ACE Demolition & Excavation Pty Ltd v Environment Protection Authority

1. [1]

   LEEMING JA: The appellant ACE Demolition & Excavation Pty Ltd pleaded guilty to four charges brought under s 144AA of the Protection of the Environment Operations Act 1997 (NSW). All concerned weighbridge dockets and other documents recording dealings with waste which were provided to third parties and purported to represent waste removed by ACE from two development sites, at Zetland and Wolli Creek. Three of the charges were the offence under s 144AA(2) of knowingly supplying information about waste in the course of dealing with waste which was false or misleading in a material respect. The remaining charge was the less serious offence under s 144AA(1) of supplying information about waste in the course of dealing with waste which was false or misleading in a material respect. The maximum penalties for the offences, in the case of a corporation, were $500,000 and $250,000 (more recently, each maximum penalty has been doubled). The primary judge imposed fines of $300,000, $270,000, $240,000 and $133,650 for the three offences under s 144AA(2) and the fourth offence under s 144AA(1) respectively: Environment Protection Authority v ACE Demolition & Excavation Pty (No 2) (2023) 255 LGERA 44; [2023] NSWLEC 3.

2. [2]

   This Court was told that the fines imposed were the largest ever imposed by the Land and Environment Court of offences under s 144AA(1) or (2).

3. [3]

   ACE appeals as of right, pursuant to s 5AA read with s 5AB of the Criminal Appeal Act 1912 (NSW). ACE made no challenge to further orders that (a) the respondent (EPA) be paid one half of each fine, pursuant to s 122(2) of the Fines Act 1996 (NSW), (b) ACE pay the EPA’s costs as agreed or assessed pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 (NSW), and (c) ACE publish a notice in a form annexed to his Honour’s reasons for judgment in a newspaper and a trade journal, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act.

4. [4]

   The payment of the fines and the publication of the notice have been stayed on terms that ACE pay a sum of money into court. The stay will be discharged by this Court’s orders, and the terms of the notice will need to be altered in light of this Court’s judgment.

5. [5]

   There were conceded arithmetical errors made by the primary judge, which, if all other grounds failed, this Court could correct to save the parties from the need to re-apply under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW), as described in Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10 at [19]-[27]. However, as will be seen, this Court’s intervention and resentencing, in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42], is required in any event.

6. [6]

   ACE’s notice of appeal has three grounds. The first and second concern errors alleged in relation to his Honour’s evaluation of ACE’s likelihood of re-offending and the harm caused by the offending, for the purposes of s 21A(3)(a) and (g) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The third ground is styled manifest excess, although within that ground were sub-grounds alleging patent error, namely, error in identifying the starting points of $330,000 and $165,000, and error in relation to the principles of totality, accumulation and parity. The sub-ground concerning totality and accumulation is directed to the finding that all of the offending constituted a single course of conduct. The parity sub-ground concerned a co-offender, Mr Munaf Al Sarray, who was an employee of ACE and who was found to have caused each of the false notices to be sent as gave rise to the company’s offending. He had been sentenced for two offences under s 144AA(2), prior to ACE being sentenced, and was fined $135,000 for each offence.

7. [7]

   The formulation of the ground of appeal asserting manifest excess discloses confusion of thought which should be addressed at the outset. Manifest excess, no differently from manifest inadequacy, is a “conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. The approach seen in ACE’s notice of appeal is not an isolated example. As Wilson J said in Pleasance v R [2016] NSWCCA 113 at [110]:

8. [8]

   The same point was made by Wilson J in Hayek v R [2016] NSWCCA 126 at [64]-[66], by Beech-Jones J in Hurmz v R [2017] NSWCCA 235 at [20], by Wright J in Muniandy v R [2021] NSWCCA 305 at [78] and by Cavanagh in Brown v R [2023] NSWCCA 330 at [46], in each case with the agreement of the other members of this Court. The internal incoherence of a ground of manifest excess based on patent error is apparent from what was said by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]:

9. [9]

   R A Hulme J, writing for this Court, identified a further difficulty with this mode of drafting a ground of appeal in Darcy v R [2019] NSWCCA 159 at [30]-[31]:

10. [10]

    Contrary to the way in which the notice of appeal was drafted, ACE’s written and oral submissions treated the patent errors in the sub-grounds as free-standing independent grounds. The EPA responded to them in the same way. I shall proceed on that basis, and thus the danger to which R A Hulme J adverted does not arise. But those charged with the important task of formulating grounds in an appeal against sentence ought to bear steadily in mind whether they are contending that some of the sentencing judge’s reasons disclose error, or whether they are contending that despite the absence of any patent error, the sentence is so excessive that it is to be inferred that in some way the discretion was not properly exercised. “In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred”: House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. A ground of appeal based on manifest excess (or manifest inadequacy) is made out when “the appellate court is driven to conclude that there must have been some misapplication of principle”: R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28], although that may simply be because the sentence is manifestly too long or too short: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [61].

11. [11]

    As a general proposition, and always subject to the terms of the statute, the powers of an appellate Court are exercisable only where the order which is the subject of the appeal is the result of some legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [30] and [153]. That general proposition extends to criminal appeals. The joint judgment in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35] confirmed that s 6(3) of the Criminal Appeal Act requires the demonstration of error:

12. [12]

    The significance of the final sentence of that passage, that intervention on the grounds of manifest inadequacy or manifest excess requires a conclusion that the sentence is outside the “permissible” range, is that the conclusion amounts to an inference that there has been error although the error is not patent on the face of the reasons.

13. [13]

    It is well established (following amendments to s 5AA consequent upon the decision in Hilstollo Pty Ltd v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661) that an appeal under s 5AA requires demonstrating error: see Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [96]; Harris v Natural Resources Access Regulator; Timmins v Natural Resources Access Regulator [2023] NSWCCA 16 at [34]. In Gilmour v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399 at [19] and Parker v R [2023] NSWCCA 234 at [14] this Court said that error must be demonstrated “as a threshold point”.

14. [14]

    There was no difficulty in the oral and written submissions in this Court in identifying which of the errors upon which the success of the appeal turned were patent and which were to be inferred. Even so, subgrounds of patent error within a ground alleging manifest excess should ordinarily be avoided. It is difficult to see how they assist in identifying the error or errors which are said to vitiate the sentence.

Background

1. [15]

   The primary judge recorded at [10] that ACE had originally pleaded not guilty, but on the first day of the trial it changed its plea on one charge contrary to s 144AA(1) to guilty. The trial proceeded on all other charges. The materials supplied to this Court do not include the record of a trial, but his Honour stated at [38] that it occupied eight days between 25 July and 3 August 2022, and at [42] that the documentary evidence was “extensive”. The page numbering suggests tens of thousands of pages of electronic documents were tendered, while ACE’s submissions at trial complained of a wholesale tender of electronic documents unaccompanied by appropriate discipline and discrimination. I mention this only because it has some bearing on the assistance given by ACE at the sentencing hearing.

