Environment Protection Authority v Wattke, Environment Protection Authority... [2010] NSWLEC 24 | Case summary

Environment Protection Authority v Wattke, Environment Protection Authority... [2010] NSWLEC 24 | Case summary | Zoe

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Courtney v Regina [2007] NSWCCA 195; (2007) 172 A Crim R 371 Director of Public Prosecutions v D'Arcy [2009] NSWLC 1 Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 Environment Protection Authority v Ableway Waste Management Pty Ltd and Anor [2005] NSWLEC 469 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31; (2009) 165 LGERA 383 Environment Protection Authority v Delta Electricity [2009] NSWLEC 11 Environment Protection Authority v Douglass [No 2] [2002] NSWLEC 94 Environment Protection Authority v Gardner [1997] NSWLEC 212 (14 August 1997) Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997) Environment Protection Authority v Ghossayn [2009] NSWLEC 181 Environment Protection Authority v Hogan [2008] NSWLEC 125 Environment Protection Authority v N (1992) 76 LGRA 114; (1992) 26 NSWLR 352 Environment Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831 Environment Protection Authority v Pal [2009] NSWLEC 35 Environment Protection Authority v Ross [2009] NSWLEC 36; (2009) 165 LGERA 42 Environment Protection Authority v Waste Recycling Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 CASES CITED: Environment Protection Authority v Werris Creek Coal Pty Ltd; Environment Protection Authority v Holley [2009] NSWLEC 124 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77 Hoare v R [1989] HCA 33; (1989) 167 CLR 348 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62 P v KPB [2009] NSWLC 6 at [48] Pearce v The Queen [1988] HCA 57; (1988) 194 CLR 610 Plath v Rawson [2009] NSWLEC 187; (2009) 170 LGERA 253 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Borkowski [2009] NSWCCA 102 R v Burnett (1996) 85 A Crim R 76 R v Carroll [2008] NSWCCA 218; (2008) 188 A Crim R 253 R v Einfeld [2009] NSWSC 119 R v Hallocoglu (1992) 29 NSWLR 67 R v Israil [2002] NSWCCA 255 R v Jiminez [1999] NSWCCA 7 R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 R v Slattery (1996) 90 A Crim R 519 at 524 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Zamagias [2002] NSWCCA 17 Rahme v R (1989) 43 A Crim R 81 Veen v The Queen [No. 2] [1988] HCA 14; (1988) 164 CLR 465

pollute waters includes cause or permit any waters to be polluted. 7 The maximum penalty applicable to an offence committed under s 120(1) by an individual is set out in s 123 of the POEO Act. The maximum penalty is $250,000 with a maximum daily penalty of $60,000 for each day that the offence continues. The maximum penalty of $250,000 was increased from $120,000 in May 2006. The maximum daily penalty of $60,000 was maintained. 8 The Defendants have both pleaded guilty to each offence and have therefore admitted the essential elements of each offence including that the disposal of waste was negligent. It is necessary to determine the appropriate sentences which should be imposed. Mr Wattke was represented by a barrister at the hearing on sentence. Mr Geerdink represented himself at the hearing. Purposes of sentencing 9 The purposes of sentencing are identified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) and include to ensure the offender is adequately punished (s 3A(a)), to make the offender accountable for its actions (s 3A(e)) and to denounce the conduct giving rise to the offence(s 3A(f)). 10 In Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] relevant factors to determine the objective gravity of an offence were identified for offences under the Environmental Planning and Assessment Act 1979 (the EP&A Act). The factors include the maximum penalty, the objective harmfulness of the defendant's actions, the reasons for the commission of the offence and the state of mind of the offender. These factors are also relevant to offences under the POEO Act, Environment Protection Authority v Delta Electricity [2009] NSWLEC 11 at [12]. 11 Another relevant factor is the statutory scheme in which the offence provision appears, Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31; (2009) 165 LGERA 383 at [21]. The POEO Act is directed to the protection, restoration and enhancement of the environment in NSW, including by reducing harm to the environment through pollution prevention (s 3(d)(i)). As observed by Pepper J in Environment Protection Authority v Ghossayn [2009] NSWLEC 181 at [75]: The sentence of the Court is a public denunciation of the conduct of the offender. It must ensure that the offender is held accountable for his or her actions and is adequately punished.

Mr Geerdink was aware that equipment was required to carry out the subsoil injection operations at the Property and was involved in the purchase of that equipment. However the dumping operations at the Property commenced prior to any equipment arriving at the Property and ultimately the two most important pieces of equipment, the soil injector and the muck spreader never arrived because the Corporation defaulted under its financing arrangements. 13 A large number of documents were attached to the SOAF. Those specifically referred to were: (a) a letter from Mr Smith of Pacific Environmental dated 7 March 2007 to the company, marked to the attention of Mr Geerdink referring to his investigation of zoning and permissible uses of the property in relation to the disposal of food waste as a means of sustaining agricultural viable activity. He states that disposal of other types of waste is not permitted. (b) a letter from the company dated 31 August 2007 to its neighbours referring to its intention to use subsoil injection of recycled water and food products to enhance the soil. (c) a letter from the company (signed by Mr Geerdink) dated 25 September 2007 to the Mid-Western Regional Council asking it to withdraw its (emergency) notice in which the company refers to discussions with the Council suggesting that no development consent was required for activities carried out in conjunction with an agricultural activity. (d) company brochure and business plan outlining the activities undertaken and the projected expansion of these. (e) an email sent by Mr Wattke dated 13 June 2007 to Money Resources Pty Ltd in which he outlines a business plan for the company which includes the use of the property for the disposal of food waste. (f) various quotations for the supply of equipment including from Tractors Machinery and Turf, undated, and from Mudgee Machinery Centre dated 31 August 2007 for various types of equipment. (g) a description of the respective roles of Mr Wattke, Mr Geerdink and Mr Van De Putte. Mr Wattke's duties included operations supervision and daily business management. Mr Geerdink's duties included environmental compliance. (h) the responses of the company signed by Mr Geerdink in response to the Prosecutor's request for information dated 30 August 2007. Environmental harm 14 The affidavit of Mr Thompson, an environmental officer employed by the Department of Environment and Climate Change (DECC) who provides services to the NSW Environment Protection Authority (EPA), dated 11 March 2009 states that in regard to the classification of liquid waste, there are particular thresholds for each applicable contaminant for determining whether a waste is either a Non Controlled Aqueous Liquid Waste (NCALW) or a Group A waste. Group A waste has significant levels of contaminants/pollutants which present potential for significant harm to human health and the environment. The threshold levels, particularly of nickel, molybdenum and lead, that applied to the period of the offence, are specified in Table A1 of the EPA Environmental Guidelines: Assessment, Classification and Management of Liquid and Non-Liquid Wastes (1999). Each of these chemicals was assessed as exceeding the maximum specified contaminant concentration as detailed in Table 1 (Waste classification of samples RO2 and RO6 taken on 22 August 2007) at par 82 of the SOAF. Environmental harm is detailed in the SOAF par 197-256 as follows: Environmental Harm 197. The Prosecutor reads the Affidavit of Julian Thompson. 198. Water samples were taken from each of the dams on the Property and were compared to samples from dams on adjoining properties. Very low levels of aquatic macro-invertebrates were found in the waters on the Property which would have a significant impact on aquatic vertebrates such as amphibians. 199. As the company is in liquidation much of the material remains in the creeks and dams on the Property and has not been cleaned up.

