NSWNSWLEC

Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v O'Haire

[2020] NSWLEC 158

Land and Environment Court (NSW)|2020-10-27|Before: Pepper J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2020-10-27

Before

Pepper J

Catchwords

(2006) 145 LGERA 234 Bourke v R [2010] NSWCCA 22
(2010) 199 A Crim R 38 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280
Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Church v R [2012] NSWCCA 149 Croaker v R [2008] NSWCCA 232
(2008) 190 A Crim R 15 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137

Source

Original judgment source is linked above.

Catchwords

(2006) 145 LGERA 234 Bourke v R [2010] NSWCCA 22(2010) 199 A Crim R 38 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Church v R [2012] NSWCCA 149 Croaker v R [2008] NSWCCA 232(2008) 190 A Crim R 15 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137(2009) 168 LGERA 121 Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 Einfeld v R [2010] NSWCCA 87(2010) 200 A Crim R 1 Elias v The Queen [2013] HCA 31(2006) 148 LGERA 299 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113 Harris v Harrison [2014] NSWCCA 84(1989) 167 CLR 348 Hongzhi Sun v Grant Barnes, Department of Industry [2018] NSWLEC 196 Johnson v The Queen [2004] HCA 15(2004) 78 ALJR 616 Johnston v R [2017] NSWCCA 53 Kearsley v The Queen [2017] NSWCCA 28(2017) A Crim R 233 Khoo v R [2013] NSWCCA 323(2013) 237 A Crim R 221 Ku-ring-gai Council v Abroon (No 3) [2012] NSWLEC 12 Markarian v The Queen [2005] HCA 25(2005) 228 CLR 357 Mill v The Queen [1988] HCA 70

Judgment (72 paragraphs)

[1]

C 419; (2006) 148 LGERA 299 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v O'Haire [2019] NSWLEC 158 Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113 Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 Harrison v Baring (No 2) [2012] NSWLEC 145 Harrison v Perdikaris [2015] NSWLEC 99 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Hongzhi Sun v Grant Barnes, Department of Industry [2018] NSWLEC 196 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Johnston v R [2017] NSWCCA 53 Kearsley v The Queen [2017] NSWCCA 28; (2017) A Crim R 233 Khoo v R [2013] NSWCCA 323; (2013) 237 A Crim R 221 Ku-ring-gai Council v Abroon (No 3) [2012] NSWLEC 12 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR Morton v The Queen [2014] NSWCCA 8 Mouawad v Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 O'Haire v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2020] NSWCCA 19 Parente v R [2017] NSWCCA 284; (2017) 96 NSWLR 633 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Prothonotary v Gregory [2017] NSWCA 101 R v AB [2011] NSWCCA 229 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Dodd (1991) 57 A Crim R 349 R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Nichols (1991) 57 A Crim R 391 R v Obeid (No 12) [2016] NSWSC 1815 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 R v Wheeler [2000] NSWCCA 34 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Water NSW v Barlow [2019] NSWLEC 30 Weininger v R [2003] HCA 14; (2003) 212 CLR 629 Wingecarribee Shire Council v O'Shanassy (No 6) [2015] NSWLEC 138 Johnston v R [2017] NSWCCA 53 Category: Sentence Parties: Natural Resources Access Regulator (Prosecutor) Brian O'Haire (Defendant) Representation: Counsel: E Muston SC and A Bonnor (Prosecutor) J Van Aalst (Defendant)

[2]

Solicitors: NSW Crown Solicitor's Office (Prosecutor) John Hertz & Associates (Defendant) File Number(s): 2018/385156, 2018/385157, 2018/385158, 2018/385159, 2018/385160, 2018/385161, 2018/385162 and 2019/177253

[3]

Judgment

On 19 July 2019 the defendant, Brian O'Haire, pleaded guilty to eight offences against s 60C(2) of the Water Management Act 2000 ("WMA"), namely, taking water from a water source to which Pt 2 of Ch 3 of the WMA applies otherwise than in accordance with the water allocation for his water access licence ("WAL"). This judgment concerns the imposition of an appropriate sentence on O'Haire in respect of the commission of those offences.
A summary of the charge periods and the amount of water taken in respect of the offences to which O'Haire has pleaded guilty is set out below: Charge Court File Number Date of Offending Quantity (ML) 1 2018/385156 12 April 2016 - 24 May 2016 20.17 2 2018/385157 8 October 2016 - 14 April 2017 598.99 3 2018/385158 3 October 2017 - 30 November 2017 155.89 4 2018/385159 11 December 2017 - 31 January 2018 194.67 5 2018/385161 7 February 2018 - 24 March 2018 125.34 6 2018/385160 23 April 2018 - 24 April 2018 4.61 7 2018/385162 22 May 2018 4.88 8 2019/177253 14 September 2018 - 4 March 2019 273.45

[4]

With the exception of the particulars as to date and the amount of water, the summonses charging the offences were relevantly identical. For example, the prosecutor, the Chief Regulatory Officer of the Natural Resources Access Regulator ("NRAR")', seeks in respect of the first charge: 1 An order that the defendant, Brian Vance O'Haire, of 2 Perry Street, Euston, New South Wales, appear before a Judge of the Court to answer the charge that, between about 12 April 2016 and about 24 May 2016 inclusive, at "Tapaulin Farm" at 2756 Tapalin Mail Road, Euston in the state of New South Wales, contravened s 60C(2) of the Water Management Act 2000 (WM Act) in that he took water from a water source to which Part 2 of Chapter 3 of the WM Act applies otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source was authorised. 2 An order that the defendant be dealt with according to law for the commission of the offence. 3 An order that the defendant pay the prosecutor's costs. 4 Such other order or orders as the Court in its discretion sees fit to make. Particulars Tapaulin Farm At all times during the period from about 12 April 2016 to about 24 May 2016, inclusive, Tapaulin Farm at 2756 Tapalin Mail Road, Euston, included the land described as Lot 1 DP 434881, Lots 1, 2, 3, 4 and 5 DP 1095924 and Lot 1 DP 243666 in the Parish of Matalong in the County of Taila in NSW (Land). At all times during the period from about 12 April 2016 to about 24 May 2016, inclusive, Brian Vance O'Haire was a co-owner of the Land. Water source New South Wales Murray Regulated River Water Source. Access licence Water Access Licence 36492 (reference 60AL583163). Water allocation for the access licence by which the taking of water from that water source was authorised. At all relevant times, Brian Vance O'Haire was a co-holder of Water Access Licence 36492. At no time during the period between about 12 April 2016 and 24 May 2016 inclusive did the water allocation account for Water Access Licence 36492 record any water to which the holder of Water Access Licence 36492 was entitled under the licence. As a consequence, at no time during the period between about 12 April 2016 and 24 May 2016 inclusive was Brian Vance O'Haire entitled or authorised to take water from the New South Wales Murray Regulated River Water Source under Water Access Licence 36492.

[5]

Legislative Regime Creating the Offences

Section 60C(2) of the WMA creates the following offence: 60C Taking water for which there is no, or insufficient, water allocation (2) A person who takes water from a water source to which this Part applies otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source is authorised is guilty of an offence. Tier 2 penalty.
Prior to 27 June 2018 s 363B of the WMA established the following relevant Tier 2 penalty for individuals: 363B Penalties For the purposes of this Act - … (b) a Tier 2 penalty corresponds to a maximum penalty of - … (ii) in any other case, 2,250 penalty units and, in the case of a continuing offence, a further penalty of 600 penalty units for each day the offence continues…
On 27 June 2018 s 363B of the WMA was amended and the maximum penalty for a Tier 2 offence for an individual increased to 4,550 penalty units.
O'Haire has not been charged with a continuing offence.

