Environment Protection Authority v Ramsey Food Processing Pty Ltd

Environment Protection Authority v Ramsey Food Processing Pty Ltd - [2010] NSWLEC 23 - NSWLEC 2009 case summary — Zoe

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38 Between the material dates, the spill fell, descended, washed and percolated - and thus escaped - into the creek and tributary. NOTIFICATION TO MR CONSIDINE AND HIS INSPECTION ON THE MONDAY 39 Upon discovering the spill at 8.30am on Monday 8 October 2007, Mr Allen immediately notified Mr Considine by telephone as to the extent and gravity of the spill and the escape. Mr Allen expressly told Mr Considine, "we've got a problem". He specifically advised Mr Considine that "there is a crack in the effluent pipe to dam" and that "run off was near the creek". 40 At 8.40am, Mr Considine inspected the location of the spill with Mr Allen. NOTIFICATION TO MR RAMSEY ON THE MONDAY 41 In a record of interview conducted on 17 January 2008, Mr Considine told EPA investigators that he informed his boss, Mr Ramsey, of the incident on Monday 8 October 2007. MR ENSBEY'S INQUIRY ON THE TUESDAY 42 On the morning of Tuesday 9 October 2007 the EPA received a telephone complaint that an unpleasant odour was emanating from the licensed premises the previous afternoon. Consequently, an EPA officer, Mr Scott Ensbey, telephoned Mr Considine. However, Mr Considine did not disclose that a spill had occurred. He said that the odours were due to a burp effect of a cooker at the abattoir. Assuming this to be correct, nevertheless the opportunity was squarely there, but was not taken, to inform Mr Ensbey of the spill. 43 In a record of interview conducted in September 2008, Mr Ramsey told EPA investigators that he "got a phone call on Monday morning from Paul Allen", that Mr Allen told him that "there'd been a split in the pipe", that he asked Mr Allen, "had anything escaped into the creek?", to which Mr Allen replied, "no". Mr Ramsey then told EPA investigators, "that's why we didn't report it because it wasn't a major and I told him to get the pipe fixed immediately and to direct the water up the other pipes so that there was no more release there". Mr Ramsey's evidence was to similar effect. MR SCIBERRAS' OBSERVATIONS ON THE TUESDAY OR WEDNESDAY 44 On Tuesday 9 or Wednesday 10 October 2007 a downstream landowner, Mr Sciberras, was walking on his property and noticed dead fish and a stench from the creek, which was black and dirty and smelt. MR RAMSEY'S INSPECTION ON THE THURSDAY 45 Following the defendant's excavation of the fractured part of the unused pipe on the Wednesday, Mr Ramsey himself inspected the valve and the fractured part of the pipe on Thursday 11 October 2007. He told EPA investigators during a record of interview on 3 September 2008 that "there was some dead patches around it where the sediment had laid and it obviously wasn't a huge leak…the sediment would not have settled there if it was a huge leak. If it was coming out in a rush it would have rushed everywhere". He also stated that "there hadn't been any of that run into the creek because all of the grass was still green along the creeks. And if it had run into the creek it'd be dead".