Creek 1 and Dam 1 - Analysis of Samples Taken 16 & 17 August 2007- Chemical Testing 200. On 16 August 2007 and 17 August 2007, liquid samples from Creek 1 and Dam 1 were collected and were compared to samples taken from a reference point. 201. The results of chemical testing showed that as a result of the negligent disposal of waste by the Corporation there were serious environmental effects on aquatic life in Creek 1 and Dam 1. 202. The liquid samples from Creek 1 and Dam 1 had biological oxygen demand ("BOD") levels of 170-370 mg/L which were similar to the BOD levels found in raw sewage. This demonstrates that Creek 1 and Dam 1 contained high levels of putrescible organic material. 203. The liquid samples from Creek 1 had elevated levels of ammonia, Kjedldahl nitrogen ("TKN"), chemical oxygen demand ("COD"), conductivity, calcium, magnesium, nickel, phosphorus, potassium and sodium. 204. The ammonia in Creek 1 (and Dam 1) had the potential to cause serious harm to aquatic life in those waters. Ammonia is the chemical of most concern in these proceedings. 205. Ammonia is a known toxicant to aquatic life. It consists of two chemical forms that are in equilibrium in water: the un-ionised ammonia, NH3, and the ionised ammonium, NH4+. Of the two forms of ammonia, the un-ionised NH3 is the principal toxic form because it is able to cross epithelial membranes of aquatic organisms more readily than NH4+. The toxicity of ammonia is dependent on pH. Ammonia is acutely toxic to freshwater organisms at concentrations ranging from 0.5 to 23 mg/L for invertebrate species. The ammonia levels in all toxic samples in Creek 1 (and Dam 2) exceeded these levels. Acute toxicity to invertebrates may result in: loss of equilibrium, hyperexcitability; increased breathing rate and death. Chronic effects include a reduction in breathing process, reduction in growth rate and morphological development. 206. The ANZECC Guidelines recommended guideline for ammonia for freshwaters at typical pH range of 6.5 - 7.5, range from 2.5 to 1.6 mg/L NH3-N. The ANZECC guidelines were clearly exceeded in the samples taken from Creek 1 (and Dam 1). The ammonia present in Creek 1 (and Dam 1) had the potential to seriously affect aquatic life in the waters. 207. The elevated levels of conductivity in Creek 1 (and Dam 1) also had the potential to have an adverse impact on invertebrates in those waters. 208. The appropriate ANZECC Guidelines for conductivity of the waters on the Property cannot be determined in the absence of baseline information. However the ANZECC/ARMCANZ (1992) Australian and New Zealand Guidelines for Fresh and Marine Water Quality recommend that freshwater conductivity should not be allowed to increase above 1500 S/cm. High conductivity directly affects the osmotic regulation of aquatic organisms. It disrupts the salt balance across cell membranes, resulting in water from inside the cell moving out from the cell which produces a net increase in the concentration of the chemicals inside the cell. Consequently it has adverse implications on the physiological processes of the organism. Invertebrates, particularly those in the early stages in the life cycle, are among the most sensitive species to elevated conductivity, with adverse effects apparent for some species to as low as 1500 mg/L dissolved salts (~3000 S/cm). 209. The elevated level of conductivity in Creek 1 (and Dam 1) (1900-2900 µS/cm) suggests that conductivity may have also contributed towards an adverse effect on invertebrates in these water bodies. 210. The liquid samples from Creek 1 also contained diethytholuamide ("DEET") which is an insect repellent that is a common contaminant in landfill leachate. The liquid samples from Creek 1 had many characteristics in common with leachate samples that were collected from WSN's Eastern Creek Waste and Recycling Centre including the presence of diethytholuamide. 211. The liquid samples taken from Creek 1 (and Dam 1) also had reduced dissolved oxygen ("DO"). 212. The reduced DO in Creek 1 (and Dam 1) was likely to have had a serious impact on aquatic organisms in the waters. 213. Low DO concentrations in water can result in adverse effects on many aquatic organisms which depend upon oxygen for their efficient functioning. There is little data on the oxygen concentration tolerance range of Australian freshwater invertebrate species, however the literature suggests that DO below 5 mg/L is stressful to many species and should be prevented where possible. The reduced DO in Creek 1 (and Dam 1) would have likely caused a serious impact on the invertebrates in the source water body. 214. For DO, the default water quality guideline in the ANZECC Guidelines in freshwaters is 80% saturation, which translates to approximately 6 to 7.5 mg/L DO depending on temperature. The low DO in Creek 1 (and Dam 1) meant that it most likely contributed to an adverse impact on organisms in those water bodies. 215. Liquid samples taken from Creek 1 (and Dam 1) were also found to contain elevated levels of organic compounds. 216. Organics such as hydrocarbons, phenol and various oxygen-containing organics that represent different stages in the progressing decomposition/oxidation, are likely to have had a short-term but totally adverse effect on aquatic organisms. 217. The liquid samples from Dam 1 contained significant levels of faecal coliforms which demonstrate faecal contamination. 218. The liquid samples from Dam 1 also contained molybdenum at a concentration of 3.3 mg/L, which is well above the ANZECC/ARMCANZ (2000) Australian and New Zealand Guidelines for Fresh and Marine Water Quality ("ANZECC Guidelines") trigger values for irrigation water (0.05 mg/L) and livestock drinking water (0.15 mg/L). Molybdenum is an essential micro-nutrient for all living organisms and has an important role in enzyme synthesis and activity. However, excess molybdenum is toxic. The ANZECC Guidelines state that "concentrations of molybdenum in livestock drinking water greater than 0.15 mg/L may cause health problems to stock, depending on total dietary intakes of molybdenum, copper, iron and sulfur. At molybdenum concentrations greater than 0.15 mg/L, the animal diet should be investigated to ensure that copper levels are sufficient to account for the total dietary intake of molybdenum". The ANZECC Guidelines also state that "it is recommended that the concentration of molybdenum in irrigation waters and soils should be less than the following: Long-term trigger value in irrigation water - 0.01 mg/L; Short-term trigger value in irrigation water - 0.05 mg/L".

