Greer v City of Canada Bay Council

[2025] NSWLEC 93

Land and Environment Court

New South Wales

Medium Neutral Citation:

Greer v City of Canada Bay Council [2025] NSWLEC 93

Hearing dates:

13 and 22 August 2025

Date of orders:

28 August 2025

Decision date:

28 August 2025

Jurisdiction:

Class 6

Before:

Pepper J

Decision:

See orders at [96].

Catchwords:

OFFENCES AND PENALTIES: appeal against the severity of a sentence imposed by the Local Court – finding of guilty and convicted of an offence of unlawful transporting of waste against s 143(1)(a) of the Protection of the Environment Operations Act 1997 in the court below – nature of appeal – applicable sentencing principles – offence not committed intentionally – lowest objective seriousness – no harm caused to the environment – genuine expression of remorse – limited capacity to pay a fine – diminished physical and mental capacity – general deterrence warranted – whether an order under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 ought to be made – trivial offence – fine of $2,500 imposed – no order as to costs.

Legislation Cited:

Crimes (Appeal and Review) Act 2001, ss 3(3), 3(3A), 31(1), 39(2), 49(4), 70, 72

Crimes (Sentencing Procedure) Act 1999, ss 3A, 10(1), 10(3), 21A(2), 21A(3)

Criminal Procedure Act 1986, s 215

Fines Act 1996, s 6

Protection of the Environment Operations Act 1997, ss 3, 143(1)(a), 241(1)

Cases Cited:

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357

Bankstown City Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39

Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86

Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234

Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304

Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109

Cmunt v Commissioner of Police NSW [2019] NSWLEC 33

Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483

Environment Protection Authority v Abbas [2021] NSWLEC 57

Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127

Environment Protection Authority v Hughes [2024] NSWLEC 91

Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222

Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422

Harrison vPerdikaris [2015] NSWLEC 99

Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348

Huynh v The Queen [2021] NSWCCA 148; (2021) 105 NSWLR 384

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Matheson v Director of Public Prosecutions (NSW) [2008] NSWSC 550; (2008) 185 A Crim R 83

Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253

R v Dodd (1991) 57 A Crim R 349

R v Nguyen [2002] NSWCCA 183

R v Nichols (1991) 57 A Crim R 391

R v Oliver (1980) 7 A Crim R 174

R v Paris [2001] NSWCCA 83

R v Pham [2015] HCA 39; (2015) 256 CLR 550

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

R v Visconti [1982] 2 NSWLR 104

Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26

Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141

Transport for NSW v East Coast Wharf Constructions Pty Ltd [2020] NSWLEC 112

Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561

Category:

Sentence

Parties:

George Greer (Appellant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
G Greer (In person) (Appellant)
S Shneider (Solicitor) (Respondent)

Solicitors:
N/A (Appellant)
Houston Dearn O’Connor (Respondent)

File Number(s):

2025/60003

Publication restriction:

Nil

JUDGMENT

Greer Appeals Against the Sentence Imposed by the Local Court

1. George Greer appeals against the severity of the sentence imposed by the Local Court pursuant to s 31(1) of the Crimes (Appeal and Review) Act 2001 (“CARA”).

2. On 6 November 2024, Greer was convicted of the offence of transporting waste to an unlawful waste facility contrary to s 143(1)(a) of the Protection of the Environment Operations Act 1997 (“POEOA”). Greer was fined $2,500 and ordered to pay the costs of the prosecutor, the City of Canada Bay Council (“the Council”), in the amount of $4,000.

3. Greer initially appealed to this Court against liability and sentence. During an oral application to vacate the hearing of the appeal listed on 13 August 2025, Greer sought leave to amend his summons so that the appeal was against sentence only.

4. The Court granted leave, dispensing with the need to file a notice of motion.

5. Given Greer’s age, medical history (albeit amplified by evidence from the bar table during exchanges with the Court), unrepresented status, and his genuine misapprehension that the appeal would be stayed pending him obtaining legal representation, the Court held that it was in the interests of justice to vacate the initial hearing of the appeal, with the costs of the vacation being reserved.

