Reported Decision : (2002) 120 LGERA 426 Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Nechakoski [2002] NSWLEC 61 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Nechakoski FILE NUMBER(S) : 50080 of 2001 and 50081 of 2001 CORAM: Pearlman J KEY ISSUES: Environmental Offences :- unlawful transporting of waste - charge under Waste Minimisation and Management Act 1995 - charge under Protection of the Environment Operations Act 1997 - plea of guilty - appropriate penalty having regard to different maximum penalties available - environmental harm - wetland Crimes (Sentencing Procedure) Act 1999 s 10(3) Environmental Offences and Penalties Act 1989 s 8DA LEGISLATION CITED: Protection of the Environment Operations (Savings and Transitional) Regulation 1998 cl 17 Protection of the Environment Operations Act 1997 s 143(1) Waste Minimisation and Management Act 1995 s 63(1) Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; CASES CITED: Queen v O'Neill [1979] 2 NSWLR 582; R v Holder (1983) 3 NSWLR 245; R v Jurisic (1998) 45 NSWLR 209 DATES OF HEARING: 04/04/2002 DATE OF JUDGMENT: 05/03/2002 PROSECUTOR Mr D Jordan (Barrister) SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr M H Baird (Barrister) SOLICITORS Palmieri JUDGMENT: IN THE LAND AND 50080 of 2001 and 50081 of 2001 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 3 May 2002 ENVIRONMENT PROTECTION AUTHORITY Prosecutor v JOHN NECHAKOSKI Defendant JUDGMENT Introduction 1. The defendant, Mr J Nechakoski, has pleaded guilty to two charges of transporting waste to a place that could not lawfully be used as a waste facility for that waste. 2. A complicating factor in this case is that the applicable legislative regime changed during the commission of the offence. This resulted in the defendant being charged with two offences, one under s 63(1) of the Waste Minimisation and Management Act 1995 ("the Waste Act"), and the other under s 143(1) of the Protection of the Environment Operations Act 1997 ("the POEO Act"). Whilst the nature of the offence is identical under each Act, the penalty for each offence is different. Factual background 3. The parties prepared an agreed statement of facts from which the following background is derived. 4. The defendant carries on a demolition and earthmoving business that trades under the name "J & M Spero Demolition", and has done so for about 25 years. 5. In early 1999, the defendant entered into a contract for the demolition of structures and the removal of materials from the St Joseph's Nursing Home site at Sandgate. At around the same time, the defendant also had a contract for the demolition of an old bowling club in Mayfield. 6. Between 20 April 1999 and 30 June 1999, and on 7 July 1999, the defendant instructed his employees and contractor to transport the demolition waste from these two properties to a property located at 65 Nelson Bay Road, Fullerton Cove ("the site") owned by the defendant's cousin, Mr T Sorcevski. A total of around 5,288 tonnes of mixed demolition waste was transported by the defendant to the western end of the site. 7. The site is approximately 17 acres in size. It is situated in a rural and flood-prone area. Mr Sorcevski resides in a dwelling at the eastern end of the site, and there are a number of other structures at the eastern end of the site including a garage and storage shed. The development consent and building consent for the dwelling permitted the placement of some fill in the area of the dwelling and the driveway. However fill had been placed at both the eastern and western ends of the site over a number of years prior to 1999. 8. During the relevant period between April and July 1999, the site was zoned (1)(g) Rural Flood Plain "G" Zone under the Port Stephens Local Environmental Plan 1987. In that zone, the only activities permitted without consent were agriculture and flood mitigation works authorised by the Hunter Valley Flood Mitigation Act 1956. It is common ground that there was no development consent authorising the use of the western end of the site as a waste facility, and further, that the defendant did not obtain from Mr Sorcevski an "approved notice" from the Environment Protection Authority stating that the site could lawfully be used as a waste facility. Considerations relevant to penalty 9. A plea of guilty is an admission of the essential legal elements of an offence: Queen v O'Neill [1979] 2 NSWLR 582. The only matter that requires determination is the appropriate penalty. 10. Section 63 of the Waste Act relevantly provides as follows: 63(1) If a person transports any waste to a place that cannot lawfully be used as a waste facility for that waste: (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence against the Environmental Offences and Penalties Act 1989. 11. Section 8DA of the Environmental Offences and Penalties Act 1989 relevantly provides: 8DA(1) Except as provided by subsections (1A), (1B) and (2), any person who (by virtue of any provision of the Waste Minimisation and Management Act 1995) is guilty of an offence against this Act is liable: … (b) in the case of an individual – to a penalty not exceeding $60,000 and, in the case of a continuing offence, to a further penalty not exceeding $30,000 for each day the offence continues. 