Creek 2 and Dam 2- Analysis of Samples Taken 16 & 17 August and 26 September 2007- Chemical Testing 223. On 16 August 2007, 17 August 2007, and 26 September 2007 solid and liquid samples were taken from Creek 2 and Dam 2 and were later analysed and compared to samples taken from reference points. 224. The results of chemical testing showed that as a consequence of the negligent disposal of waste by the Corporation: a. The soil samples taken in the vicinity of Creek 2 had elevated concentrations of arsenic, sulphur, calcium, copper, strontium, tin and zinc. b. The soil samples taken in the vicinity of Creek 2 had elevated levels of up to 290 mg/kg of molybdenum. c. The solid samples taken in the vicinity of Creek 2 had elevated levels of sulphur, calcium, strontium and copper. d. In general, the concentrations of metals in the samples collected in September 2007 were higher than in the corresponding samples collected in August 2007, which may indicate that elements in the overlying aqueous liquids may have been incorporated into the solids as the liquids evaporated e. There were qualitative and quantitative differences in the concentrations of elements and in the material collected from the creek, suggesting that a variety of materials may have been deposited there. f. The solid samples taken in the vicinity of Creek 2 contained a range of free fatty acids and fatty acid esters, demonstrating that vegetable oil was present. g. The solid samples taken in the vicinity of Creek 2 contained a range of organic compounds, including methyl phenol, various hydrocarbons and aldehydes. h. The solid samples taken in the vicinity of Creek 2 also contained phenols, including tricholorophenol and tetrachlorophenol. Chlorophenols are highly toxic to both terrestrial and aquatic organisms and are commonly used in insecticides, fungicides and bactericides in products such as wood preservatives and disinfectants. i. The liquid samples taken from Creek 2 had elevated levels of molybdenum. j. The liquid samples taken from Creek 2 had high levels of BOD (2,300 to 7,000 mg/L), COD (4,000 to 19,000 mg/L) and ammonia (44 to 93 mg/L). k. The liquid samples taken from Creek 2 contained fatty acids and fatty acid esters. l. One liquid sample taken from Creek 2 contained DEET. m. One liquid sample from Creek 2 contained terpin. Terpin is a compound which, like diethyltoluamide, is often found in landfill leachates and was also found in samples of leachate from the Eastern Creek Waste and Recycling Centre. n. The major waste material in Creek 2 was a sludge material that contained vegetable oil and animal fat. The vegetable oil component contained canola oil as evidenced by the amounts of brassicasterol in the samples. The presence of animal fat was also demonstrated by elevated levels of cholesterol in the samples. 225. All samples taken in Creek 2, apart from the sample from Dam 2, contained high levels of BOD (2300 to 7000 mg/L), COD (4000 to 19000 mg/L) and ammonia (44 to 93 mg/L). These results are consistent with the liquids being derived from waste containing a large amount of organic material such as effluent from food processing, manure waste or landfill leachate. 226. The physical properties and behaviour in the environment of vegetable oil and animal fats are similar to those of petroleum oils. Like petroleum oils, vegetable oils and animal fats can do the following: a. create slicks on surface water and form emulsions and sludge that can be lethal to wildlife; b. cause harmful physical effects, such as coating animals and plants with oil and suffocating them by oxygen depletion; c. be toxic or form toxic products; d. destroy future and existing food supplies, breeding animals and habitat; e. produce rancid odours; f. form products that linger in the environment for many years; and g. catch fire when ignition sources are present. 227. Spills of vegetable oils and animal fats can have devastating effects on the environment. Ecosystems may take years to recover or may never recover from spills. Because of their insolubility and lower density, oils form a layer on the surface of water such that oxygen exchange between the gas and liquid phases decreases. As a result the water becomes depleted in dissolved oxygen, and aquatic life is potentially smothered. Furthermore, this effect is magnified as a result of the high BOD values when microbial degradation of the oil takes place. 228. Although vegetable oils and animal fats can biodegrade rapidly, in some situations polymerisation can occur and relatively hard intractable material can be produced that forms a persistent, impermeable cap over sediments, reducing the rate of oxygen diffusion into the sediments. One difference between vegetable oils and animal fats and petroleum oils is that most have lower volatility than petroleum oil. As a result, less of the material is removed from a spill by evaporation, however, the combustion and explosive potential of these oils is reduced. 229. The sludge in Creek 2 was rich in vegetable oil and animal fat. This sludge and the free oil that separated from it are likely to have smothered the creek bed and suffocated biota that was not able to move. In addition, the sludge and free oil was likely to have smothered the roots of nearby vegetation, having deleterious effects. 230. In rainfall events, there is potential for oil to be mobilised and to form a film over water bodies in the receiving environment and harm the biota living in these water bodies as well as animals and birds that drink and forage in the water. An additional concern is that toxic chemicals that have been found mixed with the waste will dissolve into the oil and be transported in the oil in an undiluted form to have deleterious ecological effects beyond Creek 2.

Environmental Effects Relating to Excavation of Creek 2 on 26 September 2007 - Charges 50070 and 50071 of 2008 - The Section 120(1) Offences 250. The environmental effects relating to excavation of Creek 2 on 26 September 2007 are described in the paragraphs 113 - 126 above. 251. The Rapid Appraisal of Riparian Condition index has been developed by Charles Sturt University for Land & Water Australia. Riparian condition refers to the degree to which man-altered ecosystems diverge from local semi-natural ecosystems in their ability to support a community of organisms and perform ecological functions. Another tool of riparian analysis is known as the RCE method which is a modified riparian, channel and environmental (RCE) inventory adapted by Chessman and others which provides an indication of riparian condition. 252. Creek 2 as a result of the conduct subject of Charges 50070 and 50071 of 2008 had a very poor riparian condition (when analysed using the Rapid Appraisal of Riparian Condition index and the RCE method). The clearing of a strip of riparian vegetation along one side of Creek 2 affected the use of the area by fauna that depend upon this vegetation for food and shelter. 253. Several large trees were removed in the clearing and these would have been utilized by a variety of bird species and possibly arboreal marsupials e.g. possums, gliders. The loss of streamside vegetation adversely affected the environment of the creek (loss of shade and increased siltation). Further the removal of riparian vegetation led to the loss of protection for small animals using the creek for water or food. 254. Although some middle and lower strata vegetation (shrubs, forbs, grasses) will start to grow within the cleared area (some is already growing), it may take many years before the streamside habitat is restored to its original condition, being a condition similar to that found in unaffected creek lines on the Property. Replacement of the trees lost will take a far greater time as some of the trees removed were estimated to be over 50 years old. 255. Some of the changes to the creek and bank structure due to the clearing of part of Creek 2 may also adversely affect the composition of the fauna including aquatic fauna that utilize the riparian vegetation. The loss of the rocky substrate within the creek bed may result in the loss of riffle areas. However, it is recognised that the creek is ephemeral and the riffle areas may not support any fauna often found in such areas. 256. There may also be changes to the plant species growing within the cleared riparian zone, as more aggressive species invade the cleared area. Growth of trees will be slow and it will be many years before a riparian habitat similar to that found along unaffected creeks at the Property, would occur.

26 The Prosecutor also submits that the Court would be satisfied that the offences committed by the Defendants under s 120(1) of the POEO Act also caused substantial harm and likely harm to the environment at the property. Rehabilitation by natural processes may take in excess of 50 years. 27 Mr Wattke's counsel submitted that for the s 115(1) offence of disposing of waste, the harm was serious but was basically limited to the property with only limited spillage onto a neighbouring property. The damage caused was in a limited area. Finding (i) s 115 offence 28 It is agreed that in relation to the s 115 offence the disposing of waste giving rise to the offence took place over five to six months, with the volume of waste agreed at 4.8 megalitres. For the reasons given by the Prosecutor based on the extensive testing and investigation undertaken as detailed in the SOAF, the level of environmental harm is very substantial and occurred over a prolonged period. The SOAF refers to sampling and testing at seven locations in relation to the s 115(1) offence: (i) Creek1/Dam 1 (ii) Creek 2/Dam 2 (iii) Creek 2/Homestead area (iv) Grease trap waste/stockpiles (v) Feeder creed to Creek 2 (vi) Paddock 1 and 2 (vii) Creek 3/Dam 29 Particular chemicals identified in the samples taken from creek 1 and dam 1 on 16 and 17 August 2007 were ammonia, kjedldahl nitrogen, calcium, magnesium, nickel, phosphorus, potassium and sodium. The elevated levels of chemical oxygen demand conductivity had potential to impact on invertebrates in the water (SOAF 207-209). Diethytholuamide (insect repellent ingredient) a common ingredient of landfill leachate was detected. Reduced dissolved oxygen was likely to have had a serious impact on aquatic organisms in the water (SOAF par 211-214). Organic compounds, faecal contamination and excess amounts of molybdenum were also detected. Toxicity testing showed the water was toxic to certain aquatic life. 30 Creek 2/Dam 2 was found to contain arsenic, calcium, copper strontium, tin and zinc. The ammonia had potential to cause serious harm to aquatic life (SOAF par 220-224). Paragraph 220, 222, and 224-226 of the SOAF set out the seriousness of the harm caused in relation to reduced oxygen levels and conductivity of the water in the creek.

