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Environment Protection Authority v Imad Osman-Kerim [2017] NSWLEC 63 (31 May 2017)

Last Updated: 1 May 2018



Land and Environment Court
New South Wales

Case Name:
Environment Protection Authority v Imad Osman-Kerim
Medium Neutral Citation:
Hearing Date(s):
2 May 2017
Date of Orders:
31 May 2017
Decision Date:
31 May 2017
Jurisdiction:
Class 5
Before:
Robson J
Decision:
See orders at [104]-[111]
Catchwords:
SENTENCE – breach of environment protection licence condition – two offences of failure to comply with a clean-up notice – objective seriousness of offences – offences caused significant actual and likely environmental harm – subjective circumstances – offences committed deliberately – delayed plea of guilty – totality principle applies – fines imposed – offender ordered to pay prosecutor’s costs – offender ordered to publish notices
Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
Criminal Procedure Act 1986 (NSW), s 257B, 257G
Fines Act 1996 (NSW), s 6
Protection of the Environment Operations Act 1997 (NSW), ss 3, 64, 91, 241, 248, 250
Cases Cited:
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bankstown City Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Blue Mountains City Council v Carlon [2008] NSWLEC 296
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349
Camilleri’s Stock Feeds Pty Limited v EPA (1993) 32 NSWLR 683
Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden [2010] NSWLEC 3; (2010) 172 LGERA 52
Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185; (2013) 199 LGERA 236
Director General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211
Environment Protection Authority v Orica Australia Pty Ltd (Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239
Environment Protection Authority v Sydney Drum Machinery Pty Ltd (No 4)  [2016] NSWLEC 59 
Environment Protection Authority v Taylor (No 4) [2002] NSWLEC 59; (2002) 120 LGERA 414
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Johnson v R [2004] HCA 15; (2004) 205 ALR 346
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Morton v R [2014] NSWCCA 8
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
Ngo v Fairfield City Council [2009] NSWCCA 241; (2009) 169 LGERA 56
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
State Pollution Control Commission v White Wings Limited (unreported 50129 of 1991)
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7
Veen v The Queen (No 2) (1998) 164 CLR 465; [1988] HCA 14
Category:
Sentence
Parties:
Environment Protection Authority (Prosecutor)
Imad Osman-Kerim (Defendant)
Representation:
Counsel:
S A Lees (Prosecutor)
N M Carney (Defendant)

Solicitors:
Environment Protection Authority (Prosecutor)
Hutchison Lawyers (Defendant)
File Number(s):
2016/00158256; 2016/00158257; 2016/00158258
Publication Restriction:
No

JUDGMENT

Sentencing

  1. In 2012, the defendant, Mr Imad Osman-Kerim, was charged with the following offences:
  2. The offences relate to Mr Osman-Kerim’s drum cleaning and repair business, Sydney Drum Machinery Pty Ltd (‘Sydney Drum’), of which Mr Osman-Kerim was the sole director and was involved in day-to-day management.
  3. Mr Osman-Kerim pleaded guilty to the offence under s 64(1) of the POEO Act, and, after a hearing occupying 11 days, was found by Craig J to be guilty of the remaining offences in Environment Protection Authority v Sydney Drum Machinery Pty Ltd (No 4)  [2016] NSWLEC 59.  The facts supporting the findings of guilt are found in his Honour’s judgment (‘Judgment’).
  4. A sentence hearing was held on 2 May 2017. The Court’s task is to determine and impose an appropriate sentence for the offences.

Protection of the Environment Operations Act 1997 (NSW)

  1. Sections 64(1) and 91(5) of the POEO Act provide:
Part 3.4 Licence conditions
...
64 Failure to comply with condition
(1) Offence
If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b) in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
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.
Part 4.2 Clean-up notices
91 Clean-up by occupiers or polluters
(1) Notices
The appropriate regulatory authority may, by notice in writing, do either or both of the following:
(a) direct an owner or occupier of premises at or from which the authority reasonably suspects that a pollution incident has occurred or is occurring,
(b) direct a person who is reasonably suspected by the authority of causing or having caused a pollution incident,
to take such clean-up action as is specified in the notice and within such period as is specified in the notice.
...
(5) Offence
A person who, without reasonable excuse, does not comply with a clean-up notice given to the person is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b) in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
...

