Department of Environment and Science v Tyre Transitions Pty Ltd [2023] QDC 94

DISTRICT COURT OF QUEENSLAND CITATION: Department of Environment and Science v Tyre Transitions Pty Ltd [2023] QDC 94 PARTIES: DEPARTMENT OF ENVIRONMENT AND SCIENCE (COMPLAINANT: HEIDI-MARIE SMITH) (appellant) v TYRE TRANSITIONS PTY LTD (ACN 621 157 471) (respondent) FILE NO/S: 1818/22 PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Brisbane Date of sentence: 30 June 2022 DELIVERED ON: 6 June 2023 DELIVERED AT: Brisbane HEARING DATE: 4 April 2023 JUDGE: Judge A J Rafter SC ORDERS: 1. Appeal allowed. 2. In respect of the offence of providing a document containing false or misleading information contrary to s 480(1) Environmental Protection Act 1994, set aside the orders that a conviction not be recorded and that Tyre Transitions Pty Ltd be fined $75,000 and instead order that: (a) a conviction be recorded; (b) Tyre Transitions Pty Ltd be fined $90,000; 3. In respect of the offences of contravening a condition of an environmental authority contrary to s 430(3) Environmental Protection Act 1994: (a) set aside the order that Tyre Transitions Pty Ltd be fined $5,000 and instead order that Tyre Transitions Pty Ltd be fined $20,000; (b) confirm the order that convictions not be recorded. 4. The fines are referred to the State Penalties Enforcement Registry. -- 1 of 24 -- 2 5. Confirm the orders that: (a) Tyre Transitions Pty Ltd pay legal costs of $2,500; (b) Tyre Transitions Pty Ltd pay investigation costs of $3,880. CATCHWORDS: APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY INADEQUATE – INTERFERENCE WITH DISCRETION OF COURT BELOW – PURPOSE OF SENTENCE – RELEVANT FACTORS – PRIOR CRIMINALITY – where the respondent pleaded guilty to one charge of providing a document containing false or misleading information and two charges of contravening a condition of an environmental authority, contrary to ss 480(1) and 430(3) Environmental Protection Act 1994 (Qld) – where the learned sentencing magistrate erred by refusing to have regard to the compliance histories of the director of the respondent company and related corporate entities – where the magistrate erred by treating financial expenditure by the respondent as a form of extra-curial punishment Environmental Protection Act 1994 (Qld), s 430(3), s 480(1) Justices Act 1886 (Qld), s 222(2)(c), s 225 Penalties and Sentences Act 1992 (Qld), s 9(1)(c), s 9(1)(e), s 9(2)(f) DES v Dale and Meyers Operations Pty Ltd (Magistrates Court at Maryborough, 23 September 2020) House v The King (1936) 55 CLR 499 Sargent v Defwom Property Management Pty Ltd (Magistrates Court at Brisbane, 18 December 2015) COUNSEL: S J Keim SC, with C De Marco, for the appellant W Simmons, Director of Tyre Transitions Pty Ltd for the respondent SOLICITORS: Department of Environment and Science for the appellant Tyre Transitions Pty Ltd was represented by its Director, W Simmons -- 2 of 24 -- Introduction [2] On 30 June 2022 in the Magistrates Court at Brisbane, Tyre Transitions Pty Ltd (Tyre Transitions) pleaded guilty to one charge of providing a document containing false or misleading information, contrary to s 480(1) Environmental Protection Act 1994 (Qld) (EPA) and two charges of contravening a condition of an environmental authority, contrary to s 430(3) of the EPA. [3] In respect of the offence of providing a document containing false or misleading information (s 480(1)) the magistrate imposed a fine of $75,000 and did not record a conviction. In respect of the offences of contravening a condition of an environmental protection authority (s 430(3)) the magistrate imposed a single fine of $5,000.1 Convictions were not recorded. The magistrate also ordered Tyre Transitions to pay legal costs of $2,500 and costs of the investigation of $3,880. [4] By notice of appeal filed 29 July 2022 the complainant (Heidi-Marie Smith), appeals against the penalties on the ground that specific error led to the imposition of inadequate fines. The grounds of appeal are as follows: Errors in the exercise of the sentencing discretion which resulted in the imposition of inadequate penalties justifying correction on appeal: 1. The learned sentencing magistrate erred in refusing to take into account the criminal history of Mr Simmons (sole director and sole shareholder of the defendant at various relevant times) and the criminal history of another body corporate of which Mr Simmons had been an executive officer as factors going to the need for specific deterrence of Tyre Transitions. 2. The learned sentencing magistrate erred in failing to accord proper weight to the character of Mr Simmons, who was the controlling mind of the corporation, as a factor going to the sentencing purpose of specific deterrence of Tyre Transitions. 3. The learned sentencing magistrate erred in failing to accord proper weight to Mr Simmons’ criminal history and the criminal history of another body corporate of which Mr Simmons was an executive officer as relevant factors going to the sentencing purpose of deterrence of other persons generally, referred to as general deterrence. 4. The learned sentencing magistrate erred in failing to consider the character of Mr Simmons, who was the controlling mind of the corporation, as a factor going to the need to protect the Queensland community from Tyre Transitions. 1 Penalties and Sentences Act 1992, s 49(1). -- 3 of 24 -- 4 5. The learned sentencing magistrate erred, factually, in finding that the financial expenditure incurred by Tyre Transitions to purchase a shredder amounted to extra-curial punishment in respect of the section 430 offences. The learned sentencing magistrate, when making this factual finding, acted on misleading information provided by Tyre Transitions at the time of the sentence hearing. The applicant, therefore, seeks leave, pursuant to section 223(2) of the Justices Act 1886 (Qld), to adduce fresh evidence to address this error of fact. 6. In any event, the learned sentencing magistrate erred, as a matter of law, in finding that the financial expenditure incurred by Tyre Transitions to purchase a shredder amounted to extra-curial punishment in respect of the section 430 offences. 