Environment Protection Authority v Metropolitan Collieries Pty Ltd [2025] NSWLEC 23

Category: Sentence

Parties: Environment Protection Authority (Prosecutor)
Metropolitan Collieries Pty Ltd (ACN 003 135 635) (Defendant)

Representation: Counsel:
H El-Hage SC with S Erian (Prosecutor)
T Howard SC with C R Ireland (Defendant)
Solicitors:
Litigation Branch, Environment Protection Authority (Prosecutor)
McCullough Robertson Lawyers (Defendant)

File Number(s): 2023/00283630; 2023/00283631; 2023/00283632

Publication restriction: Nil

Judgment

Nature of proceedings and outcome

1. Metropolitan Collieries Pty Ltd (‘defendant’) has pleaded guilty on 15 March 2024 to three offences under the Protection of the Environment Operations Act 1997 (NSW) (‘POEO Act’).

2. Two of the offences relate to pollution of waters with water containing sediment and coal fines against s 120(1) of the POEO Act (collectively, ‘Water Pollution Offences’), while the other offence involves a breach of a condition of an environment protection licence against s 64(1) (‘Licence Breach Offence’). The offences occurred at the defendant’s coal mining operation comprising an underground coal mine near Helensburgh in NSW.

3. The Water Pollution Offences took place in September and October 2022 (‘September Water Pollution Offence’ and ‘October Water Pollution Offence’, respectively), where the defendant polluted the waters in Camp Gully Creek and certain adjacent rivers and streams. The Licence Breach Offence took place from July to October 2022, where the defendant breached condition O2.1(a) of Environment Protection Licence No. 767 (‘EPL’), by failing to maintain the “Turkeys Nest Dam” at the defendant’s premises in a proper and efficient condition so as to enable Turkeys Nest Dam to store surface water and/or wastewater without discharging it into the environment.

4. The relevant maximum penalty for a corporation for each offence at the time of the offending was $1 million. A sentence hearing has been held and the Court’s task is to determine the appropriate sentence for the defendant’s commission of the three offences.

5. For the reasons that follow, I have determined that the defendant should be convicted and fined the total sum of $196,560 for the Water Pollution Offences and the Licence Breach Offence.

Background

6. As the salient background facts are detailed in two statements of agreed facts each filed on 15 November 2024, the following summary is uncontroversial. Further facts will be noted later in this judgment in my consideration of the parties’ submissions.

7. During the period between 13 July 2022 and 9 October 2022 when the three offences were committed, the defendant was carrying out a coal mining operation on its premises at the “Metropolitan Colliery”, a small underground coal mine located at Parkes Street, Helensburgh (‘Premises’). The mining operation is located near the Royal National Park and the Garawarra State Conservation Area. Camp Gully Creek is a waterway that runs adjacent to the Premises which flows into the Hacking River.

8. The Premises were regulated by the EPL, which authorised the defendant to carry out coal works and mining for coal at the Premises.

9. The defendant has surface water facilities at the Premises which are used to capture, store and process surface water runoff (or “stormwater”) and mine water generated in the course of day-to-day mining operations. The surface water facilities include Turkeys Nest Dam, a large water storage basin located in the southeast corner of the Premises which is used to store surface water runoff and water from the mine undertakings. At the time of the offending conduct, the water storage capacity in Turkeys Nest Dam, which was divided into two separate basins, was approximately nine megalitres. The surface water facilities also include the “Water Treatment Plant”, the sediment pond, a concrete sump known as the “Taj Mahal”, and associated plant and equipment.

10. Due to the nature of the activities undertaken on the Premises, surface water runoff and mine water is often laden with silt and sediment including coal fines (collectively, ‘sediment’). The sediment accumulates in Turkeys Nest Dam and the sediment pond, reducing the available water storage capacity and reducing the time and space for sediment in the water to fall out of suspension before it can be transferred by an electric submersible pump (‘Turkeys Nest Pump’) to be processed by the Water Treatment Plant. Turkeys Nest Dam and the sediment pond must be periodically cleansed of sediment to ensure that there is adequate water storage capacity (or freeboard) and to maintain the proper functioning of the system at the Premises. The sediment can also cause blockages in associated drainage channels and pumping equipment.

11. The Water Treatment Plant operates to remove sediment from, and correct the pH level in, water used in the course of activities undertaken or captured at the Premises. Treated water is either re-used at the Premises or discharged off-site to Camp Gully Creek via licensed discharge points (sometimes referred to as “spillway” or “LDP”). The Water Treatment Plant has a maximum input flow rate of 40 litres per second.

12. Before June 2019, the coal handling and preparation plant (‘CHPP’) at the Premises was managed by a third-party contractor SADA Pty Ltd. In June 2019, the defendant took over the management of the CHPP. At that time, more than half and potentially up to 70 percent of the storage volume of Turkeys Nest Dam was filled with coal sediment and other solids.

13. From June 2019, the defendant undertook steps to remove accumulated sediment from Turkeys Nest Dam including removal of sediment using a long-reach excavator; placing the excavated sediment into a drying cell for several months; and when dried, transferring it to the CHPP for processing. However, there were limitations with the processes adopted and, at the time of the offending, the defendant did not have a benchmark for acceptable levels of accumulated sediment in Turkeys Nest Dam, nor did the defendant have guidelines for managing sediment at the Premises.

14. Since late August 2019, the defendant was aware that more than half of the storage capacity of Turkeys Nest Dam consisted of sediment and required desilting. In late 2019 through to mid-2020, the defendant commenced exploring strategies for cleaning sediment out of Turkeys Nest Dam, however, it retained a consistently high volume of sediment until late 2022 when the Water Pollution Offences took place.

15. Following an inspection at the Premises on 2 March 2021, on or about 8 May 2021, the defendant received an independent environmental audit report which concluded that the sediment pond “was silted up and no longer provides adequate freeboard to prevent sediment discharges.”

16. In about July 2021, the defendant contacted a third-party contractor about dredging and dewatering sediment in Turkeys Nest Dam. The was unable to be undertaken as the crew that operated the proposed dredging plant were in Queensland and were prevented from travelling to NSW due to State border closures related to the COVID-19 pandemic. This resulted in Turkeys Nest Dam becoming full of coal sediment by about October 2021.

17. In about November 2021, the defendant engaged another third-party contractor and on 13 December 2021, work commenced to pump sediment out of Turkeys Nest Dam and transfer it directly to the CHPP.

18. In 2022, a total of 3,147mm of rain was recorded at the Premises. The year was significantly wetter than the average.

19. On 18 January 2022, an officer of the Environment Protection Authority (‘EPA’), Andrew Couldridge, conducted an inspection at the Premises and observed that the coal sediment in Turkeys Nest Dam had almost reached the top of the basin. On 29 April 2022, at a further inspection, Mr Couldridge observed that sediment in Turkeys Nest Dam covered most of the surface area of the basin and had reached the same height as the LDP 8 spillway.

