Environment Protection Authority v McMullen

ent Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 Hewitt v The Queen [2007] NSWCCA 353; (2007) 180 A Crim R 306 Kearsley v R [2017] NSWCCA 28; (2017) 265 A Crim R 233 Knight v The Queen [2010] NSWCCA 51 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Mansour v R [2011] NSWCCA 28 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Port Macquarie-Hastings Council v David Peter Waite (No 2) [2020] NSWLEC 60 R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Saddler v The Queen [2009] NSWCCA 83; (2009) 194 A Crim R 452 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Kate Lyall McMullen (Defendant) Representation: Counsel: J McGarity (Solicitor) (Prosecutor) D Randle (Defendant)

Solicitors: Environment Protection Authority (Prosecutor) George Sten & Co (Defendant) File Number(s): 2019/398905

Ms McMullen Pleads Guilty to Giving False or Misleading Information to the EPA

1. Ms Kate McMullen has pleaded guilty to an offence against s 103(1) of the Contaminated Land Management Act 1997 ("CLM Act") which provides that: 103 False or misleading information (1) A person must not, in compliance or purported compliance with a requirement under this Act, give information to the EPA or another person knowing that, or being reckless as to whether, the information is false or misleading in a material particular. Maximum penalty: (a) in the case of a corporation - $1,000,000 (in relation to a requirement under section 10, 14, 28 or 53B) or $137,500 (in relation to any other requirement), or (b) in the case of an individual - $250,000 (in relation to a requirement under section 10, 14, 28 or 53B) or $66,000 (in relation to any other requirement). (2) For the purposes of this section, information given in connection with a site audit, a site audit report or a site audit statement is taken to be given in compliance with this Act. (3) In this section: give information includes make a statement, give evidence or produce a document.
2. The summons relevantly charges Ms McMullen as follows: The Prosecutor claims: 1. An order that the defendant, Kate Lyall McMullen, having her personal address at 1 Stoney Creek Road, Beverly Hills, in the State of New South Wales, appear before a Judge of the Court to answer the charge that, on or about 8 September 2017, at or near 41 Burelli Street, Wollongong in the State of New South Wales, committed an offence against section 103(1) of the Contaminated Land Management Act 1997 ("the Act") in that, in compliance or purported compliance with a requirement under the Act, she gave information to another person knowing that, or being reckless as to whether, the information was false or misleading in a material particular. Particulars a. Information Information contained in a document titled: "Site Audit Statement", purportedly signed by Ms Rebeka Hall (Ms Hall), dated 14 December 2016… b. Given to another person The Defendant gave the Information to Wollongong City Council (Council) on 8 September 2017 by: i. furnishing a hardcopy of the Information at Council's reception counter at 41 Burelli Street, Wollongong NSW; and/or ii. emailing a downloadable link containing the Information to Council employee Mr Aleksandar Radicevic at approximately 12.45pm. c. That was false or misleading in a material particular The Information was not created or signed by Ms Hall. d. In compliance, or purported compliance, with a requirement of the Act The Defendant gave the Information to Council in compliance, or purported compliance, with s 53B(3)(b) and/or s 103(2) of the Act.

The Contaminated Land Management Legislative Regime

1. The CLM Act is directed to establishing a process for investigating, and where appropriate, remediating land that the Environment Protection Authority ("EPA") considers to be significantly contaminated. The relevant objects of the CLM Act set out in s 3 provide that: Objects of this Act (1) The general object of this Act is to establish a process for investigating and (where appropriate) remediating land that the EPA considers to be contaminated significantly enough to require regulation under Division 2 of Part 3. (2) Particular objects of this Act are: … (c) to provide for the accreditation of site auditors of contaminated land to ensure appropriate standards of auditing in the management of contaminated land, and (d) to ensure that contaminated land is managed with regard to the principles of ecologically sustainable development.
2. Part 4 of the CLM Act deals with the site auditor scheme. The Contaminated Sites: Guidelines for the NSW Site Auditor Scheme (2nd edition) ("Guidelines") are the statutory guidelines made under s 105 of the CLM Act that were in force at the time of the commission of the offence, and are designed to be read in conjunction with the CLM Act. The Guidelines provided that one of the objectives of the NSW site auditor scheme was to (footnote omitted): Provide greater certainty for planning authorities and the community through the independent review by those auditors of contaminated site assessment and remediation reports, and reports that validate the successful completion of the assessment or remediation.
3. The Guidelines further provided, among other things, that: 1. the role of site auditors is to provide an independent and authoritative review of the information relating to possible or actual contamination of a site; 2. the integrity and rigour of the site auditor scheme depends on the auditor's critique of site assessment, remediation and validation work being carried out at arm's length from the people who did the work; and 3. a SAS is final and thus it must contain accurate information before being signed. By signing a SAS, an auditor is certifying that they have personally completed a site audit and have examined and are familiar with the information contained in the SAS and all reports and information referred to in the SAS or report.

Stockland Development Engages Arcadis to Project Manage a Development

1. Much of the factual background giving rise to the commission of the offence was not in dispute and was contained in a comprehensive statement of agreed facts which is summarised below.
2. At all relevant times, the premises were owned by Stockland Development Pty Ltd ("Stockland"). In 2013 Stockland engaged Arcadis Pty Ltd ("Arcadis") to design, project manage and provide superintendency services on its behalf to develop the premises into 160 residential lots ("development"). The development was known as the McPhail Residential Subdivision Stages 14 - 16.
3. From 30 April 2015 to 24 May 2018, Ms McMullen was employed by Arcadis as a project manager.
4. Under the terms of the agreement with Stockland, Arcadis was required to act on its behalf to: 1. manage the civil and remediation works by the relevant contractor; 2. manage the site validation reporting by the environmental consultants, JBS&G Australia Pty Ltd ("JBS&G"); 3. manage the obtaining of a SAS from Zoic Environmental Pty Ltd ("Zoic"); 4. collate all the information for the subdivision certificate application; and 5. submit the subdivision certificate application to the Council.

Arcadis Engages JBS&G as Environmental Consultant for the Development

1. In July 2014 Arcadis commissioned JBS&G as the environmental consultant for the development. Mr John De Martin was JBS&G's principal environmental consultant.
2. JBS&G was responsible for preparing a Remedial Action Plan ("RAP") for the development and overseeing the remediation and validation works in accordance with the RAP.
3. JBS&G was also responsible for preparing a Site Validation Report ("SVR") at the conclusion of the remediation works to verify that the premises had been made suitable for the proposed development.
4. A substantial component of the remediation works required for the development related to the demolition of a dwelling and associated structures on the premises. This component of the works was overseen by JBS&G and was undertaken as complying development. It concluded in late 2015.

Arcadis Engages Ms Hall as Site Auditor for the Premises

1. In October 2014 Ms Hall, an employee of Zoic, was commissioned by Arcadis to undertake a site audit for the premises.
2. Ms Hall's role was to review the suitability of environmental reports prepared for the premises against the requirements outlined in the Guidelines.
3. Pursuant to the Guidelines, the site audit comprised two stages: 1. stage 1 - involved a review of the available environmental investigation reports prepared for the premises and the proposed remedial strategy to render the site suitable for a low-density residential subdivision. The desired outcome of the stage 1 audit works was for the site auditor to endorse the RAP with an Interim Advice Letter; and 2. stage 2 - involved a review of remediation and validation works conducted by JBS&G, including the SVR, with the aim of the site auditor issuing a Site Audit Report ("SAR") and SAS confirming the suitability of the premises for the development.
4. In early October 2014 Ms Hall commenced stage 1 of the site audit.
5. On 21 October 2014 Ms Hall issued an Interim Advice Letter, endorsing the RAP and confirming that the premises could be made suitable for the development provided that the RAP was implemented with certain conditions.

