Environment Protection Authority v Warkworth Mining Limited

The Company's Environmental Protection Licence

1. Amongst the regulatory approvals that the Company is required to have for the purposes of operating its mine, the Company is required to have an Environment Protection Licence (EPL) issued by the Environment Protection Authority (the Prosecutor) pursuant to the provisions of the Protection of the Environment Operations Act 1997 (the POEO Act). The Company's EPL sets out the suite of environmental conditions to which the Company is required to adhere during the course of its operations. The failure of the dam constitutes a breach of one of those conditions, condition O1.1, a condition in the following terms: O1.1 Licensed activities must be carried out in a competent manner. This includes: a. the processing, handling, movement and storage of materials and substances used to carry out the activity; and b. the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity.
2. A breach of a condition of an EPL is an offence. The offence is created by s 64(1) of the POEO Act, a provision in the following terms: 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. Maximum penalty: (a) in the case of a corporation - $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) ...

The prosecution of the Company

1. On 15 December 2016, the Prosecutor filed a summons to commence these proceedings to prosecute the Company for the breach of its EPL occasioned by the failure of the dam. Prior to the commencement of the prosecution, there was negotiation between the Company and the Prosecutor as to whether the appropriate regulatory response to the failure of the dam should be by the Company giving an enforceable undertaking as an alternative to prosecution. Those negotiations were unsuccessful.
2. After the Prosecutor commenced proceedings, negotiations continued between the Company and the Prosecutor concerning the terms of a Statement of Agreed Facts (SOAF). When that document had been agreed to by the Company and the Prosecutor, on 21 April 2017, the Prosecutor was granted leave to amend its summons initiating the prosecution. That leave was granted by Sheahan J.
3. At that time, the Company entered its guilty plea to the charge of breaching s 64(1) of the POEO Act. The Prosecutor accepts that, for the purpose of the sentencing proceedings giving rise to this judgment, that guilty plea had been entered by the Company at the earliest available opportunity. The beneficial sentencing consequence of this for the Company is discussed later.

The sentencing hearing

1. The matter was set down for a sentencing hearing on 3 August 2017. The Prosecutor was represented by Mr S Davey, Senior Legal Officer in its Litigation Branch, whilst the Company was represented by Mr C Ireland of counsel. As a consequence of the Company's entry of its guilty plea, there was no factual contest between the parties, although there was some contest later dealt with concerning what conclusions were to be drawn from the evidence. Nonetheless, the Company's guilty plea meant that there was no need for any oral evidence and the hearing was conducted in an efficient fashion, being concluded in the less than a full court day.

The evidence

1. The evidence tendered on behalf of the Prosecutor comprised:

• The SOAF and the eight documents annexed to the SOAF and incorporated by virtue of being referred to in that document. The SOAF was Exhibit A; and
• The proposed additional orders sought by the Prosecutor with regards to the publication notice were Exhibit B.

1. Two affidavits were read on behalf of the Company. These affidavits were from:

• Mr Colin Mackey, General Manager Operations - Mount Thorley Warkworth; and
• Mr Andrew Speechly, Manager Environment & Community - Mount Thorley Warkworth.

1. The makers of these affidavits were not required for cross-examination. The nature of the evidence which was given by them is considered later. Mr Ireland also tendered two elements of documentary evidence. These were:

• An A3 version of a marked-up air photo showing the Company's mine site with, relevantly, the location of the dam; Wallaby Scrub Road and the MPW Dam being marked on it. This document, at A4 size, was already in evidence as Attachment 1 to the SOAF. This A3 version of the marked-up air photo became Exhibit 1; and
• Correspondence between the Company's legal representatives and the Prosecutor setting out an agreement on two confined points. This correspondence became Exhibit 2.

1. The two points that were the subject of the agreement demonstrated by Exhibit 2 were the striking out of both:

• An assertion that the D5 Standard applied to the dam; and
• An assertion that water and sediment-laden water was deposited on the verge of Wallaby Scrub Road with water extending to the road's edge.

The Company's guilty plea

1. I have earlier noted that the Company entered its guilty plea at what the Prosecutor accepts (as do I) was the earliest practicable opportunity in response to the Prosecutor's amended summons.
2. I have carefully read the SOAF and its documentary attachments, as well as examining the various photographs of the dam and of the water flow of the sediment-laden discharge emitted as a consequence of the dam's failure. These photos also form part of the attachments to the SOAF.
3. I am satisfied, on the basis of this evidence, that the Company's plea of guilty has been entered appropriately and that the Company should be convicted of the charge laid against it by the Prosecutor.

The statutory sentencing framework

1. In addition to the POEO Act, relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) also require consideration. It is, therefore, appropriate now to set out all the relevant statutory provisions that I am required to consider in sentencing the Company for the offence to which it has pleaded guilty. The POEO Act sets out, in s 241, the specific matters that this Act mandates to be considered in sentencing for offences created by that legislation. The terms of s 241 are: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant.
2. The Sentencing Procedure Act is an act of broad application, setting out matters requiring to be considered as part of a general sentencing framework. As a consequence, a number of the matters mandated to be considered are only engaged if the nature of the offending conduct warrants it. The broad objectives for sentencing are set out in s 3A of the Sentencing Procedure Act, a provision in the following terms: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
3. The Sentencing Procedure Act also sets out, in s 21A, the range of aggravating and mitigating factors potentially engaged for consideration when sentencing after conviction. None of the statutory aggravating factors in s 21A(2) are engaged in this matter. However, the Prosecutor proposes that I should conclude that the Company was criminally negligent. That conclusion is permissible (although I reject it for reasons later discussed) pursuant to s 21A(1)(c).
4. The relevant elements of s 21A are reproduced below: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors … (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) …, (c) …, (d) …, (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) …, (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), (j) …, (k) a plea of guilty by the offender (as provided by section 22), (l) …, (m) assistance by the offender to law enforcement authorities (as provided by section 23).
5. The manner of engagement of each of these relevant elements is later specifically considered.
6. Finally, as noted in s 21A(3)(k), the Sentencing Procedure Act contains s 22(1), a specific provision here engaged setting out how a sentencing court is to respond to a guilty plea. This provision is in the following terms: 22 Guilty plea to be taken into account (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed.

