Land and Environment Court New South Wales Medium Neutral Citation: Kogarah City Council v Man Ho Wong [2013] NSWLEC 187 Hearing dates: 24 October 2013 Decision date: 24 October 2013 Jurisdiction: Class 5 Before: Craig J Decision: Orders as set out at [38] Catchwords: SENTENCE - offences against s 143 of the Protection of the Environment Operations Act 1997 - transported waste to a place that could not lawfully be used as a waste facility for that waste - cartons packed with broken fibrous cement pieces left on footpath in four separate locations in different streets - material contained asbestos - defendant transported and deposited cartons of this material to avoid proper means of disposing of this waste - potential harm to the environment - defendant knew that depositing of material in the manner that he did was inappropriate - fines imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Protection of the Environment Operations Act 1997 (NSW) Cases Cited: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 and 359 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: Kogarah Council (Prosecutor) Man Ho Wong (Defendant) Representation: K Webber (solicitor) (Prosecutor) P Bouzanis (solicitor) (Defendant) Wilshire Webb Staunton Beattie Solicitors (Prosecutor) Owen Hodge Lawyers (Defendant) File Number(s): 50669 of 2013 EX TEMPORE Judgment 1The defendant, Man Ho Wong, has entered a plea of guilty to four offences against the provisions of s 143 of the Protection of the Environment Operations Act 1997 (the POEO Act). He is now being sentenced for those offences. 2The offences occurred on or about 22 August 2012 when the defendant deposited cartons containing broken pieces of fibrous cement on or adjacent to the footway in four separate streets located in or adjacent to the suburb of Hurstville. The defendant's residential address was in Hurstville. 3Section 143 of the POEO Act relevantly provides: "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 waste or permits waste to be so transported: (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence." The section fixes a maximum penalty of $250,000 for an offence committed by an individual. 4The defendant's plea accepts three propositions: that the material transported by the defendant was waste; that he transported that waste and that the place to which that waste was transported could not lawfully be used as a waste facility for that waste. 5There appeared to be irregularity in the way in which the proceedings were commenced. A single summons was filed by the prosecutor alleging the commission of all four offences. However, Mr Bouzanis, who appeared for the defendant, accepted that, notwithstanding the perceived irregularity, the hearing should proceed on the basis that four separate offences had been committed by the defendant. The plea of guilty to each such offence was confirmed. While accepting that four offences were committed by the defendant, Mr Bouzanis foreshadowed a submission that the principle of totality would apply to the imposition of penalties. In principle, I accepted that such a submission would be appropriate. Background 6Before turning to consider the sentence to be imposed for these offences, it is necessary briefly to summarise the facts as they emerge from the evidence. There is no real contest between the parties as to those facts. They have been outlined in a document entitled 'Agreed Prosecutor's Facts' tendered without objection, together with two affidavits of Paul Cassar, a ranger employed by the prosecutor, and a further affidavit of Adrian Damino, also a ranger employed by the prosecutor who was present on a number of occasions when Mr Cassar was carrying out his investigations into the commission of the offence. These affidavits were read by the prosecutor without objection by the defendant, neither deponent being required for cross-examination. The evidence also included a certificate of analysis of the material that was found to have been transported and deposited by the defendant in the manner shortly to be described. 7Prior to the date of the offences in question, the defendant had removed the cladding from the garage located on the site of his residence. The cladding comprised what appeared to be fibrous cement sheeting. Following its removal, the defendant broke the sheeting into small pieces which he then placed in cartons said by him to be approximately 450mm long, 300mm wide and 300mm deep. All of the cartons used to package the pieces of broken fibrous cement sheeting had the brand name of a packaged seafood product printed on them. 8Although the defendant resided within the local government area of Hurstville, he says that he looked at the website of the prosecutor, whose local government area adjoined that of Hurstville City Council. His purpose in looking at the website was to consider how he might dispose of the cartons containing the broken fibrous cement sheeting. The prosecutor's website indicated that waste building material would not be collected by it as part of its household clean-up collection service. However, as the defendant had observed from time to time that unwanted materials were left outside residential premises, apparently for collection by the prosecutor, he would take a chance of having the cartons of broken fibrous cement so collected. He thought that if the materials were concealed by being packaged in cartons as he had done, the likelihood was that the material would be collected by the prosecutor as part of its clean-up service. 