A Development Application is Lodged to Subdivide the Premises for Residential Development

1. On 29 October 2014 a development application (DA 2014/1379) ("DA") was lodged by Arcadis on behalf of Stockland with Wollongong City Council ("Council") to develop the following parcels of land at the premises: 1. Lot 1 DP 549692, being 434 Bong Bong Road, Huntley NSW 2530; 2. Lot 1 DP 810104, being Lot 1 Bong Bong Road, Huntley NSW 2530; 3. Lot 100 DP 1211653, being 44 Hayes Lane, Huntley NSW 2530; and 4. Lot 1331 DP 1191072, Lot 1331 Escarpment Place, Horsley NSW 2530.
2. At the time the DA was lodged, the premises comprised approximately 17 ha and was a rural site containing coal washery rejects, asbestos containing material, and other contaminants.
3. The development was described as: Phased Subdivision - Torrens title - one hundred and sixty (160) residential lots including earthworks, clearing of vegetation, infrastructure provision, riparian re-vegetation, landscaping works, a boundary adjustment and the creation of an excised lot.

Ms McMullen is the Project Manager for the Development

1. From 30 April 2015 Ms McMullen was the project manager of the development. As project manager she had overarching responsibility for the development during its design and construction phases. Her role involved, among other things, the following responsibilities: 1. estimation and delivery of financial and timeframe milestones; 2. coordination of the phases of the development, its consultants and contractors; 3. ensuring compliance during the phases of the development with the requirements of the development consent; and 4. providing relevant documents to the Council at various stages of the development.
2. In general, the process undertaken by the project manager for the submission of documents to the Council was as follows: 1. review the documents to ensure compliance against each condition of the development consent; 2. complete the relevant subdivision certificate forms and obtain Stockland's information; 3. obtain relevant fees and bond payments from Stockland; 4. submit the documentation to the Council; and 5. follow up with the Council whether the information provided was adequate for the issuing of subdivision certificates.
3. From 5 September 2015 to 1 May 2018, Ms McMullen was supervised by Arcadis's Urban Development and Regeneration Manager - NSW and Discipline Manager, Mr Cameron Hay. From 1 May to 22 May 2018, Ms McMullen's supervisor was Arcadis's Technical Director - Civil, Urban Development and Regeneration, Mr Gregory Ives.
4. As project manager Ms McMullen had autonomy to make decisions on behalf of Arcadis and was not required to obtain the authority of Mr Hay in relation to the review or submission of documents produced by external parties to any regulatory authority. There was an expectation that the project manager would approach their supervisor should they require assistance.
5. From October 2015 Ms McMullen oversaw the commencement of the remediation works at the premises. She liaised with Mr De Martin in relation to those works.
6. Ms McMullen also liaised with Ms Hall in relation to inspections of the premises, the sharing of relevant documentation, and Arcadis's payment of Zoic invoices.
7. On 5 November 2015 Zoic emailed Ms McMullen an invoice addressed to Stockland for inspection work conducted at the premises in October 2015 ("November 2015 invoice").

The Council Grants Development Consent for Subdivision of the Premises

1. On 13 November 2015 the Council issued development consent for the development to Stockland ("consent"). Condition 154 of the consent specified that: 154 Site Contamination Validation Report and Site Auditor's Statement The submission of a site contamination validation report to the Principal Certifying Authority is required, prior to the issue of a Subdivision Certificate. This validation report shall verify that: 154.1 all site contamination remediation works have been satisfactorily completed; 154.2 the site is not affected by any soil strata and/or groundwater table contamination, above the NSW DECCW threshold limit criteria; 154.3 the site is rendered suitable for the proposed development; The submission of a site audit statement/final clearance certificate is also required from the NSW EPA accredited site auditor pursuant to the provisions of Part 4 of the Contaminated Land Management Act 1997 confirming that the site has been satisfactorily remediated and is suitable for the proposed development.

Communications Between Ms McMullen and Ms Hall

1. On 8 February 2016 Ms Hall emailed Ms McMullen to follow up the November 2015 invoice.
2. Ms Hall received an email response from Ms McMullen on 12 July 2016 which attached the consent.
3. Arcadis paid the outstanding invoice to Zoic on 13 July 2016.
4. On 16 August 2016, in accordance with s 53C of the CLM Act, Ms Hall issued a Site Audit Notification ("SAN") to the EPA to advise that she had been commissioned by Arcadis to carry out a statutory site audit.
5. Zoic emailed Ms McMullen on 1 September 2016 to issue Arcadis with an invoice for the lodgement of the SAN and to enquire about an unpaid invoice from August of that year. Zoic did not receive a response from Ms McMullen.
6. Ms Silja Kuerzinger, Ms Hall's Principal Audit Assistant, followed up the unpaid invoice with Ms McMullen by telephone on 28 November and 19 December 2016 and on 27 February 2017. No response was received.

Arcadis Makes an Application for Subdivision Certificates

1. In order to obtain subdivision certificates for the development, Ms McMullen was responsible for providing relevant documents to the Council so that the Council could review these against the conditions of the consent.
2. On 31 March 2017 Ms McMullen, on behalf of Stockland, submitted to the Council a Subdivision Certificate Application for four subdivision certificates, representing each of the four stages of the development. Council Senior Land Development Engineer, Mr Aleks Radicevic, reviewed the application.
3. Mr Radicevic assessed that a number of conditions of the consent were not satisfied in relation to stages 14 and 16 of the development, including condition 154, which required a SAS and SVR to be provided to the Council.
4. In letters dated 18 and 21 July 2017, Mr Radicevic informed Ms McMullen that Arcadis's Subdivision Certificate Application had been deferred until additional information was provided to the Council in accordance with the conditions of the consent. The letters relevantly stated as follows: Unfortunately, your application has been deferred until the following additional information is provided to Council in accordance with the conditions of Development Consent DA-2014/1379: … 154 Site Contamination Validation Report and Site Auditor's Statement The submission of a site contamination validation report to the Principle Certifying Authority is required, prior to the issue of a Subdivision Certificate. This validation report shall verify that: 154.1 all site contamination remediation works have been satisfactorily completed; 154.2 the site is not affected by any soil strata and/or groundwater table contamination, above the NSW DECCW threshold limit criteria; 154.3 the site is rendered suitable for the proposed development; The submission of a site audit statement/final clearance certificate is also required for the NSW EPA accredited site auditor pursuant to the provisions of Part 4 of the Contaminated Land Management Act 1997 confirming that the site has been satisfactorily remediated and is suitable for the proposed development. Comment: Site Contamination Validation Report and Site Auditor's Statement prepared in accordance with the above condition must be submitted prior to the issue of the Subdivision Certificate.
5. Mr Radicevic received a letter from Ms McMullen dated 25 August 2017, attaching a number of documents in satisfaction of conditions of the consent. The letter purported to attach a SAS and SVR. Upon reviewing the letter and its attachments, Mr Radicevic did not find a SAS and SVR.