2. [16]

   After the close of evidence at trial, and during an adjournment for the purpose of preparing written submissions, the parties advised that it had been agreed that ACE would also plead guilty to the three charges laid against it under s 144A(2) of the Protection of the Environment Operations Act and that the EPA would withdraw the charges against Mr Sami Allam, the sole director and shareholder of ACE.

3. [17]

   The sentencing hearing occupied most of 23 August 2022, with around 2000 pages of documents tendered in addition to the agreed statement of facts, which was reproduced in full by his Honour at [18]. The primary judge imposed sentence on 2 February 2023, publishing relatively lengthy reasons for judgment at the same time.

4. [18]

   ACE provided demolition and excavation services in the construction industry, including the removal and disposal of waste from construction sites. Waste is classified depending on the extent to which it is contaminated. One common category of waste is ACM or Asbestos Containing/Contaminated Material. Waste was delivered to various facilities, including those operated by SUEZ Recycling & Recovery Pty Ltd (SUEZ), Dial A Dump Industries Pty Ltd and Dial A Dump (EC) Pty Ltd (DADI) and Besmaw Pty Ltd, also known as Holt Estate 1861.

5. [19]

   Mr Al Sarray was described as “the contract manager and/or construction manager” and was second-in-charge. The four charges related to documents supplied by or at the direction of Mr Al Sarray, on 18 April 2017, 2 June 2017, 12 June 2017 and 2 December 2017. They concerned excavation works at two large sites in Zetland, developed by Top Pacific Group Pty Ltd, and Wolli Creek, developed by Westbourne Constructions Pty Ltd. A condition of development consent for the Zetland site was “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”. A condition of the development consent for the Wolli Creek site was the production of a Waste Management Plan, and that plan required “Trucking docket records … to be kept on site to check that fill is going to the nominated landfills”.

6. [20]

   ACE contracted with a subsidiary of Top Pacific Group to (among other things) excavate and dispose of material from the Wolli Creek site. The value of the contract was $3,600,000. ACE also contracted with Westbourne to carry out works at the Zetland site, including the excavation and removal of materials. The contract value was $19,000,000. (In each case, the agreed statement of facts referred to a contract “value” which I understand to be a reference to the contract price, as opposed to a measure of ACE’s profit.)

7. [21]

   In January and February 2017, ACE submitted invoices to the Top Pacific Group subsidiary. The invoice submitted by ACE on 25 January 2017 stated that it was for, amongst other things, the excavation of 50% of ACM impacted fill. The invoice of 23 February 2017 included an amount of $1,407,000 for “Bulk Excavation – ACM impacted fill”, which was the entirety of the contract amount for that category of work. Neither invoice was accompanied by dockets identifying where the excavated material had been disposed. Those invoices were partly paid, but the contract administrator advised in March that further payments would only be released once further documents were provided by ACE. Following subsequent request for dockets, ACE supplied 70 weighbridge dockets for the disposal of waste material at the SUEZ facility and 148 weighbridge dockets for the disposal of material at the DADI facility. In fact, the SUEZ dockets had been generated by ACE for the disposal of material from a site at Terrey Hills, and each receipt included a “Cust ref” as “H57” which was ACE’s internal code for the Terrey Hills site. Most of the DADI receipts had been altered. It was an agreed fact that:

8. [22]

   Paragraph 50 of the agreed statement of facts was that:

9. [23]

   It was agreed that at the time the email was sent, Mr Al Sarray knew, and so ACE knew, that 114 of the DADI dockets were false (through their being altered to insert “wolli creek” next to “Order No”) and 26 of the dockets were misleading (because although they were unaltered they had been issued in respect of waste taken from other sites). It was not disputed that the imputation through s 169C of the Protection of the Environment Operations Act of Mr Al Sarray’s state of mind to ACE satisfied the mental element of the offences.

10. [24]

    Each docket represented that some 25-30 tonnes of material from the Wolli Creek site had been disposed of at either the SUEZ facility or the DADI facility. Thus the 210 dockets which were agreed to be false or misleading (70 SUEZ and all save 8 of 148 DADI) represented the disposal of excavated material in the order of 5,500 – 6,000 tonnes.

11. [25]

    The offence committed on 2 June 2017 involved sending to a construction manager employed by Westbourne 70 weighbridge dockets issued by the SUEZ facility and 147 weighbridge dockets issued by the DADI facility. The dockets supplied purported to be for material taken from the Zetland site. It was agreed that the SUEZ documents were the same 70 dockets that had been supplied some six weeks earlier to the Top Pacific Group subsidiary. Save for 13 of the DADI invoices, the remaining 134 dockets were genuine invoices which had been altered to say “Zetland” next to “Order No”. Once again it was agreed that:

12. [26]

    It was agreed that between 16 June 2017 and 7 December 2018, Westbourne paid ACE $13,755,588.30 (excluding GST), of which $10,092,500.00 was for bulk excavation and removal of spoil.

13. [27]

    The materials supplied to this Court did not explain why the price paid by Westbourne for bulk excavation and removal was some seven times greater than that paid to the Top Pacific Group subsidiary. Thus, for the purpose of imposing sentence, what matters is that roughly the same quantity of dockets (204 and 210 respectively) were supplied in each case.

14. [28]

    The offending on 12 June 2017 was the offence of strict liability contrary to s 144AA(1). It was an email sent from Mr Allam’s account attaching DADI and SUEZ weighbridge dockets purporting to be from the Wolli Creek site, and also spreadsheets purporting to be from each of SUEZ and DADI relating to 70 and 96 truckloads of soil contaminated with asbestos said to have been removed from that site. Many of the dockets were the same as those which had been provided under the 18 April 2017 email. The email was sent to Mr Eric Gerges of El Australia, and was agreed to be in the course of ACE dealing with the waste.

15. [29]

    The offending of 2 December 2017 was based on a document called the “Second Holt Run Sheet”. It was agreed that in response to pressure from the Top Pacific Group subsidiary, Mr Al Sarray created a document based on an authentic run sheet of 80 loads, or 2,415.97 tonnes of waste material, by inserting information from job sites other than Wolli Creek. The document purported to be on the letterhead of “Holt Group”, and purported to identify dates, registration numbers, docket numbers and weights of material taken from the Wolli Creek site. It purported to show how and when 622 truckloads of waste material had been taken from the Wolli Creek site. The following matters were agreed:

16. [30]

    The 622 truckloads of waste represented in the Second Holt Run Sheet is roughly triple the amount of waste as had been represented in the 204 and 210 dockets which gave rise to the first and second charges.

