Campbelltown City Council v Craig Stephen Woolley

Background facts

1. The parties filed a Statement of Agreed Facts ('SOAF'), which I adopt and summarise below.
2. At the time of the offence, in addition to owning the Land with his wife, the defendant was an occupier of the Land within the meaning of the POEO Act. Between 15 March 2016 and 31 May 2016, and despite earthworks requiring consent under Campbelltown Local Environmental Plan 2015 ('CLEP 2015'), the defendant instructed workers to deposit fill and other material on the Land ('Works').
3. At the time he directed the Works to be carried out, the defendant was not aware that consent was required under CLEP 2015.
4. The Works included the placing of soil, earth, mud, stones, clay and similar material interspersed with building refuse which contained elements of bonded asbestos ('Pollutant') at the rear of the Land. Although it did not appear in the SOAF, it is now agreed that the estimated volume of the fill was between 560 and 840 tonnes.
5. The Pollutant was placed in such a position where it was likely to be washed into natural watercourses ('waters') including Peter Meadows Creek upstream of, and flowing into, the Georges River. As a result of heavy rain, the Pollutant was washed into the waters on around 5 and 6 June 2016.
6. Before the defendant saw building rubble including brick and tile fragments being washed away by heavy rain on 5 and 6 June 2016, the defendant was not aware that the fill contained building refuse or that it was likely to collapse.
7. On 6 June 2016, the prosecutor received a phone call from a nearby resident in Kentlyn complaining that fill which had been placed on the Land had collapsed into a tributary creek causing pollution to adjoining property owners.
8. On 6 June 2016, Ms Michelle Peddle, an officer of the prosecutor, attended the entrance to the Land but was unable to obtain access. She returned on 8 June 2016, accompanied on that occasion by Senior Environmental Officer for the prosecutor, Ms Angela Taylor. They observed that fill including building waste had slipped from the rear of the Land into creeks and watercourses. On that date, Ms Peddle telephoned the defendant to advise him that he would be issued with an emergency order, and issued him a caution under the POEO Act.
9. On 9 June 2016, Ms Peddle and Mr Graham Dawson, Senior Environmental Compliance Officer, took samples of the fill which were documented, photographed, and GPS mapped. Possible Aboriginal heritage sites which may have been affected by the fill material were identified. As a result of the inspection, the prosecutor installed hay bales along the unnamed watercourse closest to the Land as a temporary measure to restrict further pollution.
10. On 10 June 2016, the defendant was cautioned under the Evidence Act 1995 (NSW) and issued with a verbal clean-up notice. On the same day, Ms Peddle hand-delivered an emergency order pursuant to (what was then) s 121B of the EPA Act.
11. On 16 June 2016, testing conducted on samples of the fill provided to ALS Environmental by the prosecutor identified asbestos in three of the four samples provided.
12. The defendant engaged Clearsafe Environmental Solutions Pty Ltd ('CES') to carry out an inspection and report their findings. Their inspection was carried out on 16 June 2016, and did not identify any material containing asbestos.
13. The following day, 17 June 2016, Ms Peddle and Mr Dawson attended the Land to deliver a clean-up notice to the defendant. The notice required the defendant to take immediate action to stabilise the fill so as to prevent further pollution, engage the services of an appropriately qualified person to undertake sampling and classification of the fill, and to prepare a remediation report.
