Environment Protection Authority v Mortdale Recycling Pty Ltd

The Summons, and the "Additional Orders" Sought

1. In the Prosecutor's summons dated 25 June 2018 (some emphasis added): The Prosecutor claims: 1 An order that the defendant, Mortdale Recycling Pty Limited (ACN 602 681 470), whose registered office is at 305 Parramatta Road, Auburn in the State of New South Wales, appear before a Judge of the Court to answer the charge that, from about 5 January 2017 to about 4 January 2018 (inclusive), at or near 20 Hearne Street, Mortdale in the State of New South Wales (Premises), it committed an offence against section 64(1) of the Protection of the Environment Operations Act 1997 in that it was the holder of a licence, a condition of which was contravened by a person. Particulars a. Licence Environment Protection Licence number 26022. b. Licence condition contravened Condition L2.3, which states: L2.3 The total quantity of material received and processed at the Premises must not exceed 30,000 tonnes per year. c. Manner of breach The total amount of waste received and processed at the Premises exceeded 30,000 tonnes in the year from about 5 January 2017 to about 4 January 2018 (inclusive). 2 That the Defendant be dealt with according to law for the commission of the above offence. 3 An order that the Defendant pay the Prosecutor's costs. 4 Such orders as the Court in its discretion sees fit to make.
2. Specifically, Ms Ella, solicitor for the Prosecutor, noted (Tp5, LL1-3 - emphasis added): It is asserted by the prosecutor and admitted by the defendant that the limit was exceeded by almost double to a total amount of … 59,931.33 tonnes …
3. In addition to relief nominated in the summons, a document entitled "Additional Orders Sought by the Prosecutor" (Exhibit P3) sought the making of further orders, including, inter alia (1) that the Defendant pay any "penalty amount" to the Environmental Trust, in lieu of a fine, and (2) that the Defendant publish notices in various places notifying the outcome of these proceedings. Section 250(1) of the POEO Act relevantly provides: 250 Additional orders (1) Orders The court may do any one or more of the following: (a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person, (b) order the offender to take specified action to notify specified persons or classes of persons of the offence (including the circumstances of the offence) and its environmental and other consequences and of any orders made against the person (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender's conduct), (c) order the offender to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit, (d) order the offender to carry out a specified environmental audit of activities carried on by the offender, (e) order the offender to pay a specified amount to the Environmental Trust established under the Environmental Trust Act 1998, or a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes, (f) order the offender to attend, or to cause an employee or employees or a contractor or contractors of the offender to attend, a training or other course specified by the court, (g) order the offender to establish, for employees or contractors of the offender, a training course of a kind specified by the court, (h) if the EPA is a party to the proceedings, order the offender to provide a financial assurance, of a form and amount specified by the court, to the EPA, if the court orders the offender to carry out a specified work or program for the restoration or enhancement of the environment. The Local Court is not authorised to make an order referred to in paragraph (c), (d), (e) or (h). (Paragraphs (a), (b), and (e) are most relevant to the present case.)
4. Mr Hall SC, senior counsel for the Defendant, stated his general opposition to the making of any publication order, but agreed with the Prosecutor on the form that it should take, if the Court were minded to make one. See Annexures A and B to Exhibit P3, as amended.
5. Annexure "A", intended for various publications and the Bingo website, reads: Mortdale Recycling Pty Ltd convicted of breaching licence offence and ordered to pay [insert total amount of fine] Mortdale Recycling Pty Ltd (Mortdale) has been convicted and fined $ [insert total amount of fine] by the Land and Environment Court of NSW for breaching a condition of its Environment Protection Licence (EPL) issued to it by the Environment Protection Authority (EPA). The EPL authorises activities at Mortdale's waste facility in Mortdale. Mortdale admitted the breach and cooperated with the EPA throughout. The offence occurred between January 2017 to January 2018, when Mortdale received more waste at its licensed premises than it was lawfully allowed to receive. The EPL permitted Mortdale to receive and process 30,000 tonnes of waste per annum, however in 2017 Mortdale received and processed approximately 59,000 tonnes of waste. On [Date to be inserted] the Land and Environment Court accepted Mortdale's guilty plea and ordered it to: 1. Pay an amount of $ [insert total amount] to the environmental trust in lieu of a fine; 2. Pay the EPA's legal costs; and 3. Place and pay for this publication notice.
6. Annexure "B", intended by the Prosecutor to be sent by Bingo to all subscribers to its "Weekly Summary" email alert service, reads: Annexure B Mortdale Recycling Pty Ltd convicted of breaching licence offence and ordered to pay [insert total amount of fine] Mortdale Recycling Pty Ltd (Mortdale) has been convicted and fined $ [insert total amount of fine] by the Land and Environment Court of NSW for breaching a condition of its Environment Protection Licence (EPL) issued to it by the Environment Protection Authority (EPA). The EPL authorises activities at Mortdale's waste facility in Mortdale. The offence occurred between January 2017 to January 2018, when Mortdale received more waste at its licensed premises than it was lawfully allowed to receive. The EPL permitted Mortdale to receive and process 30,000 tonnes of waste per annum, however in 2017 Mortdale received and processed approximately 59,000 tonnes of waste. Mortdale admitted the breach and cooperated with the EPA. On [Date to be inserted] the Land and Environment Court accepted Mortdale's guilty plea and ordered it to: 1. Pay an amount of $ [insert total amount] to the environmental trust in lieu of a fine; 2. Pay the EPA's legal costs; 3. Pay for and place a notice in State and Local newspapers; 4. Place a notice on the company website; and 5. Place this publication notice.
7. Ms Ella also noted (Tp29, LL13-15), and the Defendant accepted (Tp49, LL8-11), that the parties had agreed on an order that the Defendant pay the Prosecutor's legal and investigation costs, agreed in the amount of $40 000. (Summons par 3, and Exhibit P3 par 1.)

The Evidence

1. I will not set out all the "facts" agreed in the SAF, but the SAF has informed much of what follows, and Exhibit P1 will remain in the Court file.
2. Associated with that SAF is an agreed bundle of documents (which became Exhibit P2). I shall refer to those documents simply by reference to a tab and/or folio number. The bundle includes a site plan (fol 41), an aerial photograph (fol 42), some detail on "management and mitigation measures" to which the Defendant has subsequently agreed (fols 43-50), and some EPA photographs from its site inspection on 12 September 2017 (fols 51 and 53).
3. Mr Hall tendered only one item - an EPA "press release", dated 23 January 2019, titled "EPA fines Benedict Recycling $15 000" (Exhibit D1), relevant, in his submission, to the Defendant's submissions in relation to even-handedness.
4. In fairness, I now set out the contents of Exhibit D1 in full (some emphasis added): The NSW Environment Protection Authority has fined Benedict Recycling Pty Ltd $15,000 for allegedly accepting more waste at their Mayfield West facility than permitted under their Environment Protection Licence. EPA Director Regional Waste Compliance Cate Woods said the fine was issued after records from the company indicated they accepted more than 40,000 tonnes of waste over the limit permitted by their licence. "At the time of the alleged breach, Benedict Recycling could lawfully accept up to 90,000 tonnes of waste per annum. During the period between May 2017 and May 2018 they received more than 130,000 tonnes," Ms Woods said. "The licence conditions are imposed to reduce the risk of pollution and limit impacts on the surrounding community from waste facilities. Operating the site at an increased level could result in increased environment risks and impacts that have not been appropriately assessed or managed." At the time of the alleged offence, Benedict Recycling had commenced work to increase the amount of waste received at the premises from 90,000 tonnes per annum to 315,000 tonnes per annum. However, conditions requiring environmental controls to be put in place before accepting more waste had not been complied with. "Benedict Recycling was aware they (sic) were required under their development consent required them (sic) to undertake works and develop management plans to control surface water discharges before increasing the amount of waste accepted. Those works were not completed but the expansion went ahead regardless." Ms Woods said. Since the alleged exceedance, the remaining works have been completed. Penalty notices are one of several tools the EPA can use to achieve environmental compliance including formal warnings, official cautions, licence conditions, notices and directions and prosecutions…

