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Land and Environment Court of New South Wales |
Last Updated: 2 February 2023
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Land and Environment Court New South Wales
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Case Name:
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Environment Protection Authority v ACE Demolition & Excavation Pty (No
2)
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Medium Neutral Citation:
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Hearing Date(s):
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25, 26, 27, 28 and 29 July; 1, 2, 3 and 23 August 2022
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Date of Orders:
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2 February 2023
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Decision Date:
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2 February 2023
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Jurisdiction:
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Class 5
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Before:
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Moore J
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Decision:
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See orders at [274] to [278]
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Catchwords:
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SENTENCE ‑ Defendant charged with three offences pursuant to
s 144AA(2) of the Protection of the Environment Operations Act
1997 (the
POEO Act) for transmitting information concerning waste during the course
of dealing with waste where the information was
false or misleading in a
material respect and the Defendant knew that it was false or misleading ‑
Defendant also charged with
one offence pursuant to s 144AA(1) of the
POEO Act of transmitting information concerning waste during the course of
dealing with
waste where that information was false or misleading in a material
respect ‑ Defendant pleads guilty to all four charges after
eight day
trial ‑ charges against Defendant’s sole director withdrawn ‑
consideration of objective factors concerning
the Defendant's offending conduct
‑ consideration of the Defendant's subjective factors ‑ appropriate
starting penalties
for each s 144AA(2) offence of $330,000 ‑
appropriate starting penalty for single offence under s 144AA(1) of
$165,000 ‑
consideration of appropriate discount for guilty pleas ‑
guilty pleas made late but not so late as to disentitle Defendant
to some
discount for the utilitarian value of the pleas ‑ appropriate discount to
be applied to each penalty of 10% ‑
consideration of totality and
accumulation of penalties where offences arose from a single course of conduct
‑ appropriate
to moderate the penalties for the second and subsequent
offences ‑ Prosecutor seeks publication order ‑ Defendant opposes
making of publication order ‑ appropriate to make publication order
‑ Prosecutor seeks moiety of penalties imposed ‑
moiety order not
opposed by Defendant ‑ moiety of penalties ordered to be paid to the
Prosecutor ‑ total penalty imposed
on Defendant of $943,650
COSTS ‑ Prosecutor seeks order for costs ‑ order for costs not opposed by Defendant ‑ Defendant ordered to pay the Prosecutor's costs of the proceedings against the Defendant as agreed or assessed |
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Legislation Cited:
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Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22 and
32
Criminal Procedure Act 1986, ss 257B and 257G Environmental Planning and Assessment Act 1979, Pt 4, Div 4.3, Div 4.15 and Div 4.17 Fines Act 1996, s 122 Protection of the Environment Operations Act 1997, ss 3, 144AA, 169C, 241, 250(1)(a) and 260 Protection of the Environment Operations (Waste) Regulation 2014 Evidence Act 1995, ss 128(7) and 128A(8) |
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Cases Cited:
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Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources
Access Regulator [2022] NSWCCA 9
Burwood Council v Pratelli [2014] NSWLEC 28 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185 Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 44 Environment Protection Authority v ACE Demolition & Excavation Pty Ltd; Allam [2022] NSWLEC 45 Environment Protection Authority v Afram [2022] NSWLEC 38 Environment Protection Authority v Allam [2021] NSWLEC 103 Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7 Environment Protection Authority v Al‑Sarray [2022] NSWLEC 31 Environment Protection Authority v Barnes (2006) NSWCCA 246 Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott [2016] NSWLEC 167 Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75 Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) [2020] NSWLEC 166 Environment Protection Authority v Mouawad (No 3) [2021] NSWLEC 16 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Markarian v R (2005) 229 CLR 357; [2005] HCA 25 Mohindra v R [2020] NSWCCA 340 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Chan [2000] NSWCCA 345 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v O’Neill (1979) 2 NSWLR 582 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54 |
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Category:
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Sentence
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Parties:
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Environment Protection Authority (Prosecutor)
ACE Demolition & Excavation Pty Ltd (Defendant) |
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Representation:
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Counsel:
Mr D Buchanan SC/Ms F Graham, barrister (Prosecutor) Mr J Potts SC/Ms K Morris, barrister (Defendant) Solicitors: Environment Protection Authority (Prosecutor) Clayton Utz (Defendant) |
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File Number(s):
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357465, 357466, 357467 and 357468 of 2020
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Publication Restriction:
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No
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TABLE OF CONTENTS
Mr Sami Allam's role with the Company
Plea matters at the commencement of the trial
The entry of guilty pleas for the Company and withdrawal of charges against Sami
The Agreed Statement of Facts on Sentence
Oral evidence in the first phase by employees of the Company
The carried forward first phase evidence
The additional evidence for sentencing
Harm to regulatory schemes established by Parliament
Undermining of the waste regulatory framework
Undermining of the development control framework
Sentencing factors to be considered as mandated by the POEO Act
The Company’s subjective factors
Is the Company a good corporate citizen? ‑ s 21A(3)(f)
The likelihood of reoffending ‑ s 21A(3)(g)
Contrition and remorse ‑ s 21A(3)(i)
The apology made on behalf of the Company
The enforceable undertaking offers
Conclusion on contrition and remorse
The Company’s guilty pleas ‑ s 21A(3)(k)
The extent of assistance given to the Prosecutor ‑ s 21A(3)(m)
The decision of Duggan J in Mr Al Sarray’s prosecutions
Mr Al Sarray’s relevant subjective circumstances
The characterisation of Mr Al Sarray’s offending conduct
The penalties imposed on Mr Al Sarray
Characterisation of the Company’s offending conduct
The Prosecutor’s material and submissions on comparability
The submissions for the Company on comparability
The appropriate starting sentences
The Prosecutor’s submissions on parity
The Company's submissions on parity
The submissions for the Company
The submissions for the Company
The Prosecutor’s subsequent response
The terms of the notice to be published
JUDGMENT
Introduction
Mr Sami Allam's role with the Company
The interlocutory decisions
The charges
The Defendants’ pleas
The initial pleas
Plea matters at the commencement of the trial
The entry of guilty pleas for the Company and withdrawal of charges against Sami
The Agreed Statement of Facts on Sentence
Introduction1. The Defendant, ACE Demolition & Excavation Pty Ltd (ACE):
(a) has operated in the waste industry since 2004;
(b) has no criminal history or prior convictions;
(c) has never been charged with any other offences besides those the subject of these sentencing proceedings.
Offences2. ACE committed the following offences:
(a) An offence, on or about 18 April 2017, against s 144AA(2) of the Protection of the Environment Operations Act 1997 (POEO Act), in that it supplied information about waste to another person in the course of dealing with the waste, being information that it knew was false and/or misleading in a material respect.
(b) An offence, on or about 2 June 2017, against s 144AA(2) POEO Act, in that it supplied information about waste to another person in the course of dealing with the waste, being information that it knew was false and/or misleading in a material respect.
(c) An offence, on or about 12 June 2017, against s 144AA(1) POEO Act, in that it supplied information about waste to another person in the course of dealing with the waste, being information that was false and/or misleading in a material respect.
(d) An offence, on or about 2 December 2017, against s 144AA(2) POEO Act, in that it supplied information about waste to another person in the course of dealing with the waste, being information that it knew was false and/or misleading in a material respect.
BackgroundThe legislative framework for disposal of excavation waste
3. At the times of the offences, the disposal of waste, including excavation waste, from construction sites was governed by the POEO Act and the Protection of the Environment Operations (Waste) Regulation 2014 (Waste Regulation).
4. There were different types or categories of waste including:
• aggregate;
• asbestos;
• bricks or concrete;
• contaminated soil;
• mixed waste;
• soil (not contaminated or Virgin Excavated Natural Material (VENM));
• VENM
• asbestos containing/contaminated material (ACM);
• potential acid sulphate soils (PASS);
• general solid waste (GSW); and
• excavated natural material (ENM).
5. Under Part 3 of the Waste Regulation, the occupiers of waste facilities were required to record certain information in relation to each delivery of waste or other material received at the facility, including the amount of any waste delivered, its waste type, its waste stream (such as construction and demolition waste), the date and time the delivery is made and the registration number of the vehicle used to make the delivery. This was an obligation that attached only to the occupiers of waste facilities. There was no obligation under Part 3 of the Waste Regulation or the POEO Act for waste facilities to record (or for persons delivering waste to provide) details of the source site for the waste delivered or a job number for that site.Accounting required for disposal of excavation waste, generally
6. In summary, some but not all waste facilities had weighbridges over which the trucks carrying waste into the facility were required to pass. Those waste facilities which had weighbridges generated weighbridge disposal dockets (weighbridge dockets) which were usually given to the drivers of the trucks concerned. A function of the weighbridge dockets was to provide a record of the disposal of the quantity of waste concerned. The weighbridge dockets sometimes specified the source development site which had been supplied to the waste facility operator when the company disposing of the waste agreed with the operator for the waste to be disposed of at the facility, and/or given to the weighbridge operator by the truck driver when going over the weighbridge. Where an order number (job number) had been created by the waste facility for that source site, the weighbridge docket sometimes specified that data. (The process by which the weighbridge dockets were generated is detailed under the heading “ACE’s transactions with waste facilities” below.) Generally speaking, the weighbridge dockets were intended to be provided to the company disposing of the waste, in this case ACE. A record of the weighbridge dockets was also kept by the waste facilities. The methods by which ACE received weighbridge dockets were either or both:
• from the driver of the truck; and/or
• from the waste facility, sometimes as copies, when it invoiced ACE for the cost of ACE disposing of the waste concerned; or when ACE requested them from the facility.
7. The weighbridge dockets usually recorded in print form:
(a) the name of the facility;
(b) a unique docket number;
(c) the date and time;
(d) the vehicle registration number of the truck;
(e) the identity of the company disposing of the waste (in this case, ACE);
(f) a job number or reference number which could be sourced to a particular source site or source location for the waste such as the suburb from whence the waste had come;
(g) the waste type;
(h) the tare weight of the truck; and
(i) the net weight of the waste.
8. Generally, when a truck carrying waste being disposed of by ACE came to a waste facility that did not have a weighbridge, the waste facility and/or ACE would provide an estimate or average tonnage for that truck. It was ACE’s practice to have drivers weigh their trucks at weigh stations to verify the estimated tonnage from time to time.9. Those waste facilities that were not equipped with or did not use weighbridges provided transporters (including ACE) with records for the disposal of waste at those facilities. Depending on the facility, those records usually recorded some or all of the same information as was recorded on weighbridge dockets (as set out at paragraph 7).
10. The waste facility company SUEZ Recycling & Recovery Pty Ltd (SUEZ) produced weighbridge dockets in hardcopy format which were provided to ACE in hardcopy or in scanned PDF format.
11. The waste facility company Dial A Dump Industries Pty Ltd and Dial A Dump (EC) Pty Ltd (DADI) produced weighbridge dockets in electronic PDF format which were provided to ACE as electronic files or printed in hardcopy.
12. The waste facility company Besmaw Pty Ltd (Besmaw), also known as the Holt Estate 1861, produced weighbridge dockets entitled “Tax invoice duplicate”.
13. From time to time, the waste facility companies SUEZ, DADI and Besmaw also produced other documents, including invoices, truck run sheets, and summaries by way of letters, spreadsheets or lists of loads or quantities of waste disposed of at their waste facilities by ACE, which the companies provided to ACE on request, and which from time to time ACE provided to its clients or their agents. Run sheets recorded the fact that a waste disposal company’s truck load had been disposed of to the facility and the date and time.
ACE Demolition & Excavation Pty Ltd
The company and relevant senior staff
14. At the times of the offences, ACE conducted civil works, such as demolition and excavation of development sites, and the transportation and disposal of waste.
15. At the times of the offences, Mr Sami Allam (Mr Allam) was the sole director and chief executive officer of ACE and had been a director since 22 January 2004. Mr Allam was the sole shareholder of ACE.
16. At the times of the offences, ACE simultaneously conducted excavation activities on an average of 25 development sites in NSW ‑ most of them in the Sydney area. ACE had an office at Regents Park. A number of people were based at the ACE office including:
• Mr Allam ‑ director;
• Munaf Al Sarray ‑ contract manager and/or construction manager; after Mr Allam, Mr Al Sarray was second‑in‑charge of the corporation;
• Nicole Anthony ‑ office manager;
• Bachar Allam ‑ truck & people allocator;
• Kassem Allam ‑ machinery allocator; and
• Ameer Sidawi ‑ accounts payable clerk & contracts administrator.
17. As part of his role, Mr Al Sarray:
(a) had responsibility for carrying out the demolition, excavation and waste disposal projects which ACE had been awarded to the completion of their contracts, including communicating with clients;
(b) had oversight of the movement of waste from construction sites to waste facilities, including coordinating where waste was sent;
(c) was responsible for collecting dockets from waste facilities; for providing copies of dockets to clients and environmental consultants and ensuring that the clients received the dockets for which they asked;
(d) was responsible for finishing the jobs which ACE undertook by, amongst other things, providing evidence to clients that waste anticipated to have been present on the site was lawfully disposed of; and
(e) was a senior and trusted employee.
The company’s operations18. ACE typically quoted to development companies (including construction companies) to conduct the demolition and excavation phases of planned development works. Those phases often included the removal from the development site of the demolition and excavation waste generated by ACE.
19. ACE entered into agreements with various waste facilities for the disposal at those facilities of waste taken from particular development sites at which ACE was generating waste. The types of waste that ACE disposed of included asbestos and ACM, PASS, GSW, ENM, VENM and recovered aggregate.
20. The system which ACE operated for the transport of waste to waste facilities was generally as follows:
(a) excavator operators hired or employed by ACE excavated material from the development site concerned;
(b) the excavated material was placed by the operator of an excavator either directly from the excavation or from a stockpile into a truck hired by ACE;
(c) the truck drove to the exit gate of the site;
(d) the gate was controlled by a traffic controller;
(e) the traffic controller was told the type of the waste and the waste facility to which the truck should take the waste;
(f) if he had not already been told by the allocator, the truck driver was told the destination waste facility to which the load should be taken by the traffic controller.