17. [31]

    There were also the following further agreed matters. First, as noted above Mr Al Sarray was charged with and convicted of two counts of contravening s 144AA(2) in respect of the same conduct, sending the 18 April and 2 June emails, with which ACE has been charged. It was agreed that he did so:

18. [32]

    Secondly, Mr Al Sarray suffers from Post Traumatic Stress Disorder arising out of his experiences in the Iraq War, and came to Australia as a refugee seeking protection.

19. [33]

    Thirdly there is no evidence that the offences caused any actual harm to the environment, a point emphasised by ACE.

20. [34]

    Fourthly, on 9 June 2021, ACE offered to plead guilty to one of the s 144AA(2) offences, with the other charges taken into account on a “Form 1” pursuant to s 32 of the Crimes (Sentencing Procedure) Act, and not resist an order that it pay some or all of EPA’s investigation costs, on terms that the EPA withdraw all charges brought against Mr Allam. That offer was rejected by the EPA on 22 June 2021.

Applicable legislative provisions

1. [35]

   Section 3A of the Crimes (Sentencing Procedure) Act provides:

2. [36]

   Section 21A relevantly provides:

3. [37]

   By s 22, where an offender has pleaded guilty to an offence the court must take into account that fact, the time at which the plea was entered or indicated, and the circumstances in which it was indicated, and may accordingly reduce the sentence it otherwise would have imposed. Section 23(1) provides that “A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence”.

4. [38]

   Section 241 of the Protection of the Environment Operations Act provides:

5. [39]

   The Dictionary defines “environment” broadly, so as to include (inter alia) “any living organism”.

Reasons of the primary judge

1. [40]

   The primary judge identified the procedural background and relevant legislative provisions, and three affidavits parts or all of which were read at the sentencing hearing. None of the deponents was cross-examined. Significantly for present purposes, Ms Nicole Anthony, ACE’s Administration Manager, explained the steps which ACE had taken with a view to ensuring that the conduct would not recur, and also identified steps that ACE offered to take in the future pursuant to an enforceable undertaking (the EPA did not accept the undertaking). Ms Anthony said that her company had already spent $178,849.20 (a) identifying the employee and taking disciplinary action including “removal from key sections”, (b) alerted senior management and placed them on notice of the need for greater oversight, (c) reassigned two full time employees, (d) provided training to personnel concerning the submission of documentation, (e) addressed all staff as to their duty of care and the company’s expectations of them, (f) revised internal protocols concerning documentation handling, (g) improved procedures and training, and (h) “put in place processes to complete daily variance reporting on actual tipping vs Waste Locate consignment summary, as a means of internally auditing compliance”. So far as I can see from the materials in the appeal books, there was no identification of how the $178,849.20 was spent between those eight categories of activity. The undertaking proffered to the EPA proposed spending a further $175,000 on training, monitoring and reporting obligations. These considerations bore upon ground 1 which challenged the failure to find that Ace was unlikely to reoffend.

2. [41]

   His Honour addressed the harm to the regulatory scheme caused by the offending conduct at [48]-[70], on the basis that notwithstanding the absence of any demonstrated actual harm to the environment, and without speculating on the waste classification of what was actually disposed of by ACE, the breaches undermined the waste regulatory framework and were “significant but not to the extent of constituting a factor of aggravation for the purposes of s 21A(2) of the Sentencing Procedure Act”: at [60]. His Honour was also of the view that the offending conduct undermined the development control framework (ie conditions of consent regulating the removal and disposal of waste) and once again concluded that the harm was significant but not to the extent of constituting a factor of aggravation: at [70]. His Honour expressed the view at [54] that:

3. [42]

   At [71]-[132] his Honour addressed various sentencing factors, doing so by reference to s 21A of the Crimes (Sentencing Procedure) Act. Relevantly to ground 2, his Honour addressed harm for the purposes of s 21A(3)(a), stating at [82]:

4. [43]

   Relevantly to ground 1, his Honour said at [73]-[74], by way of introduction, the following:

5. [44]

   Those matters were picked up in a passage at [94]-[96] which is central to ground 1 on the likelihood of reoffending:

6. [45]

   His Honour noted at [80] that the EPA did not seek to establish any of the aggravating matters in s 21A(2). His Honour thereafter addressed the matters in s 21A(3)(a), (e), (f), (g), (k) and (m). No issue was taken with his Honour’s conclusion that the company was of prior good character, and his rejection of the EPA’s submission that its prior good character should be afforded less weight where there were multiple offences of dishonesty over an 8 month period. His Honour formed the view that the offending comprised a “single continuing course of conduct” and made a favourable finding for the purposes of s 21A(3)(e).

7. [46]

   Nor was any issue taken with his Honour’s failure to find that ACE was a good corporate citizen (in the absence of any evidence of any beneficial activities undertaken by it), or his Honour’s favourable finding that ACE had exhibited genuine contrition and remorse. It will be necessary when resentencing to refer to what his Honour said concerning assistance at [131]-[132].

8. [47]

   The primary judge thereafter addressed the sentence imposed by Duggan J upon Mr Al Sarray, to which I shall return when dealing with the submissions on parity.

9. [48]

   At [142]-[155] his Honour addressed objective seriousness, concluding at [155] “that the Company’s offending conduct should also be regarded as being at high end of the mid‑range of objective seriousness”. No challenge was brought against that characterisation of the offending.

10. [49]

    After addressing specific and general deterrence, and concluding that the only relevantly potentially comparable sentence needed to be addressed was that imposed on Mr Al Sarray, his Honour explained his reasoning at [180]-[236]. First, his Honour explicitly applied a process of instinctive synthesis in accordance with Markarian v R (2005) 229 CLR 357; [2005] HCA 25 to conclude at [196] that the appropriate starting sentences for each of the three more serious offences was $330,000, while the appropriate penalty for the single, lesser offence is $165,000. Next, his Honour had regard to the late guilty pleas and concluded (rejecting the EPA’s contrary submission) at [216] that notwithstanding the plea being entered after eight days of trial, the avoidance of the necessity to determine questions of liability coupled with the potential of avoiding a multi‑day sentencing hearing meant that the utilitarian value of the Company's pleas should result in a 10% discount on penalty.