Introduction

1. The dam that failed was, originally, a small, farm dam that had been used as part of the agricultural activities on the Company's site prior to its acquisition and the establishment of the mine. As part of the Company's management of stormwater run-off on the site, it was determined to expand the holding capacity of the farm dam and, in doing so, to increase, very substantially, the volume of water capable of being stored in the dam.
2. The Company contracted Les Russell & Son Pty Ltd to undertake the necessary earthworks to expand the size of the dam and increase its capacity to 8.9 megalitres. These reconstruction activities were undertaken in May 2015, about eight months before the rain period causing the dam's failure, giving rise to the offence charged.
3. The construction process adopted simply involved the extraction of material necessary to create the required volumetric space desired, with the extracted material being used to form the new, raised wall of the dam. The way that this was undertaken by the contractors is described in the SOAF in the following terms: 19. The dam structure that was in operation at the materially relevant time was constructed at the direction of the defendant in 2015 by Les Russell and Son Pty Ltd through the modification of an existing small farm dam which included using local soils on a clay base to extend the height of the embankment wall. The embankment of the dam was under 3m high. 20. The dam construction was achieved through a process that primarily involved widening the pond basin and heightening and building up the wall of the pre-existing dam to create a larger embankment wall and thereby expand the holding volume of the pond. 21 The construction method employed was to cut fill from the basin of the existing dam, spread it atop the existing dam wall, and then track roll the fill using a D6 bulldozer.
4. The contractor's activities were not supervised by an engineer. Although the Company had a risk management assessment process which might have included an inspection of, and assessment of, such risks as might be associated with this revised structure, this dam was not included in the Company's risk assessment processes. This is discussed in the SOAF in the following terms: Departure from the site's standards and operating procedures 78. No design risk assessment was carried out prior to the construction of the embankment wall of the [dam - sic] as required by the policy in operation. 79. In late 2015, an assessment of infrastructure including dams at the Mine was undertaken. The defendant did not carry out an assessment of the Dam involved in this incident as it regarded it to only pose a moderate risk based on its own risk matrix. 80. At no time between its construction and the incident was the Dam the subject of a risk assessment, or any review of the inflow design or spillway design. 81. The dam was also captured by the mining operation's 'Water Management Plan' (WMP). 82. The WMP required sediment dams to be designed generally in accordance with the requirements of the 'Blue Book' - 'Managing Urban Stormwater: soils and construction', a guide produced by what is now known as the NSW Department for Planning and the Environment. 83. The Blue Book 2004 provides guidelines for the Design of Sediment Basins and indicates that sediment basins should have emergency spillways designed to at least 1:10yr ARI:- ie s6.1.3 "(f) Construct temporary works for control of pollution to be stable in runoff from the design storm event, usually taken to be the 10-year ARI time of concentration event. Design should take into consideration the implications of larger storm events and emergency spillways should be constructed where appropriate"; and also s6.3.3 "(j) Sediment retention basins should be built to incorporate an emergency spillway designed to have a capacity to pass the peak flow from the applicable storm event. Generally, this should be of open construction rather than a pipe outlet due to the risk of pipe blockages during high flows". 84. The volume of the dam was designed to the stipulation in the Blue Book that says a sediment pond shall have the capacity to store run off from 31mm of rainfall in 5 days on the 18 ha catchment. While the dam was designed in accordance with the Blue Book 2004 guidelines for sizing F and D Sediment Basins, it did not have an emergency spillway as recommended, in the Blue Book 2004.
5. In this context, four documents are to be noted. The first two of them are post failure assessment, internally produced within the Rio Tinto Group - being documents prepared by Bruce Brown and Adrian Boyd. These assessment documents were Annexures 6 and 7 to the SOAF. The third document is an externally produced, post failure assessment prepared by Andrew Russell of Parsons Brinkerhoff, an engineering consultancy. The Parsons Brinkerhoff report was Annexure 8 to the SOAF.
6. The final document, like the bark of Conan Doyle's Hound of the Baskervilles, is absent. This document is the Company's risk assessment matrix, earlier referred to in the extract from the SOAF, dealing with the Company's risk assessment processes and the non-inclusion of this dam structure in any pre‑failure risk assessment.
7. The Prosecutor submits that the absence of any appropriate professional supervision of the construction of the dam, when coupled with the failure to include the dam in the risk assessment process undertaken by the Company, demonstrated the Company's negligence in the period leading up to the failure of the dam. This, the Prosecutor submitted, was negligence in a fashion that warranted being treated as criminal negligence and, hence, an aggravating factor to be taken into account when sentencing the Company for the offence to which it has pleaded guilty.
8. I have carefully read the two post event reports commissioned by the Company that have been tendered as attachments to the SOAF. Initially, it is to be observed that, self-evidently, these two reports are prepared with the benefit of the focus and clarity provided by hindsight. It is unnecessary, in my assessment, to undertake an analysis of these documents in any detail. I am satisfied that they do establish that there was a lack of prudence on behalf of the Company in its failure to ensure proper supervision of the contractor carrying out the works to enlarge the dam. The failure to do so left the Company, it is now evident, with a structure that was inherently defective and not fit for purpose.
9. It is also clear from a reading of these reports that it was at least likely that a post construction inspection of the dam (but before the dam's filling to the extent caused by the rain in the January 2016 rainfall event) might have revealed, prior to it being filled to a volume that would cause failure (as occurred), that such a failure was a possibility.
10. It is to be observed that, for me to conclude that the Company's failures constituted criminal negligence in a fashion requiring it to be taken into account as a factor of aggravation in my sentencing process, the Prosecutor must satisfy me that this is the position to the criminal standard of proof.
11. However, as earlier observed, this dam structure was not the subject of a risk assessment, as such an assessment was not mandated by the Company's risk management matrix. As I have earlier observed, the document, or documents, providing the foundation for the absence of a risk management assessment are not in evidence before me. Had such foundational documentation underpinning the Company's decision been in evidence, it might have been possible to assess whether the decision to omit this dam from the risk assessment process was a rational one or not.
12. Absent that element, I cannot be satisfied that the Company's failure to supervise, and subsequently inspect pre-failure, could be regarded as being demonstrative, beyond reasonable doubt, of negligence to an extent warranting being regarded as an aggravating factor.
13. For the reasons set out above, I do not, therefore, make the finding that the Company was criminally negligent.

