Environment Protection Authority v Burrangong Meat Processors Pty Ltd

Introduction 1. In matter 50095 of 2002 the Defendant is charged with a breach of licence conditions pursuant to s 64(1) of the Protection of the Environment Operations Act 1997 (the PEO Act), that between 14 and 15 November 2001 inclusive the Defendant contravened one of the conditions of its environmental protection licence in that it failed to operate its effluent treatment system in a proper and efficient manner by overloading that system with effluent.

2. There are three further charges in matter numbers 50096 of 2002, 50098 of 2002 and 50099 of 2002 in which the Defendant is charged with offences under s 129(1) of the PEO Act in that: being the occupier of premises at which a scheduled activity was carried on under the authority conferred by a licence, it did cause the emission of an offensive odour from the premises to which the licence applies on 11 October, 15 November and 22 November 2001 respectively. The Defendant has pleaded guilty to all the offences with which it is charged.

3. The maximum penalty for each of the four offences is $250,000.

The facts 4. A lengthy statement of agreed facts was tendered by the parties, and I will incorporate certain parts of that into my judgment. The statement of agreed facts makes clear the reasons for the offensive odour being emitted related to the Defendant's effluent treatment system being overloaded, particularly the volume of partially treated effluent directed to anaerobic ponds, an aeration lagoon and a settling pond. Paragraphs 4, 5, 6, 9, 10, 11 and 12 of the statement of agreed facts provide as follows: 4. The processes at the abattoir produce a large quantity of effluent. At the time of the addition of a rendering plant at the abattoir in 1995, its effluent treatment system was upgraded to cater for an effluent production of up to 300 kilolitres per day. The system involved the treatment of the effluent through a number of anaerobic, aerobic and other ponds prior to it being irrigated onto land held by BMP. The environment protection licence held by BMP in respect of the abattoir limits the quantity of effluent that could be discharged via irrigation to 225kl per day. The licence also sets a phosphorus limit of 15 mg/L.

5. BMP slaughtered sheep, pigs and cattle. Effluent/wastewater is generated from this slaughter process and from the rendering plant. The effluent is directed to a treatment system consisting of two anaerobic ponds run in parallel. The effluent consists of settleable and suspended solids comprising fat and protein derived from meat tissue, blood, waste tallow, yard washings and gut contents. The effluent is then directed to an aeration lagoon. Subsequently the effluent is directed to a settling pond to allow suspended material to settle out. The treated effluent is then applied to land via irrigation. 6. The aim of the treatment process is to produce biologically stable effluent that is suitable for land application. The effluent treatment system has several major processes including anaerobic and aerobic processes. The effluent needs to be fully treated at each stage of the process before it moves into the next stage of treatment. If the effluent is passed through the system too quickly, complete treatment of the effluent does not occur at each stage of the process and the effluent remains biologically unstable. Overloading of the effluent treatment system can disrupt the biological processes occurring in both the anaerobic and aerobic ponds and result in the generation of offensive odours.

9. Due to the increasing number of odour complaints received from residents of Young, on 5 September 2001, Mark Robertson of the EPA's Queanbeyan office and Tim Kirby of the EPA's Compliance Audit Branch, went to the abattoir. They saw and videoed numerous indicators of an overloaded system such as cracking crust on the anaerobic pond and gas bubbling on the surface of it, black and bubbling effluent in the settling pond and high level of solids in the maturation pond.

10. At the time, the anaerobic pond system was overloaded, dramatically increasing the capacity of BMP's effluent treatment system to generate offensive odours. The crust of the anaerobic pond cracking indicated this and there was effluent visible through the crust. There was gas bubbling on the surface of the anaerobic pond. There was what appeared to be fresh deposits of fats and greases on the surface of the pond.

11. The effluent was arriving to BMP's settling pond too early in the process without being properly treated. In the settling pond the effluent was a very dark black colour, indicative of a high level of Biochemical Oxygen Demand (BOD). There was oil and grease scum over the surface of the Settling Pond. There was also a high number of bubbles appearing on the surface of the pond suggesting a high level of biological activity in the pond. This should not have been occurring.

12. In the maturation pond, which forms part of BMP's effluent treatment system, there was a high level of solids that had settled out. This would normally occur in the Settling Pond, which is at a stage before the maturation pond.

