Environment Protection Authority v Snowy Hydro Ltd

13 While the spillway upgrade and outlet works were being undertaken, Snowy Hydro maintained, as an environmental control, an environmental release flow of approximately 96 megalitres per day via a siphon outlet which discharged water from Lake Jindabyne to a point on the Snowy River located downstream of the outlet works. This flow was often called "the riparian flow".

14 The final stages of the works included commissioning of the plunge pool by physically connecting it to the downstream waters of the Snowy River. To achieve the connection, the plunge pool was filled, two temporary coffer dams were removed, and the earthen material next to the plunge pool was excavated to form an outlet channel to connect the plunge pool to the downstream waters. The shape and dimensions of the outlet channel were important because they had to match the shape and dimensions of the Snowy River watercourse. It was during the process of physical connection of the plunge pool to the Snowy River that the pollution occurred.

15 Until the plunge pool commissioning works were completed, the commissioning works on the mini hydro and the outlet valves could not take place, and the riparian flow could not be re-directed through the plunge pool. 16 One of the two temporary coffer dams required to be removed was a rock coffer dam. Its purpose was to prevent the waters of the Snowy River flowing back into the plunge pool construction site. Behind the rock coffer dam was a depression which functioned as a sediment basin (Sediment Basin 4). Behind that, next to the plunge pool construction site, was a clay coffer dam. Over the top of the clay coffer dam was a haul road so that construction traffic could cross the Snowy River. 17 Because the coffer dams were temporary works, Snowy Hydro did not pay as much attention to them as it did to permanent works. 18 The pollutant which entered the waters of the Snowy River downstream of the construction site comprised soil, earth, clay or similar inorganic matter: (a) which was introduced into waters during the process of excavation carried out by FRH to remove the temporary coffer dams and create the channel to join the plunge pool to the downstream waters; and (b) which, from about midday on 1 August 2006 (when the plunge pool was connected to the downstream waters) was already suspended in the waters of the plunge pool, and entered the downstream waters after the two water bodies were connected. Contract between Snowy Hydro and FRH 19 On 7 April 2004 Snowy Hydro, as principal, entered into a construction contract for the spillway upgrade and outlet works with Belmadar Constructions Pty Ltd. Later, Belmadar constructed the two coffer dams and the haul road. With effect from 1 December 2005, the contract was novated so that FRH took the place of Belmadar as contractor.

20 In the contract, Snowy Hydro emphasised that pollution in the Snowy River was a major concern to it. Under the contract, Snowy Hydro, through its Superintendent, had power to demand from FRH a method statement and a risk management assessment for the works relating to removal of the coffer dams. It also had the power to give directions to FRH in relation to those works including in relation to the prevention and control of pollution. No such method statement or risk assessment was demanded or provided. Snowy Hydro gave some directions in relation to the works, but gave none in relation to the prevention or control of pollution until Wednesday 2 August 2006.

21 The terms of the contract included the following: (a) Section E Specification cl 2.17.1 stated: The Contractor shall note that pollution in the Snowy River and Lake Jindabyne is a major concern to the Principal and the Superintendent will enforce the requirements for Soil Conservation and Erosion Controls rigidly; (b) FRH was required to submit to the Superintendent method statements detailing the proposed methodology for the works, including details of all temporary works and the contractor's proposed methods for preventing pollution of waterways from excavation and materials management (Section E Specification cl 1.13; Section C General Conditions cl 8.3); (c) all works would be carried out in accordance with the development approval and an environmental management plan prepared by the contractor, which was to be submitted to the Superintendent for approval. That was to be a plan which described the measures which would be taken by the contractor to avoid adverse environmental impacts, in each specific location of works under the contract (Section E Specification cl 1.13, Section D Conditions cll 9.31 and 14.3). Among the matters to be included in the environmental management plan were details of the site specific controls to be adopted to ensure environmental requirements were met; details of the resources proposed to be used to manage environmental issues; details of water quality discharge requirements; details of each environmental issue and impacts; and risk assessment of each potential impact using the appropriate Australian Standard (Section E Specification cl 2.15); (d) FRH was obliged to immediately report to the Superintendent all safety and environmental incidents, accidents and potential hazards. If such an incident occurred, the Superintendent could direct all works on site to be suspended (Section D Special Conditions cl 9.5); (e) FRH was obliged to satisfy all legislative requirements including the requirements of the POEO Act: (Section C General Conditions cl 11.1, Section D Special Conditions cl 9.3.3); (f) the "Superintendent" under the contract was a Snowy Hydro executive, Mr Brett Jones (Section C General Conditions cl 1); (g) FRH was required to carry out and complete the works under the contract "in accordance with the Contract and directions authorised by the Contract" (Section C General Conditions cl 2.1). Directions could be given by the Superintendent or by the Superintendent's representative (Section C General Conditions cll 20 and 21). The Superintendent's powers of direction included a power to direct FRH to suspend the carrying out of any works if the Superintendent was of the opinion that it was necessary because of an act, default or omission of FRH (Section C General Conditions cl 33); (h) formal progress meetings between Snowy Hydro and FRH were to (and did) take place on a weekly basis (Section D Special Conditions cl D.7); (i) the contract contains a number of clauses whereby FRH agrees to indemnify Snowy Hydro. Snowy Hydro's active role 22 Snowy Hydro had an active role in the construction project. It dealt with regulators and members of the public. It had its own site office on the construction site. It normally had personnel present every working day except Sundays. There was constant communication and collaboration between Snowy Hydro and the contractor in relation to the construction program, including weekly progress meetings and day to day discussions. There were discussions between Snowy Hydro and its contractor in respect of the particular works which caused the pollution, and Snowy Hydro directed the contractor in respect of the carrying out of those works. The plunge pool outlet channel, which was the pollution conduit, was excavated by the contractor to the specifications of Snowy Hydro. Those specifications were not pre-determined by contract drawings but were dictated on site by Brian Mayhew (Snowy Hydro's Structures and Dam Safety Manager and Construction Manager for this project) whilst the works were being carried out. Mr Mayhew reported to Brett Jones, Snowy Hydro's Superintendent. 23 Snowy Hydro utilised the services of two or three full time site inspectors. The site inspectors spent most of their time on the site monitoring and inspecting the works carried out by the contractor in order to examine compliance with the contract and the environmental management plan. They had power to stop works and to direct FRH to carry out works in accordance with the contract - a power delegated by Mr Jones as Superintendent. 24 One of the site inspectors was Ian McCann, who gave evidence for the prosecution. Mr McCann was aware that the excavation of the coffer dams and haul road was to commence on 28 July 2006. His role in respect of that excavation was to ensure that the width and depth of the channel joining the plunge pool and the Snowy River was achieved. Mr McCann was not aware of any written plans or specifications for that task. It was his understanding that the works were to be completed to the satisfaction of himself and Mr Mayhew, to whom Mr McCann reported on a daily basis both verbally and in reports. It was Mr Mayhew who would give him direction in the works that he was to carry out.

