Environment Protection Authority v M A Roche Group Pty Ltd; Environment Protection Authority v Roche

Land and Environment Court (NSW)|2013-11-07|Before: Pain J

ademy of Environmental Law Colloquium, 16 - 20 October 2006 Category: Sentence Parties: Environment Protection Authority (Prosecutor) M A Roche Group Pty Ltd (Defendant) Mark Roche (Defendant) Representation: Ms M Odell (solicitor) (Prosecutor) Mr M Bonnano (solicitor) (Defendants) Office of Environment and Heritage (Prosecutor) Lindsay Taylor Lawyers (Defendants) File Number(s): 50432 of 2013, 50491 of 2013, 50433 of 3013

Sentencing of corporate defendant for two water pollution offences (matters and 50491 (offence 20 June 2012) of 50432 2013 (offence 27 June 2012)) 1The Defendant M A Roche Group Pty Ltd has pleaded guilty to two charges of polluting waters in contravention of s 120(1) of the Protection of the Environment Operations Act 1997 (the PEO Act) at or near 129 Milligans Road, Wauchope in the State of New South Wales. The first offence (matter no 50491 of 2012) occurred on 20 June 2012 and the second on 27 June 2012 (matter no 50432 of 2012). It is necessary to sentence the Defendant for these offences. By pleading guilty the Defendant accepts the essential elements of the offences. 2The parties have agreed and orders have been made that evidence in one matter is evidence in the others. The parties have agreed a statement of facts (SOAF) as the basis for sentencing as follows: BACKGROUND The Pollute Waters Charge 1. M.A. Roche Group Pty Ltd (M.A. Roche) is charged with two offences of polluting waters in contravention of s120(1) of the Protection of the Environment Operations Act 1997 (the POEO Act), on 20 June 2012 and again on 27 June 2012 at or near 129 Milligans Road, Wauchope in the State of New South Wales. 2. The maximum penalty available for each offence is $1,000,000. 3. The particulars of the offences are contained in the Summonses filed with the Court. The Delay and Obstruct an Authorised Officer Charge 4. Mr Mark Roche is charged with an offence of wilfully delaying or obstructing an authorised officer's powers under Chapter 7 of the POEO Act between 15 October 2012 and 8 November 2012. 5. The maximum penalty available for this offence is $250,000. 6. The particulars of the offence are contained in the Summons filed with the Court. M.A. Roche Group Pty Ltd and Mr Mark Roche 7. M.A. Roche operates a quarry known as Volcanic Resources which is located at 129 Milligans Road, Wauchope NSW ('the Premises'). 8. M.A. Roche holds an Environment Protection Licence ('EPL') number 12364 for the activities of "Crushing, Grinding or Separating" and "Extractive Activities". M.A Roche's EPL does not allow it to discharge any pollutants off the Premises. 9. Mr Roche is one of the Directors of M.A. Roche. He is also the Manager of Volcanic Resources. 10. The Premises consists of two main areas: an operational pit area where material is extracted from the ground and processed ('the Operational Pit'); and within a separate catchment, a series of sediment dams for treating runoff and process water that is contaminated with suspended solids ('the Sediment Dams'). 11. Material is extracted from the Operational Pit with a bulldozer. Once the rock material is ripped loose from the ground, a front end loader or excavator picks it up and passes it through a series of crushers to reduce the size of the rock material. 12. Once down to the appropriate size the material is then put through a washery process. The washery washes any fine material from the rock and screens it into similar sized material. It is then stockpiled awaiting sale. 13. At the time of the incident, there were also three sediment dams on the Premises. The purpose of these dams is to collect and treat sediment laden water from the premises, including the spent wash-water from the washery. Water from the washery is meant to flow into Sediment Dam One where the coarsest sediment drops to the bottom, it then flows to Sediment Dam Two, where finer sediment falls to the bottom, and finally into Sediment Dam Three where more sediment is removed. Water in Sediment Dam Three must only overflow out of this dam if it is cleaned such that pollution of waters does not occur. If this three dam process is not adequate to remove the sediment from the water then an option for a licensee would be to add flocculants in a careful and controlled manner. Flocculants cause the sediments to agglomerate together which assists in them settling out prior to the water in dam overflowing 14. Attachment 1 is a copy of a map of the Premises. THE WATERS POLLUTED 15. The waters that were polluted included a dry bed of an unnamed watercourse that flows into Herons Creek and Herons Creek. 16. Discharging waters left the Premises through the bottom of a rock causeway, which had been constructed in the western wall of the Operational Pit. The discharging water entered the dry bed of an unnamed watercourse which flowed into Herons Creek. 17. Herons Creek is a creek which is approximately 2 to 5 m wide and 0.2 to 0.5 m deep in the channel section where the alleged pollution incident(s) occurred. Herons Creek upstream of the Premises has been observed as being clear and free of any noticeable suspended solids or sediment. This section of Herons Creek runs through State Forest. The in-channel animals and plants include fish, macroinvertebrates and benthic/attached algae. 18. The sediment in the water included soil, earth, silt, clay and/or other suspended solids and/or similar inorganic matter. THE INCIDENT 20 June 2012 - The first water pollution incident 19. On 20 June 2012, at approximately 8.30am EPA Officers David Bell and Sarah - Jane Oakroot were undertaking a routine inspection of the Premises. 20. On the day of this inspection the rock washery was located in the Operational Pit. Waters for use in the washery were being sourced from the Sediment Dams, which are located in a different catchment to the Operational Pit . The turbid water draining from the washery operations was flowing into the Operational Pit and collecting against the western wall of the Operational Pit. Photos at Attachment 2 show the turbid water collecting in the Operational Pit. 21. The western wall of the Operational Pit was constructed of earthen material and it had a causeway in it. This causeway was located in a section of the earthen wall and was covered with rocks up to the height of the earthen wall. Photographs at Attachment 2 show the rock causeway from the Operational Pit side. 22. The EPA Officers walked to top of the western wall of the Operational Pit (at the rock causeway) and looked over the wall down the opposite side of the Operational Pit. From that position they observed sediment laden water discharging through the bottom of the rock causeway and away from the Premises (the discharging waters). Photographs at Attachment 3 show water discharging through the rock causeway on the side opposite to the Operational Pit. 23. The discharging waters entered an unnamed watercourse which flowed from the point of discharge at the base of the rock causeway to a fence on the Premises boundary and then continued through a neighbouring property until it converged with Herons Creek. Photographs at Attachment 4 show the discharging waters flowing to the boundary of the Premises and escaping into the neighbouring property. The discharging waters travelled approximately 300m from the point of discharge to the confluence with Herons Creek. 24. At the point where the unnamed watercourse converged with Herons Creek the water was murky and brown and looked the same as the water that was discharging from the rock causeway in the western wall. Conversely, the waters of Herons Creek upstream of the confluence with the unnamed creek were observed to be clean to very clear and not carrying any noticeable suspended solids or sediment. 25. At the point of convergence of the discharging waters and Herons Creek there was a clear demarcation line between the clean waters from upstream and the murky waters from the discharging waters. Photograph at Attachment 5 shows this demarcation and the turbid waters from the unnamed creek discharging into the clean waters of Herons Creek. Downstream of the confluence of Herons Creek and the unnamed watercourse, the entire width of Herons Creek was affected by the discharging waters and this can be seen in the photograph at Attachment 6. 27 June 2012 - The second water pollution incident 26. On 27 June 2012, Officers Bell and Oakroot returned to the Premises to check whether the discharge of waters had ceased. 