The statement of agreed facts also sets out the circumstances concerning the offence of emitting offensive odours on 11 October 2001 at par 14 as follows: 14. During the morning of 11 October 2001, Young residents Nona Hogan, Paul Holmes and Kathryn Simpson were impacted at their respective residences by offensive odours from the abattoir. The odour smelt like rotten, decaying meat/dead animals and sewerage.

The statement of agreed facts sets out the circumstances concerning the offence of emitting odour on 15 November 2001 and the breach of licence condition on 14 and 15 November 2001 at par 15, 16, 17, 19, 20, 22, 23 and 24 as follows: 15. On the afternoon of 14 November 2001 Simone Stimpson and Mark Robertson of the EPA were in North Young. While there, they intermittently smelt an offensive odour generated by the abattoir. At about 5 pm they went to the abattoir and inspected the effluent treatment system. It was in a similar condition to how it was on 5 September 2001. 16. When Mark Robertson arrived at the Abattoir he met Mr Richard Mayoh. At the time there was a blueish haze surrounding the biofilter at the abattoir. There was also a distinct "burnt smell" amongst the general smells associated with the activities at the abattoir. The biofilter is a bed of organic material that it is used to treat the gases from the rendering plant prior to release to the atmosphere. 17. At the time of this inspection the anaerobic ponds were suffering from "heave" and the crust in them had broken up in places. There was fresh deposition of fats on the crust and there was gas bubbling to the surface of the pond. …

19. When Mr Robertson inspected the lagoon at the abattoir (which forms part of the effluent treatment system) there was a build up of sludge around the aeration lagoon. 20. When Mr Robertson inspected the settling pond which forms part of BMP's effluent treatment system, it was in a poor condition. The effluent had a very black colour, which is indicative of having a high Biochemical Oxygen Demand. There was also a scum build up on the surface of the pond indicating that a lot of oil and grease was coming through the system. … 22. Later that evening Young residents Allison Attard and Robert Baker were impacted by offensive odours from the abattoir. The odour was sickly, having a rich aroma that smelt like offal and excrement.

23. On the next afternoon, Thursday 15 November 2001, Mr Robertson was in central Young, in the vicinity of William Street. At the time there was a light breeze blowing from the direction of the abattoir. 24. On 14 and 15 November 2001, BMP's effluent treatment system was in a poor condition. It was overloaded both hydraulically and organically. Too much effluent was being put through the system causing incomplete treatment of the effluent. As a result, it produced offensive odours detectable in North Young. The following figures show the quantity of effluent that was entering BMP's effluent system on 14 and 15 November 2001. Production Pigs [sic] Sheep Pigs [sic] Total HSCW Water used 14 Nov 2001 43 3786 863 155 1102kL 15 Nov 2001 96 3712 550 140.19 996kL

Water Used is based on average of 7.11 kL/tonne HSCW. Assuming 85% of water used presents as effluent, on 14th 935kL of effluent was produced and on 15th 846 kilolitres (kL) of effluent was produced.

The statement of agreed facts sets out the circumstances concerning the offence of emitting odours on 22 November 2001 at par 25, as follows: 25. During the evening of 22 November 2001, Young residents Angela Clark, Paul Holmes, Alan Ruskin and Kathryn Simpson were impacted by offensive odours from the abattoir. The odour had the same characteristics as described above.

The key question, on which there was some considerable time spent at the hearing, was what caused the Defendant's system to become so overloaded. According to the statement of agreed facts, the reason was a combination of increased processing volume and increased use of water over a period of about two years or more. I particularly refer to the statement of agreed facts at par 48 and 49 which are as follows: 48. During the years leading up to the offences there has been a growth in the production rate at the abattoir and, accompanied by increasing health standards, causing increased water usage per unit of production. This directly led to an increase in the quantity of effluent being produced and that had to be treated by BMP's effluent treatment system. At the time of the offences, the system was overloaded by 3 to 4 times the design capacity of the system and the state of the system is such that it caused the emission of offensive odour on a frequent basis. 49. The primary cause of the offences was as a result of BMP expanding production and therefore the amount of effluent it generated, without expanding its effluent treatment system at the same time. BMP should have undertaken all necessary works and made all necessary applications (and obtained all necessary consents and licence modifications) in relation to its effluent treatment system, prior to it increasing production such that more than 225 kilolitres a day of effluent was generated at the abattoir. For the best part of 2 years, BMP ignored (and still ignores) the consent requirement in relation to limiting effluent generation to 225 kilolitres per day.