Development application, assessment and approval 25 In 2003, Snowy Hydro submitted a development application to Snowy River Shire Council to carry out the spillway upgrade and outlet works. The development application was supported by two Statements of Environmental Effects (SEE). The SEE noted that the Snowy River Inquiry had identified the section of the Snowy River downstream from the Jindabyne Dam to the junction with the Delegate River as highly degraded (p 118). The SEE noted that potential adverse impacts would generally be restricted to the construction phase and included potential erosion and sedimentation during and immediately following activities that disturbed the land surface or were carried out within water bodies. The SEE stated that "These potential impacts are of particular importance" (p 119). 26 The development application proposed that a water quality guideline of less than or equal to 150 NTU be adopted for water discharged into the Snowy River. A water quality guideline of less than or equal to 50 NTU was proposed for 150 metres upstream of the construction activities on the surface of Lake Jindabyne. 27 Turbidity expressed as NTUs (nephelometric turbidity units) is a measurement derived from the degree to which light is able to penetrate the water column. It is relevant to note that the measurement of total suspended solids (TSS) is an alternative to the measurement of turbidity for the purpose of determining the degree or concentration of solids suspended in a water column. The concentration of TSS is expressed in milligrams per litre (mg/L) and is a measurement of the weight of solids in milligrams per litre of water. 28 In accordance with the scheme for integrated development under the Environmental Planning and Assessment Act 1979 (EPA Act), various approval bodies were forwarded copies of the development application and invited to provide general terms of approval to the council. One of the approval bodies was the Environment Protection Authority (EPA). 29 By letter dated 1 August 2003, the EPA requested additional information and expressed concerns about Snowy Hydro's proposed water quality guidelines. Snowy Hydro replied by letter dated 18 September 2003. 30 On 7 October 2003, representatives of the EPA and Snowy Hydro met. They discussed Snowy Hydro's proposed water quality guidelines. There was no agreement in respect of that issue. The parties agreed that the EPA would nevertheless issue its general terms of approval for the purposes of the assessment of the development application. 31 By letter to Snowy Hydro dated 3 December 2003, the EPA issued its general terms of approval. They were provided by the EPA in contemplation of like conditions being inserted in the environment protection licence by way of licence variation. In respect of discharges to downstream waters, conditions 2.1.2 and 3.2 of the general terms of approval specified discharge limit points to the Snowy River immediately downstream of each "pollution control structure that discharges" from the Jindabyne Dam and spillway premises, to which a discharge concentration limit of 30mg/L of TSS applied. That was a more stringent water quality criterion than Snowy Hydro's previously proposed 150 NTU (see [26] above). I do not consider that the silt curtain (located downstream of the plunge pool and coffer dams) could be described as a "pollution control structure that discharges" from the premises. 32 By letter dated 20 January 2004, Snowy Hydro responded to the EPA's general terms of approval and re-addressed the issue of the proposed turbidity guideline. 33 On or about 28 January 2004, representatives of the EPA and Snowy Hydro met to discuss outstanding issues with respect to the general terms of approval, including the issue of water quality. At the meeting, it was agreed that:

(1) the discharge limit to the Snowy River was to be 30mg/L TSS plus background. (2) " background " was to be determined by monitoring at a number of defined locations. These sites were to be agreed between Snowy Hydro and EPA at a subsequent site visit. (3) the water quality of Lake Jindabyne, in which works were being carried out, would not be limited by a discharge limit. Rather, best management practice was to be employed. (4) NTU would be used as an internal measure to determine the effectiveness of internal site controls but TSS would be used on the licence discharge point. 34 On or about 12 February 2004, EPA and Snowy Hydro representatives attended the area in the vicinity of the Jindabyne Dam and agreed on three sites to represent the ambient measurement of suspended solids for the purposes of condition 3.2 of the general terms of approval. 35 The EPA issued its final (amended) general terms of approval on 16 February 2004. They were relevantly in the same terms as the general terms of approval referred to above, although the discharge limit was stated to be 30mg/L of TSS "plus ambient background". 36 On 17 February 2004, the council issued its development consent to Snowy Hydro for the spillway upgrade and outlet works. The EPA's general terms of approval were incorporated in the consent. Environment protection licence 37 In 2004, Snowy Hydro's existing environment protection licence was amended so that it extended to, and imposed controls over, the carrying out of the spillway upgrade and outlet works. The definition of "premises" in the amended environment protection licence included the construction site downstream of the Jindabyne Dam wall where the plunge pool and the temporary coffer dams were to be constructed. The environment protection licence required the licensee to comply with s 120 of the POEO Act, except as may be expressly provided in any other condition of the licence. 38 The environment protection licence did not permit polluted waters to be discharged from the plunge pool outlet works into the Snowy River. The only point at which the licence permitted pollutants to be discharged to the Snowy River from the construction site was at Point 17, which was the final point for the treatment of stormwater retained on the site. Point 17 was located at the end of an erosion gully, flowing into the Snowy River from Sediment Basin No 3, a little downstream from the silt curtain. At Point 17 the licence permitted a 30 mg/L ambient percentile concentration of TSS. Environmental management plan 39 As with condition 6.6 of the EPA's general terms of approval, the amended environment protection licence included a condition (E4) requiring Snowy Hydro to prepare a construction management plan for the Jindabyne Dam spillway premises, which had to be provided to and approved by an EPA Regional Manager prior to the commencement of construction. The construction management plan was required to include: (a) a clear statement of the environmental construction objectives, and responsibilities for ensuring compliance; (b) detail of measures to mitigate construction impacts to meet the objectives; (c) a procedure for monitoring environmental construction impact levels on premises; (d) a procedure for improving performance and taking corrective action where monitoring indicated excessive noise or other pollution levels; (e) a Sediment and Erosion Control Plan; and (f) a Water Quality Control plan. 40 In June 2005, the environment protection licence was varied to remove condition E4, as the construction management plan had been submitted and approved by the EPA on 15 July 2004, as described below. 41 In May 2004 Snowy Hydro sent to the EPA a letter which enclosed what it described as an "Environmental (Construction) Management Plan as required under Consent Condition 6.6 of the EPA's General Terms of Approval for the above project (and draft amendment to the Environment Protection Licence…)". 42 That plan was in fact entitled "Environment Management Plan". It had been prepared by Belmadar, as required under its contract with Snowy Hydro. Snowy Hydro required an environmental management plan for all of its projects to identify the potential environmental impacts of a project, to assess the risks associated with those impacts and to describe how the impacts will be avoided or minimised.

