Land and Environment Court New South Wales Medium Neutral Citation: Georges River Council v SAF Developments Pty Ltd [2023] NSWLEC 50 Hearing dates: 6 March 2023 Date of orders: 10 May 2023 Decision date: 10 May 2023 Jurisdiction: Class 5 Before: Pepper J Decision: See orders at [147]. Catchwords: ENVIRONMENTAL OFFENCES: carrying out development contrary to consent – unlawful transportation or depositing of waste – pleas of guilty – sentencing principles – extent of environmental harm – state of mind during the commission of the offences – whether state of mind of project manager could be attributed to company – totality principle applied – comparable cases – fine imposed – publication order made. Legislation Cited: Criminal Procedure Act 1986, ss 257B, 257G Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22 Environmental Planning and Assessment Act 1979, ss 1.3, 3, 4.2, 9.53 Fines Act 1996, ss 6, 122 Protection of the Environment Operations Act 1997, ss 3, 115, 143, 144, 144AA, 241, 250 Waste Avoidance and Resource Recovery Act 2001, s 3 Cases Cited: Aland B & W Pty Ltd v Blacktown City Council [2023] NSWLEC 13 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38 Burwood Council v Abdul Rahman [2021] NSWLEC 46 Burwood Council v Abdul-Rahman (No 2) [2017] NSWLEC 177 Burwood Council v Doueihi [2013] NSWLEC 196; (2013) 200 LGERA 152 Burwood Council v Pratelli [2014] NSWLEC 28 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 Carlino v Leichardt Municipal Council [2005] NSWLEC 198 Chahoud v Penrith City Council [2020] NSWLEC 167 Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150 Chief Executive Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241 Cowra Shire Council v Fuller [2015] NSWLEC 13 Croaker v R [2008] NSWCCA 232; (2008) 190 A Crim R 15 Cumberland Council v Habib [2017] NSWLEC 18 Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 Environment Protection Authority v Alcobell; Campbell [2015] NSWLEC 123 Environment Protection Authority v Ashmore [2014] NSWLEC 136 Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 2) [2020] NSWLEC 98 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Causmag Ore Co Pty Ltd [2015] NSWLEC 58 Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 Environment Protection Authority v Hanna [2010] NSWLEC 98 Environment Protection Authority v Hughes [2019] NSWLEC 108 Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 Environment Protection Authority v Pannowitz; Steepleton Pty Ltd [2005] NSWLEC 175 Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220 Environment Protection Authority v Rands [2019] NSWLEC 23 Environment Protection Authority v Ravensworth Operations Pty Limited [2012] NSWLEC 222 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Beltrame [2023] NSWLEC 18 Great Lakes Council v Spalding [2011] NSWLEC 257 Harris v Harrison [2014] NSWCCA 84 Hijazi v Georges River Council [2020] NSWLEC 36 Hills Shire Council v Suciu (No 3) [2009] NSWLEC 192 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Ku-ring-gai Council v Baynie [2017] NSWLEC 172 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Pesic v Sutherland Shire Council [2019] NSWLEC 38 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Port Macquarie-Hastings Council v David Peter Waite (No 2) [2020] NSWLEC 60 Port Macquarie-Hastings Council v Waite (No 2) [2020] NSWLEC 60 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Dodd (1991) 57 A Crim R 349 R v MAK; R v K [2006] NSWCCA 381; 167 A Crim R 159 R v Nichols (1991) 57 A Crim R 391 R v Oliver (1980) 7 A Crim R 174 at 177 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd & Kinnarney (No 2) [2012] NSWLEC 95 The Hills Shire Council v Suciu (No 3) [2009] NSWLEC 194 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: Georges River Council (Prosecutor) SAF Developments Pty Ltd (Defendant) Representation: Counsel: M Seymour with R Coffey (Prosecutor) L Sims (Defendant) Solicitors: Makinson d'Apice Lawyers (Prosecutor) Wilshire Webb Staunton Beattie (Defendant) File Number(s): 2021/244133 2021/244135 Publication restriction: Nil JUDGMENT SAF Developments Pty Ltd Pleads Guilty to Two Offences 1. The defendant, SAF Developments Pty Ltd ("SAF Developments"), has pleaded guilty to two offences in respect of conduct committed between 1 July 2019 and 27 August 2019, at 9 Nellella Street, Blakehurst ("9 Nellella St"): 1. one count of carrying out development not in accordance with consent, contrary to s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 ("EPAA") ("the unlawful development offence"); and 2. one count of unlawful transporting or depositing of waste, contrary to s 143 of the Protection of the Environment Operations Act 1997 ("POEOA") ("the transport waste offence"). 1. In respect of the unlawful development offence the salient particulars are that: 1. between 1 July and 27 August 2019, SAF Developments carried out development on land at 93 Connells Point Road, South Hurstville ("93 Connells Point"); 2. the development was carried out contrary to a condition of the complying development certificate that required waste material to be disposed of at a waste management facility; and 3. SAF Developments deposited approximately 27 tonnes of building and demolition waste from the development at the premises at 9 Nellella St, which was not a waste management facility. 1. In respect of the transport waste offence the material particulars of this charge are that: 1. between 1 July and 27 August 2019, SAF Developments caused or permitted a quantity of building and demolition waste to be transported to the premises at 9 Nellella St and deposited it into an empty swimming pool; and 2. those premises could not be lawfully used as a waste facility for the waste because there was no development consent that authorised the deposit of building and demolition waste at the premises. The Legislative Regime Creating the Offences 1. Section 4.2(1) of the EPAA creates an offence of carrying out a development on land without development consent, in accordance with the consent and the environmental planning instrument: 4.2 Development that needs consent (cf previous s 76A) (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless— (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. 1. Section 143 of the POEOA creates an offence for the unlawful transporting or depositing of waste: 143 Unlawful transporting or depositing of waste (1) Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported— (a) the person, and (b) if the person is not the owner of the waste—the owner of the waste, and (c) if the waste is transported in a vehicle and the person is not the owner of the vehicle—the owner of the vehicle, are each guilty of an offence… SAF Developments Carries Out Development at 93 Connells Point 1. Many of the facts forming the basis of this sentencing decision were agreed to by parties in an agreed statement of facts ("ASOF"). 2. SAF Developments is a company registered under the Corporations Act 2001 (Cth). It is in the business of building and development and holds a current contractor licence with NSW Fair Trading. 3. On 1 October 2018 SAF Developments was engaged as the principal contractor to carry out the development of 93 Connells Point. 4. 93 Connells Point is located within the R3 – Medium Density Residential zone, under the Georges River Local Environmental Plan 2021 ("the LEP"). 5. 9 Nellella St is located within the R2 – Low Density Residential Zone under the LEP. 6. On 15 October 2018 Rianda Barnes of Granda Consulting issued complying development certificate CDC2018/0417 ("the CDC") for the demolition of an existing dwelling and ancillary structures, and the construction of a two-storey dwelling, swimming pool, front brick fence and landscaping. 7. The CDC included the following relevant condition of consent: 9 Maintenance of site (1) All materials and equipment must be stored wholly within the work site unless an approval to store them elsewhere is held. (2) Waste materials (including excavation, demolition and construction waste materials) must be managed on the site and then disposed of at a waste management facility. (3) Any run-off and erosion control measures required must be maintained within their operating capacity until the completion of the works to prevent debris escaping from the site into drainage systems, waterways, adjoining properties and roads. (4) During construction: (a) all vehicles entering or leaving the site must have their loads covered, and (b) all vehicles, before leaving the site, must be cleaned of dirt, sand and other materials, to avoid tracking these materials onto public roads. (5) At the completion of the works, the work site must be left clear of waste and debris. 