14. On or about 17 June 2016, the prosecutor received the report which had been prepared on behalf of the defendant by CES. It contained a laboratory analysis of five fill samples. The fill was classified as general solid waste (non-putrescible) under tables 1 and 2 in Part 1 of the NSW EPA Waste Classification Guidelines.
15. On 6 July 2016, the prosecutor received a Waste Classification Certificate prepared by CES on behalf of the defendant. Ms Peddle contacted Mr Fernandez of CES and discussed the certificate on the following day.
16. On 14 and 15 July 2016, Ms Peddle conducted email correspondence with Mr Mart Rampe of Harvest Scientific Services, a consultant retained by the defendant, in relation to the carrying out of further testing and the preparation of a management plan.
17. On 22 July 2016, Ms Peddle conducted a further inspection of the Land and observed changes to the watercourse and creek, including an observation that large material such as bricks, tiles and concrete rubble was sinking into the accumulated sediment, that loose sediment in the nature of sand and clay was continuing to mount behind the hay bales, that the natural flow of the watercourse has changed due to the amount of accumulated sediment, and that water was still flowing from the Land.
18. On 31 July 2016, Ms Peddle inspected the Land and surrounding land owned by Tharawal Local Aboriginal Land Council ('TLALC') with the CEO of TLALC, Ms Rebecca Ede.
19. On 25 August 2016, the prosecutor received a report prepared for the defendant by Senversa, a firm specialising in environmental consultancy and auditing, which assessed the impacts of the fill on the unnamed watercourse to the north of the Land and Peter Meadows Creek.
20. On or about 6 October 2016, the prosecutor received a report prepared for the defendant by Harvest Scientific Services entitled 'Assessment of Fill Material and Remedial Action Plan'.
21. On 10 November 2016, Ms Peddle met with Mr Dawson and representatives from the Office of Environment and Heritage on the Land to discuss the impact of the fill on Aboriginal heritage sites.
22. On 19 December 2016, the prosecutor received a peer review report prepared by Douglas Partners, a geotechnical engineering firm, on behalf of the prosecutor reviewing the fill assessment and remedial action plan prepared by Harvest Scientific Services.
23. On 15 May 2017, the defendant and his wife attended the prosecutor's chambers and met with Ms Peddle and Mr Dawson for an interview. In the course of that interview, the defendant admitted to directing the Works be carried out without making inquiries into whether approval was required, and with no prior knowledge of Aboriginal heritage sites within Peter Meadows Creek. The defendant provided the details of the person said to have carried out the Works.
24. On 27 July 2017, the prosecutor received a report from the Office of Environment and Heritage containing recommendations for remedial action required to be undertaken to repair damage done to Aboriginal sites and objects in Peter Meadows Creek resulting from the Water Pollution Offence.
25. The parties met at the prosecutor's chambers on 30 August 2017 to discuss the preparation of an agreed remedial action plan ('RAP') on a without prejudice basis.
26. At hearing, it was confirmed that the defendant had completed the remedial works in accordance with the agreed RAP to the prosecutor's satisfaction. The unchallenged evidence of the defendant was that in so doing, he incurred costs of approximately $182,000.
27. On the third day of hearing, 21 May 2018, a Supplementary Statement of Agreed Facts ('Supplementary SOAF') was filed in Court which clarified that the volume of material deposited at the rear of the Land which was removed during the remediation work was approximately 500 tonnes, which included a 100mm scrape of the virgin soil at the rear of the Land, and that the parts of the Pollutant containing demolition and construction waste extended approximately 155 metres into the waters from the rear boundary of the Land.