Background to the Charges

1. The relevant condition of the EPL (Tab 1, fols 10-11) reads: L2.3 The quantity of material to be received and processed at the Premises must not exceed 30,000 tonnes per year.
2. On 2 November 2015, the EPA wrote to Ms Ros Dent, the Environment Manager of Bingo Group (fol 55), in response to an application from the Defendant for a "new [EPL] for a waste management facility located at 20 Hearne St, Mortdale NSW 2223…".
3. A draft EPL was attached, which relevantly included condition L2.3, in what became its final form, and the Defendant was invited to comment on it.
4. Also in about November 2015, the Defendant submitted an application for State Significant Development ("SSD") in respect of the Mortdale site and operation, but at that time the site was governed by a Development Consent apparently issued in June 2011, and modified on 4 November 2015 (fol 28, table 2).
5. On several occasions in November-December 2015, the Defendant unsuccessfully requested the deletion of draft condition L2.3 from the proposed EPL (SAF pars 14-19), but the EPA issued the EPL, on 5 January 2016 (SAF par 20), with the condition included, unchanged (SAF par 20, and see tab 5).
6. The EPL's "anniversary date", 5 January, was noted on the first page of the licence (tab 1, fol 3).
7. It is common ground, as Ms Ella noted (Tp7, LL48-49), that the EPL was granted to be consistent, as is very often the case, with the terms of the development consent that applied to the site at the time.
8. Other relevant information about the EPL, the Defendant's premises, and its mode of operation, is contained in the SAF (pars 3-13, and 26), and at tab 13.
9. The parties agree (SAF par 21) that: At all relevant times the Defendant was aware that the [EPL] contained condition L2.3.
10. The EPL also imposed upon the Defendant specific obligations relating to waste tracking and reporting. The letter which accompanied the final licence (dated 5 January 2016 - tab 5) contained the following information on those requirements (fols 77 and 78): Annual Return Requirement In accordance with Condition R1.5 of the EPL you must submit an Annual Return to the EPA no later than 60 days after the anniversary date of their licence. The Annual Return is a declaration in which you advise the EPA whether you complied or did not comply with the requirements of your licence. … Waste Reporting All EPA licensed landfills, resource recovery, waste processing and waste storage facilities in the regulated areas of NSW are required to electronically report the amount of waste they receive and the amount of waste sent off site to other lawful facilities or for use in the environment. A new online system Waste and Resource Reporting Portal (WARRP) has been developed to allow operators to meet their regulatory reporting and levy requirements. …. Waste Tracking In accordance with Part 5 of the Protection of the Environment Operations (Waste) Regulation 2014, waste facilities are required to track all waste which is transported out of NSW. ...
11. As the operator of a scheduled waste facility, the Defendant was required, within 26 days of the end of each month, to lodge a Waste Contribution Monthly Report (WCMR), with the EPA, via its online Waste and Resource Reporting Portal (WARRP) (SAF par 23).
12. Clause 22 of the Protection of the Environment Operations (Waste) Regulation 2014 relevantly provides: 22 Waste contribution monthly reports ... (2) The occupier of a scheduled waste facility who is required to pay contributions under section 88 of the Act must, within 26 days after the end of each month, provide the EPA with the following information (in the approved form and manner): (a) the quantity of waste received at the waste facility during the month to which the report relates, (b) the waste types (determined in accordance with the Waste Levy Guidelines) of waste received at the waste facility during the month to which the report relates, (c) any approved particulars relating to the waste facility. Maximum penalty: 200 penalty units in the case of a corporation, 100 penalty units in the case of an individual. (3) If the waste facility is located outside the regulated area, the occupier of the facility is not required to provide information under this clause in relation to waste received at the facility unless the waste has been generated in, or generated from waste generated in, the regulated area. ...
13. As Ms Ella notes (Tp6, LL26-33, and p7, LL23-25 - emphasis added): … the licence requires that Mortdale not exceed a particular limit but what is required under the Protection of the Environment Waste Regulation is that every month Mortdale submit an online report… that details the amount of waste received at the premises in any given month and what clause 22 of the Regulation requires is that that report be submitted within twenty six days after the end of that month. ... … it is not just in relation to the licence, it is a separate statutory requirement that these reports be submitted by the defendant each month as a scheduled waste facility.
14. The monthly reports certified and submitted by the Defendant during the charge period are before the Court (Tab 7).
15. On 20 December 2017, after both the granting of the EPL, and the admitted breach of its limit (Tp9, LL7-8), consent was granted, in respect of the Defendant's application for SSD, by the Planning Assessment Commission of NSW ("PAC" - Tab 2).
16. That consent permits the processing of up to 220,000 tonnes of waste per annum, but on very comprehensive conditions (fols 25 to 40). Appendix B contains the "Applicant's Management and Mitigation Measures" (fols 43 to 50). Earlier relevant consents were required to be surrendered within 12 months (condition A32, fol 28).

Mortdale Recycling Breaches Licence Condition L2.3

1. The SAF notes (par 29), under the heading "Summary of waste received and processed in the Charge Period", that: During the period from January 2017 to January 2018 (inclusive), the Defendant reported into the WARRP that a total of 59,931.33 tonnes of waste was received at the Premises. Up to approximately 59,931.33 tonnes of waste was processed at the Premises during that same period…
2. The amount of waste received at the Defendant's premises during the charge period was summarised in the form of a table (SAF par 30), which is reproduced here: Month Quantity of waste received at the Premises (tonnes) Per month Cumulative total January 2017 5,112.72 5,112.72 February 2017 6,514.17 11,626.89 March 2017 7,556.01 19,182.90 April 2017 6,858.93 26,041.83 May 2017 8,086.23 34,128.06 June 2017 5,538.40 39,666.46 July 2017 5,265.10 44,931.56 August 2017 5,539.19 50,470.75 September 2017 4,454.76 54,925.51 October 2017 5,005.82 59,931.33 November 2017 0 59,931.33 December 2017 0 59,931.33 January 2018 0 59,931.33 Total 59,931.33 59,931.33

