Aland B & W Pty Ltd v Blacktown City Council

EC 419; (2006) 148 LGERA 299 Fairfield City Council v Quality Handling Systems Pty Ltd [2013] NSWLC 7 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Gore v The Queen [2010] NSWCCA 330; 208 A Crim R 353 Hijazi v Georges River Council [2020] NSWLEC 36 Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Marano v Tweed Shire Council [2021] NSWLEC 95 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188] Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v MAK; R v K [2006] NSWCCA 381; 167 A Crim R 159 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 at 177 R v Thoon; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 R v Wickham [2004] NSWCCA 193 Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Warringah Council v ProjectCorp Australia Pty Ltd (ACN 100 424 440) [2015] NSWLEC 141 Water NSW v Barlow [2019] NSWLEC 30 Category: Principal judgment Parties: Aland B & W Pty Ltd (Appellant) Blacktown City Council (Respondent) Representation: Counsel: M Fozzard (Appellant) A Sinclair (Respondent) Solicitors: Aland Management Services (Appellant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2022/254408; 2022/254421 Publication restriction: Nil

Aland Appeals Against the Sentence of the Local Court for the Pollution of Waters

1. The appellant, Aland B & W Pty Ltd ("Aland"), appeals against the severity of the sentence imposed by the Local Court in a prosecution brought by the respondent, Blacktown City Council ("the Council"), for two offences of polluting water contrary to s 120(1) of the Protection of the Environmental Operations Act 1997 ("POEO Act"). The appeal is brought pursuant to s 31(1) of the Crimes (Appeal and Review) Act 2001 ("the Review Act"). The penalty imposed amounted to a total of $142,500 for the commission of the two offences.
2. Aland is a company in a corporate group specialising in development, construction, finance and property management. Andrew Hrsto is the sole director/secretary of Aland.
3. Aland operated construction sites at 37 Manchester Drive and 129 Jerralong Drive, Schofields, namely, Lots 8 & 9 in DP 1223464, ("the properties"). The properties are also known as "Breynia" and "Lotus", respectively.
4. I have determined that the appeal against the severity of the sentence imposed at first instance should be allowed. As the reasons below disclose, having regard to the objective and subjective factors informing the commission of the offences, the monetary penalties imposed by the Local Court cannot be sustained upon rehearing and must be set aside. In lieu thereof, a total fine of $72,500 is imposed.

Legislative Framework Governing the Offences

1. Section 120 of the POEO Act provides: 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence. (2) In this section-- pollute waters includes cause or permit any waters to be polluted.
2. The Dictionary to the POEO Act relevantly defines "water pollution" or "pollution of waters" to include: Dictionary … (d) placing any matter (whether solid, liquid or gaseous) in a position where - (i) it falls, descends, is washed, is blown or percolates, or (ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted…
3. Section 123 of the Act provides that the maximum penalty for a corporation for a water pollution offence is: 123 Maximum penalty for water pollution offences A person who is guilty of an offence under this Part is liable, on conviction - (a) in the case of a corporation--to a penalty not exceeding $1,000,000 and, in the case of a continuing offence, to a further penalty not exceeding $120,000 for each day the offence continues…
4. Finally, s 257 provides: 257 Occupier of premises responsible for pollution from premises (1) In any proceedings under this Act, the occupier of premises at or from which any pollution occurs is taken to have caused the pollution, unless it is established that - (a) the pollution was caused by another person, and (b) the other person was not associated with the occupier at the time the pollution occurred, and (c) the occupier took all reasonable steps to prevent the pollution. A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier. (2) Subsection (1) does not prevent proceedings being taken under this Act against the person who actually caused the pollution.
5. The Dictionary to the POEO Act relevantly defines "occupier" of premises to mean "the person who has the management or control of the premises".
6. It was not a matter of dispute that Aland was the occupier of the premises (that is, the properties) at all relevant times for the purpose of the POEO Act.

Aland Operates a Construction Site and Fails to Impose Soil Erosion and Sediment Control Measures

The Lotus Development

1. The Lotus property had the benefit of development consent JRPP-16-03338, as modified by MOD 21/0050 ("Lotus consent"). The Lotus consent authorised the erection of three residential flat buildings containing 197 units, including basement car parking, stormwater drainage and landscaping.
2. Lotus 88 Development Pty Ltd, the applicant for the Lotus consent, contracted Aland to design and construct the approved development.
3. Aland is listed as the builder on construction certificate 20/0543-03, which was the third construction certificate issued in relation to that development.

The Breynia Development

1. The Breynia property has the benefit of development consent JRPP-16-03333 ("Breynia consent"). The Breynia consent authorises the erection of three residential flat buildings containing 177 units, including basement car parking, stormwater drainage and landscaping.
2. The applicant for the Breynia consent was Breynia 88 Development Pty Ltd, who contracted Aland to design and construct the approved development.
3. Aland is listed as the builder on construction certificate 21/0247-01, which was the first construction certificate issued in relation to that development.