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70 In annexure 4 to the agreed statement of facts are photographs taken by EPA investigators on Friday 12 October 2007 depicting the thickness of the untreated abattoir effluent at such location. 71 A rainfall event occurred during the afternoon of Monday 8 October 2007. Bureau of meteorology records for the Grafton Olympic Pool show 11.4 mm of rain (with thunder in the previous 24 hours). 72 The rainfall event caused the spill to spread to cover a greater area of approximately 6000 square metres in the rye grass paddock. The untreated abattoir effluent became progressively less thick as one walked away from the fractured, unused pipe and valve. 73 In annexure 5 to the agreed statement of facts are photographs taken by EPA investigators on Friday 12 October 2007 that depict the extent of the escape from such location. 74 The untreated abattoir effluent that reached the creek and tributary was in liquid form. It has not been proved that solids entered the creek and tributary. FUNCTION OF THE VALVE AND T-BAR 75 The valve forms a T-junction between the unused pipeline and a pipeline (main pipeline) through which the defendant pumps untreated abattoir effluent from the plant to the treatment ponds. The main pipeline meets the valve from the east and exits towards the south. The unused pipeline is laid in a north-south direction and meets the valve at its southern end. The unused pipeline is kept permanently closed by a further valve at its northern end. 76 Prior to 2006, the defendant pumped untreated abattoir effluent from the plant to the treatment ponds through the unused pipeline. However, as a result of a prior pollution incident, the EPA directed the defendant to reroute the effluent pipeline. The valve was installed during such process. OPENING OF THE VALVE 77 The valve is capable of being opened and closed by way of manual manipulation using a mechanical implement known as a "T-bar". 78 Prior to Monday 8 October 2007 and between the material dates the defendant kept a T-bar permanently inserted into the valve. The T-bar had been in place since the valve was installed in 2006. 79 The valve and the T-bar are surrounded by a wooden fence. The valve is capable of being accessed and manipulated by any person if the T-bar remains inserted into the valve. 80 In annexure 6 to the agreed statement of facts is a photograph taken by EPA investigators on Friday 12 October 2007 that depicts the valve and T-Bar. 81 The prosecutor and the defendant are unable to agree as to the way in which the valve came to be open as discovered on 8.30am on Monday 8 October 2007. CAUSE OF THE SPILL 82 The spill was caused by the fact of the valve being open as at 8.30am on Monday 8 October 2007, the consequent pumping of untreated abattoir effluent from the main pipeline into the unused pipeline, the consequent splitting of the capped (by the valve at the northern end) unused pipeline under pressure, and the consequent escape of untreated abattoir effluent into the rye grass paddock through each of the unused pipeline and valve, respectively. CAUSE OF THE ESCAPE 83 The escape was directly caused by untreated abattoir effluent falling, descending, washing and percolating in westerly, north-easterly and south-easterly directions across the rye grass paddock and into the creek and tributary, respectively. The three directions along which untreated abattoir effluent fell, descended, washed and percolated into the creek and tributary, respectively, are depicted in the photographs in annexure 5 to the agreed statement of facts, which were taken by EPA investigators on Friday 12 October 2007. 84 The magnitude of the escape was increased by a heavy rainfall event occurring during the afternoon of Monday 8 October 2007. 85 Had the defendant taken practical measures to prevent the escape of raw effluent into the creek and tributary, the extent of actual harm caused to the aquatic ecosystem in the creek and tributary would have been reduced, as would have the potential harm to the health of human beings. DEFENDANT'S CONTROL OVER SECURITY OF VALVE 86 At all times prior to Monday 8 October 2007, the defendant had management and control over the security of the valve and the T-Bar that the defendant kept permanently inserted into the valve. 87 During the afternoon of Monday 8 October 2007 (the exact timing of which cannot be agreed by the parties), the defendant caused the valve to be closed by an apprentice of its contractor, Rural Irrigation Supplies, and the defendant switched the flow of untreated abattoir effluent back over to the main pipeline. Thereafter, the defendant pumped untreated abattoir effluent to the treatment ponds in the usual way. 88 Dangerous lightning forced the apprentice to discontinue his inspection of the valve shortly prior to the occurrence of the rainfall event. REMEDIATION OF CREEK AND TRIBUTARY 89 Following the inspection on Friday 12 October 2007, a council officer advised Ms Smith, an EPA operations officer, that the creek should be bunded and pumped, with a media release warning residents of pollution in the event of significant rain over the weekend. 90 At the request of the EPA, the defendant's earthmoving contractor constructed a bund on Saturday 13 October 2007 around as much untreated abattoir effluent as was practical to prevent further runoff into each of the creek and tributary. Actual environmental harm to the creek and tributary had in fact already been caused by this point in time. 91 Between Saturday 13 and Sunday 21 October 2007, the defendant worked with the EPA and Clarence Valley Council to pump contaminated waters from each of the creek and tributary, primarily into the defendant's effluent treatment system and for a brief time into council's sewer main as well as directly onto the land of downstream residential property owners.