20. On 16 June 2022, EPA officers again attended the Premises and observed that Turkeys Nest Dam and the sediment pond contained large quantities of sediment.

21. On 24 June 2022, the defendant’s representative provided the EPA with a schedule that contained a timeline for sediment removal from Turkeys Nest Dam estimating that all sediment was expected to be removed from the sediment pond by about 20 September 2022 and from Turkeys Nest Dam by about 29 December 2022.

22. By 13 July 2022, the beginning of the charge period for the Licence Breach Offence, Mr Couldridge observed Turkeys Nest Dam was largely full of sediment, and there was little freeboard to capture and store surface water runoff and mine water.

September 2022 discharge

23. On 6 September 2022 at around 12.55pm, a member of the public was travelling in the area around Camp Gully Creek approximately 50m upstream from its confluence with the Hacking River and observed polluted discharge from the Premises in the water and on the banks of the creek (‘September 2022 discharge event’). This represented the beginning of the charge period for the September Water Pollution Offence.

24. Later on 6 September 2022 at around 5.45pm, an EPA officer notified the defendant’s representative nominated under the EPL, Stephen Love, about the reported discharge in Camp Gully Creek. Mr Love dismissed the report as he believed the polluted discharge was from a previous discharge event at the Premises and which the defendant was already investigating.

25. On 7 September 2022 at around 12.25pm, the member of the public again attended the confluence of Camp Gully Creek and the Hacking River and observed the water was as bad, if not worse than the previous day, observing thick black deposits floating in the water, oil slicks on the water surface, and black sediment coating the rocks along the banks of the Hacking River. Members of a walking group at around 1.20pm also observed and photographed the discoloured water in the Hacking River downstream from the confluence with Camp Gully Creek.

26. On 8 September 2022 at about 10.27am, after receiving a telephone call from the EPA, the defendant’s staff mobilised to Turkeys Nest Dam and Camp Gully Creek. They observed the material in Turkeys Nest Dam overtopping LDP 8 and discharging into Camp Gully Creek at a rate of approximately 10 litres per second. They found that the inlet to the Turkeys Nest Pump had become blocked with sediment, which prevented the pump from transferring water to the Water Treatment Plant. The water level in Turkeys Nest Dam rose and overtopped the basin, discharging through LDP 8. The defendant’s staff backflushed the Turkeys Nest Pump to restore normal flow.

27. The discharge of water and sediment from Turkeys Nest Dam into Camp Gully Creek ceased at approximately 12.00pm on 8 September 2022. This marked the end of the charge period for the September Water Pollution Offence.

28. The defendant’s staff were unaware that the material in Turkeys Nest Dam was discharging into Camp Gully Creek or that the Turkeys Nest Pump had stopped working until the EPA notified them of reported pollution in Camp Gully Creek.

29. It is not known how much water and sediment from Turkeys Nest Dam was discharged into Camp Gully Creek before the overtopping ceased.

30. At all material times, there was no instrumentation installed to monitor the water level in Turkeys Nest Dam or to alert the defendant’s staff if there was a discharge through LDP 8. The defendant’s staff relied on visual inspections to estimate the water levels in Turkeys Nest Dam.

31. On 8 September 2022 at around 12.30pm, Mr Couldridge attended the Premises and observed that both Turkeys Nest Dam and the sediment pond were full of sediment. He visited Camp Gully Creek where he observed the water was turbid and dark brown/black in colour from the location of LDP 8 to about 350m to 400m downstream. He observed black material had completely covered rocks and sand on the edge of Camp Gully Creek, and there were thin sheets of black material floating on the water. He collected water samples from two locations in Camp Gully Creek which were subsequently analysed by a nationally accredited laboratory.

32. The water sample taken in Camp Gully Creek downstream of LDP 8 recorded electrical conductivity at 670 μS/cm. This was elevated compared to the upstream sample, which recorded electrical conductivity at 360 μS/cm. According to the Australian and New Zealand Guidelines for Fresh and Marine Water Quality 2018 (‘ANZ Guidelines’), electrical conductivity in NSW coastal rivers is typically in the range of 200 to 300 μS/cm.

33. The water sample taken in Camp Gully Creek downstream of LDP 8 also recorded total suspended solids at 62 mg/L and turbidity at 84 NTU, which were above the ANZ Guidelines’ value.

34. Both water samples were tested for acute toxicity to Cladoceran dubia (water flea) and the sample collected downstream of LDP 8 was toxic.

35. On 9 September 2022 at around 11.55am, the same member of the public observed that the polluted discharge in Camp Gully Creek had not abated.

36. On 10 September 2022 at around 10.38am, a group of bushwalkers observed what appeared to be coal debris along the Hacking River and in Camp Gully Creek. The water was discoloured, and there was sludge present in the water and on the banks of the Creek.

37. On 14 September 2022, EPA officers undertook a further inspection at the Premises and observed thick deposits of black material along Camp Gully Creek, from LDP 8 to approximately 20m upstream of the confluence with the Hacking River, and on the banks and riverbed of the Hacking River, up to approximately 70m downstream of the confluence with Camp Gully Creek. The officers collected water samples from various locations at the Premises, Camp Gully Creek and the Hacking River.

38. On 16 September 2022, EPA issued a “clean-up notice” to the defendant and on 19 September 2022, EPA officers carried out macroinvertebrate sampling.

39. After the September 2022 discharge event, on or around 20 September 2022, the defendant commenced clean-up of Camp Gully Creek and made efforts to remove sediment from Turkeys Nest Dam. However, on 30 September 2022, the EPA issued a second “clean-up notice” to the defendant and after further inspections at the Premises on 30 September and 4 October 2022, it was observed that desilting operations in Turkeys Nest Dam had increased water storage capacity and reduced sediment. By early October 2022, there was approximately 20 percent water storage capacity in Turkeys Nest Dam.

October 2022 discharge

40. On 8 October 2022 at around 6.00pm, the defendant’s staff observed rising water levels in Turkeys Nest Dam during a rainfall event at the Premises. The staff were already pumping sediment from Turkeys Nest Dam to the CHPP for processing. However, the inflow of water started to exceed the outflow, requiring the staff to commence contingency pumping water from Turkeys Nest Dam to a disused part of the Premises. At around 10.15pm, the inflow of surface water to Turkeys Nest Dam was outpacing the contingency pumping and the water and sediment in Turkeys Nest Dam started overtopping the basin and discharging directly into Camp Gully Creek through LDP 8 (‘October 2022 discharge event’). This was the beginning of the charge period for the October Water Pollution Offence.

41. On 9 October 2022 at around 6.30am, the discharge of the water and sediment from Turkeys Nest Dam into Camp Gully Creek ceased. This was the end of the charge period for the October Water Pollution Offence and the Licence Breach Offence.

