Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd

[2020] NSWLEC 125

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125

Hearing dates:

19 August 2020

Date of orders:

07 September 2020

Decision date:

07 September 2020

Jurisdiction:

Class 5

Before:

Preston CJ

Decision:

The Court makes the following orders:

(1) Wollongong Recycling (NSW) Pty Ltd is convicted of the offence against s 76A(1)(b) and s 125(1) of the Environmental Planning and Assessment Act 1979 as charged.

(2)   Wollongong Recycling (NSW) Pty Ltd is fined $36,000.

(3) Pursuant to s 122(2) of the Fines Act 1996, one half of the fine imposed by order (2) is to be paid to the Secretary, Department of Planning, Industry and Environment (the prosecutor).

(4)   Wollongong Recycling (NSW) Pty Ltd is ordered to:

(a)   at its expense, cause a notice in the form of Annexure A to this order, at a minimum size of 9cm x 12cm, to be placed within the first 10 pages of:

(i)   Illawarra Mercury, within 28 days of the date of this order;

(ii)   Inside Waste, within 60 days of the date of this order;

(b)   within 28 days of the date of this order, cause a notice in the form of Annexure A to this order to be placed on the website

(5)   Within 75 days of the date of this order, Wollongong Recycling (NSW) Pty Ltd is to provide to the prosecutor a complete copy of the pages of the publications and website in which the notices have appeared pursuant to order (4)(a) and (b).

(6) Pursuant to s 257B of the Criminal Procedure Act 1986, Wollongong Recycling (NSW) Pty Ltd is to pay to the Registrar of the Land and Environment Court, for payment to the prosecutor, the prosecutor’s costs of the proceeding in the amount of $26,000.

Catchwords:

OFFENCES AND PENALTIES – sentence – carrying out development in breach of development consent – waste facility – condition limiting quantity of waste received per year – waste received exceeded limit – low objective seriousness – no environmental harm – no recklessness or negligence proven – limited but unknown financial gain – no foreseeability or practical measures to prevent harm – control over causes of offence – subjective circumstances of offender – no prior convictions – early plea of guilty – remorse for offence not proven – limited assistance to authorities – fine – moiety of fine – publication order – costs order

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 ss 21A, 22

Criminal Procedure Act 1986 s 257B

Environmental Planning and Assessment Act 1979 ss 76A, 125, 125B, 9.56

Fines Act 1996 s 122

Protection of the Environment Operations Act 1997 ss 64, 250

Protection of the Environment Operations (Waste) Regulation 2014

Cases Cited:

Boughey v The Queen (1986) 161 CLR 10

Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235; [2005] NSWLEC 198

Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114

Council of the City of Sydney v Adams [2015] NSWLEC 206

Director General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137

Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433

Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90

Environment Protection Authority v Minto Recycling Pty Ltd [2019] NSWLEC 193

Environment Protection Authority v Mortdale Recycling Pty Ltd [2019] NSWLEC 106

Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419

Environment Protection Authority v Whitehaven Coal Mining Ltd [2019] NSWLEC 27

Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312

Environment Protection Authority v Wyanga Holdings; Environment Protection Authority v Cauchi [2015] NSWLEC 78

Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242

NSW Sugar Milling Cooperative Ltd v Environment Protection Authority (1992) 75 LGRA 320

R v Burke [2002] NSWCCA 353

R v XX [2017] NSWCCA 90

The Queen v De Simoni (1981) 147 CLR 383

Category:

Sentence

Parties:

Secretary, Department of Planning, Industry and Environment (Prosecutor)
Wollongong Recycling (NSW) Pty Ltd (Defendant)

Representation:

Counsel:
Mr P English (Prosecutor)
Mr P Larkin SC, with Ms S Ross (Defendant)

Solicitors:
Department of Planning, Industry and Environment (Prosecutor)
Law Corporation Pty Ltd (Defendant)

File Number(s):

2020/70605

Publication restriction:

Nil

Judgment

A development consent is breached

1. Wollongong Recycling (NSW) Pty Ltd (Wollongong Recycling) operates the Kembla Grange Resource Recycling facility at 50 Wylie Road, Kembla Grange (the site). This facility recovers, recycles and reprocesses construction and demolition waste, and commercial and industrial waste.

2. Wollongong Recycling is a wholly owned subsidiary of Bingo Industries Ltd. Wollongong Recycling is a participant in the network of waste recycling and reprocessing centres which operate under the Bingo Group of companies.

3. Development consent SSD5300 was granted by the Minister for Planning on 7 March 2016 for the Kembla Grange Resource Recycling Facility. Three conditions of consent regulated the volume of waste that could be received and processed on the site, conditions A6, A7 and A8. These conditions provided:

“A6. The Applicant shall not receive or process on the site more than 230,000 tonnes per calendar year of waste, subject to Condition A8.

