Environment Protection Authority v Grafil Pty Limited Environment Protection Authority v Mackenzie

GLEESON JA: I agree with Bellew J.

BELLEW J:

Section 144(1) of the Protection of the Environment Operations Act 1997 (NSW) (the POEO Act) is in the following terms:

The following additional particulars of the offence alleged against the first respondent were provided:

The appellant commenced separate proceedings against Robert Bruce Mackenzie (the second respondent) alleging that he committed an offence contrary to s 144(1) of the POEO Act (in the same terms as that alleged against the first respondent) by operation of the special executive liability provisions in s 169(1) which are in the following terms:

The following additional particulars of the offence alleged against the second respondent were provided:

Following the commencement of the proceedings, both the first and second respondents entered pleas of not guilty. After the determination of various interlocutory applications, a trial took place in the Court below over 20 hearing days in February and March 2018. At the conclusion of the trial, without entering final orders, the sentencing judge found each of the first and second respondents not guilty. [2] In reaching that determination, her Honour found (inter alia) that the appellant had the onus of proving, beyond reasonable doubt, that the first respondent did not have lawful authority to use Lot 8 as a waste facility (that being the third element of the offence alleged against it).

Following that determination, the appellant stated a case to this Court which comprised 15 questions, one of which raised an issue stemming from her Honour’s determination of the appellant’s onus of proof. This Court answered that question, and the majority of the other questions which were stated, in favour of the appellant, and remitted the proceedings to the Court below for re-determination in accordance with its judgment. [3] An application by the first and second respondents for special leave to appeal to the High Court of Australia was refused. [4]

When the proceedings came before the sentencing judge on remittal from this Court, neither the first nor the second respondent entered a plea, however, consistently with the concessions made by the respondents, the sentencing judge found each of the first and second respondents guilty.5 No agreement was reached between the parties in relation to the facts of the offending and a sentencing hearing then proceeded for a further six days in August 2021, following which her Honour reserved her decision.

In a judgment delivered on 5 November 2021 [5] (the sentence judgment) her Honour convicted the first respondent. Without imposing any fine, her Honour ordered the first respondent to pay:

Her Honour dismissed the charge against the second respondent pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) without recording a conviction. [7]

By notices filed on 3 December 2021, the appellant has appealed against her Honour’s orders in respect of each of the respondents. The grounds of appeal are identical in each case, and assert that her Honour erred in:

Each appeal is brought pursuant to s 5D of the Criminal Appeal Act 1912 (NSW). In R v Lau [8] I summarised the principles governing such appeals to this Court as follows:

The first step which must be taken by this Court in considering the grounds of appeal is to set out the facts of the offending as found by the sentencing judge. The sentence judgment does not include a specific and structured articulation of the factual findings which were made for the purposes of sentence. Further, in some important respects, submissions advanced in the sentence proceedings have simply been replicated in the sentence judgment, absent any clear indication as to whether they were actually accepted, and factual findings made in accordance with them. Other references to factual findings apparently made when the matter was first before the sentencing judge (i.e. prior to the proceedings before this Court) are interspersed through the sentence judgment, again absent any clear indication as to whether such findings were adhered to and taken into account. All of these matters create a difficulty for this Court in determining what facts were found for the purposes of sentence.

In these circumstances, and in response to this Court’s request for assistance, the parties provided a joint memorandum setting out (save for some discreet matters which are of limited significance) an agreed position as to the factual findings which were made by the sentencing judge, on the basis of which this Court was asked to proceed. The summary of facts which follows is based principally upon that agreed position.

Schedule 1 of the POEO Act makes provision for “scheduled activities”. Clause 1 of Part 1 of that Schedule is in the following terms:

Waste disposal and waste storage are declared to be “scheduled activities” by clauses 39 and 42 respectively of Schedule 1.

Section 48 of the POEO Act imposes licencing requirements for scheduled activities, and creates an offence against the occupier of any premises at which a scheduled activity is carried out in the absence of the necessary licence.

A system of exemptions from the licencing requirements imposed by the POEO Act operates in respect of scheduled activities. Specifically, that system operates to exempt persons from (inter alia) the obligation to hold an Environmental Protection Licence (EPL) for the storage of waste. [9] In that regard, cl 51 of the Protection of the Environment Operations (Waste) Regulation 2005 (NSW) is in (inter alia) the following terms:

Exemptions are issued by the appellant from time to time in order to meet the objectives of the Waste Avoidance and Resource Recovery Act 2001 (NSW) (the WARR Act). Such objectives are aimed at facilitating the re-use and re-cycling of waste material, and diverting it away from landfill. [10] Producers (principally the operators of skip bin facilities) use the exemption system to supply large volumes of waste to consumers free of charge, in circumstances where:

The sentencing judge identified two relevant exemptions which were in force during the period of the respondents’ offending, namely: [12]

Bearing in mind the provisions of s 48 of, and cls 39 and 42 of Schedule 1 to, the POEO Act, cl 5 of the ENM exemption is in the following terms:

Clause 6 of the ENM exemption includes the following relevant definitions:

There was no dispute before the sentencing judge that the first respondent was a “consumer” as defined in cl 6, nor was there any dispute that the waste which was the subject of the charge against each respondent fell within the definition of “Excavated Natural Material” (ENM).