[6]

Water Sharing Plan

O'Haire and his wife, Joan O'Haire, purchased a property ("Tapaulin Farm") located at 2756 Tapalin Mail Road, Euston, in October 2013. Tapaulin Farm is downstream of the Barmah Choke, a narrow section of the Murray River that runs through the Barmah-Millewa Forest, located within the New South Wales Murray Regulated River Water Source.
Until 30 June 2016 Tapaulin Farm was in the Murray Water Management Area under the Water Sharing Plan for the New South Wales Murray and Lower Darling Regulated Rivers Water Sources 2003.
On 1 July 2016 that Plan was replaced by the Water Sharing Plan for the New South Wales Murray and Lower Darling Regulated Rivers Water Sources 2016 ("2016 WSP"). Under the 2016 WSP Tapaulin Farm is in the Lower Murray Darling Water Management Area.

[7]

Tapaulin Farm

Tapaulin Farm comprises Lot 1 of DP 434881, Lots 1, 2, 3, 4, and 5 of DP 1095924, and Lot 1 DP 243666 in the Parish of Matalong in the County of Taila NSW. It is divided into two parts: 300 acres on the east side of Tapalin Mail Road (the horticultural section) and 220 acres on the west side of that road.
Grapevines have been grown over much of Tapaulin Farm for about 15 years. The property includes a small raised earth plastic lined turkey nest dam. Water from the dam is used to irrigate grapevines comprising approximately 120 acres of table grapevines, approximately 60 acres of wine grapevines, and approximately 60 acres of dried fruit vines.
In general terms, when the table grapevines are being irrigated (in summer) approximately 4ML of water is pumped out of the dam per day using two pumps at a rate of about 1.2ML per hour (approximately 6 to 8ML every second day).
Until February 2016 a mechanical flow meter was in operation at Tapaulin Farm. Water usage on Tapaulin Farm was monitored by inspections conducted by Customer Field Officers of WaterNSW.
In February 2016 an accredited State owned telemetered water meter was installed on Tapaulin Farm as part of a wider telemetering project in the region. This telemetered water meter commenced transmitting data of extractions of water from the Murray River by a pump on the property at 4.30pm on 16 February 2016.
The process by which data is generated from the telemetered water meter and is then collected and transmitted to WaterNSW is that a pump extracts water from the River by a pipeline which contains a flowmeter instrument and a transmitter. These instruments collect flow information generated at the meter site and store it locally. The data is sent every 15 minutes to a remote telemetry unit ("RTU") located on Tapaulin Farm.
From the RTU the data is transmitted to WaterNSW's corporate data systems. WaterNSW staff can then access the data and import it into the WaterNSW Water Accounting System ("WAS").

[8]

Water Accounting System

The WAS stores WAL holders' account balances and related information. In addition to data obtained from meter readings, customer water orders and allocations of water into a WAL holder's account are also stored. This information is used to monitor WAL holders' compliance with the rules and any limits placed on water extraction.
Through the WAS, Water Account Statements can be generated and downloaded at any time. Water Account Statements are produced in respect of an individual WAL and show all transactions that have occurred in relation to that WAL over a period. They also show the Water Allocation Account ("WAA") balance for the WAL, which is the water currently available for extraction. A 'water year' aligns with a financial year.
A Water Account Statement is accessed by customers of WaterNSW online, including WAL holders and Water Use Approval holders. A WAL holder can access information about their water usage and water account balance at any time on WaterNSW's publicly available "internet Water Accounting System" ("iWAS").
iWAS relevantly enables WAL holders to monitor their water usage to ensure that they do not enter a negative account balance. Using iWAS WAL holders are also able to enter and amend water orders, download Water Account Statements, and access announcements.
Neither O'Haire nor his wife have created an iWAS account. Without an iWAS account, they could not view the balance of the WAA associated with the WAL.
Within the WAS a positive account balance means that a WAL is entitled to extract water because it shows the account in credit. A negative balance shows that a WAL holder has taken more water than the holder was entitled to. However, there can be up to a month delay in the manual upload of data into the accounting system and up to about five days of delay (reflecting the processing time of a transaction) to record an allocation assignment of water into the account.

[9]

The Water Access Licence

Upon purchasing Tapaulin Farm, O'Haire obtained a new WAL on 25 November 2013 bearing identifier WAL 36492 ("the licence").
For each WAL, a WAA is established pursuant to s 85 of the WMA. Attached to O'Haire's licence is WAA 60AL583163 ("the WAA").
Section 56(1) of the WMA relevantly provides that a WAL entitles its holder to specified shares in the available water within a specified water management area or from a specified water source (that is, the share component):
The licence has a share component of 0 units, that is, it is a "zero share" licence. Therefore, for O'Haire to take water under the licence he must purchase water to be credited to the account associated with the licence or purchase a share component from another licence holder.

[10]

Water Supply Work

Each WAL nominates a Water Supply Work ("WSW") as the method by which a licence holder extracts water. A WSW consists of a pump and necessary water conduits and requires approval under the WMA.
The WSW nominated by the licence was combined work approval 60CA581439 ("the approval"). The WSW under the approval is a 380mm centrifugal pump driven by a diesel motor which is located at Tapaulin Farm on a pontoon anchored to the bank of the Murray River.
The approval required the pump to be situated within the water management zone, namely, "that part of the water source downstream of the Murray River at Picnic Point".
When water is taken through the approval it is debited from the WAA.

[11]

Water Allocations into the WAA Since October 2015

Division 4 of Ch 3 Pt 2 of the WMA sets out the information related to dealings with WALs. Pursuant to s 71T of the WMA water allocations can be assigned from one WAL to another.
The WAA linked to O'Haire's licence made the following applications between 1 July 2015 and 5 March 2019 for assignment of water allocations pursuant to s 71T of the WMA: Application Date Seller Holder Name Buyer Licence Buyer Holder Name Credited Volume (ML) 28-Oct-15 Murray Irrigation Limited 60AL583163 O'Haire, Brian Vance 250 17-May-16 Bell, Robert Reid 60AL583163 O'Haire, Brian Vance 15 31-May-16 Tassone, Raffaele 60AL583163 O'Haire, Brian Vance 13.3 01-Jun-16 Robertson, Ian 60AL583163 O'Haire, Brian Vance 100 15-Feb-17 Peter Glenn Pty Ltd 60AL583163 O'Haire, Brian Vance 100 15-Feb-17 Murrumbidgee Irrigation Limited 60AL583163 O'Haire, Brian Vance 330 18-May-17 Tassone, Raffaele 60AL583163 O'Haire, Brian Vance 300 29-May-17 Robertson, Ian 60AL583163 O'Haire, Brian Vance 120 06-Jun-18 Tassone, Raffaele 60AL583163 O'Haire, Brian Vance 40 29-Jun-18 Matthews, Robert Charles 60AL583163 O'Haire, Brian Vance 50

[12]

On 29 June 2018 a further credit of 550ML was made to the WAA via an interstate transfer pursuant to s 71V of the WMA.