27. The EPA Officers again walked to the top of the western wall of the Operational Pit at the rock causeway. The Officers looked over the wall down the opposite side of the Operational Pit. They observed that sediment laden water was discharging from the base of the wall and out of the Operational Pit. Photographs at Attachment 7 show water discharging through the rock causeway and the discharging waters flowing away from the Premises and towards the neighbouring property. 28. The discharging waters again entered the unnamed creek, flowed along the same path as on 20 June 2012, to the boundary of the Premises, through the neighbouring property and into Herons Creek. Herons Creek was brown and murky for approximately 500m downstream of the point where the discharging waters entered Herons Creek. On the previous inspection, the sediment laden water had not travelled that far downstream. Prevention notice 29. On 20 June 2012, at the time of the first inspection by the EPA officers, EPA Officer Bell told Mr Steve Johns (an employee of M.A. Roche who appeared to him to have control of the site) that the discharge of waters was a breach of section 120 of the POEO Act, that the discharge needed to be stopped and that the EPA would be issuing a written direction to M.A. Roche to stop the discharge. 30. On 20 June 2012 Mr Roche was made aware by one of his employees that sediment laden water was discharging through the western wall, that the EPA had been on site and that a verbal direction had been given about taking action to cease the discharge of the sediment laden water through the western wall. 31. On 22 June Mr Bell had a phone conversation with Mr Roche during which Mr Bell told Mr Roche that the discharge of sediment laden water needed to be stopped and that the EPA would be issuing a written direction to M.A. Roche to stop the discharge. 32. On 22 June 2012, M.A. Roche was issued with a prevention notice which required it to cease all quarrying activities on the Premises until the discharge had stopped and to take necessary action to prevent any further discharge of waters. A copy of the Prevention Notice which was sent is at Attachment 8. 33. On the 27 June 2012, during the second inspection by EPA Officers it appeared that no works had been undertaken to stop the discharge. There were no pumps in place pumping out water from the Operational Pit, there was no evidence of any earthworks or any other works at the base of the western pit wall either on the Operational Pit side or on the outside of the Operational Pit. 34. The reason given by Mr Roche, on behalf of M.A. Roche, as to why no action had been taken to stop the discharge was that there was a forecast of heavy rain and that this prevented it taking any action to stop the discharge. 35. There was no rain forecast on 20, 21, 22, 23, 24 or 25 June 2012. On 26 and 27 June 2012 isolated showers were forecast near the coast. There was no rain recorded in the Port Macquarie area on 20, 21, 22, 23, 24, 25 or 26 June 2012. The first day that rain was recorded after the Prevention Notice had been issued was 27 June 2012. 36. Heavy rain was recorded in the area on 27, 28 and 29 June 2012. 37. M.A. Roche had a pump on the premises at the time that the discharge was occurring. On 20 June 2012 this pump was being used to pump water from the Sediment Dams to the washery. Water ceased discharging 38. On 4 July 2012, EPA officers Sarah - Jane Oakroot and Peter Jamieson inspected the Premises. 39. The Officers climbed onto the western wall of the Operational Pit and saw that there was no discharge of waters through the base of the western wall. SAMPLES AND POTENTIAL FOR ENVIRONMENTAL HARM 40. Officer Bell took a number of samples at various locations during his inspections of 20 and 27 June 2012. These were submitted for analysis to the EPA laboratories. 41. In summary, the EPA sample results from 20 June 2012 show that the water discharging from the base of the Operational Pit wall at the rock causeway had very high levels of turbidity (6,100 ntu). This is in contrast to the upstream samples (taken in Herons Creek upstream of the point where the discharging waters entered Herons Creek) which had very low levels of turbidity (less than 3 ntu). The resulting impact on Herons Creek was high levels of turbidity (1,500 ntu) immediately downstream of the confluence between Herons Creek and the discharging waters. Table 1 below summaries the samples taken by the EPA on 20 June 2012: [table omitted] 42. Similarly, the sample results for 27 June 2012 show that the water discharging from the base of the Operational Pit wall had very high levels of turbidity (2,900 ntu). Again, this can be compared to upstream samples in Herons Creek for which the turbidity levels were 22 ntu. 43. The turbidity level of 22 ntu recorded in Herons Creek upstream was measured following heavy rainfall and the slightly elevated levels of turbidity are mainly due to the rainfall on that date. This upstream level of 22 ntu contrasts with turbidity levels of 1,400 ntu recorded in Herons Creek downstream of the discharges from the Premises. 44. Table 2 below summaries the samples taken by the EPA on 27 June 2012: [table omitted] 45. OEH expert Yoshi Kobayashi explains that total suspended solids (TSS) are a measure of the amounts of suspended particulate matter in water. Suspended particulate matter may influence aquatic ecosystems both when in suspension and as it settles out in the following ways: a. suspended particulate matter can reduce light penetration and this negatively affects plant production in the form of algae and other aquatic plants, this, in turn, affects the bottom-living and bottom-feeding organisms that are dependent, directly or indirectly, on plants for food; b. suspended particulate matter has also been shown to directly affect fish by clogging or coating gills, which can lead to death if levels are high enough. It can also interfere with the feeding mechanisms of filter-feeding animals that strain food particles from the water, causing stress or mortality, and c. particulate matter that has settled out may smother bottom-living organisms such as snails and bivalves and/or change the nature of the substrate filling the interstices between stones and converting solid substrate to silty substrate, thus negatively affecting the habitat conditions for bottom-living organisms. 46. Turbidity is also a measure of the amounts of suspended matter. Turbidity is one of the stressors that are not toxic but can directly affect aquatic ecosystems and biota. 47. The highly elevated levels of turbidity measured in Herons Creek on both 20 and 27 June 2012 combined with elevated concentrations of TSS had the potential to impede the healthy in-stream productivity of plants and animals and to harm the healthy in-stream habitat conditions for the aquatic organisms, especially bottom-living organisms such as snails and bivalves and the organisms including minute invertebrates and algae that use the surface of aquatic plants or other substrates as habitats. 48. All water samples collected on 20 and 27 June 2012, apparently contaminated by waters originating in the quarry pit dam (including downstream samples from Herons Creek), were acutely toxic to the zooplankton crustacean Ceriodaphnia dubia even when diluted at least 10 times with clean water. 49. No toxicity was evident to C. dubia in water samples collected in Herons Creek, upstream of the influence of the quarry pit dam discharge. 50. Microtox bacterial tests showed similar relative responses to the various samples as did the C. dubia, but with a generally lower level of toxicity evident in the samples apparently contaminated with quarry pit dam waters. 51. Rainbowfish larve (Melanotaenia duboulayi) were not acutely sensitive to samples collected on 27 June 2012. Water samples including those apparently contaminated by waters originating from the quarry pit dam, did not cause an acutely toxic (e.g. lethal) response in rainbowfish larvae exposed to undiluted samples for 72 hours. 52. The differing levels of toxicity evident in the three test species is not unusual and underlies the desirability of using a variety of test species to fully assess potential ecotoxicity. 53. On 20 June 2012 the extent of the harm would have been limited to a distance of 170m downstream of the confluence of the discharge waters into Herons Creek and by 27 June 2012 the extent of the harm increased to approximately 500m downstream of the confluence. CAUSE OF THE INCIDENT 54. The rock causeway in the western wall of the Operational Pit failed because the western wall of the Operational Pit was not properly constructed and because the spillway in the western wall of the Operational Pit was not properly constructed. 