1. A waste management plan forming part of the CDC provided a schedule for the destination of the excavation material, bricks, concrete and timber waste. For material that was unable to be reused or recycled, the waste management plan stated that it was to be disposed of at "Dial-A-Dump Industries". 2. On 22 October 2018 SAF Developments commenced work at 93 Connells Point in accordance with the CDC. SAF Developments Transports and Deposits Waste at 9 Nellella St 1. 9 Nellella Street was owned and occupied by Gladys Aarons and her adult son. Aarons is 92 years old. 2. In May 2019, Aarons attended 93 Connells Point and approached Tarik Sayadi, a contractor for SAF Developments, to enquire about receiving some fill from the development work at 93 Connells Point to fill her pool at 9 Nellella St. 3. On 24 May 2019, Jihad Dabliz, the Project Manager employed by SAF Developments, attended 9 Nellella St and spoke with Aarons regarding her conversation with Sayadi. Aarons confirmed that she wanted to fill her pool and turn it into a grass area because the pool had been empty for some time. Aarons took Dabliz to her porch which overlooked the pool. Dabliz noticed that the pool was partially filled with green murky water. He advised that he would consider the request and get back to Aarons. 4. On 27 May 2019, Dabliz again attended 9 Nellella St and spoke with Aarons. He agreed to provide fill from 93 Connells Point. It was agreed that SAF Developments would fill the pool with clean building material, place a layer of topsoil over the fill, and lay down some turf, all free of charge. It was also agreed that SAF Developments would restore or make good any fencing removed to provide access to the pool from the road. 5. On 2 July 2019, Dabliz attended 9 Nellella St and spoke with Aarons. They agreed that SAF Developments would commence filling the pool the following morning. 6. The next day, SAF Developments arrived at 9 Nellella St, removed part of the front fence to provide access and commenced transporting building waste and soil from 93 Connells Point by truck and depositing it as fill into the pool. Between 3 July and 27 August 2019, SAF Developments transported approximately 27 tonnes of building and demolition waste and soil from 93 Connells Point by truck to 9 Nellella St and deposited the material into the pool. 7. 9 Nellella St did not have development consent authorising the deposit of the building and demolition waste at the premises. 8. On 25 August 2019, Aarons's daughter, Cate Aarons, attended 9 Nellella St and observed that the pool had been partially filled with the building and demolition waste. On 28 August 2019, she telephoned the Environment Protection Authority ("EPA") to report the depositing of the building and demolition waste into the pool. The EPA and Georges River Council Inspect 9 Nellella St 1. On 5 September 2019, the EPA issued to SAF Developments a Notice to Provide Information and/or Records. 2. On 9 September 2019, officers of the EPA attended 9 Nellella St and conducted an inspection and obtained three samples of the building and demolition waste material from the pool: samples ID 190488, 190489 and 190490. The certificate of analysis reported each sample as "no asbestos detected" and "organic fibre detected". 3. On 16 September 2019, SAF Developments advised the EPA that the reason for the truck attending 9 Nellella St on 27 August 2019 was "to place uncontrolled and uncontaminated fill into the concrete swimming pool at the premises with the consent and knowledge of the owner/occupier of the premises". 4. On 11 October 2019, Cate Aarons telephoned the Customer Service Centre of the Georges River Council ("the Council") to report the depositing of the building and demolition waste into the pool at 9 Nellella St. That same day, an officer of Georges River Council conducted an inspection of the premises. 5. Between 26 May 2020 and 3 August 2021, the Council issued a number of notices of intention to issue development control orders ("the control orders") under the EPAA on Aarons and SAF Developments. The control orders relevantly required the removal of the building and demolition waste from the pool at 9 Nellella St. 6. On 25 August 2021, the Council commenced proceedings against SAF Developments by way of summonses in this Court. 7. In September 2021, SAF Developments removed all of the building and demolition waste from the pool at 9 Nellella St in accordance with the terms of the control orders. Evidence Relied Upon by the Parties 1. In addition to the ASOF, the parties tendered the following evidence: 1. a bundle of documents, including aerial photographs of the residential context of 9 Nellella St, photographs of the deposited construction and demolition waste in Aarons's pool, Georges River Council's notes, photographs and file note from its inspection, the CDC relating to 93 Connells Point and Dabliz's reply to EPA's Notice to Provide Information; and 2. four certificates of conviction for four offences committed by SAF Development on 14 May 2018, for the carrying out development contrary to development consent. Sentencing Principles The Purposes of Sentencing 1. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"): 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. Statutory Matters to be Taken into Account in Sentencing 1. Subsections 21A(2) and (3) of the CSPA set out aggravating and mitigating factors that the Court must consider. Relevant to the facts of these pleading 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– … (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), … (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim's occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant), … (o) the offence was committed for financial gain… The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (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, … (e) the offender does not have any record (or any significant record) of previous convictions, (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), … (m) assistance by the offender to law enforcement authorities (as provided by section 23)… 1. The Court is also required to take into account matters set out in s 241 of the POEOA, which relevantly include: 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, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee, (f) the presence of asbestos in the environment. (2) The court may take into consideration other matters that it considers relevant. 1. The appropriate sentence for SAF Developments is to be determined by an instinctive synthesis of all the relevant objective and subjective circumstances of the offences with which it is charged (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357). 2. Importantly, the sentence to be imposed on SAF Developments for the commission of the offences must be proportionate to both its objective seriousness or gravity and its 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). 3. SAF Developments submitted that its offences were in the low range of objective seriousness. 4. The Council contended that the offences were objectively very serious and at the upper end of the range. 5. For the reasons that follow, I find that the seriousness of the offences lie at the middle of the low end objective seriousness. Objective Circumstances of the Offences 1. 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 committed, considered in light of its objective circumstances (Veen v The Queen (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). 2. The objective seriousness is to be determined by reference to the nature of the offences and not by reference 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 Offences 1. 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] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]). 2. The objectives of the EPAA and the POEOA, and the degree to which the conduct offended against those legislative objectives, should therefore be considered. 3. In respect of the unlawful development offence, the Court must consider the objectives of the EPAA as relevantly set out in s 1.3 of that Act: 1.3 Objects of Act The objects of this Act are as follows— (c) to promote the orderly and economic use and development of land, … (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,… 1. The Council emphasised, with which I agree, that compliance with conditions of a development's CDC is integral to the planning system (Carlino v Leichardt Municipal Council [2005] NSWLEC 198 at [32] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242 at [105]). By carrying out development contrary to a condition of a CDC, SAF Developments circumvented the integrity of the planning system and the "careful, expert consideration" that would otherwise have taken place in assessing the development application for the disposal of the material anywhere other than at a waste management facility (Great Lakes Council v Spalding [2011] NSWLEC 257 at [105]). 