossayn Group Pty Ltd is fined $112,500.

(3)   One-half of the fine in order 2 is to be paid to the prosecutor.

(4) Ghossayn Group Pty Ltd is to pay the prosecutor’s costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986.

(e)       In proceedings 2022/295845:

(1) Ghossayn Group Pty Ltd is convicted of the offence against s 144AA(1) of the Protection of the Environment Operations Act 1997, as charged.

(2)   Ghossayn Group Pty Ltd is fined $15,000.

(3)   One-half of the fine in order 2 is to be paid to the prosecutor.

(4) Ghossayn Group Pty Ltd is to pay the prosecutor’s costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986.

(f)       In proceedings 2022/204393:

(1) Mr George Ghossayn is convicted of the offence against s 142A(1) of the Protection of the Environment Operations Act 1997, by reason of s 169(1) of that Act, as charged.

(2)   Mr George Ghossayn is fined $24,375.

(3)   One-half of the fine in order 2 is to be paid to the prosecutor.

(4) Mr George Ghossayn is to pay the prosecutor’s costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986.

(g)       In proceedings 2022/204394:

(1) Mr George Ghossayn is convicted of the offence against s 143(1) of the Protection of the Environment Operations Act 1997, by reason of s 169(1) of that Act, as charged.

(2)   Mr George Ghossayn is fined $40,625.

(3)   One-half of the fine in order 2 is to be paid to the prosecutor.

(4) Mr George Ghossayn is to pay the prosecutor’s costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986.

(h)       In proceedings 2022/204395:

(1) Mr George Ghossayn is convicted of the offence against s 144AAA(1) of the Protection of the Environment Operations Act 1997, by reason of s 169(1) of that Act, as charged.

(2)   Mr George Ghossayn is fined $40,625.

(3)   One-half of the fine in order 2 is to be paid to the prosecutor.

(4) Mr George Ghossayn is to pay the prosecutor’s costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986.

(i)        In proceedings 2022/235567:

(1) Mr George Ghossayn is convicted of the offence against s 169A of the Protection of the Environment Operations Act 1997, as charged.

(2)   Mr George Ghossayn is fined $27,000.

(3)   One-half of the fine in order 2 is to be paid to the prosecutor.

(4) Mr George Ghossayn is to pay the prosecutor’s costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986.

(j)        In proceedings 2022/204393-395, 2022/235567, 2022/204377-379, 2022/235555 and 2022/295845:

(1)    Pursuant to section 250(1)(a) of the Protection of the Environment Operations Act 1997, Ghossayn Group Pty Ltd and Mr Ghossayn, at their own expense, are to:

1. within 28 days of the date of this order, cause a notice at a minimum size of 15cm by 15cm to be published within the first 10 pages of The Daily Telegraph (or as close to the first 10 pages as can be accommodated having regard to the editorial requirements of the newspaper) with the text as set out in Annexure A to these orders; and

2. within 56 days of the date of this order, cause a notice at a minimum size of a quarter page to be published within the first 10 pages of the Inside Waste magazine (or as close to the first 10 pages as can be accommodated having regard to the editorial requirements of the newspaper) with the text as set out in Annexure A to these orders.

(2)    within 28 days of the date of publication of each notice referred to in order 1, Ghossayn Group Pty Ltd and Mr Ghossayn must provide to the prosecutor a complete copy of the page or pages of the newspaper and magazine in which the notice appears.

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Annexure A

Ghossayn Group Pty Ltd and George Ghossayn convicted of waste offences

On 17 November 2023, Ghossayn Group Pty Ltd (Ghossayn Group) and George Ghossayn, the sole director of Ghossayn Group, were convicted by the Land and Environment Court of NSW for a total of nine offences under the Protection of the Environment Operations Act 1997 relating to the unlawful transport and disposal of waste material, which included asbestos waste, and the subsequent supply of false or misleading information about that waste.

Ghossayn Group and Mr Ghossayn were convicted of six offences relating to the transport of waste material, contaminated with asbestos, from a construction site at Dulwich Hill to a residential property in Luddenham in July 2019, where it was unlawfully dumped. Ghossayn Group and Mr Ghossayn were convicted of two offences relating to the subsequent supply of falsified waste delivery dockets (also known as tipping dockets) to the developer of the construction site at Dulwich Hill, which falsely recorded that the waste material had been lawfully deposited at a licensed landfill facility. Ghossayn Group was also convicted of one further offence of supplying a further set of false or misleading waste delivery dockets that again misrepresented that the waste material from the Dulwich Hill site had been lawfully deposited at a licensed landfill facility. Ghossayn Group and Mr Ghossayn were prosecuted by the NSW Environment Protection Authority and pleaded guilty to the nine offences.

Ghossayn Group was:

(1) fined in total $550,000 for the five offences it committed and

(2) ordered to pay $14,468.60 to the prosecutor for its investigation costs.

Mr Ghossayn was fined a total of $132,625 for the four offences he committed.

Both Ghossayn Group and Mr Ghossayn were:

(1)   ordered to pay the prosecutor’s costs of the proceedings and

(2)   ordered to place and pay for this publication notice.

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

Amendments

21 November 2023 - Cover sheet amended - representatives of parties.

Decision last updated: 21 November 2023