Great Lakes Council v Mood (No 2)

[2008] NSWLEC 68

Land and Environment Court

of New South Wales

CITATION:

Great Lakes Council v Mood (No.2) [2008] NSWLEC 68

PARTIES:

PROSECUTOR
Great Lakes Council
DEFENDANT
John Raymond Mood

FILE NUMBER(S):

50032 of 2007

CORAM:

Sheahan J

KEY ISSUES:

Prosecution :- providing information to Council knowing it was false or misleading in a material respect; plea of guilty; sentencing; costs

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999 s.19(1), s.21A, s.22, s.23
Criminal Procedure Act 1986 s.257G
Fines Act 1996
Protection of the Environment Operations Act 1997 s.193(1), s.211, s.241

CASES CITED:

Chow v Director of Public Prosecutions and Another (1992) 28 NSWLR 593
EPA v Caltex Australia Petroleum Pty Limited [2007] NSWLEC 647
Environment Protection Authority v Hargraves [2002] NSWLEC 113
Environment Protection Authority v Hargraves (No.2) (2003) 124 LGERA 57
Environment Protection Authority v Mark Peters [2006] NSWLEC465
Environment Protection Authority v Mark Peters (2006) 153 LGERA238
Great Lakes Council v Mood [2007] NSWLEC 705
R v O'Neill [1979] 2 NSWLR 582
R v Thomson; R v Houlton (2000) 49 NSWLR 383

DATES OF HEARING:

11-12 February 2008

 
DATE OF JUDGMENT: 

22 February 2008

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr T Howard
SOLICITORS
Stacks

DEFENDANT
Mr R Lancaster
SOLICITORS
Barraclough Jones

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Justice Sheahan

22 February 2008

50032 of 2007

GREAT LAKES COUNCIL v JOHN RAYMOND MOOD (No.2)

JUDGMENT

Introduction

1 His Honour: John Raymond Mood pleaded guilty on 17 August 2007 to a charge that on or about 27 September 2006 at Tuncurry, he committed an offence against s.211(2) of the Protection of the Environment Operations Act 1995 (“POEO Act”) by furnishing information, in purported compliance with a requirement made under Chapter 7 of that Act, knowing that it was false or misleading in a material respect.

2 When the matter came on for hearing, Counsel for the Prosecutor asked me to dismiss, by consent and without any order as to costs, other proceedings brought by Council against Mr Mood (matter 50031 of 2007).

3 This prosecution, which was commenced on 16 May 2007, concerns the provision by Mr Mood, through his solicitors, on 27 September 2006, of responses to nine questions put to him in a notice served on him pursuant to s.193(1) of the POEO Act, dated 12 September 2006 (Exhibit P1), regarding events which occurred on or shortly after 27 May 2005.

4 While recording all the above dates it is relevant to note also that Mr Mood’s solicitors, on 7 July 2005, had responded to an earlier s.193(1) notice, dated 20 June 2005, concerning basically the same subject matter.

5 The questions posed in both the notices concerned the “demolition of a cottage”, or of “a dwelling and other buildings”, located on a property at 35 Parkes Street Tuncurry (“No.35”), purchased, by a company controlled by Mr Mood, on 23 March 2005. The questions Council posed in the 12 September 2006 notice, and the answers proffered to them by Mr Mood’s solicitors, were helpfully tabulated by the Prosecutor in Exhibit P2. There were nine questions and nine answers.

6 The Prosecutor alleges that the answers given to four of the nine questions (questions (c), (d), (e), and (i)) were “false or misleading in a material respect”, and Mr Mood revisits (in par 55 of his affidavit of 6 February 2008) his answers to three of those four questions ((d), (e), and (i)) and to one other ((g), rather than (c)).

7 The five relevant questions and the answers involved in the charge and/or in Mr Mood’s response are set out as follows:

(c) Did you cause the cottage on the property to be demolished? A. No.
(d) Did you permit or authorise the cottage on the property to be demolished? A. No.
(e ) Prior to the demolition of the cottage on the property commencing on about 28 May 2005, did you have any knowledge of the proposed demolition of the cottage? If so, what did you know about that? A. No
(g) Are you aware of the identity of the persons who removed the demolition waste from the property in the period between about 28 May 2005 and 30 May 2005 and 30 May 2005 [SIC]? If so what is the identity of that person or those persons? A. No
(i) What further information do you have knowledge of which could assist the Council in finding where the asbestos waste created by the demolition of the cottage located on the property on or about 28 May 2005 was taken to or disposed of? A. Our client is not aware of who demolished the cottage or where the demolished materials were taken to.

8 In the Particulars of Charge the Prosecutor alleges that, in respect of question (c), the Defendant knew that he had caused the cottage to be demolished. Mr Mood has consistently denied this allegation. On his behalf in their reply to the 20 June 2005 notice, Mr Mood’s solicitors asserted he “did not request, authorise or approve the demolition of the building on the property or the removal of building waste” except by way of cleaning up as directed by Council on or after 30 May 2005 (see Annexure “C” to Mr Pevitt’s affidavit of 4 May 2007), and Mr Mood maintained that position throughout his evidence in this matter.

9 In respect of question (d), the Prosecutor alleges that the Defendant knew that he had permitted or authorised the cottage to be demolished. Mr Mood deposes:

I accept that the answer provided by Barraclough Jones & Associates on my behalf in their letter dated 27 September 2006 to item (d) was not complete and accurate in that I did authorise the partial internal demolition of the cottage to permit the removal of the hot water service, fixtures and fittings.