A7. Despite Condition A7, the Applicant shall not receive or process on the site more than 30,000 tonnes per calendar year of waste until:

a) A Final Occupation Certificate has been issued for Stage 1 of the Development; and

b) The Secretary has approved the Operational Environmental Management Strategy for the Development (see Condition C3).

A8. The Applicant shall store no more than 45,000 tonnes of waste on the site at any one time, including:

no more than 2,500m³ of organic waste on the site at any one time; and no more than 500m³ of the above limit on organic waste is to comprise compost product.”

4. The effect of these conditions was that Wollongong Recycling was limited to receiving or processing on site no more than 30,000 tonnes per calendar year of waste until a final occupation certificate had been issued for Stage 1 of the development and the Secretary of the Department of Planning, Industry and Environment (DPIE) had approved the Operational Environmental Management Strategy for the development.

5. The first condition was satisfied on 23 January 2018, when an accredited certifier issued the Final Occupation Certificate for Stage 1 of the development. The second condition was satisfied on 26 February 2018, when the Secretary of DPIE issued an approval letter to Wollongong Recycling notifying it of the approval of the Operational Environmental Management System and updated management plans for the premises, as required by condition 3 of the development consent.

6. As a consequence, throughout the calendar year of 2017, Wollongong Recycling was limited to receiving and processing on the site 30,000 tonnes of waste.

7. Wollongong Recycling did not comply with this limit. It received and processed 40,023.98 tonnes of waste, just over 10,000 tonnes more than permitted by condition A7 of the development consent. Wollongong Recycling thereby carried out the development otherwise than in accordance with the development consent, contrary to s 76A(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act), which was then in force. By breaching s 76A(1)(b), Wollongong Recycling committed an offence against s 125(1) of the EPA Act, which was then in force.

The defendant is prosecuted and pleads guilty

8. The Secretary of DPIE prosecuted Wollongong Recycling for committing an offence against s 125(1) of the EPA Act by carrying out the development on the site otherwise than in accordance than with the development consent, contrary to s 76A(1)(b) of the EPA Act. The proceedings were commenced on 4 March 2020. Wollongong Recycling entered a plea of guilty on 26 June 2020. A sentence hearing was held on 19 August 2020.

The objective seriousness of the offence

9. The objective seriousness of the offence committed by Wollongong Recycling is to be assessed having regard to the maximum penalty, the extent of harm caused, the state of mind in committing the offence, the reasons for committing the offence, the foreseeability of harm, the practical measures to avoid harm and the control over the causes giving rise to the offence.

Maximum penalty

10. The maximum penalty for an offence against the EPA Act, for which a Tier 2 maximum penalty applies, in the case of a corporation such as Wollongong Recycling, is $2 million (s 125B(2)(a)(i) of the EPA Act).

The extent of harm

11. Wollongong Recycling’s receipt and processing of 10,000 tonnes more waste than condition A7 permitted it to receive and process in the 2017 calendar year did not cause any harm to the environment.

12. The only harm caused by the commission of the offence was to the objectives and integrity of the regulatory system of planning and development control under the EPA Act. Carrying out development without consent or not in accordance with a consent tends to undermine the objects of the EPA Act and the due processes prescribed for prior application, assessment and approval of the carrying out of development: Council of the City of Sydney v Adams [2015] NSWLEC 206 at [38].

13. Wollongong Recycling’s conduct in breaching the 30,000 tonnes waste limit fixed by condition A7 of the development consent, without waiting for the final occupation certificate and the Secretary’s approval of the Operational Environment Management Strategy, was contrary to the legislative objective expressed in the offence and impeded the attainment of the objects of the EPA Act.

State of mind

14. Wollongong Recycling’s state of mind in committing the offence is relevant to its culpability. As Brereton JA in Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312 at [72]:

“First, it is uncontroversial that the state of mind of an offender – including actual intention, recklessness, or negligence – is relevant to culpability for the purposes of sentencing for an offence of strict liability, notwithstanding that the offender’s state of mind is not an element of liability. An offence that is committed intentionally, recklessly or negligently is objectively more serious than one not so committed, and those states of mind exacerbate the objective culpability of an offender.”

15. In some cases, this is subject to the principle in The Queen v De Simoni (1981) 147 CLR 383 at 389, that a person should not be sentenced for a more serious offence than the offence with which they are charged.

16. A person who committed an offence against the EPA Act under s 125(1) could be liable to a Tier 1 maximum penalty (which is higher for a corporation than the Tier 2 maximum penalty) if the prosecution establishes (to the criminal standard of proof) that the offence was committed intentionally and that the offence caused or was likely to cause significant harm to the environment or cause the death of or serious injury or illness to a person: see s 125A(1) of the EPA Act.

