Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Alcobell Pty Ltd, Environment Protection Authority v Campbell [2015] NSWLEC 123 Decision date: 05 August 2015 Jurisdiction: Class 5 Before: Pain J Decision: See paragraph [124] Catchwords: SENTENCING – pleas of guilty to multiple waste offences – deposition of asbestos contaminated demolition waste on three properties – state of mind of individual defendant – beneficiaries of offences not all charged – mitigating factors – lack of capacity to pay penalty and legal costs – totality principle applied – avoidance of double punishment necessary SENTENCING – plea of guilty to knowingly supply false and misleading information Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A, s 21A, s 22, s 257B, s 257G Fines Act 1996 (NSW) s 6 Pesticides Act 1999 (NSW) s 15 Protection of the Environment Operations Act 1997 (NSW) s 3, s 143, s 144, s 169, s 211, s 241(1), s 248, Sch 1 cl 39, cl 50 Protection of the Environment Operations (Waste) Regulation 2005 (NSW) cl 51, cl 51A Waste Avoidance and Resource Recovery Act 2001 (NSW) Cases Cited: Axer Pty Ltd v Environmental Planning Authority (1993) 113 LGERA 357 Bankstown City Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, (2010) 79 NSWLR 1 Director General, Department of the Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102 Environment Protection Authority v Barnes [2006] NSWLEC 2 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Hargraves (No 2) [2003] NSWLEC 15; (2003) 124 LGERA 57 Environment Protection Authority v Mark Peters [2006] NSWLEC 612; (2006) 153 LGERA 238 Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 Hoare v R [1989] HCA 33; (1989) 167 CLR 348 Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Plath of Department of Environment and Climate Change v Fish, Plath of Department of Environment and Climate Change v Orogen Pty Ltd [2010] NSWLEC 144; (2010) 179 LGERA 386 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Rahme v R (1989) 43 A Crim R 81 Veen v R [1979] HCA 7; (1979) 143 CLR 458 at 490 Veen v R [No 2] [1988] HCA 14; (1988) 164 CLR 46 Category: Sentence Parties: 50713, 50714 of 2013 and 50348 of 2014 Environment Protection Authority (Prosecutor) Alcobell Pty Ltd (Defendant) 50715 of 2013, 50773 of 2013 and 50349 of 2014 Environment Protection Authority (Prosecutor) Alistair Murray Campbell (Defendant) Representation: Counsel: Mr T Howard SC (Prosecutor) Mr M Wright (Defendant) Solicitors: Office of Environment and Heritage (Prosecutor) Benatos White (Defendant) File Number(s): 50713-50716/13, 50773/13, 50348-49/14 Judgment Sentencing for multiple waste offences 1. The two Defendants Alcobell Pty Ltd (Alcobell) and Mr Campbell, have pleaded guilty to a total of six offences under the Protection of the Environment Operations Act 1997 (NSW) (PEO Act) in relation to the transportation and deposition of waste. The offences related to a property in Capertee owned by Mr Campbell (Capertee) and Mr Kirby (Clarence) and a property in Ben Buller owned by Mr and Mrs Skeen (Ben Bullen). 2. Alcobell has pleaded guilty to three offences against s 143 of the PEO Act for transporting waste to a place that could not lawfully be used as a waste facility for that waste. 3. Mr Campbell was the sole director of Alcobell. As a director of Alcobell, he has pleaded guilty to two waste transport offences as charged against Alcobell. He is taken to have committed these offences pursuant to the executive liability provision under s 169 of the PEO Act. 4. Mr Campbell has also pleaded guilty to an offence under s 144 of the PEO Act, in relation to the third charge against Alcobell concerning Capertee. This charge relates to Mr Campbell's use of Capertee as a waste facility without lawful authority as then landowner of that property. 5. In addition to the waste offences, Mr Campbell has also pleaded guilty to an offence against s 211 of the PEO Act in that on or about 2 May 2013, he furnished information in purported compliance with a requirement made under Ch 7 of the PEO Act, knowing that it was false or misleading in a material respect. 6. The pleas of guilty mean that the Defendants admit the essential elements of these offences. The ss 143 and 144 offences are strict liability offences. Protection of the Environment Operations Act 1997 (NSW) 1. Relevant sections of the PEO Act provide: 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, (c) to ensure that the community has access to relevant and meaningful information about pollution, (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, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, (g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001. … 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, are each guilty of an offence. (2) Proof of lawfulness In any proceedings for an offence under this section the defendant bears the onus of proving that the place to which the waste was transported can lawfully be used as a waste facility for that waste. (3) Defence—owner of waste It is a defence in any proceedings against an owner of waste for an offence under this section if the owner did not transport the waste and establishes: (a) that the commission of the offence was due to causes over which the owner had no control, and (b) that the owner took reasonable precautions and exercised due diligence to prevent the commission of the offence. (3A) Defence—approved notice It is a defence in any proceedings for an offence under this section if the defendant establishes that: (a) an approved notice was, at the time of the alleged offence, given to the defendant by the owner or occupier of the place to which the waste was transported or was displayed at the place, and (b) the approved notice stated that the place could lawfully be used as a waste facility for the waste, and (c) the defendant had no reason to believe that the place could not lawfully be used as a waste facility for the waste… (4) Definitions In this section: approved notice means a notice, in a form approved by the EPA: (a) stating that the place to which the notice relates can lawfully be used as a waste facility for the waste specified in the notice, and (b) that contains a certification by the owner or occupier of the place that the statement is correct. owner of waste includes, in relation to waste that has been transported, the person who was the owner of the waste immediately before it was transported. 144 Use of place as waste facility without lawful authority (1) A person who is the owner or occupier of any place and who uses the place, or causes or permits the place to be used, as a waste facility without lawful authority is guilty of an offence. Note. An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169. (2) In any proceedings for an offence under this section the defendant bears the onus of proving that there is lawful authority to use the place concerned as a waste facility. 169 Liability of directors etc for offences by corporation—offences attracting special executive liability (1) If a corporation contravenes, whether by act or omission, a provision of this Act attracting special executive liability, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that: (a) (Repealed) (b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation. (1A) For the purposes of this section, each of the following provisions attract special executive liability: … (o) section 143 (1), (p) section 144 (1), … (2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision. (3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations. … 211 Offences … (2) A person who furnishes any information or does any other thing in purported compliance with a requirement made under this Chapter, knowing that it is false or misleading in a material respect is guilty of an offence. 1. The Dictionary to the PEO Act provides: waste includes: (a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or (e) any substance prescribed by the regulations to be waste. A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered. 1. The Protection of the Environment Operations (Waste) Regulation 2005 (NSW) (PEO Waste Regulation) relevantly provides: 51 General provisions relating to exemptions (1) The EPA may grant an exemption under this clause if authorised to do so by any provision of the Act or by another provision of this Regulation. (2) An exemption may be granted in relation to: (a) any person or class of persons, or (b) any premises or class of premises, or (c) any area or class of areas, or (d) any activity or class of activities, or (e) any other matter or thing or class of matters or things. (3) An exemption granted under this clause may be a general exemption or a specific exemption. (4) A general exemption may be given by way of notice published in the Gazette. A specific exemption may be given after an application is made to the EPA. (5) An application for a specific exemption must: (a) be in the approved form, and (b) be accompanied by such fee (if any) as the EPA may determine, and (c) be accompanied by such information, documents or evidence as may be required by the EPA for the purposes of determining whether the exemption should be given. (6) An exemption under this clause is subject to such conditions as may be imposed by the EPA. (7) In giving an exemption under this clause, the EPA may, in relation to a general exemption, and must, in relation to a specific exemption, identify a person (or class of persons) to whom the exemption relates (the responsible person). (8) A general exemption may be amended or revoked by the EPA by way of notice published in the Gazette. (9) A specific exemption may be amended or revoked by the EPA by way of written notice given to the responsible person. (10) If an exemption is given under this clause for which a responsible person is identified, the responsible person must comply with the conditions to which the exemption is subject. Maximum penalty: 400 penalty units in the case of a corporation, 200 penalty units in the case of an individual. 51A Exemptions relating to certain waste (1) This clause applies to: (a) waste that is waste by virtue of paragraph (d) of the definition of waste in the Dictionary to the Act, and (b) any other waste that is used in connection with a process of thermal treatment, and (c) coal washery rejects (within the meaning of Part 2). (2) The EPA may from time to time grant an exemption under clause 51 that exempts a person or class of persons from any one or more of the following provisions in relation to an activity or class of activities relating to waste to which this clause applies: (a) the provisions of sections 47–49 and 88 of the Act, (b) the provisions of Schedule 1 to the Act, either in total or as they apply to a particular type of activity, (c) the provisions of Part 3 and clauses 45 and 47 of this Regulation. 1. A lengthy statement of agreed facts (SOAF) was the primary basis for facts relevant to the sentencing hearing. It provides (footnotes omitted): 1 Alcobell Pty Ltd (ACN 065 974 745) (Alcobell) is a mixed bulk haulage company that was formed by Mr Alistair Murray Campbell in 1994. 2 At all relevant times, Mr Campbell was Alcobell's sole director and shareholder. 3 Over the period between 9 July 2010 and 6 June 2012, which covers the period of all s 143 and s 144 offences in this matter: a. Alcobell transported waste, as well as quarried materials such as sand and gravel. b. Alcobell paid Mr Campbell a salary once a month. c. Mr Campbell ran Alcobell and did all the paperwork for Alcobell. Mr Campbell was the only person who raised invoices for Alcobell and the only person who authorised payment of bills by Alcobell. d. Mr Campbell and from time to time Alcobell contractor Mr Douglas Dowton drove trucks carrying loads of waste and other materials on behalf of Alcobell. e. Alcobell owned two white Kenworth prime movers, with NSW registration numbers "HOT604" and "TIP604". f. "TIP604" was primarily driven by Mr Campbell. Mr Campbell may have had a casual driver drive "TIP604" here and there, but only taking non-waste loads. g. Alcobell leased prime mover "HOT604" to Mr Dowton, who was the primary driver of that vehicle. Mr Dowton used "HOT604" to cart loads for his own business, DWD Haulage, as well as to cart loads for Alcobell. h. Mr Campbell instructed Mr Dowton in relation to the work Mr Dowton did for Alcobell. i. Mr Dowton regularly advised Mr Campbell of the work he had done on behalf of Alcobell by dropping dockets recording the loads of material he had transported in Mr Campbell's letter box. Mr Campbell then issued invoices on behalf of Alcobell in relation to those loads. 4 On 30 April 2013, Alcobell ceased to carry on business and on 30 June 2013, it cancelled its GST registration. SUMMARY OF THE OFFENCES 5 On a regular basis between about 9 July 2010 and 3 April 2012, Alcobell, primarily through Mr Campbell, transported approximately 2485 tonnes of waste to, and deposited the waste on, a rural property owned by Mr Campbell in Capertee NSW (the Capertee Property). 6 On a regular basis between about 28 May 2011 and 29 November 2011, Alcobell, primarily through Mr Campbell, transported approximately 2589 tonnes of waste to, and deposited the waste on, a rural property owned by Mr Ricky James Kirby in Clarence NSW (the Clarence Property). 7 On a regular basis between about 22 December 2010 and 19 May 2011, Mr Campbell, on behalf of Alcobell, transported approximately 1457 tonnes of waste to, and deposited the waste on, a rural property owned by Mrs Lynette and Mr Barry Skeen in Ben Bullen NSW (the Ben Bullen Property). 8 Each of these three properties is located in the Lithgow local government area. 9 Land application of the above quantities of waste on each property was unlawful on the basis that there was no applicable environment protection licence under the Protection of the Environment Operations Act 1997 (NSW) (the POEO Act) and there was no development consent permitting such use of the Clarence Property or the Ben Bullen Property. 10 The only development consent for the Capertee Property over the period of the offences was DA No 11/08DACC issued by Lithgow City Council on 10 April 2008. A copy of that consent is Exhibit "AC4" to the affidavit of Mr Campbell dated 27 May 2015. 11 The waste Alcobell transported to the three properties originated from waste transfer and resource recovery facilities (skip bin facilities) in the Sydney metropolitan area. 12 As part of the investigation into the transport of waste to the Clarence and Capertee Properties, EPA authorised officer Mr Jason Scarborough conducted a recorded interview with Mr Campbell on 2 May 2013. 13 Mr Scarborough directed Mr Campbell to answer questions about documents Mr Campbell (on behalf of Alcobell) had provided to the EPA in response to a notice issued under s 193 of the POEO Act. 14 Mr Campbell furnished information during the interview that was false and misleading in a material respect. The false and misleading information involved Mr Campbell asserting that a set of documents that he had produced to the EPA in response to the s 193 notice were the true, accurate and complete record of loads of material that he transported between 1 September 2011 and 30 November 2011. BACKGROUND The Capertee Property owned by Mr Campbell 15 The Capertee Property is a 40.53 hectare bushland property at Lot 5 in Deposited Plan 248232, known as Lot 5 Glen Davis Road, Capertee NSW, about 65 km north of Lithgow. 16 At all relevant times, Mr Campbell was the sole owner and occupier of the Capertee Property and had sole management and control of it. The property was secured by a padlock and chain on the entrance gate. 17 Crown Creek runs through the western part of the Capertee Property and a farm dam is located on the property. There are no buildings on the property and no one resides there. The Clarence Property owned by Mr Kirby 18 The Clarence Property is a rural property at Lot 13 in Deposited Plan 852373, known as 179 Donald Road Clarence NSW, about 10 km east of Lithgow. 19 From 11 January 2008 to 30 January 2012, the Clarence Property was owned by Mr Kirby and his former wife Mrs Kirby as joint tenants. The property was transferred into Mr Kirby's name as sole owner on 30 January 2012. 20 At all relevant times, Mr Kirby has lived at the Clarence Property. Mrs Kirby has not lived at the property since about 2008. 21 Mr Kirby is a truck driver and motor mechanic employed by ICF Haulage, a company that supplies sand, gravel and road base in truck and dog tippers and carts waste. 22 Located on the Clarence Property are a house, carport, water tanks and a truck shed and access driveway. The Ben Bullen Property owned by Mr and Mrs Skeen 23 The Ben Bullen Property is a rural property at Lot 20 in Deposited Plan 755759, known as 3555 Castlereagh Highway (or Mudgee Road), Ben Bullen NSW. The Ben Bullen Property is located about 5 km south of Capertee and about 40 km north of Lithgow. 24 From about 1999 to date, the Ben Bullen Property has been owned by elderly retired couple Mr Barry and Mrs Lynette Skeen as joint tenants. The Skeens retired in 2005 and have resided in a house on the Ben Bullen Property since 2007. 25 Located on the Ben Bullen Property is an access road about 600 m long, that runs from the Castlereagh Highway to the Skeens' residence. This access road crosses Crown Ridge Creek and is about 100 metres from a farm dam. Map of properties 26 The location of each of the three properties is shown on the map at Tab 1 of the Agreed Bundle. Requirement for environment protection licence 27 Under cl 39 of Sch 1 of the POEO Act, a licence is required for the scheduled activity of applying to land waste received from off site, with certain exceptions. "Applying" the waste to land includes depositing waste on the land, mixing waste into the land or filling the land. 28 The waste Alcobell transported to each of the Capertee Property, the Clarence Property and the Ben Bullen Property was generated inside the regulated area. Each of the three properties is located outside the regulated area. Therefore, without a licence, each property could lawfully receive from off site, over any period of time, no more than 200 tonnes of the following waste generated inside the regulated area (and no other waste): (i) building and demolition waste only, (ii) building and demolition waste mixed with virgin excavated natural material. 29 As each property received well over 200 tonnes of waste, waste disposal by application to land on each property was a scheduled activity that required an environment protection licence. 30 At no time was there an environment protection licence in force in respect of the Capertee Property, the Clarence Property or the Ben Bullen Property. Resource Recovery Exemptions 31 An environment protection licence is not required for an activity that falls within a Resource Recovery Exemption (RRE) granted by the EPA under clauses 51 and 51A of the Protection of the Environment Operations (Waste) Regulation 2005 (the Waste Regulation). Where the conditions of the RRE are complied with, the relevant activity is taken to be a non-scheduled activity, for which no licence under the POEO Act is required. 32 The EPA has granted a number of General RREs that permit the land application of a waste material that is a bona-fide, fit for purpose, reuse opportunity that causes no harm to the environment or human health. The RREs are subject to conditions. 