2. The CDC mandated the disposal of waste at a waste management facility and the waste management plan provided a schedule for the disposal of material, bricks, concrete and timber waste. The premises at 9 Nellella St were outside the scope of both the CDC and the waste management plan. By improperly disposing of the building and demolition waste, SAF Developments undermined the EPAA's promotion of the proper construction of buildings. 3. In respect of the transport waste offence, the objects of the POEOA set out in s 3 of that Act relevantly state: 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, (b) to provide increased opportunities for public involvement and participation in environment protection, … (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,… … (g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001. 1. Section 3 of the Waste Avoidance and Resource Recovery Act 2001 relevantly provides that: 3 Objects of Act The objects of this Act are as follows— … (e) to ensure that industry shares with the community the responsibility for reducing and dealing with waste, … (g) to achieve integrated waste and resource management planning, programs and service delivery on a State-wide basis,… 1. I find that the conduct of SAF Developments sought to thwart the objectives of the POEOA and the Waste Avoidance and Resource Recovery Act 2001 by handling the waste improperly and failing to take proper responsibility for it. Maximum Penalty 1. The maximum penalty provided for an offence is an indicator of Parliament's view as to the seriousness of that offence and provides a sentencing yardstick to measure the relevant features of the offences for which SAF Developments 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 698; and Rawson at [57]). SAF Developments's offending should be examined in this light (Perdikaris at [49]). 2. In respect of the unlawful development offence under s 4.2(1)(b) of the EPAA, s 9.53(1) provides that the maximum penalty for a Tier 2 penalty: 9.53 Maximum penalty—Tier 2 (1) If Tier 2 is specified as the maximum penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and liable to a penalty not exceeding— (a) in the case of a corporation— (i) $2 million, and (ii) for a continuing offence--a further $20,000 for each day the offence continues, or… 1. Because the Council did not submit that this was a Tier 1 offence, the maximum penalty for SAF Developments is therefore for a Tier 2 penalty, namely, $2,000,000. 2. In respect of the transport of waste offence under s 143 of the POEOA, the legislation relevantly states as follows: 143 Unlawful transporting or depositing of waste (1) Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported— … Maximum penalty— (a) in the case of a corporation—$2,000,000 (if the offence involves asbestos waste) or $1,000,000… 1. The maximum penalty for this offence is therefore $1,000,000. State of Mind of SAF Developments During the Commission of the Offences 1. Offences under s 4.2(1)(b) of the EPAA and s 143 of the POEOA are that of strict liability. Intention is not an element of the offences. But the state of mind of SAF Developments in the commission of the offences is nevertheless relevant to the question of penalty, subject to the application of the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 (at 389 and see generally the discussion in Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [143]-[168]). 2. Thus if the circumstances of the offences for which SAF Developments has been convicted are such that he could have been found guilty of a more serious form of the offence for which he is to be punished, then those facts cannot be relied upon as a factor in aggravation in sentencing (Croaker v R [2008] NSWCCA 232; (2008) 190 A Crim R 15 at [14] and Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38 at [50]). I cannot therefore sentence SAF Developments for the more serious Tier 1 offence under the EPAA, or the offence under s 115 of the POEOA, both of which incorporate an element of intention and carry a higher maximum penalty. 3. However, the Court can have regard to SAF Developments's mental state in its assessment of its overall culpability, which is relevant to its assessment of the objective seriousness of the commission of the offences (Aland B & W Pty Ltd v Blacktown City Council [2023] NSWLEC 13 at [87], Sydney Water Corporation at [158] to [159] and [167] and Barlow at [57]). 4. The Council submitted that the conduct and state of mind of Dabliz should be attributed to SAF Developments, and that his state of mind in respect of both offences was intentional. That is, through the actions of Dabliz, the Project Manager, the corporation had sufficient attributed knowledge to understand that the residence of Aarons was not an appropriate place for transporting and depositing the waste, but committed the offences anyway. 5. SAF Developments contended that there is a difference between accepting vicarious liability for the acts of an employee of a company, and attributing the actions and the state of mind of that employee to that of the company. It submitted that there was no evidence to establish that Dabliz's state of mind can be attributed to the company, and that in any event, he did not commit the offences intentionally, negligently, or recklessly. 6. Pain J identified the principles of attribution for the statutory liability of a corporation in Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 2) [2020] NSWLEC 98 where she stated (at [37] to [38]): 37 When determining whether the mental state or conduct of a person should be attributed to a corporation, it is necessary to identify the "rules of attribution" (Director General, Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270 (MT) at [19] (Spigelman CJ, Ipp JA and Hunt AJA agreeing), citing Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 at 506 (Lord Hoffmann); Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 (Wollondilly Abattoirs) at [19] (Brereton JA, Harrison J and Bellew JJ agreeing). In many cases, the conduct of persons in actual control of particular operations of the company will constitute the company for particular statutory purposes (MT at [17]; Wollondilly Abattoirs at [20]). In Tesco Supermarkets Ltd v Nattrass [1972] AC 153 (Tesco) at 170 (Lord Reid) cited in Hamilton v Whitehead (1988) 166 CLR 121; [1988] HCA 65 at 127 (Mason CJ, Wilson and Toohey JJ) said that a company may also be liable for an act performed by a person if the person is: …acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. 38 Where the question is one which involves the statutory liability of a corporation, the terms of the statute are critical to determining whether a person's conduct or state of mind may be attributed to the corporation (Wollondilly Abattoirs at [14]; Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186 (Kojic) at [100] (Edelman J)). Section 169C(1) of the POEO Act provides that "without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind". "State of mind" is defined in s 169C(2) to include the "knowledge, intention, opinion, belief or purpose of the person" and "the person's reasons for the intention, opinion, belief or purpose". 1. Therefore, the central inquiry is whether the conduct and state of mind of Dabliz can be attributed to SAF Developments. Depending on the resolution of the first issue, a secondary question may arise as to the state of mind of Dabliz at the time of the commission of the offences. 2. No rule of attribution whatsoever was identified by the Council. Rather it was assumed by the Council that Dabliz's state of mind could be attributed to SAF Developments on the basis that he was the Project Manager. It pointed to the following factors as evidence of Dabliz's ability to make decisions on behalf of the company: 1. he attended the property and agreed to provide the fill, and had the capacity to cause the relevant conduct to occur by transporting and depositing the waste; 2. he responded to the EPA's notice to provide information, which demonstrated that he had the level of authority to respond on behalf of the company to formal notices and communicate about the events that had occurred; 3. there was a truck log sheet which included a record of taking the building and demolition waste to the pool, demonstrating that SAF Developments knew where the employees were "in that disparate sense of the brain knows where its fingertips are" (T5:13-14); and 4. he was the Project Manager, which was a role that was supervisory in terms of managing the project and its employees. 