Introduction

1. The facts giving rise to the offence have been set out earlier in this judgment, as has the statutory basis for the charge against the Company. It is against those facts, and the offence itself, that the objective factors are to be considered. The subjective factors are those that are peculiar to the Company in this context.
2. In Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178, Preston CJ set out, at [48], a list of matters potentially to be taken into account when assessing the objective gravity of an environmental offence. This list was not expressed as exhaustive. The matters listed by his Honour were: ● the nature of the offence; ● the maximum penalties for the offence; ● the harm caused to the environment by commission of the offence; ● the state of mind of the offender in committing the offence; ● the offender's reasons for committing the offence; ● the foreseeable risk of harm to the environment by commission of the offence; ● the practical measures to avoid harm to the environment; and ● the offender's control over the causes of harm to the environment.
3. In Plath v Rawson, Preston CJ also set out, at [140], the favourable factors, specific to the offender, able to be taken into account within the limits set by reference to the objective gravity of the offence. This list is also not to be seen as exhaustive. The matters of this nature listed by his Honour were: ● lack of prior criminality; ● corporate good character; ● plea of guilty to the offences; ● contrition and remorse; and ● assistance to authorities.
4. Those matters relevant to these proceedings from each of the above lists, together with any other relevant matters, are discussed below. I now turn to address the relevant factors concerning the Company.

The maximum penalties

1. As earlier set out, the maximum penalty for a corporation for this offence is $1,000,000. The maximum available penalty is to be taken as being the legislature's understanding and reflection of contemporary community standards concerning the offences involved (Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 at [33]).
2. The maximum penalty is also significant in determining the objective seriousness of the offence: Plath v Rawson at [57]. The maximum penalty also demonstrates the seriousness with which the offence charged is viewed: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.
3. The size of the penalty also "indicates the gravity of the offence as perceived by the community" (Camilleri's Stock Feeds, also at 698).

Introduction

1. This section of my consideration requires an analysis of those matters that relate to the Company itself, rather than to the offence that gave rise to the charge to which it has pleaded guilty.

Introduction

1. The first relevant factor is that in s 21A(3)(a) of the Sentencing Procedure Act as to whether I could be satisfied that "the injury, emotional harm, loss or damage caused by the offence was not substantial". These matters also link to consideration of s 241(1)(a) of the POEO Act.

The extent of the harm

1. Although some five cubic metres of the sedimentary material transported by the water discharged when the dam failed was deposited within the road reserve of Wallaby Scrub Road, or on the verge of that road, there is no evidence that there has been any permanent environmental or other damage to the public domain. There is no suggestion that, on the Company's land on either side of the road corridor, there has been any permanent environmental harm occasioned as a consequence of the passage of the sediment-laden water or the depositing of sedimentary material from it.
2. In an anthropocentric sense, the Prosecutor conceded that there was no evidence that water passed over, or deposited sediments on, the surface of Wallaby Scrub Road proper, and that, in that regard, there was no public risk. Whilst the Prosecutor suggested that I might conclude from the photographic evidence that the water on the road verge constituted some hazard to passing motorists, I am unable to accept this proposition. There was no evidence that would permit me to conclude that there was any reason why a prudent road user would need to cause their vehicle to depart from the sealed road surface onto the verge at this location.
3. Under these circumstances, I am satisfied that such harm as may have been occasioned within the road reserve was transient and, to the extent that there might have been some minor risk of ongoing harm to vegetation, that has been addressed adequately by the Company's clean-up and remediation activities as later discussed.

Potential harm to the environment

1. Preston CJ set out, under the heading "Objective harmfulness of offence", in Environment Protection Authority v Waste Recycling and Processing Company 148 LGERA 299; [2006] NSWLEC 419 (at [145]), a number of principles. The first of them, relevant in these proceedings, is that: Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account.
2. I have earlier discussed the nature of the sediment-laden water that was discharged. It is self-evident that the "potential or risk of harm" from the unconstrained discharge of such polluted waters was not high.

Foreseeability of harm

1. The POEO Act requires my consideration of "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" (s 241)(1)(c)) in the circumstances of this incident.
2. Whilst I am satisfied that the failure of the dam and, therefore, the consequences of the failure of the dam were entirely foreseeable, given my conclusion set out above concerning the extent of the harm, this foreseeability is not a factor of significance in these proceedings.

Control over the causes of the harm

1. The POEO Act also requires my consideration of "the extent to which the person who committed the offence had control over the causes that gave rise to the offence" (s 241)(1)(d)) in the circumstances of this offence.
2. Whilst it is clear that the Company had complete control over the causes of the harm, my conclusion as to the extent of the harm itself renders this factor of limited significance.

Practical measures the Company could have taken to prevent harm

1. It is reasonable to conclude that there were steps within the Company's control which, if implemented, could have prevented the failure of the dam. Such steps at least included the appropriate supervision of the reconstruction of the dam and a proper post reconstruction inspection by an appropriately qualified person.

Conclusion on harm/environmental harm

1. That which I have set out above leads me to conclude that, although the actual harm was insubstantial, the failure of the dam was foreseeable and preventable.

Prior convictions

1. The second relevant factor is that in s 21A(3)(e) of the Sentencing Procedure Act as to whether the Company has "any record (or any significant record) of previous convictions".
2. The extent to which the Company may have been convicted in the past, for environmental or other offences, is a matter of relevance in my sentencing consideration. The Prosecutor acknowledges that the Company has no prior convictions for environmental offences.
3. It is, therefore, appropriate that I have regard to this absence of prior convictions as a matter in favour of the Company in undertaking my instinctive synthesis of all relevant factors in this sentencing process.

The Company is a good corporate citizen

1. The third relevant factor is that in s 21A(3)(f) of the Sentencing Procedure Act as to whether the Company is "of good character".
2. To permit me to assess whether or not I should regard the Company as being of "good character", for the purposes of this provision, Mr Mackey's affidavit said: 11 Warkworth, as a corporate defendant, is of good character. In particular, Warkworth has: (a) in the year to date donated approximately $30,000 to local community groups including the Northern Agricultural Association Inc, Wildlife Aid Inc, Australian Families of the Military and the Rotary Club of Singleton, among others; (b) as part of the wider Coal & Allied Community Fund, has contributed approximately $970,000 to local projects for the 2017 calendar year; and (c) ...
3. In light of this uncontradicted evidence, I am satisfied that the Company is to be regarded as a good corporate citizen and that this factor is to be taken into account in my instinctive synthesis process in arriving at an appropriate penalty for the offence charged.

