Environment Protection Authority v Park Pty Ltd

Environment Protection Authority v Park Pty Ltd - [2024] NSWLEC 120 - NSWLEC 2024 case summary — Zoe

[6]

The Spill

Between about 1 and 3 June 2022, Highland Fuels ordered fuels, including 14,000 litres of diesel, for delivery by the Defendant.
At approximately 12:00pm on 3 June 2022, Mr Routledge started his shift for the day.
At 7:31pm, Mr Routledge drove the tanker with the registration YN 23 KI (the Tanker) connected to a prime mover with the registration XO 90 HZ (the Prime Mover) (the Tanker and the Prime Mover together, the Fuel Tanker) and entered the terminal at 20 Friendship Road, Port Botany.
At about 10:15pm on 3 June 2022, Mr Routledge arrived at the Premises driving the Fuel Tanker. At this time, the Tanker still contained: 1. Compartments 1 and 3, loaded with unleaded petrol (ULP); 2. Compartment 2, loaded with '98 RON'; 3. Compartment 4, loaded with premium unleaded petrol; and 4. Compartments 5 and 6, loaded with diesel, with approximately 6,000 litres of diesel in compartment 5 and 8,000 litres of diesel in compartment 6.
Mr Routledge was to unload the diesel from compartments 5 and 6 of the Tanker (totalling approximately 14,000 litres) into Highland Fuels' above ground storage tank. The fuel types in the other compartments were to be unloaded into underground storage tanks on the Premises.
At around 10:30pm, Mr Routledge connected hoses between the Tanker, the pump on the Prime Mover and the above ground storage tank and attempted to unload diesel. In doing so, Mr Routledge connected hoses from the Tanker to the incorrect fitting on the pump on the Prime Mover and from the above ground storage tank. He then opened the API outlet valve on compartment 6 and ran back across the hoses again to see if there were any leaks. Mr Routledge then went into the truck cabin to turn on the power take off (PTO), which commenced the operation of the pump.
After turning on the PTO, Mr Routledge inspected the hoses and saw no leaks at that time. Mr Routledge then walked away from the Fuel Tanker to the front of the Premises. He then completed paperwork related to the fuel delivery and conducted dips of Highland Fuels' underground storage tanks while the pump on the Prime Mover continued to operate.
During this time, Mr Routledge used his mobile phone but did not make any phone calls.
Because the hoses were connected incorrectly, fuel was drawn out of the above ground storage tank and into the Tanker, which was already carrying a load of product. Fuel from the above ground storage tank filled compartment 6 in the Tanker that it was connected to first and once full, travelled through the tanker vapour coaming and into other compartments in the Tanker (as all vents are connected to the same coaming and all vents are open). Once these compartments were full and the Tanker reached maximum capacity, fuel flowed out of the vapour hose and from the Fuel Tanker onto the ground.
While the Fuel Tanker was out of Mr Routledge's sight, diesel flowed from the rear of the Tanker, through the vapour hose, onto the ground and continued to spill for at least 10 minutes, until Mr Routledge returned to the Fuel Tanker and turned off the pump at around 10:43pm.
After diesel spilled from the Fuel Tanker: 1. Between about 11,260 litres and 11,760 litres spilled onto the concrete hardstand at the rear of the Premises; 2. An unknown proportion of the spilled diesel flowed onto the grassed and gravelled area on the Premises; and 3. An unknown proportion of the spilled diesel flowed into the stormwater drains, travelled through the stormwater system and discharged into Mittagong Creek at the stormwater outlet marked on the map below.
The precise cause of the Spill is disputed between the parties and was the subject of evidence.
At the time of the Spill: 1. The above ground storage tank had no operational, mechanical or electrical faults that may have contributed to the Spill, but the check valve on the above ground storage tank was not installed as required by AS1940:2017. If this was in place, the flow of diesel back to the Tanker would not have occurred; 2. The Tanker had no mechanical or electrical faults that may have contributed to the Spill; 3. The Prime Mover had no mechanical or electrical faults that may have contributed to the Spill; and 4. The underground storage tank had no impact on the cause or the severity of the Spill.

[7]

