Environment Protection Authority v Routledge

Land and Environment Court (NSW)|2023-12-01|Before: Duggan J

Nature of proceedings

On 25 August 2023, Christopher Geoffrey Routledge (the Defendant) pleaded guilty to the following two offences pursuant to ss 120(1) and 142A(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act): 1. Proceedings 2023/00219611 (Charge 1) - one offence under s 120(1) of the POEO Act for pollution of waters on or about 3 June 2022; and 2. Proceedings 2023/00175311 (Charge 2) - one offence under s 142A(1) of the POEO Act for polluting lands on or about 3 June 2022.
At the date of the offences the maximum penalty for each of Charge 1 and Charge 2 was $250,000.
By summonses filed 1 June 2023 and 10 July 2023, the Prosecutor, the Environment Protection Authority (Prosecutor or EPA) sought the following orders: 1. That the Defendant be dealt with according to law for the commission of the offences; 2. An order that the Defendant pay the Prosecutor's costs; 3. Such orders pursuant to Pt 8.3 of the POEO Act as the Court in its discretion sees fit to make; and 4. Such other orders as the Court in its discretion sees fit to make.

Facts

The parties rely upon an Agreed Statement of Facts (ASOF) provided to the Court on the day of the hearing, identifying those facts admitted by the Defendant (Exhibit A). The ASOF is reproduced below. BACKGROUND The Charges 1. Mr Christopher Geoffrey Routledge, the Defendant, has pleaded guilty to: a. an offence of polluting water contrary to s 120(1) of the Protection of Environment Operations Act 1997 (the Act); and b. an offence of land pollution contrary to s 142A(1) of the Act. 2. Both offences concern a diesel spill that occurred on 3 June 2022. 3. Each offence carries a maximum penalty of $250,000 for an individual. The Defendant 4. Mr Routledge is 53 years old (DOB: 13/01/1970). 5. At all relevant times, Mr Routledge was employed by Park as a "Fuel Tanker Driver". 6. Park Pty Ltd ACN 093 014 129 (Park) is an Australian fuel supply company that sources, supplies and distributes petrol and diesel and is based in NSW. 7. Mr Routledge commenced employment with Park on 5 April 2022. Prior to working for Park, Mr Routledge worked in the aviation industry, mainly refuelling helicopters. Training and qualifications 8. Mr Routledge is the current holder of Dangerous Goods Driver Licence #5093086 under the Dangerous Goods (Road and Rail Transport) Act 2008 (NSW). Mr Routledge has held this licence since 5 June 2019. 9. Upon commencing at Park, Mr Routledge went through an induction process and he undertook ½ day of on-the-job training. The training included Mr Scott Harris (Driver Trainer and Compliance Officer at Park) taking Mr Routledge through Park's policies and procedures with the vehicles and how to offload diesel. Mr Harris walked Mr Routledge through the delivery process. 10. During the induction process, Mr Routledge received a number of documents including "Heavy Vehicle Driver Induction", "Standard Operating Procedures for Fuel Loading" and "Standard Operating Procedure Bulk Diesel Pump Delivery". These documents set out the procedure for safe loading and procedures for drivers to follow when they are in terminals including the process and safety requirements. Those requirements include that no mobile phones or electrical devices are to be used when carrying out delivery on site, and that a driver is not to leave the truck unattended while unloading. A copy each of those documents are at Annexure A. THE INCIDENT The premises 11. The relevant incident took place at a petrol station called Highland Fuels (GSK Australia Pty Ltd trading as Highland Fuels), located at 202-208 Bong Bong Street Bowral (the Premises). 12. Highland Fuels sells diesel, unleaded, PULP 95 and PULP 98 fuel. 13. At the Premises, diesel is delivered to and stored in an above ground storage tank, inside a shipping container at the rear of the Premises (as depicted in Annexure B). The above ground storage tank has a maximum safe capacity of 30,000 litres. 14. The other fuel types are kept in underground storage tanks accessible through the hatches in the concrete driveway along the north side of the Premises. The above ground storage tank is not connected to any of the underground storage tanks. The spill 15. At some stage between about 1 and 3 June 2022, Highland Fuels ordered fuels, including 14,000L of diesel, for delivery by Park. 16. Mr Routledge started his shift for the day at approximately 12:00pm. 17. At 7:31pm, Mr Routledge loaded fuel into a fuel tanker (with registration YN 23 Kl) (the Fuel Tanker) connected to a prime mover (with the registration XO 90 HZ) (the Prime Mover) at a terminal at 20 Friendship Road, Port Botany. 18. At around 10.30pm on 3 June 2022, Mr Routledge arrived at the Premises driving the Prime Mover with the Fuel Tanker. The fuel tanker was comprised of: a. Compartments 1 and 3, loaded with unleaded petrol ('ULP'). b. Compartment 2, loaded with '98 RON'. c. Compartment 4, loaded with 'PULP'. d. Compartments 5 and 6 loaded with diesel. There was approximately 6000 litres of diesel in compartment 5, and 8000 litres of diesel in compartment 6, totalling 14,000 litres. 19. The diesel in compartments 5 and 6 of the Fuel Tanker (totalling approximately 14,000 litres), was to be unloaded into the above ground storage tank by Mr Routledge. The fuel types in the other compartments were to be unloaded into underground tanks on the Premises. 20. At around 10:33pm, Mr Routledge connected hoses between the Fuel Tanker, the pump and the above ground storage tank and proceeded to unload diesel. 21. After connecting the hoses, while diesel was being unloaded, Mr Routledge walked away from the Fuel Tanker. 22. While the Fuel Tanker was out of Mr Routledge's sight, diesel flowed from the rear of the Fuel Tanker, through the vapour hose, onto the ground and continued to spill for about 10 minutes (the Incident), until Mr Routledge returned to the Fuel Tanker and turned off the pump at around 10:43pm. 23. After the diesel escaped the Fuel Tanker, it spilled: a. onto the grassed and gravelled area on the premises marked "approx. excavated soil area" on Annexure B; and b. into the stormwater drain, travelled through the stormwater system and discharged into Mittagong Creek at the stormwater outlet marked on the map at Images 1 and 2. Image 1 Image 2 Cause of the spill 24. The spill was caused by Mr Routledge incorrectly connecting the fuel delivery hose to the pump mounted on the Prime Mover. 25. On 29 May 2023, Mr Stephen Hudson of Fuelspec Services provided an expert opinion as to the cause of the Incident on 3 June 2023. Mr Hudson has tertiary qualifications in engineering and has worked as an engineer for over 15 years. Mr Hudson also sits on the Australian Standards Committee for AS2809 'Road Tank Vehicles for Dangerous Goods'. 26. On 18 July 2022, Mr Hudson conducted an inspection of the above-ground storage tank, Fuel Tanker, and Prime Mover. Based on Mr Hudson's inspection and review of relevant evidence (including CCTV footage), he opines that: a. The fuel leak was caused by Mr Routledge incorrectly connecting the hoses from the Fuel Tanker to the incorrect fitting on the pump and from the above ground diesel storage tank to the incorrect fitting on the pump. b. Because the hoses were incorrectly connected, this had the effect of drawing fuel out of the storage tank and into the Fuel Tanker that was already carrying a large load of product. c. The fuel from the storage tank would have filled the compartment in the tanker that it was connected to first, and once full, travelled through the tank vapour coaming and into the other compartments in the Fuel Tanker (as all vents are connected to the same coaming and all vents are open). d. Once these compartments were full and the Fuel Tanker reached maximum capacity, the fuel flowed out of the vapour hose and from the Fuel Tanker to the ground. e. The spill was caused by diesel being pumped incorrectly into the Fuel Tanker, rather than discharged from the Fuel Tanker into the above ground diesel storage tank. 27. Image 3 contains an image of the Fuel Tanker, pump and storage tank, annotated by Mr Hudson, which shows the correct operation of offloading diesel. Image 3 28. Images 4-5 contains two diagrams of a Fuel Tanker showing the parts of the Fuel Tanker and the normal flow of liquid and air in a tanker when diesel is offloaded correctly. Image 6 contains an image of the Fuel Tanker, pump and storage tank, annotated by Mr Hudson, which shows the incorrect operation of offloading diesel as was done by Mr Routledge on 3 June 2022. Image 4 Image 5 29. Image 6 contains an image of the Fuel Tanker, pump and storage tank, annotated by Mr Hudson, which shows the incorrect operation of offloading diesel as was done by Mr Routledge on 3 June 2022. Image 6 30. Image 7 contains a diagram of a Fuel Tanker, and annotations by Mr Hudson showing the flow of diesel in the tanker during the Incident. Image 7 31. Image 8 shows the pump inlet and outlet on the Prime Mover. Image 8 32. Mr Hudson also found that: a. the above ground diesel storage tank located at Highland Fuels Bowral had no operational mechanical or electrical faults which may have contributed to the spill; and b. the Fuel Tanker had no mechanical or electrical faults which could have contributed to the spill; c. the Prime Mover had no mechanical or electrical faults that may have contributed to the spill; d. the underground diesel storage tank had no impact on the cause or the severity of the spill. Amount of diesel spilled 33. Between about 11,260 and 11,760 litres of diesel escaped as a result of the Incident. The Defendant's response to the spill 34. Upon returning to the Fuel Tanker and turning off the pump at about 10.47pm, Mr Routledge saw the diesel coming out of the vapour hose had made its way into the stormwater system located at the rear of the Premises (as depicted in Annexure 8). 35. Mr Routledge used kitty litter and foam padding to try and stop further fuel from spilling into a stormwater drain. 36. Around this time, Mr Routledge made a phone call to Mr Harris which was not answered. 37. Mr Routledge then made three calls to Mr Brenden Marsland (truck allocator at Park): i. at 10.51pm for approximately 5 minutes, ii. at 10:59pm for 44 seconds, and iii. at 11:03pm for approximately 7 minutes. 38. Around 11.30pm, Mr Routledge also sent text messages to Mr Marsland about the spill, including providing three photographs showing the tanker and the extent of the spill on the ground (see Annexure C). 39. At about 11.42pm, Mr Marsland sent a text message to Mr Allan Schloeffel (Head of Pricing and Sales at Park) stating, "Hey mate, our old mate Chris has had a fairly big spill at Bowral. He has tried to clean it up. But it is bigger than our spill kit. I don't have the yardies number. Need to clean it up ASAP." 40. Mr Marsland sent the three photographs (Annexure C) takefl by Mr Routledge to Mr Schloeffel. 41. Mr Marsland had previously attended the Premises. 42. Mr Routledge did not notify any relevant authorities (Wingecarribee Shire Council, the EPA, Fire and Rescue NSW, Safework NSW or Fire and Rescue NSW) of the diesel spill. 