11. [50]

    Thereafter at [217]-[234] under the heading “Totality and accumulation” his Honour addressed “the extent to which the principles of totality should result in some further amelioration of the total penalty to be applied to the Company to reflect this commonality”. His Honour said that each of the four offences should be regarded as arising out of a single course of offending conduct: at [224] and [232], which in turn led to the following reasoning at [234]-[236]:

12. [51]

    It is unnecessary to summarise the balance of the reasons, which were directed to the publication order, costs, and the payment of half of the fine to the EPA, which were outside the scope of the appeal.

Ground 1

1. [52]

   Ground 1 was that the primary judge erred in regarding the likelihood of ACE reoffending as “neutral” for sentencing purposes, and should have taken the fact that ACE was unlikely to breach s 144AA(2) into account as a mitigating factor.

2. [53]

   The Court is required, by reason of s 21A(3)(g) of the Crimes (Sentencing Procedure) Act, to take into account by way of mitigating factor if it is established to the civil standard that “the offender is unlikely to re-offend”. His Honour’s assessment of this factor at [94]-[96] has been reproduced above. Despite his Honour being satisfied that ACE “is unlikely to breach s 144AA(2)” following the measures undertaken by it, he concluded:

3. [54]

   ACE advanced two submissions in support of this ground.

   1. (1)

      The first was that, in respect of the imposition of sentence for the three counts contrary to s 144AA(2), it was entitled to the benefit of the favourable finding in the first sentence of [94] that ACE was unlikely to breach s 144AA(2) in the future.

   2. (2)

      The second was that the primary judge had erroneously applied an unduly onerous approach in respect of the offending under s 144AA(1). The question was not whether his Honour was satisfied to the civil standard that it was certain that there would not be future inadvertent provision of false and misleading information about waste. The question was whether his Honour was satisfied, to the civil standard, that future reoffending under s 144AA(1) was unlikely.

4. [55]

   On each basis, ACE contended that this was a material error in that a mandatory relevant consideration was not taken into account.

5. [56]

   The EPA made two points in response. The first, by reference to R v King [2009] NSWCCA 117 at [60], was that reoffending for the purposes of s 21A(3)(g) was not confined to the particular offence for which sentence was being imposed but was reoffending in general, and reoffending in general extended to the strict defence under s 144AA(1). The second submission was that his Honour was to be taken to have said that the company could not be certain that it was complying with the law as opposed the Court being certain.

6. [57]

   The first submission may be accepted but the second is a very strained reading of his Honour’s language. In my view, the better reading of the language is that his Honour meant what he said and expressed a finding (which was open to him) that he could not be certain that no future offending would not occur. Hence, his Honour neglected to address whether ACE had established the likelihood which was sufficient to engage s 21A(3)(g). If this were an ex tempore judgment, I might be minded to attribute it to a mere verbal infelicity. However, in a judgment which was reserved for more than five months, and which sought in [94]-[96] to draw together his Honour’s reasoning on this mitigating factor, I think the preferable view is that his Honour misapplied the test, and denied ACE the benefit of a finding that it was unlikely to re-offend on the incorrect basis that he could not be satisfied that it was certain ACE would not re-offend.

7. [58]

   This ground is made out. If I am wrong about that, nothing turns on my error, because ground 2 also is made out.

Ground 2

1. [59]

   This ground asserted error in concluding that the factors in s 241(1)(a)-(c) constituted an “adverse impact of significance”, and in concluding that ACE was not entitled to the mitigating factor in s 21A(3)(a) where it was conceded that there was no harm to the environment. There are thus two components to ACE’s complaint.

2. [60]

   The first turns on s 241 of the Protection of the Environment Operations Act, which is reproduced above. It was agreed that there was no evidence of actual harm to the environment caused by the offending. It also appears that the evidence was silent as to any likelihood of future harm to the environment. His Honour was satisfied that the offending conduct was significant insofar as it caused “damage to the regulatory regime itself”. His Honour recorded a concession at [59] on behalf of ACE that “we don’t suggest that [the sending of four emails] had no consequence for the regulatory environment. [Nor do we suggest that the emails] didn’t go to the site auditors.”

3. [61]

   The maximum fine of $500,000 confirms that ACE’s offending is regarded by the Legislature as serious. The regulatory framework is important, not least because if the regulatory framework is, or is perceived to be, evaded by competitors in the industry, that may lead to a cascading effect of future offending. Those matters need to be taken into account, including by way of general deterrence, when imposing sentence. They are plainly relevant, and it does not greatly matter whether they are taken into account through s 241(1) or 241(2).

4. [62]

   At two places, at [72] and [76], his Honour expressed the view that the harm to the regulatory system was harm for the purposes of s 241 of the Protection of the Environment Operations Act, although his Honour also made it plain that he did not regard the harm to be of such significance to amount to a factor of aggravation. His Honour recorded that the harms “constitute[d] an adverse impact of significance (but not to the extent necessary to constitute a factor of aggravation for the purposes of s 21A(2) of the Sentencing Procedure Act)”. No explanation was given for why the harm was “significant” but not “substantial” for the purposes of s 21A(2). His Honour relied, at [54], upon Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9, for the proposition that “undermining a regulatory regime can, by itself, constitute an element of harm for criminal sentencing purposes”. No precise reference in that decision was supplied.

5. [63]

   The prosecutor conceded that to the extent that his Honour made findings that there was harm for the purposes of s 241(1)(a), (b) or (c), that was wrong in light of the concession (written submissions, paragraphs 52-53, 150). That concession was properly made. It was procedurally unfair for findings of harm under s 241 to be made when those findings formed no part of the EPA’s case.

6. [64]

   The prosecutor also conceded that no part of Budvalt supported the proposition that harm to the regulatory system was harm for the purposes of s 241(1)(a), (b) or (c). That concession was also properly made. This Court’s decision at [19] referred neutrally to a finding to that effect by the reasons of the sentencing judge in that case (coincidentally, the same judge who sentenced ACE) but no ground of appeal challenged that aspect of the reasoning.

7. [65]

   Transparency in sentencing will be enhanced by avoiding undue straining of the statutory language. There is a distinction between actual harm to the environment, and damage to the regulatory regime which carries with it the potential of future harm to the environment. There is no good reason to stretch the language of s 241(1) to include cases such as the present, where the prosecutor has not sought to establish direct actual or likely harm to the environment. That is not to diminish the perniciousness of ACE’s offending. It is to recognise that in legislation which includes the broadest conceivable language in s 241(2) (“other matters that it considers relevant”) there is no occasion to strain the language of “harm caused or likely to be caused to the environment” to cases where the only harm or likely harm proven is harm to the regulatory regime.

