Environment Protection Authority v Visy Pulp and Paper Pty Ltd

e v The Queen [1989] HCA 33; (1989) 167 CLR 348 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v Dodd (1991) 57 A Crim R 349 R v Nichols (1991) 57 A Crim R 391 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Visy Pulp and Paper Pty Ltd (Defendant) Representation: Counsel: A McGrath (Prosecutor) T Howard SC (Defendant)

Solicitors: Environment Protection Authority (Prosecutor) MinterEllison (Defendant) File Number(s): 2023/338213; 2023/338215; 2023/338216; 2023/338217 Publication restriction: Nil

Visy Paper and Pulp Pty Ltd Pleads Guilty to One Water Pollution Offence and Three Breach of Licence Offences

1. The defendant, Visy Paper and Pulp Pty Ltd ("Visy"), has pleaded guilty to four offences against the Protection of the Environment Operations Act 1997 ("the POEOA"), including: 1. one offence contrary to s 120(1) of the POEOA for the unintentional discharge of wastewater into Sandy Creek on 27 and 28 October 2022 ("the pollution offence"); 2. one offence contrary to s 64(1) of the POEOA for contravening condition O4.8 of its Environment Protection Licence 10232 ("licence") by failing to obtain the Environment Protection Authority's ("EPA") prior approval for the subsequent flushing discharge into Sandy Creek on 28 October 2022 ("the approval offence"); and 3. two offences contrary to s 64(1) of the POEOA for contravening condition M8.1 of its licence by failing to continuously monitor the volume of liquids discharged into Sandy Creek on 27 and 28 October 2022, because the flow meter was broken ("the monitoring offences").
2. The relevant statutory provisions creating the offences are: 64 Failure to comply with condition (1) Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence. … 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence. Note - An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation - see section 169. (2) In this section - pollute waters includes cause or permit any waters to be polluted.
3. The dictionary to the POEOA contains the following relevant definitions: water pollution or pollution of waters means - (a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or (b) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or … waters means the whole or any part of - (a) any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or (b) any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water.

Visy Carries Out Paper and Pulp Production

1. Visy carries out the scheduled activity of paper and pulp production under its licence at its plant located at 1302 Snowy Mountains Highway Tumut NSW 2720 ("the property"). Visy has held the licence since 30 June 2000.
2. The licence contained the following relevant conditions: O4.8 Prior to any discharge to Sandy Creek, approval in writing must be obtained from the EPA. This application for discharge must be submitted to the EPA at least two weeks before the requested start date for discharge. M8.1 For each discharge point or utilisation area specified below, the licensee must monitor: a) the volume of liquids discharged to water or applied to the area; …
3. The property consists of a mill and a water treatment plant. At the mill, Visy processes wood and recyclable paper to make pulp, which is turned into paper. This process produces wastewater that is sent to the water treatment plant for treatment. Once treated, it is then reused by Visy in various ways.
4. There were three relevant water storage dams in the water treatment plant at the property, including: 1. a six megalitre untreated wastewater storage dam ("6 Meg Dam"), which was used for temporary storage of untreated wastewater; 2. a 2.5 megalitre treated wastewater storage dam ("2.5 Meg Dam"), which was used for temporary storage of treated wastewater before it was reused in the pulp and paper production process; and 3. a 480 megalitre dam known as the "Winter Storage Dam" ("WSD"), which was used for storage of treated wastewater before it was reused for irrigation purposes.
5. There was a discharge point into Sandy Creek, referred to on the licence as Licence Discharge Point 9 ("the discharge point"). Under the licence, Visy is permitted to discharge treated wastewater from the WSD in circumstances where the WSD is likely to overflow, such as in periods of heavy rainfall. Condition O4.8 of the licence requires Visy to obtain approval from the EPA before discharging wastewater via the discharge point to Sandy Creek.
6. A system of pipes, valves and pumps connects the dams and moves wastewater around the property and to the discharge point. At the time of the offences, the same pipe was used to transfer wastewater to and from both the 2.5 Meg Dam and the 6 Meg Dam, with valves used to isolate the relevant dam.

Untreated Wastewater Is Discharged Into Sandy Creek

1. On the evening of 27 October 2022, Visy operators at the water treatment plant were carrying out the following wastewater transfers: 1. untreated wastewater was transferred from the 6 Meg Dam to the mill evaporation plant area to be evaporated ("the first transfer"); 2. treated wastewater was transferred from the 2.5 Meg Dam to the mill to be used in cooling towers; and 3. treated wastewater was transferred from the 2.5 Meg Dam to the WSD ("the third transfer").
2. Following the first transfer, a valve at the 6 Meg Dam was left open ("6 Meg Valve"). Visy operator, Paul Schubert, did not check that the 6 Meg Valve was closed after the first transfer. This meant that untreated wastewater from the 6 Meg Dam was released and mixed with treated wastewater from the 2.5 Meg Dam during the subsequent transfers. Further, a second valve, known as a butterfly valve, which isolates the system from the discharge point, malfunctioned, such that it was partially open and allowed for some of the wastewater that was being transferred to the WSD in the third transfer (which included untreated wastewater from the 6 Meg Dam) to be discharged via the discharge point to Sandy Creek ("the unintentional discharge").
3. On 28 October 2022, at approximately 4 am, the unintentional discharge was identified when Visy manufacturing manager, Daniel Louwrens, realised that the level of wastewater in the 6 Meg Dam was lower than it should be. He called Visy shift supervisor, Paul Calonne. Calonne investigated and realised that the 6 Meg Valve had been left open. A Visy operator then closed the 6 Meg Valve.
4. Following its closure, Louwrens and Schubert went to conduct further investigations at the WSD. While in the vicinity of the WSD, Louwrens heard a high-pitched noise which caused him to inspect Sandy Creek. He observed foam in Sandy Creek and smelled a black liquor odour, which indicated that untreated wastewater had made its way into Sandy Creek. Black liquor is a by‑product of the pulp production process.
5. Louwrens then checked the discharge point and saw that wastewater was being discharged and the butterfly valve was partially open. Louwrens closed the butterfly valve.
6. Louwrens took two water samples from Sandy Creek near the discharge point. The pH levels of these water samples were elevated (10.8 and 10.4) confirming that untreated wastewater had been discharged into Sandy Creek.

The EPA's Investigation

1. At 9 am on 28 October 2022, O'Donovan called EPA operations officer Briohny Seaman to report the unintentional discharge.
2. During the EPA's inspection on 28 October 2022, the following occurred: 1. EPA officers took four samples, from: 1. Sandy Creek upstream of the discharge point; 2. Sandy Creek downstream of the discharge point; 3. the holding tank that feeds in to the 6 Meg Dam; and 4. Gilmore Creek, which Sandy Creek flows into, approximately 900 m downstream of its junction with Sandy Creek; and 1. EPA officers observed foam and bubbles in Gilmore Creek. EPA officers also observed that the water of Gilmore Creek had a smell similar to the untreated wastewater in the 6 Meg Dam.
3. EPA officers took six additional samples of the waters of Gilmore Creek and Tumut River on 29 October 2022.
4. The EPA conducted a further inspection on 2 November 2022, during which the following took place: 1. the EPA issued a Notice to Provide Reasonable Assistance to Visy under s 200 of the POEOA, requiring Visy to retain and refrain from interfering with the pipe, the butterfly valve and the flow meter used for discharges. The EPA then seized the butterfly valve and the flow meter in situ (with both being removed on 30 November 2022 and relocated to a temporary storage facility on the recommendation of its expert). Visy's ongoing operations were not affected by the removal of these items of plant; 2. the EPA issued a verbal Clean Up Notice to Visy under s 91 of the POEOA, requiring Visy to put a cap on the outlet at the discharge point because liquid was observed to be leaking from the discharge point; and 3. the EPA officers took two samples, from: 1. the discharge point; and 2. the WSD.
5. A further Clean Up Notice was issued by the EPA to Visy on 8 November 2022 under s 91 of the POEOA, requiring Visy to cap and cover the outlet at the discharge point to prevent the discharge of any liquids from the property. Visy complied with this notice.
6. On 15 December 2022, the EPA issued a Notice to Provide Information and Records to Visy under s 191 of the POEOA, for information and records related to the unintentional and intentional discharges ("the discharge events"). Visy provided the required information and records in January and February 2023.

Procedures and Infrastructure at the Property

1. Standard operating procedures ("SOPs") applied to the way in which Visy employees carried out their work at the property. Visy expected each of its employees to have read the SOPs that applied to their role.
2. The following SOPs applied to the wastewater transfers that took place on 27 October 2022: 1. Operation of the Waste Water Treatment Plant SOP-TUM-A63-003-1, dated 24 January 2019 ("SOP 1"); 2. Waste Water: Pumping from 6Ml Dam to Spill Tank SOP-TUM-A63-004-1, dated 24 January 2019 ("SOP 2"). This is the SOP that applied to the transfer of untreated wastewater from the 6 Meg Dam to the evaporation plant area, which is where the spill tank is located; and 3. Starting Recycled Water to Cooling Towers SOP-TUM-A63-002-1, dated 24 January 2019 ("SOP 3"). This is the SOP that applied to the transfer of treated wastewater from the 2.5 Meg Dam to the mill to be used in cooling towers.
3. The Visy operators involved in the wastewater transfers on 27 October 2022 were aware of these SOPs.
4. The Visy operator working on the distributed control system ("the DCS") at the property was also required to carry out two hourly checks of various "critical process elements" in a logbook. However, the level of the 6 Meg Dam was not required to be checked on a two hourly basis, which is why the unintentional discharge was not identified until 4 am on 28 October 2022.
5. At the time of the discharge events: 1. there was no standard checklist for Visy operators to ensure that the valves were in the correct position for each particular wastewater transfer that was taking place; 2. SOP 2 did not specify the times at which the valves involved in that wastewater transfer should be opened or closed; and 3. no one was required to check the WSD or the discharge point during the wastewater transfers that were taking place.