7. The learned sentencing magistrate erred in refusing to record a conviction in respect of the section 480 offence which resulted in a penalty that was inadequate and did not reflect the deliberate dishonest conduct of the defendant. 8. The learned sentencing magistrate erred in imposing a fine of $75,000 in respect of the section 480 offence which resulted in a penalty that was inadequate and did not reflect the deliberate dishonest conduct of the defendant. 9. The learned sentencing magistrate erred in imposing a global fine of $5,000 in respect of the section 430 offences which resulted in a penalty that was inadequate and did not reflect the nature of the defendant’s conduct. [5] For the reasons that follow, the magistrate erred by refusing to have regard to the compliance histories of Mr Simmons, the director of Tyre Transitions and related corporate entities. [6] The magistrate also erred by treating financial expenditure by Tyre Transitions on the acquisition of an item of equipment as a form of extra-curial punishment. [7] These errors led to the imposition of inadequate penalties. In the re-exercise of the sentencing discretion the appropriate penalties that should be substituted are: (a) a fine of $90,000 for the s 480 offence with a conviction being recorded; and (b) a single fine of $20,000 for the s 430 offences. The order not recording convictions for the s 430 offences should not be disturbed. Nature of the appeal [8] The appeal is by way of rehearing on the evidence before the Magistrates Court, unless leave is given to adduce fresh, additional or substituted evidence (new -- 4 of 24 -- 5 evidence).2 Where leave is given to adduce new evidence, the appeal is by way of rehearing on the original evidence and the new evidence.3 [9] Where a specific error is established, the appellate court must resentence unless, in its own independent exercise of discretion, the court concludes that no different sentence should be imposed.4 In cases where specific error is established, the appellate court does not restrict itself to a consideration of whether the error affected the sentence imposed.5 [10] An appeal against sentence is determined by the application of well established principles. In House v The King6 Dixon, Evatt and McTiernan JJ said that: “if the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.” (emphasis added) [11] The appellant sought to adduce new evidence to address an aspect of extra-curial punishment relating to the acquisition of equipment, relied upon by Tyre Transitions, of which the prosecution had no notice until prior to and during the sentence hearing. [12] Tyre Transitions sought to adduce new evidence to verify a telephone call which Mr Simmons said he made to the Department of Environment and Science (DES) prior to lodging his application form. Factual background [13] The facts were the subject of an agreed statement of facts.7 Tyre Transitions was registered in 2017. At the time of the offences Wayne Anthony Simmons (Mr Simmons) was the sole director and secretary of Tyre Transitions. Mr Simmons was also a shareholder owning 45% of the shares along with two other individuals who held 45% and 10% respectively. 2 Justices Act 1886, s 223(2). 3 Justices Act 1886, s 223(3). 4 Kentwell v The Queen (2014) 252 CLR 601, 615 [35]. 5 DL v The Queen (2018) 265 CLR 215 at [9]. 6 (1936) 55 CLR 499 at 504-505. 7 Ex. 1. -- 5 of 24 -- 6 [14] During late 2019 and early 2020, Tyre Transitions, through Mr Simmons, entered into discussions about purchasing a property at Silkwood (the site). Silkwood is a small town in North Queensland located approximately halfway between Tully and Innisfail. Tyre Transitions also made enquiries about obtaining a transfer of the environmental authority (the EA) related to the site for the purpose of operating tyre crumbing (recycling) facility. Suitable Operator application [15] On 2 October 2019 Tyre Transitions lodged with the DES an application to become a Registered Suitable Operator (RSO). In order to hold an EA, a person must be an RSO. The application was signed by Mr Simmons. [16] Section 2 of the application form is titled “Applicant suitability” and required the applicant to declare suitability issues, either in relation to itself or its executive officers. Tyre Transitions answered “no” to each of the suitability questions. Those responses were false in the following respects: Question on application Defendant’s response Factual answer Has the applicant (or an executive officer) been convicted of an environmental offence under the EPA? No. On 23 February 2018, Mr Simmons was found guilty of: • one offence contrary to section 426(1) of the EPA for carrying out an ERA without an EA, by conducting ERA 57 (regulated waste transport of asbestos) without authority; and • one offence contrary to section 81I(2) of the Environmental Protection Regulation 2008 (the Regulation) for failing to give prescribed information to the administering authority, by way of failing to provide waste tracing certificates. -- 6 of 24 -- 7 Has the applicant (or an executive officer) had an EA cancelled or suspended under the EPA or a corresponding law? No. Mr Simmons was the Director of MPSW Pty Ltd (ACN 144 489 510), which held an EA for regulated waste transport, from 7 June 2010 until 17 November 2013 when the company was deregistered. The EA for this company was cancelled on 15 July 2014 as the result of a failure to submit an Annual Return. Has the applicant (or an executive officer) had a RSO or similar registration, however called, cancelled or suspended under the EPA or a corresponding law? No. Mr Simmons was the Director of North Coast Recyclers & Demolition Pty Ltd (ACN 089 050 699) (NCRD) between 