Relevant statutory provisions

1. At the time of the offence, s 125(1) of the EPA Act (now s 9.50 of the EPA Act) provided: 125 Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.
2. CLEP 2015, an instrument under the EPA Act which applied to the Land at the time of the offence, provides at cl 7.1(2): (2) Development consent is required for earthworks unless: (a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or (b) the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.
3. 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. Note. An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation - see section 169. (2) In this section: pollute waters includes cause or permit any waters to be polluted.

Evidence

1. In addition to the SOAF and the Supplementary SOAF, the prosecutor read an affidavit of Ms Peddle, to which was appended a folder of documentation, the latest version of the RAP, and a report prepared by Senversa responding to some contentions made by the defendant. The defendant tendered a bundle of eight character testimonials; a further testimonial prepared by his business, Creative Design Kitchens; and a Remediation Compliance Document.
2. The defendant and his wife, Mrs Tammy Woolley, both gave oral evidence. The defendant testified to his remorse, and confirmed his ownership of a number of investment properties.

Principles relating to sentencing

1. Of relevance to both the Earthworks Offence and the Water Pollution Offence are the principles set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act'). 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.
2. Subsections 21A(2) and (3) of the Sentencing Act also set out various aggravating and mitigating factors that the Court must take into account, where they arise in the circumstances.
3. Of relevance to the Water Pollution Offence, the POEO Act sets out the matters which are to be taken into account when sentencing for offences committed under that Act.
4. Section 241 provides: 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, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant.
5. Importantly, the sentences to be imposed on the defendant for the offences must be proportionate to both the objective seriousness, or gravity, of the offences; and the personal or subjective circumstances of the defendant.
6. The defendant directed the Court to Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14, in which Mason CJ, Brennan, Dawson and Toohey JJ said at [13]: …sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions…

Objective circumstances

1. As Preston CJ of LEC said in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 ('Waste Recycling') at [140]: The objective gravity or seriousness of the crime fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen v R (No 2) (1988) 164 CLR 465 at 472, 485-486, 490-491 and 496; Baumer v R (1988) 166 CLR 51 at 57-58; Hoare v R (1989) 167 CLR 348 at 354. It fixes the lower limit because allowance for the subjective factors of the case, particularly of the offender, cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at 354; R v Nicols (1991) 57 A Crim R 391 at 395; R v Allpass (1993) 72 A Crim R 561 at 563; R v Murray (unreported, NSW Court of Criminal Appeal, 22 October 1997) at pp 6-7 per Barr J with whom Newman J agreed; and R v Scott [2005] NSWCCA 152 (18 April 2005) at [15]), or the objectives of punishment such as retribution and general and individual deterrence (R v McGourty [2002] NSWCCA 335 (13 August 2002) at [34] and [35]).
2. In Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178, Preston J listed some of the factors which the Court may take into account when assessing the objective seriousness of an offence: [48] In determining the objective gravity or seriousness of each of the offences in this case, the circumstances to which the Court may have regard include: (a) the nature of the offences; (b) the maximum penalties for the offences; (c) the harm caused to the environment by commission of the offences; (d) the state of mind of the offender in committing the offences; (e) the offender's reasons for committing the offences; (f) the foreseeable risk of harm to the environment by commission of the offences; (g) the practical measures to avoid harm to the environment; and (h) the offender's control over the causes of harm to the environment.
3. These factors mirror those which the parties have raised as relevant to the objective seriousness of the offences currently before the Court. In addition, they have been applied in numerous subsequent decisions of this Court, including Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131 at [32]; Wingecarribee Shire Council v O'Shanassy (No 6) [2015] NSWLEC 138 at [149]; Environment Protection Authority v Wambo Coal Pty Limited [2016] NSWLEC 125 at [57]; and most recently Secretary, Department of Planning and Environment v Shoalhaven Starches Pty Ltd [2018] NSWLEC 23 at [25].

Nature of the offences

1. The nature and purpose of the statutory provision that has been contravened and its place in the statutory scheme is illustrative of the objective seriousness of an environmental offence, see Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719 ('Coe Drilling') at [128]-[129], [133]; Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at 242-246, 259; Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 ('Ballina Shire Council') at 290-291; Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 ('EPA v Orica') at [59].
2. Considering the objects of an Act can assist in identifying the purpose of creating an offence, see Environment Protection Authority v Le Dome Pty Ltd [2002] NSWLEC 167; (2002) 125 LGERA 121 at 132; Coe Drilling at [132]. Accordingly, in determining the appropriate sentence to be imposed on the defendant, it is instructive to have regard to the objects of the POEO Act and the EPA Act.
3. The relevant objects of the POEO Act are as follows: 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, …
4. At the time of the offence, the objects of the EPA Act were encapsulated in s 5: 5 Objects The objects of this Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, (iii) the protection, provision and co-ordination of communication and utility services, (iv) the provision of land for public purposes, (v) the provision and co-ordination of community services and facilities, and (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and (vii) ecologically sustainable development, and (viii) the provision and maintenance of affordable housing, and (b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and (c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.