The Butterfly Valve and Flow Meter

1. The butterfly valve isolates the water treatment plant from the discharge point. It is contained within the pump station. The unintentional discharge was in part caused because the butterfly valve malfunctioned, resulting in it being partially open and allowing the untreated wastewater to enter Sandy Creek.
2. Up until the unintentional discharge, Visy did not routinely inspect the butterfly valve to confirm that it was operating properly and does not know when it last inspected the butterfly valve. A yearly visual inspection of the valve was undertaken but there was no direct maintenance schedule for most of the valves at the property, which were maintained on an ad hoc basis.
3. A reason why Visy was not able to carry out routine maintenance on the butterfly valve was because it could not isolate the WSD from the pump station at the discharge point, which meant that the butterfly valve was required to be operational at all times to prevent the treated wastewater held in the WSD from discharging into Sandy Creek.
4. Since the discharge events, Visy has discovered an additional valve in between the pump station and the WSD, which can isolate the WSD, allowing for maintenance work to be carried out on the butterfly valve (and the flow meter).
5. The flow meter has not worked since at least 2016. Visy employees were aware of this. Again, Visy was not able to carry out routine maintenance on the flow meter because it could not isolate the WSD from the pump station, as it was not aware of the additional valve that existed between the WSD and the pump station.

Evidence of the Parties

1. The EPA relied upon the statement of agreed facts ("SOAF").
2. Visy also read an affidavit of O'Donovan, sworn on 6 March 2024 ("the O'Donovan affidavit"), who was present in Court during the hearing.
3. In his affidavit O'Donovan deposed to his experience and role at Visy, provided background about Visy's operations, including the environmental initiatives implemented at Visy since 27 October 2022, and gave examples of the social and environmental endeavours that Visy was engaged in, and, importantly, expressed deep regret that the incident occurred.

The Purposes of Sentencing

1. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA"), which are relied upon without recitation here.

Statutory Matters Required to be Taken Into Account in Sentencing

1. For the purposes of sentencing in this matter, the EPA does not rely on any aggravating factors under s 21A(2) of the CSPA. The following relevant mitigating factors are provided for in s 21A of the CSPA: 21A Aggravating, mitigating and other factors in sentencing … (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows- (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, … (i) the remorse shown by the offender for the offence, but only if - (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23),
2. For offences created by the POEOA, the Court is also required to consider the matters set out in s 241 of that Act: 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, … (2) The court may take into consideration other matters that it considers relevant.
3. A prosecutor carries the onus of proving any aggravating factors by evidence beyond reasonable doubt, whereas a defendant must establish mitigating factors on the balance of probabilities (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] and Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [131]).

Objective Seriousness of the Offence

1. The objective gravity of the offences fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at [354] and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [162]). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at [354] and R v Nichols (1991) 57 A Crim R 391 at [395]).
2. The objective gravity of the offence is judged having regard to two principal components, first, the acts or omissions of the offender, and second, the consequences of those acts or omissions (Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [22]).

Nature of the Offences

1. The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are relevant to the determination of the objective seriousness of the commission of an environmental offence (Bentley at [168]-[172]).
2. The relevant objects contained in s 3(a), (d), (e) and (f) of the POEOA identify the purpose of creating the offences with which Visy has been charged.
3. The EPA correctly submitted that these objects reflect the community's adoption of a "stern policy against pollution" (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359).
4. By polluting waters, Visy specifically undermined s 3(a) and d(i)-(ii) of the POEOA. The offence was objectively serious because it involved a discharge of untreated wastewater from an industrial plant into running waters over a period of approximately six hours which caused actual harm to the aquatic environment.
5. In relation to the approval and monitoring offences, strict compliance with the conditions of an environmental protection licence is necessary to ensure that the objectives of the POEOA are met (Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 at [104]). One of these objectives is a strong regulatory framework (Environment Protection Authority v P&M Quality Small Goods Pty Ltd; Environment Protection Authority v JBS Australia Pty Limited [2017] NSWLEC 89 at [37]). By breaching licence conditions O4.8 and M8.1 of the licence, Visy undermined the legislative objectives of the POEOA.

Maximum Penalties

1. The maximum penalty provided for an offence indicates the seriousness with which Parliament views the commission of the offence (Axer at 359 and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).
2. Visy is charged with one breach of s 120(1) of the POEOA and three breaches of s 64(1) of that Act, each of which, at the time of the commission of the offences, carried a maximum penalty of $1,000,000 in the case of a corporation.

The Environmental Harm Occasioned or Likely to be Occasioned by the Commission of the Offences

1. The composite term "harm to the environment" is broadly defined in the Dictionary of the POEOA: 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.
2. The concept of harm in the context of environmental offences extends to both actual and potential harm (Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[149]).
3. There is, however, a distinction between actual harm to the environment and harm to the regulatory regime (ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 at [65]). While the former should be considered under s 241(1)(a) of the POEOA, the latter is a relevant factor under s 241(2) of that Act only.
4. It was an agreed fact that the unintentional discharge caused actual harm to the environment by changing the water quality of Sandy Creek and Gilmore Creek at various locations from 11 pm on 27 October 2022 to sometime prior to the samples having been taken of those waters on 29 October 2022, by which time, as the sample results indicate, the water quality parameters had returned to normal pre-discharge levels. The harm extended from the discharge point to Gilmore Creek Bridge, which is approximately 5.5 km downstream of the discharge point. A sample taken on 2 November 2022 at the point where the discharge point entered into the open channel indicated a localised effect was present, however, this was not indicative of the water quality in Sandy Creek or Gilmore Creek at that time.
5. Samples collected by the EPA on 28 October 2022 showed effects from the discharge were evident downstream from the discharge point in Gilmore Creek, but not at sites within Sandy Creek closer to the discharge. From the samples collected on 29 October and 2 November 2022, effects from the discharge events were evident only at the site of the discharge point.
6. It was agreed that the lack of observable effects in the EPA samples collected on 28 October 2022 was due to the intentional flushing discharge. This flushing caused the discharge plume to move further downstream out of Sandy Creek and into Gilmore Creek.

The Pollution Offence

1. In relation to the pollution offence, the EPA submitted that because the offence caused actual harm to the aquatic environment in Sandy Creek and Gilmore Creek over a period of 1.5 days and a distance of 5.5 kms, actual harm was caused.
2. Visy responded by asserting that while it was conceded that actual harm was caused by the commission of the pollution offence, it was the extent of the harm that was relevant.
3. In the present case, the evidence demonstrates that the water quality parameters which experienced elevated levels in Sandy Creek and Gilmore Creek on 28 October 2022, had returned to their normal pre-discharge levels the following day in both creeks. Moreover, there was no evidence that the discharge affected the waters of Sandy Creek and Gilmore Creek or caused any short, medium or long term harm to any aquatic plant, animal or organism or to any ecosystem or habitat. During the hearing the EPA conceded that it had misunderstood the sampling evidence in this regard.
4. While it is true that the increase in biological and chemical oxygen demand caused by the discharge had the potential to reduce dissolved oxygen concentrations in the water which could lead to respiratory distress and death for aquatic life, there was no evidence that aquatic life suffered respiratory distress as a result of the discharge events.
5. At its highest, the commission of the pollution offence caused actual environmental harm of a minor and transitory nature (s 241(1)(a) of the POEOA) with the potential to cause more serious harm in the manner set out above.

The Approval Offence

1. The EPA contended that Visy's failure to obtain the EPA's approval for the subsequent intentional flushing discharge as required by condition O4.8 of the licence caused actual harm to the aquatic environment because a greater volume of untreated wastewater was discharged into Sandy Creek. It also caused the untreated wastewater discharged by the unintentional discharge to be moved further downstream out of Sandy Creek and into Gilmore Creek.
2. By contrast, Visy submitted that the commission of this offence did not cause, and was not likely to have caused, any harm to the environment.
3. While the failure to obtain the EPA's approval prior to discharge deprived the EPA of assessing the environmental consequences of it, Visy is correct in its submission that the EPA has not proved to the requisite standard (or indeed any standard) any nexus between the failure to obtain approval and the harm caused by the discharge events. That is, the EPA has adduced no evidence that had approval been sought, it would not have been given or that the intentional flushing discharge would not have occurred. This is relevant because in and of itself, the approval offence caused no environmental harm.

Monitoring Offences

1. In terms of Visy's failure to continuously monitor the volume of liquids discharged by the unintentional discharge because the flow meter had been broken since 2016, the EPA claimed that this caused harm to the aquatic environment because had it been monitored it would have revealed that the discharge was occurring and it could have stopped it sooner. In addition, not knowing the precise volume of wastewater having been discharged into Sandy Creek impeded the investigation and remediation of the incident.
2. With respect to the intentional flushing discharge, the EPA submitted that Visy's failure to continuously monitor the volume of liquids discharged during the intentional flushing discharge resulted in the same harm as the commission of the unintentional discharge.
3. Visy responded by arguing that no harm was caused by the failure to continuously monitor the discharges (both intentional and unintentional). The charges did not concern a failure to have in place a discharge alarm and there was no evidence that a properly functioning flow meter in compliance with condition M8.1 would have otherwise alerted Visy to the occurrence of the unintentional discharge. In any event, the condition merely obligated Visy to record the volume of any discharge.
4. On any reasonable construction of condition M8.1 of the licence, the obligation on Visy was to monitor the discharges and not to merely record them. This accords with the language of the condition, both its text and context, insofar as the licence distinguishes between monitoring and recording (see, for example, conditions M6 and M9 of the licence which deal explicitly with recording).
5. In my view, it cannot be said that the failure to monitor the unintentional discharge caused no harm. It was this discharge that led to the agreed harm to the waterway described above. While the pollution offence curiously only relates to the intentional flushing discharge, it was the unintentional discharge that caused the untreated wastewater to enter the creek systems. Monitoring in conformity with the licence would have reduced the volume of wastewater entering the system and, it may be inferred, would have therefore resulted in less harm occurring. Having said this, the actual harm was, as the evidence discloses, transient and minor. There was, in addition, the potential for harm as explained earlier in the judgment.

There is No Double-Counting

1. Visy submitted that to the extent that it could be demonstrated that harm was caused to the environment by the commission of the pollution offence for the purposes of s 241(1)(a) of the POEOA, this finding could not be taken into account with respect to either the approval or monitoring offences because to do so would result in double counting. This submission must be rejected.
2. Section 241(1)(a) of the POEOA requires the Court to separately assess and determine the harm caused to the environment by the commission of each offence (s 241(1)(a) of the POEOA). This is necessary to assess the objective seriousness of the offending conduct for each of the charges to which Visy has entered a guilty plea (Sydney Water Corporation at [269]). There is nothing impermissible in this approach and it does not result in double counting of penalty (Sydney Water Corporation at [270]).
3. Where, as with the present incident, a single series of events has given rise to the commission of four different offences to which separate penalties attach, the Court must instead have regard to the application of the totality principles (see the subsequent discussion on this issue).