43 The environmental management plan included a "Water Control Plan". The environmental management plan indicated that the contractor's construction activities had "the potential to impact on water quality both directly and indirectly", and that the plan's objectives were to both "limit erosion and sedimentation" and "limit impacts on nearby receiving waters". A safety measure which the environmental management plan required to be in place for the entirety of the project was as follows: A silt curtain will be positioned within Jindabyne Lake during the construction activities adjacent to water. The silt curtain will be erected to prevent sediment runoff into the Lake… The design implemented for the project is based upon industry standard which has been found effective in similar applications. Results of monitoring will determine if more controls are required. 44 There was no pollution incident in Jindabyne Dam involving sediment. As part of "General Mitigation Measures", the Water Control Plan also provided for "Silt curtaining [of] all the areas with a potential for receiving runoff" and "Constant risk assessment and taking pre-emptive actions to contain and address the risk of affecting the Water quality". In relation to the rock coffer dam, the Water Control Plan provided that the following practices were to be put in place: Silt curtain, within the reservoir around the perimeter of cofferdam will be provided. … Regular inspections of all erosion and sedimentation controls during the construction period will be undertaken to ensure their continued effectiveness. 45 The environmental management plan, at section 4.3.1, included a table under the heading "Water Quality Management Plan, Key Performance Indicators" which comprised information under three columns: "Parameter", "Threshold" and "Measurement Location". The table included an entry identifying turbidity as the parameter, identifying 12,000 MLd-1). Flood flows are much higher than the flushing flow of 300-1,200 MLd-1 over 8 days . Biological/ecological questions

(1) Were there any invertebrate data that indicated a change in community composition as a result of the sediment spill?

Against a background of an already degraded river it is difficult to determine a clear effect in the biota that could be attributed to the sediment spill in the pre-existing data and those collected after the spill.

Without prior degradation the methods employed would have been likely to have detected a short-term effect on stream invertebrates, especially close to the dam wall.

There was some change in the invertebrate community after the flushing flow that may be attributed to the flow but could also have been affected by normal seasonal changes.

(2) Was there any evidence for increases in invertebrate drift as a consequence of the sediment spill? No evidence because no data were collected during the spill.

(3) Was there any indication of sediment accumulation in riffle areas of the Snowy River? None observable that could be contributed to the sediment spill.

(4) Did the sediment spill have a major or minor effect on the invertebrate community? As noted in 1. above, at most minor and short term.

(5) What is the known effect of sediment addition on stream invertebrates from the literature? There is a lot of evidence in the scientific literature that sediment has marked detrimental effects on aquatic fauna, especially in cases of chronic sediment addition. However, several studies (including Australian studies) have shown short-term responses, both degradation and recovery.

(6) What is known about the condition of the invertebrate community condition in the Snowy River downstream of Jindabyne Dam before the sediment spill? The fauna immediately downstream of the Dam (several kilometres) has been shown to be degraded because of the dam, reduced flows and land use. Degradation continues further downstream also because of land use and lack of fencing of a degraded riparian zone. 159 The overall conclusion reached by the experts was: Given the pre-existing degraded state of the river, the investigations could not clearly detect environmental harm resulting from the sediment spill on aquatic invertebrate communities. Any effects are likely to have been minor and short term (<4 months) and short distance (upstream of Dalgety). There are indications that the flushing flow mobilized some sediment that had deposited from the spill and improved invertebrate communities. 160 Thus, the commission of the offence caused actual environmental harm. It is likely that between 4 and 11 tonnes of sediment was discharged into the Snowy River as a direct consequence of the commission of the offence, and a further 7 tonnes as a consequence of the release of the flushing flow as a measure to address the impact occasioned by the commission of the offence. The discharge of the sediment caused discernible pollution of approximately 15 kilometres of the Snowy River. The nature of the harm was degradation of the water quality and diminution in the aesthetic quality of the Snowy River.

161 By virtue of the offence having directly caused actual environmental harm, the offence is aggravated: Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278 at 294. 162 On the other hand, the environmental harm was minor, short term and over a relatively short distance on an already degraded section of the Snowy River. Although the degraded state of receiving waters is not a mitigating factor, it is relevant to the assessment of the harm or likely harm caused by the commission of the offence: Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299 at [149]; Environment Protection Authority v Hochtief AG and Thiess Pty Limited [2007] NSWLEC 177 at [19]. The prosecutor points out that the SEE which accompanied the development application noted that the platypus was recorded in 2003 in the pool and reed bed immediately downstream, suggesting that that environment had some quality of sensitivity. However, no platypus was recorded in the then current survey for the SEE. Nor was any mention made of the platypus in the experts' joint report, where one would expect to find a reference if it was a significant consideration as at the date of the incident. I am therefore disinclined to attach much weight to the platypus consideration. Also, it appears from information in a letter dated 18 September 2003 from Snowy Hydro to the council that the level of pollution was comparable with pollution caused by a serious storm event.

163 Although there was potential for greater environmental harm and notwithstanding that the pollution continued over some days, overall I consider that the environmental harm was in the relatively low range.

Practical measures 164 A factor which bears on the objective gravity of an offence is the practical measures that may be taken to prevent, control, abate or mitigate the harm to the environment: s 241(1)(b) POEO Act. This is related to the question of the extent of control that Snowy Hydro had over FRH and Snowy Hydro's control over the causes, which are considered at [19] - [24] above and [177] below. Snowy Hydro also relies on its overview submissions summarised at [128] above.