Background facts

  1. At the sentence hearing there was little factual dispute between the parties, and an extensive Statement of Agreed Facts (which became Exhibit A) was filed on 11 April 2017. I am informed by this, the Judgement, and the Environment Protection Authority’s (‘EPA’) summary of salient facts provided in written submissions. I summarise the key facts as follows.
  2. Sydney Drum operated at 75 Christie Street, St Marys (‘premises’). The premises comprised a battle axe block of land; with a rectangular factory building oriented to the north-east and hard paved areas surrounding the building. There were a number of draining structures along the long driveway leading to the property, as well as within the paved area to the north-east, north and north-west of the factory.
  3. Sydney Drum’s business involved cleaning and, as needed, reconditioning intermediate bulk containers (IBCs) which were used and re-used as chemical containers by suppliers to store liquid products. Sydney Drum used a vacuum lance to empty the liquid, and once extracted, the liquid was stored on site prior to being removed for disposal at a liquid waste facility. The containers were then moved to a washing line where they were sprayed both internally and externally by a caustic cleaning solution. The liquid from this cleaning process was drained and returned from a sump into a holding tank system, and was reused several times before requiring transfer to a waste water plant, one of which was located on site. Chemicals used to clean the IBCs were stored in the factory building and included hazardous materials such as sodium hydroxide, sulphuric acid and other chemicals.
  4. In the south-eastern part of the premises there were five above ground storage tanks. Four were 45,000 litre tanks and were contained within a bund of about 10cm in height, while the remaining 20,000 litre tank was contained in a separate bund of a similar height. The storage tanks were interconnected by piping with attached pumps, and were used as the holding tanks for the washing liquid pumped from the processing area.
  5. In the north-west of the premises was an underground stormwater retention tank (‘SRT’) with a capacity of approximately 200,000 litres, which was designed to collect rainwater and provide a controlled release of that rainwater into an unnamed watercourse flowing through the adjacent Dunheved Golf Course into South Creek, a tributary of the Nepean River (‘Dunheved Golf Course Creek’). There was no site isolation valve in place in case of an incident such as a fire or chemical spill. One of the functions of the SRT, once isolated, was to capture and retain contaminated water on-site in the event of an incident such as a fire or chemical spill.
  6. At all times prior to and during the period from 10 October 2011 and 8 March 2012, being the period during which the offences occurred, Sydney Drum traded as Better Drums Pty Ltd (‘Better Drums’) and held Environment Protection Licence No 12893 (‘EPL’). The EPL permitted Sydney Drum to undertake container reconditioning and waste processing (non-thermal treatment) at the premises, and was subject to a number of conditions, including:
O5 Classification, storage and disposal of wastes
...
O5.2 The number of metal drums on the Premises must not exceed 100 at any one time.
O5.3 The total number of containers (including drums or intermediate bulk containers) (‘IBCs’) at the Premises must not exceed 3,000 at any one time.
O5.4 All containers shall be stored wholly within the building
...
E2 Environmental obligations of licensee
...
E2.2 In the event of an earthquake, storm, fire, flood or any other even where it is reasonable to suspect that a pollution incident has occurred, is occurring or is likely to occur, the licensee (whether or not the premises continue to be used for the purposes to which the licence relates) must:
a) Make all efforts to contain all firewater on the licensee’s premises;
b) Make all efforts to control air pollution from the licensee’s premises;
c) Make all efforts to contain any discharge, spill or run-off from the licensee’s premises;
d) Make all efforts to prevent flood water entering the licensee’s premises;
e) Remediate and rehabilitate any exposed areas of soil and/or waste;
f) Lawfully dispose of all liquid and solid waste(s) stored on the premises that is not already securely disposed of;
g) At the request of the EPA monitor groundwater beneath the licensee’s premises and its potential to mitigate from the licensee’s premises;
h) At the request of the EPA monitor surface water leaving the licensee’s premises; and
i) Ensure that the licensee’s premise is secure.
...

Offence 1: section 64(1) POEO Act offence

  1. On 16 March, 20 April and 2 September 2011, officers of the EPA inspected the premises and found that the number of drums and IBCs stored on the premises exceeded the 3,000 maximum allowable under the EPL by over 4,000 units, and were being stored outside the building.
  2. On 5 October 2011, a Suspension Notice was issued to Sydney Drum suspending its EPL on certain conditions. Condition 3 of the Suspension Notice provided:
a) The Licensee must ensure that no containers are received at the Premises while the License is suspended.
b) The Premises must be maintained in a condition which minimises or prevents any pollution of waters from the Premises. (Original emphasis)
...
  1. Subparagraphs c, d and e of condition 3 imposed time limits within which excess drums and containers were required to be removed from the premises and all containers stored outside were either to be removed from the premises or relocated “to within the building at the premises”. Subparagraph f imposed an obligation on the Company to provide receipts and dockets “showing” that removal from the premises of excess containers had occurred and that the excess number of containers had been taken to a facility that could lawfully receive them.
  2. Finally, condition 4 of the Suspension Notice stated:
The suspension will remain in force until such time as the licensee can demonstrate to the EPA’s satisfaction (expressed in writing) that Conditions 05.2, 05.3 and 05.4 of the licence have been complied with and the EPA issues a notice indicating that the suspension is lifted.
  1. Notwithstanding receipt of the Suspension Notice, Mr Osman-Kerim admitted that there were “occasions in December 2011” when trucks either belonging to or contracted to Toll North Pty Limited (‘Toll’) entered the premises carrying containers or drums while the Suspension Notice remained current.
  2. An EPA officer attended the premises on each of 2 September 2011, 28 September 2011 and 5 October 2011, and on each occasion observed that liquid waste appeared to have spilled within the waste water treatment area, and that this liquid had a strong solvent smell.
  3. Further, the parties agree that containers were received at the premises on a number of occasions in November and December 2011 in breach of condition 3a of the Suspension Notice, including:
  4. Mr Osman-Kerim accepted liability for this conduct and pleaded guilty to an offence under s 64(1) of the POEO Act on the fourth day of the 11 day hearing before Craig J.

Offence 2: s 91(5) POEO Act offence regarding the 17 January 2012 Clean-up Notice

  1. On 16 January 2012 there was a fire at the premises that caused substantial damage to the office area of the factory, and limited damage to the remainder of the building.
  2. Fire and Rescue NSW attended to extinguish the fire, and during this period cut off the electricity to the premises as a safety measure. Accordingly, pumps used to transfer waste to the above ground storage tanks as well as pumps used to transfer liquid waste between tanks could not be operated.
  3. Mr Bourne, an authorised officer under the POEO Act, attended the premises that day and, exercising his authority under s 93(1) of the POEO Act, issued a verbal clean-up direction to Mr Osman-Kerim in the following terms:
1. Engage a suitably qualified liquid waste removalist to remove all liquid waste from the liquid waste containment bund and wash bays by 5.00pm on 17 January 2012;
2. Isolate the stormwater retention pit by 5.00pm on 17 January 2012;
3. Provide receipts to EPA demonstrating liquid waste removed from the Premises was taken to a facility that can lawfully receive that waste by 5.00pm 18 January 2012; and
4. At a time to be determined remove all waste contained within the 4 x 45,000L and 1 x 20,000L tanks by a waste removal company to a facility that can lawfully receive that waste.
  1. That oral notice was followed up the following day when the EPA issued Clean-Up Notice 1503772 (‘17 January Notice’). The 17 January Notice recorded the fact that a fire had occurred at the premises, that the fire had been contained but that liquid waste had entered wash bays, that liquid waste had entered the bunded area provided for the waste water treatment system and above ground waste storage tanks, and that the bunding was “inadequate for the volumes of waste stored in the above ground tanks”. Among the directions included in that notice was Direction No. 3 requiring that the following clean-up action be taken:
Immediately engage a suitably qualified expert to isolate the stormwater retention tank so that any liquid waste spilt at the Premises does not leave the Premises by 5pm Tuesday 17 January 2012. (Original emphasis).
  1. Once the 17 January Notice had been prepared, Mr Bourne, together with Andrew Reece, an authorised officer of the prosecutor, attended the premises and there served the 17 January Notice upon Mr Osman-Kerim. At that time Sandra Kemp, the Company’s Operations Manager was at the premises. Mr Bourne and Mr Reece explained to Mr Osman-Kerim and Ms Kemp what the notice required the Company to do. Each direction given in the 17 January Notice was explained to Mr Osman-Kerim and Ms Kemp.
  2. While Mr Osman-Kerim made an attempt to engage a plumber, the plumber was unable to undertake the works. Accordingly, Sydney Drum failed to isolate the SRT by 5pm on 17 January 2012, resulting in a breach of Clean-Up Notice 1503772.
  3. On 30 January 2012, the EPA authorised a plumber to isolate the SRT and the plumber completed that work the same day. The work to isolate the SRT took the two men approximately two hours.