6. The matter was relisted for hearing on 22 August 2025.

7. For the reasons below, the Court finds that the appeal should be allowed. This is because Greer is entitled to have his conviction dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”). In considering the objective circumstances of the offence and the subjective circumstances of Greer, the imposition of a monetary penalty of $2,500 is, however, appropriate.

Greer is Convicted of an Offence Against s 143(1)(a) of the POEOA

8. The factual circumstances giving rise to the offence are largely uncontested. They were helpfully summarised in the oral judgment delivered by Whelan LCM of Burwood Local Court (T3:11-4:17):

Mr Greer resided at 17 Rodd Road in Five Dock from about 1948 and was living there as at 23 January 2023. The lane behind the defendant’s home was Rodd Lane. The defendant’s home and the lane behind his home fell within the City of Canada Bay. The defendant previously worked as an electrician but by the time of the events, I am considering, he was retired. He is about 82.

The defendant – to use the words of his Counsel in the transcript at p 35:

“kept, collected, removed from his premises and sold items for profit to sell”.

“from time to time, and not infrequently, or even frequently, Mr Greer was engaged in the business of towing, in a trailer, amounts or quantities of material for the purpose of disposal”.

The City of Canada Bay had authority at all relevant times to issue penalty infringement notices in relation to allegations of a breach of s 143 of the [POEOA].

On 23 January 2023, the defendant dismantled a washing machine, outside his house but within the bounds of his property, into bits and pieces. On the same day, he took the frame of the washing machine and some other parts of the dismantled washing machine, including the plastic internal tub, from the machine, outside of his property via a gate to the laneway. Some items were placed in a red trailer but not the washing machine and plastic tub.

The defendant said he wanted to get assistance in putting it on the red trailer.

As at 23 January 2023, the next-door neighbour of the defendant at 15 Rodd Road was Mr Jarryd Malouf who gave evidence. He had cameras installed in his home; the one at the garage captured part of the lane behind his and Mr Greer’s house. The defendant’s actions on 23 January 2023 were partially captured by the camera from the neighbour’s property and came into evidence before me. The video footage from Mr Malouf shows the defendant carrying out the frame of a disused washing machine and its plastic tub. …

On 23 January 2023, Canada Bay Council received a complaint from Mr Malouf alleging the defendant had engaged in illegal dumping in Rodd Lane. Guy Firman, an employee of the Council in response to the complaint on the next day, 24 January, attended Rodd Lane, behind the defendant’s home and took some photos of various material adjacent to the fence behind the defendant’s home, including the frame of a washing machine and the plastic tub from the washing machine. He also saw the red trailer. … A hot water system was also in the laneway but I was informed by the Council that this does not form part of their case any longer. It may have formed part of their case previously but that was not the case that was run before me.

Mr Firman was shown a copy of the video from Mr Malouf’s cameras. Mr Firman returned to the defendant’s premises and, on 31 January, the washing machine frame and tub were still in place and he issued a penalty notice to the defendant in relation to the current charge. The defendant completed the court election and a Court Attendance Notice was triggered. The matter had its first appearance in this Court, and he entered a plea of not guilty. The matters have a bit of a litigation history because the matters were listed for hearing previously but had to be vacated by consent of the Council because Mr Greer’s health was not the best at the first hearing date.

9. The penalty infringement notice (“PIN”) issued by the Council on 31 January 2023 referred to the washing machine frame, its tub, and a hot water heater. However, the Council did not include the water heater in its charge given that it could not prove that it was Greer who had deposited the water heater in Rodd Lane.

10. The conviction followed a defended hearing that lasted one day on 4 March 2023. Greer was legally represented at that hearing.

11. Greer gave oral evidence along with Guy Firman, the Waste Investigations Officer with the Council, and Jarryd Malouf, Greer’s neighbour.

12. There was incontrovertible evidence that Greer had transported the washing machine frame and tub into Rodd Lane between 7.05am and 7.23am on 23 January 2023. Greer in fact made a concession confirming such conduct in the court below (T7:49-8:17).

