Environment Protection Authority v Maules Creek Coal Pty Ltd (No 4) [2025] NSWLEC 92 | Case summary | Zoe

NSWNSWLEC

Environment Protection Authority v Maules Creek Coal Pty Ltd (No 4)

[2025] NSWLEC 92

Land and Environment Court (NSW)|2025-08-27|Before: Pritchard J

View on NSW Caselaw

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2025-08-27

Before

Pritchard J

Catchwords

SENTENCE – environmental offences – three offences contrary to
s 64 of the Protection of the Environment Operations Act
1997 (NSW) (POEO Act)
– one offence contrary to s 140 of the POEO Act – applicable

Source

Original judgment source is linked above.

Catchwords

SENTENCE – environmental offences – three offences contrary tos 64 of the Protection of the Environment Operations Act1997 (NSW) (POEO Act)– one offence contrary to s 140 of the POEO Act – applicablesentencing principles under Crimes(Sentencing and Procedure) Act 1999 (NSW)– objective seriousness of offence – strict liability –causation –insufficient evidence of actual harm to human health orenvironment – potential risk of harm to human health and environment– subjective circumstances of offender – lack of remorse –prior convictions – need for specific deterrence– totality –fine imposed – publication order – moiety – order pursuant tos 250(1)(c) of the POEOAct

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation:

Cases Cited: ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 4
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Baker v R [2023] NSWCCA 262
Bankstown City Council v Hanna [2014] NSWLEC 152
Baumer v R (1988) 166 CLR 51
Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34
Budvalt Pty Ltd v Barnes [2022] NSWCCA; (2022) 251 LGERA 28
Burwood Council v Alam [2025] NSWLEC 2
Camilleri’s Stock Feeds v EPA (1993) 32 NSWLR 683
Chief Executive, Office of Environment and Heritage v Anthony Guy Murphy [2019] NSWLEC 120
Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51
Chief Executive, Office of Environment and Heritage v Douglas Brian Reitano (No 2) [2019] NSWLEC 39
Chief Executive, Office of Environment and Heritage v Kurstjens Onroerend Goed AU B.V.; Kurstjens; Beefwood 1 Pty Ltd; Beefwood 2 Pty Ltd [2024] NSWLEC 140
Connell v Santos NSW Pty Limited [2014] NSWLEC 1
Director-General of the Department of Environment and Climate Change v Rae (2009) 68 LGERA 121; [2009] NSWLEC 137
Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137
Dyno Nobel Asian Pacific Pty Ltd v Environment Protection Authority (2017) 228 LGERA 55; [2017] NSWCCA 302
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
Environment Protection Authority v Abbas [2021] NSWLEC 57
Environment Protection Authority v Ashmore [2014] NSWLEC 136
Environment Protection Authority v Baida Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280
Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; [2006] NSWLEC 289
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45
Environment Protection Authority v Belessis [2000] NSWLEC 251
Environment Protection Authority v Dial-A-Dump (EC) Pty Ltd (2024) 261 LGERA 103; [2024] NSWLEC 21
Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90
Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 70
Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75
Environment Protection Authority v Geoff Robinson Pty Ltd; Environment Protection Authority v Robinson [2011] NSWLEC 14
Environment Protection Authority v Ghossayn [2009] NSWLEC 181
Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127
Environment Protection Authority v Koppers Carbon Materials & Chemicals Pty Ltd (the Spill Incident) [2021] NSWLEC 12
Environment Protection Authority v Maules Creek Coal Pty Ltd [2022] NSWLEC 33
Environment Protection Authority v McMullen [2020] NSWLEC 87
Environment Protection Authority v Metropolitan Collieries Pty Ltd [2025] NSWLEC 23
Environment Protection Authority v O’Brien [2025] NSWLEC 14
Environment Protection Authority v Orica Australia Pty Ltd (2014) 206 LGERA 239; [2014] NSWLEC 103
Environment Protection Authority v P&M Quality Smallgoods Pty Ltd; Environment Protection Authority v JBS Australia Pty Limited [2017] NSWLEC 89
Environment Protection Authority v Pullinger (No 3) [2025] NSWLEC 59
Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd (2010) 174 LGERA 314; [2010] NSWLEC 114
Environment Protection Authority v Sydney Water Corporation [2024] NSWLEC 130
Environment Protection Authority v Sydney Water (No 2) [2023] NSWLEC 2
Environment Protection Authority v Timber Industries Ltd [2000] NSWLEC 39
Environment Protection Authority v Transpacific Industries Pty Limited; Environment Protection Authority v Transpacific Refiners Pty Limited [2010] NSWLEC 85
Environment Protection Authority v Waste Recycling and Processing Company (2006) 148 LGERA 299; [2006] NSWLEC 419
Environment Protection Authority v Waste Recycling and Processing Company (2006) 148 LGERA 299; [2006] NSWLEC 419
Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Metziya Pty Ltd [2003] NSWLEC 196
Fairfield City Council v Oztech Developments Pty Ltd; Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242
Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6
Hunter v R [2011] NSWCCA 141
Imbornone v The Queen [2017] NSWCCA 144
Josevski v The Queen [2010] NSWCCA 41; (2010) 217 A Crim R 183
Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3
Lismore City Council v Ihalainen (No 2) [2014] NSWLEC 198
Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McGonigle v R [2020] NSWCCA 84
Mill v The Queen (1988) 166 CLR 59
Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27
O’Neill-Shaw v R [2010] NSWCCA 42
Pearce v The Queen (1994) 194 CLR 610
Plath v Rawson (2009) 170 LGERA 253
R v Allpass (1993) 72 A Crim R 561
R v Dodd (1991) 57 A Crim R 349
R v H (1980) 3 A Crim R 53
R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267
R v Holder [1983] 3 NSWLR 245
R v JRD [2007] NSWCCA 55
R v McGourty [2002] NSWCCA 335
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Murray (unreported, NSW Court of Criminal Appeal, 22 October 1997)
R v Nicols (1991) 57 A Crim R 391
R v Peel (1971) 1 NSWLR 247
R v Porte [2015] NSWCCA 174
R v Scott [2005] NSWCCA 152
R v Sgroi (1989) 40 A Crim R 197
R v To (2007) 172 A Crim R 121
R v Wheeler [2000] NSWCCA 34
R v Wickham [2004] NSWCCA 193
Royall v The Queen (1991) 172 CLR 378
Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Transport for New South Wales v Estuary Constructions Pty Ltd; Transport for New South Wales v Sampson [2022] NSWLEC 23
Veen v R (1979) 143 CLR 458
Veen v R (No 2) (1988) 164 CLR 465
WaterNSW v Peter James Harris and Jane Maree Harris [2023] NSWLEC 33
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Whelan v R [2012] NSWCCA 147
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Environment Protection Authority v Forestry Corporation of New South Wales [2024] NSWLEC 78
Hijazi v Georges River Council [2020] NSWLEC 36

The defendant read the following affidavits and tendered the following reports:
affidavit of Dr Paul Fagan, otolaryngologist, dated 7 March 2025, and his expert report exhibited thereto (the Fagan report), addressing the harm to human health alleged by the prosecutor to have been sustained by Jonathon Byrnes as a result of the blast, and responsive to the Harrison report;
Mr Ian Humphris, chief operating officer of Whitehaven Coal, dated 10 March 2025; and
report for Mr Jonathon Byrnes dated 17 October 2023 prepared by Sharon King Hearing Centres in the nature of an audiogram (the Sharon King Hearing Centres report), which recorded that Mr Byrnes was 600 metres away from the blast, and that “Mr Byrnes advised that he does not experience any otalgia, fullness of the ears, and does not experience any dizziness; however, does experience unilateral left sided tinnitus that is periodic and bothersome”.
At the sentencing hearing, Mr Howard SC for the defendant also drew the Court’s attention to the records of interview with Emma Bulkeley, environmental superintendent, Whitehaven Coal dated 14 April 2021, and Ms Williams, dated 4 April 2021 as set out at [14(3)] above.
In her record of interview, Ms Bulkeley was asked "What reports did you receive about any impacts on the environment?”, and answered “So, I was informed that some flyrock had been thrown into the vegetative corridor". Ms Bulkeley was asked "what damage in that corridor did that flyrock cause?", and answered "Minimal damage". The investigator asked "what do you mean by minimal?", and Ms Bulkeley answered "It went in maybe 10 metres", "It didn't affect the vegetative corridor in a way for it to be - not to be able to be used as a vegetative corridor", and "It may have knocked a few sticks off dead trees, but it did not bowl over trees or anything like that". Ms Bulkeley said that "When I went out there…there was flyrock in the corridor and minimal to no damage. There were some sticks and stuff that may have been". When asked about the type of vegetation located in the biodiversity corridor, she answered, "Probably most of it's ironbark, from memory". Ms Bulkeley said "There was no material environmental harm caused to the vegetative or the vegetated corridor. It was still able to work as a vegetated corridor". She also said that the flyrock extended “Maybe 10 meters” into the biodiversity corridor.
Ms Bulkeley also said that “they would have needed to” take both the location of the biodiversity corridor and the fact that it was relatively close to the corridor into consideration as “part of the drill and blast design”. She said that she understood there was a 10 metre standoff distance from the blast area to the edge of the corridor. In relation to cracking within the biodiversity corridor alleged to have been caused by the blast, Ms Bulkeley said “There was some cracking within the bio-corridor, but I can’t, that can’t be determined whether that came from the blast or whether it was from the drought or from previous blasts there”. Ms Bulkeley said that the cracking was “minimal”, and in answer to the question “How big … how long [was the cracking]” said that she could not recall.
Ms Bulkeley agreed that the blast originally scheduled to be carried out on 19 August 2020 at 3:30pm was rescheduled to 20 August 2020 (see the liability judgment at [76]). She said that she had a conversation, “potentially” with Mick Clark, the drill and blast superintendent, to the effect that “it was unsafe to leave the blast tied up and it couldn’t be untied … and required firing” as the shot had been tied for 24 hours, and that she “was just told it was a manual tie up that could not be untied”.
Mr Howard also drew the Court’s attention to the following extract from the record of interview with Dr Cameron McKenzie, the blasting consultant engaged by the defendant, dated 24 May 2021 in relation to the biodiversity corridor:

In relation to harm to human health, the prosecutor relied on the following evidence of harm alleged to have been caused to Rebecca Severin and Jonathan Byrnes, employees of the adjacent Boggabri coal mine, as a result of the blast:
Ms Severin, who was working at the Boggabri coal mine at the time of the blast, experienced a pain in her ear, including constant ringing and an ache. She attended Boggabri Hospital for an ear check and returned to work that afternoon. Ms Severin had not reported any further health issues following the blast. [1]
Mr Byrnes, who was working at the Boggabri coal mine at the time of the blast, considered that he had suffered damage to his ears in the form of hearing loss and tinnitus. [2] Subsequent to the blast, Mr Brynes experienced ringing in his left and right ears, resulting in a diagnosis of tinnitus. The ringing impacted his ability to concentrate, focus and sleep. Mr Byrnes' ongoing symptoms affected his quality of life and employment.
The prosecutor also relied on the evidence of various community witnesses at neighbouring properties as to the noise and vibration resulting from the blast, including that of Roselyn Druce, Christine Westlake, Ross Kereopa and Lynette Louis, as well as the Court’s finding in the liability judgment that the noise and vibration caused by the blast were out of the ordinary. [3]
In relation to injuries said by the prosecutor to have been sustained by Mr Byrnes, the prosecutor relied on the Harrison report prepared for the purpose of pending common law proceedings taken by Mr Byrnes against the defendant in which Dr Harrison addressed0 the harm to human health sustained by Mr Byrnes as a result of the blast. In his report, Dr Harrison opined that:
Mr Byrnes was suffering from bilateral sensorineural deafness and tinnitus due to acoustic trauma arising from the blast;
Dr Harrison’s audiologist, Ms Jane Collingwood, performed an audiogram on Mr Byrnes on 9 May 2024;
the audiogram dated 9 May 2024 showed bilateral sensorineural deafness, “a little worse on the right side and mainly affecting the high frequencies”;
Mr Byrnes was likely to be suffering from intermittent earache and ear fullness due to temporomandibular dysfunction aggravated by the effects of the blast;
the blast was the cause of Mr Brynes' symptoms; and
Mr Byrnes' tinnitus was likely permanent and his ongoing symptoms would adversely affect his quality of life and employment due to the effects on his concentration and sleep associated with consequent fatigue.
During cross-examination, Dr Harrison accepted that he had not prepared his report for the purpose of these proceedings, rather it was a “workers’ compensation report”. Dr Harrison also gave the following evidence in relation to what Mr Byrnes told him about his experience of tinnitus:

In relation to Dr Fagan’s report, the defendant noted the following:
that Dr Fagan is an eminent medical practitioner in his field, having graduated from the University of Sydney some 62 years ago, published over 200 peer reviewed publications, and lectured and operated in multiple countries;
Dr Fagan’s opinion that the hearing loss demonstrated by an audiogram would be “maximal” immediately following the “sound or blast”, with any hearing loss improving from that point onward;
that the opinions expressed by Dr Fagan were based on the lack of change in Mr Byrnes’ audiograms, dated July 2018, August 2020, October 2023 and May 2024, which were conducted pre and post the blast. There was no change in “the threshold for all frequencies of Mr Byrnes’ hearing in his left ear over the four audiograms between July 2018 and May 2024”;
that Mr Byrnes’ medical records did not exhibit any disfunction of the external or middle ear;
that Mr Byrnes had moderate right high tone deafness and that his hearing was impacted prior to the blast. His hearing may have been impacted by gun exposure as a teenager and/or by exposure to chemicals;
that Dr Fagan referred to the Brainstem Evoked Response Audiology (BERA) test as an objective test to determine whether Mr Byrnes had suffered hearing loss, and he could see no evidence that any such test had been conducted;
Dr Fagan’s opinion that tinnitus is a symptom, not a diagnosis, tinnitus nearly always being associated with hearing loss, most commonly noise induced hearing loss, due to prolonged exposure to intense noise; and that a diagnosis of tinnitus relies entirely on the word of the patient and no diagnosis of the cause of tinnitus can be made by a trained specialist in living patients;
Dr Fagan’s opinion that it would be highly unlikely “that any permanent damage or tinnitus could have been caused to anyone at Boggabri coal mine including Mr Byrnes who was 2900m away” from the blast;
Dr Fagan’s acceptance that the blast could have caused transient discomfort;
Dr Fagan’s opinion that Mr Byrnes’ hearing may have been impacted by exposure to gunshots as a teenager; and
Dr Fagan’s opinion that given that the approximately 420 to 450 workers closer to the blast did not exhibit damage or hearing loss as a result of the blast, anyone located at the Boggabri coal mine, including Mr Byrnes who was 2,900 meters away from the blast, would not have suffered aural damage as a result of the blast. It would be “extremely rare to see physical damage to the ear at a distance of 2,900m away from the source of the sound”.
In examination-in-chief, Dr Fagan made a correction to his report, striking out the words “nor at the Boggabri monitor nor Tarrawonga monitor” as follows: “Given that the Australian Standard for airblast pressure was not exceeded at the Mine’s monitoring locations nor at the Boggabri monitor nor Tarrawonga monitor, it is, in my opinion, extremely unlikely that the blast caused pain and discomfort to Mr Byrnes, other than that of a transient nature”. Dr Fagan was referring to Australian Standard AS 2187.2-2006 “Explosives – Storage and use Part 2: Use of explosives” (the Australian Standard) which applied to blasting at the mine at all relevant times pursuant to cl 2.4 of the BLMP.
During cross-examination, Dr Fagan said that he revised his report to strike out the words nor “at the Boggabri monitor nor Tarrawong monitor” as he became aware after further reading that the “Australian standard … regulations” required that “the Maules Creek monitors be satisfied, and … I thought that … satisfied the regulations, so that I wanted to take out reference to the other two, regardless of what they said”.
Dr Fagan’s evidence during cross-examination included the following:
he did not hold qualifications in relation to coal mining or open cut coal mine blasting, and his area of expertise did not include wave propagation kinetics of blast overpressure waves in open cut coal mine blasting;
he did not accept that “two people standing next to each other may experience the impact of a blast differently due to factors such as prior exposure to loud noise or genetics”;
he accepted that the angle of a person's head in terms of its orientation to a blast can change how much of the blast reaches the ear canal of the person, and that “it’s possible” that Ms Severin appeared to describe what might be called the head angle effect following the second blast. As set out in the liability judgment at [176], Ms Severin deposed that on 20 August 2020 she was working at the Boggabri coal mine, and was sitting outside the crib hut when she heard the first explosion: “A second later I heard a second blast”; “[t]he pain was immediate, and I instantly grabbed my ear”;
he accepted that the human ear has a protective reflex called the acoustic reflex which tightens muscles in the middle of the ear to reduce damage. He knew “of no scientific evidence” that if someone is caught by surprise, their acoustic reflex may not engage in time. He agreed that the acoustic reflex phenomena is widely accepted in the “industry”;
in relation to the statement in his report that "[i]n Mr Byrnes case, if a lesion existed of which there's no evidence, it would be confined to the hair cells of the inner ear", and the suggestion that this statement was inconsistent with the Mizutari article which did not concern the confinement of a lesion to the hair cells of the inner ear, but damage to the whole auditory system, Dr Fagan responded:

In relation to good character, the defendant sought to rely on the affidavit of Mr Ian Humphris, chief operating officer of Whitehaven Coal, in support of a finding that the defendant is an entity otherwise of good character and unlikely to re-offend, being mitigating factors to be taken into account in determining the appropriate sentence for an offence for the purpose of s 21A(3)(f)-(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act).
In his affidavit of 10 March 2025, Mr Humphris deposed that he had been employed by Whitehaven Coal as chief operating officer since June 2024. Between April 2020 and May 2024, he was employed as executive general manager of Whitehaven Coal. In examination-in-chief, he confirmed that he was also a director of the defendant. Mr Humphris said that as the ultimate holding company of the defendant, Whitehaven Coal undertakes “community engagement, sponsorship and donations for and on behalf of itself and each of its subsidiaries”, including the defendant. He said that the defendant undertakes donations and initiatives of its own, and deposed to the following actions undertaken by Whitehaven Coal and the defendant since the blast:
Investment in environmental and animal diversity. In June 2024, Whitehaven Coal provided $2 million towards the Gunnedah Koala Sanctuary; in June 2023, it hosted members of the NSW Biodiversity Conservation Trust for a tour of the areas under Conservation Agreements for offsets connected to Whitehaven Coal's mine sites; and in 2023 it rehabilitated 281 hectares of land in the 2024 financial year, an increase from 107 hectares.
E****nvironmental management systems that align with the principles of ISO 14001 (Environment Management Systems). Whitehaven Coal’s approach to environmental management was “focused on mitigating unavoidable impacts”, and it consults with various stakeholders including governments, businesses and communities. Whitehaven Coal has set a “Scope 1” greenhouse gas emissions intensity reduction target aligned with its obligations under the “reformed Safeguard Mechanism scheme”. In the financial year ending in 2024, 35% of water used in Whitehaven Coal’s operations was recycled water.
R****egional investment “to the North-West New South Wales economy**”**. In the financial year ending in 2024, Whitehaven Coal spent $462 million with regional suppliers, an increase from $356 million the year before; 75% of its workforce was based in local communities and in areas surrounding its operations; and it was the largest private employer in north-west NSW.
Women in mining. In the financial year ending 2022, Whitehaven Coal committed to having women represent 20% of its employees and 20% of its leadership roles by the end of the 2026 financial year. In the 2024 financial year, female representation across its operations was “up to 22.7%, while women represented 19.7% of leadership roles overall”. In March 2023, two Whitehaven Coal employees were nominated for NSW Women in Mining Awards.
Health. In 2023, Whitehaven Coal donated $25,000 to Little Wings; in 2025, it donated $10,000 to Narrabri Hospital and in 2021 and 2022, $5,000; and in 2024, it donated $25,000 to Royal Far West. In March 2023, the defendant donated $33,433 to Boggabri Hospital.
Education. The defendant donated $30,000 to Boggabri Public School for the purchase of 90 new laptops; committed $100,000 over five years for staff training at Nurruby Boggabri Early Learning Facility; conducted school tours of the Maules Creek coal mine; donated annual scholarship funding of $10,000 to the Country Education Foundation and Gunnedah Shire Council Community Education Fund. In 2024, Whitehaven Coal donated $10,000 to Dymocks Children's Charity, and $5,000 in 2025.
Sporting clubs. In November 2022, the defendant donated $32,990 to Boggabri Golf Club for the purchase of a larger fairway mower, and is a major sponsor of the Australian Bushmen's Campdraft and Rodeo Association National Finals, donating $15,000 in 2023, and $25,000 in 2024.
Aboriginal and Torres Strait Islander initiatives. 10.5% of Whitehaven Coal's workforce identify as Aboriginal and/or Torres Strait Islander. In the 2024 financial year, Whitehaven Coal spent $17 million with 14 Aboriginal and Torres Strait Islander suppliers, and donated $250,000 to Aboriginal and Torres Strait Islander organisations, including the Clontarf Foundation which supports young Aboriginal men across Australia. Whitehaven Coal also supports the Clontarf Foundation on regional employment forums and hosts site visits for Clontarf students. For 10 years, Whitehaven Coal has sponsored the Gomeroi Roos, a Rugby league team.
General support**.** Whitehaven Coal supports community activities and causes, including arts and culture, the Westpac rescue helicopter, flood support, Police Citizens Youth Clubs NSW, the Salvation Army and COVID-19 initiatives and support.
During cross-examination, Mr Humphris gave the following evidence in relation to the governance and management of Whitehaven Coal and the defendant:
He reports to Mr Paul Flynn, the managing director and chief executive officer of Whitehaven Coal. Mr Humphris was aware that, as at the hearing on sentence, Mr Flynn was in Australia and “seemed to be in good health” when Mr Flynn spoke to him on Monday, 7 April 2025, the day before Mr Humphris gave evidence at the hearing on sentence.
Mr Kevin Ball is the chief financial officer of Whitehaven Coal, and reports to Mr Flynn. Mr Humphris agreed that generally speaking, Mr Ball's area of expertise is in the financial area, and Mr Humphris’ area of expertise is in the operating area. Mr Humphris confirmed that Mr Ball was (as at the hearing on sentence) currently in Australia and “appeared to be in reasonable health”, but he could not comment on Mr Ball’s availability to have attended court. Mr Humphris gave evidence that Mr Ball as chief financial officer would be able to find out whether particular donations made by Whitehaven Coal and the defendant were likely claimed as tax deductions. He also said that Mr Ball could provide information concerning how much, if any, of the $100,000 “committed over five years for staff training” at Nurruby Boggabri Early Learning Facility had been paid.
Whitehaven Coal has a Health, Safety, Environment and Community Committee, and whilst Mr Humphris attends the meetings of the Committee, he was unsure whether he was a member of the Committee.
Ms Nicole Brooke is a chair of Whitehaven Coal’s Health, Safety, Environment and Community Committee, and on the board of Whitehaven Coal as a director. Mr Humphris was unable to comment on whether Ms Brooke was in Australia, able to attend court or to give evidence at the hearing on sentence.
Under cross-examination, Mr Humphris gave the following evidence in relation to changes the defendant had made following the blast to reduce the likelihood of reoffending in relation to future blasts:
He was “not able to specifically point to” any changes that had been made to reduce the likelihood of reoffending in relation to future blasts.
In relation to whether the defendant had taken any actions to reduce the likelihood of reoffending similar to the action to which Mr Humphris referred the Court in Environment Protection Authority v Maules Creek Coal Pty Ltd [4] at [212(b)] (in relation to improvements to the Northern Overburden Emplacement Area the subject of those proceedings), Mr Humphris answered: “The actions that have just been read out were in relation to water management, so the answer to your question is no.”
There had been no changes in the governance of the defendant insofar as its organisational structure was concerned. There may have been some minor changes in relation to roles on an operational level.
If issues of inadequate fragmentation were to arise again in the future, the defendant proposed to deal with such issues “based on the circumstances”:

At the hearing on 8 April 2025, Mr Leggat contended that the defendant was seeking “to take a point that the explosion, the blast, and the waves that were generated by the blast were in someway not legally connected” to any of the four offences of which the defendant had been convicted. The first problem with that approach was in relation to authorities concerning causation, including Royall v The Queen [39] and Whelan v R [40] . The second problem was with findings of fact in the liability judgment.
Here, Mr Leggat submitted, the approach taken by the defendant was not a commonsense approach in accordance with Royall v The Queen and Whelan v R. In relation to the timing charge, the defendant sought to suggest that “notwithstanding the incompetent choice in timing, that somehow that ha[d] not caused the blast”. And in relation to the stemming length and overloading charges, that “notwithstanding the incompetence in relation to … the stemming length, that was not sufficiently substantial cause or connection to the blast and similarly that overloading has not a sufficiently substantial cause or connection to the blast”. Further, on the defendant’s approach, the emission of noise charge was not sufficiently substantial when viewed from a commonsense perspective to be said to cause harm.
In relation to the defendant’s submission that the prosecutor was asking the Court to consider the wrong question, and that the question was not whether environmental harm was caused by the blast or resulted from the blast, rather whether environmental harm was caused by the commission of the offences, while the prosecutor accepted that the firing of the blast did not constitute any of the offences charged, Mr Leggat submitted that it “flies in the face of common sense to suggest that there's not a relationship of the type identified in Royall to the offences”. In particular:
In relation to the timing charge and the submission that "in the case of the timing offence … the relevant question is not what harm, if any, resulted from the blast, but what harm, if any, resulted from the initiation timing used in the blast”, that was “artificial and an approach which lacks common sense in understanding the relationship between the fast timing incompetence and the harm arising from using incompetent timing”.
In relation to the stemming length charge and the submission that the relevant question concerning actual environmental harm was what harm, if any, was caused by reason of the adoption of the 3 metre stemming length, that as the Court found in the liability judgment that the adoption of the 3 metre stemming length was incompetent, the “common sense relationship between that incompetence and the blast, and the environmental harm arising from the blast …border[ed] on self evident”.
In relation to the overloading charge and the submission that “the relevant question was what harm, if any, was caused by reason of the overloading that otherwise would not have been caused by the firing of the blast”, the Court should find “the common sense relationship between that incompetence in overloading and the consequences of the firing of a blast, which included that incompetent overloading component”.
The prosecutor further referred to the following findings of fact in the liability judgment which were submitted to create “significant problems for the defendant” in relation to causation:
at [391(8)] that the use of fast timing “resulted in … high levels of noise and airblast overpressure”;
at [392] “as opined by Dr Cameron, that a large increase in noise/airblast overpressure was likely to occur and foreseeable due to the very large increase in [Maximum Instantaneous Charge] and the reduction in stemming length”;
at [393] that “the [Maximum Instantaneous Charge] was not limited to conservative and proven levels” and “the fast timing and two points of initiation were the cause of the high [Maximum Instantaneous Charge] and contributed to the charge weight”;
at [394] “that the design of the blast [was] not separate from and to be distinguished from the carrying out of the blast, and [was] a licensed activity”;
at [411] that Dr Cameron gave evidence that “the reduced stemming length coupled with the fast timing used by the defendant ‘resulted in the premature release of a large amount of explosive energy, in the form of high-pressure gases, into the atmosphere as well as fast movement of the surface of the blast causing a large airblast to radiate out from the blast area and a large waste of explosive energy’”;
at [431] that Dr Aimone-Martin gave evidence under cross-examination that the potential danger arising from overloading a hole can be a danger to the environment;
at [446] that “as opined by Dr Cameron, an overloaded hole creates a safety issue in terms of flyrock and “air blasting” and, as opined by Dr Cameron, and accepted by Dr Aimone-Martin, a potential danger to the environment”;
at [467] that “as with the defendant’s submission in relation to the blast design being separate from the licensed activity … it is likewise contrived and unrealistic to suggest that “to deal with” materials is separate from and excludes the blast design process”;
at [469] that it could only be the firing of the blast that could be said to have created (or caused) the emission of noise, and that the complaint the subject of the emission of noise charge was a complaint about the design of the blast;
at [470] that “the emission of noise was caused by the defendant’s dealing with the explosives in stemming the blast holes with the explosives and in detonating the explosives.” (emphasis added);
at [472] that Dr Cameron gave evidence that “[w]hen combined with the fast timing, there was a premature release in explosive energy into the atmosphere causing a large airblast to radiate outwards” and “also gave rise to a large waste of explosive energy”. That was why, Dr Cameron opined, the emission of noise was caused by the defendant’s failure to deal with the materials in a proper and efficient manner; and
at [484] that “the dealing with the materials caused the emission of noise from the premises” and that “noise so emitted was registered or heard at the EPL monitoring points, as well as at the Coomalagah monitor, the Tarrawonga monitor, the Boggabri trigger unit, Wilberoi East, Goonbri East, by Mr Byrnes and Ms Severin at the Boggabri coal mine, and by Mr Kereopa, Ms Louis, Ms Druce and Ms Westlake at their respective private residences”.

In relation to harm to human health, the prosecutor relied on the evidence of Ms Severin and Mr Byrnes.
At the hearing on 8 April 2025, Mr Leggat submitted that the defendant through Dr Fagan appeared to challenge the finding in the liability judgment at [291] that “the blast had considerable impact on lay witnesses, in particular Mr Byrnes and Ms Severin, each of whom presented to Boggabri Hospital after the blast” and that “[e]ach presented as a credible witness, notwithstanding the defendant’s attempts to undermine their credibility, in particular because of a workers’ compensation claim or personal injury claim in the case of Mr Byrnes.”
Mr Leggat submitted that Dr Fagan accepted that his expertise did not extend to attenuation of sound arising from a blast at an open-cut coal mine, and that the Court should limit the use of his evidence to his area of expertise, being the function of the ear. Further, Dr Fagan maintained his opinion that in Mr Byrnes’ case, if a lesion existed it would be confined to the hair cells of the inner ear notwithstanding that this was contrary to the articles by Jalilvand and Mizutari, the latter of which, the prosecutor submitted, stood for the proposition that the “whole auditory system” was “most commonly damaged” following blast exposure (as set out at [30(5)] above). Accordingly, the Court should consider the weight of Dr Fagan's evidence “concerning the confinement to the hair cells in light of that”.
The prosecutor also challenged Dr Fagan's opinion that a diagnosis of the cause of tinnitus could only be made on a cadaver. In the witness box, Dr Fagan clarified that the cause of tinnitus “could only be made on a cadaver absent other evidence”. The Court was entitled to form the view that if Dr Fagan's report sets out “his first and best view”, the qualification provided by him in oral evidence was not something to which the Court would give great weight. Dr Fagan did not take the opportunity during his evidence in chief to clarify that the diagnosis of the cause of tinnitus can be made by a trained specialist in living patients, as that qualification came after cross-examination. Mr Leggat submitted that that chronology was capable of being interpreted adversely to the credit of Dr Fagan, and that it would be open to the court to form the view that the change was consequent upon a realisation of the ramifications of that evidence. Mr Leggat also referred to the concession made by Dr Fagan that if Mr Byrnes and Ms Severin were located at the point shown in Figure 2 in the Lewandowski report, they may well have experienced aural pain.
Further, Mr Leggat referred to the difference of approach between the Mizutari article concerning the concept of hidden hearing loss upon which Dr Fagan relied in his report, and Dr Fagan’s oral evidence in which he expressed reservations in relation to Mizutari’s suggestion that hearing dysfunction can be present because of hidden hearing loss without showing up on an audiogram.
Finally, the prosecutor relied on Dr Harrison’s evidence that hearing loss could worsen following a “sound or blast”, after reviewing the Jalilvand article cited by Dr Fagan.

The defendant submitted that there was a fundamental flaw in the way in which the prosecutor had approached the issue of actual environmental harm, repeatedly putting the proposition that the environmental harm it alleged to have occurred was occasioned “as a result of the Blast” or “resulting from the Blast” or was “caused by the Blast”. This invited the Court to consider the wrong question. The question was not whether environmental harm was caused by or resulted from the blast. Rather, the question was whether environmental harm was caused by the commission of the offences. The firing of the blast did not constitute any of the offences charged, nor any offence at all. Rather, the offences, as found, were that the defendant carried out the blast otherwise than in a competent manner in specific respects (the three s 64 offences), and that the defendant dealt with materials (the explosives used in the blast) in such a manner as to cause the emission of noise from the mine, and the noise so caused or any part of it was caused by its failure to deal with those materials in a proper and efficient manner (the s 140 offence).
With respect to the three offences against s 64(1), the mandatory consideration in s 241(1)(a) (the extent of the harm caused or likely to be caused to the environment by the commission of the offence) was submitted to require consideration of each particular offence, and consideration of the particular incompetence in the manner of carrying out the blast that was held to constitute that offence. In the case of the timing offence, the relevant question was not what harm, if any, resulted from the blast, but what harm, if any, resulted from the initiation timing used in the blast. This required consideration of what harm was caused by the fast timing of the blast that otherwise would not have been caused by the firing of the blast. Likewise, in the case of the stemming length offence, the relevant question concerning actual environmental harm was what harm, if any, was caused by the adoption of the 3 meter stemming length that otherwise would not have been caused by the firing of the blast. And in the case of the overloading offence, the relevant question was what harm, if any, was caused by the overloading that otherwise would not have been caused by the firing of the blast. Additionally, the Court should consider what harm, if any, was caused to the environment by reason of the accumulation of the timing, stemming length and overloading offences that would not otherwise have been caused by the firing of the blast.
The same approach, the defendant submitted, needed to be taken in relation to the s 140 charge, including by considering the accumulation of the offences; that is, by considering what harm, if any, was caused to the environment by reason of the accumulation of the three ways in which the blast was carried out incompetently, and the additional conduct comprising the s 140 offence that would not otherwise have been caused by the firing of the blast.
The defendant submitted that there was no evidentiary foundation capable of supporting proof beyond reasonable doubt that the commission of the offences, singly or cumulatively, caused either of the two types of actual harm to the environment alleged by the prosecutor which would not have been caused anyway by the firing of the blast.
In relation to the alleged cracking of ground in the biodiversity corridor, the defendant submitted that to the extent there was any evidence of the cracking of ground in that area, there was no evidence capable of proving that it would not have occurred had the blast been fired with a 3.5 metre stemming length, using standard initiation timing, and by way of holes loaded with precisely the amount of explosives nominated in the design. The prosecutor could not establish that any of the three offences of carrying out the blast otherwise than in a competent manner, or the accumulation of them, caused any such cracking. The position in relation to the emission of noise offence was submitted to be even plainer, there being no evidence that any noise emitted by the blast caused cracking in the biodiversity corridor.
The same flaw was submitted to be evident in the manner in which the prosecutor had approached the question of whether the commission of the offences caused actual harm in the form of injury to Mr Byrnes. The prosecutor was inviting the Court to take into account whether the firing of the blast caused injury to Mr Byrnes, when the question had to be whether the commission of the offences caused injury to him.