Offence 3: s 91(5) POEO Act offence regarding the 24 January 2012 Clean-up Notice

  1. On 23 January 2012 a second fire caused substantial damage to the premises, including the collapse of the roof. ‘Firewater’ used to extinguish the fire flowed across the factory floor and, together with the liquid waste from the premises, was discharged from the premises and entered the Dunheved Golf Course Creek.
  2. General access to the premises was restricted given safety concerns for a period of three days, however this restriction did not prevent trucks being used to access the external areas in order to remove waste liquid from the SRT.
  3. On 23 January 2012, the day the fire occurred; EPA officers attended the premises and observed what appeared to be contaminated water flowing from the SRT into the Dunheved Golf Course Creek. Given the SRT had not yet been isolated, an EPA officer used a traffic cone or ‘witches hat’ as a makeshift measure to stem the flow of water from the SRT. The EPA and other government agencies also took steps to contain the contaminated water including using booms brought to the site by the HAZMAT crew of Fire and Rescue NSW to divert the liquid, and undertaking temporary works with the assistance of Penrith City Council to divert and contain the contaminated firewater and liquid waste in the SRT. While undertaking these steps, an EPA officer observed that the liquid waste in the SRT was “black to charcoal in colour, had a strong solvent smell and was foaming.”
  4. Also on 23 January 2012, EPA officers took water samples from the Dunheved Golf Course Creek. The evidence of the environmental toxicology expert in the proceedings before Craig J, which was accepted by Craig J at [134]-[136] of the Judgment, was that following the fires on 16 January 2012 and 23 January 2012:
  5. On 24 January 2012, an EPA officer telephoned Mr Osman-Kerim and gave verbal directions for action to be taken to isolate the SRT and to maintain the level of liquid waste in the SRT to below 30% of its maximum capacity. On the same day, the EPA issued Clean-Up Notice 15303916 (‘24 January Notice’), which provided:
1. Immediately engage a suitably qualified expert to isolate the stormwater retention tanks so that any liquid waste spilt at the Premises does not leave the Premises by 5:00pm 24 January 2012;
2. Immediately direct all runoff from the fire damaged building at the Premises to the stormwater retention tank so that any liquid wastes do not leave the Premises by 5:00pm 24 January 2012;
3a. Immediately monitor and maintain an appropriate level of liquid waste in the stormwater retention tank and the adjacent stormwater pit ensuring the retention tank does not fill in excess of 30% of their capacity; (Original emphasis).
...
  1. On 25 January an EPA officer attended the premises and noted that the SRT had not been isolated, nor had any steps been taken by Sydney Drums to do so. It was raining at the time of the visit, and the EPA officer formed the opinion that the SRT would overflow if it was not pumped out. Accordingly, the EPA arranged for contractors to remove liquid waste from the SRT on 27 January, 30 January, 29 February and 2 March 2012.
  2. Mr Osman-Kerim engaged a contractor to remove liquid waste from the SRT on 16 February, 22 February and 7 March 2012, however the volume removed did not reduce the level in the SRT to below 30%. After the removal of waste on these occasions the level of liquid waste in the SRT remained at approximately 80% of its capacity. The contaminated contents of the SRT overflowed and discharged into the Dunheved Golf Course Creek on a number of occasions during the charge period.
  3. The parties agree that there was a significant amount of rainfall at that time, and relevantly an EPA officer emphasised to Mr Osman-Kerim on 16 February that the requirement to keep the SRT below 30% was so that: “if it rains and more waste comes out of the factory it does not pollute the creek”.
  4. Analysis of samples collected from the SRT during the relevant period showed:
  5. Mr Osman-Kerim informed the EPA on a number of occasions that he was making attempts to pump out the liquid from the SRT, but was having issues regarding his ability to pay contractors to do the work. The EPA warned Mr Osman-Kerim that the costs of compliance was not a lawful excuse or defence for failure to comply with the Clean-Up Notice, and that the spilling of the SRT could be considered a tier 1 offence under the POEO Act.
  6. On 2 March 2012, given Mr Osman-Kerim’s failure to comply with the 24 January Notice and the fact that rainfall was predicted for the ensuing days, the EPA arranged for six liquid waste removal trucks to remove liquid waste from the SRT. After the trucks removed the liquid waste, the level of waste water was approximately 80cm from the top of the SRT, which complied with condition 3a of the 24 January Notice.
  7. On 5 March 2012 an EPA officer had a meeting with Mr Osman-Kerim and informed him that non-compliance with the 17 January Notice and 24 January Notice (collectively ‘Clean-Up Notices’) and a failure to maintain the premises could result in the EPA seeking injunctive relief. The EPA officer noted that Mr Osman-Kerim had indicated that he had financial problems, and notified him that the EPA requires evidence of an inability to comply due to financial reasons (e.g. bank statements). The parties agree that Mr Osman-Kerim did not provide any financial information relating to Sydney Drum to the EPA following that conversation.

