Environment Protection Authority v Ridley AgriProducts Pty Limited

June offence

1. At approximately 8.00am on 19 June 2017, Chris Plain, who was employed by Ridley as a cook operator in the rendering plant but who also had duties as a groundsman relating to the dams, checked the Bottom Dam and commenced operating the Pump to pump water to the Main Dam. The Bottom Dam was not overflowing at that time.
2. Mr Plain considered that there was "plenty of pressure" in the Pump at that time, that it was primed and was working satisfactorily, although it was "starting to get a little bit slow". He reported this observation to his supervisor, Shane Pratt and the then Site Manager, Ewin Williams.
3. Neither Mr Plain, Mr Pratt, Mr Williams nor any other Ridley staff member checked whether the Pump was operating properly on 19 June 2017 after it was turned on.
4. In the afternoon of 20 June 2017, Environment Protection Authority ('EPA') officers Alex Bowlay and Anna Ernst who were at the premises to carry out an inspection, noticed that the Bottom Dam was discharging a "very dark brown" liquid with a "mild sewage odour" from an eastern overflow point. The liquid was trickling into the natural gully area, into Dalgetys Creek and onwards into the Last Dam. The Last Dam was overtopping and discharging wastewater into the part of Dalgetys Creek that flowed through the premises boundary into Marramarra National Park.
5. Mr Bowlay took water samples from the discharge point where the water was overtopping the Last Dam and from Dalgetys Creek near where the premises adjoins Marramarra National Park. He observed that the Creek was trickling steadily. These samples were later analysed by Dr Katelyn Edge, Senior Scientist at the Office of Environment and Heritage, who determined that the samples contained concentrations of ammonia known to cause toxicity in a range of aquatic organisms and were acutely toxic to water flea and larval fish.
6. In summary, the discharge of wastewater resulted from the Pump losing prime and it ceased pumping water from the Bottom Dam to the Main Dam. At some time between the time when the Pump lost prime on 19 June 2017 and the inspection of the Bottom Dam by the EPA officers on 20 June 2017, the Bottom Dam reached and exceeded its capacity and overflowed, discharging the wastewater into Dalgetys Creek and ultimately Marramarra National Park.
7. During the evening of 20 June 2017, prime was restored to the Pump and it was operated to reduce the water level in the Bottom Dam by pumping it to the Main Dam. The discharge from the Bottom Dam ceased shortly after the Pump restarted.

October offence

1. Between 20 October and 23 October 2017, the Bureau of Meteorology Station at Maroota ('BOM Station') recorded a total of approximately 38.2 millimetres of rain. No rainfall was recorded in the area between 24 October and 26 October 2017. Approximately 19.2 millimetres was recorded by the BOM Station on 27 October 2017.
2. At approximately 8.00am on 28 October 2017, Brian Albers, Ridley's Capital Projects Manager for the premises, noticed that the Main Dam was overflowing and flowing across a sloping paddock area into the Last Dam and that water from the Last Dam was discharging into Dalgetys Creek.
3. Mr Albers noticed that the Pump at the Bottom Dam was operating and pumping wastewater to the Main Dam. He immediately turned it off and to further reduce the discharges from the Main Dam and the Last Dam, he: 1. commenced operating the diesel pump at the Last Dam to reduce its water level by pumping water from the Last Dam to the Main Dam; 2. commenced operating the other pumps from the Main Dam to transfer water from the Main Dam into the plant and ultimately into the Bottom Dam which had approximately 1.8 metres of freeboard as a result of the Pump running throughout the previous night; and 3. shut down plant operations to reduce additional wastewater entering the system.
4. At approximately 9.00am on 28 October 2017, Mr Williams contacted the EPA to self-report the overflow of high nutrient load water into Dalgetys Creek due to what he asserted was "a massive rain event on the evening of 26 October 2017 and throughout 27 October 2017".
5. At around 11.00am, Mr Albers took three samples of the water that was discharging into Dalgetys Creek outside the premises boundary and into Marramarra National Park.
6. The discharge from the Last Dam that resulted from the omission to turn off the Bottom Dam Pump on 27 October 2017 ceased at around 2.30pm on 28 October 2017, however at some point during the night of 28 October 2017, the Main Dam started to overflow again. At approximately 6.15am on 29 October 2017, Mr Albers resumed pumping water from the Last Dam and the discharge from the Last Dam ceased by around 9.00am that day.
7. It is estimated that approximately two megalitres of wastewater discharged from the Last Dam into Dalgetys Creek.
8. The water was continuously pumped to the Main Dam due to the Pump at the Bottom Dam being inadvertently left on overnight on 27 October 2017, resulting in the Main Dam overflowing into the Last Dam and ultimately into Dalgetys Creek and Marramarra National Park.
9. The prosecutor accepts that a contributing cause of the October offence was approximately 19 millimetres of rainfall received in the vicinity of the premises on 27 October 2017.

