Environment Protection Authority v Pullinger (No 3)

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22
Criminal Procedure Act 1986 (NSW) ss 257B, 257G
Fines Act 1996 (NSW) ss 6, 122
Protection of the Environment Operations Act 1997 (NSW) (as at 16 November 2020) ss 91, 101, 102, 114, Part 5.2
Protection of the Environment Operations Act 1997 (NSW) s 3, 241, 248, Dictionary

Cases Cited: ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 4
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21
Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden (2010) 172 LGERA 52; [2010] NSWLEC 3
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; [2006] NSWLEC 289
Environment Protection Authority v Carbon MF Pty Ltd; Environment Protection Authority v Fair [2023] NSWLEC 120
Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70
Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75
Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127
Environment Protection Authority v Grafil Pty Limited Environment Protection Authority v Mackenzie (2022) 254 LGERA 76; [2022] NSWCCA 268
Environment Protection Authority v Grafil Pty Ltd (No 4) (2021) NSWLEC 123
Environment Protection Authority v Hughes [2024] NSWLEC 91
Environment Protection Authority v Imad Osman-Kerim [2017] NSWLEC 63
Environment Protection Authority v Laison [2015] NSWLEC 89
Environment Protection Authority v Metropolitan Collieries Pty Ltd [2025] NSWLEC 23
Environment Protection Authority v Pullinger [2022] NSWLEC 143
Environment Protection Authority v Pullinger (2021) 252 LGERA 102; [2021] NSWLEC 144
Environment Protection Authority v Routledge [2024] NSWLEC 8
Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273; [2008] NSWLEC 264
Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100
Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4
Environment Protection Authority v Sydney Water (No 2) [2023] NSWLEC 2
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312
Environmental Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90
EPA v Barnes [2006] NSWCCA 246
Fairfield City Council v Oztech Developments Pty Ltd; Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36
Morrison v Defence Maritime Services Pty Ltd (2007) 156 LGERA 365; [2007] NSWLEC 552
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Newcastle City Council v Pace Farm Egg Products Pty Limited (No 3) [2005] NSWLEC 423
Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178
R v Holder [1983] 3 NSWLR 245
R v O’Neill [1979] 2 NSWLR 582
R v Peel [1971] 1 NSWLR 247
R v Thomson; R v Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104; [2000] NSWCCA 309
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
SafeWork NSW v Williams Timber Pty Ltd [2021] NSWCCA 233
Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 51
Transport for New South Wales v Estuary Constructions Pty Ltd; Transport for New South Wales v Sampson [2022] NSWLEC 23
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment

Parties: Environment Protection Authority (Prosecutor)
Robert Lenard Pullinger (Defendant)

Representation: Counsel:
F Berglund (Prosecutor)
L Sims (Defendant)
Solicitors:
Legal Services Branch, Environment Protection Authority (Prosecutor)
Carmody Lawyers (Defendant)

File Number(s): 2020/327089, 2020/327090 and 2020/327091

Publication restriction: Nil

JUDGMENT

Introduction

Outcome

Relevant background

Evidence

Prosecutor’s evidence on sentence

Defendant’s evidence on sentence

Relevant legislative provisions and legislative history

Principles of sentencing

Onus and standard of proof at sentencing

Objective seriousness of the offences

Maximum penalties for the offences

The defendant’s state of mind and reasons for committing the offences

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

The practical measures taken to avoid harm to the environment: s 241(1)(b) of the POEO Act

The foreseeability of harm caused or likely to have been caused to the environment: s 241(1)(c) of the POEO Act

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

Conclusion in relation to objective seriousness

Subjective factors

Injury, emotional harm, loss or damage caused by the offences: s 21A(2)(g) of the CSP Act

The harm caused by the offence: s 21A(3)(a) of the CSP Act

Defendant's record of previous convictions: s 21A(3)(e) of the CSP Act

Good character: s 21A(3)(f) of the CSP Act

Prospects of reoffending: s 21A(3)(g) of the CSP Act

Contrition and remorse: s 21A(3)(i) of the CSP Act

Plea of guilty: s 21A(3)(k) of the CSP Act

Assistance to authorities: s 21A(3)(m) of the CSP Act

Other principles of sentencing to be considered

Proportionality

General and specific deterrence: s 3A(b) of the CSP Act

Even-handedness and consistency in sentencing

Totality

Capacity to pay (s 6 of the Fines Act)

The appropriate penalty to be imposed

Additional orders

Publication order

Payment of share of fine to the prosecutor: s 122 of the Fines Act

Orders regarding costs and expenses of investigation: s 248 of the POEO Act

Legal costs

Orders

JUDGMENT

Introduction

1. Following a liability hearing held between 21 and 25 August 2023, on 22 May 2024, I found Mr Robert Lenard Pullinger (also known as Bob Pullinger and Robert Leonard Pullinger) (the defendant) to be guilty of the following three offences:

2. in proceedings 2020/327089, the offence against s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) of, without reasonable excuse, not complying with direction 7 of variation of clean-up notice 1564650 given on 18 May 2018 (the varied clean-up notice) pursuant to s 110 of the POEO Act (the direction 7 offence);

3. in proceedings 2020/327090, the offence against s 91(5) of the POEO Act of, without reasonable excuse, not complying with direction 10 of the varied clean-up notice pursuant to s 110 of the POEO Act (the direction 10 offence); and

4. in proceedings 2020/327091, the offence against s 102 of the POEO Act, of not complying with prohibition notice ref: DOC20/565127 (the prohibition notice) given on 25 August 2020 pursuant to s 101 of the POEO Act (the prohibition notice offence).

5. The defendant has been convicted of two offences against s 91(5) of the POEO Act and one offence against s 102 of the POEO Act as charged. It now arises to sentence the defendant for each of the three offences in relation to which he has been found guilty.

Outcome

3. In relation to each of the offences, for the reasons that follow, applying the “instinctive synthesis” explained by the High Court in Markarian v The Queen, [1] before applying the totality principle, considered individually, I would fix the following penalties: in relation to the direction 7 offence, a fine in the amount of $75,000; in relation to the direction 10 offence, a fine in the amount of $75,000; and in relation to the prohibition notice offence, a fine in the amount of $100,000.

4. Having regard to the totality principle, considered below at [122]-[130], I will make orders that:

5. in relation to the direction 7 offence, the defendant is fined in the amount of $60,000;

6. in relation to the direction 10 offence, the defendant is fined in the amount of $60,000;

7. in relation to the prohibition notice offence, the defendant is fined in the amount of 80,000.

8. I will make an order that 50% of each of the fines be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).

9. I will also make orders that the defendant pay the prosecutor’s legal costs pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 (NSW), and that the defendant pay the prosecutor’s investigation costs pursuant to s 248 of the POEO Act.

10. My orders to such effect are set out at the conclusion of these reasons for decision.

Relevant background

8. The particulars of the three offences and my reasons for finding the defendant guilty are set out in Environment Protection Authority v Pullinger [2] (the liability judgment). The relevant factual background and evidence in relation to the three offences is detailed at [43]-[183] of the liability judgment. The factual background was largely derived from the parties’ extensive agreed facts which I mostly do not repeat here. In summary, the relevant background to the three offences is as follows.

9. The offences relate to the operation of a waste oil processing facility by Truegain Pty Limited (ACN 055 126 497) (Truegain) between December 2000 and April 2016 at Lot 29 of Deposited Plan 221102 at 62 Kyle Street, Rutherford (the premises). The defendant was a director of Truegain from 26 March 1992, and its secretary from 24 February 1997. From 20 August 2016 until Truegain was deregistered on 3 February 2022, the defendant was the sole director of Truegain.

10. Between 7 December 2000 and 1 April 2016, Truegain undertook the scheduled activities of waste oil processing and waste storage at the premises under Environment Protection Licence no 7638 (the Truegain EPL). During this period, Truegain received, stored and processed waste oils and waste water at the premises by refining and processing waste oils into re-usable petroleum-based products, and processed waste water for discharge to a sewer spill containment system operated by the Hunter Water Corporation (Hunter Water).

11. On 24 February 2016, Hunter Water directed Truegain to stop discharging waste water into Hunter Water’s sewers due to Hunter Water detecting per- and poly-fluoroalkyl substances (PFAS) in discharges from the premises in samples taken by Hunter Water on 12 February 2016 (the Hunter Water direction).

12. On 30 September 2016, the Environmental Protection Authority (the EPA) (the prosecutor) gave prevention notice no 1545252 to the defendant pursuant to s 96(2) of the POEO Act. The prevention notice required the removal and lawful disposal off-site of all liquids or waste materials within bunded areas (including waste oil and contaminated rainwater) to prevent discharge of contaminated water from the premises.

13. On 5 June 2017, the EPA gave the defendant clean-up notice 11548804 (the clean-up notice).

14. On 5 January 2018, the EPA revoked the Truegain EPL.

15. On 18 May 2018, the EPA (Ms Karen Marler, director North-Hunter), by delegation, gave the defendant the varied clean-up notice. The varied clean-up notice relevantly required the defendant to:

7. By no later than 5pm on Friday 31 August 2018, process, remove and lawfully dispose from the Premises all liquids contained within all above ground tanks.

