Cameron Sargent (Department of Environment and Science) v Palmer & Anor [2024] QMC 26

Page 1 of 19 MAGISTRATES COURT OF QUEENSLAND CITATION: Cameron Sargent (Department of Environment and Science) v Anthony Michael Palmer and Asbestos Demolition Specialists Pty Ltd [2024] QMC 26 PARTIES: Cameron Sargent for Department of Environment and Science (prosecution) Versus Anthony Michael Palmer (first defendant) and Asbestos Demolition Specialists ty Ltd (ACN 138 092 869) (second defendant) FILE NUMBERS: MAG-30391/23(3); MAG-30414/23(3) DIVISION: Magistrates Court, Beenleigh PROCEEDING: Complaint - Sentence Hearing HEARING DATE: 18 July 2024 SENTENCE DATE: 11 October 2024 MAGISTRATE: T E Mossop ORDER: Sentence of global fines; $100,000 for Defendant Palmer and $400,000 for the Corporate Defendant; Defendant Palmer also sentenced to 9 months imprisonment wholly suspended for an operational period of 3 years. Convictions Recorded; Rehabilitation order; Monetary Benefit order; Costs order; all monetary amounts referred to SPER for registration and collection. CATCHWORDS: Environmental Protection – asbestos waste handling and management – Sections 426, 440ZG(a)(iii), 426(1), 361(1) Environmental Protection Act (1994) Qld – disposal without authority - wilfully and unlawfully depositing a prescribed water contaminant reasonably expected to move into waters – wilfully causing material environmental harm - conducting an environmentally relevant activity without holding an environmental authority COUNSEL: M. Nicholson for prosecution – instructed by the Department of Environment and Science DEFENCE: Self-Represented CASELAW: Department of Environment and Science v Tyre Transitions Pty Ltd [2023] QDC 94; R v Cordwell [2023] QCA 26; R v Universal Abrasives, Moore and Hobson, unreported DCJ Forno QC 15 June 200; R v Moore [2001] QCA 431; EPA v Foxman & Ors [2016] NSWLEC 120; -- 1 of 19 -- Page 2 of 19 EPA v Afram [2022] NSWLEC 38; R v Christopher BINOS unreported Parramatta Local Court; EPA v Dib Hanna Abdallah Hanna [2018] NSWLEC 80; EPA v Ghossayn Group Pty Ltd & Ghossayn [2023] NSWLEC 127; R v Wolfe [2003] QPELR 277; Baker v Smith (No. 2) [2019] QDC 242; Background 1. Asbestos is a substance widely renowned for causing catastrophic health issues when air-born and inhaled. Unsurprisingly, the handling and management of asbestos waste is regulated by the government. There are significant penalties for those who disregard their legally moral obligations. 2. For more than a 3 year period, over 300 tonnes of asbestos-contaminated waste was illegally stored on leased, flood-affected, farmland bordering a major river that was also near residential properties. During that period, there were at least two major flood events. Movement by water would obviously distribute the substance over a greater geographical area. 3. The defendants, an individual (Mr Palmer) who was also the sole director of the corporate entity defendant Asbestos Demolition Specialists Pty Ltd (ADS), pleaded guilty to nine charges each, for offences contrary to the Environmental Protection Act 1994 (the Act) relating to the operation of that unlawful asbestos waste facility at Eagleby. 4. The charges against Mr Palmer are for failing in his duty as an executive officer to ensure that the company defendant complied with the Act, pursuant to section 493(3). 5. Originally listed for a contested sentence hearing on 18 July 2024, the Defendants on that day then sensibly chose to accept all the alleged facts. In turn, both Defendants now gain the benefit of mitigation for their uncompromised pleas of guilt and co- operation with the administration of justice. 6. The Court was assisted by Complainant’s Counsel (the Prosecutor) who provided an agreed statement of facts; exhibits including site maps, satellite imagery, flood risk information, volumetric surveys; compliance history (including history of Mr Palmer related to other corporations where he is the sole director); and written submissions (including the provision of caselaw). The “compliance” history is really a history of non- compliance events that have resulted in notices, directions or orders being issued. Offences 7. The table below sets out the relevant offences:- CHARGE OFFENCE PARTICULARS CHARGE ONE Section 426(1) Undertaking an environmentally relevant activity (ERA) of waste disposal without holding an environmental authority (EA). Between 29 May 2019 and 7 October 2022 Operating a waste disposal facility at the Site which disposed of general and regulated wastes (more than 4 tonne of regulated waste, including waste contaminated with asbestos waste). -- 2 of 19 -- Page 3 of 19 CHARGE TWO Section 440ZG(a)(iii) Wilfully and unlawfully depositing a prescribed water contaminant (various waste products), at another place and in a way, so that the contaminant could reasonably be expected to wash, blow, fall or otherwise move into waters, a roadside gutter or stormwater drainage. Between 29 May 2019 and 7 October 2022 This conduct affected the Albert River and surrounding water catchment area. The total waste deposited come the end of the offending period was calculated as being between 358.78 and 386 cubic metres and included prescribed water contaminants. It is accepted on the facts that the water contaminants have washed into waters or roadside gutters. Such contaminated material was situated in close proximity to dams, a creek and the Albert River as well as the roadside gutter bordering the leased land. The site was flooding susceptible, and had been completely submerged in 1974, 2021 and 2022. The lease specifically mentioned the site was flood affected. The precise impact is not quantifiable, but harm has been caused to waterbodies in and around the site due to location of contaminated material and water flow, including flooding. CHARGE THREE Section 440ZG(a)(iii) Wilfully and unlawfully causing material, actual and potential, environmental harm to the Site and surrounding areas. (“material environmental harm” is defined by section 16 of the Act. It is harm that is not trivial or negligible in nature, extent or context. “Harm” includes actual or potential damage with thresholds and maximums being applicable). Between 29 May 2019 and 7 October 2022 Satellite images of the site in the months prior to May 2019 show the introduction of waste material onto the site that was controlled by the company. The harm caused over the offending period is actual adverse harm affecting the site itself and other