Soil Erosion and Sediment Control Measures Specified in the Consents

1. Although Aland was not charged with, and cannot be sentenced for, a breach of its development consents, it is nevertheless necessary to have regard to the soil erosion and sediment control measures specified in the consents.
2. Aland was required to implement, maintain and monitor soil erosion and sediment control measures on the properties pursuant to condition 11.6.1 in the Lotus and Breynia consents.
3. The consents refer to the Council's Soil Erosion and Sediment Control Policy, which is comprised by Part J of the Blacktown Development Control Plan 2015 ("DCP"), the Council's Engineering Guide for Development and the Council's Civil Works Specification ("Specification").
4. Clause 4.5 of Part J of the DCP and cl 1.12 of the Guide require works and activities to be undertaken in accordance with Managing Urban Stormwater: Soils and Construction - Volume 1 (Landcom, 1 March 2004) ("Blue Book"). Section 3.1 of the Specification refers to the Blue Book for works and control measures not covered by Section 3 of the former document.
5. Aland had an Erosion and Sediment Control Plan ("Sediment Control Plan") for Stage 3 of the Lotus development prepared by S & G Consultants Pty Ltd, dated 24 November 2021 (Project No 20190152, Drawing Nos SW400 & SW401, Revision No 15).
6. Some of the soil erosion and sediment control measures which Aland had to undertake included, relevantly: 1. correctly stabilising the properties' access to reduce the likelihood of vehicles tracking soil materials onto public roads and to ensure all-weather entry/exit; 2. installing and maintaining a sediment filter, being a sediment fence; and 3. installing sandbags to prevent stormwater pollution as part of the Lotus Control Plan.

Antecedent Inspection on 7 May 2021

1. On 7 May 2021 Amelia Tabrett, the Council's Environmental Health Officer, attended the properties to respond to concerns raised by residents regarding truck movements tracking mud and other inorganic matter on roads in the vicinity of the properties and that the material was polluting the area.
2. Tabrett observed that on Manchester Drive, which runs perpendicular to Isla Street: 1. there was no stabilised access point for entry or exit to and from both access points at the end of the street, contrary to s 6.3.9 of the Blue Book. The approximate area that was unstabilised was 242 m2 with approximate dimensions of 16 m x 12 m; 2. consequently, there was a thick layer of mud and sediment on the road of an approximate area of 645 m2, being approximately 70 m x 10 m; and 3. there was no sediment fence installed on the southern side of the properties, contrary to s 6.3.7 of the Blue Book and the Lotus Control Plan.
3. While inspecting the properties, Tabrett had the following conversation with the project manager, Ash Goro (at all material times Goro was employed by Aland Project Management Pty Ltd, a related company of Aland): Tabrett: … Can we talk about the issues here? You have a large site here, usually with sites this big, with many vehicle movements there are much more extensive sediment and erosion controls to prevent sediment being tracked from the site onto the road. Goro: Yeah, I understand. I'll have this end closed off again and get some better stabilised access off Isla Street for the trucks. Tabrett: That would be great, thanks. I will do a reinspection.
4. Goro sent a text to Tabrett at 3:42 pm with photos indicating that the cul-de-sac on Manchester Drive had been cleaned and that temporary fencing had been installed.

Inspection on 2 July 2021

1. On the morning of 2 July 2021 ("2 July 2021 offence"), Tabrett undertook sediment and erosion control re-inspections of the Schofields area. Between 10:56 to 11:08 am Tabrett specifically attended the properties to undertake the re-inspections.
2. In respect of Isla Street, Tabrett observed that: 1. construction was occurring and workers were on the properties; 2. the main entry/exit to the properties on Isla Street was not adequately stabilised to ensure that sediment was not tracked off by vehicles, contrary to s 6.3.9 of the Blue Book. The area of the unstabilised access was approximately 100 m2 with approximate dimensions of 10 m wide x 14 m deep; and 3. consequently, a significant amount of mud had been tracked from the properties onto Isla Street and into the gutter, with an approximate area of 2500 m2, being 170 m long x 12 m wide.
3. Photographs taken by Tabrett on Isla Street showed the following: 1. inadequate stabilisation of the main entry/exit to the properties on Isla Street and mud that had been tracked from the properties onto Isla Street and into the street gutter. The approximate area that was unstabilised was 242 m2 with approximate dimensions of 16 m x 12 m; and 2. Isla Street with mud and sediment tracked onto part of the road. The mud covering the whole of Isla Street had an approximate area of 2500 m2 being 170 m long x 12 m wide.
4. Evidence provided to the Court included the stormwater drainage system surrounding the properties, maps of the local waterways and the Eastern Creek catchment.
5. The properties are in an area which is part of the Eastern Creek catchment. Specifically, the water that washes into the stormwater drains discharges to a natural waterway located on the north side of Jerralong Drive and into the tributaries of Eastern Creek.
6. The properties are approximately 80 m from Jerralong Creek over land. The drainage system from the properties to Jerralong Creek traverses a distance of approximately 50 m to Jerralong Drive. The stormwater system flows from there to an unknown point of discharge at Jerralong Creek.