The increases in production and increased water use at the Defendant's premises are set out in paragraph 8 of the agreed statement of facts. The tables in paragraph 8 show a substantial increase in both production and water use from 1995 to 2002 at the Defendant's premises, and clearly support the statement at par 48 of the statement of agreed facts that at the time of the offences the Defendant's effluent treatment system was overloaded by three to four times the design capacity of the system.

The history of the abattoir from 1995 to 2001 is set out at par 28 to 47 of the statement of agreed facts. It is not necessary that I have regard to that entire history. The most relevant history starts at par 36 and thereafter the statement of agreed facts sets out a chronology of meetings, correspondence and interactions from 28 September 1999 between officers of the Environment Protection Authority (EPA), Young Shire Council (the Council) and representatives of the Defendant, in relation to the management of odour from the premises. Part of that chronology concerns a number of reports which the Defendant was required to prepare in relation to the proposed upgrading of the effluent treatment system at its premises. I will return to this series of reports later in the judgment.

Further evidence relied on by the Prosecutor was an affidavit of Mr Robertson dated 20 March 2003, an affidavit of Mr Court dated 19 March 2003 and an affidavit of Mr Baxter dated 6 August 2002. Affidavits of various residents and parts of other affidavits, to the extent they were needed to reply to the affidavit of the Defendant's witness Mr Spackman, were also relied on by the Prosecutor. The Defendant relied on a lengthy affidavit of Mr Spackman, its general operations manager, dated 7 February 2003.

Considerations under s 241 of the PEO Act 12. I must have regard to s 241 of the PEO Act in penalty determinations under the PEO Act. Section 241(1) specifies particular factors the Court must take into account in considering penalty. Section 241(1)(a) - the extent of the harm caused or likely to be caused to the environment by the commission of the offence. 13. The Prosecutor submits there is considerable evidence that the commission of each of the three odour offences resulted in actual harm to the environment. I was referred to the definition of offensive odour in the PEO Act which states that it means an odour: (a) that, by reason its strength, nature, duration, character or quality, or the time at which it emitted, or any other circumstances: (i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or (ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or (b) …

The Prosecutor relies particularly on par (a)(ii), that the odour is likely to interfere unreasonably with the comfort or repose of a person, in maintaining there was environmental harm in this matter.

The Prosecutor relied on affidavits from several local residents who attest to the unpleasant and discomforting nature of the odour on the three days on which the offensive odour offences were committed, to the effect that their comfort or repose was seriously impacted on. There was, however, no evidence of medical treatment being sought or needed by any of those residents.

The Defendant submitted the harm, while odorous and offensive, was non-toxic. The residents who were affected were all from the northern part of the town of Young, so that it was not widely dispersed over the town of Young. While the residents certainly complained of the effect of the odour on themselves and their amenity, there was nothing in the affidavit evidence to suggest that anyone needed medical treatment.

My view is that there clearly was actual harm to the environment as defined by the PEO Act. While there was no evidence of medical assistance being necessary, the evidence discloses considerable discomfort to residents and their amenity on the days in question, but that harm was not long lasting. Section 241(1)(b) - the practical measures that may be taken to prevent, control, abate or mitigate that harm

The Prosecutor submitted there were practical measures the Defendant could have taken to prevent the harm arising from the offences. These included increasing the capacity of its effluent treatment system in line with the increased net production at the time that the increased production occurred, rather than well after, all necessary advice and reports in relation to expanding the capacity of the Defendant's effluent treatment system could have been obtained in a timely manner, and production could have been limited so that it would not result in the effluent treatment system being overloaded.

The Prosecutor is essentially arguing the primary reason for the offences was because the Defendant increased production and thereby created more effluent than its effluent treatment system could cope with. I particularly refer to par 48 of the statement of agreed facts. The Prosecutor submitted this is a serious issue as it tends to indicate the Defendant gave little regard to its responsibilities under the PEO Act licence.

Further, the Prosecutor submitted the Defendant did not take significant steps towards upgrading its effluent treatment system until requested to do so by the EPA. This matter is particularly disputed by the Defendant.