The Purported SAS is Submitted to the Council by Ms McMullen

1. On 8 September 2017 Ms McMullen attended the Council's reception counter to finalise the Subdivision Certificate Application. Ms McMullen submitted a "Lodgement of Additional Information Form", together with a purported SAS and SVR, to a receiving officer at the counter.
2. The "Lodgement of Additional Information" and SAS forms contain declarations to the effect that they must contain only true, correct and complete information.
3. On 8 September 2017 at 12.19 pm, Mr Radicevic received an email from Ms McMullen in relation to the earlier lodgement of the purported SAS and SVR at the Council's reception counter. The email said: Hi Aleks, Just a quick note to let you know that I have this morning lodged the Site Audit Statement, Site Validation Report and the final WAE Flood extents for 1% AEP and PMF flood events. I had Loraine from customer service email you a copy of the receipt for the bonds lodged for the outstanding works in Brooks Reach…
4. Later that same day at 12.45 pm, Mr Radicevic received another email from Ms McMullen by the application "WeTransfer" ("WeTransfer email"). The WeTransfer email subject line read: "kate.mcmullen@arcadis.com sent you files via WeTransfer". The email contained a download link to five documents including the purported SAS and SVR. The email included the following text: Hi Alex, Site Audit Statement Site Validation report and 1% AEP and PMF flood extents WAE in dwg, pdf and hardcopy as submitted over the counter this morning Regards Kate McMullen Arcadis…
5. That afternoon, the Council's Customer Services Officer, Ms Debra Williamson, emailed Mr Radicevic to notify him of the receipt and registration of hardcopy documents relating to the development. Mr Radicevic subsequently accessed and reviewed the saved documents.
6. On 12 September 2017 Mr Radicevic accessed the download link in the WeTransfer email and downloaded the five linked documents. The SAS and SVR contained in the download link were the same versions of the SAS and SVR received by the Council in hardcopy.

The Council Issues Subdivision Certificates for the Development

1. After reviewing the additional information provided to the Council, Mr Radicevic assessed the Subdivision Certificate Applications against the consent. The Council subsequently issued the following subdivision certificates for the various stages of the development: 1. SC 2017/52, issued on 12 September 2017; 2. SC 2017/53, issued on 19 September 2017; 3. SC 2017/54, issued on 20 September 2017; and 4. SC 2017/55, issued on 30 October 2017.
2. Upon the subdivision certificates being issued, the subdivision plans were submitted to Land Registry Services to register the new lots, enabling Stockland to sell and settle sales of the newly created lots.

Discovery of the Commission of the Offence

1. On 9 February 2018 Ms Hall telephoned Ms McMullen to enquire whether a statutory site audit was still required for the development. Ms Hall and Ms McMullen had the following conversation: Ms Hall said: "Kate, do you still need me to audit the Brooks Reach site as you need a Site Audit Statement to meet condition 154 to obtain a subdivision certificate?" Ms McMullen said: "We already have the subdivision certificate." Ms Hall said: "Oh, OK. Then you must have obtained it from another Auditor." Ms McMullen said: "Not sure, I'll check and get back to you."
2. On 9 and 28 February and 1 May 2018, Ms Hall contacted Ms McMullen by email to clarify whether her services were still needed. Ms Hall did not receive a response to her emails.
3. On 7 May 2018 Ms Hall completed an Audit Termination Letter and issued it to the EPA and the Council.
4. On 21 May 2018 the Council's Engineering Manager, Mr Andrew Heaven, telephoned Ms Hall in relation to her Audit Termination Letter and queried why she had issued it given that the Council had a completed SAS with her signature on it for the development. Ms Hall advised Mr Heaven that she did not prepare the SAS that was in the Council's possession.
5. Later that day Mr Heaven emailed Ms Hall requesting that she review the attached SAS and confirm whether she issued the SAS. Ms Hall responded to the email and confirmed that she did not prepare or issue the SAS, and moreover, that: 1. the SAS did not comply with Zoic's internal quality procedures nor the requirements outlined in the Guidelines; 2. the SAR, attached to the SAS, was not in Zoic's template; 3. the job number and nomenclature did not comply with Zoic's document control; 4. there was no SAS number on the SAS; 5. there was no survey plan for the land audited; and 6. there were incomplete sections on the SAS.
6. On 21 May 2018 the Council emailed Stockland's Development Manager, Mr Alby Peros, advising that it had received the Audit Termination Letter from Ms Hall.
7. Mr Peros then emailed a copy of the Audit Termination Letter to Ms McMullen requesting that she confirm that all the statutory requirements had been met in relation to the site audit. Ms McMullen's supervisor, Mr Hay, was copied into the email.
8. That evening at 6.27 pm Ms McMullen's former supervisor Mr Hay emailed her informing her of the Council's concerns in relation to the SAS, the allegations that the SAS was fraudulent, and to clarify when the SAS was received by Arcadis and subsequently given by Arcadis to the Council. Mr Hay again emailed Ms McMullen at 7.52 pm noting that he could not find the SVR or SAS on Arcadis's record system.

Ms McMullen Admits to the Commission of the Offence

1. On 22 May 2018 at 7.01 am, Ms McMullen responded by email to Mr Hay and Mr Ives: Greg and Cameron, We have never received any site validation reports or site audit statements for this project, either during the demolition or development stages of the project. During an extended moment of panic while preparing SC packages last year I made the decision to fraudulently prepare 2 documents, being a site validation report and site audit statement, and submitted these to Council. They are not located on the server. I understand that my actions will have severe repercussions for me personally and professionally and for Arcadis, and you must take whatever action you feel is necessary to deal with this situation. For what little it is worth, you have my sincerest apologies to you both for the situation I have created. Kate McMullen
2. Later that morning Ms McMullen met with Mr Ives; Mr Hay; Arcadis's Executive member, Sector Manager Director - Property, Energy, Resources, Mr Gareth Robbins; Arcadis's Business Leader - Urban Development and Regeneration, Mr Mitchel Bray; and Arcadis's General Counsel, Ms Belinda Ritchie. At the meeting Ms McMullen admitted the following: 1. that during her management of the development in December 2016, she had a disagreement with JBS&G over its refusal to validate material being imported to the premises. This ultimately resulted in communication with JBS&G ceasing and BMD Group, another contractor, carrying out the last stages of the remediation work rather than JBS&G. Due to the breakdown in the relationship she did not speak to JBS&G about JBS&G providing a SVR, and ultimately, JBS&G did not do so; 2. that on 25 August 2017, when she applied for subdivision certificates for the development, she had intended to "drown" the Council in documents so that it would not notice that a SAS was not submitted as part of the application; 3. that following the Council's deferment of the Subdivision Certificate Application, she created the SAS and SVR overnight by: 1. using a form from the internet, populating it and adding Ms Hall's signature, which she had obtained from Zoic's initial fee proposal; and 2. changing the original RAP provided by JBS&G to look like a final SVR; 1. that she did not tell anyone what she was doing; 2. that no one else knew about her conduct; 3. that she did not escalate the relationship breakdown with JBS&G to anyone else; and 4. that she did not know why she had committed the offence, other than she felt that she had no other option.