13. Relevantly for present purposes, Greer contended that he did not intend to use Rodd Lane as a waste facility. Rather, he had temporarily placed the tub and frame in Rodd Lane until he could obtain assistance to load these items onto his trailer. Their emplacement was temporary.

14. During examination-in-chief, Greer’s evidence was that he moved the washing machine frame and tub from Rodd Lane back into his property (by dragging it) sometime after 23 January 2023. Later Greer moved the frame and tub with assistance outside and onto his trailer where he sold it to a scrap metal dealer (T49:19-41). It appears that the washing machine frame and tub were in Rodd Lane for anywhere between four to eight days.

15. The Local Court was satisfied beyond reasonable doubt that it was unlawful to use Rodd Lane as a waste facility and that the Council had proven the essential elements of the offence. Greer was therefore convicted of the offence as charged.

16. The Local Court imposed a fine of $2,500 and ordered Greer to pay the costs of the Council in the amount of $4,000.

The Nature of an Appeal Against Sentence

17. An appeal against sentence is made to this Court as of right under s 31(1) of the CARA:

31   Appeals as of right

(1)   Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence.

18. Section 39(2) of the CARA provides that:

39   Determination of appeals

(2)   The Land and Environment Court may determine an appeal against sentence—

(a)   by setting aside the sentence, or

(b)   by varying the sentence, or

(c)   by dismissing the appeal.

19. Subsection 3(3) of the CARA provides that:

(3)   In this Act, a reference to varying a sentence includes—

(a)   a reference to varying the severity of the sentence, and

(b)   a reference to setting aside the sentence and imposing some other sentence of a more or less severe nature, and

(c)   a reference to varying or revoking a condition of, or imposing a new condition on, an intensive correction order, community correction order or conditional release order.

20. Significantly s 3(3A) of the CARA provides that:

(3A) Without limiting subsection (3), a power conferred on an appeal court under this Act to vary a sentence includes the power to make an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 and, for that purpose, to set aside a conviction made by the original Local Court (without setting aside the finding of guilt on which the conviction is based) to enable the order to be made.

21. An appeal against sentence proceeds by way of a rehearing, and unlike an appeal against conviction, is not limited to the evidence before the Court below. That is, the parties are not required to obtain leave to adduce fresh evidence (Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 at [51]; Cmunt v Commissioner of Police NSW [2019] NSWLEC 33 at [21]; and Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86 at [2]).

Evidence Before this Court

22. Before this Court, Greer relied on the evidence that he gave in the court below, his affidavit, sworn on 21 August 2025 in respect of his appeal, and evidence from the bar table that the Council did not object to.

23. In his affidavit Greer relevantly deposed to the following:

2.   I am 83+ years old. …

5.    In past years I was involved in voluntary work for The Tenants Union in Kings Cross/Darlinghurst. And the Inner City Legal City.

6.    Since my retirement, I assist several elderly persons with transport, medical appointments, shopping and companionship on an ongoing basis. And some handyman work when required.

7.   My father passed away in 1990. Leaving me to take care of mum until she died in 21/03/2024. In my presence at the aged care facility.

8.   My only brother passed away in 2016, and I had been mum’s full time carer until she moved into aged care in early 2022.

…

11.   I continued to support mum in hospital and prior to her being admitted into aged care when her dementia increased.

12.   I am currently seeing several medical specialists. And I am told my medical conditions can be managed under their directions.

…

14.   I was recently hospitalised on Wed, 04/06/2025 as an emergency cause of action to stave off a deadly heart attack. With 2 medical procedures having been carried out.

15.   I am currently under a psychologist’s care and receiving treatment for stress, anxiety and depression.

16.   I reside alone and attempt to maintain mum’s home, myself and 2 dogs. And I have an interest in rescuing wildlife and domestic animals.