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offence

1. It was not a matter of dispute that Visy could foresee the harm caused to the environment by the pollution offence (s 241(1)(c) of the POEOA). The foreseeability of harm to the environment by reason of the discharge of untreated wastewater into waters is self-evident.
2. With respect to the approval offence, Visy submitted that because their commission did not cause environmental harm, s 241(1)(c) of the POEOA had no relevant application. I agree.
3. Visy made a similar submission in relation to the monitoring offences.
4. As the holder of an environment protection licence, Visy was clearly on notice of the possibility of harm to the environment occasioned by carrying out its activities otherwise than in accordance with that licence (Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211 at [81]). In the present case, the absence of monitoring of both the intentional and unintentional discharges meant that unregulated discharges occurred, both of which caused actual and potential environmental harm in the manner described above which was reasonably foreseeable by Visy.

Practical Measures That Could Have Been Taken to Prevent or Mitigate the Environmental Harm

1. Visy accepted that it could have taken practical measures that would have prevented or reduced the environmental harm caused by the commission of the pollution offence. I agree (s 241(1)(b) of the POEOA).
2. The measures were principally those which Visy has taken since the discharge events, including: 1. updating SOP 3; 2. separating the treated and untreated interconnected wastewater pipelines involved on the day of the incident. This has eliminated the possibility of discharging untreated wastewater in the future; 3. installing a gate valve at the discharge point and padlocking the isolation valve; 4. labelling wastewater valves and pipelines and updating the property's maintenance planning system to include routine inspection work orders; 5. updating the WSD Inspection Checklist to include a daily visual inspection of the dam outlet value, Sandy Creek discharge valve, and flow meter; 6. reviewing and updating the SOPs related to wastewater operations and completing operator training; 7. updating the Site Emergency Response Team schedule to include more scenarios on environmental related incidents. These are in the form of both desktop and practical exercises; 8. updating the Environmental Incident Response and Spill Response procedures and the Pollution Incident Response Management Plan for the Premises ("PIRMP"); 9. updating the site-specific induction to increase awareness of the licence and PIRMP; and 10. sending out site communications and conducting a "Toolbox Talk" in relation to the PIRMP, licence and the critical importance of environmental management.
3. Visy does not accept, however, that the approval and monitoring offences caused any environmental harm, and therefore, submitted that s 241(1)(b) of the POEOA had no application.
4. I have accepted Visy's submission in relation to the approval offence but not in respect of the monitoring offences. I find that there were practical measures that Visy could have taken to prevent the harm caused by its breach of licence in this regard. These measures included: 1. fixing the flow meter upon discovering that it was broken in 2016; and 2. regularly inspecting and maintaining the flow meter.

Control over the Causes of the Commission of the Offence

1. Section 241(1)(d) of the POEOA requires the Court to take into account the extent to which the person who committed the offence had control over the causes that gave rise to it.
2. The EPA submitted that Visy had complete control over the causes of each offence, including: 1. the following human and mechanical systems and processes which caused the pollution offence: 1. human error by Visy's employee failing to close the valve after transferring wastewater between the 6 Meg Dam and the other dams; 2. the butterfly valve at the discharge point malfunctioning, thereby allowing the discharge into Sandy Creek and not being properly maintained; and 3. Visy's failure to have the practical measures in place that could have either prevented or discovered the unintentional discharge; 1. human error in failing to comply with the licence condition requiring Visy to obtain the EPA's approval before it made the flushing discharge, which constituted the approval offence; and 2. human error in failing to comply with the licence condition requiring a flow meter to continuously monitor the volume of liquids discharged into Sandy Creek, which caused the monitoring offences. The evidence discloses that the flow meter had been broken since 2016 and that this was known to Visy's employees at the time of the commission of the offences. It had not been regularly inspected or maintained.
3. It was conceded by Visy that it had complete control over the causes giving rise to the commission of all of the offences. This concession was properly made (s 241(1)(d) of the POEOA).

Visy's State of Mind at the Time of the Commission of the Offence

1. There was no evidence proffered by the parties as to the state of mind of Visy during the commission of the offences save for the fact that Visy had been aware of the broken flow valve.
2. In terms of the pollution offence, the offence was not committed intentionally. During the hearing the EPA suggested for the first time that the offence had been committed negligently, or in the alternative, recklessly (T7:45-8:18). Given that Visy knew of the broken valve well prior to the commission of the offences, there was some force to the submission. However, the EPA later withdrew the contention over Visy's objection to the delay in raising it.
3. An allegation that a crime has been committed negligently or recklessly is serious and should have been raised by the EPA in advance of the hearing as a matter of fairness to Visy.
4. I therefore make no finding as to the state of Visy's mind during the commission of the offences and do not take into account its prior knowledge of the broken valve as a factor in aggravation.

Conclusion on Objective Seriousness

1. Considering the objective circumstances of the commission of the offences, I find that the pollution offence, occasioning actual, albeit minimal and transitory, environmental harm and continuing for 1.5 days over 5.5 kms, to be of low to moderate objective seriousness.
2. I find the remaining offences to be of low objective seriousness, with the approval offence at the lower end of this scale. The commission of the monitoring offences is more objectively serious compared to the commission of the approval offence because Visy knew that the flow meter had been broken since 2016.

Contrition and Remorse

1. Pursuant to s 21A(3)(i) of the CSPA, remorse is only a mitigating factor if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
2. In Waste Recycling Preston J remarked that "contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives" (at [203]). His Honour went on to suggest four ways by which an offender may demonstrate genuine contrition and remorse, which are relied upon without repetition (at [204], [210], [212] and [214]).
3. Visy submitted that it demonstrated contrition and remorse for the commission of the offences by its words and actions, including the actions set out above at [88]. In his written evidence, O'Donovan deposed that: 24. Visy deeply regrets that the incident occurred and that its environmental practices were not acceptable on this occasion. It considers its environmental responsibilities very seriously at all times. It has previously been proud that it operates close to several waterways and until this incident had an otherwise untarnished reputation. 25. Visy is determined that it will not breach the relevant environmental laws again.
4. The EPA accepted that Visy has demonstrated genuine contrition and remorse, including by: 1. taking responsibility by way of pleading guilty to the offences; 2. voluntarily reporting the commission of the pollution offence to the EPA shortly after it occurred; and 3. taking action to address the causes of the offences.
5. I find that Visy's actions and words are evidence of contrition and remorse, which is a mitigating factor.

Assistance to the EPA

1. Visy provided assistance to the EPA in the prosecution of the offences (ss 21A(3)(m) and 23 of the CSPA), including by participating in the preparation of the SOAF, voluntarily reporting the pollution offence to the EPA, and taking action to address the causes of the offences.

Early Plea of Guilty

1. A guilty plea entered at the earliest available opportunity entitles a defendant to the full 25% discount for the utilitarian value of that early plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]).
2. Both Visy and the EPA accepted that Visy entered pleas of guilty to the offences at the earliest available opportunity, namely, the first mention on 15 December 2023. Visy is therefore entitled to the full 25% discount for the utilitarian value of its guilty pleas.

Prior Convictions, Likelihood of Reoffending and Good Character of Visy

1. Visy has no prior convictions (s 21A(3)(e) of the CSPA).
2. I also find that the likelihood that Visy will reoffend to be low, although not negligible due to the broken flow meter of which Visy was aware since 2016 (s 21A(3)(g) of the CSPA).
3. Visy submitted that it is of good corporate character. Visy drew the Court's attention to the following matters in the O'Donovan affidavit in support of this assertion: 1. it regularly partners with Cool Australia to instil values and awareness on sustainability for the Australian youth by providing free lessons plans, education resources on resource recovery and recycling for councils and schools; 2. it is involved in social and community initiatives in Tumut and across the surrounding region. The Visy Community Consultative Committee includes members from local communities in Tumut, Adelong, Snowy Valleys Council and Snowy Valleys Business Hub. It meets regularly to offer transparent and fair consideration of the requests for funding and sponsorship received from the community each year; 3. it contributes funds to the Pratt Foundation which is the philanthropic arm of the Visy Group. Since 1978, the Pratt Foundation has funded over 10,000 philanthropic projects, making over $350 million in charitable donations. This is done in consultation with community partners in Australia and New Zealand across a broad spectrum of society, including supporting food security, mental health, the arts, education, cancer care, First Nations' advancement, and the environment; and 4. Visy Tumut provides in excess of $30,000 annually to the local community, being a major sponsor to many local events including the Annual Business Snowy Valleys Awards, Autumn Falling Leaf Festival, Rock The Turf (Blues, Brews & BBQ's), as well as providing funding to local schools and other community organisations and sporting groups. Some recent examples of Visy's contributions to the Tumut region include: 1. $1 million to the Tumut Region Recovery Fund in January 2020; 2. $100,000 to the NSW Rural Fire Service (Tumut Regional Fire Brigades) in January 2020; 3. $10,000 to the Yaven Creek Bushfire Brigade (Tumut Regional Fire Brigades) in May 2020; 4. two payments of $80,000 to the Clontarf Foundation - Tumut Academy in June 2021 and February 2022; and 5. $25,000 to Big Brothers Big Sisters - Youth Mentoring Tumut Program in June 2023.

Deterrence, Denunciation and Retribution

1. The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at [569]-[570] per Brennan J).
2. The penalty imposed by the Court must serve as a general deterrent (Axer at [359]; Camilleri's Stock Feeds at [701] and Bentley at [139]; see also s 3A(b) of the CSPA). In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Preston J discussed general deterrence in the context of sentencing for environmental crime (at [66]-[68]). Those principles are respectfully applied here without repetition.
3. In this case, I accept the EPA's submission that because Visy will continue to operate its paper and pulp production plant at the same location, this warrants the need to consider specific deterrence as an aspect of punishment. Specific deterrence in this case is further necessitated by the failure of Visy to address the broken flow meter.
4. Visy submitted that specific deterrence is of lesser importance than would otherwise be the case in view of the evidence demonstrating that it has appropriate insight into its offending, has taken steps to address the causes of the commission of the offences, and is unlikely to re-offend. While this is true, I nevertheless consider that specific deterrence is relevant in the present case.
5. I further accept that embedded in the determination of the appropriate sentence to be imposed on Visy is an element of general deterrence in order to ensure that holders of EPLs comply with the conditions of their licences, especially conditions that are designed to avoid or reduce incidents of water pollution.