[13]

O'Haire's Purchase of Water During the Water Years 2015/2016 to 2017/2018

During the water years 2015/2016 to 2017/2018, O'Haire purchased water through a broker, Gordon Agencies, as follows: Water Year Date Quantity Purchased Price Paid 2015/2016 01/06/2016 100 ML at $160 $16,000 26/05/2016 13.3 ML at $200 $2,660 26/05/2016 15 ML at $230 $3,450 2016/2017 03/02/2017 336 ML at $50 $16,800 07/02/2017 100 ML at $50 $5,000 13/05/2017 300 ML at $12 $3,600 22/05/2017 120 ML at $12 $1,440 2017/2018 05/06/2018 40 ML at $170 $6,800 25/06/2018 50 ML at $185 $9,250 28/06/2018 550 ML at $230 $126,500 Total 1, 624.3 ML $191, 500

[14]

Water Orders

WAL holders who wish to use water are required to place water orders according to the conditions of their WAL.
At all relevant times the licence contained a condition that relevantly mandated that: …water must not be taken unless in accordance with a water supply order lodged with and approved by State Water [or WaterNSW] customer service officer not less than 14 days prior.
Other conditions required that a water supply order ("WSO") be accepted (by State Water, the predecessor to WaterNSW) or be confirmed before water could be taken by the holder of the WAL.
No WSO was ever placed in relation to the licence between 1 February 2016 and 31 May 2019 by O'Haire. The failure to place WSOs is not, however, the subject of any offence charged.

[15]

Monitoring and Investigation

Between May 2014 and 2016, Daniel Bailey, a Customer Field Officer at WaterNSW who monitored water usage on Tapaulin Farm, contacted O'Haire five or six times (usually by telephone) when the WAA balance was low or in debit. On those occasions, he advised O'Haire that O'Haire needed to purchase water before extracting more water under his licence.
On 19 January 2016 Bailey sent O'Haire a text message advising him that his WAA balance was 121ML in debit. O'Haire responded that he would arrange to buy more water. Bailey ceased contacting O'Haire shortly after this text exchange.
On 18 February 2015 Michael Bevan, an authorised officer with the then NSW Office of Water ("Office of Water"), issued O'Haire with a stop work order ("SWO") under s 327(2) of the WMA. The SWO stated that the licence was in debit in contravention of the approval, s 60C of the WMA, and the licence itself.
The SWO relevantly prohibited the use of the approval if the subsequent use would keep the licence in debit or cause the licence to go into debit: … E. The water allocation account attached to WAL 36492 is currently in debit. This is in contravention of both the conditions of your Work Approval and Access Licence, as well as Section 60C of the Water Management Act 2000. F. I, Jamie Morgan, am on the opinion that the Water Management Work is being used / is about to be used in contravention of the WM Act. DIRECTION In accordance with section 372(2) of the WM Act, I, Jamie Morgan, having delegated authority from the Minister administering the WM Act, direct Brian Vance O'Haire, to take the measures specified below under the heading "Specified Measures" to prohibit the use of the Water Management Work. SPECIFIED MEASURES 1. Prohibit the use of the Water Management Work 60CA581439 while ever the subsequent use will keep the water allocation account balance of WAL 36429 in debit. 2. Prohibit the use of the Water Management Work 60CA581439 if the subsequent use will cause the water allocation account balance of WAL 36429 to go into debit.
On 19 February 2015 O'Haire participated in a voluntary interview with Bevan and another officer from the Office of Water. During the interview, O'Haire was reminded that the conditions of the licence were that he must not take any water using the nominated WSW if the WAA is in, or will go into, debit. O'Haire indicated that he understood the conditions of his licence. He was also advised about the process of ordering water.

[16]

Further Investigation

On 16 October 2015 O'Haire made a telephone call to Bevan in response to a message left by Bevan on the previous day: O'Haire: Hello Michael, this is Brian O'Haire. You left a message for me yesterday. Bevan: Brian, your allocation account appears to be overdrawn. O'Haire: I have just purchased 266ML of water which will bring the account into credit.
On 15 August 2016 Bevan (who was, at the time, employed by WaterNSW) made a telephone call to O'Haire and had the following conversation with him: Bevan: Hello Brian, this is Michael Bevan from WaterNSW. O'Haire: Hello Michael. Bevan: Brian your water allocation account is still in debit. O'Haire: I tried to buy some water at the end of last year, but I was unable to buy any. Bevan: The trading season is back open now. O'Haire: I will begin sourcing water. Bevan: I intend to finalise the previous years of over-extraction and will be in contact with you about that. O'Haire: Thank you. Goodbye.

[17]

Record of Interview

On 30 November 2016 O'Haire participated in a voluntary interview with Bevan and another officer. During that interview O'Haire said that: (a) At the end of the 2015-2016 water year, he thought he was in debit less than -213.8ML. He thought it "was something around the 130 mark… but I can't be precise there" and "I knew I was behind or in debit but I didn't think it was 220…". (b) He was not using the water accounting system to keep track of the balance in the water account. (c) The defendant knew that with a zero share licence, "we've got to be constantly buying it… I'm certainly aware of all that… that I shouldn't be using the water that way…". (d) The defendant thought he was not being charged for water usage at the time of the interview because of "supplementary water". (In relation to "supplementary water", see below at [82].) He said the supplementary water period kept getting extended, and he had a feeling it went to either 2 December or 10 December. Mr Bevan said the access to supplementary water is generally by way of a supplementary licence and it was not the case that the defendant could just take the water, and the usage would still need to be accounted for. (e) The defendant admitted that he had not been ordering water, and said "I suppose if we were ordering our water we wouldn't probably be in this position now because you say we can't have it". (f) The defendant said taking the water was because he had to keep the property going and did not have the money (to purchase water). He was 67 years of age at the time of the interview. The farm was purchased five years prior, as a superannuation investment for him and his wife. The first two years they lost over a million dollars, and about $750,000 in the second year. He could get $3 million for the 2016/2017 crop, but about half of that would be profit. There was very low demand for grapes. He had liabilities of about $4 million. His legal practice had been funding the farm. (g) The defendant said that year to year, he used about 500ML, at a cost of about $60,000-$70,000, and that in a dry year the prices go up. (h) Mr Bevan told the defendant that it is a substantive offence to take water which causes the account to go into debit, or if it is in debit to take water. Mr Bevan said that the debit at the time of the interview was around 250ML and every time the defendant took water while in debit, or if he took water that put his account back into debit, he was committing further offences. Mr Bevan said he could get some advice on whether something could be sorted out with the allocation account to make it easier, but WaterNSW could not authorise the defendant to take water while the account was in negative balance. (i) Mr Bevan said that WaterNSW had spoken to the defendant some time back and issued a direction not to take any water. The defendant said he recalled that. Mr Bevan said that that was to try to reinforce the seriousness. (j) The defendant said they were going into a critical period (for water, over summer). Mr Mannall (the second officer in attendance) said that every time the defendant took water while his account was in a negative balance, it went further into it (i.e., the negative balance).

[18]

The Eight Offences

It is convenient at this juncture to describe the basal facts underpinning the eight charges, none of which are in dispute.

[19]

Charge 1

As at April 2016 the balance of the WAA associated with the licence was approximately negative 310ML.
Between 2.15pm on 12 April 2016 and 4pm on 24 May 2016, O'Haire extracted 20.17ML of water by way of the water pump the subject of the approval on Tapaulin Farm ("the pump").
For the whole of the period from 12 April to 24 May 2016, the WAA was in debt with a negative balance. On 17 May 2016 a water allocation of 15ML (SWC735583) was assigned to O'Haire's account, which was insufficient to bring the account into credit, or above zero.
Accordingly, as at 24 May 2016 the WAA had a balance of between negative 301.5ML and negative 314.8ML.

[20]

Charge 2

On 1 June 2016 a water allocation of 100ML (SWC737678) was assigned to the WAA. After this allocation, the account remained at negative 213.8ML.
No further assignments were made into the WAA between 1 June and 8 October 2016. As at October 2016, due to further extraction of water not the subject of any offence charged, the balance in the WAA was approximately negative 219ML.
Between 9am on 8 October 2016 and 5:15pm on 14 April 2017, O'Haire took 598.99ML of water by way of the water pump.
For the whole of the period from 8 October 2016 to 14 April 2017, the WAA was in debit with a negative balance.
On 15 February 2017 two water allocations were assigned to the account. The first was an allocation of 100ML (SWC743513) and the second was an allocation of 330ML (SWC743531). Together, these two water allocations brought the allocation account up to a debit of 154.1ML. These allocations were insufficient to bring the account into credit, or above zero.
Thus, as at 14 April 2017 the WAA had a balance of between negative 376ML and negative 400.2ML.