…

10. Upon the completion of Direction 6, immediately remove and lawfully dispose of all liquids from the onsite bunds (or similar structures) and the underground tank and pit system as a result of the following circumstances:

a) Following a rainfall of 10mm or more in any 24 hour period (9:00am to 9:00am) recorded at the Commonwealth Government’s Bureau of Meteorology (Maitland Airport) Weather Monitoring Site and/or recorded on the Premises.

b) When the underground tank is over 1/3 full. For the purposes of determining if the underground tank is over 1/3 full the tank shall be dip tested at 9:00am each day or levels monitored by installing monitoring equipment.

16. On 30 August 2018, the defendant entered into a contract with Enviro Pacific Solutions Pty Ltd (EPS) for EPS to design, procure, commission and operate a water treatment system to treat 3 megalitres of PFAS contaminated water at the premises (the EPS contract). The works were to be completed by EPS in two phases that addressed direction 6 (phase 1) and direction 7 (phase 2) of the varied clean-up notice. Under the EPS contract, the defendant was obliged to pay EPS amounts for scheduled items and milestone payments, totalling $302,158.61. The defendant did not make all payments in accordance with the EPS contract and the works undertaken by EPS at the premises in accordance with the EPS contract did not progress beyond phase 1.

17. As at 31 August 2018, the liquids which were contained in the above ground tanks as at 18 May 2018 (the date the varied clean-up notice was given) remained in the above ground tanks, and had not been processed or removed from the premises and disposed of lawfully.

18. On 25 August 2020, the defendant was given the prohibition notice by the Honourable Matt Kean MP, the then NSW Minister for Energy and Environment (the Minister). The background section to the prohibition notice relevantly provided as follows:

N. On 4 February 2019, Mr Pullinger and Glowbye provided the EPA with a preliminary investigation report examining groundwater and soil contamination at the Premises. Sampling involved targeting PFAS, petroleum hydrocarbons, polycyclic aromatic hydrocarbons and heavy metals as contaminants of concern, but did not include solvents despite a solvent wash area and a drum storage area in the northern parts of the Premises. The report found groundwater exceedances against the PFAS National Environment Management Plan (NEMP) drinking water guidelines, concentrations of copper, nickel and zinc exceeding NEPM groundwater investigation levels and soil detections of PFAS and NEPM Ecological Investigation Level exceedances for zinc.

…

P. On 12 September 2019, the EPA undertook sampling of the bund storage areas at the Premises confirming high levels of PFAS and other contaminants in bund water. It is believed that the above ground tanks are still holding waste material with similar pollutant characteristics to the bund water. There is an ongoing risk that contaminated liquids will be discharged from the System to areas within the Premises, especially during or after rain.

Q. Under s 101 of the Act the EPA may recommend the issuing of a prohibition notice, including if it is of the opinion that there is an ongoing discharge of pollutants within premises arising from an activity, and that the continued activity is likely to cause harm to the environment or be harmful to public health. The EPA has made such a recommendation in respect of the activities at the Premises.

…

19. The prohibition notice relevantly directed the defendant to cease storing waste and keeping substances that are harmful or potentially harmful to the environment, including hydrocarbons and PFAS chemicals for a period of two years from the date of the notice.

20. On 9 December 2021, in Class 4 civil debt recovery proceedings in relation to clean up activities at the premises, Pain J delivered judgment in favour of the EPA, ordering the defendant to pay the prosecutor the sum of $1,178,940.78 plus interest in the amount of $63,362.77: Environment Protection Authority v Pullinger. [3]

21. As a consequence of my finding in the liability judgment that the defendant was guilty of each of the three offences, a sentencing hearing was held on 1 October 2024 before me.

Evidence

22. As indicated above, findings of fact, largely reflecting facts agreed between the prosecutor and defendant for the purpose of the liability hearing, are set out at [45]-[164] of the liability judgment.

Prosecutor’s evidence on sentence

23. As additional evidence for the purpose of sentencing, the prosecutor read the affidavit of Mr Ross McFarland, chief environmental scientist (Asia Pacific) for AECOM Australia Pty Ltd (AECOM) dated 4 November 2020. The prosecutor tendered part of exhibit RVM-1 to the affidavit of Mr McFarland which is a report by AECOM titled “Truegain Expert Opinion Site Investigation of 62 Kyle Street Rutherford NSW” and dated 18 September 2020 (the AECOM report).

24. The AECOM report included a table titled “Conceptual Site Model” which is extracted below:

| Source | Plausible Scenarios | Pathway | Receptors | Exposure Assessment | | Bunds and tanks | Leaking or tank failure which leads to off-site migration of impacts | ● Surface Water ● Adjacent residential property | ● Stony Creek surface water ecosystem ● Residential human receptors | Potential for off-site migration ● ASTs [above ground storage tanks] generally in poor condition, several considered no longer serviceable. CoPCs [chemicals of potential concern] exceeded EILs in 62 tanks and five bunds. ● Approximately 2,100,000 Litres (L) or about 2.1 Megalitres (ML) of contaminated water estimated within the 62 sampled tanks. Approximately 347,000 L of Non-aqueous phase liquid (NAPL) estimated to be contained in 38 ASTs. Nine (9) of these with severe corrosion. ● Wastewater treatment plant bund has collapsed in sections, providing a potential point of discharge to neighbouring property and surface waters. ● Pavements generally in poor condition, potential leakage through cracks. ● Bunds close to capacity with contaminated water; further rain events may result in “overtopping” with uncontrolled release to the environment. ● Four of the five bunds in poor condition with evidence of leakage. Bunded area at rear of the wastewater treatment plant has collapsed in sections, providing potential point |

25. In relation to the receptors indicated in the “Conceptual Site Model” table, the prosecutor conceded at the sentencing hearing that “the only plausible receptor is the Stony Creek surface water” receptor. The AECOM report described Stony Creek as an “ecological receptor with the potential for migration directly into the creek from bund overflow or tank failure”.

26. The AECOM report referred to the following three documents which include criteria for use in evaluating potential risk to human health and to the environment:

27. National Environment Protection (Assessment of Site Contamination) Measure 2013 (ASC NEPM);

28. PFAS National Environmental Management Plan (HEPA 2020); and

29. National Environmental Management Plan 2013.

Defendant’s evidence on sentence

27. The defendant relied on the affidavit of Mr Robert Lenard Pullinger dated 17 August 2023 (the 2023 Pullinger affidavit) which was read at the liability hearing. The defendant also read the affidavit of Mr Pullinger dated 30 September 2024 (the 2024 Pullinger affidavit) which annexed the following documents:

28. a letter from Hall Chadwick Chartered Accountants & Business Advisors to Mr Pullinger dated 4 January 2023 which states that Mr Pullinger would be “automatically discharged from Bankruptcy” on 13 October 2024 (th****e bankruptcy letter dated 4 January 2023);

29. a hospital doctor’s letter to Mr Pullinger’s general practitioner which includes Mr Pullinger’s medical history dated 16 September 2024; and

30. a letter from one of Mr Pullinger’s doctors dated 25 September 2024 which made comment on what he considered the defendant’s impairments due to a medical condition and noted that the defendant:

(a) was separated from his wife; (b) had suffered reputational damage; and (c) had no work capacity.

28. In the 2024 Pullinger affidavit, the defendant said that he:

29. was a retired pensioner;

30. was presently bankrupt;

31. resided in rented accommodation;

32. relied on a pension as his “exclusive source of income” with no other assets; and

33. had, since September 2023, experienced a number of medical episodes for which he was still being treated at the time of making the affidavit.

Relevant legislative provisions and legislative history

29. Section 3 of the POEO Act provides as follows in relation to the objects of the Act:

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,

…

(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

…

(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.

…

30. As at 16 November 2020, when the direction 7 charge and direction 10 charge proceedings were commenced, s 91(1) and (5) of the POEO Act relevantly provided:

91 Clean-up by occupiers or polluters

(1) Notices The appropriate regulatory authority may, by notice in writing, do either or both of the following—

(a) direct an owner or occupier of premises at or from which the authority reasonably suspects that a pollution incident has occurred or is occurring,

(b) direct a person who is reasonably suspected by the authority of causing or having caused a pollution incident,

to take such clean-up action as is specified in the notice and within such period as is specified in the notice.

…

(5) Offence A person who, without reasonable excuse, does not comply with a clean-up notice given to the person is guilty of an offence.

Maximum penalty—

…

(b) in the case of an individual-$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

31. As at 16 November 2020, when the prohibition notice charge proceedings were commenced, ss 101 and 102 of the POEO Act relevantly provided:

101 Prohibition on activities

(1) Application of section This section applies where the EPA recommends to the Minister that a notice be given under this section because it is of the opinion that the emission or discharge of pollutants from (or within) any premises in which any activity is carried on—

(a) is causing or is likely to cause such harm to the environment, or

(b) is or is likely to be so injurious to public health, or

(c) is causing or is likely to cause such discomfort or inconvenience to any persons not associated with the management or operation of the activity,

that the giving of the notice is warranted.

(2) Notice The Minister may, by notice in writing, do either or both of the following—

(a) direct the occupier of the premises,

(b) direct the person carrying on the activity,

to cease carrying on the activity, or any specified aspect of it, for such period as is specified in the notice.

