Citation: R v Afram [2021] NSWDC 845
Court: District Court of NSW
Date: 24 June 2021
Judge: King SC DCJ
Background
The offender was the sole director of a contracting company that won a tender to collect and dispose of contaminated soil waste from a major construction site at Green Square in Sydney's Zetland suburb. The project involved removing asbestos-contaminated material and other restricted waste, with the company contracted to dispose of it at licensed facilities and to pay the applicable EPA levy of $135.70 per tonne.
Instead of disposing of the waste lawfully, the offender directed over 600 truck movements that illegally dumped the material, primarily on a privately owned semi-rural property at Kulnura, without the landowner's knowledge. He invoiced the principal contractor, Ertech Pty Ltd, for $4,228,288 using fabricated weighbridge documents and false receipts purporting to show that licensed facilities had received the waste. Ertech paid the invoices in full.
The offender was charged with a single rolled-up count of causing a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900. He entered a guilty plea on 4 March 2021, well after the matter had been listed for trial.
Legal Issues
- What sentence was appropriate for a single rolled-up charge of causing a financial advantage by deception involving fraudulent documents and the illegal dumping of significant quantities of dangerous contaminated waste?
- What weight should be given to the offender's belated guilty plea under the Earlier Appropriate Guilty Plea scheme?
- How should the court balance the objective seriousness of the offending against the offender's subjective circumstances, including family obligations, remorse, and low risk of reoffending?
- Whether the statutory threshold under s 5 of the Crime (Sentencing Procedure) Act 1999 for a custodial sentence was crossed, and if so, whether an Intensive Correction Order was appropriate.
Decision
King SC DCJ found the offending was objectively serious. It involved elaborate and sustained deception over more than a year, the production of approximately 600 counterfeit disposal dockets, the coordination of more than 50 trucks and their drivers, and the illegal dumping of significant quantities of dangerous waste including asbestos-contaminated material. The full location of the dumped waste remained unascertained at the time of sentencing.
Although Ertech and the City of Sydney Council did not ultimately suffer a direct financial loss, they were exposed to significant financial risk. The $2,398,656 in EPA levies collected from Ertech was never remitted to the NSW state government, representing a substantial financial benefit to the offender obtained by fraud.
The court allowed only a 5% discount for the guilty plea, given how late it was entered. A further discount was applied, bringing the total reduction to 35%, having regard to other subjective factors including the offender's genuine remorse and contrition, his low risk of reoffending, and his significant caring responsibilities for a daughter with a disability. His time already spent in custody (14 days) was also taken into account.
The court found that the s 5 threshold for a custodial sentence had been crossed and determined that a term of two years' imprisonment was appropriate. However, King SC DCJ concluded that the community would be better served by the sentence being served by way of an Intensive Correction Order, which would also allow the offender to continue meeting his family obligations. General deterrence was identified as a significant sentencing consideration; specific deterrence was given less weight given the offender's particular circumstances.
Orders Made
- Two years' imprisonment to be served by way of an Intensive Correction Order.
- The offender to attend the registry immediately to complete the required paperwork.
- The offender to be of good behaviour during the period of the order.
- The offender to report to the Fairfield Community Corrections office by midday the following Wednesday.
- The offender to be supervised by Community Corrections for the term of the order and to obey all reasonable directions given by Community Corrections.
- The offender to engage in such psychological or psychiatric treatment as directed by Community Corrections.
Key Takeaways
- A single rolled-up charge of causing a financial advantage by deception can encompass a prolonged and large-scale scheme involving the production of hundreds of false documents and the illegal disposal of dangerous contaminated waste.
- Under the Earlier Appropriate Guilty Plea scheme, a very belated plea entered after a trial date had already been set attracted a discount of only 5% for the utility of the plea alone.
- General deterrence remains a significant consideration in sentencing for sophisticated fraud involving environmental harm, even where the offender presents a low risk of reoffending.
- The District Court found that crossing the s 5 custodial threshold does not preclude an Intensive Correction Order where the sentencing court concludes the community is better served by a non-custodial form of supervision, particularly when combined with significant family caring responsibilities and genuine remorse.
- Substantial caring responsibilities for a family member with a disability formed a meaningful mitigating factor in determining the form of the sentence, even in the context of serious and organised offending.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 192E(1)(b) (cause financial advantage by deception; maximum penalty 10 years' imprisonment)
- Crime (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing), s 5 (threshold for custodial sentences), s 23 (relevant to remorse and contrition)
- NSW EPA Waste Classification Guidelines
Cases cited: No cases were cited in the judgment or its metadata.