9On 22 August 2012 the defendant loaded his van with a number of the cartons that he had packed with the broken fibrous cement cladding from his garage and drove that van around streets within the Hurstville area. In Phillip Street, Blakehurst he noticed that there were a number of household items located on the footpath outside residential premises. He assumed that these items were intended for collection by the prosecutor. He stopped his van outside premises known as 12 Phillip Street and there unloaded three of the cartons that contained broken fibrous cement. Only one of those cartons was taped closed. He placed the three cartons about 2m from a pile of material that appeared to have been left out for collection by the prosecutor. 10He continued his travels in the area and next stopped outside premises known as 67 Illawarra Street, Allawah. There he deposited three cartons of the material that I have earlier described. His next stop was at the corner of Cole Street and Finney Lane in Hurstville where he unloaded two further cartons of the same material. 11Finally, the defendant stopped at a location which is described as being at the corner of Gallipolli Street and Woniora Road, Hurstville where a further six cartons of the same material were unloaded and left by the roadside. It is not suggested that the cartons of material left at this or the two prior locations were placed by the road where other items of household waste appeared to have been left for collection. 12In total, 14 cartons containing the broken fibrous material were deposited at the four locations that I have described. All cartons were of the dimension earlier indicated and all had the same brand of packaged seafood printed on them. 13At the third of the four locations that I have identified a note had been left on one of the cartons, recording the registration number of the vehicle from which the cartons were observed to have been unloaded. The registration number of that vehicle was the registration number of the defendant's van. 14The presence of the cartons deposited by the defendant was discovered by local residents between 23 and 28 August 2012 and reported to the prosecutor. After inspecting the cartons at each location, the prosecutor arranged for them to be collected and taken to a facility able to receive material of that kind. Prior to their disposal at that facility, the fibrous cement material was analysed and found to contain chrysotile and amosite asbestos. That analysis was the subject of the certificate to which I have earlier referred. 15The premises of the defendant in Hurstville were visited by officers of the prosecutor on 30 August 2012 and subsequently searched under the authority of a search warrant on 7 September 2012. On both of those occasions, the inspecting officers found material on the premises identical to that observed and recovered from the cartons that had been placed by the roadside at the four locations earlier described. Cartons with the same branding as that found at the four locations were also found at the defendant's premises. 16On 11 September 2012, the defendant was interviewed by officers of the prosecutor. The record of interview then undertaken has been tendered in evidence. I have no need to refer to its detail. In short, in the course of that interview the defendant acknowledged that he had packaged the material as I have described and that he had transported it to the locations that I have earlier identified. The defendant denied being aware that the material contained any form of asbestos. Sentencing principles 17The purpose for which a sentence is to be imposed is reflected in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act). It provides as follows: "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." As will become apparent, a number of those purposes are relevant in the present matter. 18The sentence of the Court is a public denunciation of the conduct of the offender. It must ensure that the offender is held accountable for his or her actions and is adequately punished. It should be sufficient to deter the offender from committing a similar offence in the future. The sentence needs to operate as a powerful factor in preventing the commission of similar offences in the future by persons who might be tempted to do so by the prospect that, if their unlawful conduct is detected, only light punishment will be imposed. 19It is also necessary to recognise a further essential principle of sentencing. That principle requires that the sentence imposed by the Court must both reflect and be proportionate to the objective circumstances of the offence and the personal or subjective circumstances of the defendant. 20The objective gravity or seriousness of the offence as charged is the primary factor to consider when determining an appropriate sentence. It fixes both the upper and lower limits of proportionate punishment. The upper limit fixes the sentence which must not be exceeded, in as much as it can be justified as appropriate or proportionate to the gravity of the offence, considered in light of its objective circumstances (Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465). It also fixes the lower limit because subjective factors, while necessary to be considered, ought not produce a sentence that fails to reflect the objective gravity or seriousness of the offence. 