33 The General RREs that were in place over the period of the s 143 and 144 offences included: (a) The "continuous process" recovered fines exemption September 2010 – recovered fines are a soil or sand substitute with a typical particle size of less than 9.5mm that is derived from the processing of mixed building and demolition waste including residues from the processing of skip bin waste. Continuous processing is a method of processing building and demolition waste to produce recovered fines. (b) The recovered aggregate exemption 2010 – relates to material comprising of concrete, bricks, ceramics, natural rock and asphalt processed into an engineered material. This does not include refractory bricks or associated refractory materials, or asphalt that contains coal tar. 34 General RREs for these materials first came into effect in 2008. They were subsequently revised and the General RREs that were relevant to the present matters commenced on 13 September 2010 and were in force over the whole of the offence periods. 35 These RREs provided exemptions from certain provisions of the POEO Act for "consumers", being persons who apply, cause or permit the application to land of the material for which the RRE is granted. 36 The RREs did not provide an exemption where the waste was received at premises that were, despite the RRE, required to be licensed for waste disposal by application to land. 37 The RREs did not exclude the material subject to the RRE from being "waste" within the meaning of the POEO Act. 38 In order for the RREs to apply, the "processor" (the skip bin facilities, being the person who prepares the material for supply to consumers) was required to provide a written statement of compliance to the consumer with each transaction, certifying that the material complies with the conditions of the RRE. 39 If there was a failure to comply with any condition of an RRE, then use of the waste was not exempt from the provisions of the POEO Act and there was no exemption from the requirement to hold an environment protection licence and no exemption from the requirement to pay contributions under s 88 of the POEO Act (the waste levy). 40 No RRE provided any exemption in relation to the waste deposited on any of the Clarence, Capertee or Ben Bullen properties. Capertee Property and Ben Bullen Property required development consent 41 The Capertee Property and the Ben Bullen Property were at all relevant times zoned 1(a) Rural (General) under the Lithgow City Local Environmental Plan 1994 (the LEP). 42 Use of either property as a waste facility constituted "development" under the Environmental Planning and Assessment Act 1979. Use of either property as a waste facility was not permitted without development consent. 43 The State Environmental Planning Policy (Infrastructure) 2007 (the Infrastructure SEPP) applied to land in the zone in which the Capertee Property and the Ben Bullen Property are situated. 44 The Infrastructure SEPP imposed a requirement for development consent in order to use land as a "waste disposal facility". "Waste disposal facility" was defined to include a "facility for the disposal of waste by landfill, incineration or other means, including associated works or activities such as recycling, resource recovery and other resource management activities". 45 The waste disposal activities on the Capertee Property and the Ben Bullen Property constitute use of the land as a "waste disposal facility" and therefore required development consent under the Infrastructure SEPP, regardless of whether consent was required under the LEP. 46 At no time was there a development consent in place that permitted use of the Capertee Property or the Ben Bullen Property as a waste facility. Clarence Property required development consent 47 The Clarence Property was at all relevant times zoned 1(c) Rural (Small Holdings) under the LEP. 48 Under the LEP, use of the Clarence Property as a waste facility was not permitted without development consent. 49 The only development consents granted for the Clarence Property were granted in 2002, one for construction of a garage and one for construction of a dwelling. Both structures had been erected prior to May 2011. Neither consent permitted use of the land as a waste facility. 50 At no time was there a development consent in place that permitted use of the Clarence Property as a waste facility. HISTORY History of EPA's interactions with Mr Campbell and Alcobell 51 On 29 October 2009, EPA officers including Mr Scarborough inspected the Capertee Property with Lithgow City Council officers after receiving a complaint about potentially unlawful application of waste to land on the Property. The EPA officers estimated that at least 500 cubic metres of building and demolition waste, consisting of bricks, concrete, tiles, timber, plastic and fines, had been applied to land under roads and in two fill areas. No volumetric survey was carried out at this time. 52 On 10 November 2009, EPA officers Mr Scarborough and Mr Andrew Helms met Mr Campbell at the Capertee Property. Mr Scarborough had the following conversation with Mr Campbell: Mr Campbell: "I just want to make sure, so that there is no confusion or misunderstanding later on, that I know exactly what material is covered by the exemptions. This material here [gesturing to the material shown in the foreground of the photograph at Tab 2] has been given to me as 'recovered aggregate'. Does it look like recovered aggregate to you?" Mr Scarborough: "Well the exemption describes recovered aggregate as material made from concrete, bricks, ceramics and asphalt that has been processed. This is definitely a more processed product than what I saw when I was last out here and it looks as if it fits the physical description of a 'recovered aggregate'. That being said, I can't tell if this material meets the chemical limits outlined in the exemption just by looking at it." Mr Campbell: "That's alright. I have those results and take my own samples for testing. What about this pile [gesturing to the material shown in the background of the photograph at Tab 3]? This was given to me as 'recovered fines'." Mr Scarborough: "It visually appears to fit the description in the exemption. Without the benefit of a particle size test, I would say that it seems that the particles in this material are smaller than 9.5 millimetres. But again, I can't tell if this material meets the chemical limits in the exemption just by its appearance." Mr Campbell: "I have results for this stuff too." 53 The parties do not agree on whether Mr Campbell offered to give Mr Scarborough a copy of test results for the material during the meeting. 54 Mr Scarborough advised Mr Campbell that a portion of the waste on the Capertee Property at this time did not comply with any RRE, which meant that because the waste had originated from the Sydney Metropolitan Area, an environment protection licence was required to deposit more than 200 tonnes of building and demolition waste at the Property, with 200 tonnes being the relevant licensing threshold under Schedule 1 of the POEO Act. 55 Mr Campbell told Mr Scarborough that he accepted that all the building and demolition waste at the Capertee Property had not been used in accordance with any RRE and that he accepted that the EPA would deem in his favour that the total amount of building and demolition waste on the Property at this time was 200 tonnes. 56 On 1 December 2009, the EPA issued Mr Campbell with a Notice of Clean Up Action (Clean up Notice 1108386) in relation to the waste on the Capertee Property at that time. The cover letter to that notice stated: "… any additional waste brought to the premises that does not comply with a resource recovery exemption will result in a contravention of Section 48(2) of the Protection of the Environment Operations Act 1997 – undertaking a scheduled activity without a licence." 57 Clean up Notice 1108386 required Mr Campbell to cease causing or permitting the transport and receipt of waste at the Capertee Property and to provide information and documents to the EPA about the waste on the property. 58 On 9 April 2010, the EPA sent a facsimile to Mr Campbell. A copy of that facsimile is at Tab 4. 59 On 11 May 2010, the EPA wrote a letter to Mr Campbell again stating that Mr Scarborough and Mr Campbell had agreed that the EPA would stipulate that the amount of building and demolition waste used in the road construction was exactly 200 tonnes. The letter also stated that "Any additional non-exempt waste applied to land at the premises will result in a breach of Section 48(2) of the [POEO] Act". 60 On 11 May 2010, the EPA issued to Mr Campbell a penalty notice for a breach of s 144 of the POEO Act (owner/occupier cause/permit/use land as a waste facility), in that on 29 October 2009, Mr Campbell was the owner of the Capertee Property and received an estimate of more than 500 cubic metres of building and demolition waste to the Property, without being permitted to do so by a development consent or environment protection licence. Mr Campbell paid the penalty notice ; 61 On 7 July 2010, Mr Campbell on behalf of Alcobell transported a load of 31.47 tonnes of building and demolition waste to the Capertee Property. Mr Campbell was tipping the load out of his truck and onto the ground on the Property, when he was stopped by two Council officers. The EPA investigated this incident and subsequently prosecuted Mr Campbell and Alcobell in Lithgow Local Court in relation to the incident. Mr Campbell and Alcobell were convicted and the sentences imposed are set out below under "Prior convictions". Waste transported to Capertee Property prior to present offences 62 Between 1 January 2009 and 8 July 2010 (prior to the present offences), about 2472 tonnes of waste had been transported to the Capertee Property from inside the regulated area. Mr Campbell removed about 120 tonnes of that waste from the Capertee Property between about 20 and 25 November 2009, pursuant to the agreement reached on 10 November 2009. PRESENT OFFENCES Sources of waste transported to Clarence, Capertee and Ben Bullen Properties 63 The waste Alcobell transported to the Clarence Property, the Capertee Property and the Ben Bullen Property over the offence periods originated from waste transfer and resource recovery facilities operated by the following skip bin companies: (a) Aussie Skips (Australia) Pty Ltd (Aussie Skips) at Unit 5, 84-108 Madeline Street, Strathfield South NSW (also referred to in parts of the evidence as "Enfield"); (b) Empire Waste Pty Ltd or Empire Skip Bins Pty Ltd (Empire) at 5 Meadow Way, Banksmeadow NSW (also referred to in parts of the evidence as "Botany"); and (c) Just Recycling Pty Ltd (Just Recycling) at Unit K3-B, 12 Pike St Rydalmere NSW. 64 Each of these facilities was located inside the "regulated area" within the meaning of the POEO Act. 65 The locations of these facilities are shown on the map at Tab 1. 66 Each of the skip bin companies provided skip bins to customers who paid to be able to fill the bins with waste. The bins filled with waste were picked up by the skip bin companies and returned to the facilities for sorting of the recyclable and non- recyclable materials. Some recyclable materials such as metals were able to be sold. Non-recyclable waste should have been sent to facilities that were lawfully able to receive the waste for disposal. Such facilities charged fees for receiving such non-recyclable waste. 67 The materials transported by Alcobell from the skip bin facilities were unwanted both by the people who hired the skip bins and by the skip bin companies. 68 Each skip bin company paid Alcobell a rate per tonne for all the material Alcobell removed. 69 When skip bin waste was received at the Aussie Skips facility, the large recyclable items were removed. The material was then passed through a trommel for screening, then taken to another area. The material was re-screened through a second trommel to separate out the fines with a diameter less than 9.5mm, which were stored in a separate stockpile to the coarser material. From time to time, waste received in the skip bins at Aussie Skips contained asbestos. Material believed to be asbestos was sorted and removed by hand, stored in a separate area and disposed of at SITA's Kemps Creek facility. 70 Skip bins received at the Empire facility had their contents tipped out in the yard and sorted, so that light rubbish and metals such as steel and copper were removed by excavator or hand. The waste was then put through a screening machine to separate fines from rocks, bricks and rubble. 71 At the time Alcobell transported waste from Empire, Empire did not test its material for compliance with any RRE. Mr Campbell knew at that time that Empire's waste did not meet the requirements of any RRE, at least in part because Empire did not carry out any testing of its material. 72 Skip bins received at the Just Recycling facility typically contained building and demolition waste, waste from household clean ups or garden waste. When the skip bins containing waste were brought back to the Just Recycling facility, the waste was tipped inside the factory unit. Recyclables such as metal and non-recyclable lightweight wastes were pulled out manually. When suspected asbestos was found in the waste, the pieces of suspected asbestos were picked out of the waste. The remaining waste was then loaded into a hopper, onto a conveyor and then screened through a 40mm screen to sort pieces of waste by particle size. The screened material was fed into a trommel, which used centrifugal force to separate the 10 to 40 mm brick and concrete from the fines. 73 Just Recycling did not produce any material compliant with an RRE over the period of the offences. 74 Just Recycling disposed of asbestos waste it identified in its skip bin waste for a fee of about $150 per tonne at a landfill at Kemps Creek. Just Recycling paid to dispose of brick and concrete greater than 40 mm in size at a facility at Camellia. The 10 to 40 mm brick and concrete was typically taken by Just Recycling to Concrete Recyclers at Camellia or was taken away by contractors including Alcobell. The fines were typically taken by contractors including Alcobell. Mr Campbell's dealings with the skip bin companies 75 In early 2008, Mr Campbell had approached Aussie Skips and said he had a property to which he could transport material from Aussie Skips' premises. Aussie Skips agreed to this under an unwritten agreement. 76 Mr Campbell first started transporting waste from Empire in about 2009 . Empire's owner/director/manager Mr Dean Baldwin sometimes contacted Alcobell and Alcobell sometimes contacted Mr Baldwin to arrange the pick up of loads from Empire. 77 On 4 February 2010, Mr Campbell provided Aussie Skips with a notice under s 143 of the POEO Act dated 2 February 2010, declaring as the owner of the "Crown Creek Development Project" (ie the Capertee Property), that that property did not require a licence from the EPA and the activities were permitted by a development consent issued by Lithgow City Council. Mr Campbell refused to tell Mr Ulizzi of Aussie Skips where the "Crown Creek Development Project" was located and refused to provide Mr Ulizzi with a copy of any development consent for the property. Clarence Property offences – s 143 offence by Alcobell and s 143 offence by Mr Campbell – LEC Proceedings Nos 50713 and 50715 of 2013 Arrangements for transport of waste to Clarence Property 78 Prior to Alcobell bringing any waste onto the Clarence Property, the owner of the Clarence Property, Mr Kirby, contacted Mr Campbell and asked him to bring onto the Clarence Property "clean fill" for turf underlay. 79 Filling had occurred on parts of the Clarence Property for a number of years before Alcobell delivered material there. 80 Mr Campbell did not see any development consents for the Clarence Property and Mr Kirby did not advise Mr Campbell of any development consents. 81 Mr Campbell told Mr Kirby that he would probably be the only person to bring waste on. 82 Mr Kirby told Mr Campbell he would tell him when he had enough material and Mr Campbell could stop bringing it. 83 Mr Kirby did not receive or pay any money in relation to the waste Alcobell deposited on his property. 84 Mr Kirby asked Mr Campbell if the supplier of the material was doing all the correct testing. Mr Campbell told Mr Kirby that the supplier had given him testing reports on request and everything was "above board". Mr Campbell told Mr Kirby that all the material was coming from Aussie Skips in Sydney and that all the waste was "recovered fines". Mr Campbell gave Mr Kirby test results for Aussie Skips' material for November 2011 when Mr Kirby asked for them in November 2011. Mr Campbell gave Mr Kirby test results immediately upon being asked to do so. Transport of waste to Clarence Property 85 Between about 28 May 2011 and 29 November 2011, Alcobell transported waste onto the Clarence Property in Alcobell's trucks with registration numbers "TIP604" and "HOT604". 86 Mr Kirby told Mr Campbell where on the property he wanted the waste tipped. Mr Campbell deposited waste in that area while Mr Kirby was at work. Mr Kirby would come home and spread out the waste that had been deposited. 87 The waste Mr Campbell transported to the Clarence Property amounted to approximately 2589.75 tonnes, brought on in about 85 truck and dog loads using Alcobell's truck with registration number "TIP604". 88 Most truck loads contained between 30 and 32 tonnes of waste. 89 The 85 truck and dog loads were made up of: (a) 56 truckloads (1711.75 tonnes) from Aussie Skips; (b) 22 truckloads (654 tonnes) from Just Recycling; and (c) 7 truckloads (224 tonnes) from Empire. 90 Alcobell did not advise the skip bin companies that it was transporting their waste to the Clarence Property. 91 On or about 22 November 2011, under Mr Campbell's direction, Mr Dowton drove "HOT604" to the Clarence Property and at about 8.30am tipped a load of 32 tonnes of waste. Mr Campbell only directed Mr Dowton to deliver loads of fines from Aussie Skips to the Clarence Property. A significant amount of dust from the load that was dumped drifted onto the property of the neighbour to the west of the Clarence Property. 92 Mr Dowton transported possibly a further one or two loads of waste to the Clarence Property on behalf of Alcobell under Mr Campbell's direction, using Alcobell's truck "HOT604". 93 Photographs of stockpiles of waste that were present on the Clarence Property in November 2011, as seen from the neighbour's property to the west, are at Tab 5 . 94 On 28 November 2011, an Alcobell truck delivered to the Clarence Property a load of waste. A photograph of the truck that deposited waste on this date is at Tab 6. 95 On 29 November 2011, Mr Campbell delivered a load of waste to the Clarence Property. Mr Campbell saw Mr Kirby's neighbour video taping him. 96 Mr Campbell decided Alcobell would cease transporting waste to the Clarence Property after 29 November 2011 because of complaints by Mr Kirby's neighbour about the waste being delivered. 97 The waste that Alcobell delivered to the Clarence property between about 28 May 2011 and 29 November 2011 included building and demolition waste, partially screened skip bin waste, bricks, tiles, concrete, plastic, soil and metal. Fragments of asbestos were visible on the surface of waste on the Clarence Property on 23 December 2011 and 14 March 2012. 