1. It can be gleaned from that table that the 30,000 tonnes per annum limit was passed by the Defendant sometime in the reporting month May 2017 and reported by 26 June 2017.
2. On 18 October 2017, the EPA issued a "show cause" letter to the Defendant (Tab 9 and SAF par 34), par D of which said: On 26 September 2017, the EPA received the Licensee's Report for August 2017. The Report states that the Premises received approximately 5,539 tonnes of waste in August 2017. Based on WARRP Reports submitted by the Licensee since 26 February 2017, the Premises has received approximately 50,813 tonnes of waste in the current annual reporting period. This exceeds the limit permitted by condition L2.3 of the Licence by 20,813 tonnes.
3. The letter went on to note (par F) that the SSD application submitted to the Department of Planning and Environment, proposing to expand the 30,000 tonnes of waste per annum limit to 220,000 tonnes per annum, was then under "assessment", and (par H) that the EPA was considering bringing the present proceedings for exceedance of the then tonnage limit.
4. The Defendant notes (Tp33) that the letter appears to have been posted and not emailed, and was probably not received until 20 or 23 October 2017, whereupon it acted upon what the EPA had put, even before it responded in writing. It effectively "closed" the site on 28 October 2017, but, clearly, it continued to accept waste for several working days after these proceedings were threatened (fol 138).
5. The Defendant responded to the EPA letter, through Ms Dent, on 2 November 2017 (Tab 10, fol 141f, and SAF pars 35 and 36), advancing the following explanations: 1. The facility has experienced a significant influx of waste due to the high level of construction and demolition activity that has been occurring across the greater Sydney area. This significant increase in the volume of waste received is not unique to Mortdale Recycling. ... 2. Secondly, an error was inadvertently made by Mortdale Recycling in relation to tracking the throughput of material for the facility - particularly, the throughput was being tracked by reference to an incorrect anniversary date. Where the anniversary date for the annual throughput should have been 5 January, it was instead tracked by Mortdale Recycling from March. The result was that Mortdale Recycling received more waste than it otherwise would have if the amount of throughout was being correctly tracked. Once this administrative error was discovered, Mortdale Recycling took immediate steps to rectify the issue by providing their customers with a reasonable period of notice of the site's closure, which closure occurred on 28 October 2017.
6. As already noted above (at [30]), the consent for SSD was granted on 20 December 2017.
7. On 22 February 2018, approximately four months after the show cause letter was sent to the Defendant, a recorded interview was conducted by officers of the EPA with Mr Damien Ryan, by then the "general manager of recycling" at Bingo Industries, with "overall [operational] responsibility", except for sales, "for all recycling centres in New South Wales and Victoria". (See "ROI" at Tab 11, and note Q19 on fol 145, and Q24 on fol 146.)
8. Inter alia, Mr Ryan confirmed (Q26) that he was aware of the waste reporting requirements for waste facilities, and (Q27) that he had submitted "plenty of" WARRP reports. He acknowledged (Q54) that, during the 2017 reporting year, the waste received at the facility exceeded the limit permitted by condition L2.3.
9. The following exchange occurred between Mr Ryan and the interviewer (Ms Pitts - Q61-65, at fols 150-151) Q 61. - - - good, thank you (Indistinct). So in relation to the conditions of the Environmental Protection Licence 20622, who is responsible for checking those conditions and ensuring compliance with those conditions? A At present and during that period, our environmental manager, Ros Dent was keeping track of all sites and the throughput during that period, and on-ongoing, and also, I suppose, overseen by myself now. Q 62. And do you know who during that period of time was overseeing - - - A Darin Anderson was the general manager of recycling during that period. Q 63. And so, do you know at what point potential contravention of Licence condition L2.3 was identified? A We closed the site on the 28 of October. It was only days before that. We gave a short notice to customers who were tipping there and closed the site, so it was somewhere around the 20th. It- well I - I started on the 23rd, so it was - it was around about that time. Q 64. Okay. So in terms of the WARRP reports, the exceedance occurred at June 2017, during - - - A Yeah. Q 65. - - - the month, for the period of time that waste was received and then the WARRP report was submitted obviously the month after that. Was the non-compliance identified prior to October 2017? A It wasn't, no.
10. Mr Ryan also confirmed (to Ms Ward - Q67 on fol 151) that it was through checking anniversary dates, on the Defendant's or Bingo's spreadsheet system, that he became aware of the non-compliance with the licence condition. He explained: ... When the sheet was built - the new sheet was built, the incorrect anniversary date was put on the sheet for Mortdale. The anniversary date of 15 March was put on there, which is actually the anniversary date for Wollongong Recycling Proprietary Limited, so I think - we think it was a cut and paste error when the sheet was created, and it wasn't picked up - it wasn't actually picked up until Ros had done something else. While reviewing these sheets, she noticed that the anniversary dates were wrong, and that was when we found out, that was in October, and at that point, we made the decision, well we just have to - we can't continue to - to keep taking waste in there, so we gave a short notice to customers and told them it was closing.
11. He was then asked (Q68) about what action was taken, aside from closing the site, when it was discovered that the limit had been exceeded, and he responded with the following comments (fol 152): A. We did a - had a - review of the system, so we went back and reviewed every single licence and made sure that the system that we had in place was running off the correct timeframes and that the data was accurate, so we did a quick audit of everything, and everything else was in line. Since then, we - we've got our own internal IT team here. Since then, we're trying to get them to create an automated system, so that we don't actually have to manually input into a sheet…
12. The following exchange then occurred (with Ms Pitts again, at Q71-72, fols 152-153): Q 71. - - - EPL 20622. ... can you just read for the record the quantity of waste that was received at Mortdale Recycling for 2017 as shown on the WARRP reports? A 48,304.44 tonnes. Q 72. And do you agree that that exceeds the limit permitted by the Environment Protection Licence 20622, specifically Condition L2.3? A It does.
13. When invited (Q74) to add "anything else further", Mr Ryan said: ... it was an - an honest mistake ... we're not in the habit of deliberately contravening licence conditions ... it was a human error in creating the ... spreadsheet ... it's not an ideal system, but we've taken measures to improve the system ... and ... to implement a new system ... (See generally Tpp35-36.)
14. The Defendant's annual return for the 2017 year (Tab 8) contains (on p3), under the heading "C2. Details of Non-Compliance with Licence", an admission by the Defendant that the total amount of waste received in the reporting period had exceeded 30,000 tonnes (see also SAF par 33).
15. Under the heading "cause of non-compliance", the Defendant gave an explanation similar to that contained in its response to the EPA's show cause letter, and in the ROI ([38] and [43] above), namely: An error was inadvertently made by Mortdale Recycling in relation to tracking the throughput of material for the facility from an incorrect anniversary date in March instead of 5 January. Excessive volume of construction and demolition industry activity within the region resulting in significant increase in the volume of waste generated by that industry and demand for resource recovery services and insufficient capacity in the industry currently to support increased demand. (See also SAF par 33.)
16. The Prosecutor included in the bundle (at Tab 12) a "CD" containing the Defendant's weighbridge records, which had been provided to the EPA, pursuant to a statutory notice. The Prosecutor provided to the Court an extract of those records, and Ms Ella explained (Tp11, LL41-45): I'm just taking the Court to this to show that these are the records collected by the defendant at its weighbridge and provided to the Court, to the EPA under statutory notice. It's just another way I suppose that the amount of waste received at the premises is tracked each time a truck goes through the weighbridge.
17. The SAF also records (in par 33): Action taken or that will be taken to mitigate any adverse effects of the non­compliance Nil adverse effects directly associated with the volume of waste accepted on site. Immediate steps were taken to cease the acceptance of waste at the Premises after first providing customers with reasonable notice. After 28 October 2017, no waste was received at the Premises during anniversary period. Action taken or that will be taken to prevent a recurrence of the non­compliance Site will be closed for purpose of waste acceptance prior to exceeding limit or for demolition and construction in relation to SSD15-7421 whichever first occurs. Development Approval SSD 15-7421 has been issued by the Department of Planning and Environment to increase throughput to 220,000 tonnes. Technical reports submitted with the application support the proposed throughput.