10 In respect of question (e), the Prosecutor alleges that the Defendant had prior knowledge of the demolition of the cottage. Mr Mood deposes:

I accept that the answer provided by Barraclough Jones & Associates on my behalf in their letter dated 27 September 2006 to item (e) was not complete and accurate in that I did have knowledge of the proposed partial demolition of the cottage to permit the removal of the hot water service and internal fittings and fixtures from the Property. I was aware that in order to facilitate the removal of these items the interior of the cottage would need to be partially demolished.

11 In respect of question (g), Mr Mood deposes:

At the time I instructed Barraclough Jones & Associates to provide the answer to item (g) I held in my records the Tax Invoice from JR Richards and Sons which is annexure ‘F’ to this Affidavit. The existence of that Tax Invoice should have been referred to in the response to Great Lakes Council.

12 In respect of question (i), the Prosecutor alleges that the Defendant “was aware of information relating to the identity of the person or persons who demolished the cottage or, in the alternative, information which could assist the Council in ascertaining the identify of such person or persons and where the demolition waste was taken to or disposed of”.

13 In respect of his September 2006 answer to that question Mr Mood deposes:

At the time I instructed Barraclough Jones & Associates to provide the answer to item (g) I held in my records the Tax Invoice from JR Richards and Sons which is annexure ‘F’ to this Affidavit. I acknowledge that the copy of the Tax Invoice from JR Richards and Sons should have been provided to Great Lakes Council in response to item (i) as this would have assisted in establishing where the waste created by the demolition of the cottage was disposed of.
At the time I instructed Barraclough Jones & Associates to provide answers to item (i) I was aware that I would have been able to establish the identity of at least some of the people involved in the demolition of the cottage by making enquiries of Duke Daskal. I did not provide this information to Council and neither did I make the enquiries myself in order to provide Council with details of persons involved.

The Evidence

14 The Court has had the benefit of a Statement of Agreed Facts (Exhibit P3), which I will not set out in full. The Court has also received extensive affidavit material, and oral evidence from the most relevant Council officer, Mr Gregory Pevitt, and the Defendant, Mr Mood.

No.35 and Council’s investigation

15 At No.35 there stood, up until at least about 25 May 2005, a single storey fibro and timber clad cottage and a single garage, some of the walls of both of which included fibro sheeting. Two aerial photographs are annexed (at “E”) to Mr Pevitt’s affidavit sworn 15 December 2006. (When I later refer only to the cottage I also include the garage structure).

16 Mr Mood, or his company, completed the purchase of No.35 on 23 March 2005, and, during April 2005, Mr Mood engaged a Mr William Dures to prepare plans for its development, involving the demolition of the existing buildings and the construction of a dual occupancy.

17 Mr Mood had engaged an electrical contractor (Mr Fardell) to carry out electrical works on another development in which he was involved at 29 Parkes Street Tuncurry (“No.29”) and, during May 2005, the same contractor was engaged by persons acting on behalf of Mr Mood to carry out electrical works comprising the disconnection of the power to the then existing cottage at No.35, the removal of the meters from the cottage, and the connection of a meter to a temporary builder’s supply pole. These works were intended, ultimately, to facilitate the development the Defendant intended to be carried out on the subject site, and to enable electricity to be temporarily supplied to the site, during building work. It would appear that they were carried out on or about 21 May 2007 by a subcontractor (Mr Loveday), who observed the cottage was still on site at that time.

18 Agreed fact 13 states:

“ During the period from Friday 27 May 2005 to Sunday 29 May 2005, the cottage and garage on the land were demolished. There were 2 or 3 men, none of which [sic] were the Defendant demolishing the cottage and then loading the waste onto a utility with a trailer. When taken away fully loaded, the utility and trailer were gone from the site for not more than about 20 minutes before coming back empty ”.

19 On 30 May 2005, in response to a complaint made to the Great Lakes Council by an anonymous neighbour to the rear of No.35, Mr Pevitt attended the site. He observed the remains of the cottage and garage and concluded that they had recently been demolished. Mr Pevitt took eleven photographs of the site as he found it (Exhibit P4). He suspected asbestos was present among the debris. A large excavator was knocking down trees at the rear of the site and loading vegetation waste onto a large Ford truck. The excavator belonged to Mr Ron Bestwick, a person known to Mr Pevitt, and the former owner of No.35. Mr Bestwick was present on site at the time, as was Mr Mood.

20 Both Mr Mood and Mr Pevitt left the site at about 11.10am. Mr Mood then arranged security fencing and dust-proofing, contacted a professional Private Certifier (Mr Cousins) to lodge an urgent development application, and took preliminary steps to have the property professionally cleaned up by Blanch Earthmoving. At 3.55pm that day, Mr Cousins lodged with the Council a Development Application for the proposed dual occupancy. A copy of the Development Application (Exhibit P5) indicates that the “development proposed” had three elements - erection of a building, demolition, and subdivision. The attached plans were prepared by Mr Dures. The Exhibit contains no details of the proposal for demolition, and Mr Mood says that the Council rejected on 31 May that part of his DA documentation which dealt with demolition. (The Development Application for approval to construct two townhouses at No.35 was subsequently approved by Council on 8 November 2005, but the written submissions of Mr Mood’s counsel, Mr Lancaster, at par 38, record that No.35 was disposed of by Mr Mood or his company in mid-2006, without his having carried out the development).

21 As at 30 May 2005, there were only two operating landfill sites within a travelling distance of 60km (let alone 20 minutes’ round-trip) from No.35, one known as the Tuncurry landfill, and the other as the Taree landfill. On inquiry on 30 May 2005, Mr Pevitt was informed by both landfills that there were no records of asbestos waste having been transported to them during the previous week. Both landfills are operated privately under contract from the Council and the Council holds an environment protection licence in relation to their operation. Both have particular operating procedures in relation to the receipt of asbestos waste pursuant to the obligations Council had imposed upon it under its environment protection licence, and detailed records are kept. Mr Pevitt is satisfied that neither of the landfills has any record of asbestos waste being received during the relevant period.