Maximum penalty

1. The maximum penalties for offences are relevant in determining the objective gravity of the offence. The maximum penalty in each case is an expression of the seriousness with which Parliament views these offences (see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21 at 698), and the defendant's offending should be considered in this light.
2. The maximum penalty for the Earthworks Offence is $500,000 (s 9.53(1)(b)(i) of the EPA Act). The maximum penalty for the Water Pollution Offence is $250,000 (s 123 of the POEO Act).

Environmental harm

1. The level of environmental harm occasioned by the offence is an important consideration in the objective seriousness of environmental offences. Moreover, s 241(1)(a) of the POEO Act requires the Court to take into account "the extent of the harm caused or likely to be caused to the environment by the commission of the offence" in relation to the Water Pollution Offence.
2. The Dictionary to the POEO Act defines the term "harm" as follows: harm to the environment includes 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.
3. The prosecutor submits that "substantial" actual harm has been occasioned to the environment through the commission of the offences, in that the Pollutant entered the waters. The prosecutor notes, however, that words such as "substantial" or "significant" are relative terms, but that given the amount of fill, of which it is estimated a quarter entered the waterways, the amount of harm cannot be considered minor.
4. In written submissions, the defendant made detailed reference to pollution of the waterways near the site emerging from the adjoining property, 221 Georges River Road, Kentlyn ('the Pistol Club'). However, in oral submissions, Mr Walsh, solicitor for the defendant, conceded that given there is evidence that the Pollutant found in the waters, including at the Aboriginal heritage sites, was in fact sourced from the Works, I find evidence as to pollution from the Pistol Club is of limited assistance.
5. Of particular concern in relation to environmental harm is the possible impact on Aboriginal heritage sites. To this end, the defendant's wife gave evidence, which I accept, that the heritage sites have been cleaned in accordance with the remediation works and that TLALC is satisfied that no harm has been occasioned to the sites of particular heritage significance.
6. The defendant further submits that although the volume of the fill was large, the presence of asbestos therein was relatively limited. In this respect, reference is made to the material of Harvest Scientific Services which showed that in thirteen samples, only two were found to contain asbestos, one fibro and one bonded sample. Eleven samples were tested by Senversa, of which two were found to contain asbestos, both bonded, with no asbestos being detected in the main dump area or the four bulk samples.

State of mind

1. Both the Earthworks Offence and Water Pollution Offence are offences of strict liability. However, the prosecutor submits, and I accept, that strict liability offences which are committed intentionally will be more objectively serious than those which are committed unintentionally or non-negligently: Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189.
2. The prosecutor submits that the Earthworks Offence was committed intentionally in the sense that the defendant directed that it be carried out. The prosecutor does not suggest that the defendant knew that consent was required, but observes that there is a distinction between not knowing that consent is required and having a positive belief that it is unnecessary. The prosecutor submits that the defendant falls into the former category.
3. It is not suggested by the prosecutor that the defendant knew that the fill was not "clean" fill, much less that he knew or suspected that it contained asbestos.
4. The defendant submits that he did not fully appreciate the seriousness of his actions and that this is important in the context of his culpability. In this regard, the defendant submits that he was introduced to the person who carried out the Works, through an enquiry made by his neighbour's wife and that he contacted him as he was desirous of constructing a boundary fence for safety reasons. He says he did not apply his mind as to whether consent was required.
5. I note that the prosecutor submits there is no other evidence that the defendant was motivated by safety concerns in respect of the Earthworks Offence.
6. I find, accepting the submission of the prosecutor, that the Earthworks Offence was committed intentionally. It is clear from the evidence before the Court that the defendant organised for an identified person to carry out the Works without obtaining the required consent.
7. I am not satisfied that the defendant's state of mind with respect to the Water Pollution Offence could be described as intentional. In any event, I accept that, whilst noting that there has been some concern expressed in relation to the scope of the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31, there is a strong line of authority that states consideration of the offender's state of mind is not permitted in sentencing of offences under s 120 of the POEO Act, see for example Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 at [101-[102]; Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273 and Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 192 LGERA 415 at [178]. I consider that I should follow that approach.