Clause 9 of the ENM exemption included the following provisions:

Clause 5 of the CPRF exemption was in similar terms to cl 5 of the ENM exemption. It operated to exempt a consumer (which was defined in the same terms as in cl 6 of the ENM exemption and thus included the first respondent) from the licencing requirements prescribed by s 48 of the POEO Act in relation to the scheduled activities of waste disposal and waste storage, in respect of “continuous process recovered fines” (recovered fines). The term “recovered fines” was defined in cl 6 of the CPRF exemption to mean:

Deriving the benefit of the CPRF exemption was conditional upon compliance, by the consumer, with cls 7, 9, 10 and 11. Clause 7 was in (inter alia) the following terms:

Clause 9 of the CPRF exemption included the following:

The first respondent traded under the name “Macka’s Sand & Soil Supplies” and operated its business from a parcel of land which included Lot 8. It was the holder of an EPL permitting it to carry out “land-based extractive activity” and “crushing, grinding or separating works”. [14]

On 20 September 2009, pursuant to Part 3A of the Environmental Planning and Assessment Act 1979 (NSW), the first respondent was granted an approval (the Part 3A approval) to construct an access road to facilitate the transport of sand from a nominated extraction point to a nearby processing facility. [15]

The access road had not been constructed at the time of the offending. [16] The waste which was deposited onto Lot 8 and which was the subject of the charges was suitable for use as road base, and thus suitable (in the belief of the second respondent [17] ) for the construction of the access road, subject to it not containing asbestos waste which prevented its re-use or recycling. [18] Construction of the access road required approximately 34,000 tonnes of road base. [19]

The Part 3A approval was modified on 30 September 2013 to provide for an alternate proposed access road. It was further modified on 15 March 2016 to allow a diversion of the proposed access road. [20] Those modifications to the Part 3A approval were therefore made after the offending occurred. The first respondent intended to use the waste which was deposited on to Lot 8 to construct the access road pursuant to the modified Part 3A approval. [21] But for the prosecutions brought by the appellant, the waste would have been used for that purpose, such that, once deposited, it would not have remained permanently on Lot 8. [22]

The receipt and stockpiling of the waste by the first respondent constituted the scheduled activities of waste disposal and waste storage [23] and took place between about 29 October 2012 and 15 May 2013. [24] During the entirety of that period, Lot 8 was occupied by the first respondent. [25] Between 24,000 and 44,000 tonnes of waste, in the form of both recovered fines and ENM, were received and stockpiled on Lot 8. [26] The waste included dark brown soil mixed with bricks, concrete, glass, plastic, wood, timber and tiles. [27] The purpose of receiving and stockpiling the waste was to use it in the construction of the access road once that was permitted by the modified Part 3A approval. [28] Ultimately, the appellant intervened and prevented the waste being used for that purpose. As a result, the first respondent was put to the cost of acquiring other material which was suitable for construction of the access road, at a cost of $200,000.00. [29]

The first respondent did not have an EPL in relation to the scheduled activities of waste disposal and waste storage. [30] Accordingly, it could only carry out those activities if it could avail itself of an exemption. Both the ENM exemption [31] and the CPRF exemption [32] required a consumer in the position of the first respondent to maintain records of the quantity of material it had received, and the name and address of the supplier, for a period of 3 years. No such records were kept by either the first respondent or the second respondent.

Both the ENM and CPRF exemptions also required sampling and testing for certain chemicals and particle sizes. The processors were required to certify the consumers that the processed material was recovered fines or excavated natural material which met the testing requirements. [33] Asbestos was present in the waste. [34] In that regard, each of the processors who brought the waste on to Lot 8:

In assessing the objective seriousness of the offending, the sentencing judge expressly recognised the necessity for any sentence imposed to reflect (inter alia) “all the relevant objective circumstances of the offence”. [36] In that regard, her Honour found (inter alia) that:

Whilst these findings addressed the obligations under the ENM and the CPRF exemptions, they did not directly address the gravamen of the actual offending, which was the use of Lot 8 as a waste facility without authority.

The sentencing judge found that the failure of a consumer to meet obligations imposed by the system of exemptions had “substantial legal and practical ramifications”. [42] Those ramifications included what her Honour described as “the practical difficulty (impossibility) of complying with the consumer obligations under the CPRF exemption, particularly in relation to the sampling and testing obligations of the processors”. [43] In addressing the obligations of a consumer under the system of exemptions, her Honour found that record keeping requirements which were imposed by each of the ENM and CPRF exemptions, with which the respondents did not comply, were “onerous in the sense that the legal consequence of not complying with this condition in full is that they do not have the benefit of an exemption, with potentially grave legal and financial consequences”. [44] Her Honour went on to say: [45]

Again, these considerations did not specifically address the circumstances of the actual offending, namely the use of Lot 8 as a waste facility without lawful authority. Moreover, the fact (if it be the fact) that the appellant could have ascertained the relevant information from the processors was largely, if not entirely, irrelevant to any issue on sentence.