Likelihood of reoffending

1. The fourth relevant factor is that in s 21A(3)(g) of the Sentencing Procedure Act as to whether the Company "is unlikely to re-offend". This is also relevant, for the future, to prevention and, thus, avoidance of the potential for future incidents of this type. This is relevant as part of my consideration of matters required by s 241(1)(b) of the POEO Act.
2. In the next section, I deal with, amongst other matters, the steps now taken by the Company to ensure that such an incident will not occur in the future. I am satisfied that these reflect proper and measured preventative responses by the Company, rendering it unlikely that the Company will reoffend.

Introduction

1. The fifth relevant factor is that in s 21A(3)(i) of the Sentencing Procedure Act as to whether the Company "has shown remorse for the offence". This engages consideration of two elements contained in the provision that are both required to be satisfied. These, relevantly adapted, are: 1. Whether the Company has provided evidence that it has accepted responsibility for its actions, and 2. Whether the Company has acknowledged any loss caused by its actions and has made reparation for such loss.
2. Pepper J set out, in Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 at [80] - an approach endorsed by Robson J in Environment Protection Authority v Terrace Earthmoving Pty Ltd [2016] NSWLEC 158, the four types of action which may demonstrate genuine contrition and remorse in satisfaction of these requirements: (a) first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence… (b) second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities… (c) third, taking action to address the cause of the offence…and (d) fourth, the personal appearance of corporate executives in court to give personal evidence of the defendant's regret and a plan of action to avoid repetition of the offence [references excluded]

Taking responsibility for the consequences of the dam's failure

1. I have already set out the limited nature of the impact in the public domain of the discharge of the sediment-laden water. This discharge effected the depositing of approximately five cubic metres of sedimentary material in the road reserve of Wallaby Scrub Road and on the verge of the road itself.
2. I now set out how the Company took remedial action to remove the sediment from the road reserve of Wallaby Scrub Road and took steps to revegetate it. Mr Speechly's affidavit records: 9 On 13 January 2016, Warkworth commenced the clean-up following the incident which involved the removal of sediment from the Mine site on both the eastern and western sides of Wallaby Scrub Road. The sediment laden water travelled from one side of Wallaby Scrub Road to the other through a culvert. The clean-up was completed on 22 January 2016. 10 The clean-up involved: (a) the removal of sediment from the Mine site and within the road reserve on Wallaby Scrub Road; and (b) seeding areas with native vegetation and installing hay bales, mulch and silt fencing for sediment stabilisation.

Reporting of the offence

1. After the Company became aware of the failure of the dam, the Company notified the Prosecutor that this had occurred. Mr Speechly's affidavit records: 8 Approximately 4 hours after the incident was first observed by Warkworth personnel, Warkworth voluntarily notified the incident to the Environment Protection Authority (EPA), the NSW Department of Planning and Environment and Singleton Council.

Addressing the causes of the offence

1. Mr Speechly's affidavit also set out the practical responses that have been implemented to prevent the possibility of a recurrence. His affidavit describes these as: 12 The following steps have been taken by Warkworth to minimise the likelihood of a similar incident occurring in the future: (a) engineering assessment of the remnant dam wall and subsequent re-design of the dam to provide additional water holding capacity below the dam wall and installation of an engineered spillway; and (b) development of an internal standard for construction of small dams, requiring new dams to be risk assessed prior to construction to determine the level of engineering required commensurate with risk.

Corporate apology and regret

1. I have earlier noted that an affidavit from Mr Mackey was read on behalf of the Company. Mr Mackey's affidavit also outlined his awareness of the relevant material facts concerning the offence and expressed the Company's sincere regret that the incident had occurred. The relevant portions of his affidavit read: 6. On behalf of Warkworth, I sincerely apologise for committing an offence against section 64(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) and breaching a condition of Warkworth's environment protection licence (Offence). Warkworth's remorse is demonstrated by the following: (a) voluntarily reporting the incident to the Environment Protection Authority (EPA), the NSW Department of Planning and Environment and Singleton Council; (b) completing the clean-up of the premises and road reserve with approximately 16 days of the incident; (c) taking immediate action to address the causes of the incident, such as the installation of a larger pump and sediment fencing as well as excavation behind the embankment; (d) taking steps to minimise the likelihood of a similar incident occurring in the future, such as development of an internal standard for construction of small dams. 7. Further details in relation to each of these matters are contained in the affidavit of Andrew Martin Speechly dated 21 June 2017. The facts and statements referred to in that affidavit are known to me and have been relied on in affirming this affidavit.
2. I am satisfied that the Company has appropriately expressed its contrition and remorse for the event which has given rise to prosecution for these offences.

Reparation

1. Under the circumstance of this offence, issues of reparation do not arise.

Conclusion on contrition and remorse

1. On the basis of the material set out that demonstrates the Company having adequately addressed the impacts of its failures with respect to this dam, together with Mr Mackey's affidavit evidence of the Company's apology, which I accept was genuine, I am satisfied that the Company is properly remorseful for its failure. As a consequence, the Company is entitled to have this taken into account as a factor in its favour in the sentencing process.

Assistance to the Prosecutor

1. The Sentencing Procedure Act requires, in s 21A(3)(m), that I have regard to the assistance given by the Company to the Prosecutor. To the extent that the Company has provided such assistance, this factor also acts in the Company's favour in mitigation of the penalty that would otherwise be imposed.
2. On this point, I have uncontested evidence on this point set out in the affidavit by Mr Speechly. The relevant portion of his affidavit was in the following terms: 13 In the course of the EPA's investigations into the incident, Warkworth has assisted the EPA in the following ways: (a) Facilitating and escorting the EPA's investigators around the Mine site on 2 February 2016. (b) Responding to the EPA's 'Notice to Provide Information and/or Records' pursuant to section 193 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). (c) Coordinating and facilitating the EPA's interviews with the following Mine personnel: (i) Lindsay Lawrence (Pump Crew Operator) on 19 April 2016; (ii) John Capsanis (Manager - Operations, Support & Projects) 19 April 2016; (iii) Jamie Heit (Shift Coordinator) on 19 April 2016; (iv) Barry Trudgett (Pump Crew Team Leader) on 21 April 2016; (v) Bruce Blyton (Mining Coordinator) on 21 April 2016; (vi) Robert Gothard (Environmental Advisor) on 22 April 2016; (vii) Christopher New (Environmental Specialist) on 22 April 2016; (viii) myself on 22 April 2016; (ix) Phillip Baker (Project Superintendent) on 5 May 2016; (x) Gary Skaines (Pump Crew Operator) on 5 May 2016; (xi) Kim Schofield (Projects Supervisor) on 11 August 2016; and (xii) Mark Rodgers (General Manager Operations) on 27 September 2016. (d) Coordinating and facilitating the EPA's interviews with the following Les Russell & Son personnel: (i) Steven McDonald (Plant Operator & Supervisor) on 28 July 2016; and (ii) David Smith (Plant Operator) on 28 July 2016. (e) Nominating Mark Rodgers (General Manager Operations) as the Corporate Representative for Warkworth in response to a 'Notice to Nominate a Corporation Representative' under section 203 of the POEO Act. (f) Promptly responding to informal requests by the EPA for documents such as the water management plan relevant to Dave's Dam and relevant development consent. 14 In the course of these proceedings, Warkworth has also assisted the EPA by: (a) consenting to the EPA's request to rely on an amended summons; and (b) negotiating and agreeing a statement of agreed facts.
3. I accept that this evidence demonstrates that the Company provided appropriate assistance to the Prosecutor and the Prosecutor does not contest that such a conclusion in mitigation should be drawn.