98 It was obvious on a visual inspection that only some of the waste deposited on the Clarence Property could possibly have been "recovered fines". The majority of the waste on the Clarence Property was coarse screened building and demolition waste, not waste with a typical particle size of less than 9.5mm. 99 Mr Campbell knew when he started depositing waste on the Clarence Property that a significant amount of waste on the property did not comply with an RRE. According to Mr Campbell, the waste that was already on the Clarence Property included logged trees, shavings, brick and concrete mixed with soil, railway ballast, stockpiles of road base and virgin excavated natural material. EPA investigation into waste at Clarence Property 100 The EPA first found out that waste was being deposited on the Clarence Property on 23 November 2011, when it received a complaint from a member of the public. 101 On 29 November 2011, EPA and Council officers inspected the Clarence Property and observed stockpiles of waste on the property. In the waste, the officers observed pipes, soft and hard plastics, timber, bricks, tiles, rubble, tyres, conduit, hose, general rubbish, children's toys and fabrics. Photographs taken by the EPA during this inspection are at Tab 7. Two maps showing the location of those photos are at Tab 8 . 102 During the inspection on 29 November 2011, EPA officer Mr Corradin took two composite samples of waste (ie. each sample bottle was filled using 6 representative small hand spade grabs of waste). One of these samples contained an elevated concentration of lead, that is, higher than the maximum average concentration permitted for characterisation or routine testing under the recovered fines RRE. The defendants do not agree that these samples came from the material they transported. 103 On 30 November 2011, EPA and Council officers returned to the Clarence Property and found that some of the waste stockpiles seen the previous day had been spread or moved and a white aggregate had been spread over the top of them. It is not alleged that Mr Campbell or Alcobell were involved in spreading this waste. Photographs taken during this site inspection are at Tab 9. 104 On 23 December 2011, Mr Scarborough took a sample of suspected asbestos from the surface of waste fill near the water tank on the Clarence Property. This sample was later confirmed as containing chrysotile asbestos and amosite asbestos. The defendants do not agree that this sample came from the material they transported. 105 On 14 March 2012, EPA officers conducted a further inspected of the Clarence Property and observed stockpiles of material, which appeared to be mixed waste and building and demolition waste, including tiles, ceramics, concrete, plastics and asbestos. Some of these stockpiles had been present for some time, which was evident by the fact that vegetation had started to grow over them. Photographs taken during this site inspection are at Tab 10. 106 On 14 March 2012, the EPA took three samples of suspected asbestos from stockpiles that had not changed since the EPA's site inspection on 23 December 2012. All three samples were subsequently confirmed as containing chrysotile asbestos and one of them also contained amosite asbestos. The defendants do not agree that these samples came from the material they transported. 107 Also on 14 March 2012, the EPA took five samples of coarse grained soil and rocks from five visually distinct material types (some fines, some coarse) in stockpiles that had been present since the EPA's inspection on 23 December 2012. The defendants do not agree that these samples came from the material they transported. A map showing the location of these samples is at Tab 11. 108 None of the five samples taken at the Clarence Property on 14 March 2012 that were tested for compliance with the recovered fines RRE complied with the chemical and other attributes specified in that RRE. Four out of five samples tested did not meet the requirement that "fines" contain no more than 5% of material with a particle size greater than 9.5 mm. All five samples exceeded the maximum average lead concentration of 100 mg/kg and most samples also exceeded the maximum average for benzo(a)pyrene of 1.0 mg/kg. 109 The physical contaminant limits for glass, metal and rigid plastics under the recovered fines RRE are a maximum average of 0.1% by mass and an absolute maximum of 0.3 % by mass. Four of the five samples tested exceeded the absolute maximum of 0.3%. The maximum value measured in the samples was 2.9%, appreciably higher than the levels allowed under the recovered fines RRE. 110 On 16 May 2012, a volumetric survey was undertaken of the fill on the Clarence Property. The survey showed that there was a conservative estimate of 1942 cubic metres of fill on the property, not including fill that had previously been brought onto the property for the purposes of constructing the house or garage prior to the offence periods. A copy of the survey is at Tab 12. 111 To convert cubic metres to tonnes, the number of cubic metres needs to be multiplied by a number, which varies depending on the density of the material concerned. For regular building and demolition waste, the number of cubic metres needs to be multiplied by about 1.6 to 1.8 to obtain the tonnage. For material such as concrete and bricks, the multiplier is about 2 to 2.2. The precise density of the waste on the Clarence Property is unknown. However, it is estimated that the 1942 cubic metres of fill shown on the survey would amount to between 3107 and 4274 tonnes of fill. 112 An aerial photograph dated 25 June 2011 (during the offence periods), overlaid with the survey dated 16 May 2012, shows the areas of recent fill and is at Tab 13. 113 Panorama photos taken on 16 May 2012 of the area where the waste had been used as fill are at Tab 14. Capertee Property offences – s 143 offence by Alcobell and s 144 offence by Mr Campbell – LEC Proceedings Nos 50714 and 50716 of 2013 Transport of waste to the Capertee Property 114 Between about 9 July 2010 and 3 April 2012, Mr Campbell on behalf of Alcobell transported a total of 2485.45 tonnes of waste, in 81 truckloads, to the Capertee Property. 115 The 81 truck loads were made up of: (a) 45 truckloads (1350 tonnes) from Just Recycling; (b) 25 truckloads (785.45 tonnes) from Aussie Skips; (c) 10 truckloads (320 tonnes) from Empire; and (d) 1 truckload (30 tonnes) from Quickskips. 116 Most truck loads contained between 30 and 32 tonnes of waste. 117 Mr Dowton may have taken a further three to five loads of waste from Just Recycling and Aussie Skips to the Capertee Property at Mr Campbell's direction between about 9 July 2010 and 6 June 2012. 118 All loads of waste deposited on the Capertee Property were deposited with Mr Campbell's knowledge. 119 Mr Campbell is the only person who authorised waste to be deposited at the Capertee Property. 120 Alcobell is the only entity that transported waste to the Capertee Property. 121 When Mr Campbell transported the waste to the Capertee Property, he deposited it in stockpiles, mixed it with aggregates, spread it using a Case 855 Drott and applied it to the land. The material was then compacted with either an earthmoving machine or truck rolling over it. 122 The extent of waste on the Capertee Property on 15 February 2012 is depicted in the photographs at Tab 15 and described in the index at Tab 15. The locations where the photographs were taken are identified on an aerial photograph of the Capertee Property at Tab 16. EPA's interception of loaded Alcobell truck on 20 December 2011 123 On 20 December 2011, as part of a regulatory compliance campaign, Mr Scarborough intercepted a truck driven by Mr Campbell at Mount Boyce NSW. When intercepted, Mr Campbell was driving prime mover "TIP604" and a loaded trailer westbound. 124 Mr Campbell had picked up the load containing 31.3 tonnes of waste from the Aussie Skips facility. 125 Mr Campbell told Mr Scarborough that the load he was transporting contained 31.3 tonnes of "fines" that had come from Aussie Skips and that he was transporting it to the Capertee Property. 126 Mr Scarborough inspected the load and observed that it contained not merely fines, but partially screened building and demolition waste, including fine grained soils, numerous large fragments of tile, plastic, timber, ceramics and bricks. This material had evidently not been screened through the 9.5 mm trommel at the Aussie Skips' facility. The load clearly contained material that did not meet the requirements of an RRE. 127 Mr Scarborough inspected the load from ground level using a mirror on a pole. He only inspected the contents of the dog trailer, not the truck. He did not take any samples of the loads. Mr Campbell offered to open the grain chute on the tailgate of the truck but Mr Scarborough said words to the effect of "You don't need to do that". 128 Mr Scarborough asked Mr Campbell to produce a certificate of compliance as required by the RRE for recovered fines. Mr Campbell was unable to produce a certificate of compliance. 129 At this time, Mr Campbell had never received a certificate of compliance for any loads of material he picked up from Aussie Skips. 130 Mr Scarborough advised Mr Campbell that in the absence of a certificate of compliance, depositing his load at the Capertee Property would constitute various offences under the POEO Act. 131 On 21 December 2011, Mr Campbell attended the Mount Boyce weigh station and saw Mr Scarborough there. Mr Campbell showed Mr Scarborough a certificate of compliance he had received from Aussie Skips the previous afternoon. Mr Scarborough said to him "That's perfect". Mr Campbell said "Do you want a copy?" Mr Scarborough said "That's not required." Prevention Notice Issued for Capertee Property on 13 March 2012 132 On 13 March 2012, the EPA revoked Clean up Notice 1108386 and issued a Notice of Preventive Action (No. 1504454) (the Prevention Notice), directing Mr Campbell to: "(a) From the date of this notice: (i) cease the transportation of waste to the Premises; and, (ii) cease the depositing of waste at the Premises. (b) From the date of this notice: (i) prevent all other persons and/or corporations from transporting waste to the premises; and, (ii) prevent all other persons and/or corporations from depositing waste at the premises." 133 The Prevention Notice states that "waste" includes all material that is, or purports to be, subject to any RRE. 134 The Prevention Notice requires Mr Campbell to undertake the actions outlined in paragraphs (a) and (b) above until the EPA revokes the Prevention Notice. The Prevention Notice remains in force. 135 Mr Campbell brought a Class 1 appeal against the Prevention Notice in the Land and Environment Court, but withdrew his appeal on 1 November 2012. Waste on Capertee Property on 3 April 2012 136 Building and demolition waste was deposited on the Capertee Property between 13 October 2010 and 3 April 2012. That waste consisted of a heterogeneous mix of fine sand and aggregates, broken bricks, tiles, ceramics, concrete, plastic, asphalt and timber along with soil, metal, wire, glass, paper, PVC, and other discrete items such as empty glue tubes, hose fittings, taps and nail gun gas recharging canisters. 137 Waste had been placed in the following areas between 13 October 2010 and 3 April 2012: (a) near the wall of the farm dam and in a new road constructed to the south west of the farm dam – the new road measured approximately 46.5 m long and an approximate average of 9.2 m wide, with a depth of fill that varied from over 2 metres to a few centimetres (locations Q and R in the figure at Tab 16); and (b) in a network of roads (approximately 400 m long) constructed in the northern part of the Property (locations G through N in the figure at Tab 16). 138 All of the waste near the farm dam wall and the new road had been deposited upslope of Crown Creek. 139 By 3 April 2012, sections of the waste fill near the farm dam had eroded and collapsed, and resulting debris was in the watercourse on the Property, as shown in the photographs on pages 1-7 at Tab 17. 140 On 3 April 2012, EPA officers advised Mr Campbell to remove the debris and erect sediment controls to prevent further sediment or debris from being washed away from its location near the dam wall. 141 The EPA officers took five samples of waste from five visually distinct material types in the areas that had received waste fill since 13 October 2010, to get as representative a picture as possible of the material deposited at the Property. 142 The officers took photographs of the Capertee Property and the sample locations, using numbered place markers to identify the sample locations. The photographs taken by the EPA on this date are at Tab 17. 143 A sample of materials was taken from each of the following locations shown on the satellite image at Tab 18. Place marker Sample Number Particle Size Notes on materials Photos in Tab 15 9 AC030412-1 Mostly fines with some coarse Some timber fragments and larger pieces of tile, brick and concrete. Page 10 10 AC030412-2 Mostly coarse with some fines Glass, larger pieces of brick and concrete Pages 11-12 11 AC030412-3 Approximate even mix of coarse and fines Some timber fragments Pages 12-13 12 AC030412-4 Almost entirely coarse PVC, hard plastics, small gas canisters Page 14 13 AC030412-5 Almost entirely coarse More uniform in size, some plastic and glass Pages 17-18 144 None of the above samples taken at the Capertee Property complied with the chemical and other attributes required for either of the recovered fines RRE to apply. 145 None of the five samples complied with the recovered fines RRE because they all contained more than 5% of material with a particle size greater than 9.5 mm. All five samples exceeded the maximum average lead concentrations allowable under the recovered fines RRE. Three of the samples also exceeded the maximum average permitted concentration of benzo(a)pyrene of 1 mg/kg. 146 The physical contaminant limits for glass, metal and rigid plastics in recovered fines are a maximum average of 0.1% by mass and an absolute maximum of 0.3% by mass. Three of the five samples exceeded the absolute maximum of 0.3%. For comparison the maximum value measured is 2.7%. EPA inspection of Capertee Property on 6 June 2012 147 On 6 June 2012, a surveyor engaged by the EPA attended the Capertee Property and carried out a volumetric survey of the fill deposited there. The survey indicated that a conservative estimate of 4305 cubic metres of fill had been deposited in 11 distinct areas on the property. A copy of that survey is at Tab 19. An aerial photograph of the Capertee Property overlaid with the areas of fill found in the survey is at Tab 20. 148 To convert cubic metres to tonnes, the number of cubic metres needs to be multiplied by a number, which varies depending on the density of the material concerned. For regular building and demolition waste, the number of cubic metres needs to be multiplied by about 1.6 to 1.8 to obtain the tonnage. For material such as concrete and bricks, the multiplier is about 2 to 2.2. The precise density of the waste on the Capertee Property is unknown. However, it is estimated that the 4305 cubic metres of fill would amount to between 6888 and 9471 tonnes of fill. 149 The EPA collected six samples of suspected asbestos from the waste fill from different locations on the northern part of the road network on the Capertee Property. All 6 samples were subsequently confirmed to contain chrysotile asbestos and four of those also contained amosite asbestos. 150 Mr Scarborough observed debris in the watercourse downstream of the dam and saw that no work had been done in response to his advice to Mr Campbell on 3 April 2012 to remove the debris from the watercourse and erect sediment controls. No timeframe was identified for this work to be done. Mr Campbell carried out the work when weather permitted. It was commenced on 3 April 2012 and completed by 7 August 2012. 151 Water appeared to be seeping through the dam wall at one location, then flowing through the debris in the watercourse and continuing downstream towards Crown Creek. Mr Scarborough collected two water samples on 6 June 2012, one from within the farm dam (sample "SW01") and another from within the watercourse approximately 40 metres downstream, clear of the debris (sample "SW02"). Subsequent lab analysis of the samples identified a two- to ten-fold increase in most metal concentrations between the dam and the sample location 40 metres below the location of the material. Ben Bullen Property offences – s 143 offence by Alcobell and s 143 offence by Mr Campbell – LEC Proceedings Nos 50348 and 50349 of 2014 EPA's execution of search warrant on Alcobell's premises 152 On 26 March 2013, the EPA executed a search warrant on Alcobell's principal place of business (which was also Mr Campbell's home address), as part of the investigation into the disposal of waste at the Clarence and Capertee properties. 153 During the execution of the search warrant, the EPA seized documents including documents known as "daily work sheets" for months from July 2010 to May 2012. The seized daily work sheets indicated that Alcobell had transported waste to properties other than the Clarence and Capertee Properties, including 1457.8 tonnes of waste to a location referred to as "Ben Bullen". The EPA was not previously aware of any waste transported to a property in Ben Bullen. Recorded interview with Mr Campbell on 2 May 2013 154 On 2 May 2013, the EPA conducted a recorded interview with Mr Campbell in relation to Alcobell's transportation of waste to Clarence and Capertee and the alleged provision of false or misleading information in Alcobell's response to a s 193 notice. Mr Campbell was interviewed in both his personal capacity and as Alcobell's corporate representative. This interview resulted in the EPA bringing the charge against Mr Campbell in LEC Proceedings 50773 of 2013 (the facts of which are set out below). 155 During the interview on 2 May 2013, Mr Scarborough required Mr Campbell to answer questions under s 203(1) of the POEO Act, including in relation to information in the seized daily work sheets. The following exchange took place: Q 422. …destination of Ben Bullen. Now a significant quantity of material that's gone to this location, 1,458 tons. Now Ben Bullen isn't a big place and I haven't really made any efforts to find this place at this point in time but I can assure you that I will. Do you want to- - - A It should be pretty easy for you. Q 423 Yeah? Do you want to tell me- - - A No. Q 424 - -where that is? A No. Q 425 You're refusing to answer that question? A Ah it's not in relevance to this matter. Q 426 So you're refusing? A Taking advice of counsel. 156 On 5 June 2013, the EPA issued Alcobell with a notice under s 193 of the POEO Act, requiring Alcobell to identify the location of the property or properties referred to in the seized daily work sheets as "Ben Bullen" and "B/Bullen". 157 On 13 June 2013, the EPA received a response from Mr Campbell on behalf of Alcobell, stating that he did not know the actual address to which "Ben Bullen" on the seized daily work sheets referred, but that the property was on Mudgee Road, Ben Bullen. The response stated that Mr Campbell did not know the owners' full name and no longer had a contact number for them. 158 On 21 June 2013, the EPA sent Alcobell a letter requesting assistance in locating the property on Mudgee Road, in light of concerns that the waste on the property may contain asbestos. The EPA requested a response by 26 June 2013. No response was received. 