ACE’s transactions with waste facilities21. In the period 2016‑2017, ACE disposed of excavation waste to waste facilities, including facilities operated by:
(a) SUEZ ‑ including its Elizabeth Drive Landfill Facility at 1725 Elizabeth Drive, Kemps Creek, NSW (SUEZ Facility);
(b) DADI ‑ including its Genesis Eastern Creek landfill and recycling facility at Kangaroo Avenue, Eastern Creek, NSW (DADI Facility); and
(c) Besmaw ‑ namely its Holt Land Rehabilitation Centre, corner Lindum Road and Captain Cook Drive, Kurnell, NSW (Holt Landfill). The Holt Landfill was licensed to receive ENM including PASS.
22. The procedure to enable ACE to dispose of waste to the SUEZ Facility and the DADI Facility was that ACE already had or opened an account with the operator of the facility. The procedure included:
(a) ACE provided the operator with information as to the types of waste to be disposed of for a particular job or for various types of waste it may dispose of;
(b) in the case of DADI, the operator allocated an order number to the customer which described the suburb of the particular ACE job site from which material for disposal came and was then recorded on its weighbridge dockets as the “Order No.”;
(c) in the case of SUEZ, the operator allocated a customer reference which was a unique code referable to a particular ACE job site from which material for disposal came and was then recorded on its weighbridge dockets as the “Cust ref”.
23. ACE disposed of waste to the Holt Landfill from at least 12 source development sites. Trucks carrying waste to the Holt Landfill for ACE from any source site went over a weighbridge which calculated the weight of the loads tipped and generated a docket (entitled “Tax invoice duplicate”) which contained the same data as referred to in paragraph 7 above. ACE entered into an agreement with Besmaw for the acceptance of PASS at the Holt Landfill from the Wolli Creek Premises.24. Generally, when a truck carrying waste being disposed of by ACE came to a waste facility which had a weighbridge, the truck was required to go over the weighbridge. The truck driver told the weighbridge operator that it was carrying waste for ACE. The weighbridge weighed the gross load. The truck travelled into the facility and tipped off its load (if one bin on a bogie truck) or loads (if two bins comprising a truck and dog) and returned to the weighbridge. There the weighbridge calculated the tare weight of the vehicle and recorded the net weight of the load/s. The weighbridge generated a docket (for details, see paras 6 and 7 above).
Accounting for lawful disposal of waste by ACE ‑ generally
25. Typically, ACE was not required by its clients, nor did it receive requests from its clients to, provide them (or other third parties) with documentary records accounting for the volumes of material excavated and/or removed by ACE from a client’s site.
ACE’s relationship with EI Australia
26. Environmental Investigations Australia Pty Ltd (EI Australia) provided, amongst other things, environmental engineering services for the construction and excavation waste disposal industries.
27. A director at EI Australia was Eric Gerges.
28. Generally speaking, EI Australia was retained both by ACE and by ACE’s clients to conduct environmental assessments of soils and other material which were to be excavated, and of excavated material. From time to time, EI Australia / Mr Gerges were retained by ACE’s clients to review dockets and reconcile them with estimates of waste to be removed which had been made before ACE started work on a site.
Wolli Creek Premises
Development consent, excavation contract and site investigations
29. On 13 November 2014, development approval was granted by Rockdale City Council for the demolition of existing structures and construction of two 8‑storey residential flat buildings with rooftop terrace areas and basement parking, at 40‑50 Arncliffe Street, Wolli Creek, NSW (the Wolli Creek Premises). The development approval imposed on the developer an obligation that “all excavated materials at the site must be tracked from cradle‑to‑grave and sufficient documentation provided in the validation report to allow the site auditor to check the movement and management of these materials.” The development approval did not impose specific requirements as to the form or contents of the documentation to be provided.
30. Top Pacific Construction Pty Ltd (TPC), subsequently known as Top Pacific Constructions Aust. Pty Ltd (TPCA), was a construction company owned by Top Pacific Group Pty Ltd. The latter company was responsible for developing the Wolli Creek Premises.
31. TPC appointed Rodney Harwood of Arcadis Australia Pacific Pty Ltd (Arcadis) to prepare a site audit report for the Wolli Creek Premises.
32. On 9 January 2017, ACE entered into a contract with TPC to carry out excavation and remediation works at the Wolli Creek Premises. ACE was engaged to, amongst other things, excavate and dispose of material from the Wolli Creek Premises. The value of the contract was $3,600,000.
33. The excavation and remediation contract entered into between ACE and TPC for the Wolli Creek Premises included within the scope of works a requirement for ACE to undertake excavation and remediation work including “clearing of the site”, “all VENM, PASS and GSW material”, and “All asbestos whether above or below ground”. The scope of works also included as items “all dockets” and “All coordination with Geotech and auditor”. The contract did not impose specific requirements on ACE as to the form or contents of the documentation to be provided or retained by ACE.
Works at the Wolli Creek Premises
34. Between January and May 2017, ACE carried out and completed the works at the Wolli Creek Premises.
Zetland Premises
Development consent, excavation contract and site investigations
35. On 20 January 2016, development approval was granted by the City of Sydney for the demolition of existing structures and construction of a mixed use development comprising three buildings of a scale of 9 storeys, 11 storeys and 15 storeys, each above two levels of basement car parking at 105‑115 Portman Street, Zetland, NSW (the Zetland Premises). The development approval required all waste to be removed from the site to be classified prior to removal. The consent required the developer to produce a Waste Management Plan.
36. The construction company that was responsible for developing the Zetland Premises was Westbourne Constructions Pty Ltd (Westbourne). Westbourne produced a Waste Management Plan. The Waste Management Plan required “Trucking docket records ... to be kept on site to check that fill is going to the nominated landfills.” The Waste Management Plan was not included in Westbourne’s contract with ACE.
37. On 15 February 2017, ACE entered into a contract with Westbourne to carry out works at the Zetland Premises. The value of the contract was $19,000,000.
38. The “early works” contract entered into between ACE and Westbourne for the Zetland Premises included within the scope of works a requirement for ACE to undertake “bulk excavation” including the “removal of all excess spoil from the bulk excavation, detailed excavation, shoring wall, anchoring and piling works”, the “excavation in [sic] all materials as found including but not limited to sand, clay, rock, asbestos and all other materials identified in the contract documents”, and completion of “all works in strict accordance with the conditions of the development consent”. It also required ACE (as subcontractor) to retain all records relating to the project and to make them available to Westbourne upon request. The contract did not impose specific requirements on ACE to obtain or retain weighbridge (or other) dockets, nor as to the form or contents of the records to be provided or retained by ACE.
Works at the Zetland Premises
39. Between February and August 2017, ACE carried out and completed the works at the Zetland Premises.
Offences
Background to offence on 18 April 2017
40. On 25 January 2017, ACE submitted an invoice to TPC. The invoice submitted by ACE to TPC on 25 January 2017 was for, amongst other things, the excavation of 50% of ACM impacted fill. No dockets were provided with this invoice.
41. On 23 February 2017, ACE submitted another invoice to TPC. The invoice submitted by ACE to TPC on 23 February 2017 was for, amongst other things, the excavation of 100% of the ACM impacted fill. No dockets were provided with this invoice.
42. On 28 February 2017, TPC paid ACE $764,471.84 in respect of the invoice submitted on 25 January 2017.
43. On 29 March 2017, Dean Huang, a contract administrator employed by TPC, requested ACE to provide TPC with dockets for the excavation works in respect of which ACE had claimed payment. At that time, TPC indicated to ACE that further payments would only be released once further documents were provided by ACE.
44. Between 7 and 10 April 2017, TPC made further requests to ACE for TPC to be provided with dockets for the excavation works in respect of which ACE had claimed payment. At that time, TPC indicated to ACE that TPC would release payment to ACE once dockets were provided.
Offence committed on 18 April 2017
45. In response to the requests from TPC for all dockets to account for the waste disposed of from the Wolli Creek Premises, Mr Al Sarray carried out alterations on PDF files containing DADI weighbridge dockets, specifically by changing the “Order No.” entry on 114 genuine DADI weighbridge dockets from a suburb other than Wolli Creek to “wolli creek”.
46. On 18 April 2017, Mr Al Sarray sent an email to Mr Maroun (the 18 April email) attaching, amongst other things four (4) PDF documents:
(a) PDF documents named “ace demo 1.pdf” and “ace demo 2.pdf” containing scanned copies of 70 weighbridge dockets for the disposal of waste material at the SUEZ Facility (18 April SUEZ Dockets); and
(b) PDF documents named “ace demo 3.pdf and ace demo 4.pdf” containing PDF files of 148 weighbridge dockets for the purported disposal of waste material from the Wolli Creek Premises at the DADI Facility (18 April DADI Dockets).
47. The 18 April email and its attachments were Exhibit H in the proceedings.48. The 18 April email was sent to Mr Maroun by ACE and contained information about waste including the following:
(a) the 18 April SUEZ Dockets which purported to be weighbridge dockets issued by SUEZ purporting to contain information in relation to the purported disposal of 70 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the SUEZ Facility; and
(b) the 18 April DADI Dockets which purported to be weighbridge dockets issued by DADI purporting to contain information in relation to the purported disposal of 148 truckloads of waste material, including but not limited to soil contaminated with asbestos, from the Wolli Creek Premises to the DADI Facility.
49. The 18 April SUEZ Dockets were not issued by SUEZ in relation to the disposal of 70 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the Suez Facility. The 18 April SUEZ Dockets did not refer to "Wolli Creek". Instead, the customer reference was recorded as "H57" and, in one instance, “H57 TERRY HILLS”. The 18 April SUEZ Dockets were misleading because the corresponding waste disposed of by ACE at SUEZ had come from a job site at Terrey Hills, not the Wolli Creek Premises, and for a builder who was not TPC. The customer reference “H57” referred to the ACE job reference number for a site at Terrey Hills.50. With the exception of eight (8) of the 18 April DADI Dockets, the remaining one hundred and forty (140) 18 April DADI Dockets were not weighbridge dockets issued by DADI in relation to the disposal of 140 truckloads of waste material from the Wolli Creek Premises to the DADI Facility. Of the 18 April DADI Dockets:
(a) 114 weighbridge dockets were false, having been physically altered to say “wolli creek” next to “Order No.” where the genuine weighbridge dockets had a different location, indicating that the waste disposed of in fact came from a different job site to the Wolli Creek Premises.
(b) 26 weighbridge dockets were misleading, having been issued by DADI in relation to waste disposed of from ACE job sites at Auburn, Lidcombe, Olympic Park, Regents Park, Waterloo and Westmead (not Wolli Creek), and having been represented by ACE as being weighbridge dockets which related to waste disposed of from the Wolli Creek Premises. These 26 misleading weighbridge dockets were not physically altered.
51. The 18 April email was sent to Mr Maroun in the course of ACE dealing with the waste.52. At the time of sending the 18 April email, Mr Al Sarray knew, and so ACE knew, that the 18 April SUEZ Dockets were misleading in the way set out at paragraph 49; that 114 of the 18 April DADI Dockets were false and that 26 of the 18 April DADI Dockets were misleading in the way set out at paragraph 50.
53. Mr Al Sarray had intended that all the weighbridge dockets he sent would satisfy Mr Maroun’s requirement for ACE to supply Top Pacific with dockets for the waste which ACE had disposed of from the Wolli Creek site.
54. On 21 April 2017, TPC paid ACE $1,066,044.50.
Offence committed on 2 June 2017
55. On 2 June 2017, Mr Al Sarray sent an email to Glen Allen, a construction manager employed by Westbourne (the 2 June email), attaching, amongst other things:
(a) PDF documents named “suez.pdf” and “suez2.pdf” containing scanned copies of 70 weighbridge dockets for the disposal of waste at the SUEZ Facility (2 June SUEZ Dockets); and
(b) a PDF document named “dadi_tip summary_zetland.pdf” containing PDF files of 147 weighbridge dockets for the purported disposal of waste from the Zetland Premises at the DADI Facility (2 June DADI Dockets).
56. The 2 June email and its attachments were Exhibit AW in the proceedings.57. The 2 June email was sent to Mr Allen by ACE and contained information about waste including the following:
(a) the 2 June SUEZ Dockets which purported to be weighbridge dockets issued by SUEZ purporting to contain information in relation to the purported disposal of 70 truckloads of soil contaminated with asbestos from the Zetland Premises to the SUEZ Facility; and
(b) the 2 June DADI Dockets which purported to be weighbridge dockets issued by DADI purporting to contain information in relation to the purported disposal of 147 truckloads of soil contaminated with asbestos, from the Zetland Premises to the DADI Facility.
58. The 2 June SUEZ Dockets were not issued by SUEZ in relation to the disposal of 70 truckloads of soil contaminated with asbestos from the Zetland Premises to the Suez Facility. The 2 June SUEZ Dockets did not refer to "Zetland". Instead, the customer reference was recorded as "H57" and, in one instance, “H57 TERRY HILLS”. The 2 June SUEZ Dockets were misleading because the corresponding waste disposed of by ACE at SUEZ had come from a job site at Terrey Hills, not the Zetland Premises. The customer reference “H57” referred to the ACE job reference number for a site at Terrey Hills.59. The 2 June SUEZ Dockets were copies of the same weighbridge dockets which were attached as the 18 April SUEZ Dockets to the 18 April email.
60. With the exception of thirteen (13) of the 2 June DADI Dockets, the remaining one hundred and thirty‑four (134) 2 June DADI Dockets were not weighbridge dockets issued by DADI in relation to the disposal of 134 truckloads of soil contaminated with asbestos from the Zetland Premises to the DADI Facility. These 134 2 June DADI Dockets were false, having been physically altered to say “Zetland” next to “Order No.” where the genuine weighbridge dockets had a different location, indicating that the waste disposed of in fact came from a different job site to the Zetland Premises.
61. The email was sent to Mr Allen in the course of ACE dealing with the waste.
62. At the time the 2 June email was sent, Mr Al Sarray knew, and so ACE knew, that the 2 June SUEZ Dockets were misleading in the way set out at paragraph 58; and that 134 of the 2 June DADI Dockets were false in the way set out at paragraph 60.