The Defendant submitted it had been trying to take steps to deal with the issues before it for some time before the offences were committed. The Defendant relied on the affidavit of Mr Robert Spackman sworn 7 February 2003 in this regard. Mr Spackman sets out in his affidavit, from par 11 to 37, the dealings he had with the EPA and the Council in relation to efforts made by the Defendant to install an anaerobic pond or ponds, amongst other matters, at the Defendant's premises in order to deal with the effluent treatment issues. Some of this material in the affidavit was disputed in affidavits in reply by Mr Mark Robertson and Mr John Court filed by the Prosecutor.

There is disagreement about what was said at a meeting held in September 1999 between representatives of the EPA, the Defendant and the Council at which a representative of the Defendant says that he expressed the desire to install a pond to deal with odour problems as soon as possible.

There is also some disagreement between the Prosecutor and the Defendant about subsequent events that transpired over the following year, during which the Defendant was required to produce several reports to the EPA and the Council. In that time the odour problems at the Defendant's premises appeared to intensify, and ultimately the Defendant has been charged with the numerous offences before me.

The Defendant's counsel put forward substantial evidence in relation to the material which the Defendant had caused to be prepared at the request of the EPA, and I need to go into some detail about the reports which were prepared by the Defendant. The Defendant submitted it had engaged in ongoing discussions with the EPA since September 1999 concerning the potential for odour nuisance. The Defendant's counsel submitted the following chronology of the preparation of reports relating to upgrading the effluent treatment system: · 30 May 2000 - Defendant received a report prepared by Building Industry Inspection Services for an upgraded effluent treatment system - proposal for new anaerobic pond - submitted to Council: affidavit of Mr Spackman, par 20 and Annexure L · May 2000 - EPA received from Council a copy of information regarding proposal by Defendant to construct 15 Megalitre anaerobic pond to cater for production rate of 900 Kilolitres per day: affidavit of Mr Robertson 12 July 2002, par 22 and Exhibit MAR 006 · 15 January 2001 - "Effluent System Status Report" submitted by EC Pacific to EPA - proposal for testing Tipperary Creek and new anaerobic lagoon: affidavit of Mr Spackman, par 26 and Annexure O · February 2001 - second report by EGIS Consulting (Australia) completed for Defendant - proposal for two new anaerobic ponds and conversion of anaerobic/maturation pond system: affidavit of Mr Spackman, par 27 and Annexure P · 21 March 2001 - Defendant submitted Development Application (DA) to Council seeking approval to build two large anaerobic ponds of 10 Megalitre capacity each. Reports of Building Industry Inspection Services and EGIS Consulting (Australia) submitted with DA · Offences occurred on 11 October, 14/15 and 22 November 2001 · October 2001 - EGIS Consulting (Australia) submits "Wastewater Treatment Investigation" report to EPA - reiterates problem can be addressed by building two new anaerobic ponds and conversion of anaerobic/maturation system: affidavit of Mr Spackman, par 33 and Annexure U · May 2002 - EGIS Consulting (Australia) submits report to the EPA for upgrade of the treatment system involving additional anaerobic ponds: affidavit of Mr Spackman, par 34 and Annexure V · August 2002 - Peer review of EGIS Consulting (Australia) - proposal for upgrade of wastewater treatment systems is essentially sensible: affidavit of Mr Spackman, par 35 and Annexure W · December 2002 - proposed implementation schedule: affidavit of Mr Spackman, par 36 and Annexure Y

The Defendant submitted that while formal control of any development work is vested in the Council, it appears the EPA exerts considerable influence over the extent of any development work undertaken. The large number of reports required meant that progress was much slower than the Defendant would have liked in addressing the issues that were before it.

Because of the way the material was presented by the Prosecutor and the Defendant, the issues and the submissions were closely related for s 241(1)(b) and s 241(1)(c). I will deal with my finding together on these issues. Section 241(1)(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

The Prosecutor argued the offences were very foreseeable. The evidence showed the Defendant was on notice from around 1999 that it had odour problems resulting from its increased production and increased quantities of effluent produced at its premises. The Defendant had complete control over the premises and over the causes of the offence (s 241(1)(d)), which I note the Defendant completely accepts.

In the statement of agreed facts, the causes of the offences are set out at par 48 - 50. The Prosecutor particularly drew my attention to those paragraphs and submitted the primary cause of the offence was a result of the Defendant expanding its production and consequently the amount of effluent generated. For the best part of two years, the Defendant had ignored the consent requirement to limit its effluent generation to 225 kilolitres per day. Further, in expanding production, the Defendant did not consider the need to increase the capability of its effluent treatment system.