55. NSW Soil Conservation Service expert Richard Good has formed the opinion that the western wall of the Operational Pit was constructed from uncompacted and porous soil layers and as such was unable to withstand the pressure of the water stored against it in the Operational Pit. This allowed the waters to tunnel through the wall and discharge to the unnamed creek. In addition, the western wall was not "keyed" into the underlying soil and this meant that the stored water was able to seep under and weaken the base of the western wall at the spillway and created a failure path for the stored water. 56. "Keying in" involves physically binding the soil used for construction of an embankment into the underlying soil by ripping the subsoil and progressively placing and compacting embankment soil in layers to block the path of stored water and prevent it seeping through the wall. Inadequate keying of the base of a dam embankment can enable stored water to seep through and weaken the base of the dam embankment predisposing the wall to failure. 57. Mr Good further identifies that the spillway (rock causeway) was inadequately constructed. This is because: a. the spillway was not wide enough, b. the gabion rock covering the surface of the spillway was loose and unbound and would have washed away during rainfall events predisposing the spillway to further erosion. 58. Mr Good forms the opinion that although the reasons set out in paragraph 57 above did not directly contribute to the discharge of water through the rock causeway, these two factors would contribute to the instability of the western wall if a large rainfall event occurred that forced stored quarry runoff water to over-top the spillway. 59. Prior to the two incidents on 20 and 27 June 2012 M.A. Roche did not have any procedures in place to check the dam walls to ensure that water did not discharge off the Premises. 60. At the time of the first Record of Interview with Mr Roche on 8 November 2012 (and after the two water discharge incidents occurred) procedures had still not been put in place by M.A. Roche to check the dam walls to ensure that polluted water did not discharge off the Premises. INTERVIEWS CONDUCTED 61. The EPA conducted interviews with Mr Mark Roche and Mr Matthew Everingham on 8 November 2012. Mr Roche is a Director and Manager of M.A. Roche and was the person nominated as the company representative for the purpose of a record of interview. Mr Everingham is an employee of M.A. Roche. 62. The EPA conducted interviews with Mr Steve Johns on 29 November 2012, Mr Rodney Keena on 7 January 2012. Mr Johns and Mr Keena were employees of M.A. Roche at the time that the two water discharge incidents occurred. 63. The EPA conducted a second interview with Mr Mark Roche on 22 March 2012. MAINTENANCE OF THE WESTERN WALL OF THE OPERATIONAL PIT 64. The western wall of the Operational Pit collapsed following rainfall in October 2010. In October 2010 polluted water discharged through the point where the wall collapsed, which was the same location where the polluted waters were observed by EPA officers to be discharging through the western wall on 20 and 27 June 2012. Photographs showing the collapsed wall as it was following the collapse during an inspection by Officer Bell on 9 December 2010 are shown at Attachment 9. 65. Mr Roche repaired the collapsed wall himself and did not engage an engineer or other expert to assist with these works. PENALTY NOTICES ISSUED TO THE DEFENDANT 66. M.A. Roche has not been previously prosecuted for any environmental offences. However, in July 2011, M.A. Roche was issued with a Penalty Notice for pollution of waters under the POEO Act relating to the collapse of the western wall of the Operational Pit described in paragraph 59 above. 67. Between 2010 and 2012 M.A. Roche has also been issued with three other Penalty Notices and two Official Cautions for other (non pollution of waters) environmental offences. MR STEVEN JOHNS AND MR RODNEY KEENA 68. On 27 September 2012, the EPA issued four notices under section 203 of the POEO Act to nominate a place and time to attend and answer questions in relation to the pollution of waters at the Premises. One of the four notices was addressed to Mr Steven Johns and another to Mr Rodney Keena. These notices were sent by registered post to the postal address of M.A Roche because the EPA believed that these two men were employees of M.A. Roche. 69. On 17 October 2012 Mr Roche sent an email to Peter Jamieson of the EPA informing him that Mr Steve Johns and Mr Rodney Keena were no longer employed by M.A. Roche and that as at 17 October 2012 they were both permanently employed in the mines in Western Australia and as a result would not be attending their interviews. 70. Mr Roche again stated this information, about Mr Johns and Mr Keena's employment in the mines in Western Australia, in an interview with EPA investigators on 8 November 2012. 71. Mr Johns and Mr Keena were not working in the mines in Western Australia at the times that Mr Roche told the EPA that they were. Mr Johns was working for M.A. Roche on both 15 October 2012 and 8 November 2012. Mr Keena was not working at the mines in Western Australia on either 15 October 2012 or 8 November 2012. 72. Mr Roche told the EPA that Mr Johns was a casual employee and not a permanent employee Mr Johns has clarified with the EPA that he was a permanent employee and not a casual employee, at all relevant times. This has since been confirmed by Mr Roche. 73. Mr Keena was employed casually by M.A. Roche and ceased his employment with M.A. Roche between the end of September 2012 and beginning of October 2012. 74. Mr Roche has since admitted to the EPA that he was not truthful about the whereabouts of Mr Johns and Mr Keena and that Mr Johns was employed by M.A. Roche at the relevant times. 3An affidavit sworn by Mr Roche, Director of the Defendant, on 1 November 2013 was read. The other director of the Defendant is Mr Roche's wife. The Defendant is a small family based operation with only seven full time staff. Mr Roche outlines why he was unable to commence work to prevent the discharge after the first offence and that he secured pumps to drain the site after the second offence. He has monitored the wall for any signs of failure since the second offence and instructed his staff to check daily for any signs of failure. Annexed is a copy of a letter from ERM Port Macquarie in response to his request for assistance to properly design and construct appropriate measures to address any future problems with run off from the quarry sites, the cost of which is estimated at $14,000. He is awaiting the surveyor's report to commence the necessary works. He expresses his regret that he allowed the offences to occur and believed that he had adequately repaired the western wall after the overflow in 2010. He was not at that time able to obtain the services of expert engineers to assist him. 4Mr Roche was cross-examined by the Prosecutor's solicitor as to why he did not take steps to prevent further pollution after the first incident on 20 June 2012. He replied that rain was forecast and he did not want to exacerbate the situation by replacing the dam wall during further rain as he thought that would make the situation worse. He had only a small pressure pump on the premises which would have taken three weeks to pump out all the water and was not able to hire a more effective pump at the time as these were being used elsewhere. 5The Defendant tendered its recent financial records (exhibit 1). The Defendant's tax return for 2011 showed a loss of $47,490. The Defendant's tax return for 2012 showed a loss of $76,029. The Defendant's bank account record was also tendered. The profit and loss statement dated July 2012 through June 2013, which has yet to be audited, shows a loss of $153,844.55. 6Section 3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) states the purposes for which the Court may impose a sentence on a defendant 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. 7The Prosecutor submitted that factors (a), (b), (e), (f) and (g) are most relevant in these proceedings for both offences. The objective and subjective circumstances of the offence must be weighed up in the context of the legislative framework under the PEO Act. 8The Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a "value judgment as to what is the appropriate sentence given all the factors of the case": Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] unanimously following Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51] per McHugh J. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the Defendant: see Veen v R [1979] HCA 7; (1979) 143 CLR 458 at 490; Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472 - 473, 490 - 491. The sentence should not exceed what is "justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances": Veen v The Queen (No 2) at 472, 485 - 486, 490 - 491, 496; Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

