Consistency in Sentencing
258A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question (Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [179]-[182] and Rae at [69]). The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence that merely forms part of that range (Gittany at [182]).
259Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion, given the wide divergence of facts and circumstances leading to the imposition of specific penalties (Axer at 365, Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54]).
260The EPA submitted that the pattern of sentencing against which the present case falls to be considered was examined by Preston J in the case of Rae (at [77], [79]-[83], [86] and [88]-[89]). However, I do not see how it assists the Court in determining a general pattern of sentencing for the offence against s 120 of the Act because the cases considered by his Honour therein concerned offences against s 12 of the Native Vegetation Act 2003.
261The council referred the Court to a number of cases that concerned offences against s 120 of the Act, including: Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160, Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255, Environment Protection Authority v Ramsay Food Processing Pty Ltd [2010] NSWLEC 23, Environment Protection Authority v Albury City Council [2009] NSWLEC 169, Baiada and Snowy Hydro.
262In Sibelco waters were polluted with sediment-laden water discharged from the defendant's property as a result of a dam wall failing. There was actual and potential harm caused to the waters in the low to moderate range. The overall objective gravity of the offence was considered to be in the low to moderate range. There were no aggravating factors. However, there were a number of mitigating factors applicable to the defendant, including that the defendant pleaded guilty at an early opportunity; the defendant expressed contrition and remorse; the defendant provided assistance to the authorities; and the defendant agreed to pay the prosecutor's costs. The Court imposed a penalty of $78,000 to be paid to Hunter Central Rivers Catchment Management Authority for general environmental purposes and made a publication order.
263In Chillana a cracked pipe led to 98,000 litres of untreated abattoir effluent spilling into a nearby creek and river. The pipe was fractured as a result of contact with an underground rock. There was significant actual environmental harm to the creek that had the potential to last several months. The defendant had one prior conviction but was found unlikely to reoffend; the defendant expressed remorse; the defendant entered an early guilty plea; and the defendant was found to have cooperated fully with the authorities. The Court ordered the defendant to pay the Land and Property Management Authority the sum of $60,000, to be applied to a restoration and enhancement project, and to pay the prosecutors' legal costs as agreed or assessed and the prosecutor's investigation costs of $16,070.58.
264In Ramsay untreated effluent escaped from the defendant's abattoir as the result of a split pipe and a valve being opened. The defendant in that case had a pollution record; the environmental harm was serious; there was evidence of mortality among aquatic life and potential harm to human health; and the utilitarian value of the guilty plea was reduced. Justice Biscoe fined the defendant $50,000 for the pollution of waters offences and ordered the defendant to the pay the prosecutor's legal and investigation costs. However, the reason for the fine being only $50,000, given the extent of harm, was that his Honour found that the offence was caused by an unauthorised third party tampering with the effluent pumps.
265In Albury City Council a pump failure caused sewage effluent to overflow from a manhole discharging via a gutter into a stormwater drain leading to a stormwater gully and then into the Murray River. There was no actual harm caused by the commission of the offence, but there was a potential for harm. There were practical measures available to the council to prevent, control, mitigate or abate the harm, but the offence was at the lower end of reasonable foreseeability. Overall, the offence was considered to be of low objective gravity. Further, there were no aggravating factors present and there were a number of mitigating factors, including: the defendant did not have any prior convictions; the defendant demonstrated good character; the defendant pleaded guilty at an early stage; the defendant expressed contrition and remorse; and the defendant cooperated and provided assistance to the authorities. The Court imposed a fine of $45,500 and ordered the defendant to pay the prosecutor's legal and investigation costs in the amount of $18,044.
266In Baiada the offence involved approximately 1ML of effluent from Baiada's poultry rendering plant escaping from a defective weld in an underground pipeline. The effluent descended into an unnamed watercourse in a paddock owned by Baiada. The effluent flowed down the watercourse for approximately 1.1kms. The actual environmental harm was found to be very small and the evidence did not establish likely harm to the environment. The offence was reasonably foreseeable and there were practical measures available to Baiada to prevent the harm. Subjectively, the defendant had four prior convictions; the defendant had expressed contrition and remorse; the defendant had entered an early plea of guilty; and the defendant had provided assistance to the authorities. The Court fined the defendant $160,000 reduced to $120,000 for the early guilty plea.