Consistency in Sentencing

1. The task of the sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at [177] and R v Visconti [1982] 2 NSWLR 104 at [107]). Care must be taken in comparing cases where the circumstances of, and facts relating to, the offences may be quite different (Axer at 365).
2. The EPA provided the Court with a table of five comparable cases relating to breaches of ss 64(1) and 120(1) of the POEOA (Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd (No 3) [2022] NSWLEC 136, Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178, Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39, P&M Quality Smallgoods and Environment Protection Authority v Wambo Coal Pty Ltd [2017] NSWLEC 152).
3. I have had regard to these and other cases referred to by the parties, the most relevant of which, in my view, is Charlotte Pass.
4. In Charlotte Pass, the defendant operated a sewage treatment plant and discharged 11,645,632 L of effluent into a tributary of Spencer's Creek. The discharge was caused by a failure to maintain bubble diffusers within the treatment tanks. The Court found that the offences were in the low to moderate range of objective seriousness (at [160]) on the basis that there was actual harm that was not substantial and caused minimal change to the chemical composition of the Creek (at [146] and [150]). The harm was reasonably foreseeable (at [156]), the defendant had complete control over the commission of the offences (at [158]), and there were various practical measures available to it to reduce the harm (at [159]). Mitigating factors included that the defendant had demonstrated contrition and remorse (at [165]), provided assistance to the EPA (at [174]), was of good character (at [177]), and had good prospects of rehabilitation (at [178]). The Court applied a 25% discount for the utilitarian value of the defendant's early guilty plea and imposed a fine of $96,000 for the pollution offence and $96,000 for the licence breach offence, the totality of which was reduced to $144,000. An order for moiety and a publication order were made.

The Totality Principle

1. The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63], Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40], Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18] and Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [111]-[112]).
2. Because the four offences arise out of the same, common or related conduct, the totality principle applies. The effect of the principle is to require the Court to review the totality of the sentence to consider whether the penalty imposed is just and appropriate and whether it reflects the overall criminality of the offender before the Court. Care must nevertheless be taken "to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence" (Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [222] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [199] and [201]).

Costs

1. The EPA sought an order for its professional costs as agreed under s 257B of the Criminal Procedure Act 1986.
2. In addition, the EPA sought an order pursuant to s 248 of the POEOA, that Visy pay the EPA's costs and expenses incurred during the investigation of the offence in the agreed amount of $28,114 (rounded up).
3. Visy did not cavil with either proposed order.
4. In the exercise of the Court's sentencing discretion, I have taken into account the costs payable by Visy in determining the appropriate sentence to be imposed upon it (Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78]-[88]).

Publication Order

1. The EPA seeks a publication order pursuant to s 250(1)(a) of the POEOA. Visy does not oppose the making of such an order but disputes the content of the notice to be published as proposed by the EPA.
2. In the context of sentencing, a publication order serves the functions of general deterrence, denunciation, and a recognition of the harm caused by the offending conduct (Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 at [105] and Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [76]). Visy's offending conduct was not trivial and occasioned actual and potential environmental harm. Visy continues to operate in the pulp and paper industry. These factors weigh in favour of making a publication order. Having regard to the circumstances of this case, I find that the making of such an order to be appropriate.
3. The dispute in relation to content was two-fold: 1. first, in lieu of the notice being placed in The Sydney Morning Herald, Visy preferred that it be published on its website. It submitted that in circumstances where the notice was to be published in three other publications, including The Daily Telegraph, publication in The Sydney Morning Herald was unnecessary; and 2. second, Visy objected to the inclusion in the notice of a photograph taken on 28 October 2022 of the foam in Gilmore Creek caused by the discharge of untreated wastewater. This was because, according to Visy, the photograph was apt to mislead insofar as it did not accurately reflect the overall environmental harm, which was limited, caused by the commission of the offences.
4. Visy was not able to provide the Court with any indication of how often its website was accessed and by who. It may be doubted, however, that on any given day the traffic to it is comparable to the daily circulation of The Sydney Morning Herald. Visy was also not able to demonstrate that the readership of, for example, The Daily Telegraph, was coincident with that of The Sydney Morning Herald.
5. Having regard to the purpose in making a publication order, I am of the opinion that the notice should be published in all four publications identified by the EPA.
6. However, I agree with Visy that the inclusion of the photograph has the very real potential to mislead readers of the notice. It captures, as any photograph does, a moment in time that does not accurately reflect the impermanence and insubstantial nature of the harm caused by the commission of the offences, including the pollution offence. The photograph amplifies the visual depiction of harm caused by the incident in a manner that is unfair to Visy and does not reflect its offending. It ought therefore be excluded from the publication order.

Environmental Trust Order

1. The EPA submitted that pursuant to s 250(1)(e) of the POEOA, Visy should pay the amount of any fine to the Environmental Trust (established under the Environmental Trust Act 1998) for general environmental purposes.
2. In further submissions Visy argued that while it consented to any monetary penalty being paid to the Environmental Trust, the funds should be directed to the carrying out of a specific project, namely, the Sandy Creek Revegetation Project ("the revegetation project"). This was opposed by the EPA, who, in fairness to it, had not seen any details of the proposal prior to the hearing.
3. The Court was subsequently furnished by Visy with additional information concerning the revegetation project. But even with this material, there is still, in my opinion, insufficient detail for the Court to make the order proposed by Visy. For example: 1. there is no evidence before the Court demonstrating that Sandy Creek requires revegetation or that the project will in fact protect and enhance its biodiversity; 2. the qualifications and expertise of the author of the proposal are not known; 3. the timeframe to complete the project is not known, even assuming its approval by NSW Water; and 4. the revegetation project is contingent upon third party approvals.
4. I therefore decline to make the order suggested by Visy.

Appropriate Sentence

1. Having regard to the objective seriousness of the offences and the subjective factors of Visy, I find that the imposition of a monetary penalty is warranted for each offence as follows: 1. for the pollution offence a fine of $100,000; 2. for the approval offence a fine of $50,000; 3. for the first monitoring offence a fine of $100,000; and 4. for the second monitoring offence a fine of $75,000.
2. After the application of the 25% discount for the utilitarian value of the early guilty pleas, the penalty for the commission of each offence is reduced to: 1. for the pollution offence a fine of $75,000; 2. for the approval offence a fine of $37,500; 3. for the first monitoring offence a fine of $75,000; and 4. for the second monitoring offence a fine of $56,250.
3. Applying the totality principle, the final penalty for the commission of the offences are as follows: 1. for the pollution offence a fine of $75,000; 2. for the approval offence a fine of $20,000; 3. for the first monitoring offence a fine of $50,000; and 4. for the second monitoring offence a fine of $30,000.
4. This brings the total amount of the monetary penalty to be imposed to be $175,000.

Orders

1. In conformity with the reasons given above, the Court makes the following orders: In proceedings 2023/338213 1. the defendant is convicted of the offence contrary to s 120(1) of the Protection of the Environment Operations Act 1997 as charged; 2. the defendant must pay a monetary penalty in the sum of $75,000; In proceedings 2023/338215 1. the defendant is convicted of the offence contrary to s 64(1) of the Protection of the Environment Operations Act 1997, as charged; 2. the defendant must pay a monetary penalty in the sum of $20,000; In proceedings 2023/338216 1. the defendant is convicted of the offence contrary to s 64(1) of the Protection of the Environment Operations Act 1997, as charged; 2. the defendant must pay a monetary penalty in the sum of $50,000; In proceedings 2023/338217 1. the defendant is convicted of the offence contrary to s 64(1) of the Protection of the Environment Operations Act 1997, as charged; 2. the defendant must pay a monetary penalty in the sum of $30,000; In proceedings 2023/338213, 2023/338215, 2023/338216 and 2023/338217 1. in lieu of the monetary penalties ordered above at [141(2)], [141(4)], [141(6)] and [141(8)] pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, the defendant is to pay an amount of $175,000 to the Environmental Trust established under the Environmental Trust Act 1998 for general environmental purposes within 28 days of the date of this order; 2. pursuant to s 257B of the Criminal Procedure Act 1986 the defendant is to pay the prosecutor's professional costs as agreed or assessed under s 257G of that Act; 3. pursuant to s 248(1) of Protection of the Environment Operations Act 1997, the defendant is to pay the prosecutor's costs and expenses incurred during the investigation of the offence in the agreed amount of $28,114; 4. within 28 days of the date of this order and pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, the defendant is to, at its own expense, cause a notice in the form of annexure 'A' to these orders to be placed within the first 12 pages of the following publications, at a minimum size of a quarter of a page: 1. The Sydney Morning Herald; 2. The Daily Telegraph; 3. the Tumut and Adelong Times; and 4. The Daily Advertiser; 1. within seven days of the date of publication of the notices referred to above, the defendant is to provide the prosecutor with a complete copy of the notices as published; and 2. the exhibits are to be returned. Annexure 'A' Visy Pulp and Paper Pty Ltd Convicted of Licence Breach and Water Pollution Offences and Ordered to Pay $175,000 Visy Pulp and Paper Pty Ltd ("Visy") has been convicted and ordered by the Land and Environment Court of NSW to pay to the Environmental Trust the sum of $175,000 for breach of its environment protection licence and water pollution. This money will be used by the Environmental Trust to fund environmental projects. On 27 and 28 October 2022 untreated wastewater was discharged from Visy's paper and pulp production plant into Sandy Creek in Tumut. The discharge occurred because a valve was inadvertently left open during a wastewater transfer, releasing the untreated wastewater from a storage dam at the plant. A second valve malfunctioned and allowed the untreated wastewater to enter Sandy Creek. After the discharge was discovered, Visy flushed the reed-lined channel leading from the discharge point to Sandy Creek with treated wastewater. The discharged wastewater polluted the water in Sandy Creek and Gilmore Creek, which Sandy Creek flows into. The discharged wastewater was highly alkaline, causing an increase in pH of the water in Sandy Creek and Gilmore Creek that exceeded water quality guidelines for ecosystem protection and to levels that are harmful to aquatic life. The pH of Sandy Creek and Gilmore Creek had returned to normal levels on 29 October 2022 and there was no evidence of any harm caused to aquatic life. Since the incident, Visy has made changes at the plant to improve its environmental performance. On 27 May 2024 the Land and Environment Court convicted Visy of three offences against s 64(1) and one offence against s 120 of the Protection of the Environment Operations Act 1997, for breach of licence and water pollution, and ordered Visy to:

Amendments 31 May 2024 - "Slip-rule" amendment to Environment Protection Authority v Visy Pulp and Paper Pty Ltd [2024] NSWLEC 55

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, by consent the Court amends its judgment in Environment Protection Authority v Visy Pulp and Paper Pty Ltd [2024] NSWLEC 55 by:

1. deleting the word "is fined" at [141(2)], [141(4)], [141(6)] and [141(8)] and inserting instead the words "must pay a monetary penalty in";
2. inserting the words "in lieu of the monetary penalties ordered above at [141(2)], [141(4)], [141(6)] and [141(8)]" at the commencement of [141(9)]; and
3. deleting the word "redlined" and inserting instead the word "reed-lined" in annexure 'A'. 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: 31 May 2024

64 Failure to comply with condition

(1) Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence.