42. On 9 October 2022, the defendant reported the discharge event and at 11.15am, EPA officers attended the Premises and observed that the water in Turkeys Nest Dam was turbid and black to very dark brown in colour and that the height of the water in Turkeys Nest Dam was very close to the level of the LDP 8 spillway and that the water in Camp Gully Creek approximately 50m downstream of LDP 8 was slightly turbid and brown in colour. Two water samples were collected from samples taken by the defendant’s staff from Turkeys Nest Dam and the LDP 8 spillway when the basin started overtopping. Another two samples were taken from Camp Gully Creek – one approximately 50m upstream of LDP 8 and one 50m downstream of LDP 8. The samples recorded high levels of electrical conductivity and total suspended solids.

43. The four water samples were tested for acute toxicity to Cladoceran dubia. The two samples from Turkeys Nest Dam and the LDP 8 spillway were toxic, but the two samples from Camp Gully Creek were not toxic.

44. At all material times, the water in Turkeys Nest Dam contained silt and sediment including coal fines. The volume of water, silt and sediment that was discharged from Turkeys Nest Dam into Camp Gully Creek is not known. However, the defendant estimates approximately half a megalitre was discharged. The discharge extended over a 10-hour period between 8 October and 9 October 2022 inclusive.

45. In the period from 13 July 2022 to 9 October 2022 (inclusive), there was inadequate water storage capacity in Turkeys Nest Dam.

46. On 8 November 2022, the defendant commenced clean-up of Camp Gully Creek in accordance with the protocol for cleaning up coal material situated below the water line as required by the second “clean-up notice” and on 10 November 2022, the EPA issued the defendant with a third “clean-up notice” requiring the defendant to desilt Turkeys Nest Dam and the sediment pond by 31 December 2022, of which the defendant complied with on or around 30 December 2022.

47. Both the September 2022 discharge event and the October 2022 discharge event were caused by inadequate active water storage at the Premises. The high level of sediment in Turkeys Nest Dam was a significant contributing factor to the occurrence of the two discharge events.

48. In relation to the September 2022 discharge event, the presence of sediment in Turkeys Nest Dam also blocked the inlet pipe to the Turkeys Nest Pump which caused the pump to stop transferring the water to the Water Treatment Plant.

49. Both the September 2022 discharge event and the October 2022 discharge event could have been avoided if Turkeys Nest Dam was sufficiently clear of sediment.

50. At the time of the offending, Turkeys Nest Dam was not maintained in the standard required to perform suitably for the type and extent of activities conducted at the Premises.

Steps taken after the September and the October discharge events

51. After the September 2022 discharge event and the October 2022 discharge event, the defendant undertook clean-up activities in accordance with three clean-up notices issued by the EPA on 16 September, 30 September and 10 November 2022 which included the removal of coal material around Camp Gully Creek and the impacted areas of the Hacking River, desilting Turkeys Nest Dam and other surface water facilities. In about February 2023, the defendant completed its clean-up of Camp Gully Creek and the Hacking River.

52. The defendant finished desilting Turkeys Nest Dam and the sediment pond in accordance with the third “clean-up notice” on or around 30 December 2022.

53. In about February 2023, the defendant completed its clean-up of Camp Gully Creek and the Hacking River. Approximately 13.75 tonnes of material (including coal material) was removed from Camp Gully Creek and impacted areas of the Hacking River during clean-up works. The evidence does not establish that the entirety of the 13.75 tonnes of material removed from Camp Gully Creek and the Hacking River was associated with the September 2022 discharge event and the October 2022 discharge event.

Environmental harm

54. The headwaters of Camp Gully Creek originate in the town of Helensburgh, beginning as a first order stream (a stream that has no other streams flowing into it) that flows into Helensburgh Duck Pond and becoming a second order stream downstream of the Helensburgh township.

55. The majority of riparian habitat of Camp Gully Creek is in a relatively natural condition, albeit with weeds often present. It flows in a north-easterly direction from Helensburgh, past the southern boundary of the Premises, passes through the Garawarra State Conservation Area and enters the Hacking River, approximately 1.2km downstream, in the Royal National Park.

56. Camp Gully Creek is impacted by various stressors which affect the quality of its waters, including the urban dominant headwaters, licensed discharges, and high levels of rainfall in the first eight months of 2022. These stressors can have an adverse effect on macroinvertebrate communities within the waterway.

September 2022 discharge event

57. The September 2022 discharge event caused actual harm to the environment by introducing coal fines to Camp Gully Creek and the Hacking River downstream of LDP 8, which had the following effects:

58. The coal fines adhered to stream rock surfaces, smothered the benthic substrate, and infilled the spaces between gravels, cobbles and rocks, all of which are habitats for a variety of stream macroinvertebrates.

59. The coal fines smothered and killed macroinvertebrates and other organisms that use this habitat, such as bacteria and diatoms.

60. The coal fines physically scoured rock biota.

61. As a result of the above effects, the September 2022 discharge event contributed to a diminution in the population of macroinvertebrates and other organisms that use this habitat, such as bacteria and diatoms, downstream of the LDP 8 spillway. This diminution extended to the Hacking River. The diminution included reduced abundance, reduced diversity, and alteration of community composition with fewer pollution sensitive taxa observed in sampling.

62. The extent to which the diminution can be attributed to the September 2022 discharge event alone, as compared to other stressors on the environment, is not a matter that can be determined with sufficient clarity by the Court.

63. The duration of the actual harm would have extended until the end of the defendant’s clean-up of Camp Gully Creek and the Hacking River in early February 2023, although the adverse impacts of the coal fines discharged would have decreased as this material was removed from the waterway (by clean-up activities and/or by natural flows). The macroinvertebrate communities downstream of LDP 8 would have also required time to recover following the conclusion of clean-up activities.

64. The September 2022 discharge event also had the potential to cause harm to the aquatic environment of Camp Gully Creek and the Hacking River downstream of the LDP 8 spillway for as long as the coal fines were present in the environment. Impacts on macroinvertebrate communities may have negative consequences for the trophic levels below and above, disrupting the food web and, in turn, altering nutrient cycling and water chemistry. These changes can exacerbate existing stressors related to disturbed catchments and exert ongoing, long-term impacts on river health.

65. The extent of the potential harm would have reduced progressively as the coal fines were removed and/or were diluted in the receiving waterways.

October 2022 discharge event

63. The results of water sampling undertaken on 9 October 2022 indicated elevated levels of many contaminants in Turkeys Nest Dam and the LDP 8 spillway. The contaminants of most concern include aluminium, barium, lithium, ammonia, and total nitrogen. The water samples also contained high levels of total suspended solids. High concentrations of dissolved metals can have negative impacts on taxa richness through acute exposure to lethal concentrations, or chronic exposure with ongoing low-level concentrations impacting different taxa in different ways.

64. The defendant’s water samples from Turkeys Nest Dam and the LDP 8 spillway indicate that the water in Turkeys Nest Dam was toxic at the time the October 2022 discharge event started. However, the toxicity was diluted when mixed with the waters of Camp Gully Creek. The discharges associated with the October 2022 discharge event had the potential to cause harm to the aquatic ecosystem through direct toxic effects of polluted water. The extent of the potential harm was not likely to have extended beyond the area of Camp Gully Creek directly downstream of the LDP 8 spillway.