In relation to the prosecutor’s contention that “as a result of the Blast”, flyrock entered the biodiversity corridor and damaged vegetation, including snapping branches from trees, the defendant submitted that the evidence on which the prosecutor sought to rely, namely a number of records of interview, was of no probative value. There was no evidence tethering the asserted damage to the biodiversity corridor to any finding of incompetence in the manner of carrying out the blast.
In so far as alleged damage to vegetation was concerned, being the snapping of branches said to have been caused by flyrock, there was no offence, and thus no finding of incompetence, relating to flyrock which emanated from the firing of the blast. Rather, the prosecutor was attempting to link uncharged conduct to findings of incompetence in relation to airblast and overpressure and stemming height in circumstances where it had not advanced such a case at trial. The evidence of the prosecutor was incapable of demonstrating that any flyrock which entered the biodiversity corridor did so as a consequence of the commission of any or all of the offences. The question of whether flyrock would have entered the biodiversity corridor in any event had not been considered, and could not be excluded. In so far as the alleged cracking of the ground was concerned, there was no evidence addressing the possible cause or causes of any such cracking in the biodiversity corridor.
The judgment of McHugh J at [440] in Royall v The Queen set out at [74] above was submitted to be of assistance to the Court in considering the issue of causation posed by s 241(1)(a) of the POEO Act.
Again, the defendant submitted that the question posed by s 241(1)(a) concerns the harm caused to the environment by the commission of the offences, not by the blast. The prosecutor had not grappled with the distinction between the alleged harm caused or likely to have been caused by the blast and the harm or likely harm alleged to have been caused as a consequence of the commission of the offences. The prosecutor sought to overcome this flaw by a “general invocation of the common sense approach”. The Court was “no doubt entitled” to take a common sense view in relation to “some aspects” such as the initiation timing. In the liability judgment the Court at [391(8)] found that the initiation timing of the blast made the sound wave bigger. The defendant was not seeking to say that the Court could not look at the results of the blast, rather that it must identify the harm caused or likely to have been caused by the incompetent manner in which the blast was found in the liability judgment to have been carried out. Further the blast was “not only entitled to be fired”, but it had to be fired as a matter of safety. Ms Bulkeley said in her record of interview that she was told that “it was unsafe to leave the blast tied up and it couldn’t be untied … and required firing”. Mr Howard submitted that the requirement for the blast to be fired went to the issue of causation, and that even if “the parameters, in terms of timing, had been the standard parameters and for stemming”, the blast would still have been fired.
In relation to the alleged damage to the biodiversity corridor, damage to vegetation “comprising the snapping of branches” was “as high as it goes”. In relation to the allegation of the blast causing a crack in the ground in the biodiversity corridor, again the defendant submitted there was no evidence which established that the crack that was seen in the vegetative corridor was caused by the blast. Given the proximity of the blast area to the crack, even if the Court were to find that the crack was caused or likely to have been caused by the blast, it would be left with a conclusion that the crack may equally have been caused by the blast regardless of the manner in which the Court found it was carried out otherwise than in a competent manner.

In relation to alleged harm to human health, the defendant submitted that the Court could not be satisfied to the criminal standard that the commission of the offences caused, or was likely to have caused, any harm to human health. The evidence of Ms Severin and the surrounding neighbours did not establish that any actual harm to human health was caused by the blast, let alone caused by the commission of the offences. The most that could be said of the evidence of Ms Severin and the “selected few” of the occupants of properties in the locality who gave evidence for the prosecution was that they experienced some “temporary discomfort or disquiet” when the blast was fired. That did not constitute environmental harm, and even if it were considered to constitute environmental harm, it had not been established to have been harm caused or likely to have been caused by the commission of the offences.
At the hearing, the defendant contested the prosecutor’s submission that it was challenging the Court’s finding in the liability judgment at [291] that “the blast had considerable impact on lay witnesses, in particular Mr Byrnes”. Rather, the question was whether the prosecutor had established beyond reasonable doubt that Mr Byrnes was injured by the blast. The defendant submitted there were numerous propositions in Dr Fagan’s report which create doubt about whether Mr Byrnes suffered any aural injury or tinnitus as a consequence of the blast. In particular, Dr Fagan was not challenged in relation to the lack of change in Mr Byrnes’ audiograms pre and post the blast. Dr Fagan looked at Mr Byrnes’ audiograms from July 2018 (pre-blast), August 2020 (just post-blast), October 2023 and May 2024, whereas Dr Harrison looked at only one audiogram from May 2024. Mr Howard submitted that Dr Harrison “conspicuously didn't look at the audiograms that were pre and post the blast, that is July 2018 and August 2020”. The audiogram that Dr Harrison looked at showed bilateral sensorineural deafness, a little worse on the right side and mainly affecting the high frequencies. The defendant submitted that the bilateral sensorineural deafness was also evident in the July 2018 audiogram, and that it was “reasoned by Professor Fagan that … [Mr Byrnes] had that slight sensorineural deficiency in his right ear”, presumably referring to Dr Fagan’s finding set out at [27(5)] above that Mr Byrnes had moderate right high tone deafness and his hearing was impacted prior to the blast.
The defendant submitted that Dr Harrison’s evidence concerning Dr Fagan’s proposition that “[t]he hearing loss demonstrated by an audiogram would be maximal immediately following the sound or Blast” “rose no higher than that [Dr Harrison] considered that there was something that suggested otherwise in the Jalilvand article”. Dr Fagan’s opinion was submitted to be consistent with the possibility that Mr Byrnes experienced pain and/or discomfort of a transient nature at the time of the blast.
In cross-examination, Dr Fagan was taken to Figure 2 in the Lewandowski report (set at out [14(6)] above), and asked to assume that Ms Severin and Mr Byrnes were 140.6 dBL or closer to the blast. On that assumption, Dr Fagan accepted that Ms Severin and Mr Byrnes would experience aural pain. Mr Lewandowski (who was not called to give evidence) gave an estimate in the range of 135 to 141 dBL. Mr Howard submitted that the Court should infer that Mr Lewandowski did not have available, as he did not refer to, the actual measurement that was taken at the Boggabri monitor which was the subject of the Court’s finding in the liability judgment at [289] that the result at the Boggabri trigger unit on 20 August 2020 at 10:22:44am was an overpressure of 135.6 dBL. The proposition that the overpressure was any higher than what was measured at the trigger monitor was, Mr Howard submitted, “completely speculative on the part of the prosecutor based upon a premise that it’s at the top end of a range determined by way of rough assessment”. The Court should, it was submitted, not draw any conclusion that the overpressure level at the Boggabri coal mine was any greater than 135.6 dBL.
Further, the Court should not attach any weight to the fact that Mr Byrnes was physically examined by Dr Harrison and not by Dr Fagan because there was nothing about the physical examination that informed any difference of opinion between them. Nor should the Court make an adverse credit finding against Dr Fagan because in the witness box he qualified his opinion that the “cause of tinnitus could only be made on a cadaver absent other evidence”. At its highest, the cross-examination of Dr Fagan established no more than that Dr Fagan had a different opinion to some others in relation to certain matters. His opinion was not shown to be unreasonable or contrary to the weight of peer opinion. The cross-examination demonstrated that “at the very least” reasonable doubt exists as to whether Mr Byrnes suffered any aural injury as a consequence of the blast. Further, Dr Harrison’s apprehension that Mr Byrnes was 800 metres from the blast was based upon “a demonstrably false premise” told to him by My Byrnes.
The defendant also submitted that the Court should not accept the evidence of Mr Byrnes, and that his evidence should be considered unreliable, notwithstanding that I rejected a similar submission in the liability judgment at [291]. The defendant submitted that this finding was made in relation to its specific submission that Mr Byrnes had not disclosed when he gave evidence that he had instructed his solicitors to pursue a potential common law claim against the defendant and was based upon the way Mr Byrnes presented in the witness box. Mr Howard submitted that there are “limitations that the Courts now, in the modern era, recognise about what weight should be given to a perception of demeanour as compared with objective evidence”. In particular, the Court now had material that it did not have during the liability trial: Mr Byrnes told Sharon King Hearing Centres that he was 600 metres away from the blast and he told Dr Harrison that he was 800 metres from the blast when he was, in fact, 2.9 kilometres from the blast. The Sharon King Hearing Centres report dated 17 October 2023 recorded that Mr Byrnes advised that he experienced unilateral left sided tinnitus. Dr Harrison gave evidence in cross-examination that Mr Byrnes said he experienced tinnitus in both ears. This, it was submitted, must prompt the Court to reconsider “the issue of the event” and Mr Byrnes’ symptoms.
If Mr Byrnes suffered any pain or injury as a consequence of the blast, it could not be ruled out that he would have suffered some similar effect with the blast parameters at conventional timing and stemming. The only conclusion was that if Mr Byrnes did suffer any pain or injury, he was an outlier compared to the persons present in the vicinity of the blast, hundreds of whom were closer to the blast than Mr Byrnes.