[21]

Charge 3

On 18 May 2017 a water allocation of 300ML (SWC746308) was assigned to the WAA. That assignment brought the account balance to negative 102ML.
On 29 May 2017 another water allocation of 120ML (SWC746621) was assigned to the WAA. Afterwards, the account was brought into credit with a balance of 18ML.
On 1 July 2017, however, the balance of the WAA reverted to 0.0ML. This was because on 1 July 2017 a new water year commenced, namely, 2017-2018.
A credit in a WAA as at 30 June of a water year does not carry over into the next water year and the account reverts to zero.
No further assignments were made into the WAA between 1 July 2017 and 6 June 2018.
As at 3 October 2017, due to further extraction of water which is not the subject of any offence charged, the balance in the WAA was around negative 64.2ML.
Between 9:15am on 3 October 2017 and 6:30pm on 30 November 2017 O'Haire pumped 155.89ML of water.
For the whole of the period from 3 October 2017 to 30 November 2017 the WAA was in debit with a negative balance.
As at 30 November 2017 the WAA had a balance of between negative 130.1ML and negative 303.4ML.

[22]

Charge 4

As at 11 December 2017, due to further extraction of water again not the subject of any offence charged, the balance in the WAA was between negative 130.1ML and negative 303.4ML.
Between 9:15am on 11 December 2017 and 8pm on 31 January 2018 O'Haire took 194.67ML of water by way of the water pump.
For the whole of the period from 11 December 2017 to 31 January 2018 the WAA was in debit with a negative balance.
As at 31 January 2018 the WAA had a balance of negative 415.4ML.

[23]

Charge 5

As at 7 February 2018, due to further extraction of water which is not the subject of any offence charged, the balance in the WAA was between negative 415.3ML and negative 447.4ML.
Between 1:45pm on 7 February 2018 and 7.45 on 24 March 2018 O'Haire pumped 125.3ML of water.
For the whole of the period from 7 February 2018 to 24 March 2018 the WAA was in debit with a negative balance.
As at 24 March 2018 the WAA had a balance of between negative 487.4ML and negative 540.9ML.

[24]

Charge 6

By 23 April 2018, due to further extraction of water which is similarly not the subject of any offence charged, the balance in the WAA was between negative 540.9ML and negative 547.5ML.
Between 12.45pm on 23 April 2018 and 1am on 24 April 2018 O'Haire took 4.61ML of water by way of the water pump.
Again, for the whole of the period from 23 April 2018 to 24 April 2018 the WAA was in debit with a negative balance.

[25]

Charge 7

On 22 May 2018, due to further extraction of water which is not the subject of any offence charged, the balance in the WAA was approximately negative 552.6ML.
Between 10:30am on 22 May and 11pm on that same day, O'Haire pumped 4.61ML of water.
For the whole of 22 May 2018 the WAA was in debit with a negative balance.

[26]

Charge 8

Finally, as at 14 September 2018, due to further extraction of water which was likewise not the subject of any offence charged, the balance in the WAA was approximately negative 5.2ML.
Between 1.30pm on 14 September 2018 and 11:30am on 4 March 2019 O'Haire took 273.45ML of water by way of the water pump.
As a consequence, for the whole of the period from 14 September 2018 to 4 March 2019 the WAA was in debit with a negative balance.

[27]

The Purposes of Sentencing

The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"): 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.

[28]

Statutory Matters Required to be Taken into Account in Sentencing O'Haire

Subsections 21A(2) and (3) of the CSPA set out aggravating and mitigating factors that the Court must consider. Relevant to the facts of this case they are: 21A Aggravating, mitigating and other factors in sentencing (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows- … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … (o) the offence was committed for financial gain… The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (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, … (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 the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23)…
For offences pursuant to the WMA, the Court is also required to consider the matters set out in s 364A of that Act: 364A Matters to be considered in imposing penalty (1) In imposing a penalty on a person 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 impact of the offence on other persons' rights under this Act, (b) the market value of any water that has been lost, misused or unlawfully taken as a consequence of the commission of the offence, (c) the extent of the harm caused or likely to be caused to the environment (including, in particular, any water source or waterfront land) by the commission of the offence, (d) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (e) the extent to which the person could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (f) the extent to which the person had control over the causes that gave rise to the offence, (g) whether the offence was committed during a severe water shortage or an extreme event (that is, in contravention of an order in force under section 49A, 49B or 324), (h) the person's intentions in committing the offence, (i) whether, in committing the offence, the person was complying with orders from an employer or supervising employee, (j) in the case of an offence of taking water in contravention of this Act, whether the water so taken had been released for environmental purposes and, if so, whether the person was aware of that fact, (k) any civil penalty that has been imposed on the person under section 60G in relation to the conduct from which the offence arises. (2) The court may take into consideration other matters that it considers relevant.

[29]

Objective Circumstances of the Offences

The objective gravity of the offences fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crimes considered in light of its objective circumstances (Veen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offences (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).
The objective seriousness is to be determined by reference to the nature of the offences and not by reference to matters that are personal to a particular offender (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).
In determining the objective seriousness or gravity of the offences the relevant objective circumstances include the factors discussed below.

[30]

Nature of the Offences

The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are illustrative of the objective seriousness of an environmental offence (Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[169], Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]; Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59] and Water NSW v Barlow [2019] NSWLEC 30 at [17]).
The relevant objects of the WMA identify the purposes of that Act as follows: 3 Objects The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular - (a) to apply the principles of ecologically sustainable development, and (b) to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and (c) to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including - (i) benefits to the environment, and (ii) benefits to urban communities, agriculture, fisheries, industry and recreation, and (iii) benefits to culture and heritage, and (iv) benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water, (d) to recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources, (e) to provide for the orderly, efficient and equitable sharing of water from water sources, (f) to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna, (g) to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users, (h) to encourage best practice in the management and use of water.
In respect of the objects of the WMA, in Harrison v Perdikaris [2015] NSWLEC 99 the Court observed that (at [46]-[47]): 46 There is a need for the upholding of the regulatory system under the WM Act. The system depends on persons, first, taking steps to ascertain when approval is required to carry out activities, including controlled activities on waterfront land, secondly, making application in the appropriate form and manner (including environmental impact assessment of the activity) and obtaining any approval so required before carrying out the activity and, thirdly, complying with the terms and conditions of any approval granted in carrying out the activity. 47 Offences which undermine the integrity of the regulatory system are objectively serious. Use of the criminal law ensures the credibility of the regulatory system.

[31]

Maximum Penalty

The maximum penalty provided for an offence indicates Parliament's view as to the seriousness of that offence and provides a sentencing yardstick to measure the relevant features of the offences for which O'Haire is to be sentenced (Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; and Rawson at [57]). O'Haire's offending must be examined in this light (Perdikaris at [49]).
The maximum penalty for a Tier 2 offence for an individual under s 60C(2) of the WMA before its amendment is a fine of $247,500. This applies to charges 1 to 7.
The maximum penalty for a Tier 2 offence for an individual under s 60C(2) of the WMA after its amendment is a fine of $500,500. This applies to charge 8.