Response to the Spill

At about 10:43pm, Mr Routledge returned to the Fuel Tanker and saw the diesel coming out of the vapour hose and some of it made its way into the stormwater drain located at the rear of the Premises. Mr Routledge immediately turned off the pump and turned off the tank outlets for compartment 6 and the other valves.
Mr Routledge used the Fuel Tanker spill kit, which was kitty litter and foam padding, to try and stop further fuel from spilling into the stormwater drain. The spill kits assigned to the Defendant's drivers can manage up to 200 litres of spilled fuel.
At around 10:46pm, Mr Routledge made four (4) telephone calls to Mr Scott Harris, Driver Trainer and Compliance Officer of the Defendant which were not answered. Mr Routledge sent the following text message to Mr Harris: "ring me, please ring me".
Between 10:51pm and 11:02pm, Mr Routledge then made three (3) telephone calls to Mr Brendan Marsland, Transport Allocator employed with the Defendant since 14 May 2019 and, who on 3 June 2022, was rostered to work on its 24-hour call service for any after-hours issues encountered by drivers such as Mr Routledge. The contents of those calls consisted of Mr Marsland instructing Mr Routledge to: (i) conduct a dip of the above ground storage tank (which he had done once earlier that evening); and (ii) to use the spill kit to soak up the diesel on the concrete.
Following the phone calls between Mr Marsland and Mr Routledge, Mr Routledge dipped the above ground storage tank and got the same reading as he had before he began unloading the diesel and used the spill kit to attempt to clean-up the spilled diesel. The steps that Mr Routledge took to clean-up the Premises was the subject of evidence at the hearing.
At around 11:30pm, Mr Routledge also sent text messages/iMessages to Mr Marsland about the Spill, including providing three (3) photographs showing the Fuel Tanker and the extent of the Spill on the ground.
At about 11:42pm, Mr Marsland sent a text message/iMessage to Mr Allan Schloeffel, Chief Commercial Officer of the Defendant, stating: 'Hey mate, our old mate Chris has had a fairly big spill at Bowral. He has tried to clean it up. But it is bigger than our spill kit. I don't have the yardies number. Need to clean it up ASAP'. Mr Schloeffel was asleep when the message was sent and did not read the message until after his call with Mr Bains, which took place at 7:00am the next morning. Mr Marsland also sent the three (3) photographs taken by Mr Routledge to Mr Schloeffel via text message/iMessage.
Around the same time, Mr Marsland sent text messages/iMessages to both Mr Schloeffel and Mr Harris that they would need to go to the Premises the next day to 'tidy up all, the white kitty litter and hose it down'.
Between about 12:40am and 1:30am, Mr Routledge successfully unloaded ULP98 and E10 from the Fuel Tanker into the underground storage tanks at the Premises.
Mr Routledge subsequently left Highland Fuels and returned to 17 Grand Avenue, Camellia where diesel was unloaded from the Fuel Tanker. At 2:00am on 4 June 2022, the automatic tank gauge on the diesel tank at Camellia recorded a fill level of 15,328 litres, being 1,328 litres more than the Fuel Tanker's original load.
At around 6:30am on 4 June 2022, Mr Bains arrived at the Premises and noticed a diesel mark towards the back fence of the Premises. Mr Bains saw the gutters and driveway at the rear of the Premises were filled with liquids that he observed to have a "greasy" appearance and "appeared to be fuel and water".
Mr Bains dipped the above ground storage tank and found there was 1,500 litres of diesel in the tank.
Between 7:00am and 7:12am, there were two calls between Mr Bains and Mr Schloeffel which went for 2 minutes and 3.5 minutes respectively. On these calls, Mr Bains told Mr Schloeffel there had been a major fuel theft or spill leakage at the Premises. Mr Bains also told Mr Schloeffel that he had contacted NSW Police, Fire and Rescue NSW and the EPA.
At 7:16am, there was a further telephone call between Mr Schloeffel and Mr Harris which went for approximately 3.5 minutes.
At around 7:20am, Mr Bains contacted Wingecarribee Shire Council and reported a fuel theft or leakage at the Premises. During this call, which lasted approximately 12 minutes and 20 seconds, Mr Bains reported a 'large amount of diesel fuel ha[d] been running into the storm water drains since last night' that he was unaware of until the morning of 4 June 2022.
At 7:25am, there was a telephone call between Mr Schloeffel and Mr Brett Fletcher, the Chief Executive Officer and General Manager of the Defendant, of approximately 2.5 minutes duration.
At around 7:35am, Mr Bains contacted Highland Fuels employee, Mr John Montalto and instructed him to call NSW Police, and Fire and Rescue NSW.
At around 7:45am, Mr Karl Perrow, Wingecarribee Shire Council's Road Maintenance Team Leader, arrived at the Premises and saw diesel on top of the stormwater drains located at the rear of the Premises. Mr Perrow could smell diesel at the time.
At around 7:51am, Mr Bains returned a missed call from Mr Steve Thomas, the Defendant's Chief Operating Officer, and informed Mr Thomas there had been potential fuel spillage or theft at the Premises.
Sometime between 7:35am and 8:02am, Mr Montalto contacted NSW Police. NSW Police notified Fire and Rescue NSW around the same time. It was reported to NSW Police that there was a 'MAJOR DIESEL SPILL, POSS SOME SORT OF ATTACK. DRAINS ARE FULL SURROUNDING ANOTHER BLD, POSS 14,000 LITRES'.
From about 8:10am, members of NSW Police and Fire and Rescue NSW arrived at the Premises: 1. Mr Alfio Torrisi from NSW Police saw a bluey film liquid, which smelled like fuel had soaked into the Land. 2. Mr David Martin from Fire and Rescue NSW saw, and could smell, diesel of an unknown quantity spilt over concrete and grassed backyard into a drainage pit at the rear of the Premises. Mr Martin observed that diesel had entered a drain pit located approximately two metres from the back fence at the rear of the Premises. In examining the drain, Mr Martin formed the view that there was only one direction that the drainpipe directed flow, and that was the front of the Premises. Mr Martin then walked to the front of the Premises and observed that a small amount (approximately 5 litres) of oily substance, which he identified through smell as being diesel, had flowed from the rear drain into the stormwater drain. The stormwater drain was located along the street gutter, directly outside the Premises. Mr Martin observed that from the stormwater drain, the diesel, along with water in the drain was flowing in a northerly direction towards the Mittagong Creek. Mr Martin located the point where the stormwater drain met the Mittagong Creek, at which point he observed a small amount of the oily substance, diesel, entering the Mittagong Creek; and 3. Fire and Rescue NSW undertook measures to clean-up and contain the diesel that had been spilled at the Premises.
At around 8:30am, Mr Schloeffel and Mr Harris arrived at the Premises.
At around 8:41am, Fire and Rescue NSW notified the EPA of the Spill. Between 8:30am and 9:30am, Mr Fletcher arrived on the Premises.
The Park Emergency Response Team (PERT) arrived on the Premises at around 10:00am. The PERT undertook actions to clean-up the spill area, including laying absorbent material on the spilt fuel, and inside the stormwater drains, and scrubbing down the forecourt and driveway.
At around 9:00am, Mr Perrow and Fire and Rescue NSW personnel followed the stormwater drain from the Premises to the stormwater outlet at Mittagong Creek. Near the outlet they observed diesel residue on the surface of Mittagong Creek. Fire and Rescue NSW personnel placed absorbent chemical booms at the stormwater discharge point to prevent further diesel entering Mittagong Creek.
At approximately 9:40am, Mr Martin handed the Premises over to Mr Montalto.
At around 11:45am, EPA officer Mr Byran Larkings arrived at the Premises.
Diesel was observed to be spilled in the back of the Premises, in stormwater drains, the concrete driveway and on the land.
The parts of the land near three stormwater drains (as marked D1, D2 and D3 in the map below) were wet, had a diesel-like odour and contained dead earthworms. There was oily residue present in and around the drains and stormwater pits adjacent to the land along with absorbent litter placed around the pits.
At around 3:00pm, the EPA requested further assistance from Fire and Rescue NSW after Mr Larkings observed diesel in Mittagong Creek.
At around 3:30pm, Mr Rudolf Van Der Meer of Fire and Rescue NSW installed three further booms in Mittagong Creek to stop the spread of diesel, at points approximately 40, 200 and 350 metres downstream of the stormwater outlet into Mittagong Creek. At the location approximately 40 metres downstream of the outlet, Mr Van Der Meer saw a large volume of oily liquid on the surface of the water at Mittagong Creek, consistent with diesel. He also observed this in the Creek at the location approximately 350m downstream of the stormwater outlet.
The Defendant's personnel (including Mr Schloeffel) remained on the Premises until approximately 4:00pm.
The Defendant was made aware of the diesel in Mittagong Creek at around 4:00pm, after its personnel had left the Premises.