11 August 1999 an 11 January 2015, the company was issued with: • An Environmental Protection Order (EPO) on 30 January 2009 under section 319 of the Act which required the company to cease receiving all waste, and lawfully remove all stockpiled waste at a property located at 30 East Owen Street, Raceview; and • Two Penalty Infringement Notices on 26 May 2010 for failing to comply with two conditions contained in the EPO. On 16 February 2010, NCRD applied for a Registration Certificate, which was granted. However, the Registration was subsequently cancelled on 22 April 2010 after it was discovered that the company had provided false and misleading information within the application, namely declaring that the company had not received an EPO. [17] On 4 October 2019 the RSO application was approved. -- 7 of 24 -- 8 Environmental Authority Transfer [18] On 23 January 2020 an application to transfer the EA from the previous owner to Tyre Transitions was lodged. The declaration on the application to transfer the EA, which was signed by Mr Simmons on behalf of Tyre Transitions, included a statement that the signatory: (a) was “able to comply with the conditions of approval in the environmental authority”; and (b) understood that they were “responsible for managing the environmental impacts of these activities …”. [19] On 6 January 2020 the EA transfer application was approved, and the EA was transferred to Tyre Transitions. [20] The EA authorised Tyre Transitions to conduct the following environmentally relevant activities (ERAs) at the site: (a) ERA 54 Mechanical waste reprocessing 3: operating a facility for receiving and mechanically reprocessing in a year 5000 T or less of category 2 regulated waste; (b) ERA 62 Resource recovery and transfer facility operation 2: operating a facility for receiving and sorting, baling or temporarily storing end-of-life tyres only; (c) as mobile and temporary- ERA 57 Regulated waste transport 1: transporting end-of-life tyres. [21] The EA contained the following conditions: Condition W3: The maximum number of tyres that can be stored on site is 500 equivalent passenger units. Under circumstances of plant breakdown, up to 1000 equivalent passenger units may be stored for a period of no more than 48 hours. Condition W5: Tyres stored awaiting processing at the tyre recycling plant must be stored in stockpiles with dimensions no more than 2 metres in height, 5 metres width at base, and 45 metres length at base. -- 8 of 24 -- 9 [22] On 27 March 2020, the sale of the site from the previous owner to Tyre Transitions settled and Tyre Transitions took full control of the site. Shortly after taking over the site, Tyre Transitions began accepting tyres for disposal at the site and collecting tyres for storage at the site, with the view to making a profit. [23] Subsequent searches of DES records for waste tracking information provided by Tyre Transitions showed that it did not provide waste tracking documentation to the DES. As a result, it is not possible to determine the volume of additional tyres that were added to the site by Tyre Transitions. [24] On or about 6 February 2020 DES compliance officers became aware through an internal notification that the EA had been transferred to Tyre Transitions. These officers connected Tyre Transitions with Mr Simmons’ compliance history, which triggered the initial inspection of the site in 2020. [25] On 8 July 2020 DES officers conducted an inspection of the site during which they observed: (a) 32 stockpiles of tyres in the open and under trees including a large “main” tyre stockpile; (b) two former sand extraction pits with tyres disposed of in them; and (c) a quantity of tyres estimated to exceed 1,000 equivalent passenger units (EPU). [26] On 31 July 2020 DES officers conducted an inspection of the site which showed: (a) two stockpiles had been removed; (b) there was one new stockpile approximately 17-18m long, 5m wide and 1.5m high comprised of noticeably newer and clearer tyres than in other stockpiles; and (c) earthworks were observed to have been undertaken at the back of the site, and tyres were submerged in this disturbed area. [27] In December 2020 the DES commenced a criminal investigation into Tyre Transitions’ RSO application and activities on the site. As part of the investigation the DES conducted compulsory interviews with Tyre Transitions’ employees and with Mr Simmons. -- 9 of 24 -- 10 Basis of the plea of guilty [28] The prosecution accepted that the majority of the tyres on the site were there prior to Tyre Transitions taking over. Tyre Transitions added a comparatively small number of tyres, although the exact number was not known. [29] Tyre Transitions was aware of the number on tyres on the site and voluntarily took control of the site with a view to making a profit through its recycling operation. [30] The prosecution accepted that there was no evidence of environmental harm having been caused, however, the DES generally held concerns about the risk of environmental harm that comes from the presence of large tyre stockpiles which may catch fire and be difficult to put out.8 [31] It was accepted by the prosecution that Tyre Transitions did not take physical possession of the site until 26 March 2020. The timeframe for the charges commenced on 6 February 2020 on the basis that, as at that date the EA was granted to Tyre Transitions, and it had an obligation to comply with its conditions from that date onwards. Sentence hearing in the Magistrates Court [32] At the sentence hearing in the Magistrates Court the parties relied on written submissions. [33] The prosecution submitted that the appropriate penalty for the s 480 offence was a fine between $90,000 and $100,000, and that the offending the subject of the two offences contrary to s 430 should attract a global fine of between $15,000 and $25,000.9 It was also submitted that convictions should be recorded.10 [34] Tyre Transitions submitted that the appropriate penalty for the s 480 offence was a fine of between $30,000 and $40,000, and in respect of the s 430 offences a global fine of $5,000 should be imposed.11 8 End-of-life tyres are not susceptible to spontaneous combustion, but when end-of-life tyres become involved in a fire, the combustion products formed have major environmental impacts (DES External Guideline – Prevention of fires in waste stockpiles). 