The EPA's Investigation

1. On 21 May 2018 the EPA received an email from Ms Hall advising that the SAS provided for the development had not been prepared or issued by her.
2. On 22 May 2018 the EPA's Principal Policy Officer, Mr Elvin Wong, was notified of the offence by his director, who requested that Mr Wong commence an investigation.
3. That day Mr Wong telephoned Ms Hall, who confirmed that she did not issue the SAS.
4. Shortly thereafter Mr Wong telephoned Mr Heaven. Mr Heaven raised his concerns about the potential risks of contamination at the premises arising from the site auditor not having completed the site audit.
5. On the following day, the EPA received a letter from Arcadis's CEO, Mr Greg Steele. The letter confirmed the invalidity of the SVR and SAS submitted to the Council stating that, "they were not prepared and issued by the relevant environmental consultant or accredited site auditor (JBS&G Environmental Pty Ltd and Zoic Environmental Pty Ltd respectively) or with the knowledge of Stockland and accordingly should not have been issued to Council."
6. Arcadis advised the EPA that: 1. after it became aware of the offence it undertook a review of the relevant development project file and inspected Ms McMullen's emails and laptop. It found the SAS located in a personal documents folder on her laptop; and 2. it did not have a written policy, standard operating procedure, or documented process, for the approval and submissions of documents to the Council for Subdivision Certificate Applications.

The Purpose of a SAS and the Regulatory Regime Under the CLM Act

1. The purpose of a statutory site audit is to secure compliance with the CLM Act in order to ensure that contaminated land is appropriately assessed and managed in conformity with the principles of ecologically sustainable development (ss 3(2)(c) and (d) and 47 of the CLM Act).
2. The purpose of a SAR is to critically review the information collected in relation to a site audit and to clearly set out the reasons for the findings contained in the relevant SAS (s 53B of the CLM Act).
3. By falsifying the SAS Ms McMullen misled the Council that the premises had been properly assessed under the CLM Act and that the premises were suitable for the development. There was a real risk that, failing legitimate assessment by the site auditor, the site had not been remediated in accordance with the RAP.
4. Although JBS&G had overseen a substantial component of the remediation works in 2015 as part of the complying development works, it was not involved in overseeing the final stages of the remediation works, which consisted of management of the following matters: 1. coal wash contaminant on the premises; 2. asbestos containing material in the form of a bonded fibre cement sheet on the premises; and 3. material from off-site being imported to the premises.
5. The commission of the offence meant that at the time that the subdivision certificates were issued for the development on 12 September 2017 to 30 October 2017: 1. JBS&G had not verified that the above matters had been appropriately remediated or dealt with; and 2. Ms Hall had not reviewed the remediation works and assessed the premises as being suitable for the development.

Psychological Evidence

1. Ms McMullen tendered a psychological assessment report prepared by Ms Alison Cullen dated 14 April 2020 ("psychological assessment"). In that assessment Ms Cullen relevantly opined as follows: 3. COLLATERAL INFORMATION 3.1 Laverty Pathology Iron Studies, collected 12 December 2018 Review of Ms McMullen's Laverty Pathology studies revealed that on 18 December 2017 (three [3] months following her offending conduct) her Ferritin (iron) levels were "8". The accepted range for Ferritin is (30-165). … 4. ACCOUNT … Ms McMullen had indicated feeling overworked and was subsequently asked why she then decided to create additional (fraudulent) documents. She responded "because by the time I did that, it was the least worst outcome". She claimed that she had "made the decision" the same night she downloaded the form and completed it, prior to submitting it the following day. Of clinical interest is that this denotes impulsive thinking without much opportunity to deliberate the consequences for her actions. Ms McMullen clarified that, in reference to worse outcomes, she meant "admitting failure", with respect to "achieving timeframes, managing the project and failing at the job basically". Ms McMullen also explained that having worked in a male dominant industry, some private companies (including Arcadis) were "weary" of recruiting females. She asserted that in failing in her role, she felt she was failing in representing the women in her profession. Upon further perusal of the Agreed Statement of Facts, Ms McMullen confirmed that she did not "recall sending two (2) emails" to Mr Radicevic within 30 minutes. Of clinical interest is that this was on 8 September 2017, the same day she officially committed the offence, by lodging the purported documents to Council. This lack of concentration and attention denotes that she was experiencing heightened stress/anxiety over what she had done. This is supported when she felt "relieved" after the offence was identified, as well as her prompt response to her former supervisor accepting "that my actions will have severe repercussions for me personally and professionally". Ms McMullen acknowledged that her actions have undermined the regulatory regime and appeared genuinely remorseful for same. She further recognised her need to accept responsibility for her misconduct. Finally, when asked what Ms McMullen felt she could have done to mitigate the offending behaviour, she initially indicated that if she had of accepted the role, offered to her in 2016, by Arcadis' competitor, she would have not been in the predicament she was, explaining that the other "project management team was bigger" whereby they worked on other projects with different people. She maintained that she has no prior history "of breaking rules" and "I do learn from my mistakes". Ms McMullen claimed that she was currently in a work environment that had comparatively "better quality control, gates/checkpoints are tighter, there's more structure, more support and a better (workplace) culture (insofar as) more collaboration and less competition", to prevent any further sense of desperation. 5. CONCLUDING REMARKS …The only predisposing factor identified, as potentially contributing to Ms McMullen's misconduct, include the symptoms commensurate with Level 1 Social Communication Autism Spectrum Disorder (formally known as Asperger's Syndrome), as evidenced in her interpersonal difficulties across contexts and time (namely: difficulties in relationships, restricted eye contact, social awkwardness…, literal interpretations…, and routine/narrowed interests). This assessment has further identified a trajectory of contributing factors that ultimately motivated Ms McMullen's offending, including: social communication/interpersonal deficits which hindered her capacity to repair the raptured relationship with JBS&G; lack of perceived support within the specific workplace culture; lack of documented processes to guide submissions; lethargy and fatigue associated with significant iron deficiencies coupled with being overworked; as well as her fear of failure… It is noteworthy that Ms McMullen's behaviour appears to have been impulsive, especially in light of the importance she seemingly places on work as being a large part of her identity (i.e. it appears that the accumulation of motivating factors, identified above, led to a sense of desperation which overrode consideration for the larger picture). It appears Ms McMullen is genuinely remorseful for her misconduct, as evidenced by the impact on her functioning immediately following the offending (i.e. submission of the documents to council and her forgetting that she had already sent the same email to the same person within the same hour). Her contrition is further supported by her having immediately accepted responsibility for her actions insofar as promptly responding to her manager and acknowledging the repercussions of her actions, and entering a plea of guilty.

The Purposes of Sentencing

1. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"): 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are 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.

Statutory Matters Required to be Taken into Account in Sentencing

1. The CLM Act sets out the matters which are to be taken into account in sentencing for offences committed under that Act. Section 97 of the CLM Act provides that: 97 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, a court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm already caused or likely to be caused by the commission of the offence, (b) the degree of risk that harm will be caused by the commission of the offence, (c) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (d) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence, (e) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (f) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant.
2. Subsections 21A(2) and (3) of the CSPA set out aggravating and mitigating factors that the Court must also consider. Having regard to the circumstances of this case, they are relevantly as follows: 21A Aggravating, mitigating and other factors in sentencing (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows - … (n) the offence was part of a planned or organised criminal activity… (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows - … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, … (i) the remorse shown by the offender for the offence, but only if - (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23)…

Objective Seriousness of the Offence

1. The objective seriousness of an offence establishes the upper and lower limits of the appropriate penalty to be imposed on a defendant, irrespective of any mitigating features or the objectives of punishment such as retribution and general and individual deterrence (Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [140] and Port Macquarie-Hastings Council v David Peter Waite (No 2) [2020] NSWLEC 60 at [38]).
2. In determining the objective seriousness or gravity of the offence, the relevant objective circumstances in this case include the nature of the offence; the maximum penalty; Ms McMullen's state of mind and her reasons for committing the offence; the extent of harm caused or likely to be caused to the environment or human health; the degree of risk of harm; the practical measures that were available to prevent the harm; the foreseeability of the risk of harm; and Ms McMullen's control over the causes giving rise to the offence.