Maximum penalty 9At the time of the commission of each of the offences the maximum penalty prescribed by the NSW Parliament for a breach of s 120 (1) of the PEO Act was $1,000,000 for a corporation (s 123(a) PEO Act). 10Maximum penalties are reserved for the worst cases. While the Prosecutor does not say that this is such a case, nonetheless the gravity of any particular offence should be measured by reference to the maximum penalty for the offence. A maximum penalty is a public expression by Parliament (and, by extension, the general community) of the gravity of the offence: Kirby P in Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698. 11The objects of the PEO Act specify matters which must be considered in undertaking this sentencing process, as contained in s 241(1).

(a) harm caused or likely to be caused to the environment by commission of the offence, s 241(1)(a) POEO Act 12"Harm " is defined in the Dictionary to the PEO Act to include: ... any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.

Prosecutor's submissions 13Section 241(a) requires the Court to take into consideration not only the harm caused but the harm "likely to be caused to the environment". The meaning of this concept was considered in Newcastle City Council v Pace Farm Egg Products [2002] NSWLEC 66. It was stated at [44] that: The word "likely" in this context has been held to mean "a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance". 14Harm to the environment includes actual harm and the potential risk of harm. The Prosecutor accepted that there is no direct evidence to indicate that either of the offences caused actual harm to the environment in terms of discernible impacts on fauna or flora. However, there is evidence that both offences otherwise caused actual harm. As a result of both offences sediment laden water was discharged off the premises and into Herons Creek, altering and degrading the environment by elevating levels of turbidity and Total Suspended Solids (TSS) in Herons Creek immediately after the incidents. The following sample results showing elevated turbidity levels were obtained immediately following the two offences: (a)On 20 June 2012 the water immediately downstream of the confluence between Herons Creek and the discharging waters had turbidity levels of 1,500ntu compared to the upstream levels of less than 3ntu (the turbidity levels were 500 times higher). (b)On 27 June 2012 the water immediately downstream of the confluence between Herons Creek and the discharging waters had turbidity levels of 1,400ntu compared to upstream levels of 22ntu (the turbidity levels were 64 times higher). (c)The default trigger value for the protection of slightly disturbed aquatic ecosystems for lowland rivers and streams in south-east Australia is 5 to 50ntu. 15At the time of the first offence the TSS levels at the confluence of Herons Creek and the discharging waters were 107 times that of the TSS levels upstream and at the time of the second offence they were 65 times higher. As a result of the first offence on 20 June 2012 harm extended 170m downstream of the confluence of the discharging waters and Herons Creek. As a result of the second offence on 27 June 2012 harm extended up to 500m downstream. As a result of both offences there were visual impacts on Herons Creek. 16Several cases were referred to by the Prosecutor which were said to support the submission that actual harm was caused by the incidents; Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160 at [62], Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 at [73], Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [52] and Environment Protection Authority v Ravensworth Pty Limited [2012] NSWLEC 222 at [30]. 17The Prosecutor submitted that Herons Creek was likely to suffer harm as a result of the offences in that there was potential for flora and fauna to be harmed by increased turbidity and increased TSS. It is an agreed fact that the high levels of turbidity and elevated concentrations of TSS measured in Herons Creek immediately after both offences had the potential to impede healthy in-stream productivity of plants and animals and to harm the health in stream habitat conditions for aquatic organisms. It is an agreed fact that turbidity is a stressor that, while not toxic, can directly affect aquatic ecosystems and biota. It is an agreed fact that TSS is a measure of the amounts of suspended particulate matter in water. Suspended particulate matter may influence aquatic ecosystems both when in suspension and as it settles out in a number of ways as set out in par 45 of the SOAF.

Defendant's submissions 18The Defendant accepts that the harm falls within the definition of "likely harm" as defined in Newcastle City Council v Pace Egg Farm Products. The Defendant questions whether this allows the Prosecutor to argue that this likelihood produces a conclusion of actual harm. Certainly there was discolouration of the water and increased turbidity. Increased turbidity is "one of the stressors that are not toxic but can directly affect aquatic ecosystems and biota." Yoshi Kobayashi SOAF at [46]. The Defendant does not downplay the significance of these facts. The Defendant merely says that there is no evidence of harm in the sense of dead animals or organisms. The Environment Protection Authority (EPA) conducted inspections on 4 July 2012 which indicated repairs to the wall had been affected and that no further discharge was being produced. Accordingly the harm to the environment from both offences is of a limited nature, within a confined area, and for a relatively short period of time.

Conclusion on environmental harm 19As stated by Preston J in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299: 145 Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. ... 146 Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174]. 147 Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously. 20The SOAF at par 40-53 contains a section on samples and environmental harm. Samples were taken by officers of the Prosecutor of the polluted water being discharged from the Defendant's property into Herons Creek and the levels of turbidity in the Creek upstream and downstream of the discharge point for the first incident in table 1 and the second incident in table 2. A greater volume of water appears to have escaped during the second incident as turbid water was detected further down the river on that occasion. The water discharging from the Defendant's premises had very high levels of turbidity when compared with upstream samples and this affected the water in Herons Creek for distances estimated at 170 metres (first incident) and 500 metres (second incident). The potential for environmental harm is identified by the Prosecutor's expert in par 45 of the SOAF in relation to total suspended solids (TSS) on aquatic vegetation and other organisms. Samples tested on bacteria and larvae demonstrated the potential for toxicity to such organisms in the levels sampled. 21The offences occurred in a defined geographical area with turbid water identified in Herons Creek for 170 metres in relation to the first incident and 500 metres for the second incident. The volume of turbid water which leaked from the premises is unknown. Photographs attached to the SOAF do not suggest a large volume of water escaped on either occasion. The leak was first detected on 20 June 2012 and had ceased by 4 July 2012 and I agree with the Defendant was limited in time. There was actual harm in that there was alteration to the environment in accordance with the definition of "harm" in the PEO Act, and as identified in Environment Protection Authority v Waste Recycling and Processing Corporation at [146] - [147]. The cases relied on by the Prosecutor at par 16 as supportive of its submission that there was actual harm despite there being no evidence of harm to organisms in Herons Creek are findings by the Court arising from the application of the statutory definition that there was alteration to the environment in large part. Turbid water is well recognised in many cases as having negative environmental impacts on aquatic life. I consider, and as accepted by the Defendant, the pollution was likely to have caused harm (as held in Pace Farm) to in-stream organisms. This is confirmed by the SOAF at par 45 - 52 with the evidence of the Prosecutor's expert identified therein. While the expert's evidence is couched in terms of potential for harm, that evidence suggests that the more serious "likely to cause" harm arises in the circumstances. The harm and likely harm was for a limited time and in a limited geographical area. The extent of environmental harm is low in these circumstances.

(b) the practical measures which may have been taken to prevent, control, abate or mitigate that harm, s 241(1)(b) POEO Act

Prosecutor's submissions 22The Prosecutor accepted the cause of the incidents was accidental. It submitted that there were a number of actions that the Defendant could have taken to prevent, control or mitigate the harm caused by the first offence. The Defendant could have: (a)engaged a qualified expert in the area of dam wall construction to provide advice about the most appropriate way to construct the western wall of the Operational Pit; (b)properly constructed the western wall of the Operation Pit by compacting the soil used for its construction so that it could better withstand the stored water in the Operational Pit and would prevent the water tunnelling through; (c)properly construct the western wall by keying in the underlying soil used for its construction. This could have prevented the water seeping through under the wall and weakening the base of the dam wall predisposing it to failure; (d)had procedures in place requiring the regular inspection and maintenance of the western wall; and (e)conducted regular inspections to ensure that the wall was adequately retaining the water and that water was not discharging. 23In addition to those matters set out above, the actions that the Defendant could have taken to prevent, control or mitigate the harm caused by the second offence are: (a)undertake works to stop the water discharging through the western wall , as was directed in the Prevention Notice issued by the EPA ; (b)engage a qualified expert to provide advice about the most appropriate methods to repair the wall after its failure on 20 June 2012; (c)engage a qualified expert to carry out or supervise the works to repair the wall ; and (d)conduct regular inspections of the dam wall to ensure no further polluted water was discharging through the western wall and off the premises. 24Further, the Defendant should have commenced pumping out the water in the operational pit immediately, and certainly once the prevention notice was received. 25The Defendant did not make specific submissions about s 241(1)(b) in relation to the first incident except to say that the wall was repaired following the 2010 failure of one section and this worked until 2012. I agree with the Prosecutor that there were measures that could have been taken as the Prosecutor submitted to prevent the first incident. Of particular concern is that there was no system for regular inspections in place and it is not in the Defendant's favour that the EPA noticed the discharge first. These remarks are tempered however in that I recognise this a small family run operation with few employees. 26Given the close proximity of the second incident to the first and Mr Roche's oral evidence about the difficulty of pumping out water to enable repairs of the wall given the forecast of rain, the extent to which practical measures could have been taken to avoid this is less clear. The measures proposed by the Prosecutor in relation to the second incident are unrealistic given the very short time frame between the two offences. 27I also take into account the Defendant's efforts made after the two incidents to prevent further recurrences.