Sentencing Considerations

1. The sentence imposed by the Court must reflect its synthesis of both the objective circumstances (and seriousness) of the offence, and the subjective circumstances of the offender: Markarian v The Queen (2005) 228 CLR 357 ("Markarian").
2. The sentence to be imposed must be proportionate to the objective seriousness or gravity of an offence, in addition to the Defendant's subjective circumstances: Veen v The Queen (No 2) (1998) 164 CLR 465 ("Veen No 2"), at 472.
3. As noted by the Prosecutor (subs par 25), the Court must consider the following in sentencing the Defendant: 1. The objective factors of relevance in s 241(1) of the POEO Act; 2. Any subjective factors of relevance under s 21A of the Crimes (Sentencing Procedure) Act 1999 ("CSP Act"); 3. The purposes of sentencing under s 3A of the CSP Act; and 4. The objectives of the statutory regime under which the offence is committed, being those set out under s 3 of the POEO Act.
4. I now set out some of those provisions.
5. Section 3 of the POEO Act provides: 3 Objects of Act The objects of this Act are as follows: (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, (b) to provide increased opportunities for public involvement and participation in environment protection, (c) to ensure that the community has access to relevant and meaningful information about pollution, (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, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (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, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, (g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001.
6. Section 241(1) of the POEO Act provides (emphasis added): 241 Matters to be considered in imposing penalty (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, (e) 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.
7. The purposes of sentencing are contained in section 3A of the CSP Act, which 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, (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.
8. Section 21A of the CSP Act provides: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. ...
9. Section 21A(2) includes, as possible "aggravating factors" in the present matter: (g) the injury, emotional harm, loss or damage caused by the offence was substantial; and ... (o) the offence was committed for financial gain,
10. Section 21A(3) includes, as possible "mitigating factors" to be considered: 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, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (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), (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23), ...

The Markarian Synthesis

1. I turn first to the objective circumstances of the present offence, commencing with its objective seriousness or gravity, which fixes both the upper and lower limits of the proportionate punishment - the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen No 2, at [486].

The Nature of the Offence

1. The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision contravened, and its place in the statutory scheme.
2. The Prosecutor submits (at par 28) that, through the Defendant's breach of s 64(1) of the POEO Act, by contravening a condition of its EPL, the Defendant undermined the statutory scheme, and offences which undermine the integrity of the regulatory system are objectively serious: Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121 ("Rae"), at [19].
3. Craig J noted in Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39 ("Huntsman"), at [64]: …the licensing system created by the POEO Act reflects an important aspect of a precautionary and adaptive management approach to an activity where environmental impacts may result from its operation. The imposition of licence conditions are therefore an integral part of prudent environmental management and regulation (Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 at [76]).
4. Recently, in Environment Protection Authority v Wollondilly Abattoirs Pty Ltd [2019] NSWLEC 72, Pain J made the following comments (at [35]): …I accept the EPA's submissions that EPLs are the primary means of regulation under the POEO Act. A strong regulatory framework is the key mechanism by which objectives in s 3(a), (d), (e) and (f) of the POEO Act are achieved. The EPA relies on information provided by licence holders in quarterly reports and annual returns to effectively regulate licensees and prevent harm to the environment. Annual returns also provide an additional means whereby breaches of a licence can be disclosed.
5. As the Prosecutor submits (par 30), the Court's assessment of objective seriousness is assisted by the objects of the statute (set out at [55] above).

The Maximum Penalty

1. A fundamental consideration of relevance to environmental offences is the degree by which, having regard to the maximum penalties provided by the statute in question, the offender's conduct would offend against the legislative objectives expressed in the statutory offence: Plath v Rawson (2009) 170 LGERA 253 at [49].
2. The maximum penalty available for offences against s 64(1) of the POEO Act, for a corporation, is $1,000,000, and represents a public expression of the seriousness with which parliament, and by extension, the general community, views such offences: Camilleri's Stock Feeds Pty Ltd Environment Protection Authority (1993) 32 NSWLR 683 at [698] (subs par 33).

The Defendant's State of Mind

1. The Prosecutor submits (par 34) that the Defendant committed the offence either intentionally, or negligently.
2. Ms Ella further contended that there was evidence that the Defendant committed the offence knowingly. She said (Tp15 LL7-9): …Mortdale not only knew and was very much on notice about the maximum amount of waste that it was permitted to receive at its premises in a reporting period, it also knew about the licence anniversary date.
3. The Prosecutor argued that the Defendant had provided no evidence to support its assertion that it had mistakenly tracked the waste against a March 15 licence anniversary date. On the other hand, the anniversary date is clear on the face of the EPL, and is mentioned in the EPA's letter to the Defendant, dated 19 February 2017 (Tab 6).
4. Ms Ella submitted (par 36) that, even if the Defendant had tracked its waste against the March date, it would nonetheless have been in breach of the licence conditions. She said … even if Mortdale was tracking its waste against a 15 March licence anniversary date, based on the amount of waste it received at the Premises from March 2017, it still would have exceeded the 30,000-tonne Licence limit in July or August 2017. That is, if the waste received at the Premises in January and February 2017 was excluded from the total amount of waste received at the Premises in the 2017 Reporting Period and only the waste received from March 2017 was tracked, the Premises still would have reached and exceeded the 30,000-tonne limit by July 2017…
5. The Prosecutor demonstrated this submission by again producing a table which showed how much waste was received at the premises per month along with the cumulative total (subs par 36, duly corrected*): Month Quantity of waste received at the Premises (tonnes) Per month Cumulative total March 2017 7,556.01 7,556.01 April 2017 6,858.93 14,414.94 May 2017 8,086.23 22,501.17 June 2017 5,538.40 28,039.57 July 2017 5,265.10 *33,304.67 August 2017 5,539.19 38,843.86 September 2017 4,454.76 43,298.62 October 2017 5,005.82 48,304.44

1. The Prosecutor then submitted (at 37-39): 37. If, as it says, Mortdale "mistakenly" tracked the waste against a 15 March licence anniversary date, then it would have knowingly and continuously received and processed waste at the premises in excess of the amount permitted under the Licence in August, September and October 2017. 38. In short, Mortdale sought to resist the limit imposed by the Licence at the time when the draft Licence was provided to it and then intentionally received more waste than was permitted under the Licence. A strict liability offence, such as an offence under s 64, that is committed intentionally, negligently or recklessly is objectively more serious. ... 39. Mortdale is a commercial waste operation that receives financial payment for the waste it receives and processes at its Premises. ... Mortdale continued to receive waste at its Premises beyond what was permitted under its Licence as it had a commercial imperative to receive the consequential income.
2. Ms Ella noted, in her oral submissions (Tp16, LL3-5): Now it's not as though this company Mortdale is a small operator or a family business, it is owned by Bingo Industries, a large parent company with substantial resources at its disposal…
3. The offence in question is one of strict liability, and it is a well-established principle that where an offence of strict liability is committed intentionally, recklessly or negligently it will be more objectively serious: see, e.g., Rae, at [42].
4. Mr Hall disputed (Tp41 LL9-11) that the offence was committed intentionally or wilfully: In its written submissions, the Defendant maintains (par 22): 22. A submission is made by the prosecutor that the offence was committed intentionally and wilfully. It is unsupported by evidence and indeed is contrary to the evidence in the agreed bundle. The Court cannot be satisfied beyond reasonable doubt that the breach was wilful or intentional in the sense contended for.
5. I accept that submission, and am not satisfied beyond reasonable doubt that the offence was committed intentionally. Relevant knowledge does not amount to intention or wilfulness.
6. However, this was clearly a case of negligence, perhaps bordering on recklessness. The Defendant well knew the maximum amount of waste it was permitted to receive at the subject premises, and was obliged and expected to monitor and report the waste it received. As the Prosecutor noted, the company, as a subsidiary of such a large operator, should have had better procedures in place to ensure that systematic failures do not occur.
7. In fairness to the Defendant, I should record here some supplementary submissions Mr Hall made orally, which I have considered carefully: 1. (Tp33, LL8-13): ... there must be a relative distinction between those who simply ignore the licensing regime entirely and just get on with the business in the way that suits them and those who seek to comply with it but ipso facto because we're before the court, have failed in their attempts. And we submit that we're entitled to be treated in that second category as somebody who did make real attempts to comply with the licence. 1. (Tp41, LL9-21); As we have said in our written outline at para 22, we submit that you cannot be satisfied to the necessary standard, which is beyond reasonable doubt, that the error occurred in a way that was either intentional or wilful, at least not in any useful sense of those two words. That's to say we're not making some sort of case of automatism or suggesting that people snuck into the premises at night when we weren't looking and dumped material. Of course we knew that material was being received and we were accepting and processing it, the only point though that would count against me under this heading of Intentional or Wilful would be if we were doing that knowing that a condition of the licence was being breached by that act. It is that that we say on the whole of the evidence, far from being satisfied beyond reasonable doubt that we did know, you would find that the evidence on balance shows that we did not know in any relevant conscious sense that the licence was being breached. and 1. (Tp44, LL13-34): The prosecutor says that if you don't find it to be intentionally wilful you should find it to be negligent, well with great respect that doesn't say anything really because a negligence analysis of a strict liability offence is not helpful. The only distinction I submit that is relevant on sentence is did you do it knowingly or did you know it; and that if you did not do it knowingly then the exact parsing of the proper description of how you did do it adds nothing. The reason why I say negligence doesn't help here is because the existence of a duty is obviously provided by the statute and the fact of a breach of that duty is provided by the fact that we're here pleading guilty to the offence and there is no occasion between those two steps to have an enquiry into the - the negligent case would be the significant intervening step which is what were the steps that required others to comply with that duty, because the steps that were required of you to comply with the duty are simply that you must not exceed the licence. I'm sorry, I've made too elaborate a meal of that really. What I'm saying is there's no further step in the chain, if you didn't do it deliberately then as stated by the defendant has no further role to play in the sentencing consideration. It's a serious aggravating factor if you do do it deliberately and it has nothing to say if you are simply one of those defendants who is caught because of the fact that it's a strict liability offence.