Sentencing principles

1. The sentence imposed by the Court must reflect and be proportionate to the objective circumstances of the offence and the subjective circumstances of the offender. An instinctive synthesis method should be applied, requiring the Court to identify all the facts relevant to the sentence and weigh their significance to arrive at an appropriate sentence.
2. While Ridley's plea of guilty to both charges entails an acceptance of the proof beyond reasonable doubt of the elements of the offences, the prosecutor still carries the onus of proving beyond reasonable doubt any aggravating factors for the purposes of sentencing and for mitigating factors, the onus of proof lies upon the offender on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]. Relevantly, the only evidence before the Court upon which any fact adverse to Ridley could be found is contained in the statements of agreed facts and harm referred to at [5] above.
3. In applying the above principles, I am conscious that while there is some factual overlap, there are two distinct proceedings before the Court for two discrete offences. I have considered the evidence that is to a large extent common to both matters and although the hearing in both matters proceeded concurrently, the circumstances of each incident and the consequential harm are different.

Legislative framework

1. In sentencing Ridley, I have had regard to: the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act'), particularly subpars (a), (b), (e) and (f); the aggravating, mitigating and other factors of relevance as set out in s 21A of the Sentencing Act; the objects of the POEO Act as set out in s 3 thereof; and the relevant matters in s 241 of the POEO Act. These provisions are set out below.

Sentencing Act

1. Section 3A of the Sentencing Act relevantly provides: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, … (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, ...
2. Sections 21A(2) and 21A(3) of the Sentencing Act set out aggravating and mitigating factors the Court must take into account insofar as they are relevant. These include: 21A Aggravating, mitigating and other factors in sentencing … (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, … (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), … (m) assistance by the offender to law enforcement authorities (as provided by section 23), …

POEO Act

1. The objects of the POEO Act are stated in s 3 and relevantly include: 3 Objects of Act … (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, … (e) to rationalise, simplify and strengthen the regulatory framework for environment protection,
2. Section 241 of the POEO Act provides: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant.

The objective circumstances of the offences

1. The principal factor the Court considers in sentencing is the objective gravity or seriousness of the offences. This involves consideration of various elements discussed below.

Nature of the offences

1. The nature and purpose of the statutory provision that has been contravened and its place in the statutory scheme are illustrative of the objective seriousness of environmental offences: Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 ('OEH v Orica') at [59] and Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140; (2017) 227 LGERA 290 at [22].
2. Conditions imposed upon an environmental protection licence traverse a spectrum of obligations. Some are procedural, the consequences of non-observance of which are not necessarily adverse to the environment, while others are regarded as more fundamental in the control of the regulated activity: Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39 ('Huntsman') at [65]. I consider that the condition the subject of the current offences, being one requiring that plant and equipment used in connection with the licenced activity be operated in a proper and efficient manner, is a condition of the latter kind such that failure to observe the requirements involved a system-based failure.
3. I accept and adopt the comments of Pepper J in Environmental Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 ('EPA v Orica') at [104] that: …Compliance with licence conditions is the price that entities must pay for permission to engage in potentially polluting manufacturing processes. The conditions imposed in any licence are aimed at maximising beneficial environmental outcomes and minimising environmental harm. They represent a balancing exercise between fostering economic growth and development, on the one hand, and protecting and preserving the environment now and for the future, on the other. Strict compliance with the conditions of any environmental licence is therefore necessary to ensure that this balance is achieved and that the objectives of the POEOA are met.
4. The prosecutor submits that it is clear from its objects (set out at [41] above) that the POEO Act is directed to avoid or at least reduce pollution in order to prevent harm to human safety and the natural environment: Environment Protection Authority v Unomedical Pty Limited (No 3) (2010) 79 NSWLR 236; [2010] NSWLEC 198 at [188]. The prosecutor contends that Ridley's failure to operate its equipment in a proper and efficient manner on two separate occasions, contrary to condition O2.1(b), resulted in the overflow of dams and the discharge of wastewater into the environment, thereby causing environmental harm (that is, actual harm in relation to the June offence and possible harm in relation to the October offence) and contravening s 64(1) of the POEO Act.
5. Ridley submits that this is not a case involving total disregard of the requirement to operate the Pump in a proper and efficient manner, but a failure to meet that standard despite genuine but flawed efforts on the part of its workers. Ridley acknowledges that the particular condition that was breached was important and that the failure to properly meet that standard has resulted in two transgressions that are incompatible with the statutory scheme and its objectives for the protection of the environment.
6. I agree with the prosecutor's submissions and I find that the actions of Ridley and the consequences thereof in relation to each offence offended against the legislative objectives enshrined in s 3 of the POEO Act.

Maximum penalty for the offences

1. The maximum penalty for each offence is $1,000,000.
2. The maximum penalty for an offence reflects the public expression by Parliament of the seriousness of the offence: Camilleri's Stockfeeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 ('Camilleri's Stockfeeds') at 698. 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: Camilleri's Stockfeeds at 698.

