Reviewing the appropriate sentence
157 The principle of even-handedness requires the court to have regard to the pattern of sentences currently being imposed in like case: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) NSWLR 683 at 701-702.
158 The Court has been referred to relevant authorities including: Environment Protection Authority v Bellingen Shire Council [2003] NSWLEC 42; Environment Protection Authority v Byron Shire Council [2001] NSWLEC 54; Environment Protection Authority v Lake Macquarie City Council [1999] NSWLEC 4; Environment Protection Authority v Bega Valley Shire Council, NSWLEC, Sheahan J, 14 August 1998, unreported; State Pollution Control Commission v Tiger Nominees Pty Limited (1991) 72 LGRA 337; and State Pollution Control Commission v Hunt (1990) 72 LGRA 316.
159 The difficulty in considering the pattern of sentencing in other cases is that the mitigating factors vary noticeably in each case. The mitigating factors in the present case are considerable and distinguish it from that against the defendant's co-offender in Waste Recycling and Procession Corporation case. As the Court of Criminal Appeal observed in Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312, even discriminating reference to other cases is of little utility and should be discouraged because the facts in cases such as the present will almost always be peculiar to the individual case.
The appropriate penalty
160 On fixing the appropriate penalty I note, in particular, that actual environmental harm was caused, but due to the prompt actions of Cleary Bros the harm was contained to some 800 metres of the length of the creek; that the principal concern was the high concentration of ammonia which was sufficient to cause the death of most invertebrates, including crayfish, but the concentration of ammonia had dropped back to background levels within five days at one sampling point; that the creek returned to its pre-impact quality within five weeks; that at the date of the hearing the aquatic organisms had recolonised the affected part of the creek and there is no continuing environmental harm.
161 The mitigating factors to which I have regard are; the fact that WRAPC was responsible for the provision of the infrastructure; the infrastructure included the bund at the leachate tanks; the capacity of the bund was less than half its design capacity of 649,000 litres; Cleary Bros' technical manager, Mr Granger, believed that the bunded area had a capacity of around 627,000 litres; the quantity of leachate which escaped into the creek was about 120,000 litres, if the bund had been constructed to hold 627,000 litres the overflow would have been contained within it; a contractor to WRAPC, namely JPG, removed part of the bund wall in order to install electrical conduits and did not properly restore it, again unknown to Cleary Bros - that is, if the bund had not been weakened at the point of the breach and if the bund had been constructed to its design capacity, the system was unlikely to have failed and, even though the pump at the leachate dam had not been turned off, it is unlikely that the spill would have occurred. The construction of the bund and the failure to properly repair it following the work of JPG were, it seems to me, the responsibility of WRAPC. Even though the employee of Clearly Bros failed to turn the pump off, I accept the fact that Mr Granger of Cleary Bros believed that the infrastructure comprising the whole of the LMS and, in particular, the bunded area would have contained any spill. That is, the spill would have been contained if the bund had been constructed to its design capacity and had not otherwise failed.
162 I also note, however, the evidence of Mr Donnelly that the total volume of leachate which overflowed was 168,127.6 litres. Even accepting this estimate, the design capacity of the bund would have contained the spill. Cleary Bros was given to understand that there was a "fail safe" system in place, WRAPC was wholly responsible for the provision of the infrastructure, and Cleary Bros was under no obligation to supervise or check the works of other contractors to WRAPC such as JPG.
163 I take into consideration the fact that this incident has already proved costly to Cleary Bros. Cleary Bros has incurred clean up costs of $82,292.40. It has agreed to pay the prosecutor's investigation costs of $7,240 and the prosecutor legal costs of $104,000. The total costs thus incurred are $193,532.47. Clearly Bros must also pay its own legal costs, as well as the penalty.
164 Moreover, WRAPC has withheld payments due to Clearly Bros under the contract amounting to $423,428.97 to cover its own costs and expenses arising from the incident, including the fine which it was ordered to pay ($75,000) and the prosecutor's costs which it also was ordered to pay ($39,000) in the associated prosecution of Waste Recycling and Processing Corporation case.
165 It remains to be seen whether Cleary Bros is able to successfully dispute the entitlement of WRAPC to withhold this sum - see par [20] above. Nevertheless, the incident has cost Cleary Bros a total of $616,960 to date, which does not include the fine and the prosecutor's costs which is now to be ordered nor its own costs of these proceedings.
166 The special mitigating circumstances in this case mean that the penalty which is now to be imposed is somewhat lighter than would be called for in a pollution incident of this kind. The appropriate penalty in my view is, in all the circumstances a fine of $25,000 which I discount by 35 per cent to $16,000, to encompass the early plea of guilty, assistance to the prosecutor and the prompt steps taken in limiting and cleaning up the spill.