22 On 31 May 2005 Mr Pevitt again visited the site, and handed Mr Mood a “Clean-up” Direction (Annexure “C” to his affidavit of 15 December 2006), together with copies of the eleven photographs (Exhibit P4), and “two aerial photographs from Council’s records”. Mr Mood had Mr Mark Mackie (a demolisher from Blanch Earthmoving) with him on site, and Mr Colin West from the WorkCover Authority was also present, at Council’s invitation.

23 On 1 June Mr Mood arranged for a risk assessment to be undertaken by HLA Envirosciences Pty Ltd (“HLA”), and on 17 June 2005, Mr Pevitt received that asbestos inspection report. The material assessed was stated to be “broken fragments suspected as asbestos cement sheets” which would meet the definition of “friable asbestos” as defined in the relevant regulations and guidance documentation provided by WorkCover. HLA stated that the site was “likely to be deemed friable asbestos contaminated”, and remediation was indicated as essential. A suggested regime for the carrying out of that remediation work was provided.

24 On 20 June 2005, as noted in par 4 above, Mr Pevitt caused a Council colleague (Mr Brian Brooker) to serve on Mr Mood the first s.193(1) notice, and, on 7 July 2005, Mr Mood’s solicitors replied. Answers and relevant documents were provided in/with the letter, which concluded with an invitation to Council to contact Mr Barraclough if further information was required. (See Annexures “B” and “C” to Mr Pevitt’s affidavit of 4 May 2007).

25 During the course of his investigation, Mr Pevitt interviewed Mr Ashworth, of 37 Parkes Street, and Mrs Moran of 33 Parkes Street. Neither of them made the original complaint, and neither wished to be involved, although Mr Ashworth later provided an affidavit. Inquiries were made of various service providers and regulatory agencies. Interviews were conducted with professionals involved with Mr Mood, such as the electricians (Mr Fardell and Mr Loveday), the draftsman (Mr Dures), the Private Certifier (Mr Cousins), and the demolition contractor (Mr Mackie). Mr Pevitt also conducted a record of interview with Mr Bestwick on 29 September 2005. Mr Bestwick later swore affidavits for both the Prosecutor and the defence, but, regrettably, was unable to attend for cross-examination. Messrs Stuart Arthur and Duke Daskal were interviewed, and emerged from Mr Pevitt’s investigation as “persons of interest” to the Council, but they were not cooperative.

26 Mr Lancaster is very critical of the way in which Mr Pevitt conducted his investigation, and particularly his failure to follow up some particular avenues of inquiry. Mr Pevitt’s notebook is in evidence (Exhibit M1) and photocopies of some relevant pages of his diary are attached to his affidavits. There are many discrepancies between what Mr Pevitt says in his affidavits and what appears in these materials. The conversation with Mr Ashworth does not appear in any Pevitt affidavit, and Mr Ashworth’s affidavit does not reflect Mr Pevitt’s notes, which record that Mr Ashworth indicated to Mr Pevitt that Mr Arthur and his son had been seen on the demolition site. Mr Arthur had a blue ute at his home; someone wrote “Shane Arthur” in Mr Pevitt’s notebook; Mr Pevitt could not remember how Mr Daskal became relevant, but he did not pursue him, after a chance meeting, despite his comments indicating he knew more than he was saying. Mr Pevitt did not pursue these people because, he says, he believed they would not tell him anything, and (in the case of Mr Arthur) he considered Mr Ashworth unreliable. He made no inquiries regarding the white truck he saw on the site. Both a blue ute and a white truck had been mentioned to Mr Pevitt during his inquiries as having been on site during the demolition. Only perfunctory inquiries were made of the two landfills and the waste contractor. However, Mr Pevitt denied Mr Lancaster’s suggestion that he was selective about all these matters as his only objective was to implicate Mr Mood, personally, in the demolition of No.35.

27 On 12 September 2006, Mr Pevitt served on Mr Mood the relevant notice under s.193(1) by delivering it to him personally at his home. On 27 September 2006, Mr Mood’s solicitors provided answers, pursuant to Mr Mood’s instructions, to the questions in the notice. See pars 6-13 above. (This prosecution was not launched till another 8-9 months later).

28 Mr Pevitt concluded that he could not establish who demolished the cottage and garage, nor where the waste generated by the demolition, including asbestos waste, was taken. This meant he was not able to assess the level of hazard the waste presented, nor take action to have such hazards suitably addressed. He also does not know the extent to which any persons were exposed to the hazard of inhalation of asbestos fibres caused by the acts of demolition and transport. He says in his affidavit of 11 September 2007 (at par 4) “although on the basis of my enquiries I have suspicions about who it was that removed the waste from the land, I do not believe I have sufficient evidence to take action in relation to my suspicions”. He remains concerned that friable asbestos taken away from the site remains in a location whether it either is, or may become, a hazard to human health.

29 Mr Pevitt gave oral evidence and was closely cross-examined by Mr Lancaster, for Mr Mood. He is experienced in matters concerning asbestos and observed suspicious fragments of various sizes on the site. In his lengthy affidavit of 15 December 2006 he deposes to several conversations with Mr Mood and others. Some of the accounts of those conversations are hotly disputed. In particular, Mr Pevitt persisted with his claims that Mr Mood told him that an old dwelling such as that which was demolished could be demolished without development consent, that Mr Mood used the words “I did it …”, and that Mr Mood also said that he “got the excavator in there now to rip up the slab …”. Mr Mood denies he said those things, but accepts he told Mr Pettit he wanted to make the site safe, and stop squatters from living there. Mr Mood says he knew demolition required consent, and he intended to obtain consent. Mr Pevitt acknowledged that Mr Mood obtained development consent before any work was done to demolish No.29, and it is noteworthy that Mr Pevitt appears to have had no dealings at all with Mr Mood until that first meeting on site at No.35.