267In Snowy Hydro, in a series of related events occurring over four days, somewhere between four and eleven tonnes of sediment were discharged into the Snowy River as a result of the works that a contractor for Snowy Hydro was carrying out associated with the Jindabyne Dam. This sediment comprised soil, earth, clay or similar inorganic matter. It was accepted that environmental harm was in the lower range. The offence was described as being of moderate objective seriousness. The subjective circumstances considered included that the defendant had no prior convictions; that it had pleaded guilty at an early stage; that it had expressed remorse; that it had devoted considerable resources to mitigating the harm occasioned by the offence; and that it had fully co-operated with the authorities. Snowy Hydro was fined the sum of $100,000 and was also ordered to pay the prosecutor's legal costs in the sum of $84,289 as well as its investigation costs in the sum of $1,897.50. The contractor to Snowy Hydro was convicted of an identical offence arising from the same circumstances as those that gave rise to the prosecution of Snowy Hydro (Environment Protection Authority v Fulton Hogan Pty Ltd [2008] NSWLEC 268; (2008) 163 LGERA 345). A fine of $100,000 after allowing discount for an early guilty plea was also imposed upon that defendant.
268In addition to the above cases dealing with offences under s 120 of the Act, the council also referred the Court to the case of Environment Protection Authority v State of New South Wales [2010] NSWLEC 67; (2010) 174 LGERA 19. That case concerned an offence against s 64(1) of the Act. In that case, the defendant was the holder of an environment protection licence, a condition of which was breached in that it failed to operate equipment in a proper and efficient manner. The offence was the result of an employee mistakenly believing matter was safe to be released, which resulted in 151KL of partially treated effluent being discharged into Perisher Creek. The discharge consisted of a mixture of sewage sludge and its supernatant. There was no environmental harm caused by the offence and the likelihood of environmental harm was low. The foreseeability of the offence was low because of the difficulty of an employer foreseeing that an experienced operator would deviate from standard practice. There were also a number of mitigating factors present. The Court ordered the defendant to pay the Southern Rivers Catchment Management Authority the amount of $80,000 for the purpose of riparian rehabilitation and exotic tree removal and to pay the prosecutor's costs of $65,000. By reason of the circumstances in which the offence was committed and the offence with which the defendant was charged, this case is of limited assistance in the determination of the appropriate penalty in the present case.
269Several other water pollution cases, which were not referred to by the parties, are worth examining for the purpose of ensuring parity.
270In Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211, an incident occurred at the Newstan Colliery at Fassifern, south of Newcastle, resulting in the pollution of a nearby creek, which flowed into Lake Macquarie. The Court accepted that the environmental harm was in the relatively low range but that there were a number of measures that could, and should, have been taken to prevent the harm that occurred. The offence was not committed deliberately and the defendant gained no commercial advantage by its commission, rather the pollution occurred because the defendant failed to have in place a system to prevent or control the discharge of pollutants from its pipeline system. The offence was considered to be one of moderate objective gravity. The defendant entered a plea of guilty at the earliest opportunity and the defendant's cooperation with authorities in relation to the management and clean up of pollutants was forthright and fulsome. The defendant was ordered to pay Lake Macquarie City Council the sum of $105,000 to fund the Council's Ecosystem Enhancement Operations Program in the Stony Creek catchment and publicise the offence in The Sydney Morning Herald and The Newcastle Herald newspapers. The defendant was also ordered to pay the prosecutor's costs, including investigation expenses, in the sum of $38,500.
271In Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 114; (2010) 174 LGERA 314, the defendant company pleaded guilty to one charge under s 120(1) of the Act. Between 1,000 and 3,000 tonnes of toxic slime material spilled from the defendant's gold and antimony plant, travelled a distance of over 300m along a road, 200m over a grassed area and along the dry bed of a creek. The slime did not reach the waters of the creek and the potential harm to the receiving waters was considered to be very low. Following the incident, the defendant cleaned up the slime, cooperated in every respect with the prosecutor's investigation and implemented several internal changes to ensure that similar incidents would not occur in the future. The defendant entered a guilty plea at the first available opportunity, had no prior convictions and formally expressed regret for the occurrence of the incident. A fine of $50,000 was imposed following a discount in the penalty by 33%. The defendant was also ordered to pay the prosecutor's legal and investigation costs in the sum of $24,000.
272In Environment Protection Authority v George Weston Foods Limited [2010] NSWLEC 120, the defendant company pleaded guilty to a charge of polluting waters, which resulted from an incident involving the discharge of a blend of animal tallow and vegetable oil from the defendant's stock feed manufacturing plant into the Peel River, which runs through several public parks and into the City of Tamworth. The cause of the incident was found by the defendant to be undetected corrosion in the welded joint of a steam pipe, resulting in the creation of a small hole through which oil and tallow became entrained with steam passing through that pipe. The principal effect of the pollution was a reduction in the aesthetic and recreational value of the Peel River, which extended over 2.25kms and was apparent for a period of nine days. Samples indicated these sections of the River contained an oil and grease content of between 100 and 800 times higher than background levels, resulting in water quality being reduced below Australian and New Zealand standards. Although Craig J accepted that the incident was an accident, his Honour held that it was nonetheless reasonably foreseeable. There were practical measures available that the defendant could and should have taken to prevent the offence and to clean up the pollution. The offence was classified as being towards, but not at, the lower range of objective gravity. The defendant pleaded guilty at the first available opportunity, cooperated in the investigation of the incident and demonstrated contrition and remorse. The defendant was ordered to pay $67,000 to Tamworth Regional Council to fund the Peel River Riparian Project, to pay the prosecutor's legal and investigation costs in the sum of $30,000, and to publicise the offence.