17. The prosecutor did not allege or seek to prove that Wollongong Recycling’s commission of the offence against the EPA Act under s 125(1) was committed intentionally or caused or was likely to cause the required harm to the environment or people. Wollongong Recycling is not, therefore, to be sentenced on the basis of this higher Tier 1 maximum penalty.

18. The prosecutor did allege, however, that Wollongong Recycling committed the offence either recklessly or negligently. The prosecutor noted that Wollongong Recycling was aware of the development consent and condition A7, which limited the volume of waste that could be received and processed at the site. Wollongong Recycling became the lessee and operator of the Kembla Grange Resource Recycling Facility on 1 May 2017.

19. Prior to that date, the facility had been leased to and operated by another corporation, Wollongong Recycling and Building Supplies Pty Ltd (WRBS). The change in lessee and operator was a result of the sale of the site and business by the former owner, Bicorp Pty Ltd (Bicorp), to the new owner, Bingo Property Pty Ltd (Bingo Property). Bingo Property is another company in the Bingo Group of companies operating the network of waste recycling and reprocessing centres.

20. As part of the sale of the land and business from Bicorp to Bingo Property, a director of the former operator WRBS was required to assist Wollongong Recycling for three months with the handover of operations at the premises. Under the sale agreement, completion was to take place after a final occupation certificate had been obtained in respect of the development consent. This was one of the requirements in condition A7 that needed to be satisfied in order for the limit of 30,000 tonnes of waste per calendar year to be raised to 230,000 tonnes. This condition of the sale agreement was waived by Bingo Property and completion of the sale agreement took place before the final occupation certificate had been obtained.

21. The prosecutor referred to the agreed facts that:

“In so far as concerns the sale and transfer of the Premises from Bicorp to Bingo Property on 1 May 2017:

(a) there was a formal handover meeting in respect of the Premises in the week prior to 1 May 2017 attended by Bingo Industries’ Environment Manager and Chief Compliance Officer;

(b) the Defendant gave instructions for WRBS to clear the Premises of waste prior to formal handover on 1 May 2017;

(c) the director of WRBS continued to assist the Defendant with operations at the Premises for three months after the sale date.”

22. The prosecutor submitted that these events establish that Wollongong Recycling was aware that condition A7 of the development consent limited the volume of waste that it could receive and process at the site to 30,000 tonnes per calendar year.

23. The prosecutor submitted that the fact that Wollongong Recycling made enquiries of the Environment Protection Authority (EPA) seeking records from the EPA as to the waste volumes received by WRBS in the period 1 January to 30 April 2017, before Wollongong Recycling became the operator, also establishes that Wollongong Recycling was aware that there was a limit on the volume of waste that could be received and processed on the site during the 2017 calendar year.

24. The prosecutor submitted that Wollongong Recycling, being aware of this 30,000 tonne limit, was reckless or negligent in continuing to receive and process waste on the site without ascertaining how much waste had been received by the previous operator WRBS in the period 1 January to 30 April 2017, and hence how much waste could be received and processed by Wollongong Recycling for the balance of the 2017 calendar year.

25. As a matter of fact, 7,624.50 tonnes of waste had been received by WRBS up to 30 April 2017, leaving a balance of 22,375.50 tonnes that could be received by Wollongong Recycling for the remainder of the 2017 calendar year. That balance was exceeded in October 2017. By the end of September 2017, 29,218.25 tonnes had been received and a further 3,887.68 tonnes were received in October 2017.

26. The prosecutor also noted that, even on the volumes of waste received and processed only by Wollongong Recycling after it commenced operating the facility on 1 May 2017, the 30,000 tonne limit was nearly reached by the end of November. Between May and November 2017 inclusive, 29,263.95 tonnes of waste were received by Wollongong Recycling at the site. The monthly tonnage of waste received was, on average, 4,180 tonnes and had not been less than 3,434.47 tonnes (the August 2017 figure). The prosecutor submitted that Wollongong Recycling knew or ought to have known that the 30,000 tonne limit would be exceeded early in December and before the end of the 2017 calendar year.

27. The prosecutor submitted that, even on the waste received and processed only by Wollongong Recycling, it was also reckless or negligent in receiving and processing waste in December 2017.

28. Wollongong Recycling contested that the prosecutor has proved, to the criminal standard of proof, that it acted recklessly or negligently in receiving and processing waste in the 2017 calendar year. Wollongong Recycling accepted that it was aware of the 30,000 tonne limit imposed by condition A7 of the development consent. However, it submitted that it has not been proven that it was aware that it had exceeded or was likely to exceed that limit earlier than in December 2017. The agreed fact was that “in December 2017, it became aware that more than 30,000 tonnes of waste had been received at the premises during the 2017 calendar year.” Wollongong Recycling noted that it had requested the EPA to provide any records of the waste volumes received by WRBS when it operated the site from 1 January to 30 April 2017, but the EPA had declined to provide the waste records relating to WRBS on the grounds of privacy. Hence, Wollongong Recycling had no actual knowledge of the volumes of waste that had been received up to 30 April 2017.