Further, the statement of agreed facts sets out the following at par 50: In expanding production, BMP did not consider until 1999, the capability of the effluent treatment system to cope with extra effluent. Further, in attempting to remedy the situation, BMP put forward deficient proposals to the EPA and to Young Shire Council. Their proposals had the following flaws: · BMP did not provide designs of the effluent treatment systems based on effluent quantity and quality (both actual measured or predicted); · In the proposals BMP were only concerned to increase anaerobic capacity and they did not consider the aeration part of the cycle; and · The environmental impact assessment of the land application of the irrigation of an increased volume of effluent was based on a nutrient budget methodology that had been rejected by the EPA and NSW Agriculture in 1996 and 1997. 30. The Defendant conceded that the matters were foreseeable but submitted the Defendant had been attempting to do something about the problem for some period, as has already been detailed above in relation to s 241(1)(b) (see par 24).

Finding on s 241(1)(b) and (c) 31. I note that there has been a history of increasing odour complaints in the local community, based on the affidavits of the local residents relied on by the Prosecutor, in some cases for some years before the offences. I did allow this material to be read as I considered it was relevant to the question of whether the offence was reasonably foreseeable. It does appear that for some two years before the offences with which the Defendant has been charged, it was aware or should have been aware of the problems caused by its operation.

32. The Defendant has submitted it was taking steps to deal with the issue from around September 1999 but was constantly delayed in its attempts by the EPA requiring further reports. I note that despite the odour management difficulties, the Defendant continued to expand its operations in 1999, 2000, 2001 and indeed into 2002 with a substantial increase in water use as well as production in 2001 according to the figures in the table in par 8 of the agreed statement of facts. While I accept that the Defendant did start to take steps to address the problem from September 1999, I note the first report of Building Industry Inspection Services was dated 30 May 2000 and was submitted to the Council some seven months after the September 1999 meeting.

33. I have also noted that there were subsequent reports prepared during 2000 and 2001. I nevertheless accept the Prosecutor's submission that there were practical measures which could have been implemented and that more should have been done and faster as the harm was foreseeable, particularly given that the Defendant continued to increase its processing volume and water use without an adequate system in place. Section 241(1)(d) - the extent to which the person who committed the offence had control over the causes that gave rise to the offence

34. It was conceded by the Defendant that it had control at all relevant times.

Further consideration on penalty 36. The Prosecutor submitted this offence was in the medium range in terms of penalty.

The Defendant made fairly extensive submissions in relation to the approach I should take on penalty. Firstly, the Defendant submitted it had pleaded guilty at the earliest opportunity and had expressed contrition. It was suggested that it was appropriate that there be a discount of 25% in accordance with R v Thompson ; R v Houlton (2000) 49 NSWLR 383 in relation to the guilty plea, with a further discount of 10% in relation to the expression of contrition, which I note came from the affidavit of Mr Spackman.

Secondly, it was submitted that I should apply the principle of totality as expounded in the matter of Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683. The Defendant submitted this should be applied to the offences that took place, particularly on 14 and 15 November 2001, that is the breach of licence condition and the emission of odour offence, and also further that the principle of totality should apply as between all of the offences.

The Defendant also submitted it had been developing technology to solve the problem of separating nutrients from water in a machine called the electro-coagulator machine. It was pointed out that this was under development for some three years before the offence was committed, and I refer particularly to the affidavit of Mr Spackman at par 10 and his oral evidence. The development of this technology is particularly supported by the Prosecutor and there was oral evidence to that effect.

I further note the Defendant has agreed to spend some $930,000 to undertake works aimed at minimising pollution: affidavit of Mr Spackman at par 36 and 37, and Annexures Y and Z. It was said that this is occurring at a time when the Defendant is entering a period of possible downturn in its economic circumstances, given the recent rains and reduction in livestock numbers.

The Defendant, through Mr Spackman, gave evidence that it plays an important role in the town of Young and in the local region. In par 6, Mr Spackman's affidavit states that the Defendant is the largest employer in Young and in the immediate region, employing some 265 people. Mr Spackman gave oral evidence to the effect that the Defendant had recently had to reduce employment numbers. He also states in his affidavit that the Defendant is involved in the development of job skills through utilisation of TAFE teachers to train newly employed staff, and there are a number of other matters of that nature referred to in his affidavit.