12. Section 143(1) of the POEO Act is in almost identical terms to s 63(1) of the Waste Act, except that it provides that, in the case of an individual, the maximum penalty is $120,000. 13. Section 241(1) of the POEO Act prescribes certain matters that the Court is to take into consideration in imposing a penalty. That section applies to both offences by virtue of cl 17 of the Protection of the Environment Operations (Savings and Transitional) Regulation 1998. 14. In this case, the s 241(1) consideration that was the principal focus of the evidence was the extent of the harm caused or likely to be caused to the environment by the commission of the offence. 15. Evidence on this matter was given by Dr M J Mahony, a senior lecturer in biological science, and Mr G B Winning, ecologist, on behalf of the prosecutor. Evidence on behalf of the defendant was given by Mr P J Anink, an environmental scientist. 16. The experts concurred in their opinion as to actual harm to the environment in that all three agreed that trees and vegetation were flattened and smothered by the placing of the fill upon the land. They differed in their opinions as to the significance of this harm and the extent of likely harm. 17. Both Dr Mahony and Mr Winning thought that the site would support populations of frogs and that the damage to trees and vegetation would destroy frog habitat. In giving oral evidence, Mr Winning described that part of the site where the waste was placed as a periodically or seasonally flooded wetland, and he expressed the opinion that the placing of the waste upon it would have detrimentally altered it and had a consequent impact upon wetland flora and fauna. Dr Mahony's evidence was to the same effect. Mr Winning also considered that it was likely that a regionally significant species of flora, Ranunculus papulentus, would have occurred in some of the area on which waste was deposited, since it had been observed in the vicinity of the fill. 18. Mr Anink thought that the site did not comprise permanent wetland, and that, since natural drainage and drying out would affect the wetland and remove wetland habitat, the impact upon frogs would not have been significant. He also thought that there were no significant water quality impacts, and that the loss of plants was not significant given the similarity of the area where the waste was deposited to the rest of the locality. Mr Anink made no comment about the Ranunculus papulentus in his written evidence, but said in cross examination that he did not think its loss was significant because he was unconvinced of its rarity in the region. 19. I generally prefer the evidence of Mr Winning, whose field of expertise is wetland ecology in the Hunter region. His evidence was supported by Dr Mahony, and Mr Anink's evidence did not detract from it in any material way. I find therefore that there was actual and likely harm to the environment from the transportation of the waste to the site. 20. The other relevant matters arising under s 241(1) were not the subject of controversy. In this connection, I find that the only practical measure which could have prevented the harm to the environment was the immediate removal of the waste, and that the defendant could reasonably have foreseen the harm caused or likely to be caused by so transporting waste to the site. He was in sole control of the transport and depositing of the waste; it was taken to the site at his direction and as the result of an agreement between him and Mr Sorcevski. Matters in Mitigation 21. There are a number of matters that I take into account in mitigation. 22. First, the defendant entered a plea of guilty to both charges on the first occasion after the prosecutor had served its evidence in relation to liability. 23. Secondly, the defendant at all stages co-operated fully with the prosecutor in the course of its investigation. 24. Thirdly, references in support of the defendant were tendered from the Hon J Richard Face MP and Mr J Mitsiosi, each stating that the offences were out of character and noting the defendant's extensive community work, especially in relation to soccer in the Newcastle area. 25. Fourthly, the defendant has been engaged in the demolition business for approximately 25 years, and has no previous convictions for environmental offences. 26. Finally, timber and asbestos waste materials were generated from the demolition of buildings at the St Joseph's Nursing Home but they were not transported to the site. Other factors 27. There is no doubt that significant harm was actually caused or likely to be caused to the environment by the commission of this offence, and that that harm was foreseeable and could have been prevented. Further, it is clear that the offence occurred over a number of months and was a sustained course of action. 