Inspection on 9 July 2021

1. Tabrett attended the properties on 9 July 2021 ("9 July 2021 offence") to undertake a sediment and erosion control re-inspection and to collect water samples. It was raining lightly at the time of Tabrett's inspection and it had been raining previously that day.
2. The photographs on Isla Street showed the following: 1. a lack of a stabilised access point for entry to or exit from the western end of the properties to ensure that mud and sediment was not tracked off the properties by vehicles, contrary to s 6.3.9 of the Blue Book. The approximate unstabilised area was 242 m2 with approximate dimensions of 16 m x 12 m; 2. the mud and sediment that had been tracked onto Isla Street. The mud covering the whole of Isla Street had an approximate area of 2500 m2, being 170 m long x 12 m wide; and 3. the mud and sediment that was washing into the gutter and stormwater drain on Isla Street. The mud covering the whole of Isla Street had an approximate area of 2500 m2, being 170 m long x 12 m wide.
3. While taking the photographs, Tabrett was approached by Goro. They had the following conversation: Tabrett: I am investigating water pollution from this site resulting from the poorly maintained sediment and erosion controls. Goro: But we have drain socks and covers and cleaning as we go. Tabrett: (Pointing to access point) your stabilised access has not been maintained which is causing trucks to track sediment onto the road and being washed into the gutter. Goro: But that's all mainly concrete, it's just because it's raining that the dirt has come out, but we are cleaning the road throughout the day. There is concrete under the dirt. Tabrett: With proper stabilised access the dirt shouldn't be entering the street in the first place. Goro: Yeah, ok.

Subsequent Inspection on 23 July 2021

1. Tabrett undertook another re-inspection of the properties at 3:04 pm on 23 July 2021.
2. Tabrett observed that further sediment and erosion control measures had been implemented, including a new stabilised access and stormwater drain protection on Isla Street, and that the roadway appeared to have been cleaned. Some soil tracked from the site was, however, still evident on the road.

The Local Court Proceedings

1. On 6 December 2021 the Council served Aland with a request for information pursuant to s 193 of the POEO Act. On 1 February 2022 Aland provided responses to the request for information.
2. On 21 April 2022 the Council served Aland with two Court Attendance Notices for the offences in the Local Court.
3. On 26 May 2022 Aland entered a plea of guilty in respect of both offences.
4. On 29 July 2022 Aland was fined for the two s 120 offences committed under the POEO Act in the Local Court, as follows: 1. for the 2 July 2021 offence, a fine of $90,000; and 2. for the 9 July 2021 offence, a fine of $100,000.
5. The Local Court applied a 25% discount to both offences, resulting in the fines of $67,500 and $75,000, respectively, totalling $142,500.
6. Aland was also ordered to pay to the Council's costs fixed in the sum of $12,000.

The Nature of an Appeal Against Sentence in the Court

1. An appeal against sentence is made to this Court as of right under s 31(1) of the Review Act: 31 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence.
2. Section 39(2) of the Review Act provides that: 39 Determination of appeals (2) The Land and Environment Court may determine an appeal against sentence - (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal.
3. An appeal against sentence proceeds by way of a rehearing, and unlike an appeal against conviction, is not limited to the evidence before the Court below. That is, the parties are not required to obtain leave to adduce fresh evidence (Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 at [51], Cmunt v Commissioner of Police NSW [2019] NSWLEC 33 at [21] and Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86 at [2]).

Evidence of Aland

1. On appeal, Aland relied on an Agreed Statement of Facts ("ASOF") filed 8 December 2022, much of which has been summarised above.
2. Aland also tendered the affidavit of Fadi Saleam, sworn 19 December 2022, which annexed: 1. a letter of contrition written by Andrew Hrsto, the director of Aland; 2. a log of sediment control activities at the properties, including road sweeps from 12 April 2021; and 3. tax invoices issued during the implementation of Aland's Erosion and Sediment Control Plan.

The Council's Evidence

1. The Council adduced no additional evidence to the ASOF.

The Sentencing Principles

1. A fundamental tenet of sentencing law is that the sentence imposed must reflect and be proportionate to the objective circumstances of the commission of the offences and the personal or subjective circumstances of the offender (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).
2. The instinctive synthesis method is the correct method of sentencing. The Court identifies all the factors relevant to the sentence and weighs their significance to arrive at the imposition of an appropriate penalty (Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] and [29] and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).
3. The Court is required to take into account matters set out in s 241 of the POEO Act, which relevantly include: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant)-- (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, … (2) The court may take into consideration other matters that it considers relevant.
4. Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA") also sets out the purposes of sentencing an offender: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.