1. SAF Developments contended that this evidence was insufficient to establish him as the controlling mind of the corporation; instead, it submitted that the controlling mind of the corporation was Safwan Adbulrahman, the secretary and director of SAF Developments who appeared at the Court hearing. It accepted that Dabliz had a degree of responsibility in the management of projects, but submitted that the Court could not draw any further inference in the absence of more information. 2. I agree. Although Dabliz held a degree of control over the project, this did not establish that he was so centrally concerned with the corporation's operations that he could be considered a directing mind or will of that entity. Dabliz was an employee. While he has a degree of responsibility for the management of the project there is insufficient evidence to support a finding beyond reasonable doubt that he was the controlling mind or embodiment of the company. 3. In any event, there is insufficient evidence to the criminal standard that SAF Developments knew of the conditions of the CDC and its waste management plan or knew that the Aarons residence was not an appropriate place for the transportation of the building waste, and that it determined to transport the waste there anyway notwithstanding this knowledge. 4. In the alternative, the Council submitted that the offences were committed recklessly. 5. An offender's conduct will be found to be reckless if they are put on notice, in the sense that they believe or suspect that an act or omission may be unlawful, but nevertheless proceed to engage in it without making further enquiries (see also Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 at [136], citing Chief Executive Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126]; Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150 at [141] and Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 at [171]). The test for recklessness is subjective (Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241 at [51]). 6. Again, in my view, the Council has failed to discharge its onus of proving to the requisite degree that SAF Developments was put on notice or suspected or believed that the placement of fill in Aarons's disused swimming pool was unlawful. That both SAF Developments and Aarons believed that no consent was necessary or that, in the case of SAF Developments, consent had been obtained, cannot be discounted. SAF Developments readily disclosed its conduct to the regulatory authorities at all material times. 7. I therefore make no finding as to the state of mind of SAF Developments during the commission of the offences. Environmental Harm Caused or Likely to be Caused by the Commission of the Offences 1. The extent of the harm caused, or likely to be caused, to the environment by the commission of the offences is a relevant sentencing consideration under s 241(1)(a) of the POEOA. The dictionary to the POEOA defines "harm to the environment" to include "any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution". 2. In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[148], Preston J opined that the concept of environmental harm encompasses: 145 Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account… Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. … 147 Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously. 148 The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty.... 1. The Council submitted that there was "non-significant but non-trivial" environmental harm caused to Aarons's amenity. It also submitted that as a matter of inference that SAF Developments had disturbed the amenity of the immediate neighbours by virtue of the fact that the amount of the building and demolition waste was sizeable (27 tonnes), which was deposited in the pool over several deliveries over a period of time. 2. SAF Developments contended that to the extent that there was any environmental harm, it has now been remedied in the clean-up and was short-lived in any event. 3. Both submissions may be accepted. To the extent that there was any noise and visual amenity impact to either Aarons or her neighbours, it was short lived. There were also no direct viewpoints where a neighbour could observe the waste. Rather, there were high Colorbond and other fences and trees and vegetation in surrounding backyards which would have provided visual screening (T17:50-18:14). 4. Regarding any noise impacts, I find that the noise generated by the unlawful development would have been consistent with a typical level of noise accompanying development that ordinarily happens in residential suburbs on any given day. 5. Moreover, there was also no public safety issue because the building and demolition waste was 'clean' insofar as it did not contain asbestos. 6. However, I do accept that there was harm done to the regulatory system through the non-compliance with the CDC. 7. The environmental harm occasioned by the offences was therefore minor and temporary. Reasonable Foreseeability of Environmental Harm 1. The extent to which SAF Developments could have reasonably foreseen the risk of harm caused by the commission of the offences is a relevant objective circumstance in determining an appropriate sentence (Camilleri's Stock Feeds at 700 and Rawson at [48]. See also s 241(1)(c) of the POEOA). 2. I agree that to the extent that minor environmental harm was occasioned by the commission of the offences, it would have been reasonably foreseeable to SAF Developments. SAF Developments's Reasons for Committing the Offences 1. The objective seriousness of the offences may also be measured by reference to the reason for their commission (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366; Gittany at [140]-[141]; Bentley at [237], [246]-[247] and Rae at [47]). Offences committed for financial gain increase their objective gravity (CSPA s 21A(2)(o)). 2. The Council contended that the Court should infer that the offences were committed for financial gain, namely, to reduce its total cost for the associated fee of transporting the waste to a licensed facility, as required by the CDC and the waste management plan (citing The Hills Shire Council v Suciu (No 3) [2009] NSWLEC 194 at [51]). 3. However, SAF Developments noted that the waste management plan for the development contemplated some of the materials that was included in the building and demolition waste (including excavation material, bricks, concrete and tiles) to be re-used on-site, sold to a demolition contractor, or recycled to external recyclers. There was no evidence that there was a fee involved in transporting materials to recyclers. 4. In my opinion, there is no evidence whatsoever to the criminal standard that the materials were inevitably destined for a waste facility or that SAF Development had committed the offences to save money. Aarons requested the waste material to be transported to her residence to fill her disused swimming pool and SAF Developments agreed to the request. This may be contrasted with the offender in Suciu who dishonestly and deceptively dumped the waste on the property of a third party against the owner's instructions. Was Aarons a "Victim" or "Vulnerable"? 1. A matter that arose for the Court's consideration was whether Aarons could be considered a "victim" or "vulnerable" for the purposes of s 21A(2)(l) of the CSPA. That provision states: 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— … (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim's occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant)… 1. The Council submitted that by reason of Aarons's age (92 years), she ought to be considered vulnerable for the purposes of this provision. By contrast, SAF Developments contended that vulnerability must not be found merely on the basis of Aarons having that characteristic because not all old people are vulnerable. 2. I find that in the absence of any evidence as to her capacity, vulnerability cannot be established for the purpose of this aggravating factor. She had the mental capacity to approach Dabliz in order to fill her disused swimming pool for zero fees. This speaks neither to vulnerability nor victimhood. There is no evidence of SAF Developments exploiting her by, for example, going outside the scope of her instructions for its own benefit. 