(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, s 241(1)(c) PEO Act

Prosecutor's submissions 28The Prosecutor submitted that the risks of harm to the environment caused by both offences were clearly foreseeable to the Defendant as the holder of an Environmental Protection Licence. In Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211 at [81] Craig J stated that: ... the holder of an environment protection licence is clearly on notice of the possibility of harm to the environment occasioned by any of the activities which it carries out on the site to which that licence relates. 29In the present case, condition L1 of the Defendant's licence did not permit the discharge of any polluted water off site. The Prosecutor submitted that the Defendant should be taken to be aware of the licence condition and that the Defendant was therefore on notice over and above an ordinary member of the public that it could not discharge polluted waters. 30The Prosecutor submitted that the discharge giving rise to the first offence on 20 June 2012 was foreseeable to the Defendant because: (a)the Defendant knew the site and knew that the water in the operational pit was dirty, the Defendant was also aware of where the dirty waters would flow if they left the premises; (b)in 2010, the western wall collapsed at the rock causeway, the same spot where it failed on 20 June 2012, giving rise to the first offence; and (c)the Defendant's Manager and Director repaired the wall himself and did not engage a qualified expert to assist with the repairs. 31The Prosecutor submitted that the harm caused, or likely to be caused to the environment, by the commission of the second offence was also clearly foreseeable to the Defendant because: (a)the discharge giving rise to the first offence, seven days earlier, should have put the defendant on notice that polluted water could discharge through the bottom of the rock causeway in the western wall if no action was taken to rectify the causes of the first offence; (b)there continued to be sediment laden water in the operational pit; (c)EPA officers informed the Defendant on 20 June and 22 June 2012 that the discharge of waters through the western wall of the operational pit was contrary to s 120 of the PEO Act and needed to be stopped. The Defendant was issued with a Prevention Notice under s 96 of the PEO Act which required the Defendant to take all necessary action to prevent the discharge of sediment laden water through the western wall of the operational pit; and (d)the Defendant did not take any action to stop or prevent further discharge between the first and second offence despite being put on notice that the harm caused by the first offence was likely to continue or reoccur. 32The Prosecutor submitted that the harm caused by the second offence was more foreseeable than the first offence.

Defendant's submissions 33The Defendant submitted that the two offences need to be viewed separately under this consideration. The western wall of the operational pit had failed in October 2010 and the Defendant was fined for discharge at that time. Following that incident the Defendant took steps to repair the western wall of the pit. The Defendant conceded that it did not retain the services of a qualified expert, however the wall was repaired and put into a better condition than it had been prior to that failure. The repaired western wall served its purpose from October 2010 until the first incident when the EPA officers conducted their inspection on 20 June 2012 and observed the discharge. 34The wall failure in 2010 was much larger and involved a much greater discharge. The first incident involved a smaller and less obvious discharge from the base of the western wall into the unnamed creek and into Herons Creek. The first incident was not foreseeable as it was of a quite different nature to the October 2010 incident when the wall then in place failed completely. Work was carried out to fix that problem. 35In relation to the second offence the Defendant says that there was already a large amount of water in the operational pit after the first incident. In order to undertake the work to repair the western wall and to stem the flow of the discharge the Defendant needed to remove the water from the pit. Mr Roche's evidence is that he did not move to repair the wall immediately as he was unable to pump out the substantial amount of water in the pit with the pump he had on site and was unable to hire another more effective pump at the time. Further rain resulted in the second incident but to the extent it was a continuation of the first was also not foreseeable. 36It is relevant to my consideration that the Defendant operates a business which requires an environment protection licence which includes condition L1 that water pollution must not occur off site. It operates a commercial business which requires the containment of water on the site. Particular precaution is warranted in these circumstances to prevent water discharging off site. That the cause of the water pollution was different to 2010 does not suggest the first incident was not foreseeable. The repair to the section of wall which failed in 2010 to hold water had to be adequate for the task and its performance is a matter which should have been regularly checked. It failed to contain polluted water two years later, not a very long period in my view. The harm caused by the escape of polluted water was foreseeable for the first incident and inevitably, given its close proximity in time, also for the second incident.

(d) the extent to which the person who committed the offence had control over the causes which gave rise to the offence, s 241(1)(d) PEO Act 37As the owner, operator and licensee of the premises, as well as the employer of all people working at the premises, the Defendant had complete control over the operation of the premises including the construction and maintenance of the western wall of the operational pit. The Defendant conceded this.

Reasons for commission of the offence 38In determining criminality it is relevant to review the reason for the commission of the offence: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366. The Defendant submitted that both incidents were accidental and the Defendant gained no advantage, financial or otherwise from their commission. The Prosecutor accepted this, as do I albeit noting that the Defendant carries out a commercial operation on the Defendant's land as part of which the incidents occurred.

Prosecutor's submissions 39The Prosecutor submitted that the need for general deterrence is one of the main purposes of punishment. The offences should be seen in the broader context of pollution control; in that context general deterrence is important. Any penalty ultimately on the Defendant must incorporate an element of general deterrence because: (a)the objects of pollution control legislation require a substantial sentence to punish the Defendant, to deter others and to encourage full compliance with the relevant Act by the Defendant and others; (b)the object of the legislation is to prevent pollution and to do this, inter alia, by the deterrence effect of a substantial fine and by, in consequence, persuading the industries concerned to adopt preventative measures; (c)offenders will not be deterred from committing environmental offences by the imposition of nominal fines; (d)a penalty for a breach must be sufficient to compel attention to the environmental issues to ensure that the Defendant, and others, are encouraged to comply with the law and that the environment is not exposed to risk of harm. 40A clear message needs to be sent to other companies engaging in similar quarrying operations that positive steps must be taken to ensure water pollution does not occur. 41The Defendant asks that consideration be given to it agreeing to a publication order being published widely in seven newspapers and the form of words to be used. This should be taken into account when the Court considers deterrence.

Specific Deterrence 42The Prosecutor submitted that specific deterrence is a matter to which the Court should give weight. The Defendant has previously been issued with a Penalty Infringement Notice for the pollution of waters from the same location as in the current case. The Defendant should have been well aware of the possibility of polluted water discharging off the premises and should have taken positive steps to prevent this occurrence. The Defendant must take sufficient precautions in future to ensure that it complies with environmental laws. 43The Defendant submitted that specific deterrence is not relevant as it has taken action to address the western wall by engaging ERM Port Macquarie engineers to advise it and to undertake work as disclosed in Mr Roche's affidavit. 44Specific deterrence is a purpose of sentencing under s 3A(b) of the CSP Act and has been considered relevant where a defendant continues in the same area of operation in which an incident has occurred. 45Specific deterrence is appropriate for corporate defendants to catalyse rehabilitation so that the company takes the required steps to prevent repetition (See BJ Preston, "Principled Sentencing for Environmental Offences", a paper presented to the 4th International IUCN Academy of Environmental Law Colloquium, 16 - 20 October 2006 at p 5.) 46For the reasons given by the Prosecutor general deterrence is relevant to sentencing in this matter. In Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 (Moolarben (No 2)) Craig J cited at [113] the following passage in Axer at 359 per Mahoney JA: The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure that pollution does not occur. Experience has shown that it is not enough merely to take care: accidents will happen. The legislation envisages that in many cases care must be supplemented by positive precautions; business must be arranged and precautions taken so as to ensure that pollution will not occur. 47Given the nature of the Defendant's business and the need for ongoing vigilance in the prevention of water pollution, some consideration for specific deterrence is warranted.

Retribution and Denunciation under the CSP Act 48Subsections 3A(a) and (e) of the CSP Act set out retribution and denunciation as part of the purposes of sentencing and as such the Court needs to take them into account. This applies equally to strict liability offences. The Prosecutor submitted that environmental values rate highly in the community and the community should be assured that any departure from those values will be properly dealt with.