Objective Circumstances of the Offences

1. The Court must consider the objective gravity or seriousness of the commission of the offences. Matters that were in dispute during the trial, and relevant to the factors contained s 241 of the POEO Act, include (Bentley at [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48]): 1. the nature of the offences; 2. the maximum penalty for the offences; 3. the harm caused to the environment by the commission of the offences; 4. Aland's state of mind in committing the offences; 5. Aland's reasons for committing the offences; 6. the foreseeability of the risk of harm to the environment by the commission of the offences; 7. the practical measures available to Aland to avoid harm to the environment; and 8. Aland's control over the causes of harm to the environment.
2. Aland submitted that the 2 July 2021 offence fell towards the lower end of objective seriousness, whereas the 9 July offence tended towards the lower end of the low to mid-range spectrum.
3. The Council submitted that the offending in respect of the commission of both offences was in the low to mid-range on the spectrum of objective seriousness.
4. For the reasons that follow, I agree with Aland.

Nature of the Offences

1. A fundamental consideration of relevance is the degree to which the offender's conduct offends against the legislative objectives expressed in the statutory offence (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15] and Rawson at [49]).
2. In this regard the Court must consider the objects of the POEO Act as relevantly set out in s 3 of that Act: 3 Objects of Act The objects of this Act are as follows - (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, … (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following - (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, …
3. In this instance, the failure to implement sufficient soil sediment and erosion controls at the properties subverted the integrity of the environmental protection scheme, in particular, the need to reduce the discharge of substances likely to cause harm to the environment in the form of water pollution. The offending increased the turbidity of the water and caused actual water pollution to occur.
4. Aland submitted that its offending conduct was tempered by its actions in: 1. installing a filtration barrier on the grate of the stormwater drain; 2. putting in place a sandbag in the gutter to prevent mud; 3. installing drain socks; 4. putting concrete underneath the access point; and 5. implementing a road-sweeping program from 12 April 2021 onwards.
5. There is no doubt that these measures went some way to mitigating the objective seriousness of the commission of the offences and will be considered in the context of correlated matters under s 241 of the POEO Act.

Maximum Penalty

1. The maximum penalty for an offence is reflective of the seriousness with which the Parliament views its commission (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Plath at [67]).
2. Under s 123(a) of the POEO Act, the maximum penalty for each of the s 120(1) POEO Act offences is $1,000,000 for a corporation.

Aland's Reasons for Committing the Offences

1. The objective seriousness of the offences may also be measured by reference to the reason for their commission (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366; Gittany at [140]-[141]; Bentley at [237], [246]-[247] and Rae at [47]). Offences committed for financial gain increase their objective gravity (CSPA s 21A(2)(o)).
2. Aland's failure to implement adequate sediment and erosion measures did not eventuate in any financial profit and nor was their commission motivated by any pecuniary imperative. The eventual instalment of a sediment fence on Manchester Drive and the implementation of a road-sweeping program over a period of several months demonstrate that it was willing to incur expense on soil erosion and sediment control measures.

Environmental Harm

1. The extent of the harm caused, or likely to be caused, to the environment by the commission of the offences is a relevant sentencing consideration under s 241(1)(a) of the POEO Act. The dictionary to the POEO Act defines "harm to the environment" to include "any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution".
2. In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[149], Preston J opined that the concept of environmental harm encompasses: 145 Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account… Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. … 147 Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously. 148 The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty.... 149 The fact that the environment harmed by the offender's conduct was already disturbed or modified is not a mitigating factor...
3. Mud, sediment and other similar inorganic matter in water can cause turbidity, which reduces the amount of light able to penetrate the water and can have a potentially adverse impact on organisms living in the water.
4. Nevertheless, in Warringah Council v ProjectCorp Australia Pty Ltd (ACN 100 424 440) [2015] NSWLEC 141, Craig J accepted (at [190]): 190 …while sediment is a pollutant for the purpose of considering an offence against s 120 of the POEO Act, with the potential to occasion the environmental harm that I have described, the discharge of water with sediment in suspension is a far less potent pollutant than many other pollutants that are the subject of charges often brought before this Court for an offence against the section…

Practical Measures to Avoid Harm

1. I accept the Council's submissions that Aland, as occupier of the properties, had the financial and practical means to take measures to avoid the environmental harm caused. Aland was a large developer operating two large development sites worth $50 million. It had adequate resources to implement proper stabilisation measures to prevent soil erosion and to control sediment deposition.
2. There is no doubt that Aland could have taken additional practical measures to reduce sediment and soil erosion being deposited on the roads (see s 241(b) of the POEO Act). For example, by: 1. correctly stabilising the site access to reduce the likelihood of vehicles tracking soil onto Isla Street and by ensuring the entry and exit points were suitable for all weather events; 2. not carrying out work when it was evident that the measures being employed were not effective to prevent mud or sediment from being tracked onto the surrounding roads; and 3. installing and maintaining a sediment fence to ensure that no mud or sediment exited the properties to prevent it from being washed into the surrounding gutters or stormwater drains.
3. Nevertheless, it must be acknowledged that some measures such as road-sweeping, sandbags, drain socks and drain filters implemented by Aland went some way to preventing and mitigating the harm caused by the commission of the offences, a matter that I take into account.