3. The fact that Aarons's daughter took a different view and immediately called the EPA to alert them of the circumstances has limited bearing in the absence of any further evidence on whether Aarons was vulnerable or a victim for the purposes the CSPA. Control over the Causes of the Commission of the Offences 1. SAF Developments had direct control over the causes of the commission of the offences at all times. It could have read the conditions of its CDC at any time and did not do so. It had complete control over the transport and deposition of the relevant building and demolition waste. Practical Measures to Prevent or Mitigate the Environmental Harm 1. The appropriate practical measure that could have been taken by SAF Developments was to read and understand its CDC conditions and to check whether the transportation and deposition of the building waste to a residential property absent consent was lawful. Neither was done. Presence of Asbestos in the Environment 1. There was no asbestos contained in the building and demolition waste deposited at 9 Nellella St for the purposes of s 241(1)(f) of the POEOA. Conclusion on Objective Seriousness 1. Having regard to the objective factors surrounding the commission of the offences, I find the commission of both offences to be at the middle of the low end of objective seriousness. SAF Developments's Subjective Circumstances 1. A proportionate sentence requires the Court to take into account any aggravating and mitigating factors that are personal to SAF Developments (s 21A(3) of the CSPA). Relevant subjective circumstances include: 1. whether the loss, damage or injury was substantial (s 21A(3)(a) of the CSPA); 2. whether SAF Developments entered its guilty plea at the earliest available opportunity (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]); 3. whether SAF Developments has demonstrated remorse for the commission of the offences (s 21A(3)(i) of the CSPA and see the remarks by Preston J in Waste Recycling and Processing Corporation at [203]-[215]); 4. whether SAF Developments provided assistance to the regulatory authorities in the investigation and prosecution of the offence (ss 21A(3)(m) and 23 of the CSPA); 5. whether SAF Developments is of good character (s 21A(3)(f) of the CSPA); 6. whether SAF Developments has a prior criminal record (s 21A(3)(e) of the CSPA); and 7. SAF Developments's likelihood of reoffending and its prospects of rehabilitation (s 21A(3)(g) and (h) of the CSPA). The Loss, Damage or Injury Was Not Substantial 1. The loss, damage or injury caused by the commission of the offences was not substantial, especially in circumstances where SAF Developments has removed the waste from the Aarons residence (s 21A(3)(a) of the CSPA). Early Guilty 1. A plea of guilty by an offender is a mitigating circumstance that the Court must take into account (s 21A(3)(k) of the CSPA). In addition, s 22 of the CSPA requires the Court to consider the fact that a guilty plea was entered, when it was entered (or when an intention to plead guilty was indicated), and the circumstances in which that intention was conveyed. The Court may impose a lesser penalty in assessing these factors but must not impose a penalty that is unreasonably disproportionate to the nature and circumstances of the offences (s 22(1A) of the CSPA). 2. 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; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]). 3. The Council submitted that there was a long delay in the plea being entered due to SAF Developments not complying with its pre-trial notice obligations in a timely manner and as a result of it changing its pleas from not guilty to guilty. This had the consequence of eroding the utilitarian value of the guilty pleas. 4. It is true that there was a lengthy process of pre-trial disclosure between the parties, however, this led to the Council not proceeding with other charges. Guilty pleas were therefore entered on 11 November 2022. 5. Nevertheless, I find that SAF Developments's delayed plea entry means that it is not entitled to the full 25% discount. Rather, I find that a discount of 20% to be appropriate for the utilitarian value of the guilty pleas. Contrition and Remorse 1. The contrition or remorse of an offender must be taken into account as a mitigating factor in determining the appropriate sentence for an offence (s 21A(3)(i) of the CSPA). 2. In Waste Recycling and Processing Corporation, Preston J stated that contrition and remorse is more readily demonstrated by an offender "taking actions" rather than offering "smooth apologies" through legal representatives (at [203]). His Honour identified four acts that would demonstrate genuine contrition and remorse (at [204]-[214], applied in Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220 at [223]; Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [85]-[89] and Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 at [101]) which are noted without repetition. 3. SAF Developments submitted that the three following actions demonstrate evidence of contrition and remorse: 1. the entry of pleas of guilty to the offences; 2. the acceptance of responsibility and steps taken to remedy the offences by removing the waste from Aarons's swimming pool; and 3. the presence of a director of SAF Developments in court. 1. While some weight may be placed on these measures, I cannot afford this factor full weight for the following reasons: 1. although a guilty plea provides evidence of remorse or contrition, something more is required (Cowra Shire Council v Fuller [2015] NSWLEC 13 at [32]); 2. the clean-up effort was conducted pursuant to a development control order. Although SAF Developments contended that it would have been reckless to carry out the removal of the waste until it was authorised by way of development control orders, the mere fact that clean-up was completed in accordance with the terms of the orders does not demonstrate contrition or remorse on behalf of it. SAF Developments was obliged to comply with these orders. Furthermore, the fact that the unlawful transport and deposition of waste has been remedied has already been taken into account for the purposes of assessing the objective seriousness of the commission of the offences; and 3. the mere appearance of a director of the company in the Court is insufficient without any evidence of his or her regret, sorrow or a plan to avoid repetition of the offence. Assistance to Regulatory Authorities 1. SAF Developments provided assistance to the Council during the investigation and prosecution of the offence by: 1. fully cooperating with investigators; 2. accepting responsibility for the commission of the offences; and 3. participating in the preparation of a comprehensive ASOF for the purposes of the hearing. 1. I take this assistance into account (ss 21A(3)(m) and 23 of the CSPA). Prior Convictions 1. SAF Developments has four convictions for carrying out development not in accordance with conditions of consent, contrary to s 4.2(1)(b) of the EPAA. 2. However, although these were committed prior the commission of the present offences, because the convictions were not recorded until after the commission of the current offences they are therefore not relevant in any consideration of s 21A(2)(d) of the CSPA. Character of SAF Developments 1. The four convictions referred to above may, however, be taken into account in assessing SAF Developments's character for the purpose of s 21A(3)(f) of the CSPA. They speak against any favourable assessment of SAF's good character. Likelihood of Re-offending and Prospects of Rehabilitation 1. In addition to an absence of demonstrated contrition and remorse, the four convictions for carrying out development not in accordance with conditions of consent referred to above also suggest that SAF Developments may re-offend and does not necessarily have good prospects of rehabilitation (s 21A(3)(g) and (h) of the CSPA). The Offences Could Have Been Prosecuted in the Local Court 1. SAF Developments submitted that the Court should give considerable weight to the fact that the proceeding was brought in this Court instead of the Local Court. This had the consequence of exposing SAF Developments to a significantly higher maximum penalty than would have otherwise been imposed in the Local Court and to higher costs (Harris v Harrison [2014] NSWCCA 84 at [96]-[99]). 2. SAF Developments submitted that in circumstances where the evidence, charges, facts and law are not complex, the offending was well within the jurisdictional limit of the Local Court, which is $110,000. 3. During oral submissions, however, it was disclosed that the proceedings were originally estimated to run for two to five weeks. The proceedings initially involved six charges relating to different defendants, which were subsequently reduced to two charges against one defendant, SAF Developments. In the context of a matter involving that level of complexity and potential hearing length, it was entirely appropriate for proceedings to have been commenced in this Court, a specialist court (Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Beltrame [2023] NSWLEC 18 at [144]). Retribution, Denunciation and Deterrence 1. The Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offence and make SAF Developments accountable for his actions. 