…

102 Offence

A person who, without reasonable excuse, does not comply with a prohibition notice given to the person is guilty of an offence.

Maximum penalty—

…

(b) in the case of an individual-$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

32. Section 114 of the POEO Act provides as follows in relation to classification of offences in the POEO Act:

114 Classification of offences

(1) Tier 1 offences are the offences under Part 5.2.

(2) Tier 2 offences are all other offences under this Act or the regulations.

(3) Tier 3 offences are tier 2 offences that may be dealt with under Part 8.2 by way of penalty notice.

33. Section 241 of the POEO Act provides in relation to the matters to be considered in imposing penalty:

2****41 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.

34. The Dictionary to the POEO Act defines “harm” as follows:

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.

35. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) provides as follows in relation to the purposes of sentencing:

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.

36. Section 21A of the CSP Act sets out the following relevant aggravating and mitigating factors:

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,

…

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—

(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),

…

(m) assistance by the offender to law enforcement authorities (as provided by section 23),

…

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

37. Section 6 of the Fines Act provides in relation to the consideration of the accused’s means to pay:

6 Consideration of accused's means to pay

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider—

(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

38. Section 122 of the Fines Act provides in relation to payment of share of fine to prosecutor:

122 Payment of share of fine to prosecutor

(1) This section applies where—

(a) the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and

(b) the prosecutor is not a police officer.

(2) The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor.

(3) For the purposes of this section, fine does not include an amount of the kind referred to in section 4 (1) (e) or (f).

Principles of sentencing

39. The direction 7 offence, the direction 10 offence and the prohibition notice offence are tier 2 offences pursuant to s 114 of the POEO Act because they are not identified as tier 1 offences in Part 5.2 of the POEO Act. As the offences are each strict liability offences with the same maximum penalty, the principle in The Queen v De Simoni [4] does not arise.

Onus and standard of proof at sentencing

40. Facts may not be taken into account in a way that is adverse to the interests of the defendant unless those facts have been established beyond reasonable doubt. [5] 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: Olbrich at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Environment Protection Authority v Metropolitan Collieries Pty Ltd [6] at [76] (Robson J); Environment Protection Authority v Sydney Water Corporation [7] at [131] (Pepper J).

Objective seriousness of the offences

41. The objective seriousness of the offences is measured without reference to matters personal to the offenders. It is to be determined “wholly by reference to the nature of the offending”. [8]

42. In determining the objective gravity or seriousness of the offences in this case, the circumstances to which the Court may have regard include: [9]

43. the nature of the offences;

44. the maximum penalty for the offences;

45. the harm caused to the environment by the commission of the offences;

46. the defendant’s state of mind in committing the offences;

47. the defendant’s reasons for committing the offences;

48. the foreseeable risk of harm to the environment by the commission of the offences;

49. the practical measures to avoid harm to the environment; and

50. the defendant’s control over the causes of harm to the environment.

51. I am also required to take into account the statutory matters in s 241 of the POEO Act set out above at [33]. Some of these factors overlap with the factors concerning objective seriousness set out at [42] above.

52. When sentencing for environmental offences, a fundamental consideration is the degree to which, having regard to the maximum penalties provided in the statute, the offender’s conduct would offend against the legislative objectives expressed in the statutory offence. [10] The nature of the provision creating the offence and its place in the statutory scheme shed light on the objective seriousness of the offence. [11] Ascertaining the purpose of creating an offence is assisted by consideration of the objects of the statute, which are extracted above at [29]. [12]

53. Chapter 4 of the POEO Act creates a system of environment protection notices, including prohibition notices, prevention notices and clean-up notices. The prosecutor referred to the decision of Pepper J in Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden [13] (Cessnock City Council v Quintaz) where her Honour said at [65]:

There is a clear need to uphold the regulatory system established under the POEOA which depends on personal and corporate entities taking steps to remediate, rectify and remove sources of pollution as directed and in a timely manner. This system minimises any actual or potential environmental harm caused by the pollution and ensures that the costs of remediation are borne by those responsible for the pollution. The actions of Quintaz in failing to comply with the Clean Up Notice undermined this system and offended the objects of the Act ...

46. The defendant submitted that the nature of the offences should be considered in the context of the statutory scheme, and that the features in relation to clean-up notices included the following:

47. a clean-up notice can be issued to a number of different categories of person including a person reasonably suspected of having caused or contributed to the pollution incident or the owner or occupier of the premises from which the pollution incident is reasonably suspected of having occurred: s 91(1) of the POEO Act;

48. there is a power to vary, including by extending the time for compliance, or to revoke a clean-up notice, however, there is no formal process for a person to apply for a variation or revocation: s 110 of the POEO Act;

49. the EPA may also direct a public authority to take clean-up action if it reasonably suspects that a pollution incident has occurred or is occurring: s 92(1) of the POEO Act. Public authorities are also authorised to undertake clean-up action voluntarily if they reasonably suspect a pollution incident: s 92(2) of the POEO Act. This is so even if the public authority was not involved in the pollution incident; and

50. if a public authority undertakes clean-up action, it may recover the costs of doing so from the occupier of the premises from which it reasonably suspects the pollution incident occurred or from a person who it reasonably suspects caused or contributed to the pollution incident: s 104(2) of the POEO Act.

51. The defendant submitted that these four features provided “an overall scheme to protect the environment and clean-up pollution with the objective of primary responsibility for pollution ultimately falling to the polluter”. In the present case, the defendant submitted that the varied clean-up notice was issued to the defendant as the owner of the land. He was not the polluter. The source of PFAS pollution at the premises was not identified.

52. The premises had previously been operated by Truegain as a licensed waste oil processing and waste storage facility. In February 2016, Hunter Water detected PFAS in trade waste discharged to the sewer and directed that discharge from the premises to cease. This meant that Truegain could no longer carry out its business. Truegain’s EPL was suspended in April 2016 and the company entered administration in 2016. With Truegain no longer occupying the premises, the EPA required the defendant as the owner of the land to take clean-up action.

53. The defendant submitted that he took steps over a number of years including engaging employees and contractors and expending considerable financial resources in attempting to comply with the clean-up notice. I considered these attempts in the liability judgment when considering the defence of reasonable excuse sought to be relied upon by the defendant. While I did not find the defence to have been made out, the defendant submitted that the attempts to comply with the varied clean-up notice were relevant to the objective seriousness of the offence.

54. The defendant did not comply fully with the varied clean-up notice. The EPA stepped in and took clean-up action, as it was entitled to do under the statutory scheme. The EPA issued compliance costs notices to the defendant and brought Class 4 proceedings in this Court, also a feature of the statutory scheme, to recover the cost of its clean-up action from the defendant. [14]

55. I find that the offences were in the middle range of objective seriousness.

Maximum penalties for the offences

52. The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence and a yardstick against which to measure the relevant features of the offence for which the defendants are to be sentenced. Careful attention to maximum penalties will almost always be required because, amongst other things, they invite comparison between the worst possible case and the case before the court at the time. [15]

53. The maximum penalty for failing to comply with a clean-up notice under s 91(5) of the POEO Act was, at the relevant time, $250,000 in the case of an individual.

54. The maximum penalty for failing to comply with a prohibition notice under s 102 of the POEO Act was, at the relevant time, $250,000 in the case of an individual.

55. The defendant has been convicted of two offences against s 91(5), and one offence against s 102, of the POEO Act.

The defendant’s state of mind and reasons for committing the offences

56. A strict liability offence, such as s 91(5) and s 102 of the POEO Act, that is committed intentionally, negligently or recklessly will be objectively more serious than one that is not so committed. [16]

57. The prosecutor did not submit that the offences were committed recklessly, but did submit that they were committed intentionally. The defendant elected to deploy significant funds and resources in the period 2016 to 2020 on matters not relating to remediating the premises. [17] He did not prioritise the expenditure of available funds on the balance of the EPS contract to achieve compliance with the varied clean-up notice. [18]

58. The defendant submitted the Court ought not to find that he intended to commit the offences. The evidence of his attempts to comply shows that he intended to do so. The evidence also demonstrated that his intention was to seek to establish a new business on the premises, a necessary component of which would be cleaning up the premises.

59. In oral submissions, Ms Sims for the defendant submitted that during the charge periods the defendant made attempts to reduce the likelihood of environmental harm. For example, he employed Mr Konstanin (Kosta) Vujkovic (see the liability judgment at [64]), before EPS was engaged.

60. I find that the offences were committed intentionally, not negligently or recklessly. As the prosector submitted, in the period 2016 to 2020, he elected to deploy resources in the period 2016 to 2020 on matters not relating to the remediation of the premises. [19] He did not, but could have, prioritised the expenditure of available funds to achieve compliance with the varied clean-up notice and prevention notice. [20]

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

61. Whether the prosecutor established, beyond reasonable doubt, environmental harm caused or likely to be caused to the environment was a central point of contention in the hearing on sentence. In environmental offences, “harm” includes both actual harm and potential harm. In Environment Protection Authority v Waste Recycling and Processing Corporation, [21] the chief judge said as follows at [145]-[149] (emphasis added) in relation to harm:

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 …

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; 39. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 NSW.