locations from the approximately 394.66 tonnes of contaminated waste placed on the site. The site was an agricultural area for farming prior to the corporate defendant’s conduct. The environmental values affected include the Albert River and related bodies of -- 3 of 19 -- Page 4 of 19 water, air environment and the land itself. Use of the site with land disturbed exposes persons on and near the site to airborne asbestos particles and fibres. The costs to remediate the harm will exceed more than $5000. CHARGE FOUR Section 426(1) Conducting an environmentally relevant activity of resource recovery and transport facility without holding an environmental authority, by operating a resource recovery and transport facility at the Site which received and sorted general and regulated waste. Between 1 July 2020 and 7 October 2022 The start of this time period correlates to the effective commencement of an introduced legislative requirement. CHARGE FIVE Section 361(1) Non-compliance with an environmental protection order (issued on 29 July 2021). Not ceasing to receive waste at the site, continuing between 29 July 2021 and 8 October 2021. CHARGE SIX As for charge 5. Not ceasing to store waste at the site from 24 September 2021. CHARGE SEVEN As for charge 5. Not ensuring all waste on the site (surface, buried or submerged) was removed and lawfully disposed of by 24 September 2021. CHARGE EIGHT As for charge 5. Not providing the Department of Environment documentation confirming all waste had been removed and lawfully disposed of by 24 September 2021. CHARGE NINE As for charge 5. Not completing a clearance inspection of the site by 1 October 2021. -- 4 of 19 -- Page 5 of 19 FACTS The Defendants 5. Mr Palmer is a 59 year old male who has worked in the building demolition and asbestos removal industry for some 30 years. 6. Mr Palmer informed the court he was born in Bondi, New South Wales. He was schooled, under a football scholarship, at a private school with well-known persons of the elite. He failed his high school certificate and then returned to his father’s farm in St George. He gained employment as a labourer in the construction industry, got married at 19 years of age but divorced 7 years ago. 7. He described himself as a “battler” with $100,000 in the bank. That his administrative skills were poor and he neglected to “follow up” on paperwork matters. He stated he had his mother involved in the business to try and help but this only caused him “more grief”. 8. Mr Palmer was in control of ADS for the duration of the offending, running the day-to-day business of ADS from at least 2018. The compliance history for ADS since Mr Palmer’s management totals some 36 listed actions including refusal, improvement, prohibition, non-disturbance, enforcement and infringement notices, in addition to verbal directions and orders. Nine (9) of these actions are relevant to the present offences. The last was the infringement notice of 29 July 2020. 9. Relevantly, Mr Palmer also was a director of another company Gold Coast Demolitions Pty Ltd registered on 11 August 2020, obtaining an asbestos removal licence on 17 September 2021.That company has also received compliance action notices relating to asbestos. One (1) in July and five (5) in December of 2022, as well as one (1) in January 2023. There are also other listings of notices, verbal directions and an infringement relating to other regulatory failures. 10. Consequently, Mr Palmer has some highly relevant compliance history but otherwise he is absent of any prior prosecutions or convictions. 11. The Corporate Defendant (ADS), registered in 2009, was a construction demolition and waste management company operating in Southeast Queensland. Operations involved demolition of buildings and structures, and the removal of related waste (including asbestos) with the facilitation and management of skip bins. 12. ADS has a lengthy compliance history relating to asbestos and other workplace health and safety laws. Fifty-six (56) separate compliance actions, spanning from 2012 to 2020, are recorded over five (5) pages. 13. ADS also has a criminal history. ADS pleaded guilty to breaching a previous asbestos related notice in February of 2019. Two (2) charges exist under the Work Health and Safety legislation. One for failing to comply with a non-disturbance notice without reasonable excuse. One for directing or allowing a worker to remove over ten (10) square metres of material containing asbestos without an appropriate licence. The penalties issued were fines of $5000 and $2000 respectively (where the maximum penalties of $250,000 and $100,000 applied). The presiding Magistrate was Magistrate Dowse. The impact of CoVid 19 on the financial operation of the corporation was specifically acknowledged in mitigation of the sentences received. 14. The defendant Mr Palmer was an executive officer of ADS during those previous two (2) offences, in addition to the current offending periods. He became the sole director of ADS from 27 November 2021, after taking over from a family member. 15. The Defendants operated the unlawful waste facility at 85 Schmidt Road, Eagleby. 16. ADS had operated under a standard Environmental Authority (EA) since 2013 which allowed for an Environmentally Relevant Activity (ERA) to be undertaken, namely regulated waste transportation. -- 5 of 19 -- Page 6 of 19 17. Under the EA, conditions applied to the disposal of regulated waste, and the containment and handling of asbestos. 18. Mr Palmer held a Class A statement of attainment for asbestos handling but his did not allow him to operate as an asbestos removalist in his own right. 19. ADS was refused a renewal of its asbestos removal licence on 1 February 2018 for failing to remove that substance in a safe and competent manner. A review of that decision was subsequently upheld. 20. Many regulatory dealings that had occurred since 2018, as between the Department of Environment and Logan City Council with the defendant ADS, were mostly facilitated through Mr Palmer. The Site 21. The site at Eagleby is owned by a third person, who leased it to ADS for a three (3) year period from 1 February 2019. 22. That lease stated the type of business was “Farming: Organic Fertiliser”; the turnover was one (1) million dollars per year, with assets of $700,000 and liabilities of $50,000; and it expressly stated that the farm would be ‘set up in flood affected areas”. 23. A new lease was signed for one (1) year by Mr Palmer on 23 December 2022 with the tenant listed as Mr Palmer. That lease has now expired. 