2. Furthermore, the Court required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569 per Brennan J). One of the purposes of the Court in imposing a sentence is to prevent crime by deterring the offender, and other persons, from committing similar offences. This purpose is enshrined in s 3A(b) of the CSPA (Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [188] and [192] and Environment Protection Authority v Rands [2019] NSWLEC 23 at [161]). General Deterrence 1. The penalty imposed by the Court must serve as a general deterrent (Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177]). General deterrence is vital "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]. See also Axer at 359). 2. In the case of environmental offences, general deterrence is a principal consideration. In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 at [65]-[68]). 3. I therefore take this factor into consideration having regard to the purpose of deterring other construction companies from transporting and depositing building and demolition waste to premises that are not authorised to take it. Other construction companies must be deterred from committing similar offences, regardless of the somewhat unusual circumstances of this case. 4. The penalty imposed should also be sufficient to cause other construction companies to take positive precautions to avoid similar offending, rather than treating the risk of a fine as a cost of doing business or as a fee for illegal activity (Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [229]). Specific Deterrence 1. The Council emphasised that the sentence imposed must be sufficient to specifically deter SAF Developments from repeating the conduct that resulted in the commission of the offences, because persons will not be deterred from committing environmental offences by nominal fines (Bentley v BGP Properties Pty Limited [2006] NSWLEC 34 at [140]). 2. SAF Developments contended that the unique circumstances of this case (the waste material was deposited by agreement with the landowner) meant that specific deterrence was not warranted. It submitted that this was an isolated event with two charges arising out of a single set of facts and that its guilty pleas and awareness of these proceedings meant that it was unlikely to re-offend. 3. In my view, the commission of four further offences prior to the commission of the charges the subject of these proceedings is relevant to the consideration of the need for specific deterrence. They show that the current offences are not uncharacteristic aberrations (The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd & Kinnarney (No 2) [2012] NSWLEC 95 at [31]). Only limited weight is therefore placed upon them for the purposes of specific deterrence. 4. Finally, notwithstanding the fact that the offending conduct was committed with the consent of the owner of the property where the waste was deposited, I further find that specific deterrence is necessary by reason of the fact SAF Developments continues to operate in the construction industry (Environment Protection Authority v Ravensworth Operations Pty Limited [2012] NSWLEC 222 at [48]). Even-Handedness 1. 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 107C). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each (Axer 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]). 2. The parties provided summaries of the following authorities in respect of the offence contrary to s 4.2(1) of the EPAA: 1. Burwood Council v Doueihi [2013] NSWLEC 196; (2013) 200 LGERA 152, where the defendant constructed additional rooms contrary to development consent and without consent. The defendant was an elected Councillor with good knowledge of the development controls, which exacerbated the undermining of the integrity of the planning system (at [10]). Pain J found that the offence caused environmental harm to the amenity of neighbours by creating greater demand for car spaces (at [13]). The defendant was fined $43,000 after a discount was applied for the defendant's guilty plea and the fact that he was of good character (at [38]); 2. Burwood Council v Pratelli [2014] NSWLEC 28, where a defendant carried out works contrary to a development consent and without consent in circumstances where she was an owner-builder who relied on erroneous advice provided by another builder. There was no heightened state of mind found for the defendant (at [30]), no prior convictions (at [35]), and there were steps taken to rectify the non-compliance (at [38]). The offence was found to be of low objective gravity (at [34]), and the defendant was fined $9,750 after a 25% discount was applied for the utilitarian value of an early guilty plea; 3. Ku-ring-gai Council v Baynie [2017] NSWLEC 172, where the defendant was charged with three counts of development without consent in respect of heritage listed property. The first two offences were found to be at the low end of moderate seriousness, whereas the third offence was found to be at the high end of low objective seriousness because it concerned the failure to remedy damage to heritage items as ordered by the Council (at [55]). The defendant was fined $42,000, $20,000 and $15,000 respectively, after the totality principle was taken into account and a 25% discount was applied for an early guilty plea; 4. in Burwood Council v Abdul-Rahman (No 2) [2017] NSWLEC 177, the defendant was charged with the unlawful removal of a tree. He had extensive experience with the planning system. After taking into account the defendant's prior convictions and a lack of contrition and remorse, he was fined $50,000 with no discount applied (at [83]); 5. in Cumberland Council v Habib [2017] NSWLEC 18, the defendant was charged with two counts of unauthorised building works in relation to the construction of a dwelling and granny flat on two lots. The offences were found to be of moderate objective seriousness (at [29]) after Robson J held that the offences were committed intentionally (at [28]). There was no environmental harm caused by the commission of the offence (at [21]). The defendant was fined $105,000 for both offences after a 25% discount was applied in respect of his guilty pleas; 6. Pesic v Sutherland Shire Council [2019] NSWLEC 38, involved an appeal on sentencing for the development of a vehicle repair premises without consent. The sentence at first instance of $7,600 was affirmed after Preston J found that the offence was of low objective seriousness having regard to the lack of proven harm to the environment. The offence was held to have been committed recklessly and for financial gain (at [33]); 7. Hijazi v Georges River Council [2020] NSWLEC 36, involved an appeal on sentence for four offences involving the construction of a swimming pool and elevator shaft absent consent. A total fine of $80,000 was imposed after the offences were found to be at the high end of the low range of culpability (at [25]); 8. Chahoud v Penrith City Council [2020] NSWLEC 167, which involved an appeal against sentence for the unlawful construction of a shed. The offences were found to be committed neither recklessly nor negligently (at [84]), but were committed for financial gain (at [87]). A fine of $51,000 was imposed after a 20% discount was applied in respect of the guilty pleas; 9. Port Macquarie-Hastings Council v Waite (No 2) [2020] NSWLEC 60, where the defendant pleaded guilty to four charges involving carrying out development without consent for a temporary caravan park. The defendant was fined $3,000, $3,000 and $1,500 respectively (at [108]) and ordered to pay the prosecutor's costs (at [97]); and 10. in Burwood Council v Abdul Rahman [2021] NSWLEC 46, where the defendant was charged with the removal without consent of seven trees and the demolition and erection of a dwelling and pool. The Court held that the tree offence was committed for financial gain (at [74]), but that where was contrition and remorse, the defendant was of good character and had cooperated with the prosecutor. A fine of $40,000 was imposed after the totality principle was taken into account (at [120]) and a 25% discount was applied for his early guilty plea (at [91]). 