21In determining the objective gravity of the offence, the matters to which regard may be had include the nature of the offence, the maximum penalty for the offence, the harm caused to the environment by commission of the offence, the state of mind of the offender in committing the offence, the offender's reasons for committing the offence, foreseeable risk of harm to the environment by commission of the offence and the practical measures to avoid the harm as well as the offender's control over those causes. These matters, as well as other considerations, are identified both in s 241 of the POEO Act and also by s 21A of the CSP Act. Indeed, s 241 of the POEO Act identifies those matters that must be considered when determining the penalty for an offence against that Act, at least those matters that are of relevance to the commission of the particular offence. 22The first of those matters is the extent of harm caused or likely to be caused to the environment by the commission of the offence (s 241(1)(a)). In the present case there is no evidence of actual harm. Nonetheless, the potential for harm for any offence against s 143 hardly calls for detailed exploration. The statutory controls directed to waste disposal are themselves a recognition of the potential for harm. So much more is that potential likely to be realised when the material in question, as in the present case, contains asbestos, notorious for its impacts or potential impacts on human health and the environment. That potential for harm must be recognised in any penalty imposed even if it be the case that the existence of asbestos in the material that the defendant placed around the streets in the Hurstville area was not appreciated by him. 23A further element that must be considered when determining penalty is the foreseeability of harm or likely harm by reason of the statutory breach (s 241(1)(c)). Depositing any waste in the manner planned and undertaken by the defendant carries with it a reasonable foreseeability of harm. That is, the transporting and depositing of material in the manner earlier described, involving placement of the material adjacent to a public road, carries with it the obvious foreseeability of potential harm by members of the public being exposed to that material. Further, leaving that waste where, apart from the Phillip Street location, there was no objective basis for the defendant to believe that the cartons left by him by the roadside would be collected, is a circumstance demonstrating that harm was reasonably foreseeable. 24As I have earlier noted, the state of mind of the defendant responsible for the commission of an offence of this kind is important to be considered. I am satisfied beyond reasonable doubt that the defendant knew that the depositing of cartons containing the broken fibrous cement cladding was contrary to law. He knew that the material was not of a kind that would be collected by the prosecutor as part of its domestic waste clean-up service. So much is apparent from the internet interrogation that he had made of the prosecutor's website. His action in transporting the subject material and making selected deposits in different locations confirms that he knew his conduct was wrong. The submission made on his behalf by Mr Bouzanis accepted that this was so. At the very least, the only explanation for his actions is that they were undertaken to avoid the expense of disposing of the material in a proper manner. 25While an offence against s 143 of the POEO Act is a strict liability offence, thereby eliminating mens rea as a necessary element of that offence, the state of mind of an offender at the time of the offence can have the effect of increasing its seriousness. A strict liability offence that is committed intentionally will be objectively more serious than one not so committed. For reasons already articulated, the defendant's conduct in disposing of waste on each of the four occasions that are the subject of the charges against him was premeditated in the sense that he considered beforehand how he would package the waste, the means by which he would transport it and he determined that it would be deposited in a public place knowing that the location to which the waste was taken was neither suitable nor permitted for the depositing of that waste. 26The fact that the action of the defendant was deliberate and known to be wrong increases the seriousness of the offence. In assessing his state of mind however, I accept that the defendant was not aware that the material contained asbestos. 27Taking account all of these matters, I consider that the offence was at the upper end of the lower range of objective seriousness. In making this assessment, I also take into account the fact that the total volume of the material transported and deposited by the roadside at the sites earlier identified was relatively small. Subjective matters 28Having identified those objective circumstances to which I have referred, it is also necessary to consider the subjective circumstances of the defendant. First, it must be noted that he has no prior convictions. 29Further, when the defendant learned from a notice left at his premises that the prosecutor was making enquiries into the commission of the offence, he presented himself to the prosecutor for interview. There he admitted facts establishing the commission of the offence. Moreover, he entered a plea of guilty at the first available opportunity and, as a consequence, is entitled to a discount on the penalty otherwise applicable. 30The defendant gave evidence that established his remorse, accepting that his conduct was wrong and also accepting the potential harm that resulted from his actions. I accept that he is genuinely remorseful (s 21A(3)(i) of the CSP Act). I also record that he has accepted responsibility to pay the prosecutor's legal costs of the proceedings, agreed in the sum of $14,000, together with the prosecutor's investigation and clean-up costs of $3,080. 