31 The results of toxicity analysis of samples taken from the Creek2/Homestead area identified a range of hydrocarbons including dibutyl phthalate, eucalyptol and tributylin chloride, being also known as tributylin (TBT). The SOAF at par 236 states that TBT "is highly toxic to acquatic organisms, it is an endocrine disrupting chemical and its use has been banned in many areas." 32 The results of chemical testing at the grease trap waste stockpiles showed that the solid samples contained vegetable oils consistent with canola oil and animal fats (SOAF par 238). Sample analysis from the feeder creek to creek 2 also identified vegetable oils consistent with canola oil and animal fats. The oil substances were less than 10mg/L in the waters (SOAF par 242). 33 Solid samples taken from a paddock showed increases in the concentrations of the macro elements calcium, sodium, phosphorus and sulphur as well as increases in the concentrations of heavy metals such as copper and zinc. This result is consistent with changes in soils amended with sewage sludge. The presence of coprostanol at levels greater than 100 mg/kg were found in a paddock sample and is indicative of the presence of human faecal material. Additional sampling from paddock 1 and 2 identified high levels of coprostanol at concentrations ranging from 660 to 2,200 mg/kg and indicates that these samples contain faecal material from humans. Samples from paddock 1 and 2 also contained dimethyldodcanamine, trimethyl benzenemethanol, trimethyl oxabicyclooctanol and spathulenol (all of which are found in personal care products). The combination of these compounds together with the faecal sterols was consistent with a mixture of human faeces and wastewater, possibly septic waste (SOAF par 245-247). 34 Solid samples taken from the Creek3/Dam 1 site contained both vegetable and animal fats. Liquid samples from the same site contained organic compounds consistent with the presence of biological materials with elevated levels of nitrogen and phosphorus (SOAF par 249). A number of exceedances of the relevant ANZECC guidelines for waste are identified in the SOAF and the framework for this is set out in the affidavit of Mr Thompson. There was actual harm caused, and potential for substantial harm caused, which will continue for a lengthy period. Rehabilitation of the property is estimated to take many decades. 35 A large volume of liquid waste was discharged in and across several areas of the property. The types of waste dumped illegally included Group A waste, material containing tributyltin, sewage, landfill leachate and untreated grease trap waste. 36 The environmental harm caused by the s 115 offences was substantial. Fortuitously, the environmental harm was contained largely within the property. (ii) water pollution offence 37 The s 120 water pollution offences occurred on about 26 September 2007, as detailed at par 111-125 of the SOAF. The offence arose from the excavation of an area of 700m by 10m along creek 2. It destroyed the banks of creek 2 and resulted in the disturbance of rocks, riffles, and vegetation along the cleared area. The presence of liquid waste, sludge and grease trap waste was detected. In relation to the s 120 offences the harm was also reasonably significant (SOAF par 251-256) but localised in creek 2, with substantial excavation resulting in sediment and bulldozed vegetation in the creek line. (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm 38 In relation to measures that could have been taken to prevent the harm occurring, as submitted by the Prosecutor, there were clearly practical measures that could have been taken to prevent, control, abate or mitigate the environmental harm caused by the offence. The most obvious was not embarking on the business model of using the property in the manner that it was used, namely for the dumping of waste. Additional measures that could have been taken included complying with the two clean up notices issued by the Prosecutor and the emergency order of the Council. Neither of the clean up notices or the Council's emergency order were complied with. 39 In relation to measures taken since the offence to mitigate the harm, there is no evidence that either Defendant will or can remediate the land or that any such offer was made. The company is now in liquidation. (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 40 As submitted by the Prosecutor, the harm caused was foreseeable given the volume of material dumped and the fact that it was significantly contaminated with materials that would degrade the environment. Both Defendants ignored the risk of harm. The SOAF includes a letter dated 7 March 2007 from an environmental impact consultant, Mr Smith, to the company marked for the attention of Mr Geerdink, which stated what could and could not be done on rural 1(a) land. The Defendants were told before these events what could be done. In a response dated 30 August 2007 (tab 11 Prosecutor's attachments to submissions on sentence) to the notice to provide information, the Defendants stated they had two caretakers on the property to ensure liquids were placed in the correct place and that system failed. It is an agreed fact that the systems in place were inadequate. (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence 41 The extent of the control which the respective Defendants had over the activities which gave rise to the offences is not agreed in the SOAF in the sense that there is different statements in the SOAF as to how the dumped waste other than food waste came to be put on the property. Putting that issue aside as I consider it later in relation to the reasons for the commission of the offence, the SOAF does identify the Defendants' respective roles. There is some difference in their respective roles in relation to the events giving rise to the offences as detailed in the SOAF par 257-274. Mr Wattke was a director and CEO of the company, owning 49 per cent of the company shares and was the only effective director at the time given the ill health of his co-director. He clearly had the ability to control the operations of the company if he chose to. Mr Geerdink was the general manager involved in the day to day operations of the company and the SOAF states that he assisted the company's operations manager with various functions. Mr Geerdink had most contact with the Prosecutor in the course of its investigations. Both Defendants 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. 42 Not applicable. Other objective circumstances Culpability 43 Regard must be had to the culpability of the Defendants and the individual circumstances which led to the commission of the offences and the consequences of those circumstances, R v Carroll [2008] NSWCCA 218; (2008) 188 A Crim R 253. The level of seriousness of the s 115(1) offence particularly in relation to the factors in s 241 is high. Additional matters not specifically dealt with above which are relevant to culpability include the reasons for committing the offence and the state of mind of the Defendants in committing the offence. Prosecutor's submissions 44 As submitted by the Prosecutor, waste was deliberately dumped over a lengthy period without any necessary approvals being obtained. There were no systems in place to prevent or reduce the risk of environmental harm or water pollution. The Defendants took no steps to ensure that they had approval for the waste disposal activities of the company given the nature of the waste disposed of at the property. They failed to comply with two notices issued by the Prosecutor and the Council's emergency order. The property was purchased for the specific purpose of receiving waste. The company did not obtain development consent from the Council for the disposal of bio-solids or any other waste at the property. Although the company held an environment protection licence to transport hazardous, industrial and Group A waste it did not have the necessary licence to dispose of waste at the property. None of the information conveyed to the Council or the advice received by the company in March 2007 from the consultant Mr Smith suggested that the dumping was lawful. The dumping of waste commenced before appropriate subsoil injection equipment was acquired, and no such equipment was ever acquired. Mr Wattke 45 Mr Wattke's counsel submitted that as part of assessing culpability the reasons why the offending behaviour began should be considered. The farm was purchased for the worthy purpose of reusing food waste and stormwater runoff in order to rejuvenate the drought affected property. It was submitted there was no deliberate intention to dump waste illegally. This is evidenced by Mr Smith's report dated 7 March 2007 before the property was purchased (Tab 1 Prosecutor's attachments to submissions on sentence) which advises on the placement of organic food waste. The intention to rejuvenate the property is also identified in the letter from the company signed by Mr Geerdink to the Mid-Western Regional Council dated 25 September 2007 which stated the intention of the company was to buy the property and use appropriate waste which could be used in conjunction with agricultural activity. The letter refers to the advice of agricultural experts and preparations for agricultural equipment delivery. This intention is also reflected in an email to a financial provider setting out the business intended to be undertaken. Essentially the Defendant, Mr Wattke, had a good idea but did not put in place proper measures before commencing the activity. 46 The SOAF (par 262) refers to Mr Wattke stating the property was purchased mainly for "subsoil injection operations". While there were plans to inject appropriate waste into soil no machinery for that purpose was purchased within the timeframe of the offence. There is evidence that it was intended that this equipment be purchased. There was an order for equipment placed with a local supplier by 31 August 2007 (after the purchase date on 29 June 2007). The record of interview of Mr Wattke dated 30 June 2008 also reflects this intention at questions 87, 102 and 103. Some equipment was purchased such as tractors and a plough. There was some ploughing in of waste as can be seen from photographs of a tractor and various ploughed paddocks in evidence. 47 Mr Wattke was negligent in not ensuring that only appropriate waste was taken to the property. The SOAF par 53 and 37 states Mr Wattke believed that storm water run off was being deposited at the property and leachate deposited elsewhere. The Prosecutor submitted that Mr Wattke sought to avoid blame by emphasising in the record of interview that Mr Geerdink had control of the day to day affairs of the company and it was his decisions which gave rise to the activities the subject of the offence. If Mr Wattke was not already aware, as he should have been as a director of the company, then he was from the time of receipt of the clean up notice dated 27 August 2007 from the Prosecutor. Mr Wattke's counsel submitted that there is no inference arising from the record of interview that Mr Wattke tried to distance himself from the events giving rise to the offence (countering the Prosecutor's submissions in par 261, 263, 264, 265 of the written submissions). I accept the submissions of Mr Wattke's counsel in that respect. Mr Geerdink 48 Mr Geerdink made no submissions about the objective circumstances of the offence. His role is identified in the SOAF as being engaged in the day to day management of the company and he was the point of contact for many parts of the business. The property was purchased to use for receiving waste from the Emu Plains premises of the company and liquid food waste from the company's clients. He states that both he and Mr Wattke directed trucks to the property to dispose of liquid waste. He states that Mr Wattke directed him to start dumping waste at the property. There is a difference in the SOAF in relation to who caused the waste that was not liquid food waste to be dumped on the property as it is clear that Mr Wattke does not agree with that statement. Mr Geerdink initiated discussions with the Council concerning what activities could be undertaken without development consent. He received advice from the consultant Mr Smith four months before the offences were committed that no waste should be dumped at the property within 40 metres of a water body. He was aware that equipment was needed to carry out subsoil injection operations and was involved in purchasing equipment. 49 The water pollution offence is a strict liability offence. No mental element is part of the elements of the offence. It is not necessary to consider whether there was negligence on the part of the Defendants as an element of the offence. The same findings made in relation to the reasons for the commission of the offence apply also to the water pollution offence, albeit that offence is less serious and involves a smaller area within the property. It occurred in the course of the conduct which gave rise to the s 115 offence. Conclusion on culpability 50 The SOAF discloses a seriously negligent course of conduct over several months of disposing of inappropriate waste on the property. The company's business was waste disposal and the failure to comply with necessary legal requirements for the operation of such a business weighs heavily against both Defendants. While the original intention in buying the property for the disposal of food waste was worthwhile, that the property was then used to dispose of a wide range of completely inappropriate waste also weighs heavily against both Defendants. The offences were committed for the purpose of obtaining financial benefit being part of the company's operations of the collection and disposal of waste. 51 The different roles of the two Defendants is set out in the SOAF at par 257-274. Mr Wattke is one of the directors of the company, and was solely in charge at the time of the offences due to the ill health of the only other director. Mr Wattke's role is to be contrasted with Mr Geerdink. Mr Geerdink had a more "hands on" role in the day to day management of the company's affairs. Both were negligent. Mr Wattke did go to the property (SOAF 259) on 17 August 2007 (and 30 June 2008). The objective seriousness of all the offences are similar as between the two Defendants. Maximum penalty 52 In setting a penalty the Court should have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at [698] and [701] respectively that: The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided… ..the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty. 53 The maximum penalty was increased in May 2006 for both offences (par 5). Each Defendant must continue to be assessed as to their level of criminality so that the relative seriousness is determined in relation to the worst case for which the maximum penalty is provided, see Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312. The maximum penalty for the s 115(1) offences of four years imprisonment and up to $1 million fine reflects the seriousness with which these offences are viewed and the legislative intention to increase penalty levels substantially: Environment Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831 at [28] referring to R v Slattery (1996) 90 A Crim R 519 at 524; Environment Protection Authority v Ross [2009] NSWLEC 36; (2009) 165 LGERA 42. 54 The maximum penalty for water pollution offences was increased in May 2006 and is also reasonably substantial. The Prosecutor does not contend that any further penalty should be imposed on either Defendant on the basis that the water pollution offences committed by them pursuant to s 120(1) of the POEO Act were continuing.