30 Mr Mood denies that he knew any of the materials at No.35 contained asbestos. He swears he saw fibro fragments on site endorsed “asbestos free”, and kept some for a time, but cannot produce them now. The WorkCover inspector, Mr West says that the material he saw in fragments on the site “almost certainly contained asbestos”. He bagged some samples and sent them away for analysis. The WorkCover Laboratory identified 3 out of the 5 samples as containing asbestos. Four of the photographs in Exhibit P4 (Nos. 5, 6, 7 and 9) show asbestos fragments on the site. Despite the mention of asbestos at the site meetings on 30 and 31 May 2005, in the Clean-up Direction of 31 May 2005, and in the s.193(1) notice of 20 June 2005, Mr Mood appears to have remained unconvinced of its presence in the buildings at No.35 until he saw the scientific analysis.

31 In his oral evidence Mr Pevitt agreed that Mr Mood was not personally involved in the demolition, nor personally responsible for the removal of the waste.

32 Mr Pevitt explained that the reason there was no real action taken in the investigation between 8 July 2005 (response to the first s.193(1) notice) and 12 September 2006 (issuing of the second s.193(1) notice) was that there was some delay in obtaining a legal opinion. He saw utility in formally asking Mr Mood some questions again in September 2006, but he agreed, in retrospect, that he may have been better pursuing some of his other lines of inquiry, at an earlier stage.

33 When pressed on the probability or the possibility that the waste may have gone to Tuncurry tip, Mr Pevitt agreed it was not impossible, but he thought it highly unlikely. Asbestos involved in a whole house and garage would be hard to disguise on delivery. He believes he made reasonable inquiries, including from the local waste contractor, J R Richards and Sons Pty Ltd, in conducting his investigation, but he conceded in cross-examination that he had ignored several potential fertile lines of inquiry.

Other affidavit evidence

34 Mr Brooker is the Council officer who accompanied Mr Pevitt on 30 May. He says he heard Mr Mood saying words to the effect “I have been away. Someone has stolen the house over the weekend”. Mr Mood insists he said something like that – in his oral evidence he used the word “pinched”. Mr Pevitt does not accept this evidence.

35 Mr Mackie says Mr Mood rang him on either 29 or 30 May 2005 – he is certain it was not earlier – and asked him to have a look at a proposal to demolish a house at No.35. He understood from his telephone conversation with Mr Mood that the house was still there, but when he arrived on 31 May, he saw its remains. “When I got there all that was left was the slab concrete and small pieces of debris including broken asbestos” (par 5). He recalls saying to Mr Mood words to the effect that the site would be classed as friable asbestos and would be expensive to clean up. This evidence indicates that Mr Mackie’s company, Blanch Earthmoving, cleaned up No.35 after the Council’s Direction, and rendered an account to Mr Mood for $73,370, which Mr Mood paid.

36 Ron Bestwick’s affidavit for the Prosecutor dated 9 July 2007 deals with a record of interview conducted by Mr Pevitt on 29 September 2005. He deposes that the answers he gave in that record of interview are true and correct. He said in that record of interview that Mr Mood gave him instructions to clean the site, firstly, all the trees, and then the concrete slab. Mr Mood denies the second instruction. Mr Bestwick denies that he demolished the dwelling, and says he had no idea who did so, nor where the materials were taken, but he thought that Mr Mood seemed concerned about what had happened to the house.

37 In his later affidavit, for the defence, dated 5 October 2007, Mr Bestwick deposed that he is a self-employed earth moving contractor, and had worked for Mr Mood at No.29, and at Mr Mood’s home at 15 Palmway Crescent, clearing yards, digging footings and driveways. He and his wife owned and occupied the cottage at No.35 until the end of April 2005, it having been sold to Mr Mood on 23 March 2005. He gave some history of the property. Towards the end of May 2005, Mr Mood asked him, prompted by a complaint from Bob Moran, to clean up the back yard, and Mr Bestwick undertook to do so “in the next few days”. He went to the property at approximately 7am on 30 May with an excavator driver. On arrival he noticed that the cottage had been substantially demolished. They cleared vegetation from the rear yard and took the garden refuse in his truck to Tuncurry tip. Paragraph 13 of Mr Bestwick’s later affidavit, which concerns the conversation between Bestwick and Mood, is at variance with the record of interview of 29 September 2005.

38 Gregory Turner, a contracts manager with J R Richards, confirmed John Mood was a customer during 2005. A typical Richards skip bin, capable of holding about 1.5 cubic metres, was provided to No.35, and the invoice records of the company indicate its removal on 30 May 2005. The company’s practice was to take skip bins to its depot in South Street and empty them into a large compactor truck. Consolidated and compacted loads were then transported by the compactor truck to Tuncurry landfill. The Court notes that a skip bin of the size provided could hardly be expected to be adequate for the waste one would expect to be generated by the demolition of an entire cottage.

39 George Cousins was at all material times the sole director and secretary of Asco Private Certifiers Pty Ltd. He was approached by Mr Mood in early 2004 to act as a private certifier in respect of the development of three townhouses at No.29, including the demolition included in the development application. In April 2005, while inspecting No.29, Mr Mood asked him to be the private certifier for a similar development at No.35 and he agreed to make arrangements for the lodgement of the development application when Mr Dures had finished the plans. In late May 2005 he received Mr Dures’ plans for No.35. Mr Mood rang him on 30 May and asked him to lodge the development application urgently. The development application was then prepared and taken to the Council. Council’s receipt for the development application fees is dated 30 May 2005.