149. The fact that the environment harmed by the offender's conduct was already disturbed or modified is not a mitigating factor …

62. The prosecutor accepted that there was no evidence of actual harm to the environment caused by the offences, but submitted that there was evidence that there was a risk of serious potential harm to the environment and that that risk was real and not theoretical.

63. The prosecutor submitted that the serious risk of potential harm is evidenced by the scenarios, and pathways in the AECOM report, particularly the “Conceptual Site Model” extracted above at [24]. In relation to potential environmental harm, the prosecutor further relied on the statement in section 4 of the AECOM report that “Stony Creek is considered an ecological receptor with the potential for migration directly into the creek from bund overflow or tank failure”. The prosecutor also referred to the three documents referred to in the AECOM report, set out above at [26], which it submitted further demonstrated that the risk of potential harm from incidents caused by the defendant’s failures to comply with the notices was serious and real.

64. Further, the prosecutor submitted that the findings of fact in the liability judgment demonstrated that the scenarios outlined in the conceptual site model were not theoretical, but real as there were occasions on which flooding occurred and liquids did discharge onto the site. On that basis, the potential risk was serious and real rather than hypothetical.

65. The defendant accepted that there was a risk of harm to the environment if liquid wastes contained within the tanks or spill containment system were discharged from the premises. However, he submitted that the risk to Stony Creek was low because the above ground tanks were within the bunded area of the premises. Until April 2019, he was managing liquids within the spill containment system (by evaporation, storage in above ground tanks, or processing by EPS). From June 2020, the EPA engaged contractors to remove liquids from the spill containment system as needed. By a combination of these measures, there was little risk of liquid wastes discharging from the premises. Ms Sims submitted on behalf of the defendant that if there was a tank failure, it was not the case that all of the liquid would immediately make its way into the creek, even in the case of a catastrophic failure of a tank.

66. Further, Ms Sims submitted that during the charge periods there were attempts made by the defendant to “reduce the likelihood of an environmental incident”. For example, the defendant employed Mr Konstanin (Kosta) Vujkovic “to pump out the underground tank into the above ground tanks or into the [bunded] areas to allow for evaporation”.

67. I find, as submitted by the prosecutor, that there was a risk of serious potential harm to the environment, and that the risk was real and not hypothetical.

68. The scenarios and pathways in the AECOM report, extracted above at [24], in particular the “Conceptual Site Model” demonstrate the seriousness of the risk to the Stony Creek surface water receptor. Stony Creek was considered by AECOM to be an ecological receptor with the potential for migration directly into Stony Creek from bund overflow or tank failure. The three documents referred to in the AECOM report set criteria for evaluating potential harm in investigation levels, exceedances of which each demonstrate that the risk of potential harm from incidents caused by the defendant’s failures to comply with the notices was serious and real.

69. The AECOM report used the three documents to provide guidance in evaluating potential risk to human health and to the environment. The NEPA 2000 set the criteria of “95% species protection in slightly to moderately disrobed systems”, the ASC NEPM “95% protection trigger value” and “solubility limits” in relation to ecological investigation limits used in the AECOM report. Results from the underground storage tank exceeded the PFOS ecological investigation limit (0.13 µg/L) by two orders of magnitude (13.4 µg/L) and TRH>C10-C16 exceeded the ASC NEPM solubility limit (3000 µg/L), inferring that dissolved hydrocarbons have the potential to form non-aqueous phase liquid. Above ground tanks and the bund in the solvent wash tank farm and tank farm 123 exceeded ecological investigation limits for PFOS, hydrocarbons, phenols, halogenated aromatic compounds, nitroaromatics, ketones. Above ground tanks and the bund in the drum tank farm exceeded ecological investigation limits for PFOS.

70. Five of the ten sampled above ground storage tanks in the southern tank farm reported exceedances of PFOS, hydrocarbons, PAHs, phenols and zinc. Above ground tanks and the bund in the wastewater treatment plant exceeded ecological investigation limits for hydrocarbons, PAHs, phenols, PFOS, PFOA and zinc. Above ground tanks and the bund in the 112 and 108 tank farm and trade waste tank farm exceeded ecological investigation limits for hydrocarbons, PAHs, PFOS, PFOA and phenols. Above ground tanks and the bund in the main processing area exceeded ecological investigation limits for hydrocarbons, phenols, PFOS and zinc. The process area tank farm and bund exceeded ecological investigation limits for PFOS by an order of magnitude, and the above ground tank also exceeded for hydrocarbons, phenols and zinc. Three trunk tanks reported exceedances above the ecological investigation limit for PFOS (truck 3 by three orders of magnitude). Truck 2 exceeded the ecological investigation limit for hydrocarbons, PAHs and phenols, and exceeded TRH>C10-C16 solubility limits.

71. That the potential risk was serious and real rather than hypothetical is demonstrated by the fact that there were occasions on which flooding occurred, and liquids discharged on the site: see liability judgment at [71], [73], [92].

72. I accept, as submitted by the defendant, that some efforts were made by the defendant during the charge periods to manage liquids within the soil containment system and reduce the likelihood of an environmental incident. However, I am not satisfied that such efforts were sufficient to render the risk of potential harm to Stony Creek other than serious and real.

73. I conclude, as submitted by the prosecutor, that there was a risk of serious potential harm to the environment, and that the risk was real and not hypothetical.

The practical measures taken to avoid harm to the environment: s 241(1)(b) of the POEO Act

74. The prosecutor submitted that the potential for harm could have been prevented by:

75. properly maintaining the premises;

76. complying with the clean-up notices when directed;

77. directing available funds and resources to complying with the clean-up notices rather than to other matters; and

78. complying with the prohibition notice when directed.

79. In oral submissions, Ms Sims for the defendant submitted that during the charge periods there were attempts by the defendant to “reduce the likelihood of an environmental incident”. For example, the defendant employed Mr Konstanin (Kosta) Vujkovic “to pump out the underground tank into the above ground tanks or into the [bunded] areas to allow for evaporation”. Ms Sims further submitted that although he did not comply, the defendant’s “intention throughout, evidenced by his conduct, was to comply”.

80. I find that during the offence periods there were practical measures the defendant could have taken to avoid potential harm to the environment. These are as identified by the prosecutor. The employment of Mr Vujkovic in the circumstances referred to in the liability judgment at [64], [72], [76], [106], [128], [250], [288], [291], [293], [311] was not an adequate practical measure.

The foreseeability of harm caused or likely to have been caused to the environment: s 241(1)(c) of the POEO Act

77. For harm to be foreseeable, the precise cause of an incident is not required to be foreseen. [22]

78. The prosecutor submitted that the potential for harm was foreseeable due to the nature of activities carried on at the site, the nature of the substances being stored at the site and the condition of the tanks and bunds in which those substances were being stored. The prosecutor submitted that it is not necessary to establish that the defendant could have foreseen any particular rainfall event or particular overflow event. It is sufficient that it was foreseeable that deficient ongoing maintenance could cause these breaches. The defendant was on notice that heavy rainfall had occurred and was expected during the relevant period [23] and ought to have taken reasonable steps to anticipate heavy rainfall by monitoring weather forecasts.

79. The defendant made no submission in relation to the foreseeability of harm caused or likely to have been caused to the environment.

80. I find, as submitted by the prosecutor, that the potential for harm was foreseeable due to the nature of activities carried on at the site, the nature of the substances being stored at the site and the condition of the tanks and bunds in which those substances were being stored. The defendant was on notice that heavy rainfall had occurred and was expected during the relevant period and ought to have taken reasonable steps to anticipate heavy rainfall by monitoring weather forecasts.

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

81. The prosecutor submitted that the defendant had significant control over the causes of the offences as operator of the premises who made decisions about ongoing maintenance, and who had obtained funds necessary and sufficient to comply with the clean­up notice.

82. There were no submissions from the defendant in relation to this factor.

83. I find, as submitted by the prosecutor, that the defendant had significant control over the causes of the offences.

Conclusion in relation to objective seriousness

84. In relation to objective seriousness, in addition to the above sentencing considerations relevant to the seriousness of the offences, the prosecutor accepted that the defendant did take steps to partially comply with the clean-up notices, [24] and as such the clean-up notice offences were less serious in light of the partial efforts for compliance than might have been the case had there been no compliance.

85. The prosecutor submitted that each of the three offences falls within the mid-range of objective seriousness for offences of this kind, and that such a classification does not form part of a two-stage sentencing but rather is one of the matters to be considered during the instinctive synthesis.

86. Taking into consideration each of the sentencing considerations relevant to the seriousness of the offence, and that the defendant took steps to partially comply with the clean-up notices, I find that that each of the offences falls within the mid-range of objective seriousness.

Subjective factors

87. Within the limits set by the objective seriousness of the offence, I take into account the favourable and mitigating circumstances of the defendant.

Injury, emotional harm, loss or damage caused by the offences: s 21A(2)(g) of the CSP Act

88. The prosecutor relied on s 21A(2)(g) of the CSP Act which lists as an aggravating factor whether the injury, emotional harm, loss or damage caused by the offence was substantial. The prosecutor submitted that although there was no evidence of actual substantial harm to the environment, there was nevertheless harm caused by the substantial costs of the clean-up which fell to the EPA and ultimately the public. These costs amounted to $7,444,977.56. [25]

89. The defendant submitted that the Court should note that the EPA issued compliance costs notices to the defendant and took Class 4 proceedings [26] to recover the part of the clean-up costs pursuant to s 105(1) of the POEO Act.