[32]

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

The extent of the harm caused or likely to be caused to the environment by the commission of the offences is relevant to the objective seriousness of the offences (s 364A(1)(c) of the WMA). Further, the Court must consider whether any injury, emotional harm, loss or damage caused by the offences was substantial (s 21A(2)(g) of the CSPA).
In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299, Preston J stated that harm includes both actual harm and potential harm (at [145]-[149]). His Honour identified the following principles in establishing harm, namely, that: 1. harm is not limited to measurable harm such as actual harm to human health, and can include a broader notion of quality of life; 2. harm can include harm to the environment and its ecology resulting from that caused to a particular animal or plant; 3. harm can be direct or indirect, individual or cumulative; 4. the culpability of the defendant depends in part on the seriousness of the environmental harm; and 5. the fact that the environment that is harmed by O'Haire's conduct was already disturbed or modified is not a mitigating factor.
The meaning of the words "likely to be caused to the environment" was considered by Lloyd J in Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 (at [44]): 44 In considering the harm likely to be caused to the environment, it is to be noted that the word "likely" in this context has been held to mean "a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance" (Mathews v Goulburn Wool Processors, NSWSC, Smart J, 6 November 1986, unreported); "only a real chance or possibility, and not more probably than not" (State Pollution Control Commission v Blayney Abattoirs Pty Ltd (1991) 72 LGERA 221 at 224); and "does not mean 'probable'. It means 'a real possibility'" (New South Wales Sugar Milling Co-operative Ltd v State Pollution Control Commission (1991) 73 LGRA 86 at 100, affirmed by the Court of Criminal Appeal on other grounds, (1992) 75 LGRA 320).
Harm can result from conduct which undermines a regulatory scheme that seeks to prevent environmental damage (Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 at [23]).

[33]

The Market Value of Any Water That Has Been Lost, Misused or Unlawfully Taken as a Consequence of the Commission of the Offences (s 364A(1)(b) of the WMA)

Phil Moss also gave unchallenged evidence on behalf of the NRAR. Moss is a civil engineer with expertise in water accounting in water markets. Significantly, he stated in his expert report that: 1. the price of water varied significantly between April 2016 and March 2019 due to the drought. The variation in the Monthly Weighted Average Trade Price varied from $15 per ML to almost $500 per ML; 2. the market value each day of the water taken as set out in each of the summonses between April 2016 and March 2019 was: Table 1: Monthly Market Value of Water Monthly Market Value of Water Take Months 2016 2017 2018 2019 January $8,945 $9,394 $32,429 February $5,229 $7,121 $18,762 March $2,429 $4,318 $5,964 April $3,514 $686 $612 May $1,193 $613 September $6,455 October $775 $7,788 $14,831 November $5,641 $11,255 $12,184 December $7,588 $7,046 $24,082 Grand Total $18,711 $43,377 $79,608 $57,155 $198,851

[34]

The data indicated that when O'Haire purchased water it was at a higher price than if he had purchased water when required. In fact, the cost of the water purchased exceeded the market value of the water up until February 2019; and 2. the gross market value of water taken (as set out in the summonses) was: Summons Market Value 1 $4,707 2 $31,292 3 $19,043 4 $16,440 5 $11,439 6 $612 7 $613 8 $114,706 Total $198,851

[35]

I take this evidence into account in determining the appropriate sentence to be imposed on O'Haire.

[36]

The Impact of the Offences on Other Persons' Rights Under the WMA (s 364A(1)(a))

Chapter 3 Pt 1 of the WMA provides the basic landholder rights that are relevant to water management implementation under the Act. These are divided into the three main categories of domestic and stock rights (s 52 of the WMA), harvestable rights (s 53 of the WMA), and native title rights (s 55 of the WMA).
Relying on the evidence of Singh and Moss, the NRAR argued that the commission of the offences by O'Haire impacted the rights of other persons under the WMA insofar as there was less water, or potentially less water, available for allocation.
But the evidence of Singh and Moss did not demonstrate beyond reasonable doubt that any owner or occupier of a landholding, any native title holder, or any other person, had any rights under the WMA in relation to the water taken by O'Haire for Tapaulin Farm, or that the commission of the offences had any impact on any persons' rights under the WMA. I therefore do not take this factor into account.

[37]

O'Haire's State of Mind at the Time of Committing the Offences

The offences under s 60C(2) of the WMA are offences of strict liability. Intention is not an element of the offence. But the state of mind of O'Haire in the commission of the offences is nonetheless relevant to the question of penalty, subject to the application of the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389 (see generally the discussion in Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [143]-[168]).
Thus if the circumstances of the offences for which O'Haire has been convicted are such that he could have been found guilty of an aggravated form of the offence for which he is to be punished, then those facts cannot be relied upon in sentencing (Croaker v R [2008] NSWCCA 232; (2008) 190 A Crim R 15 at [14] and Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38 at [50]).
Section 60C(1) of the WMA prescribes a more serious Tier 1 offence of taking water for which there is no, or insufficient, water allocation where the offender intentionally or negligently fails to ascertain whether the taking is in accordance with the water allocation.
The principle in De Simoni will not, however, be engaged if the Court takes into account the conduct of the offender, such as their state of mind, in order to assess the objective culpability of the offender (Weininger v R [2003] HCA 14; (2003) 212 CLR 629 at [31], Bourke at [70] and Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 at [146]). Similarly, the principle is not offended if the conduct is considered for the purpose of assessing the need for any specific deterrence.
For these reasons the Court can have regard to O'Haire's mental state in its assessment of his overall culpability, which is relevant to its assessment of the objective seriousness of the commission of the offences (Sydney Water Corporation at [158]-[159] and [167] and Barlow at [57]).
In his affidavit sworn 3 September 2019, O'Haire relevantly deposed to the following: 13 An important part of my case is to demonstrate to the Court that I was not involved in any dishonest conduct and I knew that each time water was accessed by the managers through the pump on my farm the Regulator and its predecessors had notice in real time of the accessing of water. It was always my intention that when funds became available water would be purchased as indeed it was. 14 During each water year (1st of July to 30th of June) when funds became available, I purchased water through my water broker, Gordon Agencies, as set out in the records exhibited to my wife's affidavit. 15 I was not at any time involved in any dishonest scheme which could constitute stealing water. I concede that even though I was in each water year purchasing water, the cash flow from the farm, and indeed my legal practice, prevented me from being able to purchase water in a timely manner when it was needed to irrigate the vines. … 17 Behind Tab A of exhibit BVO1 is a copy of an email from Gordon Agencies dated 15th of August 2019 detailing 13 water allocation purchases made by me between May 2015 and June 2019. These purchases in all totalled 2,337.3 ML, which is substantially in excess of the water alleged by the Prosecutor to have been accessed by me during the period. 18 As a result of the parlous financial state of the farm I was required by my mortgagee bank to engage in a Farm Debt Mediation. ...

[38]

Practical Measures Which Could Have Been Taken to Prevent or Mitigate the Environmental Harm (s 364A(1)(d) of the WMA)

There were practical measures which O'Haire could have taken to prevent, control, abate or mitigate the harm or likely environmental harm (see the discussion above regarding harm. The reference to "that harm" in paragraph (d) picks up the concept of "harm" in s 364(1)(c): Barlow at [45])) caused as a result of his offending. In short, he could have ensured that he did not take water while his WAA was in debit.
Other measures included creating an iWAS account to view the balance of the WAA associated with the WAL. Neither O'Haire nor his wife created an iWAS account which would have permitted them to download Water Account Statements to determine if the WAA was in debit.

[39]

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences (s 364A(1)(e) of the WMA)

As that concept is discussed above (again, see the definition of "harm" in s 364(1)(c) of the WMA), to the extent that there was harm caused or likely to be caused by the commission of the offence, it was reasonably foreseeable.