The Harm caused by the offence

1. The harm caused by the commission of the offence is a factor relevant to sentencing, under not only s 241(1)(a) of the POEO Act, but also ss 21A(2)(g) and 21A(3)(a) of the CSP Act.
2. "Harm" is defined in the dictionary of the PEOA Act as: harm to the environment includes 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.
3. When considering harm in the context of sentencing proceedings the Court has to grapple with the concepts of "actual", "potential", and "likely" harm. I said, in Environment Protection Authority v Wyanga Holdings Limited; Environmental Protection Authority v Cauchi [2015] NSWLEC 78 ("Cauchi"), at [123]: I agree with the prosecutor that the exceedances across the respective licence periods carried with them a "potential" or "risk" of harm to the environment. The defendants are incorrect when they submit that the prosecutor's concession that it was unlikely that harm would have occurred as a result of the exceedances, conflicts with the submission that they had a potential to give rise to harm. Although harm may be unlikely, there remains "potential" for it to ensue.
4. The Prosecutor conceded in the present matter (par 41): It is not suggested by the Prosecutor that the offence caused any actual or likely harm to the environment. ...
5. However, the Prosecutor submitted (par 41) that the offence undermined the regulatory regime, and had the potential to cause environmental harm.
6. The principles surrounding harm, and the notion that harm may include the potential risk of harm, were articulated by Preston J in Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 ("Waste"). In a well-known and often-cited passage, His Honour said (at [145]-[149]): 145 Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. 146 Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174]. 147 Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously. 148 The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 149 The fact that the environment harmed by the offender's conduct was already disturbed or modified is not a mitigating factor ...
7. Craig J, in Huntsman, at [74], acknowledged "potential harm" as "an important factor" in a prosecution under the POEO Act.
8. Intensification of any activity increases environmental pressures, but "any environmental impacts arising from the intensification of the activities beyond the throughput limit in Condition L2.3 at the Premises have not been assessed" (SAF par 38).
9. Ms Ella also pointed out (subs par 43) that increasing the lawful capacity of the premises beyond 30,000 tonnes of waste per year would be considered "designated development", requiring a very rigorous environmental assessment process. She concluded: ... There is clearly the potential for harm where the amount of waste received and processed at the Premises exceeds the limit imposed by the Licence.
10. She amplified that submission orally (Tp17, LL34 - 49), saying, inter alia: ... If consent for that type of development had been obtained at the premises, which is what would have been required for it to receive the waste that it did in the 2017 reporting period, 59,999 tonnes, noting the threshold and the licence limit of 30,000 tonnes - if it had made an application to lawfully receive that waste, it would have been subjected to a much more rigorous environmental assessment process.
11. The Prosecutor also noted (par 44) that the long duration of the offence (five months) "fundamentally undermines the regulatory scheme for potential environmental damage from an industrial activity", and "increases the potential for environmental harm, and ... the objective seriousness of the offence compared to an offence of short duration".
12. Mr Hall submitted (Tp30 LL40-41) that the likelihood of actual harm occurring was "at the very low end of the scale".
13. In respect of the SSD approval granted to the Defendant's parent company, subsequent to the offence period, the Defendant submitted (pars 17-18): 17. … That was obtained in part on the basis of an EIS dated June 2016. It demonstrates that issues such as dust, noise and traffic are capable of being adequately addressed at processing levels much higher than those wrongly permitted by the Defendant in 2017. 18. The fact that the [PAC] was satisfied, during the charge period, that it was appropriate substantially to increase the permitted quantities is also relevant to assessing how unlikely it was that the exceedance would cause actual harm.
14. Mr Hall added, orally (Tp30, L38-p31, L5; p31, LL21-29; and p32, LL15-18): ... there is agreement between the parties that no actual harm to the environment was occasioned by the offence. But I also make the submission that the circumstances of this offence mean that the likelihood of that harm occurring was also at the very low end of the scale. Your Honour will have had before you environmental defences in which it was the case that no environmental harm had occurred, but the Court must have felt the defendant had got away with it by the skin of their teeth. This is not such a case because the approved procedures that were in place at the recycling facility have satisfied both the EPA in issuing its licence and also the local authority in issuing its development consent that material could be received, stored and processed there. And there is the significant factor of the fact that an EIS had been prepared and submitted, and in the very period with which you are concerned, was considered and accepted by the PAC as reflecting the capacity to process material safely at this site, so that it is not simply a case where we got lucky and no harm occurred; it is a case where there was no significant likelihood that actual environmental harm would have arisen from the over-exploitation of the existing licence. ... ... that first type of harm - that's to say, the harm that might be brought about by the intensification of the activity in terms of more truck movements or more hours or more dust - is answered in this case we say by the existence of the post facto development consent delivered in December 2017. That indicates that on a fully informed assessment by an expert panel, the PAC was satisfied that the plant could safely operate at more than seven times its existing licensed volume, and for that reason, more than three and a half times the improperly-operated volume that occurred during the charged period. ... … the fact that we got permission for a much larger volume only a month or two later is evidence that you can treat the likelihood that the over use of our licence in the months of 2017 caused harm by things like extra dust noise or traffic is at the very lowest end of the scale.
15. Mr Hall went on to submit (Tp32, LL23-41): … what I want to do is to draw a contrast between cases where the licence is to carry out a recycling activity in cases where the licence is to carry out an environmentally harmful activity such as to clear a certain area of land, to discharge a certain amount of waste into a waterway, to discharge a certain amount of waste into the air. In those cases of exceeding the condition of the licence it is necessarily the case that the impacts of the activity on the environment is increased. In an extraction case ... it is at least a strong inference that the impact on the environment is increased because there is more of the extracted material now downstream in the processing or use chain but here that is not the case. Here the effect of overusing our licence was that more demolition waste was removed and recycled and ... the entire industry in this period was operating at capacity so that had it not been for this exceeding of the licence you would infer that the additional material could not have been received for reprocessing but nonetheless would have had to be in some other way disposed of…
16. With respect, that submission ignores the potential for harm arising from the unlawful intensification of the Defendant's activity.
17. Cauchi involved the exceedance, admitted to have been intentional, of an EPL covering quarrying activities. I concluded (at [126]), that: … Increasing the intensity of an activity for which an EPL is issued, contrary to that EPL, must, generally, give rise to a potential risk of harm to the environment.
18. Accordingly, I conclude, in the present circumstances, as in Cauchi, (1) that there existed the potential for environmental harm arising from the intensification of the waste processing activity, (2) that there was little likelihood of future harm occurring, and (3) that there was harm done by the undermining of the regulatory regime.
19. I accept, however, Mr Hall's submission (Tp32, L18) that the potential for harm was "at the very lowest end of the scale".