...

120 Prohibition of pollution of waters

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

**Note - **

An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation - see section 169.

(2) In this section -

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

1. The dictionary to the POEOA contains the following relevant definitions:

_water pollution or pollution of waters means - _

(a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or

(b) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or

...

waters means the whole or any part of -

(a) any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or

(b) any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water.

1. Visy carries out the scheduled activity of paper and pulp production under its licence at its plant located at 1302 Snowy Mountains Highway Tumut NSW 2720 ("the property"). Visy has held the licence since 30 June 2000.
2. The licence contained the following relevant conditions:

O4.8 Prior to any discharge to Sandy Creek, approval in writing must be obtained from the EPA. This application for discharge must be submitted to the EPA at least two weeks before the requested start date for discharge.

M8.1 For each discharge point or utilisation area specified below, the licensee must monitor:

a) the volume of liquids discharged to water or applied to the area;

...

1. The property consists of a mill and a water treatment plant. At the mill, Visy processes wood and recyclable paper to make pulp, which is turned into paper. This process produces wastewater that is sent to the water treatment plant for treatment. Once treated, it is then reused by Visy in various ways.
2. There were three relevant water storage dams in the water treatment plant at the property, including:

(a) a six megalitre untreated wastewater storage dam ("6 Meg Dam"), which was used for temporary storage of untreated wastewater;

(b) a 2.5 megalitre treated wastewater storage dam ("2.5 Meg Dam"), which was used for temporary storage of treated wastewater before it was reused in the pulp and paper production process; and

(c) a 480 megalitre dam known as the "Winter Storage Dam" ("WSD"), which was used for storage of treated wastewater before it was reused for irrigation purposes.

1. There was a discharge point into Sandy Creek, referred to on the licence as Licence Discharge Point 9 ("the discharge point"). Under the licence, Visy is permitted to discharge treated wastewater from the WSD in circumstances where the WSD is likely to overflow, such as in periods of heavy rainfall. Condition O4.8 of the licence requires Visy to obtain approval from the EPA before discharging wastewater via the discharge point to Sandy Creek.
2. A system of pipes, valves and pumps connects the dams and moves wastewater around the property and to the discharge point. At the time of the offences, the same pipe was used to transfer wastewater to and from both the 2.5 Meg Dam and the 6 Meg Dam, with valves used to isolate the relevant dam.
3. Condition M8.1 of the licence required Visy to continuously monitor the amount of liquid discharged from the discharge point. A flow meter is installed at the discharge point for this purpose. It is contained within a pump station. At the time of the offences, the flow meter was broken, and Visy employees were aware that it had been broken since 2016.
4. A diagram depicting the operation of the water treatment plant is below.

Untreated Wastewater Is Discharged Into Sandy Creek

1. On the evening of 27 October 2022, Visy operators at the water treatment plant were carrying out the following wastewater transfers:

(a) untreated wastewater was transferred from the 6 Meg Dam to the mill evaporation plant area to be evaporated ("the first transfer");

(b) treated wastewater was transferred from the 2.5 Meg Dam to the mill to be used in cooling towers; and

(c) treated wastewater was transferred from the 2.5 Meg Dam to the WSD ("the third transfer").

1. Following the first transfer, a valve at the 6 Meg Dam was left open ("6 Meg Valve"). Visy operator, Paul Schubert, did not check that the 6 Meg Valve was closed after the first transfer. This meant that untreated wastewater from the 6 Meg Dam was released and mixed with treated wastewater from the 2.5 Meg Dam during the subsequent transfers. Further, a second valve, known as a butterfly valve, which isolates the system from the discharge point, malfunctioned, such that it was partially open and allowed for some of the wastewater that was being transferred to the WSD in the third transfer (which included untreated wastewater from the 6 Meg Dam) to be discharged via the discharge point to Sandy Creek ("the unintentional discharge").
2. On 28 October 2022, at approximately 4 am, the unintentional discharge was identified when Visy manufacturing manager, Daniel Louwrens, realised that the level of wastewater in the 6 Meg Dam was lower than it should be. He called Visy shift supervisor, Paul Calonne. Calonne investigated and realised that the 6 Meg Valve had been left open. A Visy operator then closed the 6 Meg Valve.
3. Following its closure, Louwrens and Schubert went to conduct further investigations at the WSD. While in the vicinity of the WSD, Louwrens heard a high-pitched noise which caused him to inspect Sandy Creek. He observed foam in Sandy Creek and smelled a black liquor odour, which indicated that untreated wastewater had made its way into Sandy Creek. Black liquor is a by‑product of the pulp production process.
4. Louwrens then checked the discharge point and saw that wastewater was being discharged and the butterfly valve was partially open. Louwrens closed the butterfly valve.
5. Louwrens took two water samples from Sandy Creek near the discharge point. The pH levels of these water samples were elevated (10.8 and 10.4) confirming that untreated wastewater had been discharged into Sandy Creek.
6. The unintentional discharge lasted from 11 pm on 27 October to 4:48 am on 28 October 2022. Approximately 511 m3 of untreated wastewater and 434 m3 of treated wastewater was transferred from the 6 Meg Dam and the 2.5 Meg Dam, respectively, to the WSD. The amount of wastewater that was discharged to Sandy Creek, instead of making its way to the WSD, is unknown because the flow meter did not record the volume of liquid discharged.

1. At 9 am on 28 October 2022, O'Donovan called EPA operations officer Briohny Seaman to report the unintentional discharge.
2. During the EPA's inspection on 28 October 2022, the following occurred:

(a) EPA officers took four samples, from:

(i) Sandy Creek upstream of the discharge point;

(ii) Sandy Creek downstream of the discharge point;

(iii) the holding tank that feeds in to the 6 Meg Dam; and

(iv) Gilmore Creek, which Sandy Creek flows into, approximately 900 m downstream of its junction with Sandy Creek; and

(b) EPA officers observed foam and bubbles in Gilmore Creek. EPA officers also observed that the water of Gilmore Creek had a smell similar to the untreated wastewater in the 6 Meg Dam.

1. EPA officers took six additional samples of the waters of Gilmore Creek and Tumut River on 29 October 2022.
2. The EPA conducted a further inspection on 2 November 2022, during which the following took place:

(a) the EPA issued a Notice to Provide Reasonable Assistance to Visy under s 200 of the POEOA, requiring Visy to retain and refrain from interfering with the pipe, the butterfly valve and the flow meter used for discharges. The EPA then seized the butterfly valve and the flow meter in situ (with both being removed on 30 November 2022 and relocated to a temporary storage facility on the recommendation of its expert). Visy's ongoing operations were not affected by the removal of these items of plant;

(b) the EPA issued a verbal Clean Up Notice to Visy under s 91 of the POEOA, requiring Visy to put a cap on the outlet at the discharge point because liquid was observed to be leaking from the discharge point; and

(c) the EPA officers took two samples, from:

(i) the discharge point; and

(ii) the WSD.

1. A further Clean Up Notice was issued by the EPA to Visy on 8 November 2022 under s 91 of the POEOA, requiring Visy to cap and cover the outlet at the discharge point to prevent the discharge of any liquids from the property. Visy complied with this notice.
2. On 15 December 2022, the EPA issued a Notice to Provide Information and Records to Visy under s 191 of the POEOA, for information and records related to the unintentional and intentional discharges ("the discharge events"). Visy provided the required information and records in January and February 2023.

1. Standard operating procedures ("SOPs") applied to the way in which Visy employees carried out their work at the property. Visy expected each of its employees to have read the SOPs that applied to their role.
2. The following SOPs applied to the wastewater transfers that took place on 27 October 2022:

(a) Operation of the Waste Water Treatment Plant SOP-TUM-A63-003-1, dated 24 January 2019 ("SOP 1");

(b) Waste Water: Pumping from 6Ml Dam to Spill Tank SOP-TUM-A63-004-1, dated 24 January 2019 ("SOP 2"). This is the SOP that applied to the transfer of untreated wastewater from the 6 Meg Dam to the evaporation plant area, which is where the spill tank is located; and

(c) Starting Recycled Water to Cooling Towers SOP-TUM-A63-002-1, dated 24 January 2019 ("SOP 3"). This is the SOP that applied to the transfer of treated wastewater from the 2.5 Meg Dam to the mill to be used in cooling towers.

1. The Visy operators involved in the wastewater transfers on 27 October 2022 were aware of these SOPs.
2. The Visy operator working on the distributed control system ("the DCS") at the property was also required to carry out two hourly checks of various "critical process elements" in a logbook. However, the level of the 6 Meg Dam was not required to be checked on a two hourly basis, which is why the unintentional discharge was not identified until 4 am on 28 October 2022.
3. At the time of the discharge events:

(a) there was no standard checklist for Visy operators to ensure that the valves were in the correct position for each particular wastewater transfer that was taking place;

(b) SOP 2 did not specify the times at which the valves involved in that wastewater transfer should be opened or closed; and

(c) no one was required to check the WSD or the discharge point during the wastewater transfers that were taking place.

1. The butterfly valve isolates the water treatment plant from the discharge point. It is contained within the pump station. The unintentional discharge was in part caused because the butterfly valve malfunctioned, resulting in it being partially open and allowing the untreated wastewater to enter Sandy Creek.
2. Up until the unintentional discharge, Visy did not routinely inspect the butterfly valve to confirm that it was operating properly and does not know when it last inspected the butterfly valve. A yearly visual inspection of the valve was undertaken but there was no direct maintenance schedule for most of the valves at the property, which were maintained on an ad hoc basis.
3. A reason why Visy was not able to carry out routine maintenance on the butterfly valve was because it could not isolate the WSD from the pump station at the discharge point, which meant that the butterfly valve was required to be operational at all times to prevent the treated wastewater held in the WSD from discharging into Sandy Creek.
4. Since the discharge events, Visy has discovered an additional valve in between the pump station and the WSD, which can isolate the WSD, allowing for maintenance work to be carried out on the butterfly valve (and the flow meter).
5. The flow meter has not worked since at least 2016. Visy employees were aware of this. Again, Visy was not able to carry out routine maintenance on the flow meter because it could not isolate the WSD from the pump station, as it was not aware of the additional valve that existed between the WSD and the pump station.