24. The site at Eagleby is situated on the Albert River and has four bodies of water within it. The site is flood affected and exhibits demonstrate that actual flooding occurred within the offending period. The gradient, characteristics and location of the site are such that waste placed anywhere on that site could reasonably wash into waters. 25. The Albert River is specifically listed within legislative environmental policy and objectives. It is has prescribed environmental values relating to aquatic ecosystems, irrigation, farm supply, stock water, human consumption, primary and secondary recreation, visual recreation and cultural values. 26. The site is bordered by neighbouring rural and farm properties. It is also located within half a kilometre of residential properties. 27. No authority or approval has ever existed to allow ADS to use the site as it was used. Inspections and Notices 28. On 4 October 2019 Council Officers attended the site to perform an inspection. Waste was seen in skip bins and piles, with waste aggregate used as a driveway. Waste material contained yellow asbestos warning tape and fibre cement material. 29. 18 November 2019, Council issued Mr Palmer with an enforcement notice for the site:- You Must: Cease importation of any waste material to the premises for use as fill. Cease importation of any waste building materials for storage at the premises. Cease any form of filling or excavation at the premises unless all necessary development permits are in effect. Provide Council with a written report by a suitably qualified person which determines if asbestos is present in any of the waste materials used as fill. -- 6 of 19 -- Page 7 of 19 30. ADS subsequently provided Council with an asbestos clearance certificate from an “Adam Cook Competent Assessor Licenced Asbestos Assessor No. 2535331-9104- 1812796.” 31. The report was unclear and contradictory. It stated no asbestos was identified but also stated asbestos was identified within areas inspected. 32. A principal advisor for asbestos attached to the Asbestos Unit of Workplace Health and Safety Queensland, Officer of Industrial Relations, reviewed the clearance certificate and informed the Council that Adam Cook was not a licenced asbestos assessor nor was the licence number provided a valid asbestos assessor licence. 33. Adam Cook was a former director and shareholder of ADS. 34. Departmental Officers attended the site for an inspection on 29 May 2020. They could not access the site but made observations and took photographs of waste stockpiled on the site. 35. On 11 June 2020, a second attempt of site inspection occurred. Officers saw a large amount of waste, including in waterbodies and a creek. They saw skip bins and a vehicle removing a skip bin. Two samples were collected and laboratory tested revealing they contained asbestos. 36. On 26 June 2020, Mr Palmer was issued with an infringement by the Council for non- compliance with the 18 November 2019 enforcement notice. Both ADS and Mr Palmer were issued with new enforcement notices setting out the same requirements as the prior notice issued to Mr Palmer. 37. Mr Palmer paid the infringement penalty. 38. On 10 and 11 August 2020, a Departmental Officer spoke with ADS and its employees about the number of types of waste seen on the site, including asbestos. Documented proof was sought to state the waste had been removed to an authorised waste site, together with a clearance certificate. Further, the volume of waste documented in waste tracking certificates (required by law) as provided by ADS did not account for all of the waste on the site. 39. Mr Palmer sent documentation to the Department on 25 August 2020 claiming he had removed 197 tonnes of waste from the site and that all of the asbestos material was contained in containers and removed, together with uncontaminated waste disposed of as clean and green waste. 40. Waste in a stockpile near the dam was disposed of as green waste. Concerningly, this waste was in the same location from which samples of asbestos had been taken from on 11 June 2020. Remove all skip bins containing waste materials from the premises. Remove any and all uncontained waste building materials from the premises. Remove all imported fill from the premises, including any waste material which has been used as fill since your tenancy began. Remove all waste materials and/or fill that has been placed in waterways and water bodies on the premises since your tenancy began. You must not: Undertake any filling or excavation on the premises without all necessary development approval(s) in effect. Import any additional waste materials to the premises. -- 7 of 19 -- Page 8 of 19 41. On 28 August 2020, Mr Palmer sent an email attaching a visual inspection clearance and air report from Envirohealth Consulting Pty Ltd stating visual surface of areas around and adjacent to skip bins were free of asbestos and air testing found no trace of asbestos. The report clarified the visual clearance only pertained to surface of work areas and specific areas mentioned. Further, the report stated that weather and mechanical movements may reveal more asbestos. 42. The author of that certificate, upon being contacted, advised of a number of limitations to that should be taken into account as to a claim the area was safe to reoccupy, including limitations on the scope of the certificate being very narrow, that no works were being undertaken when the air monitoring occurred, there was no information as to the purpose of the clearance inspection or air monitoring, the clearance given did not pertain to areas where asbestos had been previously found. 43. This attempt to comply with the 10 and 11 August Direction Notice for a clearance certificate for the whole site was dissatisfactory and non-compliant. 44. Officers from both the Department and Council attended the site on 1 September 2020, in the presence of Mr Palmer. Stockpiles of waste, waste mixed with soil, skip bins full of various waste (both previously seen and new waste) were observed with photographs taken. 45. Stockpiles of green waste, construction and demolition waste, concrete waste, stockpiles of waste mixed with soil and waste in skip bins were also photographed, with asbestos waste and material being apparent. 46. Mr Palmer stated he had picked up a few pieces of asbestos from along the road and he had constructed roads on the site from recycled concrete which contained the odd bit of asbestos. 