9 Outline of submissions for the prosecution at paras 1, 88-89. 10 Outline of submissions for the prosecution at paras 84-87. 11 Outline of submissions for Tyre Transitions at para 3 and 59. -- 10 of 24 -- 11 [35] It was also submitted that, having regard to the matters in s 12 Penalties and Sentences Act 1992, particularly the pleas of guilty and extra-curial punishment suffered by Tyre Transitions, convictions should not be recorded.12 The compliance history of Mr Simmons and related entities [36] The prosecution submitted that Tyre Transitions was part of a group of companies in the same industry owned and operated by Mr Simmons.13 The prosecution pointed out that at all relevant times and for all relevant actions, Mr Simmons was the directing mind of Tyre Transitions, and his knowledge was Tyre Transitions’ knowledge.14 [37] The compliance history relied upon by the prosecution was set out in an attachment to the outline of submissions.15 The compliance history was as follows: Name Relationship to defendant Compliance history Wayne Simmons Simmons was the sole director and shareholder at the time of the defendant’s offending On 11 September 2012, Ipswich City Council (ICC) issued Mr Simmons with an Enforcement Notice relating to premises at 2-24 Haigslea Cemetery Road. The Enforcement Notice related to breaches of a development condition including failure to store items (removable houses) in accordance with the approval. Mr Simmons did not comply with the Enforcement Notice. On 19 July 2013, ICC issued Mr Simmons with a Penalty Infringement Notice (PIN) for contravening section 594 of the Sustainable Planning Act 2009 (Qld) (SPA), which makes it an offence to fail to comply with an Enforcement Notice. ICC subsequently issued Mr Simmons with another PIN for the same offence, on 23 October 2013. On 11 December 2014, ICC issued Mr Simmons two PINs, again in relation to his activities 2-24 at Haigslea Cemetery Road. The PINs were for: a. breaching section 580 of SPA, for contravening a condition of a development approval; and b. breaching section 578 of SPA, for carrying out assessable development without a permit, namely operating a waste storage and recycling facility without a development permit, including by: 12 Outline of submissions for Tyre Transitions at para 58. 13 Outline of submissions for the prosecution at para 5 and Attachment A to the submissions. 14 Outline of submissions for the prosecution at para 6. 15 Outline of submissions for the prosecution Attachment C. -- 11 of 24 -- 12 • operating a waste storage yard, particularly the storage of tyres, asbestos, demolition materials, machinery, trucks, vehicles etc; • undertaking earthworks, particularly fill, in the form of crushed concrete placed on the premise as road base; • clearing vegetation; and • building works in the form of sheds, outbuildings, shipping containers, site offices and a workshop. On 27 February 2015, Council applied to the Planning and Environment Court for an Enforcement Order under the SPA in relation to 2-24 Haigslea Cemetery Road. Mr Simmons was one of four co-respondents, with the other three being related companies. On 9 April 2015 the Court granted the order, which inter alia, stated that: • the respondents are to immediately cease the use of the land for stockpiling and storage of tyres; and • the Respondents must return the land as close as is practicable to the condition it was immediately before the development offence occurred. On 7 August 2015, Simmons conducted an ERA without an EA, namely the transport of approximately 22 tonnes of asbestos without ERA 57 Regulated Waste Transport contrary to section 426(1) of the EPA. On 7 August 2015, Simmons failed to record the prescribed information about waste and give the prescribed information to the receiver of the waste contrary to section 81J(2) of the Regulation. Simmons was prosecuted for the 7 August offences, and on 23 February 2018 he was fined $36,000 and was ordered to pay legal and investigation costs. MPSW Pty Ltd Simmons was the sole director and majority shareholder of MPSW MPSW held an EA for the transport of regulated waste until 15 July 2014 when it was cancelled for failing to comply with an annual return and failure to pay associated fees. Tyrescrap Australia Pty Ltd Simmons was acting as an executive officer of Tyrescrap at the time of the compliance actions On 11 December 2014, ICC issued Tyrescrap with two PINs in relation to activities at 2-24 Haigslea Cemetery Road. The PINs related to the same activities as Mr Simmons for breaching section 580 SPA for contravening a condition of a development approval and breaching section 578 for carrying out assessable development without a permit. -- 12 of 24 -- 13 On 16 December 2014 Tyrescrap was issued with a Direction Notice directing it to not carry out any ERA until it holds or is acting under an EA. On 27 February 2015, Council applied to the Planning and Environment Court for an Enforcement Order under the SPA in relation to 2-24 Haigslea Cemetery Road. This is the same matter where orders were made against Mr Simmons. On 9 April 2015 there were similar orders made against Tyrescrap in relation to stockpiling and storing tyres. Between 6 March 2015 and 10 March 2015, Tyrescrap wilfully contravened a condition of the EA it held for regulated waste transport, in contravention of section 430(2) of the Act, by removing regulated waste (tyres) from a vehicle other than at a facility that could lawfully receive it. It was prosecuted and on 8 