63. Between 16 June 2017 and 7 December 2018, Westbourne paid ACE $13,755,588.30 (excluding GST). $10,092,500.00 of this amount was paid to ACE for bulk excavation and removal of spoil.
Offence committed on 12 June 2017
64. On 12 June 2017, an email was sent from ACE to Eric Gerges of EI Australia (the 12 June email), attaching amongst other things:
(a) a document listing details regarding 80 loads, or 2,415.97 tonnes, of waste material (the First Holt Run Sheet);
(b) a letter from Besmaw stating that 2,415.97 tonnes of VENM was received by Besmaw;
(c) two PDF documents called “Wolli Creek Asbestos Dockets” and “ace demo 3” containing 153 weighbridge dockets for the purported disposal of waste material at the DADI Facility (12 June DADI Dockets);
(d) an excel spreadsheet titled “Wolli Creek Summary”, which included 95 weighbridge docket reference numbers and associated information for the purported disposal of waste from the Wolli Creek Premises (DADI Spreadsheet);
(e) a PDF called “ace demo 1” containing scanned copies of 48 weighbridge dockets for the disposal of waste at the SUEZ Facility (12 June SUEZ Dockets); and
(f) an excel spreadsheet named “ACE 130217 to 300317”, which included 70 weighbridge docket reference numbers and associated information for the disposal of waste at the SUEZ Facility (SUEZ Spreadsheet).
65. The 12 June email and its attachments were part of Exhibits BO and BQ in the proceeding.66. The email sent to Mr Gerges on 12 June 2017 was an email sent by ACE which contained information about waste including the following:
(a) the 12 June DADI Dockets which purported to be weighbridge dockets issued by DADI purporting to contain information in relation to the purported disposal of 153 truckloads of waste material, including but not limited to soil contaminated with asbestos, from the Wolli Creek Premises to the DADI Facility;
(b) the DADI Spreadsheet which purported to contain information in relation to the purported disposal of ninety‑five (95) truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the DADI Facility;
(c) the 12 June SUEZ Dockets which purported to be weighbridge dockets issued by SUEZ and purporting to contain information in relation to the purported disposal of 48 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the SUEZ Facility;
(d) the SUEZ Spreadsheet which purported to contain information in relation to the purported disposal of seventy (70) truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the SUEZ Facility.
67. With the exception of twelve (12) of the 12 June DADI Dockets, the remaining one hundred and forty one (141) were not weighbridge dockets issued by DADI in relation to the disposal of 141 truckloads of waste material from the Wolli Creek Premises to the DADI Facility. Of the 12 June DADI Dockets,
(a) 134 were false, having been physically altered to say “wolli creek” next to “Order No.” where the genuine weighbridge dockets had a different location, indicating that the waste disposed of in fact came from a different job site to the Wolli Creek Premises.
(b) 7 were misleading, having been issued by DADI in relation to waste disposed of from ACE job sites other than the Wolli Creek Premises (being Lidcombe, Regents Park, Waterloo and Westmead, as identified by the location next to the words “Order No.”). and having been represented by ACE as being weighbridge dockets which related to waste disposed of from the Wolli Creek Premises. These 7 misleading weighbridge dockets were not physically altered.
68. The DADI Spreadsheet contained false information, because 89 of the 95 truckloads of soil contaminated with asbestos referred to in the spreadsheet related to waste disposed of by ACE at the DADI Facility from job sites other than the Wolli Creek Premises.69. The 12 June SUEZ Dockets were not issued by SUEZ in relation to the disposal of 48 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the Suez Facility. The 12 June SUEZ Dockets did not refer to the words “Wolli Creek” but instead referred to “H57” and, in one instance, “H57 TERRY HILLS” as the customer reference. The 12 June SUEZ Dockets were misleading because the corresponding waste disposed of by ACE at SUEZ had come from a job site at Terrey Hills, not the Wolli Creek Premises. The customer reference “H57” referred to the ACE job reference number for a site at Terrey Hills.
70. The SUEZ Spreadsheet was misleading because the 70 docket reference numbers and associated information contained in it related to waste disposed of by ACE from Terrey Hills, not the Wolli Creek Premises.
71. The 12 June SUEZ Dockets were the same as copies of 48 of the weighbridge dockets attached as part of the 18 April SUEZ Dockets to the 18 April email and as part of the 2 June SUEZ Dockets to the 2 June email.
72. The majority of those 12 June DADI Dockets were copies of the same weighbridge dockets which were attached as the 18 April DADI Dockets to the 18 April email.
73. The 12 June email was sent to Mr Gerges in the course of ACE dealing with the waste.
74. On 20 June 2017, Mr Gerges emailed the 12 June DADI Dockets, DADI Spreadsheet, 12 June SUEZ Dockets and SUEZ Spreadsheet to Mr Maroun.
75. On 21 June 2017, Mr Maroun emailed the 12 June DADI Dockets, DADI Spreadsheet, 12 June SUEZ Dockets and SUEZ Spreadsheet to Craig Wellings of Arcadis and copied Mr Harwood into this email.
Background to the 2 December 2017 offence
76. TPC asked ACE to provide TPC with dockets for the excavation works which ACE had undertaken at the Wolli Creek Premises.
77. Before the commission of the 2 December 2017 offence, Mr Al Sarray had access to the First Holt Run Sheet, which was genuine and had previously been provided by Besmaw to ACE under cover of an invoice.
Offence committed on 2 December 2017
78. In response to the pressure put on ACE by TPC to provide documentation, Mr Al Sarray created an electronic document by altering the First Holt Run Sheet referred to above at paragraph 64(a) and inserting information relating to disposal of waste by ACE from a number of job sites other than Wolli Creek, including Burwood, Gordon, Sydney Olympic Park and Macquarie Park. Mr Al Sarray named the PDF file he created as “Wolli Creek Summary” (Second Holt Run Sheet).
79. Mr Al Sarray gave the Second Holt Run Sheet to Mr Sidawi to send to “whoever was asking for it”.
80. On 2 December 2017, Mr Sidawi (acting on the instruction from Mr Al Sarray to do so and without knowledge that the Second Holt Run Sheet had been created by Mr Al Sarray) emailed Mr Gerges attaching the Second Holt Run Sheet. By this email, Mr Al Sarray sent the information “through Ameer (Sidawi)”.
81. The 2 December email and its attachments were Exhibit AN in the proceeding.
82. The Second Holt Run Sheet purported to be created by Besmaw and purported to contain information in relation to the purported disposal six hundred and twenty‑two (622) truckloads of waste material from the Wolli Creek Premises that had been disposed of by ACE at the Holt Landfill.
83. The Second Holt Run Sheet was false because it was not created by Besmaw although it purported to be, and the 622 truckloads referred to in the document were not related to the disposal of waste material from the Wolli Creek Premises to the Holt Landfill; instead they related to disposal of waste from a number of ACE job sites other than Wolli Creek, including Burwood, Gordon, Sydney Olympic Park and Macquarie Park.
84. The only loads of waste which ACE had taken from the Wolli Creek Premises to the Holt Landfill for disposal between 1 March 2017 to 30 June 2017 were the 80 loads on the dates 19 to 22 April 2017 inclusive listed in the First Holt Run Sheet which was sent to Mr Gerges of EI Australia in the 12 June email.
85. The 2 December email was sent to Mr Gerges in the course of ACE dealing with the waste.
86. At the time of the 2 December email being sent, Mr Al Sarray knew, and so ACE knew, that the Second Holt Run Sheet was false in the way set out at paragraphs 84‑85 above 83. Mr Sidawi was not aware of this at the time he sent his email of 2 December 2017.
87. On 4 December 2017, Mr Gerges sent an email to Mr Harwood, and the other member of his audit firm who had been present at the 10 November 2017 meeting, a copy of the Second Holt Run Sheet.
Circumstances of the Offending
88. Mr Al Sarray was charged with and convicted of two counts of contravening s 144AA(2) of the POEO Act in respect of the same underlying conduct that is the subject of these sentencing proceedings (for the sending of the 18 April 2017 and 2 June 2017 emails).
89. Mr Al Sarray sent the documents attached to those emails, and caused the sending of the document attached to the emails of 2 December 2017:
(a) to satisfy TPC and Westbourne and/or their auditors who were requesting weighbridge dockets recording the removal of material from the Zetland and Westbourne Premises in line with the volumes that had been assessed as being present at the Zetland and Westbourne Premises;
(b) to provide weighbridge dockets to ACE’s clients as evidence of ACE disposing of the quantities of waste from the Zetland Premises and the Wolli Creek Premises that matched the quantity of waste identified during waste classification activities as requiring removal from the two sites; and
(c) to placate clients it considered to be “high risk” of avoiding making progress claim payments to ACE as and when they fell due.
Mr Al Sarray's Personal Circumstances90. Mr Al Sarray suffers from Post Traumatic Stress Disorder arising out of his experiences in the Iraq War.
91. Mr Al Sarray came to Australia as a refugee seeking protection.
Consequences of the Offending
92. There is no evidence that the offences caused any actual harm to the environment.
ACE’s Early Offer to Plead Guilty to the Offences
93. On 9 June 2021, the Defendant wrote to the EPA in the following terms:
In the interests of both parties avoiding a lengthy, time‑consuming and expensive trial process, we are instructed to make the following offer on a without prejudice basis:
“1. ACE Demolition & Excavation Pty Ltd (ACN 107 709 151) (ACE Demolition) will plead guilty to one of the most serious charges against it (the principal offence), with the other three charges to be noted on a list of additional charges to the principal offence pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the further offences). For this purpose:
(a) the Environment Protection Authority (EPA) will identify which charge of the charges the subject of proceedings 2020/357465, 2020/357466 and 2020/357468 will be the principal offence; and
(b) ACE Demolition will admit guilt to the further offences and indicate to the court that it wants the court to take the further offences into account in dealing with ACE Demolition for the principal offence.
2. As a result of the pleas outlined at paragraph 1, the EPA will withdraw the charges against Sami Allam personally (being the charges the subject of proceedings 2020/357475, 2020/357476, 2020/357477 and 2021/78283); and
3. ACE Demolition will not resist an order that it pay some or all of the EPA’s investigation costs (subject to the amount of those costs which is to be advised by the EPA).
Please let us know as soon as possible whether this offer is acceptable to the EPA, or whether the EPA has some other proposal that it would regard as an acceptable plea arrangement.”
94. That offer was rejected by the EPA on 22 June 2021.
Relevant Statutory Provisions
Introduction
The POEO Act provisions
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.
144AA False or misleading information about waste
(1) A person who supplies information about waste to another person in the course of dealing with the waste, being information that is false or misleading in a material respect, is guilty of an offence.
It is a defence in any proceedings against a person for an offence under this subsection if the person establishes that the person took all reasonable steps to ensure that the information was not false or misleading in a material respect.
Maximum penalty—
(a) for a corporation—$250,000, or
(b) for an individual—$120,000.
(2) A person who supplies information about waste to another person in the course of dealing with the waste, being information that the person knows is false or misleading in a material respect, is guilty of an offence.
Maximum penalty—
(a) for a corporation—$500,000, or
(b) for an individual—$240,000 or imprisonment for 18 months, or both.
(2A) ....
(2B) ....
(3) In this section, information is taken to be supplied to a person in the course of dealing with waste if it is supplied—
(a) in the course of an activity relating to the sale or disposal of waste, or
(b) in the course of an activity relating to the storage, transport, handling, deposit, transfer, processing, recycling, recovery, re‑use or use of the waste.
(4) In this section, information about waste means information about any of the following—
(a) the type, classification, characteristics, composition or quantity of the waste,
(b) the actual or proposed storage, transport, handling, deposit, transfer, disposal, processing, recycling, recovery, re‑use or use of the waste,
(c) the hazards or potential harm to the environment or human health associated with the waste or an activity referred to in paragraph (b).
(5) In this section, information includes a record containing information.
(5A) In this section, supply information includes cause or permit information to be supplied.
(6) Proceedings for an offence against this section may be instituted only by the EPA.
169C Evidence as to state of mind of corporation
(1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.
(2) In this section, the state of mind of a person includes—
(a) the knowledge, intention, opinion, belief or purpose of the person, and
(b) the person’s reasons for the intention, opinion, belief or purpose.
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.
250 Additional orders
(1) Orders The court may do any one or more of the following—
(a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person,
253A Enforcement of undertakingsThe EPA may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the EPA has a function under this Act.
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.
The Crimes (Sentencing Procedure) Act 1999
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.
21A Aggravating, mitigating and other factors in sentencing
(1) ...
(2) ...
(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,
(b) ...,
(c) ...,
(d) ...,
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re‑offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
(j) ...,
(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),
(l) ...
(m) assistance by the offender to law enforcement authorities (as provided by section 23),
(n) ...
22 Guilty plea to be taken into account for offences not dealt with on indictment
(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:
(a) the fact that the offender has pleaded guilty, and
(b) when the offender pleaded guilty or indicated an intention to plead guilty, and
(c) the circumstances in which the offender indicated an intention to plead guilty,
and may accordingly impose a lesser penalty than it would otherwise have imposed.
(1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
(2) ...
(3) ...
(4) ...
(5) ...
The Criminal Procedure Act 1986
The Fines Act 1996
The maximum penalties for the offences
The hearings
Representation
The written submissions
The evidence
The documentary evidence
Oral evidence in the first phase by employees of the Company
Mr Al Sarray also objected to giving evidence on the basis that his answers might, potentially, be incriminating. Mr Al Sarray was directed to answer questions but he was also given a protective certificate pursuant to ss 128(7) and 128A(8) of the Evidence Act with respect to his oral evidence.
It is to be noted that Mr Al Sarray had been convicted on 31 March 2022 by Duggan J (Environment Protection Authority v Al‑Sarray [2022] NSWLEC 31) of two offences pursuant to s 144AA(2) of the POEO Act. As a result, Mr Al Sarray was fined $135,000 for each offence and ordered to publish a notice in Inside Waste magazine, a notice outlining the nature of his convictions and the penalties imposed on him. The conduct giving rise to these convictions (offences to which Mr Al Sarray had pleaded guilty) was that providing the foundation for the charges against the Company arising from provision of false and misleading information on 18 April 2017 and 2 June 2017.
