Contrition and remorse
115 Mr Truman, the responsible manager of the defendant, expressed genuine contrition and remorse from the time he first became aware of the breaches. In his letter dated 20 September 2004, where he set out in detail the problems that had been encountered and the breach, Mr Truman offered genuine expressions of contrition and remorse. In Mr Truman's subsequent letter of 25 October 2004, he conveyed the genuine expressions of contrition and remorse by the General Manager of the Council. The conduct of the defendant subsequent to September 2004 is evidence of contrition and remorse.
116 However, the contrition and remorse is lessened by the failure of the defendant to notify the Environment Protection Authority of the defendant's breach of condition M6.2 at any point in time up until September 2004. Indeed, by the defendant completing the licence annual returns for 2002 and 2003, which returns specifically drew the defendant's attention to condition M6.2, but failing to make any reference to the fact that monitoring pursuant to condition M6.2 was not being carried out and hence there was a breach of the condition, the defendant can be seen to have attempted to evade its responsibilities under law.
117 In the defendant's favour, however, is the fact that it has agreed to pay the prosecutor's costs in the agreed sum of $33,500.
Co-operation with authorities
118 Subsequent to Mr Sutherland and Mr Mulder advising the higher management of the Council of the failure to comply with the monitoring requirements of the licence in September 2004, the defendant voluntarily notified voluntarily the EPA and arranged a meeting with them. It disclosed the Mulder & Associates report to the EPA. The defendant also provided documents in full response to statutory notices under s 191 of the Act on 9 April 2005, 6 June 2005 and 5 July 2005. The defendant agreed to the EPA conducting interviews with its employees between 6 to 13 May 2005. Again, all of this conduct shows cooperation by the defendant with the relevant authority.
119 However, all conduct indicative of cooperation dates from September 2004 onwards. Prior to that point in time, there was a lack of cooperation by the defendant, primarily evidenced by its nondisclosure of the problems that were being encountered on the site and which were resulting in the defendant failing to comply with its monitoring requirements. This conduct lessens the mitigating factor of cooperation: see Environment Protection Authority v Collex Pty Limited (2001) 115 LGERA 337 at 343 [10].
Change in practices by the defendant
120 As I have indicated above, the defendant post September 2004 took effective steps to address the systemic and other failures that had led to the commission of the offence. Furthermore, by reason of the variation by the EPA of the defendant's licence, the defendant has had to close the existing northern landfill area. It is in the process of establishing the new southern landfill area which will be a far more environmentally friendly landfill facility. Mr Truman's evidence is that a new system of reporting to senior management has been implemented. There has been new staff training and directions given.
121 There is a new system for audit which requires senior management to be advised. In addition, there is a new system for reporting to the EPA which requires the annual returns to be undertaken, first, by an external auditor and, nextly, reported to Mr Truman as the responsible manager for the infrastructure facilities in Council and, finally, to the General Manager.
122 All of these changes in practices mean that there is no need in sentencing this defendant to include a component for specific deterrence.
Costs incurred by the defendant
123 As I have noted, the defendant has paid a price for its breach of condition M6.2 and its inability to develop a water quality model, by not being able to establish a case for the longer term overtopping or continuation of the existing northern landfill. As a consequence, the northern landfill area has been closed and instead the defendant has had to bring forward the establishment of the southern landfill area.
124 As a result of the accelerated timing of the closure of the northern area, the defendant has incurred substantial costs in relation to the closure of that area and for the planning and construction of the southern extension. Mr Truman in his affidavit sets out the extensive costs associated with establishing this area. Obviously not all of these costs can be said to be incurred merely because of the defendant's failure to comply with the licence conditions. They would have been incurred at some point in the future when the southern landfill facility was established. However, the real cost penalty to the defendant is the fact that it has had to accelerate the development of the southern area. This has led to a marginal increase in the costs it would have otherwise had to incur.
125 The defendant has also had to pay for the trucking of waste to Queensland. As I have said, Mr Truman has estimated this to be in the order of $900,000, provided that the southern landfill area can be established by September 2006.
Consistency in sentencing
126 I have been referred by both the prosecutor and the defendant to a number of decisions of the Court concerning the breach of licence conditions, including breaches by public authorities. They include Environment Protection Authority v Pasminco Broken Hill Mine Pty Limited [2002] NSWLEC 70 (8 May 2002), (penalties of $3,600 and $7,200); Environment Protection Authority v Bellingen Shire Council [2003] NSWLEC 42 (17 December 2002), (penalty of $15,000); Environment Protection Authority v Lithgow City Council [2003] NSWLEC 425 (18 August 2003), (penalty of $6,000); and Environment Protection Authority v Coffs Harbour Hardwoods (Trading) Pty Limited (2004) NSWLEC 563 (13 October 2004), (penalty of $7,200).
127 As the courts have often said, each case must depends upon its own facts. Looking at the facts, both objective and subjective, of those cases, I find them all to be less serious offences than the current offence committed by the defendant.
128 In my opinion, this case is one which is at the lower end of the middle range; that is on the objective circumstances, in the order of about $55,000. However, against these objective circumstances one must take into account the subjective circumstances of the appellant that I have set out above. These include the lack of antecedent criminal history, the plea of guilty (which attracts a utilitarian discount of 25 per cent), the expressions of contrition and remorse, the cooperation with the authorities, the lack of need for specific deterrence and the absence of environmental harm. There should be a discount, reflecting these subjective circumstances, resulting in a proportionate punishment of a fine of $35,000.