90. The Court notes that in Pullinger (Class 4), at [168] Pain J ordered Mr Pullinger to pay the EPA $1,178,940.78 plus interest in the amount of $63,362.77.

The harm caused by the offence: s 21A(3)(a) of the CSP Act

91. The prosecutor submitted that the potential harm caused by the offending was substantial and that this potentially mitigating factor is not available to the defendant for the reasons set out above at [61]-[64]. I so find.

Defendant's record of previous convictions: s 21A(3)(e) of the CSP Act

92. The prosecutor was not aware of the defendant having any prior convictions.

Good character: s 21A(3)(f) of the CSP Act

93. No submissions were made by either party as to whether the defendant could be said to be of good character.

Prospects of reoffending: s 21A(3)(g) of the CSP Act

94. The prosecutor submitted that the defendant no longer operated any waste management facilities and conceded that his prospects of reoffending were low.

95. The defendant submitted that there was “virtually no prospect” of the defendant reoffending. He was not currently working in the waste industry and given his age (75 at the time of hearing on sentence), health, the circumstances of the offences and his financial position, it was very unlikely that he would do so in the future. Even if his bankruptcy was discharged, it was unlikely that he would be able to raise funds or be considered a fit and proper to hold an EPL due to the bankruptcy and finding of guilt for the offences. In oral submissions, Ms Sims further submitted that the bankruptcy letter dated 4 January 2023 stated that “upon discharge from bankruptcy your name will appear on the National Personal Insolvency Index (NPII) forever as a discharged bankrupt”, another barrier to Mr Pullinger commencing a new business.

Contrition and remorse: s 21A(3)(i) of the CSP Act

96. The prosecutor submitted that there was no evidence of contrition or remorse from the defendant.

97. The existence of remorse is relevant to the weight that needs to be given in sentencing to specific deterrence and the prospects of rehabilitation. [27]

98. Having considered the affidavits of Mr Pullinger dated 17 August 2023 and 30 September 2024, I find that there is no evidence of contrition or remorse from the defendant.

Plea of guilty: s 21A(3)(k) of the CSP Act

99. The Court may apply a discount to a maximum of 25% where a guilty plea is entered at the earliest reasonable opportunity. [28]

100. Here, the defendant did not plead guilty to any of the three offences. Accordingly, there can be no discount for a plea of guilty in determining the appropriate sentences.

Assistance to authorities: s 21A(3)(m) of the CSP Act

101. The prosecutor accepted that the defendant engaged with the EPA during its investigations and responded to various notices, both of which could be considered assistance by the offender to law enforcement authorities within s 21A(3)(m) of the CSP Act.

102. In the course of the liability hearing, the defendant agreed to extensive agreed facts: see [43] of the liability judgment. In ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (ACE Demolition), [29] the Court of Criminal Appeal held at [98] that “[t]here may be exceptional cases where an offender’s participation in a statement of agreed facts nonetheless amounts to assistance for the purposes of s 21A(3)(m)”.

103. Here, the defendant did not rely on his participation in a statement of agreed facts as a mitigating factor within the meaning of s 21A(3)(m) of the CSP Act.

Other principles of sentencing to be considered

Proportionality

104. Neither the prosecutor nor the defendant made any submission in relation to proportionality. Nonetheless, I have had regard to the principle of proportionality in determining appropriate penalties for the three offences here. It is a fundamental principle of sentencing that the sentence should not exceed what is proportionate to the gravity of the offence, having regard to its objective circumstances. I have considered this principle in arriving at the sentence to be imposed for the three offences here.

General and specific deterrence: s 3A(b) of the CSP Act

105. A principal consideration in sentencing environmental crimes is general deterrence. [30] The prosecutor submitted that because clean-up notices and prohibition notices are “an important [part] of the regulatory framework for environment protection established by the POEO Act”, there is a need for general deterrence in the case of failure to comply with such notices.

106. In Environment Protection Authority v Ballina Shire Council [31] at [65]-[68], Preston CJ of LEC discussed general deterrence in the context of environmental offences as follows (citations omitted):

65. The sentence of the Court is an important denunciation of the conduct of the defendant.

66. The sentence must also serve as a public deterrent. 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 a light punishment will be imposed.

67. This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines.

68. The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court's sentence, the offender is given his just desserts.

107. The prosecutor submitted that a nominal penalty would not achieve the purposes of general deterrence. There is a need for general deterrence to ensure that waste facilities (even those that are not operational) are maintained in a manner that does not potentially harm the environment.

108. In relation to specific deterrence, in oral submissions Ms Berglund for the prosecutor conceded that the defendant “does not have capacity to work and … is not likely to be conducting this type of business again”.

109. I find that clean-up notices and prohibition notices are an important part of the regulatory framework established by the POEO Act, and that there is a need for general deterrence where, as here, there is a failure to comply with them.

110. In relation to specific deterrence, and the purposes for which the court may impose a sentence on the defendant, I find, as conceded by the prosecutor, that the defendant does not have the capacity to work and is not likely to be conducting this type of business again.

Even-handedness and consistency in sentencing

111. The consistency that is sought in sentencing is consistency in the application of relevant legal principles, not numerical equivalence. [32] As the chief judge observed in Environmental Protection Authority v Ditchfield Contracting Pty Ltd [33] at [72], the more appropriate yardstick against which the sentences in this case should be compared is the penalty set by Parliament, rather than the amount of fines imposed in past cases.

112. In relation to s 102 of the POEO Act, the prosecutor was unable to point to a previous case imposing a sentence for the offence of failing to comply with a prohibition notice. The prosecutor submitted that the most comparable sentencing cases were s 91(5) of the POEO Act cases concerning failure, without a reasonable excuse, to comply with a clean-up notice.

113. In relation to the s 91(5) failure to comply with a clean-up notice offences, the prosecutor annexed to its submissions a schedule summarising the main facts underlying and sentences imposed in the following cases: Environment Protection Authority v Carbon MF Pty Ltd; Environment Protection Authority v Fair [34] (EPA v Carbon MF); Environment Protection Authority v Imad Osman-Kerim [35] (EPA v Osman***-Kerim***); Cessnock City Council v Quintaz*;* Environment Protection Authority v Sydney Water Corporation [36] (EPA v Sydney Water); Transport for New South Wales v Estuary Constructions Pty Ltd; Transport for New South Wales v Sampson [37] (TfNSW v Estuary Constructions; Sampson); and Environment Protection Authority v Hughes [38] (Hughes). The first four cases were submitted to be of particular relevance to penalty for failing to comply with a clean-up notice.

114. In EPA v Carbon MF, the defendants, Carbon MF and Mr Fair pleaded guilty to offences against ss 91B and 142A of the POEO Act arising from the unlawful storage, between January 2022 and February 2023, of 28,000 waste tyres on premises that had development consent to store only 500 waste tyres. Duggan J found that the offences were in the mid-range of objective seriousness (at [53]) and that there was no evidence of actual harm (at [41]). In relation to aggravating factors, her Honour found that the offences were committed without regard to public safety (at [44]). In relation to mitigating factors, Duggan J found that Mr Fair was bankrupt, but had capacity for continued employment, and that “he appeared … to be a relatively young and moderately fit gentleman” (at [80]), resulting in a 70% discount of the fine (at [80]). After applying a 25% discount for an early plea and the 70% discount, Mr Fair was fined $18,000 for the s 91B offence (discounted from $80,000) and $39,365 for the s 142A offence (discounted from $175,000). Her Honour also ordered that a publication order be made and that the defendants each pay 50% of the investigation costs in the amount of $33,228.55.

115. EPA v Osman-Kerim concerned the failure of the defendant to properly contain liquid waste from chemical containers. Mr Osman-Kerim pleaded guilty to one offence against s 64(1) of the POEO Act, and two offences against s 91(5) of the POEO Act. Robson J found that each of the offences was committed deliberately and that the commission of the two s 91(5) offences caused significant actual and likely environmental harm that was foreseeable and of high objective seriousness (at [70]). In relation to remorse, his Honour found that the defendant “expressed some remorse and contrition”, but held that such remorse and contrition should be given limited weight as it was directed more at the effects of the offences on himself and his business, “rather than at the harm caused by his actions” (at [83]). His Honour noted that the defendant gave evidence of limited financial means that “was not properly substantiated by the evidence”, and imposed a penalty that was “slightly less than would have otherwise been the case” (at [99]). For each of the two s 91(5) offences, the defendant was fined $50,000. The defendant was also ordered to pay the prosecutor’s costs in the amount of $120,795.

116. In Cessnock City Council v Quintaz, the corporate defendant Quintaz Pty Ltd (Quintaz) pleaded guilty to one offence against s 91(5) of the POEO Act for failing to comply with a clean-up notice in relation to building demolition waste stockpiled on its property. Pepper J found that the potential for environmental harm was minimal due to the bonded nature of the asbestos and the limited amount of asbestos fragments present on the property. In determining the appropriate penalty to be imposed, her Honour gave a 25% discount taking into account all of the circumstances including the defendant’s guilty plea, the low to medium objective seriousness of the offence, the defendant’s subjective factors and the application of the totality principle (at [139]). Ultimately, her Honour imposed a penalty of $112,500 and ordered Quintaz to pay the prosecutor’s costs in the amount of $45,700.