40 The affidavit evidence provided by Messrs Ashworth, Loveday, Fardell, West, and Dures is dealt with, in passing, throughout this judgment. I do not accept Mr Lancaster’s costs submission (par 39) that much of the affidavit material from the Prosecutor was not useful to the Court.

Mr Mood’s Evidence

41 Mr Mood was born on 26 January 1936. He owned and operated pharmacies at Engadine and Sylvania prior to his retirement approximately eleven years ago when he moved with his wife Margaret to Tuncurry. The company John Mood (Nominees) Pty Ltd was formed to hold the commercial and retail building in Engadine (where he had operated one of his pharmacies) and it also acts as trustee of the Mood Family Trust. He believes it owns the two unsold townhouses at No.29, but the title search lists Mr and Mrs Mood as owners (Exhibit P6).

42 In any event, John and Margaret Mood are not now employed and could be accurately described as self-funded retirees. Now aged 72, Mr Mood enjoys reasonable health, but his 69 year old wife requires his close care and attention. Mr Mood is still a registered pharmacist, and is also a Justice of the Peace. He also completed, on 28 October 2004, an OH&S general induction course for construction work, conducted by WorkCover.

43 Most of their income comes from dividends paid by their investment company, John Mood Investments Pty Ltd. The net equity of the company at 30 June 2006 was $663,615.69. He and his wife jointly own a house, car, boat, furniture, etc. valued at just over $1M, but John Mood Nominees Pty Ltd is not travelling well. He and his companies have incurred substantial losses in respect of the projects at No.29 and No.35. He has a debt to the National Australia Bank of $176,937.69. In addition, there were substantial monies borrowed and advanced to John Mood Nominees. He declared a taxable income of $62,964 for the year ended 30 June 2006.

44 No.29 was purchased in early 2004. An old cottage on that site was demolished by Blanch Earthmoving, in December 2004, pursuant to an approval granted by the Council on 19 November 2004. Mr Mood was aware of the conditions of the demolition approval, and their references to the need to remove, handle, transport and dispose of all asbestos waste in accordance with the requirements of WorkCover, with all waste to be deposited in an approved facility. Mr Mood deposes that there was no asbestos or other contaminant in the building at No.29, but Annexure “B” to his affidavit of 6 February 2008 indicates that that may not be strictly correct. In any event, development consent for the construction of three townhouses at No.29 was granted by the Council on 11 January 2005 and they were completed in June 2005. Messrs Dures, Fardell, Arthur, and Daskal were engaged by Mr Mood for that project.

45 Mr Daskal brought No.35 to Mr Mood’s attention, and its purchase was completed on 23 March 2005. Mr Mood considered the cottage to be “genuinely similar in age and construction materials to the cottage at No.29”. He made inquiries of the Council regarding its history, and was provided with only information regarding a building application approval dated 26 February 1985 which would appear to relate to the garage.

46 Mr Mood did not wish to build No.35 until all three townhouses at No.29 had been disposed of. Mr Daskal told him he would be away for a couple of months from no later than 26 May 2005, and it would appear that the No.35 project was to, at least, await his return. In early April 2005, Mr Mood had instructed Mr Dures to make inquiries as to what could be put on No.35 and to prepare plans. Mr Mood also spoke to Mr Cousins at about that time, and says it was his intention to use Blanch Earthmoving for the eventual demolition of the cottage. Based on his experience with No.29, Mr Mood did not expect the cottage at No.35 to contain asbestos. After Mr Bestwick moved out of No.35 at the end of April 2005, Mr Mood acted on complaints he received from Mr Moran about vermin, and engaged Mr Bestwick to clear up the back yard.

47 In late April or early May 2005, Mr Daskal told Mr Mood that he knew someone who might be interested in taking the hot water service, light fittings, internal fittings, windows and doors, etc. out of No.35 if the cottage were to be demolished, in exchange for helping with the demolition. Mr Mood agreed with the concept, provided the power was cut off before any fixtures were removed (par 18 of Mr Mood’s affidavit of 6 February 2008).

48 Mr Mood understands Mr Daskal instructed Mr Fardell to carry out the electrical works (cutting off the power and erecting the “builder’s pole”) at No.35 in early May 2005. Mr Fardell says Mr Mood and Mr Daskal asked him, together, on site at No.29, and Mr Loveday says he got Mr Fardell’s call “4 or 5 days before 21 May 2005”. Mr Mood was in Sydney on 16 May 2005, as Mrs Mood was recovering from serious surgery on 6 May at Prince of Wales Hospital in Sydney. Mr and Mrs Mood remained in Sydney, staying at a motel in Miranda, until 16 May. They then moved to their daughter’s house at Sylvania Waters for 7-10 days. Mrs Mood remained in Sydney, but Mr Mood returned to Tuncurry “for one or two days during this period” to attend to mail, the No.29 project, etc. His focus was squarely on his wife’s health in the period 4-30 May.

49 At some time during May 2005, Mr Mood agreed with Mr Daskal (some time before Mr Daskal left Sydney for holidays on 26 May) that “the young fellow” Mr Daskal had in mind could proceed to take out of the cottage at No.35 the items they had discussed. Mr Mood again told Mr Daskal to make sure that the power was cut off, and to organise a skip bin to take away any rubbish.

50 Mr Mood “did not intend to give the authority to demolish the exterior of the cottage until after development approval was granted” (par 26). He realised that there would be some partial internal demolition necessary to enable removal of the agreed items. He acknowledges that he did not give any specific instructions to Mr Daskal that no substantial demolition was to proceed until the development approval was granted, but insists that his conversations with Mr Daskal did not involve the total/external demolition of the cottage prior to obtaining consent.