57 Further, the offences were committed for financial gain (s 21A(2)(o)). The Prosecutor submitted that the company of which Mr Wattke was the director derived substantial financial benefit by way of waste fee savings without taking responsibility for the costs inherent in complying with the law either by disposing of the waste legitimately or obtaining the necessary approvals and consent. There is no evidence of the financial position of the company at the time of the offences (it being now in liquidation) or about waste fees saved, but it is appropriate that I infer from the circumstances that disposal on the property was cheaper than legitimate means of disposal. Because the necessary authorities or consents had not been obtained for the activity undertaken, the cost of compliance with these must have been saved. I agree with the Prosecutor that these aggravating factors apply in this case. Conclusion on objective gravity of offences 58 The waste offences under s 115(1) are objectively serious in light of the circumstances in which the offences were committed and in light of the aggravating circumstances that the level of environmental harm was and is substantial and the offence was committed for financial gain. The offence is not more serious in part because the environmental harm was localised and the charge is one of negligence not wilfulness. The objective seriousness of the offences is at the medium to upper end of the possible scale of objective gravity. 59 The water pollution offences under s 120 are at the low to medium end of the possible scale of objective gravity. The Defendants caused employees of the company to undertake the work that gave rise to the water pollution in creek 2. The excavation and disposal of waste was carried out in pursuit of the company's activities, namely for financial gain. The environmental harm was substantial in the immediately affected area of creek 2 so that once again the impact while severe was localised. General deterrence 60 Section 3A(b) of the CSP Act states that one of the purposes of imposing a sentence is to prevent crime by deterring offenders. Sentences imposed in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, per Badgery-Parker J at 367 (Finlay J agreeing at 360, Mahoney JA at 359). In Axer, Mahoney JA stated at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur. 61 The Prosecutor submitted that deterrence was important given that the Defendants were engaged in the business of waste disposal. In Environment Protection Authority v Pal [2009] NSWLEC 35, a case with similarities to this matter which I consider further below, Sheahan J considered deterrence at [84] as follows. I adopt those findings. The sentence must discourage players and potential players in the landfill industry from any thought that environmental offences do not attract substantial penalties. As Preston ChJ said in Waste Recycling (at [229]), it must not be seen as cheaper to offend than to act to protect the environment, the cost of offending must outweigh likely gains, and any fine should not appear to be a licence fee. See also Axer (at 359). Nor should the penalty be seen as mere "admonition" or a "gesture". See Smith v The Queen (1991) 25 NSWLR 1 per Mahoney JA (at 23). Specific deterrence 62 In Veen v The Queen [No. 2] [1988] HCA 14; (1988) 164 CLR 465 at 477 the majority judgment of Mason CJ, Brennan, Dawson and Toohey JJ stated that past criminal behaviour is relevant in sentencing: to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. 63 Neither Defendant has any prior convictions so that there is no evidence of continuing disobedience to the law. Mr Wattke's counsel submitted there was no need to consider specific deterrence given his present personal circumstances, referred to in relation to mitigating factors. I agree it is unlikely that Mr Wattke will be engaged in work of this kind in any realistic time frame. Mr Geerdink did not make any submissions on this issue. Mitigating factors 64 A number of mitigating factors should be taken into account to reduce that penalty, as provided for in s 21A(3) of the CSP Act. Evidence was tendered by the Defendants of subjective circumstances I can take into account. 65 Counsel for Mr Wattke tendered the following reports: a) Letter from Dr Darshini Jeyarantam, general medical practitioner, dated 1 October 2009 providing a report of Mr Wattke's medical history. Dr Jeyarantam states that Mr Wattke has had some physical and psychological incapacities requiring treatment and medication, and referral to a clinical psychologist. b) Another letter from Dr Jeyarantam, dated 24 September 2009 opines that Mr Wattke's legal problems have also had psychological impacts on Mr Wattke's wife and children. c) Letter from Dr Jim Jupp, a clinical psychologist, dated 29 October 2009 to Dr Jeyaratnam. Dr Jupp states that Mr Wattke was referred to him in October 2008 with serious psychological distress attributed to the charges brought by the Prosecutor and the subsequent loss of his company. Dr Jupp states that he saw Mr Wattke regularly until the end of 2008 and again in October 2009. 66 Mr Geerdink tendered: a) Letter dated 7 October 2009 from Dr Kiran Sidhu, a consultant psychologist, to probation and parole officer, Mr Michael O'Donnell. Dr Sidhu states that Mr Geerdink was referred to him by his general medical practitioner for treatment of psychological issues in July 2009. b) Report of Dr Peter Hay who assessed Mr Geerdink's physical capacity to carry out community service work. Dr Hay identifies that Mr Geerdink is fit for all the activities listed in a form provided to him by the Department of Corrective Services.