165 Snowy Hydro acknowledges that there were practical measures it could have taken to prevent the offence and in that regard refers to the evidence of Mr Jones. FRH did not supply Snowy Hydro with an incident report either as was required under the contract or as it undertook to do in respect of this incident. On the basis of its own investigation, Snowy Hydro says it has identified five root causes of the incident but submits they should have been properly addressed by FRH: (a) insufficient identification of the turbidity hazard, including from the plunge pool; (b) incorrect installation of the silt curtain and/or it was not appropriate for the hazard; (c) the excavation methodology for removal of the coffer dams; (d) the original construction of the coffer dams in the Snowy River channel; and (e) the need for the coffer dams to be removed in order to commission the outlet works.

166 In evidence, Mr Jones, Snowy Hydro's Superintendent, thought in retrospect that there were several possible ways in which the works could have been done so that turbidity did not enter the Snowy River. Mr Jones agreed with Messrs Mayhew and Enderby that the silt curtain was not properly sealed to the land and was not adequate during excavation works to retain turbidity caused by the works. As Mr Jones acknowledged in evidence, after the incident the combined action of two silt curtains and the riparian release were adequate to retain turbidity upstream of the silt curtains. I note that the degree to which multiple silt curtains, properly installed, reduce sediment migration may be discerned both by the photographs referred to by Christopher Alsop, a director of a company that, inter alia, designs and installs silt curtains, relating to other projects, and by the photo taken of the construction site on 17 August 2006 when three silt curtains were in place spaced some distance apart. Mr Jones conceded that Snowy Hydro contributed to the pollution event and its continuation in two general ways: (a) it was not aware of and did not adequately consider the proposed outlet channel methodology. If it had, it is likely that another methodology would have been chosen. If a formal detailed methodology and associated risk assessment had been requested and obtained by Snowy Hydro, Mr Jones acknowledges that from examination of the outlet channel, he would have picked up that FRH was going to excavate the outlet channel in a different sequence from that which he had understood; and

(b) its employees either misunderstood or were unaware of the turbidity limits applying to the Snowy River. 167 When asked in cross-examination why Snowy Hydro decided to go ahead and connect the plunge pool to the Snowy River when the waters of the plunge pool were turbid, Mr Jones' frank answer was that he didn't believe they had really thought in detail about that issue and had not considered that the waters in the plunge pool would flow out. He said that was part of the lesson learnt: that they had not appropriately identified the turbidity hazards and then how they would affect the Snowy River.

168 Snowy Hydro concedes that (a) it did not require or receive from FRH any method statement, risk assessment or turbidity management plan for the plunge pool commissioning works and that (as far as it is aware) FRH did not prepare any such document; and (b) that (apart from observing that the silt curtain was in place) it did not check or assess the silt curtain before those works were commenced nor, so far as it is aware, did FRH.

169 Christopher Alsop gave expert evidence for the prosecution, which I accept. Mr Alsop produced photographs showing the effectiveness of two silt curtains to control the escape of sediment and turbidity into a waterway on other projects. Mr Alsop considered that for a project of this nature there should have been a risk assessment which included a management plan and establishment of controls. Simple controls which he says would probably have reduced the turbidity generated to a non-visible level - but which were absent in the present case - include an impermeable skirt to prevent particles passing through the silt curtain; aggregate filled tubes sewn to the vertical ends of the silt curtain contoured to the banks on each end to seal against leakage around the ends; and removal or limitation of the influence of agitation sources (from the riparian flow).

170 The prosecutor submits, and I accept, that Snowy Hydro could and should have taken the following simple, practical measures: (a) preparation of proper design drawings for the plunge pool outlet channel. Had this occurred, then both Snowy Hydro and the contractor would have had a better understanding of the extent of excavation - and, in particular, wet works - required in order to construct that channel; (b) defer the connection of the plunge pool to the Snowy River until such time as steps had been taken to: (i) significantly reduce the level of turbidity in the plunge pool; and (ii) ensure that controls were in place downstream which would prevent pollution of the downstream waters of Snowy River; (c) direct the contractor not to carry out work until such time as there had been a proper risk assessment as was required under the contract and method statement provided by the contractor in respect of the works, and until such time as Snowy Hydro could be properly confident that controls were in place downstream which would prevent pollution of the downstream waters of the Snowy River. A proper risk assessment should have included an assessment of the risks associated with the earlier task of filling the plunge pool with waters discharged from the intake tower via the submerged discharge valve. 171 The sole sediment control measure downstream was a silt curtain, which was demonstrably ineffective. It should have been apparent on inspection that it was not properly installed or secured to the river banks so as to prevent sediment migration. This is apparent from the photos taken of it on 1 August 2006. Indeed, it was adjusted on 1 and 2 August 2006. Only one silt curtain was in place until 2 August when a second curtain was installed which, with the readjustment of the first curtain, was effective to contain the sediment. As discussed earlier, multiple silt curtains, properly secured, are highly effective to reduce migration of sediment downstream.

172 Snowy Hydro's failure to take practical measures and to exercise control over the causes (see below) sits unhappily with its declaration in the contract that pollution in the Snowy River was a "major concern" to Snowy Hydro and that its Superintendent would rigorously enforce soil conservation and erosion controls.

Foreseeability of risk of harm 173 A factor bearing on the objective gravity of the offence is the extent to which the offender could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence: s 241(1)(c) POEO Act.

174 There was actual harm to the environment by the commission of the offence, albeit minor, short term and over a relatively short distance of the Snowy River: see [158] - [163] above. As Mr Jones agreed in cross-examination, there was no more crucial time in the life of this project in terms of potential for pollution of the downstream Snowy River than the time of connection of the plunge pool to the Snowy River. Although Mr Jones added the rider "in hindsight", in my view Snowy Hydro could and should have foreseen that the removal of the coffer dams could result in the release of sediment into the Snowy River below the silt curtain, thus causing harm to the environment. The absent prior risk assessment should have identified the risk, which eventuated. By 29 July 2006, it was obvious that the plunge pool was turbid and virtually full. By that date there was a high risk that the connection of the plunge pool to the downstream river would have the consequence that turbid water in the plunge pool would migrate downstream. It was also apparent prior to the connection of the plunge pool to the Snowy River that the silt curtain was not working in such a way as to prevent the downstream migration of suspended sediment.