159 Mr Scarborough undertook further investigations which established that the Skeens' property at Ben Bullen was the property referred to as "Ben Bullen" in the seized daily work sheets. Arrangements for transport of waste to Ben Bullen Property 160 Since purchasing the Ben Bullen Property in 1999, the Skeens had had problems using the access road to the residence on the property in wet weather. Heavy rainfall in 2010 created significant access difficulties, with the road becoming impassable at times. 161 From 1999, the Skeens had carried out works to improve the access road, including raising the height of the road above that of the surrounding area and installing a culvert where the access road crossed Crown Ridge Creek. During these works, material applied to the road included half house bricks from the construction of the house and purchased coal chitter, bitumen mix and road base. In particular, in about October 2010, the Skeens added to the road 75 tonnes of bitumen mix and small rocks from the property. 162 At some point after 16 November 2010, Mrs Skeen gave Mr Campbell permission to bring material onto the Ben Bullen Property. Waste transported to the Ben Bullen Property 163 In late January 2011, Mr Campbell brought onto the Ben Bullen Property an earthmoving machine known as a Drott. 164 Between about 22 December 2010 and 18 May 2011, Mr Campbell on behalf of Alcobell transported a total of 1457.8 tonnes of waste, in 48 truckloads, to the Ben Bullen Property. 165 The 48 truck loads were made up of: (a) 19 truckloads (540 tonnes) from Just Recycling; (b) 17 truckloads (535.5 tonnes) from Aussie Skips; and (c) 12 truckloads (382.34 tonnes) from Empire. 166 Most truck loads contained between 30 and 32 tonnes of waste. 167 The waste included aggregate, bricks, concrete, timber, plastic, fines, tiles, asbestos, tap fittings, a cast iron window sash counterweight, nail gun gas recharge canisters, a dinner fork and many nails. The waste included items between 20 mm and 30 mm in size. 168 Mr Campbell deposited the waste and spread it along the top of approximately 600 metres of the existing access road on the property. 169 The Ben Bullen Property was secure over the period Mr Campbell was delivering waste. Mr Campbell had installed his own lock on the Skeens' front gate so that he could access the property. 170 Some photographs showing the waste brought onto the Ben Bullen Property are at Tab 21. 171 Mrs Skeen asked Mr Campbell if he had any paperwork for the loads. Mr Campbell produced to Mrs Skeen a test report from Aussie Skips. She looked at it and handed it back to Mr Campbell. She did not ask for a copy. 172 No material for the road was delivered to the property by anyone else after Mr Campbell ceased delivering material. No further work was done on the access road after Mr Campbell delivered the last of his loads. 173 The Skeens did not pay, and were not paid, for the waste Mr Campbell brought onto their property. 174 On 23 July 2013, the EPA sampled five pieces of suspected asbestos-containing material from the surface of the road on the Ben Bullen Property. The defendants do not agree that these samples came from the material they transported. A map showing the location at which these samples were taken is at Tab 22. All five samples were later tested and confirmed to contain chrysotile and amosite asbestos. Two of the samples were also confirmed to contain crocidolite asbestos. 175 The waste sampled at the Ben Bullen Property did not comply with the chemical and other attributes required for the recovered fines RRE to apply. None of the four samples met the particle size requirement for fines. All four samples exceeded the maximum average lead concentration of 100 mg/kg and the maximum average for benzo(a)pyrene of 1 mg/kg. 176 The waste sampled contained measurable quantities of glass, metal and rigid plastics. The physical contaminant limits for glass, metal and rigid plastics in recovered fines are a maximum average of 0.1% by mass and an absolute maximum of 0.3 % by mass. Three of the four samples exceeded the absolute maximum of 0.3%. For comparison the maximum value measured at Ben Bullen was 2.36%. Clean up notice for Ben Bullen Property 177 On 11 July 2014, the EPA issued to Alcobell clean-up notice number 1517049 for the Ben Bullen Property. A copy of that notice is at Tab 23. 178 Alcobell has not complied with clean-up notice 1517049. Financial gain resulting from the s 143 and s 144 waste offences 179 Alcobell did not transport waste from the skip bin facilities for free. Alcobell charged Empire, Just Recycling and Aussie Skips a rate per tonne for the removal of waste from their respective premises. The rates were: (a) Aussie Skips – $17 or $19 per tonne (exclusive of GST); (b) Empire – $33 per tonne (exclusive of GST); and (c) Just Recycling – either $13.34, $20, $24 or $40 per tonne (exclusive of GST). 180 Alcobell charged Quickskips $40 per tonne for a 30 tonne load on 24 August 2010. 181 As a result of the waste transport offences, Alcobell received an estimated: (a) $57,191 for waste transported to the Clarence Property; (b) $58,621 for waste transported to the Capertee Property; and (c) $35,729 for waste transported to the Bullen Property. 182 Alcobell also received the following benefits arising from the offences: (a) Alcobell avoided payment of tip fees at lawful waste facilities for the disposal of the waste; and (b) Alcobell typically carted quarry products from Hartley, Clarence or Marrangaroo (all near Lithgow) to the Sydney area. After delivering the quarry products, rather than returning with an empty truck, Alcobell typically collected a return load of waste to deliver to either the Clarence Property, the Capertee Property or the Ben Bullen Property. 183 Alcobell's financial statements contain a breakdown of its income and expenditure for the 2008/9, 2009/10, 2010/11 and 2011/12 financial years. Each of these records contained a specific line item in the expenditure section entitled "Tip fees". A summary of those figures is below: Financial year "Trading profit" or "Sales" "Tip fees" 2008/09 $771,909.00 $107,626.61 2009/10 $968,803.37 $42,532.73 2010/11 $806,348.83 $2,272.73 2011/12 $588,410.47 $6,542.74 Environmental harm – s 143 and s 144 offences 184 Each of the s 143 and s 144 offences has resulted in environmental harm within the meaning of the POEO Act, in that there has been a direct alteration of the environment that has degraded the environment and resulted in pollution. 185 The waste deposited on each property has the potential to cause harm to the soil environment, however the evidence does not establish actual harm to the underlying soil. 186 Recovered fines from building and demolition waste may contain materials with the potential to harm human health or the environment. These materials should therefore be assessed and characterised prior to land application to examine the risks and assess whether the material is "fit-for-purpose" and poses minimal risk of harm to the environment. Such an assessment requires analysis of the physical and chemical attributes of the waste and consideration of the receiving environment into which it will be applied. 187 Waste applied to land at each property was not subject to any adequate chemical or physical assessment to assess the risks of the intended land application activity prior to application. Accordingly, there is a potential for harm to the environment. 188 The waste sampled on each property contains measureable quantities of glass, metal, and rigid plastics. Such physical contaminants may impact on the environment in a number of ways depending on the composition and size of the physical contaminants. There is a: (i) potential for certain physical contaminants (e.g. film or flexible plastics or microplastics) to transport and release chemical contaminants in the environment; (ii) potential for sharp or abrasive physical contaminants (e.g. glass, metal, rigid plastic) to render the soil uninhabitable for macrofauna such as earthworms; (iii) potential for grazing animals such as cattle to ingest physical contaminants such as metal, causing injury or death, known as "hardware disease"; and (iv) potential for injury to plant roots and nodules. 189 Benzo(a)pyrene is a polyaromatic hydrocarbon of particular significance due to its toxicity and status as a carcinogen. Benzo(a)pyrene at the levels found in the waste sampled at the properties does not pose an immediate risk to human health. 190 When Alcobell deposited a truckload of waste onto the Clarence Property on or about 22 November 2011, the neighbour Ms Smith observed a "significant amount of dust" drifted onto her land from the location where the material was deposited. It has impacted on the amenity of her property, given that the waste is visible from it. 191 Asbestos has been confirmed as present within the waste on each of the three properties. 192 Asbestos in the waste poses a risk to human health in the event of any disturbance to the waste. Section 211(2) offence – Mr Campbell's provision of false or misleading information – LEC Proceedings No 50773 of 2013 Alcobell's response to section 193 notice 193 On 16 March 2012, the EPA issued to Alcobell a notice under s 193 of the POEO Act (the s 193 notice), requiring it to provide information and records relating to its transport of waste to the Clarence and Capertee Properties between 1 September 2011 and 31 January 2012. 194 On 27 June 2012, the EPA received from Alcobell a response to the s 193 notice, signed by Mr Campbell. He enclosed as part of this response three documents described as "daily work sheets" for September, October and November 2011 (the notice response work sheets). A copy of these three documents is at Tab 24. 195 The sheets consist of a table with columns for the following details: date; docket number; product transported; location from which material picked up; location to which material delivered; speedometer start number; speedometer stop number; kilometres travelled; rate of payment (per tonne) and tonnes transported. 196 The daily work sheets refer to locations of sources and destinations of transported material by reference to the suburb or locality of the premises. The relevant references are as follows: Reference in daily work sheet Location Botany (source of waste) Empire Waste skip bin facility at 5 Meadow Way, Banksmeadow Enfield (source of waste) Aussie Skips skip bin facility at Unit 5, 84-108 Madeline Street, Strathfield South Clarence (source of non-waste material) Hanson "Kables" sand quarry on Clarence Colliery Rd, Clarence Clarence (destination for waste) Mr Kirby's property at 179 Donald Rd, Clarence Capertee (destination for waste) Mr Campbell's property at Lot 5 Glen Davis Rd, Capertee Lawson (destination for waste) Thomas Landscaping Supplies at 135 Ridge Rd, Lawson (Mr Bottrell's site) B/Heath (destination for waste) Rob Johnson Contracting, 216-224 Evans Lookout Rd, Blackheath 197 On 11 December 2012, Mr Campbell participated in a voluntary interview with Mr Scarborough, under caution. Mr Campbell admitted in that interview that the notice response work sheets were in his handwriting and were for his truck, "TIP604". He said he fills in the sheets every day. The transcript of that interview is in Volume 2 of the Agreed Bundle. 198 The following exchange took place between Mr Scarborough and Mr Campbell, in relation to Alcobell's s 193 response enclosing the notice response work sheets: "Q117 … did you prepare part of that information? A I bundled the material that I was able to - - - Q118 Gathered it together? A Yeah. Q119 Okay and did you have a chance to review that information before you sent that to us? A I didn't go through it specifically, I just grabbed the invoices, the day sheets, um, and the test reports for that period and sent them off. … Q122 … are you satisfied that the information that you've provided to us in that response is true and correct and complete? A It's the only information I have. Q123 So is that a yes? A It's the - the answer is that's the only information I have. Q124 But the question I'm asking is the information that - - - A I've answered the question twice. Q125 No, you've answered it that that's the information you had, what I'm asking you is, is to your knowledge the information that you've provided true, correct and complete? A Yes." EPA's execution of search warrant on Alcobell's premises 199 On 26 March 2013, the EPA executed a search warrant on Alcobell's principal place of business. 200 Documents seized as part of that search warrant included daily work sheets for each month from July 2010 to February 2013 inclusive. 201 The daily work sheets for September, October and November 2011 that were seized under the search warrant will be referred to as the "seized work sheets". A copy of the seized work sheets is at Tab 25. Differences between the two sets of work sheets 202 Although both sets of work sheets were in the same format, the seized work sheets for September, October and November 2011 differed from the notice response work sheets Alcobell had provided to the EPA for those same months. 203 In the notice response work sheets, when compared to the seized work sheets: (a) 15 entries recording transported loads had been omitted (the omitted entries); and (b) 27 entries had the destination for the load changed from "Clarence" and 1 entry had been changed from a load going from "Clarence" to "Enfield" to a load going from "Enfield" to "Lawson" (the changed entries). 204 The omitted entries are highlighted in pink on the seized work sheets at Tab 26. The dates of the 15 omitted entries are 8/9/11, 14/9/11, 15/9/11, 28/9/11, 4/10/11, 7/10/11, 10/10/11, 26/10/11, 3/11/11, 8/11/11, 8/11/11, 14/11/11, 16/11/11, 18/11/11 and 22/11/11. 205 The changed entries are highlighted in green on the seized work sheets at Tab 26 notice response work sheets at Tab 27. The dates of the 28 changed entries are 2/9/11, 5/9/11, 6/9/11, 8/9/11, 9/9/11, 12/9/11, 13/9/11, 14/9/11, 15/9/11, 16/9/11, 29/9/11, 5/10/11, 6/10/11, 11/10/11, 12/10/11, 17/10/11, 20/10/11, 21/10/11, 24/10/11, 25/10/11, 1/11/11, 2/11/11, 7/11/11, 10/11/11, 11/11/11, 17/11/11, 21/11/11 and 25/11/11. 206 Where "Clarence" is referred to as an origin on the daily work sheets, it refers to the Hanson Kables sand quarry at Clarence near the Clarence Property. 207 Where "Clarence" is referred to as a destination on the daily work sheets, it refers to the Clarence Property. 208 The notice response work sheets for September, October and November 2011 are not a true, accurate and complete record of loads of material that Mr Campbell had transported between 1 September 2011 and 30 November 2011, in that they: (a) omit details of 15 loads of material that were in fact transported by Mr Campbell, including all 6 loads of waste transported from Empire (3 to the Clarence Property and 3 to the Capertee Property); and (b) contain false information about the destinations of 27 loads of waste transported in September, October and November 2011 – the destinations on the notice response work sheets are stated to be Capertee (18 loads), Lawson (6 loads) and Blackheath (3 loads), when in fact the destinations were the Clarence Property. Recorded interview with Mr Campbell on 2 May 2013 209 On 2 May 2013, the EPA conducted a recorded interview with Mr Campbell in relation to his waste transportation activities and his response to the s 193 notice, in particular, his provision of the notice response work sheets. Mr Campbell's solicitor, Mr White, was present throughout the interview. Mr Campbell was interviewed in both his personal capacity and as Alcobell's corporate representative. 210 During the interview on 2 May 2013, authorised officer Mr Scarborough required Mr Campbell to answer questions under s 203(1) of the POEO Act. 211 A copy of the transcript of the interview on 2 May 2013 with exhibits shown to Mr Campbell during the interview is at Tab 28. 212 The key parts of the interview are as follows: Q28. … I think it's probably more expedient if I continue the interview from this point as a directed interview. So I'm going to provide you with the caution that's associated with a directed interview. Okay, so Matthew and I are authorised officers of the Environment Protection Authority and we require you to answer the following questions. Now first I must warn you that if you neglect or fail to answer without lawful excuse you are guilty of an offence against the Protection of the Environment Operations Act. Do you understand that? A The lawful excuse part is a bit ambiguous. MR WHITE: Can we have a break, can I explain it to him? MR SCARBOROUGH: Certainly, yep. Okay, we'll temporarily suspend the interview for the purposes of the interviewee obtaining legal advice. INTERVIEW SUSPENDED INTERVIEW RECOMMENCED Q29. Recommencing record of interview with Mr Campbell – Mr Alistair Campbell. Time is now 14:12 hours on 2 May 2013. The interview was suspended for the purposes of Mr Campbell obtaining legal advice. Is there anything that occurred during the break that you'd like entered on the record? A No. Q30. Okay, alright well look I'll – I'll continue with the caution, well actually just so that there's no misunderstanding I'll – I'll restart it. So Matthew and I are authorised officers of the Environment Protection Authority and we require you – require you to answer the following questions. Now I warn you that if you neglect or fail to answer without lawful excuse you are guilty of an offence against the Protection of the Environment Operations Act. Do you understand that? A Yes. Q31. It is also an offence to knowingly answer any question falsely or in a way that is misleading in a material respect. Do you understand that? A Yes. Q32. You may however object to answering questions on the grounds that it might incriminate you personally. Do you understand that? A Yes. Q33. If you do object, you must still answer the question that is put to you, but the answer is not admissible in evidence against you personally, except for the offence of knowingly answering a question falsely or in a way that is misleading in a material respect. Do you understand that? A Yes. Q34. Okay, so is there any part of that caution that you're not clear about? A No. … Q58 Okay, so in the interview of 11 December 2012 you were asked specifically, and this is you personally, were asked specifically if the response that was provided to the EPA's notice to provide information and records was accurate. MR WHITE: Do you have a transcript available? MR SCARBOROUGH: I do. I am going to read that section of the transcript onto the record, okay? So the question that was asked is "to your knowledge, the information that you've provided true correct complete?" The answer you provided was "yes". Do you still maintain that view? A I've already answered that question, yes. Q59 Yes, you maintain the view that the information that you provided in that notice to provide record and information was true, complete and correct? A Yes. Q60. And you're aware that that response was provided by Alcobell? A Yes. Q61. Okay, as part of that response you provided daily worksheets- - - A Yep. Q62. That I will just mark here as AC205. A Mm hm. Q63. For September, October and November. A That's true. Q64. 