43. The training provided to Park's drivers addresses events that trigger them having regard to "in cabin" Transport Emergency Response Plan. A copy of the "in cab" Transport Emergency Response Plan is at Annexure D. The Transport Emergency Response Plan states "EMERGECY RESPONSE: 000" but otherwise does not advise or require the driver to notify other authorities if there is a spill. 44. Mr Routledge had not received emergency response training as Park offered emergency response training to staff but not to drivers. INCIDENT RESPONSE 45. At around 6:30 am on 4 June 2022, the owner/operator of Highland Fuels, Mr Avtar Bains, was conducting an inspection of the Premises when he noticed a spill mark towards the back fence of the premises. Mr Bains then saw the gutters and driveway at the rear of the Premises were filled with liquids that he observed to have a "greasy" appearance and "appeared to be fuel and water''. 46. At around 7:20 am, Mr Bains contacted Wingecarribee Shire Council and stated that there had been a major fuel theft or spill at the Premises. After contacting Wingecarribee Shire Council, Mr Bains contacted Mr Schloeffel and said there had been a major fuel theft or spill at the Premises. 47. At around 8:00am, with extra sunlight, Mr Bains saw the stormwater collection pit at the back of the Premises was full of fuel. Mr Bains also saw the grassed area surrounding the stormwater pit was discoloured, a dark shade of brown, compared to the other parts of the grassed area. This discolouration was due to the fuel, which made the grassed area visibly wet. 48. Around the same time, another Highland Fuels employee, Mr John Montalto, saw a 'lake of oil' that covered '95%' of the concrete area at the rear of the Premises. At the rear of the Premises, Mr Montalto said the air was 'nearly un-breathable' due to the 'distinct smell of oil, similar to diesel'. 49. From about 8:08 am, members of the NSW Police Force as well as Fire and Rescue NSW attended the Premises. That morning, David Martin from Fire and Rescue NSW observed a small amount of diesel flowing from the Premises' stormwater system into Mittagong Creek. To prevent further diesel entering the creek'.'iabsorbent chemical booms were installed at the discharge point. 50. The EPA was notified of the Incident at around 8:41 am by Fire and Rescue NSW. 51. At around 9:00am, Mr Schloeffel and Mr Harris arrived on the scene and informed Mr Bains that Park would be organising a spill cleaning crew. 52. At around 10:30am or 11:00am, Mr Brett Fletcher, the CEO of Park, arrived on the Premises and said Park would organise the clean-up and refuelling of Highland Fuels' tank to ensure sufficient supply. 53. EPA officer Byran Larkings arrived at the Premises at 11:45am. He saw: a. diesel spilled everywhere in the back of the Premises, which had flowed onto the concrete driveway, down the street and saturated the approximately 100 m2 grassed area at the rear of the scene of the Incident. b. the concrete pad and the parking area for an adjacent business at the rear of the fuel station were both impacted by an oily liquid (though the concrete pad at the front had been covered and swept with a sorbet litter); c. that in the grassy/gravelled areas around three nearby stormwater drains were wet and had a strong odour like diesel; and d. in and around the stormwater pits containing the drains themselves, there was oily residues present, along with sorbent litter placed around the pits. 54. At approximately 1:00pm, the Park clean-up team left for the day after completing preliminary mop-up works. 55. At around 2:10pm, Mr Larkings inspected Mittagong Creek. He found upstream from the discharge point had clean and odourless water with the flora and fauna appearing in good health. His inspection 500m downstream of the discharge point found an 'unbroken' sheen on the water surface, with an 'overpoweringly' odour like diesel. 56. Between approximately 3:30pm and 4:00pm, Fire and Rescue NSW installed additional booms into Mittagong Creek. 57. Park employees remained cleaning up the Premises until at least 5:00pm on 4 July 2022. POST-INCIDENT 58. Between 6-9 June 2022, Park undertook measures to clean-up the Premises, including excavating the soil in the grassed area at the rear of the Premises and replacing booms in Mittagong Creek. 59. On 9 June 2022, the EPA conducted a further inspection of both the Premises and waters within Mittagong Creek and observed fuel in the water and fuel odours in and around Mittagong Creek, downstream of the Premises. 60. On 10 June 2022, the EPA issued a Clean-up Notice pursuant to section 91 of the Act. The Clean-up Notice required Park to engage an external consultant to describe Park's clean-up activities, the cause of the Incident, an assessment of the environmental harm, and the actions taken to mitigate pollution and monitor the effectiveness of the clean-up actions. 61. On 10 June 2022, Mr Routledge's employment was terminated by Park on 10 June 2022. 62. On 12, 23 and 30 June 2022, the EPA and the Department of Planning and Environment (NSW) (DPE) conducted further inspections and sampling of the Premises and Mittagong Creek. 63. Between approximately 14 June 2022 and 20 April 2023, Park (intermittently) engaged Aurora Environmental Consulting Pty Ltd and EP Risk Management Pty Ltd to undertake investigations and clean-up activities pursuant to the 10 June 2022 Clean-Up Notice, including: a. Conducting weekly soil and surface water sampling at Mittagong Creek (including its bank), for five weeks and three days. b. Installation of groundwater monitoring wells at the Premises and analysis of results. c. Disposing and excavating approximately 40-50 m3 of soil from the rear of the Premises. Testing of the excavated and residual soil. d. Off-site disposal of approximately 5m3 of soil from Mittagong Creek that came into direct contact with the stormwater system from the Premises. A further 6m3 of deposited material on the northern canal (classified as Hazardous Solid Waste) was also disposed of off-site. RECORD OF INTERVIEW WITH MR ROUTLEDGE 64. On 27 June 2022, Mr Routledge participated in a voluntary record of interview, in which he stated: a. He had been working with Park for about 8 weeks prior to the incident. b. He received his dangerous goods licence around 2018. c. He had prior experience working with aviation refuelling. d. He had no experience working with offsite trans tracks prior to working with Park, and did not receive any real training at Park for the offsite trans truck. e. When he first started working for Park and picked up his truck, all he completed were a 'couple of online training things,' with Mr Harris, the driver trainer. He says he did not receive instruction about how the pumps or other equipment (sic), did not sign off on anything regarding deliveries or pumping fuel, and had to work out the operation of the pumps for himself. f. He had delivered to the Premises on two occasions prior to the delivery on 3 June 2022. g. His previous deliveries to the Premises were without incident. However, he had a small spill during a previous delivery. h. On the night of the Incident, he arrived at the Premises, opened up the trans tank doors, connected a smaller hose to the outlet valve on the truck, and then connected that hose to the inlet valve on the trans tank. i. The larger hose was then connected to the 'APls' on the truck, from compartment 6 into the inlet valve on the truck at the bottom, underneath the outlet valve. j. He ran 'back across' both sets of piping hoses to ensure connection (given the need for a joiner to connect from a 4-inch to 3-inch hose at Highland Fuels). k. He opened up the API on compartment 6, and ran back across the hoses again to see if there are any smaller leaks. I. He then went into the truck cabin to turn the PTO on, and ran back over the lines; he saw no leaks at this time. m. After this, he walked away from the truck and did another dip on 'the 98' and another fuel tank (not caught on the transcript), about 5 or 6 metres away. He said he did not talk with anyone, nor make any phone calls, but was doing paperwork at the time, possibly having sent a couple of text messages also; n. He returned to the truck, believing he heard compartment 6 was empty. It was upon his return he first witnessed fuel coming from the vapour hose. He then: i. Immediately turned off the tank outlets for compartment 6, then turned the Power Take-Off switch, and then turned off all other valves; ii. Saw a drain and used what he had on him - kitty litter and foam padding - to try and stop the fuel from spilling into the drain. He assumed it was diesel that had made its way into the drain; iii. Called Park and spoke to Mr Marsland, 'the allocator', to inform him of the spill. He told him 'quite a bit of fuel' had spilled but he was "unsure of how much at that time". He also said there was a 'substantial spill'. iv. On instruction from Mr Marsland, he dipped the tank (which he had done once prior to filling the tank). o. He was told by Mr Marsland to restart the process, turn the truck on, and turn the PTO on, in the belief there might just have been 'a leak and now blockage' (sic). He restarted the PTO, a course of action he said he was unsure about, and noticed fuel was leaking again, and consequently switched everything off and called Park again. 65. After delivering the other fuel between about 12:40am and 1:30am, Mr Routledge left the Premises and returned to Park's Camellia storage facility at 17 Grand Avenue Camellia. 66. Mr Routledge is no longer employed with Park, having been fired for breaching his dangerous goods licence. CALL CHARGE RECORDS 67. The EPA obtained call charge records for Mr Routledge's mobile phone. The call charge records revealed that on 3 June 2022: a. at 10:05pm mobile phone data was used; b. at 10:46pm mobile phone data was used; c. at 10:46pm, Mr Routledge called Mr Harris on four occasions with only one call appearing to connect to Mr Harris' phone or voicemail for 14 seconds; d. Mr Routledge then made three calls to Mr Marsland: i. at 10.51pm for approximately 5 minutes, ii. at 10:59pm for 44 seconds, and iii. at 11:02pm for approximately 7 minutes; e. at 10:47pm, 10:51pm, 10:56pm, 10:59pm, 11:00pm, 11:10pm, 11:34pm and 11:37pm mobile phone data was used. HARM 68. Over the course of about 10 minutes, between 11,260 and 11,766 litres of diesel escaped from the Fuel Tanker onto concrete. 69. The diesel flowed over land and entered the stormwater system located at the rear of the Premises. The diesel subsequently flowed downstream in the stormwater system into Mittagong Creek. 70. The spill caused actual and likely environmental harm to water, and likely environmental harm to land. Expert analysis of harm to the environment Mr Adrian Dickson 71. On 22 May 2023, Mr Adrian Dickson of OPE provided an expert opinion as to the freshwater ecological impact of the Incident on Mittagong Creek. Mr Dickson's assessment focuses on aquatic macroinvertebrates. Mr Dickson has tertiary qualifications in ecology and environmental science, and has had 20 years' experience working as a researcher, consultant and scientist in the field of freshwater ecology. Mr Dickson has predominately worked in the field of river health assessment using macroinvertebrates as biological indicators of stream and ecosystem condition. Mr Dickson is currently a senior scientist for river assessment for OPE. 72. On 23 June 2022, staff from OPE collected macroinvertebrate samples from Mittagong Creek with samples collected both upstream and downstream of the stormwater discharge point. 