31Before turning to determine an appropriate penalty, it is necessary to address a further principle of sentencing that is important to be noticed, namely that principle directed to deterrence. I accept that the defendant is very unlikely to repeat the offence for which he is presently charged and as a consequence I do not consider it necessary to include any element in penalty for specific deterrence. 32However, general deterrence must be reflected in an appropriate penalty. The need to enforce observance of the statutory regime for waste disposal is important. It is notorious that unlawful dumping of waste in the urban areas of Sydney is a problem with which the authorities must contend. Imposition of inadequate penalties will do nothing to deter those who would use the streets of the greater Metropolitan area as an inexpensive means of waste disposal. 33In determining the penalty that I should impose, I take account of those decided cases that have been cited to me on behalf of the prosecutor by Mr Webber. However, it is appropriate to observe that, in the main, the offences that were the subject of those decisions involved actions of far greater severity than those in the present case. Moreover, the subjective circumstances of the defendants in those other cases seem to me to be quite different from those that are applicable to the present defendant. 34When imposing a penalty, it is necessary that I also take into account the provisions of the Fines Act 1996 (s 6). Evidence has been presented on behalf of the defendant that is not challenged by the prosecutor and is directed to the personal circumstances of the defendant. He is a married man with two young children, working as a licensed dealer at the Sydney Casino. Detailed evidence has been presented of his weekly income and outgoings. Without reciting its detail in this judgment, that evidence establishes that he has little surplus after taking account of the total income that he derives and the aggregate expenses that he incurs. As the prosecutor points out, his evidence does demonstrate that there is an equity in his home against which a drawing of funds is available. I take all of these matters into account when determining the penalty that I am shortly to announce. The appropriate penalty 35A penalty that is appropriate is one that is reached by applying an instinctive synthesis of both the objective factors pertaining to the offence and the subjective circumstances of the defendant (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 359; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [26]. It seems to me that the appropriate penalty in each case is a fine of $10,000. From that sum I would allow a full discount of 25 percent for the plea of guilty yielding a result for each offence of a fine of $7,500 for a total of $30,000. However that is not the end of the matter. Totality 36In the circumstances of these prosecutions I am required to consider the principle of totality. That principle is one requiring that, when imposing a sentence upon a defendant who has committed more than one offence, particularly where the offences really form part of a single train of events, I determine whether the aggregate penalty, assessed separately for each offence, truly reflects the degree of criminality appropriate to the totality of the offences committed. That is, I am required to consider whether it is just and appropriate to impose the aggregate penalty that will be achieved if each offence is considered separately. 37As I have indicated, while there were four separate locations to which the waste material from the cladding on the defendant's garage was taken and deposited, the transporting and depositing of that material took place on the one day and was ultimately part and parcel of a single enterprise. In that circumstance, it seems to me that a total penalty of $30,000 would be disproportionate to the total criminality that was involved. In the circumstances, I propose that an aggregate penalty should be $20,000 i.e. a fine of $5,000 for each of the four offences. Orders 38Accordingly, the orders that I make are as follows: 1. The defendant is convicted of each offence as charged. 2. The defendant is fined the sum of $5,000 for the offence against s 143 of the Protection of the Environment Operations Act 1997 as it relates to the transporting and depositing of material adjacent to premises at 12 Phillip Street, Blakehurst. 3. The defendant is fined the sum of $5,000 for the offence against s 143 of the Protection of the Environment Operations Act 1997 as it relates to the transporting and depositing of material adjacent to premises at 67 Illawarra Street, Allawah. 4. The defendant is fined the sum of $5,000 for the offence against s 143 of the Protection of the Environment Operations Act 1997 as it relates to the transporting and depositing of material on the corner of Cole Street and Finney Lane, Hurstville. 5. The defendant is fined the sum of $5,000 for the offence against s 143 of the Protection of the Environment Operations Act 1997 as it relates to the transporting and depositing of material at the corner of Gallipoli Street and Woniora Road, Hurstville. 6. The defendant must pay the prosecutor's investigation and clean-up costs in the sum of $3,080. 7. The defendant must pay the legal costs of the prosecutor agreed in the sum of $14,000. 8. 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. Decision last updated: 15 November 2013