[40]

Control Over the Causes of the Commission of the Offences (s 364A(1)(f))

O'Haire had complete control over the causes of the commission of the offences.

[41]

O'Haire's Intentions or Reasons for Committing the Offences (s 364A(1)(h) of the WMA)

Section 364A(1)(h) of the WMA requires the Court to consider O'Haire's reasons for committing the offences. As found above, O'Haire committed the offences intentionally.
The criminality involved in the commission of an offence by an offender is also measured by reference to the reasons for its occurrence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley at [237]). The carrying out of an offence to make a profit, to avoid the cost of obtaining and implementing a statutory permission, or, as in the present case, to save or defer the incurring of an expense, increases the seriousness of that offence (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [47] and [48] and Barlow at [79]).
It is an aggravating factor in sentencing if the offences were committed for financial gain (s 21A(2)(o) CSPA).
In light of O'Haire's own evidence, it is beyond reasonable doubt that the offences were committed for financial gain. That is, to ameliorate a cash flow problem that he was experiencing by taking water without paying for it at the time in order to keep Tapaulin Farm operational and profitable. That his actions were ultimately not profitable insofar as O'Haire paid more for the water taken than he would have paid had he taken it lawfully, or that his lawful purchases of water over the relevant charge period were in fact in excess of the water unlawfully taken by him, does not matter (Environment Protection Authority v Hughes [2019] NSWLEC 108 at [98] and Environment Protection Authority v Albiston [2020] NSWLEC 80 at [119]). The purpose of financial gain does not need to be the only purpose of the offending in order for it to be an aggravating factor (Albiston at [118] and Khoo v R [2013] NSWCCA 323; (2013) 237 A Crim R 221 at [78]).
Accordingly, O'Haire's reasons for committing the offences aggravates their objective seriousness.

[42]

The Offences Were Not Committed During a Severe Water Shortage (s 364A(1)(g) of the WMA)

A particular matter that the Court is required to take into consideration in sentencing for an offence against the WMA is "whether the offence was committed during a severe water shortage (that is, in contravention of an order in place under ss 49A or 324 of that Act)" (s 364A(1)(g) of the WMA).
Notwithstanding that some of the offences were committed during a period of drought, there was no evidence of an order in place under either ss 49A or 324 of the WMA, and I therefore do not take this factor into account.

[43]

Conclusion on the Objective Seriousness of the Offence

Considering all of the objective circumstances of the commission of the offences, I consider that the offences are in the moderate range of objective seriousness for offences of this kind.

[44]

Subjective Circumstances of O'Haire

Within the limits set by the objective seriousness of the offences, the Court must take into consideration the subjective circumstances of O'Haire in determining an appropriate penalty (Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143 at [116] and [190] and Hongzhi Sun v Grant Barnes, Department of Industry [2018] NSWLEC 196 at [25]).
Section 21A of the CSPA sets out the aggravating and mitigating factors to be taken into account. The aggravating and mitigating factors relevantly relied upon by the parties are discussed below.

[45]

Prior Convictions and Good Character (s 21A(3)(e) of the CSPA)

O'Haire does not have any prior convictions (the PINs are irrelevant in this regard) and, as the character evidence of Glenn Stewart, Luigi Zaffina and Marion Leslie discloses, is, but for the commission of the offences, otherwise of good character.

[46]

Assistance Provided to Authorities (ss 21A(3)(m) and 23 of the CSPA)

O'Haire provided assistance to the NRAR insofar as he participated in two voluntary interviews and assisted in the preparation of a comprehensive agreed statement of facts.

[47]

Extra Curial Punishment Suffered by O'Haire

O'Haire submitted that he had suffered extra-curial punishment as a result of the proceedings and that this should be reflected in the imposition of a lesser sentence than would otherwise be warranted. The extra-curial punishment was said to take primarily two forms: 1. first, the adverse publicity occasioned by publications of newspaper articles about the criminal proceedings. Both O'Haire and his wife deposed to the embarrassment and distress that they had suffered as a consequence and the fact that the publications had adversely impacted upon O'Haire's reputation insofar as his legal practice may have lost clients. O'Haire was particularly aggrieved by the fact that original reports of his offending by various media organisations, based in part on statements by the NRAR, had erroneously described the offences with which he had been charged as "water theft" or "stealing". Upon complaint, however, apologies were issued and published; and 2. second, because of the likelihood that O'Haire could lose his Victorian practising certificate or suffer some other form of sanction imposed by the Victorian Legal Services Board by reason of his conviction for the offences charged.
The NRAR argued, first, that the Court was not permitted to take into account the extra-curial punishment suffered by O'Haire in the determination of an appropriate sentence, and second, in respect of any negative impact on his practising certificate, this was highly unlikely to materialise.
This Court has taken extra-curial punishment in the form of public opprobrium consequent upon adverse publicity into account as a mitigating factor in sentence proceedings (see, for example, Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 at [189]-[194], Wingecarribee Shire Council v O'Shanassy (No 6) [2015] NSWLEC 138 at [229]-[230], Environment Protection Authority v McMullen [2020] NSWLEC 87 at [156]). As Button J appositely stated in Church v R [2012] NSWCCA 149 (at [34]): 34 I accept that the actions of the media can, in extreme cases, amount to extra-curial punishment. I also accept that the media interest in this matter was substantial, and having one's crimes exposed on national television could be gruelling and possibly deleterious to one's mental health. But here the applicant had undertaken an unusual and brazen crime that featured not only deception of a magistrate but also of a community. More generally, it is well-known that crimes committed by local citizens are given much more prominence in the media in small country towns than they are in metropolises like Sydney.

[48]

Early Pleas of Guilty (s 21A(3)(k) and s 22 of the CSPA)

An early plea of guilty has utilitarian value to the criminal justice system and entitles a defendant to a maximum discount of 25% (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]).
O'Haire pleaded guilty to all eight offences at the fifth directions hearing on 19 July 2019. It was the subsequent addition of charge 8 that caused delay to the entry of the pleas.
However, on 16 October 2019 O'Haire filed a notice of motion in the Court seeking orders that the entry of the pleas of guilty be amended to "not guilty" by operation of the 'slip rule'. The Court dismissed O'Haire's application on the basis that the slip rule could not be utilised in this manner and that O'Haire nevertheless intended to plead guilty to the charges (Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v O'Haire [2019] NSWLEC 158).
O'Haire then sought leave to appeal the decision under s 5F of the Criminal Appeal Act 1912. Leave was refused by the Court of Criminal Appeal (O'Haire v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2020] NSWCCA 19). A costs order was not, however, made in favour of the NRAR.
In addition to raising arguments not the subject of his written submissions for the first time during the sentence hearing, thereby necessitating further written submissions to be filed by the parties after judgment was reserved, O'Haire sought leave to reopen his case to tender additional documents relevant to the question of extra curial punishment, namely, the distress and embarrassment that the adverse media exposure generated by the proceedings had caused him and the fact that he was required to notify the Victorian Legal Services Board of the charges incurring the risk of an adverse impact on his practising certificate.
Leave was ultimately granted, but it necessitated another round of written submissions and additional hearing time, with a factual dispute arising as to whether or not O'Haire was likely to suffer any negative consequences in respect of his practising certificate as a result of his conviction for the offences.
As a result of the various applications referred to above, the NRAR contended that O'Haire should not be afforded the maximum discount for his early pleas of guilty because the utilitarian value of his pleas had been eroded.