1. The parties provided summaries of the following authorities in respect of the offence contrary to s 143 of the POEOA: 1. Environment Protection Authority v Hughes [2019] NSWLEC 108, where the defendant was charged with two offences under ss 143 and 144 of the POEOA. The material that was unlawfully transported was mixed construction and demolition waste of no less than 4,950 tonnes (at [60]). The offences were found to be at the lower end of medium objective seriousness, with the defendant's state of mind found to be "premeditated and deliberate" (at [88]). The offences were aggravated by the fact that they were committed for commercial gain (at [97]), but mitigated by his guilty pleas, good character and co-operation with the investigation. The fine imposed was $30,000, with a publication order made (at [186]); 2. in Environment Protection Authority v Alcobell; Campbell [2015] NSWLEC 123, the defendant corporation was charged with three counts of transport and disposal of waste containing asbestos. The offences were found to be at the lower end of objective seriousness, with the defendant corporation held to have committed the offences negligently (at [80]) and for commercial gain to avoid the costs associated with depositing waste at a licensed facility (at [83]). The Court found that only potential, not actual, environmental harm was occasioned by the commission of the offences (at [62]). The defendant corporation had prior convictions for the same type of offending. A fine of $70,000 was imposed after its good character, its cooperation with the investigation, its limited financial capacity and its early guilty plea were taken into account by the Court (at [124]); 3. Environment Protection Authority v Ashmore [2014] NSWLEC 136, where the defendant was charged with one count of unlawful transport of 3,840 tonnes of waste containing asbestos against s 143 of the POEOA and one count against s 144AA(1) of the POEOA. The offences were held to be of moderate objective seriousness after the defendant was found to have committed the offences negligently and for commercial gain to avoid the costs associated with depositing waste at a licensed facility (at [61]). Fines of $24,000 and $12,000 were imposed after the utilitarian value of his guilty plea, good character and cooperation with the regulatory authorities was taken into account; 4. Kinnarney, where the director and corporation were charged with transporting waste to an unlicensed place. The offence was found to be of moderate objective seriousness, with the offences committed for commercial gain (at [28]). A fine of $50,000 was imposed on the corporation after Biscoe J took into account its prior convictions for the same offending (at [35]); 5. Environment Protection Authority v Hanna [2010] NSWLEC 98, where the defendant was charged with four counts against s 143 of the POEOA. The offences were held to be of medium objective seriousness after Craig J found that the defendant held a "premeditated and deliberate" state of mind in committing the offences (at [43]) for commercial gain (at [51]). Aggravating factors included that the defendant had prior convictions for the same type of offending and that the offences were committed without regard for public safety (at [60]). A fine of $104,000 was imposed for the four charges, after a 20% discount for the utilitarian value of the guilty plea and the totality principle were applied (at [83]). A publication order was made and the defendant was ordered to pay the prosecutor's costs and clean-up costs; 6. in Hills Shire Council v Suciu (No 3) [2009] NSWLEC 192, the defendant was charged with one count of taking demolition waste including asbestos to a private property that had requested clean fill. The defendant's state of mind was found to be "premeditated and deliberate" (at [36]). Aggravating factors included that the offence was committed for commercial gain and by dishonest and deceptive means (at [39]) and that there was a prior conviction for an environmental offence (at [60]). There was no contrition or remorse demonstrated and no cooperation with the prosecuting authority (at [63]-[64]). He was fined $80,000; and 7. Environment Protection Authority v Pannowitz; Steepleton Pty Ltd [2005] NSWLEC 175, where a director and corporation were charged with the unlawful transportation of waste contrary to s 143 of the POEOA. The corporation was charged $40,000 after the Court took into account the fact that the offence was committed for financial gain (at [47]) and that the corporation had demonstrated contrition and remorse, had cooperated with the investigation, and had entered an early plea of guilty (at [61]). 1. I have taken into account all these cases in determining the appropriate penalty to be imposed on SAF Developments and was careful to note their similarities and differences with the facts of the present proceedings. In doing so, I make the observation that some of the cases brought to the attention of the Court were over a decade old and that the overall trend for penalties imposed in this Court for environmental crime has been increasing over time for all offences, including unlawful waste transportation and unlawful development cases. Moiety and Costs 1. The Council sought an order for a moiety of the fine pursuant to s 122(1) of the Fines Act 1996. 2. It also sought an order for its professional costs to be paid by SAF Developments in the sum of $70,000. 3. SAF Developments resisted both orders submitting that it was appropriate for the Court to order the moiety, or make an order for costs, but not both. It did not cavil, however, with the quantum of the professional costs sought by the Council. 4. SAF Developments further submitted that the payment of its costs is an aspect of punishment that should be considered in the determination of an appropriate penalty as a factor that reduces the penalty. 5. The quantum of any legal costs that a defendant is required to pay as a result of the proceedings has been determined to be a relevant factor as part of the punishment imposed in the determination of the appropriate sentence (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [88] and Environment Protection Authority v Causmag Ore Co Pty Ltd [2015] NSWLEC 58 at [123]). 6. I order that SAF Developments pay Georges River Council's professional costs agreed to in the sum of $70,000. I note that the amount to be paid is not a nominal sum and it is appropriate that this liability be taken into account in the subjective considerations in determining sentence (Port Macquarie-Hastings Council v Waite (No 2) [2020] NSWLEC 60 at [96]). 7. The power in s 122(2) of the Fines Act originates from the "popular action" brought by a "common informer" to ensure the enforcement of the law (Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 at [108]). 8. I do not make an order for moiety for half of the fine ordered against SAF Developments to be paid to Council. There was no reason in fact or principle in the present case why the Court should order half the fine to be paid to the Council. A moiety of half of the fine is paid to a prosecutor to compensate it for the costs and expenses it has incurred during the investigation of the offence. Absent any evidence to the contrary, it may be inferred that these costs and expenses comprise the $70,000 in professional costs agreed to by the parties. To order a moiety would arguably result in the Council receiving an award for costs in excess of those incurred. Totality Principle 1. The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple overlapping offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-63 and Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient. The application of the principle must not cause public confidence in the administration of justice to be undermined by any perception that "what is in effect being offered is some kind of discount for multiple offending" (R v MAK; R v K [2006] NSWCCA 381; 167 A Crim R 159 at [18]). 2. The offences were committed during a single course of conduct such that the totality principle is engaged. This is because the offending originated from the SAF Developments's failure to comply with its conditions of consent and waste management plan in transporting and depositing the building and demolition waste at 9 Nellella St. It is therefore just and appropriate to apply a reduction in penalty to reflect the overall criminality of SAF Developments. The Appropriate Sentence to be Imposed 1. Synthesising the relevant objective and subjective circumstances of the commission of the offences discussed above, and taking into account the purposes of sentencing and the penalties imposed in the relevant comparable cases, I find that the imposition of a monetary penalty is warranted for each offence as follows: 1. for the offence against s 4.2(1)(b) of the EPAA, a fine of $20,000; and 2. for the offence against s 143 of the POEOA, a fine of $20,000. 1. I note that there was no evidence as to SAF Developments's incapacity to pay the fine imposed (s 6 of the Fines Act). 2. Each penalty must be discounted by 20% for the utilitarian value of SAF Developments's early plea of guilty, resulting in the imposition of a monetary penalty for each offence as follows: 1. for the offence against s 4.2(1)(b) of the EPAA, a fine of $16,000; and 2. for the offence against s 143 of the POEOA, a fine of $16,000. 