51 Mr Mood did not go to either site in Parkes Street between 4 and 30 May. While at No.29 to view progress on 30 May, he was told that there was a Council Officer at No.35. He walked up there and saw – he says, so learning for the first time – that the old cottage and garage had been substantially demolished. Mr Bestwick was cleaning up the vegetation, as arranged. There was no skip bin at the property on 30 May, so he presumed it had been removed.

52 Mr Mood has received no accounts or invoices from any persons, nor paid any money, to any person, company or business in relation to the demolition of the cottage, and disposal of any building waste, apart from the clean-up account from Blanch and the skip bin fee from Richards. Mr Mood says he expected an account from Mr Bestwick for the clearing of the vegetation, but it is unclear to me whether or not he received one.

53 In August 2007 Mr Mood asked Mr Daskal about the “young fellow” who was to remove the hot water service, etc, and was directed towards a man named Mark Adamson. Mr Adamson told him he worked on the demolition, that they put the cladding in the Richards bin, his ute, and another ute and trailer, and took it to Tuncurry tip. Mr Adamson told Mr Mood that none of the waste had been dumped in the bush, but he could/would not inform Mr Mood who else was involved, and did not wish to assist further. (See pars 44-45 of Mood affidavit 6 February 2008).

54 As noted elsewhere, Mr Mood has maintained, consistently, his complete denial of any involvement in the unauthorised demolition of the buildings at No.35, and the disposal of any resulting waste, whether asbestos or not, other than via Blanch Earthmoving pursuant to Council’s Clean-up Notice on 31 May 2005, and incidentally via the skip bin ordered on his behalf to facilitate collection of any rubbish generated by Mr Adamson’s removal of internal fixtures and fittings.

55 Allegations put to him which he denies include:

(a) any involvement at all in the demolition of the buildings at No.35, save for that internal partial demolition which may have been necessitated by the permission granted to Mr Daskal’s contact (now identified as Mark Adamson) to remove the hot water system and some other fittings.
(b) any knowledge, at least as at 27 September 2006, of the identity of any person involved in that demolition.
(c) any invention of information included in his affidavit of 6 February 2008, but not included in an earlier affidavit it replaced in these proceedings.
(d) any intention as at 27 September 2006 that his answers to the s.193(1) notice should mislead the Council. He says he later found some documents, and obtained other information, which informed the contents of par 55 of his affidavit of 6 February 2008.
(e) any intention to proceed to demolish the buildings before obtaining the relevant consent, and any intention, in arranging the erection of the “ builder’s pole ” on site, that such demolition should immediately follow.
(f) any instruction to Mr Bestwick to remove the slab as well as vegetation at No.35, and any knowledge at the time of that instruction that the buildings had already been demolished.
(g) asserting to Mr Pevitt, on site on 30 May or at any other time, that he did not require Council’s consent to demolish the building.

56 As Mr Lancaster puts it, in his submissions (at par 23):

Mr Mood has provided an explanation of his knowledge about and involvement in the circumstances surrounding the demolition of the cottage on his company’s land. The Court should accept Mr Mood’s evidence that by his conversations with Duke Daskal in May 2005, Mr Mood did not intend to give permission to anyone to demolish the external fabric cottage on No.35. The demolition appears to be explained by either a misunderstanding arising from the words used by Mr Mood to Mr Daskal, or by some independent activity of other persons. The former is more likely than the latter.

57 In par 56 of his affidavit of 6 February 2008 Mr Mood says:

I acknowledge that in providing instructions to reply to the notice from Council I should have conducted a more thorough review of my records and made more thorough enquiries and given a more complete and accurate response to the notice. I expect that provision of complete information from me at the time would have been of assistance to Great Lakes Council. I sincerely regret my failure to do so and apologise for the inconvenience caused to the Officers of Great Lakes Council and other parties involved.

Character evidence

58 Exhibit M2 comprises three character references for Mr Mood dated September or October 2007:

(a) Warren Saunders OAM, a leading citizen and company director, considers “ John Mood to be one of the most honest, ethical and decent people I have ever encountered. This incident is totally out of character and I would be absolutely sure he is full of remorse and regret. Further, I believe that such a circumstance will never occur in the future ”. Mr Saunders recruited Mr Mood to be part of the Calvary Kogarah Fund Raising Committee and he participated from 1989 to 1999.
(b) Pharmacist Lance Tyson has known Mr Mood for over forty years. They continue to be close friends. He has “ always found him to be of excellent character, a credit to his profession ”. He conducted his pharmacy business for two decades “ with a dedicated, honest and caring manner ”. He has a 100% clear record. He volunteered his time to various charities.
(c) Gregory Jones of the NSW Bar finds the offence “ out of character ”. He first met Mr Mood in about 1975 fishing in the Tuncurry area. Mr Mood served as President of the Engadine Rotary Club, and has been actively involved in local charity work in the Forster Tuncurry area. “ If anything, his tolerance of people would appear to be his downfall ”.

Consideration

59 The above detailed summary of all the evidence before the Court indicates many gaps, inconsistencies and contradictions.

60 Jagot J in Environment Protection Authority v Mark Peters [2006] NSWLEC 465 (“Peters”) (at [32]) listed the elements of an offence by an individual against s.211(2), and they may be summarised as:

(a) The defendant furnished information to an authorised officer;
(b) The information was furnished in purported compliance with a requirement made under Chapter 7 of the POEO Act;
(c) The information was false or misleading;
(d) The defendant knew that the information was false or misleading;
(e) The information was false or misleading in a material respect.

61 A plea of guilty is an admission of those essential ingredients and not of all the allegations made against the Defendant by the Prosecutor. See R v O’Neill [1979] 2 NSWLR 582, and Chow v Director of Public Prosecutions and Another (1992) 28 NSWLR 593. Mr Mood maintains his plea of guilty to the charge, while defending himself in respect of some of its particulars. In so far as those particulars, or any extraneous material, could be seen to ground a submission of “aggravating factors” in his offence, a Prosecutor must prove them beyond reasonable doubt, and the Prosecutor does not make any such submission in this matter.