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138 The defendant submits that pollutants could have entered the creek from the stock saleyard during the rain event on Monday 8 October 2007. I do not accept the submission. There is an open stormwater drain from the stock saleyard which goes under the road and into two of the defendant's paddocks before entering the creek. Mr Ensbey walked through those paddocks when investigating the incident on Thursday 11 October 2007 looking for signs of runoff from Armidale Road in the paddocks. He saw no signs of runoff from the direction of Armidale Road in either paddock. There was no sign of saturated soil, flowing water, soggy soil or effluent flowing in the general direction of the creek. That was in contrast to the rye paddock, where the valve and cracked pipe were located, that he observed the next day when it was full of wet, boggy soil. Further, material from the stockyard could only have entered the creek, yet the anoxic event was the same in both the creek and tributary. Ms Smith, who was there the following week, saw no evidence, and rejected any suggestion, that the saleyard was a source. Finally, rainfall records indicate that the rain event was limited to just over 10 mm, but the evidence of the saleyard effluent treatment system indicates that this is insufficient to cause runoff to the creek (let alone the tributary). 139 As for the sewage pump station, its telemetry system, which monitors normal and abnormal operation, did not record any relevant alarm event nor was any overflow from it observed in the weeks preceding the pollution incident. Ms Smith did not observe any evidence of escape from that station when she inspected it on 17 October 2007. The extent of the pollution in the creek and tributary upstream of the pump station indicates that the pump station was not a contributing factor. 140 As for an unspecified dam to the south, there is no supporting evidence apart from vague, relatively insignificant evidence from Mr Sciberras, the downstream landowner, that a dam had been constructed some miles away years earlier and from Mr Ramsey that there was a dam going in somewhere south or south-west of Grafton. 141 To Mr Ramsey's knowledge, there was no leak from the defendant's treatment ponds, no such leak was reported to him, and if there had been a leak he would have expected it to be reported to him. 142 There was no evidence of unspecified drains contributing to the pollution.

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143 Mr Ramsey gave evidence in cross-examination that (a) on the Monday Mr Allen did not say anything to him about any of the above locations being a source of pollution of the creek except that on the Monday afternoon Mr Allen told him there was a pollution problem in the creek and indicated that it was being caused by the sewer pump station, and (b) Mr Ramsey's recollection was that they reported that pollution problem to the council. If that was Mr Ramsey's recollection, it was wrong because such an incident was not reported. If his evidence is otherwise true, it indicates that Mr Allen and he, at least, knew that the creek was polluted as early as the Monday afternoon (presumably after the rain) even if Mr Allen was attributing it to another source. I have rejected the suggestion that the sewer pump station had anything to do with the pollution of the waters. So if the pollution problem was apparent in the creek near the sewer pump station on the Monday, it must have been apparent upstream as well. Mr Allen had only to look. On Mr Sciberras' evidence it was obvious downstream on his property on the Tuesday or Wednesday; and it was obvious upstream and downstream during Mr Ensbey's inspection on the Thursday. DELAY IN NOTIFYING REGULATORY AUTHORITY 144 Mr Ensbey gave evidence, which I accept, that had he been notified of the spill on Monday 8 October 2007 instead of Friday 12 October 2007 he would have (a) inspected the pollution incident immediately; (b) investigated the extent of the spill and the escape; and (c) directed the defendant's principal, officers and agents to contain the spill and escape to avoid potential for further runoff of effluent into the creek and tributary. If notified at about 8.30am on the Monday, such bunding could have been commenced that morning and possibly have been completed by 3pm that day. He would have taken into account the potential for rain and thunderstorm when giving such directions. RECORD OF PRIOR CONVICTIONS 145 In 2003, this Court convicted and fined the defendant $33,750 for polluting the creek: Environment Protection Authority v Ramsey Food Processing Pty Ltd [2003] NSWLEC 82, 125 LGERA 369. That offence occurred in 2001 and involved the fracturing of an effluent pipeline and consequent discharge of untreated abattoir effluent into the creek. WATER POLLUTION INCIDENT JANUARY 2006 146 In January 2006 a pollution incident occurred at the licensed premises involving the rupture of the main effluent pipeline on the western bank of the creek, which led to the escape of an unknown quantity of untreated abattoir effluent into the creek. The incident led to the EPA varying the defendant's environmental protection licence by requiring the defendant to implement a pollution reduction program involving diversion of the main pipeline under the creek and installation by the defendant of inspection points and the valve. FACTUAL DISPUTES 147 According to the defendant's closing submissions, the factual disputes prior to the sentencing hearing were as follows: (a) the extent of degradation of the creek and tributary prior to the pollution incident. I have concluded that they were roughly 3-4 on a scale of 0 to 10 (0 being anoxic and 10 pristine), and were what would be expected in agricultural areas such as this: see [132] above;