65. The presence of coal fines in Camp Gully Creek associated with the October 2022 discharge event could have also caused harm to stream biota by physical scouring and smothering. However, it is not known what percentage of the water discharged from the Premises was comprised of coal fines.

66. At the time of the October 2022 discharge event, the aquatic ecosystem of Camp Gully Creek and the Hacking River downstream of LDP 8 was recovering from the impacts of the September 2022 discharge event. It is likely that the October 2022 discharge event exacerbated those impacts, however, the extent of any exacerbation cannot be definitively determined.

Evidence

67. The Court received extensive evidence and submissions including two statements of agreed facts filed 15 November 2024 (being the “Amended Statement of Agreed Facts” and the “Statement of Agreed Facts on Environmental Harm”) and a bundle of documents accompanying the Amended Statement of Agreed Facts filed 15 November 2024 (‘Statement of Agreed Facts Bundle’). The prosecutor read part of the affidavit of James McCormack dated 22 February 2023 (filed 6 September 2023); and, the defendant read the affidavit of James Hannigan, the defendant’s General Manager, filed 9 September 2024; two affidavits of Jon Degotardi, the defendant’s Approvals Manager, filed 9 September 2024 and 11 November 2024; and part of an expert report of Barry Cook, a meteorologist, filed 25 September 2024.

Offence provisions

68. The September Water Pollution Offence is an offence against s 120(1) of the POEO Act where the manner of breach was that the defendant, being the occupier of the Premises, permitted a pollutant to be placed within Turkeys Nest Dam at the Premises, which pollutant flowed over a spillway of Turkeys Nest Dam into waters between 6 and 8 September 2022.

69. The October Water Pollution Offence is also an offence against s 120(1) of the POEO Act where the manner of breach was that the defendant, being the occupier of the Premises, caused a pollutant to be placed within Turkeys Nest Dam at the Premises which pollutant flowed over the spillway of Turkeys Nest Dam into waters on 8 and 9 October 2022.

70. Section 120 of the POEO Act, at the time of the Water Pollution Offences, relevantly provided:

(1) A person who pollutes any waters is guilty of an offence.

…

(2) In this section—

pollute waters includes cause or permit any waters to be polluted.

71. The License Breach Offence is an offence committed against s 64(1) of the POEO Act in that the defendant, being the holder of the EPL which contained condition O2.1(a) providing:

“All plant and equipment installed at the premises or used in connection with the licensed activity:

a) must be maintained in a proper and efficient condition…”,

failed to maintain Turkeys Nest Dam in a proper and efficient condition by failing to maintain it in a physical state that enabled surface water and all wastewater from the Premises, including wastewater contaminated with coal fines, to be stored within Turkeys Nest Dam without discharging them into the environment.

72. Section 64(1) of the POEO Act, at the time of the Licence Breach Offence, relevantly provided:

(1) Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence.

Maximum penalty—

(a) in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or

…

Sentencing considerations

Purposes of sentencing

73. In fixing the appropriate penalty for the offences, s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') sets out the purposes of sentencing relevant to the offence and the offender and relevantly provides:

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,

…

(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.

74. The purposes of punishment, denunciation and retribution are important in sentencing for environmental offences because there is a need for the Court, through the sentence it imposes, to denounce the unlawful conduct, to hold the offender accountable for his or her actions, and to ensure the offender is adequately punished. The sentence should accord with the general moral sense of the community in relation to the offence in the circumstances of the case: Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205; (2018) 236 LGERA 291 at [91]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [168].

75. Section 21A of the Sentencing Act identifies matters that the Court must take into account when determining the appropriate sentence for an offence, including relevant factors in aggravation under s 21A(2) and relevant factors in mitigation under s 21A(3).

76. Where it is contended that a particular sentencing consideration should be treated as an aggravating factor, it must be established beyond reasonable doubt: Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353 at [26], [104]-[105]; R v Wickham [2004] NSWCCA 193 at [27]. However, if there are circumstances in favour of the offender that a court proposes to take into account, it is sufficient if those circumstances are established on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]. Pertinent to the submissions made in this case, s 21A(2) and s 21A(3) relevantly provide:

(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

…

(g) the injury, emotional harm, loss or damage caused by the offence was substantial,

…

(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,

…

(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),

…

77. For offences created by the POEO Act, s 241 thereof specifies matters to be considered in imposing a penalty on an offender. In relation to the submissions made and at the time of the offences, s 241(1) relevantly provided:

(1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant)—

(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence,

(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm,

(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,

(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,

…

78. The appropriate sentence for the defendant is to be determined by an instinctive synthesis of all the facts that frame the objective seriousness or gravity of each offence committed by the defendant and the subjective and mitigating circumstances of the defendant as the offender: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 (‘Markarian’) at [37], [51], [66]; Green (a pseudonym) v R [2025] NSWCCA 16 at [38].

79. In my consideration to follow, I remain conscious that while some obvious commonality exists between the offences and the facts and events that gave rise to the offending, there are three discrete offences before the Court for sentencing. I also take into account the context that the September 2022 discharge event and the October 2022 discharge event were caused by inadequate storage capacity in Turkeys Nest Dam and the discharges would not have occurred if the dam had been sufficiently cleared of sediment.

Objective seriousness of the offences

80. The objective seriousness of an offence fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the offence considered in light of its objective circumstances and the objectives of punishment: Veen v R (No 2) (1988) 164 CLR 465 at 485-486; [1988] HCA 14. It fixes the lower limit because the allowance for matters personal to a particular offender cannot produce a sentence which fails to reflect the objective gravity of the offence and the objectives of punishment: R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [156]; R v McGourty [2002] NSWCCA 335 at [34].

81. The Court must determine the objective seriousness wholly by reference to the nature of the offence and not by reference to the matters that are personal to the offender: Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27].

82. The facts and circumstances that are relevant to the present offences include the nature of the offences; the maximum penalty for each of the offences; the objective harmfulness of each offence; the practical measures to prevent the risk of environmental harm; the foreseeability of the risk of environmental harm; the state of mind of the offender; and the control over the causes giving rise to the offences. I will deal with each of these factors.

The nature of the offences

83. The nature and purpose of the provision that has been contravened in each offence, its place in the statutory scheme, and the degree to which the offender’s conduct offends against this statutory purpose, speak to the objective seriousness of an offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[169]), and the nature of the offending is not confined to the ingredients of the offence but may be taken to mean the fundamental qualities of the offence: Williams v R [2012] NSWCCA 172; (2012) 203 A Crim at [42].

84. A fundamental consideration of relevance to environmental offences is the degree to which, having regard to the maximum penalty prescribed by the statute for the offence, the offender’s conduct would offend against the legislative objectives expressed in the offence: Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15].