175 Snowy Hydro submits that it reasonably relied on FRH to prevent the risk eventuating. I have earlier expressed the opinion that it should not have placed such reliance on FRH and should have exercised greater control and supervision. The potential for this type of harm was identified by the SEE which accompanied the development application. That potential was expressed in the specifications to the contract to be of major concern to Snowy Hydro such that the contractor was put on notice that the Superintendent would rigorously enforce the requirements for soil conservation and erosion control. Control over the causes 176 A factor bearing on the objective gravity of the offence is the extent to which the offender had control over the causes that gave rise to the offence: s 241(1)(d) POEO Act.

177 Snowy Hydro submits that in the following circumstances its control over the causes of the offence should be assessed at the lowest end of the scale: (a) FRH had control of the construction site, it had prepared the environmental management plan (which Snowy Hydro understands contained a risk assessment), and it was responsible for supplying and maintaining environmental controls, including the silt curtain or curtains, as an effective environmental control; (b) FRH was contractually responsible for ensuring compliance with regulatory requirements and for performing the works in an environmentally responsible manner; (c) it follows that Snowy Hydro, as a matter of contractual obligation and fact, had no control over the procurement, deployment and maintenance of the silt curtain; (d) the coffer dams being temporary work, FRH was responsible for their design, construction and removal; (e) on the other hand, Snowy Hydro acknowledges that it had relatively unfettered access to the site, it approved the environmental management plan, it had the contractual power to approve proposals for temporary works and the contractor was obliged to prepare method statements; (f) in practice, however (i) Belmadar/FRH was retained because of its experience and skills in performing construction works; (ii) the incident occurred at the very end of a productive and successful principal - contractor relationship such that by the time of the incident Snowy Hydro was directive only to the extent that it was necessary to achieve the required dimensions of the outlet channel; (iii) the temporary work likely to be considered in detail by Snowy Hydro were those with a potential to impact on the quality of the permanent works; (iv) Snowy Hydro never received proposals for the construction of the coffer dams; (v) Snowy Hydro never requested nor received a written proposal for the removal of the coffer dams, nor a work method statement or risk assessment; (vi) Snowy Hydro was not informed that FRH would remove the rock coffer dam before the clay coffer dam; (g) Snowy Hydro should have obtained a contractor's risk assessment which addressed the risk of sediment going downstream from the excavation works and the plunge pool, as well as the controls needed to prevent pollution from either source; (h) there is a distinction between control which in hindsight it could have exercised over FRH under the contract, and control which as a matter of practical reality it was able to exercise having regard to the scale of the project and the relationship with the contractor which had evolved over the life of the project. The quality of the relationship was informed by a previous, successful experience in which FRH deconstructed a temporary clay coffer dam in Lake Jindabyne. Snowy Hydro's failure to request FRH to provide a detailed methodology for the removal of the subject coffer dams was a measure of its confidence in FRH; (i) in light of the relationship between Snowy Hydro and FRH, Snowy Hydro had little, if any, practical control over the removal of the coffer dam; (j) Snowy Hydro accepts that it became aware on Monday 31 July 2006 of discoloured water downstream of the silt curtain and that it was a failing in its system for that knowledge not to have been transmitted to its construction manager, Mr Mayhew. However, inspections and sampling showed no real cause for concern. It was not until 3pm on Tuesday 1 August that increasing discolouration downstream became apparent to senior Snowy Hydro personnel. From this time Snowy Hydro increased its supervision. That evening Mr Jones directed that works were to continue in a way that did not send turbidity down the Snowy River and that the scope of the work could be modified if it became apparent that there was a risk that that would occur. That was reasonable; (k) when, on the morning of 2 August 2006 it because apparent that the additional controls implemented by FRH were ineffective, Snowy Hydro acted properly to stop all work below water. 178 In my opinion, Snowy Hydro had adequate control, both as a contractual right and as a practical reality, to prevent works from being carried out that caused pollution to the Snowy River. Its contractual powers are summarised at [19] - [21] above. Its Superintendent had power to require a method statement and risk assessment, to suspend works and to give directions. Its contract with FRH noted that pollution was of "major concern" to it and that the Superintendent would enforce the requirements for soil conservation and erosion controls "rigidly". The plunge pool commissioning works posed an obvious pollution risk which required close attention by Snowy Hydro. 179 Having regard to (a) Snowy Hydro's obligations under its environmental protection licence not to pollute the Snowy River; (b) its express contractual declaration that pollution was of major concern to it; (c) the degree of contractual control which Snowy Hydro was able to exercise; (d) its degree of involvement in relation to the works; and (e) the critical importance of the plunge pool commissioning works in terms of the pollution risk that it posed, I consider that Snowy Hydro should have exercised close supervisory control over the design, methodology, risk assessment and implementation of the works. At discussed earlier, that includes obtaining and approving a method statement and risk assessment before the work was carried out. It is not a sufficient answer to say that Snowy Hydro's prior experiences with FRH, including the earlier removal of another coffer dam to the intake channel in Lake Jindabyne, had engendered confidence. That earlier removal was different because on that occasion there was nothing equivalent to the riparian flow, the turbid waters of the plunge pool and the connection to the Snowy River. Moreover, the removal of the clay coffer dam in Lake Jindabyne was not as uneventful as Snowy Hydro has suggested in that the turbidity of the plunge pool was, or was likely to have been, due to that removal (see [53] above). Reasons for commission of offence 180 The objective seriousness of an offence may also be measured by reference to the reasons for its occurrence: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 per Badgery-Parker J. There were no deliberate, commercial reasons for the commission of the offence. The systems which Snowy Hydro had in place at the time in relation to its supervision of FRH were deficient. Conclusion 181 Overall, I conclude that Snowy Hydro's offence is of moderate objective seriousness. SUBJECTIVE FACTORS State of mind of offender 182 A relevant subjective factor in a strict liability offence such as this is the state of mind of the offender: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [201] - [208]; Hardt v Environment Protection Authority (2007) 156 LGERA 337 at [53]. Snowy Hydro did not intend to pollute the Snowy River. Ironically, it was engaged in the tasks of rejuvenating the degraded Snowy River, in respect of which it was otherwise successful. It thought that there were adequate environmental controls in place and the polluting event took it by surprise.