29. Wollongong Recycling accepted that, as an occupier of a scheduled waste facility, it kept its own records of the quantity of waste received at the facility after it became the operator on 1 May 2017 and had provided waste contribution monthly reports as required by cl 22 of the Protection of the Environment Operations (Waste) Regulation 2014. These records would have shown that it had received 29,263.95 tonnes of waste by the end of November 2017. However, Wollongong Recycling submitted that there would have been a delay after the end of November 2017 before the total quantities were available and it would have been alerted to the fact that the 30,000 tonne limit would shortly be exceeded. Wollongong Recycling accepted that the volume of waste received in November 2017 (3,135.53 tonnes) was sufficient to cause the 30,000 tonne limit to be exceeded (having regard to the fact that 29,263.95 tonnes had been received by Wollongong Recycling in the period 1 May to 30 November 2017), but it submitted that there is no evidence of the distribution of this volume of waste over the month, such as whether the waste was received evenly every week in December or more in one week than in other weeks. All that is proven is the agreed fact that sometime in December 2017 (although that time is not established), Wollongong Recycling became aware that more than 30,000 tonnes of waste had been received at the site during the 2017 calendar year.

30. I find that the prosecutor has not established beyond reasonable doubt that Wollongong Recycling committed the offence recklessly or negligently.

31. The offence in this case is that Wollongong Recycling breached condition A7 of the development consent by receiving and processing more than 30,000 tonnes of waste in the 2017 calendar year. As a matter of fact, that breach occurred sometime in October 2017, when the 30,000 tonne limit was exceeded.

32. The prosecutor has not established that, by October 2017, Wollongong Recycling had knowledge or foresight that the 30,000 tonne limit was likely to be exceeded at that time. Proof of such knowledge or foresight is necessary to establish recklessness.

33. Recklessness is measured on a subjective standard, the referent being the offender. Applied to the offence against the EPA Act of carrying out development otherwise than in accordance with a development consent, recklessness refers to the state of mind of an offender who, in carrying out the development, is aware of the risk that the particular consequence or circumstance, that the development will not be carried out in accordance with the consent, is likely to result. The offender is reckless when it has knowledge or foresight of the likelihood of the consequence or circumstance occurring. The word “likely” conveys “the notion of a substantial – a ‘real and not remote’ – chance regardless of whether it is less or more that 50 per cent” Boughey v The Queen (1986) 161 CLR 10 at 21; Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 at [52].

22. The prosecutor has not established on the evidence that Wollongong Recycling had this knowledge or foresight of the likelihood of the consequence or circumstance, that the 30,000 tonne limit imposed by condition A7 of the development consent would be exceeded in October 2017, would occur.

23. The prosecutor has also not established that Wollongong Recycling acted negligently. Negligence is measured on an objective standard, the referent is a hypothetical reasonable person. Negligence assesses the offender’s conduct not by reference to what the offender knew, foresaw or did, but rather by reference to what a hypothetical reasonable person would have known, foreseen or done in the circumstances.

24. For the offence against the EPA Act of carrying out development otherwise than in accordance with a development consent, negligence refers to whether a hypothetical reasonable person in the position of the offender would have known or foreseen that the consequence or circumstance, that the development would be carried out not in accordance with the development consent, is likely to result. The issue is to be decided on an objective basis. What is to be considered is whether the risk of the consequence or circumstance was foreseeable to the reasonable person in the position of the offender, not whether the offender subjectively foresaw the risk: NSW Sugar Milling Cooperative Ltd v Environment Protection Authority (1992) 75 LGRA 320 at 321, 324, 325; Chief Executive, Office of Environment and Heritage v Brummell at [53].

25. The degree of departure from the appropriate standard of care, in order to be negligent under the criminal law, needs to be such that the Court, on an assessment of all of the facts, can conclude that the failure to take the relevant precaution warrants criminal punishment: Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 at 439 and NSW Sugar Milling Cooperative Ltd v Environment Protection Authority at 321, 325.