Reasons for committing the offences

1. The prosecutor draws my attention to the comments of Preston J in Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [80]-[81]: [80] The criminality involved in the commission of an offence is to be measured not only by the seriousness of what actually occurred, but also by reference to the reasons of its occurrence. [81] The carrying out of an offence to make a profit, or to save incurring an expense, or to avoid the cost of obtaining and implementing a statutory permission such as a development consent or environment protection licence increases the seriousness of the crime. Offenders should not profit from crime… (citations omitted).
2. The prosecutor accepts that the defendant did not commit either offence for the purpose of financial gain. However, the prosecutor submits that the defendant committed the Earthworks Offence, which in turn led to the Water Pollution Offence, so as to gain a benefit by changing the landform of his property.
3. The defendant submits that he was concerned for the safety of his children and horses and was desirous of erecting a fence to prevent them from straying too close to the Pistol Club. The prosecutor says that there is no reason why a fence could not be located around the pre-existing area; nor is there any evidence to suggest that the Works were required to protect the defendant's family and horses from the activities of the Pistol Club. The prosecutor says the defendant was motivated by the desire to gain an extra paddock on his property.
4. I am not satisfied beyond a reasonable doubt that the defendant committed the Earthworks Offence for the purpose of gaining an extra paddock. I am satisfied that the defendant did not commit either offence for the purpose of financial gain.

Foreseeability of the harm

1. In addition to being an important factor with respect to the objective seriousness of an offence, with respect to the Water Pollution Offence, s 241(c) of the POEO Act requires the Court to have regard to the foreseeability of the environmental harm.
2. The prosecutor submits that, whilst it is debatable as to whether the extent of the harm which was occasioned was foreseeable, it was foreseeable that when over 500 tonnes of fill is deposited in a natural watercourse depression and where no steps are taken to ensure that it has been properly secured, it is foreseeable that there is some risk of it being washed away. Moreover, the prosecutor submits that when no money is paid for the fill in question, it is foreseeable that the fill will contain materials other than virgin soil.
3. Having regard to the nature and extent of the Works undertaken, I find that in respect of both offences the environmental harm was foreseeable.

Practical measures which may have been taken to prevent or mitigate the environmental harm

1. Consideration of any practical measures which may have been taken to prevent, control, abate or mitigate the environmental harm is an important factor going to objective seriousness, and one which is also a mandatory consideration in respect of the Water Pollution Offence by operation of s 241(1)(b) of the POEO Act.
2. The prosecutor submits that principally the defendant could have avoided the harm by not directing that the Works be carried out at all. However, even assuming that the Works were to be carried out, the prosecutor submits that the defendant could have been present to supervise, or could have taken steps to ensure that the fill was properly secured.
3. The defendant accepts that he could have avoided the harm by not directing the Works be carried out. However, the defendant says in mitigation that he has carried out the remediation works to the satisfaction of the prosecutor, prior to any order being made.
4. I find that there were clearly practical measures that could have been taken by the defendant to avoid committing the offences. First, he could have not caused the Works to be carried out at all. This would have prevented both the Earthworks Offence and the Water Pollution Offence. Secondly, he could have obtained consent for the Works, which would have avoided the Earthworks Offence and would have meant the imposition of conditions that would have made the Water Pollution Offence less likely to occur.
5. Whilst I note that the defendant carried out the remediation works to the satisfaction of the prosecutor, I do not find that this is relevant to s 241(1)(b) of the POEO Act which I consider relates to steps taken before the commission of the offence.