As the chief judge said in EPA v Waste Recycling at [145], harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken in to account.
In relation to harm to the environment, I accept the prosecutor’s submissions in relation to causation; that is that the approach contended for by the defendant to causation – namely, that notwithstanding incompetence in relation to the choice of timing, stemming length and overloading, that was not a sufficiently substantial causal connection to the blast – was one which defied commonsense.
As Allsop P held in Whelan v R at [2], the question of causation is one of fact, dealt with by commonsense, appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter. Accordingly, the causal connection must be sufficiently substantial to permit a conclusion of criminal responsibility. The question for determination is not what harm, if any, resulted from the timing, the stemming length and the overloading, considered individually, but what harm resulted from the firing of the blast. I reject as artificial and lacking commonsense the approach to causation contended for by the defendant which would have the Court determine, individually, the harm to the environment, if any, caused by the firing, the stemming length and the overloading, and focus consideration on the particular incompetence in the manner of carrying out the blast that was held to constitute each of the three s 64(1) offences.
Ultimately, however, I accept the defendant’s submission that there was insufficient evidence supporting proof beyond reasonable doubt that the commission of the offences, singly or cumulatively, caused either of the two types of actual harm to the environment which would not have been caused anyway by the firing of the blast.
In relation to alleged damage to the biodiversity corridor which was approximately 30-40 metres from the blast zone, there was evidence from Ms Bulkeley, Mr Gomez, Ms Williams and Mr Goswami (as set out at [85(1)] above) that flyrock entered the biodiversity corridor and damaged vegetation, including by snapping branches. However, by around 24 August 2020, that flyrock had been removed by contractors engaged by the defendant.
I am unable to be satisfied beyond reasonable doubt that such evidence of damage to vegetation in the biodiversity corridor was sufficiently cogent to justify attributing causal responsibility. Further, as the defendant submitted, even if I were to be satisfied that the crack in the biodiversity corridor was caused or likely to have been caused by the blast (which I am not), I would be left with a conclusion that it may equally have been caused by the blast regardless of the manner in which the defendant was found to have carried out the blast otherwise than in a competent manner.
I am, however, satisfied that the blast as it was carried out on 20 August 2020 presented the potentiality or risk of harm to vegetation in the biodiversity corridor which was some 30-40 metres from the blast zone, and which at the time of the blast allowed wildlife access from the eastern side of the Leard Forest down to the Namoi River and included Ironbark White Cypress Pine and White Box trees. It is of significance that the defendant’s expert Dr McKenzie knew of the existence of the biodiversity corridor, but not its location.
In relation to alleged harm to human health, in the liability judgment I found at [291] that the blast had “considerable impact” on lay witnesses, in particular Mr Byrnes and Ms Severin who presented to Boggabri Hospital after the blast. The defendant’s expert Dr Fagan opined that the blast could have caused “transient discomfort”. That does not equate to a finding that the commission of the offences caused, or was likely to have caused, harm to human health. There was some difference between the medical experts, Dr Harrison for the prosecutor and Dr Fagan for the defendant, in relation to whether Mr Byrnes suffered any aural injury as a result of the blast. The prosecutor challenged aspects of Dr Fagan’s evidence. I accept, as submitted by the prosecutor, that Dr Fagan’s expertise did not extend to assessment of sound arising from a blast at an open-cut mine. I also accept that Dr Fagan’s opinion in relation to Mr Byrnes’ auditory system (that, if a lesion existed, the damage would be confined to the hair cells of the inner ear) was contrary to the opinion of scientific literature published by Jalilvand and Mizutari and that Dr Fagan, when challenged, equivocated in relation to his opinion that a diagnosis of the cause of tinnitus could only be made on a cadaver.
However, I do not make any finding adverse to the credit of Dr Fagan who presented as a credible and qualified expert, and who held opinions different to others in relation to some matters. Likewise, I make no such finding in relation to Dr Harrison.
Ultimately, however, I am not satisfied beyond reasonable doubt that either Mr Byrnes or Ms Severin was injured by the blast. The evidence in relation to Mr Byrnes’ audiograms was equivocal. And whilst I have accepted Mr Byrnes as a credible witness, and do not reject the entirety of his evidence as unreliable, I find, as submitted by the defendant, that during the hearing on sentence, there were various accounts of Mr Byrnes’ experience of the blast, and his symptoms. Mr Byrnes told Sharon King Hearing Centre that he was 600 meters from the blast and Dr Harrison that he was 800 meters from the blast, when he was in fact 2.9 kilometres from the blast. Likewise, there were different accounts of the ears in which he experienced tinnitus after the blast. And Dr Fagan opined that Mr Byrnes’ hearing may have been impacted by exposure to gunshots as a teenager.
Ultimately, as Dr Fagan conceded, if Mr Byrnes and Ms Severin were located at the point shown in Figure 2 in the Lewandowski report, they may well have experienced aural pain. Also, as Dr Harrison opined, hearing loss can worsen following a “sound or blast”. However, that is insufficient to establish actual harm within the meaning of harm caused to the environment by the commission of the offences, even adopting a commonsense approach. It cannot be ruled out, as submitted by the defendant, that Mr Byrnes would have suffered some similar effect with the blast parameters at conventional timing and stemming. I find, as submitted by the defendant, that Dr Fagan’s opinion was consistent with the possibility that Mr Byrnes experienced pain and/or discomfort of a transient nature at the time of the blast.
It is a different question whether the blast, as it was carried out on 20 August 2020, presented the potentiality or risk of harm to one or more workers at the adjacent Boggabri coal mine. I find established beyond reasonable doubt that the blast, as carried out on 20 August 2020, presented the potentiality or risk of harm to workers at the Boggabri coal mine. The defendant’s expert Dr Fagan accepted that if Ms Severin and Mr Byrnes were at the point shown in Figure 2 of the Lewandowski report they would likely have experienced aural pain. He was, however, unsure of the significance of this.

The defendant submitted that in addressing its state of mind in relation to the s 64 offences, the prosecutor impermissibly sought “double punishment”, referring to the prosecutor’s reliance on Environment Protection Authority v Truegain Pty Ltd [45] where Leeming JA considered the construction of s 64 of the POEO Act and the formulation of the offence there alleged. Justice Leeming held that the non-thermal treatment of waste included both the storage and processing of waste, and that doing either of those things incompetently would amount to a breach of the condition of the licence (at [53]–[55]). Here, incompetence in the manner of carrying out the blast was an element of each of the three s 64 offences, and the prosecutor had relied on the ways in which the defendant failed to carry out the blast in a competent manner in proof of each of the offences. It could not then ask the Court to take into account the same factors in aggravation.
At the time it designed and implemented the blast, the defendant had “no idea” that, in order to achieve a level of competence in the manner of carrying out the blast sufficient to comply with condition O1.1 of its licence, it was required not only to model the impacts of the blast at the nominated monitoring points in its licence representative of sensitive residential receivers, but also to carry out a specific risk assessment of how the airblast overpressure from the blast might affect workers present at the adjacent Boggabri coal mine.
The defendant submitted that the finding which should be made in relation to the defendant's state of mind at the time of the blast was that it was intent on compliance with the limits in the EPL and with the safety of its workers. No adverse finding should be made on the basis that the defendant did not conduct a risk assessment in relation to personnel at the Boggabri coal mine in relation to noise limits: firstly, the defendant did, in fact, consider the safety of workers at the Boggabri coal mine in relation to the issue of flyrock by having Dr McKenzie model the same; and second, the “novel circumstances in which these convictions [were] obtained”, there having been no evidence that it was industry practice to conduct modelling otherwise than to comply with the prescribed limits in an EPL. The Court could not find that the defendant deliberately had disregard for any aspect of its EPL and, on any reasoned view, a consideration of the defendant’s state of mind pointed to the extension of some leniency in the imposition of punishment for the commission of the offences.

The prosecutor submitted that the harm caused or likely to be caused by the commission of the offences was foreseeable for reasons including the following:
that issues in achieving adequate fragmentation had been experienced at the mine in the past, leading to the previous engagement of Dr McKenzie; [50]
that following the previous blast on 7 August 2020, the defendant was aware of caprock fragmentation issues resulting in poor digging conditions and safety risks to workers during loading activities; [51]
that between 13 and 14 August 2020, Mr Gomez, Mr Williams and Mr Butler agreed to engage Dr McKenzie to advise on the caprock fragmentation issues in the final stages of the design of the blast; [52]
that on 14 August 2020, Dr McKenzie emailed Mr Williams in relation to the modelling of the blast, expressing his limited confidence in the modelling, and suggesting that the blast be treated as a "learning opportunity"; [53]
that the shotfirer Mr Welch raised concerns about the use of fast timing when tying up the shot on 19 August 2020, including by temporarily pulling the shot and contacting the engineers; [54]
that no blast modelling was conducted to the south of the mine, Boggabri coal mine being located less than 3 kilometres to the south, and that the defendant, including through its engagement of Dr McKenzie, did not consider the potential impact of the blast on personnel at that mine; [55]
the likely distance of persons from the blast; [56] and
that the use of fast timing being such that the objective of good progressive release of burden was not met, there not being enough time for an earlier firing hole to move its rock so that a later firing hole had a void into which to move the rock. A large increase in noise / airblast overpressure was likely to occur and was foreseeable due to the very large increase in MIC and the reduction in the stemming length, fast timing resulting in a MIC of 56,925kg ten times greater than conservative and proven levels, not being consistent with the requirements of cl 3.3.5 of the BLMP for managing airblast overpressure. [57]
Not only was the risk of harm reasonably foreseeable, so too its consequences, a consideration of particular relevance to the assessment of the seriousness of the offences and one which elevated their objective gravity.