The Nature of the Offence

1. The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, give an indication of the objective seriousness of the environmental offence committed (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[169], Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]; and Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143 at [119]).
2. In Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Preston J stated that (at [19]): 19 Offences which undermine the integrity of the regulatory system are objectively serious. Use of the criminal law ensures the credibility of the regulatory system.
3. The site auditor scheme and site auditor accreditation process are designed to ensure appropriate standards of auditing in the management of contaminated land. In Environment Protection Authority v Djura [2012] NSWLEC 122 Biscoe J described the purpose of the statutory regime as follows (at [50]): 50 There is a need to protect the integrity of the accredited site auditor scheme. The scheme is in place to ensure that risks to human health and the environment from contaminated land are properly identified and appropriate steps taken to remediate that land. If persons who are not appropriately qualified purport to carry out site audits, then the integrity of that system is undermined and there is a risk of harm through inappropriate use of land. The defendant's conduct undermined the integrity of the system.
4. In Environment Protection Authority v Aargus Pty Ltd [2013] NSWLEC 19 Craig J said, albeit in a different legislative context (at [54]. Affirmed in Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott [2016] NSWLEC 167; (2016) 221 LGERA 24 at [63]): 54 …the imposition of an offence for "false or misleading" information…is a mechanism designed to "strengthen the regulatory framework for environmental protection".
5. By falsifying the SAS and giving it to the Council, Ms McMullen deliberately misled the Council to believe that the premises had been properly assessed under the CLM Act and that it was suitable for development.

Maximum Penalty

1. The maximum penalty provided for an offence indicates Parliament's view as to the seriousness of that offence and provides a sentencing yardstick for the case before the Court (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [31]).
2. The maximum penalty that applies to an offence under s 103(1)(b) of the CLM Act for an individual is $250,000.

The Extent of Harm Caused or Likely to be Caused by the Commission of the Offence

1. The Court is required to take into account the extent of harm caused, or likely to be caused, by the commission of the offence (s 97(1)(a) of the CLM Act). "Harm" is defined in s 4 of the CLM Act as follows: harm means, in relation to the contamination of land, harm to human health or some other aspect of the environment (including any direct or indirect alteration of the environment that has the effect of degrading the environment), whether in, on or under the land or elsewhere.
2. It was agreed that the commission of the offence did not cause any actual or likely harm to the environment for the purposes of s 97(1)(a) of the CLM Act.
3. Nevertheless, it has been recognised that harm can result from conduct which undermines a regulatory scheme that seeks to prevent environmental damage (Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 at [23] and Environment Protection Authority v Albiston [2020] NSWLEC 80 at [85]).
4. The parties agreed that the commission of the offence compromised the integrity of the regulatory regime established by the enactment of the CLM Act. The offence harmed the regulatory objectives in that Act (set out above at [6]) by impairing the ability of the regulatory authorities to maintain appropriate standards of auditing and to manage contaminated land in accordance with principles of ecologically sustainable development, and diminished the certainty that the scheme was designed to promote.
5. While accepting that harm was caused by her to the CLM Act regime, Ms McMullen nonetheless submitted that such harm was an inherent component of the s 103(1) offence, and therefore, was not a particular aggravating feature of the offence.
6. In Mansour v R [2011] NSWCCA 28 Price J stated that (at [46]. Applied in Environment Protection Authority v Orica Australia Pty Ltd (the Jackhammer Incident) [2014] NSWLEC 105 at [108]): 46 It is well established that a factor should not be taken into account as an aggravating factor under s 21A(2), if it is either an element of the offence for which the offender is being sentenced or an inherent characteristic of that kind of offence: see for example Elyard v Regina [2006] NSWCCA 43; Ward v R [2007] NSWCCA 22; (2007) 168 A Crim R 545. A factor, which is an inherent characteristic of the kind of offence for which the offender is being sentenced, cannot be taken into account as an aggravating factor under s 21A(2), unless its nature or extent in the particular case is unusual. As Simpson J observed in Regina v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218 at [37]: ... But this principle does not mean that the degree to which the "inherent characteristic" exists in relation to a particular offence may not, where it exceeds the norm, be taken into account as an aggravating factor.

The Degree of Risk that Harm Will be Caused by the Commission of the Offence

1. Section 97(1)(b) of the CLM Act provides that the Court must take into account the degree of risk that harm will be caused by the commission of the offence. "Risk" is defined in s 4 of that Act as "includes a long-term risk".
2. At the time that subdivision certificates were issued by the Council for the premises, between four and 52 days after the commission of the offence, the management and remediation of coal wash, asbestos, and imported materials, had neither been verified by JBS&G in accordance with the RAP nor reviewed by a site auditor.
3. The EPA accordingly submitted that there was a risk of harm caused by the commission of the offence due to the possibility that these contaminants had not been appropriately remediated and that the site was unsuitable for residential development. It submitted that although low, its existence was significant in determining the imposition of an appropriate penalty because of the obvious importance of the remediation of contaminated land for human health, particularly where the land was to be used for residential purposes.
4. This is consistent with the Court's observations in Djura (at [49]): 49 Site audits may be used to determine the extent of contamination of land, whether the land is suitable for specific uses and what remediation is necessary. The remediation and use of contaminated land has obvious importance for human health, in particular where, for example, it is proposed to use the land for residential purposes.
5. Ms McMullen accepted that there was a risk that the site had not been remediated in accordance with the RAP, but emphasised that this risk was low and that the potential for harm was therefore limited. She argued that the certification in the SAS that the premises were suitable for low density residential subdivision was ultimately correct. Furthermore, none of the final stages of remediation suggested that the site was unsuitable for the proposed development. In addition, the fact that the bulk of the remediation works had been undertaken pursuant to a complying development certificate indicated that the risk that the premises had not been properly remediated was low.
6. In my view, the commission of the offence created a low degree of risk of harm. Although JBS&G had not verified that the coal wash contaminant, asbestos material, and imported material, had been dealt with according to the RAP, and there has been no review of the premises by a site auditor, I accept that these matters were adequately dealt with.

Ms McMullen's State of Mind in the Commission of the Offence

1. Offences committed deliberately are more serious than offences committed by inadvertence or error (Rawson at [98] and Environment Protection Authority v Hughes [2019] NSWLEC 108 at [79]).
2. As the EPA submitted, Ms McMullen committed the offence knowingly. She clearly knew that she was doing the wrong thing by providing a document containing false information and containing a forged signature. By Ms McMullen's own admission in her email of 22 May 2018, she "made the decision to fraudulently prepare 2 documents, being a site validation report and site audit statement, and submitted these to Council."
3. Ms McMullen accepted that the offence was committed deliberately and knowingly, rather than recklessly, and that as a general proposition cases of actual knowledge as to the falsity of information provided are objectively more serious. However, she submitted that an offence committed under s 103(1) of the CLM Act can involve a wide range of knowledge. For example, it included circumstances wherein a false statement was given with actual knowledge that the land was severely contaminated, which was not the present case.
4. While it is certainly the case that some deliberately committed offences are objectively more serious than others depending on the knowledge of the defendant at the time of the commission of the offence, the actions of Ms McMullen remain objectively serious to a significant degree. This is because Ms McMullen not only provided information that she knew to be false or misleading, by forging Ms Hall's signature she appropriated the authority of a third party.
5. The Court may not have regard to an aggravating factor in sentencing if it is also an element of the offence. To do so would be to double count that factor and unfairly increase punishment (s 21A(2) of the CSPA Act and Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [267]).
6. Because intention is an element of the offence under s 103(1) of the CLM Act, I cannot take into account the state of mind of Ms McMullen in committing the offence as an aggravating factor. Rather, it is considered as part of the overall assessment of the objective culpability of Ms McMullen.