[49]

Likelihood of O'Haire Reoffending and Prospects of Rehabilitation (ss 21A(3)(g) and (h) of the CSPA)

The NRAR submitted that O'Haire's likelihood of reoffending is high with limited prospects of rehabilitation in light of his absence of contrition and his continued attempt to blame the regulator for his offending.
I agree, albeit with a qualification as to the degree of risk. O'Haire committed the offences knowingly and in complete disregard of the requirements of the licence and the regime for managing the State's valuable water resources under the WMA. Furthermore, at no point has O'Haire demonstrated any insight into his offending. This is demonstrated by his insistence that the NRAR is at fault and his continued failure to accept responsibility for his wrongdoing.
While O'Haire continues to cultivate grapes at Tapaulin Farm he remains, in my view, at moderate risk of reoffending and that, for the reasons expressed above, his prospects of rehabilitation are limited.

[50]

Contrition and Remorse (s 21A(3)(i) of the CSPA)

Pursuant to s 21A(3)(i) of the CSPA, remorse will only be a mitigating factor if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)
In Waste Recycling and Processing Corporation Preston J stated (at [203]): 203 Contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives. The actions underlying genuine contrition and remorse may take at least four forms.
His Honour went on to identify four forms of action that would demonstrate genuine contrition and remorse (at [204]-[214]). These are: 1. first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offences (at [204]); 2. second, the voluntary reporting of the commission of the offences and any consequential environmental harm to the authorities (at [210]); 3. third, taking action to address the cause of the offences (at [212]); and 4. fourth, the personal appearance of corporate executives in Court to give evidence of the defendant's regret and a plan of action to avoid repetition of the offences (at [214]).
In Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 Moore J discussed the nature of showing remorse in the following terms (at [101]-[102]): 101 Although it should be self-evident, one of the ways of demonstrating contrition and remorse for the offending conduct which brings a defendant before a court is to, in plain words, express sorrow or remorse for the offending conduct and the consequences that have flowed from it. Doing so is a method by which a defendant can demonstrate an insight into why the offending conduct has been criminalised by legislative enactment; why that conduct is not accepted as a societal norm; and what are the punitive consequences or potential consequences of such rejected offending conduct. 102 Contrition and remorse are not demonstrated by some sense of shame or impact on an offender and/or (as is here the case) on the offender's family. Feeling ashamed of one's offending conduct or regretting the shame and humiliation that that conduct brings on the perpetrator or those near and dear to the perpetrator demonstrates no insight whatsoever into why the offending conduct is set outside the barriers of societal acceptability.

[51]

The Offences Could Have Been Prosecuted in the Local Court

The offences could have been prosecuted in the Local Court, which is a matter that I have taken into account (Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 at [92]).

[52]

General and Specific Deterrence

The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569 per Brennan J).
One of the purposes of the Court in imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences. This purpose is enshrined in s 3A(b) of the CSPA (Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [188]-[190] and [192] and Environment Protection Authority v Rands [2019] NSWLEC 23 at [161]).
The penalty imposed by the Court must serve as a general deterrent (Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177] and see s 3A(b) of the CSPA). General deterrence is vital "to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences" (Mouawad v Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188] and Axer at 359). In imposing an appropriate sentence on O'Haire it is therefore necessary to consider the extent to which the penalty should act as a deterrent to other irrigators who might contemplate unlawfully taking water under the WMA.
A sentence must be imposed that makes it economically irrational for persons to disobey the law in the taking of water under a WAL (Axer at 359-360 and Waste Recycling and Processing Corporation at [229]-[232]). The monetary penalty imposed must be more than the cost of doing business.
Specific deterrence relates to the need to deter the individual offender from reoffending. The NRAR submitted that the present case is one in which specific deterrence "ought to loom particularly large" because O'Haire committed the offences "knowingly with contumacious disregard" for the conditions of his WAL and the water management regime of the WMA. According to the NRAR, this is established because O'Haire: 1. had an understanding of his obligations and the nature of his zero share licence; 2. was aware of the need for a WAL because he purchased one when he bought Tapaulin Farm; 3. was a solicitor and therefore had the capacity to identify and understand his legal obligations under the licence; and 4. was told by relevant officers on more than one occasion that drawing his WAA into, and maintaining it in, debit was not permitted under the licence and constituted an offence.

[53]

Retribution and Denunciation

The Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and making O'Haire accountable for its actions.

[54]

Consistency in Sentencing

The task of a sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107C). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case (Axer at 365). The sentence imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).
The NRAR provided the Court with a schedule of comparable cases, to which the Court has had regard in determining an appropriate sentence.
In particular, in Harrison v Baring (No 2) [2012] NSWLEC 145 Pain J sentenced Dean Baring for ten offences against the WMA. Four of the charges were for the taking of water from a water source otherwise than in accordance with a WAL in contravention of s 341(1)(a) of the WMA and six of the charges were for using a WSW to take water otherwise than in accordance with a WAL in contravention of s 343(1)(a1)(i) of the WMA. Baring was the sole director of Baring Park Pty Limited ("BPPL") and operated a wheat and canola farm on behalf of BPPL. A condition of Baring's WAL was that the holder of the WAL must not take water unless in accordance with a WSO that has been approved and accepted by the relevant regulator. Baring also held an approval for two pumps to remove water from the Lachlan River. It was also a condition of that approval that the holder must not take water unless in accordance with a WSO approved not less than 10 days before the water was to be taken. A further condition stated that the holder inform the Office of Water within seven days if the pump was not recording properly. There was evidence before the Court that Baring directed a farm hand to water the crops knowing that the pump meter was broken.
Her Honour observed that there was significant trust and reliance placed on WAL holders by the State and that breaches of such licences were regarded as a breach of public trust. Baring had complete control over the causes giving rise to the offences and committed the offences for financial gain. The objective seriousness of the offences was considered to be in the moderate to serious range. General deterrence was particularly important in the circumstances because of a severe water shortage, the risk of harm to the environment, and the negative impact of the offending on other water users. Her Honour took into account the fact that Baring did not have a significant record of prior convictions, and that he was no longer involved in irrigation or farming and was unlikely to reoffend. However, Baring showed no remorse, did not plead guilty, and made no real effort to assist law enforcement authorities, despite his early voluntary admissions. At the time of the offending there were well-publicised severe water shortages, water restrictions were in place, and the relevant water sharing plan was suspended. The maximum penalty for an individual for each offence was $132,000. Pain J imposed a total fine of $290,000, with a moiety of 50% to be paid to the Office of Water, and the payment of costs in the sum of $80,000.

[55]

Financial Means of the Offender

Notwithstanding the cash flow difficulties previously faced by O'Haire and the fact that in June 2019 he was required by his mortgagee to engage in a farm debt mediation, there was no contemporary evidence put before the Court to permit it to find that he was unable to pay the monetary penalty likely to be imposed upon him (see s 6 of the Fines Act 1996).

[56]

Legal Costs

While no agreement was obtained between the parties as to the quantum of costs payable by O'Haire consequent upon his conviction for the offences charged, I take into account that such costs will be payable pursuant to s 257G of the Criminal Procedure Act 1986, and that they are not likely to be insignificant (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [88]).

[57]

Totality Principle

The totality principle is a relevant consideration when determining, as with the present proceedings, an aggregate penalty in sentencing for multiple offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR at 62 to 63, Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40], Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18] and Barlow at [111]-[112]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient.
Care must nevertheless be taken "to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence" (Rawson at [222]). The identified risk is that if "sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences" (Gittany at [199] and [201]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46] and R v Wheeler [2000] NSWCCA 34 at [36]-[37]). That is to say, the application of the principle must not cause public confidence in the administration of justice to be undermined by any perception that "what is in effect being offered is some kind of discount for multiple offending" (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]).
Because the elements of each offence are relevantly identical for present purposes and co-incident in respect of the offending conduct and the circumstances giving rise to the commission of the offences over the entirety of the charge periods, the application of the totality principle is warranted.