Aland's State of Mind at the Time of the Commission of the Offences

1. The offences are crimes of strict liability which means that mens rea is not an element of the offence. However, the state of mind of an offender at the time of committing the offences is nevertheless a relevant consideration when imposing a sentence because a strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one committed accidentally (Rae at [42]-[43] and Gittany at [123]).
2. I reject Aland's submission that to take into account its state of mind at the time of the commission of the offences infringes the De Simoni principle (R v De Simoni [1981] HCA 31; (1981) 147 CLR 383) because of the presence of s 116(1) of the POEO Act, a provision that provides that: 116 Leaks, spillages and other escapes (1) If a person wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) in a manner that harms or is likely to harm the environment - (a) the person, and (b) if the person is not the owner of the substance, the owner, are each guilty of an offence.
3. Application of the De Simoni principle precludes taking into account matters which would result in the offender being punished for the more serious offence contained in s 116(1), for which the offender has not been charged and convicted (R v De Simoni at [389]).
4. However, in Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100, the Court observed the following (at [158]-[159]): 158 The principle in De Simoni will not be breached if the Court takes in account conduct not to punish the offender for that conduct, but for some other reason such as to assess the objective seriousness of the offence for which the offender has been convicted (Weininger v R [2003] HCA 14; (2003) 212 CLR 629 at [31], Bourke at [70] and Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 at [146] per Basten JA) provided that the conduct is not entirely separate and distinct from that giving rise to the offence charged but is an incident of the conduct giving rise to the commission of the offence (Wilkins v R [2009] NSWCCA 222 at [34]-[35], Bourke at [55], [62] and [70] and Adams v R [2011] NSWCCA 47 at [29]-[35]). 159 Similarly, the principle is not breached if the otherwise offending conduct is considered for the purpose of assessing the need for specific deterrence (Thuong Nguyen v R [2012] NSWCCA 184 at [30]-[31]). Nor is it contravened if the offender is punished for facts that merely satisfy the elements of the offence for which they have been convicted even if one of those elements amounts to a circumstance of aggravation sufficient to establish guilt for another more serious offence (Turkmani v R [2014] NSWCCA 186; (2014) 244 A Crim R 402 at [33]-[46]).

Reasonable Foreseeability of Harm

1. The extent to which Aland could have reasonably foreseen the risk of harm caused by the commission of the offences is a relevant objective circumstance in determining an appropriate sentence (Camilleri's Stock Feeds at 700 and Rawson at [48]. See also s 241(1)(c) of the POEO Act).
2. I find that after the inspection on 7 May 2021, it was reasonably foreseeable that, in failing to properly stabilise all access tracks on the properties, a risk of environmental harm by way of ordinary (not extraordinary) rainfall muddying up the large amounts of dirt on the road, tracking onto the street, and entering the nearby gutter and stormwater drainage system would eventuate.

Control Over Causes of Harm to the Environment

1. Aland submitted that a period of consistent and heavy rainfall ("the rain event"), which occurred between the antecedent inspections and the commission of the two offences, contributed to its difficulties in obtaining assistance in two ways: first, because it stopped Aland from getting contractors in to address the problem; and second, it temporarily halted the road-sweeping program that Aland had implemented prior to the commission of the offences.
2. The schedule of works for the road-sweeping program was annexed to the affidavit of Saleam. It set out the dates when road-sweeping occurred from 12 April 2021 onwards. This included road-sweeping on 6 July 2021, in between the two offending dates. Counsel for Aland was careful to concede that road-sweeping, if not for the period of rain, would have only addressed the problem on 2 July 2021 and not 9 July 2021 when mud entered waters and caused environmental harm. He submitted that the rain event nonetheless related to the degree of control over the causes which undermined Aland's ability to avoid or minimise the harm caused by the offending.
3. In Environment Protection Authority v Maules Creek Coal Pty Ltd [2022] NSWLEC 33, the Court rejected the offender's submission that it did not have complete control over the causes of the commission of the offences because it had no control over the extreme rainfall events that precipitated the offences. The Court said (at [204]): 204 …while it is incontrovertible that MCC did not control the weather, it nevertheless did control the sediment and erosion measures to be implemented to deal with the weather, including extreme weather.
4. I likewise reject Aland's submission. Although Aland does not have control over the weather, the rain event complained of was by no means extraordinary or extreme. Furthermore, Aland had complete control over what type of soil sediment and erosion measures it could implement to stabilise access to the site and to ensure all-weather entry and exit from the properties. It continued with an inadequate road-sweeping program on 6 July 2021 - when it was not raining - rather than engage contractors to install adequate sediment and erosion measures (T18:18-21). Further, as the Council emphasised, the inability to sweep the road due to the rain was not the root cause of the offending. If there had been properly stabilised access, then there would have been no need for the road-sweeping. While the road-sweeping dealt to some extent with the sediment and erosion, it was nevertheless insufficient and would have been, in any event, unnecessary if the access track was properly stabilised. On any view, therefore, Aland had complete control over the causes which gave rise to the commission of the offences (see s 241(1)(d) of the POEO Act).