Ms McMullen's Reasons for Committing the Offence

1. The criminality involved in the commission of an offence is measured not only by the seriousness of what occurred, but also by reference to the reasons for its occurrence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366; Bentley at [237]).
2. If an offence is committed for financial gain, this will be an aggravating factor under s 21A(2)(o) of the CSPA.
3. In her affidavit affirmed on 28 April 2020, Ms McMullen relevantly deposed that: 3 I committed the offence during a period of deep stress and anxiety relating to my then role as a project manager at Arcadis. I felt unsupported in my role and lacking in the personal skills required to resolve the situation with the other project consultants. I was under a lot of pressure and working long hours for a long period of time, which clouded my thinking and resulted in impacts on my personal life as well as my professional actions… 4 As a result of the stress I was feeling at the time and my then undiagnosed iron deficiency, I acted in a manner that is inconsistent with how I would like people in my life to view me.
4. I agree with the parties that the offence was not committed for financial gain. Rather, the offence was committed due to stress and a fear of failure motivated by the importance Ms McMullen placed on her work and her ability to perform her role successfully.

Whether the Offence was Planned or Premeditated

1. Section 21A(2)(n) of the CSPA provides that the Court must take into account as an aggravating factor whether the offence was part of a planned or organised criminal activity. In Environment Protection Authority v Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114 Preston CJ held that (at [120]): 120 A large measure of premeditation or planning will make an offence more serious than if it is committed on the spur of the moment: R v Morabito (1992) 62 A Crim R 82 at 86; R v Dempsey (2002) 127 A Crim R 113 at [10].
2. The meaning and application of s 21A(2)(n) was discussed extensively in Hewitt v The Queen [2007] NSWCCA 353; (2007) 180 A Crim R 306 (at [25]): 25 The provisions of s 21A(2)(n) have been the subject of consideration on a number of occasions. The following propositions may be derived from relevant decisions: (a) The wording of the provision conveys more than simply that the offence was planned: Fahs v The Queen [2007] NSWCCA 26 at [12] per Howie J (Simpson and Buddin JJ agreeing). His Honour further observed: ...The fact that there was a "level of planning in the offences" as found by the judge does not necessarily give rise to the aggravating factor in s 21A(2)(n). In Wickham [2004] NSWCCA 193, the Court stressed the importance of making findings under s 21A in accordance with the words of the provision... (b) In a case where an offender has been charged with multiple drug trafficking offences, a conclusion may be drawn that it is part of a planned or organised criminal activity. In Fahs, Howie J observed: ... In this case, it would have been open to the judge to find that such a factor existed in respect of each of the offences because it was clear that the applicant was committing the crimes as part of a drug trafficking organisation capable of supplying large amounts of different types of drugs to order. (c) The expression "organised criminal activity" may embrace the activities of several people or it may involve activity carried out by one person. In NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 at [72], Campbell J observed: In deciding whether the aggravating factor in para (n) is present, there is first a question of construction about what is meant by "organised criminal activity". In one sense, "organised criminal activity" involves the activities of several people that are planned or co-ordinated to carry out the crime. That is the sense involved in media discussion about whether organised crime is on the increase. In another sense, however, it can include activity that is carried out by just one person, concerning which that person engages in planning or preparation. His Honour also observed (at [74] and [75]): ... as a matter of ordinary English, to think that "planned criminal activity" has any necessary element in it of there being more than one person involved ... For these reasons, I conclude that the factor in para (n) can be present if there is planned organised criminal activity engaged in by just one person. (d) Offences committed over a period of time may involve sufficient repetition and system to lead to the conclusion that they were organised within the meaning of para (n): NCR Australia at [76]. (e) In determining whether the facts give rise to "planning" as an aggravating factor, it is necessary to consider and refer to both the evidence that may affirm, and the evidence that may negative the drawing of such a conclusion. This Court in R v Reynolds [2004] NSWCCA 51, in determining on the facts of that case that evidence of planning was very limited but that it did exist and was of greater significance than that considered by the sentencing judge, observed at [39]: It may be that, had he considered the evidence in detail, his Honour would nevertheless have reached a factual finding similar to that which he did. The error lies in his failing to make reference to evidence pointing to a contrary conclusion. In particular, the list of businesses was, in my view, quite strong evidence of a degree of planning. The absence of a disguise is only one factor pointing in the other direction, or pointing to poor, rather than no, planning. (f) Planning that is "somewhat haphazard, clumsy in many respects and bound to fail" may nevertheless be sufficient so as to enliven the application of s 21A(2)(n): R v Willard [2005] NSWSC 402 at [32] per Whealy J.

Practical Measures That May be Taken to Prevent, Control, Abate or Mitigate the Harm

1. Section 97(1)(c) of the CLM Act requires the Court to take into consideration the practical measures that may be taken to prevent, control, abate or mitigate the harm caused or likely to be caused by the commission of the offence. Ms McMullen could have taken the following practical measures to mitigate the risk that harm would be caused by the commission of the offence: 1. sought medical assistance in relation to her feelings of lethargy and fatigue; 2. escalated her deteriorating relationship with JBS&G to her supervisor; 3. sought assistance from her supervisor to re-establish the relationship with JBS&G in order to obtain necessary advice and reports on the final stages of remediation at the premises; and 4. obtained a legitimate SVR and SAS for the development.
2. Further, as the EPA submitted, immediately after committing the offence, Ms McMullen could have notified her supervisor of her actions in order to mitigate any potential for harm. This would have resulted in the risk of harm being addressed immediately rather than eight months later, after the subdivision certificates had been issued.
3. Ms McMullen argued that regard had to be given to her state of mind insofar as she felt that she had no choice and that lodging the false SAS was the "least worst outcome". In my view, her subjective state of mind is not relevant in this regard. There were measures that Ms McMullen could have undertaken other than committing the offence. The evidence does not establish that she was incapable of taking the steps referred to above.

Reasonable Foreseeability of Harm

1. Section 97(1)(d) of the CLM Act requires the Court to consider the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence.
2. It was not a matter of dispute that, given her position and prior experience, Ms McMullen could have reasonably foreseen the harm that the commission of the offence would cause to the CLM Act regime as discussed above.

Ms McMullen's Control Over the Causes of the Offence

1. The Court must consider the extent to which the person who committed the offence had control over the causes that gave rise to the offence (s 97(1)(e) of the CLM Act).
2. Ms McMullen had complete control over the acts that gave rise to the commission of the offence.

Whether Ms McMullen was Complying with Orders from an Employer or Supervising Employee in Committing the Offence

1. It was not a matter of controversy that Ms McMullen acting autonomously and did not comply with any orders from anyone in the commission of the offence.