November 2016 was fined $60,000 and ordered to pay legal and investigation costs for the offending. Between 13 March 2015 and 17 March 2015 Tyrescrap gave trackable waste to a transporter and did not give the prescribed information about the waste to the administering authority in the prescribed way and within the prescribed time after giving the waste to the transporter, in contravention of section 81I(2) of the Regulation. It was prosecuted and on 8 November 2016 was fined $3,000 and ordered to pay legal and investigation costs for the offending. North Coast Recyclers and Demolition Pty Ltd (NCRD) Simmons was the sole Director of NCRD and owned 1/3 of the shares of the company On 30 January 2009, NCRD was issued with an Environmental Protection Order (EPO) which required it to cease receiving all waste, and lawfully remove all stockpiled waste at a property located at 30 East Owen Street, Raceview as it was conducting an ERA without an EA. On 16 February 2010, NCRD applied for a Registration Certificate, which was granted. However, the Registration was subsequently cancelled on 22 April 2010 after it was discovered that the company had provided false and misleading information within the application, namely not declaring that the company had not received the above EPO. On 26 May 2010, NCDR was issued with two PINs for failing to comply with two conditions contained in the above EPO. On 11 September 2012, NCDR was issued with an Enforcement Notice from Council for alleged offences against the SPA for the contravention of a Town Planning Consent and undertaking building works at the site without a development approval. Tranz Holdings Pty Ltd t/a The Simmons is the Director and majority On 2 May 2018, Tranz was issued with direction notice to cease reprocessing and milling recycled copper chrome arsenic (CCA) treated power poles on the basis that it did not -- 13 of 24 -- 14 Big Red Shed Architectural Timber and Joinery Pty Ltd (Tranz) shareholder of Tranz hold the required EA to conduct ERA 55 – Regulated waste recycling or reprocessing. N.C.R.D. Pty Ltd/Seq Demo Pty Ltd (N.C.R.D.) Simmons was the director N.C.R.D. On 11 December 2014, ICC issued N.C.R.D with two PINs in relation to activities at 2-24 Haigslea Cemetery Road. The PINs related to the same activities as Mr Simmons and Tyrescrap. On 27 February 2015, Council applied to the Planning and Environment Court for an Enforcement Order under the SPA in relation to 2-24 Haigslea Cemetery Road. This is the same proceeding that related to Mr Simmons and Tyrescrap. Similar orders were made on 9 April 2015. [38] The prosecution submitted that specific deterrence was an important consideration because corporations within the group and Mr Simmons had an extensive and persistent history of non-compliance spanning at least 13 years.16 [39] Tyre Transitions submitted that the compliance history of unrelated corporate entities should not be considered because s 9(1) and (2) Penalties and Sentences Act 1992 concern aspects relevant to the “offender”, that the matters in s 12 regarding the recording of a conviction concern the “offender” and in imposing a fine pursuant to s 44 the court is to have regard to the financial circumstances of the “offender” and the nature of the burden on the “offender”. [40] It was submitted by Tyre Transitions that it was a separate legal entity and that there is no corporate group called “Simmons Group”. It was also submitted that the author of the compliance history document was not known and the process by which it was created was not known. Further it was submitted that the issuing of a penalty infringement notice (PIN) is not determinative of any fact or decision at law.17 [41] The magistrate’s approach to the compliance history was as follows: “I treat the defendant as an entity that has no previous convictions. Whilst some moment has been made about Mr Simmons and his background, so far as previous Court appearances, I do not think it should properly impact on what should be an appropriate sentence 16 Outline of submissions for the prosecution at para 24(c). 17 Outline of submissions for Tyre Transitions at para 53. -- 14 of 24 -- 15 imposed today. I note (the prosecutor’s) argument that it should be something that should be factored into specific deterrence, but I think, also too, one has to remember that this company is an entity separate from Mr Simmons.”18 Extra-curial punishment [42] At the hearing in the Magistrates Court Tyre Transitions submitted that it had been required to defend identical allegations in the Planning and Environment Court and in the criminal proceedings. It submitted that despite efforts to limit its costs by seeking clarification with the DES, nonetheless an EPO was issued, which was ultimately set aside by the Planning and Environment Court. Tyre Transitions apparently considered the matter was then concluded, but it took 27 days for the DES to file a complaint and summons in the Magistrates Court.19 [43] Tyre Transitions also submitted that it had incurred expenditure in excess of $600,000 and was unable to generate revenue. It also pointed to the humiliation suffered as a result of releasing staff. 20 It submitted that extra-curial punishment includes serious financial losses which was a factor to be considered in sentencing.21 [44] Counsel for Tyre Transitions submitted to the magistrate that the decision of the DES to cancel its RSO and EA was made on 21 May 2021 and issued at that time. However, counsel submitted that the records of the DES showed that the decision had actually been made on 16 December 2020. It was submitted that during that period of 156 days, Tyre Transitions had purchased a shredder for $347,000.22 Counsel submitted that it was relevant to the issue of extra-curial punishment that the DES had made a decision to cancel Tyre Transitions’ RSO and EA on 16 December 2020, which was not communicated to it until 21 May 2021.23 [45] The prosecution submitted that it is not unusual for multiple proceedings to arise out of one set of circumstances; that it is not inappropriate for a regulator to pursue all available avenues to ensure compliance with the law; and that an environmental protection order has a different purpose to a criminal prosecution.24 18 Magistrate’s decision T4:14-20. 