73. Following an analysis of the samples collected and from a review of relevant data, Mr Dickson found: a. the results of water quality data of samples collected following the incident suggests that the contaminant (diesel) entered Mittagong Creek from the stormwater discharge point. b. The results of the total abundance and the abundance weighted SIGNAL2-Family results indicated significant differences between upstream and downstream samples, with significantly lower populations in the downstream samples. c. BEST (BIOENV) analysis demonstrated that the main environmental variables that helped to differentiate macroinvertebrate community composition were based on location (Latitude), and this was true of both data sets with and without the Gastropoda taxa removed. As such, the variability of the community observed when comparing upstream and downstream macroinvertebrate samples results, and the variability between the two downstream sites, must be due to other factors. In Mr Dickson's opinion there was a high likelihood that the contaminant (diesel) was responsible for differences observed between upstream and downstream macroinvertebrate samples. d. The results of the multivariate analysis suggest differences in the macroinvertebrate community of sites upstream and downstream of the contaminant (diesel) discharge that could not be contributed to differences in physical habitat, in situ water quality or even the dissolution of calcium carbonate from concrete surfaces. 74. Based on the results of the 23 June 2022 sampling as well as EPA sampling results from 4, 12 and 30 June 2022 (as well as sampling from Park's consultants), Mr Dickson concluded that: a. The contaminant (diesel) entered Mittagong Creek from the stormwater discharge point and the waters downstream was toxic to aquatic life. b. Based on the 4 June 2022 EPA sample results, the diesel that entered the stormwater system and Mittagong Creek changed the chemical and biological condition of the waters. c. Based on the sampling results of 4 June 2022 and macroinvertebrate samples collected on 23 June 2022, there was actual harm to the environment due to the impact on water quality and aquatic biota of the receiving environment in Mittagong Creek. This harm likely extended approximately 1km downstream. d. Based on the EPA sampling results of 4 and 12 June 2022, the harm to the aquatic ecosystem in Mittagong Creek was not trivial. e. The samples collected on 4 June 2022 of the Mittagong Creek downstream from the discharge point found the water to be "Toxic - requires >100 times dilution to remove toxicity". While there was likely some background level of contaminants in Mittagong Creek, sampling upstream on 12 June 2022 suggested that the background contamination was (sic) "requires 2 times dilution to remove toxicity" and therefore the water downstream of the discharge point was 50 times more toxic than upstream of the discharge point. f. The impact on the macroinvertebrate included a difference in composition and fewer families than expected which suggests a loss of taxa. g. In any event, the presence of any amount of diesel in a freshwater ecosystem is highly likely to cause harm, or at the very least threaten harm, to aquatic biota, especially those that dwell near or on the water's surface, which is where the diesel would likely be given the low flow, slow moving nature of the waterway at and following the time of the Incident. Many macroinvertebrate taxa, such as Hemiptera (True bugs) which includes water boatmen, backswimmers and water striders, use the water's surface tension to navigate through their habitat and any changes to the chemical composition of the water can change surface tension and cause these surface-dwelling taxa to which can be fatal for some of these taxa. h. In addition, the Incident had the potential to disrupt the feeding and predatory avoidance strategies that these, and other taxa employ to survive. Furthermore, taxa such as Odonata (dragonflies and damselflies) lay eggs directly in the water while flying above it and they rely on surface tension to facilitate contact with the water and dispersal of eggs into the water and on floating and emergent aquatic vegetation. The presence of contaminants, such as diesel, can disrupt this process and can cause these taxa to fall into the water and become engulfed in the contaminant. i. There is no evidence that the Incident caused actual or potential harm to the Wingecarribee River located approximately 5km from the Incident. Laureate Professor Ravi Naidu 75. On 4 July 2023, Laureate Professor Ravi Naidu provided an expert opinion as to the ecological impact of the Incident on the land located at the Premises and the waters located at the Premises' stormwater system and downstream to Mittagong Creek. Professor Naidu has a PHO in soil chemistry as well as other tertiary qualifications in soil and science. Professor Naidu has over 35 years of experience in the field of environmental science, which includes assessing, characterising risks and remediating contaminated soil and water, as well as assessing the potential impacts of contaminants on the environment and human health. Professor Naidu is currently the Managing Director and CEO of the Cooperative Research Centre for Contamination Assessment and Remediation of the Environment (crcCARE), an independent organisation that performs research, develops technologies and provides policy guidance for assessing, cleaning up and preventing contamination of soil, water and air. 76. Following an analysis of samples collected by the EPA and OPE on 4, 9, 12, 23 and 30 June 2022 (as well as sampling from Park's consultants) and from a review of relevant data, Professor Naidu found that: a. Diesel is a prescribed matter for the purposes of Schedule 5 of the Protection of Environment Operations (General) Regulation 2021 because it is a fuel oil which is flammable and when spilled in water adversely impact the chemical conditions of the water including pH, chemical oxygen demand and biochemical oxygen demand. b. Diesel is a hazardous chemical and is toxic and poses acute risks to people, property and environment due to the chemical or physical characteristics. c. All diesel contains a mixture of hydrocarbon compounds such as benezene, toluene and xylene and polycyclic aromatic hydrocarbons which are known to be toxic to aquatic life and can cause harm to human health. d. A soil sample taken from the Premises on 4 June 2022 exceeded acceptable soil health screening levels for direct contact at open space area by two times and ecological screening levels for total petroleum hydrocarbon fractions by 45 times. e. A soil sample taken from the Premises on 9 June 2022 exceeded twofold acceptable soil health screening levels for direct soil contact at commercial and industrial area and 135 times the ecological screening levels. f. Water samples collected on 4 June 2022, 200m downstream of the stormwater discharge point into Mittagong Creek was tested above regulatory criteria for freshwater quality guideline values of Australian Drinking Water Guidelines. g. Based on EPA samples taken on 4 and 12 June 2022, the diesel that entered the stormwater system and Mittagong Creek made the waters toxic. h. Data from a groundwater well study of the Premises on 21 February 2023 shows detectable concentrations of hydrocarbons at the shallow groundwater well GW01 (1 .7 m bgl) (benzene (4 µg/L) and TPH fractions (>C10-C16 Fraction (F2) (170 µg/L), >C16-C34 Fraction (F3) (160 µg/L) and >C34-C40 Fraction (F4) (below laboratory reporting limit)). There were no chemicals of concern detected in samples from the deeper wells (GW02 and GW03 approximate depth of water 3 m bgl). 77. With respect to the impact on the land located at the Premises, Professor Naidu concluded that: a. The spill degraded the land located at the rear of the Premises and resulted in potential risk to humans, animals, terrestrial life and ecosystems that was not trivial. Professor Ravi noted that on 4 June 2022 an EPA officer observed dead earthworms that were impacted by the oily residues at the Premises. b. The results from 4 June 2022 indicate substantial contamination and degradation of the soil from the Incident. c. The diesel had a non-trivial impact on the soil at the Premises. d. In any event, diesel contains a mixture of hydrocarbons which are likely to cause significant harm to the environment and ecosystems in the area surrounding a spill. e. The diesel can also seep into groundwater and nearby bodies of water, further spreading the contamination. Based on results from groundwater wells, it is likely that the diesel contamination from the Incident resulted in groundwater contamination. f. However, chronic exposure from the diesel was avoided due to remediation measures undertaken to excavate and dispose the contaminated soil in an off-site landfill facility. 78. With respect to the impact on the stormwater system and Mittagong Creek, Professor Naidu concluded that: a. The diesel that entered the stormwater system and Mittagong Creek changed the physical, chemical and biological condition of the waters. b. The diesel made the water in the stormwater system and Mittagong Creek unclean, noxious, poisonous and impure.It also made the stormwater poisonous or harmful to aquatic life but it returned to acceptable condition by 23 June 2022. c. The introduction of the diesel to Mittagong Creek severely impacted the quality of water and had an impact on the stormwater system and Mittagong Creek that was not trivial. d. The diesel severely impacted Mittagong Creek until late June however, the diesel was diluted by heavy rain in July 2022. e. In the absence of this rainfall, the adverse impact of diesel on stream water quality in Mittagong Creek would have persisted for a much longer period. f. The introduction of diesel created oil slicks which reduced the amount of light that penetrates the water and can impact upon the growth of aquatic plants, which can also cause distress to aquatic organisms due to murky and cloudy conditions. g. The introduction of diesel into waterways, specifically in the case of the receiving ecological system in Mittagong Creek, can have adverse effects on aquatic organisms. The dissolved phase of diesel present in the water (the part of diesel contamination which has dissolved/partitioned into water) can impede the ability of fish and other aquatic organisms to breathe. h. In any event, a diesel spill has the potential to cause immediate and harmful consequences to an ecosystem's health and the well-being of aquatic life. CRIMINAL HISTORY 79. Mr Routledge has no known prior convictions for environmental offences.