1. The EPA relied upon the statement of agreed facts ("SOAF").
2. Visy also read an affidavit of O'Donovan, sworn on 6 March 2024 ("the O'Donovan affidavit"), who was present in Court during the hearing.
3. In his affidavit O'Donovan deposed to his experience and role at Visy, provided background about Visy's operations, including the environmental initiatives implemented at Visy since 27 October 2022, and gave examples of the social and environmental endeavours that Visy was engaged in, and, importantly, expressed deep regret that the incident occurred.

1. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA"), which are relied upon without recitation here.

Statutory Matters Required to be Taken Into Account in Sentencing

1. For the purposes of sentencing in this matter, the EPA does not rely on any aggravating factors under s 21A(2) of the CSPA. The following relevant mitigating factors are provided for in s 21A of the CSPA:

21A Aggravating, mitigating and other factors in sentencing

...

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

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

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

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

...

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

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

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

...

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

...

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

1. For offences created by the POEOA, the Court is also required to consider the matters set out in s 241 of that Act:

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,

...

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

1. A prosecutor carries the onus of proving any aggravating factors by evidence beyond reasonable doubt, whereas a defendant must establish mitigating factors on the balance of probabilities (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] and Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [131]).
2. The appropriate sentence for Visy is to be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of the case (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357).

1. The objective gravity of the offences fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at [354] and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [162]). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at [354] and R v Nichols (1991) 57 A Crim R 391 at [395]).
2. The objective gravity of the offence is judged having regard to two principal components, first, the acts or omissions of the offender, and second, the consequences of those acts or omissions (Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; at ).

1. The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are relevant to the determination of the objective seriousness of the commission of an environmental offence (Bentley at [168]-[172]).
2. The relevant objects contained in s 3(a), (d), (e) and (f) of the POEOA identify the purpose of creating the offences with which Visy has been charged.
3. The EPA correctly submitted that these objects reflect the community's adoption of a "stern policy against pollution" (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359).
4. By polluting waters, Visy specifically undermined s 3(a) and d(i)-(ii) of the POEOA. The offence was objectively serious because it involved a discharge of untreated wastewater from an industrial plant into running waters over a period of approximately six hours which caused actual harm to the aquatic environment.
5. In relation to the approval and monitoring offences, strict compliance with the conditions of an environmental protection licence is necessary to ensure that the objectives of the POEOA are met (Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 at [104]). One of these objectives is a strong regulatory framework (Environment Protection Authority v P&M Quality Small Goods Pty Ltd; Environment Protection Authority v JBS Australia Pty Limited [2017] NSWLEC 89 at [37]). By breaching licence conditions O4.8 and M8.1 of the licence, Visy undermined the legislative objectives of the POEOA.

1. The maximum penalty provided for an offence indicates the seriousness with which Parliament views the commission of the offence (Axer at 359 and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).
2. Visy is charged with one breach of s 120(1) of the POEOA and three breaches of s 64(1) of that Act, each of which, at the time of the commission of the offences, carried a maximum penalty of $1,000,000 in the case of a corporation.

The Environmental Harm Occasioned or Likely to be Occasioned by the Commission of the Offences

1. The composite term "harm to the environment" is broadly defined in the Dictionary of the POEOA:

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.

1. The concept of harm in the context of environmental offences extends to both actual and potential harm (Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]- [149]).
2. There is, however, a distinction between actual harm to the environment and harm to the regulatory regime (ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 at [65]). While the former should be considered under s 241(1)(a) of the POEOA, the latter is a relevant factor under s 241(2) of that Act only.
3. It was an agreed fact that the unintentional discharge caused actual harm to the environment by changing the water quality of Sandy Creek and Gilmore Creek at various locations from 11 pm on 27 October 2022 to sometime prior to the samples having been taken of those waters on 29 October 2022, by which time, as the sample results indicate, the water quality parameters had returned to normal pre-discharge levels. The harm extended from the discharge point to Gilmore Creek Bridge, which is approximately 5.5 km downstream of the discharge point. A sample taken on 2 November 2022 at the point where the discharge point entered into the open channel indicated a localised effect was present, however, this was not indicative of the water quality in Sandy Creek or Gilmore Creek at that time.
4. Samples collected by the EPA on 28 October 2022 showed effects from the discharge were evident downstream from the discharge point in Gilmore Creek, but not at sites within Sandy Creek closer to the discharge. From the samples collected on 29 October and 2 November 2022, effects from the discharge events were evident only at the site of the discharge point.

(a) an increase in pH that exceeded water quality guidelines for ecosystem protection and to levels which were harmful to aquatic life. Changes in pH outside of usual ranges can physiologically stress aquatic species and can result in decreased reproduction and growth, increased disease, and death;

(b) an increase in organic material, resulting in an increased biological and chemical oxygen demand, both of which exceeded water quality guidelines for the protection of aquaculture species. This increase had the potential to reduce dissolved oxygen concentrations in the water which can lead to respiratory distress and death for aquatic life; and

(c) an increase in the concentrations of potassium, sodium and sulphur. This elevation was not, however, to levels high enough to cause an adverse effect in aquatic organisms over the duration of the discharge events.

1. As conceded by the EPA during the hearing, the duration of actual harm from the discharge events was from the time at which the discharge of untreated wastewater commenced on 27 October to 1.30 pm on 29 October 2022, which is based on the sample collected on 29 October 2022 that showed water at Gilmore Creek was no longer contaminated (T6:20-32).

1. In relation to the pollution offence, the EPA submitted that because the offence caused actual harm to the aquatic environment in Sandy Creek and Gilmore Creek over a period of 1.5 days and a distance of 5.5 kms, actual harm was caused.
2. Visy responded by asserting that while it was conceded that actual harm was caused by the commission of the pollution offence, it was the extent of the harm that was relevant.
3. In the present case, the evidence demonstrates that the water quality parameters which experienced elevated levels in Sandy Creek and Gilmore Creek on 28 October 2022, had returned to their normal pre-discharge levels the following day in both creeks. Moreover, there was no evidence that the discharge affected the waters of Sandy Creek and Gilmore Creek or caused any short, medium or long term harm to any aquatic plant, animal or organism or to any ecosystem or habitat. During the hearing the EPA conceded that it had misunderstood the sampling evidence in this regard.
4. While it is true that the increase in biological and chemical oxygen demand caused by the discharge had the potential to reduce dissolved oxygen concentrations in the water which could lead to respiratory distress and death for aquatic life, there was no evidence that aquatic life suffered respiratory distress as a result of the discharge events.
5. At its highest, the commission of the pollution offence caused actual environmental harm of a minor and transitory nature (s 241(1)(a) of the POEOA) with the potential to cause more serious harm in the manner set out above.

1. The EPA contended that Visy's failure to obtain the EPA's approval for the subsequent intentional flushing discharge as required by condition O4.8 of the licence caused actual harm to the aquatic environment because a greater volume of untreated wastewater was discharged into Sandy Creek. It also caused the untreated wastewater discharged by the unintentional discharge to be moved further downstream out of Sandy Creek and into Gilmore Creek.
2. By contrast, Visy submitted that the commission of this offence did not cause, and was not likely to have caused, any harm to the environment.
3. While the failure to obtain the EPA's approval prior to discharge deprived the EPA of assessing the environmental consequences of it, Visy is correct in its submission that the EPA has not proved to the requisite standard (or indeed any standard) any nexus between the failure to obtain approval and the harm caused by the discharge events. That is, the EPA has adduced no evidence that had approval been sought, it would not have been given or that the intentional flushing discharge would not have occurred. This is relevant because in and of itself, the approval offence caused no environmental harm.

1. In terms of Visy's failure to continuously monitor the volume of liquids discharged by the unintentional discharge because the flow meter had been broken since 2016, the EPA claimed that this caused harm to the aquatic environment because had it been monitored it would have revealed that the discharge was occurring and it could have stopped it sooner. In addition, not knowing the precise volume of wastewater having been discharged into Sandy Creek impeded the investigation and remediation of the incident.
2. With respect to the intentional flushing discharge, the EPA submitted that Visy's failure to continuously monitor the volume of liquids discharged during the intentional flushing discharge resulted in the same harm as the commission of the unintentional discharge.
3. Visy responded by arguing that no harm was caused by the failure to continuously monitor the discharges (both intentional and unintentional). The charges did not concern a failure to have in place a discharge alarm and there was no evidence that a properly functioning flow meter in compliance with condition M8.1 would have otherwise alerted Visy to the occurrence of the unintentional discharge. In any event, the condition merely obligated Visy to record the volume of any discharge.
4. On any reasonable construction of condition M8.1 of the licence, the obligation on Visy was to monitor the discharges and not to merely record them. This accords with the language of the condition, both its text and context, insofar as the licence distinguishes between monitoring and recording (see, for example, conditions M6 and M9 of the licence which deal explicitly with recording).
5. In my view, it cannot be said that the failure to monitor the unintentional discharge caused no harm. It was this discharge that led to the agreed harm to the waterway described above. While the pollution offence curiously only relates to the intentional flushing discharge, it was the unintentional discharge that caused the untreated wastewater to enter the creek systems. Monitoring in conformity with the licence would have reduced the volume of wastewater entering the system and, it may be inferred, would have therefore resulted in less harm occurring. Having said this, the actual harm was, as the evidence discloses, transient and minor. There was, in addition, the potential for harm as explained earlier in the judgment.

1. Visy submitted that to the extent that it could be demonstrated that harm was caused to the environment by the commission of the pollution offence for the purposes of s 241(1)(a) of the POEOA, this finding could not be taken into account with respect to either the approval or monitoring offences because to do so would result in double counting. This submission must be rejected.
2. Section 241(1)(a) of the POEOA requires the Court to separately assess and determine the harm caused to the environment by the commission of each offence (s 241(1)(a) of the POEOA). This is necessary to assess the objective seriousness of the offending conduct for each of the charges to which Visy has entered a guilty plea (Sydney Water Corporation at [269]). There is nothing impermissible in this approach and it does not result in double counting of penalty (Sydney Water Corporation at [270]).
3. Where, as with the present incident, a single series of events has given rise to the commission of four different offences to which separate penalties attach, the Court must instead have regard to the application of the totality principles (see the subsequent discussion on this issue).

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offence

1. It was not a matter of dispute that Visy could foresee the harm caused to the environment by the pollution offence (s 241(1)(c) of the POEOA). The foreseeability of harm to the environment by reason of the discharge of untreated wastewater into waters is self-evident.
2. With respect to the approval offence, Visy submitted that because their commission did not cause environmental harm, s 241(1)(c) of the POEOA had no relevant application. I agree.
3. Visy made a similar submission in relation to the monitoring offences.
4. As the holder of an environment protection licence, Visy was clearly on notice of the possibility of harm to the environment occasioned by carrying out its activities otherwise than in accordance with that licence (Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211 at [81]). In the present case, the absence of monitoring of both the intentional and unintentional discharges meant that unregulated discharges occurred, both of which caused actual and potential environmental harm in the manner described above which was reasonably foreseeable by Visy.