The sentencing judge went on to observe that a “fundamental consideration for environmental offences is the extent to which the defendant’s conduct offends against the legislative objectives expressed in the offence”. [46] Having recounted the submissions of the parties in relation to this issue, and having made reference to the previous judgment of this Court, her Honour concluded: [47]

Although not relied upon by the appellant as a patent error, the conclusion of the sentencing judge that the respondents were guilty because “they did not keep the records required …” was not a correct classification of the offending. As I have pointed out, the respondents were guilty of the offending because Lot 8 was used as a waste facility without authority. The respondents were not charged with failing to keep records.

The sentencing judge then turned to the state of mind of each of the respondents, and said: [48]

Her Honour went on to say: [49]

The sentencing judge concluded [50] that the fact that the first respondent had been carrying on a commercial business at the time of the offending, and the fact that the offending occurred in the course of operating that business, did not mean that the offending was committed for financial gain. Whilst accepting that stockpiling of the waste had saved both of the respondents significant cost, [51] her Honour concluded: [52]

The sentencing judge recognised that the maximum penalty for the offending was relevant to determining the objective seriousness of the offending, and that it reflected the Parliament’s public expression of such seriousness. [53] In that regard, her Honour then proceeded to cite the submissions advanced on behalf of the respondents in this respect, [54] namely that s 144(1) of the POEO:

Although it is not entirely clear whether her Honour actually accepted those submissions, I have proceeded on the assumption that she did so. That being the case, her Honour’s apparent acceptance of a submission that the maximum penalty provided virtually no assistance in determining the appropriate penalty did not sit entirely comfortably with her earlier observation that the maximum penalty was relevant to determining the question of objective seriousness.

Her Honour then turned to s 241(1) of the POEO Act which sets out a number of matters to be considered in imposing a penalty for an offence contrary to s 144(1). In doing so, her Honour said: [55]

Again it is not entirely clear whether her Honour accepted the submissions to which she referred, but I have inferred that she did so. Assuming that to be the case, I again emphasise that the respondents were not guilty of an offence contrary to s 144(1) of the POEO Act because they failed to keep records or failed to have a modified Part 3A approval in place. They were guilty because they used land as a waste facility without lawful authority.

In further addressing the provisions of s 241(1) of the POEO Act, the sentencing judge found that:

As to the presence of asbestos in the waste, the sentencing judge found that there was no obligation for consumers to view test results under the CPRF exemption, and that there was no requirement for asbestos testing under either the CPRF exemption or the ENM exemption. [62] Her Honour found that the management of asbestos in the context of the system of exemptions was highly problematic because providing material satisfied the testing regime specified in Conditions 10, 11, 12 of the CPRF exemption, [63] unwitting consumers may have no knowledge that they had received asbestos.

The ultimate conclusion of the sentencing judge as to the objective seriousness of the offending was expressed as follows: [64]

The sentencing judge found [65] that there was no need for any penalty imposed on the first respondent to reflect a need for specific deterrence. In light of the conclusions which were reached in respect of the second respondent’s subjective case (which are set out below), it would appear that her Honour also concluded that specific deterrence had no role to play in his case, although no such finding was expressly stated.

In relation to the issue of general deterrence, the sentencing judge said the following: [66]

The principal findings of the sentencing judge in terms of the subjective circumstances of the first respondent were as follows:

The principal findings of the sentencing judge in terms of the subjective circumstances of the second respondent were as follows:

Before turning to the grounds of appeal, I consider it necessary to address a discrete aspect of the sentence judgment, namely the assessment, by the sentencing judge, of the appellant’s investigation into the respondents’ offending. Given that the appellant did not rely upon this aspect of her Honour’s judgment as constituting patent error, I should make it clear that I have not taken it into account in reaching my conclusions as to the various grounds of appeal. That said, it remains the case that part of the role of this Court is to provide guidance to sentencing judges, and it is in that context that I address the matter.

In the course of the sentencing judgment, her Honour was repeatedly critical of the appellant’s conduct of the investigation into the offending. To begin with, her Honour said: [79]

Her Honour then said: [80]

Once again her Honour did not expressly state whether she accepted the various submissions to which she referred in those passages. However, in light of what followed I have inferred that she did so.

Later, in the context of addressing a submission advanced on behalf of the second respondent that the charge against him should be dismissed pursuant to s 10 of the Sentencing Act, her Honour said: [81]

Finally, her Honour said: [82]

The essence of the consistent, and indeed strident, criticism of the appellant’s conduct of the investigation by the sentencing judge is encapsulated in that paragraph of the sentence judgment extracted immediately above. In particular, it is apparent from the final sentence of that paragraph that her Honour attributed some degree of responsibility for the commission of the offences to the appellant. That responsibility was apparently said to stem from what her Honour obviously viewed as an investigation which was inappropriately conducted in a number of respects, and one in which the appellant had encouraged, if not facilitated, the commission of the offences by the respondents. It is not clear from the sentence judgment how, having reached such a conclusion, her Honour took it into account on sentence. However, in the circumstances I am left to conclude that her Honour regarded the appellant’s conduct of the investigation as a mitigating factor which was to be taken into account in favour of the respondents.