47. Four samples were taken from four separate locations on the site as being suspected asbestos. Laboratory results later confirmed all samples were asbestos. 48. Come 9 September 2020, an asbestos assessor (of some 5 years), with eleven (11) years’ experience identifying asbestos, attended the site for an inspection with Mr Palmer present. Waste, including unsealed bags of asbestos and uncontained asbestos marked with tape, was seen and photographed. The asbestos assessor confidently identified friable (easily crumbed) and non-friable asbestos throughout the site in skip bins, waste piles, mixed with soil and other debris, under vegetation, in green waste piles and in areas applicable to previous clearance certificates. 49. On 30 November 2020, a site visit again by Departmental Officers, with Mr Palmer present, showed previous waste still present with new waste added to the site. 50. It was not until 17 June 2021 (noting that from May 2020 on, this was during the height of CoVid 19 restrictions) that Departmental Officers again attended the site. This time ADS had engaged an asbestos assessor who was also present. Previous waste, new waste and an area fenced off with tape reading “caution asbestos” was noted on the site. 51. An infringement notice issued once again to ADS on 29 July 2021 and an Environmental Protection Order which read: Requirement From 29 July 2021, you must not dispose of waste at the premises. (relates to CHARGE 5) By 5pm on 24 September 2021, you must not store waste at the premises. (relates to CHARGE 6) -- 8 of 19 -- Page 9 of 19 By 5pm on 24 September 2021, you must ensure that all waste is removed from the premises and lawfully transported and disposed of to a facility that can lawfully accept the waste. This must include any waste stored on the land surface as well as all buried and submerged waste at the premises. (relates to CHARGE 7) By 5pm on 24 September 2021, you must provide written documentation to the department to demonstrate the lawful removal and disposal of all waste from the premises including documentation relating to the removal of waste under the previous DN. (relates to CHARGE 8) By 5pm on 1 October 2021, you must have completed a clearance inspection of the premises, including air monitoring, undertaken by an independent Licensed Asbestos Assessor. (relates to CHARGE 9) 52. Mr Palmer did not comply within the allotted time frame. In response to a reminder sent to him on 27 September 2021, he sought a time extension. 53. On 22 October 2021, Mr Palmer provided a clearance certificate for part of the site and stated he would take action on the remainder obligations by 4 November 2021. 54. The clearance certificate signatory confirmed:- a. that the clearance certificate was for a small area and not the whole site; b. asbestos was seen in a green waste stockpile near the gate which would not pass clearance and should be barricaded; c. there had been no air monitoring conducted; and d. an attendance the previous year had identified asbestos so a clearance certificate had not been provided. 55. Site inspections in November 2021, February of 2022 and October 2022 revealed the following:- a. In November 2021:- i. Previous waste still present. ii. New waste was observed. iii. Waste greater than six (6) cubic metres was present for greater than five (5) days. iv. Samples collected and laboratory tested revealed asbestos. v. A large, previously untouched area on the site, adjacent to the road, appeared to have been filled with soil mixed with demolition construction waste (from which a sample tested positive to asbestos). b. In February 2022, Mr Palmer:- i. made admissions to ADS bringing waste to the site; ii. said he knew the site was subject to flooding; iii. said he planned on turning green waste into mulch for the farm down the back of the property; iv. admitted the green waste had asbestos in it; -- 9 of 19 -- Page 10 of 19 v. admitted ADS disposed of about 198 cubic metres of crushed brick from demolitions which was used to build up roads on the site. c. In October 2022, an inspection and drone survey:- i. noted new stockpiles and waste; ii. confirmed asbestos from two samples taken from cement sheeting; iii. found waste included construction and demolition waste, household waste, green waste, soil waste, regulated waste (with much of it mixed with soil). Asbestos 56. All relevant asbestos samples were taken from the surface at various locations on the leased site. 57. Asbestos is a naturally occurring mineral made up of millions of small fibres. Contained in building materials before the middle of the 1980s, it became and remains a regulated substance through environmental, public health, and work health and safety legislation. 58. Asbestos fibres are a health risk and when inhaled can cause asbestosis, mesothelioma and lung cancer. 59. As at 8 February 2021, 5 areas were identified as containing or potentially containing asbestos. New areas were then identified in 28 September 2023 as actual or potential asbestos contamination. 60. Clearance certificates obtained in October 2021 and September 2022 were only for surface asbestos material. 61. A summary of the waste brought onto the site during the total offending period included plasterboard, cement sheeting (including asbestos sheeting), wood, crushed and uncrushed bricks and concrete, green waste, waste in unsealed asbestos bags, power poles, house stumps, tyres, scrap metal, petrol drums, general household rubbish, vehicle panels and unidentified liquids, ashes, clay, sediment, stones, bitumen, glass, paper, piping, plastic, bark, lawn clippings, leaves, mulch, pruning waste, sawdust, shavings, woodchip. Rectification of harm 62. The material environmental harm caused by the offending was not trivial or negligible. Asbestos was identified from soil testing taken from the site. 63. An expert report commissioned by the Department confirmed the visual evidence of asbestos waste and to remediate the land, the cost to rectify this harm, is greater than $5,000. An estimate of up to 100 tonnes of waste material would still require removal. The prosecution contend that some $264,000 is the relevant cost of appropriate remediation. Aggravating features 64. The site used for the illegal dumping of asbestos was one that would never have been approved as a waste facility due to being zoned as farmland and being situated on the banks of a major river. 