[58]

Appropriate Sentence

As stated above, the appropriate sentence is to be derived from an instinctive synthesis of all of the relevant factors in order to determine an appropriate proportionate sentence.
Having regard to the objective seriousness of the offences and the mitigating subjective factors of O'Haire, together with the penalties imposed in the relevant comparable cases, I consider that the appropriate sentence to be imposed for each of charges 1 to 7 is a monetary penalty of $25,000 per offence, and for charge 8 a monetary penalty of $35,000.
These figures must be discounted by 15% for the utilitarian value of O'Haire's early plea of guilty. Thus, the monetary penalty for charges 1 to 7 is $21,250 per offence and for charge 8, the monetary penalty to be imposed is $29,750.
After the application of the totality principle, charges 2 to 7 should be further reduced to $15,000 per offence and charge 8 should be further reduced to $20,000.
The total monetary penalty imposed on O'Haire for the commission of the eight offences is therefore $131,250.

[59]

Moiety

The NRAR seeks an order under s 122(2) of the Fines Act that half of each fine payable by O'Haire be paid to it (that is, a total of $65,625). Such an order is, in my opinion, appropriate (Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 at [102]-[113]).

[60]

Publication Order

The NRAR also seeks an order publicising O'Haire's commission of the offences under s 353G(1)(a) of the WMA. This was opposed by O'Haire on the basis that he had suffered sufficient adverse publicity already which, moreover, had resulted in the necessary deterrent effect, both generally and specifically.
In Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 Duggan J usefully set out the principles to be derived from the authorities and the factors to be applied in determining whether or not to make a publication order, which I respectfully adopt and apply (at [84] and [86]): 84 Whether it is appropriate it impose a publication order in a sentence has been considered by this Court on a number of occasions. The principles to be derived from those authorities and the factors that have been considered in determining whether to make such an order can be summarised as follows: (1) The Court has a wide discretion as to whether to impose a publication order and the POEO Act does not identify, in terms, the circumstances in which such an order should or should not be made: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [36]; (2) Publication orders assist in serving a deterrent purpose in environmental crimes: EPA v Waste Recycling Corporation (2006) 148 LGERA 299. Such a notice informs or reminds the public that such an offence exists, and may add some "sting" to the imposition of a fine. The objectives of general and specific deterrence are thus satisfied: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [163]. A publication order operates as a message to the community that a holder of an EPL is under a heightened responsibility to ensure that their operations are conducted in accordance with the conditions of such licence: Environment Protection Authority v Biosolids Management Pty Limited [2004] NSWLEC 90; (3) Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma: Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 at [242]; (4) Because a publication order is made in addition to, rather than instead of, any penalty, it ought not be considered in determining the quantum of any monetary penalty to be imposed (Environment Protection Authority v Incitec Ltd; (2003) 131 LGERA 176 at [58]-[59]); (5) If an order under s 250(1)(e) is imposed a publication order ought be made because it is important to publicise to the community at the time such an order is made that any works being undertaken are as a result of committing an offence: Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732 at [141]; (6) Existing adverse publicity in the media or an intention to self-publicise a conviction will not necessarily preclude the making of a publication order: Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160 at [104]; (7) The circumstances of the case may dictate that the interests of justice and the purpose of the publication will not be served if publication is ordered such as: where the offence is a first offence and the harm and objective seriousness of the offence is low; where publication of the offence is likely to confuse or mislead the reader in light of the substance earlier Court ordered publication: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [41]; Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd [2007] NSWLEC 466 at [169]; (8) Such an order is no less appropriate because the offences have been found to be of a low level of objective seriousness: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [164]. … 86 The notion of the Defendant self-publishing the convictions does not have the same force or reach of a Court ordered publication order and I therefore consider it, in the circumstances of this case, inadequate to ensure general and specific deterrence. However, I do not, by these observations, seek to discourage the Defendant from undertaking its own publications of these convictions.

[61]

Orders

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

[62]

Proceeding 2018/385156 1. O'Haire is convicted of the offence against s 60C(2) of the Water Management Act 2000 as charged; 2. O'Haire is fined the sum of $21,250, of which half is to be paid directly to the prosecutor;

[63]

Proceeding 2018/385157 1. O'Haire is convicted of the offence against s 60C(2) of the Water Management Act 2000 as charged; 2. O'Haire is fined the sum of $15,000, of which half is to be paid directly to the prosecutor;

[64]

Proceeding 2018/385158 1. O'Haire is convicted of the offence against s 60C(2) of the Water Management Act 2000 as charged; 2. O'Haire is fined the sum of $15,000, of which half is to be paid directly to the prosecutor;

[65]

Proceeding 2018/385159 1. O'Haire is convicted of the offence against s 60C(2) of the Water Management Act 2000 as charged; 2. O'Haire is fined the sum of $15,000, of which half is to be paid directly to the prosecutor;

[66]

Proceeding 2018/385160 1. O'Haire is convicted of the offence against s 60C(2) of the Water Management Act 2000 as charged; 2. O'Haire is fined the sum of $15,000, of which half is to be paid directly to the prosecutor;

[67]

Proceeding 2018/385161 1. O'Haire is convicted of the offence against s 60C(2) of the Water Management Act 2000 as charged; 2. O'Haire is fined the sum of $15,000, of which half is to be paid directly to the prosecutor;

[68]

Proceeding 2018/385162 1. O'Haire is convicted of the offence against s 60C(2) of the Water Management Act 2000 as charged; 2. O'Haire is fined the sum of $15,000, of which half is to be paid directly to the prosecutor;

[69]

Proceeding 2019/177253 1. O'Haire is convicted of the offence against s 60C(2) of the Water Management Act 2000 as charged; 2. O'Haire is fined the sum of $20,000, of which half is to be paid directly to the prosecutor;

[70]

Proceedings 2018/ 385156, 385157, 385158, 385159, 385160, 3851561, 3851562 and 2019/177253 1. pursuant to s 353G(1)(a) of the Water Management Act 2000, O'Haire is, at his own expense, to: 1. within 28 days of the date of this order, publicise the commission of the offences and orders made against him by causing a notice to be published in the digital versions of both The Land and the Sunraysia Daily, with the text of such notice to be that as set out in annexure 'A' to these orders; 2. within 28 days of the date of this order, publicise the commission of the offences and orders made against him by causing a notice of a minimum size of 10 cm x 18 cm to be published within the first five pages of the print versions of both The Land and the Sunraysia Daily, with the text of such notice to be that as set out in annexure 'A' to these orders; and 3. within 42 days of the date of this order, provide to the NRAR a copy and a screenshot of the entire page of The Land and the Sunraysia Daily on which the notices were published in accordance with orders 17(a) and (b) above; 1. O'Haire is to pay the prosecutor's costs of the proceedings as agreed or assessed under s 257G of the Criminal Procedure Act 1986; and 2. the exhibits are to be returned.

[71]

ANNEXURE 'A' Brian O'Haire was convicted and fined in the Land and Environment Court of New South Wales ("the Court") on 19 November 2020 for eight offences of taking water from the Murray River near Euston, NSW, between April 2016 and March 2019, in breach of s 60C(2) of the Water Management Act 2000. Following an investigation by the Natural Resources Access Regulator, O'Haire was prosecuted in the Court where he pleaded guilty and was convicted of taking over 1,378ML of water which he was not lawfully entitled to take. O'Haire was fined a total of $131,250 and was ordered to pay legal costs. All property owners, occupiers, contractors, and water users should be aware that there are serious consequences for committing offences against the Water Management Act 2000.

[72]

Amendments 31 March 2022 - Removal of brackets in case references to distinguish between page and paragraph references. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2022

Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v O'Haire

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