Harm to the environment

1. The harm caused by the commission of each offence is relevant in determining the objective seriousness of the offences under s 241(1)(a) of the POEO Act and ss 21A(2)(g) (if the harm was substantial) and 21A(3)(a) (if the harm was not substantial) of the Sentencing Act.
2. In considering the extent of the harm caused or likely to be caused to the environment by the commission of the offences under s 241(1)(a) of the POEO Act, "harm" is defined to include "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". The concept of harm in the context of environmental offences is broad and it includes the potential or risk of harm, not merely actual harm: Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 ('Waste Recycling') at [145].
3. In light of the agreed facts regarding environmental harm considered below, the prosecutor accepts that in relation to each offence, the extent of actual or likely harm caused was not substantial for the purposes of s 21A(2)(g) of the Sentencing Act.
4. In relation to each offence, Ridley submits that a portion of Dalgetys Creek was clearly expected to convey overflow from the Bottom Dam to the Last Dam and that it has been highly modified by past land management practices for that purpose. Further, while Ridley acknowledges that the fact that the water quality was already significantly degraded does not necessarily mitigate the extent of the harm, it submits that the extent of actual harm to the environment is limited. Ridley submits that this is particularly so in circumstances where there is no evidence as to what, if any, fish or other fauna were present at the time of the offences. Ridley submits that there is no evidence as to whether the discharge in either case extended beyond the Bush Dam.

June offence

1. As a result of joint conferencing between experts in relation to environmental harm resulting from the June offence, it was agreed between the parties and the Court was informed that: 1. water samples taken from the discharge point at the Last Dam and Dalgetys Creek near the premises boundary on 20 June 2017 contained concentrations of ammonia 200 times higher than the ANZECC water quality guideline; 2. ammonia concentrations at this level are known to cause toxicity to a range of aquatic organisms and were acutely toxic to indicator species cladocera (water flea) and larval fish as follows: 1. immobilisation in 100% of exposed Ceriodaphnia dubia ('C. dubia'). Immobilisation is considered similar to mortality. The sample would need to be diluted eight times to avoid these acute toxic effects on C. dubia; and 2. imbalance in 100% of exposed Melanotaenia duboulayi ('M. duboulayi'). The sample would need to be diluted greater than 25 times to avoid these acute toxic effects on M. duboulayi. 1. the discharge of wastewater arising from the June offence caused actual harm to the environment which consisted of contamination of the soils, stream and groundwaters by contact with the pollutant within the premises and up to a sampling point in Marramarra National Park (identified in the informal map at [11] as 'NP Sample Point'); 2. the June offence would have caused acute toxicity to the biodiversity within Dalgetys Creek downstream of the Last Dam, including offsite into the Marramarra National Park up to the NP Sample Point. This would have reduced the biodiversity within Dalgetys Creek downstream of the Last Dam, including offsite into the Marramarra National Park; and 3. the extent of harm would have been the extent of flow within Dalgetys Creek, as a result of the discharge. The maximum possible extent was up to the junction between Dalgetys Creek and the Hawkesbury River.
2. In Waste Recycling at [147], Preston CJ of LEC stated: Harm can be direct or indirect, individual or cumulative and activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously.
3. Further, in EPA v Orica at [119], Pepper J noted that: …harm is not mitigated by the fact that the waters into which a pollutant is discharged are, at the time, already disturbed or modified: Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [48], Waste Recycling at [149] and Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 192 LGERA 415 at [159]. Although the disturbed condition of receiving waters is not a mitigating factor, it is relevant to the assessment of the extent of harm or likely harm caused by the commission of the offence: Waste Recycling at [149], Environment Protection Authority v Hanson Precast Pty Limited [2008] NSWLEC 285 at [66] and Environment Protection Authority v Hochtief AG and Thiess Pty Ltd [2007] NSWLEC 177 at [19].
4. Given the Statement of Agreed Facts on Environmental Harm, I accept, as I must, that the discharge arising from the June offence caused actual harm to the environment as noted above. While I find beyond reasonable doubt that the extent of the harm was within Dalgetys Creek, I am not satisfied that the harm extended to the Hawkesbury River.
5. I take into account the significance of the exceedance of the ANZECC water quality guideline in relation to concentrations of ammonia and I note that such concentrations are known to cause toxicity to a range of aquatic organisms. I do not consider that the harm is lessened, as Ridley submits, because Dalgetys Creek was expected to convey overflow from the Bottom Dam and/or has been highly modified, for the reasons noted by Pepper J in EPA v Orica at [119] referred to above. I find beyond reasonable doubt that the conduct constituting the June offence has caused environmental harm in the manner noted above.
6. While harm to the environment is not an element of the offence in s 64 of the POEO Act, if contravention of a licence condition results in environmental harm, the offence is aggravated: Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 ('Ballina') at [99].
7. I also find, as conceded by the prosecutor, that the evidence is not sufficient to establish beyond reasonable doubt that the harm is substantial for the purpose of s 21A(2)(g) of the Sentencing Act. However, as the environmental harm resulted from the contravention of a licence condition, the contravention is aggravated in the sense considered by Preston J in Ballina at [99] and thus falls within s 241(1)(a) of the POEO Act which requires the Court to take into account the extent of the harm caused or likely to be caused by commission of the offence.