85. The objects of the POEO Act at the time of the offences, which are set out in s 3, included:

…

(a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,

…

(d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following—

(i) pollution prevention and cleaner production,

(ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,

(iia) the elimination of harmful wastes,

…

(iv) the making of progressive environmental improvements, including the reduction of pollution at source,

(v) the monitoring and reporting of environmental quality on a regular basis,

…

86. In relation to the present offences, the ability to control, reduce and prevent pollution of waters is an important factor in achieving the object of the protection of the environment.

87. The centrality of s 120(1) of the POEO Act to the statutory regime for the prohibition of pollution of waters and the statutory objectives is generally accepted: Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26 at [9]. In particular, the pollution of waters is a result offence where the prohibited result directly undermines the objects of the POEO Act. It is a strict liability offence: Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [23].

88. Further, offences against s 64(1), which are also strict liability offences, are serious because of the breach of public trust associated with the offending: Environment Protection Authority v Port Kembla Copper Pty Ltd [2001] NSWLEC 174; (2001) 115 LGERA 391 at [23]-[27]. The importance of compliance with an environment protection licence to the relevant statutory scheme is clearly stated by Pepper J, in terms I adopt, in Environment Protection Authority v Orica Australia Pty Ltd (Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 (‘Orica’) at [104]:

“…Compliance with licence conditions is the price that entities must pay for permission to engage in potentially polluting manufacturing processes. The conditions imposed in any licence are aimed at maximising beneficial environmental outcomes and minimising environmental harm. They represent a balancing exercise between fostering economic growth and development, on the one hand, and protecting and preserving the environment now and for the future, on the other. Strict compliance with the conditions of any environmental licence is therefore necessary to ensure that this balance is achieved and that the objectives of the [POEO Act] are met.”

89. As a consequence of the above considerations, when assessing the objective seriousness of each offence, I find that each of the three offences undermined the legislative objects of the prevention and regulation of pollution and environmental protection under s 3 of the POEO Act.

Maximum penalty

90. The maximum penalty for a statutory offence reflects the public expression by Parliament of the seriousness of an offence: Camilleri*’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; (1993) 82 LGERA 21 (‘Camilleri’*s Stock Feeds’), and provides a “sentencing yardstick” for the case before the Court: Elias v R; Issa v R (2013) 248 CLR 483; [2013] HCA 31 at [27]; Markarian at [30].

91. At the time the three offences were committed, the maximum penalty in the case of a corporation for an offence pursuant to s 120(1) and s 64(1) of the POEO Act was $1 million and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues. The maximum penalty was increased to $2 million and the further penalty for each day the offence continues was increased to $240,000 on 3 April 2024 which demonstrates Parliament’s increased concern regarding the objective seriousness of an offence of such a kind.

Extent of harm – s 241(1)(a) of the POEO Act

92. The degree of harm caused by the commission of each offence affects the seriousness of the offence: the greater the harm, the more serious the offence.

93. Section 241(1)(a) of the POEO Act requires that the Court take into account the extent of the harm caused, or likely to be caused, to the environment by the commission of each of the offences. “Harm” is defined in the Dictionary to the POEO Act to include:

…any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.

94. The concept of harm in the context of environmental offences is broad, extending to both actual and potential harm: Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 (‘Waste Recycling’) at [145]-[149].

95. The harm resulting from the offences has been noted earlier and will not be repeated. The impacts of the September 2022 discharge event were not confined to a location immediately next to the LDP 8 spillway, but extended downstream to the Hacking River as the detailed photographic evidence shows. Effectively, the duration of the impacts including the smothering and killing of macroinvertebrates would have extended until at least the clean-up in February 2023. The October 2022 discharge event exacerbated those impacts, however the October 2022 discharge event caused lesser environmental impacts.

96. I find beyond reasonable doubt that the September Water Pollution Offence resulted in actual, likely and potential harm to the environment as recorded at [57]-[62], and that the October Water Pollution Offence gave rise to potential harm to the environment as recorded at [63]-[66].

Practical measures to prevent harm – s 241(1)(b) of the POEO Act

97. The existence of, but an offender’s failure to take, practical measures to prevent, control, abate or mitigate the harm caused, or likely to be caused, is a factor that increases the objective seriousness of the offences.

98. The defendant accepts that the Water Pollution Offences could have been avoided if Turkeys Nest Dam was sufficiently clear of sediment. The defendant also accepts that it did not maintain Turkeys Nest Dam in a proper and efficient condition throughout the period which encompassed the Water Pollution Offences.

99. It is an agreed fact, and I find beyond reasonable doubt, that the defendant could have avoided or mitigated the September 2022 discharge event and the October 2022 discharge event by taking the following practical measures:

100. Regular and effective cleaning of Turkeys Nest Dam and the sediment pond to maintain adequate active storage;

101. Continuous monitoring (by instrumentation) of water levels in Turkeys Nest Dam to commence intervening action earlier, such as contingency pumping;

102. Installing an alarm to notify the defendant’s staff if the Turkeys Nest Pump was operating at a reduced flow rate;

103. Establishing reliable and suitably designed pumping infrastructure to extract water from Turkeys Nest Dam;

104. Increasing water storage and/or contingency pumping capacity at the Premises;

105. Undertaking hydrologic and system analysis to:

(a) Design a surface water management system that can achieve a designated reliability, for example, to capture a certain volume of sediment, or to prevent spilling at a designated frequency; and (b) Identify, repair or upgrade parts of the system found to be inadequate, including drains and channels, pumps, and water runoff controls.

100. The defendant contends that s 241(1)(b) of the POEO Act is prospective and submits that clean-up measures were taken to remedy the actual environmental harm caused in relation to the September 2022 discharge event, including the clean-up measures referred to in the affidavit of James Hannigan filed 9 September 2024 at pars (29)-(39). I accept that the defendant has subsequently undertaken various clean-up measures, notwithstanding that I do not consider that s 241(1)(b) is prospective.

101. I also accept that the defendant had taken some steps to attempt to manage the accumulation of sediment in 2021 and 2022 regarding its mitigation of likely harm from the Licence Breach Offence.

102. The defendant further submits, and I accept, that steps have been taken to prevent recurrence of the September 2022 discharge event, and that these measures will go some way to prevent future LDP 8 spillway discharge events due to the accumulation of sediment in Turkeys Nest Dam, which now has a significantly improved operational functionality, plus an increased water-holding capacity, and the new systems and equipment implemented have already begun and will continue to enable the Premises’ personnel to better monitor the condition of Turkeys Nest Dam and the amount of sediment accumulating to enable the rapid removal of sediment as required.

103. In addition to my findings above, I find that the defendant could and should have put in place proper systems. The measures now implemented could have been implemented at the time of the offences. Contrary to what I understand is the defendant’s submission, I am of the view that s 241(1)(b) of the POEO Act, on its plain reading, relates to circumstances to be considered before the commission of the offences. As such, I repeat that I am satisfied that there were clearly practical measures that would have prevented each of the offences occurring. Despite my view, I remain conscious that the defendant has, since the commission of the offences, taken certain practical measures to prevent the offences from being repeated.