The extent to which the defendant had control over the causes

1. The extent to which the defendant had control over the causes is an important consideration and for the Water Pollution Offence a mandatory consideration by virtue of s 241(1)(d) of the POEO Act.
2. The prosecutor submits that the defendant had control over both offences in that he directed the Works be carried out. Moreover, the prosecutor notes that the Works were carried out on the defendant's own land and he was not acting under the directions of anyone.
3. The defendant accepts that he had control over the harm in the sense that he directed the Works be carried out and the fill placed on the Land. However, the defendant submits that the identified person who carried out the Works, knew that the material did not amount to "clean fill" and that it was that person who actually placed the fill which led to the commission of both offences.
4. I find that there is no doubt the defendant had control over the causes of the offences and directed the named person to carry out the Works which constituted the Earthworks Offence and led to the Water Pollution Offence.

Conclusion on objective seriousness

1. In view of all of these factors, the prosecutor submits that each offence is in the "moderate" range of objective seriousness. The defendant submits that each offence is in the "low" range of objective seriousness.
2. In light of my findings at [51], [53], [63], [70]-[71], [75], [78], [82], and [87], and noting particularly the amount of fill involved in the Works, I find that each of the Earthworks Offence and Water Pollution Offence fall within the "moderate" range of objective seriousness for offences of each type.

Subjective circumstances

1. Consideration of the subjective circumstances requires consideration of those matters that relate to the defendant himself, rather than to the offences that give rise to the charges to which he has pleaded guilty. The matters I take into account include the defendant's lack of prior convictions; the defendant's good character and prospects of rehabilitation; the assistance given by the defendant to the authorities in providing the name of the person who carried out the Works and agreeing to the SOAF; the defendant's early pleas of guilty; and the need for specific and general deterrence.
2. These matters are reflected in s 21A(3) of the Sentencing Act which provides for mitigating factors which are to be taken into account as follows: (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), … (m) assistance by the offender to law enforcement authorities (as provided by section 23).

Prior convictions

1. The defendant does not have any prior convictions. This is a mitigating factor pursuant to s 21A(3)(e) of the Sentencing Act.

Good character

1. The prosecutor accepts that the defendant is otherwise of good character.
2. The defendant relies on eight statements of good character, those of: Shane and Tanya Tickner dated 21 November 2017; Rochelle Woolley dated 22 November 2017; Mario Borg dated 23 November 2017; Stephen and Karen Hutchinson dated 23 November 2017; Panagiotis Sveronis dated 24 November 2017; Amanda Scieberras dated 24 November 2017; Jennifer Johnson dated 24 November 2017; and Belinda Fowler dated 24 November 2017. The defendant also relies on testimonials of his business, Creative Design Kitchens.
3. The defendant submits that evidence of good character supports a more lenient sentence because it reduces the seriousness of the offence in terms of its subjective culpability; it reduces the need for specific deterrence and enhances the prospects of successful rehabilitation; and it reduces the weight given to retribution and general deterrence.
4. In view of all of the evidence before the Court, I find that the defendant is otherwise of good character.

Early guilty plea

1. By operation of s 22 of the Sentencing Act, the Court is required to take into consideration the utilitarian value of an early guilty plea.
2. In the present case, the defendant entered early pleas and the prosecutor agrees that the full utilitarian value should be applied. In those circumstances, I apply a discount of 25% in respect of the penalty for each offence.

Assistance to the authorities

1. The prosecutor submits that the defendant provided assistance to enforcement authorities by providing the name of the person who carried out the Works and by agreeing to the SOAF.
2. The defendant submits that he has done everything possible to assist the prosecutor and its officers in the investigation and prosecution of the offences and in carrying out and completing the remediation works. The defendant submits that he has incurred significant fees in cooperating with the prosecutor's investigation and retaining experts to deal with critical issues that arose.
3. I accept that the defendant provided assistance to the authorities and further that he assisted in the carrying out of the remediation works before any order of the Court had been made.

