The LEC orders 3 years imprisonment in first prosecution involving a ‘repeat waste offender’

Chief Justice Preston of the Land and Environment Court (Court) recently convicted Mr Dib Hanna Abdallah Hanna (Defendant) of 5 offences against the Protection of the Environment Operations Act 1997 (Act) for repeat waste offending, and sentenced the Defendant to a 3 year custodial sentence.

This is the 3rd time in the Court’s history that a gaol sentence has been ordered and the 1st time a sentence has been imposed under the ‘repeat waste offender’ provisions introduced to the Act in 2014.

Repeat waste offender provisions 

Section 144AB(2), the ‘repeat waste offender’ provisions, were introduced into the Act in 2014 by the Protection of the Environment Operations Amendment (Illegal Waste Disposal) Bill 2013 (Bill).

The Second Reading Speech to the Bill made clear that the NSW Government would not tolerate serial waste dumpers, had increased the sentencing and penalty provisions for illegal waste activities, enhanced the powers available to the EPA and Court, and intended to create a meaningful deterrent ‘in an industry where the monetary incentive to break the law often outweighs the existing penalties‘.

Offences 

The Environment Protection Authority (EPA) prosecuted the Defendant for 8 offences against s144AB(2) of the Act, namely that the Defendant:

(a)  has been convicted of a waste offence, and

(b)  commits a waste offence on a separate subsequent occasion within 5 years after that conviction.

The Defendant entered pleas of guilty to 5 of the 8 offences. On conviction of the 5 offences, the EPA discontinued the remaining 3 proceedings.

The waste offences the Defendant plead guilty to, were:

  • 1 count of transporting waste to a place that cannot be used as a waste facility, contrary to s143(1) of the Act,
  • 4 counts of polluting land, contrary to s142A(1) of the Act.

The Defendant has been sentenced by the Court on a number of previous occasions for offences against the Act and contempt of Court.

Facts of the offences 

The Defendant and his wife operated a business known as New Line Demolition. Throughout 2015, the Defendant carried out, or caused to be carried out, flyer drops in letter boxes throughout Sydney that advertised ‘free clean top soil, clay, crushed bitumen or shale delivered to you’re property‘.

Some Sydney residents contacted the Defendant and made arrangements for top soil or clean material to be delivered to residential properties. The materials the Defendant delivered, or caused to be delivered, were ‘discarded, rejected, unwanted, surplus or abandoned‘ and consisted amongst other materials, of pipes, rubble, road base gravel, concrete, fibre cement sheeting and asbestos.

The Court’s findings 

The Court found that the Defendant’s conduct undermined the integrity of the Act’s regulatory scheme and blatantly flaunted the proscription against repeat waste offending. The offences were premeditated, deliberate, and the Defendant was aware the waste would or might cause harm to the environment and human health.

Appropriateness of imprisonment 

A court must not sentence an offender to imprisonment, unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate (see s5(1) of the Crimes (Sentencing Procedure) Act 1999). 

Chief Justice Preston found there was no penalty other than imprisonment appropriate, as:

  • the Defendant’s conduct committing the offences was of medium to high objective seriousness,
  • the Defendant had not been deterred from re-offending, by the imposition of increasingly severe fines for past waste offences,
  • only a change in penalty type from fine to imprisonment would result in specific deterrence,
  • Parliament imposed a penalty of imprisonment for offences under s144AB because of the seriousness with which repeat waste offending is viewed, and
  • imprisonment would likely achieve general deterrence of other persons.

The Court’s orders 

The Court convicted the Defendant of the 5 offences, and ordered:

  • a 3 year total term of imprisonment (with a non-parole period of 2 years and 3 months imprisonment),
  • that the Defendant pay the Prosecutor’s costs of the proceedings,
  • the restoration of the environment as agreed between the EPA and the Defendant,
  • the Defendant to publish advertisements in newspapers publicising the detection, prosecution and punishment of the offences.

The Defendant is first eligible to be released on parole on 16 July 2020.

The Court has ordered non-suspended custodial sentences on only 2 previous occasions (one of which was later overturned in the Court of Criminal Appeal).

This sentence demonstrates the seriousness with which repeat waste offences under s144AB of the Act will be treated by the Court, and reinforces the deterrence the Government intended when it introduced the provisions in 2014.

Read the case in full here.

To discuss this blog, please contact Carlo Zoppo, Partner on 8235 9705 or Katie Mortimer on 8235 9716.

About carlo zoppo

Partner. Carlo is a prominent and highly regarded specialist in environment, planning, and administrative law lawyer, with over 16 years' experience in government and the private sector. During his career, Carlo has worked as an in house legal officer for the National Parks and Wildlife Service of NSW and as a special counsel in a highly regarded mid tier law firm. Carlo has also acted as in house counsel in various state government agencies on a secondment basis. Carlo's extensive experience includes advising and representing clients with administrative law, contaminated land, waste management, flora and fauna, climate change, risk management, incident response, due diligence, environmental management systems, environmental litigation and planning law. Carlo's significant litigation experience includes conducting merit review matters in the NSW ADT and the NCAT and the Land and Environment Court as well as conducting judicial review and prosecutions in the Land and Environment Court and the Local Court. Carlo has specialist expertise in across the range of environmental law matters arising from his work for the National Parks & Wildlife Service. This included providing advice and conducting prosecutions for matters relating to flora fauna and national parks and other reserved lands. He conducted the first prosecutions for threatened species offences including the matter of Director-General National Parks & Wildlife and Wilkinson which is an often quoted authority in environmental crime. Carlo was admitted to practice in the Supreme Court of NSW in 1993.
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