October offence

1. As a result of joint conferencing between experts in relation to environmental harm resulting from the October offence, it was agreed between the parties and the Court was informed that: 1. the wastewater released into that part of Dalgetys Creek downstream of the premises boundary as a result of the offence had concentrations of ammonia at a level known to be toxic to aquatic organisms; 2. the offence is unlikely to have caused additional actual harm to the pre-existing water quality of Dalgetys Creek because the water quality of the creek was already significantly degraded; and 3. the offence had the potential to cause harm to aquatic organisms. In the absence of evidence of flow downstream as a result of the offence, the extent of the potential for harm is uncertain.
2. Ridley submits that the Court would only have regard to the discharge from the Main Dam that commenced on the evening of 28 October 2017 because s 241(1)(a) of the POEO Act is concerned with "the extent of the harm caused or likely to be caused to the environment by the commission of the offence" (emphasis added). Ridley submits that the relevant conduct constituting the offence was the failure to turn off the Pump on the afternoon of 27 October 2017 with the consequence that it continued to pump water resulting in the Main Dam overflowing into the Last Dam. Ridley contends that the discharge ceased by 2.30pm on 28 October 2017 and there was no further water pumped from the Bottom Dam to the Main Dam thereafter. Ridley notes that it is not known how much water was pumped from the Bottom Dam to the Main Dam on 27 October 2017 so as to cause the initial discharge. In those circumstances, Ridley submits that it cannot be said that the discharge of water from the Main Dam that commenced on the evening of 28 October 2017 was caused by the failure to turn off the Pump on 27 October 2017. Accordingly, Ridley submits that the offence did not cause any additional harm.
3. Ridley submits that there are no ecotoxicity test results available for the discharge of 27 to 28 October 2017.
4. As noted above, I accept that the concept of harm in the context of environmental offences includes the potential or risk of harm, not merely actual harm: Waste Recycling at [145]. I find that the October offence had the potential to cause harm to aquatic organisms, notwithstanding the fact that the extent of the harm is uncertain. As canvassed with counsel for the parties at the hearing, I consider the wording "additional actual harm" in the Statement of Agreed Facts on Environmental Harm (at [63(2)] above) to be somewhat ambiguous. Despite this, I am not satisfied beyond reasonable doubt that the October offence resulted in actual environmental harm.