[8]

The Defendant's further response to the Spill

From 5 June 2022, the Defendant began excavating contaminated soil on the Premises.
At around 7:30am on 5 June 2022, the PERT arrived back to the Premises. The PERT team remained on the Premises until 4:00pm that day and carried out the following actions: (i) attended Mittagong Creek and replaced the booms placed by Fire and Rescue NSW with higher performing absorbent booms; and (ii) manually cleaned as much diesel from Mittagong Creek as possible using absorbent mats and recovery equipment.
On 6 June 2022, the Defendant's personnel attended the Premises at around 7:30am and commenced daily response meetings to review actions and set daily tasks with a view to minimising the impact of the Spill.
On 6 June 2022, the Defendant's personnel completed the following tasks: (i) planned for the remediation of contaminated soil on-site commenced; (ii) changed out the booms as required using high performing 3M absorbent booms; and (iii) manually recovered free phase hydrocarbons using 3M absorbent mats and recovery equipment.
On 7 June 2022, the Defendant's personnel completed the following tasks: (i) attended a daily response meeting; (ii) inspected and replaced booms and continued to remove contaminate from Mittagong Creek; and (iii) observed that there was no free phase hydrocarbon coming from initial points of ingress.
On 8 June 2022, the Defendant's personnel completed the following tasks: (i) attended a daily response meeting; (ii) inspected and replaced booms and continued to remove any contaminate from Mittagong Creek; and (iii) coordinated equipment and materials to start the recovery and removal of contaminated soil from the land.
On 9 June 2022, the Defendant's personnel completed the following tasks: (i) attended a daily response meeting; (ii) arranged for approximately 11.08 tonnes of soil from the Premises to be delivered to Cleanaway Waste Management Limited facility in Kemps Creek for disposal; and (iii) inspected and replaced booms and continued to remove any contaminate from Mittagong Creek.
On 10 June 2022, the EPA issued Clean-up Notice 3502863 pursuant to s 91 of the POEO Act (Clean-up Notice). The Clean-up Notice required the Defendant to (among other things): 1. Implement actions to prevent, minimise, remove, disperse, destroy or mitigate any pollution on and off the Premises resulting or likely to result from the Spill; 2. Implement actions to protect and restore the environment both on and off the Premises from harm as a result of the Spill; and 3. Engage a suitably qualified environmental consultant to describe the Defendant's clean-up activities and the cause of the Spill, to assess the environmental harm, and to identify actions to mitigate pollution and monitor the effectiveness of the clean-up actions.
On 10 June 2022, the Defendant terminated Mr Routledge's employment.
Between 10 June 2022 and 13 June 2022, the Defendant continued to hold daily response meetings and check and replace booms in the Mittagong Creek twice daily.
On 14 June 2022, the Defendant's personnel completed the following tasks: (i) attended a daily response meeting; (ii) inspected and replaced booms and continued to remove any contaminate from Mittagong Creek; and (iii) Mr Schloeffel met with Mr Gary Davoren from Insite Remediation on the Premises to review works completed and discuss further actions required to meet the EPA's Clean-Up Notice.
Between approximately 14 June 2022 and 20 April 2023, the Defendant engaged Aurora Environmental Consulting Pty Ltd and EP Risk Management Pty Ltd to investigate and clean-up pursuant to the Clean-Up Notice, including: 1. On 15 June 2022, collecting approximately ten (10) samples from the Land (V1-V10) that were tested. Laboratory analysis of samples V3, V6, V7 and V8 exceeded the Ecological Screening Level criteria, while V7 also exceeded the National Environment Protection Measures (2013) management limits criteria; 2. By about 24 June 2022, the soil in the Land had been excavated and replaced; and 3. On 21 February 2023, collecting groundwater samples from the Premises. The laboratory analysis from one of the groundwater well samples (GW01) identified elevated levels of contaminants, including Total Petroleum Hydrocarbons.
The Defendant complied with all EPA notices and the recommendations of Aurora Environmental Consulting Pty Ltd and EP Risk Management Pty Ltd in order to minimise the impact of the Spill.

[9]