The carried forward first phase evidence
The additional evidence for sentencing
Background1 I am a·Principal of Senversa Pty Ltd (Senversa). Senversa provides contaminated land and environmental auditing services and environmental and geotechnical engineering services. I have been employed by Senversa since 2017.
2 I have over 20 years' experience in contaminated land assessment, remediation and management. I am accredited by the NSW Environment Protection Authority (EPA) as a site auditor under the Contaminated Land Management Act 1997 (the CLM); NSW EPA Accreditation Number 0803. I hold a Bachelor of Applied Science, Geography, from the University of New South Wales.
(Heading omitted)
...
...
Engagement of Senversa as Site Auditor for the Zetland Premises
5 On 20 March 2017, I was formally engaged on behalf of Westbourne Constructions Pty Ltd (Westbourne), as the auditor of its contaminated site assessment for a 0.8489 ha parcel of land located at the Zetland Premises.
6 ...
7 As the auditor I was engaged to prepare a Site Audit Report (SAR) for the Zetland Premises to form the basis and rationale for conclusions drawn in a Site Audit Statement (SAS). The audit was not a requirement of the development consent and was non‑statutory.
Documents Provided
8 ...
9 On 25 July 2018, Emmanuel Woelders of El Australia emailed me a link to the draft ‘Waste Classification and Management Summary Letter, Areas 12A & 128, 105‑115 Portman Street, Zetland NSW’, dated 24 July 2018 by El. This report was provided to me as part of the audit process. A copy of the email and document contained within the link is saved to a USB behind Tab 1 of MP‑01 and titled ‘Tab 1 ‑ Waste Classification and Waste Summary Report’.
Site Audit Report and Site Audit Statement
10 Following completion of the audit process, I completed the SAR titled 'Site Audit Report ‑ Redevelopment Plots 12A & 128, Green Square, Zetland' and dated 19 July 2019, for the Zetland Premises. A copy of the SAR dated 19 July 2019 is behind Tab 2 of MP‑01.
Harm
Harm to regulatory schemes established by Parliament
Introduction
Undermining of the waste regulatory framework
Our submissions were, frankly, more geared towards what we apprehended to be submissions put by the prosecution about the possibility of harm to the environment, and I’ll come to that in due course, but I just want to make it very clear at the outset we don’t suggest that, by sending these four emails, which, admittedly, contained information about waste that was misleading or false in a material respect, and, in three cases, doing it knowingly, through the knowledge of Mr Al Sarray, we don’t suggest that had no consequence for the regulatory environment.We don’t suggest that our clients Top Pacific and Westbourne weren’t misled. We don’t suggest it didn’t go to the site auditors, who used it in some way. Our submissions in relation to consequence are more specific and pointed, and I’ll come to them in a moment, but I just want to make that very clear at the outset, so that your Honour’s not misled into thinking we make a submission that we don’t.
Undermining of the development control framework
PROSECUTOR: Did you understand that developers had council approval for the developments they carried out?A. Yes, they did. Yep.
Q. And did you have an understanding of whether those approvals had conditions in them?
A. Not to the extent that I know the exact conditions, but I understand there is a development application or there’s a consent and there are conditions in it.
Q. Did you understand whether there were conditions, generally speaking, in developer clients council approvals, in relation to the disposal of waste?
A. Not in this particular case, but yeah, sometimes I see them in the DA’s. I can’t remember if it was mentioned for this site, and the consent or the development application conditions.
Q. Have you heard of an occupation certificate?
A. Yes.
Q. What did you understand in 2017, an occupation certificate was?
A. This ‑ the question’s is a little bit difficult. A occupation certificate, it means people can occupy the building. That's my understanding to it.
Q. And what was your understanding as to who issued an occupation certificate?
A. The occupation certificate issued to the builder; I think. Yep.
Q. Yes, by whom?
A. By the council maybe.
Q. Did you have an understanding as to the relationship, if any, between a failure of a developer to satisfy a development consent condition and whether they got an occupancy certificate?
A. Sorry, can you repeat the question, please?
Q. Yes. Did you understand whether there was a relationship between a developer satisfying the conditions of its development consent on the one hand, and whether it got an occupation certificate from the council?
A. It’s ‑ I mean, the two parts of the question meant the same thing to me. Can you explain more, please? My apologies.
Q. I don't want to suggest the answer to you, what I wanted to ask you is, what do you mean by they mean the same thing? What's your understanding? The fact that they mean the same thing.
A. My understanding, the occupation certificate is something the council issues to a builder saying, okay, you met all the requirements we mentioned, and it's okay for humans to settle in the building.
Q. And you had that understanding in 2017?
A. Yes, I did.
Sentencing factors to be considered as mandated by the POEO Act
Introduction
Sentencing Procedure Act factors
Introduction
Aggravating factors
The Company’s subjective factors
Introduction
Harm ‑ s 21A(3)(a)
Prior offences ‑ s 21A(3)(e)
93 So far as the Prosecutor is aware, the Defendant has not previously committed an offence against the POEO Act or any other environmental protection statute. The Defendant’s lack of prior offending is a matter which has some weight when considering the first offence, but when the Defendant comes to be sentenced for Charges 2, 3 and 4, it no longer has the benefit of being a first‑time offender. Where, as here, an offender has committed multiple dishonesty offences over a period of 8 months, prior good character is afforded less weight.
An offender's lack of previous criminal record will not be accorded the significance it might have had, where he or she has committed a large number of offences over a long period of time.
67. Contrary to PS [93], that absence of a prior criminal history should not be ignored merely because the defendant has been charged with four offences. The fact that, prior to these proceedings, ACE had not been charged with any criminal conduct, and that all four offences have proceeded together, means that the “formal condemnation of the law” and “the warning as to the future which the conviction experience implies” is being given for the first time concurrently with all four offences. That applies equally to all four offences, not just to charge 1 as the prosecutor suggests. ...68. Pursuant to s 21A(3)(e) of the CSPA the absence of any previous criminal history and convictions is required to be taken into account as a mitigating factor in relation to all four charges, not just charge 1.
Is the Company a good corporate citizen? ‑ s 21A(3)(f)
The likelihood of reoffending ‑ s 21A(3)(g)
Contrition and remorse ‑ s 21A(3)(i)
Introduction
(a) first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence;(b) second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities;
(c) third, taking action to address the cause of the offence; and
(d) fourth, the personal appearance of corporate executives in court to give personal evidence of the Defendant’s regret and a plan of action to avoid repetition of the offence.
The apology made on behalf of the Company
Background5 I have worked at ACE since November 2002.
6 My formal role in ACE is office manager. That role encompasses a wide range of responsibilities, including:
a. personal assistant to Mr Sami Allam, the sole director of ACE;
b. office manager;
c. fleet manager;
d. safety manager; and
e. compliance manager.
7 As part of my role, I report directly to Mr Sami Allam, and I speak to him on a regular basis.8 I performed the tasks referred to in paragraph 6 during 2017.
Apology9 I am authorised on behalf of ACE and its sole director and shareholder to offer an unreserved and unconditional apology to the Court and to the EPA for the conduct which gave rise to the Offences.
10 ACE has been actively engaged in the disposal of waste in NSW since 2002. Since that time, it has completed hundreds of jobs for developers. The present offences are the only instances in which ACE has ever been charged with any offence against any law. The Offences and these proceedings were a low point in ACE's history.
The defendant submits, DWS 20 to 21, that s 169C of the Protection of the Environment Operations Act creates a presumption that the evidence of Ms Anthony is evidence of the company's state of mind. The defendant's submissions as to the effect of s 169C overlook that the section has nothing to say about the weight of evidence given by an officer, employee or authorised agent. The submissions the defendant has made in this regard sidestep the policy of the Court, which we outlined at PWS 21, to require a corporate defendant who wishes to get the benefit of mitigating factors such as explanations as to its guilt and remorse and contrition to provide that by the best evidence, namely from, in this case, the company's director and CEO.In addition, Ms Anthony's evidence by way of an apology, her affidavit at para 9, is expressed to be hearsay, to convey what she said she was told by Mr Allam. Plainly, your Honour, this has markedly less probative value than evidence from the person who, as a matter of law, is the directing mind and will of the company, which evidence would be able to be tested.
POTTS: .... Your Honour will see she tells your Honour a number of things beginning on p 2 of the affidavit. The first is that she’s an officer of ACE, and that she’s authorised to make the affidavit on behalf of ACE. And she tells your Honour in terms in 4, the purpose of the affidavit is to make a formal apology on behalf of ACE and to explain the step which ACE has taken since discovering the commission of the offences.Your Honour’s reminded in para 5 and 6 that her formal role, and your Honour sees from para 8, that this was the same her formal role in 2017, is as they're described. Our learned friends, I think, sought to make something of some passages in her cross‑examination, and we’d simply observe as a preface to your Honour understanding that cross‑examination that at transcript p 110 lines 18 ‑ 20, our learned friend prefaced his cross‑examination by making it clear to Ms Anthony that he was asking her about the state of affairs in 2017.
What was going on in 2017. So, your Honour would note that caution in looking at the passages in her cross‑examination, that our learned friend invites your Honour to have regard to. Now, at p 3 in para 9, she tells your Honour that she’s authorised on behalf of ACE and its sole director to offer an unreserved and unconditional apology to the Court and to our friends, the regulator, for the conduct which gave rise to the offences. She tells your Honour in para 10 that ACE has been engaged in the disposal of waste since 2002. It’s completed hundreds of jobs. And then she makes a statement that reflects in the next sentence, the agreed facts that these offences are the only instance where ACE has been charged. And she tells your Honour these offences in these proceedings were a low point.
And with respect, even though our learned friends ask your Honour to discount much of this, because it doesn’t come directly from Mr Sami Allam himself, the evidence which frankly is uncontradicted is that Ms Anthony has a role in this company. She’s an officer of this company. It’s not unusual for companies in any context to give evidence by officer rather than director. It may be a matter of some weight, but we submit it’s not a matter that’s going to require your Honour to discount to the point where your Honour can't give any weight for the things that Ms Anthony tells your Honour.
Actions taken by ACE11 I know from my role as office manager that Mr Al Sarray's responsibilities were changed following discovery of the Offences. The changes included that he was not to have any responsibility concerning waste dockets, documents or invoicing. That responsibility was given to others. ACE also adopted the Wastelocate system (see paragraphs 16 and 17 below).
12 On 8 October 2018, ACE provided a draft enforceable undertaking to the EPA A copy of that document is annexed and marked "A".
13 On 16 January 2019, ACE provided a finalised enforceable undertaking to the EPA. A copy of that document is annexed and marked "B". I was personally involved in the preparation of this document.
14 The finalised enforceable undertaking contains a list of actions which ACE took following the discovery of the offences. This includes that ACE:
a. took disciplinary action against Mr Al Sarray, including removing him from having responsibility in respect of waste dockets;
b. alerted senior management and staff to the conduct giving rise to the alleged breach and placed them on notice of the need for greater oversight of staff involved in waste reporting and recording;
c. re‑assigned two full time employees whose roles are now predominantly focused around Tipping Facility Management, Subcontractor Management, and Source Documentation;
d. provided training to site‑based personnel, primarily supervisors, truck drivers and traffic controllers, whose key function is the submission of source documentation;
e. addressed staff individually as to their duty of care and the company's expectation of them moving forward;
f. revised internal protocols regarding docket management, sourcing, handling, document authenticity, sorting, recording, and storage;
g. improved procedures and training regarding the use of Wastelocate and allocating designated resources to managing consignments via this system; and
h. put in place processes to complete daily variance reporting on actual tipping vs Wastelocate consignment summary, as a means of internally auditing compliance.
15 I know this because I was directly involved in the implementation of those actions by ACE.16 ACE was also an early adopter of the EPA's Wastelocate program and assisted the EPA remove technical issues (bugs) in the software. The following appears on the Wastelocate website (https://wastelocate.epa.nsw.gov.aul):
If you transport asbestos waste, asbestos soils or waste tyres, you may be required to use EPA's WasteLocate. WasteLocate tracks each load of asbestos or tyre waste from pick up to disposal using the GPS in your smart device. It generates a unique consignment number just like a parcel in the post. WasteLocate was developed to help prevent illegal dumping of asbestos and tyres...
17 ACE uses Wastelocate on all current jobs that involve the movement of asbestos.
The enforceable undertaking offers
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Brief outline of alleged breach (i.e. nature of incident; cause of
incident; pollutants involved; potential or actual impact on environment,
community and/or human health; nature and extent of your responsibility for the
alleged breach) [Maximum ‑ ¼ page]
|
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Ace Demolition has recently become aware that one of its employees has
provided non‑genuine weighbridge dockets to two of its
clients
(Top Pacific and Westborne) in response to requests/pressure received from
those clients to provide weighbridge dockets recording
volumes of waste disposal
so as to satisfy their auditors.
Ace Demolition understands that this employee has created duplicates of
genuine weighbridge dockets that were issued by Suez and sent
these duplicates
to these clients. Ace Demolition further understands that this employee has
altered genuine weighbridge dockets
that were issued by Dial a Dump to change
the recorded site address, the docket date, and the docket number, and has sent
these altered
dockets to these clients.
Ace Demolition is not aware of there being any unlawful transportation or
disposal of waste in connection with these weighbridge dockets
{or otherwise)
nor of there being any changes to the site records or transportation records.
Ace Demolition is not aware of there
being any other breaches of the
environmental legislation arising from or in connection with the actions of this
employee. Ace Demolition
has, since becoming aware of this employee's actions,
taken steps to prevent any further breaches, to improve internal policies,
training, and guidelines, and to reprimand the employee involved.