273In Environment Protection Authority v Ramsay Food Processing Pty Ltd (No 2) [2010] NSWLEC 175 the defendant company was found guilty of an offence under s 120 of the Act (Environment Protection Authority v Ramsay Food Processing Pty Ltd [2010] NSWLEC 150) for allowing a mixture of animal tallow and waste water to flow from its abattoir into Musk Valley Creek. Over a period of four to five days, a length of 100m of the creek was moderately affected by the spill, which settled on the creek surface as scum, contributing to deoxygenation of the waters to the point that the water became "black" and anaerobic in places. The actual environmental harm was considered to be minor because it was restricted to a relatively small section and there was limited potential for it to cause long-term impact to the creek. The defendant company, with numerous recorded incidents and/or court appearances, had a poor record in environmental matters. The defendant expressed some remorse and offered assistance to authorities. The objective seriousness of the offence was considered to be at the lower end of the scale. There were several practical measures that the defendant could and should have taken to prevent the incident, including supervision of the premises during the night, taking precautions to ensure the drainage system was not blocked, and undertaking regular clearing of the premises. Bearing these factors in mind, Sheahan J was disposed to impose of fine of $100,000, absent any discount. Instead, his Honour ordered the defendant company to carry out an environmental audit of the premises, estimated to cost $84,450.30, and implement steps to prevent the continuance or recurrence of the offence. The defendant was also ordered to publicise the offence and to pay the prosecutor's legal and investigation costs.
274In Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80 the defendant pleaded guilty to a charge pursuant to s 120 of the Act. It admitted that during 29 and 30 November 2009 a pollutant containing approximately 6,000 litres of a dangerous liquid resin was spilt, that flowed into a stormwater drain and onto a wetland. Samples taken on 30 November and 2 December 2009 found levels of formaldehyde, phenol and pH to be significantly above acceptable limits, which caused actual harm to the wetland environment over an area of approximately 1.7ha. The pollution also had the potential effects of being toxic to livestock and affecting the health and distribution of wetland dependent fauna. It was, however, found that the effects would not be long lasting, and thereafter, the environmental harm was classified as being in the low to moderate range. Several practical measures existed that the company should have taken to control or mitigate the harm. However, following the incident, Big River cooperated with the prosecutor in the investigation of the pollution spill, entered a plea of guilty to the charge on a first return date and took several steps to prevent future spills, including making plans for the rebuilding of the entire plant. The Court imposed a fine of $67,000, following a discount of 33%, and ordered the defendant to pay the prosecutor's legal and investigation costs in the sum of $59,644.80.
275The defendant in Environment Protection Authority v Austar Coal Mine Pty Ltd [2011] NSWLEC 252 pleaded guilty to the offence of polluting waters for causing an unknown amount of water containing two pollutants, a detergent and effluent from a bathhouse, to escape into Bellbird Creek and travel 2km downstream to Doyle St dam. The detergent in the effluent caused white foam and elevated levels or methylene blue active substances, nutrients and faecal coliforms along sections of the creek. Potential harm was also caused to aquatic biota. Austar took actions to contain the pollution and flush the creek to mitigate the harm, and overall the harm was considered to be low. The offence was not committed negligently, however, there were further practical measures that could have been taken to prevent the occurrence of the incident, which was foreseeable. Austar had been issued with two penalty notices relating to this and a similar incident, however these were not considered to demonstrate a continuing attitude of disobedience to the law. An early plea of guilty entitled the defendant to a 25% discount in the penalty. Contrition, remorse and assistance to authorities were also demonstrated. The Court considered that a fine of $75,000 would be an appropriate penalty, but ordered that the amount be paid to the Hunter-Central Rivers Catchment Management Authority for the Mount View Corridor Threatened Species Habitat Rehabilitation Project. The defendant was also ordered to publicise the offence and to pay the prosecutor's legal and investigative costs in the sum of $42,264.13.