Conclusion on objective factors 49I consider the Defendant's culpability is low given the circumstance that the incidents were accidental. The offences were preventable accidents, the harm was foreseeable and the environmental harm caused is at the low end of the spectrum of harm. Overall I consider the offences are objectively of low level seriousness.

Subjective factors 50There are several mitigating factors which suggest that any penalties should be reduced. An early plea of guilty is a mitigating circumstance (s 21A(3)(k), s 22 of the CSP Act). In this case the Defendant entered a plea of guilty at the second mention of the matter following amendment of the summons. I consider this was the first occasion on which the Defendant could have pleaded guilty and the full discount of 25 per cent for the utilitarian value of an early plea of guilty as stated in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152] is warranted. 51The Court is also required to take into account the assistance provided by the Defendant to law enforcement authorities (s 21A(3)(m), s 23 of the CSP Act). The Defendant assisted by: (a)substantially agreeing on the facts in issue and working with the Prosecutor to file the Agreed Statement of Facts; and (b)complying with statutory notices to provide information and records. 52I accept Mr Roche's expression of remorse on behalf of his company, a relevant matter under s 21A(3)(i).

Evenhandedness 53The principle of evenhandedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty (R v Visconti [1982] 2 NSWLR 104). This principle must always be applied subject to the particular circumstances of the case before the Court (Hoare v R). 54The Prosecutor provided summaries of the following cases. Environment Protection Authority v Moolarben concerned sediment laden water comprised of soil, mud and clay being discharged into Bora Creek, an ephemeral stream which is more often dry than wet ([49]). There were four incidents of discharge, in three the quantity was unknown, in one it was estimated to be 16,200 L ([51] - [52]). The actual harm was limited to the visual effect of the discharges and the elevated levels of suspended solids, turbidity and nutrients ([57]). The potential harm arose from the degraded quality of the water that was discharged ([57]). The environmental harm, particularly in the long term, was found to be towards the lower end of the range ([58]). The Court found that the defendant was aware of the practical measures that could have been taken to prevent or mitigate harm ([59]). The harm was found to be foreseeable ([63]). Specific deterrence was warranted [96]. The offence was considered to be in the medium or mid-range objective gravity ([70]). A fine of $105,000 was imposed. Prosecutor's costs of $53,000 and investigation costs of $8,632 were ordered to be paid by the defendant. A publication order was also made ([105]). 55Environment Protection Authority v Tea Garden Farms concerned the discharge of sediment laden waters. The offence occurred while preliminary repair work was being undertaken on a dam that had been constructed on the property. An employee of the defendant was excavating at the base of the dam wall in an endeavour to replace a blocked drainage pipe. During the course of that excavation, an 11 m section of the dam wall partially collapsed, resulting in sediment-laden water from the dam flowing approximately 186 m into North Arm Cove which forms part of the Port Stephens Great Lakes Marine Park ([2]). Environmental harm was found to be caused because the physical condition of the waters of the Marine Park was altered by reason of the flow of sediment from the property into those waters ([73]). There was potential for harm to the oysters growing in North Arm Cove ([84]). The environmental harm was found to be in the relatively low range ([85]). The Court found that the harm was foreseeable ([94]). There were practical measures which could have been taken to prevent or mitigate harm. The Court found that the defendant should have engaged a suitably qualified engineer or experienced dam builder to reduce the risk of a collapse and to avoid the escape of polluted water ([62] and [87]). The Court found the objective seriousness of the offence was low to moderate ([118]). The defendant was ordered to pay $77,000 towards two environmental projects. Prosecutor's costs of $120,000 and investigation costs of $1,464 were ordered to be paid by the defendant. A publication order was made [([154]). 56Environment Protection Authority v Sibelco concerned sediment laden waters being discharged into a gully and then Middle Brook. The discharge was estimated to be between 2.8ML and 5ML of water containing sediment. The Court found there was moderate actual harm to the environment ([62]) given the volume of sediment in the creek and the impacts. Environmental harm caused was found to be in the low to moderate range ([63]). The Court found there were practical measures which could have been taken by the defendant ([70]). Those measures have since been implemented and could have been implemented before the incident ([70]). The Court found the harm was foreseeable ([75]). The objective gravity was considered to be low to moderate ([79]). The Court made an environmental services order in the amount of $78,000 in lieu of a penalty and a publication order was made. The prosecutor's legal costs of $25,270 and investigation costs of $9,730 were ordered to be paid by the defendant ([105]). 57Environment Protection Authority v Ravensworth concerned sediment laden water (approximately 1.64ML) being discharged into Bowman's Creek, a tributary of the Hunter River. The pollutant load on the day of the offence was TSS at the discharge point 4,540 mg/pl, TSS in Bowman's Creek upstream was 23 mg/pl, TSS in Bowman's Creek downstream was 1,690 mg/pl. The Court found the actual harm was minimal ([30] and [43]), and the environmental harm was low ([33]). The Court found there were practical measures that could have been taken to prevent the harm ([34] -[35]), and that the harm was foreseeable ([37]). The defendant was found to have had a low level of culpability as the breach of the erosion and sediment control plan which led to the offence would have been adequate if it had been properly complied with by a contractor ([43]). This case was considered to be at the lower end of the low to moderate range of seriousness ([43]). The Court imposed a fine of $50,000 ([72]). The defendant was ordered to pay the prosecutor's costs of $26,500 and investigation costs of $2,000 ([73]). The Court also made a publication order. 58Environment Protection Authority v Coal and Allied Operations Pty Ltd [2013] NSWLEC 134 concerned sediment laden waters (6.8ML over five days) flowing from premises into a drainage channel which flows to Salt Pan Creek and Newport Farm Lagoon ([98]). The Court found there was no actual harm but there was short-term potential harm for two or three weeks following the incident ([103]). The environmental harm was assessed as low [103]. The Court found practical measures could have been taken to prevent the incident ([104]) and the harm was foreseeable ([105]). The defendant's remorse was considered as a subjective factor and the Court found that it showed remorse by implementing measures to improve sediment controls and having a proactive approach to the incident ([113]). The offence was found to be at the upper end of the spectrum of low objective seriousness ([108]). The Court imposed a fine of $45,000 ([131]). The defendant was ordered to pay the prosecutor's legal costs of $51,000 and a publication order was made. 59The main observation to make is that the objective circumstances in this matter are less serious than in all the matters summarised above. The level of resulting water pollution and therefore environmental harm is markedly less in this case. 60The Defendant referred to Environment Protection Authority v Pipeline Drillers Group Pty Ltd [2012] NSWLEC 18 involved two contraventions of s 120 of the PEO Act. Both offences involved the discharge of a bentonite slurry into the Partridge Creek wetland. Each discharge occurred while the defendant was undertaking horizontal directional drilling beneath the wetland ([2]). During installation of the pipeline by the defendant there were incidents resulting in the escape of bentonite slurry from the pipeline. ([26]). The direct cause of the incidents was not known. Each was unexpected ([38]). The incident occasioned actual short term harm to the environment in an area of about a quarter of one hectare within a wetland area occupying about 120 hectares. There was likely harm in that some tadpoles in Wallum Froglet may have been affected and the movement of the Froglet inhibited by the protective and clean-up measures taken ([70]). The Court concluded that the actual harm was significant, having regard to its duration and the apparent absence of long-term impact but the overall harm was at a low level ([72]). There were practical measures that could have been taken to prevent the harm ([85]). Harm to the area was reasonably foreseeable as a risk from undertaking the horizontal drilling process ([88]). The Court concluded that the offences were at the upper end of the low range of objective gravity ([96]). The Court ordered the payment of two fines, one of $12, 000 and the other of $18, 000, a publication order and orders to pay the prosecutor's legal costs of $29, 469 and investigation costs of $14, 531 ([118]). This case is possibly more comparable to this matter in terms of the level of environmental harm caused than earlier cases referred to although once again is more serious than the facts before me. None of these cases have been of great assistance in setting penalty.