Awareness of its contractual powers 183 Snowy Hydro was aware of its contractual powers, which are analysed at [20] - [21] above.

184 Snowy Hydro submits that FRH caused the pollution, that it expected FRH to adopt best practice in its removal of the coffer dams and reasonably relied on FRH not to pollute the Snowy River. Snowy Hydro submits that FRH did not adopt best practice because (a) contrary to Snowy Hydro's expectation, FRH worked from downstream of the coffer dams which increased rather than minimised the time works were being conducted in water, thus generating turbidity; and (b) FRH failed to ensure that the silt curtain being relied upon as the environmental control (with the riparian flow) would be effective. As indicated earlier, in my opinion Snowy Hydro should have exercised considerably greater supervisory power over FRH and it was not reasonable for it to have placed such a degree of reliance on FRH. Awareness of terms of environment protection licence 185 Snowy Hydro's environment protection licence did not permit discharge of pollutants into the Snowy River (save for permitting discharge of treated water from Point 17, being a point located downstream of the construction site at the end of an erosion gully flowing into the Snowy River from Sediment Basin No 3).

186 At the time of the offence, Snowy Hydro, via its Environmental Officer, had a mistaken belief that there was no specific water quality limit downstream of the silt curtain and that a turbidity limit of 150 NTU applied internally on sites including the waters of the Snowy River upstream of the silt curtain. He understood, correctly, that a 30 mg/L TSS plus background limit applied to stormwater discharging from Sediment Basin 3 to the bottom of the erosion gully downstream from the silt curtain. In cross-examination, Mr Jones indicated that his belief at the time was that there could be a release to the Snowy River of sediment laden water up to a concentration of 150 NTU. He agreed that was a very fundamental misunderstanding of Snowy Hydro's environmental protection licence. Snowy Hydro attributes its mistaken belief, in part, to confusion and lack of clarity as to parameter and threshold between 150 NTU and 30 mg/L TSS and, in part, to a belief that the EPA provided that best practice was to apply to works in the River. Snowy Hydro points out that in 2004 and 2005 EPA officers inspected the rock coffer dam, made no adverse comment and reported that the pollution control structures appeared to be operating consistently with the licence.

187 However, in my opinion, Snowy Hydro should have understood the terms of its environmental protection licence. Indeed, in correspondence in 2003 the EPA had declined to accede to Snowy Hydro's proposal that there should be a discharge limit to the Snowy River of 150 NTU. I do not go so far as to accept the prosecutor's submission that its mistaken belief was capricious. However, in the circumstances, I do not consider that a mistake such as this by a large, well resourced entity such as Snowy Hydro is excusable. It is not a mitigating factor. Awareness of the SEE 188 The SEE accompanying the development application referred to, and Snowy Hydro was therefore aware of, the following: (a) the Snowy River Inquiry had identified the relevant section of the Snowy River downstream from the Jindabyne Dam as highly degraded (p 118); (b) potential adverse impacts included potential erosion and sedimentation during and immediately following activities that disturb the land surface or are carried out within water bodies, and that such impacts are of particular importance as the works would be undertaken adjacent to and within Lake Jindabyne and the Snowy River (p 119); (c) potential impacts would be minimised by the contractor's preparation of, and adherence to, an environmental management plan and the implementation of water quality controls in a sediment and erosion control plan; and (d) the SEE proposed specific mitigation measures to minimise potential impacts of the proposed development on the platypus " to control soil loss at the construction site and minimise any associated increases in water turbidity downstream - blanketing sediments can be particularly harmful to aquatic invertebrates (an important food source for the platypus) ". Awareness of requirements for plunge pool connection 189 Snowy Hydro was aware that the connection of the plunge pool to the Snowy River would necessitate the removal of the coffer dams and earthen material. It was aware that this was a critical time in respect of potential pollution for the Snowy River because the connection would create a conduit between the construction site and downstream waters after a long period of physical separation. Despite this, there was apparently no plan prepared in relation to the plunge pool outlet channel.

190 Snowy Hydro was aware that (a) no detailed design had been prepared in respect of the permanent outlet channel connecting the plunge pool and the Snowy River; (b) the contractor had not submitted a method statement or construction procedure for the removal of the coffer dams and the connecting channel; and (c) no written risk assessment had been carried out in relation to those works.

191 Snowy Hydro was also aware that it had the contractual powers, through its Superintendent, to demand from FRH a method statement and a risk assessment for the works relating to the removal of the coffer dams and that it did not exercise that power. It was also aware that it had power to give directions to FRH in relation to those works including in relation to prevention and control of pollution. It did not exercise that power until Wednesday 1 August.

Awareness of turbidity of plunge pool waters 192 Between 21 and 29 July 2006 Snowy Hydro operated the submerged discharge valve and thereby released a large volume of highly turbid water into the plunge pool. This changed the colour of the plunge pool from light green to a muddy brown. That was obvious to Snowy Hydro who knew the pool would soon be connected to the downstream river. Awareness of sediment control - one silt curtain 193 For a considerable period prior to connection of the plunge pool waters and the downstream river, Snowy Hydro was aware that the only sediment control in place was one silt curtain (which was doubled over). 194 An email of 15 September 2004 from Mr Endersby (Snowy Hydro) to Mr Macklin (then of Belmadar, now of FRH) indicates that Snowy Hydro was aware that there had been problems with respect to water quality downstream of the rock coffer dam in September 2004 and had at that time agreed with Belmadar for the installation of an additional silt curtain. A photograph taken in August 2004 in that location appears to show only one silt curtain in that location. A photograph taken on 22 September 2004 appears to show two silt curtains in that location. The prosecutor submits that there should be imputed to Snowy Hydro a perception in 2004 that one silt curtain was inadequate. On the evidence, this appears to be correct. Awareness of pollution: 29 July - 2 August 195 On Saturday 29 July 2006, Snowy Hydro knew that FRH had commenced the process of removing the physical barriers between the plunge pool and the Snowy River, that this process would continue into, and be completed, the following week, and that FRH would continue the works on the following day. On Sunday 30 July, because Snowy Hydro had no one on site, it was not aware of the commission of the offence on that date and did not know that the contractor would be removing the rock coffer dam on that date. By the morning of Monday 31 July 2006, Snowy Hydro, at least through its site inspector Ian McCann, was aware: (a) that most of the rock coffer dam had been removed; (b) that works had already commenced that morning by the time Mr McCann arrived at 7.30am and wet works were underway (i.e. excavation within the Snowy River channel at the point where the rock coffer dam was located); (c) that this work had been carried out on the previous day; (d) that there had been an incident involving discoloured water entering the Snowy River on Sunday 30 July; and (e) that there was discolouration of the Snowy River both upstream of the silt curtain and, to a lesser extent, downstream of the silt curtain. 196 By the afternoon of Monday 31 July Snowy Hydro was aware that: (a) excavation works continued all that day, with discolouration downstream continuing to increase as the day progressed - later in the day becoming quite turbid; (b) the silt curtain was not preventing the migration of turbid waters from the construction site into the waters of the Snowy River downstream of the silt curtain.