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3.1.1 Activities already undertaken.In response to the alleged breach, ACE demolition has already:
● identify the employee involved in the conduct leading to the alleged breach and taken disciplinary action in respect of them, including removal from key sections;
● alerted senior management and staff to the conduct giving rise to be alleged breach and place them on notice of the need for greater oversight of staff involved in waste reporting and recording;
● reassigned a further two full‑time employees whose roles in our predominantly focused around tipping facility management, subcontractor management, and source documentation;
● provided training to site‑based personnel, primarily supervisors, truck drivers and traffic controllers, whose key function is the submission of source documentation;
● addressed all staff individually as to their duty of care and the company's expectation of them moving forward;
● revised internal protocols regarding document management, sourcing, handling, document authenticity, sorting, recording, and storage;
● improved procedures and training, regarding the use of waste locate and allocating designated resources to managing consignments fired this system; and put in place processes to complete daily variance reporting on actual tipping versus waste locate consignments summary, as a means of internally auditing compliance.
PROSECUTOR: The further matter though, your Honour, I wish to draw in on this particular point is that it is difficult to regard the enforceable undertaking applications as evidence of remorse and contrition when the defendant, after those offers had been made, of entering into such undertakings, entered and maintained pleas of not guilty. Which is quite inconsistent with the applications for enforceable undertakings being evidence of remorse or contrition. Or else it means their remorse or contrition didn’t last very long.HIS HONOUR: Would that not at least potentially, my recollection is I have no evidence on this point at all, depend on what your client’s reaction had been to either the first or the second offers of enforceable undertakings.
PROSECUTOR: No, your Honour.
HIS HONOUR: Given that neither of them have been accepted.
PROSECUTOR: Either a person is remorseful at their state of mind for their earlier conduct or they’re not. And for it to turn upon what the response of a regulator is to an offer to enter into an enforceable undertaking suggests that it wasn’t real remorse in the first place.
HIS HONOUR: Well, isn’t there a difference ‑ and I don’t know and I suspect it’s entirely inappropriate for me to contemplate speculating but there’d be a difference between a response from the prosecutor that said, “We don’t care what you’re saying now. We’re going to go you. We’re going to prosecute you. It doesn’t matter what you now say.” Whereas a response that says, “Well, we’re interested in an enforceable undertaking but this one’s not adequate. We’d like to discuss with you.” They’re different ends of a spectrum, aren’t they? And I have no evidence about either. Do I?
PROSECUTOR: No, your Honour, I accept that, as I—
HIS HONOUR: Sorry, all I have is a pair of offers—
PROSECUTOR: Yes.
HIS HONOUR: ‑‑in different terms.
PROSECUTOR: Yes, your Honour does. But they are far more likely to fall into the category of an offender reading the Act and being well advised and saying, “Yes, let’s go down this path if it will avoid the prospect of being prosecuted,” than truly being sorry for what they have done and accordingly entering pleas of guilty when charged with the offences concerned.
... when, within Ace, this problem became known to others beyond Mr Al Sarray, Ace went to the EPA with the enforceable undertakings your Honour has before them and made those disclosures. And made them in the terms that your Honour can now see, which, in each of them, gave a fulsome disclosure of what had been discovered as to having transpired within Ace as a corporation.Now, we rely upon not simply as assistance to the authorities, although we do rely upon it on that, and I accept what your Honour adverted to in argument with my learned friend that, other than the guilty plea, your Honour's not necessarily required to do an exercise of specific discounts for the other factors. But we do rely on it squarely, not only for assistance to authorities, but also as evidence of recognition of our offending and our contrition, and that our apology is a genuine one.
Now, our learned friends say, well, you know, you didn't immediately plead guilty. That's true. But the offences which we've now pleaded guilty to, at least in three parts, are offences of knowingly doing these things where there was an issue about whether or not what Mr Al Sarray had done ‑ which is now gone, but was an issue about whether or not what he had done ‑ should be taken to be the acts of the corporation Ace. And we say the position we adopted immediately before trial where we admitted, following your Honour's rulings under the s 192 applications, for the corporate offences, that the corporation had committed subs 1 offences under 144AA.
We indicated a preparedness to plead guilty to those, and then ultimately, after the evidence, as your Honour knows, we've pleaded guilty to the subs 2 offences. None of that history, we say, would cause your Honour to doubt the sincerity of the apology offered by Ms Anthony, or the fact that there have been steps taken by Ace to deal with its offending conduct.
As to the submission that we have not engaged s 21A(3)(i), which is in relation to remorse, because we haven't provided evidence we've accepted responsibility, and we haven't acknowledged injury, we respectfully submit there is enough before your Honour to show that we have engaged that, and we are entitled to the benefit of it.
The Company's costs’ offer
Attendances in Court
Conclusion on contrition and remorse
The Company’s guilty pleas ‑ s 21A(3)(k)
The extent of assistance given to the Prosecutor ‑ s 21A(3)(m)
The decision of Duggan J in Mr Al Sarray’s prosecutions
Introduction
Mr Al Sarray’s relevant subjective circumstances
37 There is no evidence that Mr Al‑Sarray derived any financial advantage, or other advantage, as a consequence of undertaking the offending conduct.38 Apart from Dr Ahmed’s opinion that “It also [sic] plausible that [Mr Al‑Sarray], who is very much a survivor through many life stressors from the ravages of war to suffering early deaths of loved ones, felt a heightened sense of obligation and loyalty to his employer and co‑workers, something that may have contributed to his actions, actions from which he had little to gain personally” there is no evidence to suggest any reason as to why the offence was committed by Mr Al‑Sarray.
The characterisation of Mr Al Sarray’s offending conduct
Seriousness of offending conduct40 The Prosecutor places particular significance in this case on the quantum of false and misleading WBDDs supplied by the Defendant being:
(1) With respect to Charge 1 ‑ a total of 210 false or misleading WBDDs relating to 5,552.94 tonnes of asbestos soils and other waste purportedly originating from the Wolli Creek Site; and
(2) With respect to Charge 2 ‑ a total of 204 false or misleading WBDDs relating to 5,7951.19 tonnes of asbestos soils purportedly originating from the Zetland Site.
41 It was further noted that the offending conduct spanned a period of three months between February and May 2017.42 Mr Al‑Sarray accepted that his conduct involved an element of planning and that it took place over the period between February and May 2017.
43 I accept that the quantum of false WBDDs and the period over which the WBDDs were supplied adds to the seriousness of the offending conduct.
Conclusions on objective seriousness
44 Having regard to:
(1) The large quantum of WBDDs that comprise each charge, that the offending involved an element of planning and was undertaken over a period of months;
(2) The regulatory harm that is occasioned from the uncertainty where waste is unable to be tracked accurately and reliably;
(3) The foreseeability of the harm to the regulatory system where a person knowingly supplies information about waste to another person in the course of dealing with the waste, being information that is false or misleading in a material respect; and
(4) The fact that the offending could have resulted in a risk of harm to the environment and community safety by reason of the possible presence of asbestos in the waste which would have been foreseeable;
I find that the objective seriousness of the offence is at the high end of the mid‑range of objective seriousness. I do not accept the characterisation of the Prosecutor that the objective seriousness of the offence reaches the high end of objective seriousness primarily as I do not accept that Mr Al‑Sarray committed the offence for a financial benefit, nor do I accept that I am able to be satisfied to the necessary standard that there was in fact asbestos present in the waste material.
45 I do not make a distinction as to objective seriousness between the two charges. Whilst the number of WBDDs varies slightly in each charge the number did not vary to a large degree. I also note that in the second charge that whilst the number of WBDDs was less, the tonnage of waste was higher. Accordingly, I do not consider that there is a necessary distinction to be made considering the circumstances of this case as to the objective seriousness of each charge.
The penalties imposed on Mr Al Sarray
Totality principle53 I have considered whether the principle of totality is a relevant sentencing principle in the present case where both offences with which the Defendant has been charged and which he has pleaded guilty arise from similar facts and circumstances.
54 The principle has been concisely described by the majority of the High Court in Pearce v R [1998] HCA 57; (1998) 194 CLR 610 at 623 as:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
55 Taking into account the nature of the offending it is apparent that there is no real commonality of elements that would give rise to the commission of offences where the Defendant would be punished twice for an overlapping of offences. In this case, the two charges are distinct, albeit the conduct arises under the same section of the POEO Act. I do not consider that the principle of totality requires me to adjust any penalty between the two charges.
Characterisation of the Company’s offending conduct
Introduction
The Prosecutor's submissions
16 The objective gravity of the offences fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crimes considered in light of its objective circumstances. It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offences.17 As noted above, the objective seriousness is to be determined by reference to the nature of the offences and not by reference to matters that are personal to a particular offender.
18 In determining the objective seriousness or gravity of the offences the relevant objective circumstances include the factors referred to in the legislation set out above.
The second legal matter to which I turn is the determination of objective seriousness. The defendant at DWS 63 criticises the prosecutor's submissions, PWS 16 to 18, on objective seriousness. With respect to our learned friends, in making that criticism, we do submit that the defendant makes a serious error by confusing the determination of the objective seriousness of an offence with the calculation of the sentence appropriate to the case. It is, respectfully, stating the obvious for the defendant to say that in determining the appropriate sentence the Court should take into account matters subjective to the offender. The authorities cited by the defendant at footnote 62 are about how subjective factors are to be considered when calculating the sentence to be imposed.All that can be granted and accepted, but those decisions are not about the assessment of objective seriousness and the work that that assessment has to do in the calculation of the sentence to be imposed. They are not about the Court's duty to assess and determine the objective seriousness of the defendant’s offences, or how the Court should go about the determination of objective seriousness. We submit, your Honour, that without statutory authority, and there isn't any, it would be error for the Court to take subjective factors into account when considering objective seriousness or what the defendant calls relative seriousness.
With respect, and notwithstanding the defendant's criticism, on the subject of objective seriousness, we submit that the Court should adopt the prosecutor's submissions at PWS 16 to 18 inclusive and that the defendant’s written submissions at DWS 57 should not be accepted. We submit that the quantity of false or misleading information supplied and/or the corresponding quantum of waste in relation to which the defendant was dishonest is a relevant consideration in assessing objective seriousness.
The number of waste dockets, the number of loads itemised in the spreadsheets, the number of loads itemised in the second Holt run sheet, is plainly relevant to the objective seriousness, we say, of the defendant's offences. That is, the provision of hundreds of copies of weighbridge dockets containing false or misleading information purporting to be about a substance that is waste under the act, is objectively more serious that the supply of one weighbridge docket, to take an extreme example, containing false or misleading information purporting to be about that waste. So too the provision of a spreadsheet with a multitude of rows of false or misleading data, each purporting to record an occasion of waste disposal, is more serious than a document purporting to record one occasion of waste disposal.
64 The quantities of waste which these documents concerned were significant. By way of examples as to the quantum of waste that this false or misleading information pertained to:
(a) the 70 misleading SUEZ dockets which were part of the information supplied in Charge 1 in respect of Wolli Creek and part of the information supplied in Charge 2 in respect of Zetland relate to over 2000 tonnes of waste material ‑ contaminated asbestos soil. Forty eight (48) of those misleading SUEZ dockets were part of the information supplied in Charge 3 in relation to Wolli Creek;
(b) the 18 April DADI Dockets (relevantly 140 in total) which were part of the information supplied in Charge 1 in respect of Wolli Creek relate to approximately 3500 tonnes of waste material ‑ not limited to soil contaminated with asbestos;
(c) the 2 June DADI Dockets (relevantly 4 in total) which were part of the information supplied in Charge 2 in respect of Zetland relate to approximately 4000 tonnes of waste material ‑ soil contaminated with asbestos;
(d) as referred to above at [39], many of the weighbridge dockets supplied under cover of the 12 June 2017 email the subject of Charge 3 had also been sent under cover of the 18 April 2017 email the subject of Charge 1;
(e) Charge 4 which concerned the false Second Holt Run Sheet, contained false information in relation to 622 truckloads of waste material, weighing 18,186.91 tonnes.
Submissions for the Company
57. The submissions made at PS [64] otherwise impermissibly hinge on the unproven and erroneous assumption that the documents concerned actually represented real quantities of waste that were otherwise disposed of from the Wolli Creek and Zetland premises. Further, the analogy sought to be drawn with fraud‑type offences is inapt. The mere fact of the number of documents involved, or the tonnages of waste referred to in those documents, says nothing as to the seriousness of the offending or the consequences of the offending. It is not a meaningful way to assess the seriousness of the offending in this case.
That's not to say Ace doesn't bear corporate responsibility for his [Mr Al Sarray’s] actions. But it is relevant, we submit, to the circumstances of the offending, that the evidence so far as it goes, we submit shows it was one employee who decided to do something dishonest and inappropriate. And that there's no evidence in our submission that this was caused or contributed to by, other particular individual actors within the company. Now that, we say, is a central component of the circumstances of the offending. And it feeds into some submissions are learned friend made, which is, well, there's no recognition here of our obligations under section under 144AA (1) or (2). There's no recognition here of systemic failures.The submission we put, which our learned friend criticised us for is, the risk of someone going on a frolic of their own and committing a fraudulent act is frankly an ever present risk in any organisation. If someone is determined enough to commit an act of dishonesty, there is very little one can do at the end of the day to prevent that absolutely. There's no evidence we had particular controls to try and root out that form of dishonesty, but it was, what I'll call an act of everyday occurrence that a client would ask to be provided with documents and an employee would be tasked with providing them.
And it’s not, we submit, something that would be expected of corporate businesses. They would have in place systems to check every email that might go out from a corporation to make sure their employees were not being dishonest in matters of routine nature such as this. So, we don’t accept, with respect, that this is a worse category of offending, or a more objectively serious offence.
Consideration
Deterrence
Introduction
Specific deterrence
The Prosecutor’s position
In this context, it’s notable that Ms Anthony does not say that it was her decision on behalf of the company to make the offers of enforceable undertakings. The conclusion from that in our respectful submission, your Honour, is that the defendant has failed to discharge its burden of proving that because of its insight into its offending, it is unlikely to reoffend and therefore is less in need of specific deterrence.