Mr Osman-Kerim’s evidence

  1. Mr Osman-Kerim gave evidence in relation to the Sydney Drum business and the events surrounding the commission of the offences. He stated that, in relation to offences 2 and 3, while he did not agree with the EPA’s orders, he had made attempts to comply with the orders by pumping out four tank loads of liquid waste, however that his efforts were frustrated by the “unusual heavy and continuous rains”. Mr Osman-Kerim’s evidence was that every time he pumped out the SRT it will fill up again very quickly because of the rain. He stated that there was nothing that he could do to control it, and that he could not afford to keep pumping out the SRT. Mr Osman-Kerim also attested that the second fire interfered with efforts to comply with the 17 January Notice.
  2. In relation to order 1, Mr Osman-Kerim gave evidence that while he accepts he breached the order issued by the EPA, he had made efforts to reduce the number of IBCs on the premises by reducing the prices and selling a large number of IBCs to customers. Mr Osman-Kerim stated that after doing this, he contacted the EPA to invite them to the premises, however was notified that the relevant EPA officer was on leave.
  3. Mr Osman-Kerim also attested to his personal and financial circumstances. Relevantly, Mr Osman-Kerim gave evidence that he is currently unemployed, and that he had expended approximately $200,000 in legal fees relating to these proceedings. Further, Mr Osman-Kerim gave evidence that he currently cares for his mother, receives an allowance from Centrelink, and has no assets, though in cross-examination he clarified that he owns a house in Iraq with his uncle, has a car, and owns a small amount of furniture.
  4. Mr Osman-Kerim gave some evidence that he was sorry that the incidents had occurred, however maintained that there were various aggravating factors that were out of his control (e.g. the fire and the rain). He stated that as a result of events surrounding the offences he “lost everything”, and that he was sorry for “whatever’s happened”.

Principles regarding sentencing

  1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’) identifies the purposes of sentencing. It states:
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. Section 21A of the Sentencing Act identifies a number of considerations that a court must take into account when sentencing, including in relation to aggravating factors (s 21A(2)) and mitigating factors (s 21A(3)).
  2. Section 241 of the POEO Act sets out matters to be considered by the Court specifically in relation to offences under the POEO Act, and provides as follows:
241 Matters to be considered in imposing penalty
(1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):
(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence,
(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,
(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
(e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee.
(2) The court may take into consideration other matters that it considers relevant.
  1. The task before the Court is then to undertake an “instinctive synthesis” of the objective and subjective circumstances of the offence: Markarian v R (2005) 228 CLR 357; [2005] HCA 25; Muldrock v R (2011) 244 CLR 120; [2011] HCA 39.

Objective circumstances

  1. The matters that the Court may take into account when determining the objective gravity or seriousness of an offence include the nature of the offences, the maximum penalty for the offences, the harm caused to the environment, the state of mind of the offender in committing the offence, the offender’s reasons for committing the offence, the foreseeable risk of harm to the environment, the practical measures to avoid the harm and the offender’s control over the causes of the harm: Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48]; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163]; Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [48].
  2. I note the following statement of Preston CJ of LEC in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [140]:
The objective gravity or seriousness of the crime fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-486, 490-491 and 496; Baumer v R (1988) 166 CLR 51 at 57-58; Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 354. It fixes the lower limit because allowance for the subjective factors of the case, particularly of the offender, cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at 354; R v Nicols (1991) 57 A Crim R 391 at 395; R v Allpass (1993) 72 A Crim R 561 at 563; R v Murray(unreported, NSW Court of Criminal Appeal, 22 October 1997) at pp 6-7 per Barr J with whom Newman J agreed; and R v Scott [2005] NSWCCA 152 (18 April 2005) at [15]), or the objectives of punishment such as retribution and general and individual deterrence (R v McGourty [2002] NSWCCA 335 (13 August 2002) at [34] and [35]).

Nature of the offence

  1. In considering the nature of the offences committed it is important to have regard to the legislative aims of the POEO Act, set out in s 3:
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,
...
(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,
...
  1. In relation to offence 1, the EPA noted the purpose of EPLs and licence conditions in mitigating the risk of environmental harm from certain scheduled activities that would otherwise be prohibited, and submits that contraventions of licence conditions must be appropriately punished to ensure proper operation of the legislative scheme. The EPA relies on Environment Protection Authority v Orica Australia Pty Ltd (Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 at [104] per Pepper J:
...The conditions imposed in any licence are aimed at maximising beneficial environmental outcomes and minimising environmental harm. They represent a balancing exercise between fostering economic growth and development, on the one hand, and protecting and preserving the environment now and for the future, on the other. Strict compliance with the conditions of any environmental licence is therefore necessary to ensure that this balance is achieved and that the objectives of the POEOA are met.
  1. In relation to offences 2 and 3, the EPA submits that ch 4 of the POEO Act creates a system of Environment Protection Notices, these being Prohibition Notices, Prevention Notices and Clean-up Notices, and that Clean-up Notices are “effectively a measure of last resort” as contrasted to licence conditions, which operate prospectively. The EPA relies on Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden [2010] NSWLEC 3; (2010) 172 LGERA 52 at [65] per Pepper J:
...There is a clear need to uphold the regulatory system established under the POEOA which depends on personal and corporate entities taking steps to remediate, rectify and remove sources of pollution as directed and in a timely manner. This system minimises any actual or potential environmental harm caused by the pollution and ensures that the costs of remediation are borne by those responsible for the pollution. The actions of Quintaz in failing to comply with the Clean Up Notice undermined this system and offended the objects of the Act...
  1. Accordingly, the EPA submits that Mr Osman-Kerim’s conduct was contrary to the objects of the POEO Act, specifically s 3(a) and (d) (extracted above).