8. [66]

   This aspect of the ground is established, although it may be doubted whether it had any material impact upon the sentence imposed. Although his Honour was wrong to regard the matters in s 241(1) established, he considered the harm to the regulatory regime as relevant, which plainly it was, and therefore was required to have regard to it pursuant to s 241(2). Although s 5AA(4) departs from the wording in s 6(1) and (3) and does not include a proviso for appeals against summary convictions or a provision for confirming a sentence if satisfied that no lesser sentence is warranted, it is clear that more than harmless error must be established. Decisions authorising the dismissal of an appeal pursuant to s 5AA(4) of the Criminal Appeal Act where there has been no substantial miscarriage of justice are collected in Leda Manorstead Pty Ltd v Secretary, Department of Planning and Environment [2022] NSWCCA 220 at [6] and [17].

9. [67]

   Turning to the second aspect of this complaint, ACE also contended that there was error in [82]:

10. [68]

    That paragraph amounts to a conclusion that ACE had not persuaded the primary judge to the civil standard that the mitigating absence of substantial harm in s 21A(3)(a) of the Crimes (Sentencing Procedure) Act was made out. Ultimately, this ground turns on whether “harm” for the purposes of s 21A(3)(a) extends to significant harm to the regulatory system.

11. [69]

    As was pointed out during argument, s 21A(3)(a) is narrowly expressed. The issue is whether ACE had established, to the civil standard, that “the injury, emotional harm, loss or damage caused by the offence was not substantial”. The statutory language picks up familiar terms of compensable loss in private law, and “harm to the regulatory system” does not readily fit within that language. Subsequently to the hearing of the appeal, I became conscious of a statement in reasons at first instance for imposing sentence upon Mr Einfeld to the effect that his offences of perverting the course of justice disentitled him from the benefit of s 21A(3)(a). James J said in R v Einfeld [2009] NSWSC 119 at [167] that “In the case of offences against public justice such as the present offences, although there is no injury, emotional harm, loss or damage to any ascertained individual, there is substantial damage to the system of justice”. An appeal was dismissed: Einfeld v Regina [2010] NSWCCA 87; 200 A Crim 1, but that proposition was not challenged. I do not for a moment doubt that regard may be had to the damage to the system of justice. However, there is no reason for this consideration to be squeezed, awkwardly, into “injury, emotional harm, loss or damage”, when s 21A(1) requires the Court in any event to take into account “any other objective or subjective factor that affects the relative seriousness of the offence”. There is a danger in merely running through the enumerated aggravating and mitigating factors in s 21A(2) and (3) that a sentencing judge may merely record the point and take it into account, without fully addressing its effect upon the process. The task of imposing sentence is far more nuanced than a tick-a-box exercise in accordance with s 21A(2) and (3). As Basten JA observed, “Anxiety to record compliance with the statutory requirements of s 21A should not be seen as a complete satisfaction of the requirements of the law in respect of those factors”: Einfeld v Regina at [74]. The purpose of s 21A is to oblige the judicial officer imposing sentence to have regard to a wide range of considerations which bear upon the exercise of discretion. However, the section is not exhaustive (for example, parity and totality are conspicuous by their absence) and its operation is expressly subject to any “rule of law” (s 21A(4)) including the “judicially developed body of sentencing principles”: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [57], referred to without criticism in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [18]. Still less does the section greatly assist the task of drawing together those incommensurable considerations.

12. [70]

    Accordingly, ACE was entitled to the benefit of the mitigating factor in s 21A(3)(a). His Honour erred in finding to the contrary. This ground is made out.

Ground 3

1. [71]

   As noted above, this ground asserted manifest excess, but had five sub-grounds. The second was traditional, and asserted that the fines were unreasonable or plainly unjust.

2. [72]

   The first, third, fourth and fifth sub-grounds alleged patent error. The first was that the sentence was manifestly excessive because of “the matters raised in grounds 1 and 2”. Those grounds have been addressed above.

3. [73]

   The third sub-ground was principally directed to the failure to undertake the “mandated process of intuitive synthesis”, although this subground also overlapped with the complaint about parity which is addressed below. This was said to turn about the means by which his Honour reached starting points of $330,000 and $165,000. That was not inconsistent with a process of instinctive synthesis. The course adopted by his Honour has been summarised above. In substance, his Honour had regard to most objective and subjective factors when arriving at those starting points, from which he said that he deducted 10% (in fact, just over 9%) for the late guilty plea and then one or two further deductions of $30,000 (or in the case of the lesser offence, $15,000) having regard to totality. But there is no difficulty in transparently recording the undiscounted starting point for the fines imposed for each offence, from which a discount is applied for the guilty pleas. And it is clear that considerations of totality are to be brought to bear at the end of the process: “a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed” must then “review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’”: Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70, endorsing Thomas, Principles of Sentencing (2nd ed 1979), p 56. After citing Mill, in Pearce v The Queen (1998) 194 CLR 610 at 623-624; [1998] HCA 57, McHugh, Hayne and Callinan JJ said:

4. [74]

   Nothing in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 alters the process of determining individual sentences before applying the principle of totality. Thus this Court has repeatedly stated that the sentences for individual offences should be determined first, before determining questions of concurrence or accumulation and before determining totality (see for example Thorn v R [2009] NSWCCA 294; 198 A Crim R 135 at [47] and Sigalla v R [2021] NSWCCA 22 at [119]), although noting that it is also open to bring considerations of totality to bear earlier.

5. [75]

   The approach taken by his Honour had some antecedents in the decisions. In particular, in Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Kirby P writing from this Court considered that a penalty of:

6. [76]

   If there is a criticism to be made of this approach, it is that it introduces illusory precision. In the present case, that was most clearly shown by the fact that 10% deduction was not in fact made to the starting points of $330,000 for the three offences contrary to s 144AA(2), although it was made to the starting point of $165,000 for the s 144AA(1) offence. There is no need to identify the percentage of the maximum which the sentence imposed following consideration of totality reflects. To do so may be artificial, for an assessment of the appropriate aggregate sentence is unlikely to turn on any percentage of the maximum. With all respect, neither the geometric sequence of fines imposed by Kirby P, nor the arithmetic sequence imposed by the primary judge, is an especially natural way of determining whether in light of the totality of offending the aggregate of individual sentences is “just and appropriate”.

7. [77]

   The fourth sub-ground was a complaint about totality and accumulation. It was submitted that the primary judge, despite finding that the conduct by ACE formed “part of a single continuing course of conduct”, did “not consider or apply the course of conduct principle”. That was said to be a principle derived from Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113, a civil penalties case, where reference was made to what had been said by Owen JA in Royer v Western Australia [2009] WASCA 139 at [22]:

8. [78]

   It was said that “In substance, the issue for the sentencing judge was whether some of the fines to be imposed should effectively overlap with each other, in order to avoid ACE being punished twice for the same conduct”.