Conclusions on Objective Seriousness

1. Having regard to the objective factors surrounding the commission of the offences, I find both offences to be at the low end of objective seriousness. Having said this, the commission of the 9 July 2021 offence is more objectively serious than the 2 July 2021 offence by reason of the actual environmental harm that its commission caused.

Aland's Subjective Circumstances

1. Within the limits set by the objective seriousness of the offence, the Court must take into account the subject factors relevant to Aland (Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143 at [116] and [190]).
2. Subsections 21A(2) and (3) of the CSPA set out the aggravating and mitigating factors that the Court must consider. Relevant to the facts of this case they are: 21A Aggravating, mitigating and other factors in sentencing … (2) Aggravating factors … (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A) … (m) assistance by the offender to law enforcement authorities (as provided by section 23)…
3. There are no relevant aggravating factors in this case.

Early Guilty Plea (ss 21(3)(k) and 22 of the CSPA)

1. A plea of guilty by an offender is a mitigating circumstance that the Court must take into account (s 21(3)(k) of the CSPA). In addition, s 22 of the CSPA requires the Court to consider the fact that a guilty plea was entered, when it was entered (or when an intention to plead guilty was indicated), and the circumstances in which that intention was conveyed. The Court may impose a lesser penalty in assessing these factors but must not impose a penalty that is unreasonably disproportionate to the nature and circumstances of the offences (s 22(1A) of the CSPA).
2. An early plea of guilty has utilitarian value to the criminal justice system and entitles an offender to a maximum discount of 25% (R v Thoon; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]).
3. Aland entered into pleas of guilty at the first available opportunity. Therefore, it held substantial utilitarian value and attracts the full 25% discount in respect of any penalty imposed for the commission of the offences.

No Prior Convictions (s 21A(3)(e) of the CSPA)

1. Aland has no prior convictions.

Good Character (s 21A(3)(f) of the CSPA)

1. There was no evidence of Aland's good corporate character so the Court cannot give any weight to this factor.

Aland's Assistance to the Council (s 21A(3)(m) of the CSPA)

1. It was agreed, and I find that, Aland assisted the Council in the prosecution of the offences. It produced documents when requested to do so and agreed to a statement of facts avoiding the need for further affidavit evidence.

Remorse and Contrition (s 21A(3)(i) of the CSPA)

1. The contrition or remorse of an offender must be taken into account as a mitigating factor in determining the appropriate sentence for an offence (s 21A(3)(i) of the CSPA).
2. In Waste Recycling and Processing Corp, Preston J stated that contrition and remorse is more readily demonstrated by an offender "taking actions" rather than offering "smooth apologies" through legal representatives (at [203]). His Honour identified four acts that would demonstrate genuine contrition and remorse (at [204]-[214], applied in Queanbeyan City Council (No 3) at [223]; Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [85]-[89] and Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 at [101]). These are: (a) first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence (at [204]); (b) second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities (at [210]); (c) third, taking action to address the cause of the offence (at [212]); and (d) fourth, the personal appearance of corporate executives in court to give personal evidence of the defendant's regret and a plan of action to avoid repetition of the offence (at [214]).
3. As a demonstration of contrition and remorse, Aland relied upon a letter dated 7 July 2022 from Hrsto, together with the steps taken by Aland to address the harm arising out of the commission of the offences.
4. The letter relevantly stated: Contrition Established in 2002, Aland is a construction company that specialises in the construction of residential and commercial strata properties. The company employs over 100 staff. With over 20 years of operation and a strong family and community focus, safety and industry compliance has and continues to be a priority. As a reputable builder, Aland considers the protection of the environment to be a priority and that this occurrence is an isolated one which is not a reflection of the Company's commitment to environmental care and protection. This is the first offence of its kind. Notwithstanding the offence, Aland continues to proactively implement its Sediment Control Plan and engage contractors to ensure that sediment and erosion to drainage and creek are being prevented on the first basis, and will ensure that more robust erosion monitoring occurs so that the SCP achieves the requirements under the POEO Act at this Premises and other sites where constructions works are rendered. Aland is contrite for its offending conduct. The protection of the environment especially during constructions activity is paramount and strict adherence will be followed including internal random audits being conducted on our sites to ensure ongoing compliance. Aland accepts full responsibility and acknowledges it has a social responsibility towards the community and environment to be a good corporate citizen.

Aland Is Unlikely to Reoffend and Has Good Prospects of Rehabilitation (s 21A(3)(g) And (H) of the CSPA)

1. In light of its expressed contrition and the steps that it has taken to rectify its soil sediment and erosion control deficiencies on site, I find that Aland is highly unlikely to reoffend and has good prospects of rehabilitation.