Contrition and remorse

1. The prosecutor accepts that the defendant has carried out the remediation works in accordance with the RAP, and notes that whilst the defendant may have been ordered to carry out those works in any event, he should receive the full benefit of having completed them before any order was made to that effect.
2. The defendant submits that he has displayed genuine contrition and remorse for the offences he has committed. The defendant submits that the following factors go towards demonstrating remorse: 1. A plea of guilty: Lee v R [2012] NSWCCA 123 at [60]; 2. Voluntary cessation of offending: R v Bacon (2000) 128 A Crim R 28; [2000] NSWCCA 549 at [16]; 3. Taking action to address the cause of the offence: Waste Recycling at [212]; 4. Statements of an offender confirming a position of genuine remorse: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; 5. Making reparations to the victim of an offence: Subramaniam v R [2013] NSWCCA 159 at [51]; 6. Rectification of harm caused or likely to be caused: Waste Recycling at [203]-[204]; 7. Sparing a victim of the necessity of giving evidence: Siganto v R (1998) 194 CLR 656; [1998] HCA 74 at [32]-[33]; and 8. Assistance to authorities: AB v R (1999) 198 CLR 111; [1999] HCA 46.
3. The defendant submits that there is a considerable body of evidence in this case which indicates genuine contrition and remorse. The defendant points to the following passages of the transcript of his interview of 15 May 2017: "I have done a lot of homework since then and spoken to a lot of people and there are a lot of builders that don't even know you're not supposed to transfer fill from one property to another and this is a massive issue that councils have got and you know, something needs to happen with it because fill is going here, there and everywhere, you know… "It needs to be stopped because and you know and I don't believe enough is happening to stop it, because massive fines need to be implemented on first offence, not second, third, fourth offence, you know these excavation companies need to know if you get caught, to me, what's happened to me like somebody bloody dropped drugs on my land, right that bloke, should be you know."
4. Moreover, the defendant submits that he fully cooperated in the course of the interview, has been proactive throughout the investigation, and engaged appropriate experts. The defendant submits that he has become very aware of the nature and extent of the environmental harm which can be caused by such offences. Despite being upset about being misled by the person who carried out the Works, the defendant submits that he has accepted responsibility for what occurred, pleaded guilty at the earliest opportunity, is troubled about what he has done, and remediated the Land and surrounds in accordance with the agreed RAP.

Deterrence

1. The prosecutor submits that general deterrence is of significance in environmental offences.
2. The purpose of general deterrence in the context of environmental offences was discussed by Preston J in Ballina Shire Council at [65]-[68]: [65] The sentence of the Court is an important denunciation of the conduct of the defendant. [66] The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby (1977) 1 NSWLR 594 at 597-598. [67] This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354; and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93]. [68] The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court's sentence, the offender is given his just desserts.
3. The importance of deterrence in environmental offences was recently reiterated by the Court of Appeal in Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council [2018] NSWCCA 56 ('Erector Group'). At [126], Bathurst CJ, with whom Hoeben CJ at CL and Button J agreed, said: The fact that what might be described as an "unintentional" or "mistaken" offence attracts a significant maximum penalty shows that the object of the legislation is not only to deter deliberate offences against the EPA Act, but also to ensure that proper regard is paid to its requirements. Property developers, such as the appellants, need to be aware that, if they are not punctilious in their compliance with the requirements of the EPA Act, then they may be liable to stringent penalties.
4. Although the comments in Erector Group were directed particularly to property developers, I consider that they are apposite to anyone who carries out works on land, especially where the works are extensive. The depositing of over 500 tonnes of fill material fits that description.