Guilty plea - s 21A(3)(k), s 22 CSP Act 67 The Defendants pleaded guilty to all the offences at different times. A plea of guilty entitles the Defendants to a discount in penalty under s 22 of the CSP Act in the range of 10-25 per cent: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; and R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300. In recent decisions of this Court there has been a reduction of the discount for penalty where a guilty plea has not been entered at the first available opportunity: see Lloyd J in Environment Protection Authority v Werris Creek Coal Pty Ltd; Environment Protection Authority v Holley [2009] NSWLEC 124 at [79]-[80]; see also Biscoe J in Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77 at [100] referring to R v Borkowski [2009] NSWCCA 102). 68 The summonses for proceedings 50070 of 2008 and 50071 of 2008 regarding offences against s 120(1) of the POEO Act were issued by the Court on 24 September 2008. The summonses for proceedings 50077 of 2008 and 50078 of 2008 regarding offences under s 115(1) were issued by the Court on 24 October 2008. There were six callovers before the Court on 7 November 2008, 6 February 2009, 20 March 2009, 1 June 2009, 12 June 2009 and 18 November 2009. Mr Geerdink entered pleas of guilty in both proceedings 50071of 2008/50078 of 2008 on 12 June 2009. A hearing on the basis of two not guilty pleas by Mr Wattke was set down on 28 September 2009 for two days. Mr Wattke formally entered pleas of guilty to both offences on the first day of the hearing. His intention to do so was notified in sufficient time that witnesses were cancelled and there were some costs savings. The Prosecutor submits that the pleas of guilty in these proceedings, particularly in the case of Mr Wattke, should attract a reduction at the bottom end of the possible range of a discount for an early plea. 69 As a result of the delays in entering pleas, the discount to be afforded for the utilitarian value of the pleas of guilty should be reduced from the maximum of 25 per cent stated in the guideline judgment of the Court of Criminal Appeal in R v Thomson at [160]. Mr Wattke is entitled to a discount at the lower end, about 10 per cent, as he pleaded guilty very late and thereby reduced the utilitarian value of the plea substantially. Mr Geerdink did not plead guilty at the first available opportunity but did so relatively early. He is entitled to a discount in penalty of 20 per cent. No previous convictions s 21A(3)(c) 70 Neither Defendant has any prior convictions, a matter I have considered in relation to whether specific deterrence is a relevant sentencing consideration. Contrition and remorse - s 21A(3)(i) CSP Act 71 Section 21A(3)(i) states: (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), 72 As held by Preston J in Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [158]: The existence of genuine contrition or remorse is also relevant to the weight that needs to be given in sentencing to individual deterrence and the prospects of rehabilitation of the offender: R v Thomson at [116]. Contrition by an offender can be associated with insight by the offender into the reasons for, or factors contributing to, the offending conduct. If an offender has insight into the offending conduct, there is a reduced risk of reoffending and a reduced need for a sentence to be imposed for the purpose of individual deterrence: R v Wisbey [2001] NSWCCA 434 at [31]. 73 There is no evidence of any expression of contrition or remorse from either Defendant prepared for the sentence hearing. That both have pleaded guilty to this offence can be taken into account to a limited extent as an expression of remorse. The Court usually has more specific expressions of remorse from defendants before it which can be given weight. In the probation and parole report prepared in relation to Mr Geerdink (referred to below at par 101), probation and parole officer Michael O'Donnell observed that it would appear Mr Geerdink denies any wrongful actions on his part. In the probation and parole report prepared in relation to Mr Wattke (referred to below at par 99), probation and parole officer Ivan Duncalfe observed that Mr Wattke accepts his responsibility as the director of the company, but claims to have not actually participated in the offence. 74 I will accept that the plea of guilty can be given some weight as an expression of remorse for both Defendants. Whether likely to reoffend - s 21A(3)(g) CSP Act 75 These are first offences for both Defendants. Given their respective personal circumstances since the offences and their general good character it is unlikely that either Defendant will reoffend. Character - s 21A(3)(f) CSP Act 76 Mr Wattke provided character references from his wife, Monica Postawski, dated 1 October 2009, from Paul Punter, a former employee of the company, dated 7 October 2009, from Graeme Hudswell, business manager of a former client of the company, dated 15 October 2009 and from John van de Putte, a co-owner of the company (undated) referring to his good character, generous and loving disposition to family and friends, and competent workplace management skills. All, with the exception of Mr Hudswell, were made in the knowledge of the offences with which Mr Wattke has been charged and attest to his good character. 77 Mr Geerdink also provided character references from his current employer, Joe Viglione, dated 12 February 2010, and former employees and co-workers, Mark Williams (undated) and Mehulkumar Patel, dated 11 February 2010, referring to his professional and conscientious work practices and honesty. All were made in the knowledge of the offences with which Mr Geerdink has been charged and attest to his good character. 78 I accept that both Defendants are of good character. As noted in Plath v Rawson at [148], it is often the case that environmental offenders have no prior convictions and are otherwise of good character suggesting this subjective factor has less weight in sentencing.

Psychological impairment 81 It was submitted that Mr Wattke has suffered severe psychological trauma since the offences. Reports from Mr Wattke's general medical practitioner and a clinical psychologist were tendered as evidence. Since these reports were prepared and since the sentence hearing I requested a further probation and parole report concerning Mr Wattke. The recent probation and parole report dated April 2010 states that Mr Wattke's doctor considers his physical and mental health to have improved and stabilised over the past four months. This matter is therefore less relevant to my sentencing consideration than it might have been. 82 Mr Geerdink made no specific submissions on extra curial punishment. I also take into account that he was referred to a psychologist in July 2009 and attended psychotherapy for depression and anxiety, with continued counselling recommended. 83 Mr Wattke's counsel referred to Courtney v Regina [2007] NSWCCA 195; (2007) 172 A Crim R 371 regarding the proper approach to sentencing a person with mental illness. In Courtney Basten JA stated at [14] : Recent caselaw concerning the proper approach to sentencing a person with mental illness is extensive. In this Court, the principles were adverted to in R v Henry (1999) 46 NSWLR 346, in particular by Wood CJ at CL at [252]-[254], where his Honour distinguished drug addiction from mental abnormality. More recently, the principles were referred to by Spigelman CJ in R v Israil [2002] NSWCCA 255 at [23]-[26]. Most recently, the principles have been reconsidered and restated by the Victorian Court of Appeal in R v Verdins [2007] VSCA 102 at [32] (Maxwell P, Buchanan and Vincent JJA), following and elaborating upon the statements in R v Tsiaras [1996] 1 VR 398, in the following terms: Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways: 1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective. 2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. 3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. 4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. 5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. 6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment. Grove J at [51], [53] and Howie J at [82]-[83] also commented on the sensitivity of sentencing a person with mental illness.