9. [79]

   There are three difficulties with this ground. The first is that while ACE submitted that the primary judge should characterise the offending as a “single course of conduct”, and his Honour made a finding in accordance with ACE’s submission, his Honour was not invited to have regard to the so-called “single course of conduct” principle in the decisions upon which reliance is now placed. It is difficult to conclude that there is House v The King error in failing to apply a principle to which his Honour was not directed.

10. [80]

    The second difficulty is that this ground neglects the principles applicable to punishment by way of fine for multiple offences. No doubt from the perspective of the person paying there may be little difference between a fine and a civil penalty, but the distinctions are basic, as elaborated at length in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 at [51]-[58]. Rather than relying by analogy on decisions from other jurisdictions concerning the imposition of civil penalties, when resentencing I shall rely upon the decisions of this Court on the imposition of fines for multiple offending.

11. [81]

    In particular, “the circumstance that a number of offences arise out of the same course of criminal conduct does not dictate that concurrent sentences must be imposed”: Sigalla v R [2021] NSWCCA 22 at [125]. One of the decisions there collected is Howie J’s statement, writing for this Court, that it was “clear that, simply because a number of offences arise out of the same incident or course of criminal conduct, it does not follow that concurrent sentences will be appropriate to meet the total criminality involved”: Vaovasa v R [2007] NSWCCA 253; 174 A Crim R 15 at [15]. Insofar as ACE’s submission complained that the sentence imposed for a single course of conduct exceeded the maximum for any single offence, the submission must be rejected.

12. [82]

    Thirdly, and obviously, fines cannot be imposed so that they “effectively overlap with each other” as if they were sentences of imprisonment, and accordingly the question is resolved as a matter of totality, rather than concurrency.

13. [83]

    Insofar as this ground was based on totality, ACE submitted that his Honour “gave no reasons or explanation” for the reductions in penalty to the second, third and fourth offences, with the result being “a failure to adequately account for the risk of over punishment for what was, as the sentencing judge found, a single course of conduct, and led to a punishment for that course of conduct and the four charges that was manifestly excessive”. ACE added that “In essence, ACE has been punished four times for the same course of conduct”. It is true that there is little reasoning justifying the deductions of $30,000 or $15,000, but the qualitative assessment of totality may not admit of any lengthy explanation. I do not think this ground is made out.

14. [84]

    The fifth sub-ground was a complaint about parity. The issue is whether ACE has established unjustifiable disparity: Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 at [32]. It is to be addressed objectively, and is governed by considerations of substance rather than form: DS v R [2014] NSWCCA 267 at [39].

15. [85]

    ACE claimed there was an unjustified disparity between the sentence imposed upon it and that imposed upon Mr Al Sarray. I do not agree. The maximum penalty to which Mr Al Sarray was subject included a sentence of imprisonment, but he was instead fined two amounts of $135,000, incorporating a 25% discount for his plea, which is to say an undiscounted starting point of $180,000. The maximum fine to which he was exposed was $250,000. The conduct was the same. The physical and mental elements of Mr Al Sarray’s offending were attributed to ACE, but ACE was a company which was the contracting party and was entitled to the contract price and was obliged to pay fees including waste levies for disposal of the waste it had undertaken to remove, whereas Mr Al Sarray was an employee without a direct economic interest in the offending conduct. When regard is had to the fact that Mr Al Sarray suffered from PTSD and came from Iraq as a refugee, I fail to see how a justified sense of disparity could be made out.

16. [86]

    It is unnecessary to address the final submission concerning manifest excess, based on other sentences said to be comparable, but I shall have regard to those sentences when resentencing.

Re-exercising the sentencing discretion

1. [87]

   Section 144AA(2) was inserted into the Act on 1 October 2013. In Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott (2016) 221 LGERA 24; [2016] NSWLEC 167, the first prosecution for offences under the new section, Preston CJ of LEC observed at [65]:

2. [88]

   In EPA v Barnes [2006] NSWCCA 246, Kirby J, with the agreement of Mason P and Hoeben J said at [31]-[33]:

3. [89]

   I respectfully agree. General deterrence is very significant in offending of this type.

4. [90]

   Except insofar as matters were raised during argument, this Court should make the same findings as were made by his Honour. Thus the offending is to be regarded as being at the high end of the mid-range. No aggravating factors within the meaning of s 21A(2) are established. ACE is entitled to the benefit of an absence of substantial injury, emotional harm, loss or damage, although that factor carries little weight in offending of this nature. ACE also has the benefit of no prior convictions, an unlikelihood of reoffending, genuine contrition and remorse.

5. [91]

   ACE is to be sentenced on the basis that its offending constituted a single course of conduct. However, as noted above, if and to the extent that it was submitted that that characterisation precluded a fine greater than the maximum available for a single offence, I reject the submission. Even accepting that ACE “was truly engaged upon one multi-faceted course of criminal conduct”, to use Gleeson CJ’s description in Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [5], the separate offending in relation to two separate development sites, and the further offending in an attempt to allay the site auditor’s suspicions would not appropriately be comprehended by a sentence which was capped at the maximum for a single offence. Nonetheless, while the sentence I propose is greater than the maximum for a single offence, it is substantially less than the maximum for the four offences to which ACE pleaded guilty.

6. [92]

   ACE is entitled to a benefit reflecting the utilitarian value of its guilty pleas, albeit after there had been an eight day trial. That was assessed, perhaps generously, by the primary judge at 10% applicable to all four charges, and I shall proceed on the same basis. However, the primary judge also took into account, as a mitigating factor, the assistance provided by ACE in agreeing to facts upon which it was to be sentenced, stating at [131]-[132] as follows:

7. [93]

   Save for the reference to the agreed statement of facts being “extensive” there is no evaluation of the extent to which the agreement reduced the areas in contest between ACE and the EPA.

8. [94]

   Section 21A(3)(m) provides that a mitigating factor “to be taken account in determining the appropriate sentence for an offence” is “assistance by the offender to law enforcement authorities (as provided by section 23)”. The bracketed words shed light on this factor’s scope. Section 23(2) identifies mandatory considerations to be taken into account when evaluating assistance provided to law enforcement authorities, including the “significance and usefulness of the offender’s assistance”, the “truthfulness, completeness and reliability of any information or evidence provided by the offender” and “the nature and extent of the offender’s assistance or promised assistance”. This speaks to the familiar sort of assistance to law enforcement authorities by implicating accomplices, giving evidence as a Crown witness, or disclosing guilt which is otherwise unknown, as considered in R v Ellis (1986) 6 NSWLR 603. It is quite distinct from assistance to a prosecutor for the purposes of sentencing.

