Environment Protection Authority v Routledge

Statutory provisions

1. 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

1. 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

1. 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.
2. 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].
3. 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

1. 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].
2. 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].
3. 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

1. 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, …
2. 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.
3. 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

1. 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).
2. 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.
3. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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

1. 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

1. 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.
2. 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.
3. 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

1. 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

1. 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

1. 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.
2. 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.
3. 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

1. 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

1. 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

1. 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

1. 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.
2. 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.
3. 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

1. 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].
2. 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.
3. 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

1. 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.
2. The investigative costs and legal costs will be apportioned as to 50% to each of the proceedings.

Totality principle

1. 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.
2. 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.
3. 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

1. 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.
2. 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.
3. 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.
4. 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

1. 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.
2. 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].
3. It is appropriate in the circumstances of this case that such an order be made.

Appropriate sentence

1. 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).
2. 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.
3. 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

1. 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.
2. 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.
3. 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.

1. 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.

1. 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.

1. 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.

1. 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

1. 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.

1. 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].
2. 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.

1. 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].

1. 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].
2. 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].

1. 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,

...

1. 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.
2. 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

1. 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).

1. 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.

1. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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

1. 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

1. 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.
2. 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.
3. 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.

1. 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.

1. 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

1. 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.

1. 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.
2. 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.

1. 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

1. 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.

1. 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.

1. 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.
2. 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.

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

1. 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].
2. 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.
3. 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.

1. 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.
2. The investigative costs and legal costs will be apportioned as to 50% to each of the proceedings.

1. 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.
2. 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.

1. 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

1. 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.

1. 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.
2. 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.
3. 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.

1. 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.
2. 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].
3. It is appropriate in the circumstances of this case that such an order be made.

1. 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).
2. 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.

1. 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.

1. 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.

1. 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)].