Maximum penalty

  1. The maximum penalty able to imposed for an offence is Parliament’s expression of the seriousness of the offence, and therefore can be used as a yardstick by the Court: see Camilleri’s Stock Feeds Pty Limited v EPA (1993) 32 NSWLR 683 at 698; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 257 at 372 at [31]. Under s 91(5)(b) of the POEO Act, the maximum penalty for each of the offences committed is $250,000.
  2. Given that offence 2 continued over the period from 17 January 2012 to 30 January 2012, and offence 3 continued over the period from 24 January 2012 to 8 March 2012, the EPA submits that they are continuing offences for the purposes of s 242 of the POEO Act. Pursuant to s 91(5)(b), in the case of a continuing offence, a further the penalty of $60,000 is imposed for each day the offence continues. Accordingly, the EPA submits that the maximum penalty for offences 2 and 3 together is $2,640,000, and the maximum penalty for all 3 offences is $2,890,000.

Environmental harm

  1. In considering environmental harm, it is instructive to have regard to Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]- [149], where Preston CJ of LEC stated:
[145] Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life.
[146] Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174].
[147] Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously.
[148] The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty: Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
[149] The fact that the environment harmed by the offender’s conduct was already disturbed or modified is not a mitigating factor: State Pollution Control Commission v White Wings Ltd. (unreported, Land & Environment Court, No 50129 of 1991, Bignold J, 1 November 1991) at p 4; Environment Protection Authority v Ecolab Pty Ltd [2002] NSWLEC 206; (2002) 123 LGERA 269 at 273 [14]; Environment Protection Authority v Coggins [2003] NSWLEC 111; (2003) 126 LGERA 219 at 224 [18]; Environment Protection Authority v Abigroup Contractors Pty Ltd [2003] NSWLEC 342 (15 December 2003) at [24]; Environment Protection Authority v Arenco Pty Ltd [2006] NSWLEC 244 (9 May 2006) at [26].
  1. The EPA submits that, while offence 1 caused no direct harm to the environment, offences 2 and 3 caused a significant degree of actual and likely harm to the environment. Given the overlap between the two offences, the EPA submits that it is appropriate to consider the overall environmental harm arising from offences 2 and 3 together.
  2. In relation to the contamination and damage to the environment, Mr Osman-Kerim submits that the high alkaline level of the waters was in part explicable by the dilution of caustic soda pellets that were located on the factory floor and had dissolved. Mr Osman-Kerim further submitted that the foam in the waters is explicable by the “shampoo and other washing liquids that were on the premises at the time and also the foaming chemical fire retardants used by the fire brigade” and that there was other toxic waste in the waters arising from general pollution as a result of munitions manufacturing, herbicide, and garbage dumping in the river.
  3. Mr Osman-Kerim stated in cross-examination that, in relation to offence 2, the extent of the environmental harm caused was contributed to by the EPA, who, Mr Osman-Kerim submits, were mistaken in requiring him to isolate the SRT. Instead, Mr Osman-Kerim submits that the more appropriate course of action was to continue pumping water out of the tank. Mr Osman-Kerim submits that he met with EPA officers to communicate this, but was told to isolate the tank regardless.

Defendant’s state of mind

  1. Also relevant to the determination of an appropriate sentence is the defendant’s reasons for committing an offence, see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366. While intention is not an element of strict liability offences such as the offences the subject of these proceedings, an offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed, see Director General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42].
  2. The EPA submits that all three offences were committed deliberately. In relation to offence 1, the EPA submits that the deliberate nature of the offence is demonstrated by the fact that Mr Osman-Kerim personally accepted and signed for delivery of containers while the licence condition prohibiting the receipt of containers was in place.
  3. In relation to offences 2 and 3, the EPA submits that Mr Osman-Kerim chose not to comply with the Clean-up Notices. Relying on the findings of Craig J in the Judgment, the EPA submits that Mr Osman-Kerim did not face any “unreasonable difficulty” in complying with the Clean-up Notices, but rather chose not to comply because of the costs involved with compliance.
  4. Mr Osman-Kerim disputes the EPA’s submission that the offences were committed deliberately, and rather submits that, in relation to offences 2 and 3, Mr Osman-Kerim made attempts to comply with the Clean-up Notices, however he “acted within his means and simply exhausted any funds he may have had in complying with the Orders for clean up.”

Practical measures to avoid harm

  1. The EPA submits that, as the sole director of Sydney Drum and the person in charge of day-to-day operations, Mr Osman-Kerim was well placed to take practical measures to avoid the environmental harm caused.
  2. In relation to offence 2, the EPA submits that Mr Osman-Kerim could have engaged a qualified plumber to isolate the SRT, however failed to do so. In relation to offence 3, the EPA submits that Mr Osman-Kerim could have engaged a licensed waste removal contractor to ensure that the level of waste in the SRT did not exceed 30%. While the EPA accepts that Mr Osman-Kerim made some attempts to comply with the Clean-up Notices (i.e. engaging a contractor to pump out waste on 16 and 22 February and 7 March 2012), the EPA submits that these attempts were inadequate.
  3. Mr Osman-Kerim submits, as above, that he made attempts to comply with the Clean-up Notices, but was frustrated by both the rain and the fact that he could not afford the costs of complying with the Clean-up Notices. Mr Osman-Kerim also submits that, in relation to offence 2, while he was taking steps to comply with the Clean-up Notices, the second fire on the 23 January intervened and frustrated his efforts.

Foreseeable risk of environmental harm

  1. The EPA submits that Mr Osman-Kerim could reasonably have foreseen that his failure to isolate the SRT or maintain its level at less than 30% capacity could cause environmental harm, particularly as the Clean-up Notices would have put Mr Osman-Kerim on notice (see Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211). The EPA further submits that Mr Osman-Kerim knew or should have known that:
  2. Mr Osman-Kerim did not make any submissions regarding the foreseeability of the risk of harm.

Control over causes

  1. For the reasons set out at [60] and [61] above, the EPA submits that Mr Osman-Kerim had control over the causes of the environmental harm.

Other considerations

  1. Pursuant to s 241(2) of the POEO Act, in addition to the matters set out in s 241(1) of the POEO Act, the Court is entitled to take into account other matters that it considers relevant. The EPA submits that the Court should take into account that, in relation to offences 2 and 3, the continuing offences and environmental harm caused were only addressed by virtue of the EPA’s actions. The EPA submits that had the EPA not intervened, the harm to the environment would likely have been more serious.