65. None of the requirements of the 29 July 2021 Environmental Protection Order were properly complied with at all. 66. The Defendants were given multiple opportunities to meet their environmental obligations prior to the commencement of their prosecution but persisted in offending with respect to asbestos waste material. 67. Both defendants wilfully caused material environmental harm by intentionally accumulating more waste on the site, stockpiling it and burying it, even after being issued notices from -- 10 of 19 -- Page 11 of 19 both Council and the Department prohibiting such conduct. This deliberate persistence demonstrated a complete disregard for environmental obligations about a serious hazard with serious actual and potential adverse impacts. 68. The site remains potentially permanently affected. Its purpose should be used as farmland but any activity upon it could disturb asbestos. Given the nature of the hazard and circumstances of the offending, remediation will really only minimise risks. 69. The site was listed on the Environmental Management Register in November of 2020 and remains so listed. 70. The only attempts made to provide necessary clearance certificates, when prompted, were poor and obviously flawed. 71. The Defendants’ conduct continued over a number of years at the one site, being leased land. 72. The Defendants’ conduct is aggravated by the commission of charges five (5) through nine (9), given their earlier failure to comply with a statutory direction and repeatedly ignoring regulators attempting to direct the defendants to comply. Discussions with the regulator, fines via infringement notices and other notices have not deterred the Defendants’ conduct. 73. The overall offending period is significant, persisting over three (3) years. 74. The offending is serious as it relates to the regulated hazard of asbestos, a product widely known to cause serious, lethal, health implications. 75. Mr Palmer has an additional association with another company of similar operation with a poor compliance history, with him personally being the common denominator. This demonstrates that as an individual, he conducts business in a reckless manner and has demonstrated a poor history of statutory compliance. 76. The Corporate Defendant failed to remove regulated waste, did not comply with appropriate bagging and containment conditions, and did not take it an approved facility. In having total disregard of the Environmental Authority that ADS had previously been granted regulating this conduct, the actions of the Corporate Defendant are clearly both intentional and unauthorised. 77. The offending also generated a commercial benefit. The Corporate Defendant avoided waste disposal fees and Environmental Authority fees. Prosecution estimates the commercial benefit to be between a total of some $90,000 and $104,649 respectively. Maximum penalties 78. Maximum penalties that apply are set out as below: Charge Penalty Applicable Penalty Unit Cost Mr Palmer ADS Charge 1 – 426(1) 4,500 penalty units. $143.75 $646,875 $3,234,375 Charge 2 – 440ZG(a)(iii) 1,665 penalty units. $143.75 $239,344 $1,196,720 Charge 3 – 438(1) 4,500 penalty units or 2 years imprisonment. $143.75 $646,875 or 2 years imprisonment. $3,234,375 Charge 4 – 426(1) 4,500 penalty units. $143.75 $646,875 $3,234,375 -- 11 of 19 -- Page 12 of 19 Charge 5 – 361(1) 6,250 penalty units or 5 years imprisonment. $143.75 $934,375 or 5 years imprisonment. $4,671,875 Charge 6 - 361(1) 6,250 penalty units or 5 years imprisonment. $137.85 $861,563 or 5 years imprisonment. $4,307,813 Charge 7 - 361(1) 6,250 penalty units or 5 years imprisonment. $137.85 $861,563 or 5 years imprisonment. $4,307,813 Charge 8 - 361(1) 6,250 penalty units or 5 years imprisonment. $137.85 $861,563 or 5 years imprisonment. $4,307,813 Charge 9 - 361(1) 6,250 penalty units or 5 years imprisonment. $137.85 $861,563 or 5 years imprisonment. $4,307,813 79. The total maximum penalty applicable for ADS would be $32,802,972. 80. The total maximum penalty applicable for Mr Palmer would be $1,533,094 (charges 1, 2 and 4) and $5,027,502 or 5 years imprisonment (charges 3, 5, 6, 7, 8 and 9). Caselaw 81. The Prosecutor relied on the caselaw of Department of Environment and Science v Tyre Transitions Pty Ltd [2023] QDC 94 and R v Cordwell [2023] QCA 26 as to the consideration of a defendant’s antecedents, particularly in consideration of relevant conduct by an individual defendant who is also an executive officer of a corporation. Relevant conduct included compliance history related to another company for which the individual was the “controlling mind”. 82. In both cases, an individual’s relevant history of personal and associated business non- compliance with environmental requirements, included his own conduct and conduct that related to the activities of corporations for which he was an executive officer. This was relevant to the sentencing factors of specific deterrence, as well as the offender’s character, being also important in protecting the community. 83. The case of Cordwell clearly sets out the relevant sentencing principles and considerations required by the Penalties and Sentences legislation. Of particular relevance is a consideration of whether the offending is “uncharacteristic” of the offender. This highlights the appropriateness of considering an individual’s conduct as an executive officer of any corporate entity. It goes to considerations of whether actions by defendant are momentary or isolated. 84. Cordwell is a good case for setting out, in full, the considerations under the Penalties and Sentences Act:-1 a. to punish; b. to deter 1 R v Cordwell [2023] QCA 26 Pages 17 and 18; -- 12 of 19 -- Page 13 of 19 c. to denounce d. to protect by considering:- i. maximum and minimum penalties prescribed; ii. nature of offence, seriousness and harm done; iii. extent to which an offender is to blame; iv. damage, injury or loss; v. offender’s character, age, intellectual capacity; vi. any aggravating or mitigating factors; vii. prevalence; viii. assistant given by offender to law enforcement; ix. anything else prescribed as a factor x. any other relevant circumstance. 