19 Outline of submissions for Tyre Transitions at para 40. 20 Outline of submissions for Tyre Transitions at para 41. 21 Outline of submissions for Tyre Transitions at para 43. 22 T1-22: 35-40. 23 T1-22: 43-45. 24 T1-15: 11-25. -- 15 of 24 -- 16 [46] In relation to the issue of expenditure by Tyre Transitions and its inability to generate income, the prosecution drew attention to Mr Simmons’ interview in February 2021 where he said there were issues with power on the site and the necessity for Ergon to “fix the power requirements”.25 [47] The prosecution also submitted that Tyre Transitions was well aware from inspections in July 2020 that compliance action may be taken, so that if it chose to take on financial responsibilities such as acquiring new equipment, that was a consequence of its own decisions and did not reduce its culpability.26 The magistrate’s approach to extra-curial punishment [48] The magistrate said: “I am told that a decision was made to cancel the authority on the 16th of December 2020. That was not conveyed to the Defendant until May of 2021. Between those periods of time, the Defendant did, it seems in good faith, operate to its detriment in that it bought a shredder valued at a significant amount of money, well in excess of $300,000, in the belief that the authority would continue. In my view, therefore, and having regard to the authorities, which speak about the reasons why extra-curial punishment should be taken note of in the sentencing process, is a matter that I think I should properly have regard to.”27 Consideration [49] Mr Simmons had a relevant history of personal and associated business non-compliance with environmental requirements. This included his own conduct and related to the activities of corporations of which he was an executive officer. The magistrate’s approach to Mr Simmons’ personal and associated business non-compliance failed to have regard to the reality that a corporation can only engage in conduct through the acts of a natural person.28 [50] The purposes of sentencing include deterring the offender or others from committing the same or a similar offence29 and protection of the Queensland community from the offender.30 25 T1-15: 35-45. 26 T1-16: 17-25. 27 Magistrate’s decision T3: 45-T4: 1-5. 28 R v Cordwell; R v Cordwell Resources Pty Ltd [2023] QCA 26 at [43]. 29 Penalties and Sentences Act 1992, s 9(1)(c). 30 Penalties and Sentences Act 1992, s 9(1)(e). -- 16 of 24 -- 17 [51] The prosecution did not rely on the compliance history as prior offences of Tyre Transitions, but rather as being relevant to specific deterrence. The other entities operated from the same address in the same or similar industries and were controlled by Mr Simmons.31 [52] The offender’s character is one factor that a sentencing court is required to consider.32 In determining an offender’s character, a court may consider the offender’s previous convictions, any significant contributions made to the community by the offender and such other matters the court considers to be relevant.33 [53] A corporation may show that it is a good corporate citizen by involvement in community and charitable work.34 A favourable assessment of the controlling mind of a corporate entity may have a bearing on the likelihood of future compliance with legislative requirements.35 [54] The magistrate erred by failing to have regard to the compliance history which was relevant to specific deterrence, the character of Tyre Transitions and the protection of the Queensland community. [55] On the hearing of the appeal the DES sought to adduce new evidence relating to the issue of extra-curial punishment. The evidence was not placed before the magistrate because it was not previously considered to be relevant to the offending and the prosecution had not been put on notice of its potential relevance until shortly prior to, and during, the sentence hearing.36 [56] The new evidence establishes that, contrary to the submission made by Tyre Transitions, it had been made aware of the possibility of its registration being cancelled as early as 20 August 2020.37 In an email to Mr Simmons on 20 August 2020 the DES referred to the compliance inspection on 8 July 2020 and identified a number of areas of non-compliance. The email stated that the DES was considering 31 Transcript of submissions on sentence, T1-9:33-43. 32 Penalties and Sentences Act 1992, s 9(2)(f). 33 Penalties and Sentences Act 1992, s 11. 34 Orr v Cudal Lime Products Pty Ltd; Orr v Shannon [2018] NSWDC 27 at [151]. 35 Environment Protection Authority v Land Foam Australia Pty Ltd [2013] NSWLEC 128 at [64]; Burwood Council v Erector Group Pty Ltd; Burwood Council v Liverpool Developing Pty Ltd [2017] NSWLEC 20 at [58]-[61]. 36 Outline of submissions for the appellant at para 29. 