84 These statements in Courtney were made in obiter as the defendant before the court was found to be severely mentally impaired at the time of the commission of the offence, and was unfit to be tried under the provisions of the Mental Health (Criminal Procedure) Act 1990. It appears to be settled principle that the psychological state of the offender which has arisen after the offence can be taken into account as a matter relevant to sentencing. No case, apart from Pal was found where this circumstance was before this Court in a sentencing matter. In other cases referred to in Courtney, such as R v Israil [2002] NSWCCA 255 and R v Jiminez [1999] NSWCCA 7 the defendant was mentally ill or impaired at the time of the commission of the offence, as well as at the date of a sentence being imposed. 85 In Pal, the defendant was described as a landfill consultant and was the principal of an earth-moving business and also director of a haulage company. She pleaded guilty to two charges under s 115(1) of the POEO Act that in 2004 she negligently disposed of waste in a manner that harmed or was likely to harm the environment at two different properties. The defendant was engaged to undertake fill operations on two sites, and had full control of those sites. Due to the seriousness of the charges, and before passing sentence, Sheahan J considered at [58]-[69] medical/psychological evidence that the EPA investigations and subsequent prosecution had had significant long-term impacts on Ms Pal's mental and emotional health. Sheahan J also noted that there were some factual inaccuracies in Ms Pal's description of the investigations and EPA prosecution which were relied upon in the defendant's forensic psychological reports, and he opined at [97] that the written and oral evidence of the defendant's treating psychologist "does not help the court on the defendant's state of mind at the relevant time." The mental health aspects of the defence submissions were not accepted as mitigating factors in the eventual sentence involving a substantial community service orders of 135 hours and a fine of $13,500 for one offence and 315 hours and a fine of $31,500 for another offence. 86 Courtney refers to impaired mental functioning which can encompass a wide range of mental states. There is little guidance in the authorities regarding evidence of depression of an offender resulting from events arising from the commission of an offence and how it is to be taken into account in sentencing. It is likely such evidence is frequently placed before courts as I surmise this is likely to be a common reaction to being found guilty of a criminal offence. As stated by James J at [156] in R v Einfeld it is common for offenders who are the subject of criminal proceedings to become depressed and even severely depressed. In the current case Mr Wattke's depression resulted from the impact of the EPA investigations and prosecution. 87 It was submitted that each Defendant has experienced varying degrees of psychological distress, including depression and anxiety. I do not believe that the objective seriousness of the offences is significantly reduced by the fact that each Defendant has suffered from depression and continues to do so to some extent.

Evenhandedness 88 The principle of evenhandedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the Court: Axer at 365. The Prosecutor submitted that there are no comparable cases. 89 Environment Protection Authority v Pal (summarised above at par 85 concerning two offences under s 115(1) has some similarity. The sentence for an offence under s 5 of the Environmental Offences & Penalties Act 1989 (now repealed) in Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997) should also be considered (summarised below at par 104). Means of the Defendant to pay/Bankruptcy of the Defendant 90 Under s 6 of the Fines Act 1996, in the exercise of its discretion to fix the amount of any fine, the Court is required to consider such information regarding the means of the accused as is reasonably and practicably available for the Court's consideration and such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. 91 At the hearing both Defendants were granted leave to file any financial information they considered relevant to the exercise of the Court's discretion under s 6 of the Fines Act. I have been told from the bar table that Mr Geerdink is employed. His employer provided a written character reference after the hearing. Mr Geerdink filed a statutory declaration on 31 March 2010 itemising his monthly outgoing expenses totalling $7007 and two salary advice slips for February and March 2010. I do not know anything else about his financial situation, having not been provided with tax returns, bank statements or investment summaries. I understand from the probation and parole report (detailed at par 101 below) that he is married with children (also confirmed in Mr Geerdink's 31 March 2010 statutory declaration). I have limited information on which to assess Mr Geerdink's means to pay. Bankruptcy of Defendant 92 I understand that Mr Wattke is not presently employed as indicated in the probation and parole report and have been informed by his counsel that he is bankrupt following the winding up of the company. Mr Wattke has otherwise provided no financial information or material for me to consider in relation to the application of s 6 of the Fines Act. 93 A penalty imposed by the Court for an offence under the POEO Act is not a debt provable in bankruptcy, Bankruptcy Act 1966 (Cth) s 82(3). This means that a defendant will continue to be liable to pay if the bankruptcy is discharged (Environment Protection Authority v Ableway Waste Management Pty Ltd and Anor [2005] NSWLEC 469 at [35]). 94 In Environment Protection Authority v Hogan [2008] NSWLEC 125, the financial position of the defendant, an undischarged bankrupt with an ongoing earning capacity, was given some but not significant weight. In Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94, also involving an impecunious offender, Lloyd J took into account the seriousness of the offence and the need for general deterrence in awarding costs for over $1 million in mitigation of the environmental harm despite the defendant being bankrupt. I considered these cases in determining in Environment Protection Authority v Buchanan (No 2) to impose a substantial fine. 95 The appropriate method for considering a defendant's means to pay was set out by Finlay J in Rahme v R (1989) 43 A Crim R 81 at 87: …once a determination has been made that a fine should be imposed the correct procedure in assessing the appropriate amount of the fine is to determine it by reference to the gravity of the offence for which it is imposed. If the court is satisfied that the offender would be unable to pay the amount determined it may reduce it to take account of the offender's means and impecuniosity. 96 I will take into account that the Defendants both have limited ability to pay a substantial fine, on the basis identified in Rahme. In terms of imposing a penalty Mr Wattke has very limited means to pay a substantial penalty accepting his counsel's advice that he is bankrupt. Mr Geerdink appears to have some capacity to pay a fine and has not provided adequate information to enable an assessment of all relevant aspects of his financial situation such as would be found in income tax returns or bank statements. Prosecutor's costs 97 There is no specific agreement that the Defendants pay the Prosecutor's legal costs. These would generally be awarded to the Prosecutor as provided for under s 257G of the Criminal Procedure Act 1986. I note the Prosecutor's counsel estimated that the costs of the proceedings were approximately $125,000. That amount of legal costs is significant and can be taken into account in setting a penalty as it is likely to affect the ability of the Defendants to pay a penalty, Environment Protection Authority v Barnes [2006] NSWCCA 246. The Prosecutor additionally seeks $15,000 from each Defendant for investigation costs and is able to do so under s 248 of the POEO Act. Totality principle 98 The Defendants are each charged with two offences. Given that the offences arise from the same course of conduct it is appropriate that the totality principle is applied. That principle requires a judge to determine the appropriate sentence for each offence and when reviewing the aggregate sentence, consider whether it is just and appropriate. In this way the overall criminality of all the offences is reflected proportionately in the sentences imposed, Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62, Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, and Pearce v The Queen [1988] HCA 57; (1988) 194 CLR 610. I will determine an appropriate sentence for each offence in light of the totality principle. Pre-sentence reports 99 Each of the Defendants has been referred to probation and parole services for pre-sentence assessment. A pre-sentence report for Mr Wattke prepared by probation and parole officer Ivan Duncalfe dated 2 December 2009 was before the Court. The report states that Mr Wattke has had no prior contact with the Community Offender Services. Mr Wattke is estranged from his de facto wife and children, has remained unemployed since bankruptcy proceedings in June 2008, and is reliant on a Centrelink benefit as his only income. The report also identifies Mr Wattke's physical and psychological health and relevant treatment history. The report states that Mr Wattke is assessed as unsuitable for a community service order as he has both medical and psychological issues making him unsuitable to be placed with an agency. Mr Wattke was also assessed as unsuitable for a periodic detention order based on the same information. 100 A supplementary pre-sentence report for Mr Wattke was prepared by probation and parole officer Mr Duncalfe dated 10 April 2010. The supplementary report states that Mr Wattke's doctor considers his physical and mental health have improved and stabilised. Mr Wattke is now assessed as suitable for a community service order. He is also assessed as suitable for a periodic detention order as per the requirements of the CSP Act, and an undertaking to comply with the obligations under a periodic detention order has been signed by him. 101 A pre-sentence report for Mr Geerdink was prepared by probation and parole officer Michael O'Donnell, dated 18 September 2009. The report states that Mr Geerdink has had no prior contact with the Community Offender Services. It states that Mr Geerdink has a supportive relationship with his wife and two children, and that he has had continuous employment since leaving school at age 16. The report identifies some pre-existing health issues and recent psychological counselling. Mr Geerdink was assessed as unsuitable for a community service order under s 86(1) of the CSP Act because an assessment from the Defendant's general medical practitioner had not been provided. At the hearing Mr Geerdink provided the Court with a copy of his general practitioner's assessment (exhibit 1B) which was sent to Mr O'Donnell on that day. Mr O'Donnell then gave oral evidence by telephone link-up. In light of the assessment of the general practitioner Mr O'Donnell amended his conclusion in the pre-sentence report and stated that Mr Geerdink was suitable for a community service order. Mr Geerdink was also assessed as suitable for periodic detention and has signed an undertaking as required in s 66(1)(f) of the CSP Act. Sentencing- s 115(1) offences 102 In this Court the s 115(1) offences are punishable by a fine and/or imprisonment for up to two years. The offences are serious and towards the medium to upper end of the possible spectrum of sentencing given the objective circumstances. It is not the worst case because the environmental harm was largely confined to a single, albeit large, property. Nor is the offence the more serious charge of wilful. The Prosecutor submits that imprisonment should be considered for each Defendant given the objective circumstances of the offence. The three stage process which should apply to the consideration of whether a term of imprisonment should be applied is identified in Plath v Rawson at [176]-[179] in turn citing Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 (per Johnson J, McClellan CJ at CL and Adams J concurring) at [69] and following. The process is set out in Douar at [70]-[72]. 70 The first question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment. Section 5 prohibits a Court from imposing a sentence of imprisonment unless the Court is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. At this stage in the process, the only consideration is whether a sentence of imprisonment should be imposed, and not the manner in which that sentence of imprisonment is to be served: Zamagias at paragraph 25. 71 The second step is reached where the Court has determined that no penalty is appropriate other than a sentence of imprisonment. The Court is next to determine what the term of that sentence should be. This has been regarded as the first step of a two-step approach: Foster at paragraph 30; Zamagias at paragraph 26. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. The sentence cannot be increased because it is to be served by way of periodic detention: Wegener at paragraph 22; Zamagias at paragraph 26. 72 The third stage is reached once the length of the sentence of imprisonment has been determined. The Court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. …