62 Mr Mood appears not to have taken the s.193(1) notices nearly as seriously as he did the Council’s Clean-up Notice, and was, apparently, not prompted by them to make any serious inquiries of persons, with whom he had established personal, professional, and commercial relationships, which at the material time looked likely to extend into the future as No.35 was developed. He was unconvincing when explaining (i) some important disparities between his main affidavit and an earlier version sworn by him and filed in the proceedings, and (ii) the comments and admissions Mr Pevitt insists Mr Mood made on 30 May 2005. Given the difficulty of being satisfied beyond reasonable doubt of some elements of the evidence of both Pevitt and Mood, the failure of either party to ensure that Mr Bestwick appeared in order to be cross-examined on either or both of his affidavits and the apparent conflicts between them is regrettable – see pars 36 and 37. In Mr Bestwick’s absence, Mr Howard put to Mr Mood that when he engaged Mr Bestwick both of them knew the demolition had occurred and that this enabled Mr Bestwick to take his very large excavator to the back of the site on 30 May 2005. Mr Mood insisted that he did not discuss machinery or access with Mr Bestwick, and that his instructions referred only to vegetation and not the slab.

63 On the other hand, the Court’s focus must be on only the plea of guilty to the very specific charge brought against Mr Mood in this matter – that he gave false and misleading answers to the second s.193(1) notice – and not on either any such allegations regarding his response to the first such notice, nor any accusation of demolition without consent. Nor is this case about asbestos, as the Prosecutor accepts that Mr Mood ensured the property was properly cleaned up, at his own substantial expense, to the satisfaction of both Council and WorkCover.

64 A number of sentencing considerations are prescribed by the Crimes (Sentencing Procedure) Act 1999, especially ss.21A, 22 and 23, and by s.241 of the POEO Act and there is some overlap.

65 In terms of loss, damage and/or environmental harm caused by this offence [s.241(1)(a) and s.21A(3)(a)], the possibility that a dangerous substance may not have been safely and lawfully disposed of cannot, itself, be laid at Mr Mood’s feet in these proceedings.

66 However, the serious proven shortcomings in the Prosecutor’s investigation of the demolition do not relieve Mr Mood of his obligation to provide assistance when served with a statutory notice to assist in inquiries touching upon such matters. He had personal access to a number of people possessed of knowledge which could have benefited the investigation, and so ensured there was little, if any, real harm to the environment and the community.

67 When asked questions on 12 September 2006 Mr Mood knew asbestos was involved. Even though he may well have thought by then that the case was closed within the Council, he still appears to have made no effort to follow up Mr Daskal, and meet Mr Adamson, until August 2007, when these proceedings were on foot. If the Tuncurry tip information he then obtained had been passed on through him at an earlier stage, some potential harm may have been mitigated, but it appears that the laying of charges was needed to encourage Mr Mood to act.

68 One “practical measure” [s.241(1)(b)] available to Mr Mood was his capacity to answer the Prosecutor’s notice more completely, and/or to make adequate inquiries to ensure his answers were correct and helpful. He had complete “control over the causes that gave rise to the offence” [s.241(1)(d)].

69 In view of the absence of “aggravating factors” [s.21A(2)], I turn to some “mitigating factors” working in Mr. Mood’s favour, most of which are fairly self-evident:

(a) This was not a “ planned or organised criminal activity ” [s.21A(3)(b)], even if the actual demolition may have been.
(b) He has no previous convictions [s.21A(3)(e)].
(c) He is a person of good character [s.21A(3)(f)] and was prepared to go into evidence.
(d) He is highly unlikely to re-offend [s.21A(3)(g)] – he is out of the development industry.
(e) He has good prospects of rehabilitation [s.21A(3)(h)] – he is a 72 year old self-funded retiree.
(f) He has shown genuine remorse, even if he came to a realisation of the seriousness of his failures, if at all, only very recently [s.21A(3)(i)].

70 I turn now to Mr Mood’s plea of guilty as a “mitigating factor” [s.21A(3)(k) and s.22]. His counsel says it was both early, and of high utilitarian value, but the Prosecutor says it was not early and came only as part of a charge bargain, in circumstances when this particular charge was not hard to prove against him. (Biscoe J collected a number of authorities governing pleas of guilty in his earlier judgment in this case: Great Lakes Council v Mood [2007] NSWLEC 705).

71 The summonses in this and the related matter were issued on 16 May 2007, and the plea was entered in this matter at its fourth mention on 17 August 2007. The three earlier mentions occurred on 29 June, 27 July, and 10 August 2007. Because of the Prosecutor’s application dealt with by Biscoe J in late October, the dates for this sentencing hearing were not fixed until then, some two months after the plea was entered. Four of the affidavits the Prosecutor relied upon at this sentencing hearing were not filed till 12 September (one Pevitt affidavit) and 26 October 2007 (the affidavits from West, Brooker, and Mackie), relevantly after the plea.

72 Because of the factual complexity of the matter, and the shortcomings in the evidence, I am satisfied that Mr Mood’s plea of guilty had some utilitarian value in shortening the necessary hearing in several respects; so I am prepared, in all these circumstances, to give Mr Mood a 20% “Thomson” discount. R v Thomson; R v Houlton (2000) 49 NSWLR 383. In consideration also of the other mitigating factors mentioned in par 69, I will discount the appropriate penalty by 25%.