37 Affidavit of Lachlan Arthur Rush filed 26 August 2022, Ex. LAR-1. -- 17 of 24 -- 18 what enforcement action would be taken in accordance with their enforcement guidelines. The solicitors for Tyre Transitions acknowledged the email on 24 August 2020.38 The letter specifically referred to the fact that the range of enforcement actions available to the DES included prosecution. [57] Although the internal compliance report dated 16 December 2020 recommended cancellation of the registration, this did not amount to a final determination. The minutes of a compliance steering committee meeting held on 21 December 2020 state that there was an intention to issue a Notice of Proposed Action (NOPA). However, the minutes note that the matter was complicated by the different administrative steps which had been taken and which would delay final determination.39 The NOPA was issued on 10 March 2021. The NOPA stated that the chief executive proposed to cancel Tyre Transitions’ RSO on the ground that a disqualifying event had happened under s 318K(a)(ii)(A) of the EPA. The NOPA explained the contravention and invited Tyre Transitions to make written representations to show why the RSO should not be cancelled.40 [58] The new evidence should be admitted because it demonstrates that the magistrate acted on an incorrect factual basis by taking into consideration financial expenditure as extra-curial punishment. It is therefore necessary to re-exercise the sentencing discretion. Resentence [59] The maximum penalty for an offence of providing a document containing false or misleading information contrary to s 480(1) EPA is 4500 penalty units or 2 years imprisonment. For a body corporate, the maximum penalty is five times the maximum fine for an individual.41 Therefore the maximum penalty is $3,002,625. The same maximum penalty applies to the offence of contravening a condition of an EA contrary to s 430(3) EPA. 38 Affidavit of Lachlan Arthur Rush filed 26 August 2022, Ex. LAR-2. 39 Affidavit of Lachlan Arthur Rush filed 26 August 2022, Ex. LAR-3. 40 Affidavit of Lachlan Arthur Rush filed 26 August 2022, Ex. LAR- 5. 41 Penalties and Sentences Act 1992, s 181B(3). -- 18 of 24 -- 19 [60] The object of the EPA is set out in s 3 which provides: “3 Object The object of this Act is to protect Queensland’s environment while allowing for 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 (ecologically sustainable development).” [61] The regulatory framework relies very heavily on the honesty of those who apply for licences. [62] The sentencing guidelines in s 9(1) Penalties and Sentences Act 1992 provide: “9 Sentencing guidelines (1) The only purposes for which sentences may be imposed on an offender are— (a) to punish the offender to an extent or in a way that is just in all the circumstances; or (b) to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or (c) to deter the offender or other persons from committing the same or a similar offence; or (d) to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or (e) to protect the Queensland community from the offender; or (f) a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).” [63] The offence of providing false or misleading information was a deliberate attempt to circumvent the licencing requirements under the EPA. [64] On the hearing of the appeal Tyre Transitions sought to adduce new evidence to support a submission made before the magistrate relating to an assertion by Mr Simmons during his interview on 19 February 2021 that he made a telephone call to the DES in which he was told that he did not have a compliance history, as he understood it.42 It was submitted that as a consequence Mr Simmons completed and 42 T1-18: 27-47. -- 19 of 24 -- 20 returned the application form. Counsel for Tyre Transitions said that there were no records put before the court but relied on Mr Simmons’ assertions in the interview. [65] Tyre Transitions’ outline of submissions on the appeal, which is signed by Mr Simmons state: “Before I signed the Application Form, I phoned the Department of Environmental (sic) Science from my Mobile Phone (phone records attached - Attachment 1a) to clarify whether or not I could sign the Form. The reason that I was checking, was because I was unsure of the previous History of Company or Personal Offences, as I have also represented my Ex Wife on matters, due to her mental Health and Marriage breakdown.” [66] The attachment to the outline of submissions shows a call from Mr Simmons mobile phone to a phone number which is said to be that of the DES on 29 August at 12:06:11 pm.43 [67] The outline of submissions also contains an email in relation to the circumstances surrounding the completion of the RSO application.44 [68] The magistrate’s approach to the phone call is reflected in the following remarks: “There is now some dispute as to whether the phone call conversation ever occurred. In my view, whether the phone call was made or not, does not have to be resolved to establish the gravity of the offending. Mr Simmons was the officer of the company who completed the documents wherein the false answers were made.”45 [69] It must have been apparent to Mr Simmons that there were suitability matters to declare. In 2015 he was personally fined for environmental offences relating to the transport of asbestos without an ERA In 2010 NCRD, of which Mr Simmons was the sole director and had a significant shareholding, had its registration cancelled for providing false and misleading information. The new evidence does not dimmish Tyre Transitions’ culpability. [70] The transport, storage and disposal of tyres is an environmentally relevant activity because it has the potential to release contaminants into the environment and cause environmental harm.46 43 The year is not stated but presumably the call was in 2019. 44 Attachment 1B. 45 Magistrate’s decision T3: 1-5. 46 Environmental Protection Act 1994, s 19(1). -- 20 of 24 -- 21 [71] Tyres can be a source of health and environmental concerns. Fires in stockpiles can release toxic gases and other contaminants to air, land, and if fire safety officers are able to extinguish the flames, the water used can spread contaminants to other environments including surface waters. Tyres also provide breeding habitats for mosquitoes and vermin. [72] The prosecution accepted that there was no evidence of actual environmental harm having been caused. It was also accepted that the majority of the tyres were on the site prior to Tyre Transitions taking over. Tyre Transitions added a comparatively small number of tyres, although the precise number was not known. [73] The prosecution accepted that decreasing the number of tyres on the site to 500 as required by Condition W3 would have been a relatively difficult and costly