117. In EPA v Sydney Water, Sydney Water pleaded guilty to an offence against s 91(5) for failing to comply with a clean-up notice from about 14 September to 19 October 2018. The clean-up notice was given in response to a sewerage overflow from the Cronulla Sewage Treatment Plan reticulation system. Pepper J found the offence to have been reckless (at [180]) and that the objective seriousness was at the very high end of the low range (at [196]). Her Honour considered Sydney Water’s prior convictions to be an aggravating factor. Sydney Water was fined $105,000 which was discounted due to an early plea of guilty and subjective factors (at [235]). The fine was further reduced to $80,000 due to the totality principle (at [236]).

118. TfNSW v Estuary Constructions; Sampson concerned a number of charges against Estuary Constructions Pty Ltd (Estuary Constructions) and Mr Sampson. Estuary Constructions pleaded guilty to an offence against s 91(5) for not complying with a clean-up notice which was in response to barge sinking. The clean-up notice required Estuary Constructions to undertake all available measures to minimise release of debris from the barge and to ensure that it was immediately contained. Duggan J found that the harm was clearly foreseeable (at [104]), and that the objective seriousness was at the lower end of the mid-range (at [113]). Her Honour found that neither defendant expressed remorse or contrition (at [115]) and was not satisfied that Estuary Constructions provided sufficient information on its financial position to warrant a reduction of the fine (at [142]). In relation to the clean-up notice offence, Duggan J fined Estuary Constructions $50,000 which included a 10% reduction for the utilitarian value of its guilty plea, a reduction taking into account the order to pay abatement costs, and a reduction having regard to the totality principle (at [159]).

119. In Hughes, Mr Hughes pleaded guilty to an offence against s 251 of the POEO Act for failing to comply with a Court order to remove buried waste by a specific date. At [80], Pepper J accepted that a s 251 offence was analogous to a s 91(5) offence. Her Honour found that the defendant had complete control over the offending (at [124]), and that the offence was of mid-range objective seriousness (at [113]). Her Honour applied a 25% discount for an early plea of guilty and imposed a $112,500 monetary penalty (at [159]).

120. In oral submissions, Ms Sims for the defendant said that the Court should note that in some of the comparable cases relied upon by the prosecutor the defendants were corporate defendants subject to different maximum penalties, or directors of companies charged with executive liability offences, rather than a landowner as Mr Pullinger was at all relevant times.

121. I have considered the cases to which the prosecutor referred, in particular the first four, as relevant to the appropriate penalty for failing to comply with a clean-up notice. Ultimately, however, as the chief judge has observed, the more appropriate yardstick against which the sentences in this case should be compared is the penalty set by Parliament, rather than the amount of fines imposed in previous cases [39] which involved different facts and different maximum penalties.

Totality

122. The totality principle applies where a court imposes more than one non-custodial sentence, or a mixture of different non-custodial sentences, or imprisonment is imposed with an additional penalty or order. [40]

123. The principle of totality was articulated by Street CJ in R v Holder [41] at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straight-forward adding up of the terms appropriate for the offences if each were viewed alone. [42]

124. In EPA v Barnes [43] Kirby J at [43]-[50] writing for the Court confirmed that the principle of totality applies to fines. The principle was applied at [50]:

Here, the fine in respect of count 1 ($4,000) was significantly different from that in respect of count 2 ($500). However, the disparity by itself does not suggest error. Where there are multiple offences, each punishable by a custodial sentence, the totality principle may find expression through the complete or partial accumulation of sentences, or through making all or some of the sentences concurrent (cf Pearce v The Queen (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at 624 (para 45)). However, there is obviously no room for partial accumulation or concurrence in the case of fines. If the sentencing Judge believed that the totality principle required an adjustment to the fines which may otherwise be appropriate, the amount of each fine had to be altered, applying the sentencing principles suggested in Johnson v The Queen (2004) 205 ALR 346.

125. In Environment P**rotection Authority v Ghossayn Group Pty Ltd*; Environment Protection Authority v Ghossayn* [44] at [128], Preston CJ of LEC said:

The totality principle applies where an offender has committed, and is to be sentenced for, multiple offences. The effect of the totality principle is to require the court in passing a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is “just and appropriate” and reflects the total criminality before the court: Mill v the Queen (1988) 166 CLR 59 at 62-63; [1998] HCA 70; Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57 at [49]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [196]. In the case of a sentence of a fine, if the Court believes the totality principle requires an adjustment to the individual fines that would otherwise be appropriate, the amount of each fine can be altered: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [50].

126. In ACE Demolition at [111], Leeming JA (Garling and Cavanagh JJ agreeing) referred to and applied the principled approach applied by Kirby J and Preston CJ of LEC, observing that “the principled approach…is to leave questions of totality to the end, and apply a final check of the aggregate against whether it is a just and appropriate punishment for the entire criminality”.

127. The prosecutor submitted that the three offences relate to separate failures to comply with clean-up notices and with a prohibition notice “at separate points” in time. Further, the direction 7 offence and the direction 10 offence relate to different parts of the premises. However, the prosecutor conceded that the offences all arise from an ongoing operation of the same site. Thus, the totality principle applied “to the offences to some extent but not to the entirety of the three offences”.

128. The defendant submitted that based on the Court’s construction of the prohibition notice at [263] of the liability judgment, the prohibition notice required the defendant to take essentially the same acts as the varied clean-up notice. The actus reus and the charge period for the prohibition notice offence were submitted to “completely overlap” with the direction 7 and direction 10 offences, and therefore ought not attract an additional penalty.

129. It is correct, as the prosecutor submitted that the three offences relate to separate failures to comply with the two clean up notices and with the prohibition notice, and that the direction 7 offence and the direction 10 offence relate to different parts of the premises, namely the above-ground tanks and the bunds in the spill containment system. However, as the prosecutor properly conceded, the offences all arise from the ongoing operation of the same site. Further, I find that the prohibition notice required the defendant to take essentially the same acts as the clean-up notices, and hence there is an overlap with the direction 7 offences and the direction 10 offence.

130. In accordance with the “principled approach” stated by Leeming JA in ACE Demolition at [111], I will leave questions of totality to the end, and apply a final check of the aggregate against whether it is a just and appropriate punishment for entire criminality, and to achieve appropriate relativity between the totality of the criminality and the totality of the sentences for the three offences.

Capacity to pay (s 6 of the Fines Act)

131. In exercising my discretion to fix the amount of a fine, I am required by s 6 of the Fines Act to consider such information regarding the means of the defendant as is reasonably and practicably available to the court for consideration and other matters as, in the opinion of the court, are relevant to the fixing of that amount.

132. In Morris McMahon & Co Pty Limited v SafeWork NSW [45] at [93]-[95] the Court of Criminal Appeal said as follows in relation to s 6 of the Fines Act (emphasis added):

93. If it is concluded that the evidence establishes that an offender’s financial resources will result in the penalty imposing a considerable burden, for example pushing a smaller corporation to the verge of insolvency, or over, as Basten JA discussed in Silver City at [58], that must be taken into account in arriving at the fine imposed.

94. But while the result of that consideration may be that a lower penalty than that which would otherwise have been imposed will be arrived at, that will not necessarily be the result. That is because consideration of evidence of means is a relevant, but not decisive matter and in the particular case, a fine may need to be increased, rather than decreased because, for example, of the need to deter the offender: Mahdi Jahandideh v R [2014] NSWCCA 178 at [16]-[17].

95. Even if the fine imposed is lower than it would otherwise have been in the absence of evidence as to means, that will not preclude a substantial fine being imposed. That is because every sentence must be determined in light of the applicable maximum penalty and the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act, which includes the statutory expression of the principle of proportionality, that is, that the punishment must fit the crime …

133. In Environment Protection Authority v Hanna [46] at [267] Preston CJ of LEC said in relation to the means of an offender to pay a fine:

267 However, whilst the means of an offender to pay any fine is a mandatory consideration, it may not be decisive. Other sentencing considerations, such as achieving general deterrence, may justify imposing a fine in a certain amount, even if the offender is unlikely to be able to pay the fine. [47]

134. The prosecutor accepted that the application of s 6 of the Fines Act may in some circumstances justify a downward adjustment of the penalty which might otherwise be opposed to reflect a limited capacity to pay a fine. [48]

135. Ms Sims for the defendant submitted that the Court should take into account that the defendant has a very limited ability to pay a fine as his only source of income is the aged pension and that he is unable to work due to his health. Ms Sims also drew attention to the fact that Mr Pullinger was bankrupt, which was expected to be discharged on 13 October 2024. In the 2024 Pullinger affidavit, the defendant deposed that he received a pension amount of $1,096 per fortnight, which was his only source of income. Mr Pullinger said his fortnightly expenses included $120 towards health insurance, $80 towards rent and $100 towards petrol.