It was also submitted that in imposing a penalty, while it is important to hold the Defendant accountable, it should be done in such a way that the Defendant can continue to improve the amenity of the residents of Young. A fine which is paid into consolidated revenue will not achieve those dual purposes. The Defendant has agreed to pay the Prosecutor's costs, so the taxpayers' interests are being protected.

It was put to me by the Defendant's counsel that the Court could craft an order to make any fine conditional upon the Defendant undertaking works aimed at minimising future pollution and referred particularly to the implementation timetable set out in Annexure Z to Mr Spackman's affidavit. It was proposed that the Defendant could receive credit against any fine imposed upon presenting proof of monies having been expended on those works. The Prosecutor opposed such an option, and upon the Court questioning whether there was indeed any power to take such a course, the Defendant's counsel essentially conceded later in written submissions that there was no power to take such a course. The Prosecutor agreed with that. I consider that I do not have power to do what the Defendant's counsel originally proposed.

Alternatively, the Defendant's counsel submitted (in written submissions) there is a power in s 11 of the Crimes (Sentencing Procedure) Act 1999 for the Court to adjourn proceedings for the purposes of allowing the Defendant to demonstrate that rehabilitation has taken place or for any other purpose the Court considers appropriate. The maximum period for such an adjournment is 12 months from the date of the finding of guilt. It was put to me that I could consider adjourning the sentence for the purpose of allowing the Defendant to demonstrate that it had carried out the works set out in Annexures Y and Z in the affidavit of Mr Spackman. I also note that the Defendant's counsel stated in his submission that the fact that the adjournment is conducted under s 11 in the context of a grant of bail may indicate that s 11 only applies in relation to actual persons, rather than bodies corporate such as the Defendant.

The Prosecutor submitted that it was not appropriate to apply s 11 of the Crimes (Sentencing Procedure) Act 1999 in this way. Section 11 was intended to deal with non-custodial alternatives in the sentencing of natural persons. The Prosecutor referred me to a decision of R v Palu [2002] NSWCCA 381 to submit that the use of the provision is not appropriate in the circumstances of this case as firstly, it should only be used as an alternative to imprisonment, which is clearly not a matter that I deal with in this case. Secondly, proper material has not been placed before the Court to allow this provision to be utilised in an appropriate way. Thirdly, the exercise of the power will delay substantially the finalisation of the prosecution of the offender. Such a delay would only be appropriate where it is essential in order to ensure a just result.

It is unclear whether I have power to apply s 11 as was proposed by the Defendant's counsel and I will accede to the Prosecutor's submissions that I not do so.

I turn now to look at the matters that I have to have regard to in setting the penalty, in addition to the matters in s 241 of the PEO Act. In terms of the overall gravity of the crime and the Defendant's culpability, I consider the Defendant has a high level of culpability in the context of these offences. I am required by virtue of Camilleri's case to have regard to the maximum penalty applicable as an expression of the seriousness of the offence. The maximum penalty applicable in this case is $250,000 for each individual offence.

Taking into account the matters under s 241(1), it does appear there was actual harm, albeit this harm was not long lasting and non-toxic, and no medical attention was needed by any of the affected residents. It does seem clear that practical measures were available, but were not implemented in time to prevent the offences in a context where the Defendant increased production knowing the system was inadequate. Although the Defendant was trying to take measures to increase the capacity of its effluent treatment system, it did nevertheless increase the load on that system without having adequate systems in place, and that would appear to be disregarding its responsibilities under the PEO Act and its licence conditions. It does appear to me that the odour offences and the breach of licensing condition were clearly foreseeable.

The Prosecutor submitted that it was important to have regard to general deterrence in matters of this nature. The Prosecutor also urged on me a need to consider specific deterrence. The Defendant has no known prior environmental offences. I was referred by the Prosecutor to three penalty infringement notices, but these were unrelated to the odour offences before me and no details were provided about those matters, so I do not take them into account. Given that the Defendant is actively engaged in remedying the current situation with the likely outcome that matters will improve substantially in the foreseeable future during 2003 (according to the implementation schedule found in Annexure Y to Mr Spackman's affidavit), I do not think specific deterrence is a factor I need to take into account.