In my view, for the reasons that follow, her Honour’s criticisms of the investigation were largely, if not wholly, unwarranted, and were, in some respects, erroneous. Such criticisms provided no support whatsoever for a conclusion that the appellant’s conduct of the investigation was a mitigating factor.

There have been instances in which appellate Courts have expressed disapproval of the actions of investigative authorities where such actions have amounted to inciting or encouraging criminal offending. In such cases, the view has been expressed that offenders who are so incited or encouraged may have some legitimate expectation of leniency. For example, in R v Birtles [83] Lord Chief Justice Parker said the following:

However, as was pointed out by the Full Court of the Supreme Court of South Australia in R v Mandica & Spakianos, [84] such a ground for leniency is not made out where the investigative conduct in question amounts to nothing more than detecting the offence, and obtaining evidence against an offender who is only too ready to commit it. It is important to distinguish between that type of investigative conduct, and the type referred to in Birtles, namely investigative conduct by which the person under investigation is encouraged by the relevant authority to commit an offence which he or she would not otherwise have committed. In the present case, the conduct of the appellant fell into the former category, not the latter. Contrary to the conclusions reached by the sentencing judge, there is nothing whatsoever to suggest that the appellant’s conduct in the course of its investigation encouraged either of the respondents to engage in the offending, nor is there anything to suggest that the appellant’s conduct of its investigation had facilitated the offending.

Further, the conclusion of the sentencing judge that any offending would have ceased had the appellant “knocked on the respondents’ front door” was reached with the benefit of hindsight, in the sense that it was obviously based upon the acceptance of the evidence of the second respondent. [85] There is nothing to support the proposition that the appellant was somehow aware of that position when the investigation was on foot. To use that evidence to criticise the appellant, in circumstances where the appellant was obviously unaware of it at the material time, was, in my view, unfair.

In the course of reaching her conclusions regarding the appellant’s conduct of the investigation, the sentencing judge cited the decision of this Court in Taouk v R [86] and expressed the view that the circumstances of that case reflected “an entirely different situation” to those of the present case. The basis of that distinction was said to be that the circumstances in Taouk involved “serious criminal activity an element of which involved mens rea”. Two observations should be made in respect of that aspect of the sentence judgment.

First, the fact that the offending in the present case did not require proof of mens rea on the part of either respondent was, in my view, of limited significance. The absence of a requirement to prove mens rea did not support a conclusion that the offending was not serious, nor did it support a conclusion that the investigation was conducted in an inappropriate way. As the sentencing judge expressly recognised, the maximum penalty prescribed for the offending reflects the seriousness with which the Parliament views it.

Secondly, even accepting that the facts in Taouk are distinguishable on the basis to which her Honour referred, the greater significance of the Court’s decision in that case lies in the observations of Badgery-Parker J who, after reviewing a number of authorities, said the following: [87]

The appellant did not facilitate the respondents’ offending. What the appellant did, and what it was entitled to do, was investigate such offending which was, by its very nature, serious. Moreover, as Badgery-Parker J pointed out, the sentencing process is ultimately concerned with assessing the level of culpability of an offender who, irrespective of what investigative procedures may or may not have been adopted, embarks on criminal conduct.

Finally, her Honour was critical of the fact that the appellant acted in a clandestine fashion. The fact that serious offending is investigated by the use of clandestine methodology, so as not to alert the offender, is hardly surprising. It was not a matter which warranted criticism of the appellant.

It follows from all of these considerations that any suggestion that in investigating the offending, the appellant somehow acted improperly, and/or acted beyond the proper boundaries of its role, should be firmly rejected. No aspect of the appellant’s investigation diminished the culpability of either of the respondents, or otherwise mitigated their offending.

The reasons of the sentencing judge which bear upon this ground of appeal have been set out above. [88]

Senior counsel for the appellant advanced a number of submissions in support of this ground. To begin with, it was submitted that in finding that the respondents’ breaches were “not substantial”, her Honour had characterised those breaches as amounting principally to a failure to keep proper records, accompanied by a failure to await the outcome of the proposed modification to the Part 3A approval. It was submitted that such characterisations were erroneous, and had distracted the sentencing judge from properly assessing the gravamen of the offending. Senior counsel submitted that the correct categorisation of the offending was the stockpiling, on Lot 8, of 24,000 to 44,000 tonnes of waste containing asbestos without:

It was submitted that in applying a principal focus to the respondents’ failure to keep records so as to comply with the relevant exemptions, her Honour had failed to properly recognise the gravamen of the offending, namely the use of Lot 8 as a waste facility without lawful authority. Senior counsel submitted that an accurate assessment of the gravamen of the offending required the sentencing judge to recognise that it involved:

It was submitted that in doing so, both respondents had engaged in “cutting corners” in order to save money.