17.   I have ongoing weekly medical appointments.

18.   Surviving on the aged pension can be challenging at times. With no other form of income.

19.   I give voluntary assistance at the Addison Road Community Centre, Marrickville.

…

21.   I deeply regret this incident having ever taken place. And I apologise to all parties for any inconvenience.

24. The Council relied on the evidence adduced in the court below comprising:

1. exhibits 1 to 9 that were tendered during the Local Court proceedings; and

2. two transcripts of the Local Court proceedings dated 4 March and 6 November 2024.

Sentencing Principles

25. Section 3A of the CSPA provides the purposes of imposing a sentence on the offender:

3A   Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows—

(a)   to ensure that the offender is adequately punished for the offence,

(b)   to prevent crime by deterring the offender and other persons from committing similar offences,

(c)   to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

(e)   to make the offender accountable for his or her actions,

(f)   to denounce the conduct of the offender,

(g)   to recognise the harm done to the victim of the crime and the community.

26. Subsections 21A(2) and (3) of the CSPA set out aggravating and mitigating factors that the Court must consider. Relevant to the facts of this case they are:

21A   Aggravating, mitigating and other factors in sentencing

…

(2)   Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

…

(3)   Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

(a)   the injury, emotional harm, loss or damage caused by the offence was not substantial,

…

(f)   the offender was a person of good character,

(g)   the offender is unlikely to re-offend,

(h)     the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

…

(i)   the remorse shown by the offender for the offence, but only if—

(i)   the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)   the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…

(k)   a plea of guilty by the offender (as provided by section 22 or Division 1A), …

27. For offences created by the POEOA, the Court must also consider the matters set out in s 241 of that Act insofar as they are relevant:

241   Matters to be considered in imposing penalty

(1)   In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant)—

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

…

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

…

(2)   The court may take into consideration other matters that it considers relevant.

28. The appropriate sentence for Greer is to be determined by an instinctive synthesis of all the relevant objective and subjective circumstances surrounding the commission of the offence (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).

29. Importantly, the sentence to be imposed on Greer for the commission of the offence must be proportionate to the objective seriousness or gravity and his subjective circumstances (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).

Objective Circumstances of the Offence

30. The objective gravity of the offence fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considering its objective circumstances (Veen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).

31. The objective seriousness is to be determined by reference to the nature of the offences and not to matters that are personal to a particular offender (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).

Nature of the Offence

32. The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are illustrative of the objective seriousness of an environmental offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]; and Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).

33. The objects in s 3 of the POEOA relevantly include:

3   Objects of Act

The objects of this Act are as follows—

(a)   to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,

…

(d)   to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following—

(i)   pollution prevention and cleaner production,

(ii)   the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,

(iia)   the elimination of harmful wastes,

(iii)   the reduction in the use of materials and the re-use, recovery or recycling of materials,

(iv)   the making of progressive environmental improvements, including the reduction of pollution at source,

(v)   the monitoring and reporting of environmental quality on a regular basis,

(vi)   the proper environmental management of chemicals throughout their whole lifecycle,

(e)   to rationalise, simplify and strengthen the regulatory framework for environment protection, …

34. Section 143 gives effect to the objectives of the POEOA, particularly with respect to protecting, restoring and enhancing the quality of the environment (s 3(a)), reducing risks to human health and preventing the degradation of the environment (s 3(d)), and strengthening the regulatory framework for environmental protection (s 3(e)).

35. In Bankstown City Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39, Preston J relevantly observed in relation to waste offences that (at [53]-[54]):

53   …[T]he POEO Act also specifically proscribes certain conduct concerning the transporting and depositing of waste without lawful authority. This includes the use of a place as a waste facility (being premises used for the storage, treatment, processing, sorting or disposal of waste: see Dictionary to the POEO Act) (s 144(1) of the POEO Act); the transporting of waste to and the depositing of waste at a place that cannot lawfully be used as a waste facility for that waste (s 143(1) of the POEO Act); and polluting land, such as by depositing waste on land (s 142A(l) of the POEO Act). The prohibition of this conduct prevents land pollution and its impacts on the environment, including harm to human health. A person can only carry out the conduct if a licence has been issued authorising the person to do so. Application for and approval of a licence ensures the proper assessment of the conduct, the land on which the conduct is proposed to be carried out, and the environmental impacts of the conduct, as well as an assessment of whether the person is a fit and proper person to carry out the conduct (including whether the person has contravened the POEO Act, such as having been convicted of waste offences against ss 142A(l), 143(1) or 144(1) of the POEO Act).