Statutory provisions

At the time of the offence, the relevant statutory provisions of the POEO Act creating the offences were ss 120(1) and 142A(1): 1. Charge 1: 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence. (2) In this section - pollute waters includes cause or permit any waters to be polluted. 1. Charge 2: 142A Pollution of land (1) A person who pollutes land is guilty of an offence. Maximum penalty - (a) in the case of a corporation - $2,000,000 (if the offence involves asbestos waste) or $1,000,000, and in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual - $500,000 (if the offence involves asbestos waste) or $250,000, and in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. (2) In this section - pollute land includes cause or permit any land to be polluted.

The purposes of sentencing

The purposes of sentencing are contained at s 3A of the Crimes (Sentencing and Procedure) Act 1999 (NSW) (CSP Act) as follows: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.

Statutory matters required to be taken into account in sentencing

For the purposes of sentencing in this matter the following factors as provided for in s 21A of the CSP Act are relevant: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters - (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows - (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … (i) the offence was committed without regard for public safety, … The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows - (b) the offence was not part of a planned or organised criminal activity, (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if - (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23), 22 Guilty plea to be taken into account for offences not dealt with on indictment (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account - (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. … 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
It is to be noted that where the Prosecutor contends that a particular sentencing consideration should be treated as an aggravating factor it must establish by evidence, beyond a reasonable doubt, the presence of such aggravating factor. Where the Defendants contend for the presence of a mitigating factor, it must be established on the balance of probabilities: Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [131].
Section 241(1) of the POEO Act provides for further matters to be considered in imposing a penalty as follows: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant) - (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee, (f) the presence of asbestos in the environment. (2) The court may take into consideration other matters that it considers relevant.

Objective seriousness of offence

The determination of an appropriate sentence is to be undertaken bearing in mind that: A sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its subjective circumstances: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [162].
The primary factor to be considered in sentencing is the objective seriousness of the offences. The objective seriousness of the offences fixes both the upper and lower limits of proportionate punishment: the upper, as a sentence should never exceed that which can be identified as proportionate to the gravity of the particular crime; and the lower, as an allowance for the subjective considerations, can never produce a punishment that does not reflect the objective seriousness of the offence: Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 (Waste Recycling) at [139]-[140].
The objective gravity of the offences is to be judged by two principal components: the precise acts or omissions of the offender; and the consequences of those acts or omissions: Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71 at [22].

Nature of offences and maximum penalty

Having regard to the fact that the relevant offences arise under the provisions of the POEO Act, for the purposes of the consideration of sentence in these proceedings, it is appropriate to have regard to the stated objects of that Act which relevantly includes: 3 Objects of Act The objects of this Act are as follows: (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following: (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, … (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, …
These relevant objects reinforce the public protective nature of the legislative regime and the essential role that the regulation of pollution, through the licensing regime and the prohibition on nominated types of pollution outside that regime (such as the pollution of waters), plays in achieving those objects.
Each of the two offences are strict liability offences and carry the maximum penalty for an individual such as the Defendant of $250,000. The strict liability nature of the offence and the quantum of the maximum penalty are indicators of the public expression by Parliament of the seriousness of the offence and the gravity of the offences as perceived by the community: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 (Axer) at 359; and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

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

The POEO Act contains in the dictionary the following relevant definitions for a consideration of this aspect of sentencing: harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution. environment means components of the earth, including: (a) land, air and water, and (b) any layer of the atmosphere, and (c) any organic or inorganic matter and any living organism, and (d) human-made or modified structures and areas, and includes interacting natural ecosystems that include components referred to in paragraphs (a)-(c).
These defined terms raise wide ranging considerations relating to this aspect of sentencing. As was held by Preston CJ of LEC in Waste Recycling at [145]-[149], harm includes actual harm and potential harm. His Honour identified the following considerations in determining the nature of harm, namely that: 1. harm is not limited to measurable harm such as actual harm to human health, and can include a broader notion of quality of life; 2. harm can include harm to the environment and its ecology; and 3. harm can be direct or indirect, individual or cumulative; and the culpability of the defendant depends in part on the seriousness of the environmental harm.
In this case, it is an agreed fact that both the land pollution (Charge 2) and the water pollution (Charge 1) caused actual harm to the environment in the manner and to the extent outlined at pars 68 to 78 of the ASOF as extracted at [4] above. The accepted nature and seriousness of the harm is an aggravating feature of the offending conduct and reflects in the objective seriousness of the offence.

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

As the offences are both strict liability offences, the state of mind of the offender is not a matter that forms an element of the crimes. However, as is reflected in the relevant sentencing considerations reflected in the CSP Act and the POEO Act, the objective seriousness of the offence can be influenced by matters going to the state of mind of the offender.
In this case, the agreed facts disclose that the reason for the causing of the offence was an error made by the Defendant in the connection of the transfer equipment from the tanker to the receiving tank. It is a fair observation that if the Defendant had remained with the tanker during the transfer of fuel the error in the connection would have become apparent and the extent of the spill may have been reduced or avoided. I do accept, however, that the connection error was not caused by inattention or negligence or recklessness. I accept the evidence of the Defendant that he had received limited training in the connection process, and he was relatively unfamiliar with the premises on the evening of the event, he having only delivered to those premises once before.
Whilst the volume of material that escaped during the pumping process was increased by the Defendant not being present during the pumping, he having moved away from the tanker, I also accept the Defendant's evidence that the actions undertaken by him were consistent with instructions he had been given to undertake other necessary tasks during the transfer process by his employer including the "dipping" of other tanks and the completion of paperwork.
In addition, the Defendant acted quickly once he became aware of the spill to shut down the pumping equipment. A further volume of fuel escaped when he contacted his employer to advise of the spill and was instructed to turn the equipment on again to ascertain if the issue had been resolved by the pumps being initially shut off. This direction was inappropriate and lead to a further volume of fuel escaping.
These factors reduce the objective seriousness of the offending conduct.

Reasonable foreseeability of the harm caused or likely to be caused by the commission of the offences

I accept the Prosecutor's submission that the Defendant could plainly foresee the harm caused or likely caused to the environment by the incident. The foreseeability of harm to the environment by reason of a spill of between about 11,260 and 11,760 litres of diesel is self-evident.