Sampling and observations of Mittagong Creek

Personnel from the EPA and the then Department of Planning and Environment (DPE) carried out sampling in the vicinity of the Spill, including in Mittagong Creek on 4, 9, 12, 23 and 30 June 2022. EPA and DPE officers collected soil samples from the Premises, as well as water and macroinvertebrate samples from stormwater drains located at the Premises and from Mittagong Creek.
A summary of observations made by EPA and DPE personnel as well as other people that attended the Premises and Mittagong Creek is set out below.
On 4 June 2022, the following observations were made at Mittagong Creek: (i) upstream of the discharge outlet, Mittagong Creek had clean, odourless water with flora and fauna appearing in good health; (ii) diesel was seen in the stormwater outlet that discharges from the Premises into Mittagong Creek and on the surface of the water within the creek; and (iii) a large volume of oily liquid was observed on the surface of the water on Mittagong Creek 40 metres downstream of the outlet and further oily liquid observed 350-500 metres downstream of the outlet.
During his inspection on 4 June 2022, Mr Larkings collected several samples from the soil located at the Premises as well as water samples from the stormwater drains located at the Premises and from Mittagong Creek.
The laboratory analysis of the samples taken by Mr Larkings, the details of which are not reproduced here, identified elevated levels of contaminants, including Total Petroleum Hydrocarbons.
On 6 June 2022, an employee of Water NSW conducted an inspection of the stormwater outlet into Mittagong Creek. The outlet had a hydrocarbon odour that was not present 50 metres upstream.
On 7 June 2022, the same Water NSW employee conducted an inspection of Mittagong Creek. The employee attended to the following locations along Mittagong Creek: (i) the stormwater outlet into Mittagong Creek; (ii) Mount Road bridge; (iii) Willow Road bridge; (iv) Oxley Hill Road bridge; and (v) Wingecarribee River junction.
A hydrocarbon odour was detected from the stormwater outlet that was not present upstream of this point. This same odour was detected 2km downstream (at the Mount Road bridge and downstream of the Oxley Hill Road intersections) but did not extend to the junction between Mittagong Creek and the Wingecarribee River.
The Mount Road intersection had hydrocarbon booms with an oily residue on them. A sheen was seen at the Willow Road bridge intersection.
On 9 June 2022, the EPA conducted an inspection of both the Premises and waters within Mittagong Creek. During the inspection of the Premises, the following observations were made: (i) there was a stockpile of excavated soil on top of the Land with hydrocarbon odour; (ii) there was a yellow excavator on top of the stockpile; and (iii) dark staining was seen on some of the soil surface within the land.
Soil samples "SS1" and "SS2" were collected from the face of the soil stockpile and from the base of the excavated soil. The laboratory analysis of these samples, including SS2, identified elevated levels of contaminants, including Total Petroleum Hydrocarbons.
During the inspection of Mittagong Creek, the following observations were made: (i) a fuel odour was detected from up to 850 metres downstream of the stormwater outlet; and (ii) rainbow sheens approximately 60, 425, 770, 780 and 850 metres downstream of the stormwater outlet.
On 12 June 2022, the EPA conducted an inspection of both the Premises and waters within Mittagong Creek.
A map of locations where the EPA collected samples (MIT01 - MIT04) on 12 June 2022 is below:
During the inspection of Mittagong Creek, the following observations were made: (i) from where samples MIT01 and MIT01-DUP were collected (near 28 Mount Road), a sheen and odour were observed; (ii) from where sample MIT02 was collected (near 164-166 Mittagong Road), no sheens or odour were detected; (iii) from where samples MIT03 and MIT03S were collected (near the stormwater outlet), an intermittent diesel odour was detected and a sheen was seen; and (iv) from where sample MIT04 was collected (near 11 Oxley Hill Road), the water in Mittagong Creek was a milky grey colour with no sheen or hydrocarbon odour.
On 23 June 2022, the EPA conducted an inspection of both the Premises and waters within Mittagong Creek.
During the inspection of the Premises, the following observations were made by EPA officers: (i) the soil in the land adjacent to the stormwater pits had been excavated; (ii) there was a hydrocarbon odour in the vicinity of the excavated soil; and (iii) the stormwater grate closest to the excavated stockpile had a sheen on the surface of the liquid inside it. There was also a hydrocarbon odour from the stormwater grate, although that may have emanated from the excavated soil.
During the inspection of Mittagong Creek, the following observations were made by EPA officers: (i) near Kirkham Road, sediment with a rainbow sheen on the surface; and (ii) approximately 300 metres downstream of Mount Road bridge, there was an oil sheen on the surface of the water at Mittagong Creek and hydrocarbon odour.
On 30 June 2022, the EPA and DPE inspected both the Premises and waters within Mittagong Creek.
During the inspection of the Premises, sheens and diesel odour were observed within the stormwater pits located on the south-east portion of the Premises.
A map of the locations of sampling carried out by the EPA and DPE on 30 June 2022 is below:
During the inspection of Mittagong Creek, the following observations were made: (i) no odour was detected from the stormwater outlet into Mittagong Creek; and (ii) around Sample Locations S6, S8, S9, S10, S12 sheens were seen on the surface of Mittagong Creek.

[16]

Statutory matters required to be taken into account in sentencing

For the purposes of sentencing in this matter the following factors as provided for in s 21A of the CSP Act are relevant: 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. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (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, … (i) the offence was committed without regard for public safety, … The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows - (b) the offence was not part of a planned or organised criminal activity, (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), … (m) assistance by the offender to law enforcement authorities (as provided by section 23), 22 Guilty plea to be taken into account for offences not dealt with on indictment (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account - (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. … 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
It is to be noted that where the Prosecutor contends that a particular sentencing consideration should be treated as an aggravating factor it must establish by evidence, beyond a reasonable doubt, the presence of such aggravating factor. Where the Defendant contends for the presence of a mitigating factor, it must be established on the balance of probabilities: Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [131].
Section 241(1) of the POEO Act provides for further matters to be considered in imposing a penalty as follows: 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, (f) the presence of asbestos in the environment. (2) The court may take into consideration other matters that it considers relevant.

[20]