26. The prosecutor has not established on the evidence that a hypothetical reasonable person in the position of Wollongong Recycling would have known or foreseen that the consequence or circumstance, that the 30,000 tonne limit imposed by condition A7 of the development consent would be exceeded, was likely to result. The hypothetical reasonable person in the position of Wollongong Recycling would not know how much waste had been received by the previous operator WRBS between 1 January and 30 April 2017. The waste records of WRBS had not been provided to Wollongong Recycling. The hypothetical reasonable person in the position of Wollongong Recycling would know how much waste had been received after Wollongong Recycling had become the operator, but the total waste received by Wollongong Recycling by the end of September 2017 (21,593.75 tonnes) was still around 8,400 tonnes less than the 30,000 tonne limit. Whilst a hypothetical reasonable person might reasonably assume that some waste had been received by the previous operator in the period 1 January to 30 April 2017, there was no basis to quantify how much waste had actually been received.

27. The most than can be established on the evidence is that some time in December 2017, Wollongong Recycling had knowledge or foresight, and a hypothetical person in the position of Wollongong Recycling would have had knowledge or foresight, that the 30,000 tonne limit would likely be exceeded and was in fact exceeded. But this is the agreed fact. Wollongong Recycling became aware in December 2017 that more than 30,000 tonnes of waste had been received during the 2017 calendar year. Precisely when in December 2017 is not known. This agreed fact is insufficient to establish that Wollongong Recycling committed the offence recklessly or negligently.

Reasons for committing the offence

40. The carrying out of an offence for financial gain increases its objective seriousness: s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 and Director General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [47], [48].

41. The prosecutor contended that the continued operation of the Kembla Grange Resource Recycling Facility while in breach of condition A7 of the development consent from October 2017 to the end of the 2017 calendar year was for commercial gain. Wollongong Recycling did not cease operations once the 30,000 tonne waste limit was exceeded in October 2017 or after it became aware in December 2017 that more than 30,000 tonnes of waste had been received in the 2017 calendar year.

42. Wollongong Recycling accepted that it had gained financially by receiving 10,000 tonnes more waste than the 30,000 tonne limit permitted. However, it submitted that the evidence does not establish that this was a reason for its committing the offence. As earlier submitted on the issue of state of mind, Wollongong Recycling submitted that it was unaware that it had exceeded the 30,000 tonne limit until sometime in December 2017. That meant that there was only a matter of weeks (the precise time is unknown) in which Wollongong Recycling operated the facility with knowledge that more than 30,000 tonnes of waste had been received. The time period of any financial gain was therefore extremely short. Wollongong Recycling also submitted that there was no evidence of what was the amount of financial gain that it might have made in this short period.

43. I find that any financial gain that Wollongong Recycling made by operating in breach of condition A7 of the development consent was of limited duration (from sometime in October 2017 when as a matter of fact the 30,000 tonne limit was exceeded until 31 December 2017) and of unknown amount. I accept Wollongong Recycling’s submission that the period of time in which Wollongong Recycling could have had a reason to commit the offence for financial gain was even shorter, perhaps two to three weeks in December 2017 after it became aware that more than 30,000 tonnes of waste had been received in the 2017 calendar year. The amount of any financial gain Wollongong Recycling might have made in this limited time period is unknown but would evidently be less than the amount it would gain in the longer period from October 2017 to the end of the 2017 calendar year.

Foreseeability of harm

44. The prosecutor and Wollongong Recycling agreed that not only was there no environmental harm caused by the commission of the offence by exceeding the 30,000 tonne limit, there was no foreseeability of environmental harm.

Practical measures to prevent harm

45. As there was no foreseeability that environmental harm might be caused by the commission of the offence, there were no practical measures that might be taken to prevent environmental harm.

Control over causes of the offence

46. As Wollongong Recycling operated the Kembla Grange Resource Recycling facility and received waste, it had control over the causes that gave rise to the offence.

Conclusion on objective seriousness

47. By reason of the factors above, the offence is of low objective seriousness.

Subjective circumstances of the offender

48. Within the limits set by the objective seriousness of the offence, the Court may take into account the favourable and mitigating factors personal to Wollongong Recycling.

Lack of prior convictions

49. Wollongong Recycling has no prior convictions: s 21A(3)(e) of the Sentencing Act.

Early plea of guilty

50. Wollongong Recycling has pleaded guilty to the offence: s 21A(3)(k) and s 22(1)(a) of the Sentencing Act. The prosecutor and Wollongong Recycling agree that the plea of guilty was entered at an early stage of the proceedings and should attract the full discount of 25% for its utilitarian value to the criminal justice system.

Remorse

51. Apart from the utilitarian value of a plea of guilty, genuine remorse is a further mitigating factor. However, s 21A(3)(i) of the Sentencing Act states that remorse shown by the offender for the offence will only be a mitigating factor 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)”

52. This demonstration of remorse is more readily shown by an offender taking actions rather than offering smooth apologies through legal representatives: Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 at [203]. Actions demonstrating genuine remorse may take at least four forms: first, the speed and efficiency of any action to rectify any harm caused or likely to continue to be caused by the commission of the offence; secondly, voluntary reporting of the commission of the offence and any concomitant environmental harm to relevant authorities; thirdly, taking of action to address the causes of the offence; and fourthly, the personal appearance of corporate executives in court and their personal evidence outlining the company’s genuine regret and stating future plans to avoid repetition of the offence: Environment Protection Authority v Waste Recycling and Processing Corp at [204]-[214].