Control over causes and practical measure that could have been undertaken

I also accept that the Defendant had control over the causes that gave rise to the offence, albeit it is not alleged that the Defendant acted deliberately. The diesel spill was caused by the Defendant connecting the hoses from the fuel tanker to the incorrect fitting on the pump and from the above ground diesel storage tank to the incorrect fitting on the pump. Because the hoses were incorrectly connected, this had the effect of drawing fuel out of the storage tank and into the fuel tanker that was already carrying a large load of product. If the Defendant had connected the hoses correctly, the spill would not have occurred.
I also have regard to the evidence at [5] above. If the pipework had been compliant with the relevant Australian Standards the erroneous transfer of fuel to the tanker would not have been able to occur.
There were practical measures that the Defendant could have taken to control or mitigate the harm caused by the incident. Specifically, the Defendant ought to have been present while the diesel was unloading and, if he was, he could have mitigated the harm caused by the spill of diesel.

Conclusions on objective seriousness

Having regard to the factors outlined above, I consider that the objective seriousness of the offence is in the middle of the lower range of seriousness. Whilst the harm occasioned was actual and serious, the conduct of the Defendant was unintentional and an error on his part, and contributed to by a lack of training and inappropriate advice from his employer.

Contrition and remorse

The Defendant expressed that he took full responsibility for the commission of the offences. He raised no dispute with respect to the nature and extent of the harm caused as a consequence of his conduct. I am satisfied both in words and conduct (to which I refer below) that the Defendant is genuinely contrite with respect to the offences and the consequent harm occasioned by his conduct. This is a factor is to be taken into account in determining the appropriate sentence in these matters.

Assistance to EPA - s 21A(3)(m) and s 23 of the CSP Act

The Prosecutor accepts that the Defendant has provided assistance to the EPA by way of: 1. The preparation of the ASOF; 2. His participation in a formal record of interview; and 3. The preparation of an affidavit to assist the EPA in its prosecution of his former employer Park Pty Limited.
During the course of the hearing before me, the Defendant gave an undertaking that he would, if required, attend and give evidence in any proceedings brought against Park Pty Limited.
I consider the totality of the Defendant's assistance to be significant such that it should be taken into account as a mitigating factor in the sentencing for these offences. In addition, I consider such actions to be further evidence of his contrition and remorse. The assistance given by the Defendant was voluntary, against his interest, and unreserved.

Extra-curial punishment

The Defendant's employment was terminated as a consequence of the circumstances relating to the commission of these offences. The Prosecutor submitted, and I accept, that such a factor operates as an extra-curial punishment for the purposes of determining the appropriate sentence in this case.

Early plea of guilty - s 22 and s 21A(3)(k) of the CSP Act

In this matter, pleas of guilty were entered on the first return of the Summonses. The utilitarian value of the early plea should be afforded to the Defendant in each proceeding and I will apply the full 25% discount for the early pleas.

Prior convictions - s 21A(2)(d) of the CSP Act

The Defendant has been convicted of two driving offences some 24 years ago. He has no prior convictions for environmental offences. The nature of his prior convictions and the time elapsed since conviction are not matters that warrant consideration in the determination of sentence in this matter and will be treated as a neutral factor in my determination.

Deterrence retribution and denunciation

The Defendant no longer works in the fuel industry and has indicated that he has no intention in the future of pursuing such employment. The circumstances relating to the commission of the offences was not deliberate. On that basis, I do not consider that specific deterrence is warranted in the circumstances of this case.
Part of the purpose of sentencing, however, is to express the community's denunciation of the conduct and to deter others from committing similar offences. General deterrence is an important aspect of sentencing in environmental crime. As held by Preston CJ of the LEC in Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [139]-[140]: 139 The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. 140 This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354 and Director General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93] per Lloyd J.
I consider that general deterrence is a factor to be taken into account in determining the appropriate penalty in this case.

Consistency in decision-making

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

Legal costs and investigative costs

The Prosecutor seeks payment of its legal and investigative costs. The legal costs are to be agreed or assessed pursuant to s 257B of the CP Act. The investigative costs are identified as being in the sum of $17,698.50 pursuant to s 248(1) of the POEO Act. The Defendant does not object to such orders being made.
The investigative costs and legal costs will be apportioned as to 50% to each of the proceedings.

Totality principle

The principle of totality is a relevant sentencing principle in the present case where both offences with which the Defendant has been charged and to which he has pleaded guilty arise from the same identical facts and circumstances.
The principle has been concisely described by the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610 at 623: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
As outlined above, the elements of each offence are co-incident with respect to the conduct and circumstances giving rise to the commission of each offence and the consequence of each offence such that the application of the sentencing principle of totality is appropriate to be applied in the circumstances of this case. Accordingly, to acknowledge the application of that principle to the circumstances of these offences, I will reduce the fine in proceedings 2023/00175311 (Charge 2) by an amount of 25% to reflect the application of the principle of totality.

Capacity to pay - s 6 of the Fines Act

Section 6 of the Fines Act 1996 (NSW) (Fines Act) provides: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider- (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
The Defendant disclosed that he was now employed by National Parks and Wildlife Service. He earns $2,400 per fortnight after tax. He lives in rented accommodation and pays $500 per week in rent. He is the father of two children and is separated from his wife. He bears his share of the financial responsibility for the children of the marriage. He owns no real estate and has no investments. His bank accounts indicate financial transactions largely related to regular living expenses and a small credit balance at the end of the month. Such evidence is consistent with the Defendant's evidence that he usually has a couple of hundred dollars in his bank account at the end of every month after expenses.
Based upon this evidence, the Prosecutor conceded, and I also accept, that the Defendant has limited means to pay a substantial fine. Accordingly, I will reduce the amount of each fine by 70% below that which I would otherwise determine to reflect these circumstances in recognition of his limited capacity to pay.
The nature of the Defendant's financial circumstances are limited to such a degree that I consider it unlikely that he would be able to meet the payment (even by instalments or by repaying a commercial loan) without putting his capacity to meet his modest needs at real risk.

Moiety

The Prosecutor seeks an order that one half of any monetary penalty imposed by the Court be paid to the Prosecutor pursuant to s 122 of the Fines Act. An order for payment of investigation costs would not compensate the EPA for the total time spent by its officers investigating the commission of the offences.
As Pain J held in Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 at [116]-[118], there is power to make such an order in relation to POEO Act offences because s 122(1)(a) and (b) of the Fines Act are satisfied (so too is subsection (3)). Pepper J similarly considered that an order for a moiety was appropriate in Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 at [242]-[246].
It is appropriate in the circumstances of this case that such an order be made.

Appropriate sentence

The appropriate sentence is to be derived by an "instinctive synthesis" of all of the relevant factors in order to determine an appropriate proportionate sentence: Markarian v The Queen (2005) 228 CLR 357 at 377-378 (McHugh J).
Taking into account the objective seriousness of the charges and the factors identified above, I have determined that the appropriate sentence in this case includes the imposition of a monetary penalty (in addition to the orders relating to legal and investigative costs) in the following amounts: 1. Charge 1: $50,000, less 25% for early guilty plea resulting in a fine of $37,500; and 2. Charge 2: $50,000, less 25% to take into account the principle of totality and 25% for early guilty plea resulting in a fine of $28,125.
I further reduce those fines by 70% to take into account s 6 of the Fines Act and will order fines in the sum of: 1. Charge 1: $11,250; and 2. Charge 2: $8,437.50.

Orders

In proceedings 2023/00219611 the Court makes the following orders: 1. The Defendant is convicted as charged; 2. The Defendant is fined the sum of $11,250; 3. The Defendant is to pay the Prosecutor's legal costs of the proceedings in the amount as may be determined under s 257B of the Criminal Procedure Act 1986 (NSW); 4. The Defendant is to pay the Prosecutor's investigation costs in the agreed sum of $8,849.25 pursuant to s 248(1) of the Protection of the Environment Operations Act 1997 (NSW); and 5. Pursuant to s 122 of the Fines Act 1996 (NSW), a moiety of 50% of any fine determined by the Court be paid to the EPA.
In proceedings 2023/00175311 the Court makes the following orders: 1. The Defendant is convicted as charged; 2. The Defendant is fined the sum of $8,437.50; 3. The Defendant is to pay the Prosecutor's legal costs of the proceedings in the amount as may be determined under s 257B of the Criminal Procedure Act 1986 (NSW); 4. The Defendant is to pay the Prosecutor's investigation costs in the agreed sum of $8,849.25 pursuant to s 248(1) of the Protection of the Environment Operations Act 1997 (NSW); and 5. Pursuant to s 122 of the Fines Act 1996 (NSW), a moiety of 50% of any fine determined by the Court be paid to the EPA.
The exhibits are returned.

Amendments 13 February 2024 - Addition of [59(5)] and [60(5)]. 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: 13 February 2024

a. at 10:05pm mobile phone data was used;

b. at 10:46pm mobile phone data was used;

c. at 10:46pm, Mr Routledge called Mr Harris on four occasions with only one call appearing to connect to Mr Harris' phone or voicemail for 14 seconds;

d. Mr Routledge then made three calls to Mr Marsland:

i. at 10.51pm for approximately 5 minutes,

ii. at 10:59pm for 44 seconds, and

iii. at 11:02pm for approximately 7 minutes;

e. at 10:47pm, 10:51pm, 10:56pm, 10:59pm, 11:00pm, 11:10pm, 11:34pm and 11:37pm mobile phone data was used.