Senior counsel for the appellant further submitted that in criticising aspects of the regulatory scheme, her Honour had erred by failing in her duty to uphold and apply the law. It was submitted that regardless of any shortcomings within the scheme, it remained the responsibility of the first respondent, as a consumer, to understand and comply with its obligations. It was submitted that in focussing upon what she regarded as the “incoherent” nature of the scheme, her Honour had erred by adopting an incorrect and unjustified approach which had, in turn, adversely affected her assessment of the respondents’ moral culpability.

Senior counsel further submitted that her Honour’s finding that the first respondent was not aware that temporary stockpiling of material constituted disposal of waste on land ran contrary to the principle that ignorance of the law is no excuse. It was submitted that in this particular respect, the reasons of the sentencing judge reflected the application of an incorrect principle, and an incorrect approach to sentencing, both of which were directly relevant to her Honour’s finding that the respondents were morally blameless.

Finally, it was emphasised that the offending in each case centred upon the use of the land as a waste facility without lawful authority which had resulted in waste containing asbestos being disposed of, and stored, on Lot 8. It was submitted that this constituted an aspect of the harm caused, or likely to be caused, to the environment, which her Honour had failed to recognise and which had resulted in her Honour acting upon a wrong principle in a way which directly affected her assessment of the respondents’ moral culpability. It was submitted that this error was compounded by a further error in finding that the absence of environmental harm was a mitigating factor. It was submitted that it was a well-established principle of sentencing that the absence of a factor which would otherwise elevate the seriousness of offending was not to be regarded as a mitigating factor and that this amounted to a further error.

The primary submission of senior counsel for the respondents was that the appellant had failed to identify any error of principle on the part of the sentencing judge, or any finding made by her Honour that was not reasonably open. It was submitted that properly understood, the submissions advanced in support of this ground amounted to little more than the fact that the appellant had assessed the gravamen of the offending in a manner different to that of the sentencing judge. It was submitted that such a complaint was incapable of attracting appellate intervention.

Senior counsel for the respondents further submitted that the appellant’s complaint that the sentencing judge had placed undue emphasis on the nature of the scheme of exemptions amounted to no more than an expression of the appellant’s disagreement with the sentencing judge’s identification of the pitfalls of the scheme. It was submitted that the appellant had failed to demonstrate how any finding made by the sentencing judge concerning the regulatory scheme was factually or legally incorrect, or how it reflected in any form of appealable error.

As to the appellant’s complaint that the sentencing judge had applied an incorrect legal principle by relying on the “ignorance” of the respondents, it was submitted that there was no such error. Senior counsel submitted that whilst, a matter of principle, ignorance did not provide the respondents with a defence to the charge in either case, such ignorance remained a relevant matter to be taken into account in mitigation.

Finally, senior counsel submitted that the presence of asbestos in the material had not been brought about by the conduct of the respondents, and that the proposition that the sentencing judge had erred by treating the absence of that factor as a matter in mitigation was misconceived. It was submitted that such a proposition was directly contrary to s 21A(3)(a) of the Sentencing Act which expressly identifies, as a mitigating factor, the fact that the injury, loss or damage caused by the offence is not substantial, and mandates consideration of that factor. It was submitted that plainly, the absence of environmental harm fell within the ambit of matters which were required to be considered under that section.

In the context of imposing a sentence for criminal offending, the term “moral culpability” refers to an offender’s general blameworthiness. In Paterson v R [89] the following was in said in respect of the notion of moral culpability, and its relationship to the objective seriousness of an offence:

Some of the submissions advanced on behalf of the appellant in support of this ground had a tendency to stray from its terms. For the purposes of considering this ground, and in determining whether error has been established, it is necessary to focus upon the finding(s) of the sentencing judge, and the factors which were relied upon to support those findings.

The principal finding of the sentencing judge relative to this ground was that there was no failure in moral culpability of either respondent. [90] Her Honour cited a number of factors in support of that finding.

The first of those factors was what the sentencing judge referred to as “the complexity of the statutory waste scheme under the POEO Act and Waste Regulation for consumers”. [91] How this was said to bear upon the issue of moral culpability, and how it supported a conclusion that there was no failure in moral culpability on the part of either of the respondents, was not explained.

Moreover, I am unable to accept that the relevant scheme was particularly complex. It involved a number of fundamental, and easily understood, concepts, including that:

Such a system does not, in my view, carry with it the attendant complexity to which her Honour referred. Indeed, as her Honour herself had earlier pointed out, the record keeping requirement imposed by the relevant exemptions was “readily understandable”. [92] There is a degree of displacement between that conclusion, and a conclusion that the scheme was complex.

A further matter on which the sentencing judge relied to support her conclusion as to moral culpability was that the “legal and financial risks to consumers of the statutory scheme concerning the operations of the exemptions are substantial”. [93] Even if it is accepted that this was the case, her Honour did not explain how that circumstance bore on the issue of moral culpability, or, more specifically, how it operated to eliminate any degree of moral culpability on the part of the respondents altogether.