Foreseeability of harm – s 241(1)(c) of the POEO Act

104. The defendant accepts that it was reasonably foreseeable that if there was a discharge of polluted water through the LDP 8 spillway, some environmental harm due to the chemical change to Camp Gully Creek would be reasonably foreseeable. The defendant also submits that the Licence Breach Offence did not itself cause any harm, resulting in a low level of foreseeability of harm.

105. In the circumstances where the defendant is the holder of the EPL, there having been similar incidents (in January 2022, March 2022 and July 2022) of polluted water discharging from the Premises into Camp Gully Creek and water overflow due to the high volume of sediment in Turkeys Nest Dam between March 2021 and July 2022, as well as the defendant being aware that there was insufficient water storage capacity in Turkeys Nest Dam (due to the presence of a large amount of sediment), the prosecutor submits, and I find beyond reasonable doubt, that it was “entirely foreseeable” to the defendant that polluted discharges from the Premises would give rise to a risk or likelihood of harm to the environment. I also find that it was reasonably foreseeable that some harm (or the likelihood of harm) would result from the Licence Breach Offence.

Control over the causes giving rise to the offences – s 241(1)(d) of the POEO Act

106. It is agreed between the parties, and I find, that the defendant had control over the causes which gave rise to the commission of the three offences. Although the defendant qualifies this admission of control by drawing the Court’s attention to the involvement of “unprecedented heavy rainfall”, particularly in relation to the October 2022 discharge event, and the “overall impact of excessive weather and rainfall in 2021-2022” on the completion of the defendant’s attempts to desilt Turkeys Nest Dam, I do not consider that this detracts from my finding that the defendant had control over the causes giving rise to each of the offences.

107. For clarity, in relation to my consideration of all matters in relation to sentencing for each of the three offences, I remain conscious of the expert meteorological evidence, that in 2022, a total of 3,147mm of rain was recorded at the Premises and that 2022 was significantly wetter than the average.

State of mind at the time of the commission of the offences

108. The offences are crimes of strict liability which means that mens rea is not an element of the offences. However, the state of mind at the time of the commission of the offences is nevertheless relevant in the determination of appropriate sentences: Environment Protection Authority v Maules Creek Coal Pty Ltd [2022] NSWLEC 33 (‘Maules Creek’) at [153]. A strict liability offence that is committed intentionally, negligently, or recklessly, will be objectively more serious than one committed accidentally: Camilleri’s Stock Feeds at 700A-700E.

109. Having said this, the prosecutor did not make submissions in this respect and there is no evidence that the defendant committed the offences with any particular state of mind. The Court therefore makes no findings in this regard.

Conclusion on objective seriousness

110. Although specific characterisation of objective seriousness is not a necessary component of the sentencing task because it “…is rarely definitive of that part of the sentencing exercise that requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender”, it is still a useful descriptor in the instinctive synthesis exercise: R v DP [2019] NSWCCA 55 at [42]; Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42 at [204].

111. Having regard to all the facts and circumstances considered above, I find:

112. The Licence Breach Offence concerning the failure to maintain Turkeys Nest Dam in a proper and efficient condition during the period from 13 July 2022 to 9 October 2022 is in the mid-range of objective seriousness for an offence against s 64(1) of the POEO Act. In summary, this is because, as considered above, the failure to maintain plant and equipment in a proper and efficient condition extended over a three-month period, in circumstances where the defendant had been aware of the large volume of sediment in Turkeys Nest Dam since at least August 2019; there were practical measures available to the defendant to address the lack of storage capacity occasioned by the presence of sediment in Turkeys Nest Dam and to mitigate the risk of polluted discharges; and the causes of the offending were within the defendant’s control. Further, remaining conscious that there are three offences before the Court for sentencing, the presence of sediment in Turkeys Nest Dam resulting from the defendant’s failure to maintain it in a proper and efficient manner resulted in the commission of the Water Pollution Offences which caused actual and potential harm to the environment.

113. The September Water Pollution Offence is in the mid-range of objective seriousness for an offence against s 120(1) of the POEO Act. In summary, this is because of the matters noted above including the actual harm to the environment; the foreseeability of the risk and likelihood of environmental harm; the practical measures that were available to prevent environmental harm and to mitigate against the risk of environmental harm; and the level of control exercised by the defendant over the causes of the offence.

114. The October Water Pollution Offence is in the high end of the low range of objective seriousness for an offence against s 120(1) of the POEO Act. In summary, this is because of the matters noted above including the potential harm to the environment caused by the offending conduct; the foreseeability of the risk or likelihood of environmental harm occurring as a result of the offending; the practical measures that were available to prevent environmental harm and to mitigate against the risk of environmental harm; and the level of control exercised by the defendant over the causes of the offence.

Subjective circumstances

112. Within the limits set by the objective seriousness of the offences, the Court must take into account the favourable factors personal to the defendant when determining the appropriate penalty to impose in relation to each offence.

113. The matters I take into account include the defendant’s lack of prior convictions; good character; remorse; likelihood of reoffending; guilty pleas; measures taken to prevent recurrence; and the need for deterrence. These matters are reflected in s 21A(3) of the Sentencing Act, which, as noted earlier, sets out the mitigating factors that a Court may consider in determining an appropriate sentence for each offence.

Previous convictions – s 21A(3)(e) of the Sentencing Act

114. The defendant has no prior convictions for any offences, including environmental offences related to the present charges.

Good character – s 21A(3)(f) of the Sentencing Act

115. I accept the evidence of James Hannigan, the General Manager of the defendant, that the defendant provides significant contribution to local community projects, employment and engagement activities including donations to the local community and various environmental initiatives. I find the defendant to be of good character, notwithstanding the present offences and, as noted below, to have demonstrated genuine contrition.

Remorse – s 21A(3)(i) of the Sentencing Act

116. I again accept the evidence of James Hannigan who has expressed the defendant’s remorse and sincere regret for the commission of the offences and has apologised to the general community. I also find that remorse is indicated by the steps taken by the defendant to prevent recurrence of the offending (including expenditure of approximately $1.5 million on measures to improve onsite water management); the timing of the pleas of guilty; the agreement to pay the prosecutor’s costs; the presence of senior management in Court throughout the sentence hearing; and the absence of any significantly contested facts at the sentence hearing.

Guilty pleas – s 21A(3)(k) of the Sentencing Act

117. Pleas of guilty in relation to each offence were entered on 15 March 2024, the second time the matter was before the Court following the filing of the prosecutor’s notice under s 247E of the Criminal Procedure Act 1986 (NSW) on 15 December 2023, and consequent upon plea bargaining discussions with the prosecutor, and the amendment of what were previously two charges for separate periods, now combined as the one Licence Breach Offence.

118. The defendant is entitled to a discount for the utilitarian value of the pleas of guilty to the criminal justice system. In assessing the utilitarian value of the pleas, the timing of the pleas is a critical factor. I consider that the discount to be afforded for the utilitarian value of each of the pleas of guilty should be 22%.