The defendant submitted that the objective seriousness of the offences should be found at the low end of the range having regard to the following reasons: the nature and circumstances of the offending, the state of mind of the defendant, that a reasonable miner would not have reasonably foreseen that it had to carry out risk assessments for areas where sensitive receivers are not located, that there were no other practical measures which may have avoided the risk of harm, that the environmental harm caused by the offending was not substantial, and that the risk of harm to the environment was not foreseeable.
In addition, the defendant submitted that the following circumstances should be given weight in the assessment of the objective seriousness of the offences:
The defendant designed and implemented the blast in circumstances in which it had recently encountered unexpected hard caprock along the Herndale seam. This had to be addressed in order for the defendant to observe “its duty” to its workers involved in digging and loading the overburden material displaced by blasting so as not to expose them to an unacceptable risk of injuries and also in order to enable a commercial operation of the mine by an efficient digging rate.
In seeking to address inadequate fragmentation on this part of the Herndale seam, the defendant was also intent upon remaining compliant with the conditions of its EPL specifically directed to mine blasting; in particular, with condition “L4 Blasting” which imposed specific limits for airblast overpressure and vibration measured at the monitoring points nominated in its EPL and intended to be representative of sensitive residential receivers to the north and north-west of the mine.
In order to achieve those dual objectives, the defendant engaged and took advice from Dr Cameron McKenzie to assist in the design of the blast with respect to the parameters of timing and stemming length. Dr McKenzie carried out modelling to predict the projection of flyrock and the airblast overpressure and vibration levels that would result from the blast input data as to the initiation timing and stemming length.
After calibrating his model by testing it against monitoring data from a then-recent blast, Dr McKenzie predicted that the timing and stemming-length parameters which the defendant ultimately settled upon would achieve the dual objectives of improving fragmentation and ensuring that the defendant remained compliant with the airblast overpressure and vibration limits at the monitoring points in its EPL. That prediction turned out to be correct, with the blast achieving improved fragmentation of caprock and the airblast overpressure and vibration levels being compliant with the limits stipulated in condition L4 of the EPL.

In relation to good character (s 21A(3)(f)), it is plain that much of Mr Humphris’ evidence was primarily directed to the philanthropic activities of the defendant’s ultimate holding company, Whitehaven Coal. That evidence, summarised above at [32(1)]-[32(9)], included that Whitehaven Coal invested in environmental and animal diversity including through the provision of $2 million towards the Gunnedah Koala Sanctuary, has environmental management systems, made contributions to “the North-West New South Wales economy” including by being the largest private employer in north-west NSW and spending $462 million with regional suppliers, improved female representation in Whitehaven Coal’s operations, made donations to healthcare services, made contributions to education through $15,000 worth of donations to Dymocks Children's Charity over the past two years, made contributions to Aboriginal and Torres Strait Islander initiatives, including donating $250,000 to Aboriginal and Torres Strait Islander organisations, and gave other general community support.
As Pepper J held in Stephen James Orr v Narrabri Coal Operations Pty Ltd; Stephen Jammes Orr v Narrabri Coal Pty Ltd [70] at [219], such evidence cannot be used to draw conclusions about the character of the defendant. Here, there was relatively little evidence about the good character of the defendant. That evidence included that the defendant donated $33,433 to Boggabri Hospital, $30,000 to Boggabri Public School, $32,990 to Boggabri Golf Club, $10,000 to the Country Education Foundation and Gunnedah Shire Council Community Education Fund, committed $100,000 to Nurruby Boggabri Early Learning Facility, conducted school tours of the mine, and sponsored the Australian Bushmen's Campdraft and Rodeo Association National Finals.
Moreover, as the prosecutor submitted, some of the evidence given by Mr Humphris was incapable of being tested. Mr Humphris gave evidence that Mr Kevin Ball, chief financial officer of Whitehaven Coal, would be the appropriate person to give evidence concerning whether particular donations made by Whitehaven Coal and the defendant had been claimed as tax deductions, and whether the $100,000 committed by the defendant for staff training to Nurruby Boggabri Early Learning Facility had been paid. I therefore attach little weight to the $100,000 committed by the defendant to Nurruby Boggabri Early Learning Facility.
In relation to likelihood of re-offending and prospects of rehabilitation, in light of the evidence of Mr Humphris, I am unable to take into account either potentially mitigating factor in determining the appropriate sentences for the offences here. Mr Humphris’ evidence was that he could not identify any changes that had been made to reduce the likelihood of reoffending in relation to future blasts and that there been no major changes to the governance of the defendant following the blast. Mr Humphris gave evidence that the defendant’s decisions made in relation to the burden relief time and stemming length at the time of the blast were the correct decisions, and that the stemming length of 3.0 metres “may still be a competent decision”. Mr Humphris was “not across” the detail of any changes to practice and procedure in relation to measuring and weighing explosives to ensure blast holes are not overloaded since the blast.
Insufficient evidence was provided by the defendant to enable me to make any positive finding in relation to the likelihood of it reoffending and its prospects of rehabilitation.

Whilst it was uncontroversial that the four offences arose out of the same conduct, that is, carrying out the blast, the defendant submitted that the prosecutor had understated the importance of the totality principle in relation to the three s 64 offences. That was because the entirety of the offending conduct encompassed by the three s 64 charges could have been charged as a single offence of carrying out the blast otherwise than in a competent manner, particularised by reference to the timing, stemming length and overloading complaints. In substance, the three s 64 offences, considered together, were no different to a single offence of carrying out the blast otherwise than in a competent manner.
The defendant submitted that the only way the Court could avoid “double punishment (or triple punishment)” in relation to the s 64 offences was to apply the totality principle to ensure that the accumulated total of penalties for what the prosecutor had charged as three offences of contravention of condition O1.1 in relation to the same blast was no more than the total penalty the Court would have imposed were it sentencing the defendant for a single offence of carrying out the blast otherwise than in a competent manner in contravention of condition O1.1, supported by particulars concerning the initiation timing, the stemming length and the overloading.
The defendant identified the following principles in relation to totality as relevant to the Court’s sentencing for the offences here:
First, imposing a sentence “for multiple offences and before it imposes the sentence for any one offence, the Court will have considered the outcome for all offences”: R v JRD [90] Howie J at [33] (McClellan CJ at CL and Bell J agreeing), this approach ensuring that the effective sentence reflects the overall criminality and that the individual sentences imposed conform to any statutory limitations that exist for specific sentencing options: R v JRD Howie J at [31], [33] (Bell and Howie JJ agreeing).
Second, where a court sentences an offender for more than one offence, or sentences an offender serving an existing sentence, the aggregate or overall sentence must be “just and appropriate” to the totality of the offending behaviour: Mill v The Queen [91] at 63 (Mason CJ, Wilson, Deane, Dawson and Gaudron JJ).
Third*,* the principle of totality, while it may not apply with the same force in the case of the imposition of fines as it does in cases involving the imposition of imprisonment, it nonetheless applies where the penalty imposed is by way of fine: see R v Sgroi [92] Malcolm CJ at 203 (Brinsden and Rowland JJ agreeing); Camilleri’s Stock Feeds v EPA [93] Kirby P at 704 (Campbell and James JJ agreeing); EPA v Barnes [94] Kirby J at [46] (Mason P and Hoeben J agreeing).
Fourth, to the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish the offender twice for the commission of the elements that are in common. The punishment should reflect what the offender has done, and not be affected by the way in which the boundaries of particular offences are drawn: Pearce v The Queen [95] McHugh, Hayne and Callinan JJ at [40].