54   The statutory provisions requiring application for approval, assessment and approval of activities are linchpins of the statutory scheme. An offence against these provisions thwarts the achievement of the objects of the POEO Act, including ecologically sustainable development, and undermines the integrity of the regulatory scheme under the POEO Act.

36. The offence undermined the legislative objectives set out in s 3 of the POEOA insofar as Greer deposited waste in a manner contrary to that Act.

37. The generality of the offence provision means that it covers a wide range of dumping, including the disposal of asbestos waste with its concomitant impacts on the environment and human safety. On any view, depositing the frame and tub for a period of approximately one week falls at the lowest end of the spectrum of the objectively serious offending that the offence is directed to.

Maximum Penalty

38. The maximum penalty provided for an offence indicates Parliament’s view as to the seriousness of that offence. It provides a sentencing yardstick to measure the relevant features of the offence for which Greer is to be sentenced (Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 697; and Plath v Rawson at [57]). Greer’s offending must be examined in this light (Harrison vPerdikaris [2015]NSWLEC 99 at [49]).

39. At the time that the offence was committed, the maximum penalty for the commission of an offence by an individual against s 143 of the POEOA was $250,000.

Greer’s State of Mind

40. An offence under s 143(1)(a) is one of strict liability where intention is not an element of the offence. However, the commission of a strict liability offence intentionally, recklessly or negligently will be objectively more serious than one that is inadvertently committed.

41. Greer submitted that he did not intend to dump the waste by leaving it there permanently. Rather, he had temporarily placed the washing machine frame and tub on Rodd Lane until he could obtain assistance to move the items onto his trailer for transport to a scrap metal yard (T8:44-9:12). Greer pursued his appeal in this Court on the very basis that he “had no mindset to dump rubbish” (T9:47-48). I accept this evidence.

42. While the reason given by Greer does not provide legal justification for his offending conduct, it does provide an explanation as to why the frame and tub were deposited next to the trailer. I accept that he did not intend to abandon the items in Rodd Lane and that he was not aware that by placing them there even temporarily was to commit an offence.

43. Greer’s explanation is reinforced by an attempt to load the trailer with the frame and tub. That he did not do so was because of a concern that he might injure himself. This was made clear during his examination-in-chief in the court below (T44:17-28):

Q. And did you at any time attempt to put the frame, the washing machine frame, on the trailer?
A. Yes I did.

Q. When?
A. I don’t know if it was that day or the day after, but I found it too awkward and I was a bit concerned of it falling on me, or not being able to handle it successfully.

Q. But when you did put it on the trailer, you say you did after some time, how did you do that?
A. With the help of some family friends.

44. The Court therefore finds that Greer did not commit the offence intentionally, negligently or recklessly. As a result, the offence in question is less objectively serious.

Previous Conviction

45. It was an agreed fact between the parties at the hearing of the appeal that Greer had been convicted of an offence carrying a term of imprisonment fifteen years ago.

46. I place little to no weight on the commission of this offence, the details of which are unknown, and which occurred fifteen years earlier.

No Harm Caused or Likely to be Caused to the Environment (s 241(1)(a) of the POEOA)

47. The extent of the harm caused or likely to be caused to the environment by the commission of the offence is relevant to its objective seriousness (s 241(1)(a) of the POEOA). The Court can also consider whether any injury, emotional harm, loss or damage caused by the offence was substantial as an aggravating factor (s 21A(2)(a) of the CSPA).