State of mind in committing the offences

1. While each of the offences against s 64(1) of the POEO Act is a strict liability offence, the state of mind of the offender at the time of an offence may make the offence objectively more serious. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one committed accidentally: Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123], Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 ('Rae') at [42] and Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90 at [35].
2. The prosecutor submits (in written submissions) that Ridley was responsible for creating the circumstances giving rise to these offences and, as such, displayed an indifference amounting to negligence (however, in oral submissions, counsel for the prosecutor submitted that Ridley acted recklessly, rather than negligently (Tcpt, 31 July 2019, p 33(45-49)) in the face of a known and obvious risk: Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60 ('Elf Farm Supplies') at [79].
3. While the prosecutor acknowledges that Ridley implemented a variety of measures following both the June offence and the October offence, it submits that these measures could have been implemented before the overflow incidents occurred. The prosecutor submits that the only system of monitoring and prevention of overflows that Ridley had in place prior to June 2017 was visual checking of the available freeboard in the Bottom Dam by a staff member and the pumping of water from the Bottom Dam when the water levels in that dam appeared to be nearing capacity. The prosecutor contends that those measures were wholly inadequate to safeguard against the obvious risk of overflow of the dams.
4. Ridley submits that the breach of the licence condition on each occasion was not intentional, deliberate or even reckless. While Ridley accepts that it was responsible for the circumstances which gave rise to the offences, it disputes the prosecutor's characterisation of its state of mind as "indifferen[t]".
5. In Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 ('Brummell') at [51], Preston J noted that: A critical difference between [recklessness and negligence] is that recklessness is measured on a subjective standard (the referent being the offender) while negligence is measured on an objective standard (the referent is a hypothetical reasonable person).
6. For an offender to be reckless in the commission of an offence, they need to have "knowledge or foresight of the likelihood of the consequence or circumstance occurring" in the sense of a "real and not remote" chance: Brummell at [52]. While pertaining to different factual circumstances to those in the present matter, in Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126], Pepper J considered recklessness in the context of clearing native vegetation as follows: An offender's conduct will be classified as reckless where he or she is put on notice, in the sense that he or she believes or suspects, that the clearing of native vegetation may be unlawful but nevertheless proceeds to undertake the clearing without making further enquiries (Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 at [50] and Director-General, Department of the Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100 at [50]).
7. As per Brummell at [53], negligence requires consideration of: …whether the risk of [the] consequence or circumstance was foreseeable to the reasonable person in the position of the offender, not whether the offender subjectively foresaw the risk: NSW Sugar Milling Cooperative Ltd v Environment Protection Authority (1992) 75 LGRA 320 at 321, 324, 325.
8. In relation to the June offence, I find that the prosecutor has not established beyond reasonable doubt that Ridley acted recklessly or negligently. Even if Ridley's state of mind could be attributed to Mr Pratt (Mr Plain's supervisor) and/or Mr Williams (the then Site Manager), I am not satisfied that either Mr Pratt and/or Mr Williams was subjectively aware of the risk that the Pump would not be operated in a proper and efficient manner, contrary to condition O2.1(b) of the Licence and in breach of s 64(1) of the POEO Act, was likely to result, nor am I satisfied that, viewed objectively, a reasonable person in Ridley's position would have foreseen the risk that there would be a failure to operate the Pump in a proper and efficient manner, contrary to the Licence condition and in breach of the POEO Act. Although neither Mr Pratt, Mr Williams nor any other Ridley staff member checked whether the Pump was operating properly on 19 June 2017 after it was turned on despite Mr Plain's observations (which were subsequently reported to Messrs Pratt and Williams) that the Pump was "starting to get a little slow", I note that Mr Plain reported that there was "plenty of pressure" in the Pump at that time and that it was primed and working satisfactorily. In these circumstances, I do not find Ridley's conduct negligent to the criminal standard so as to warrant criminal punishment: Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 ('Ampol') at 439 and Brummell at [54]. It follows that I do not find that Ridley acted recklessly in the face of a "known and obvious risk" as submitted by the prosecutor.
9. I find that the October offence was committed negligently, but not recklessly. The evidence discloses that, viewed objectively, a reasonable person in Ridley's position, knowing what Ridley knew at the time of the October offence, would have foreseen that the failure to operate the Pump in a proper and efficient manner would breach condition O2.1(b) (and s 64(1) of the POEO Act). I find that Ridley was on notice of the offence following the June offence and I note that despite the fact that the October offence related to a different dam, it involved the same pump or system. In the circumstances, and having regard to the fact that the negligence required to be proved by the prosecutor is negligence of the criminal type, I consider that Ridley acted negligently in committing the October offence. I am satisfied that the failure to take precautions warrants criminal punishment: Ampol at 439 and Brummell at [54]. The evidence before the Court in relation to the October offence is insufficient to establish beyond reasonable doubt that Ridley was subjectively aware of the risk that the Pump would not be operated in a proper and efficient manner, contrary to the Licence condition and in breach of the POEO Act, was likely to result. As such, I do not find that Ridley acted recklessly in the commission of the October offence.

Reasons for committing the offences

1. A factor by which the criminality of the offences may be augmented is the reason for their commission: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 ('Bentley') at [237] and Rae at [47]. For example, if an offence is found to be committed for financial gain, it is objectively more serious. In the present matters, neither offence was committed for any apparent reason such as financial gain that would increase the objective seriousness of the offences.

Foreseeability of risk of harm

1. Ridley accepts and I find that the harm caused or likely to be caused to the environment in the event of discharges occurring was foreseeable.

Practical measures to prevent risk of harm

1. The prosecutor submits that the harm could have been avoided and at the time of the June offence, there was no documented process to record dam water levels or determine when it was appropriate to operate the Pump. Further, the prosecutor submits that at the time of the October offence, there were no processes or procedures in place to respond to dam overflow events or manage dam water levels. The prosecutor submits that all of the steps that have subsequently been taken by Ridley could have been implemented sooner to prevent these incidents.
2. While Ridley accepts that there were practical measures it could have taken that may have prevented the discharges from occurring, it submits that the offences were not "accidents waiting to happen". Ridley submits that the offences involved instances of inadvertence on the part of its workers in failing to properly monitor dam water levels and the operation and functioning of the Pump. Ridley notes that in the case of the June offence, there is no evidence that it was on notice that the Pump would fail in the way that it did or that it was in an obvious state of disrepair.
3. Ridley highlights the fact that following the offences, it took steps which have successfully prevented any further contraventions. Ridley further submits that its responses following the identification of each incident were appropriate and ensured that any harm was controlled, minimised and abated.
4. Given the circumstances that led to the offences and in particular the fact, as submitted by the prosecutor, that there were no processes or procedures in place to respond to dam overflow events or indeed effectively manage dam water levels, and given that appropriate procedures and practices were later adopted, I find beyond reasonable doubt that there were practical measures to prevent the risk of harm. While I do not accept that the circumstances leading to the offences could be described as "accidents waiting to happen", in relation to both offences, it is clear that there were practical measures that Ridley could have adopted including the steps subsequently taken by Ridley which would have prevented (or significantly reduced) the risk of harm that occurred.