9. [95]

   That accords with what was said in R v David Comber [2012] NSWSC 1502, when dealing with a submission that participating in a recorded interview should count as assistance for the purpose of s 21A(3)(m). Bellew J said at [80]-[81]:

10. [96]

    True it is that “assistance … to law enforcement authorities” cannot be exhaustively catalogued: R v XX [2017] NSWCCA 9; 266 A Crim R 132, where Beech-Jones J stated at [32] that “assistance” for this purpose was not read narrowly. There are very many decisions of the Land and Environment Court which have treated agreement to a statement of facts as “assistance” within the meaning of s 21A(3)(m) and s 23, although it may be doubted whether taking that course appreciably added to matters otherwise incorporated into the sentencing process under the heads of remorse and the utilitarian benefit. But I respectfully disagree that participation in an agreed statement of facts will ordinarily fall within s 21A(3)(m).

11. [97]

    This point was squarely put to counsel in the hearing as follows:

12. [98]

    There may be exceptional cases where an offender’s participation in a statement of agreed facts nonetheless amounts to assistance for the purposes of s 21A(3)(m), because of admissions which materially alter the prosecutor’s understanding of the nature of the offending. For example, if ACE had agreed to statements identifying where the thousands of tonnes of ACM had in fact been disposed, or had identified the amount of profit it had made from the offending conduct, then the position might be different. (To be clear, I am not to be understood as implying that ACE was under any duty to do so; to the contrary, it was entitled to let the EPA prove its case beyond reasonable doubt.) Although the statement of agreed facts is quite long, it contains nothing which goes much beyond the documentary evidence concerning the actual fraud (essentially, readily proven emails which were simplistic forgeries) and insofar as the agreed facts extend to acknowledgements of knowledge that the documents were false, they go no further than the guilty pleas.

13. [99]

    The course taken by primary judge may lead to double counting. Participating in an agreed statement of facts is inherently linked to a “plea of guilty by the offender”, a form of utilitarian assistance that is discretely rewarded, regard to which is required by s 21A(3)(k). That point was made in the hearing:

14. [100]

    This point was exposed in Preston CJ of LEC’s reasons in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 at [219]:

15. [101]

    Participating in an agreed statement of facts may also contribute to a finding of remorse, regard to which is required by s 21A(3)(i), especially in light of the fact that this factor may only be made out if there has been an acknowledgement of any injury loss or damage or if reparations have been made.

16. [102]

    The potential for overlap is especially acute in the present case, where ACE was sentenced on the basis of a 10% discount for its plea made after an eight day hearing at which the entirety of the evidence was adduced and a further unquantified benefit for assistance.

17. [103]

    For those reasons, there is no good reason for ACE’s adherence to a statement of agreed facts to amount to a finding of assistance. Accordingly, ACE is not entitled to the benefit of a further mitigating factor pursuant to s 21A(3)(m) by reason of its adherence to the statement of agreed facts.

18. [104]

    I turn to decisions to which the parties drew this Court’s attention. In Environment Protection Authority v Afram [2022] NSWLEC 38, there were three offences contrary to s 144AA(1) and a single offence of land pollution based on the illegal dumping of asbestos contaminated waste. For the three offences contrary to s 144AA(1), fines of $67,500, $30,000 and $15,000 were imposed, while the illegal dumping offence attracted a fine of $127,500. Those fines incorporated a discount of 25% for the offender’s plea. Other aggravating circumstances included that Mr Afram had a prior fraud conviction, the offending was planned and deliberate and resulted in substantial financial gain for the company of which he was a director, and there was actual harm to the environment. Aside from the plea, there were no other mitigating circumstances. Pain J found the s 144A(1) offending to be “in the low end of high objective seriousness” at [96]. The differential fines represented different numbers of false weighbridge dockets (199 in the case of the first offence, 138 in relation to the second and 47 in relation to the third). The maximum penalty at the time of the offending was $120,000.

19. [105]

    In Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) (2020) 247 LGERA 23; [2020] NSWLEC 166, Pain J imposed fines on the corporate defendant totalling $450,000 for two breaches of s 144AA(2). The company did not appear at the sentencing proceedings. The individual offender, Mr Mouawad, was sentenced to a term of imprisonment for 12 months, but subsequently determined that it was to be served by way of an intensive correction order incorporating an obligation to perform 250 hours of community service: Environment Protection Authority v Mouawad (No 3) [2021] NSWLEC 16. The offending involved one forged spreadsheet purporting to document 83 truckloads of ACM, and 29 forged waste disposal documents. Mr Mouawad had prior convictions for unlawfully transporting waste, and for obtaining a financial advantage by deception, had engaged in a calculated planned deception (including purchasing a thermal printer to create the false documents), and entered a guilty plea very late, and subsequently sought leave, without success, to withdraw his plea. Her Honour concluded that there was potential for harm to the environment, but since the location of most of the asbestos-contaminated waste was not known, there was merely the potential for harm (at [22]-[25]).

20. [106]

    The company did not defend the proceedings. Indeed, it either was deregistered, or was in the process of being deregistered (see at [83]). The fines of $400,000 and $50,000 were imposed ex parte and do not reflect sentence imposed after argument. I give little weight to these fines as informing the sentencing discretion.

21. [107]

    In Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott (2016) 221 LGERA 24; [2016] NSWLEC 167, Mr Endacott had pleaded guilty to the three offences pursuant to s 144AA(2) of the POEO Act. Preston CJ of LEC regarded those offences as being at the lower end of objective seriousness, of low‑to‑medium objective seriousness, and of medium objective seriousness. There were early pleas of guilty; absence of prior convictions; good character; remorse for the offences and unlikelihood of reoffending, leading to his Honour concluding at [122] that there was no need for specific deterrence. 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 fines imposed on Mr Endacott were $72,000, $18,000 and $24,000, that upon his company was $24,000. The maximum penalty for an individual was $240,000. The offences involved much smaller numbers of falsified documents: 9 forged weighbridge documents, approximately twenty asbestos clearance certificates and a false asbestos clearance report.

22. [108]

    I turn to totality. The primary judge found that the three offences involving Mr Al Sarray’s fraudulent provision of information formed part of a single course of conduct, and was satisfied on the balance of probabilities that the fourth offence was carried out by Mr Al Sarray and was part of the same course of conduct: at [89]-[90]. His Honour regarded that finding as favourable to ACE, as is reflected by his application of the civil standard in respect of the fourth offence. I should proceed on the same basis.

