Evenhandedness
95The principle of evenhandedness requires that the Court consider if there is any general sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the Court, mindful of the different circumstances leading to penalty in other cases. An appropriate sentence is to be determined mindful that:
... a basic principle of sentencing law is that a sentence...imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (see Veen v. The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465, at pp 472, 485-486, 490-491, 496).
per Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).
96In relation to the need for care in considering sentencing patterns, if any, I adopt the following reference to Hili v R; Jones v R [2010 ] HCA 45; (2010) 204 A Crim R 434 at [54] in Big River at [118]:
In Director of Public Prosecutions (Cth) v De La Rosa , Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence " (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned".
97The Prosecutor submitted there were four cases of discharge of sediment laden water into the natural environment which were relevant to sentencing. In Environment Protection Authority v Centennial Newstan [2010] NSWLEC 211, the defendant pleaded guilty to polluting an unnamed creek (the waters of which ultimately flowed into Lake Macquarie) between 18 August 2008 and 22 August 2008 contrary to s 120 of the POEO Act. This was the Defendant's second offence under the POEO Act. At the time of the offence the defendant was the owner and operator of the Newstan Colliery at Fassifern, south of Newcastle where it was undertaking longwall mining. The defendant agreed that between 1.4 ML and 1.8 ML of sediment-laden water was discharged into the unnamed creek. Upon discovery of the discharge, the defendant's response was considered immediate and the prosecutor accepted it was appropriate. The defendant continued mitigatory, clean-up and rehabilitation works until 21 November 2008 and was subsequently advised by officers of the prosecutor that no further work was required. Craig J found that the offence was of moderate objective gravity and considered that whilst the incident gave rise to the potential for serious environmental harm, the actual environmental harm was in the relatively low range in the long term. The defendant entered an early guilty plea and subjective circumstances considered included that the defendant was remorseful and cooperated with authorities in relation to the management and clean-up of pollutant. The defendant was fined a penalty of $150,000 reduced to $105,000 and ordered to pay the prosecutor's costs in the sum of $28,500 and its investigation costs agreed in the sum of $10,000.
98Craig J summarised the three other cases the Prosecutor referred to as follows:
92 ... in Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732, the defendant pleaded guilty before the Chief Judge to the commission of an offence against s 120(1) of the POEO Act in that on 13 February 2005 it polluted waters. It was then convicted of that offence and ordered to pay the sum of $50,000 to the Hunter-Central Rivers Catchment Management Authority for the purpose of undertaking bushland and stream rehabilitation works. That sum was ordered to be paid in accordance with s 250(1)(e) of the POEO Act in lieu of the imposition of a fine. The defendant was also ordered to pay the prosecutor's costs in the sum of $28,000 as well as being required to bear the cost of a publication order under s 250(1)(a).
93 That offence also occurred as the result of operations carried out at the Newstan Colliery site. At the time, the defendant was carrying out auger mining in addition to underground longwall mining. The auger mining operation involved substantial surface disturbance, necessitating implementation of a detailed soil and water management plan. Site works were not carried out in accordance with that plan. They were inadequate to control erosion and run-off from the site. During storms that occurred between 10 and 13 February 2005, catchment dams overtopped, resulting in sediment-laden waters discharging into a creek and then into Lake Macquarie. [I note that the maximum penalty at the time of that offence was $250,000]
...
119 In Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273, Biscoe J was required to determine the penalty to be imposed following a plea of guilty to an offence against s 120 of the POEO Act. Snowy Hydro was responsible for carrying out spillway upgrade and outlet works associated with the Jindabyne Dam located on the Snowy River. It engaged a contractor to carry out some of the required works. In a series of related events occurring over four days, somewhere between 4 and 11 tonnes of sediment were discharged into the Snowy River as a result of the works which the contractor was carrying out. This sediment comprised soil, earth, clay or similar inorganic matter. It was accepted that environmental harm was minor and short term while the offence was described as being "of moderate objective seriousness". Snowy Hydro was fined the sum of $100,000 and also ordered to pay the prosecutor's legal costs in the sum of $84,289 as well as its investigation costs in the sum of $1897.50.
120 The fine imposed upon Snowy Hydro reflected an allowance of a 25 percent discount for its early plea of guilty. The subjective circumstances considered also reflected the fact that it had no prior convictions for an environmental offence; that it had devoted considerable resources to mitigating the harm occasioned and that it had fully co-operated with the prosecutor.
121 The contractor to Snowy Hydro was convicted of the identical offence arising from the same circumstances as those that gave rise to the prosecution of Snowy Hydro: Environment Protection Authority v Fulton Hogan Pty Ltd [2008] NSWLEC 268; (2008) 163 LGERA 345. A fine of $100,000 after allowing discount for an early plea was also imposed upon that defendant who had no prior convictions
99The Defendant submitted there were four cases Environment Protection Authority v Boral Australian Gypsum Ltd [2009] NSWLEC 26, Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77, Environment Protection Authority v George Weston Foods Ltd [2010] NSWLEC 120 and Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255 which could be considered as relevant to sentence identified and summarised in Big River by Pepper J at [120] - [123] and also the penalty imposed in Big River . In Big River 6,000 litres of resin was discharged into a wetland. A head penalty of $100,000 was imposed, discounted to $67,000 in light of various subjective factors. I find the cases relied on by the Prosecutor of most assistance in identifying an appropriate penalty.