53. The prosecutor noted that Wollongong Recycling has not established by evidence that it has taken any of these actions. No corporate executive gave evidence or appeared personally in Court. At best, Wollongong Recycling’s senior counsel offered from the bar table an apology on behalf of Wollongong Recycling.

54. Wollongong Recycling submitted that its remorse is evidenced by its early guilty plea and not attempting to hide the fact that it committed the offence. It submitted that, although it did not voluntarily report that it had breached condition A7 by receiving more than 30,000 tonnes of waste in the 2017 calendar year, it did not attempt to hide or obfuscate the breach. It also complied with its obligations under its environment protection licence to report on the waste it had received.

55. I find that Wollongong Recycling has not established remorse for its offending. In order for remorse to be a mitigating factor, the offender must establish, on the balance of probabilities, that it is remorseful for committing the offence. Wollongong Recycling has not discharged this onus. It has adduced no evidence of the matters in s 21A(3)(i) of the Sentencing Act. It has not taken actions that would demonstrate its remorse, such as the actions identified in Environment Protection Authority v Waste Recycling and Processing Corp. No corporate executive gave evidence or appeared in person at the sentencing hearing to offer an apology for committing the offence or to outline what action it has taken or will take to avoid breaching conditions of the development consent in the future.

56. I reject the submission that remorse is shown by Wollongong Recycling not hiding or obfuscating the breach of condition A7 of the development consent. Of course, if an offender did hide or obfuscate its commission of an offence, the offender could not be seen to be remorseful for the offence. But the converse does follow. An offender is not remorseful merely because it does not hide or obfuscate the commission of the offence.

57. I also reject the submission that remorse is shown by Wollongong Recycling complying with its obligations under its environment protection licence to provide records of the waste it has received and processed on the premises. That is simply to comply with the law. Remorse for committing one offence is not shown by not committing another offence: see Environment Protection Authority v Minto Recycling Pty Ltd [2019] NSWLEC 193 at [123].

Assistance to authorities

58. Wollongong Recycling submitted that it has provided assistance to the prosecutor, a law enforcement authority, in two ways: first, by agreeing with the prosecutor a statement of agreed facts and, second, by complying with its reporting obligations under its environment protection licence.

59. The prosecutor submitted that neither of these ways constitutes assistance to law enforcement authorities. In order to be a mitigating factor under s 21A(3)(m) the assistance to law enforcement authorities has to be “as provided by s 23” of the Sentencing Act. Section 23(1) and (2) of the Sentencing Act provide:

“(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters—

(a) (Repealed)

(b) the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d) the nature and extent of the offender’s assistance or promised assistance,

(e) the timeliness of the assistance or undertaking to assist,

(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,

(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,

(j) (Repealed)”

60. The prosecutor submitted that neither of the two ways relied on by Wollongong Recycling constitutes assistance as provided by s 23. The prosecutor submitted that the assistance provided for by s 23 concerns aiding the apprehension or conviction of other offenders: R v Burke [2002] NSWCCA 353 at [31].

61. Wollongong Recycling countered that, although assistance in aiding the apprehension or conviction of other offenders is one form of assistance falling within s 23, it is not the only form of assistance capable of falling within s 23(1). The assistance referred to in s 23 is not defined. Nothing in the section purports to limit the type of assistance that falls within the provision beyond requiring that it be assistance to “law enforcement authorities” in the “prevention, detection or investigation of, or in proceedings relating to” the offence: R v XX [2017] NSWCCA 90 at [32].

62. I find that the assistance Wollongong Recycling provided to the prosecutor by agreeing a statement of agreed facts is capable of falling within s 23(1) of the Sentencing Act. The question is the degree to which that action has assisted the prosecutor. Section 23(1) confers a discretion, and not an obligation, on the sentencing court to impose a lesser penalty than it would otherwise impose for the offence having regard to the degree to which the offender has assisted law enforcement authorities: R v XX at [31].

63. In this case, the facts of Wollongong Recycling’s offending are clear cut. A simple addition of the volumes of waste received through the 2017 calendar year clearly revealed that more than 30,000 tonnes of waste were received and hence that condition A7 of the development consent was breached. The degree of assistance provided by Wollongong Recycling agreeing with the prosecutor a statement recording these facts is therefore small. The extent to which the penalty that would otherwise be imposed should be reduced is also correspondingly small.