136. Ms Sims submitted that it would be appropriate for the court to adopt the approach taken by Duggan J in Environment Protection Authority v Routledge [49] (Routledge) at [49]-[52] of applying a 70% discount to the fine that would otherwise be appropriate having regard to the objective and subjective circumstances of the offence. This approach would achieve the purpose of general deterrence (in setting a fine that reflects the seriousness of the offence), while ensuring that the defendant’s ability to pay is also taken into account. In oral submissions, Ms Sims also drew attention to the decision of Duggan J in EPA v Carbon MF in which her Honour applied a 70% discount to the fine imposed on the defendant, consistent with her Honour’s decision in Routledge.

137. Here the evidence was that at the time of the penalty hearing, the defendant was 75 years of age, bankrupt, that his only source of income was a pension, and that he has little, if any, capacity to work again. I find that the defendant’s means to pay any fines to be fixed are limited. That is a “relevant, but not decisive matter” to which I will have regard in fixing the amount of the fines to be imposed here.

The appropriate penalty to be imposed

138. The task of the sentencer is one of “instinctive synthesis”. In Markarian v The Queen at [37], Gleeson CJ, Gummow, Hayne and Callinan JJ referred to that task as described by Gaudron, Gummow and Hayne JJ in Wong v The Queen [50] at [75] as follows:

In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed. As Gaudron, Gummow and Hayne JJ said in Wong:

"Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.

It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say 'may be' quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.

... the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an “instinctive synthesis” …

139. In sentencing here, I have had regard, in particular, to the objective seriousness of the offences (which I have found to be in the middle range of objective seriousness), that the offences were committed intentionally, that there was a risk of serious potential harm to the environment, and that the risk was real and not hypothetical, that the potential for harm was foreseeable, that the defendant had significant control over the causes of the offences, that the defendant did take steps to partially comply with the clean-up notices, the substantial costs of the clean-up ($7,444,977.56) which ultimately fell to the public, that there was no evidence of any previous offences, the absence of any contrition or remorse, Mr Pullinger’s personal circumstances including his limited capacity to pay, that Mr Pullinger is unlikely to reoffend and the need for general deterrence.

140. Mr Pullinger, having contested liability, is not entitled to a discount for entering a plea of guilty.

141. The matters set out above enable the Court to synthesise the relevant objective and subjective circumstances of the offences and the offender in light of the relevant purposes of sentencing set out in s 3A of the CSP Act, the maximum penalty for each of the offences (in the case of an offence against s 91(5) of the POEO Act in the case of an individual $250,000, and in the case of an offence against s 101 of the POEO Act in the case of an individual, likewise $250,000), and the check or yardstick provided by the cases referred to by the prosecutor.

142. Whilst I have considered the table of cases said to be comparable by the prosecutor, and accepting that the task of the Court is to seek even-handedness in sentencing, each case ultimately turns on its own facts.

143. Taking into account the objective seriousness of the offences and the other objective and subjective factors identified above, considered individually, I consider the appropriate fines to be as follows: for the direction 7 offence $75,000; for the direction 10 offence $75,000; and for the prohibition notice offence $100,000. This produces an aggregate of the individual fines in the amount of $250,000.

144. Because, however, I consider the totality principle to be applicable, the aggregate of the individual penalties, each properly calculated in relation to the offence for which it was imposed, needs to be reviewed to consider whether the aggregate is just and appropriate and reflects the total criminality before the Court. As the chief judge observed in Bay State Construction Pty Ltd v Woollahra Municipal Council [51] at [78], if the overall sentence exceeds the overall criminality, an adjustment of the individual sentences should be made. For fines, this can be done by reducing the amounts of the fines for one or more of the offences.

145. In ACE Demolition, Leeming JA (Garling and Kavanagh agreeing) said at [73]-[74]:

73. … And it is clear that considerations of totality are to be brought to bear at the end of the process: “a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed” must then “review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’”: Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70, endorsing Thomas, Principles of Sentencing (2nd ed 1979), p 56. After citing Mill, in Pearce v The Queen (1998) 194 CLR 610 at 623-624; [1998] HCA 57, McHugh, Hayne and Callinan JJ said:

To an offender, the only relevant question may be ‘how long’, and that may suggest that the sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. [Emphasis added].

74. Nothing in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 alters the process of determining individual sentences before applying the principle of totality. Thus this Court has repeatedly stated that the sentences for individual offences should be determined first, before determining questions of concurrence or accumulation and before determining totality (see for example Thorn v R [2009] NSWCCA 294; 198 A Crim R 135 at [47] and Sigalla v R [2021] NSWCCA 22 at [119] although noting that it is also open to bring considerations of totality to bear earlier.

146. And at [76] Leeming JA said:

76. There is no need to identify the percentage of the maximum which the sentence imposed following consideration of totality reflects. To do so may be artificial, for an assessment of the appropriate aggregate sentence is unlikely to turn on any percentage of the maximum. With all respect, neither the geometric sequence of fines imposed by Kirby P [in Camilleri’s Stock Feeds], nor the arithmetic sequence imposed by the primary judge, is an especially natural way of determining whether in light of the totality of offending the aggregate of individual sentences is “just and appropriate”.

147. In this case, I consider that the aggregate of the individual fines, $250,000, exceeds what is just and appropriate and the total criminality involved in the commission of the three offences.

148. It is correct that the three offences relate to separate failures to comply with the two clean up notices and with the prohibition notice, and that the direction 7 offence and the direction 10 offence relate to different parts of the premises. At the same time, the three offences arise from the ongoing operation of the same site, and the prohibition notice required the defendant to take essentially the same acts as the clean-up notices. There is an overlap between the prohibition notice offence, and the direction 7 and direction 10 offences.

149. I consider that, in total, a just and appropriate sentence is a fine of $200,000. This should be distributed to be $60,000 for the direction 7 offence, $60,000 for the direction 10 offence and $80,000 for the prohibition notice offence.

Additional orders

Publication order

150. The prosecutor submitted that it did not seek a publication order because there had already been extensive publicity in relation to Mr Pullinger and the premises by local media such as the Newcastle Herald. Further, the prosecutor submitted that typically publication orders are made against companies who continue to operate, and the evidence of the defendant is that he will not be engaging in the waste oil business again.

151. Accordingly, I will not make any publication order.

Payment of share of fine to the prosecutor: s 122 of the Fines Act

152. The prosecutor seeks an order that one half of any monetary penalties imposed on the defendant be paid to the prosecutor under s 122 of the Fines Act.

153. Section 122 of the Fines Act applies where “the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered" and "the prosecutor is not a police officer": s 122(1). In this case, s 122 of the Fines Act applies as the POEO Act does not make any provision for the application of a fine once recovered, and the prosecutor is not a police officer.

154. Section 122(2) of the Fines Act provides that "the court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor". The court before which proceedings “are taken to recover” a fine refers to the court which has power to impose the fine. An order may be made under s 122(2) at the time the fine is imposed.

155. I consider the making of such an order to be appropriate in this case in order to compensate the EPA for the time spent investigating the offences and to "support the sustaining, on a more general basis, of environmental law enforcement activities of the prosecuting authority". [52] It would not represent a "windfall gain" to the prosecutor even if the prosecutor is separately compensated for its professional costs. [53]

156. The defendant did not oppose a moiety of the fine being paid to the prosecutor, but submitted that it should be taken into account in exercising the discretion to order the legal and investigation costs sought by the prosecutor. In oral submissions, the defendant submitted that the prosecutor had not disclosed its legal and investigation costs, and that it expected the costs would be “substantial” given the trial and the volume of evidence.

157. I will make an order than one half of the monetary fines imposed on the defendant be paid to the prosecutor pursuant to s 122 of the Fines Act.

Orders regarding costs and expenses of investigation: s 248 of the POEO Act

158. The prosecutor submitted that the Court should make an order that the defendant pay its investigation costs in the amount of $201,487 pursuant to s 248 of the POEO Act.

159. The defendant opposed that order and submitted that the prosecutor did not tender evidence or address in submissions why an order for investigation costs was available or should be made. Therefore, there was no basis upon which the Court could make an order for investigation costs.

160. I am satisfied that the prosecutor has reasonably incurred costs and expenses during the investigation of the offences, and will make an order pursuant to s 248 of the POEO Act that the defendant pay to the prosecutor the amount of $201,487 incurred in the investigation of the offences.

Legal costs

161. The prosecutor seeks its costs of the proceedings, as agreed or assessed.

162. The defendant submitted that the prosecutor has not disclosed to the Court the quantum of costs that it will seek, but it “can be assumed that the amount will be substantial”. The defendant submitted that it would not be fair and reasonable to order that he pay the prosecutor’s costs of the proceedings for the following reasons:

163. the defendant has limited means to pay. The defendant was made bankrupt several months prior to the commencement of the proceedings and the prosecutor ought to have been aware of that fact and investigated his financial position before commencing the proceedings;

164. the prosecutor will, if ordered by the court, receive a moiety of the fine;

165. the prosecutor amended (narrowed) the charges several times during the course of the proceedings (as referred to in E**nvironment Protection Authority v Pullinger [54] and during the liability hearing). Had the charges been appropriately framed at the outset, the costs of the proceedings would have been less; and

166. the prosecutor served voluminous evidence that was not allowed into evidence. This added to the cost of the proceedings unnecessarily.