HARM

68. Over the course of about 10 minutes, between 11,260 and 11,766 litres of diesel escaped from the Fuel Tanker onto concrete.

69. The diesel flowed over land and entered the stormwater system located at the rear of the Premises. The diesel subsequently flowed downstream in the stormwater system into Mittagong Creek.

70. The spill caused actual and likely environmental harm to water, and likely environmental harm to land.

Expert analysis of harm to the environment

Mr Adrian Dickson

71. On 22 May 2023, Mr Adrian Dickson of OPE provided an expert opinion as to the freshwater ecological impact of the Incident on Mittagong Creek. Mr Dickson's assessment focuses on aquatic macroinvertebrates. Mr Dickson has tertiary qualifications in ecology and environmental science, and has had 20 years' experience working as a researcher, consultant and scientist in the field of freshwater ecology. Mr Dickson has predominately worked in the field of river health assessment using macroinvertebrates as biological indicators of stream and ecosystem condition. Mr Dickson is currently a senior scientist for river assessment for OPE.

72. On 23 June 2022, staff from OPE collected macroinvertebrate samples from Mittagong Creek with samples collected both upstream and downstream of the stormwater discharge point.

73. Following an analysis of the samples collected and from a review of relevant data, Mr Dickson found:

a. the results of water quality data of samples collected following the incident suggests that the contaminant (diesel) entered Mittagong Creek from the stormwater discharge point.

b. The results of the total abundance and the abundance weighted SIGNAL2-Family results indicated significant differences between upstream and downstream samples, with significantly lower populations in the downstream samples.

c. BEST (BIOENV) analysis demonstrated that the main environmental variables that helped to differentiate macroinvertebrate community composition were based on location (Latitude), and this was true of both data sets with and without the Gastropoda taxa removed. As such, the variability of the community observed when comparing upstream and downstream macroinvertebrate samples results, and the variability between the two downstream sites, must be due to other factors. In Mr Dickson's opinion there was a high likelihood that the contaminant (diesel) was responsible for differences observed between upstream and downstream macroinvertebrate samples.

d. The results of the multivariate analysis suggest differences in the macroinvertebrate community of sites upstream and downstream of the contaminant (diesel) discharge that could not be contributed to differences in physical habitat, in situ water quality or even the dissolution of calcium carbonate from concrete surfaces.

74. Based on the results of the 23 June 2022 sampling as well as EPA sampling results from 4, 12 and 30 June 2022 (as well as sampling from Park's consultants), Mr Dickson concluded that:

a. The contaminant (diesel) entered Mittagong Creek from the stormwater discharge point and the waters downstream was toxic to aquatic life.

b. Based on the 4 June 2022 EPA sample results, the diesel that entered the stormwater system and Mittagong Creek changed the chemical and biological condition of the waters.

c. Based on the sampling results of 4 June 2022 and macroinvertebrate samples collected on 23 June 2022, there was actual harm to the environment due to the impact on water quality and aquatic biota of the receiving environment in Mittagong Creek. This harm likely extended approximately 1km downstream.

d. Based on the EPA sampling results of 4 and 12 June 2022, the harm to the aquatic ecosystem in Mittagong Creek was not trivial.

e. The samples collected on 4 June 2022 of the Mittagong Creek downstream from the discharge point found the water to be "Toxic - requires >100 times dilution to remove toxicity". While there was likely some background level of contaminants in Mittagong Creek, sampling upstream on 12 June 2022 suggested that the background contamination was (sic) "requires 2 times dilution to remove toxicity" and therefore the water downstream of the discharge point was 50 times more toxic than upstream of the discharge point.

f. The impact on the macroinvertebrate included a difference in composition and fewer families than expected which suggests a loss of taxa.

g. In any event, the presence of any amount of diesel in a freshwater ecosystem is highly likely to cause harm, or at the very least threaten harm, to aquatic biota, especially those that dwell near or on the water's surface, which is where the diesel would likely be given the low flow, slow moving nature of the waterway at and following the time of the Incident. Many macroinvertebrate taxa, such as Hemiptera (True bugs) which includes water boatmen, backswimmers and water striders, use the water's surface tension to navigate through their habitat and any changes to the chemical composition of the water can change surface tension and cause these surface-dwelling taxa to which can be fatal for some of these taxa.

h. In addition, the Incident had the potential to disrupt the feeding and predatory avoidance strategies that these, and other taxa employ to survive. Furthermore, taxa such as Odonata (dragonflies and damselflies) lay eggs directly in the water while flying above it and they rely on surface tension to facilitate contact with the water and dispersal of eggs into the water and on floating and emergent aquatic vegetation. The presence of contaminants, such as diesel, can disrupt this process and can cause these taxa to fall into the water and become engulfed in the contaminant.

i. There is no evidence that the Incident caused actual or potential harm to the Wingecarribee River located approximately 5km from the Incident.

Laureate Professor Ravi Naidu

75. On 4 July 2023, Laureate Professor Ravi Naidu provided an expert opinion as to the ecological impact of the Incident on the land located at the Premises and the waters located at the Premises' stormwater system and downstream to Mittagong Creek. Professor Naidu has a PHO in soil chemistry as well as other tertiary qualifications in soil and science. Professor Naidu has over 35 years of experience in the field of environmental science, which includes assessing, characterising risks and remediating contaminated soil and water, as well as assessing the potential impacts of contaminants on the environment and human health. Professor Naidu is currently the Managing Director and CEO of the Cooperative Research Centre for Contamination Assessment and Remediation of the Environment (crcCARE), an independent organisation that performs research, develops technologies and provides policy guidance for assessing, cleaning up and preventing contamination of soil, water and air.

76. Following an analysis of samples collected by the EPA and OPE on 4, 9, 12, 23 and 30 June 2022 (as well as sampling from Park's consultants) and from a review of relevant data, Professor Naidu found that:

a. Diesel is a prescribed matter for the purposes of Schedule 5 of the Protection of Environment Operations (General) Regulation 2021 because it is a fuel oil which is flammable and when spilled in water adversely impact the chemical conditions of the water including pH, chemical oxygen demand and biochemical oxygen demand.

b. Diesel is a hazardous chemical and is toxic and poses acute risks to people, property and environment due to the chemical or physical characteristics.

c. All diesel contains a mixture of hydrocarbon compounds such as benezene, toluene and xylene and polycyclic aromatic hydrocarbons which are known to be toxic to aquatic life and can cause harm to human health.

d. A soil sample taken from the Premises on 4 June 2022 exceeded acceptable soil health screening levels for direct contact at open space area by two times and ecological screening levels for total petroleum hydrocarbon fractions by 45 times.

e. A soil sample taken from the Premises on 9 June 2022 exceeded twofold acceptable soil health screening levels for direct soil contact at commercial and industrial area and 135 times the ecological screening levels.

f. Water samples collected on 4 June 2022, 200m downstream of the stormwater discharge point into Mittagong Creek was tested above regulatory criteria for freshwater quality guideline values of Australian Drinking Water Guidelines.

g. Based on EPA samples taken on 4 and 12 June 2022, the diesel that entered the stormwater system and Mittagong Creek made the waters toxic.

h. Data from a groundwater well study of the Premises on 21 February 2023 shows detectable concentrations of hydrocarbons at the shallow groundwater well GW01 (1 .7 m bgl) (benzene (4 µg/L) and TPH fractions (>C10-C16 Fraction (F2) (170 µg/L), >C16-C34 Fraction (F3) (160 µg/L) and >C34-C40 Fraction (F4) (below laboratory reporting limit)). There were no chemicals of concern detected in samples from the deeper wells (GW02 and GW03 approximate depth of water 3 m bgl).

77. With respect to the impact on the land located at the Premises, Professor Naidu concluded that:

a. The spill degraded the land located at the rear of the Premises and resulted in potential risk to humans, animals, terrestrial life and ecosystems that was not trivial. Professor Ravi noted that on 4 June 2022 an EPA officer observed dead earthworms that were impacted by the oily residues at the Premises.

b. The results from 4 June 2022 indicate substantial contamination and degradation of the soil from the Incident.

c. The diesel had a non-trivial impact on the soil at the Premises.

d. In any event, diesel contains a mixture of hydrocarbons which are likely to cause significant harm to the environment and ecosystems in the area surrounding a spill.

e. The diesel can also seep into groundwater and nearby bodies of water, further spreading the contamination. Based on results from groundwater wells, it is likely that the diesel contamination from the Incident resulted in groundwater contamination.

f. However, chronic exposure from the diesel was avoided due to remediation measures undertaken to excavate and dispose the contaminated soil in an off-site landfill facility.