Fines Act 61Under s 6 of the Fines Act 1996, in the exercise of discretion to fix the amount of any fine, the Court is required to consider such information regarding the means of a defendant as is reasonably and practicably available for the Court's consideration and such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. The Defendant has tendered information about the company's financial position which I must consider in light of s 6 of the Fines Act. The company which is essentially a small family company owned by Mr Roche and his wife has operated at a loss for the last three financial years, according to the financial records tendered as summarised above at par 5. That evidence suggests that the company has limited means to pay a substantial fine.

Totality principle 62The principle of totality applies given the similar nature of the two offences and their close proximity in time. This principle is considered in some detail in Environment Protection Authority v Hargraves (No 2) [2003] NSWLEC 15; (2003) 124 LGERA 57 by Lloyd J at [14] - [18] referring to R v Holder [1983] 3 NSWLR 245 at 260, Mill v R [1988] HCA 20; (1988) 166 CLR 59 and Pearce v R [1998] HCA 57;(1998) 194 CLR 610. At [19] Lloyd J stated: In applying the principles explained in Mill and Pearce, as I understand them, I must not fix an appropriate total penalty for all the offences and then apportion that total. The sentencing court is required to fix an appropriate penalty for each offence and then, applying the principle of totality, ask whether the aggregate penalty is just and appropriate, that is, whether the penalties properly reflect the total criminality of the defendant and then make an adjustment accordingly.

Costs 63The Defendant agrees to pay the Prosecutor's professional costs pursuant to s 215(1)(a) of the Criminal Procedure Act 1986. These have been agreed at $24,500. Pursuant to Environment Protection Authority v Barnes [2006] NSWCCA 246 the level of costs can be considered when determining penalty. 64The Defendant must pay the Prosecutor's investigation costs and expenses (being lab costs of sample analysis) pursuant to s 248 of the PEO Act. These have been agreed at $14,700.

Conclusion on penalty 65Taking account of the objective and subjective factors relevant to this sentencing exercise I consider the penalty for the first offence should be $15,000 and for the second offence $7,000.

Publication order made 66Under s 250(1) of the PEO Act the Court can consider the imposition of different orders. Such orders can be made in addition to or regardless of whether any penalty is imposed (s 244(2), (3)). The parties have agreed the terms of a publication order under s 250(1)(a) of the PEO Act. They have also agreed where publication should occur and I will make such an order.

Orders 67The Court makes the following orders: In matter no 50491 of 2013: (1)M A Roche Group Pty Ltd is convicted of the offence as charged. (2)M A Roche Group Pty Ltd is fined the sum of $15,000. In matter no 50432 of 2013: (3)M A Roche Group Pty Ltd is convicted of the offence as charged. (4)M A Roche Group Pty Ltd is fined the sum of $7,000; (5)Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, M A Roche Group Pty Ltd, within 21 days of this order, place a notice in the terms identified in annexure A in the first 5 pages of the following publications at a minimum size of 10cm x 20cm: (a)Port Macquarie Independent newspaper; (b)Port Macquarie News newspaper; (c)Port Macquarie Express newspaper; (d)The Newcastle Herald newspaper (e)The Land newspaper; (f)Manning River Times newspaper; and (g)Manning Great Lakes Extra newspaper. (6)Within 35 days of the date of these orders, M A Roche Group Pty Ltd is to provide to the Prosecutor a complete copy of the page of the publications in which the notice appears. (7)M A Roche Group Pty Ltd is to pay within 28 days of this order the Prosecutor's costs as agreed in the amount of $24,500. (8)M A Roche Group Pty Ltd is to pay the investigation costs pursuant to s248 of the PEO Act of $14,700.

Sentencing of individual defendant for obstruction of authorised officer under Protection of the Environment Operations Act 1997 (matter 50433 of 2013) 68The individual Defendant, Mark Roche, has pleaded guilty to a charge of wilfully obstructing an authorised officer in the exercise of the authorised officer's powers under Ch 7 of the of the PEO Act, contrary to s 211(3) of the PEO Act between 15 October 2012 and 8 November 2012. By pleading guilty the essential elements of the offence are admitted by the Defendant. 69The Defendant wilfully obstructed the exercise of an authorised officer's power under Ch 7 of the PEO Act by attempting to avoid the EPA interviewing Mr Johns by: (a)In an email dated 15 October 2012 falsely telling the EPA that Mr Johns had a permanent job in Western Australia and could not attend their scheduled interviews; and (b)In an electronically recorded interview on 8 November 2012 falsely telling the EPA that Mr Johns worked in Karratha. 70The SOAF refers to the facts relevant to this offence at 61, 62, 68 - 74 identifying two occasions on which the false representation was made as set out in the previous paragraph. The Defendant read part of the affidavit of Ms Oakroot, a Regional Operations Officer of Regional Hunter Unit in the EPA dated 24 January 2013. She stated that on 13 November 2012 she rang Mr Johns on a mobile telephone to request he attend an interview as the EPA believed he may have had information that would assist with the investigation. Consequently the EPA was able to interview Mr Johns three weeks after being misinformed of his whereabouts by the Defendant. The EPA does not allege any impact in its investigations as a result of being misinformed by the Defendant. 71The Defendant swore an affidavit dated 1 November 2013. The Defendant expresses his regret at his misleading conduct and states that he behaved in that manner because Mr Johns was not on good terms with the company and the Defendant feared that he may not represent the company's best interests to the EPA. 72Section 3A of the CSP Act states the purposes for which the Court may impose a sentence on the Defendant 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. 73The Prosecutor submitted that factors (a), (b), (e), (f) and (g) are most relevant in these proceedings for both offences.

Maximum penalty 74At the time of the commission of this offence, the maximum penalty prescribed by NSW Parliament for a breach of s 211(3) of the PEO Act was $250,000 for an individual (s 211(4)(b) PEO Act).

Statutory considerations - s 241(2) of the PEO Act 75The statutory scheme under which the offence is created is relevant, including its objects. Subsection 241(2) provides that the Court may take into consideration other matters that it considers relevant. An element of the offence is that a defendant acts wilfully. By pleading guilty Mr Roche accepts the essential elements of the offence, which includes wilfulness. 76The importance of the offences in the statutory scheme is a factor that goes to the seriousness of the offences; see Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168] -[172]. Section 184 of the PEO Act sets out that the purpose for which the powers in Ch 7 of the PEO Act are to be exercised: (a)for determining whether there has been compliance with or a contravention of this Act or the regulations or any environment protection licence, notice or requirement issued or made under this Act, (b)for obtaining information or records for purposes connected with the administration of this Act, (c)generally for administering this Act and protecting the environment.