I am also required to apply the principle of evenhandedness when imposing a penalty so that similar cases to receive similar penalties in this Court. Having said that, it is equally important that each case be decided on its own facts. I will simply note here that the Prosecutor referred me to Environment Protection Authority v Illawarra Coke Company Pty Ltd (2002) 118 LGERA 451 which concerned three odour offences in which fines of $40,000, $20,000 and $10,000 were imposed and the matter of EPA v Shoalhaven Starches Pty Ltd (Bignold J, NSWLEC, 14 October 1997, unreported) where a fine of $30,000 was imposed in a context where at the time the maximum penalty was $125,000.

The Defendant referred the Court to eight cases which demonstrated penalties imposed by the Court in recent matters. I did not find the cases the Defendant's counsel handed up particularly helpful as five of them related to different sections to those under consideration before me. The remaining three, which were breaches of licence conditions under s 64(1) of the PEO Act, were not odour related offences and I did not find them of great assistance.

As to the principle of totality, I accept the Defendant's counsel's submission that I should have regard to the principle of totality, which requires me to assess the overall criminality involved and then to determine whether a downward adjustment is necessary in order to achieve appropriate relativity between the totality of the crime and the totality of the sentence. Such a principle clearly applies in this case firstly, as between the offences committed on 14 and 15 November, that is matters 50095/02 and 50098/02, and secondly, as between the offences on 11 October, those on 14 and 15 November, and those on 22 November.

In relation to penalty, in my opinion the circumstances of the offence warrant that a penalty of $50,000, representing 20% of the maximum penalty, should be imposed for each offence. However, it is now necessary that I consider mitigating circumstances and the principle of totality to determine what level of downward adjustment is required. There are a number of mitigating factors that should be taken into account.

First of all, in relation to the guilty plea, I accept the Defendant's counsel's submission that there was a plea of guilty at the earliest opportunity, and it seems to me that the Defendant is entitled to the full discount referred to in R v Thompson of 25%.

Another mitigating factor which was brought to my attention is that of contrition and remorse. I have already noted the Defendant's submissions in relation to Mr Spackman's affidavit, and I accept the contrition and remorse expressed by the Defendant's general operations manager. I note that Mr Spackman also referred to, and I accept, a number of other undertakings by the Defendant in the local community which found a submission that the Defendant is a responsible local business which makes a significant contribution to that community. Also on the matter of contrition and remorse, I note the Defendant's current undertaking of a substantial environmental upgrade at the premises including investment in new technology and that it is spending substantial sums in this regard.

In my view, it is clear that there has been co-operation with the Prosecutor and I note the Defendant has agreed to a lengthy statement of agreed facts, which includes a number of frank admissions by the Defendant in relation to the causes of the offence.

The Defendant accepts that it must pay the Prosecutor's costs, which I note have been agreed at $21,500.

In all the circumstances, I think the Defendant's penalty should be discounted by a total of 35%. Applying that to the matter first in time, matter no 50096 of 2002 - which offence occurred on 11 October - reduces the penalty to $32,500.

It is now necessary that I apply the principle of totality for the balance of matters. In relation to the remaining offences and also as between matters 50095 of 2002 and 50098 of 2002, that is the November 14 and 15 offences, it seems to me there should be a substantial reduction because of the application of the totality principle as follows. For matter 50095 of 2002, there should be a penalty of $16,250 and a further nominal fine only for matter 50098 of 2002 of $2,000. For the last matter, that is 50099 of 2002, applying the totality principle, the fine is $8,125. That brings the total penalty to $58,875, which I believe reflects the total criminality of the offences and is a fair punishment in the circumstances of these matters.

Orders 60. The Court orders that: 1. The Defendant is convicted of the offences with which it is charged. 2. In matter no 50095 of 2002 the Defendant is fined the sum of $16,250 to be paid to the Registrar of the Court within 28 days of today's date. 3. In matter no 50096 of 2002 the Defendant is fined the sum of $32,500 to be paid to the Registrar of the Court within 28 days of today's date. 4. In matter no 50098 of 2002 the Defendant is fined the sum of $2,000 to be paid to the Registrar of the Court within 28 days of today's date. 5. In matter no 50099 of 2002 the Defendant is fined the sum of $8,125 to be paid to the Registrar of the Court within 28 days of today's date. 6. The Defendant must pay the Prosecutor's costs of the proceedings against it in the agreed sum of $21,500. 7. The exhibits may be returned.

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