General and Specific Deterrence

1. The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569 per Brennan J). One of the purposes of the Court in imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences. This purpose is enshrined in s 3A(b) of the CSPA (Gittany at [188] and [192] and Environment Protection Authority v Rands [2019] NSWLEC 23 at [161]).

General Deterrence

1. The penalty imposed by the Court must serve as a general deterrent (Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177]). General deterrence is vital "to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences" (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188]. See also Axer at 359).
2. It was not in dispute that general deterrence should be considered in the imposition of penalties to deter other developers involved in large construction projects from committing water pollution offences and to encourage necessary precautions being taken to prevent environmental harm. Environmental laws must be enforced with sufficient penalties to deter future offences being committed.

Specific Deterrence

1. Aland submitted that there was no need for specific deterrence because it had stabilised its access tracks, cleaned the street, covered and cleaned the drain, had continued to sweep the roads for 10 months after the commission of the offences, and moreover had implemented an audit programme (T20:28-38). In addition, it had acknowledged and accepted responsibility for the commission of the offences.
2. However, as identified in Environment Protection Authority v Ravensworth Operations Pty Limited [2012] NSWLEC 222 (at [48]), specific deterrence is relevant where an offender continues to operate in the same industry. Aland continues to engage in building and construction activities.
3. In Environment Protection Authority v M A Roche Group Pty Ltd; Environment Protection v Roche [2013] NSWLEC 191 (at [45]), Pain J further noted: 45 Specific deterrence is appropriate for corporate defendants to catalyse rehabilitation so that the company takes the required steps to prevent repetition (See BJ Preston, "Principled Sentencing for Environmental Offences", a paper presented to the 4th International IUCN Academy of Environmental Law Colloquium, 16 - 20 October 2006 at p 5.)
4. Given the nature of Aland's continuing business operations, some, albeit limited, consideration of specific deterrence is warranted in determining the imposition of an appropriate sentence in this case.

Even-Handedness

1. The task of a sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107C). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each (Axer at 365). The sentence imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).
2. During oral submissions, the Council agreed that the fines imposed at first instance were too high when compared with similar cases. The concession was properly made.
3. The parties provided summaries of the following authorities in respect of water pollution offences charged under s 120 of the POEO Act: 1. in Roche, the defendant company operated a quarry in which there was a discharge of sediment laden water into a creek. There was a high level of turbidity in the water with evidence that the water system had been affected (at [2]). Pain J found that there was an unknown volume of turbid water with limited harm or likely harm and low environmental harm (at [21]), resulting in a penalty of $15,000 and $7000 being imposed for the two offences (at [67]). Points of difference included the fact that the Court found the offences to be committed unintentionally (at [49]) and the defendant had attempted to put in measures to prevent the offence from occurring. The low penalty was also due to the defendant's financial position as a small family company operating at a loss for the last three years (at [61]); 2. in Maules Creek, the defendant company operated a mine and allowed sediment laden waters to discharge into a creek contrary to its environmental protection licence. There was actual environment harm (at [168]), likely impacts to water quality (at [170]), and the potential to adversely impact upon aquatic ecology and cause ecotoxicological harm (at [172]-[173]). The objective seriousness of the three offences was characterised as low to moderate (at [210]), with fines in the amount of $93,750, $40,000 and $25,000 respectively, after application of the totality principle (at [237]); 3. in ProjectCorp, the defendant was undertaking construction activities on a site pursuant to a development consent which mandated sediment control measures. In circumstances where there was heavy rain, the defendant permitted sediment laden water to flow into an unnamed tributary (at [88]-[89]) with a "noticeable environment impact by the escape of turbid water from the site" (at [181]). The environmental harm was considered to be moderate (at [182]), but its objective seriousness was characterised at the low end of the range (at [284]), resulting in a $20,000 fine that was reduced to $10,000 by reason of application of the totality principle, its early guilty plea, and other mitigating factors (at [294]). However, as the Council noted in these proceedings the low penalty was due to the Court's acceptance that there was an abnormal rainfall event in April 2012 (at [200]) in circumstances where the defendant had endeavoured to implement measures intended to address the possibility of offending (at [284]). As found above, there was no evidence provided before this Court that the rainfall which occurred prior to the commission of the July 2021 offences was major or abnormally high; 4. Environment Protection Authority v Coal and Allied Operations Pty Ltd [2013] NSWLEC 134 concerned 3.5 ML and 3.3 ML of sediment laden water flowing from the defendant's premises into a drainage channel and into Salt Pan Creek and Newport Farm Lagoon (at [98]). There was no evidence of actual harm, but there was short-term potential harm for two to three weeks following the incident with environmental harm therefore being assessed as low (at [103]). The Court found there were practical measures that could have been taken, but noted that the defendant was already acting to improve sediment controls at the time of the incident (at [104]). An expression of remorse was accepted by the Court (at [113]). The defendant was fined $45,000 and a publication order was made; 5. in Ravensworth, 1.64 ML of sediment-laden water entered a stormwater drain and runoff flowed through a pipe constructed under an earthen blockage, down a drainage line and into Bowmans Creek, instead of being diverted into a dam (at [4]). The cause of the incident was due to failure to comply with sediment and erosion control measures, and inadequate supervision of contractors (at [17]). The Court found low actual environmental harm (at [33]), and that practical measures could have been taken to prevent the harm (at [34]-[35]), which was foreseeable (at [37]). The Court imposed a $50,000 fine after an early guilty plea was entered and other mitigating factors were taken into account. It found the offence to be at the lower end of the low to moderate range of seriousness (at [43]) and that there was a low level of culpability on the part of the defendant because the erosion and sediment control plan was adequate but for the non-compliance of a contractor (at [43]); and 6. in Moolarben Coal Operations, there were four discharge incidents of sediment laden water into Bora Creek with the quantity of the fourth incident estimated to be 1.6 ML (at [51]-[52]). However, the actual harm was limited to visual amenity and elevated levels of suspended solids, turbidity and nutrients (at [57]), and the potential harm assessed to be the degraded quality of the water and potential effect of stressing the aquatic ecosystems in the waterways (at [57]). The rainfall which gave rise to the offences was also within normal parameters. The defendant chose not to carry out the majority of the erosion and sediment control measures (at [60]). The harm was foreseeable (at [63]), and the causes of the commission of the offences were entirely within the control of the defendant (at [67]). A fine of $105,000 was imposed and a publication order was made (at [105]).