While noting that each case turns on its own facts, the prosecutor submitted that the Court is required to consider whether there is any sentencing pattern for like offences in order to avoid inconsistent sentences. [96] A table of comparative cases was attached to the prosecutor’s submissions, and is reproduced in Annexure C to this judgment. Ms Marsden for the prosecutor placed particular reliance on Environment Protection Authority v Whitehaven Coal Mining Limited (EPA v Whitehaven Coal Mining) [97] and Environment Protection Authority v Bald Hill Quarry Pty Ltd [98] (Bald Hill Quarry).
In EPA v Whitehaven Coal Mining, the defendant pleaded guilty to one offence against s 64(1) of the POEO Act. Justice Pepper found that the defendant carried out the blast the subject of the proceeding in a less than competent manner as it failed to undertake a written risk assessment prior to conducting the blast, [99] conducted the blast in a manner that did not reduce blast fume generation, [100] overloaded “8.5% of the blast holes with explosive”, [101] made several departures from provisions contained in internal blast management plans, [102] and failed to notify adjoining land holders when potentially dangerous fumes traversed onto their property. [103]
Ms Marsden submitted that the impact in EPA v Whitehaven Coal Mining was not factually similar to the present proceeding as it concerned the release of gasses into the environment. In that case, Pepper J found that there was no evidence of actual harm, [104] although there was the potential for serious environmental harm as a consequence of the gasses released by the blast. [105] Ms Marsden submitted that in “this case there was both actual harm to the environment and harm to human health”. Also, in EPA v Whitehaven Coal Mining, the defendant had no prior convictions, [106] did not commit the offence intentionally, recklessly or negligently [107] or for financial gain, [108] co-operated with authorities, showed remorse and contrition, [109] and received a 25% discount for its early plea of guilty. Justice Pepper found that the offence was at the upper end of the low range of objective seriousness for offences against s 64(1) of the POEO Act, [110] and imposed a penalty of $38,500, after applying a 30% discount to the starting penalty of $55,000, and made costs and publication orders.
Bald Hill Quarry [111] involved a contravention of licence condition O1.1 contrary to s 64(1) of the POEO Act by not carrying out licensed activities in a competent manner in that shredded rubber was used in lieu of virgin excavated natural material as daily cover in circumstances where the use of shredded rubber was not approved by the EPA and increased the risk of a fire occurring. Other offences included a contravention of licence condition O5.3 contrary to s 64(1) by not using virgin excavated natural material to cover exposed landfill waste at the property without the EPA’s approval. Ms Marsden submitted that there were some relevant differences in that case which elevated the objective seriousness, in particular that the licence breach was committed deliberately, [112] and for financial gain. [113] There was a greater degree of harm as the offences, including the licence breach offence, caused transient localised actual harm to the environment by way of the emission into air of impurities, [114] although there was no actual harm to human health. [115]
Ms Marsden submitted that there were some similarities to the present proceeding, the defendant having given similar reasons for committing the offences. In Bald Hill Quarry, the defendant submitted that the offences were committed as a result of weather-related and operational factors. [116] Pepper J imposed a penalty of $50,000 for the s 64(1) offence concerning the contravention of licence condition O1.1, with a starting penalty of $150,000, before the application of the totality principle and a 20% discount for the defendant’s plea of guilty. Ms Marsden submitted that the Court may be assisted by the manner in which Pepper J applied the principle of totality. Justice Pepper said at [194]:

In sentencing here, I have had regard, in particular, to the objective seriousness of the four offences (which I have found to be in the low to mid range of objective seriousness), and the subjective circumstances of the defendant, including its two prior convictions, and that I was unable to make a positive finding in relation to the likelihood of its reoffending and its prospects of rehabilitation. I have also had regard to the importance of general deterrence, as well as the need for specific deterrence, the defendant lacking insight in relation to the offences it has been found to have committed.
The defendant, having contested liability, is not entitled to a discount for entering a plea of guilty.
In sentencing for the three s 64 offences, I have had regard, in particular, to the authorities set out above at [192]-[199] and the submissions of the defendant in relation to the totality principle. I accept that the three s 64 offences could have been charged as a single offence of carrying out the blast otherwise than in a competent manner, particularised by reference to the timing, stemming length and overloading complaints. I will review the accumulated total of penalties for the three contraventions of s 64 to ensure that the aggregate sentence is just and appropriate and reflects the overall criminality of the defendant.
Likewise, I will also approach the penalty of the s 140(1) offence recognising that it effectively resulted from the conduct underpinning the s 64 offences.
As McHugh, Hayne and Callinan JJ observed in Pearce v The Queen at [40], the punishment should reflect what the defendant has done, and not be affected by the way in which the boundaries of particular offences are drawn.
After weighing all of the relevant factors and arriving at an “instinctive synthesis” in relation to each of the three s 64 offences and the s 140(1) offence, I would impose a monetary penalty in the sum of $200,000 for each offence.
However, considering the overall criminality in all the offences, and the significant overlap between the four offences and in order to achieve an appropriate relativity between the totality of the criminality and the totality of the penalties, I will impose a monetary penalty in the sum of $50,000 for each offence.

Environment Protection Authority v Maules Creek Coal Pty Ltd (No 4)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Introduction

The four charges

The timing charge: proceeding 2021/234554

The stemming length charge: proceeding 2021/234556

The overloading charge: proceeding 2021/234557

The emission of noise charge: proceeding 2021/234558

Finding of guilty in respect of each of the four offences

Evidence

Prosecutor’s evidence

Defendant’s evidence

Evidence in relation to harm to human health

Prosecutor’s evidence in relation to harm to human health

Defendant’s evidence in relation to harm to human health

Evidence in relation to good character

Relevant legislative provisions

Evidentiary principles applicable in sentencing

General principles of sentencing

Objective seriousness of the offences

Maximum penalties

The nature and circumstances of the offences

Prosecutor’s submissions in relation to the nature and circumstances of the offences

Defendant’s submissions in relation to the nature and circumstances of the offences

Conclusions in relation to the nature and circumstances of the offences

The harm caused or likely to be caused to the environment by the commission of the offences: s 241(1)(a) of the POEO Act

Prosecutor’s submissions in relation to the harm caused or likely to be caused to the environment by the commission of the offences

The issue of causation

Alleged damage to the biodiversity corridor

Alleged harm to human health

Defendant’s submissions in relation to the harm caused or likely to be caused to the environment by the commission of the offences

Alleged flaw in the prosecutor’s approach to harmfulness and causation

Alleged damage to the biodiversity corridor

Alleged harm to human health

Conclusions in relation to the harm caused or likely to be caused to the environment by the commission of the offences

Defendant’s state of mind and reasons for committing the offence

Prosecutor’s submissions in relation to the defendant’s state of mind and reasons for committing the offences

Defendant’s submissions in relation to the defendant’s state of mind and reasons for committing the offences

Conclusions in relation to the defendant’s state of mind and reasons for committing the offences

The practical measures that may be taken to prevent, control, abate or mitigate the harm: s 241(1)(b) of the POEO Act

Prosecutor’s submissions in relation to the practical measures that may be taken to prevent, control, abate or mitigate the harm

Defendant’s submissions in relation to the practical measures that may be taken to prevent, control, abate or mitigate the harm

Conclusions in relation to the practical measures that may be taken to prevent, control, abate or mitigate the harm

The foreseeability of the harm caused or likely to be caused to the environment by the commission of the offence: s 241(1)(c) of the POEO Act

The prosecutor’s submissions in relation to the foreseeability of harm

Defendant’s submissions in relation to the foreseeability of harm

Conclusions in relation to the foreseeability of harm

Defendant’s control over the causes that gave rise to the offences: s 241(1)(d) of the POEO Act

Prosecutor’s submissions in relation to the extent to which the defendant had control over the causes that gave rise to the offences

Defendant’s submissions in relation to the extent to which it had control over the causes that gave rise to the offences

Conclusions in relation to the defendant’s control over the causes that gave rise to the offences

Prosecutor’s general submissions in relation to objective seriousness

Defendant’s general submissions in relation to objective seriousness

Conclusions in relation to objective seriousness

Subjective circumstances of the defendant

Previous convictions: s 21A(2)(d) of the CSP Act and s 21A(3)(e) of the CSP Act

Prosecutor’s submissions in relation to previous convictions

Defendant’s submissions in relation to previous convictions

Conclusions in relation to previous convictions

The remorse shown by the offender: s 21A(3)(i) of the CSP Act

Prosecutor’s submissions in relation to the remorse shown by the offender for the offences

Defendant’s submissions in relation to the remorse shown by the offender for the offences

Conclusions in relation to the remorse shown by the offender for the offences

Good character, likelihood of re-offending and prospects of rehabilitation: s 21A(3)(f), (g) and (h) of the CSP Act

Prosecutor’s submissions in relation to good character, likelihood of re-offending and prospects of rehabilitation

Defendant’s submissions in relation to good character, likelihood of re-offending and prospects of rehabilitation

Conclusions in relation to good character, likelihood of re-offending and prospects of rehabilitation

Regard for public safety: s 21A(2)(i) of the CSP Act

Prosecutor’s submissions in relation to whether the offences were committed without regard for public safety

Defendant’s submissions in relation to whether the offences were committed without regard to public safety

Conclusions in relation to whether the offences were committed without regard for public safety

Whether the injury, loss or damage caused by the offence was not substantial: s 21A(3)(a) of the CSP Act