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(e) whether Mr Allen and Mr Considine were aware of the effluent escape to the creek and tributary and deceived Mr Ensbey on Thursday 11 October 2007. The defendant, through Mr Considine, did not notify the EPA of the spill until the Friday. The defendant has not explained the reason for this delay. Mr Allen and Mr Considine did not give evidence. The defendant's plant is located right next to the creek. The defendant's case placed emphasis on the proposition, which I have accepted, that the rain on the afternoon of Monday 8 October 2007 carried liquid effluent to the creek and tributary. Mr Allen was responsible for daily maintenance inspections and personally conducted the inspection on the Monday. On the Monday he reported to Mr Considine that effluent was trickling to and near the creek. On the Tuesday or Wednesday Mr Sciberras, the downstream landowner, observed that the creek on his property was black and odorous and that there were dead fish. On the Thursday Mr Ensbey made similar observations upstream and downstream of the plant. Mr Allen and Mr Considine had only to look to see the same thing. So too with Mr Ramsey on the Thursday when he attended the abattoir. Mr Allen and Mr Considine should have been on high alert because they knew early on the Monday morning that the effluent had flowed towards and near the creek and knew of the rain that afternoon. The defendant had been convicted of polluting the waters of the creek only a few years earlier when they both were in the defendant's service. There had been other pollution incidents. Mr Allen was responsible for daily maintenance checks and reported to Mr Considine. I conclude that by the Tuesday Mr Allen, at least, knew that the creek was black and odorous. Certainly they both knew by the Thursday when they inspected the creek with Mr Ensbey. Once they knew, it would have been blindingly obvious that the pollution incident on the Monday was a likely cause. It follows that they misled or deceived Mr Ensbey by not disclosing this to him until the Friday despite earlier direct opportunities to do so, and by the statement to him on the Thursday that the pool in the rye paddock was merely rainwater;

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(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". 149 In determining the appropriate sentence, s 21A requires the Court to consider specified aggravating and mitigating factors that are relevant and known to the Court as well as any other objective or subjective factor that affects the seriousness of the offence. Most of the listed aggravating factors are irrelevant to environmental offences. In the present case, relevant listed aggravating factors include that the offender has a record of a previous conviction, the damage caused was substantial and the offence was committed without regard for public safety: s 21A(2)(d), (g) and (i). Relevant mitigating factors set out in s 21A(3) include: "(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)". 150 In passing sentence on an offender who has pleaded guilty, a court must take into account the fact that the offender has pleaded guilty and the timing of the plea or the offender's indication of an intention to plead guilty, and accordingly may impose a lower sentence than it would otherwise have imposed: s 22. 151 Similarly, the Court may impose a lesser penalty than otherwise, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence: s 23.

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(a) the maximum penalty available for an offence reflects the "public expression" by Parliament of the seriousness of the offence. The task of the Court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided: at 698; (b) a maximum penalty is to be imposed where the case falls within the worst category of cases for which the penalty is prescribed, but this does not mean that a lesser penalty must be imposed if it is possible to envisage a worse case: at 698; (c) the court must keep in mind not only the facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender, and where a relevant fact is the subject of conflicting evidence of like probability, the court should resolve the conflict in favour of the offender: at 698; (d) the offender can only be sentenced for the offence for which it has been convicted, although the Court must take into consideration the surrounding circumstances of the offence provided they are not inconsistent with the plea or verdict: at 699; (e) when imposing a penalty, the Court should have regard to the principle of "even-handedness" so that the penalty is not outside the pattern of sentencing relevant to the particular type of offence: at 701-703; (f) when sentencing for two or more offences the court should have regard to the principle of "totality" by which the judge should evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, should determine what, if any, downward adjustment is necessary in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences: at 703-704. 156 The utilitarian value of a plea of guilty should generally be assessed in the range of 10-25 per cent on sentence. The primary consideration in determining where in the range a particular case falls is the timing of the plea: R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 at [160]. OBJECTIVE SERIOUSNESS Maximum Penalty 157 The maximum penalty for an offence reflects Parliament's expression of the seriousness of the offence. In Markarian v The Queen [2005] HCA 25, 228 CLR 357 at [31] the High Court held: "It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick." 158 In the present case the offences are serious. The maximum penalty for each of the three offences, in the case of a corporation, is $1 million and a further penalty of $120,000 for each day that the offence continues: ss 123, 152(a). Each offence continued from Monday 8 October to Friday 12 October 2007. Accordingly, the maximum penalty for each offence is $1,480,000. Extent of harm caused or likely to be caused to the environment 159 If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. The more serious the lasting environmental harm, the more serious the offence and, ordinarily, the higher the penalty: Camilleri at 701, Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419, 148 LGERA 299 at [148]. 160 The pre-existing degraded state of the waters is relevant to the extent of the environmental harm but is not a mitigating factor: Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419, 148 LGERA 299, at [149] - [150]. In that case Preston CJ, in assessing the extent of environmental harm as substantial, took into account that the pre-existing aquatic environment of a creek was moderately disturbed by reason of its location on an urban fringe: at [157]. In the present case, the pre-existing state of the creek and tributary was degraded. I have held that the degradation was what would be expected in agricultural areas such as this, and was roughly 3-4 on a scale of 0 to 10 where 0 is anoxic and 10 pristine. 161 The offences seriously harmed the environment in the short term: see [98] - [106] above. Other than the death of aquatic life in the days following the pollution incident, there was no long term environmental harm. There was potential for harm to the public human health but that risk was relatively low: see [117] - [122] and [127] above. 162 The results of water sampling by EPA officers in October 2007, combined with the evidence of the prosecutor's scientific experts, Mr Julli and Mr Haine, indicate the nature of the harm caused and likely to be caused. The results indicate that aquatic material present in the discharge caused depletion of dissolved oxygen, which led to the asphyxiation of fish, eels and minnows and the death of macrophytes (plants living in the water). The water became largely anaerobic with no capacity to support aquatic organisms for about a kilometre. At the date of the offence the creek comprised a series of interconnected pools, flowing slowly. The harm by the time the regulatory authority was advised of the spill on the Friday had extended to the Sciberras property downstream. The harm to the creek and tributary from the entry points to that point was such that all life therein was affected if not dead. Remedial measures by the defendant were instituted but only after official intervention and at the suggestion of EPA officers.