In support of her conclusion as to moral culpability, the sentencing judge also relied upon her conclusion that it was “reasonable to describe the breaches giving rise to the offences as not substantial in the context of the regulatory scheme, namely the failure to keep records in Condition 9.1 of the CPRF exemption and Condition. 9.2 of the ENM exemption”. [94] For the reasons I have previously pointed out, the respondents were not charged with breaching a requirement to keep records. They were charged with using land as a waste facility without authority. That absence of authority came about because the first respondent did not have a licence for that purpose. The failure to keep records meant that the first respondent could not rely upon either of the relevant exemptions. In that (very tangential) sense, the failure of the respondents to keep records was relevant to the offending. However, irrespective of how it is viewed, that failure did not constitute the offending. Her Honour’s effective conclusion that it did was an error. It is clear that her Honour took that erroneous conclusion into account to support her finding as to moral culpability.

In my view, that error lead to a further error, namely the conclusion that the offending was “not substantial”, which was similarly relied upon by her Honour to support the finding as to moral culpability. I accept that conclusions as to the objective seriousness of offending are regarded as conclusions which are quintessentially for a sentencing judge, and with which this Court will be reluctant to interfere. [95] The ultimate question will be whether or not the finding was open [96] and a lack of clarity in the findings of a sentencing judge may require this Court to make its own evaluation. [97] Leaving aside the identified errors which lead to it, the conclusion of the sentencing judge that the offending was not substantial is entirely at odds with the objective fact that it involved (inter alia) the use of the land as a waste facility over a period of almost 7 months, in the course of which between 24,000 and 44,000 tonnes of waste, in the form of both recovered fines and ENM, were deposited onto Lot 8, in circumstances where the entirety of those activities were carried out without any environmental or regulatory control of any kind.

The sentencing judge also found that there was no failure in the respondents’ moral culpability because “the failure to wait for approval for the modified access road under the Pt 3A approval which was obtained after the charge period (was) also fairly described as not a substantial breach”. How that issue was said to reduce the respondents’ moral culpability was not explained. It is necessary to emphasise that the respondents were not charged with a breach of anything to do with the Part 3A approval.

As I have pointed out, moral culpability is concerned with an offender’s moral blameworthiness for an offence. The sentencing judge failed to explain how those matters upon which she relied supported her finding that there was no failure in moral culpability on the part of either respondent. Some of the matters upon which her Honour relied were, for the reasons I have expressed, erroneous. It follows that I am satisfied that ground 1 is made out.

Error having been established, it is necessary for the Court to re-sentence the respondents, subject to the residual discretion not to intervene which I have considered below. It nevertheless remains appropriate that ground 2 be considered, given that it was a subject of full argument. As a re-sentencing exercise will be required, it is both unnecessary and undesirable to consider ground 3 which asserts that the sentence in each case was manifestly inadequate.

The findings of the sentencing judge relevant to this ground of appeal are set out above. [98] In reaching those findings, her Honour approached the issue of general deterrence in what might be described as a “global” way by simply referring to the “the [respondents]” without really distinguishing between them. For the reasons developed more fully below, that approach assumes some significance in the case of the second respondent.

Senior counsel for the appellant submitted that the conclusions of the sentencing judge as to the relevance of general deterrence reflected a series of errors.

First, it was submitted that her Honour had erred by failing to properly apply the relevant principles regarding general deterrence, and/or give proper effect to them. In this regard, senior counsel for the appellants emphasised the characteristics of the offending to which I have already referred and which, it was submitted, supported a conclusion that the objective seriousness of the offending was high.

Secondly, it was submitted that by storing the waste without a licence to do so, the respondents had acted in a way which undermined the statutory scheme, and that the sentencing judge had failed to take this into account when considering the issue of general deterrence.

Thirdly, it was submitted that the sentencing judge had taken into account an irrelevant consideration by making reference to recovered fines being deposited by other people in the same local municipality, in the absence of any action having been taken by the appellant.

Senior counsel for the respondents submitted that on a fair reading of the sentence judgment, the sentencing judge had not found that general deterrence had no role to play. It was submitted that when properly read, her Honour’s conclusions reflected the fact that, having acknowledged the role to be played by general deterrence in the sentencing process, her Honour had expressly (and properly) accepted a submission that a sentence which had regard to any significant element of general deterrence would result in the respondents shouldering an unfair burden of community education.

It was further submitted that her Honour had also properly accepted the submission that the case did not “present comfortably” as an appropriate vehicle for general deterrence because of the low moral culpability of the respondents, and what her Honour considered were the shortcomings in the regulatory scheme which had exposed them to liability. It was submitted that this did not equate to a finding that no component of the penalty imposed on the first respondent reflected general deterrence.

It was submitted that in all the circumstances, general deterrence was not ignored and that no error was established.

It is appropriate to commence a consideration of this ground by setting out a number of fundamental principles.