Specific deterrence

1. I now turn to consider the extent to which it is appropriate to use the penalty imposed for this offence to provide deterrence to the Company to avoid committing a further offence of a similar nature on some future occasion.
2. I have set out above the steps which the Company has taken in order to ensure that such an event will not occur again. I am satisfied that, as a consequence, there is only limited need for specific deterrence.

General deterrence

1. In addition to specific deterrence, imposing a penalty on the Company for this offending conduct has the effect of sending a message, not merely to the Company but also to the broader business and general community that such conduct is unacceptable and is to be denounced.
2. In this regard, the requirement for a publication order pursuant to s 250(1) of the POEO Act and the cost of doing so are also aspects of the penalty to be imposed on the Company. This "name and shame" aspect, itself, contributes to the general deterrent impact of the conviction and punishment of the Company for its offending conduct (Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2).
3. However, a sufficient penalty must be imposed to provide a measure of general deterrence.

The sentencing process

1. To derive the appropriate sentence to be imposed on the Company, I am required to undertake a process of instinctive synthesis that has regard to all the objective and subjective factors that I have earlier set out (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]). Doing so has me conclude what should be the appropriate starting penalty to reflect the nature of the offending conduct and, having done so, applying the appropriate discount (incorporating the discount for the early plea of guilty) to be applied.

Evenhandedness

1. Whilst each sentencing process must be undertaken in light of the specific facts and circumstances of the offending conduct, nonetheless, regard must be had to such guidance as may be obtained from such other cases as might have some degree of comparability with the offending conduct to be assessed (Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185). This is to ensure the sentence imposed reflects the general pattern of sentencing for offences of the kind here being considered
2. In doing so, it is relevant to note that the use of such comparative material does not provide some basis for a purely mathematical analysis to be derived for the exercise of my sentencing determination.
3. In this instance, Mr Ireland took me to a number of cases which he submitted had a degree of relevance for the purpose of my assessment of whereabouts in the range of available penalty I should consider that the Company's offending conduct should fall. It is appropriate, therefore, to set out, briefly, those cases and my assessment of the assistance that they might give me.
4. In each of the following cases, each defendant pleaded guilty to a charge under s 64(1) of the POEO Act and was convicted for contravening conditions of that defendant's EPL:

• Environment Protection Authority v Huntsman Corporation Pty Ltd (No 4) [2011] NSWLEC 39
• The charge was the result of a breach of a licence condition relating to the defendant's activities, namely, general chemicals' storage and soap and detergent production. The contravention of this condition, on 28 October 2009, led to the emission into the atmosphere of 685 kilograms of ethylene oxide for a period of four hours, a toxic gas that, at certain levels of concentration, can lead to acute and chronic ill health impacts on humans.
• The objective seriousness was found to be of low to moderate objective seriousness. By reason of the offence there was potential, albeit low, for environmental harm.
• The defendant was fined $28,000, which reflected a discount of 25%. The defendant agreed to pay the prosecutor's costs of the proceedings in the agreed sum of $40,000.
• Environment Protection Authority v Environmental Treatment Solutions Pty Ltd [2015] NSWLEC 160
• The licensed activities were for the storage of waste and non‑thermal waste processing subject to conditions.
• The incident for which the defendant was charged was failure in waste processing on 27 February 2014, specifically, neutralisation of acidic and caustic materials, which resulted in the release of hydrogen sulphide gas. The release of gas adversely affected seven of the defendant's employees, of whom six were taken to hospital; physical impacts on the employees included loss of consciousness, resulting in loss of memory, disorientation, dizziness, headache, chest tightness, and nausea.
• The offence was found to be in the mid-range of objective seriousness. The offence was found to have caused environmental harm at the higher end of the spectrum and the offence resulted in "substantial" harm which was taken as an aggravating factor.
• The defendant was fined $67,000, which reflected a discount of 33% (from $100,000), and was ordered to pay the prosecutor's costs as agreed or assessed.
• Environment Protection Authority v Causmag Ore Company [2015] NSWLEC 58
• The licence held by the defendant was for manufacturing processes carried out at the factory classified as "metallurgical activities", specifically, processing of metal by heating raw materials in kilns to produce magnesia, and the treatment of the waste generated by the activity.
• The defendant's failure to maintain and operate the emission controls and monitoring equipment servicing a kiln caused a fine particle dust emission. As airborne dust, magnesium oxide could cause nuisance and aesthetic problems for residents and business owners, as these were in close proximity to the defendant's factory.
• The objective seriousness for this offence was found to be at the lower end of the range for this type of offence. As events turned out, the actual environmental harm caused was low and more of a nuisance than harm to human health or the environment.
• The defendant was fined $82,500, which reflected a discount of 25% (from $110,000). The defendant was ordered to pay the costs of the EPA for investigation in the agreed amount of $3,200, as well as the EPA's costs in the agreed amount of $30,000.
• EPA v Truegain Pty Ltd (No 4) [2015] NSWLEC 179
• The defendant carried on a used-oil re-refining business and the breach of the licence was the result of failing to adequately store liquid waste at the premises in which the Trade Waste Tank (TWT) was located. The TWT contained petro-hydrocarbons and benzene, sewage, and soapy, scummy water. On two occasions, 2 June and 18 June 2010, the TWT overflowed. Soon afterwards, black, oily waste and water with an oily sheen were observed in the stormwater canal adjacent to the TWT, and water in a downstream creek had an oily sheen and brown scum floating on its surface.
• The offence was found to be towards the lower end of the range of seriousness. Further, the commission of the offence caused environmental harm at the very lowest end of the spectrum.
• The defendant was fined $22,500, which reflected a 50% discount (from $45,000). A costs order in favour of the prosecutor, as agreed or assessed, was made.