2011. … … Q67. So I'll go back again. So these are the worksheets that Alcobell provided as part of its response to the notice to provide information and records. So these daily worksheets that I've marked as AC205. Now I asked you specifically about these worksheets at – near the conclusion of that interview and I'll read the excerpt from the transcript. "Question – well look I'll put it to you that those daily worksheets that you were shown there, they've actually been fabricated. That you sat down and done them in one big hit one afternoon in an attempt to fabricate records to support your version of events. What do you say to that?" Your answer, "I say you're incorrect". Do you still maintain that view? A Yes. … Q79. Were those records fabricated? A No. They may be - have been amended from my handwritten ones ah that I scribbled on in my day book to - because they needed to be precise on where I was on certain – certain days. Q80. Okay, so if I ask you directly, Alistair Campbell individual, did you fabricate these records to support a response to a notice - - - A I did not fabricate the records. Q81 Now as you're aware we did execute a – a search warrant on the registered business address of Alcobell on 26 March 2013 and that we also obtained other records from the registered business office of Alcobell on 27 March 2013. Part of what was obtained in the execution of the search warrant of the registered business address was a series of daily worksheets which I'll mark now as AC206. So that's five pages in total also covering September, October and November 2011. These were obtained from your premises, you signed a receipt that this document – or these documents amongst other things that were seized were obtained from your premises. A Right. Q82 Now we've analysed both lots of documents- - - A Mm hm. Q83 And we've found 44 individual differences between those worksheets that you've currently got there AC206 and the worksheets that were provided in response to the notice to provide information and records previously marked as AC205. I suppose my question to Alcobell is this; which one of these documents is actually the accurate account? A The first ones. Q84 So AC205? A Yes. … Q86. So who's completed - or who has filled in the details on those sheets? A More than likely me. Q87. On both of them. A Most – most of them, yeah. Q88. On both of them, AC205, I'll show that to you again if you like. A Mm hm. MR WHITE: Is that your handwriting? A Yeah, yeah. Q89. And AC206, so that's all your handwriting? A yeah, yeah. I mean this one here's obviously been damaged and I've, you know, written it out again so it can be legible. It's obviously a coffee damage and stuff like that, you know, same with this one here, same with this one here. So, you know, that – that would be the reason if you're contesting that they've been rewritten would be that they're actually legible for you to write and some of this I can barely read and I know my own handwriting. So but um- - - Q90. So I just need this to be clear; you're confirming that that is your handwriting- - - A Yes. Q91. - - -in all of those entries? A Yes. Q92. On both of those documents, AC205- - - A Yes. Q93. - - -and AC206? A Yes. … Q116 The question is that did you omit entries in the response that you provided to us - in the response that Alcobell provided to us, which is document AC205? A Um...205 is a- - - Q117 That's what was provided to us in response to the notice to provide information- - - A 205 is a record of the loads that I did on behalf of Alcobell. … A121 Well I mean that – that's a record from my truck. Q122 So what's- - - A That I did. … Q132 Let me go back so it's nice and simple for everyone to understand it. AC205, this document was provided under a legal notice to provide records and information. In that notice it was clearly stated that it is an offence to provide – knowingly provide false and misleading information as a – in a material respect. When we executed the search warrant we obtained these documents, AC206. They are significantly different to the documents that were provided to us. They contain as I said 13 omissions in relation to work done by Alcobell. Now our contention is that the omissions in relation to sand collected from Clarence was to disguise the fact that waste was actually taken to Rick Kirby's property. The omissions in here- - - A My statement is that AC206 is incorrect and that 205 is correct. … Q141 So which- - - A More than likely went to um – this is the accurate one so it more than likely if it's been changed from Clarence to Capertee there was obviously some reason that it didn't go to Clarence. Q142 So AC205, you – you're maintaining that - that the entries for the destinations in that are accurate? A Yes. … Q195 And I might have misunderstood but you're saying that the document AC205, that's a record of work that you personally did? A Yep. As I believed I was asked to provide. … A207 That's my driver's worksheet for the day, I thought that would be extra information which may um reduce all this nonsense but obviously it's added to it. … A225 None of, none of the Empire's material has ever gone to Capertee or to Clarence. … Q235. OK. And you're stating that under direction? A 100%. Empire Waste didn't go anywhere, certainly didn't go to Capertee and did not go to Clarence. I didn't go to Empire Waste and go to Clarence. Q236. So I need you to be 100% clear on this; you're making that assertion or that statement under direction? A Empire Waste did not go to Capertee or Clarence. … Q281. If that material did not go from Empire Waste to Clarence, to Rick Kirby's property in Clarence, at 179 Donald Road, Clarence or to your property at Capertee, where did it go? A It didn't go to Clarence and it didn't go to Capertee. … Q308 So you're saying that this is work that Alcobell has done- - - A As I've said to you, 205 is a driver's record from the driver in that truck which was me. 213 The information provided by Mr Campbell in the interview on 2 May 2013, that the notice response work sheets were the true, accurate and complete record of loads of material that Mr Campbell had transported between 1 September 2011 and 30 November 2011, is false and misleading. 214 Mr Campbell created both sets of work sheets and knew at the time of the interview on 2 May 2013 that the information he furnished in the interview, that the notice response work sheets were the true, accurate and complete record of loads of material that Mr Campbell had transported between 1 September 2011 and 30 November 2011, was false and misleading. Prior convictions – Mr Campbell 215 On 10 May 2011, Mr Campbell was convicted in Katoomba Local Court of an offence of stalk/intimidate intend fear of physical/mental harm, for which he was put on a 12 month good behaviour bond from 10 May 2011 to 9 May 2012. Mr Campbell was subject to the good behaviour bond at the time of committing the two s 143 and one s 144 offences that are the subject of these proceedings. 216 On 4 October 2012, Mr Campbell was convicted in Lithgow Local Court of an offence of being the owner of land (the Capertee Property) and using that land as a waste facility without lawful authority in breach of s 144 of the POEO Act. This offence related to one load of waste deposited on the Capertee Property on 7 July 2010. Mr Campbell was fined $3000 and ordered to pay investigation costs of $1500. Prior conviction – Alcobell Pty Ltd 217 On 4 October 2012, Alcobell was convicted in Lithgow Local Court of transporting waste to the Capertee Property, being a place that could not lawfully accept that waste, in breach of s 143 of the POEO Act. This offence also related to the load of waste deposited on the Capertee Property on 7 July 2010. Alcobell was fined $5000 and ordered to pay $5000 legal costs. Additional evidence tendered by Prosecutor 1. The Prosecutor tendered the documents that accompanied Mr Campbell's development application lodged in January 2008 for an access road that showed a plan of Capertee (exhibit B). The Prosecutor tendered the Resource Recovery Exemption (RRE) exemption documents "The recovered aggregate exemption – 2010" and "The 'continuous process' recovered fines exemption – September 2010" (exhibit D). The Defendants' counsel tendered "The recovered aggregate exemption – 2008" and "The 'batch process' recovered fines exemption – April 2009", which were added to exhibit D. Also tendered was a document identifying the Prosecutor's investigation costs (exhibit E). Exhibit E contains seven invoices from the Office of Environment and Heritage (OEH) and the invoices for external analysis referred to in the OEH invoices. 2. The Prosecutor read the affidavits of Ms Pitts affirmed 23 January 2014 and 21 May 2014 and Dr Martens sworn 21 April 2015, and read in part the affidavits of Mrs Skeen sworn 14 October 2013 and Mr Hawken affirmed 11 April 2014. 3. Ms Pitts is an EPA employee with experience in regulating waste facilities and investigating potential breaches of the PEO Act. In her affidavit of 23 January 2014 Ms Pitts calculates the waste levies avoided by disposing of the waste at Capertee and Clarence as $181,490.50 and $205,747.73 respectively. In her affidavit of 21 May 2014 Ms Pitts calculates the waste levies avoided by disposing of the waste at Ben Bullen as $102,483.34. In undertaking these calculations Ms Pitts made a number of assumptions including that the waste did not include asbestos. 4. Mrs Skeen purchased Ben Bullen with her husband in 1999. Mrs Skeen states that for the vast majority of time since 1999 until moving on to the property in 2007 an access road existed from the gate fronting Castlereagh Highway to the residence on the property. Mr and Mrs Skeen worked on raising the level of the access road from 1999 and sought assistance from contractors. This work involved the use of various material including half house bricks, purchased coal chitter, bitumen mix and road base. In 2010 Mr and Mrs Skeen did further work to the access road themselves using a tractor with 75 tonnes of bitumen mix and small rocks found on the property. 5. Mrs Skeen states she does not know how Mr Campbell became aware of the situation concerning the access road at Ben Bullen. The access road was visible to anyone travelling along the Castlereagh Highway. On 16 November 2011 Mrs Skeen sought information about the use of recycled materials from Lithgow City Council and was advised to speak to a person called "David", with whom she spoke later that day. David advised Mrs Skeen that she needed to be careful as Mr Campbell was being investigated by the EPA and recommended she contact Mr Scarborough. Mrs Skeen contacted the EPA later that day, was told that Mr Scarborough was unavailable and that using recycled clean fill is allowed if it is suitable resource recovered material. In late 2010 or early 2011 Mrs Skeen gave Mr Campbell permission to supply clean recycled fill. Mrs Skeen states that neither she nor her husband received or paid any money in relation to the material brought by Mr Campbell. 6. Mrs Skeen was cross-examined on her understanding of how she met Mr Campbell, as this differed from Mr Campbell's understanding. 7. Mr Hawken was a co-owner of Just Recycling from 2003 and mid-2010, and sole owner and manager after mid-2010. Prior to becoming sole owner, Mr S Collins and Mr R Collins were also involved in the ownership and management of the business until leaving the business in 2009 and early to mid-2010 respectively. The business of Just Recycling was the sorting, processing and recovery of recyclables and other resources from rubbish collected in skip bins. This would include, among other things, household clean-up wastes, and from time to time people would also put asbestos in the skip bins. Mr Hawken was aware that Just Recycling conducted some testing of waste prior to him becoming the sole owner, but that he was not involved in the testing. Mr Hawken states that as far as he is aware the testing stopped around the time Alcobell started collecting waste from Just Recycling. No laboratory testing of Just Recycling wastes was undertaken after Mr Hawken became the sole owner. Just Recycling did not produce or issue any statements of compliance or similar stating that waste met a certain specification or standard. Based on the information provided by Mr Campbell, Mr Hawken believed that the waste collected from Just Recycling by Alcobell was being managed lawfully and no such testing was required. 8. In his affidavit, Mr Hawken also gave evidence of a conversation he had with Mr Campbell to the effect that Mr Campbell told him of someone with the EPA who was on a witch hunt and that Mr Hawken should not tell that person about their business, otherwise he would also be in trouble. In cross-examination, an alternative was put to Mr Hawken that Mr Campbell said words to the effect "Mr Scarborough from the EPA will most likely be in contact with you". Mr Hawken stated that it might have been that or something like that, but did not know. Concerning the alternative statement by Mr Campbell that "It is probably in Mr Hawken's best interests to cooperate, but that he would seek legal advice", Mr Hawken stated that he did recall Mr Campbell telling him to seek legal advice, but did not know about the other part. Mr Hawken was unsure of the exact words used or when the conversation took place (sometime in 2011, after Just Recycling had shut down), but stated that words to similar effect as those in his affidavit were said. Mr Hawken did not know if anyone from Alcobell was informed that testing had ceased at Just Recycling. Additional evidence tendered by Defendant 1. The Defendants' counsel read Mr Campbell's affidavit sworn 27 May 2015 and his supplementary affidavit sworn 9 June 2015. The Defendants' counsel tendered the report of Dr Allnut, psychiatrist, dated 16 April 2015 (exhibit 3) and the report of Mr Wilson, psychologist, dated 15 May 2015 (exhibit 4). 2. In his affidavit sworn 27 May 2015, Mr Campbell gives evidence about his personal circumstances, education and details the events leading up to these proceedings. To his affidavit he exhibited a bundle of documents that became exhibit 1. Mr Campbell states that his son attempted suicide in 2009. Mr Campbell's father passed away in 2010 and he felt that he dropped the ball after this event. From around August 2014 Mr Campbell regularly saw his psychologist, Mr Wilson. 3. Mr Campbell purchased Capertee in 2006. In September 2007 he contacted the Central West Catchment Management Authority to enquire about requirements for a proposed road construction at his property and was told that he would not need council approval to build access roads. On 15 October 2007 Mr Campbell wrote a letter to Greater Lithgow City Council requesting information on development applications for access roads. On 11 or 12 December 2007, a flora and fauna survey was undertaken at the property by Central West Environmental Services. In January 2008 he lodged a development application, together with the flora and fauna assessment, with Lithgow City Council seeking approval for the construction of access roads on the property. On 10 April 2008 Mr Campbell received development consent from Lithgow City Council. On 10 November Mr Campbell met Mr Scarborough, who had visited Capertee to inspect the use of recycled products and asked Mr Campbell to clean up the area so that no clean-up order would be required. Mr Campbell undertook the clean-up work, advised Mr Scarborough, but to his surprise was issued with a clean-up order on 1 December 2009. 4. In January 2010 Mr Campbell undertook research on the RRE by checking the Department of Environment, Climate Change & Water website. He contacted a number of recycling processors and identified Just Recycling and Aussie Skips as the only ones willing to comply with the RRE. Aussie Skips told Mr Campbell that they were already complying with the legislation and undertook testing, which he had received in the past. A number of certificates of analysis he received from Aussie Skips were exhibited to his affidavit (tab AC9, exhibit 1). On the basis of these certificates Mr Campbell did not believe that the material constituted a risk of harm to the environment. Mr R Collins at Just Recycling told Mr Campbell that they processed material correctly but did not do regular testing. Mr R Collins later said words to the effect of "We've done our costings and we can do that testing". It was not until he read Mr Hawken's affidavit that he realised testing was not being done after Mr Hawken took control of Just Recycling. 5. On 2 February 2010 Mr Campbell prepared notices stated to be made pursuant to s 143(3A) of the PEO Act and forwarded copies of the notices to Mr Scarborough for his approval. Mr Campbell intended to issue these notices to the recycling processors who were to supply him with material for Capertee once Mr Scarborough had approved or suggested amendments to the notices. Mr Campbell understood the facsimile he received from Mr Scarborough on 9 April 2010 confirming compliance with the clean-up order as allowing him to source material from Just Recycling and Aussie Skips for use on Capertee. Mr Campbell issued the purported s 143(3A) notices to Aussie Skips, Just Recycling and Alcobell. 6. On 20 December 2011 Mr Campbell stopped at a weigh station while taking a load to Capertee. He was approached by Mr Scarborough who asked whether Mr Campbell had a compliance certificate for that load. Mr Campbell had not heard of "compliance certificates" before. He called Aussie Skips in Mr Scarborough's presence to request a certificate of compliance and was faxed one that afternoon. 7. Mr Campbell believed that s 7.2 of the RRE (which RRE was not specified) covered the work he was doing and allowed him to transport waste to Capertee for roadworks, which he did from 9 July 2010 and 19 January 2012. He stated that after being charged with these offences he ascertained that the material was waste and that the material obtained from Just Recycling had not been certified as coming within the terms of the RRE. Mr Campbell states that there is no natural water-course on Capertee. In his Class 1 appeal against the prevention notice issued 13 March 2012, Mr Campbell commissioned a report from Mr Strautins, occupational hygienist. 8. In relation to Clarence, Mr Campbell recalled that in response to his statement that he can supply recycled soil but he had to make sure Mr Kirby had all the right approvals, Mr Kirby in effect stated that he was right with the approvals. Mr Campbell inquired of Lithgow City Council and was advised that soil imported for the purposes of turf underlay does not require development consent. On the Clarence property he observed a substantial amount of filling that had already taken place. Mr Campbell did not spread or distribute any of the material he tipped, instead leaving it in stockpiles. Mr Campbell believed that the material was in order, the soil from Aussie Skips was within the particle size requirements of the Recovered Fines RRE and that the material from Just Recycling was permissible within the Recovered Aggregate RRE. He also considered that as it was acceptable for the Capertee property in light of the letter of 9 April 2010 (see above at par 23) from the EPA, it was also acceptable for Clarence. 9. Concerning the Ben Bullen property, Mr Campbell states that he originally met Mrs Skeen and her husband in about 2000/2001 when he undertook work for them at a farm. Mr Campbell is friends with Mr Johnston the nephew of Mr and Mrs Skeen. In or about late 2010 Mr Johnston advised Mr Campbell of the difficulties Mr and Mrs Skeen were having with their access road at Ben Bullen and suggested that he should talk to Mrs Skeen about it. In early 2011 Mr Campbell stopped at Ben Bullen and observed that their road was filled with coal chitter, metals, plastics and other things. Prior to delivering the material to Ben Bullen, he suggested Mrs Skeen contact Mr Durie at Lithgow City Council and Mr Scarborough to verify whether she can use the fill he delivers on their road. The fill consisted of 20mm to 30mm aggregate from Just Recycling and fines from Aussie Skips. 