167. Further in relation to legal costs, Ms Sims for the defendant in oral submissions referred to the decision of Pain J in Environment Protection Authority v Grafil Pty Ltd (No 4) [55] (Grafil (No 4)), particularly at [342]-[354] where her Honour made an order that the defendant pay 25% of the prosecutor’s costs as agreed or assessed. The hearing on sentence in Grafil (No 4) ran for six days, with three of the days spent “hearing expert evidence of hydrological engineers” (at [352]).

168. In Grafil (No 4), Pain J referred to the decision in Newcastle City Council v Pace Farm Egg Products Pty Limited (No 3) [56] (Pace) at [41], where the Court ordered the defendant to pay 30% of the prosecutor’s costs of the proceedings, as agreed or assessed, pursuant to the now repealed s 253 of the C**riminal P**rocedure Act.

169. In Morrison v Defence Maritime Services Pty Ltd, [57] the Court ordered the defendants to pay 50% of the prosecutor’s costs, as agreed or assessed, other than costs attributable to the reports of two prosecution experts.

170. While s 6 of the Fines Act requires a court in imposing a fine (or, by virtue of the definition of a fine in s 4(1)(f), awarding costs) to have regard to the accused’s means to pay, that does not have the effect of converting costs to a species of punishment. Where capacity to pay is in issue, the correct approach is to reduce the fine to be paid by the offender rather than to reduce the amount of costs awarded in favour of the prosecutor: SafeWork NSW v Williams Timber Pty Ltd [58] at [41] (Wilson J, Beech-Jones CJ at CL and R A Hulme J agreeing).

171. The amount of a prosecutor’s costs may be considered as part of the exercise of a judge’s sentencing discretion: Environment Protection Authority v Barnes [59] (EPA v Barnes). In EPA v Barnes, Kirby J (Mason P and Hoeben J agreeing) said that the amount of costs that the defendant in that case was ordered to pay “were an important aspect of the punishment” of the defendant, and noted that the trial judge made clear that if not for the amount of costs, the fines her Honour “would have imposed would have been much higher”. [60]

172. In exercising the sentencing discretion here, I am satisfied that the prosecutor has reasonably incurred costs and expenses during the investigation of the offences, and will make an order pursuant to s 248 of the POEO Act that the defendant pay the prosecutor’s costs, as agreed or assessed. As in EPA v Barnes, the amount of costs that the defendant is to be ordered to pay is “an important aspect of the punishment” of the defendant. Were it not for the amount of costs, the fines I would have imposed would have been higher.

Orders

169. The Court makes the following orders:

In proceedings 2020/327089:

1. The defendant is convicted of an offence against s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act).
2. The defendant to pay a fine in the amount of $60,000.

In proceedings 2020/327090:

3. The defendant is convicted of an offence against s 91(5) of the POEO Act.
4. The defendant to pay a fine in the amount of $60,000.

In proceedings 2020/327091:

5. The defendant is convicted of an offence against s 102 of the POEO Act.
6. The defendant to pay a fine in the amount of $80,000.

In proceedings 2020/327089, 2020/327090 and 2020/327091:

7. Pursuant to s 122 of the Fines Act 1996 (NSW), 50% of the fines imposed on the defendant pursuant to orders (2), (4) and (6) to be paid to the prosecutor.
8. Pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 (NSW), the defendant to pay the prosecutor's legal costs as agreed or assessed.
9. Pursuant to s 248 of the POEO Act*,* the defendant to pay to the prosecutor the amount of $201,487 incurred in the investigation of the offences.

**********

Endnotes

(2004) CLR 357; [2005] HCA 25 at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ); following Wong v The Queen (2001) 207 CLR 584 at 611-612 [74]-[76] (Gaudron, Gummow and Hayne JJ).

[2024] NSWLEC 51 (Pritchard J).

(2021) 252 LGERA 102; [2021] NSWLEC 144 (Pain J).

(1981) 147 CLR 383 at 389; [1981] HCA 51 (Gibbs CJ, Mason and Murphy JJ agreeing).

Olbrich at [27]-[28] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41] (Gleeson CJ); Strbak at [27]-[28] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70 at [45] (Robson J).

[2025] NSWLEC 23 (Robson J).

[2019] NSWLEC 100 at [131] (Pepper J).

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [27] (French CJ, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 (Plath v Rawson) at [48] (Preston CJ of LEC); Fairfield City Council v Oztech Developments Pty Ltd; Bellagio Investments Pty Ltd [2021] NSWLEC 81 (Oztech Developments) at [57] (Robson J).

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ) quoting Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [75] (Gaudron, Gummow and Hayne JJ).

R v Peel [1971] 1 NSWLR 247 at 262 (Herron CJ, Manning JA and O’Brien J).

Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [168]-[172] Preston CJ of LEC).

(2010) 172 LGERA 52; [2010] NSWLEC 3 at [65] (Pepper J).

See Environment Protection Authority v Pullinger (2021) 252 LGERA 102; [2021] NSWLEC 144 (Pain J) (Pullinger (Class 4)).

Muldrock at [31] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Harrison v Perdikaris [2015] NSWLEC 99 at [49] (Preston CJ of LEC); Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; (1993) 82 LGERA 21 (Camilleri’s Stock Feeds) (Kirby P, Campbell and James JJ agreeing).

Plath v Rawson at [98]; Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 at [72] (Brereton JA, Harrison and Bellew JJ agreeing).

Liability judgment at [183], [285], [314], [318].

Liability judgment at [314].

Liability judgment at [183], [285], [314], [318].

Liability judgment at [314].

(2006) 148 LGERA 299; [2006] NSWLEC 419 at [145]-[149] (Preston CJ of LEC).

See, for example, Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273; [2008] NSWLEC 264 at [145]-[151] (Biscoe J).

Liability judgment at [82].

Liability judgment at [68]-[72].

Liability judgment at [139].

See Pullinger (Class 4)).

R v Thomson; R v Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104; [2000] NSWCCA 309 (R v Thomson) at [116] (James J, Spigelman CJ, Wood CJ at CL, Foster AJA and Grove J agreeing).

R v Thomson at [160].

(2024) 260 LGERA 358; [2024] NSWCCA 4 at [92]-[101] (Leeming JA, Garling and Cavanaugh JJ agreeing).

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359 (Mahoney JA, Finlay J agreeing); Camilleri's Stock Feeds at 701 (Kirby P, Campbell and James JJ agreeing).

(2006) 148 LGERA 278 at 289; [2006] NSWLEC 289 at [65]-[68] (Preston CJ of LEC).

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 535 [48]-[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[2018] NSWLEC 90 at [72] (Preston CJ of LEC).

[2023] NSWLEC 120 (Duggan J).

[2017] NSWLEC 63 (Robson J).

[2021] NSWLEC 4 (Pepper J).

[2022] NSWLEC 23 (Duggan J).

[2024] NSWLEC 91 (Pepper J).

Environmental Protection Authority v Ditchfield Contracting Pty Ltd at [72] (Preston CJ of LEC).

Camilleri’s Stock Feeds at 704 (Kirby P).

[1983] 3 NSWLR 245.

Cited by the chief judge in Connell v Santos NSW Pty Limited [2014] NSWLEC 1 at [151] (Preston CJ of LEC).

[2006] NSWCCA 246.

[2023] NSWLEC 127.

[2019] NSWCCA 36 at [93]-[95] (Schmidt J, Hoeben CJ at CL and Adamson J agreeing).

[2018] NSWLEC 80 at [267] (Preston CJ of LEC).

Citing Smith v The Queen (1991) 25 NSWLR 1 at 23, 24; (1991) 56 A Crim R 148 (Mahoney JA); Darter v Diden (2006) 94 SASR 505; (2006) 161 A Crim R 369; [2006] SASC 152 at [29]-[32] (Doyle CJ); Mahdi Jahandideh v R [2014] NSWCA 178 at [15]-[17] (Ward JA, McColl and Barrett JJA agreeing).

Citing EPA v Carbon MF at [80] (Duggan J).

[2024] NSWLEC 8 at [49]-[52] (Duggan J).

(2001) 207 CLR 584; [2001] HCA 64 at [75] (Gaudron, Gummow and Hayne JJ).

[2020] NSWLEC 86.

Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75 at [148]-[152] (Moore J); Environment Protection Authority v Sydney Water (No 2) [2023] NSWLEC 2 at [127] (Moore J).

Hughes at [160] (Pepper J).

[2022] NSWLEC 143 (Pepper J).

[2021] NSWLEC 123 at [342] (Pain J). Appealed on a different point in Environment Protection Authority v Grafil Pty Limited Environment Protection Authority v Mackenzie (2022) 254 LGERA 76; [2022] NSWCCA 268 (Gleeson JA, Bellew and Hamill JJ).

[2005] NSWLEC 423.

(2007) 156 LGERA 365; [2007] NSWLEC 552.

[2021] NSWCCA 233 at [41] (Wilson J, Beech-Jones CJ at CL and R A Hulme J agreeing).

[2006] NSWCCA 246 at [78], [88] (Kirby J, Mason P and Hoeben J agreeing).

[2006] NSWCCA 246 at [78], [88] (Kirby J, Mason P and Hoeben J agreeing).

Amendments

13 June 2025

Typographical error in [141] corrected.