Assistance to authorities – s 21A(3)(m) of the Sentencing Act

119. While the prosecutor notes that complying with statutory notices is itself a legal obligation which attracts penalties for non-compliance, the defendant submits it has cooperated throughout the investigation of the offences as demonstrated by, first, making admissions as to the facts and circumstances recorded in the two statements of agreed facts; second, assisting EPA officers throughout the charge period; and third, its approach to the conduct of the sentence hearing.

120. I remain conscious of the comments of the Court of Criminal Appeal in ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4; (2024) 260 LGERA 358 (‘ACE Demolition’) at [96], that participation in an agreed statement of facts will not ordinarily fall within s 21A(3)(m) of the Sentencing Act, and I do not consider that the defendant is entitled to any mitigatory benefit related to any assistance to the authorities.

General and specific deterrence

121. The penalties imposed by the Court in relation to each offence must serve as a general deterrent: Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177]. General deterrence is essential “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]; Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 (‘Axer’) at 359.

122. Given the nature of the coal mining industry in which the defendant continues to be involved, I find that general deterrence must be reflected in the penalties to be imposed to create a clear disincentive to other persons and companies contemplating the pollution of waters and/or the breach of any conditions in environment protection licences.

123. Where I have found that the defendant has no prior convictions, is of good character, and has taken actions to prevent reoffending, although not without some concern, I am not satisfied that specific deterrence is applicable.

Appropriate sentence for each offence

Consistency in sentencing

124. While the task of a sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177; R v Visconti [1982] 2 NSWLR 104 at 107C), care must be taken in achieving consistency as there is always difficulty in comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case: Axer at 365. The sentence imposed in a single case does not demonstrate the limits of a sentencing court’s discretion: Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35]; Environment Protection Authority v Barnes [2006] NSWCCA 246 (‘Barnes’) at [79].

125. The prosecutor submitted a schedule of comparable cases in relation to similar offences to assist the Court in determining the appropriate sentences to be imposed on the defendant which included: Environment Protection Authority v Tomingley Gold Operations Pty Ltd [2015] NSWLC 21; Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211; Maules Creek; Environment Protection Authority v Big Island Mining Pty Ltd [2014] NSWLEC 131; Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222; Environment Protection Authority v John Michelin & Son Pty Ltd [2019] NSWLEC 88; Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76; Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65; Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39; Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178; Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153; Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100; Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68.

126. The defendant directed the Court to the following comparable cases: Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39; Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26; Orica; Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80; Environment Protection Authority v Charlotte Pass S**now Resort Pty Ltd (No 3) [2022] NSWLEC 136.

127. Conscious that the Court cannot determine the appropriateness of sentences by way of superficial comparison of sentences imposed on offenders who similarly polluted waters by discharging water containing chemicals or contravened related environment protection licence conditions, and that care must be taken when comparing cases as there may be many divergent facts and circumstances, I have considered the sentences imposed and the objective and subjective circumstances of the offences and the offenders that led the sentencing court to impose the various sentences in each of the decisions to which I have been referred.

128. The sentences that I consider to be appropriate to impose for each offence are not inconsistent with the sentences imposed in the above cases. While consistency in sentencing is important, an appropriate yardstick against which each sentence should be compared is the maximum penalty (relevantly for these sentencing proceedings, in the sum of $1 million at the time of the offending – although now $2 million) set by Parliament rather than the amounts of fines in earlier cases: Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [72].

129. Taking into account the purposes of sentencing and synthesising the differing objective circumstances of each offence and the subjective circumstances of the defendant, I consider that, subject to matters considered later in this judgment, the appropriate monetary penalty for each offence is a fine in the following amounts:

130. Licence Breach Offence: $110,000.

131. September Water Pollution Offence: $100,000.

132. October Water Pollution Offence: $70,000.

133. These amounts should be discounted by 22% for the utilitarian value of the pleas of guilty. This makes the amounts:

134. Licence Breach Offence: $85,800.

135. September Water Pollution Offence: $78,000.

136. October Water Pollution Offence: $54,600.

Totality

131. The totality principle applies where an offender has committed, and is to be sentenced for, overlapping offences. The principle requires the Court in passing a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”, and reflects the total criminality before the Court: Mill v R (1988) 166 CLR 59 at 62-63; [1998] HCA 70; Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127 at [128]; ACE Demolition at [110]. Simply stated, if the Court believes the totality principle requires an adjustment to the individual fines that would otherwise be appropriate, the amount of each fine can be altered: Barnes at [50].

132. In applying the principle of totality, I take into consideration that each of the offences arises from a not unrelated course of conduct and related criminal behaviour that is causally, temporally and spatially linked. In particular, as I have found above, from 13 July 2022 to 9 October 2022 there was inadequate water storage capacity in Turkeys Nest Dam and both the September 2022 discharge event and the October 2022 discharge event were caused by inadequate active water storage at the Premises. As such, the high level of sediment in Turkeys Nest Dam was a contributing factor to the occurrence of the two pollution discharge events.

133. While I remain conscious of the total criminality including my findings above in relation to the objective seriousness of each of the offences, I consider the aggregate amount of the fines of $218,400 exceeds what is just and appropriate in the circumstances and the total criminality involved. I consider the appropriate adjustment to reflect the total criminality is to reduce each fine by 10%, accepting that assessment of appropriate adjustments by percentage is not an especially natural way of determining the totality of the offending: ACE Demolition at [76]. This results in the appropriate fines to be imposed:

134. Licence Breach Offence: $77,220.

135. September Water Pollution Offence: $70,200.

136. October Water Pollution Offence: $49,140.

This produces total fines of $196,560.

Additional orders

Moiety

134. The prosecutor seeks an order under s 122 of the Fines Act 1996 (NSW) (‘Fines Act’) for half of the total monetary penalty ordered against the defendant to be paid to the prosecutor, following the diversion of any amount to be paid to the NSW National Parks and Wildlife Service pursuant to s 250(1)(e) of the POEO Act.

135. Section 122 of the Fines Act applies where the Act that authorises the imposition of a penalty does not make any provision for its application when recovered, and the prosecutor is not a police officer. The penalties for offences contrary to ss 64(1) and 120(1) of the POEO Act do not make provision for the application of a fine once recovered by the courts: s 122(1)(a) of the Fines Act. The award of a moiety to a prosecutor is discretionary: Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 at [157].

Publication order

136. The prosecutor seeks an order pursuant to s 250(1)(a) of the POEO Act, that the defendant is, at its own expense, to publicise its conviction by causing a notice in the form detailed in Attachment 2 in the prosecutor’s outline of submissions on penalty, first, to be placed within the first 12 pages of The Sydney Morning Herald and within the first 5 pages of the Illawarra Mercury, St George and Sutherland Shire Leader, and Wild Magazine, at a minimum size of 12cm x 12cm at the next publication date following the sentencing judgment; and second, to be posted on the Facebook page of its parent company Peabody Energy for a minimum of seven days and on Peabody Energy’s website in the “Newsroom” section for a minimum of 60 days.