exercise. However, there is no apparent reason why Tyre Transitions could not have complied with the configuration requirement in Condition W5 which provided that tyres awaiting processing would be stocked in stockpiles with dimensions no more than 2 metres in height, 5 metres in width at the base, and 45 metres length at the base. Instead, Tyre Transitions instructed its workers to reclaim tyres which were safely stored underground and in dams and contributed to the storage risk and also by collecting new tyres from other businesses. [74] The following factors in mitigation are relevant: (a) Tyre Transitions indicated an early plea of guilty to the offence of providing false or misleading information; (b) although the charges of contravening a condition of the EA were listed for hearing, the plea of guilty was timely; (c) Tyre Transitions cooperated with the investigation by the DES although to an extent the cooperation was under the compulsory powers in the EPA. [75] A number of comparable cases were placed before the Magistrates Court. The most comparable case relating to the offence of providing false or misleading information was Sargent v Defwom Property Management Pty Ltd.47 The defendant, Defwom Property Management Pty Ltd (Defwom) pleaded guilty to carrying out an ERA 47 Magistrates Court at Brisbane, 18 December 2015. -- 21 of 24 -- 22 activity without an EA and giving to the administering authority a document containing information that Defwom knew or ought reasonably to have known was false or misleading in a material particular. Defwom was fined $60,000 for the offence of carrying out an ERA activity without an EA. It was fined $60,000 for the offence of providing false or misleading information. The applicable maximum penalties for the offences committed by a corporation were fines of $915,750 for each offence. [76] Defwom operated a quarry which it allowed QQG to operate on its behalf. QQG carried out the ERAs of extraction and screening on the site under its EA from 3 May 2013 until at least 22 October 2014. However, the EA was not valid because, at the time, the law provided that an EA did not take effect until a development permit for the activity took effect. On 25 November 2013 Defwom applied for an EA which indicated that a material change of use was not triggered for the site and that a development application was not needed to grant the EA. This was false in that a development approval was needed for the EA to be granted. The provision of false and misleading information led to Defwom being granted an EA in circumstances where it should not have been granted. [77] There was no development permit for extractive and screening activities on the site until 22 October 2014, so between 3 May 2013 and 22 October 2014 Defwom was undertaking the ERAs of extraction and screening without an effective environmental authority. [78] The range of sentences in comparable cases does not necessarily determine the limits of the sentencing discretion.48 A sentencing court is required to have regard to the maximum penalty prescribed for an offence.49 An increase in the maximum penalty for an offence will generally result in more severe penalties.50 [79] The most comparable case in relation to the offences of contravening a condition of an EPA is DES v Dale and Meyers Operations Pty Ltd.51 The defendant, Dale and Meyers Operations Pty Ltd (D&M) pleaded guilty to three offences involving wilfully 48 R v Pham (2015) 256 CLR 550 at [27]. 49 Penalties and Sentences Act 1992, s 9(2)(b). 50 R v Murray [2014] QCA 250 at [16]. 51 Magistrates Court at Maryborough, 23 September 2020. -- 22 of 24 -- 23 releasing contaminants to waters in excess of the limits prescribed in its EA over a period from October to December 2017 and one offence for non-wilfully failing to ensure that the equipment necessary to ensure compliance with the conditions of the EA were maintained in a proper and efficient condition. D&M was fined $22,000. The court took into account D&M’s early plea of guilty, cooperation with the investigation, remorse, that it was a good corporate citizen with substantial and historical ties to the community and the steps that had been taken and costs incurred to ensure that further offending would not occur. Conclusion [80] Having regard to the serious nature of the offence of providing false or misleading information, the applicable maximum penalty and the need for specific deterrence, I consider that the appropriate fine is $90,000. There is no material to suggest that a recorded conviction would impact on Tyre Transitions’ economic or social wellbeing. Having regard to the nature of the offence, a conviction should be recorded.52 [81] In respect of the offences of contravening a condition of an environmental authority, a single fine of $20,000 is appropriate. The DES did not seek the recording of convictions for those offences. Orders [82] Accordingly, I make the following orders: 1. Appeal allowed. 2. In respect of the offence of providing a document containing false or misleading information contrary to s 480(1) Environmental Protection Act 1994, set aside the orders that a conviction not be recorded and that Tyre Transitions Pty Ltd be fined $75,000 and instead order that: (a) a conviction be recorded; (b) Tyre Transitions Pty Ltd be fined $90,000; 3. In respect of the offences of contravening a condition of an environmental authority contrary to s 430(3) Environmental Protection Act 1994: (a) set aside the order that Tyre Transitions Pty Ltd be fined $5,000 and instead order that Tyre Transitions Pty Ltd be fined $20,000; 52 Penalties and Sentences Act 1992, s 12(2). -- 23 of 24 -- 24 (b) confirm the order that convictions not be recorded. 4. The fines are referred to the State Penalties Enforcement Registry. 5. Confirm the orders that: (a) Tyre Transitions Pty Ltd pay legal costs of $2,500; (b) Tyre Transitions Pty Ltd pay investigation costs of $3,880. -- 24 of 24 --