Harm from the Water Pollution Charge

In this case, it is an agreed fact that diesel flowed over land and entered stormwater drains and flowed downstream into Mittagong Creek, and as such the Water Pollution Charge caused actual and likely harm to water.
The factual dispute between the parties related to the extent of the harm.
With respect to the period of the effects of the water pollution the parties generally agreed that the length of Mittagong Creek that was affected by the Water Pollution Charge was 300m downstream from the stormwater discharge point and lasted for a period from the event on 3 June 2022 until 23 June 2022.
It was also accepted that emergency services attended at Mittagong Creek on 4 June 2022 and commenced operations to limit the spread of the diesel in Mittagong Creek and to ameliorate the effects of the Spill on the creek by limiting the further flow of diesel from the land and to removing the diesel from the waters. The Defendant, on the same day and thereafter, acted in co-operation with the emergency services, and independently, to ameliorate the risk of further harm and to clean up the Spill in Mittagong Creek.
The Prosecution relies on the evidence of Prof Naidu who was of the opinion that the Spill caused pollution to the stormwater system and Mittagong Creek because: 1. The diesel that entered the stormwater system from the stormwater discharge point and Mittagong Creek changed the physical, chemical and biological condition of the waters; and 2. The diesel made the water in the stormwater system and Mittagong Creek unclean, noxious, poisonous and impure.
The Prosecution also relied on the expert report of Mr Adrian Dickson, in respect of the harm caused to Mittagong Creek. Specifically: 1. The diesel odour, oil sheens, turbidity and changes in colour were observed from the stormwater inlet to at least 1km downstream; 2. Based on the sampling results of 4 June 2022 and macroinvertebrate samples collected on 23 June 2022, there was actual harm to the environment due to the impact on water quality and aquatic biota of the receiving environment in Mittagong Creek. This harm likely extended approximately 1km downstream; 3. The diesel in Mittagong Creek caused harm to aquatic life that was not trivial. The impact on the macroinvertebrate included a difference in composition and fewer families than expected, which suggests a loss of taxa. More specifically, the total abundance and the abundance weighted SIGNAL2-Family results identify significant differences between upstream and downstream samples, with significantly lower populations in the downstream samples; 4. There was a high likelihood diesel was responsible for differences observed between upstream and downstream macroinvertebrate samples. The results of the multivariate analysis suggest differences in the macroinvertebrate community of sites upstream and downstream of the contaminant (diesel) discharge that could not be attributed to differences in physical habitat, in situ water quality or even the dissolution of calcium carbonate from concrete surfaces; 5. The introduction of the diesel to Mittagong Creek severely impacted the quality of water. The samples collected from Mittagong Creek on 4 June 2022, downstream from the discharge point, indicated the water was "Toxic - requires >100 times dilution to remove toxicity". While there was likely some background level of contaminants in Mittagong Creek, sampling upstream on 12 June 2022 suggested background contamination "requires 2 times dilution to remove toxicity" and therefore the water downstream of the discharge point was 50 times more toxic than upstream of the discharge point; 6. Water samples collected on 4 June 2022, 200m downstream of the stormwater discharge point into Mittagong Creek, were tested and determined to be above regulatory criteria for freshwater quality guideline values of Australian Drinking Water Guidelines. Based on EPA samples taken on 4 and 12 June 2022, the diesel that entered the stormwater system and Mittagong Creek made the waters toxic; and 7. The diesel severely impacted Mittagong Creek until late June, however the diesel was diluted by heavy rain in July 2022. In the absence of the July 2022 rainfall, the adverse impact of diesel on stream water quality in Mittagong Creek would have persisted for a much longer period.
In addition to the actual harm contended, the Prosecutor submitted that the expert opinions of Prof Naidu and Mr Dickson established that the Spill had the potential to cause harm to the ecosystem's health and the well-being of aquatic life. The potential harm to Mittagong Creek that could have been caused by the Spill was as follows: 1. The presence of any amount of diesel in a freshwater ecosystem is highly likely to cause harm or at the very least threaten harm to aquatic biota, especially those that dwell near or on the water's surface, which is where the diesel would likely be, given the low flow and slow-moving nature of the waterway at and following the time of the Spill. Many macroinvertebrate taxa, such as Hemiptera (true bugs), which includes water boatmen, backswimmers and water striders, use the water's surface tension to navigate through their habitat. Any changes to the chemical composition of the water can change surface tension, which can be fatal for some of these taxa; 2. The Spill had the potential to disrupt the feeding and predatory avoidance strategies that these and other taxa employ to survive. Further, taxa such as Odonata (dragonflies and damselflies) lay eggs directly in the water while flying above it. They rely on surface tension to facilitate contact with the water and dispersal of eggs into the water and on floating and emergent aquatic vegetation. The presence of contaminants, such as diesel, can disrupt this process and can cause these taxa to fall into the water and become engulfed in the contaminant; 3. The introduction of diesel created oil slicks which reduce the amount of light that penetrates the water. This can impact upon the growth of aquatic plants and can also cause distress to aquatic organisms due to murky and cloudy conditions; and 4. The introduction of diesel into waterways, specifically in the case of the receiving ecological system in Mittagong Creek, can have adverse effects on aquatic organisms. The dissolved phase of diesel in the water (the part of diesel contamination which has dissolved/partitioned into water) can impede the ability of fish and other aquatic organisms to breathe.
The Defendant adduced expert evidence of Mr Munnichs in respect of harm caused to Mittagong Creek. Mr Munnichs was of the opinion that: 1. Diesel reached and polluted Mittagong Creek resulting in a change in the physical condition of the creek (that is, oil sheens/rainbows were observed); 2. The EPA samples taken on 4 and 12 June 2022 were not sufficiently representative of the chemical quality of the creek water as pure product was collected by the EPA in the two contaminated water samples; 3. Water quality did not show to be a major stressor or impact on the aquatic system; 4. Ecological toxicity of the creek water in the sample SW05 should be considered unreliable as the water sample contained pure diesel and was not representative of the actual water within the creek; 5. Both upgradient and downgradient water samples collected on 12 June 2022 were slightly toxic, however representative of background levels since the upgradient water sample was slightly toxic as well; 6. The physical presence of an oily sheen/rainbow caused harm on ecology in the creek, predominately to creatures living on the water surface, however, this impact was of a limited time as no sheens were observed after 23 June 2022 and only observed on a small portion of the surface of the creek; 7. The acute and potential ecological harm to creatures living within the water (fish etc.) is potentially short term and therefore inconclusive; and 8. The actual and potential harm to Mittagong Creek was non-trivial, however, the harm was minor and it recovered in a short period of time.
Mr Munnichs was cross-examined by the Prosecutor as to his opinions. I do not accept Mr Munnichs' criticism of the Prosecutor's evidence for the reasons outlined below.
The Defendant cross-examined both Prof Naidu and Mr Dickson on the content of their expert reports. Neither Prof Naidu nor Mr Dickson departed from their opinions in cross-examination. Their explanations for their opinions remained cogent and compelling. The primary criticism of the evidence of Prof Naidu and Mr Dickson related to the reliability of sample SW05 and the conclusions to be drawn from it. From the evidence, I find that the sampling and assessment of harm were conventional and supported by the sampling regime. I do not accept the criticism of Prof Naidu that he relied heavily upon the sampling results from sample point SW05 which was said not to be representative of a dissolved sample but rather representative of pure diesel. The fact is that sample SW05 was some distance from the discharge point and therefore had to be representative of the diesel within the flowing water, else it would not have reached the point downstream.
I accept the evidence of the Prosecutor and find that the Prosecutor has established beyond reasonable doubt that there was both actual harm and potential harm to the environment in the manner and to the extent as identified by Prof Naidu and Mr Dickson (with the exception of the lineal extent of the harm being 300m rather than the 1km identified by Mr Dickson).
Having regard to the totality of the evidence, I am satisfied beyond reasonable doubt that the discharge of the diesel arising from the circumstances of the Water Pollution Charge caused actual and potential harm to the environment of Mittagong Creek for the distance downstream of 300m for the period from 3 June 2022 to 23 June 2022.
The nature and seriousness of the actual and potential harm to Mittagong Creek is an aggravating feature of the offending conduct and reflects in the objective seriousness of the offence.