1. Mr Ireland also took me to two cases in which sentencing involved a water pollution charge (a breach of s 120 of the POEO Act), either solely or in addition to a s 64(1) charge, these being:

• Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60
• In this matter, the defendant was charged with two offences under ss 64 and 120 of the POEO Act. These charges related to the irrigation of water, containing ammonia, onto a paddock in May 2015, as a result of which that liquid ultimately flowed into a creek. These waters were described as odorous, browny/black waters, high in ammonia.
• The Court was satisfied that the s 64 offence was at the bottom end of the medium/moderate section of the scale of seriousness. Whilst in this case there was no actual harm, there was the potential of harm to aquatic organisms no more than 20 metres from the point where the polluted waters entered the creek, a harm that was moderately foreseeable.
• The defendant was fined $55,000 for the s 64 offence and $45,000 for the s 120 offence, reflecting discounts of 25% for the guilty pleas, 10% for remorse, and further adjustment for a totality of 15% (down from $110,000 and $90,000 respectively). The defendant was ordered to pay the prosecutor's costs, on a party-party basis, as agreed or assessed.
• Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160
• The charge was in relation to a s 120 offence involving a breach of a licence condition. This offence was the result of an incident in which the waters of Middle Brook were polluted with sediment-laden discharge water from the defendant's property as a result of a dam wall failing. A plea of guilty was made by the defendant, the operator of a small open-cut mine which contained the relevant dam.
• Some time on around 15 May 2010 part of the wall of the dam failed, resulting in 2.8 to five megalitres of water containing sediment being discharged into a gully and then into the Middle Brook waters. The dam required temporary plugging and later rebuilding of the wall that had failed. The clean-up of the spill required specialist contractors and machinery, such as vacuum trucks and a fire hose, and later a change in clean-up process when vacuuming was no longer practical. The clean-up was completed some two months' later.
• The Court found the objective gravity of the offence to be in the low to moderate level. The environmental harm caused was in the low to moderate range.
• The fine imposed was $78,000, which reflected a discount of 35% (down from $120,000). The Court found that, whilst the defendant had spent more than $600,000 on clean-up costs, as a substantial corporate entity the need to take account of those clean-up costs was not relevant. Finally, the defendant was ordered to pay the prosecutor's legal costs of $25,270 and investigation costs of $9,730.

1. After considering the authorities cited by Mr Ireland, and the charges dealt with, and the penalties arising, it is also appropriate for me to consider a recent decision by Robson J:

• Environment Protection Authority v P&M Quality Smallgoods Pty Ltd; Environment Protection Authority v JBS Australia Pty Limited [2017] NSWLEC 89
• In the P&M Quality Smallgoods Pty Ltd (P&M) matter, two charges were brought under ss 64 and 120 of the POEO Act. The charges were the result of an incident occurring between 26 to 31 August 2015 and involving the discharge of waste effluent by-product from the abattoir's operations to a site not permitted by the conditions of the licence to receive such irrigated effluent.
• Both the offences were found to be at the top of the low range of objective seriousness. Further, with respect to environmental harm, whilst the extent of actual and likely harm was not substantial, it was clear that the s 64 offence did occasion water pollution. The incident degraded the aquatic environment, albeit for a small section of the creek, and the harm arose from concentrations of chemicals that were actually toxic to ammonia-sensitive aquatic organisms. Although there was no evidence that there was any actual harm to aquatic or terrestrial flora or fauna, the degraded aquatic environment caused likely harm to some sensitive taxa of aquatic organisms.
• P&M was fined $48,000 for the s 64 offence and $42,000 for the s 120 offence. The fines were first discounted by 25% from $80,000 to $60,000, for the s 64 offence, and from $70,000 to $52,000, for the s 120 offence. Further, considering the need to reduce the aggregate penalty to remove the extent of double‑punishment, the Court applied a further 20% discount. The defendant was ordered to pay the prosecutor's legal costs, as agreed or assessed, as well as investigation costs of $701.47.