48. The placement of the frame and tub in a public laneway caused harm to the amenity of the area insofar as it was unsightly and attracted other persons who dumped their waste in the same location. It had the further potential to harm human safety insofar as it obstructed the “main use [of Rodd Lane] as driving for vehicles” (T11:17-18). Contrary to the submission of the Council, there was no evidence that it attracted, or had the potential to attract, vermin.

49. However, the extent of the harm was, at its highest, exceedingly minor. The washing machine frame and tub were self-contained and there was no evidence that it leached substances into the ground or stormwater drains. The harm was further limited by the fact that the frame and tub were deposited on Rodd Lane for a relatively brief period of time (approximately a week). The offending conduct occasioned no environmental harm and no likely environmental harm given its limited duration.

Greer Had Control Over the Causes that Gave Rise to the Commission of the Offence (s 241(1)(d) of the POEOA)

50. There was no doubt that Greer transported the washing machine frame and tub from his yard to Rodd Lane. That is, he had complete control over the causes that gave rise to the offending.

Conclusion on the Objective Seriousness of the Offence

51. Having regard to the circumstances above, the Court finds that the offence was at the lowest end of objective seriousness.

Subjective Circumstances

52. A proportionate sentence requires the Court to take into account any mitigating factors that are personal to Greer (s 21A(3) of the CSPA).

Harm Caused by the Offence Was Not Substantial (s 21A(3)(a) of the CSPA)

53. The Court repeats its reasons above to find that the harm caused by the offence was not substantial.

Greer is of Good Character (s 21A(3)(f) of the CSPA)

54. Greer deposed to providing voluntary assistance at the Tenants Union, the Inner City Legal Centre and the Addison Road Community Centre. During his retirement he has assisted elderly persons with transport, medical appointments, shopping and repairs, and provided them with companionship.

55. Greer also rescues wildlife and has rescue dogs in his care.

56. The fact that Greer has been convicted of an offence does not tarnish his character given that it occurred fifteen years prior.

57. I therefore find that Greer is generally of good character.

Greer is Unlikely to Re-Offend and Has Good Prospects of Rehabilitation (ss 21A(3)(g) and (h) of the CSPA)

58. The personal toll that this appeal has had on Greer, evident during the appeal, strongly suggests that he is unlikely to re-offend by storing waste outside his property and has good prospects of rehabilitation.

Greer Has Shown Remorse (s 21A(3)(i) of the CSPA)

59. The Court considers remorse shown by the offender to be a mitigating factor only if the offender has provided evidence that they have accepted responsibility for their actions, and that the offender has acknowledged any injury, loss or damage caused by their actions (ss 21A(3)(i) of the CSPA).

60. Greer made an express apology in his affidavit and orally expressed regret for his conduct. Greer also attests to not depositing any additional waste outside his property since committing the offence.

61. The Court is satisfied that Greer has provided evidence of his remorse and this is a factor that weighs in his favour.

Greer Has Limited Capacity to Pay a Fine

62. The Court is required to consider information regarding Greer’s means in the exercise of its discretion to fix a monetary penalty pursuant to s 6 of the Fines Act 1996.

63. There is evidence that Greer’s financial position would prevent him from paying a substantial monetary penalty imposed by the Court. Greer receives the maximum amount of the pension. He supplements his income by selling scrap metal and recycling drink containers.

64. Greer also appeared as a litigant in person for the entirety of this appeal because, he stated, he could not afford legal representation. The Court made orders on 4 August 2025 that the Registry attempt to obtain pro bono legal advice for Greer, however, by no fault of his own, Greer was not able to secure any such representation.

65. Although Greer provided no financial records, there is sufficient evidence for the Court to infer that he is not a man of means and cannot pay a fine of more than a nominal amount.

Greer Has Diminished Physical and Mental Capacity

66. Greer is 83 years old and experiences frequent periods of ill health, as he did during the preparation of the appeal and during the trial at first instance (T4:15-17). At the time that he committed the offence and now, Greer was under the care of cardiac and oncology specialists. Greer deposed to being hospitalised in June 2025 to undergo two medical procedures.