Totality Principle

1. The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple overlapping offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-63 and Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient.
2. Care must nevertheless be taken "to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence" (Rawson at [222]). The application of the principle must not cause public confidence in the administration of justice to be undermined by any perception that "what is in effect being offered is some kind of discount for multiple offending" (R v MAK; R v K [2006] NSWCCA 381; 167 A Crim R 159 at [18]).
3. Having said this, I agree with both parties' submission that the offences were committed during a single course of conduct such that the totality principle is engaged. This is because the offending on both occasions originated from the same failure to install and maintain adequate soil and erosion control measures at the properties. Therefore, the circumstances of the case mean that it would be just and appropriate to apply a reduction in penalty to reflect the overall criminality of Aland.

The Appropriate Sentence to be Imposed

1. Having regard to the objective seriousness of the commission of the offences and the mitigating subjective factors of Aland, together with the penalties imposed in the relevant comparable cases, I find that the imposition of a monetary penalty is warranted for each offence as follows: 1. for the 2 July offence a fine of $50,000; and 2. for the 9 July offence a fine of $70,000.
2. Each penalty must be discounted by a 25% for the utilitarian value of Aland's early guilty plea resulting in the imposition of a monetary penalty for each offence as follows: 1. for the 2 July 2021 offence a fine of $37,500; and 2. for the 9 July 2021 offence a fine of $52,500.
3. After applying the totality principle, the penalty for the commission of the 9 July 2021 offence should be reduced to $35,000.
4. This makes the total fine payable by Aland for the commission of both offences $72,500.

Costs Orders

1. Pursuant to s 49(4) of the Review Act, this Court can make such orders as to the costs to be paid by either party, including the Council, as it thinks fit: 49. Miscellaneous powers … (4) Subject to section 70, the Land and Environment Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.
2. However, this is subject to s 70(1), which relevantly provides a limit on costs awarded against a public prosecutor, such as the Council, in cases where an appellant's conviction is set aside (emphasis added): 70 Limit on costs awarded against public prosecutor (1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied - (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or (b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter - (i) that the prosecutor was or ought reasonably to have been aware of, and (ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant.
3. That is not, however, this case.
4. Aland argued that if its appeal was successful, it ought to be awarded its costs, but if the appeal was unsuccessful, both parties ought to bear their own costs. I reject the latter submission on the basis that it would be unjust because the Council ought to be able to recuperate the costs that it has incurred in successfully defending the appeal. Having said this, merely because Aland has won its appeal does not necessarily entitle it to its costs for the reasons explained below.
5. The Council submitted that if Aland was successful, each party should bear their own costs. I agree.
6. The objective intention of Parliament as evinced by construing ss 49 and 70 in context supports this conclusion. If Aland cannot be awarded its costs against the prosecutor if its conviction was successfully overturned, it would be anomalous if it could get its costs in a successful appeal against a sentence.

Costs Below

1. In relation to costs found at first instance, both parties agreed it should not be disturbed given the pleas of guilty by Aland, and accordingly, I make no finding to the contrary.
2. Again, having said this, I take into consideration the payment of the costs in the count below ($12,000).

Orders

1. In conformity with the reasons given above, the Court makes the following orders: 1. the appeal is allowed; 2. the orders imposing fines of $67,500 and $75,000 on Aland by the Local Court on 29 July 2022 are set aside; 3. in lieu thereof, Aland is fined: 1. $37,500 for the 2 July 2021 offence in proceeding 254408 of 2022; 2. $35,000 for the 9 July 2021 offence in proceeding 254421 of 2022; and 1. the exhibits are to be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2023