Section 241(1) considerations

1. Section 241(1) of the POEO Act requires the Court to take into consideration not only the question of harm, but also "the practical measures that may be taken to prevent, control, abate or mitigate that harm", the foreseeability of it, and the degree of autonomy and control possessed by the offender.
2. As Ms Ella submitted (Tp18, L40 to p19, L3): ... With respect to 241(1)(b), Mortdale was under a positive obligation to take proper precautions to ensure that it did not exceed the limits of its licence and to arrange its business activities accordingly. This Court has said on numerous occasions that it is not nearly enough to take care; care must be supplemented by positive precautions and sometimes those precautions may be costly. But those precautions must be taken to ensure that breaches such as this do not occur. Mortdale could easily have avoided the commission of this offence simply by not receiving more waste that was permitted under its licence. It was Mortdale that operated the weighbridge, it was Mortdale that decided whether to accept trucks coming through that weighbridge, and if it had ceased receiving waste at the relevant time, when it reached the 30,000 tonne limit, it would have prevented any potential harm arising from the offence.
3. The Defendant could, and should, have been more vigilant in preventing the commission of this offence, given that it was clearly reasonably foreseeable that receiving a volume of waste in excess of that permitted under its EPL could potentially harm the environment: Tp19, LL5-7.
4. While the Defendant did not specifically address the factors under s 241(1) in its written submissions, it did make the following written submissions under the heading of objective seriousness (pars 19-21) 19. … there is a range of seriousness and the current offence is at the bottom of the range. The Defendant never failed to meet its monthly reporting requirements and the offence came to light because it itself reported tonnages in excess of the limit. The limit was never deliberately disregarded or exceeded… The conduct stopped promptly when discovered… 20. The Defendant has taken steps taken (sic) to prevent, control, abate and mitigate any potential harm. The Defendant had a system in place to prevent such harm, albeit that the system failed on this occasion… 21. Mortdale Recycling responded to the breach immediately by taking further steps to stop further harm and prevent repetition…

Conclusion on Objective Seriousness

1. The Prosecutor submits that there was no actual environmental harm caused, but that it was either an intentional or negligent breach, and (Tp40, LL40-46) that the Defendant should have known of its exceedance by 31 July or 1 August.
2. However, is submits (par 46, and Tp19, LL16-17) that the offending should be regarded as being of "low to medium" objective seriousness.
3. The Defendant submitted (at par 25 - some emphasis added) that: ... the offence should be treated as inadvertent in the sense of there being no deliberate departure from the condition, and as being the result of a system breakdown. Combining that with the absence of actual harm, remote likelihood of environmental damage and the low level of potential harm, the offence is at the low to very low end of the spectrum of objective seriousness.
4. I agree with the Prosecutor's submission that the offence should be categorised as being of a "low to medium level" of objective seriousness.

The Subjective Factors relevant to the offending

1. I turn now, secondly, to the subjective elements required by Markarian to be synthesised with the above objective elements.
2. The Prosecutor submitted that, as the offence was committed in the course of running a business, it was committed for financial gain, which can be established even if no profit was earned: Environment Protection Authority v M A Roche Group Pty Ltd [2014] NSWLEC 114 ("M A Roche 2014"), at [22].
3. The Defendant is acknowledged (Pros. subs par 49(b)) to have provided assistance to the Prosecutor in its investigation, and in the preparation of its case on sentence. Compliance with compulsory processes is regarded as a "neutral factor" in this respect: per Pain J in Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106, at [55]. However, the Court acknowledges the frankness of the Defendant in dealing with the "show cause" letter, and at the interview (Tp47, LL26-38).
4. The Defendant submits (par 26) that it took immediate and voluntary remedial action once the breach had been discovered, comprehensively reviewing its monitoring systems. I accept that, in practical terms, c.f. Tp24, LL28-30, the remedial action was taken by the Defendant fairly promptly.
5. The Defendant also submits (par 30), and the Prosecutor acknowledges (par 49(c)), and I accept, that the Defendant has no prior convictions for environmental offences.
6. There is nothing before the Court to suggest that the Defendant is not of good character, or has poor prospects of rehabilitation, or is likely to re-offend (s 21A(3), par [60] above).
7. I turn, now, therefore, to questions of contrition and remorse, and to the Defendant's guilty plea.

Contrition and Remorse?

1. In Waste, Preston J said, of contrition and remorse which might justify moderation of sentence (at [203], [204], [210], [212], [214], and [215] - citations omitted): 203 Contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives. The actions underlying genuine contrition and remorse may take at least four forms. 204 First, the speed and efficiency of action to rectify any harm caused or likely to continue to be caused by the commission of the offence is the clearest indication of contrition and remorse. Where it occurs it justifies a reduction in the sentence ... ... 210 Secondly, voluntarily reporting the commission of the offence and any concomitant environmental harm to relevant authorities indicates a genuine desire to act responsibly. Environmental regulation depends upon the integrity of persons making full disclosure. Voluntarily reporting breaches should therefore be acknowledged as a mitigating circumstance by the courts in sentencing ... ... 212 Thirdly, the taking of action to address the causes of the offence, such as designing and installing improved pollution prevention and control systems, also indicates a genuine desire to act responsibly ... ... 214 Fourthly, the personal appearance of corporate executives in court and their personal evidence outlining the company's genuine regret and stating future plans to avoid repetition of such offences is an indication of genuine corporate contrition ... 215 The defendant personally expressed its contrition and remorse to the Court in two ways: first, by the evidence of Ms Mitchell, the defendant's General Manager - Sustainability and Assurance, who expressed deep regret and remorse in respect of the incident, and secondly, by the personal attendance at the Court hearing of the defendant's Chief Executive Officer.
2. Ms Ella complained (Tpp21-22), in terms of those four criteria: 1. that the Defendant's response lacked "speed and efficiency" in reporting its breaches (Tp21, LL19-29); 2. that, although the Defendant did make its regular reports, "it was not until ... the response to that show cause letter" that it went beyond its mandatory disclosures, and (Tp21, LL31-39) voluntarily reported its offence; 3. that responsive action was limited to "a quick audit", and "trying to get an automated system" (Tp21, LL41-47), an effort which was still unresolved by 22 February 2018 (Tp21, L49-p22, L5); but see the Defendant's responses at Tpp33, 34, 36, 37, and 44; and 4. wrongly (Tp22, LL7-18), that no executives of the Defendant had appeared in Court, and, correctly, that there was no sworn expression of contrition before the Court.
3. She had noted (par 54), in the context of submissions regarding specific deterrence, that the Defendant had not, at the time of filing its submissions, expressed any contrition or remorse, and she said (Tp25, LL28-29): ... At no point has any expression of regret or remorse been put to the Court or to the EPA for the offence.
4. On the other hand, the Defendant submits (par 29) that its contrition is: … evidenced by its guilty plea, its immediate cessation of processing, its co-operation and by the attitude taken by its senior officer in his interview.
5. Mr Hall also submitted (Tp30, LL12-20): … I shall emphasise strongly to you the objective factors of the case that we say show it to be at the lower range of seriousness, but I must do that without giving you the impression that we are resiling from the frank admission that we've made of the offending conduct. We say that the subjective factors are strongly in our favour in this case, and I would have done my client no favour if, in addressing you on the issues of harm and intent, I gave the impression that we were other than fulsome in accepting that the conduct had occurred and in the expressions of regret that have been made and which I'm instructed to repeat. and (Tp48, LL9-11): ... I hold and have exercised instructions to repeat the apology and the expression of regret of the defendant for the breach that has occurred.
6. Mr Hall also noted that Damien Ryan, the senior Bingo Industries officer interviewed by the EPA, attended Court throughout the sentencing hearing, which Mr Hall submitted (Tp30, LL22-28) was "a further indication to Court of the seriousness with which the defendant is treating this case and the fact that it is entirely embracing the responsibility it must undertake for what has occurred".
7. I accept that the Defendant has displayed a level of contrition and remorse, in addition to that evidenced by its timely plea of guilty, to which I now turn.