276Moolarben Coal Operations (No 1) concerned the discharge of sediment-laden water into Bora Creek near Ulan in New South Wales, which flowed into the Goulburn River, resulting from four discrete events occurring between 8 and 23 June 2009. The defendant pleaded guilty to a charge under s 120 of the Act. Although there was no evidence of actual harm to the environment apart from the visual effect of the discharge and elevated levels of suspended solids, turbidity and nutrients, the increased nutrient levels had the potential to cause harm to aquatic ecosystems and biota, including via the development of algal blooms. The environmental harm, particularly in the long term, was considered to be at the lower end of the range. As a condition of project approval for the coal mine, the defendant prepared a Water Management Plan, a component of which was an Erosion and Sediment Control Plan. The defendant had chosen not to carry out the majority of the erosion and sediment control measures indicated by the Plan, which constituted evidence of practical measures that the defendant should have taken to prevent the incident. The defendant acknowledged that the primary cause of pollution was the undertaking of earthworks without first completing sediment and erosion control structures. Although the discharge was not deliberate, no explanation was provided as to why these measures had not been taken. The incident was foreseeable and mitigation was within the defendant's control. The offence was considered to be of medium or mid range objective seriousness. The defendant entered a plea of guilty at the earliest opportunity and expressed contrition, however no actions were taken to alleviate the consequences of the discharges. The defendant cooperated with the investigation and agreed to pay the prosecutor's legal and investigation costs in the sum of $61,632. A fine of $105,000 was imposed, following a discount of 30%.
277Moolarben Coal Operations was charged with a further offence of polluting waters arising from a similar incident on 27 December 2009 (Moolarben Coal Operations Pty Ltd (No 2)). By this time, several interim erosion and sediment control measures had been completed since the June discharges, however these were not intended to replace the measures that were identified in the Erosion and Sediment Control Plan. An environmental audit was undertaken on 4 December 2009 wherein a number of "key erosion and sediment control deficiencies" were identified in the rail loop area. A number of recommended measures were commenced, but had not been completed, by 27 December. On that day, a large rainfall event occurred, resulting in the discharge of approximately 18.7ML of sediment-laden water into Bora Creek and the Goulburn River. Approximately 800m of the creek and river confluence was visibly polluted by sediment and increased levels of turbidity and total suspended solids above Australian and New Zealand standards had the potential to affect aquatic ecosystems and biota. The harm was classified as low to moderate. Again, there were practical measures available that should have been taken to prevent or mitigate the harm. The foreseeability of harm arising from the failure to carry out the works specified in the Erosion and Sediment Control Plan and as a result of the audit was apparent from the terms of the Plan and the audit recommendations. Although the discharge was not deliberate, the defendant took a number of risks by implementing temporary erosion and sediment control measures that were not reasonably justified. The offence was classified as one of medium or moderate objective gravity. The defendant's actions in voluntarily reporting the commission of the offence, taking action to address the cause of the offence and in expressing regret demonstrated genuine contrition and remorse. The defendant was fined $112,500, discounted by 25% to allow for the early plea of guilty, ordered to pay the prosecutor's legal and investigation costs in the sum of $63,314 and ordered to publicise the offence.
278Finally, the case of Environment Protection Authority v Pipeline Drillers Group Pty Ltd [2012] NSWLEC 18 involved two charges under s 120 of the Act for the discharge of a bentonite slurry into the Partridge Creek wetland near Port Macquarie. Each discharge occurred while the defendant was undertaking horizontal drilling beneath the wetland. An initial incident involving the escape of bentonite slurry into the rock substrate did not form the subject of any charges. A second similar incident occurred six days later. As a result, drilling ceased temporarily and sandbags were put in place to contain the pollutant. Upon discovery of a third incident, on 17 November 2009, all drilling ceased and a clean up of the site commenced. The incident occasioned actual environmental harm over approximately 120ha, including the smothering of some plants, and indirect harm to related species. There was some evidence of potential harm to the threatened Wallum Froglet species. However, having regard to the apparent absence of long-term impact, the overall environmental harm was classified as low. There were further steps that could have been taken to prevent the harm that occurred, however, once the escape of bentonite slurry was discovered, the defendant acted promptly to control, abate and mitigate the harm. The pollution incidents were accidental and the defendant gained no financial advantage from the commission of the offences, however it was considered that the punishment should reflect an element of general deterrence. A plea of guilty was entered at an early stage and the defendant cooperated at all stages of the proceedings. Taking into account the totality principle and a 25% discount for the early guilty plea, the defendant was fined $18,000 for the first offence and $12,000 for the second offence. The defendant was also ordered to publicise the offence and to pay the prosecutor's legal and investigation costs in the sum of $44,000.
279I find the facts of the offence with which the council has been charged to be less serious than those present in Chillana, Ramsay and Moolarben Coal (Nos 1 and 2), but more serious than those underlying the imposition of the penalty in Albury City Council, Centennial Newstan, Big River, George Weston Foods and Pipeline Drillers. The cases that serve as the most relevant comparators are, in my opinion, those of Sibelco, Snowy Hydro, Baiada and Austar.