To begin with, s 3A of the Sentencing Act states the purposes of sentencing. One of those stated purposes is: [99]

That object reflects the position at common law as articulated by Street CJ in R v Rushby: [100]

Consistent with these observations, the following was said in Veen v The Queen (No.2): [101]

In R v Miria [102] an issue arose from a comment made by a sentencing judge to the effect that the “general deterrent effect of any sentence is debatable”. Grove J said the following: [103]

It has been expressly recognised that principles of general deterrence form an important aspect of sentencing in environmental crime. For example, in Bentley v BGP Properties Pty Limited [104] Preston CJ said the following:

Bearing in mind these general principles, I turn to the conclusions of the sentencing judge.

Her Honour’s ultimate conclusion was that she “agreed” with the submissions advanced on behalf of the respondents as to general deterrence. [105] Those submissions encapsulated the following propositions, which her Honour obviously accepted:

For the reasons that follow, her Honour’s findings reflect a number of errors.

To begin with, her Honour’s acceptance of the submission, and thus her apparent finding, that the present case did not “present comfortably as an appropriate vehicle for general deterrence” can only be construed as a finding that general deterrence had no role to play at all in the case of either respondent. At least in the case of the first respondent, that finding runs entirely contrary to one of the express purposes of sentencing set out in s 3A(b) of the Sentencing Act. It also runs contrary to the authorities to which I have referred.

Further, for the reasons I have previously set out, her Honour’s conclusion that the objective seriousness of the offending was low, was an error. Even if that were not the case, and her Honour’s categorisation of the offending was correct, it did not lead to the conclusion (again, at least in the case of the first respondent) that general deterrence had no role to play at all.

Further, and for the reasons set out in my consideration of ground 1, her Honour’s conclusion as to the absence of moral culpability on the part of the respondents was an error. It is apparent that her Honour used that erroneous conclusion to support her conclusions as to general deterrence.

Similarly, and again for the reasons I have set out, I do not accept that the regulatory scheme was properly regarded as “incoherent”. That factor was also relied upon to support the conclusion that general deterrence was not a relevant factor on sentence. At least in the case of the first respondent, that was an error.

Further in my view, at least in the case of the first respondent, her Honour erred in concluding that incorporating any element of general deterrence into any penalty to be imposed would be contrary to the decision in Walden. Walden was a prosecution for an offence contrary to s 54 of the Fauna Conservation Act 1974 (Qld) which prohibited the keeping of fauna by person who was not licenced to do so. Section 22 of the Criminal Code Act 1899 (Qld) provided that ignorance of the law did not afford any excuse for an act or omission which would otherwise constitute an offence, unless (inter alia) knowledge of the law by the offender was expressly declared to be an element of the offence. The full passage of the judgment of Brennan J (as his Honour then was) to which her Honour referred was in the following terms: [107]

Properly understood, this passage provides no support for her Honour’s conclusion that the circumstances of the case against the first respondent did not present comfortably as an appropriate vehicle for general deterrence. [108] On the contrary, Brennan J made express reference to the necessity to invoke what he described as the “secondary deterrent purpose”, namely 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”. His Honour’s reference to the need for care when invoking that principle, so as to ensure that an offender is not left to shoulder an unfair burden of community education, should not be construed as incorporating, much less endorsing, the proposition which her Honour apparently accepted, namely that the “secondary deterrent purpose” had no role to play in the case of the first respondent at all.

For these reasons, and insofar as her Honour found that general deterrence had no role to play in determining the sentence against the first respondent, error has been established and ground 2 is made out.

However, I have come to a different conclusion in terms of the applicability of principles of general deterrence in the case of the second respondent. The reasons for that conclusion are set out below. [109]

As I have previously observed, [110] even if error is established the appellant must satisfy this Court that the residual discretion to decline to intervene and re-sentence the respondents should not be exercised. There was no delay in bringing the appeal, and nothing said or done by the appellant on sentence contributed to the errors I have found, that were made by the sentencing judge. There is no reason why this Court should decline to intervene and re-exercise the sentencing discretion. That is particularly so in the case of the first respondent whose sentence was, in my view, so manifestly inadequate that, absent intervention by this Court, there is a risk that public confidence in the criminal justice system will be undermined.

Whilst there is obviously a great deal of commonality between the first and second respondents, it is important to exercise the sentencing discretion individually. To “group” them together would reflect an error in approach.

For the reasons I have already set out, it is necessary, in determining the question of objective seriousness, to focus upon the actual offending which was committed. The first respondent’s offending was that it used Lot 8 as a waste facility without lawful authority. Three matters of particular significance emerge.

The first, is that such use extended for a significant period of time, from about 29 October 2012 to about 15 May 2013. It follows that the offending was not fleeting.

The second, is that the amount of waste which was deposited on Lot 8 within that period was somewhere between 24,000 and 44,000 tonnes. As senior counsel for the appellant pointed out in the course of submissions, depositing that amount of waste, at a rate of 25 tonnes per load, meant that during the period of the offending there were somewhere between 960 and 1760 deliveries of waste made to Lot 8.

The third, is that these activities were carried out absent any form of environmental or regulatory control.