85. By way of comparative caselaw, the Prosecutor referred the Court to the following:- a. R v Universal Abrasives, Moore and Hobson, unreported DCJ Forno QC 15 June 200; R v Moore [2001] QCA 431.:- Defendants who mishandled several tonnes of regulated chemical waste, which entered a drain linked to the Brisbane River. During the offending period, multiple warnings were given yet operations continued without a licence. The Court found the conduct of storage which led to the release and environmental harm was wilful. The inherent risks were obvious. The defendants were not remorseful. The company was fined $375,000. The individual Moore was fined $100,000 and received 18 months imprisonment. The repetitive and continuing nature of the offending can be categorised as similar to this matter. The offending in Universal Abrasives is absent of other serious conduct that is present in this matter. The defendants here were given a total of four (4) statutory notices with serious harm relating to a period of over two (2) years. The current offending has the capability to effect human health and not just the environment. Both matters had an element of commercial gain. For this matter, that amounted to being avoiding payment of a waste levy. b. EPA v Foxman & Ors [2016] NSWLEC 120 This case had an aggravating feature distinguishing it from the current case. There was non-compliance with the EPAs (Environmental Protection Authorities). This case was a conviction after trial. The amount of asbestos waste transported and stored was 5800 tonnes in 2009 and 10100 tonnes in 2010 (therefore far greater tonnage than the present case with lesser maximum penalties applying). For 3 charges against the individual, with a maximum penalty of $250,000 for each charge, one fine of $100 thousand dollars and two fines of $75,000 dollars were ordered. The fine total was therefore $250,000. The individual was deeply and personally involved in every aspect of the proven offending behaviour and dominated the company defendants involved. The companies were fined $100,000 and $40,000 of a maximum $1 million dollar fine. The current matter has additional aggravating factors of non-compliance with Environmental Protection Orders and persistent, intentional, continuing offending after the issue of statutory notices (plural). -- 13 of 19 -- Page 14 of 19 c. EPA v Afram [2022] NSWLEC 38 With a maximum penalty of $250,000 for polluting land (with greater than 10 tonne of asbestos waste) and a maximum penalty of $120,000 for misleading and false information (relating to that pollution), on a plea of guilty the individual was fined $127,500 and $112,500 respectively and ordered to pay $95,000 in costs, with a further $125,000 in investigation costs. Clearly the current matter is distinguishable as being more serious conduct, greater amount of waste, number of charges, greater maximum penalties applying. d. R v Christopher BINOS unreported Parramatta Local Court For two (2) offences of unlawful disposal of waste (maximum penalty being $500,000) and failing to comply with a clean-up notice (maximum penalty being $250,000), that defendant, who operated a waste transportation business, received a fine for each of $110,000. The fine amounts were the maximums allowed in the summary jurisdiction. The offending involved delivering free fill to a property containing a house and veterinarian clinic to create a level horse paddock. The estimate was 2,400 tonnes of asbestos contaminated waste. Once discovered, the owners spent $61,000 in an unsuccessful attempt to remediate the harm. The Court found that the individual had acted opportunistically but deliberately, with knowledge of the asbestos contamination. There were features of dishonesty, significant planning, and a previous history of fines for similar past offending, as well as a lack of remorse. That case made comment as to the significance of the potential serious health consequences from asbestos exposure, including debilitating illnesses that lead to death. The Court found, objectively, it was not the worst case but fell well above the “upper middle end range”. Expenses were ordered to be paid. The property site for this current matter was also flood prone, with exposure to two (2) actual flood events which would have dispersed the substance “far and wide”. This must be seen as an aggravating factor. e. EPA v Dib Hanna Abdallah Hanna [2018] NSWLEC 80 The defendant was a repeat offender and this case would be considered as being the ‘high water mark’. For five (5) offences related to regulated waste disposal and pollution, each carrying a maximum penalty of $250,000 or 2 years imprisonment, the convicted defendant was sentenced to 3 years imprisonment with parole seemingly after 9 months of actual time served. This was for operating a business advertising free clean fill and then delivering about 461 cubic metres of waste including 40 tonnes of asbestos being spread over 4 properties. The offending occurred within five (5) years of being convicted of a waste offence. The potential exposure and harmful consequences from deliberate, premeditated and planned for commercial gain, by a defendant with an extensive previous history of offending, were all matters specifically referred to by the Court. -- 14 of 19 -- Page 15 of 19 f. EPA v Ghossayn Group Pty Ltd & Ghossayn [2023] NSWLEC 127 This was another case of asbestos contaminated soil, where a financially stressed defendant arranged for it to be illegally dumped to avoid the expense of appropriate disposal. 379 tonnes of asbestos waste were illegally dumped. There had been deceptive conduct in relying on false documents suggesting otherwise.. The court considered the importance of regulation to ensure waste disposal does not harm health or the environment; the maximum penalties for each offence; intentional yet reckless and negligent conduct (which one might consider sits rather contrary to the facts of the offending as stated, but was therefore a favourable consideration by the Court regarding the defendants); the motive being financial benefit, early pleas of guilt; assistance to law enforcement; lack of a significant record of previous convictions, good character and unlikelihood of reoffending. For each of the offences regarding the disposal, with maximum penalties for of $2 million for the company and $500,000 for the individual. The Court imposed fines of $97,000 and $162,500 x 2 on the company and fines of $24,375 and $40,625 x 2 on the individual. The amount of waste is similar to the current matter. Those defendants had taken ineffective steps at remediation. The current offending is more serious. It occurred over a much lengthier period, using a site held by lease by the Defendants for purposes contrary to the site’s use. RELEVANT SENTENCE CONSIDERATIONS Prosecution Submissions 86. The purpose of environmental legislation is to protect the environment while allowing development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends. 87. This purpose is achieved by providing for a licencing regime, management framework, regulations and enforcement actions. 