1. Finally, it is also worth reproducing a portion of Pain J's judgment in Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160, a summary of which was set out above, in which her Honour contemplated four authorities in the process of sentencing. Each of the matters was the result of s 120 offences regarding sediment-laden water discharges or spillages. In this context, it should be noted that, prior to 1 May 2006 and the Protection of the Environment Operations Amendment Act 2005, the maximum penalty for a s 120 offence for a corporation was $250,000. At [97] to [98], her Honour said: 97 The Prosecutor submitted there were four cases of discharge of sediment laden water into the natural environment which were relevant to sentencing. In Environment Protection Authority v Centennial Newstan [2010] NSWLEC 211, the defendant pleaded guilty to polluting an unnamed creek (the waters of which ultimately flowed into Lake Macquarie) between 18 August 2008 and 22 August 2008 contrary to s 120 of the POEO Act. This was the Defendant's second offence under the POEO Act. At the time of the offence the defendant was the owner and operator of the Newstan Colliery at Fassifern, south of Newcastle where it was undertaking longwall mining. The defendant agreed that between 1.4 ML and 1.8 ML of sediment-laden water was discharged into the unnamed creek. Upon discovery of the discharge, the defendant's response was considered immediate and the prosecutor accepted it was appropriate. The defendant continued mitigatory, clean-up and rehabilitation works until 21 November 2008 and was subsequently advised by officers of the prosecutor that no further work was required. Craig J found that the offence was of moderate objective gravity and considered that whilst the incident gave rise to the potential for serious environmental harm, the actual environmental harm was in the relatively low range in the long term. The defendant entered an early guilty plea and subjective circumstances considered included that the defendant was remorseful and cooperated with authorities in relation to the management and clean-up of pollutant. The defendant was fined a penalty of $150,000 reduced to $105,000 and ordered to pay the prosecutor's costs in the sum of $28,500 and its investigation costs agreed in the sum of $10,000. 98 Craig J summarised the three other cases the Prosecutor referred to as follows: 92 ... in Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732, the defendant pleaded guilty before the Chief Judge to the commission of an offence against s 120(1) of the POEO Act in that on 13 February 2005 it polluted waters. It was then convicted of that offence and ordered to pay the sum of $50,000 to the Hunter-Central Rivers Catchment Management Authority for the purpose of undertaking bushland and stream rehabilitation works. That sum was ordered to be paid in accordance with s 250(1)(e) of the POEO Act in lieu of the imposition of a fine. The defendant was also ordered to pay the prosecutor's costs in the sum of $28,000 as well as being required to bear the cost of a publication order under s 250(1)(a). 93 That offence also occurred as the result of operations carried out at the Newstan Colliery site. At the time, the defendant was carrying out auger mining in addition to underground longwall mining. The auger mining operation involved substantial surface disturbance, necessitating implementation of a detailed soil and water management plan. Site works were not carried out in accordance with that plan. They were inadequate to control erosion and run-off from the site. During storms that occurred between 10 and 13 February 2005, catchment dams overtopped, resulting in sediment-laden waters discharging into a creek and then into Lake Macquarie. [I note that the maximum penalty at the time of that offence was $250,000] ... 119 In Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273, Biscoe J was required to determine the penalty to be imposed following a plea of guilty to an offence against s 120 of the POEO Act. Snowy Hydro was responsible for carrying out spillway upgrade and outlet works associated with the Jindabyne Dam located on the Snowy River. It engaged a contractor to carry out some of the required works. In a series of related events occurring over four days, somewhere between 4 and 11 tonnes of sediment were discharged into the Snowy River as a result of the works which the contractor was carrying out. This sediment comprised soil, earth, clay or similar inorganic matter. It was accepted that environmental harm was minor and short term while the offence was described as being "of moderate objective seriousness". Snowy Hydro was fined the sum of $100,000 and also ordered to pay the prosecutor's legal costs in the sum of $84,289 as well as its investigation costs in the sum of $1897.50. 120 The fine imposed upon Snowy Hydro reflected an allowance of a 25 percent discount for its early plea of guilty. The subjective circumstances considered also reflected the fact that it had no prior convictions for an environmental offence; that it had devoted considerable resources to mitigating the harm occasioned and that it had fully co-operated with the prosecutor. 121 The contractor to Snowy Hydro was convicted of the identical offence arising from the same circumstances as those that gave rise to the prosecution of Snowy Hydro: Environment Protection Authority v Fulton Hogan Pty Ltd [2008] NSWLEC 268; (2008) 163 LGERA 345. A fine of $100,000 after allowing discount for an early plea was also imposed upon that defendant who had no prior convictions

Fitting the offence in a range of seriousness

1. Although the POEO Act sets out the statutory maximum penalty defined for the offence, it is necessary to consider whereabouts in a range of offending conduct the breach to which the Company has pleaded guilty should be regarded as falling. This assessment is necessary to take account of the fact that the legislature has, in determining the maximum penalty for such offences, reflected the seriousness with which the community regards breaches of this legislative provision. This process is descriptive and is not one of mathematical precision.
2. Nor is it appropriate to endeavour to consider how the facts in a particular instance might relate to the "worst case", as it is always possible to hypothesise some instance that might be regarded as worse than that under consideration in the particular proceedings. It is sufficient to consider what might be the broad category within which an offence should be regarded as falling (Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at [15] (Veen (No 2)).
3. Although the cases discussed above demonstrate that there has been a variety of starting penalties and discounts on them for the idiosyncratic facts and circumstances of each circumstance of offending conduct, they do provide some assistance in assessing where this offending conduct should be fitted. I have concluded that it is appropriate to characterise it as being toward the top of the low range of seriousness. In doing so, I consider that is appropriately in line with the guidance to be derived from those cases.

The Company's plea of guilty

1. I have earlier noted the circumstances of the Company's guilty plea. The timing of entering a guilty plea is a matter of relevant statutory consideration (s 22 of the Sentencing Procedure Act). As a consequence of the guidance given by the Court of Criminal Appeal in R v Thompson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309, the range of discount to be given as a consequence of the guilty plea will be between 10% and 25%.
2. In this instance, for the reasons earlier explained, I am satisfied that the plea of guilty to the offence should be regarded as having been entered at the earliest opportunity and, thus, the maximum discount of 25% should be afforded to the Company to the total penalty that would otherwise be imposed for this offence.

The Prosecutor's costs

1. Although the Prosecutor was unable to provide a precise estimate of the Prosecutor's costs, I was informed that they would be of the order of $70,000. As the orders made will require that the Defendant is to pay the Prosecutor's costs as agreed or assessed, it is appropriate that I have regard to this indicative quantum in my consideration of the appropriate penalty to be imposed on the Defendant (Environment Protection Authority v Barnes [2006] NSWCCA 246).

The appropriate sentence

1. I have earlier indicated how I should characterise the nature of the offending conduct. Such a characterisation as being at the "top of the low range of seriousness" is, of course, not a matter of mathematical precision.
2. I have earlier discussed the other cases suggested to me as providing some guidance as to what might be an appropriate penalty. Although of some utility, this sentencing process (as was the position in the cases to which I have been referred) depends very much on the facts and circumstances of the individual incident and its consequences.
3. The sentence to be imposed must reflect all the relevant objective circumstances of the offence and subjective circumstances of the Defendant (Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 and Veen (No 2)). The sentence is not to exceed what is "justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances" (Veen (No 2)).
4. In this instance, undertaking the process of instinctive synthesis required, I have concluded that a starting penalty of $75,000 is appropriate.
5. Having regard to all of the factors requiring my consideration, I am satisfied that a discount of one-third (including the discount for the early guilty plea) should be applied, thus resulting in the appropriate penalty being $50,000. This results in a fine, properly reflecting the relevant sentencing considerations, at the upper limit of the range proposed by Mr Ireland (taking his range - as earlier discussed - as the end point of discounting rather than the starting point before discounting).
6. As there is but a single offence involved, there are no issues of totality and accumulation requiring consideration.