For the reasons I have already articulated, and subject to any subjective considerations, any sentence imposed in relation to environmental offence must have regard to considerations of general deterrence. [111] In the case of the first respondent, there are no factors which dilute the application of that principle in any way. This was not simply a case of the first respondent failing to keep records. The actions of the first respondent in permitting a significant amount of waste to be deposited on Lot 8 over a long period of time without first applying for, and obtaining, the necessary licence, or without complying with the obligations necessary to obtain an exemption, necessarily undermine the objectives of both the relevant regulatory scheme, as well as the legislative objectives of the offence itself. [112]

The state of mind of an offender is relevant to determining the objective seriousness of an offence for the purposes of sentencing. An offence committed deliberately will be regarded as objectively more serious than one where the offence resulted from an accident. [113] There is no evidence that the first respondent deliberately went about the use of Lot 8 as a waste facility in the knowledge that it was committing an offence. In that sense, the offending should not be regarded as deliberate. I also accept that the first respondent is of prior good character and that it has, through the second respondent, expressed remorse.

It is necessary to specifically consider, in determining sentence, the provisions of s 241(1) of the POEO Act, which are in the following terms:

I am satisfied on the evidence that the first respondent had considerable control over the circumstances that gave rise to the offending. [114] However, the evidence does not establish that any harm was caused, or likely to be caused, to Lot 8 by the commission of the offence. [115] Although there were traces of asbestos in the waste, there is no evidence that this came to the attention of the first respondent, in circumstances where the processors were required to provide appropriate certifications to consumers.

There is, in my view, a fundamental requirement that any sentence imposed on the first respondent ensures that it is adequately punished for the offence it committed, that it is held accountable for its actions, and that its conduct is denounced in a manner which is proportionate to the level of objective seriousness of the offending that I have assessed. [116] Whilst I accept that the payment of a prosecutor’s costs in a matter of this nature constitutes an aspect of punishment, [117] it is imperative that an actual financial penalty, in the form of a substantial fine, be imposed upon the first respondent to reflect the various matters to which I have referred. As Preston CJ pointed out in Bentley, the need for general deterrence in the context of the commission of environmental offences will not be met by the imposition of a nominal fine. Such a need will most certainly not be met when no fine is imposed at all.

In proposing the orders set out below, I have proceeded on the basis, as was made clear in the course of the hearing before this Court, that the orders requiring the first respondent to pay the legal and investigation costs of the appellant were not challenged. Those orders should therefore be confirmed.

The observations I have already made regarding the objective seriousness of the offending of the first respondent are equally applicable in the case of the second respondent, as is my assessment of the factors under s 241(1) of the POEO Act.

In terms of the second respondent’s subjective case, all of the principal findings made by the sentencing judge [118] are supported by the evidence and I adopt them for the purposes of re-sentence.

The finding that the second respondent was diagnosed with a major depressive disorder after being charged with the offence is particularly important. The unchallenged evidence of Dr Allnutt is that such a condition is chronic, and that it originated from the fact of being charged for the offending. [119] The condition diagnosed by Dr Allnutt was of sufficient severity for him to take the step of referring the second respondent to an available mental health services with a recommendation that he engage with a psychologist at fortnightly intervals for a period of up to 12 months, and a psychiatrist, initially at weekly intervals, for a similar period. [120]

Section 10(1)(a) of the Sentencing Act confers power on the Court to (inter alia) order, without proceeding to a conviction, that a charge against a person be dismissed. In determining whether that course should be taken, the Court must have regard to: [121]

For the reasons I have stated, the offending was not trivial. That said, there is authority for the proposition that a conclusion that offending is trivial is not a pre-requisite to the application of s 10(1)(a) of the Sentencing Act. [122]

It is common ground that the second respondent is a person of no prior convictions. Moreover, there is unchallenged evidence of his positive good character and contributions to the community. [123] Given that the second respondent is now 53 years of age, his positive good character is of particular significance, having been earned over a long period of time. There is also evidence of the extra-curial punishment which he has suffered. [124]

I have already made reference to the evidence of the second respondent’s mental state. That is of particular significance because, unlike the first respondent, it does render the second respondent an inappropriate vehicle for general deterrence. [125] That serves as an important distinction between the two cases. There is no evidence to suggest that specific deterrence is a relevant consideration in the case of the second respondent. In fact, the evidence tends entirely to the contrary.

I am mindful of the repeated statements made by this Court which emphasise that there must be reasonable proportionality between any sentence and the objective gravity of offending, and that an offender’s subjective case, no matter how powerful, must not be permitted to result in a sentencing outcome which fails to reflect such gravity. [126] However, taking into account the entirety of the circumstances to which I have referred, I am persuaded that the charge against the second respondent should be dismissed pursuant to s 10(1)(a) of the Sentencing Act.

The error which was identified in ground 1 has lead to the necessity to engage in a fresh exercise of the sentencing discretion. Having done so, I have come to the same conclusion as the sentencing judge in respect of the disposition of the charge against the second respondent. In those circumstances, the appropriate order in the case of the second respondent is simply that the appeal be dismissed.

In respect of the appeal brought against Grafil Pty Ltd I propose the following orders:

In respect of the appeal brought against Robert Bruce Mackenzie, I propose the following order:

HAMILL J: I agree with Bellew J.