[21]

Harm from the Land Pollution Charge

It was also agreed that the Land Pollution Charge caused the likely degradation to the land. Whilst it was agreed that the extent of the land pollution was to be "not trivial" the parties disputed the extent of the harm. The Prosecutor adduced evidence and made submissions that there was actual harm to the land as a consequence of the presence of the diesel causing degradation to the land. The Defendant agreed that the harm was a likely harm and not an actual harm.
The particulars of the charge in the Summons which identified the harm as being: …the pollutant caused or was likely to cause the degradation of the Land, resulting in actual or potential harm to the health and safety of human beings, animals or other terrestrial life or ecosystems, that is not trivial.
Further particulars of the charge were requested from the Prosecutor which were provided by letter to the Defendant dated 11 August 2023, which stated in response to the particulars sought: Confirm whether the EPA claims the diesel "caused" degradation or "was likely to cause degradation" The Prosecution alleges diesel caused degradation of the land and, in the alternative, was likely to cause degradation of the land. Confirm whether the EPA claims "actual" harm or "potential" harm The Prosecution alleges potential harm. Confirm whether the EPA claim harm to the health or safety of "human beings", "animals", or "other terrestrial life" or "ecosystems" The Prosecution alleges potential harm to health and safety or human beings, animals or other terrestrial life and/or ecosystems.
On the basis of the particulars provided to the Defendant prior to the entry of the plea of guilty, I accept the Defendant's submissions that the charge relates to a potentiality of harm rather than an allegation of actual harm to the land as a consequence of the land pollution.
I also accept that having regard to the area and location of the land, the likelihood of the land giving rise to harm to the health and safety of human beings was low.
Further, the evidence discloses that the diesel was effectively removed from the land and the land was appropriately remediated within a period of a week after the Spill and prior to the issuing of a clean-up notice by the EPA. As a consequence, any future risk of potential harm had been ameliorated to a satisfactory extent as agreed.
The nature and seriousness of the potential harm to the land is an aggravating feature of the offending conduct and reflects in the objective seriousness of the offence.

[22]

Reasons for committing the offence and state of mind of the offender

As the offences are both strict liability offences, the state of mind of the offender is not a matter that forms an element of the crimes. However, as is reflected in the relevant sentencing considerations provided for by the CSP Act and the POEO Act, the objective seriousness of the offence can be influenced by matters going to the state of mind of the offender.
The Defendant disputed that the actions of its employee was the reason, or the only reason, for the commission of the offences. In particular, the Defendant submitted that the causes of the offences were: 1. The Premises were not bunded so as to prevent the escape of the diesel spill from the land; 2. The Premises had stormwater drains within the fuel loading area; 3. The Premises did not have a collection pit for water and fuel spills in the forecourt; and 4. The transfer tank did not have installed a check valve (as was required by the Australian Standard) so as to prevent the transfer of fuel back into the Tanker.
The Defendant submitted that the deficiencies identified were causative of the harm. Had any or all of these deficiencies not been present on the land at the time of the Spill the harm would not have occurred or would at least have been reduced by the volume of the diesel spilled.
The Prosecutor submitted that the relevant principles concerning the meaning of the word "cause" were set out in Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water (2012) 82 NSWLR 12 at [80]: (a) "causing" should be given its common-sense meaning: Alphacell Ltd v Woodward [1972] UKHL 4; [1972] AC 824 at 834, 847; (b) a person causes a result where he or she deliberately and intentionally does an act which naturally produces a certain outcome: Alphacell at 839; (c) the defendant must engage in a positive act to "cause" something to occur and this act need not be an immediate cause: Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22 at 27-28 (Empress Car Co); (d) the active involvement of a third party may, but does not necessarily, break the causal connection: Empress Car Co at 33, 36-37; and (e) in determining whether the involvement of a third party excludes the offender as a causative factor, the court should consider whether the actions of the third party were an ordinary occurrence or something extraordinary. This is a question of fact: Empress Car Co at 36.
The Prosecutor did not accept that the asserted deficiencies relied upon by the Defendant were, in fact, requirements for the Premises.
The Defendant sought to rely upon the opinions expressed in the affidavits of Mr Fletcher. I ruled that the expression of opinion by him as to the conformity with the requirements of the DECC Guidelines was inadmissible, however, the DECC Guidelines were admitted. The Department of Environment and Climate Change document entitled "Environmental Action for Service Stations (2008)" was read (DECC Guidelines). The DECC Guidelines indicated that: This Guide provides information relevant at the time of publication. It is not a regulatory document and does not provide legal advice. If you need more information regarding legal obligations, consult a lawyer, the legislation, DECC or your local council.
The DECC Guidelines then comprised a number of information sheets which were said to "provide information for businesses on improving their environmental performance".
Having regard to the terms of the DECC Guidelines and the nature of the advice provided, I am not satisfied on the balance of probabilities that the Premises were required by some imperative derived from the DECC Guidelines to have in place the features identified by the Defendant. Whilst I accept that such features, if in place, could have impacted upon the extent of the Spill, I do not accept that the deficiencies were in some way directly connected to the cause of the pollution events in this case. The Defendant undertook its actions at the petrol station on the day of the charges with the petrol station in the state it was at that time; the fact that it could have otherwise been configured in a manner that could have avoided or mitigated the determination of the consequence of the Defendant's action is not a matter that informs the cause of the particular offending.
As to the absence of the check valve, the Prosecutor accepted that such a deficiency was contrary to the Australian Standard, but it did not accept that the absence of the check valve was the cause of the Spill, albeit it may have prevented the harm caused by the Spill. It relied upon the unchallenged evidence of Mr Hudson that: In my opinion, the above ground diesel storage tank located at Highland Fuels Bowral has no operational mechanical or electrical faults which may have contributed to this fuel spill. However, the design of the tank pipework allowed for discharge from the filling point. This is in contradiction to AS1940:2017 - The Storage and Handling of Flammable and Combustible Liquids, which stipulates a check valve is required in the fill line. The check valve is required to ensure "backflow cannot occur when the filling hose has been disconnected". This was not the cause of this spill. However, the flow of diesel back to the tanker would not have occurred if this check valve was installed.
Further, the Prosecutor submitted that the absence of the check valve was not "extraordinary" such that it could be said to negative the chain of causation from Mr Routledge's actions. The relevant act need not be an immediate cause of pollution. In Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1998] UKHL 5 Lord Hoffman explained that the threshold for what is "extraordinary" is high and does not include matters of ordinary occurrence such as leaking pipes or vandalism, but might include a terrorist attack or something so unusual that one would not regard the offender's conduct as having caused the escape of pollutant at all. In those circumstances, the absence of a check valve could not be described as "extraordinary". Any contention to the contrary would be tantamount to a traversal of the pleas of guilty.
The Defendant submitted that if the check valve was in place the Spill would not have occurred, notwithstanding the error on the part of Mr Routledge in the fitting of the pipe to the wrong outlet: see Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council [2018] NSWCCA 56 at [97]. As a consequence, the Prosecutor had failed to establish to the necessary standard that the actions of the Defendant caused the pollution event, rather it was the failure of the owner of the Tanker to have installed the required check valve.
Whilst I accept that if the check valve was in place the diesel would not have flowed back into the Tanker, I accept the Prosecutor's submission and the uncontested evidence of Mr Hudson that such a factor does not break the chain of causation. The lack of check valve itself did not cause the Spill, it was the erroneous connection of the pumping equipment. The lack of the check valve affected the quantum of the fuel spilled rather than the fact of the fuel being incorrectly pumped from the holding tank.
These factors aggravate the objective seriousness of the offending conduct.
In this case, I find beyond reasonable doubt that the cause of the offence was an error made by the Defendant's employee Mr Routledge, in the connection of the transfer equipment from the Tanker to the receiving tank. The employee connected the delivery hose to the wrong valve, and as a consequence, the Tanker pumped diesel fuel from the holding tank at the premises into the Tanker. This caused the Tanker to overflow the fuel onto the area surrounding the Tanker. The employee had left the Tanker to perform other tasks at the Premises, such as the dipping of other holding tanks and the completion of paperwork. Leaving the Tanker unattended was contrary to the Defendant's policies and training. I find that if the employee had remained with the Tanker during the transfer of fuel the error in the connection would have become apparent and the extent of the Spill may have been reduced or avoided.
I also find that the Defendant's employee acted quickly once he became aware of the Spill to shut down the pumping equipment.
These factors reduce the extent to which the cause of the offending conduct is an aggravating feature.
In Routledge I found, as a mitigating factor, that the employee had not received sufficient training and this in part was a reason for the committing of the offence. The evidence adduced in this case indicate that the employee did receive some training, however, the nature and extent of the training, for the reasons I outline below, were not sufficient to operate to reduce the objective seriousness of the offence on that basis.
I also find that the employee made a phone call to the Defendant during the course of the event. Whilst the Defendant suggested that the employee had not adequately conveyed the extent of the Spill, I do not accept such submission. It is apparent from the contemporaneous text messages that the Spill was known to exceed the capacity of the onboard spill kit and therefore presented a real risk of the escape of diesel. The urgency in the need to attend the Premises to assess the Spill was also conveyed in the text messages. Notwithstanding this information being conveyed, the Defendant did not ensure that appropriate action (or any action) was taken with the speed required to respond to the incident.