197 By the morning of Tuesday 1 August, Snowy Hydro knew that the rock coffer dam had been removed and excavation works, including wet works, were continuing with the expectation that the plunge pool would be connected to the Snowy River. It was aware from early morning that there was slight discolouration in the water of the Snowy River downstream of the silt curtain. It knew that the only control in place in the Snowy River was a single silt curtain. By around 9:30 or 10:00am, Snowy Hydro was aware of a complaint from Mr Hodges, a property owner with Snowy River frontage some 3 kilometres downstream of the construction site that there was muddy water in the Snowy River at that location, and had cause to believe that this was a consequence of the works. By 10:50am, Snowy Hydro knew that the waters in the plunge pool - soon to be connected to the downstream waters of Snowy River - had a turbidity reading of 250 NTU.

198 It is clear, therefore, that prior to the completion of the excavation of the plunge pool outlet channel, and while the plunge pool and downstream river were still separated, Snowy Hydro knew that the silt curtain was not adequately controlling the migration of sediment downstream. It must have been aware that the continuation of excavation and the connection of the plunge pool to the Snowy River would be likely to cause further pollution of waters. Nevertheless, it continued with the plan of connecting the plunge pool to the river. After the plunge pool was connected to the Snowy River at about midday on 1 August, and the water levels of the Snowy River and plunge pool had equalised, it was aware that the downstream waters of the Snowy River became progressively more polluted. Nevertheless, it permitted excavation works to continue.

199 By Wednesday 2 August, Snowy Hydro was aware that there had been a serious pollution incident. But works continued for some hours that morning. Eventually, Mr Mayhew, the Snowy Hydro Construction Manager, directed FRH to stop works at approximately 10:00am. This direction was made because it was considered by Snowy Hydro that the contractor was not meeting its requirement under the contract to do its work without harm to the Snowy River. It was a tardy direction given that the harm being caused to the Snowy River by the works was apparent by 31 July 2006 and was obvious by 1 August 2006. The direction appears to have coincided with the works having been completed. Prior good character 200 Snowy Hydro's lack of prior convictions and good character are mitigating factors: Crimes (Sentencing Procedure) Act 1999, s 21A(3)(e) and (f); Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at 271 [251]. Snowy Hydro is a good corporate citizen and has made a substantial contribution to the local communities in which it operates and the environment of the Snowy Mountains region. Plea of guilty 201 Snowy Hydro's guilty plea is a mitigating factor: Crimes (Sentencing Procedure) Act 1999, s 21A(3)(k). It was entered at the earliest possible moment. It is common ground that this should be reflected by discounting the penalty it would otherwise incur by the full amount of 25 percent allowed for early pleas: R v Thompson; R v Houlton (2000) 49 NSWLR 383. Remorse 202 Remorse is a mitigating factor to be taken into account in accordance with s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, which provides: (3) The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:…

(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),… 203 Snowy Hydro has expressed remorse which demonstrates that it has genuine insight into how it came to offend, has provided evidence that it has accepted responsibility for its actions and has acknowledged the damage caused. Its remorse in these circumstances is a mitigating factor under s 21A(3)(i). Its expressions of remorse have weight given that they were expressed to all employees by the chief executive officer of Snowy Hydro who told them that the incident was totally unacceptable, and were expressed in evidence by a senior executive officer, Mr Jones, who with other executive officers were present during the sentencing hearing: Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299 at 338 [214]. The early guilty plea is also a demonstration of remorse. Snowy Hydro has also demonstrated remorse by its conduct in response to the incident. It adopted a pro-active approach to the EPA's clean up notices and dedicated substantial resources to mitigating the effect of the pollution on the Snowy River. It has made efforts to analyse what went wrong, what can be done to prevent the offence recurring and has implemented the lessons learnt in its programs and procedures. These matters should be reflected in a significant discount on penalty.

Cooperation with authorities 204 Snowy Hydro cooperated to a high degree with the investigation of the offence and its own prosecution. This should be reflected in a significant discount on penalty: Crimes (Sentencing Procedure) Act 1999, s 23(1). Hardship already suffered 205 Hardship suffered by an offender as a result of an offence may be taken into account: R v Daetz (2003) 139 A Crim R 398; R v Webb (2004) 149 A Crim R 167. Snowy Hydro submits that it has incurred considerable costs and devoted significant time and energy to addressing this matter. I would not characterise that as "hardship", given Snowy Hydro's size and resources, but I think it should be taken into account. GENERAL DETERRENCE 206 The purposes for which a court may impose a sentence includes deterring others from committing similar offences: s 3A(b) Crimes (Sentencing Procedure) Act 1999. In Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [139] - [140] Preston CJ said (citations omitted): 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.

This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines. 207 A fine needs to be large enough to make it worthwhile that the cost of precautions be taken, to outweigh any gains and so as not to appear as a mere licence fee for illegal activity: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359-360; Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299 at 341 [229]; Environment Protection Authority v Sell & Parker (2006) 149 LGERA 209 at 215 [26].

208 Snowy Hydro submits that general deterrence is of limited relevance because the nature of its business is, and the infrastructure in this case was, unusual. 209 In my opinion there is still a need for a firm general deterrent. The penalty should act as a general deterrent for others who are involved in earthen and construction activities with potential water pollution consequences, even if their activities are of a different nature and scale.