Control over causes of offences

1. Both parties submit and I find that Ridley had ultimate control over the causes that gave rise to the offences.

Conclusion on objective seriousness

1. The prosecutor submits that the objective circumstances are at the higher end of low objective seriousness for the offences. Ridley submits that the objective seriousness of the offences is lower and not at the higher end of low objective seriousness.
2. Although specific characterisation of objective seriousness is not a necessary component of the sentencing task because it "…is rarely definitive of that part of the sentencing exercise that requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender", it is still a useful descriptor in the instinctive synthesis exercise: R v DP [2019] NSWCCA 55 at [42] and Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [279].
3. While I accept and take into account the differences between the June offence and the October offence, having regard to the matters considered above and in particular: the nature of each offence; the high maximum penalty; the harm to the environment resulting from the June offence; the potential for harm arising from the October offence; the foreseeability of the risk of harm to the environment by the commission of each offence; the existence of practical measures to avoid the risk of harm, particularly in relation to the October offence; and, Ridley's control over the causes that gave rise to the offences and the harm to the environment, I find that each offence is in the middle range of low objective seriousness.

Pleas of guilty

1. I note that Ridley pleaded guilty to both offences, a mitigating factor pursuant to s 21A(3)(k) of the Sentencing Act. In determining the discount that should be applied to the sentences for the utilitarian value of Ridley's pleas, it is necessary to have regard to the timing and circumstances in which the intention to plead guilty to each offence was indicated.
2. Ridley submits that it indicated to the prosecutor that it was willing to plead guilty to appropriately particularised summonses from the first mention of the matters before the Court and that subsequent negotiations resulted in pleas of guilty to the Amended Summonses, and statements of agreed facts and harm. By pleading guilty to both offences, Ridley submits that it avoided the need for a trial or any further steps that would otherwise have been required by Div 2A of Pt 5 of the Criminal Procedure Act 1986 (NSW).
3. I find that Ridley is entitled to the maximum discount of 25% for its early guilty pleas which were made at the earliest opportunity, being immediately after the Amended Summons in each proceeding was filed.

Contrition and remorse

1. As stated above at [40], pursuant to s 21A(3)(i) of the Sentencing Act, remorse will only be a mitigating factor 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),
2. Ridley submits that contrition and remorse are inherent features of its pleas of guilty and that there is also particular remorse and contrition shown by the fact that Ridley self-reported the October offence. Ridley notes that there was no need to self-report the June offence given that it first came to Ridley's attention at the time of the inspection by EPA officers on 20 June 2017. Ridley further submits that it has demonstrated contrition and remorse by its actions immediately following the incidents and in the affidavit of Mr Lower.
3. Ridley also relies upon the affidavit of Mr Linehan who gives uncontested evidence regarding Ridley's agribusiness operations and history, details the nature of the business and Ridley's role as a corporate citizen at various community-based activities. He deposes that the incidents the subject of the offences are at odds with Ridley's corporate culture which prides itself on its environmental record and care for the environment.
4. Mr Linehan also details improvements undertaken at the premises, including changes in practices and procedures which have increased the margin of safety by allowing diversions of water to occur sooner. He deposes that the maximum operating water level of the Settling Dam has been set so if no intervening action were to occur, it would take an estimated 72 hours before the Settling Dam reached close to the top of the dam wall under normal operating conditions. Mr Linehan says that the contingency of the revised high-water mark will also ensure that if there is a malfunction of the pump, there is now a 72 hour timeframe within which that mechanical issue can be rectified. He notes that there is a spare pump which is available onsite and can be installed in a matter of hours in the event of a malfunction. Mr Linehan further deposes as to the operating hours of the premises and notes that even when the premises are not operating, there is a caretaker onsite who oversees water levels in the dams. He also deposes to the installation of a rainwater drainage pit, gutters and a water storage tank and gives details of proposed future capital works relating to the installation of a new pumping system.
5. Mr Linehan provides a formal apology in relation to the discharge of wastewater containing ammonia into Dalgetys Creek and the consequent impact thereof on the environment.
6. The prosecutor accepts that Ridley has expressed contrition and remorse and that Ridley is otherwise a company of good character and repute.
7. I accept that the actions of Ridley outlined by Mr Linehan above are indicative of contrition and remorse and that subsequent to each incident, the company took relatively expeditious action. Although I note the prosecutor's suggestion that the more recent changes to procedures and protocols and further works could have been undertaken more promptly, I am conscious of the fact that the implementation of long-term, sustainable solutions to wastewater management take some time and I consider that the works show a genuine desire to act responsibly.