137. The publication of information relating to environmental offences and their repercussions is relevant to sentencing as it enhances public perception and the deterrent effect of the sentences imposed: Waste Recycling at [242]; Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9; (2022) 251 LGERA 28 at [58]-[59]. In the circumstances of each offence, I find the making of a publication order in the terms submitted by the prosecutor to be appropriate.

Environmental service order

138. The prosecutor seeks an order pursuant to s 250(1)(e) of the POEO Act that $200,000 of the total monetary penalty ordered against the defendant be paid to the NSW National Parks and Wildlife Service to carry out a project for the management and enhancement of the Hacking River ecosystem. The project proposes to develop water quality and macroinvertebrate sampling programs and to undertake weed control activities in parts of the Hacking River and the upper Kangaroo Creek catchment (which is a tributary of the Hacking River).

139. I find, having been provided with documentation in relation to the project, and noting the defendant’s agreement to such an order, that subject to my imposing fines, it is appropriate for the Court to make a similar order in view of the impact of the defendant’s offending conduct on the aquatic ecosystem of Camp Gully Creek and the Hacking River. As such, I have determined that an order in the sum of $150,000 is appropriate.

Professional and investigation costs

140. The prosecutor seeks an order pursuant to s 248(1) of the POEO Act for the reimbursement of specific investigation expenses in the sum of $34,806 that fall within the narrow definition of “costs and expenses” under s 248(3) of the POEO Act. The defendant does not oppose such an order. I find that such an order is appropriate in the circumstances of these proceedings: Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241 at [102]-[112].

141. The defendant has agreed to pay the prosecutor’s costs in the sum of $270,000. The prosecutor submits, and I accept, that payment of the prosecutor’s costs is a constant aspect of sentencing for environmental offences and is embedded in the general pattern of sentencing for all environmental offences (Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 (‘Leppington Pastoral’) at [50]), and the purpose of an order for costs is to indemnify or compensate the prosecutor for its expenses, not to punish the offender: Latoudis v Casey (1990) 170 CLR 534 at 543; [1990] HCA 59.

142. While it is appropriate for the Court to take into account any associated costs orders, an order for the payment of costs is not a reason for reducing any penalty to an amount lower than that suggested by the general pattern of sentencing for the relevant offence: Leppington Pastoral at [50].

Orders

143. In conformity with the reasons above, the orders of the Court are:

In proceedings 2023/00283630:

1. Metropolitan Collieries Pty Ltd is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) as charged.
2. Metropolitan Collieries Pty Ltd is to pay a monetary penalty in the sum of $70,200.

In proceedings 2023/00283631:

1. Metropolitan Collieries Pty Ltd is convicted of the offence against s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) as charged.
2. Metropolitan Collieries Pty Ltd is to pay a monetary penalty in the sum of $77,220.

In proceedings 2023/00283632:

1. Metropolitan Collieries Pty Ltd is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) as charged.
2. Metropolitan Collieries Pty Ltd is to pay a monetary penalty in the sum of $49,140.

In proceedings 2023/00283630; 2023/00283631; 2023/00283632:

3. Pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997 (NSW), the amount of $150,000 from the total amount of the monetary penalty imposed on Metropolitan Collieries Pty Ltd (in proceedings 2023/00283630; 2023/00283631; 2023/00283632) is to be paid to the NSW National Parks and Wildlife Service, within 28 days of this order, for the purposes of the restoration or enhancement of the environment as described in Annexure “A” to these orders.
4. Pursuant to s 122 of the Fines Act 1996 (NSW), 50% of the fine imposed on Metropolitan Collieries Pty Ltd in each of the proceedings, is to be paid to the Environment Protection Authority as a moiety, following the diversion of the amount paid to the NSW National Parks and Wildlife Service pursuant to Order (3) of these orders.
5. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), all public references made by Metropolitan Collieries Pty Ltd (including all public references it causes to be made by its parent company “Peabody Energy”) to its contribution to the project(s) listed in Annexure “A” to these orders are to be accompanied by the following statement:

“Metropolitan Collieries Pty Ltd’s contribution to the project is part of a penalty imposed by the Land and Environment Court of New South Wales. Metropolitan Collieries Pty Ltd was convicted of three offences against s 120(1) and s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) for incidents that occurred between July 2022 and October 2022.”

6. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), Metropolitan Collieries Pty Ltd is, at its expense, to cause a notice in the terms set out in Annexure “B” to these orders publicising the Court’s orders to be placed in the following publications and on the following websites, within 28 days of this order being imposed:

(a) The Sydney Morning Herald, within the first 12 pages on an odd-numbered page at a minimum size of 12cm x 12cm, and such notice to also appear on the website www.smh.com.au or the applicable website for the Sydney Morning Herald; and (b) The Illawarra Mercury, St George and Sutherland Shire Leader, and Wild Magazine, within the first 5 pages on an odd-numbered page at a minimum size of 12cm x 12cm, and such notice to also appear on each respective publication’s website.

7. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), Metropolitan Collieries Pty Ltd is, at its expense, to, within 14 days of the date of this order, cause Peabody Energy to publicise the offences and the orders made against Metropolitan Collieries Pty Ltd by posting the text of Annexure “B” to these orders on:

(a) The Facebook page of Peabody Energy, together with the second photograph behind Tab G of the Statement of Agreed Facts Bundle (Exhibit A) and a hyperlink directly to the Court’s judgment as published on the New South Wales Caselaw website and tagging the Environment Protection Authority in the post. The Facebook post is to be made between the times of 8.00am and 10.00am or 4.30pm and 6.30pm, on a weekday. The post must remain a pinned post on Facebook that remains at the top of Peabody Energy’s Facebook wall for a minimum of 7 days; and (b) The official website of Peabody Energy, https://www.peabodyenergy.com, in the “Newsroom” section for a minimum of 60 days.

8. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), Metropolitan Collieries Pty Ltd is to publish notice of the offences and the orders made by the Court in the next Annual Report of Metropolitan Collieries Pty Ltd’s parent company, Peabody Energy, following the making of this order.
9. Metropolitan Collieries Pty Ltd must, within 7 days of publication of each of the notices under Orders (6), (7) and (8) in these proceedings, provide to the Environment Protection Authority a complete copy of the pages of the publications and websites in which the notices required under Orders (6), (7) and (8) appear.
10. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), Metropolitan Collieries Pty Ltd is to pay the Environment Protection Authority’s legal costs in proceedings 2023/00283630; 2023/00283631; 2023/00283632 agreed in the sum of $270,000.
11. Metropolitan Collieries Pty Ltd is to pay the Environment Protection Authority’s costs and expenses of investigating the offences in proceedings 2023/00283630; 2023/00283631; 2023/00283632 in the total amount of $34,806, pursuant to s 248(1) of the Protection of the Environment Operations Act 1997 (NSW).

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Annexure A (108891, pdf)

Annexure B (100995, pdf)

Amendments

22 April 2025

Coversheet - removed duplicate citation.