Section 10 application

1. The defendant submits that the Court should exercise its discretion under s 10 of the Sentencing Act to not record a conviction in respect of the offences.
2. Section 10 relevantly provides: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider.
3. The defendant submits that the maximum penalty does not determine whether an offence is "trivial", but rather the focus of the inquiry is the conduct which constitutes the offence and the circumstances in which it was committed: R v Mauger [2012] NSWCCA 51 ('Mauger') at [19].
4. Moreover, the defendant submits that s 10 can be applied where the offence is not "trivial" but where the offence committed is objectively serious and general deterrence and denunciation are important factors in sentencing, the scope of the section's operation is reduced: Mauger at [19].
5. Additionally, were the Court minded to make an order under s 10(1)(b), the defendant submits that the imposition of a bond is not to be thought to be an insignificant matter. In Mauger at [37], Harrison J, with whom Beazley JA (as her Honour then was) and McCallum J agreed, said: …The respondent has been made subject to a judicially sanctioned requirement that he be of good behaviour for a period of two years. There are onerous consequences that apply if he fails to observe that requirement. That fact alone would in my view impress the seriousness with which the Court was treating the respondent's conduct upon an objective and reasonable member of the community. It should not pass without comment that the significance of a bond, and the consequences of disregarding its conditions, is regularly considered by this Court to be important when deciding whether or not to grant bail to applicants who have allegedly disregarded the conditions and restrictions that a bond imposes. Much more than mere lip service is regularly paid in this context to the important and significant consequences for bail applications created by offences allegedly committed in breach of such conditions. It is wrong in my view to assume that the decision to not record a conviction is automatically or necessarily coextensive with the imposition of an inadequate, or even a particularly lenient, sentence.

Totality

1. Where two offences arise out of the same incident, the totality principle requires consideration. As Preston J stated in EPA v Orica at [142]: The effect of the totality principle is to require the Court, which has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is just and appropriate and reflects the total criminality before the Court. In the case of fines, adjustment may be made by reducing the amount of the fine for each offence. Care needs to be taken, however, 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.
2. The principle of totality was also considered by Street CJ in R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260 as follows: …The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences…
3. I find that the Earthworks Offence and the Water Pollution Offence contain overlapping physical elements as they both resulted from the Works carried out on the Land. However, the offences are not precisely coterminous and the Water Pollution Offence was not an inevitable consequence of the commission of the Earthworks Offence.

Appropriate sentence for the offences

1. In determining the appropriate penalty for the offences, I take into account the objective circumstances of the offences and the subjective circumstances of the defendant, as I have discussed above. Further, I take into account the purposes of sentencing in s 3A of the Sentencing Act. There is a need for the Court, through the sentences it imposes, to ensure that the defendant is adequately punished for offences committed, held accountable for his actions, and denounced for his conduct in a manner which is proportionate to the seriousness of the offences (Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146 at [110]).
2. In determining the appropriate penalty, the Court should be consistent with any pattern of sentencing for like offences. The parties referred me to various sentencing decisions of this Court including North Sydney Council v Perini (No 2) [2013] NSWLEC 91; Hurstville City Council v Naumcevski [2011] NSWLEC 226; Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140; Lane Cove Council v Wu [2011] NSWLEC 43; and Fairfield City Council v Hanna [2007] NSWLEC 343; and Wingecarribee Shire Council v O'Shanassy (No 6) [2015] NSWLEC 138.
3. Given that in most of these cases the maximum penalty was $1,000,000, the principles referred to by Giles JA in Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 require some consideration. At [36], his Honour, with whom Hulme and Adams JJ agreed, said: The courts must, of course, recognise the maximum penalty provided for an offence, and with an increase in the maximum penalty there will come the imposition in some cases of higher penalties: see R v Slattery (1996) 90 A Crim R 519 at 524. It does not follow, as the respondent's submissions appeared to suggest, that every offence for which a fine of $X would have been imposed under s 16 of the Clean Waters Act should result in a fine of $2X under s 120 of the Act. Offences of low criminality remain offences of low criminality even if the maximum penalty is increased and the increase can readily be recognised as operating as a deterrent to wilful disregard of statutory obligations. It remains necessary to address the facts of the particular case, with due regard to the current maximum penalty and the seriousness of the offence and to the need for deterrence thereby indicated together with all of the other relevant matters…

Orders

1. Accordingly, the orders of the Court are: In proceedings 2017/00166549: 1. The defendant is convicted of the offence as charged. 2. The defendant is fined the sum of $52,500. 3. The defendant is to pay the prosecutor's legal costs. In proceedings 2017/00166550: 1. The defendant is convicted of the offence as charged. 2. The defendant is fined the sum of $31,500. 3. The defendant is to pay the prosecutor's legal costs.

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