The Land and Environment Court has sentenced a defendant, Dib Hanna Abdallah Hanna, to pay some of the largest penalties ever levied in Australia for committing offences involving the illegal dumping of asbestos-containing waste. In a judgment that was handed down by Chief Justice Preston on 23 September 2014, Mr Hanna was fined $225,000 for four separate offences that he committed on 5 April 2012. He was also ordered to publish prominent advertisements giving notice of the offences both in the Sydney Morning Herald and in the local newspapers circulating in the area where the offences were committed. A news article about the case can be found at the following link: http://www.smh.com.au/nsw/serial-offender-fined-225000-for-illegally-dumping-asbestos-waste-20140923-10kpko.html and the Court's judgment in the case, Bankstown City Council v Hanna, (2014) NSWLEC 152 can be found here:
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174257
Although the fines that were meted out to Mr Hanna were undoubtedly very large by Australian standards, it is our view that they were actually low by international standards (similar conduct would have garnered much larger fines in US jurisdictions). The penalties were also substantially less than the maximum that could have been imposed under the applicable legislation (the Protection of the Environment Operations Act) of $1 million. In view of the defendant's lengthy record of prior offences, and the fact that the dumping incidents with which he was charged took place after orders were made by the Land and Environment Court restraining him from transporting waste to any location other than a properly approved disposal site, it is our observation that this defendant could surely have been dealt with even more severely, and that a more stringent sentence would not have been disproportionate to the conduct involved in this prosecution.
The conduct that gave rise to this case involved the transportation of truckloads of asbestos containing building waste both to a privately owned property and to a public park located in the "Picnic Point" area of Bankstown Council's local government area. The defendant dumped 8 loads of material, comprising eighty tonnes of waste, onto the private land, and 10 tonnes of waste onto the public park. The stockpiles of waste that were deposited both on the private land and the public park contained both chrysotile and amosite asbestos.
Although Chief Justice Preston found that the waste dumping incidents had caused substantial environmental harm as well as financial loss both to the owners of the private land and the Council which maintained the public park where the waste was dumped (for removal of the waste stockpiles); that the offences had been premeditated, intentional and committed with knowledge that the dumping activity was illegal; and that the defendant illegally dumped the waste in order to achieve financial gain by avoiding landfill tipping fees, Chief Justice Preston characterised the offences as being only of "medium objective gravity".
It is our opinion that these incidents, involving the purposeful and knowing dumping of asbestos containing waste both on a public park and on the private property of innocent landowners could easily have been classified by the Court as an offence falling on the higher end of the range of objective seriousness, and not just of "medium" gravity (and thus deserving of even greater penalties).
Similarly, it is our perspective that this particular defendant's lengthy record of previous offences was an "aggravating circumstance" that could well have justified even more serious penalties. Chief Justice Preston's judgement recites that the defendant's prior record of waste dumping offences included 5 prior convictions in the Local Courts of NSW; 4 prior convictions in the Land and Environment Court; and a previous finding of contempt of court for breach of the restraining order (the contempt proceedings involved the same dumping incidents that gave rise to this prosecution against Mr Hanna). Furthermore, Chief Justice Preston's judgement recites that the defendant did not pay the majority of the fines that were imposed as a result of those previous prosecutions. Again, it is our opinion that this virtual "laundry list" of previous environmental offences would have supported an exceptionally large penalty.
While it could surely be argued that the penalties imposed in this case could and should have been higher, there can be no doubt that they are quite severe by the standards of previous environmental prosecutions in NSW and Australia. Undoubtedly, Chief Justice Preston's judgement should send a loud and unmistakable message that persons who engage in multiple incidents of dumping asbestos containing waste will receive large penalties. Indeed, the defendant was fortuitously "lucky" that the offences in this case were committed prior to the time that the POEO was amended to provide for the possibility of imprisonment for a person who commits a "waste offence" (waste offences include illegal dumping) within 5 years of being convicted of an earlier offence. Clearly, a future defendant with a record of flagrant noncompliance with the law such as the defendant in this case will be at grave risk of jail time.
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