PROSECUTOR: Your Honour, I turn to specific deterrence. Your Honour has our submission that there's no evidence that the defendant recognises that the causes of the offences included pressure put on Mr Al Sarray by Ace and Mr Allam himself to provide dockets. And therefore, there should be no reduction in penalty for the defendant having insight into its offending.Indeed, your Honour, in addition, if only from its submissions on sentence, it's clear, we submit, beyond reasonable doubt that the defendant has no insight into the harm caused by its offending. And we provide the following illustrations. The defendant submits DWS 100, that the need for specific deterrence has already been effected because Munaf Al Sarray has been sentenced for the two offences of which he was convicted. And the defendant goes on to say, “Thus, achieving one of the purposes of s 3A of the Crime Sentencing Procedure Act and satisfying to a degree the need for deterrence and denunciation.”
We submit your Honour would reject those submissions. The provisions of the Crime Sentencing Procedure Act are satisfied not by the sentence passed on a co‑offender, they are satisfied by the sentence passed on the offender in the present proceedings. Additionally, the defendant submits DWS 101,
“Contrary to the Prosecutor's assertions, there is nothing particular to Ace or its systems that made it more or less likely that an offence against 144AA would be committed. The same risk attends every organisation in every industry. If one individual decides to be dishonest, particularly in the act of sending emails supplying routine documents, there are few systems that would eliminate such a risk.”
In essence, your Honour, the defendant's position is that there is nothing it can do to ensure compliance with section 144AA and it's unrealistic of the Prosecutor or the Court to expect it to be able to do so. And the defendant's attitude, your Honour, is that it shouldn't have to worry about the requirements of the POEO Act at all concerning the waste industry. Because other industry would have the same problems in ensuring compliance.Now, apart from noting them, your Honour, as evidencing what we respectfully submit is, on the part of the defendant, a flippant attitude to the observance of the law. The Court should reject those submissions. in addition, your Honour reminded there is the defendant's submissions, DWS 70, that the harm caused by the offence is non‑existent or minimal. In addition, there's no, as I've submitted your Honour, there is no evidence of insight, no evidence of an understanding of where, when and how come the defendant went wrong.
There is, your Honour will have noted, a lack of accounting as to when and how the company, that is Sami Allam, discovered that the offences had been committed. And there's a complete lack of documentary evidence of significant systems changes which would allow the Court to make its own judgment about when they were implemented and how likely they are to be effective in preventing a recurrence of the offences.
HIS HONOUR: With respect to the first of the propositions you just advanced, and I have a recollection that Mr Potts’ submissions advanced the proposition that the falsifications were drawn to the attention of the prosecutor by ACE. That is, a voluntary fessing up, as it were. Is that not correct, then? Is that not a matter of relevance?
PROSECUTOR: Would your Honour just excuse me a moment? Yes, your Honour, that’s correct.
HIS HONOUR: See, doesn’t that‑‑
PROSECUTOR: And, yes, that is relevant.
HIS HONOUR: And it is to be seen in the context, is it not, of your submission a few moments ago as to the difficulty for a regulatory body in the shoes of your client in general terms of detecting such conduct as a matter of its ordinary supervisory roles.
PROSECUTOR: I can’t gainsay that, your Honour.
HIS HONOUR: And that in this case, the fact that the company put up its hand is in fact, is it not, a matter that goes to either assistance to the prosecutor, and/or contrition and remorse?
PROSECUTOR: There’s no evidence to satisfy the relevant provision in 23A(3) of the Crime Sentencing Procedure Act in relation to remorse, your Honour. And they don’t meet those requirements, but it does indicate assistance‑‑
HIS HONOUR: It’s my recollection that in the chief judge’s decision in waste processing, and has subsequently I think more concisely summarised by Pepper J, in a case the name of which now escapes me, as to the four elements of demonstrating contrition and remorse. Is it not open to me to say, well, look, it’s quite possible that the company might have got away with it, to use the vernacular?
PROSECUTOR: Yes.
HIS HONOUR: Because of the difficulty in a regulatory sense of monitoring all of the communications that might arise in this industry, and that the company has stuck its hand up, confessed to the problems before it ever came to the attention of the regulator, and by doing so, should I not infer that the company regretted that that had occurred? That is, that the falsification by Mr Al Sarray had occurred as the alternative to the company just saying to Top Pacific and Westbourne, go and play in the traffic, we’re not going to provide you with anymore documents, because we don’t have them.
PROSECUTOR: No, your Honour. Because there’s no evidence as to why the defendant did that.
HIS HONOUR: But I don’t need evidence. It’s the act of confessing, is it not? That demonstrates that. You know, it’s not quite a defence, but it’s a weight on the scales of justice in favour of the company that I’m discussing with you.
PROSECUTOR: It is.
HIS HONOUR: In circumstances where if you wanted to advance the proposition but to the effect, but for them confessing, they were only two and a half hours away from being discovered, that might lessen the value of the confession. But there is no such evidence. But there is evidence, at least as I understood Mr Potts’ submission, and he can take me to it when he gets to it, that if the company hadn't said, put up their hand, your client might well never have known.
PROSECUTOR: Excuse me a moment, your Honour. Your Honour, I would need to pull out the document concerned, but my recollection is that this confession occurred in response to a statutory notice to provide information and documents that the EPA had served on the defendant and what it did was in that regard provide true information, which, of course, was its legal obligation to do.
HIS HONOUR: Well, it strikes me that it’s a matter of some importance. I’m not saying determinative importance about anything, but some importance that that position be clear. That is, the confession position be clear. And that it might be appropriate that at some stage I, when we get toward it, that I’ll take the morning adjournment before calling on Mr Potts so that you can have the opportunity to find whatever it is you want to tell me about.
PROSECUTOR: May it please the Court. We say, just briefly, if anything it comes under the heading of assistance rather than remorse or contrition.
HIS HONOUR: Well, I understand.
PROSECUTOR: Remorse and contrition cry something more.
HIS HONOUR: No, no, I understand what you're saying to me about that. That’s why I put the proposition in the alternative as being and/or, and I certainly accept that it goes to assistance, and my recollection is that leaving aside the statutory obligations under the Sentencing Procedure Act in 22A about discounts and the like, the prosecutor accepts the fact that there may be an appropriate discount or factoring in on sentencing of assistance to the authority.
PROSECUTOR: We emphasise, your Honour, that not only is the defendant to be sentenced for the offences committed by virtue of the conduct of Mr Al Sarray, but that at the time it had no systems to ensure it complied with its obligations under s 144AA. Now, these, we submit, are serious deficiencies in the defendant’s case on sentence. It shows that they defendant has no understanding of what it did wrong. What it had is no more than a resentment that it is being held to account for the conduct of its contracts manager. The significance of this, your Honour, is that there is a heightened need for specific deterrents [deterrence] to ensure the defendant doesn't commit the offence again, thinking that there's no real harm in it, and it only needs to protect itself against the conduct of rogue employees.
The Company’s position
Mr Al Sarray has already received punishment100. As already noted above, Mr Al Sarray acted alone in the commission of the offences, and was the sole person at ACE with knowledge of the commission of the offences. Mr Al Sarray has already been charged with and convicted of two counts of knowingly providing false or misleading information about waste to others, by his conduct in sending two emails which are the subject of two of the charges against ACE. To that end, the individual dishonest offender has already received punishment for those offences, and specific deterrence has already been effected, thus achieving one of the purposes in s 3A CSPA, and satisfying to a degree the need for deterrence and denunciation (cf. PS [118]‑[123]).
101. Contrary to the prosecutor’s assertions, there is nothing particular to ACE or its systems that made it more or less likely that an offence against s 144AA would be committed. The same risk attends every organisation in every industry. If one individual decides to be dishonest, particularly in the act of sending emails supplying routine documents, there are few systems that would eliminate such a risk. As already addressed above, the prosecutor’s suggestion that an organisation must micromanage its senior and trusted employees and review every individual email (and attachment) prior to sending to avoid any possibility of false or misleading information being provided, is plainly unreasonable and in the real world, unworkable.
119 Having regard to all of the matters addressed above, the Court should conclude:
(a) ...
(b) ...
(c) ...
(d) the objective of imposing specific deterrence and denunciation has already been achieved against the sole dishonest human actor in the offending conduct, by reason of Mr Al Sarray’s convictions under s 144AA(2);
Consideration
General deterrence
But when a law proscribes conduct which an ordinary person without special knowledge of the law might engage in in the honest belief that he is lawfully entitled to do so, the secondary deterrent purpose ‑ that is, the purpose of educating both the offender and the community in the law's proscriptions so that the law will come to be known and obeyed ‑ must be invoked to justify the imposition of a penalty for breach. In such a case, care must be taken in imposing a penalty lest the offender be made to shoulder an unfair burden of community education.
Comparability in sentencing
Introduction
The Prosecutor’s material and submissions on comparability
138 To achieve consistency between sentencing decisions in the application of relevant legal principles to the facts of the individual case the Court should consider comparable cases. The goal is not to achieve consistent outcomes or numerical equivalence but consistency in the application of relevant legal principles. Provided with these submissions is a schedule of sentencing decisions under s 144AA POEO Act by way of comparable cases.
1 Environment Protection Authority v Afram [2022] NSWLEC 38 (Pain J)
These proceedings, to the extent here relevant, involve only offences against s 144AA(1) (accompanied by a single offence of land pollution concerning the illegal dumping of asbestos contaminated waste). For the three offences, her Honour found that the offences were at the low end of the high range of objective seriousness and structured her penalties on that basis. The penalties were also mitigated by the fact that the offender was given, for each of the charged offences, a 25% discount to reflect the entry of guilty pleas at the earliest opportunity. Her Honour also had regard to the fact that this defendant had also been sentenced for an offence pursuant to s 192D(1) of causing financial disadvantage by deception (in an amount of over $4 million) to the developer to whom the full set and misleading information concerning the disposal of waste had been provided in breach of s 144AA(1) of the POEO Act. With respect to this Crimes Act 1900 offence, this defendant had also been sentenced to two years imprisonment to be served by way of an intensive correction order.
2 Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) [2020] NSWLEC 166 and Environment Protection Authority v Mouawad (No 3) [2021] NSWLEC 16 (Pain J)
In this second grouping of cases, her Honour imposed on the corporate defendant (which was convicted in its absence) fines totalling $450,000 for breaches of s 144AA(2) of the POEO Act. The individual offender, Mr Mouawad, was sentenced to a total of 250 hours of community service pursuant to an intensive corrections order for his two elements of offending conduct in breach of s 144AA(2) of the POEO Act.
3 Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott [2016] NSWLEC 167 (Preston CJ)
With respect to the third grouping of cases cited by the Prosecutor, the individual prosecuted (Mr Endacott) was punished by the imposition of a series of fines of varying amounts for the three breaches of s 144AA(2) with which he had been charged. As with the circumstances with the offending conduct of Mr Al Sarray concerning the offences with which the Company has here been charged (for reasons later explained, with respect to all four charges), there was no evidence of those activities causing or being likely to cause harm to the environment (judgment at [72] to [75]).
Mr Endacott had pleaded guilty to the three offences pursuant to s 144AA(2) of the POEO Act, Preston CJ holding that one of the offences was at the lower end of objectives seriousness; a second offence was of low‑to‑medium objective seriousness; and the third offence was of medium objective seriousness. With respect to both the corporate offender and Mr Endacott, his Honour had regard to the early pleas of guilty; absence of prior convictions; good character; remorse for the offences, unlikelihood of reoffending; and the extent of the cooperation which had been given to the regulatory authorities (at [103]). His Honour concluded that there was no need for specific deterrence (at [122]). His Honour considered that, for reasons of the totality, all the fines required adjustment as a consequence of the fact that Mr Endacott, as the guiding mind of the corporate offender, would effectively be paying the penalties of that corporate offender as well as the penalties imposed on him as an individual (at [131] and [132]).
The submissions for the Company on comparability
115. It is appropriate for a Court, in considering the objective seriousness of an offence, to have regard to the general pattern of sentences in similar cases. Sentencing consistency requires that “like cases are to be treated alike and different cases are to be treated differently” however that is not synonymous with numerical equivalence.
116. The prosecutor has placed before the Court a schedule of what it contends are “comparable cases” concerning s 144AA. There are a clear number of distinctions to be drawn between those cases and the offending conduct in this case. In particular:
a) Justice Duggan rejected a submission that Mr Al Sarray’s conduct in sending the 18 April and 2 June emails were in anyway comparable to the circumstances that arose in Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) [2020] NSWLEC 166. Her Honour was plainly correct to reject that submission; unlike Mouawad, the conduct here (as noted above) did not involve any unlawful disposal of waste, nor did it have the effect of concealing or facilitating any unlawful disposal or transportation of waste, or of misrepresenting the true location of waste. The Court should conclude that the circumstances of this case are significantly distinguishable, and are comparatively less serious than those in Mouawad;
b) the decision in Environment Protection Authority v Afram [2022] NSWLEC 38 arose in circumstances where there had been actual pollution of land by the defendant, through dumping of material including asbestos contaminated material. Again, no such circumstance arise here. In Afram the conduct the subject of the offending was undertaken by the director, and the committal of the s 144AA offences was found to have given rise to the likelihood of significant harm to the environment. Again, that is not this case, and the Court should conclude that the circumstances here are distinguishable from, and are comparatively less serious than those in Afram;
c) for the reasons set out above, there is a clear difference in culpability of Mr Al Sarray compared to ACE, in terms of involvement in and knowledge of the offending conduct. That should serve as a reason why in the circumstances of these particular offences, the position of ACE should be distinguished from that of Mr Al Sarray, and be found to have been comparatively less serious; and
d) the decision in Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott [2016] NSWLEC 167 concerned circumstances where there was a risk that asbestos had not been properly removed and houses had not been safely demolished. No such circumstance is present here, rendering this case distinguishable and the position of ACE comparatively less serious than Endacott.
117. In ACE’s submission, taking into account the whole circumstances of the offending, the Court should conclude that ACE’s conduct is at the lower end of the range of seriousness, and lower than any of the cases identified above.118. That submission does not serve to deny the dishonesty involved in the s 144AA(2) offences, but dishonesty is of course, an essential element of the s 144AA(2) offence, and is of necessity present in every offence under that sub‑section.