[30]

Deterrence retribution and denunciation

The Defendant continues to operate in the fuel industry and employ drivers to undertake fuel deliveries. In light of this continued participation in the industry and the continued responsibility to ensure adequate training to drivers as well as responsive support to such drivers in the event of another spill were, if to occur, I consider that specific deterrence is warranted in this case.
Of particular relevance to this factor is that I find that the training of the Defendant's driver employees was not sufficiently extensive. The drivers were given a driving test that comprised a physical drive around the local roads of the Defendant's premises and a hose fitting test. In addition, the drivers were required to undertake a computer training module that did not report "pass" or "fail", merely that it had been completed. The quality of this training and its capacity to inform the drivers of their duties and responses in the case of emergency like the present circumstances, is unable to be ascertained from such a form of training. As was explained by Mr Harris (Tcpt, 18 June 2024, p93(13-49): Q. This system though is online system. A. It is an online system. Q. You said that it's for someone to read through and sign. A. Mm-hmm. Q. They're left to read through the documents and how do they sign if it's done online? A. They clicked the bottom of the screen, there's a tab to acknowledge they've read that page. Q. They've read that page. A. Yep. Q. Then, what, at the end of that - at the end of going through that process of just clicking the end of each page to say that they've read it they come-- A. They don't just click the...(not transcribable)...the page. No. Not - not all of them are an acknowledgement, some of them will have a short assessment in them. Q. That will then result in there being some score that they got in their assessment? A. Yeah, look I'm not - the - the system may not be perfect, it doesn't score per se, but it does say they've completed the course. Q. In relation to each of the certificates of completion that you've provided, Mr Routledge appears to have scored zero per cent. A. That's right. Q. That rather indicates that he hasn't either read or understood the material that was provided to him. A. I don't agree with that because it says - it says has successfully completed the course. It would say unsuccessfully completed the course if that was the case. Q. But you say that there are problems with the system. A. It's just the way it's set up. Yeah.
With respect to this training Mr Fletcher deposed that: Park has instituted the following changes to ensure the risk of a similar event in the future and its impact in the environment is minimised: a. Updating Park's training modules to emphasise the importance of no mobile phone use whilst loading or unloading; b. Implementing additional training for Park drivers, including emergency spills training; c. Providing additional training to night schedulers to enable them to be able to elicit information from driver's in relation to spill; and d. Updating the in-cab TERP to clearly set out the steps required to be taken by a driver in the event of an incident.
Whilst such changes do reflect a degree of understanding as to the importance of training, I consider that specific deterrence is warranted to ensure that the Defendant implements the appropriate training.
As to the Defendant's response to the report of the Spill, the processes that were said to be in place failed: see [31]-[36]. To the extent that the Defendant had proposed to alter these procedures in light of the Spill the intended process still remained multilayered and prone to failure. During the course of the sentence hearing the Defendant gave an undertaking to the Court in the following terms: The Defendant, Park Pty Ltd (ACN 093 014 129), hereby undertakes: 1 To ensure that a singular telephone number will be listed as the emergency contact for all Park fuel tanker drivers within fourteen (14) days from the date of this undertaking. 2 That the telephone number will be clearly identifiable in all in-cab Transport Emergency Response Plan (TERP) documents. 3 That the telephone number will be available to call 24 hours per day, 7 days per week, and will be manned by an operator trained to provide a response to emergency situations (including fuel product spills). 4 The operator will be a person responsible for and will have the Defendant's authority to: a. Contact relevant authorities in the event of an emergency; and b. Mobilise the Park Emergency Response Team (PERT).
In light of the undertaking, I have confidence that such procedures will be modified to reflect the terms of the undertaking. However, notwithstanding the undertaking, I consider that specific deterrence is warranted to ensure that the Defendant implements the appropriate procedures.
Part of the purpose of sentencing is to express the community's denunciation of the conduct and to deter others from committing similar offences. General deterrence is an important aspect of sentencing in environmental crime. As held by Preston CJ of LEC in Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [139]-[140]: 139 The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. 140 This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354 and Director General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93] per Lloyd J.
I consider that general deterrence is a factor to be taken into account in determining the appropriate penalty in this case. The transfer of diesel is an inherently risky enterprise which has a potential, if done incorrectly, to affect the environment. Such risks are evidenced as being an industry wide concern by reference to the publication of the DECC Guidelines.