INDIVIDUAL DETERRENCE 210 The purposes for which a court may impose a sentence includes deterring the defendant from committing similar offences: s 3A(b) Crimes (Sentencing Procedure) Act 1999. The conduct of Snowy Hydro, particularly after the incident, satisfies me that individual deterrence is not a particularly weighty consideration. It has gone to considerable efforts to analyse what went wrong and to ensure that nothing like this happens again. It has demonstrated considerable insight into its offending.

211 Since the incident, Snowy Hydro has amended its written procedures (which will be applied to new projects), inter alia, to ensure that contractors conduct risk assessments; that Snowy Hydro reviews safe work method statements for all high risk activities and other activities such as preventing pollution to a water course; that it regularly reviews risks during the life of the project; and that its employees have an adequate understanding of environmental consent conditions (such as the turbidity limits applying to the Snowy River).

212 I do not take into account that FRH gave Snowy Hydro contractual indemnities and that Snowy Hydro has claimed on FRH under the indemnities arising from this incident. That is because (assuming that this would otherwise be a permissible consideration) I do not know whether FRH is able to successfully dispute any claim by Snowy Hydro under the indemnities: cf Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd [2007] NSWLEC 466 at [165] (Lloyd J). DAILY PENALTY 213 As noted above at [154], the prosecutor does not press for and I do not propose to impose a daily penalty. The penalty should, however, take into account that the offending occurred on all four days during which the pollution event occurred. EVEN-HANDEDNESS AND PARITY 214 Consistency in sentencing is an important objective in a rational and fair system of criminal justice: R v Henry (1999) 46 NSWLR 346 at [12] per Spigelman CJ. In Markarian v The Queen (2005) 228 CLR 357 at 371 the High Court held that: "[T]here is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies" (footnotes omitted). Regard should be had to comparable cases to see if they disclose a general pattern of sentencing: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (CCA) at 701-702. However, it is sometimes difficult with environmental crimes to obtain guidance from decisions where sentences have been imposed for the same type of offence. This is because of the wide range of factual circumstances comprising environmental offences and the need to tailor sentences to the individual circumstances of the case. In that context, in Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312 [35] the Court of Criminal Appeal held that: "Even discriminating reference [to other cases] is likely to be of no utility because the facts in cases such as the present will almost always be peculiar to the individual case".

215 An additional complicating factor when comparing other decisions in the case of environmental crime is the frequency with which the maximum sentences have increased. In R v Hoerler (2004) 147 A Crim R 520 at 529 [35] Spigelman CJ said: Prior cases and Judicial Commission statistics do not often determine a range appropriate for a particular offence. They reflect what was regarded as appropriate in the wide variety of circumstances of those particular prior cases. Whether or not a sentencing pattern can be said to have emerged requires consideration of the whole body of sentences. It is unlikely that any such pattern can be said to have been established unless there have been a significant number of cases covering a wide variety of objective circumstances. Unless that is so, the cases would not encompass the relevant range of objective criminality.

216 Sentencing statistics for criminal matters dealt with by the Land and Environment Court are now available in graphical form on the Judicial Information Research System (JIRS). I have been referred to JIRS statistics for offences against s 120(1) of the POEO Act in 35 cases between 2002 and 2008. Eighty percent of the fines were in the range of $10,000 to $60,000, with the mid-point about $30,000. I was also referred to JIRS statistics for 17 cases in that period where the levels of environmental harm were found to be low: 80 percent of those fines were in the range of $20,000 to $60,000. However, in both sets of statistics most of the fines were imposed before the maximum penalty was increased fourfold on 1 May 2006.

217 The JIRS database was interrogated as to cases with the following characteristics: co-operation, contrition, prior good character, costs awarded, early guilty plea, low objective seriousness, foreseeable harm to the environment, practical measures, control over causes, negligence and low environmental harm. The result yielded only one case, which was Environment Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831, in which a s 250(1)(e) order of $50,000 was imposed. That case was discussed at [156] above, as were Environment Protection Authority v Nowra Chemical Manufacturers Pty Ltd [2008] NSWLEC 187 (s 250(1)(e) order of $100,000) and Environment Protection Authority v CSR Building Products Limited [2008] NSWLEC 224 (fine of $280,000). All were cases of tier 2 offences where the sentences were imposed after the maximum penalties were increased in 2006. The circumstances of these cases were so different that they provide little assistance in the present case.

218 I was referred to a number of other cases of pollution of waters caused by introduction of soil or sediment from construction activities decided between 1994 and 2006: Environment Protection Authority v G. Pezzimenti & Sons Pty Ltd [1994] NSWLEC 6 (Pearlman J); Environment Protection Authority v Gosford City Council (1997) 95 LGERA 338 (Pearlman J); Environment Protection Authority v Taylor Woodrow (Australia) Pty Ltd (No 2) (1997) 97 LGERA 368 (Lloyd J); Environment Protection Authority v Barclay Mowlem Construction Ltd [1998] NSWLEC 304 (Talbot J); Environment Protection Authority v Daryl McCarthy Constructions Pty Ltd [2000] NSWLEC 223 (Bignold J); Environment Protection Authority v Duke Eastern Gas Pipeline Pty Limited [2002] NSWLEC 84 (Cowdroy J); Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732 (Preston CJ). In about half, the penalty imposed was 10 percent or more of the maximum penalty. These cases have been of limited assistance given the different and unusual circumstances of the present case and the need to tailor sentences to individual circumstances.

219 I have had regard to the sentence which I am concurrently imposing on FRH in my separate judgment. After allowing for differing circumstances and the differences in the evidence, I have concluded that the same sentence should be imposed on both Snowy Hydro and FRH.

CONCLUSION 220 In my opinion, in all the circumstances, and after discounting for all mitigating factors including a 25 percent discount for the early plea, the appropriate sentence is a fine of $100,000. Snowy Hydro has agreed to pay the prosecutor's costs of the proceedings in the agreed sum of $84,289.00 and the prosecutor's investigations costs under s 248 of the POEA Act in the agreed sum of $1,897.50. 221 The orders of the Court are as follows:

1. The defendant is convicted of the offence as charged. 2. The defendant is fined the sum of $100,000. 3. The defendant is to pay the prosecutor's costs of the proceedings agreed in the sum of $84,289.00. 4. The defendant is to pay the prosecutor's investigation costs under s 248 of the Protection of the Environment Operations Act 1997 agreed in the sum of $1,897.50. 5. The exhibits may be returned.

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