23. [109]

    EPA v Barnes [2006] NSWCCA 246 at [43]-[50] contains an extensive analysis by Kirby J writing for this Court on the applicable principles, confirming that the principle of totality applied to fines. The principle was applied at [50]:

24. [110]

    In EPA v Ghossayn Group Pty Ltd [2023] NSWLEC 127 at [128], Preston CJ of LEC said:

25. [111]

    There is the potential for overlap when considering offending which is a “single course of conduct” and applying the principle of totality. As will be seen below, the third offence overlaps with the first, and properly warrants a discount for that reason. In a sense, whether that is an aspect of the offending being part of the same course of conduct, or through the application of totality does not greatly matter. Nonetheless, the principled approach, as applied by Kirby J and Preston CJ of LEC in the passages reproduced above, is to leave questions of totality to the end, and apply a final check of the aggregate against whether it is a just and appropriate punishment for the entire criminality. That is the course I shall follow.

26. [112]

    Although I shall proceed on the basis of the same favourable findings as made by his Honour, subject to the matters addressed above (unlikely to re-offend, absence of harm, but no separate assistance to the authorities), this Court is required to exercise the sentencing discretion afresh in accordance with Kentwell. I would approach the matter slightly differently from the approach taken by the primary judge. In substance, there was a simplistic defrauding of two developers which had engaged ACE to remove waste materials. The first and second charges were of the same nature, and should attract the same penalty. The third and lesser offence, committed ten days after the second, was part of the audit process for the Wolli Creek site, and was committed by sending documents to Mr Gerges at El Australia, but involved sending many of the same documents. There should be a reduction in the fine, reflecting the facts that the documents applied to the same site and had previously been sent. The fourth offence, which involved the creation of the Second Holt Run Group, was also sent to Mr Gerges, but this time involved the creation of a new document purporting to be from Besmaw recording 622 truckloads of waste from the Wolli Creek site. Thus, although there was a single course of conduct, the nature of the offending changed with the fourth offence. Rather than creating false documents in respect of separate amounts of excavated material, the fourth offence reflected a different form of fraud, created with the intent of satisfying the site auditor concerning the earlier fraudulent documents, and involving a much larger amount of waste.

27. [113]

    Those considerations lead me to follow the approach of the sentencing judge and apply the same fine to the first and second offences, but impose for the third offence a proportionally smaller fine (even allowing for the lesser penalty for the strict liability offence), and to impose a somewhat larger fine for the fourth offence, which was different in nature, later in time, and applied to a very large amount of waste. That slightly differentiated course remains consistent with the conclusion that all of the offending was at the “high end of the mid-range of objective seriousness”.

28. [114]

    I put to one side any financial benefit to ACE of the offending. The prosecution has proceeded on the basis that it is entirely unknown (a) what actually happened to the ACM waste taken by ACE from the Zetland and Wolli Creek sites, and (b) what fees (if any), were paid by ACE for its disposal. It may be assumed that the contract prices for which ACE and the developers agreed reflected an assessment of the fees to be paid for the removal and disposal of ACM, as opposed to other forms of waste, and hence it would follow that if the waste was not in fact disposed of by reference to its true character, substantially smaller fees would have been incurred. However, all this must be placed to one side for the purposes of sentencing. In making those observations, I am not to be taken to be implying any necessary failing on the part of the investigation and prosecution conducted by the EPA; the materials in this Court do not permit any meaningful views to be expressed in that respect, and it may be that it was practically impossible for the EPA to investigate those matters. If the EPA had alleged and established beyond reasonable doubt that ACE had made substantial gains from its contraventions of s 144AA, that would have led to substantially greater fines.

29. [115]

    I also put to one side the possibility of any harm to the environment. It is the combination of an absence of any proven financial gain, and an absence of any proven harm to the environment, together with ACE’s favourable subjective case, that results in fines for offending at the high end of the mid-range of objective seriousness being somewhat less than (in the case of the first, second and third offences) or approximately equal to (in the case of the fourth offence) half of the maximum.

30. [116]

    This Court is required to consider the capacity of ACE to pay the fines to be imposed: Fines Act 1996 (NSW), s 6. No complaint was made by ACE about any incapacity to pay the fines imposed by the primary judge, nor was it suggested that the company’s financial position had deteriorated subsequently. The fines I propose to be imposed by this Court are smaller.

31. [117]

    Bringing all those matters to bear, including ACE’s unlikelihood of re-offending as a result of the measures it has taken, its good corporate character, its genuine contrition and remorse, and incorporating a 10% deduction for ACE’s plea, I assess the appropriate fines at $216,000, $216,000, $90,000 and $252,000. To reiterate, the offending giving rise to the first and second offences was of substantially the same kind and involving approximately the same quantity of waste, but the falsified documents were sent to different recipients. The third was the offence contrary to s 144AA(1), and involved the same documents in respect of the same site. The fourth was different, and amounted to creating a new document on letterhead, involving no fewer than 622 truckloads of material, for the purpose of concealing the fraud and allaying the concerns of those charged with auditing the earlier disposal of waste. The scale of the offending dwarfs any of the comparable sentences, but it is also necessary to have regard to the favourable findings made by the primary judge. I have disregarded the Environment Legislation Amendment Act 2022 (NSW) (which increased the maximum penalties for corporations to $500,000 and $1,000,000 in the case of s 144AA(1) and (2) respectively), but were the same offending to recur, the appropriate fines would be substantially greater.

32. [118]

    I have considered the conduct as a whole, with a view to assessing whether as a matter of totality ACE should receive a reduction from those amounts. I fail to see why there should be any reduction from the amounts nominated above. The scale of the offending is very substantial, involving hundreds of truckloads and thousands of tonnes of waste. The period of the offending over almost eight months is also very substantial. The man involved, Mr Al Sarray, was not a junior employee receiving a kickback; instead he was the second most senior man in the company. And in an attempt to prevent detection, ACE continued to produce false documents. I am satisfied that an aggregate fine of $774,000 is a just and appropriate punishment reflective of ACE’s total criminality.

Orders

1. [119]

   The appeal must be allowed, the existing fines quashed and fines in accordance with the foregoing imposed. It will be necessary to make corrections to the form of the publication to reflect this Court’s decision. The orders I propose seek to achieve that. The parties have not been heard as to that, and if there is any difficulty with those adjustments, the orders I propose will permit them to apply in that respect and in relation to any other ancillary orders (for example, concerning money paid into Court). The existing stay must be discharged, but ACE should have a further 28 days to pay the balance of the fines and cause the notice to be published, and the orders I propose will entitle it to do so. It was common ground that no order for costs in this Court should be made.

2. [120]

   I propose the following orders in each appeal (357465, 357466, 357467 and 357468 of 2020):

3. [121]

   GARLING J: I agree with the orders proposed by Leeming JA, and with his Honour’s reasons.

4. [122]

   CAVANAGH J: I agree with Leeming JA.