10. In 2013 Mr Campbell ceased Alcobell's operations and sold its trucks. He will deregister Alcobell later this year. Mr Campbell conceded that he was solely responsible for transporting the waste and for the operations of Alcobell in transporting and delivering the waste. He sincerely and unreservedly apologised to the Court for his wrongdoing and stated that he will not carry on the business of waste transport again. 11. In his supplementary affidavit sworn 9 June 2015 Mr Campbell denied having a conversation with Mr Hawken warning him about the EPA investigation as stated in Mr Hawken's affidavit. Mr Campbell recalled a conversation he had with Mr Hawken after 30 June 2011 in which he asked whether Mr Hawken has any test results for the material he collected. Mr Hawken in effect stated that all documentation in relation to the work done for them had been destroyed in a flood. Mr Campbell stated that Mr Scarborough would likely be in contact with him and that he should co-operate and seek legal advice. 12. Mr Campbell has contributed to his local community as a longstanding member of Blackheath Golf Club including service on the Club's Board in 2013 and 2014, coaching of local youth soccer teams and in the past as a volunteer driver for the Rural Fire Service and other community organisations. 13. Mr Campbell was not cross-examined due to concerns about his mental health. His evidence could not therefore be tested in the usual way. There are two areas of disagreement between his evidence and that of the Prosecutor's witnesses. One relates to the evidence of Mr Hawken about a conversation with Mr Campbell set out in par 18 which casts Mr Campbell in an unfavourable light. Mr Hawken maintained that a conversation to that effect took place. It is difficult to form a conclusion about whose evidence should be preferred in the absence of cross-examination of Mr Campbell. The circumstances in which Mr Campbell came to visit the Skeens' property in his evidence differs from Mrs Skeens. Little flows from this difference for the purposes of this sentencing hearing as ultimately Mrs Skeen voluntarily agreed to the material being placed on her property by the Defendants. Whether she had or had not met Mr Campbell previously has little bearing on the objective seriousness of the offence. Section 143(3A) notice 1. The terms of a purported s 143(3A) notice in respect of Capertee given by Mr Campbell to Aussie Skips, Alcobell and Just Recycling dated 2 November 2010 referred to in his affidavit stated in part: I certify that this place can be used as a waste facility for the types and amounts of waste and the uses set out in the table below. TYPE e.g. uncontaminated soil AMOUNT USES Aggregate/Fines Blend e.g. less than 50 tonnes e.g. storage, disposal …………………………… Approximately one (1) load per day. 5 days per week = approx. …Road Construction, contour Recovered Aggregate 31 tonne per load. (run-off) Banks. Recovered Fines Depending on availability of compliant material & demand …………………………. ……………………………. ……………………………… …………………………. ……………………………. ……………………………… ………………………….. No plastics, fibro, asbestos or contaminated material…………………… ……………………………… ………………………….. ……. The place can be lawfully used for the types and amounts of waste described in 2 above BECAUSE: An EPA waste facility or waste activity licence is not required. AND BECAUSE: A. the place has development consent from the local council for the uses described in 2 above. Certificate no: 011/108DACC. Consent allows for 75mm minus material. Expert reports 1. Dr Martens, environmental scientist and civil engineer, annexed to his affidavit read by the Prosecutor his expert report dated April 2015 (exhibit C) in relation to environmental matters relating to the application of waste to Ben Bullen. In preparing his expert report Dr Martens relied on, amongst other things, the "NSW Environment Protection Authority (2014) Waste Classification Guidelines: Part 1, Classifying Waste" and "Assessment of Site Contamination, National Environment Protection (Assessment of Site Contamination) Measure 1999 (Cth) (amended 2013), Schedule B1 – Guideline on Investigation Levels for Soil and Ground Water" (NEPM guidelines). At Ben Bullen Dr Martens segregated fill material roughly every 600 m along the roadway into discrete sampling locations that were evenly spaced for 20 m or so then excavated a test pit and retrieved material for sampling for testing of several parameters including asbestos. The length of fill excavated by Dr Martens was 625 m, 45 m wide and 200-300 mm in depth. Of ten samples collected from the road surface, nine were identified as containing bonded asbestos. Five of the six samples collected at various depths within the fill were positively identified as containing bonded asbestos. 2. In relation to environmental harm, Dr Martens concluded that the deposition of waste material on the land surface represents actual environmental harm through contamination and therefore pollution of existing natural systems. There is also potential for harm as the fill material will be further degraded due to vehicular movement and there is considerable potential for overland flows and major flood events to destabilise the existing pavement. In relation to risk to human health, Dr Martens concludes that the presence of bonded asbestos within the road means that ongoing traffic presents a risk that in addition to the risk of degraded asbestos coming directly into human contact, asbestos fibres are likely to be produced as the road is subject to wear and tear through vehicular, pedestrian and livestock traffic. 3. In his affidavit sworn 11 June 2015 read by the Defendant, Mr Strautins occupational hygienist states that he prepared two reports for the Defendants' solicitors, which were annexed to his affidavit. Mr Strautins prepared a report on asbestos in soil at the Capertee property dated 3 October 2012 in relation to Mr Campbell's Class 1 appeal (annexure A). Mr Strautins' recommendation was that there was low potential health risk, minor contamination and that no remediation was required. For his supplementary report dated 26 May 2015, Mr Strautins was provided with a number of documents including Dr Martens' report dated 21 April 2014 (annexure C) and addressed questions prepared by the Defendants' solicitors. In undertaking his supplementary report, Mr Strautins relied on, among other things, the NEPM guidelines and "Guidelines for the assessment, remediation and management of asbestos-contaminated sites in Western Australia" (WA guidelines). The WA guidelines were exhibited to Mr Strautins' affidavit (exhibit 2). Mr Strautins' CV became exhibit 5. In his supplementary report, Mr Strautins relevantly states that his opinion that the degree of asbestos contamination to Capertee presents a negligible risk to human health has not changed since his report dated 3 October 2012, that Dr Martens' report does not contain sufficient information to conclude that the asbestos he identified presents a significant risk to human health and that it would have been necessary for Dr Martens to conduct an inspection in accordance with the WA guidelines in order to reach an adequate conclusion on risk of harm to human health. 4. Both experts were cross-examined. Dr Martens found no friable asbestos at Ben Bullen meaning this was below a detection limit as shown in Table 4 of his report, the results of his preliminary investigation. When asked if there is no actual risk of harm to human health he stated a safe level for bonded asbestos in soil for residential land is .001T (.01 % bonded). Dr Martens stated that he was able to discern a difference between the material observed on the surface of the road and the strata beneath it. The distinctions between the layers below the top layer were quite clear and consisted either of a previous pavement surface or a pavement that had been constructed out of in situ material, compacted clays and silts. Demolition and building products evident on the surface layer were not evident in the layers below. None of the samples of suspected asbestos were taken from the strata beneath the fill material that comprised the demolition waste. The WA guidelines are not applicable to waste of this kind. The NEPM guidelines are also not applicable to demolition waste as they apply to soil. 5. According to Dr Martens the ongoing risk to human health arises in relation to wear and tear of the road surface breaking up material so that asbestos on the surface becomes degraded and friable. Dr Martens knows the road at Ben Bullen is an access road to a single dwelling. Dr Martens does not accept that he cannot make an assessment of risk to human health. Risk is an outcome of likelihood and consequence. Dr Martens did not agree that his view of risk is speculative because he does not know what the risk to human health is in these circumstances. It is not in his report that the risk of friable asbestos could occur within 12 months as stated orally. 6. Mr Strautins' approach is to calculate a percentage weight of asbestos present in the surrounding material. In Mr Strautins' view there is no risk of asbestosis at the level identified if the Ben Bullen material is similar to that at Capertee. He has not visited Ben Bullen. For Mr Strautins to determine risk he would take 10 litres of material from each pit dug by Dr Martens, sieve it through mesh, pick up bonded pieces and fragments throughout and compare with 10 litres of soil to determine a percentage weight of asbestos in the soil. He agreed that using one methodology for both fill and demolition waste is not applicable and is not ideal. He maintained that assuming the material was similar to that at Capertee the risk of harm at Ben Bullen was not significantly different. He agreed that he should have identified that the NEPM guidelines were not applicable to demolition waste. He applied the guideline in the absence of any other useful tool. 7. Mr Strautins stated as an occupational hygienist he must consider there will always be a human health risk. It is a matter of the appropriate dose threshold. An expert can apply professional judgment as well as weighing asbestos to determine the percentage weight of asbestos found in the roadway by Dr Martens. As the density of material relevant to risk is unknown he does not have enough information to make a professional judgment in relation to Ben Bullen. He agreed bonded asbestos could become friable but the risk of this occurring at Ben Bullen is negligible in his view. If material is weathered and releases asbestos fibre over time it will also be more diluted over time so there will never be respiratable airborne fibres that will impact on human health in his opinion. Sentencing principles 1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) provides: 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. 1. The objects of the legislation and the degree to which the Defendants' conduct offends the legislative objects is a relevant consideration per Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]. Maximum Penalty 1. The maximum statutory penalty is significant in determining the objective seriousness of the offence: Plath v Rawson. It demonstrates the seriousness with which these offences are viewed: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. At the time of the offences, the maximum penalty for an offence in contravention of s 143, s 144 and 211(2) of the PEO Act was $1 million for a corporation and $250,000 for an individual. 2. The maximum penalties for each of the offences against each of the Defendants are summarised below: 1. Alcobell – three counts of contravening s 143 with a maximum fine of $1,000,000 per offence; 2. Mr Campbell – two counts of contravening s 143/s 169 and one count of contravening s 144 with a maximum fine of $250,000 per offence; and 3. Mr Campbell – one count of contravening s 211(2) with a maximum fine of $250,000. Statutory scheme 1. A relevant sentencing consideration is the objectives of the statutory scheme. The objectives of the PEO Act in s 3 set out above at par 7 include the protection of the environment and the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001 (NSW). Three overarching failures of the Defendants to comply with the regulatory scheme in the PEO Act for the management of waste arise. The principal failure raised by the Prosecutor is the presence of asbestos fragments in the waste deposited on all three properties. The pleas of guilty to the s 143 offences for the transport of waste includes through the definition of "waste" in the dictionary and in cl 50 of Sch 1 (other definitions) of the PEO Act asbestos waste. 2. Secondly, the Defendants should have known the waste did not meet the description of material allowed to be deposited in unlimited quantities under the two RREs referred to in the SOAF so that deposition required consent for use of the three properties as a waste facility (SOAF par 31-50). The waste should have been deposited at a lawful waste facility because no certificate of compliance with the RREs was asked for or received by the Defendants. 3. Thirdly, the Defendants failed to comply with cl 39 of Sch 1 of the PEO Act in depositing more than 200 tonnes of building and demolition material from the regulated area (basically the Sydney metropolitan area) over time on all three properties without an environment protection licence (SOAF par 27-30). 4. According to Ms Pitts' evidence, substantial amounts in waste levies have not been paid as a result of these offences. It is not suggested that the Defendants were responsible for the payment of these levies. Factors which must be taken into account under s 241(1) of the PEO Act 1. In sentencing the Defendants for the commission of the waste offences, the Court must take into account the factors listed in s 241(1) of the PEO Act where relevant. A prosecutor must prove matters adverse to a defendant in a sentencing hearing beyond reasonable doubt: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ. Harm caused or likely to be caused to the environment by the commission of the offence (s 241(1)(a)) 1. Harm is defined in the dictionary to the PEO Act as: harm to the environment includes 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. 1. The Defendants did deposit a large amount of waste on all three properties, as identified in the SOAF for Clarence (2,589.75 tonnes) at par 6, 111, Capertee (2,485.45 tonnes) at par 5, 114 and Ben Bullen (1457.8 tonnes) at par 7, 153. The SOAF identifies the origin and weight of truckloads taken from the skip bin companies to Clarence (par 89), Capertee (par 115) and Ben Bullen (par 165). 2. The SOAF stated that there was potential for harm at par 185 described in several ways. In par 186-187 the importance of testing recovered fines from building demolition for the presence of chemicals which cause harm to human health is identified. None of the waste deposited was tested. The waste contained glass, hard plastic and metal with the potential harmful consequences identified in par 188 of the SOAF. The presence of asbestos in the waste at all three properties is identified at par 190 and that this poses a risk to human health if the waste is identified at par 192. 3. The Prosecutor submitted in addition that the commission of the offences caused actual harm to the environment relying on Dr Martens' evidence. At Capertee and Ben Bullen, actual harm to the environment included the contamination of those properties with asbestos waste. Although the asbestos is in bonded form its presence at both properties in a road creates a risk that continued vehicular movements will wear down the asbestos pieces and render some of them friable. The presence of asbestos in the waste deposited at Ben Bullen is of particular concern. This has caused contamination of part of a rural property owned by an elderly couple, the Skeens, who reside there and use the access road to access their residence from the Castlereagh Highway. 4. The danger posed to humans by asbestos, when asbestos is in a friable form and particles of asbestos become capable of being inhaled, is well known. In these cases, the degree of asbestos contamination is not known. However, this was not merely a case where isolated pieces of bonded asbestos were found at the surface, but, in the waste at Ben Bullen, asbestos was found both at the surface and at various depths within the fill by Dr Martens along the access road alignment, suggesting that the danger is not trivial. 5. In oral submissions, the Prosecutor contended there is also an elevation in the concentration of metals on the Capertee property. This was identified by a laboratory analysis of samples collected from the dam and 40 metres downstream in the direction of Crown Creek, as described in par 151 of the SOAF. The Prosecutor says there is risk of environmental harm on Capertee due to the presence of a watercourse. Mr Campbell says there is no natural watercourse on Capertee. 6. In the case of each offence, there is a separate and less serious form of environmental harm, namely the degradation of the environment, principally aesthetically, caused by the introduction of plastics, metals and other foreign objects in the waste materials. 7. Harm is also likely to have been caused to the environment by the commission of the offences at Clarence. The principal likely harm is constituted by the presence of bonded asbestos in the waste material deposited in the environment. As the Defendants submitted, waste has been transported onto Clarence by others for many years before 28 May 2011 when the Defendants began transporting waste there at the owner's request. The Defendants delivered waste on stockpiles at Mr Kirby's direction who then spread the waste himself. The Prosecutor accepts that it cannot prove that the waste deposited at this property was the source of the asbestos located as a large amount of fill from other sources had been deposited on the property. 8. The Defendants dispute that there is actual environmental harm as contended for by the Prosecutor and relied on the evidence of Dr Strautins to submit that there was and is negligible risk to human health as a result of the offences. The Defendants accept that friable asbestos poses a risk to human health. They accept that there was some foreseeable risk of environmental harm. The asbestos detected at Capertee by Mr Strautins was bonded as was that found at Ben Bullen by Dr Martens. Mr Strautins concluded that there was no risk to human health from the presence of asbestos at Capertee and that no remediation of Capertee was required. As the Defendants submitted, there is no evidence of any harm or risk of harm beyond the boundaries of Capertee. The evidence does not establish beyond reasonable doubt that there is a watercourse on the property and that the waste the subject of these charges was placed where it could cause water pollution. 