67. Greer is also under the ongoing care of psychologists who have treated him for stress, anxiety and depression.

Greer Did Not Enter a Guilty Plea (s 21(3)(k) of the CSPA)

68. An early plea of guilty has utilitarian value to the criminal justice system and entitles an offender to a maximum discount of 25% (R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]).

69. Greer did not enter a plea of guilty. He is therefore not entitled to any discount in respect of the penalty to be imposed for the commission of the offence.

Conclusion on Subjective Considerations

70. The subjective considerations of Greer operate to mitigate the penalty to be imposed by the Court to a considerable degree.

General and Specific Deterrence

71. The Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offence and makes Greer accountable for his actions. One of the purposes of imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences (s 3A(b) of the CSPA). In this sense, the Court is required to consider both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569 per Brennan J).

72. General deterrence is essential “to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences” (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188]). The Council submitted that the prevalence of dumping offences necessitates a penalty that will deter the community from committing the unlawful deposition of waste. The Court agrees.

73. Specific deterrence can catalyse rehabilitation so that an offender takes the requisite steps to prevent further offending (Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 at [48]).

74. However, in my view, specific deterrence has a limited role to play in this sentence appeal. Greer has clearly accepted his wrongdoing. This is reflected in his decision to seek the Court’s leave to amend his summons and withdraw the appeal against his conviction. Nor does Greer’s criminal history manifest a continuing attitude of disobedience such that significant weight should be given to personal deterrence (Environment Protection Authority v Abbas [2021] NSWLEC 57 at [105]).

Even-Handedness

75. The task of a sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 106). However, care must be taken in achieving consistency. There is difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365). The sentence imposed in a single case does not demonstrate the limits of a sentencing court’s discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).

76. The Council provided the Court with sentencing statistics for offences against s 143(1)(a) of the POEOA that were prosecuted by authorities in the Local Court. However, adopting a statistical analysis of comparable cases to determine the objective seriousness of the subject offence is generally impermissible (R v Pham [2015] HCA 39; (2015) 256 CLR 550 at [3] and [43]).

77. The Court considered authorities in respect of unlawful transporting of waste offences charged under s 143(1)(a) of the POEOA that fell within the lowest range of objective serious, however, none were comparable with respect to the trivial nature of the present offending conduct (see, for example, Environment Protection Authority v Hughes [2024] NSWLEC 91; Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127; and Transport for NSW v East Coast Wharf Constructions Pty Ltd [2020] NSWLEC 112).

The Appropriate Sentence is the Imposition of a Monetary Penalty

78. Having regard to the objective seriousness of the commission of the offence and the mitigating subjective factors of Greer, together with the purposes of sentencing and the penalties imposed in comparable cases, I find that the imposition of a monetary penalty in the sum of $2,500 is warranted.

Whether an Order Under s 10(1)(a) of the CSPA Ought to Be Made

79. The Court’s power to vary a sentence includes the power to make an order under s 10 of the CSPA (s 3(3A) of the CARA). For that purpose, the Court can set aside a conviction without setting aside the finding of guilt on which it was based to enable the order to be made (see Huynh v The Queen [2021] NSWCCA 148; (2021) 105 NSWLR 384 at [26]-[27]).

80. Section 10(1)(a) of the CSPA provides that:

10   Dismissal of charges and conditional discharge of offender

(1)   Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders—

(a)   an order directing that the relevant charge be dismissed,…

81. The dismissal of charges under s 10 of the CSPA reflects Parliament’s willingness to provide first offenders, in certain circumstances, a second chance to maintain a reputation of good character (R v Nguyen [2002] NSWCCA 183 at [50] per Bergin J with Stein JA and Carruthers AJ agreeing).

82. In deciding whether to make an order under s 10(1) of the CSPA the Court is required to have regard to the following factors in s 10(3) of that Act:

(3)   In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors—

(a)   the person’s character, antecedents, age, health and mental condition,

(b)   the trivial nature of the offence,

(c)   the extenuating circumstances in which the offence was committed,

(d)   any other matter that the court thinks proper to consider.