Conclusions on objective circumstances

  1. The EPA submits that offence 1 should be considered of low to mid-range objective gravity or seriousness whereas offences 2 and 3 should be considered of high objective gravity or seriousness. I accept this submission having regard to the following:
...the enforcement of the State’s anti-pollution law ought to be attended with a greater rigour and enthusiasm to bring about an improved state of affairs in an already degraded water environment.
(3) Third, while the offences committed were all strict liability offences and therefore do not require intention to be proven, I accept the EPA’s submission that all three offences were committed deliberately. In relation to offence 1, Mr Osman-Kerim personally accepted and signed for the delivery of containers while the licence condition prohibiting receipt of containers was in place. In relation to offences 2 and 3, Mr Osman-Kerim chose not to comply with the Clean-up Notices based on the costs involved with compliance. I note Mr Osman-Kerim’s submission that he attempted to comply but simply “exhausted his funds”, however I do not consider that financial issues detract from the deliberateness of his conduct. I note also that Craig J at [345] of the Judgment found that Mr Osman-Kerim had not established that there were any physical or practical difficulties that prevented him from complying with the 24 January Notice.
(4) Fourth, in relation to the practical measures to avoid the foreseeable risk of environmental harm, I find that Mr Osman-Kerim, as the sole director of Sydney Drum and the person in charge of the day to day operations, was well-placed to take practical measures to avoid the environmental harm caused.
(5) Fifth, I find that Mr Osman-Kerim could reasonably have foreseen that his failure to isolate the SRT, or maintain its level at less than 30% full, could cause environmental harm. The fact that the premises were used for “waste processing”, the EPL required the licensee to make efforts to lawfully dispose of liquid waste in the event of a fire, and that the SRT was designed to retain contaminated wastewater would have all indicated to Mr Osman-Kerim that, if he did not comply with the strict licensing conditions and the directions from the EPA, his operations on the premises could cause environmental harm. Further, I accept that the two Clean-up Notices, given their wording, put Mr Osman-Kerim on notice of the risk of environmental harm.

Subjective circumstances

  1. In determining the appropriate sentence, the Court must also have regard to any aggravating or mitigating factors as set out in s 21A of the Sentencing Act. The EPA submits that the aggravating factors set out in s 21A(2) of the Sentencing Act are largely irrelevant, with the exception of s 21A(2)(i) of the Sentencing Act, which the EPA submits is relevant as Mr Osman-Kerim’s conduct in allowing toxic contaminated liquid to escape from the premises was committed without regard for public safety. While I accept this submission regarding the disregard for public safety, I give it limited weight.
  2. Section 21A(3) of the Sentencing Act sets out the mitigating factors as follows:
(3) Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
...
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
...
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
...
(k) a plea of guilty by the offender (as provided by section 22),
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),
(m) assistance by the offender to law enforcement authorities (as provided by section 23).
  1. Relying on Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [140], the EPA submits that in determining the appropriate sentence, the Court can consider a lack of prior criminality, prior good character, plea of guilty, contrition and remorse, and assistance provided to authorities by Mr Osman-Kerim.

Lack of prior criminality

  1. The EPA submits that it is not aware of Mr Osman-Kerim having any previous convictions for environmental offences, and pursuant to s 21A(3)(e) of the Sentencing Act, this should be considered a mitigating factor.

Prior good character

  1. Mr Osman-Kerim tendered five character references from people who have known him for a number of years. While these references attest to the manner in which he is regarded in his community, only one of the references acknowledged the matter before the Court and Craig J’s findings regarding Mr Osman-Kerim’s liability in respect of the offences. Accordingly, while I accept that Mr Osman-Kerim may be well regarded, I treat this as a neutral factor in these proceedings.

Plea of guilty

  1. In relation to offence 1, the EPA submits that Mr Osman-Kerim’s plea of guilty is a mitigating factor under s 21A(3)(k) of the Sentencing Act. The factors that affect the appropriate level of discount are, the EPA submits relying on R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [152]:
  2. As noted above, Mr Osman-Kerim’s plea of guilty in relation to offence 1 was entered on the fourth day of the 11 day hearing before Craig J. While the EPA acknowledges that Mr Osman-Kerim was not legally represented up to this point, the EPA submits that the utility of the plea was nonetheless limited. Accordingly, the EPA submits that Mr Osman-Kerim’s guilty plea should attract a discount at the bottom end of the available range, of approximately 10% to 25%.

Contrition and remorse

  1. The EPA submits that Mr Osman-Kerim has not demonstrated contrition or remorse in respect of the offences as:
  2. Written submissions on behalf of Mr Osman-Kerim stated that he was – “...very remorseful about the whole of the incident including any adverse impact on the environment.” As noted above, Mr Osman-Kerim expressed in oral evidence his remorse for the fact that the incidents occurred, and noted that he had lost everything. However, when asked whether he did anything wrong in relation to the sealing of the SRT, Mr Osman-Kerim stated that he did not consider that he had done anything wrong. In relation to offence 3, when asked whether he did anything wrong, Mr Osman-Kerim stated that the circumstances were out of his control, but that he was sorry that he didn’t have the funds to do anything more to address the situation.

Assistance to authorities

  1. The EPA accepts that Mr Osman-Kerim provided assistance to authorities, noting that he participated in a voluntary record of interview and agreed to a limited statement of facts for the purposes of the proceedings before Craig J.