Guilty Plea

1. The Prosecutor notes that the Defendant pleaded guilty on 27 September 2018 (subs par 49a.).
2. Ms Ella complained that the Defendant declined to plead until after it had required the Prosecutor to put on its evidence under s 247E (Tp19, LL44-50), but she conceded that the Defendant was entitled to a discount of 20% for its plea (see Tpp19-20).
3. The Defendant submits (par 27) that it pleaded guilty to the offence at the first reasonable opportunity, and should, therefore, be entitled to the maximum discount, namely 25%: R v Thomson; R v Houlton (2009) 49 NSWLR 383; [2000] NSWCCA 309
4. I agree with the Defendant (see discussion at Tp45, L1 to p47, L22, which I need not repeat), and I accept that it entered its guilty plea at the earliest reasonable opportunity. See Environment Protection Authority v Signium Pty Ltd [2018] NSWLEC 126, and Robson J's discussion in Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132, at [73]-[77].
5. I will apply the full discount of 25% for the utilitarian benefit of the Defendant's guilty plea.
6. I now turn to consider several other challenges the Court faces in sentencing.

Deterrence?

1. The Prosecutor contends that both general and specific deterrence are important considerations in the present case.
2. General deterrence is always regarded as particularly important in the context of environmental offences, as potential offenders will not be deterred if only nominal punishment is imposed for such offences: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234, at [140].
3. I certainly agree that general deterrence is an important consideration when sentencing for offences against the POEO Act, such as in this case.
4. The Prosecutor contends that specific deterrence is also called for, because, as she put to the Court (subs par 54): ... Mortdale's breach was intentional; was committed for commercial gain; it will continue to operate as a waste facility; and Mortdale has not expressed any contrition or remorse (as at the date of filing these submissions). (I have found the breach to be not intentional, and I have dealt with contrition and remorse above.)
5. On the other hand, the Defendant submitted (par 26) that, once it became aware of the breach of its licence, it ceased all operations until the next reporting period commenced, and reviewed its monitoring systems, so "nothing further is required to achieve specific deterrence".
6. I accept the Prosecutor's fundamental submission that an element of specific deterrence is called for, given the Defendant's continuation in the waste industry.

Evenhandedness

1. Evenhandedness requires the sentencing Court to consider any sentencing patterns for similar offences in order to ensure sentences are applied consistently: R v Visconti (1982) 2 NSWLR 104 at 107.
2. However, each case turns on its own facts and circumstances. Preston J said, in Environment Protection Authority v Ditchfield Contracting Pty Limited [2018] NSWLEC 90 ("Ditchfield"), at [72]: The sentence that I consider to be appropriate to be imposed on Ditchfield for the offence it committed is not inconsistent with the sentences imposed in those cases that provide a check or yardstick. The amounts of the fines imposed in those cases vary considerably, depending on the particular facts found about the objective and subjective circumstances of the offence and the offender involved and any other component of the sentence (such as the amount of costs ordered). It is not a useful exercise to compare only the amount of the fine imposed in each of those cases with the amount of the fine that I consider to be appropriate in the present case. They are different but that is because the circumstances are different. Furthermore, the more appropriate yardstick against which the sentence in this case should be compared is the maximum penalty set by Parliament for the offence ($1,000,000) rather than the amounts of the fines imposed in past cases.
3. The Prosecutor included, in an Attachment A to its submissions, details of other cases where this Court has sentenced for offences against s 64 of the POEO Act, and which the Prosecutor contended were relevant to sentencing in this case.
4. In her oral submissions, Ms Ella focussed, in particular, on Cauchi ([83] above), and Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 ("M A Roche 2015"). (In Cauchi (at [120] and [121]) I made reference to both M A Roche 2014 and M A Roche 2015.)
5. In Cauchi, as in the present case, there was no actual environmental harm to the environment, but there was the potential for harm. The offence in that case was admitted to have been committed intentionally, and I found that its overall objective seriousness was "low to moderate". A number of subjective mitigating factors favoured the three Defendants, and the principle of totality had to be applied, as well.
6. M A Roche 2015 also involved quarrying activities, and the Defendant handled in excess of 62,000 tonnes of material within a 12 month period, more than the 30,000 tonne limit imposed by the conditions of its EPL. The objective seriousness of the breach was assessed by Craig J as "low to medium". A notable distinction (as pointed out by Mr Hall) was that the Defendant in M A Roche 2015 did have a prior record of offending, including for an offence against s 64(1) of the POEO Act. The Defendant was ultimately fined $52,000, after the Court took into account substantial discounts for the applicable subjective mitigating factors, and an additional 25% for the Defendant's utilitarian guilty plea.
7. The present Defendant submitted (par 32): Having regard to the circumstances of this case it would be appropriate to decline to order a fine. In lieu of a fine it would be appropriate that a conviction be recorded and the Defendant pay a contribution to the prosecutor's investigation and legal costs, but that no other penalty be imposed. The prosecutor had (and should have adopted) the option of imposing a fixed penalty, by notice, of $15,000 and that is a guide to the appropriate level at which the contribution to costs should be set. It has used that notice procedure in closely similar cases in recent months: see the attached announcement from its own website [Exhibit D1]. It is not clear why that was not done in this case.
8. On the contents of Exhibit D1, Mr Hall submitted (Tp51, LL38-49): … It's a very recent report. The announcement is dated 23 January this year and you will see that it is a breach by exceedance of an annual limit on the tonnage of material permitted to be accepted by a facility of 90,000 ton limits, they went to 130,000 tons. I'd submit, that in very broad terms, that's comparable to the degree of exceedance here. I don't pretend an exact compliance but it's close. The effect of that was that without the need to incur significant legal costs, the company was effectively fined $15,000 for the breach, which would strongly suggest, I submit, that the fine to be imposed here could not be higher than, and indeed it should be significantly lower than that $15,000, to reflect the fact that there is the additional impact on the defendant here, having been found by a court to have committed the offence and of having to pay the prosecutors and its own legal costs along the way.
9. In her submissions regarding the Defendant's reliance on Exhibit D1, Ms Ella argued (Tp28, LL15-24): As I understand it exhibit D1, and the reference to that penalty notice, is put to the court on the basis that that is what the court should have regard to in considering the principle of even handedness. The prosecutor submits that it is not relevant to have regard to the maximum amount of that penalty notice, or that penalty notice, and the facts and circumstances under which that penalty notice was issued are not before the court. An administrative decision was made by the EPA not to prosecute for that particular offence, and a decision was made by the EPA to prosecute for the offence that is before the court. The relevant yardstick are (sic) similar cases and the maximum penalty, not a penalty notice.
10. I agree with Ms Ella. It would be inappropriate to use the penalty notice as a comparison from which to draw a conclusion on the appropriate penalty for the present case. A prosecutor's administrative decision is not the best measure to which the Court ought refer in coming to its conclusion on the appropriate penalty. (See also discussion, by Biscoe J, in Environment Protection Authority v Djura [2012] NSWLEC 122, at [58]-[72].)