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171 The defendant is an experienced abattoir corporation with an extensive operation carrying the risk of pollution to the environment. The defendant had prior experience, and had been earlier convicted of pollution of the creek as a result of escape of effluent from a cracked pipe. In cross-examination Mr Ramsey professed to have no recall of that central aspect of the earlier conviction. As the chief executive officer, it should have been firmly impressed on his mind. This prior conviction and its circumstances were all the more reason why he, Mr Allen and Mr Considine should have foreseen the harm caused or likely to be caused to the environment. The extent to which the defendant had control over the causes that gave rise to the offence 172 The opening of the valve by an unauthorised third party and the cracking of the pipe were causes that gave rise to the pollution offences. The defendant did not itself open the valve nor has any specific event been identified that caused the pipe to crack. However, the defendant permitted the T-bar handle to be in place, unlocked and unguarded, when it could have been readily removed and had no-one on site who could turn off the valve. I assess the extent of the defendant's control over the causes as medium. Defendant's state of mind 173 The pollution offences were not intended by the defendant. In the case of the failure to notify offence, the position is different in my view. As discussed earlier, the state of mind of Mr Allen and Mr Considine should be attributed to the defendant given that they were Mr Ramsey's full-time eyes and ears on the ground and Mr Ramsey himself usually only attended the abattoir once a week. I have concluded that after the rain on the Monday afternoon, Mr Allen, at least, knew that the waters were black and odorous and that the spill on the Monday was a likely cause, and that by the Thursday Mr Considine and Mr Ramsey also knew. Deceptive Conduct 174 The prosecutor submits, and I accept, that an aggravating factor of the failure to notify offence is that Mr Ensbey was deceived by Mr Allen and Mr Considine when he investigated specific complaints: see [147(e)] above. The prosecutor also makes the following related submissions:

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(a) on the Tuesday morning, when Mr Ensbey contacted Mr Considine over the smell complaint, which the latter said was due to the cooker in the abattoir, there was no mention of the open valve, a split pipe or raw abattoir effluent having been released. This was notwithstanding the rain event on the Monday afternoon on which the defendant places great emphasis as ultimately causing the discharge of effluent into the creek and tributary. I agree that this was an obvious opportunity missed to inform Mr Ensbey; (b) Mr Considine and Mr Allen thought the effluent was trickling into the waterway prior to the rain event. I do not accept that this is established on the evidence. A letter of 25 October 2007 from the defendant (apparently signed by Mr Considine) to the Department of Environment and Climate Change enclosed a chronology. An entry for 8.30am on Monday 8 October 2007 recorded that Mr Allen telephoned Mr Considine and "told him of the problem, that the pipe had cracked and runoff was near the creek". In records of interview with Mr Allen in January and September 2008 Mr Allen said that on the Monday he checked the creek and that a little bit of effluent, but not solids, was trickling "to the creek" or "towards the creek". He did not say it was trickling into the creek. I am not satisfied on the evidence that Mr Allen or Mr Considine knew before the storm on the Monday that the effluent had reached the creek. But I am satisfied that they knew at that time that liquid effluent was trickling towards and was near to, the creek. That should have heightened their appreciation of the risk that the effluent posed to the waters, particularly in the event of rain. Public Safety 175 The prosecutor submits that it is an aggravating factor that the offence of failure to notify the appropriate regulatory authority for four days was committed without regard for public safety. I accept the submission. The contaminated waters, as the defendant must have known, constituted a threat to public safety. The defendant did not show concern for the safety of those who might come into contact with the waters. Public officers had to attend a number of properties to warn of the contamination. There is no explanation as to why the spill was not reported until the Friday. Conclusion as to objective seriousness 176 Overall, I regard the objective seriousness of the pollution offences as low to medium, and the objective seriousness of the offence of failure to notify the appropriate regulatory authority for four days as medium.