103 Considering the first stage of whether imprisonment is the appropriate punishment, s 5(1) of the CSP Act requires that a court not sentence an offender to imprisonment unless it is satisfied that no penalty other than imprisonment is appropriate, having considered all possible alternatives. At [181] of Plath v Rawson, Preston J identifies circumstances where a custodial sentence has been considered as an appropriate punishment, namely to reflect an offender's conduct which involves a considerable degree of wilfulness and deception, where an offender's conduct aims to achieve a profit or save an expense, where the offender's conduct poses a high level of risk to or actually caused considerable environmental harm, where the offender's conduct is over an extended period of time and where individual and general deterrence makes a custodial sentence appropriate. 104 All these factors were present in relation to the offender in Environment Protection Authority v Gardner [1997] NSWLEC 212 (14 August 1997), a more serious charge of wilful disposal of waste for activities that took place over many months. At trial the defendant was found guilty of the Tier 1 offence of wilfully disposing of waste in a manner which was likely to harm the environment under s 5(1) of the EOP Act. Section 5(1) is identical to s 115(1) of the POEO Act. The defendant operated a caravan park and was discovered to have constructed a concealed system of by-pass plumbing in order to discharge effluent from the caravan park directly into the Karuah River, rather than incur costs for pump-out and road-tanker disposal as required by the Port Stephens Council. The illegal pumping and discharge into the river had occurred for a period of 118 weeks, and caused viral contamination to sediments near the outlet pipe, and posed a grave health risk to the community. 105 In the judgment on sentence in Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997) Lloyd J restated that he found beyond reasonable doubt that the defendant knew his activities were illegal and would harm or were likely to harm the environment. Evidence was adduced as to prior good character, and the defendant acknowledged his responsibility in the commission of the offence. There were multiple aggravating features in that the offence was not an isolated or single act of pollution, the offence was committed for financial gain, the defendant went to great lengths to conceal illegal activity, the harm affected the community as a whole and the defendant was aware of causing environmental harm by his actions but showed little remorse. Lloyd J considered a possible sentence of community service or periodic detention, but recognised that such orders suggest a strong degree of leniency and are outwardly less severe in denunciation of a crime as compared with a full time custodial sentence. Lloyd J sentenced the defendant to 12 months imprisonment with a non-parole period of 9 months, to pay a penalty of $250,000 (the maximum fine at that time), and to pay the prosecutor's costs of $170,000. 106 Gardner is markedly more serious than the offences before me given the finding that the defendant acted wilfully for a lengthy period, concealed the illegal activity and the sewage discharged illegally posed grave health risks to the community. The finding of guilty followed a contested trial. The Tier 1 offences for both Defendants in these proceedings while serious are not as serious as in Gardner. The element of the offence is negligent disposal of waste not the more serious wilful. Further, both Defendants have pleaded guilty, avoiding the need for a contested hearing which I anticipate would have been lengthy and which can be considered as a recognition of their understanding of the nature of their offences. 107 I have given careful consideration to whether a penalty of imprisonment is warranted, mindful of the requirement in s 5 of the CSP Act that a court must not sentence an offender to imprisonment unless satisfied that no penalty other than imprisonment is appropriate having considered all possible alternatives. The period of the offences occurred over several months and resulted in the negligent disposal of a very large amount of waste. Much of that waste had significant adverse environmental impacts on the property but was confined to that property. The activity was undertaken as part of the waste disposal activities of the company. The initial intention to purchase the property to dispose of food waste was a worthwhile one. The Defendants, particularly Mr Wattke as the only active director of the company at the time of the offences, stood to gain financially from the activities giving rise to the offence. Directions from regulatory authorities to stop the activities giving rise to the offences were ignored. 108 Taking into account the need to adequately punish the Defendants for the offence (s 3A(a) CSP Act), for general deterrence in cases of this kind (s 3A(b) CSP Act), to make the Defendants' accountable for their action (s 3A(e) CSP Act), and to recognise the level of environmental harm to the community (s 3A(g) CSP Act), I have given serious consideration to a period of imprisonment. In light of the Defendants' lack of prior convictions, personal circumstances including that they are married with children, and in view of their guilty pleas whereby they admitted their offences I will consider alternatives to a custodial sentence. These are a good behaviour bond under s 9 of the CSP Act, a community service order under s 8 of the CSP Act and/or a fine. The offence is too serious for the imposition of a good behaviour bond under s 9. I consider a community service order close to the maximum of 460 hours should be imposed together with a fine. 109 I have resolved that a community service order together with a fine is an appropriate penalty for each Defendant. The making of community service orders is provided for in s 8 of the CSP Act. The requirements for imposing community service orders are identified in s 86 of the CSP Act. An order cannot be made unless the offender is found suitable after assessment by a probation and parole officer, s 86(4). Both Defendants have been assessed as suitable to perform community service by the probation and parole service as required by s 86(4). 110 There are statutory obligations and conditions associated with a community service order for each Defendant following conviction set out in the Crimes (Administration of Sentences) Act 1999. There are also serious penalties for breaches of a community service order which the Defendants must be aware of and which I will explain when judgment is delivered. Parity between Defendants 111 While not literally co-offenders both Defendants are charged with the same offences arising from the same circumstances. Inconsistency in sentencing could give rise to a justifiable sense of grievance so that parity of punishment as between the Defendants is important, see Lowe v The Queen (1984) 154 CLR 606 Mason J at 610. 112 While Mr Wattke is entitled to a lesser reduction in penalty for the early plea of guilty compared to Mr Geerdink, I consider that he has suffered extra curial punishment not suffered by Mr Geerdink given the substantial impact of the company being wound up since the offence. Mr Wattke is currently unemployed unlike Mr Geerdink. In the circumstances of these offences both Defendants present overall with comparable objective and subjective features. The Defendants should be treated on an equal basis so that there is parity of sentencing between them.

Environment Protection Authority v Wattke, Environment Protection Authority v Geerdink

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