Findings on subjective circumstances

  1. I accept that Mr Osman-Kerim has not had any prior convictions, and that this should be considered a mitigating factor in determining the appropriate sentence.
  2. In relation to Mr Osman-Kerim’s plea of guilty to offence 1, while this is a mitigating factor, the fact that the plea was entered only after the matter proceeded to hearing, and, further, on the fourth day of the proceedings, lessens the extent to which it can be taken into account in determining an appropriate sentence. While I accept that Mr Osman-Kerim did not have legal representation until this point, the utilitarian value of a guilty plea to the criminal justice system is reduced where the guilty plea is not forthcoming, see R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32]; Morton v R [2014] NSWCCA 8 at [32]- [33]. The guideline judgment of the New South Wales Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 sets the appropriate discount for a guilty plea as being in the order of 10% to 25%. In this case, given the delay in Mr Osman-Kerim’s guilty plea, I find he is entitled to a discount of 15% in relation to offence 1.
  3. While Mr Osman-Kerim expressed some remorse and contrition, I find that this should be given limited weight, as it was directed more at the effects of the offences and subsequent events on him and his business, rather than at the harm caused by his actions. Mr Osman-Kerim was given at least four opportunities in cross-examination to express his remorse for committing the offences, however his answers indicated that he has not taken responsibility for his conduct (pursuant to s 3(i) of the Sentencing Act), but rather considers that the offences were due to circumstances out of his control. While I accept that Mr Osman-Kerim experienced some language difficulties, and accordingly his oral evidence should be treated with some caution, I cannot, on the evidence, make a finding that Mr Osman-Kerim expressed genuine, sincere contrition for his conduct.
  4. I accept that Mr Osman-Kerim provided assistance to authorities, and that this, pursuant to s 3(m) of the Sentencing Act, is to be considered a mitigating factor.

Further sentencing considerations

Deterrence

  1. The EPA submits that general deterrence is of relevance in this case, as per s 3A(b) of the Sentencing Act. The EPA submits that Mr Osman-Kerim’s “deliberate failure to comply with the POEO Act sends an unacceptable signal to other holders of EPLs who might be tempted to commit environmental crimes by ignoring licencing conditions or Clean-up Notices.”
  2. The EPA further submits that specific deterrence, set out in s 3A(a) and (d)-(f) of the Sentencing Act is also of concern in this case, as Mr Osman-Kerim may work again in an industry regulated under the POEO Act, and it is important that he be punished for his conduct and deterred from committing similar offences in the future.
  3. I find that there is a need for both general and specific deterrence in these circumstances. In relation to general deterrence, a key purpose of deterrence is to ensure that others do not commit similar offences on the assumption that they will only receive a light punishment, see Environmental Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [228].
  4. As stated by Mahoney JA in Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 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 to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur.
...
The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure pollution does not occur.
  1. In this case, it is important that the sentence indicates to the general public the seriousness of offences committed deliberately, that result in significant environmental harm. The conduct the subject of these proceedings represents a significant flouting of the legislative scheme designed to protect the environment, and it is important that the sentence imposed adequately reflects this. Further, a number of cases have noted that, for environmental offences, general deterrence is of central importance, see e.g. Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [71]- [80] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [103]- [106]. A nominal fine is not a significant deterrent in the circumstances of environmental offences: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [139]- [141] and [150]-[151].
  2. In relation to specific deterrence, although Mr Osman-Kerim is not currently working, it is not unlikely, as the EPA submitted, that he will one day work again in the container cleaning industry, and in that sense there is a need to specifically deter Mr Osman-Kerim from committing similar acts in the future.

Totality principle

  1. The EPA accepts that the totality principle applies in these proceedings, in the sense that once an appropriate fine is fixed for each of the offences, the Court can adjust each fine to achieve a just and appropriate aggregate fine; see Johnson v R [2004] HCA 15; (2004) 205 ALR 346 at [18]- [19]; Ngo v Fairfield City Council [2009] NSWCCA 241; (2009) 169 LGERA 56 at [12]- [15].
  2. A useful summary of the totality principle is provided in Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 by Preston CJ of LEC:
[196] The totality principle is a principle of sentencing which must be applied when sentencing an offender who has committed more than one offence. The court should consider questions of cumulation or concurrence as well as questions of totality. When reviewing the aggregate sentence, the Court must consider whether it is “just and appropriate” and reflects the total criminality before the court...
...
[198] To reflect the fact that a number of sentences are being imposed, an appropriate aggregate may be reached by either making sentences concurrent or lowering the individual sentences below what would otherwise be appropriate...
[199] In determining an appropriate aggregate sentence, the Court must consider the need to uphold public confidence in the administration of justice. If sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences...
[200] In applying the totality principle, the Court must avoid determining a sentence that is disproportionate to the seriousness of the offence...The Court must first fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as questions of totality... [references excluded]
  1. While the EPA accepts that the totality principle applies, it submits that the Court should distinguish circumstances where a defendant is sentenced for a number of distinct offences, from circumstances where there is one course of conduct and as a consequence of which the defendant has committed multiple offences. The EPA submits while there is overlap between the offences, Mr Osman-Kerim’s conduct falls within the former category; see Pearce v R [1998] HCA 57; (1998) 194 CLR 610 at [40]. As such, the EPA submits that the principle of totality should not significantly reduce the “just and appropriate” fine.
  2. I accept that given that offences 2 and 3 both arise from related or ongoing pollution incidents and impacted on the same waters, it would be somewhat artificial to consider the environmental harm arising from each contravention completely separately. I note the EPA’s submission that the two offences arise from distinct conduct. While I accept this, I find that there is a significant degree of overlap between the two offences, and accordingly, I find it appropriate to impose a penalty which takes into account this overlap.

Even-handedness

  1. Consistency in sentencing is an important consideration to which the Court should have regard in determining the appropriate sentence. As provided in Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185; (2013) 199 LGERA 236 at [115]:
The principle of evenhandedness in sentencing requires the Court to have regard to the general pattern of sentencing for offences of the kind being considered. However, care must be exercised in undertaking this task as the facts and circumstances, both objective and subjective that inform the imposition of a penalty in one case will inevitably differ from those facts and circumstances relevant to inform an appropriate penalty in the case under consideration.
  1. The EPA identifies only one other sentencing decision that considers a contravention of s 91(5) of the POEO Act, that being Cessnock City Council v Quintaz Pty Limited [2010] NSWLEC 3; (2010) 172 LGERA 52. This decision involved a failure to comply with a clean-up notice relating to a stockpile of fibrous material, including asbestos. The failure to comply with the clean-up notice, and the fact that the defendant in that case Quintaz Pty Limited (‘Quintaz’), submitted that the rainfall and its financial circumstances impeded its ability to comply with the clean-up notice, are factors that are similarly present in the matter currently before me. However, I also note a number of differences in Pepper J’s findings in that case, for example the fact that Quintaz was a corporate defendant rather than an individual, that the environmental harm was found to be minimal, the defendant’s lack of cooperation with the authorities, and the fact that the offences were not found to have been committed deliberately. Accordingly, while I have had regard to the findings in that decision, I do not consider the case to be analogous to the one currently before the Court.