64. I do not consider that Wollongong Recycling’s complying with its reporting obligations under its environmental protection licence is assistance falling within s 23(1) of the Sentencing Act. Compliance with the law is not the provision of assistance to law enforcement authorities.

Purposes of sentencing

65. In imposing the sentence for the offence committed by Wollongong Recycling, I take into account the purposes of sentencing in s 3A of the Sentencing Act. The purposes of punishment, retribution and denunciation are relevant. There is the need for the Court, through the sentence it imposes, to ensure that Wollongong Recycling is adequately punished for the offence and held accountable for its actions and that its conduct is denounced in proportion to the seriousness of the offence.

66. The sentence needs to act as a deterrence. The purpose of general deterrence is relevant to ensure that persons do not carry out development without first obtaining development consent and then carrying out the development in accordance with the development consent: Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235; [2005] NSWLEC 198 at [31]-[34]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [102]-[106]. The purpose of general deterrence can better be achieved by making an additional order publicising the sentence imposed for the offence.

67. The sentence can also serve to individually deter Wollongong Recycling from committing like offences in the future. The prosecutor accepted that Wollongong Recycling is unlikely to reoffend. This lessens the role for individual deterrence in this case.

Even handedness

68. In determining the appropriate sentence to be imposed for the offence committed by Wollongong Recycling, the Court should be consistent with the pattern of sentencing for like offences.

69. The prosecutor referred to the sentences imposed for offences against s 64(1) of the Protection of the Environment Operations Act 1997 (POEO Act) involving breaches of waste limits imposed by a condition of an environment protection licence in two cases, Environment Protection Authority v Mortdale Recycling Pty Ltd [2019] NSWLEC 106 and Environment Protection Authority v Minto Recycling Pty Ltd.

70. In the first case, a fine of $30,000 was imposed for breaching the waste limit of 30,000 tonnes by accepting 59,931 tonnes of waste in the relevant 12 month period. In the second case, a fine of $90,000 was imposed for breaching the waste limit of 30,000 tonnes by accepting 169,695.34 tonnes of waste during the relevant 12 month period. The offence concerned in each case was different, being an offence against the POEO Act instead of an offence against the EPA Act, and the maximum penalty for the offence was less, $1 million, instead of $2 million for the offence against the EPA Act. The objective and subjective circumstances of the offences and the offenders involved in the cases also differed from the offence and offender involved in this case.

71. Wollongong Recycling distinguished the sentences imposed in those cases for these reasons. Wollongong Recycling instead referred to the sentence imposed in Environment Protection Authority v Wyanga Holdings; Environment Protection Authority v Cauchi [2015] NSWLEC 78, another case involving an offence against s 64(1) of the POEO Act. This time, the offences involved breaches of a condition of the environment protection licence that limited the amount of material that could be extracted from a quarry to 50,000 tonnes. There were multiple charges against multiple offenders (3 charges against 3 offenders) for different charge periods, with different exceedances of the extraction limit. In the first charge period, 96,597 tonnes were extracted, in the second charge period, 368,363 tonnes were extracted, and in the third charge period, 81,572.07 tonnes were extracted, all in excess of the 50,000 tonnes limit. The objective and subjective circumstances of the offences and the offenders were quite different to the offence and offender involved in this case. Fines for the offences against s 64(1) of the POEO Act of $75,000, $3,000 and $3,000 were imposed on the three offenders respectively.

68. I have considered these sentences imposed for the different offence against the POEO Act and the objective and subjective circumstances of the offences and the offenders involved in each of these cases that led the sentencing judge to impose those sentences. The amounts of the fines imposed in those case vary considerably, depending on the particular facts found about the objective and subjective circumstances of the offence and the offender involved and any other component of the sentence (such as the amount of costs ordered).

69. It is not a useful exercise to compare only the amount of the fine imposed in each of those cases with the amount of the fine I consider to be appropriate in the present case. They are different but that is because the circumstances are different. The offences, the maximum penalties for the offences, and the objective and subjective circumstances of the offences and the offenders are all different to the present case.

70. Furthermore, the more appropriate yardstick against which the sentence in this case should be compared is the maximum penalty set by Parliament for the offence under s 125(1) of the EPA Act of $2 million, in the case of a corporation, rather than the amounts of the fines imposed in those cases.

The appropriate penalty

75. Synthesising all of the relevant objective and subjective circumstances of the offence and Wollongong Recycling as the offender, and considering the relevant purposes of sentencing, I consider the appropriate monetary penalty for the offence is $48,000. This amount should be discounted by 25% for the utilitarian value for the plea of guilty. This makes the amount $36,000.