9. The Defendants delivered waste at the request of the owners of Ben Bullen who from 1999 had used different forms of waste to construct an internal road. The existing waste consisted of half house bricks, purchased coal chitter, bitumen mix and road base according to Mrs Skeen and the SOAF par 161. There were existing stockpiles on Ben Bullen and the Defendants spread this on parts of the road at the owners' request. The material delivered to Ben Bullen is from the same source and of the same nature as that delivered to Capertee. Whilst it may have contained bonded asbestos fragments, as the waste is of the same character as that applied to the Capertee land and has been used for the same purpose, the Defendants submitted that the Prosecutor has not established on the evidence that there is any risk to human health from the presence of bonded asbestos fragments such as would require remediation nor has it established that there is any actual risk of harm on that property or beyond its boundaries. 10. I agree with the Defendants that the Prosecutor has not established beyond reasonable doubt that actual environmental harm has occurred as a result of bonded asbestos being deposited in the waste on all three properties the subject of the charges. Dr Martens undertook a preliminary surface survey at Ben Bullen as described in his report summarised above at par 33. Dr Martens' evidence does not establish beyond reasonable doubt that actual environmental harm has been caused. At issue is the likelihood of harm to human health and the environment if the bonded asbestos becomes friable. Dr Martens' opinion about the level of risk to human health as a result of the bonded asbestos becoming friable is relevant to a finding of likely harm rather than actual harm. Dr Martens considered that such a risk was possible in the foreseeable future in contrast to Mr Strautins who considered that the risk at Ben Bullen was negligible based on the report he prepared for Capertee which found the risk was negligible at that property. Mr Strautins could not be more definitive about the risk in the absence of the necessary testing to establish the volume of asbestos in the waste deposited, which had not been done to date. 11. The Prosecutor's evidence as identified in the SOAF at par 141-146 does point to increases in chemicals in the environment at Capertee given that the sample results referred to show non-compliance with the required RRE characteristics. A large amount of non-compliant waste containing plastic, PVC, hard plastics and glass was deposited on all three properties with the possible environmental consequences identified at par 188 of the SOAF. 12. No environmental harm through aesthetic impact has been established given that the fill placed by Mr Campbell at Capertee and Ben Bullen was used on roads. Mr Kirby spread the waste at Clarence with the apparent intention that it be covered by turf presumably negating any aesthetic impact. 13. Harm within the meaning of the definition has been caused by the offences on a large scale given the amount of waste deposited on the three properties. As the waste appears largely inert the potential for harm arises rather than actual harm. The most serious aspect of harm concerns the presence of bonded asbestos in the waste on all three properties which gives rise to a potential for harm to human health. Foreseeability of harm (s 241(1)(c)) 1. Section 241(1)(c) states that 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 should be considered. A very large amount of mixed categories of waste has been deposited at all three properties over the lengthy period of months of each of the s 143 offences, 18 months for Capertee, 6 months for Clarence and 5 months for Ben Bullen. Waste was deposited at Ben Bullen and Clarence by others before the Defendants also did so. 2. The Prosecutor submitted that harm caused or likely to be caused to the environment as a result of the waste containing asbestos was readily foreseeable to the Defendants, given their experience in cartage and waste disposal. The Defendants were aware that the waste which they were transporting was not being tested prior to it being transported and deposited at the subject properties and must be taken to be aware both of the risk that asbestos would or might be present in the waste and of the consequential risks. The Prosecutor submitted the Defendant should have seen the asbestos fragments and/or the Defendant should have obtained test results for the waste to check for the presence of asbestos from the skip bin companies before they took it. 3. The Defendants disputed that they knew or should have known that the waste contained asbestos and disputed that the Prosecutor had proved facts sufficient to found these submissions. That EPA officers and the experts Dr Martin and Mr Strautins, all of whom are experienced in bonded asbestos detection, saw asbestos material does not prove beyond reasonable doubt that the Defendants knew or should have known. I agree. 4. The thrust of the Prosecutor's submission seemed to be that if a transporter takes building demolition waste that has not been tested for asbestos the material must go to a licensed waste facility and this should have been known to Mr Campbell. The Prosecutor submitted that Mr Campbell knew or should have known that the waste he transported to the subject properties had not been tested for asbestos. I do not understand as a coherent scheme the waste management regime for asbestos waste in which s 143 operates. The measures taken by Aussie Skips (SOAF par 69), Empire (SOAF par 70) and Just Recycling (SOAF par 72) to remove potential asbestos material are identified. Asbestos material at Aussie Skips was disposed of at a particular facility (SOAF par 69). Just Recycling disposed of asbestos waste it identified for a fee of $150 per tonne at Kemps Creek (par 74). There is apparently no obligation on these companies to further test the separated demolition waste for asbestos before paying for collection by a contractor such as the Defendants. In any event Mr Campbell understood that Just Recycling and Aussie Skips were testing the material received according to this affidavit. The relatively modest amounts paid to the Defendants by the skip bin companies are identified in par 179 of the SOAF as between $33 to $13.35 per tonne exclusive of GST which suggests the waste was not being treated by the skip bin companies as if it was asbestos waste. According to the SOAF at par 71 Mr Campbell was aware that Empire did not test their material. There is no mention in Mr Campbell's affidavit of dealings with Empire. 5. Mr Campbell's affidavit refers to his dealings with Aussie Skips and Just Recycling and identifies his attempts with the two skip bin companies to obtain RRE compliant material. According to his affidavit Mr Campbell was unaware of the requirement to obtain a certificate of compliance for every load of RRE compliant waste transported until 20 December 2011 when he was stopped by Mr Scarborough. Mr Campbell states that following service of the clean–up notice for Capertee from the EPA and the EPA letter of 9 April 2010 he believed what he was doing was lawful. Mr Campbell did obtain development consent from Lithgow City Council to undertake work including road building at Capertee and did provide a purported s 143(3A) notice to Just Recycling and Aussie Skips, and Alcobell, in relation to Capertee. That notice specified that no asbestos and plastic waste inter alia was to be received. This evidence suggests that the provision of waste containing asbestos by the skip bin companies was not foreseeable by Mr Campbell and therefore Alcobell. 6. I do not consider the Prosecutor has proved the Defendants could have reasonably foreseen the harm caused or likely to be caused by the asbestos waste. Practical measures which may be taken to prevent or minimise the harm or likely harm (s 241(1)(b)) 1. The Prosecutor submitted that s 241(1)(b) of the PEO Act is typically interpreted to mandate an inquiry as to what could have been done prior to the commission of the offence to prevent or minimise environmental harm. To the extent that this is the inquiry required by s 241(1)(b), the Defendants could have readily taken the step of not transporting waste to the three properties, without the lawful authorities required - namely without development consent to use the land for the purpose of a waste facility and a licence under the PEO Act. Had applications been made for those permissions, the Court will infer that, if granted, conditions would have been imposed which would have prevented or minimised the risk of harm. This responsibility applied to Mr Campbell as the then owner of Capertee. 2. As the Prosecutor submitted, s 241(1)(b) is expressed in the present tense "practical measures which may be taken ..", and thus may mandate an inquiry into how serious an offence is by consideration of how easy, or conversely, how difficult it is, once the offence has been committed, to take steps which will prevent or minimise consequential harm. If that is the inquiry mandated by s 241(1)(b), the commission of the offences has left, according to the Prosecutor, a difficult legacy in terms of the feasibility of cleaning up the waste, including asbestos contaminated waste given the way in which it has been deposited, compounded by the properties (including now Capertee) being owned by third parties, not the Defendants. 3. The Defendants submitted and I agree that no practical measures are required to prevent, control, abate or mitigate harm at Capertee in light of Mr Strautins' report. Nor is there aesthetic degradation at Capertee as the waste was used to build roads at a remote rural property. The same submission is accepted for Ben Bullen as the waste deposited at the property by the Defendants is similar to that at Capertee. No submission that there is harm to be abated can be made in relation to Clarence given the long history of waste dumping at that property and that the waste the subject of these offences was intended to be used as turf underlay. Extent of control over causes of the commission of the offence (s 241(1)(d)) 1. The Defendants accept Mr Campbell had full control over the causes of the commission of the offence. Whether complying with orders from an employer or supervising employee (s 241(1)(e)) 1. The Defendants were not complying with orders from an employer or supervising employee. State of mind 1. Mr Campbell's state of mind at the time the offences were committed is relevant to sentencing. An offence committed deliberately or recklessly will be more objectively serious than one committed accidentally: Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123]. 2. As identified above in par 44-46 three failures of the Defendants to comply with the regulatory scheme in the PEO Act for the management of waste are identified in the SOAF or arise from the offences. These are unrelated and that is important to keep in mind when Mr Campbell's state of mind is considered. The principal issue raised by the Prosecutor is the presence of asbestos fragments in the waste. As already discussed in the context of foreseeability of harm, the Prosecutor has not proved beyond reasonable doubt that the Defendants knew or should have known that the waste contained asbestos. 3. Secondly, the Prosecutor asserts that the Defendants should have known the waste did not meet the description of material allowed to be deposited in unlimited quantities under the two RREs. The waste should have been deposited at a lawful waste facility because no certificate of compliance with the RRE was asked for or received by the Defendants. According to his affidavit, Mr Campbell was apparently unaware of the requirement that he obtain a certificate of compliance for RRE material until asked for one by Mr Scarborough on 20 December 2011. His affidavit identifies the steps he took to understand the regime for RRE's. In relation to Capertee he also understood that a notice could be issued under s 143(3A). The notice is extracted above in par 32 and specifically identifies that no asbestos, plastic, fibro or contaminated material is to be provided. The notice refers to accepting material which would comply with the RREs. His approach of seeking to understand the RRE regime while untested in cross-examination is confirmed by the purported s 143(3A) notice he provided to two skip bin companies in relation to his property at Capertee. 4. I agree with the Defendants' submission. The Defendants took steps to source material which at the time Mr Campbell believed could be used for the purpose of road works on Capertee, including enquiring of the suppliers whether the material was tested. He also reasonably assumed that the same material could be used at Clarence and Ben Bullen. 5. Mr Campbell had applied for and obtained a development consent for work on his land and the waste deposited by his company was used to make roads on Capertee. It is irrelevant that the fill deposit does not match the hand drawn mud map submitted with the DA. The Prosecutor has not proved that Mr Campbell was intending to use his own land as a waste facility. I agree with the Defendants' submission that the Defendants and the owners of Clarence and Ben Bullen always intended that the waste would be used on each of the three properties for the purposes of constructing roads or other earthworks. The Defendants' conduct should be understood as failing properly to understand that the waste did not meet any relevant RRE and that consequently the waste could not lawfully be disposed of on any of the three properties. This is not a case where the waste was taken to those properties with the intention of avoiding disposal at facilities lawfully able to receive the waste. This evidence suggests that the transportation of waste non-compliant with the RREs and containing asbestos to the three properties was not deliberate by Mr Campbell and therefore Alcobell. 6. Thirdly, the failure to comply with cl 39 Sch 1 of the PEO Act of depositing more than 200 tonnes of building and demolition material from the regulated area over time on all three properties is identified in the SOAF. Mr Campbell was told of this regulatory requirement during an EPA inspection at Capertee on 10 November 2009. This failure to comply with the PEO Act arises as a consequence of Mr Campbell not depositing demolition waste material compliant with the RREs. If RRE compliant, unlimited amounts could be deposited under the PEO Act regime. 7. I would characterise Mr Campbell's actions as negligent for a person involved in the transport of waste who was required to be familiar with the regulatory regime for waste, not reckless or deliberate. Who benefits from this offence? 1. The owner of the waste the subject of these offences, according to the definition of waste in s 143(4) of the PEO Act, included the three skip bin companies who paid the Defendants to transport it. They paid substantially lower tip fees than they would have if they had paid for the disposal of the asbestos contaminated waste at a licensed waste facility. The two land owners of the properties where the waste was deposited free of charge also derived a benefit namely the filling of land (Clarence) or building up of a roadway (Ben Bullen). Mr Campbell obtained relatively modest transport fees and material for building roads at Capertee. The SOAF at par 182 also identifies the benefit of trucks being full on their return journey. 2. A relevant consideration is that the beneficiaries of these offences have not all been charged: see Director General, Department of the Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102 at [39] and Plath of Department of Environment and Climate Change v Fish, Plath of Department of Environment and Climate Change v Orogen Pty Ltd [2010] NSWLEC 144; (2010) 179 LGERA 386 at [90]-[91]. Finding on objective seriousness 1. The Prosecutor submitted that Alcobell has a prior conviction for an offence under s 143 of the PEO Act and Mr Campbell has a prior conviction for an offence under s 144 of the PEO Act (s 21A(2)(d) CSP Act). The harm caused by the commission of the offences is substantial (s 21A(2)(g) CSP Act). The offences were committed for financial gain (s 21A(2)(o) CSP Act). They are objectively serious. 2. While the Defendants were in the business of carting waste from the identified sources and did so for financial gain, I agree with the Defendants that these offences are not like more serious cases where waste has been deliberately disposed of at unauthorised locations in order to avoid tipping fees. The amount of financial gain for the Defendants was relatively modest. Each offence involved the application of the transported waste to rural land principally for the purpose of the construction of rural roads on private property. In the case of Clarence, other earthworks were carried out by the owner Mr Kirby. 3. In the case of Clarence and Ben Bullen, the Defendants were supplying the waste at the request of the owners of that land (without payment from them) for earthworks or road building. In relation to Capertee, Mr Campbell transported waste to his own land for the purpose of constructing internal access roads to give effect to development consent No 11/08DACC obtained from Lithgow City Council in 2008. I have found the offences were committed negligently not deliberately, a large amount of waste was deposited at all three properties giving rise to potential for harm from the presence of asbestos. 4. The objective seriousness of the waste transport offences is at the low end of the medium scale of objective seriousness. Section 211(2) charge against Mr Campbell 1. The circumstances concerning the offence under s 211(2) of the PEO Act are set out in the SOAF at par 193-214. 2. Offences against s 211(2) are also serious as reflected in the prescribed maximum penalty and the legislative intent of such investigative provisions, to facilitate the investigation of environmental offences. 3. The offence occurred on 2 May 2013, in the course of a directed interview with Mr Campbell conducted by Mr Scarborough assisted by Mr Corradin. The charge relates to material differences identified in internal worksheets held by the Defendants. The documents were internal daily worksheets kept by Alcobell as a running record of work completed. 4. The Defendants' counsel submitted that they were not false documents in the sense of false invoices or records and the evidence does not support a conclusion that the records were prepared to be provided to any third party with the intention of falsifying the company's activities. 5. The Defendants submitted that the Court cannot infer there was a deliberate intention to mislead or conceal facts by Mr Campbell. I agree. This offence is at the lower end of objective seriousness for such an offence. General Deterrence 1. General deterrence is recognised as an important consideration in sentencing in environmental offences. Sentences imposed in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer Pty Ltd v Environmental Planning Authority (1993) 113 LGERA 357 per Badgery-Parker J at 367. In Axer, Mahoney JA stated at 359: … The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur. 1. Where there are concerns about the mental health of an individual defendant other considerations arise. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, (2010) 79 NSWLR 1 McClellan CJ at CL stated at [177]-[178] in passages often cited in relation to mental health issues in criminal proceedings: 177 Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, for example, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40]–[48]; Lauritsen v The Queen (2000) 22 WAR 442 at [43]–[51]; R v Harb [2001] NSWCCA 249 at [35]–[45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33]–[36]; R v Verdins (2007) 16 VR 269 at [32]; Courtney v The Queen [2007] NSWCCA 195; (2007) 172 A Crim R 371 at [14]–[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: • Where the state of a person's mental health contributes to the commission of the offence in a material way; the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry (1999) 46 NSWLR 346 at [254]; Miller v The Queen [1999] WASCA 66 at [23]; R v Jiminez [1999] NSWCCA 7 at [23], [25]; R v Tsiarias (at 400); Lauritsen (at [51]); R v Israil (at [23]); R v Pearson [2004] NSWCCA 129 at [43]; R v Henry (2007) (at [28]). • It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: R v Engert (at 71); R v Wright (1997) 93 A Crim R 48 at 50–51; R v Israil (at [22]); R v Pearson (at [42]); R v Henry (2007) (at [28]). • It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: R v Tsiarias (at 400); R v Jiminez (at [25]); R v Israil (at [26]); R v Henry (2007) (at [28]). • It may reduce or eliminate the significance of specific deterrence: Courtney (at [14]); R v Tsiarias (at 400); R v Israil (at [25]); R v JW (at [192]). Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: R v Israil (at [24]); R v Henry (2007) (at [28]). Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence [2005] NSWCCA 91 per Spigelman CJ (at [23]–[24]). 178 I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins (at [5]). 1. While not all of the considerations identified by McClellan CJ at CL are relevant to the circumstances of these offences the psychological evidence before me raises the question of whether Mr Campbell is an appropriate vehicle for general deterrence. Mr Campbell relies upon the evidence of his treating psychologist Mr Wilson (exhibit 3) and the report of forensic psychiatrist Dr Allnutt (exhibit 4). The following matters may be noted from that evidence: 1. Mr Campbell suffers symptoms consistent with a major depressive episode (p 5, exhibit 3). Mr Campbell currently meets the diagnostic criteria for Major Depressive Disorder (Moderate to severe re-current episodes (Criteria 296.32 DSM 5 2013) and sub-clinical Adjustment Disorder (mixed Anxiety and Depressed Mood features) (Criteria 309.28 DSM 2013) (p 4, exhibit 4); 2. while not treated until August 2014, Mr Campbell's symptoms emerged prior to the offending (p 5, exhibit 3); 3. Mr Campbell will require ongoing psychological treatment in the form of cognitive behavioural therapy and psychiatric care for a period of 6 to 12 months, including antidepressant medication; and 4. his prognosis is poor in the short term, guarded in the medium term and positive in the longer term (p 6, exhibit 3). 1. The Defendant submitted there was no need for general deterrence as identified in De La Rosa given the mental health of Mr Campbell. The difficulty with this submission is that there is limited evidence that Mr Campbell's mental health was relevant to the commission of these offences which commenced in relation to Capertee in July 2010 and continued until April 2012. The Clarence offence occurred in 2011 and Ben Bullen from December 2010 to May 2011. There is no evidence suggesting that Mr Campbell's mental culpability should be less due to his mental health. 2. According to his affidavit and the events identified in the SOAF, Mr Campbell was investigated by the EPA over the course of a number of years from 2009. In that period he also had to deal with very difficult personal circumstances. He has had to sell a car, trucks owned by Alcobell and associated items, and more recently the land at Capertee to pay for his legal fees (see par 66, Mr Campbell's affidavit sworn 27 May 2015). 3. Given the psychiatric evidence about Mr Campbell's difficulties which continue up to the present day, I will take into account Mr Campbell's mental state at the present time in sentencing. 4. No basis for specific deterrence exists as Alcobell has now been sold including the two trucks used in that business. Mr Campbell says in his affidavit that he will not be transporting waste again (see above at par 28). The Defendants are highly unlikely to reoffend in these circumstances. Subjective Circumstances 1. Section 21A(3) of the CSP Act identifies a number of mitigating factors which can be considered when sentencing. Pleas of guilty 1. On 6 June 2014, the Defendants entered pleas of guilty to all charges relating to Capertee and Clarence. 2. On 6 June 2014, Mr Campbell entered a plea of not guilty to the charge under s 211(2) of the PEO Act. Mr Campbell changed his plea to that charge on 11 February 2015, the date that matter was listed for hearing. 3. On 8 August 2014, the Defendants pleaded guilty to the two charges relating to Ben Bullen, the second date those proceedings were before the Court, having been adjourned on the first return date of 7 July 2014 by consent in order to align them with the existing proceedings. 4. In relation to all but the charge under s 211(2), the Defendants submitted and the Prosecutor accepted that the pleas of guilty were entered at the earliest opportunity. 5. An early plea of guilty is a mitigating circumstance (s 21A(3)(k), s 22 of the CSP Act). In respect of the s 143 and s 144 offences, the application of the full discount of 25 per cent for the utilitarian value of an early plea of guilty as stated in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152] is warranted. The utilitarian value of a plea is generally intended to reward an early plea which saves a prosecutor and a court expenditure of time and money in case preparation and management. The maximum discount should be given for the waste transport offences. The discount for the plea of guilty in relation to the s 211(2) charge will be less because the utilitarian value was reduced given its lateness. Prior convictions 1. Mr Campbell (s 144) and Alcobell (s 143) each have a conviction for a waste offence under the PEO Act also brought by the EPA in relation to a single load of waste delivered to Capertee on 7 July 2010 (SOAF par 216, 217). On 4 October 2012, Mr Campbell and Alcobell pleaded guilty to that charge in Lithgow Local Court. Alcobell was fined $3,000 and ordered to pay $5,000 in legal costs. Mr Campbell was fined $3,000 and ordered to pay investigation costs of $1,500. Good character 1. Mr Campbell refers to undertaking numerous activities in the community in his affidavit, which suggests that he is of good character. Contrition and remorse 1. Mr Campbell has expressed his remorse and contrition under oath and that should also be taken as an expression of remorse and contrition on behalf of his company Alcobell, which I accept. Even-handedness 1. The sentencing principle of even-handedness requires that like cases receive like penalties. Consideration of similar cases can be of assistance in informing the range of penalty which is appropriate, subject always to the overarching need to consider the individual circumstances of a particular case. A sentence in one case does not demonstrate the limits of sentencing discretion: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [54]. 2. In Bankstown City Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39 a useful summary of other s 143 offence sentencing cases since 2009 is set out as follows at [161]: [161] The following cases involving the offence of unlawfully transporting and depositing waste contrary to s 143 of the POEO Act, referred to by the parties as well as one handed down after the sentence hearing, suggest that fines in the order of $90,000 and $75,000, which I consider to be appropriate for the offences against s 143(1) of the POEO Act committed by Mr Hanna, are not outside the appropriate range: • Hills Shire Council v Suciu (No 3) [2009] NSWLEC 192 (30 October 2009): $80,000 (dumping of unclean waste on private property without consent); • Environment Protection Authority v Hanna [2010] NSWLEC 98 (23 June 2010): $32,000, $16,000, $32,000 and $24,000 for four offences (building waste containing asbestos dumped on private land, public roads and a public reserve); • Hills Shire Council v Kinnarney Civil and Earthworks Pty Ltd and Kinnarney (No 2) [2012] NSWLEC 95 (4 May 2012): $50,000 (for the corporation) and $30,000 (for the individual) (building waste containing contaminants, including asbestos, dumped on rural land); • Environment Protection Authority v Shannongrove Pty Ltd (No 2) [2012] NSWLEC 202 (5 September 2012); (2012) 198 LGERA 232: $20,000 and $15,000 for two offences (liquid waste deposited in farm paddock); • Kogarah City Council v Man Ho Wong [2013] NSWLEC 187 (24 October 2013): $5,000 for each of four offences (cartons containing broken fibrous cement sheeting removed from defendant's domestic garage, left on footpath at four separate locations); and • Environment Protection Authority v Ashmore [2014] NSWLEC 136 (5 September 2014): $24,000 (excavated material containing asbestos transported to rural site and used in the repair of a farm dam). 1. Section 211(2) cases are few in number. As the Defendants' counsel submitted, the facts in Environment Protection Authority v Mark Peters [2006] NSWLEC 612; (2006) 153 LGERA 238 were more serious. A defendant was found to have engaged in a systematic course of conduct involving the falsification of three to four hundred termite inspection certificates. The falsification was done in part to conceal the fact that the defendant had applied a termiticide in contravention of the approved label for use of the product in breach of s 15 of the Pesticides Act 1999 (NSW). At the time of the offence the maximum penalty for a breach of s 211(2) was $120,000 in the case of an individual. The defendant was fined a total of $80,000 in circumstances where there was no plea of guilty, no prior convictions and consideration of means to pay. 2. In Environment Protection Authority v Hargraves (No 2) [2003] NSWLEC 15; (2003) 124 LGERA 57, the defendant was found guilty of two counts of contravening s 211(2) to have lied directly to an investigator to conceal the fact that she was generating false records of vehicle load weights relating to waste delivered to a landfill site. The maximum penalty for a breach of s 211(2) at that time was $120,000 in the case of an individual. The defendant was fined $20,000 for both offences, both reduced to $15,000 in circumstances where there was a motivation of financial gain and no remorse. The totality principle was applied as the two offences arose in the course of the same interview. This matter is substantially less serious than these two cases as the Defendants' counsel submitted. Totality principle 1. The sentencing principle of totality is relevant to ensure that the sum of any fines imposed is not disproportionate to the total criminality of the defendant. In Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [98] I said: … That principle requires a judge to determine the appropriate sentence for each offence and when reviewing the aggregate sentence, consider whether it is just and appropriate. In this way the overall criminality of all the offences is reflected proportionately in the sentences imposed, Mill v R [1988] HCA 70; (1988) 166 CLR 59 at 62, Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, and Pearce v R [1988] HCA 57; (1988) 194 CLR 610. 1. The totality principle should be applied to the waste offences in particular as while committed on three different properties the nature of the offences is very similar and arises from essentially the same general course of conduct by the Defendants. The offences in relation to Capertee commenced earliest in terms of the charge period, being from 9 July 2010 to 3 April 2012, and are the most serious given that the Defendants were prosecuted for the same offence under s 143 of the PEO Act for bringing a single load of waste onto the land on 7 July 2010. The Ben Bullen offences are the next most serious as the Defendants' actions resulted in material containing bonded asbestos with consequent potential for harm being deposited on that property. Capacity to pay – application of Fines Act 1996 1. Under s 6 of the Fines Act 1996 (NSW), in the exercise of discretion to fix the amount of any fine, the Court is required to consider such information regarding the means of the accused as is reasonably and practicably available for the Court's consideration and such other matters as are relevant, in the opinion of the Court, to the fixing of that amount. 2. Capacity to pay a large fine is a factor which the Court is required to consider under s 6. In Rahme v R (1989) 43 A Crim R 81 at 86 Finlay J with whom Studdert J agreed, said: The imposition of a large fine does involve a number of considerations. It is trite to say that a court generally should not impose a fine which the offender does not have the means to pay, even though these days failure to pay a fine does not lead to imprisonment but to a civil execution for its non-payment. ...It is clear I think that what is required where the court is contemplating the imposition of a financial penalty is a decision on whether or not the appellant has the means. 1. As identified in Mr Campbell's first affidavit, Alcobell has ceased to trade and its assets in the form of its trucks have been sold. Mr Campbell now earns $960 gross per week as a part time truck driver. He has sold the Capertee property, his only property asset, with settlement on 28 May 2015. The sale price was $215,500 and the property had an outstanding mortgage at the time of settlement of $95,000 to the Commonwealth Bank of Australia. 2. I accept that the Defendants have a limited financial capacity to pay a large fine and will take that factor into account in sentencing. An application for time to pay any fine can be made to the Registrar of the Court under s 10 of the Fines Act. Investigation costs 1. Section 248(1) of the PEO Act states that the Prosecutor can recover legal costs if it appears to the Court that the Prosecutor has reasonably incurred costs and expenses during the investigation of the offence. Under s 248(3)(a) "costs and expenses" are relevantly defined as costs and expenses "in taking any sample or conducting any inspection, test, measurement or analysis…". Investigation costs are identified in exhibit E. The Prosecutor is claiming $23,409. Legal costs 1. The Prosecutor seeks orders that the Defendants pay its legal costs as agreed or assessed pursuant to ss 257B and 257G of the CSP Act. No amount has been agreed. The Prosecutor's legal costs are estimated to exceed $210,000. I consider that I should take the large amount of costs into account as occurred in Environment Protection Authority v Barnes [2006] NSWLEC 2 at first instance, an approach upheld by the Court of Criminal Appeal in Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78], [88] per Kirby J (Mason P and Hoeben J concurring). Avoiding double punishment 1. At the time of the offences Mr Campbell was the sole shareholder and director of Alcobell the co-defendant. The need to avoid double punishment of an individual defendant arises where the same source of money will be used to pay the fines imposed on both defendants. This issue was comprehensively considered by Biscoe J in Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 who analysed a number of Australian authorities and considered the United States Sentencing Commission Guidelines Manual at [54]-[62]. At [63] his Honour concluded: On one view, a logical way to avoid double penalty in a case such as the present, where the individual is the sole shareholder and alter ego of his company (at least where the maximum statutory penalty for each is the same), is to impose a fine on the individual and only a nominal (or no) fine on his company. That would accord with the result under the United States Guidelines Manual. But none of the Australian authorities to which I have referred have taken (nor have they explicitly considered) that view. The explanation may lie in the proposition that avoidance of a double penalty is to be taken into account with other considerations, and that other considerations such as the sentencing objectives of deterrence, denunciation and punishment still require more than a nominal fine to also be imposed on the one man company. This suggests that although Mr Gertos, as the guiding mind behind the offences committed by Geitonia and indeed GRC, should bear the heaviest fine, Geitonia should also bear a fine that is not nominal. 1. I will adopt a similar approach in this case to Mr Campbell as the guiding mind of Alcobell and to Alcobell as the corporate defendant. Appropriate Penalty 1. The Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a "value judgment as to what is the appropriate sentence given all the factors of the case": Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] unanimously following Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51] per McHugh J. The sentence must reflect all the relevant objective circumstances of the offences and subjective circumstances of the defendant: see Veen v R [1979] HCA 7; (1979) 143 CLR 458 at 490; Veen v R [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 472-473, 485-486, 490-491, 496. The sentence "should not exceed that which is appropriate to the gravity of the crime considered in the light of its objective circumstances": Veen v R [No 2] at 486; Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ). 2. Taking into account the objective and subjective matters referred to above particularly the reduced focus on general deterrence in light of Mr Campbell's personal circumstances, the totality principle, the need to consider avoidance of double punishment and Mr Campbell's limited finances I find the Defendants guilty of all the offences and impose the sentences identified in the orders below. The penalties imposed are substantially lower than I would have imposed had these various factors not been relevant to sentencing of these particular Defendants. Orders 1. The Court makes the following orders: 1. In matter no 50713 of 2013, Alcobell the Defendant is convicted of the offence with which it is charged and fined the sum of $10,000 to be paid to the Registrar of the Court within 28 days. 2. In matter no 50714 of 2013, Alcobell the Defendant is convicted of the offence with which it is charged and fined the sum of $40,000 to be paid to the Registrar of the Court within 28 days. 3. In matter no 50348 of 2014, Alcobell the Defendant is convicted of the offence with which it is charged and fined the sum of $20,000 to be paid to the Registrar of the Court within 28 days. 4. In matter no 50715 of 2013, Mr Campbell the Defendant is convicted of the offence with which he is charged and fined the sum of $3,000 to be paid to the Registrar of the Court within 28 days. 5. In matter no 50716 of 2013, Mr Campbell the Defendant is convicted of the offence with which he is charged and fined the sum of $5,000 to be paid to the Registrar of the Court within 28 days. 6. In matter no 50349 of 2014, Mr Campbell the Defendant is convicted of the offence with which he is charged and fined the sum of $4,000 to be paid to the Registrar of the Court within 28 days. 7. In matter no 50773 of 2013, Mr Campbell the Defendant is convicted of the offence with which he is charged and fined the sum of $5,000 to be paid to the Registrar of the Court within 28 days. 8. The Defendants are to pay the Prosecutor's investigation costs of $23,409. 9. The Defendants are to pay the Prosecutor's legal costs as agreed or assessed. 10. Exhibits to 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: 10 August 2015