83. None of the factors in s 10(3) are conclusive as to the exercise of the Court’s discretion under s 10(1), but all must be taken into account (R v Paris [2001] NSWCCA 83 at [43], [48] and [49]). Additionally, the Court need not characterise the nature of the offence as being trivial for it to make an order under s 10(1) (at [42]).

84. Greer is elderly and experiences frequent periods of ill physical and mental health which have necessitated specialist care as detailed above (s 10(3)(a) of the CSPA). The Court also repeats its reasons for determining that Greer is generally of good character.

85. Contrary to the submission of the Council, I find that the offence is trivial (s 10(3)(b) of the CSPA). For the reasons given above, the offence was at the lowest range of objective seriousness. It was not committed intentionally and caused no harm to the environment. Greer’s overall culpability is low.

86. As Greer explained, there were extenuating circumstances in which the offence was committed (s 10(3)(c) of the CSPA), namely, that he temporarily deposited the frame and tub in Rodd Lane until he could obtain assistance to load them onto his trailer in order to transport them to the scrap metal dealer, as he had done so on previous occasions. Greer stated that due to his age and poor health he could not lift the frame and tub into the trailer himself.

87. All of these circumstances support a finding that the offending conduct was trivial.

88. The Court takes into account (see s 10(1)(d) of the CSPA) the fact that Greer did not plead guilty to the offence. However, the Court is satisfied that Greer misunderstood the strict liability nature of the charge despite his legal representation in the court below. Because Greer believed that it was necessary for the Council to establish that he intended to permanently dump the waste in Rodd Lane and because he had no such intention, he challenged the PIN and did not plead guilty to the commission of the offence. That he misunderstood the nature of the offence is supported by the fact that Greer withdrew his appeal against conviction.

89. In any event, the absence of a guilty plea does not necessarily preclude the application of s 10(1)(a) of the CSPA (Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26 at [643] citing Matheson v Director of Public Prosecutions (NSW) [2008] NSWSC 550; (2008) 185 A Crim R 83 at [65]).

83. Having regard to the particular circumstances of the commission of the offence and the particular circumstance of Greer, the Court determines that he should be given the benefit of an order pursuant to s 10(1)(a) of the CSPA to have no conviction recorded and the charge dismissed, but the imposition of the monetary penalty should remain.

Costs

91. Section 49(4) of the CARA empowers the Court to make such order as to costs to be paid by either party as it thinks just. That power is subject to limitations on an award of costs in favour of the appellant against a public prosecutor, and the requirement that the Court state the time for the payment of those costs (ss 70 and 72 of the CARA respectively).

92. An order for costs is a factor to consider in determining the overall punishment to be imposed (Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 at [100] and Barnes at [78] and [88]).

93. The Council submitted that its costs of the appeal were approximately $7,000, but that it was prepared to accept $2,000.

94. Greer was successful insofar as the penalty imposed by the Local Court will be set aside. Against this, is the fact that the hearing of the appeal was initially vacated on the day of the hearing, with attendant costs thrown away occasioned by the Council. The Court therefore considers it just in all of the circumstances that each party pay their own costs of the appeal.

95. The Local Court ordered Greer to pay the Council’s reasonable costs of those proceedings upon the Council making an application pursuant to s 215 of the Criminal Procedure Act 1986. The costs of the Council amounted to $12,448, but were reduced to $4,000 by the Local Court (T12:41-45). Given that the majority of the hearing at first instance was occupied by the Council establishing Greer’s liability for the offence as charged, and given that Greer abandoned his appeal against conviction in this Court, the Court does not intend to disturb the costs order in the Local Court.

Orders

96. In conformity with the reasons given above, the Court makes the following orders:

1. the conviction imposed by the Local Court on 6 November 2024 on George Greer for an offence against s 143(1)(a) of the Protection of the Environment Operations Act 1997 is dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1992; and

2. George Greer is to pay a monetary penalty of $2,500.

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Decision last updated: 28 August 2025