Publication order

1. The Prosecutor sought an order pursuant to s 250(1)(a) of the POEO Act. The publication order (the making of which was not resisted by the company, although Mr Ireland made some submissions proposing changes to its text) is to be published in the Newcastle Herald and the Singleton Argus.
2. Given my conclusions earlier set out concerning the objective seriousness of the offending conduct, I am satisfied that, in these circumstances, it is not appropriate to require any more expansive publication of this notice (contra the position adopted for the reasons I explained in Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 at [178] and, as dealt with by Robson J, in Environment Protection Authority v Clarence Colliery Pty Ltd; Chief Executive, Office of Environment and Heritage v Clarence Colliery Pty Ltd [2017] NSWLEC 82 at [140] and [141]).
3. The text of the publication order proposed by the Prosecutor was: Warkworth Mining Ltd convicted and fined X (being the amount so ordered) for a dam failure at Mount Thorley. Warkworth Mining Ltd ("Warkworth") has been convicted and fined X (being the amount so ordered) by the Land and Environment Court of New South Wales of an offence against s64 of the Protection of the Environment Operations Act 1997. Warkworth was prosecuted by the Environment Protection Authority ("EPA") for breaching a condition of its Environmental Protection Licence which required Warkworth to carry out its licensed activities in a competent manner. The conviction related to an incident which occurred at the Warkworth Mine in 2016 when a large stormwater retention dam was breached after the dam's embankment wall failed with up to 4 ML of sediment laden water escaping from the dam and into surrounding areas, which included the nearby Wallaby Scrub Road reserve. Warkworth had modified a small farm to increase its capacity, however neither the design nor the construction work was undertaken or overseen by an engineer. Warkworth did not subject the completed earthworks to an appropriate risk assessment or other quality assurance process. A section of the new embankment wall collapsed completely when water levels reached the heightened embankment wall for the first time. [Following text is subject to the Court orders] On DATE, the Land and Environment Court convicted Warkworth Mining Ltd and ordered them to: 1. pay a fine of $INSERT; 2. pay the EPA's legal costs; and 4. place and pay for this publication notice.
4. Although Mr Ireland made submissions proposing changes to the publication notice - comparatively minor changes which would have effected some softening of the language - I am satisfied that that which has been proposed by the Prosecutor adequately and appropriately reflects the circumstances of the Company's offending conduct. It is therefore not necessary to discuss his proposed details seriatim.
5. The publication notice, as proposed by the Prosecutor, is confirmed as that which is to appear in the two nominated newspapers.

Imposition of a fine or diversion of the equivalent amount

1. Amongst the other orders which may be made pursuant to s 250 of the POEO Act is a provision (s 250(1)(d)) that enables the Court to: 250 Additional orders (1) Orders The court may do any one or more of the following: … (e) order the offender to pay a specified amount to the Environmental Trust established under the Environmental Trust Act 1998, or a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes
2. Although, in these proceedings, the Prosecutor did not seek such a specific order (leaving other orders pursuant to s 250 of the POEO Act at the discretion of the Court), Mr Ireland's outline of submissions on penalty said, at (102): (102) The Defendant is agreeable to the full amount of any penalty imposed by the Court being paid to a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes as agreed with the EPA and suitable to the Court, as the Court thinks fit, pursuant to s 250(1)(c) of Pt 8.3 of the POEO Act.
3. I am satisfied that it is appropriate to make such a diversionary order. However, in these proceedings, I have no evidence as to what might be any appropriate organisation or project to which it might be appropriate to order diversion of the amount that would otherwise be imposed as a fine. Under the circumstances, it is appropriate that the order that is made is that the amount that would otherwise be imposed as a fine be paid to the Environmental Trust established under the Environmental Trust Act 1998. The orders of the Court at the conclusion of this judgment reflect this outcome.

Conclusion

1. I have concluded: 1. The appropriate penalty to be imposed on the Company, after the necessary and appropriate discounts, is $50,000; 2. This amount should be diverted to the Environmental Trust established under the Environmental Trust Act 1998 (NSW); and 3. The publication notice to appear in the Newcastle Herald and the Singleton Argus (ordered pursuant to s 250(1)(a) of the POEO Act) is to be in the terms sought by the Prosecutor.

Orders

1. The orders of the Court therefore are: 1. Warkworth Mining Ltd (the Defendant) is convicted of the offence as charged; 2. Pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997 (the POEO Act), the Defendant is to pay, within 28 days of the date of this order, the sum of $50,000 to the Environmental Trust established under the Environmental Trust Act 1998 (NSW); 3. Pursuant to s 250(1)(a) of the POEO Act, within 28 days of the date of this order, at its expense, the Defendant will cause a notice in the form of Annexure A, at a minimum size of 9 centimetres by 12 centimetres, to be placed in: 1. the Singleton Argus; and 2. the Newcastle Herald; 1. The notice in (3)(a) is to be published within the first ten (10) pages of the issue within which it appears; 2. The notice in (3)(b) is to be published on an odd-numbered page within the first thirteen (13) pages of the issue within which it appears; 3. Within 35 days of the date of this order, the Defendant is to provide to the Prosecutor, and file with the Court, a complete copy of the page of each of the publications in which the notice appears; and 4. The Defendant is to pay the Environment Protection Authority's legal costs as agreed or assessed.

Annexure A Warkworth Mining Ltd convicted and fined $50,000 for a dam failure at Mount Thorley Warkworth Mining Ltd ("Warkworth") has been convicted and fined $50,000 by the Land and Environment Court of New South Wales of an offence against s 64 of the Protection of the Environment Operations Act 1997. Warkworth was prosecuted by the Environment Protection Authority ("EPA") for breaching a condition of its Environmental Protection Licence which required Warkworth to carry out its licensed activities in a competent manner. The conviction related to an incident which occurred at the Warkworth Mine in 2016 when a large stormwater retention dam was breached after the dam's embankment wall failed with up to 4 ML of sediment laden water escaping from the dam and into surrounding areas, which included the nearby Wallaby Scrub Road reserve. Warkworth had modified a small farm dam to increase its capacity; however neither the design nor the construction work was undertaken or overseen by an engineer. Warkworth did not subject the completed earthworks to an appropriate risk assessment or other quality assurance process. A section of the new embankment wall collapsed completely when water levels reached the heightened embankment wall for the first time. On 25 August 2017, the Land and Environment Court convicted Warkworth Mining Ltd and ordered them to: 1. Pay a fine of $50,000; 2. Pay the EPA's legal costs; and 3. Place and pay for this publication notice.

Amendments 08 September 2017 - SLIP RULE AMENDMENT - 8 September 2017

In Annexure A, referred to in in 116, the word "dam" was inserted between "farm" and "to" in the opening sentence of the third paragraph of said annexure. 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: 01 May 2018