[31]

Consistency in decision-making

The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to ensure that there is a consistent approach to penalty. This approach, however, must also acknowledge that care must be taken in comparing cases where the circumstances of, and facts relating to, the offences may be quite different: R v Visconti [1982] 2 NSWLR 104; and Axer at 365.
The Prosecutor provided a schedule of references to other cases relating to offences of a similar nature. However, the Prosecutor also accepted that regard should be had to comparable cases where they disclose a general pattern of sentencing and that it is sometimes difficult with environmental crimes to obtain guidance where sentences have been imposed for the same type of offence as there are often wide range of factual circumstances that need to be tailored to in the determination of an appropriate sentence.
Having regard to the cases to which I have been referred, I am unable to discern any general pattern of sentencing that would warrant specific regard in this matter. Each of the cases turned on their own particular facts having regard to the nature and extent of the harm occasioned and the particular circumstances that gave rise to such harm. Accordingly, I do not consider there to be any particular pattern to which regard should be had to ensure even-handedness in determining the sentence in these matters.
However, I do consider that my determination of sentence in Routledge is relevant to my determination of the appropriate sentence in this matter. Whilst the evidence was different in each case and the subjective circumstances of each Defendant are also different (as is the maximum penalty), the polluting event is the same and the cause of the event is also the same. In those circumstances, I consider that there should be some parity in the determination of the appropriate penalty, taking into account the differences in each case.

[37]

Totality principle

The principle of totality is a relevant sentencing principle in the present case where both offences with which the Defendant has been charged, and for which it has pleaded guilty, arise from the same identical facts and circumstances.
The principle has been concisely described by the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610 at 623 as: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
It is appropriate to leave questions of totality to the end of the sentencing process and apply a final check of the aggregate sum of the fines proposed to be imposed against whether it is a just and appropriate penalty for the entire criminality: ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 at [111].
As outlined above, the elements of each offence are co-incident with respect to the conduct and circumstances giving rise to both the commission and consequences of both offences, such that the application of the sentencing principle of totality is appropriate to be applied in the circumstances of this case.
Having regard to the circumstances of this case, I consider that each of the charges should be reduced by the sum of 10% which would thereafter adequately reflect the application of the principle of totality of the entire criminality.
Accordingly, the fines will be determined as: 1. Water Pollution Charge: $112,500 less 10% ($11,250) = $101,250; and 2. Land Pollution Charge: $37,500 less 10% ($3,750) = $33,750.

[38]

Orders

In proceedings 2023/000175317 the Court makes the following orders: 1. The Defendant is convicted as charged; 2. The Defendant is fined the sum of $101,250; 3. The Defendant is to pay the Prosecutor's legal costs of the proceedings in the amount as may be determined under s 257B of the Criminal Procedure Act 1986 (NSW); 4. The Defendant is to pay the Prosecutor's investigation costs in the agreed sum of $8,849.25 pursuant to s 248(1) of the Protection of the Environment Operations Act 1997 (NSW); and 5. Pursuant to s 122 of the Fines Act 1996 (NSW), a moiety of 50% of any fine determined by the Court be paid to the EPA.
In proceedings 2023/000219647 the Court makes the following orders: 1. The Defendant is convicted as charged; 2. The Defendant is fined the sum of $33,750; 3. The Defendant is to pay the Prosecutor's legal costs of the proceedings in the amount as may be determined under s 257B of the Criminal Procedure Act 1986 (NSW); 4. The Defendant is to pay the Prosecutor's investigation costs in the agreed sum of $8,849.25 pursuant to s 248(1) of the Protection of the Environment Operations Act 1997 (NSW); and 5. Pursuant to s 122 of the Fines Act 1996 (NSW), a moiety of 50% of any fine determined by the Court be paid to the EPA.
In proceedings 2023/000175317 and 2023/000219647, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the Defendant, at its expense, is to: 1. Within 60 days of the date of this order, cause a notice at a minimum size of 139mm x 129mm (and of corresponding size in the digital edition) to be published within the first 12 pages of the Sydney Morning Herald, Prime Mover Magazine and Big Rigs Newspaper with the text of such notice and the Park Pty Ltd (ACN 093 014 129) logo (of reasonable size) to be as set out in Annexure A to these orders; and 2. Within 7 days of the date of publication of the notices referred to in Order (1) as set out at [207] above, the Defendant must provide the Prosecutor with a complete copy of the notices as published pursuant to those orders.
The exhibits are returned. Annexure A

At a glance

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Judgment (39 paragraphs)

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Legislation Cited (9)

Cases Cited (16)