88. Section 9 of the Penalties and Sentences Act sets out the applicable sentencing principles and considerations that must be applied including punishment, deterrence, denouncement, and community protection. Relevant to this is mandatory regard of the prescribed maximum penalties; the nature and seriousness of the conduct; the extent to which an offender is to blame; the defendants’ antecedents; mitigating and aggravating factors, co-operation. 89. Because the defendants are permit holders, their obligations are premised on trust that they will comply with regulations and the law, and not neglect or disregard the environmental obligations. 90. The material in issue, being asbestos, is highly relevant to deterrence, denouncement and community protection. 91. It was also raised there were some monetary benefit gained by the Corporate Defendant from the illegal conduct by avoiding significant waste disposal fees that would have totalled in the tens of thousands of dollars. 92. The compliance history of the Corporate Defendant, as well as another corporate entity associated with the Individual Defendant being the controlling mind, are both relevant. see Department of Environment and Science v Tyre Transitions Pty Ltd [2023] QDC 94, paragraphs 49 through 54. This consideration goes to the Individual Defendant’s character and is relevant to the sentencing factor of specific deterrence for the Individual Defendant. 93. In R v Wolfe [2003] QPELR 277, the stated principle relating to persons and businesses who act with irresponsible attitudes is that “such days are long over. The need to protect the environment is now widely acknowledged and accepted. Those who choose to ignore their -- 15 of 19 -- Page 16 of 19 responsibilities under the law can expect appropriate penalties to be imposed upon conviction.” 94. In the more recent matter of Baker v Smith (No. 2) [2019] QDC 242 the Court cited “The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court’s sentence, the offender is given his just desserts.” 95. The Prosecutor submitted both defendants receive substantial fines. It was submitted the Corporate Defendant be the subject of rehabilitation orders and monetary benefit orders. The Prosecutor noted the Corporate Defendant agreed to the monetary benefit order being made. In addition for Mr Palmer, the Prosecution sought a term of imprisonment. Specifically:- a. That ADS be sentenced to:- i. A global fine in the range of $400,000 and $500,000; and ii. A rehabilitation order for the site (85 Schmidt Road Eagleby); and iii. A monetary benefit order of $74,544 (noting this not opposed). b. That Mr Palmer be sentenced to:- i. A global fine of $100,000 in the range of $100,000 and $150,000; and ii. A term of imprisonment of 9 months on a range between 9 and 12 months. 96. The Prosecutor submitted the sentences proposed took into account the pleas of guilty and would be consistent with the aims of the Environmental Protection Act. That they would properly deter, protect the community and rectify damage caused insofar as it is possible. 97. The Court is urged by the Prosecutor to also record convictions based on all the circumstances and period of the offending. 98. Additionally, the Prosecution sought costs, namely: a. Legal costs totalling $2,700 pursuant to section 157 and 158B(1) of the Justices Act 1886 and Schedule 2 of the Justices Regulation 2014; b. Expert report costs under the Environmental Protection Act; c. Investigations costs of $21,790 pursuant to section 503 of the Environmental Protection Act; d. Court filing fee of $101.40 99. On clarification of costs sought, the Prosecutor asked for an order of $12,645.00 from each defendant. Defence Submissions 100. In addition to telling the court about his background, Mr Palmer confirmed the site was leased in 2019 and was used to store skip bins. 101. Sadly, Mr Palmer did not demonstrate complete contrition or remorse. He attempted to resolve his blameworthiness as ignorance, with a lack of actual knowledge or intention. His submissions in this regard cannot be accepted on the balance of probabilities. Using a reasonable person test, the exhibits and relevant facts, in addition to the defendant’s own admissions as to his personal lengthy experience in the asbestos waste industry, clearly suggest otherwise. 102. Mr Palmer stated that in his discussions with the owner of the site (the lessor), the owner wished to have a dam filled in and when that happened a neighbour complained. -- 16 of 19 -- Page 17 of 19 103. Apparently, this particular dam was dug out in 2019 and taken to a crushing facility, after involvement of the Logan City Council. 104. The implications of 2020 Covid 19 restrictions resulted in numerous bins being “everywhere” according to the defendant, stocked with builders’ waste, including asbestos. As Mr Palmer was classified as an emergency worker, he took it upon himself to collect and store the skip bins on the farm, again claiming some he knew contained asbestos waste and others he did not. 105. He rightfully conceded that 300 tonne plus of contaminated waste was a realistic amount of waste on the site, based on at least ten (10) by 30 tonnes (the bucket size of a large tipper truck). 106. He confirmed he cooperated with inspectors and that he removed about 130 tonne from one location on the site to another, as part of his efforts to co-operate. 107. A profit and loss statement was tendered by Mr Palmer. This showed that the Company turnover was around $1.3 million in 2020; closer to $1.5 million in 2021 and 2022; and then around $674,000 in 2023. Wages were listed as about $367,000; $436,000; $435,000 and $198,000 dollars, each year consecutively since 2020. The Company was running at a loss of $215,000; $125,000; $159,000; and $55,000 for the same period. 108. Mr Palmer made no submissions about the recording of a conviction, conceding that a sentence of imprisonment mandated a conviction being recorded. 