Prosecutor's submissions 77The Prosecutor submitted that any failure to comply with a Ch 7 PEO Act requirement is a serious offence within the legislative scheme of the PEO Act because it prevents or hinders authorised officers from being able to carry out necessary functions to ensure that there is compliance with the Act or the Regulations or any environment protection licence and for generally protecting the environment. 78The offence created by s 211 of the PEO Act also has an important function in the overall statutory framework of "protecting, restoring and enhancing the quality of the environment in New South Wales" (see s 3(1) of the PEO Act). If an authorised officer is obstructed in the exercise of Ch 7 functions then the entire framework of the PEO Act may be undermined. 79The investigations that were being carried out by the EPA officer using Ch 7 PEO Act powers involved the potential breach of s 120 of the PEO Act due to a discharge of sediment laden water from the premises operated by M A Roche (the company) of which the Defendant is a director and manager. As a part of their investigation into the potential breach, EPA authorised officers requested the attendance of the company's employee who had been present at the time that the discharge of sediment laden water occurred. 80The Defendant obstructed an authorised officer by falsely telling an EPA officer that a potential witness in the water pollution case against the company was no longer employed by the company and was instead permanently employed in Western Australia and therefore could not be contacted by the Defendant. The Defendant knew that this was false and that the employee was in fact a permanent employee of the company at all relevant times. The Defendant gave this false information on two separate occasions throughout the Prosecutor's investigation. By concealing the whereabouts of the potential witness, the Defendant inhibited the Prosecutor's ability to carry out its statutory functions and exercise its investigation powers under Ch 7 of the PEO Act. 81The Prosecutor submitted that the length of time during which the Defendant continued to obstruct the EPA is a relevant factor under s 241(2) of the PEO Act. The time line is as follows: (a)the first time the Defendant obstruct the EPA authorised officer about the whereabouts of a potential witness was on 17 October 2012 through an email; (b)the Defendant continued to obstruct the EPA officers about the whereabouts of the same witness in an interview with EPA authorised officers on 8 November 2012. This was almost a month after the Defendant sent the original email; and (c)the first time that the Defendant admitted that he had been untruthful about the whereabouts of the potential witness was in an interview with the EPA on 22 March 2012, five months after the initial email containing the misrepresentation was sent by the Defendant. 82The EPA located the relevant witness three weeks after the EPA was misinformed by the Defendant. Therefore the EPA was able to question the witness as a part of their investigation.

Defendant's submissions 83Little or no delay was actually occasioned as a result of this offence. Mr Johns, by Notice dated 27 September 2012, was sought for an interview on 8 November 2012. On the Prosecutor's evidence in Ms Oakroot's affidavit the delay in contacting Mr Johns was less than a month. Mr Roche did not persist with the misrepresentation. The course of misrepresentation was short lived and unsustained. It involved the false statement that Mr Johns had "gone to the mines" on 17 October 2012, when in fact he had not, and a reiteration of this misrepresentation in his interview on 8 November 2012. On the totality principle Mr Roche's email of 17 October 2012 should be grouped with his misrepresentation on 8 November 2012 during his interview. The Defendant submitted that the second occasion was a repeat of the misrepresentation on the first, rather than a separate claim altogether.

Deterrence 84Section 3A(b) of the CSP Act provides that one of the purposes for which a court may impose a sentence is "to prevent crime by deterring the offender and other persons from committing similar offences". It is submitted that the sentence in this case should serve the function of both general and specific deterrence. 85The Prosecutor submitted that any penalty imposed on the Defendant must incorporate an element of general deterrence. The Prosecutor submitted that a clear message needs to be sent to the community to deter others from inhibiting EPA officers in the exercise of their investigative powers and their use of the investigative tools available under the PEO Act. A message should be sent that the EPA's investigation powers are integral in upholding the objects of the PEO Act and that inhibiting the EPA from exercising these powers will not be tolerated. Further, any penalty imposed on the Defendant should also incorporate an element of specific deterrence because the Defendant continues to operate a business which is regulated under the PEO Act and powers under Ch 7 of the PEO Act may be exercised in relation to the business in the future. Specific deterrence is necessary to ensure that the Defendant assists authorised officers in their investigations in the future. 86The Defendant submitted that specific deterrence is not a relevant factor to be addressed in this case. Having made the error of misleading the EPA on 15 October and 8 November 2012, the Defendant later corrected this situation. He admitted to the offence during his record of interview on 22 March 2013 before these charges were laid. Accordingly, there is evidence before the Court that Mr Roche had realised his error and corrected it prior to the matter coming to the attention of the Court. 87General deterrence is an important consideration for an offence which involves wilfulness as this offence does. For the reasons given by the Prosecutor about the importance of the power under Ch 7 exercised by EPA officers carrying out their duties, it is important to maintain the integrity of that system. As I consider the Defendant is unlikely to reoffend, I do not consider specific deterrence is necessary, given his plea of guilty thereby admitting the offence and his expression of contrition.

Retribution and Denunciation 88Subsections 3A(a) and (e) of the CSP Act set out retribution and denunciation as part of the purposes of sentencing and the Court needs to take them into account. By admitting the offence the Defendant has admitted that he acted wilfully. Wilful contraventions should be denounced.

Conclusion on objective factors 89There have been very few prosecutions under s 211(3) of the PEO Act. The only similar case the parties are aware of is Environment Protection Authority v Hargraves (No 2), in which Lloyd J stated at [9]: The purpose of statutory provisions such as ss 203 and 211 is to enable investigators of the Environment Protection Authority to determine whether there has been compliance with or contravention of relevant environment protection legislation. It is important that a person who is required to answer questions speak the truth and that the information which such a person supplies is not misleading. 90Lloyd J at [10] - [11] quoted from a House of Lords decision of In Ex parte Green Environmental Industries Ltd [2000] 2 AC 412 about a similar provision the Environmental Protection Act 1990 (UK) stating: Non-compliance, without reasonable excuse, amounted to an offence. Lord Hoffman went on to explain (at 420) that the powers were created - not merely for the purpose of enabling the authorities to obtain evidence against offenders but for the broad public purpose of protecting the public health and the environment. Such information is often required urgently and the policy of the statute would be frustrated if the persons who knew most about the extent of the health or environmental hazard were entitled to refuse to provide any information ... 91I agree with and embrace his Honour's statements about the importance of the statutory scheme. The offence is inherently serious given that wilfulness is an element of it. Mr Roche acted foolishly, I believe, in the circumstances outlined in the SOAF. While the action was deliberate on his part, there was no impact on the investigation carried out by the EPA. He admitted to his mistake during the investigation. 92I should note that Hargraves (No 2) was more objectively serious than this matter with a penalty of $15,000 imposed at a time when the maximum penalty was $125,000. The defendant lied to the council by creating false records relating to the amount of landfill which was deposited by the defendant's company at the landfill site, the defendant lied to an authorised officer of the prosecutor in an interview, the defendant lied to the Court in giving her evidence. On each occasion the defendant did so knowingly and with the intention of deceiving the council, its officer and the Court (at [2]). 93While this offence is inherently serious given that wilfulness is part of the offence, the circumstances suggest a lesser culpability on the Defendant's part than in Hargraves (No 2).

Subjective factors 94The Court is required to take into account mitigating factors as set out in s 21A(3) of the CSP Act where these are relevant. The Prosecutor submitted that the Defendant entered a plea of guilty at the second mention of the matter (s 21A(3)(k) and s 22 of the CSP Act) which I consider warrants a substantial reduction in sentence in recognition of the utilitarian value of the plea of guilty as referred to in R v Thomson; R v Houlton; the Defendant does not have any record of previous convictions (s 21A(3)(e)); and the Defendant assisted law enforcement officers (s 21A(3)(m)) by: (i)substantially agreeing on the settlement of an Agreed Statement of Facts; and (ii)attending all interviews with the EPA. 95The Defendant submitted that the Defendant is a person of good character (s 21A(3)(f)), and that he is unlikely to reoffend (s 21A(3)(g)). 96I accept all these matters are relevant to mitigation of the Defendant's sentence. 97I also consider that Mr Roche has limited means to pay a substantial fine, a matter I should consider under s 6 of the Fines Act. He draws a salary from his business M A Roche Pty Ltd of $900 per week. I am aware from financial records tendered that the business has operated at a loss for the last three years. Mr Roche is also liable for a large amount of legal costs and this is relevant to consider given his personal circumstances. 98The appropriate penalty in light of all these objective and subjective matters is $5,000.

Orders 99The Court makes the following orders: (1)Mark Andrew Roche is convicted of the offence as charged. (2)Mark Andrew Roche is fined the sum of $5,000. (3)Mark Andrew Roche is to pay within 28 days of this order the Prosecutor's costs as agreed in the amount of $9,800.

Annexure A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 November 2013

(1993) 113 LGERA 357

(2006) 145 LGERA 234

(2006) 148 LGERA 299

At a glance

Court

Decision date

Before

Source

Judgment (37 paragraphs)

Cases Cited (34)

Cited By (12)