78. With respect to the impact on the stormwater system and Mittagong Creek, Professor Naidu concluded that:

a. The diesel that entered the stormwater system and Mittagong Creek changed the physical, chemical and biological condition of the waters.

b. The diesel made the water in the stormwater system and Mittagong Creek unclean, noxious, poisonous and impure.It also made the stormwater poisonous or harmful to aquatic life but it returned to acceptable condition by 23 June 2022.

c. The introduction of the diesel to Mittagong Creek severely impacted the quality of water and had an impact on the stormwater system and Mittagong Creek that was not trivial.

d. The diesel severely impacted Mittagong Creek until late June however, the diesel was diluted by heavy rain in July 2022.

e. In the absence of this rainfall, the adverse impact of diesel on stream water quality in Mittagong Creek would have persisted for a much longer period.

f. The introduction of diesel created oil slicks which reduced the amount of light that penetrates the water and can impact upon the growth of aquatic plants, which can also cause distress to aquatic organisms due to murky and cloudy conditions.

g. The introduction of diesel into waterways, specifically in the case of the receiving ecological system in Mittagong Creek, can have adverse effects on aquatic organisms. The dissolved phase of diesel present in the water (the part of diesel contamination which has dissolved/partitioned into water) can impede the ability of fish and other aquatic organisms to breathe.

h. In any event, a diesel spill has the potential to cause immediate and harmful consequences to an ecosystem's health and the well-being of aquatic life.

CRIMINAL HISTORY

79. Mr Routledge has no known prior convictions for environmental offences.

In addition to the ASOF the Prosecutor tendered the following evidence of Mr Stephen Hudson, Engineer, who attested:

In my opinion, the above ground diesel storage tank located at Highland Fuels Bowral has no operational mechanical or electrical faults which may have contributed to this fuel spill. However, the design of the tank pipework allowed for discharge from the filling point. This is in contradiction to AS1940:2017- The Storage and Handling of Flammable and Combustible Liquids, which stipulates a check valve is required to ensure "backflow cannot occur when the filling hose has been disconnected". This was not the cause of the spill. However, the flow of diesel back to the tanker would not have occurred if this check valve was installed.

As the relevant objective and subjective circumstances of this case are largely common (in broad respects), I adopt the approach of the Prosecutor to deal with the two charges together.

At the time of the offence, the relevant statutory provisions of the POEO Act creating the offences were ss 120(1) and 142A(1):

(1) Charge 1:

120 Prohibition of pollution of waters

(1) A person who pollutes any waters is guilty of an offence.

(2) In this section -

pollute waters includes cause or permit any waters to be polluted.

(1) A person who pollutes land is guilty of an offence.

Maximum penalty -

(a) in the case of a corporation - $2,000,000 (if the offence involves asbestos waste) or $1,000,000, and in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or

(b) in the case of an individual - $500,000 (if the offence involves asbestos waste) or $250,000, and in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

(2) In this section -

pollute land includes cause or permit any land to be polluted.

The purposes of sentencing are contained at s 3A of the Crimes (Sentencing and Procedure) Act 1999 (NSW) (CSP Act) as follows:

The purposes for which a court may impose a sentence on an offender are as follows -

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

Statutory matters required to be taken into account in sentencing

For the purposes of sentencing in this matter the following factors as provided for in s 21A of the CSP Act are relevant:

21A Aggravating, mitigating and other factors in sentencing

(1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters -

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c) any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows -

(g) the injury, emotional harm, loss or damage caused by the offence was substantial,

...

(i) the offence was committed without regard for public safety,

...

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows -

(b) the offence was not part of a planned or organised criminal activity,

(e) the offender does not have any record (or any significant record) of previous convictions,

(f) the offender was a person of good character,

(g) the offender is unlikely to re-offend,

(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,

(i) the remorse shown by the offender for the offence, but only if -

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

...

(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),

...

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

22 Guilty plea to be taken into account for offences not dealt with on indictment

(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account -

(a) the fact that the offender has pleaded guilty, and

(b) when the offender pleaded guilty or indicated an intention to plead guilty, and

(c) the circumstances in which the offender indicated an intention to plead guilty,

and may accordingly impose a lesser penalty than it would otherwise have imposed.

(1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

23 Power to reduce penalties for assistance provided to law enforcement authorities

(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

It is to be noted that where the Prosecutor contends that a particular sentencing consideration should be treated as an aggravating factor it must establish by evidence, beyond a reasonable doubt, the presence of such aggravating factor. Where the Defendants contend for the presence of a mitigating factor, it must be established on the balance of probabilities: Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [131].
Section 241(1) of the POEO Act provides for further matters to be considered in imposing a penalty as follows:

241 Matters to be considered in imposing penalty

(1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant) -

(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence,

(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm,

(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,

(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,

(e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee,

(f) the presence of asbestos in the environment.

(2) The court may take into consideration other matters that it considers relevant.

The determination of an appropriate sentence is to be undertaken bearing in mind that:

A sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its subjective circumstances: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [162].

The primary factor to be considered in sentencing is the objective seriousness of the offences. The objective seriousness of the offences fixes both the upper and lower limits of proportionate punishment: the upper, as a sentence should never exceed that which can be identified as proportionate to the gravity of the particular crime; and the lower, as an allowance for the subjective considerations, can never produce a punishment that does not reflect the objective seriousness of the offence: Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 (Waste Recycling) at [139]-[140].
The objective gravity of the offences is to be judged by two principal components: the precise acts or omissions of the offender; and the consequences of those acts or omissions: Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [22].

Having regard to the fact that the relevant offences arise under the provisions of the POEO Act, for the purposes of the consideration of sentence in these proceedings, it is appropriate to have regard to the stated objects of that Act which relevantly includes:

The objects of this Act are as follows:

(a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,

(d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following:

(i) pollution prevention and cleaner production,

(ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,

(iia) the elimination of harmful wastes,

...

(e) to rationalise, simplify and strengthen the regulatory framework for environment protection,

(f) to improve the efficiency of administration of the environment protection legislation,

...

These relevant objects reinforce the public protective nature of the legislative regime and the essential role that the regulation of pollution, through the licensing regime and the prohibition on nominated types of pollution outside that regime (such as the pollution of waters), plays in achieving those objects.
Each of the two offences are strict liability offences and carry the maximum penalty for an individual such as the Defendant of $250,000. The strict liability nature of the offence and the quantum of the maximum penalty are indicators of the public expression by Parliament of the seriousness of the offence and the gravity of the offences as perceived by the community: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 (Axer) at 359; and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

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

The POEO Act contains in the dictionary the following relevant definitions for a consideration of this aspect of sentencing:

harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.

environment means components of the earth, including:

(a) land, air and water, and

(b) any layer of the atmosphere, and

(c) any organic or inorganic matter and any living organism, and

(d) human-made or modified structures and areas,

and includes interacting natural ecosystems that include components referred to in paragraphs (a)-(c).

These defined terms raise wide ranging considerations relating to this aspect of sentencing. As was held by Preston CJ of LEC in Waste Recycling at [145]-[149], harm includes actual harm and potential harm. His Honour identified the following considerations in determining the nature of harm, namely that:

(1) harm is not limited to measurable harm such as actual harm to human health, and can include a broader notion of quality of life;

(2) harm can include harm to the environment and its ecology; and

(3) harm can be direct or indirect, individual or cumulative; and the culpability of the defendant depends in part on the seriousness of the environmental harm.

In this case, it is an agreed fact that both the land pollution (Charge 2) and the water pollution (Charge 1) caused actual harm to the environment in the manner and to the extent outlined at pars 68 to 78 of the ASOF as extracted at [4 ] above. The accepted nature and seriousness of the harm is an aggravating feature of the offending conduct and reflects in the objective seriousness of the offence.

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

As the offences are both strict liability offences, the state of mind of the offender is not a matter that forms an element of the crimes. However, as is reflected in the relevant sentencing considerations reflected in the CSP Act and the POEO Act, the objective seriousness of the offence can be influenced by matters going to the state of mind of the offender.
In this case, the agreed facts disclose that the reason for the causing of the offence was an error made by the Defendant in the connection of the transfer equipment from the tanker to the receiving tank. It is a fair observation that if the Defendant had remained with the tanker during the transfer of fuel the error in the connection would have become apparent and the extent of the spill may have been reduced or avoided. I do accept, however, that the connection error was not caused by inattention or negligence or recklessness. I accept the evidence of the Defendant that he had received limited training in the connection process, and he was relatively unfamiliar with the premises on the evening of the event, he having only delivered to those premises once before.
Whilst the volume of material that escaped during the pumping process was increased by the Defendant not being present during the pumping, he having moved away from the tanker, I also accept the Defendant's evidence that the actions undertaken by him were consistent with instructions he had been given to undertake other necessary tasks during the transfer process by his employer including the "dipping" of other tanks and the completion of paperwork.
In addition, the Defendant acted quickly once he became aware of the spill to shut down the pumping equipment. A further volume of fuel escaped when he contacted his employer to advise of the spill and was instructed to turn the equipment on again to ascertain if the issue had been resolved by the pumps being initially shut off. This direction was inappropriate and lead to a further volume of fuel escaping.
These factors reduce the objective seriousness of the offending conduct.

Reasonable foreseeability of the harm caused or likely to be caused by the commission of the offences

I accept the Prosecutor's submission that the Defendant could plainly foresee the harm caused or likely caused to the environment by the incident. The foreseeability of harm to the environment by reason of a spill of between about 11,260 and 11,760 litres of diesel is self-evident.