109. He simply asked that he not be sent to jail and said “don’t hit me with a huge fine”. Sentence Factors applied 110. The plea of guilty must be taken into account in mitigation of penalty, as per section 13 Penalties and Sentences Act Qld 1992. A plea of guilty is an indication of some remorse. The plea was late, after being listed for trial twice without proceeding. After then being listed for a contested sentence, the matter that day on agreed facts. The benefit to be applied in favour of the defendants is one that is appropriate for a late plea of guilty. 111. The prosecutor’s submission that an agreement to remediate is also demonstrative of some remorse is accepted. However, there has not been any genuine attempt to remediate the site prior to sentence. Further, there remains a real risk of future adverse impact to the environment and human health. This is as a direct result of the Defendants’ offending conduct which might not ever be fully remediated. 112. The facts of the offending are serious and fall to the higher end of categorised offending. This is because of the nature and amounts of asbestos, as well as the lengthy period of offending, in defiance of informed non-compliance and notices to desist. 113. The seriousness of the mobility of asbestos in the air, and being spread further by water from this site, cannot be overstated. The actions of the defendants have caused a likely spread of the hazardous contaminant through water, affecting nearby waterways and land. 114. The Individual Defendant is mature, with a self-acknowledged experience spanning decades in the asbestos removal industry. This is an aggravating factor on sentence. 115. There is no evidence of any other persons’ activity or responsibility in collecting, dumping and stockpiling asbestos waste at the site. 116. Whilst there is no criminal history for the individual defendant, being the controlling mind relevant to the compliance history of the corporate defendant as well as another corporate -- 17 of 19 -- Page 18 of 19 entity that is also associated with relevant poor compliance in the last 4 years, are factors highly relevant to the individual defendant’s character and specific deterrence. Specifically, the actions of the Mr Palmer, being associated as the controlling mind of another asbestos demolition company (Gold Coast Demolition Pty Ltd) established post ADS, with the misconduct of that latter company commencing in 2020 around the same time as ADS non- compliance history tapers off, is highly relevant. It is this concerning conduct attached specifically to Mr Palmer which goes to an adverse assessment of his character when considering specific deterrence. 117. The Corporate defendant, ADS, has a history of repeated offending conduct of non- compliance with environmental directions and notices over a number of years. ADS also has the prior conviction. 118. ADS no longer holds an asbestos removal licence due to the extensive non-compliance with health and safety laws. 119. The harm caused by the offending was objectively foreseeable and avoidable. Being leased land, the land owner now faces an adverse financial impact with the site being listed in the Environmental Management Register. The land was not used for the lawful purpose as stated on the lease. 120. Mr Palmer did participate in a voluntary interview, so there is some minimal level of co- operation. Regardless, the offences were clearly proven from site inspections, drone surveys, satellite images, a number of human and documentary sources, expert reports and laboratory testing, and did not require admissions. 121. In urging both a fine and imprisonment for Mr Palmer, I have had regard to R v Stephens [2006] QCA 123 which refers to such a sentence structure as being necessary to achieve a significant deterrent effect. Sentence Imposed 122. The case for the prosecution (including relevant exhibits tendered; caselaw provided; submissions), with acknowledged mitigating features of the plea of guilty and some remorse, support the sentences proposed by prosecution. 123. Matters relevant to consider under sections 9 and 12 of the Penalties and Sentences Act have been specifically addressed and acknowledged. A sentence order must be imposed that correctly deters and denounces the serious conduct surrounding the illegal handling of large quantities of a lethal substance for greater than 3 years, where the capability of full remediation of harm is unlikely. 124. The offending was deliberate and extensive, with actual financial benefits to the corporate defendant. The offending has adversely impacted on the land-owner as well as surrounding properties, their inhabitants and owners. Given the nature of the substance, any person who may unwittingly disturb asbestos contaminated soil is at risk of harm to health and well- being, with a risk of death as an eventual consequence. 125. The location of the offending to a major river and the impacts of flooding spreading the asbestos, with two major floods occurring within that time frame, is further aggravating feature. With the lease itself referring to the land being flood prone, the deliberate offending at such a location is inexcusable. 126. The sentences proposed by the prosecution, on review of the somewhat comparable interstate caselaw, are favourable to the defendants by being at the lower end of the sentencing range. The prosecution have been very fair in seeking sentences that reflect the seriousness of the offending as balanced by the late pleas of guilty. 127. Andrew Palmer, is sentenced to a global fine for all offences of $100,000. In addition, Andrew Palmer is also sentenced to concurrent terms of 9 months imprisonment for each of -- 18 of 19 -- Page 19 of 19 charges 3, 5, 6, 7, 8 and 9. All such terms of imprisonment will be wholly suspended for an operational period of 3 years. 128. The Defendant is informed that being the subject of a wholly suspended term of imprisonment means if he commits another offence punishable by imprisonment in the next 3 years he may then be ordered to serve all or part of the 9 months imprisonment (being the 6 concurrent terms of 9 months of imprisonment). 129. ADS is fined $400,000 as global fine for all the offences. 130. By consent, ADS will be the subject of a rehabilitation order and will pay a monetary benefit order of $74,544. An order is made to that effect as per the draft order provided by the Prosecutor. 131. Each defendant is ordered to pay prosecution costs in the sum of $12,645.00. 132. The fines, costs and the monetary benefit order will be referred to SPER (State Penalties Enforcement Register) for registration and collection. 133. Convictions are appropriately recorded for all offences against both defendants. -- 19 of 19 --