Appropriate Penalty to be applied

1. A conviction ought to be recorded, even though I accept what Mr Hall put (Tp43, LL20-25): ... you cannot draw any adverse inference against my client from the fact that it did its best get a more liberal licence in the first place, it does not follow from that that it treated itself as having obtained that licence. Far from it, it treated itself as being required to go through the elaborate and expensive process of obtaining a new development consent in order to overcome the difficulty.
2. I reject the Defendant's submission (par 32) that no monetary penalty be imposed.
3. The maximum penalty is $1million, and it appears to be common ground that this particular offending is above the lowest level of seriousness.
4. I am, however, also conscious of the Defendant's agreement to satisfy a substantial costs order in the sum of $40,000: EPA v Barnes [2006] NSWCCA 246.
5. The amount of the appropriate fine will be ordered to be paid, as sought in Exhibit P3, to the Environmental Trust, pursuant to s 250(1)(e).
6. Having regard to the relevant authorities, particularly M A Roche 2015 and Cauchi, I consider the appropriate "penalty amount" in this case to be $40,000, discounted by 25% for the Defendant's guilty plea, thus bringing it down to $30,000.

Other Orders?

1. Mr Hall submitted (par 33) that any publication order would be "disproportionate to the seriousness of the offence", and would "serve no useful purpose or general or specific deterrence".
2. He added, in his oral submissions (Tp52, LL10-17, LL26-28, and LL33-36): In my submission, the Court would not exercise that power provided by the Act, to order advertising, on the purpose to be achieved by it, is to increase the embarrassment of the defendant and to allow the prosecutor to trumpet its success. There must be something additional that the Court believes would be achieved by making that order before it would be warranted in adding that in addition to whatever else the Court determines should be done. ... Only the holder of an environmental protection licence for recycling processing is capable of committing the offence with which we are charged and that is a small handful of people. ... So there is nothing to be gained here by publishing in the Sydney Morning Herald a large advertisement except as I say to permit the EPA to put into its scrapbook another record of its own success.
3. I respectfully disagree with those submissions.
4. Mr Hall, however, conceded (Tp52, L48-p53, L6): If ... you were persuaded that there was a need for general deterrence to bring this event to the attention of those who are likely to be in a position where they could inadvertently or otherwise commit a similar offence, then that would be achieved fully by notification in the specialist trade journal, which is the second of the three journals that are listed in Ms Ella's draft order. Even that is unnecessary because in an industry of this sort, or a major player like the Bingo Group is concerned, you would have complete confidence that everybody else in the industry would know of these events or would hear of them without the need for that additional step.
5. The making of a publication order has been shown to be of great utility in serving the objectives of deterrence. As Preston J observed, firstly in Waste, at [242]: Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma ... and later, in Ditchfield, at [76]: The main purpose of publicising the detection, prosecution and punishment of Ditchfield for the offence is to improve the effectiveness of general deterrence. People and businesses need to be aware that the offence of pollution of waters committed by Ditchfield is a crime, that offenders will be prosecuted and that the courts will impose significant penalties on offenders. By such awareness, people and businesses will be deterred from committing the offence. However, in order to achieve this purpose of deterrence, notice must be published in publications and other media accessed by the people and businesses who are to be deterred. The offence of pollution of waters is committed widely and not only in a particular industry. Publication of the notice therefore needs to be widespread. Publication in both a State-wide and a regional newspaper, as well as a trade publication, is appropriate.
6. Pepper J added, in Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103, at [256]: Because a publication order is made in addition to, rather than instead of, any penalty (Environment Protection Authority v Incitec Limited [2003] NSWLEC 381; (2003) 131 LGERA 176 at [58]-[59]) it ought not be considered in determining what financial penalty should be imposed.
7. In Secretary, Department of Planning and Environment v SingTel Optus [2019] NSWLEC 44 ("Optus"), I examined (at [30]-[34]) some of the key issues, and the earlier authorities, on the making of publication orders, and I adopt that analysis here, without repeating it.
8. I found, in Optus (at [44]), that a low level of objective seriousness did not override the appropriateness of making a publication order.
9. I, therefore, conclude that, in the circumstances of the present case, the making of publication orders, generally in the amended terms on which the Prosecutor and the Defendant agreed ([9] and [10] above), is entirely appropriate.

ORDERS

1. I make the following orders: 1. The Defendant, Mortdale Recycling, is convicted of the offence charged in the summons filed on 25 June 2018. 2. Pursuant to section 250(1)(e) of the Protection of the Environment Operations Act 1997 ("the POEO Act"), the Defendant is pay to the Environmental Trust the amount of $30,000. 3. The Defendant is also ordered to pay to the Prosecutor, within 28 days, as agreed, an amount of $40,000 on account of its costs and disbursements. 4. The Defendant is ordered to publish a notice, at its expense and within 28 days of the date of this Order, in the form agreed between the parties, now Annexure "A" to these Orders to be placed within the first 5 pages of the following publications, at a minimum size of 9 cm x 12 cm, pursuant to section 250(1)(a) of the POEO Act: 1. Sydney Morning Herald; 2. Inside Waste; and 3. The Leader. 1. The Defendant is, at its expense and within 28 days of the date of this Order, to cause a notice in the form of Annexure "A" to this Order to be placed on the "What's going on" section of the Bingo website, pursuant to section 250(1)(a) of the POEO Act. 2. The Defendant is, at its expense and within 28 days of the date of this Order, to cause a notice in the form of Annexure "B" to be sent via email to all subscribers to Bingo's "Weekly Summary" email alert service, pursuant to section 250(1)(b) of the POEO Act. 3. Within 35 days of the date of this Order, the Defendant must provide to the Prosecutor a complete copy of the pages of the publications/site in which the notice appears in relation to Orders 4 and 5. 4. Within 35 days of the date of this Order, the Defendant must provide to the Prosecutor confirmation of compliance with Order 6. 5. All Exhibits are returned, except Exhibits P1 and P3, which are to remain on the Court file.

Addendum made on 12 August 2019

1. On 12 August 2019, as a result of a request by the Defendant to vary Order (4), the orders made on 29 July 2019 were varied with the consent of the Prosecutor. (Upon making inquiries of Inside Waste, for the purpose of complying with Order 4(b), the Defendant was advised that the next available publication for placement of the advertisement required by Order 4(b) will be October 2019. Accordingly, it is not possible for the Defendant to comply, in terms, with Order 4(b).)
2. In the circumstances, Sheahan J varied, in chambers, the orders made on 29 July 2019 by the deletion of Order (4) and the substitution of the following order (as agreed between the parties): (4) The Defendant is ordered to publish a notice, at its expense, in the form agreed between the parties, now Annexure "A" to these Orders to be placed within the first 5 pages of the following publications and within the timeframe specified below, at a minimum size of 9 cm x 12 cm, pursuant to section 250(1)(a) of the POEO Act: (a) Sydney Morning Herald, to be published within 28 days of the date of this Order; (b) The Leader, to be published within 28 days of the date of this Order; and (c) Inside Waste, to be published in its October 2019 publication.

Annexure A (27.6 KB, doc) Annexure B (27.6 KB, doc)

Amendments 12 August 2019 - Addendum made on 12 August 2019 added at [160]-[161] 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: 12 August 2019