Environment Protection Authority v ACE Demolition & Excavation Pty (No 2) [2023] NSWLEC 3

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v ACE Demolition & Excavation Pty (No 2) [2023] NSWLEC 3 Hearing dates: 25, 26, 27, 28 and 29 July; 1, 2, 3 and 23 August 2022 Date of orders: 2 February 2023 Decision date: 02 February 2023 Jurisdiction: Class 5 Before: Moore J Decision: See orders at [274] to [278] Catchwords: SENTENCE ‑ Defendant charged with three offences pursuant to s 144AA(2) of the Protection of the Environment Operations Act 1997 (the POEO Act) for transmitting information concerning waste during the course of dealing with waste where the information was false or misleading in a material respect and the Defendant knew that it was false or misleading ‑ Defendant also charged with one offence pursuant to s 144AA(1) of the POEO Act of transmitting information concerning waste during the course of dealing with waste where that information was false or misleading in a material respect ‑ Defendant pleads guilty to all four charges after eight day trial ‑ charges against Defendant's sole director withdrawn ‑ consideration of objective factors concerning the Defendant's offending conduct ‑ consideration of the Defendant's subjective factors ‑ appropriate starting penalties for each s 144AA(2) offence of $330,000 ‑ appropriate starting penalty for single offence under s 144AA(1) of $165,000 ‑ consideration of appropriate discount for guilty pleas ‑ guilty pleas made late but not so late as to disentitle Defendant to some discount for the utilitarian value of the pleas ‑ appropriate discount to be applied to each penalty of 10% ‑ consideration of totality and accumulation of penalties where offences arose from a single course of conduct ‑ appropriate to moderate the penalties for the second and subsequent offences ‑ Prosecutor seeks publication order ‑ Defendant opposes making of publication order ‑ appropriate to make publication order ‑ Prosecutor seeks moiety of penalties imposed ‑ moiety order not opposed by Defendant ‑ moiety of penalties ordered to be paid to the Prosecutor ‑ total penalty imposed on Defendant of $943,650 COSTS ‑ Prosecutor seeks order for costs ‑ order for costs not opposed by Defendant ‑ Defendant ordered to pay the Prosecutor's costs of the proceedings against the Defendant as agreed or assessed Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22 and 32 Criminal Procedure Act 1986, ss 257B and 257G Environmental Planning and Assessment Act 1979, Pt 4, Div 4.3, Div 4.15 and Div 4.17 Fines Act 1996, s 122 Protection of the Environment Operations Act 1997, ss 3, 144AA, 169C, 241, 250(1)(a) and 260 Protection of the Environment Operations (Waste) Regulation 2014 Evidence Act 1995, ss 128(7) and 128A(8) Cases Cited: Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9 Burwood Council v Pratelli [2014] NSWLEC 28 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185 Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 44 Environment Protection Authority v ACE Demolition & Excavation Pty Ltd; Allam [2022] NSWLEC 45 Environment Protection Authority v Afram [2022] NSWLEC 38 Environment Protection Authority v Allam [2021] NSWLEC 103 Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7 Environment Protection Authority v Al‑Sarray [2022] NSWLEC 31 Environment Protection Authority v Barnes (2006) NSWCCA 246 Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott [2016] NSWLEC 167 Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75 Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) [2020] NSWLEC 166 Environment Protection Authority v Mouawad (No 3) [2021] NSWLEC 16 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Markarian v R (2005) 229 CLR 357; [2005] HCA 25 Mohindra v R [2020] NSWCCA 340 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Chan [2000] NSWCCA 345 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v O'Neill (1979) 2 NSWLR 582 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54 Category: Sentence Parties: Environment Protection Authority (Prosecutor) ACE Demolition & Excavation Pty Ltd (Defendant) Representation: Counsel: Mr D Buchanan SC/Ms F Graham, barrister (Prosecutor) Mr J Potts SC/Ms K Morris, barrister (Defendant)