Moiety of the fine and costs ordered

76. The prosecutor seeks an order pursuant to s 122(1) of the Fines Act 1996 directing the payment of one half of any fine imposed upon Wollongong Recycling to the prosecutor. This was not opposed by Wollongong Recycling. The Court has power to make such an order under s 122(2) of the Fines Act 1996: see Chief Executive, Office of Environment and Heritage v Brummell at [103]-[112]. In the circumstances of this case, I consider it is appropriate to exercise the power under s 122(2) of the Fines Act 1996 to direct that one half of the fine imposed be paid to the prosecutor.

77. The prosecutor also seeks an order for costs under s 257B of the Criminal Procedure Act 1986. The parties have agreed on the amount of the costs as $26,000.

Publication order

78. The prosecutor sought an order under 250(1)(a) of the POEO Act, which applies in sentencing for an offence against the EPA Act (see s 9.56(2A) of the EPA Act), that Wollongong Recycling publicise the offence, including the circumstances of the offence and its consequences, and the monetary penalty imposed and other orders made against Wollongong Recycling. The parties have agreed on the terms of the notice that should be published. I consider some minor adjustment to the wording should be made to reflect my findings. The parties have agreed that the notice should be published, first, in a newspaper circulating in the region (Illawarra Mercury), secondly, in a trade magazine (Inside Waste), and thirdly on the website of the parent company of Wollongong Recycling, Bingo Industries Ltd.

79. Although Wollongong Recycling agreed on the form of the notice and where it should be published, if a publication order were to be made, it nevertheless maintained that it was inappropriate for a publication order to be made. It submitted that a publication order would be disproportionate to the seriousness of the offence and would serve no useful purpose of general or specific deterrence.

80. I consider that a publication order should be made. The offence committed by Wollongong Recycling, in carrying out development not in accordance with a condition of the development consent, is a prevalent type of offence. As earlier stated, the system of planning and development control under the EPA Act depends on persons taking steps to obey the law by, first, ascertaining when development consent is required, secondly, obtaining development consent before carrying out development, and thirdly, carrying out development in accordance with the conditions of development consent. In order for this system to operate effectively, people who intend to or do carry out development must be aware of what is the law and warned of the consequences if they fail to obey the law. Publication of the detection, prosecution and punishment of persons who disobey the law by committing offences against the EPA Act promotes this awareness of the law and general deterrence from disobeying the law.

81. As I observed in Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [76], the main purpose of publicising the detection, prosecution and punishment of an offender for an offence is to improve the effectiveness of general deterrence. People and businesses need to be aware that the offence of carrying out development not in accordance with a development consent is a crime, that offenders will be prosecuted and that courts will impose significant penalties on offenders. By such awareness, people and businesses will be deterred from committing the offence. However, in order to achieve this purpose of deterrence, notice must be published in publications and other media accessed by the people who are to be deterred. The offence of carrying out development without obtaining or not in accordance with a development consent is committed widely and not only in a particular industry. Publication of the notice, therefore, needs to be widespread, as well as in the particular industry. Publication in both a regional newspaper and a trade publication is therefore appropriate in this case.

82. The parties also agreed that, if a publication order is made, notice should be given on the website of Wollongong Recycling’s parent company, Bingo Industries Ltd. This was the approach adopted in Environment Protection Authority v Whitehaven Coal Mining Ltd [2019] NSWLEC 27 at [273].

Orders

83. The Court makes the following orders:

1. Wollongong Recycling (NSW) Pty Ltd is convicted of the offence against s 76A(1)(b) and s 125(1) of the Environmental Planning and Assessment Act 1979 as charged.

2. Wollongong Recycling (NSW) Pty Ltd is fined $36,000.

3. Pursuant to s 122(2) of the Fines Act 1996, one half of the fine imposed by order (2) is to be paid to the Secretary, Department of Planning, Industry and Environment (the prosecutor).

4. Wollongong Recycling (NSW) Pty Ltd is ordered to:

1. at its expense, cause a notice in the form of Annexure A to this order, at a minimum size of 9cm x 12cm, to be placed within the first 10 pages of:

1. Illawarra Mercury, within 28 days of the date of this order;

2. Inside Waste, within 60 days of the date of this order;

2. within 28 days of the date of this order, cause a notice in the form of Annexure A to this order to be placed on the website

5. Within 75 days of the date of this order, Wollongong Recycling (NSW) Pty Ltd is to provide to the prosecutor a complete copy of the pages of the publications and website in which the notices have appeared pursuant to order (4)(a) and (b).

6. Pursuant to s 257B of the Criminal Procedure Act 1986, Wollongong Recycling (NSW) Pty Ltd is to pay to the Registrar of the Land and Environment Court, for payment to the prosecutor, the prosecutor’s costs of the proceeding in the amount of $26,000.

Annexure A (58772, pdf)

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Amendments

08 February 2021 - Correction to typographical error in order (1).

Decision last updated: 08 February 2021