28. The defendant had a fixed contract for the demolition of the St Joseph's Nursing Home which contained a condition that "[a]ll material will be disposed of each day to local council waste disposal area". By disposing of the waste at the site, the defendant did not incur any waste disposal fees which would have otherwise been payable. Determination of penalty 29. There is an important fact to bear in mind in this case in the application of the relevant principles for the determination of penalty. The parties agreed that, out of an estimated total of 5,288 tonnes of waste material transported to the site, approximately 95 per cent (5,017 tonnes) was transported when the Waste Act was on foot, and approximately 5 per cent (271 tonnes) was transported when the POEO Act was on foot. 30. Next, it is important to bear in mind the task of the Court. The Court must assess the relative seriousness of each offence in relation to the worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which correlates upon the scale of penalty set by the legislature from zero to the maximum: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. The complicating factor in this case, however, is the fact that the maximum penalty doubled during the period of the commission of the offences, going from $60,000 under the Waste Act to $120,000 under the POEO Act. 31. Mr Baird, appearing for the defendant, submitted that, in recognition of the fact that the vast majority of the waste was transported whilst the Waste Act was in force, the charge brought under the POEO Act should be dismissed through the application of s 10 of the Crimes (Sentencing Procedure) Act 1999. Section 10(3) provides as follows: 10(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition; (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed; (d) any other matter that the court thinks proper to consider. 32. Mr Baird submitted that the second charge was brought solely as a result of the change in the legislative regime, and that the defendant should not be charged twice for the same offence in a case such as this in which there was a continuing course of conduct amounting, in effect, to a single event. Mr Jordan, appearing on behalf of the prosecutor, submitted that the application of s 10 was not appropriate in this case. 33. I agree with Mr Jordan's submission. The offence committed under the POEO Act was not trivial. It involved the transportation of 271 tonnes of waste material to the site. Furthermore, there were no extenuating circumstances in which the offence was committed. Next, the evidence that was tendered as to the defendant's character and antecedents is a mitigating factor, but it does not amount to a factor that should lead to the dismissal of the charge. Finally, I do not agree that the change in the legislative regime is a matter that should lead to dismissal of the charge. Rather, the increase in the penalty under the POEO Act reflects the seriousness with which this offence is viewed by the community and the legislature: R v Jurisic (1998) 45 NSWLR 209. For all these reasons I decline to exercise the power conferred by s 10. 34. The next matter to consider is the principle of totality, which applies where a defendant has been charged with two or more offences: R v Holder (1983) 3 NSWLR 245. In that case, Street CJ stated as follows at p 260: … the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. 35. In this case, the appropriate relativity between the two offences has been set by the agreed fact that the division of the total amount of waste between the offences was 95 per cent relating to the offence under the Waste Act, and 5 per cent relating to the offence under the POEO Act. In my opinion, it is appropriate, having regard to the totality principle, to consider the overall criminality of the two offences against the relative amounts of waste material transported. The offence under the Waste Act is therefore to be regarded as the more serious of the two offences, and the offence under the POEO Act as the less serious. 36. Having regard to the principles I have stated, as well as the relative seriousness of the offences, and the mitigating factors I have set out (including, in particular, a discount for an early plea of guilty), I have decided that, for each of the charges, the appropriate penalties are $21,000 for the offence committed under the Waste Act, and $10,000 for the offence committed under the POEO Act. Orders 37. My formal orders are therefore as follows: In matter number 50081 of 2001 (1) The defendant is convicted of the offence with which he is charged. (2) The defendant is fined $21,000 to be paid to the Registrar within one month of today. In matter number 50080 of 2001 (1) The defendant is convicted of the offence with which he is charged. (2) The defendant is fined $10,000 to be paid to the Registrar within one month of today. In relation to both matters (1) The defendant is to pay the costs of the prosecutor in accordance with s 52 of the Land and Environment Court Act 1979. (2) The exhibits may be returned. 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.