73 It is common ground that “specific deterrence” is not a particularly relevant sentencing principle for a defendant such as Mr Mood in a case such as this. He pleaded guilty; he resisted an application to have the Court reject that plea; he went into evidence and expressed his remorse; he has withdrawn from development activities; and he complied promptly and completely with the requirements imposed on him by Council and WorkCover, save for his unsatisfactory response to the s.193(1) notice(s).

74 However, there can be no doubt that the sentencing objective of “general deterrence” is very important in a matter such as this, regardless of the personal circumstances of the Defendant. The obligations on citizens to take notices under s.193(1) seriously, and respond to them completely and frankly, without providing “false or misleading” information, and generally to assist regulatory and investigative bodies to the best of one’s ability, are serious public duties.

75 The Prosecutor submits that, not only did Mr Mood intend to deceive, he actually set out to prejudice, deliberately and seriously, the Council’s investigation of the demolition of the buildings and disposal of potentially hazardous waste. I am not satisfied beyond reasonable doubt of this alleged state of mind on the part of the Defendant, but there is no doubt that he either had relevant information or knew how to get it, and either failed to look for it or failed to disclose it.

76 The objective of “general deterrence” cannot, however, justify a penalty which could be said to be disproportionate. EPA v Caltex Australia Petroleum Pty Limited [2007] NSWLEC 647.

77 Counsel have referred me to several authorities regarding s.211 of the POEO Act:

(a) In Peters , and the subsequent sentencing hearing (2006) 153 LGERA 238, there were several “ aggravating factors ”, including disregard for public safety, abuse of a position of trust, multiplicity of victims (or a series of criminal acts), and systematic falsification of records furnished pursuant to a provision (other than s.193) in Chapter 7 of the Act, making it part of a planned or organised criminal activity. On the other hand the Defendant had no prior convictions. At the time Peters was decided, the maximum penalty for a s.211(2) offence was $120,000, and Jagot J imposed a fine of $80,000, relevantly two-thirds of that maximum.
(b) In Environment Protection Authority v Hargraves [2002] NSWLEC 113, and the subsequent sentencing hearing (2003) 124 LGERA 57, there were two offences arising out of two items of misinformation amongst a great deal of correct information. The Defendant pleaded not guilty and was convicted after a four day trial. She was considered unrepentant, and although she was otherwise of good character, His Honour found her “ deliberately evasive ” (par 94 of his earlier judgment), and also that she “lied ” to the authorised officer and to the Court (par 3 at p.59 of the report of his second judgment). His Honour could punish her only for the lies told to the authorised officer, and applied the totality principle to reduce the fines to $15,000 (from $20,000) for each offence, out of the maximum of $120,000 for each.

78 The maximum penalty for this offence was increased on and from 1 May 2006 from $120,000 to $250,000. The offence was committed on 27 September 2006, so the higher penalty applies to it, pursuant to s.19(1) of the Crimes (Sentencing Procedure) Act 1999. Mr Lancaster asked me to bear in mind that, if the Prosecutor had pursued its investigation of the late May 2005 incident more expeditiously, any breach of s.211 by the Defendant would probably have been committed before 1 September 2006. It is also to be noted that the s.193(1) notice served on Mr Mood on 12 September 2006 said the maximum penalty was $120,000. Nonetheless, the law clearly requires me to sentence Mr Mood against a maximum penalty of $250,000.

79 Although Mr Mood’s financial situation as presented in the evidence may have been incomplete, it is clear that he is far from impecunious, and is clearly able to pay the appropriate penalty for his offence. He understands he will be expected to pay the Prosecutor’s costs, which could amount to something between $50,000 and $100,000, according to Mr Howard. Mr Lancaster asked me to fix an amount payable in respect of the Prosecutor’s costs, but I decline to do so. The payment of substantial clean-up costs is not relevant to the amount of fine appropriate for this particular offence.

80 Mr Howard submits that this is an objectively serious offence. He asserts that Mr Mood had foreknowledge and motive, that his explanation of what occurred on this site is simply not credible, and that some of his evidence (especially regarding Adamson) was invented at the last moment. On the other hand, Mr Howard acknowledges what he saw as “genuine confusion” on Mr Mood’s part in some of his testimony. In the end analysis, Mr Mood had two opportunities to be helpful and appears to have made little effort to assist on either occasion. His belated comments revisiting his September 2006 answer to question (i) – see par 13 above – say it all – he “would have been able to establish the identity of at least some of the people involved in the demolition …. [and] I did not provide this information to Council and neither did I make the enquiries myself …”.

81 Mr Howard conceded that the criminality involved here should not attract a penalty as high as that in Peters, measured as a proportion of the maximum (two-thirds), and not in dollar terms ($80,000). He did, however, believe that a higher fine is called for than the total fine imposed in Hargraves. I agree with these submissions, but the Hargraves fines must be viewed in terms of the $20,000 (rather than $15,000) for each offence, as against $120,000, namely one-sixth of the maximum in each case.

82 I have concluded, after considering all the matters discussed above, that the culpability of this defendant should be viewed as 30% of the worst case, warranting a fine amounting, therefore, to $75,000, discounted by 25% (see par 72 above) to $56,250.

83 The formal orders of the Court will be:

1. The Defendant is convicted of the offence charged in the summons.
2. The Defendant is ordered to pay a penalty in the sum of $56,250, in accordance with the Fines Act 1996.
3. The Defendant is ordered to pay the costs of the Prosecutor, incurred strictly in connection with matter No.50032 of 2007, and not matter No.50031 of 2007, and not including any of the Prosecutor’s costs of the Notice of Motion dismissed by Biscoe J on 26 October 2007. The costs of the Prosecutor payable under this Order are to be agreed or determined under s.257G of the Criminal Procedure Act 1986.
4. The exhibits may be returned, except for Exhibit P3 which should remain in the Court file.