1. After the application of the totality principle, the penalty for the second offence should be reduced to $10,000. 2. This brings the total penalty to $26,000 for the commission of the two offences. Publication Order 1. The Council sought a publication order pursuant to s 250(1)(a) of the POEOA, the terms of which were provided to the Court the day of the hearing. An order for publication, but not the terms of the publication themselves, was opposed by SAF Developments on the basis that there was no explanation provided by the prosecutor as to why it would be appropriate in the circumstances. 2. SAF Developments also observed that in only four of the comparable cases contained in the prosecutor's schedule of cases a publication order was made. 3. In Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 Duggan J helpfully set out the principles to be derived from the authorities to be applied in determining whether or not to make a publication order, which I respectfully adopt (at [84] to [85]): 84 Whether it is appropriate it impose a publication order in a sentence has been considered by this Court on a number of occasions. The principles to be derived from those authorities and the factors that have been considered in determining whether to make such an order can be summarised as follows: 1. The Court has a wide discretion as to whether to impose a publication order and the POEO Act does not identify, in terms, the circumstances in which such an order should or should not be made: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [36]; 2. Publication orders assist in serving a deterrent purpose in environmental crimes: EPA v Waste Recycling Corporation (2006) 148 LGERA 299. Such a notice informs or reminds the public that such an offence exists, and may add some "sting" to the imposition of a fine. The objectives of general and specific deterrence are thus satisfied: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [163]. A publication order operates as a message to the community that a holder of an EPL is under a heightened responsibility to ensure that their operations are conducted in accordance with the conditions of such licence: Environment Protection Authority v Biosolids Management Pty Limited [2004] NSWLEC 90; 3. Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma: Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 at [242]; 4. Because a publication order is made in addition to, rather than instead of, any penalty, it ought not be considered in determining the quantum of any monetary penalty to be imposed (Environment Protection Authority v Incitec Ltd; (2003) 131 LGERA 176 at [58]-[59]); 5. If an order under s 250(1)(e) is imposed a publication order ought be made because it is important to publicise to the community at the time such an order is made that any works being undertaken are as a result of committing an offence: Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732 at [141]; 6. Existing adverse publicity in the media or an intention to self-publicise a conviction will not necessarily preclude the making of a publication order: Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160 at [104]; 7. The circumstances of the case may dictate that the interests of justice and the purpose of the publication will not be served if publication is ordered such as: where the offence is a first offence and the harm and objective seriousness of the offence is low; where publication of the offence is likely to confuse or mislead the reader in light of the substance earlier Court ordered publication: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [41]; Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd [2007] NSWLEC 466 at [169]; 8. Such an order is no less appropriate because the offences have been found to be of a low level of objective seriousness: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [164]. 85 In the circumstances of this case I consider it appropriate to order a publication order with respect to the two offences in the terms as proposed by the Defendant. The fact that the Defendant has prior convictions for similar offences indicates that specific and general deterrence is required. Further, the publication of the conviction of this particular Defendant, for the charges for which it has pleaded guilty, operates to indicate to persons operating facilities such as an STP or who operates an activity pursuant to an EPL, that environmental crime is taken seriously and even a government agency will be held accountable for breaches of the POEO Act. I consider the general deterrence that will be achieved by the making of the publication order is substantial and warrants the order being made. 1. There are companies engaged in the construction industry who are involved in the processing of waste. The making of a publication order will serve as a reminder of the need to comply with their conditions of approval, including adhering to waste management plans that form part of any consent to carry out this activity. While I accept that the circumstances of this case do not conform to the usual pattern of offending for these types of offences insofar as the owner of the subject property requested the waste to be deposited in the pool, the making of a publication order will nevertheless serve as a general deterrent to others. 2. The making of a publication order is also appropriate in circumstances where no contrition or remorse was shown by SAF Developments for the commission of the offences, no measures appear to have been put into place to ensure that offending of this nature does not reoccur in the future, and where it has subsequent convictions for similar offences. 3. I therefore make an order for the publication of a notice in the form annexed at 'A' to this judgment. Orders 1. In conformity with the reasons given above, the Court makes the following orders: In proceeding 244133 of 2021 1. SAF Developments Pty Ltd is convicted of the offence against s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 as charged; 2. SAF Developments Pty Ltd is fined the sum of $16,000; In proceeding 244135 of 2021 1. SAF Developments Pty Ltd is convicted of the offence against s 143 of the Protection of the Environment Operations Act 1997 as charged; 2. SAF Developments Pty Ltd is fined the sum of $10,000; In proceedings 244133 and 244135 of 2021 1. pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 SAF Developments Pty Ltd is to pay the Council's professional costs as agreed in the sum of $70,000; 2. pursuant to s 250(1) of the Protection of the Environment Operations Act, within 28 days of this order, SAF Developments Pty Ltd, at its own expense must cause a notice to be published in the terms of annexure 'A' to this order on the following website and in the following publication: 1. within the first 11 pages of The Daily Telegraph at a minimum size of 10 cm x 13 cm; and 2. on SAF Developments Pty Ltd's website, where a copy of the notice must remain on the website for 60 days; 1. within seven days of the date of publication of the notices pursuant to the order in (f), SAF Developments Pty Ltd must provide to Georges River Council a copy of the entire page of the publication and website in which the notice appears; and 2. the exhibits are to be returned. Annexure A SAF Developments Pty Limited, a construction company in South Hurstville, New South Wales, was convicted and fined on 10 May 2023, in respect of the commission of two offences, namely, that between 1 July and 27 August 2019: (a) it carried out development otherwise than in accordance with its consent to do so contrary to s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979; and (b) it unlawfully transported waste contrary to s 143 of the Protection of the Environment Operations Act 1997. The offences related to the unlawful transport of building and construction waste from a construction site in Connells Point to a residence in Blakehurst. The waste was deposited into a disused swimming pool. SAF Developments Pty Limited had been issued a Complying Development Certificate ("CDC") for their operations at the Connells Point construction site. A condition of the CDC required that all building and construction waste be managed on site and then disposed of at a waste management facility. Pursuant to an investigation by Georges River Council, SAF Developments Pty Limited was prosecuted in the Land and Environment Court of New South Wales. Following pleas of guilty, SAF Developments Pty Limited was convicted of both offences and fined a total of $26,000 and ordered to pay the Council's costs in the sum of $70,000. ********** Amendments 11 May 2023 - Amendment to [95], correction to case cited. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2023