Conclusion on Objective Seriousness of the Offence

1. The EPA submitted that the offence should be regarded as within the middle range of objective seriousness.
2. Ms McMullen, on the other hand, contended that the offence should be characterised as well below the mid-range of objective seriousness, albeit not at the bottom end of the spectrum given that it was committed knowingly.
3. Having regard to the factors discussed, I accept the submission of the EPA and I find that the offence should be regarded as falling within the middle range of objective seriousness.

Subjective Circumstances of Ms McMullen

1. Within the limits set by the objective seriousness of the offence, the Court must take into consideration the subjective circumstances of Ms McMullen when determining the appropriate penalty (Markarian at [37], [39], [66] and [73] and GrainCorp at [116] and [190]).

Failure to Heed Advice or Warnings

1. In Rawson Preston J held that (at [99]): 99 A failure to heed advice or warnings, including from regulatory authorities, will be an aggravating feature: R & F Howe and Sons (Engineers) Ltd [1999] 2 All ER 249 at [43]; R v Yorkshire Water Services Ltd [2002] 2 Cr App R (S) 13 at [17]; R v Bata Industries Ltd (1992) 9 OR (3d) 329 at [192]; Garrett v Williams at [110], [111].
2. Ms McMullen was advised by the Council in letters dated 18 and 21 July and 1 September 2017 that a SAS had to be prepared pursuant to condition 154 of the consent before subdivision certificates could be issued.
3. The EPA initially submitted that Ms McMullen had failed to heed advice or warnings in the correspondence referred to above and that this constituted an aggravating factor.
4. Although this submission was ultimately withdrawn by the EPA, it should be observed that paragraph [99] of Rawson must be read in context, particularly in conjunction with paragraph [100]: 100 I find, beyond reasonable doubt, that Mr Rawson deliberately cut and poisoned the plants the subject of the offences. I do not find, beyond reasonable doubt, that Mr Rawson knew, before he cut and poisoned each plant, that it was a threatened species or protected by law. However, I do find, beyond reasonable doubt, that Mr Rawson received information and advice that some plants he had cut might have been threatened species and their removal might have been contrary to law, and Mr Rawson acted in reckless disregard of this information and advice in cutting and poisoning other plants. There are five reasons for my finding that Mr Rawson did not know that the plants he cut and poisoned were protected threatened species or protected by law, before he cut and poisoned them.
5. In Rawson, Mr Rawson was charged with seven offences of harming threatened species contrary to s 118A(2) of the National Parks and Wildlife Act 1974. During this period, he was given warnings by ecologists that some of the species he had removed were threatened species, and that he could not lawfully remove trees from the subject property. Mr Rawson was thereby put on notice that his actions may have been unlawful, but he continued to pick the threatened species regardless. In other words, Mr Rawson was warned about the very subject-matter constituting the actus reus of the offence. This is very different to the warnings given to Ms McMullen by the Council in the present case. The Council's letters contained general statements as to the requirements of the consent and the CLM Act which Ms McMullen was likely to already be aware of. They were not warnings or advice concerning the prohibition against giving false or misleading information.

Early Guilty Plea

1. Ms McMullen entered a guilty plea at the earliest opportunity and is entitled to the full discount of 25% (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]).

Contrition and Remorse

1. Pursuant to s 21A(3)(i) of the CSPA, remorse will only be a mitigating factor if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)
2. In Waste Recycling and Processing Corporation Preston J stated (at [203]): 203 Contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives…
3. His Honour went on to give illustrations of how contrition and remorse can be demonstrated in a practical sense (at [204], [210], [212] and [214]).
4. In her affidavit, Ms McMullen stated that: I understand the seriousness of the offence I have committed…and accept responsibility for my actions. I feel a huge deal of shame and remorse for my actions undertaken in this offence.
5. In her email dated 22 May 2018, wherein she admitted to the commission of the offence, Ms McMullen said: I understand that my actions will have severe repercussions for me personally and professionally and for Arcadis, and you must take whatever action you feel is necessary to deal with this situation. For what little it is worth, you have my sincerest apologies to you both for the situation I have created.
6. Ms McMullen tendered a character reference from Mr Mark Thorogood in which he stated that he "was taken by the levels of remorse for her action".
7. Finally, in the psychological assessment, Ms Cullen observed that Ms McMullen appeared to be genuinely remorseful and had accepted responsibility for her actions.
8. Against these accepted expressions of contrition is the fact that Ms McMullen did not report the commission of the offence to anyone, or take any action to rectify the harm caused, or likely to be caused, by the commission of the offence until the Council discovered the commission of the offence almost eight months later.
9. Ms McMullen has also not disclosed her plea of guilty to the offence to her current employer. While her plea suggests a level of acceptance of responsibility for her actions, Ms McMullen's failure to disclose the plea, which is directly relevant to her current employment, and her failure to ever voluntarily report the commission of the offence, derogate from her genuine expressions of remorse.

No Prior Convictions

1. Ms McMullen has no prior convictions.

Good Character

1. As stated above, Ms McMullen tendered a character reference from Mr Thorogood. Mr Thorogood stated that Ms McMullen had disclosed to him the details of the offence. He said that he had known Ms McMullen for over 22 years and that she "has been shown to be a respected an [sic] honourable member of the engineering community".
2. I find that Ms McMullen is, but for the commission of the offence, of good character.

Ms McMullen's Assistance to Authorities

1. The Court is required to take into account whether Ms McMullen provided assistance to the authorities in the investigation and prosecution of the offence (ss 21A(3)(m) and 23 of the CSPA). Ms McMullen entered a plea of guilty at the earliest opportunity and assisted in the preparation of the statement of agreed facts tendered in these proceedings. I take into account Ms McMullen's assistance to the EPA in this regard.

Extra-Curial Punishment

1. The Court can take into account extra-curial punishment suffered as a result of the commission of an offence (R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 at [62]-[63]; Alameddine v The Queen [2006] NSWCCA 317 at [25]-[27]; Cessnock City Council v Quintaz [2010] NSWLEC 3; (2010) 172 LGERA 52 at [115] and Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 at [189]-[194]).
2. There are conflicting authorities on the question of whether the loss of employment as a result of the commission of an offence will constitute extra-curial punishment. In Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267, McHugh J opined that it was legitimate to do so (at [54], citations omitted): 54 No doubt it is legitimate to take into account many matters that are personal to the offender and that will have consequences on that person's future life. It is legitimate, for example, to take into account that the conviction will result in the offender losing his or her employment or profession or that he or she will forfeit benefits such as superannuation. But I am not convinced at the moment that public opprobrium is to be treated as equivalent to the loss of a job or similar personal or financial loss.
3. However, in Kearsley v R [2017] NSWCCA 28; (2017) 265 A Crim R 233 the Court of Appeal disagreed, holding that (at [76]-[77]): 76 …The concept of extra-curial punishment, for which an accused person may, in an appropriate case, be entitled to some consideration on sentence, cannot subsist in or arise from what might be thought of as the ordinary or natural consequences of a conviction. In the present case, Mr Kearsley clearly had a great deal to lose from a conviction for these offences. It is not in dispute that his successful career and good standing in the community have been irrevocably lost. The consequences for him are clearly devastating. 77 However, those consequences are not the superadded or unexpected result of something that is not reasonably associated with the fact of his conviction and sentence. The very expression "extra-curial" anticipates the existence or the possibility of some aspect of the imposition of a sentence that does not flow from the due administration of the judicial process.
4. Upon its discovery, the commission of the offence led to Ms McMullen's immediate loss of employment at Arcadis. She stated in her affidavit that: 6 In my professional life, [the offence] will have huge and lasting impacts on my current employment and capacity to secure future employment…many roles now require a criminal background check to be completed as part of the recruitment process, with any form of fraudulent activity viewed as unacceptable behaviour and resultant rejection of any employment application. A guilty verdict may result in me being unable to secure employment in my chosen profession. The outcome of the court proceedings will also have a huge economic impact on my personal finances.