Consideration
The appropriate starting sentences
Introduction
Parity
The Prosecutor’s submissions on parity
136 The principle of parity of sentencing is that, generally, the sentence to be imposed should not be inconsistent with sentences imposed on different offenders involved in the commission of the same offence. Disparity may be justified, however, where there are differing circumstances or roles played by the defendants.137 In this case, the Defendant ACE had more of a role to play than did Mr Al Sarray in ensuring that the corporation had systems in place to ensure compliance with the legislation and in putting such systems in place to avoid reoffending in the future. In addition, Mr Al Sarray pleaded guilty much earlier in his proceedings than did ACE.
The Company's submissions on parity
112 Where the offending conduct involves co‑offenders, the principle of parity (or equal justice) becomes relevant, which ‑ like the principle of consistency of sentencing ‑ requires that “like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co‑offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated... equal justice requires that, as between co‑offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’.”113 Whilst here separate trials were held for Mr Al Sarray and for ACE, given Mr Al Sarray has already been convicted and sentenced to two charges under s 144AA(2) for the same conduct with which ACE has been charged under s 144AA(2), and given also the reliance placed by the prosecution on Mr Al Sarray’s conduct in respect of the remaining two charges, it is appropriate for the Court to apply the parity principle.
114 Contrary to the assertion made at PS [137], there is no basis for the Court to conclude that ACE had “more of a role to play” or that this difference in roles renders ACE more culpable than Mr Al Sarray. Given the acceptance that Mr Al Sarray was the sole person at ACE knowingly involved in the provision of false or misleading information, and the sole person with knowledge that it had been provided, it would be manifestly unreasonable and illogical to conclude that ACE has or is capable of having any greater culpability than Mr Al Sarray, the principally relevant human actor. To the contrary, given the lack of involvement and knowledge of all other people at ACE (including its director and senior officers such as Ms Anthony), the Court should readily conclude that Mr Al Sarray had greater culpability than ACE, and any disparity in the relative positions of the two can only operate in ACE’s favour.
Your Honour would come to penalties which we respectfully submit would be no more than but we would submit lower than penalties imposed on Mr Al Sarray.Noting, of course, and I make this clear, Mr Al Sarray obtained a discount for an early plea at the earliest opportunity of the full 25%. I’m not, in making that submission, suggesting to your Honour we would obtain a plea discount of that magnitude, but your Honour will have seen there were factors which we submit are present in this case that were not present in Mr Al Sarray’s case. So, that when your Honour approaches the overall task, we submit your Honour will ultimate arrive at a penalty in relation to the subsequent‑‑
HIS HONOUR: Well, there were also matters in Mr Al Sarray’s favour that are not necessarily in your client’s favour.
POTTS: I accept that.
POTTS: Can I then put submissions about, what I call, parity? And this is the point in terms of, like offences being treated in like ways. And we would say, your Honour would have some regard to the penalties imposed on Mr Al Sarray by Duggan J in answer to his s 144AA(2) offences, to get some indication as to questions of parity, so that one wouldn't readily see, what I might call, disparity between what are self‑evidently, if not the same, very similar charges being treated in a disparate way. So, we would invoke questions of parity when your Honour comes to consider the appropriate range of penalties for us, as for Mr Al Sarray.HIS HONOUR: Her Honours instinctive synthesis comes to the mathematical inconvenient fraction of 18, twenty‑fifth’s, doesn't it?
POTTS: I might have to accept that from your Honour, without trying to do it in my head.
HIS HONOUR: Well, the starting sentence was 180.
POTTS: Yes.
HIS HONOUR: The maximum for Mr Al Sarray was 250, as I recollect.
POTTS: Yes, but there was a potential of an 18‑month custodial sentence on top of that.
HIS HONOUR: Yes.
POTTS: That’s the only reason I balk at your Honour’s mathematics. And there was a pre‑sentence report, as I recollect it, done for Mr Al Sarray.
Consideration
The Company’s guilty pleas
Introduction
The Prosecutor’s submissions
125 The discretion conferred by s 22 is regulated, but not confined, by the guideline judgment in R v Thomson; R v Houlton. In that case, the Court of Criminal Appeal expressed the opinion that “the appropriate range for a discount is from 10‑25 per cent.” Discounts outside this range are uncommon, although examples of 5% discounts are to be found.126 The Defendant entered very late pleas of guilty to Charges 1, 2 and 4 after the Summonses had been on foot for over a year and a half. In relation to Charge 3, the plea of guilty was entered on the first day fixed for the defended hearing and in relation to Charges 1, 2 and 4, the pleas of guilty were entered after the matter proceeded to a defended hearing, all the evidence had closed and the parties were preparing written submissions on guilt. Although the time occupied by judgment writing may be reduced, the hearing has occupied the same amount of time and effort as if the Defendant had continued to maintain its pleas of Not Guilty. There is very little or no utilitarian value to the pleas of guilty. Particularly in the case of Charges 1, 2 and 4, the utilitarian value of the pleas is nil or so insignificant as to attract no discount for utility. In the circumstances, the Court should decline to give any consideration to a discount on penalty for any of the offences.
Facilitating administration of justice ‑ utilitarian value of the manner of the conduct of the trial
127 The Defendant significantly limited the facts in issue in the defended hearing as to guilt, and that limiting of facts in issue flows into the sentence proceedings. The Defendant thereby facilitated the administration of justice in the proceedings.
128 Section 22A CSP Act was inserted into the Act in 2010. The section confers power in cases of offences tried on indictment to reduce sentence for facilitating the administration of justice. In Droudis v R ‑ where the facilitation had been by limiting the facts in issue ‑ the Court of Criminal Appeal considered how this might work under the section. The Court held that the power to reduce sentence could be either by way of discount or treatment of it as a mitigating factor. There is no requirement under s 22A that the sentencing judge specify the sentence which would have been passed but for the facilitation or quantify mathematically the extent to which the sentence has been reduced but it would not be inappropriate to specify the penalty which would have been imposed but for the facilitation of the administration of justice. This has the benefit of providing transparency and encouraging the efficient and expeditious conduct of trials.
128 Section 22A CSP Act aside, the Defendant is entitled to a discount of penalty in sentencing at common law. Without conceding that there was any issue of substance in the hearing as to guilt, it can be noted that, in 2005 in R v Doff, the Court of Criminal Appeal said:
“The efficient way in which the Appellant’s trial was conducted, including the making of extensive admissions, which while not demonstrating contrition or remorse, did show a willingness to facilitate the course of justice by refraining from resort to dilatory and technical objections of no merit. We do not see why this should not be taken into account for the purposes of sentencing, particularly in a case where there was a single issue of substance which it was appropriate for decision by a jury.”
[20‑000] Mitigating factors...
Absence of criminal record under s 21A(3)(e) and prior good character under s 21A(3)(f)
Prior good character is a mitigating factor to be taken into account under s 21A(3)(e) and (f). ...
...
Similarly, where there are repeated offences over a period of time, or the offender has engaged in a course of conduct to avoid detection, prior good character will carry less weight: R v Smith [2000] NSWCCA 140; (2000) 114 A Crim R 8 at [20]‑[24]; R v Phelan (1993) 66 A Crim R 446; R v Houghton [2000] NSWCCA 62 at [18].
An offender’s lack of a previous criminal record will not be accorded the significance it might have had where he or she has committed a large number of offences over a long period of time: R v Chan [2000] NSWCCA 345 at [20] (a two‑judge bench decision referred to in a schedule in R v Hare [2007] NSWCCA 303).
The submissions for the Company
... we rely on the fact that ACE has no prior convictions nor any other charges. That’s from the statement of agreed facts, p 2, subss 1B and C, and we say, and your Honour, in our submission, should accept, we are entitled to the benefit of that for all four charges, not with a diminishing effect for the later ones.We say, although our learned friends seem to now accept that it’s two courses of conduct because it involves Top Pacific on the one hand and Westbourne on the other, particularly given the commonality of the use of some of the dockets and the commonality of the problem that Mr Al Sarray said he faced with both clients, we say your Honour would in truth regard all four offences as part of one continuing course of conduct, and your Honour would treat it in that way, including for the benefit of applying the fact that we have no prior convictions. ...
80 The charge under s 144AA(1) POEO was entered on the first day of trial (25 July 2022), however, ACE had earlier signalled its intention to the prosecutor to do so at the earliest opportunity thereafter on 23 June 2022.67 The guilty pleas to the charges under s 144AA(2) POEO were entered on 10 August 2022, shortly after the close of the prosecutor's case in the joint trial with the then charges against Mr Allam, with the intention to plead guilty having been signalled on 5 August 2022.68 ACE had previously signalled its willingness to plead guilty to s 144AA(1) offences for those three charges, and its intention to make admissions consistent with that plea on 23 June 2022, and this was indicated to the Court on the first day of trial.81 It is important to understand the timing of those guilty pleas in context.
82 These proceedings were commenced by summonses filed on 17 December 2020. Subsequently, on 14 May 2021, two of the four summonses were amended by the EPA. Between 22 January 2021 and 4 June 2021, the EPA served evidence (primarily electronically), in seven tranches comprising 21 affidavits and extensive exhibit material, of more than 30,000 pages in length.
83 It is trite but fundamental that:
"It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection."
See: Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 497 per Evatt J.
84 Of course, that evidence was served, on an undifferentiated basis, in support of eight charges, including the four with which the Court is now concerned, but also four concerning Mr Allam that have since been withdrawn.85 That voluminous evidence was subsequently the subject of a number of applications for advance evidentiary rulings under s 192A of the Evidence Act, which were heard over six days in mid to late 2021, with judgments delivered in September 2021 and May 2022.71 The making of those interlocutory applications and the obtaining of the rulings was necessary in order for ACE to understand the nature and extent of the case being brought against it by the EPA. Those applications were necessary in order for ACE to understand the scope of the admissible case against it, and its strength. Having received that clarification via those rulings by May 2022, the defendant indicated to the EPA its intention to plead guilty to the s 144AA(1) charge in the subsequent month, June 2022. The pleas entered for the s 144AA(2) charges likewise were entered only days after the EPA had closed its case, and identified what (relatively small) subset of the extensive material that had been served by it was in fact being relied upon.
86 The prosecutor appears to assert something inappropriate in ACE's earlier actions in making offers to enter pleas (PS [106]). There is nothing inherently inappropriate nor improper in a defendant proffering proposed plea deals. Both the CSPA and Criminal Procedure Act 1986 (NSW) are premised on the assumption that a prosecutor and defendant will engage in plea discussions, including discussions of whether there are any offences to which the accused person is willing to plead guilty. To the extent that the prosecutor suggests similar adverse findings ought to be made from the fact of the proffering of the enforceable undertaking (PS [110]) that too should not be accepted.
87 It cannot be that the taking of either of these steps by ACE could be matters that are irrelevant to the sentencing discretion, or that they could count against the defendant on sentence. Rather, they show an early attempt by ACE (indeed, well prior to the institution of these proceedings) to assist the regulator, and to partake in restorative justice activities, which had they been accepted by the prosecutor, would have avoided the cost and expense to not only the parties but also the State of these proceedings.
88 In any event, the entry of guilty pleas by ACE to all four offences has had a utilitarian value in reducing the burden on and cost to both the prosecutor, and the Court. The prosecutor's assertions to the contrary should not be accepted (PS [124]‑[126]) and a discount in the ordinary course of between 10‑25% ought to be applied (PS [125]).
Consideration
160 The Court should adopt the following guideline applicable to offences against State laws:
i. A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.
ii. Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant ‑ contrition, witness vulnerability and utilitarian value ‑ but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate.
iii. The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10‑25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
iv. In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.
42 The section imposes an obligation to have regard to the fact of the pleas, the time at which it was proffered and the circumstances in which that occurred; however, the court has a discretionary power as to whether to impose a lesser penalty than it would otherwise have imposed and as to the extent of the reduction. That discretion is regulated, but not confined, by the guideline judgment in R v Thomson; R v Houlton. The purpose of the guidance given in Thomson was to ensure a degree of consistency and transparency in giving effect to s 22. The result of the guideline judgment was not to “constrain the exercise of the discretion” nor to prescribe a particular outcome. However, the Court expressed the opinion that “the appropriate range for a discount is from 10‑25 per cent.” Discounts outside this range are uncommon, although examples of 5% discounts are to be found.43 In the present case, the prosecutor submitted that the sentencing judge would not consider a discount of more than 5%. To do so would have failed to give proper weight to the lateness of the plea. However, there is no reason to encourage small discounts. Even a 10% discount assumes a starting point which has a high degree of precision. That will almost always be a false assumption. For example, where the outcome of the sentencing process is a sentence of imprisonment of 20 months, it is entirely likely that the judge considered a possible range of between 16 and 24 months, involving a possible variation of plus or minus 20%.
Totality and accumulation
Introduction
HIS HONOUR: .... I understand the basis upon which you make the submission concerning the three subs 2 offences, but given that if I reject the proposition that Mr Allam was the emailer of the 144AA(1) offence, as I've indicated by not calling on you on that, but I'm minded to do so on the basis of Mr Al Sarray’s evidence, doesn’t that at least set that aside from anything that Mr Al Sarray did, because you are asking me not to infer that it was Mr Allam, a negative, but you don’t ask me to infer a positive that it was Mr Al Sarray.POTTS: No, your Honour, I don’t.
HIS HONOUR: So doesn’t that mean that even if I accept that the other three, the Al Sarray offences ‑ let me call them that ‑ were a single course of conduct, that at least the anonymised one was a separate non‑part of the same course of conduct.
POTTS: I think, but for this, your Honour, and I'll have to get someone to correct me, but I think the 12 June email, which is the one your Honour is referring to, recycles the same or some of the same dockets that were used in the 18 April offending, so there is a link, in our submission, that’s apparent on the face of the 12 June email, even without your Honour knowing or being invited to find who it was within ACE as a corporation that hit the send button on the email.
Making a publication order
Introduction
The Court orders:(1) Pursuant to section 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the defendant, at its own expense, must, within 28 days of this order, cause a notice in the form of Annexure “A” to be placed within the following publications:
(a) Inside Waste magazine within the first 15 pages of the [insert month] issue at a minimum size of a quarter of a page;
(b) Sydney Morning Herald or the Daily Telegraph within the first 15 pages on a right‑hand page at a minimum size of a quarter of a page; and
(c) Pursuant to section 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the defendant, at its own expense, must, within 28 days of this order, cause a notice in the form of Annexure “A” to be placed on the “home” section of its website https://www.acedemolition.com.au for a minimum of 30 days.