Lack of prior criminality

1. Ridley does not have prior convictions for any environmental offence: s 21A(3)(e) of the Sentencing Act.

Assistance to authorities

1. Assistance by the offender to law enforcement authorities (as provided by s 23) is a mitigating factor under s 21A(3)(m) of the Sentencing Act.
2. Ridley submits and I accept that it cooperated with the prosecutor at all stages during the investigation of these proceedings. It made staff available for interviews, complied with statutory notices for the production of records, cooperated in relation to statements of agreed facts and harm and agreed to pay the prosecutor's costs.

Likelihood of re-offending

1. Ridley has taken a number of actions to prevent the recurrence of similar incidents. In addition to the measures outlined by Mr Linehan above, these include: 1. implementing a dam level monitoring system; 2. implementing a system of regular auditing of the performance of dam pumps on the premises by way of preventative maintenance; 3. installing a new diesel pump at the Last Dam; 4. installing a new pump at the Bottom Dam; 5. segregating wastewater flow and stormwater runoff from the premises; 6. strengthening the north-western wall of the Bottom Dam to prevent upstream overflow from dams and rainwater run-off on the neighbouring property from entering the Bottom Dam; 7. engaging experts to sample and test water samples; 8. commissioning and obtaining a soil and wastewater characterisation report; 9. reviewing its irrigation system and implementing changes to bring its system in line with EPA recommendations to limit any risks of contaminating stormwater at the premises; 10. digging two large swales in the area to the north of the Main Dam to provide another barrier to any overflow from the Main Dam; and 11. rebuilding and strengthening the eastern wall of the Last Dam.
2. The prosecutor accepts that Ridley is unlikely to commit similar offences given the steps it has subsequently taken. This is a mitigating factor under s 21A(3)(g) of the Sentencing Act.
3. Ridley acknowledges the prosecutor's submission and adds that as a result of the steps it has taken, large rainfall events on 3 September 2018, 17 October 2018 and 28 November 2018 did not result in any discharge.

Deterrence

1. The imposition of a sentence serves a number of purposes including retribution and denunciation, as well as deterrence, both general and specific. While specific deterrence is less relevant in these matters given my finding regarding Ridley's likelihood of re-offending, I find that general deterrence is an important consideration.
2. I accept the prosecutor's submission that the penalty must be sufficient to deter others who, by oversight or inadequacy in process systems, run the risk of committing an offence against the POEO Act in the hope that should an oversight or inadequacy be exposed, only nominal penalties will be imposed: Huntsman at [119] and Bentley at [139]-[141]. Further, I consider that the integrity of the system of licencing, which deals with activities that may occasion pollution, is fundamental in giving effect to the objectives of the POEO Act and that the importance of compliance with those conditions must be emphasised by the imposition of an appropriate penalty that serves to deter others: Huntsman at [120].

Even-handedness

1. In determining the appropriate penalty for each offence, the Court should be consistent with any patterns of sentencing for like offenses. The prosecutor directed the Court to various relatively recent cases concerning contraventions of s 64 of the POEO Act including Environment Protection Authority v P&M Quality Smallgoods Pty Ltd; Environment Protection Authority v JBS Australia Pty Limited [2017] NSWLEC 89, Elf Farm Supplies, Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39, Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76, Environment Protection Authority v Wambo Coal Pty Ltd [2017] NSWLEC 152 and Environment Protection Authority v Steggles Foods Mt Kuring-gai Pty Ltd [2017] NSWLEC 178; (2017) 230 LGERA 24 ('Steggles').
2. While Ridley acknowledges that the Court should have regard to other cases as they provide a yardstick for sentencing, it submits that greater assistance should be obtained by reference to general sentencing principles: R v Woodman [2001] NSWCCA 310 at [24]-[25], R v Hawker [2001] NSWCCA 148 at [17], Cvetkovic v R [2013] NSWCCA 66 at [73], Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 ('Hili') at [54] and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305]. Ridley submits that it is important to have regard to not just what has been done in other cases, but why it was done: Hili at [18].
3. I have had regard to the matters considered by the Court in the decisions to which I have been referred, including the objective and subjective circumstances thereto. I am conscious of the fact that each case turns upon its particular facts and caution must be exercised in considering other cases because of the "…inevitable disparity between subjective and objective circumstances applicable to those cases, compared to the same circumstances found to exist in this case": Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71 at [45]. This is particularly so in the context of Steggles, a case which the prosecutor acknowledged pertained to different factual circumstances and a breach of a different nature vis-à-vis the present proceedings. The sentence that I consider appropriate to be imposed for each offence is not inconsistent with the sentences imposed in the matters to which I have been referred.