Delay

1. Ms McMullen submitted in her written submissions that the Court should take into account as a subjective factor in her favour the delay by the EPA in charging her. She relied on the following chronology to demonstrate this contention: 1. that she made full and frank admissions to all elements of the subject offence in her email to her (then) superiors at Arcadis on 22 May 2018; 2. that the EPA investigation commenced on 22 May 2018. Arcadis provided the EPA with written notification of the invalid SAS and the general circumstances surrounding its illegitimate lodgement with the Council on 23 May 2018; and 3. that she was charged, and that these proceedings were commenced by summons on 19 December 2019, approximately 18 months after her confession.
2. At the hearing, however, Ms McMullen conceded that a so-called 'delay' of 18 months was not sufficient for the Court to take this factor into consideration. I agree.

General and Specific Deterrence

1. One of the purposes of imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences. This purpose is enshrined in s 3A(b) of the CSPA (Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [188]-[190] and [192]).
2. General deterrence is vital "to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences" (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188] and Axer at 359).
3. The Court should impose a sentence that operates "as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed" (Rae at [8]-[9]). In relation to a not dissimilar offence under the Protection of the Environment Operations Act 1995 ("POEOA") of providing information knowing that it was false or misleading in a material respect, the Court in Great Lakes Council v Mood (No 2) [2008] NSWLEC 68 relevantly observed that (at [74]): 74 However, there can be no doubt that the sentencing objective of "general deterrence" is very important in a matter such as this, regardless of the personal circumstances of the Defendant. The obligations on citizens to take notices under s.193(1) seriously, and respond to them completely and frankly, without providing "false or misleading" information, and generally to assist regulatory and investigative bodies to the best of one's ability, are serious public duties.
4. In Environment Protection Authority v Alcobell Pty Ltd, Environment Protection Authority v Campbell [2015] NSWLEC 123, Pain J found that where there are concerns about the mental health of a defendant, other factors arise in considering the need for general deterrence (at [93]-[94]). Citing Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 (at [177] and the authorities therein) Pain J held that (at [93]): 1. where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence; and 2. an offender's mental health may have the consequence that the offender is an inappropriate vehicle for general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed.

Retribution and Denunciation

1. Finally, it should be noted that the purposes of retribution and denunciation are also relevant. In particular, the Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offence and making Ms McMullen accountable for her actions.

The Offence Could have been Prosecuted in the Local Court

1. In Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 the Court of Criminal Appeal held that this Court must take into account whether the offence could have been prosecuted in the Local Court where the maximum applicable monetary penalty is lower (at [92]). This case could have been brought in the Local Court and I have taken this factor into account.

Consistency in Sentencing

1. The Court must have regard to comparable cases from which guidance can be obtained to ensure that the penalty imposed is consistent with a pattern of sentencing for like offences. Of course, care must be taken when comparing cases as there may be many divergent facts and circumstances, and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion (Axer at 365 and Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35]).
2. Djura is the only case concerning an offence against the CLM Act. That decision concerned offences of strict liability against ss 57(1) and 48(1)(a) of the CLM Act. The defendant was the sole shareholder and director of a company which provided hazardous material consultancy services. He was not, and never had been, an accredited site auditor under the CLM Act. The defendant purported to carry out a statutory site audit of potentially contaminated land and signed a site audit statement in which he falsely claimed to be an accredited site auditor. There was no evidence of actual harm to the environment, but the Court found that there was harm to the regulatory framework, and a risk of harm through the inappropriate use of land. There were practical measures that the defendant could have taken to avoid committing the offence, and he had control over the causes that gave rise to the commission of the offence. He had no prior convictions, was found to be a person of good character, had expressed remorse, and had accepted responsibility for his actions. The maximum penalty for each offence was $66,000 and their commission was found to be in the low range of objective seriousness. The totality principle was applied. The appropriate penalty for each offence was found to be $5,000, which was discounted by 25% for his early guilty plea to $3,750. The defendant was ordered to pay the prosecutor's costs of approximately $12,000.
3. Djura is the only prosecution to date under the CLM Act. However, the offence in that case was one of strict liability attracting a lower maximum penalty. The Court did not accept that the defendant was "not cognisant that he was committing offences" but considered that the defendant's judgment was "clouded" by a cognitive function impairment (at [44]). This distinguishes Djura from the present case.
4. The case of Endacott involved charges against a corporate defendant and an individual defendant under ss 211(2) and 144AA(2) of the POEOA. The company, Complete Asbestos Removal Pty Ltd ("CAR"), provided records to the EPA in response to a notice to provide information and/or records under s 191(1) of the POEOA. The 11 records consisted of Bonded Asbestos Clearance Certificates and bore a signature from Mr Stephen Parsons that had been forged by Mr Endacott, the sole director and secretary of CAR and the individual defendant in the proceedings. The information was initially supplied to a company which had contracted CAR to demolish houses and dispose of demolition waste on 12 properties. Mr Endacott was charged with three offences under s 144AA(2) of the POEOA for providing false weighbridge dockets relating to the disposal of asbestos waste, the provision of false bonded asbestos clearance certificates for numerous properties, and the provision of a false asbestos removal clearance report and bonded asbestos clearance certificate in relation to a particular property ("the Harpley property"). The information was subsequently provided to the EPA. The Harpley property was different from the other properties because the site had been vandalised, including by fire, which increased the risk of dangerous friable asbestos and meant that the property required remediation work. The maximum penalty for each of the offences committed by Mr Endacott was $240,000 or imprisonment for 18 months, or both.

Costs

1. Ms McMullen has agreed to pay the EPA's legal costs in the agreed sum of $35,000, with this amount to be paid direct to the EPA in monthly instalments of $1,458.33 over a period of 24 months, with the first instalment to be paid within 28 days of the date of the Court's orders.
2. This amount must be taken into account in determining the quantum of monetary penalty to be imposed (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and [88], Harrison at [100] and Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123]).
3. However, an order for costs does not result in a reduction in any monetary penalty imposed to an amount lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50] and Environment Protection Authority v Edward Gilder [2018] NSWLEC 119 at [189]).

Appropriate Sentence

1. Having regard to the objective seriousness of the offence and the applicable subjective factors, together with the penalties imposed in the relevant comparable cases, I consider that the appropriate penalty to be imposed for Ms McMullen's contravention is a fine of $40,000. This figure must be discounted by 25% for the utilitarian value of her plea of guilty.
2. This results in a fine of $30,000.

Orders

1. The orders of the Court are, therefore, as follows: 1. the defendant is convicted as charged; 2. the defendant is fined the sum of $30,000; 3. pursuant to s 257B of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor's legal costs agreed in the sum of $35,000. This sum is to be paid direct to the Environment Protection Authority in monthly instalments of $1,458.33 over a period of 24 months, with the first instalment to be paid within 28 days of the date of these orders; and 4. the exhibits are to be returned.

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: 10 July 2020