(2) Within 42 days of the date of this order, the defendant must provide to the prosecutor a complete copy of the pages of the publications on which the notice appears.
56 The appellant company’s complaint is that the judge rejected Mr Elliott’s submission that the making of a publication order would be a matter to be taken into account in determining the amount of any fine. His Honour said that an order under s 353G of the WMA was an “additional” order and Mr Elliott had not cited any authority for his submission. [18]57 The appellant company’s argument in this Court is founded on the deterrent effect of a publication order. The argument is that the amount of the fine may be reduced as the need for deterrence is lessened when a publication order is made.
58 The deterrent effect of publication orders is well recognised. As Preston CJ of LEC explained in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 (“Waste Recycling and Processing”) at [242]:
“[242] Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma...”
59 Publication orders serve purposes other than deterrence. In Harris v Harrison, [19] Simpson J observed at [118] “that a publication order, while not a penalty, is intended to be remedial and even educative, rather than punitive, and to have a deterrent effect”.60 The construction of the WMA does not support the appellant company’s argument. Orders under s 353G fall within Part 3A of the WMA whereas penalties which are imposed under s 363B fall within Part 5 of the WMA.
61 Part 3A provides for the making of court orders in connection with offences and applies when a court finds a person guilty of an offence against the WMA.
62 The orders that may be made under Part 3A specifically include orders for restoration and prevention (s 353B), orders for costs, expenses and compensation (s 353C), and orders regarding monetary benefits (s 353F). An order for publication under s 353G(1)(a) is an additional order to the orders that may be made under the Part. Section 353A is as follows:
353A Orders generally
(1) One or more orders may be made under this Part against the offender.(2) Orders may be made under this Part in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. (emphasis added)
63 Part 5 of the WMA provides for legal proceedings and appeals which includes the maximum penalties for offences (s 363B), proceedings for offences (s 364) and matters to be considered in imposing a penalty for an offence against the WMA (s 364A).
64 The separation of orders and penalties in distinct parts of the WMA and the language employed in s 353A(2) point to the independent determination of penalties and orders as does the sentencing regime for penalties established by s 364A.
65 Section 364A(1) specifies in sub‑paragraphs (a) to (k) the matters that “the court is to take into consideration” when imposing a penalty, none of which includes the making of a publication order. Furthermore, s 364A(1) does not require a court when imposing a penalty to take into consideration any of the orders that a court might make under Part 3A.
66 The absence of any reference to Part 3A orders in s 364 stands in stark contrast to s 364A(1)(k), which obliges the court to take into consideration:
364A Matters to be considered in imposing penalty
...(k) any civil penalty that has been imposed on the person under section 60G in relation to the conduct from which the offence arises.
67 Section 60G enables the Minister to impose “a charge for water taken (which may include a penalty component) not exceeding 5 times the value of the water so taken...” [20]
68 I am not persuaded that the court is obliged when determining the appropriate penalty to take into consideration the making of a publication order. The determination of the appropriate penalty is a discretionary judgment which is to be exercised separately from the exercise of the discretion to make a publication order or any other order under Part 3A.
3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows—
(a) ...,
(b) to prevent crime by deterring the offender and other persons from committing similar offences, The Company's submissions
The submissions for the Company
POTTS: ... But, what we say in substance is this, your Honour, that it doesn’t seem to be in dispute that pt 8.3 of the POEO Act contains orders that are consequent upon either conviction or s 10 finding.HIS HONOUR: Yes.
POTTS: And so they're logically discrete and separate from a sentencing power. So, the sentencing exercise is entirely discrete and separate from what I’ll call the additional orders power in pt 8.3.
HIS HONOUR: Yes.
POTTS: It’s clear, we say, that when determining whether to exercise any of the various powers under pt 8.3, the purpose actuating the Court’s discretion, so the reason why the Court makes an order and exercises its undoubted discretion to make additional orders under pt 8.3, cannot be, we submit, a punitive purpose in order to impose additional punishment.
HIS HONOUR: I accept that proposition as a broad proposition.
POTTS: That may be an incident effect, if there’s another purpose, what we call a remedial or preventative purpose. If there’s an incident effect, that much would be fine. But if the purpose which drives the Court to exercise the discretion is to impose additional punishment, we say that would be an impermissible purpose, and one which seeks to impose an additional punishment not authorised by law.
And so our point is, in order to be persuaded, your Honour should make, I’m sorry, there’s an extension to that which requires some elaboration, and it’s this, that under the Crimes (Sentencing Procedure) Act 1999, what the Court is told by that Act is that there are various purposes for sentencing in s 3A of that Act, and 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, et cetera.
We develop our submission by putting this proposition, that deterring other persons from committing similar offences is by dint of that statutory description of the purposes an aspect of the sentencing process and an aspect of the punishment process for which the sentence is imposed. It’s built in, we say, to the sentence that your Honour is authorised to impose under s 144AA(1) and 144AA(2). I'll come to Budvalt in a moment to address your Honour on what that case did and did not decide.
What we submit by extension of the first proposition which in general terms I put to your Honour is that if the only purpose of making a pt 8.3 order, including a publication order, were to instil general deterrence, that, we say, is an impermissible purpose because it’s part of the punishment and part of the sentence. What we say is, on a proper view, on a statutory construction view of pt 8.3, the real purposes of pt 8.3 are to either remediate consequences of the offending, to take some step to prevent the ongoing consequence of those offending, or it has to be, in our respective submission, remedial and corrective in nature. It can't be punitive.
That’s really our point, and we say, in order to properly and lawfully exercise the discretion, your Honour needs to be satisfied, even if there is an incidental punishment purpose, but your Honour needs to be satisfied what is the purpose for which I'm being asked to do this, how is it relevantly remedial in the sense that it will remediate some consequence of the offending conduct or prevent its occurrence, and it’s only if your Honour can form a view that there is a purpose of that character which is properly within the statutory purposes of the provisions in that part, your Honour can then make the publication order.
The Prosecutor’s subsequent response
PROSECUTOR: The other matter is a matter of law, your Honour, and that is the proper construction of pt 8.3 of the POEO Act. So far as concerns publication orders, your Honour, we submit that the purpose is to instil confidence in the regulatory scheme by bringing home to people that offenders against the requirements of the scheme, the obligations imposed by the scheme, will be punished.
Consideration
The terms of the notice to be published
by one of its employees sending four emails
so that the relevant sentence would read, in its entirety:
In April, June and December 2017, Ace Demolition & Excavation Pty Ltd, by one of its employees sending four emails, supplied a total of approximately 603 weighbridge disposal dockets (also known as tipping dockets) and three documents containing summaries of information relating to the disposal of waste which variously misrepresented or falsely recorded the source site of asbestos and other waste deposited at three landfill facilities.
Your Honour, the insertion proposed in the second paragraph, of the words “by one of its employees sending four emails”, minimises what it was that was done. Firstly, anything a company done will always be by its employees or officers or its board, and really isn’t the issue that needs to be brought home to people, that the breach of the legislation brings with it punishment, but, secondly, it was more than just four emails.There were all these attachments, and it was the attachments that did the harm, in our respectful submission, and they involved dishonesty, and they were what resulted in the emails being false and misleading, not the emails themselves, so unless there is a far more detailed description to accompany the reference to four emails, we would submit that the proposal that those extra words be inserted not be accepted.
A moiety order
Investigation costs
Costs
Orders
(a) Inside Waste magazine within the first 15 pages of the next available issue at a minimum size of a quarter of a page;(b) The Daily Telegraph within the first 15 pages on a right‑hand page at a minimum size of a quarter of a page; and
(c) Pursuant to section 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the Defendant, at its own expense, must, within 28 days of this order, cause a notice in the form of Annexure “A” to be placed on the “home page” section of its website https://www.acedemolition.com.au for a minimum of 30 days.
(d) Within 42 days of the date of this order, the Defendant must provide to the Prosecutor a complete copy of the pages of the publications on which the notice appears.
**********
I certify that this and the 124 preceding pages are a true copy of the reasons for the judgment of the Honourable Justice Moore.
..................................................
Associate
2 February 2023
Annexure A
Summary Table of Charges
|
Charge No.
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Relevant
POEO
Sections
|
Details of Email
|
Pleaded particulars re false or misleading in a material respect
|
|
ACE ‑ 2020/357465
Allam ‑ 2020/357476
|
ACE ‑ 144AA(2)
Allam ‑ 169A (144AA(1))
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Email sent on 18 April 2017 at 7:23pm by Munaf Al Sarray to Peter
Maroun (Top Pacific Construction Aust Pty Ltd)
|
(i) In respect of 70 documents purporting to be weighbridge dockets issued
by SUEZ in relation to disposal of 70 truckloads of soil
contaminated with
asbestos from the Wolli Creek Premises to the Suez Elizabeth Drive Landfill
‑ the dockets were not issued
by Suez in relation to those circumstances;
and/or
(ii) In respect of 148 purported weighbridge dockets issued by
Dial‑A‑Dump in relation to disposal of 148 truckloads of
soil
contaminated with asbestos from the Wolli Creek Premises to the
Dial‑A‑Dump Landfill ‑ 140 of the documents
were not dockets
issued by Dial‑A‑Dump in relation to those circumstances.
|
|
ACE ‑ 2020/357466
Allam ‑ 2020/357475
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ACE ‑ 144AA(2)
Allam ‑ 169A (144AA(1))
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Email sent on 2 June 2017 at 12:50pm by Munaf Al Sarray to Glen
Allen (Westbourne Constructions Pty Ltd)
|
(i) In respect of 70 documents purporting to be weighbridge dockets issued
by SUEZ in relation to disposal of 70 truckloads of soil
contaminated with
asbestos from the Zetland Premises to the Suez Elizabeth Drive Landfill ‑
those dockets were not issued by
Suez in relation to those circumstances; and/or
(ii) In respect of 147 purported weighbridge dockets issued by
Dial‑A‑Dump in relation to disposal of 147 truckloads of
soil
contaminated with asbestos from the Zetland Premises to the
Dial‑A‑Dump Landfill ‑ 134 of the documents were
not dockets
issued by Dial‑A‑Dump in relation to those circumstances.
|
|
ACE ‑ 2020/357467
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ACE ‑ 144AA(1)
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Email sent on 12 June 2017 at 11:24am by
"sami@acedemolition.com.au" to Eric Gerges (El Australia Pty Ltd)
|
(i) In respect of 48 dockets purporting to be weighbridge disposal dockets
issued by SUEZ purporting to contain info re disposal of
48 truckloads of soil
contaminated with asbestos from Wolli Creek Premises to Suez Elizabeth Drive
Landfill ‑ the dockets were
not issued by SUEZ in relation to those
circumstances; and/or (ii) In respect of an Excel spreadsheet titled “Ace
120217 to
300317” purporting to contain info re disposal of 70 truckloads
of soil contaminated with asbestos from Wolli Creek Premises
to Suez Elizabeth
Drive Landfill ‑ the 70 truckloads were not related to disposal of soil
from Wolli Creek to Suez; and/or
(iii) In respect of 153 purported weighbridge dockets issued by
Dial‑A‑Dump re disposal of 153 truckloads of waste material
from
Wolli Creek Premises to the Dial‑A‑Dump Landfill ‑ 141 of
these were not dockets issued by Dial‑A‑Dump
in relation to those
circumstances; and/or
(iv) In respect of an Excel spreadsheet titled “Wolli Creek
Summary” purporting to contain info re disposal of 95 truckloads
of soil
contaminated with asbestos from Wolli Creek Premises to the
Dial‑A‑Dump Landfill ‑ 89 of these truckloads
were not related
to those circumstances.
|
|
ACE ‑ 2020/357468
Allam ‑ 2020/357477
|
ACE ‑ 144AA(2)
Allam ‑ 169A (144AA(1))
|
Email sent on 2 December 2017 at 1:53pm by Ameer Sidawi to Eric
Gerges (El Australia Pty Ltd)
|
In respect of a document titled ‘Wolli Creek Summary’
purportedly created by Besmaw purporting to contain information
regarding the
disposal of approximately 622 truckloads of waste material from the Wolli Creek
Premises to the Holt Landfill ‑
that document was not created by Besmaw,
and none of the truckloads referred to in the document were related to the
disposal of waste
material from Wolli Creek Premises to the Holt Landfill.
|
Annexure B
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Ace Demolition & Excavation Pty Ltd convicted of supplying
information about waste knowing that the information was false or misleading
On 2 February 2023, Ace Demolition & Excavation Pty Ltd was convicted
by the Land and Environment Court of NSW of three offences
of supplying
information about waste knowing that the information was false or misleading in
a material respect pursuant to section
144AA(2) of the Protection of the
Environment Operations Act 1997 (NSW), and one offence of supplying information
about waste that
was false or misleading in a material respect pursuant to
section 144AA(1) of the Protection of the Environment Operations Act 1997
(NSW).
In April, June and December 2017, Ace Demolition & Excavation Pty Ltd
supplied a total of approximately 603 weighbridge disposal
dockets (also known
as tipping dockets) and three documents containing summaries of information
relating to the disposal of waste
which variously misrepresented or falsely
recorded the source site of asbestos and other waste deposited at three landfill
facilities.
The weighbridge disposal dockets and summaries were supplied by Ace
Demolition & Excavation Pty Ltd to two separate entities who
were clients of
the company, as well as to the environmental consultants for one of the
entities, in relation to two separate development
sites located in Wolli Creek
and Zetland in Sydney, respectively.
Ace Demolition & Excavation Pty Ltd was prosecuted by the NSW
Environment Protection Authority and pleaded guilty to the four
offences. The
company was sentenced by the Land and Environment Court to:
1. pay fines totalling $943,650; and
2. pay the Environment Protection
Authority’s legal costs.
This notice was placed by order of the Land and Environment Court of New
South Wales.
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