Practical Measures That Could Have Been Taken to Prevent or Mitigate the Environmental Harm

1. Visy accepted that it could have taken practical measures that would have prevented or reduced the environmental harm caused by the commission of the pollution offence. I agree (s 241(1)(b) of the POEOA).
2. The measures were principally those which Visy has taken since the discharge events, including:

(a) updating SOP 3;

(b) separating the treated and untreated interconnected wastewater pipelines involved on the day of the incident. This has eliminated the possibility of discharging untreated wastewater in the future;

(c) installing a gate valve at the discharge point and padlocking the isolation valve;

(d) labelling wastewater valves and pipelines and updating the property's maintenance planning system to include routine inspection work orders;

(e) updating the WSD Inspection Checklist to include a daily visual inspection of the dam outlet value, Sandy Creek discharge valve, and flow meter;

(f) reviewing and updating the SOPs related to wastewater operations and completing operator training;

(g) updating the Site Emergency Response Team schedule to include more scenarios on environmental related incidents. These are in the form of both desktop and practical exercises;

(h) updating the Environmental Incident Response and Spill Response procedures and the Pollution Incident Response Management Plan for the Premises ("PIRMP");

(i) updating the site-specific induction to increase awareness of the licence and PIRMP; and

(j) sending out site communications and conducting a "Toolbox Talk" in relation to the PIRMP, licence and the critical importance of environmental management.

1. Visy does not accept, however, that the approval and monitoring offences caused any environmental harm, and therefore, submitted that s 241(1)(b) of the POEOA had no application.
2. I have accepted Visy's submission in relation to the approval offence but not in respect of the monitoring offences. I find that there were practical measures that Visy could have taken to prevent the harm caused by its breach of licence in this regard. These measures included:

(a) fixing the flow meter upon discovering that it was broken in 2016; and

(b) regularly inspecting and maintaining the flow meter.

Control over the Causes of the Commission of the Offence

1. Section 241(1)(d) of the POEOA requires the Court to take into account the extent to which the person who committed the offence had control over the causes that gave rise to it.
2. The EPA submitted that Visy had complete control over the causes of each offence, including:

(a) the following human and mechanical systems and processes which caused the pollution offence:

(i) human error by Visy's employee failing to close the valve after transferring wastewater between the 6 Meg Dam and the other dams;

(ii) the butterfly valve at the discharge point malfunctioning, thereby allowing the discharge into Sandy Creek and not being properly maintained; and

(iii) Visy's failure to have the practical measures in place that could have either prevented or discovered the unintentional discharge;

(b) human error in failing to comply with the licence condition requiring Visy to obtain the EPA's approval before it made the flushing discharge, which constituted the approval offence; and

(c) human error in failing to comply with the licence condition requiring a flow meter to continuously monitor the volume of liquids discharged into Sandy Creek, which caused the monitoring offences. The evidence discloses that the flow meter had been broken since 2016 and that this was known to Visy's employees at the time of the commission of the offences. It had not been regularly inspected or maintained.

1. It was conceded by Visy that it had complete control over the causes giving rise to the commission of all of the offences. This concession was properly made (s 241(1)(d) of the POEOA).

Visy's State of Mind at the Time of the Commission of the Offence

1. There was no evidence proffered by the parties as to the state of mind of Visy during the commission of the offences save for the fact that Visy had been aware of the broken flow valve.
2. In terms of the pollution offence, the offence was not committed intentionally. During the hearing the EPA suggested for the first time that the offence had been committed negligently, or in the alternative, recklessly (T7:45-8:18). Given that Visy knew of the broken valve well prior to the commission of the offences, there was some force to the submission. However, the EPA later withdrew the contention over Visy's objection to the delay in raising it.
3. An allegation that a crime has been committed negligently or recklessly is serious and should have been raised by the EPA in advance of the hearing as a matter of fairness to Visy.
4. I therefore make no finding as to the state of Visy's mind during the commission of the offences and do not take into account its prior knowledge of the broken valve as a factor in aggravation.

1. Considering the objective circumstances of the commission of the offences, I find that the pollution offence, occasioning actual, albeit minimal and transitory, environmental harm and continuing for 1.5 days over 5.5 kms, to be of low to moderate objective seriousness.
2. I find the remaining offences to be of low objective seriousness, with the approval offence at the lower end of this scale. The commission of the monitoring offences is more objectively serious compared to the commission of the approval offence because Visy knew that the flow meter had been broken since 2016.

1. Pursuant to s 21A(3)(i) of the CSPA, remorse is only a mitigating factor if:

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

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

1. In Waste Recycling Preston J remarked that "contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives" (at [203]). His Honour went on to suggest four ways by which an offender may demonstrate genuine contrition and remorse, which are relied upon without repetition (at [204], [210], [212] and [214]).
2. Visy submitted that it demonstrated contrition and remorse for the commission of the offences by its words and actions, including the actions set out above at [88]. In his written evidence, O'Donovan deposed that:

24. Visy deeply regrets that the incident occurred and that its environmental practices were not acceptable on this occasion. It considers its environmental responsibilities very seriously at all times. It has previously been proud that it operates close to several waterways and until this incident had an otherwise untarnished reputation.

25. Visy is determined that it will not breach the relevant environmental laws again.

1. The EPA accepted that Visy has demonstrated genuine contrition and remorse, including by:

(a) taking responsibility by way of pleading guilty to the offences;

(b) voluntarily reporting the commission of the pollution offence to the EPA shortly after it occurred; and

(c) taking action to address the causes of the offences.

1. I find that Visy's actions and words are evidence of contrition and remorse, which is a mitigating factor.

1. Visy provided assistance to the EPA in the prosecution of the offences (ss 21A(3)(m) and 23 of the CSPA), including by participating in the preparation of the SOAF, voluntarily reporting the pollution offence to the EPA, and taking action to address the causes of the offences.

1. A guilty plea entered at the earliest available opportunity entitles a defendant to the full 25% discount for the utilitarian value of that early plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]).
2. Both Visy and the EPA accepted that Visy entered pleas of guilty to the offences at the earliest available opportunity, namely, the first mention on 15 December 2023. Visy is therefore entitled to the full 25% discount for the utilitarian value of its guilty pleas.

Prior Convictions, Likelihood of Reoffending and Good Character of Visy

1. Visy has no prior convictions (s 21A(3)(e) of the CSPA).
2. I also find that the likelihood that Visy will reoffend to be low, although not negligible due to the broken flow meter of which Visy was aware since 2016 (s 21A(3)(g) of the CSPA).
3. Visy submitted that it is of good corporate character. Visy drew the Court's attention to the following matters in the O'Donovan affidavit in support of this assertion:

(a) it regularly partners with Cool Australia to instil values and awareness on sustainability for the Australian youth by providing free lessons plans, education resources on resource recovery and recycling for councils and schools;

(b) it is involved in social and community initiatives in Tumut and across the surrounding region. The Visy Community Consultative Committee includes members from local communities in Tumut, Adelong, Snowy Valleys Council and Snowy Valleys Business Hub. It meets regularly to offer transparent and fair consideration of the requests for funding and sponsorship received from the community each year;

(c) it contributes funds to the Pratt Foundation which is the philanthropic arm of the Visy Group. Since 1978, the Pratt Foundation has funded over 10,000 philanthropic projects, making over $350 million in charitable donations. This is done in consultation with community partners in Australia and New Zealand across a broad spectrum of society, including supporting food security, mental health, the arts, education, cancer care, First Nations' advancement, and the environment; and

(d) Visy Tumut provides in excess of $30,000 annually to the local community, being a major sponsor to many local events including the Annual Business Snowy Valleys Awards, Autumn Falling Leaf Festival, Rock The Turf (Blues, Brews & BBQ's), as well as providing funding to local schools and other community organisations and sporting groups. Some recent examples of Visy's contributions to the Tumut region include:

(i) $1 million to the Tumut Region Recovery Fund in January 2020;

(ii) $100,000 to the NSW Rural Fire Service (Tumut Regional Fire Brigades) in January 2020;

(iii) $10,000 to the Yaven Creek Bushfire Brigade (Tumut Regional Fire Brigades) in May 2020;

(iv) two payments of $80,000 to the Clontarf Foundation - Tumut Academy in June 2021 and February 2022; and

(v) $25,000 to Big Brothers Big Sisters - Youth Mentoring Tumut Program in June 2023.

1. I find that Visy is of good character (s 21A(3)(f) of the CSPA).

1. The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at [569]- [570] per Brennan J).
2. The penalty imposed by the Court must serve as a general deterrent (Axer at [359]; Camilleri's Stock Feeds at [701] and Bentley at [139]; see also s 3A(b) of the CSPA). In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Preston J discussed general deterrence in the context of sentencing for environmental crime (at [66]-[68]). Those principles are respectfully applied here without repetition.
3. In this case, I accept the EPA's submission that because Visy will continue to operate its paper and pulp production plant at the same location, this warrants the need to consider specific deterrence as an aspect of punishment. Specific deterrence in this case is further necessitated by the failure of Visy to address the broken flow meter.
4. Visy submitted that specific deterrence is of lesser importance than would otherwise be the case in view of the evidence demonstrating that it has appropriate insight into its offending, has taken steps to address the causes of the commission of the offences, and is unlikely to re-offend. While this is true, I nevertheless consider that specific deterrence is relevant in the present case.
5. I further accept that embedded in the determination of the appropriate sentence to be imposed on Visy is an element of general deterrence in order to ensure that holders of EPLs comply with the conditions of their licences, especially conditions that are designed to avoid or reduce incidents of water pollution.