The applicability of the totality principle

1. When an offender is convicted of two offences which contain common elements, it would be wrong to punish the offender twice for elements that are common: Pearce v R (1998) 194 CLR 610; [1998] HCA 57 at [40]. In sentencing an offender for more than one offence, the Court should first determine an appropriate sentence for each individual offence, then it should review the aggregate sentence and consider whether the sentence is just and appropriate and reflects the total criminality: OEH v Orica at [142].
2. The prosecutor submits that this is not an appropriate case for the application of the totality principle. The prosecutor contends that the factors upon which Craig J based his decision not to apply the totality principle in Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 ('Moolarben') at [131] apply equally to this case. The prosecutor submits that the June offence was committed four months prior to the October offence and although the charges and the licence condition breached are the same, each is a discrete offence arising from different causes. The prosecutor further notes that there was no continuity of conduct and that each offence involved different and separate episodes of conduct breaching s 64(1) of the POEO Act.
3. Ridley submits that totality has a role to play, however, it accepts that there will clearly be two separate penalties imposed.
4. In the circumstances, I find that although there may not have been a "continuity of conduct" normally considered when applying the principle of totality (Moolarben at [131]), I consider that there is some overlap between the offences and I take that into account when determining the appropriate penalties.

Costs

1. Ridley accepts that it is appropriate for the Court to make an order that it pay the prosecutor's professional costs which are agreed at $80,000 and asks the Court to take this into account when imposing each penalty in accordance with Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78].
2. In determining the appropriate penalties to impose on Ridley, I consider it legitimate to take into account the associated costs order and publication order (discussed further below): Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 at [100].

The appropriate sentences

1. While the two offences were, for the most part, dealt with together, as noted above, I am conscious that the offences are distinct and that a separate sentence must be imposed for each.
2. Adopting an instinctive synthesis approach and considering the relevant and different objective and subjective circumstances in relation to each offence, the purposes of sentencing and the differences between the offences, I find that the appropriate penalty for each offence is $70,000. The amounts should be reduced for the utilitarian value of the early guilty pleas which, as noted above, I assess in each case to be 25%. I consider the aggregate amount of the two fines, being $105,000, to be just and appropriate in the circumstances.
3. The parties agree and I consider that it is appropriate for the monetary penalties imposed to be paid to the Environmental Trust established under the Environmental Trust Act 1998 (NSW) for general environmental purposes pursuant to s 250(1)(e) of the POEO Act.
4. Publicising sentences for environmental offences improves the deterrent effect of sentencing by bringing broader attention to the consequences of such conduct: Waste Recycling at [242] and Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 at [163]. Accordingly, I find that it is appropriate to make the publication order set out in Annexure "A" to this judgment which, subject to minor changes to reflect my findings, is substantially in the form suggested by the prosecutor.

In proceedings 2018/00187985: 1. Ridley AgriProducts Pty Limited is convicted of an offence against s 64(1) of the Protection of the Environment Operations Act 1997 (NSW). 2. In lieu of a fine, Ridley AgriProducts Pty Limited is to pay the amount of $52,500 to the Environmental Trust established under the Environmental Trust Act 1998 (NSW) for general environmental purposes pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997 (NSW). 3. Ridley AgriProducts Pty Limited is to pay the prosecutor's professional costs in the sum of $40,000. 4. Ridley AgriProducts Pty Limited is to pay the prosecutor's investigation costs in the sum of $2,385 pursuant to s 248 of the Protection of the Environment Operations Act 1997 (NSW). 5. Ridley AgriProducts Pty Limited is, at its expense and within 28 days of the date of this order, to cause a notice in the form of Annexure "A" to this judgment to be placed within the first five pages of the following publications, at a minimum size of 9cm x 12cm, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW): 1. The Sydney Morning Herald; 2. The Australian Financial Review; and 3. The Rouse Hill Times. 1. Within 35 days of the date of this order, Ridley AgriProducts Pty Limited must provide to the prosecutor a complete copy of the pages of the publications/sites in which the notice (as required by Order (5)) appears.

In proceedings 2018/00187986: 1. Ridley AgriProducts Pty Limited is convicted of an offence against s 64(1) of the Protection of the Environment Operations Act 1997 (NSW). 2. In lieu of a fine, Ridley AgriProducts Pty Limited is to pay the amount of $52,500 to the Environmental Trust established under the Environmental Trust Act 1998 (NSW) for general environmental purposes pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997 (NSW). 3. Ridley AgriProducts Pty Limited is to pay the prosecutor's professional costs in the sum of $40,000. 4. Ridley AgriProducts Pty Limited is to pay the prosecutor's investigation costs in the sum of $2,385 pursuant to s 248 of the Protection of the Environment Operations Act 1997 (NSW). 5. Ridley AgriProducts Pty Limited is, at its expense and within 28 days of the date of this order, to cause a notice in the form of Annexure "A" to this judgment to be placed within the first five pages of the following publications, at a minimum size of 9cm x 12cm, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW): 1. The Sydney Morning Herald; 2. The Australian Financial Review; and 3. The Rouse Hill Times. 1. Within 35 days of the date of this order, Ridley AgriProducts Pty Limited must provide to the prosecutor a complete copy of the pages of the publications/sites in which the notice (as required by Order (5)) appears.

Annexure A (116 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2019