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SUBJECTIVE CIRCUMSTANCES OF OFFENDER Record of prior convictions 177 In 2003 the defendant was convicted and fined for an offence of polluting the creek: see [145] above. 178 It reflects poorly on Mr Ramsey that in cross-examination he claimed to have no recollection of a court case over effluent leaking into the creek. If he was taking the defendant's environmental responsibilities seriously, he should have been completely familiar with the case. Remorse 179 Remorse has been expressed in four ways: by the entry of a plea of guilty at the earliest possible time; Mr Ramsey in an affidavit has expressed extreme regret that the effluent escaped from the pipe; the defendant assisted authorities with clean-up operations; and strategies have been introduced to reduce the potential for repetition of the incident with the valve key now being stored away from the valve and Mr Ramsey taking personal control of liaising with the EPA and compliance issues. 180 The prosecutor submits that there is no real remorse having regard, among other things, to the defendant's decision not to call as a witness Mr Allen, who was Mr Ramsey's eyes and ears on the ground, and to Mr Ramsey's oral evidence indicating that he still does not think the defendant's plant caused pollution of the waters. These matters, I think, dilute the weight that would otherwise be attached to the defendant's expression of remorse. Plea of Guilty 181 The defendant's plea of guilty was entered at the earliest opportunity, on the first return day of the summons. The utilitarian value of the early plea was reduced because the defendant's case does not seem to have been run much differently than if there had been a plea of not guilty. The defendant was entitled to take this course but it reduced the utilitarian value of the early plea. The hearing occupied eleven days, an extraordinarily long time for a sentence hearing. I do not accept the prosecutor's submission that the utilitarian value of the plea of guilty was zero, but in my opinion it was less than usual in the case of an early plea. I propose to discount by 10 per cent for the early plea.

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In each matter, the defendant is convicted of the offence as charged in the summons. 2. In respect of the offence of polluting the waters of the Musk Valley Creek, the defendant is fined $40,000. 3. In respect of the offence of polluting the waters of the Musk Valley Tributary, the defendant is fined $10,000. 4. In respect of the offence of failing to report the pollution incident to the appropriate regulatory authority, the defendant is fined $80,000. 5. In each matter, pursuant to s 250(1) of the Protection of the Environment Operations Act 1997, the defendant must: (i) within 14 days of today, publish the contents of the annexure hereto in the first twelve pages of the early general news section of the Sydney Morning Herald at a minimum size of height 10cm by width 20cm, from and including the heading below the words "Annexure", such heading to be in bold print; (ii) within fourteen days of today, publish the contents of the annexure hereto in the first five pages of the Grafton local paper, The Daily Examiner, at a minimum size of one-quarter of a page, from and including the heading below the words "Annexure", such heading to be in bold print; (iii) within twenty-one days of today, provide evidence to the prosecutor that orders (i) to (ii) above have been complied with. 6. In each matter the defendant is to pay the prosecutor's costs. 7. The defendant is to pay the prosecutor's investigation expenses in the sum of $13,477.82 apportioned equally between the three matters. 8. Liberty to apply in relation to order 5. 9. In each matter, the exhibits may be returned. ANNEXURE Abattoir at South Grafton convicted of water pollution offences On 24 February 2010 the Land and Environment Court of New South Wales found Ramsey Food Processing Pty Ltd, which owns the abattoir on Armidale Road South Grafton, guilty of 2 charges of water pollution and one charge of failing to notify the Environment Protection Authority of the pollution incident for 4 days. The EPA prosecuted the company for polluting about one kilometre of the Musk Valley Creek and a 300 metre section of a tributary to the creek with a large but unknown amount of untreated abattoir effluent in October 2007, and for failing to inform the EPA as the company was required to do under protection of the environment laws and under its Environment Protection Licence. The polluting effluent came from a split pipe in the abattoir's effluent management system.

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