1. The task of the sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at [177] and R v Visconti [1982] 2 NSWLR 104 at [107]). Care must be taken in comparing cases where the circumstances of, and facts relating to, the offences may be quite different (Axer at 365).
2. The EPA provided the Court with a table of five comparable cases relating to breaches of ss 64(1) and 120(1) of the POEOA (Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd (No 3) [2022] NSWLEC 136, Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178, Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39, P&M Quality Smallgoods and Environment Protection Authority v Wambo Coal Pty Ltd [2017] NSWLEC 152).
3. I have had regard to these and other cases referred to by the parties, the most relevant of which, in my view, is Charlotte Pass.
4. In Charlotte Pass, the defendant operated a sewage treatment plant and discharged 11,645,632 L of effluent into a tributary of Spencer's Creek. The discharge was caused by a failure to maintain bubble diffusers within the treatment tanks. The Court found that the offences were in the low to moderate range of objective seriousness (at [160]) on the basis that there was actual harm that was not substantial and caused minimal change to the chemical composition of the Creek (at [146] and [150]). The harm was reasonably foreseeable (at [156]), the defendant had complete control over the commission of the offences (at [158]), and there were various practical measures available to it to reduce the harm (at [159]). Mitigating factors included that the defendant had demonstrated contrition and remorse (at [165]), provided assistance to the EPA (at [174]), was of good character (at [177]), and had good prospects of rehabilitation (at [178]). The Court applied a 25% discount for the utilitarian value of the defendant's early guilty plea and imposed a fine of $96,000 for the pollution offence and $96,000 for the licence breach offence, the totality of which was reduced to $144,000. An order for moiety and a publication order were made.

1. The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]- [63], Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40], Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18] and Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [111]- [112]).
2. Because the four offences arise out of the same, common or related conduct, the totality principle applies. The effect of the principle is to require the Court to review the totality of the sentence to consider whether the penalty imposed is just and appropriate and whether it reflects the overall criminality of the offender before the Court. Care must nevertheless be taken "to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence" ( ; at and ; at and [201]).

1. The EPA sought an order for its professional costs as agreed under s 257B of the Criminal Procedure Act 1986.
2. In addition, the EPA sought an order pursuant to s 248 of the POEOA, that Visy pay the EPA's costs and expenses incurred during the investigation of the offence in the agreed amount of $28,114 (rounded up).
3. Visy did not cavil with either proposed order.
4. In the exercise of the Court's sentencing discretion, I have taken into account the costs payable by Visy in determining the appropriate sentence to be imposed upon it (Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78]- [88]).

1. The EPA seeks a publication order pursuant to s 250(1)(a) of the POEOA. Visy does not oppose the making of such an order but disputes the content of the notice to be published as proposed by the EPA.
2. In the context of sentencing, a publication order serves the functions of general deterrence, denunciation, and a recognition of the harm caused by the offending conduct (Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 at [105] and Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [76]). Visy's offending conduct was not trivial and occasioned actual and potential environmental harm. Visy continues to operate in the pulp and paper industry. These factors weigh in favour of making a publication order. Having regard to the circumstances of this case, I find that the making of such an order to be appropriate.
3. The dispute in relation to content was two-fold:

(a) first, in lieu of the notice being placed in The Sydney Morning Herald, Visy preferred that it be published on its website. It submitted that in circumstances where the notice was to be published in three other publications, including The Daily Telegraph, publication in The Sydney Morning Herald was unnecessary; and

(b) second, Visy objected to the inclusion in the notice of a photograph taken on 28 October 2022 of the foam in Gilmore Creek caused by the discharge of untreated wastewater. This was because, according to Visy, the photograph was apt to mislead insofar as it did not accurately reflect the overall environmental harm, which was limited, caused by the commission of the offences.

1. Visy was not able to provide the Court with any indication of how often its website was accessed and by who. It may be doubted, however, that on any given day the traffic to it is comparable to the daily circulation of The Sydney Morning Herald. Visy was also not able to demonstrate that the readership of, for example, The Daily Telegraph, was coincident with that of The Sydney Morning Herald.
2. Having regard to the purpose in making a publication order, I am of the opinion that the notice should be published in all four publications identified by the EPA.
3. However, I agree with Visy that the inclusion of the photograph has the very real potential to mislead readers of the notice. It captures, as any photograph does, a moment in time that does not accurately reflect the impermanence and insubstantial nature of the harm caused by the commission of the offences, including the pollution offence. The photograph amplifies the visual depiction of harm caused by the incident in a manner that is unfair to Visy and does not reflect its offending. It ought therefore be excluded from the publication order.

1. The EPA submitted that pursuant to s 250(1)(e) of the POEOA, Visy should pay the amount of any fine to the Environmental Trust (established under the Environmental Trust Act 1998) for general environmental purposes.
2. In further submissions Visy argued that while it consented to any monetary penalty being paid to the Environmental Trust, the funds should be directed to the carrying out of a specific project, namely, the Sandy Creek Revegetation Project ("the revegetation project"). This was opposed by the EPA, who, in fairness to it, had not seen any details of the proposal prior to the hearing.
3. The Court was subsequently furnished by Visy with additional information concerning the revegetation project. But even with this material, there is still, in my opinion, insufficient detail for the Court to make the order proposed by Visy. For example:

(a) there is no evidence before the Court demonstrating that Sandy Creek requires revegetation or that the project will in fact protect and enhance its biodiversity;

(b) the qualifications and expertise of the author of the proposal are not known;

(c) the timeframe to complete the project is not known, even assuming its approval by NSW Water; and

(d) the revegetation project is contingent upon third party approvals.

1. I therefore decline to make the order suggested by Visy.

1. Having regard to the objective seriousness of the offences and the subjective factors of Visy, I find that the imposition of a monetary penalty is warranted for each offence as follows:

(a) for the pollution offence a fine of $100,000;

(b) for the approval offence a fine of $50,000;

(c) for the first monitoring offence a fine of $100,000; and

(d) for the second monitoring offence a fine of $75,000.

1. After the application of the 25% discount for the utilitarian value of the early guilty pleas, the penalty for the commission of each offence is reduced to:

(a) for the pollution offence a fine of $75,000;

(b) for the approval offence a fine of $37,500;

(c) for the first monitoring offence a fine of $75,000; and

(d) for the second monitoring offence a fine of $56,250.

1. Applying the totality principle, the final penalty for the commission of the offences are as follows:

(a) for the pollution offence a fine of $75,000;

(b) for the approval offence a fine of $20,000;

(c) for the first monitoring offence a fine of $50,000; and

(d) for the second monitoring offence a fine of $30,000.

1. This brings the total amount of the monetary penalty to be imposed to be $175,000.

1. In conformity with the reasons given above, the Court makes the following orders:

(1) the defendant is convicted of the offence contrary to s 120(1) of the Protection of the Environment Operations Act 1997 as charged;

(2) the defendant must pay a monetary penalty in the sum of $75,000;

(3) the defendant is convicted of the offence contrary to s 64(1) of the Protection of the Environment Operations Act 1997, as charged;

(4) the defendant must pay a monetary penalty in the sum of $20,000;

(5) the defendant is convicted of the offence contrary to s 64(1) of the Protection of the Environment Operations Act 1997, as charged;

(6) the defendant must pay a monetary penalty in the sum of $50,000;

(7) the defendant is convicted of the offence contrary to s 64(1) of the Protection of the Environment Operations Act 1997, as charged;

(8) the defendant must pay a monetary penalty in the sum of $30,000;

In proceedings 2023/338213, 2023/338215, 2023/338216 and 2023/338217

(9) in lieu of the monetary penalties ordered above at [141(2)], [141(4)], [141(6)] and [141(8)] pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, the defendant is to pay an amount of $175,000 to the Environmental Trust established under the Environmental Trust Act 1998 for general environmental purposes within 28 days of the date of this order;

(10) pursuant to s 257B of the Criminal Procedure Act 1986 the defendant is to pay the prosecutor's professional costs as agreed or assessed under s 257G of that Act;

(11) pursuant to s 248(1) of Protection of the Environment Operations Act 1997, the defendant is to pay the prosecutor's costs and expenses incurred during the investigation of the offence in the agreed amount of $28,114;

(12) within 28 days of the date of this order and pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, the defendant is to, at its own expense, cause a notice in the form of annexure 'A' to these orders to be placed within the first 12 pages of the following publications, at a minimum size of a quarter of a page:

(a) The Sydney Morning Herald;

(b) The Daily Telegraph;

(c) the Tumut and Adelong Times; and

(d) The Daily Advertiser;

(13) within seven days of the date of publication of the notices referred to above, the defendant is to provide the prosecutor with a complete copy of the notices as published; and

Visy Pulp and Paper Pty Ltd Convicted of Licence Breach and Water Pollution Offences and Ordered to Pay $175,000

Visy Pulp and Paper Pty Ltd ("Visy") has been convicted and ordered by the Land and Environment Court of NSW to pay to the Environmental Trust the sum of $175,000 for breach of its environment protection licence and water pollution. This money will be used by the Environmental Trust to fund environmental projects.

On 27 and 28 October 2022 untreated wastewater was discharged from Visy's paper and pulp production plant into Sandy Creek in Tumut. The discharge occurred because a valve was inadvertently left open during a wastewater transfer, releasing the untreated wastewater from a storage dam at the plant. A second valve malfunctioned and allowed the untreated wastewater to enter Sandy Creek. After the discharge was discovered, Visy flushed the reed-lined channel leading from the discharge point to Sandy Creek with treated wastewater.

The discharged wastewater polluted the water in Sandy Creek and Gilmore Creek, which Sandy Creek flows into. The discharged wastewater was highly alkaline, causing an increase in pH of the water in Sandy Creek and Gilmore Creek that exceeded water quality guidelines for ecosystem protection and to levels that are harmful to aquatic life. The pH of Sandy Creek and Gilmore Creek had returned to normal levels on 29 October 2022 and there was no evidence of any harm caused to aquatic life.

Since the incident, Visy has made changes at the plant to improve its environmental performance.

On 27 May 2024 the Land and Environment Court convicted Visy of three offences against s 64(1) and one offence against s 120 of the Protection of the Environment Operations Act 1997, for breach of licence and water pollution, and ordered Visy to:

1. pay an amount of $175,000 to the Environmental Trust in lieu of a fine;

2. pay the EPA's professional and investigation costs; and

3. publish this notice in The Sydney Morning Herald, The Daily Telegraph, Tumut and Adelong Times and The Daily Advertiser.

31 May 2024 - "Slip-rule" amendment to Environment Protection Authority v Visy Pulp and Paper Pty Ltd [2024] NSWLEC 55

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, by consent the Court amends its judgment in Environment Protection Authority v Visy Pulp and Paper Pty Ltd [2024] NSWLEC 55 by:

1. deleting the word "is fined" at [141(2)], [141(4)], [141(6)] and [141(8)] and inserting instead the words "must pay a monetary penalty in";

2. inserting the words "in lieu of the monetary penalties ordered above at [141(2)], [141(4)], [141(6)] and [141(8)]" at the commencement of [141(9)]; and

3. deleting the word "redlined" and inserting instead the word "reed-lined" in annexure 'A'.