Orders sought

  1. The EPA seeks the following orders:

Finding on penalty

  1. A court, when determining an appropriate sentence, is to consider all the relevant factors, determine the weight to be given to each, and, applying this instinctive synthesis approach, make a value judgment as to the appropriate sentence, see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 48. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant, see Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490. The sentence must be “appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances”, per Veen v The Queen (No 2) (1998) 164 CLR 465; [1988] HCA 14 at 472, 485-486, 490-491, 496.
  2. I note that Mr Osman-Kerim has given evidence that he has limited financial means, and in that sense will have little capacity to pay a fine imposed by the Court. While the Court is required to consider an accused’s means to pay under s 6 of the Fines Act 1996 (NSW), the EPA submits that, first, Mr Osman-Kerim’s claim regarding impecuniosity was not properly substantiated by the evidence, and second, the Court should be mindful that the level of the fine imposed plays an important role in general deterrence, and any fine imposed on the defendant can be paid by way of instalments. As noted by Preston CJ in Bankstown City Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39 at [181] in order to reduce the fines to be imposed for the offence based on Mr Osman-Kerim’s financial circumstances, I need to have sufficient evidence that it is just or appropriate for him to have the benefit of a reduced fine. In the circumstances, and while Osman-Kerim’s claimed lack of capacity to pay has not properly been substantiated by the evidence, I accept based on his written and oral evidence that he has some financial difficulties, and am prepared to impose a penalty that is slightly less than would have otherwise been the case.
  3. Applying this approach and in the circumstances of the objective and subjective matters before me, I impose a total penalty of $151,000, made up as follows:

Costs

  1. As noted above, the EPA sought orders pursuant to s 248(1) of the POEO Act and s 257B of the Criminal Procedure Act 1986 (NSW) that Mr Osman-Kerim pay the EPA’s investigative cost, amounting to $120,795, and its legal costs, as agreed or assessed, estimated to be approximately $200,000. The investigative costs relate to the analysis of water samples taken from the premises and the waters polluted by the offences. In relation to legal costs, the EPA submits, relying on Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543, 562-3, 567 and EPA v Taylor (No 4) [2002] NSWLEC 59; (2002) 120 LGERA 414 at [45], the purpose of an order for professional costs is to indemnify or compensate the EPA, rather than to punish Mr Osman-Kerim. The EPA submits that while payment of professional and investigative costs can be taken into account as part of the penalty, payment of costs itself is not generally a reason for reducing a penalty, see EPA v Barnes [2006] NSWCCA 246 at [78] and Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50].
  2. The defendant did not make any submissions in relation to costs.
  3. In the circumstances, while I have regard to the fact that a costs order will impose a significant financial burden on Mr Osman-Kerim, I consider it appropriate to order that Mr Osman-Kerim pay both the EPA’s investigative and legal costs as the EPA did not conduct itself in any manner which would disentitle it from receiving its costs.

ORDERS

  1. In respect of proceedings 00158256 of 2016, pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, the defendant is to pay the amount of $51,000 to the Environmental Trust established under the Environmental Trust Act 1998 for general environmental purposes.
  2. In respect of proceedings 00158257 of 2016, pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, the defendant is to pay the amount of $50,000 to the Environmental Trust established under the Environmental Trust Act 1998 for general environmental purposes.
  3. In respect of proceedings 00158258 of 2016, pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, the defendant is to pay the amount of $50,000 to the Environmental Trust established under the Environmental Trust Act 1998 for general environmental purposes.
  4. Pursuant to s 257B of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor’s legal costs as agreed or assessed in accordance with s 257G of the Criminal Procedure Act 1986.
  5. Pursuant to s 248(1) of the Protection of the Environment Operations Act 1997, the defendant is to pay the Environment Protection Authority’s investigation costs of $120,795.
  6. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, the defendant is to:
  7. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, the defendant is to:
  8. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, the defendant is to:

**********

Annexure A

Imad Osman-Kerim convicted of offences relating to breach of licence and failure to comply with clean-up notices

On 31 May 2017 the Land and Environment Court of New South Wales found Mr Imad Osman-Kerim guilty of two offences of failing to comply with a Clean-up Notice and one offence of contravening a condition of an Environment Protection Licence in breach of the Protection of the Environment Operations Act 1997. Mr Osman-Kerim was prosecuted by the Environment Protection Authority (‘EPA’) as a director of a company, Sydney Drum Machinery Pty Ltd (trading as Better Drums), which operated a drum re-conditioning business at St Mary’s in Sydney.

In January 2012, two separate fires damaged the premises causing toxic chemicals entrained in firewater and rainfall to discharge from the premises into a watercourse that traverses Dunheved Golf Course before entering South Creek.

Mr Osman-Kerim failed, without reasonable excuse, to comply with two clean-up notices issued by the EPA requiring the company to take measures to ensure the toxic chemicals stored at the premises were retained onsite and removed by a licensed waste disposal operator. The offences continued from 17 January 2012 to 8 March 2012. The offences resulted in discharges from the premises causing serious actual and likely harm to the environment of the unnamed watercourse.

Mr Osman-Kerim was ordered to:

1. In lieu of a fine, pay $151,000 to the Environmental Trust for general environmental purposes.

2. Pay the prosecutor’s legal costs as agreed or assessed.

3. Pay the prosecutor’s investigation costs in the amount of $120,795.

4. At his own expense, cause this notice to be placed in the Sydney Morning Herald, the Daily Telegraph and Inside Waste magazine.

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