Control over causes and practical measure that could have been undertaken

I also accept that the Defendant had control over the causes that gave rise to the offence, albeit it is not alleged that the Defendant acted deliberately. The diesel spill was caused by the Defendant connecting the hoses from the fuel tanker to the incorrect fitting on the pump and from the above ground diesel storage tank to the incorrect fitting on the pump. Because the hoses were incorrectly connected, this had the effect of drawing fuel out of the storage tank and into the fuel tanker that was already carrying a large load of product. If the Defendant had connected the hoses correctly, the spill would not have occurred.
I also have regard to the evidence at [5 ] above. If the pipework had been compliant with the relevant Australian Standards the erroneous transfer of fuel to the tanker would not have been able to occur.
There were practical measures that the Defendant could have taken to control or mitigate the harm caused by the incident. Specifically, the Defendant ought to have been present while the diesel was unloading and, if he was, he could have mitigated the harm caused by the spill of diesel.

Having regard to the factors outlined above, I consider that the objective seriousness of the offence is in the middle of the lower range of seriousness. Whilst the harm occasioned was actual and serious, the conduct of the Defendant was unintentional and an error on his part, and contributed to by a lack of training and inappropriate advice from his employer.

The Defendant expressed that he took full responsibility for the commission of the offences. He raised no dispute with respect to the nature and extent of the harm caused as a consequence of his conduct. I am satisfied both in words and conduct (to which I refer below) that the Defendant is genuinely contrite with respect to the offences and the consequent harm occasioned by his conduct. This is a factor is to be taken into account in determining the appropriate sentence in these matters.

Assistance to EPA - s 21A(3)(m) and s 23 of the CSP Act

The Prosecutor accepts that the Defendant has provided assistance to the EPA by way of:

(1) The preparation of the ASOF;

(2) His participation in a formal record of interview; and

(3) The preparation of an affidavit to assist the EPA in its prosecution of his former employer Park Pty Limited.

During the course of the hearing before me, the Defendant gave an undertaking that he would, if required, attend and give evidence in any proceedings brought against Park Pty Limited.
I consider the totality of the Defendant's assistance to be significant such that it should be taken into account as a mitigating factor in the sentencing for these offences. In addition, I consider such actions to be further evidence of his contrition and remorse. The assistance given by the Defendant was voluntary, against his interest, and unreserved.

The Defendant's employment was terminated as a consequence of the circumstances relating to the commission of these offences. The Prosecutor submitted, and I accept, that such a factor operates as an extra-curial punishment for the purposes of determining the appropriate sentence in this case.

Early plea of guilty - s 22 and s 21A(3)(k) of the CSP Act

In this matter, pleas of guilty were entered on the first return of the Summonses. The utilitarian value of the early plea should be afforded to the Defendant in each proceeding and I will apply the full 25% discount for the early pleas.

The Defendant has been convicted of two driving offences some 24 years ago. He has no prior convictions for environmental offences. The nature of his prior convictions and the time elapsed since conviction are not matters that warrant consideration in the determination of sentence in this matter and will be treated as a neutral factor in my determination.

The Defendant no longer works in the fuel industry and has indicated that he has no intention in the future of pursuing such employment. The circumstances relating to the commission of the offences was not deliberate. On that basis, I do not consider that specific deterrence is warranted in the circumstances of this case.
Part of the purpose of sentencing, however, is to express the community's denunciation of the conduct and to deter others from committing similar offences. General deterrence is an important aspect of sentencing in environmental crime. As held by Preston CJ of the LEC in Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [139]- [140]:

139 The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598.

140 This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354 and Director General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93] per Lloyd J.

I consider that general deterrence is a factor to be taken into account in determining the appropriate penalty in this case.

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

The Prosecutor seeks payment of its legal and investigative costs. The legal costs are to be agreed or assessed pursuant to s 257B of the CP Act. The investigative costs are identified as being in the sum of $17,698.50 pursuant to s 248(1) of the POEO Act. The Defendant does not object to such orders being made.
The investigative costs and legal costs will be apportioned as to 50% to each of the proceedings.

The principle of totality is a relevant sentencing principle in the present case where both offences with which the Defendant has been charged and to which he has pleaded guilty arise from the same identical facts and circumstances.
The principle has been concisely described by the majority of the High Court in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 623:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

As outlined above, the elements of each offence are co-incident with respect to the conduct and circumstances giving rise to the commission of each offence and the consequence of each offence such that the application of the sentencing principle of totality is appropriate to be applied in the circumstances of this case. Accordingly, to acknowledge the application of that principle to the circumstances of these offences, I will reduce the fine in proceedings 2023/00175311 (Charge 2) by an amount of 25% to reflect the application of the principle of totality.

Capacity to pay - s 6 of the Fines Act

Section 6 of the Fines Act 1996 (NSW) (Fines Act) provides:

6 Consideration of accused's means to pay

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

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

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

The Defendant disclosed that he was now employed by National Parks and Wildlife Service. He earns $2,400 per fortnight after tax. He lives in rented accommodation and pays $500 per week in rent. He is the father of two children and is separated from his wife. He bears his share of the financial responsibility for the children of the marriage. He owns no real estate and has no investments. His bank accounts indicate financial transactions largely related to regular living expenses and a small credit balance at the end of the month. Such evidence is consistent with the Defendant's evidence that he usually has a couple of hundred dollars in his bank account at the end of every month after expenses.
Based upon this evidence, the Prosecutor conceded, and I also accept, that the Defendant has limited means to pay a substantial fine. Accordingly, I will reduce the amount of each fine by 70% below that which I would otherwise determine to reflect these circumstances in recognition of his limited capacity to pay.
The nature of the Defendant's financial circumstances are limited to such a degree that I consider it unlikely that he would be able to meet the payment (even by instalments or by repaying a commercial loan) without putting his capacity to meet his modest needs at real risk.

The Prosecutor seeks an order that one half of any monetary penalty imposed by the Court be paid to the Prosecutor pursuant to s 122 of the Fines Act. An order for payment of investigation costs would not compensate the EPA for the total time spent by its officers investigating the commission of the offences.
As Pain J held in Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 at [116]- [118], there is power to make such an order in relation to POEO Act offences because s 122(1)(a) and (b) of the Fines Act are satisfied (so too is subsection (3)). Pepper J similarly considered that an order for a moiety was appropriate in Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 at [242]- [246].
It is appropriate in the circumstances of this case that such an order be made.

The appropriate sentence is to be derived by an "instinctive synthesis" of all of the relevant factors in order to determine an appropriate proportionate sentence: Markarian v The Queen (2005) 228 CLR 357 at 377-378 (McHugh J).
Taking into account the objective seriousness of the charges and the factors identified above, I have determined that the appropriate sentence in this case includes the imposition of a monetary penalty (in addition to the orders relating to legal and investigative costs) in the following amounts:

(1) Charge 1: $50,000, less 25% for early guilty plea resulting in a fine of $37,500; and

(2) Charge 2: $50,000, less 25% to take into account the principle of totality and 25% for early guilty plea resulting in a fine of $28,125.

I further reduce those fines by 70% to take into account s 6 of the Fines Act and will order fines in the sum of:

(1) Charge 1: $11,250; and

(2) Charge 2: $8,437.50.

In proceedings 2023/00219611 the Court makes the following orders:

(1) The Defendant is convicted as charged;

(2) The Defendant is fined the sum of $11,250;

(3) The Defendant is to pay the Prosecutor's legal costs of the proceedings in the amount as may be determined under s 257B of the Criminal Procedure Act 1986 (NSW);

(4) The Defendant is to pay the Prosecutor's investigation costs in the agreed sum of $8,849.25 pursuant to s 248(1) of the Protection of the Environment Operations Act 1997 (NSW); and

(5) Pursuant to s 122 of the Fines Act 1996 (NSW), a moiety of 50% of any fine determined by the Court be paid to the EPA.

In proceedings 2023/00175311 the Court makes the following orders:

(1) The Defendant is convicted as charged;

(2) The Defendant is fined the sum of $8,437.50;

(3) The Defendant is to pay the Prosecutor's legal costs of the proceedings in the amount as may be determined under s 257B of the Criminal Procedure Act 1986 (NSW);

(4) The Defendant is to pay the Prosecutor's investigation costs in the agreed sum of $8,849.25 pursuant to s 248(1) of the Protection of the Environment Operations Act 1997 (NSW); and

(5) Pursuant to s 122 of the Fines Act 1996 (NSW), a moiety of 50% of any fine determined by the Court be paid to the EPA.

13 February 2024 - Addition of [59(5)] and [60(5)].

Environmental Operations Act 1997(NSW)

Crimes (Sentencing and Procedure Act 1999(NSW)

Crimes (Sentencing and Procedure) Act 1999(NSW)

Environment Operations Act 1997(NSW)

Protection of Environment Operations (General) Regulation 2021

(Sentencing and Procedure) Act 1999

Environmental Operations Act 1997(NSW)

Crimes (Sentencing and Procedure Act 1999(NSW)

Crimes (Sentencing and Procedure) Act 1999(NSW)

Environment Operations Act 1997(NSW)

Goods (Road and Rail Transport) Act 2008

(1993) 113 LGERA 357

(2006) 145 LGERA 234

(2006) 148 LGERA 299

At a glance

Court

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Before

Source

Judgment (126 paragraphs)

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Legislation Cited (15)

Cases Cited (12)

Cited By (3)