[2006] NSWLEC 34
Bonwick v R [2010] NSWCCA 177
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698
[2010] NSWCCA 194
Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121
Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81
Garrett v Williams (2006) 160 LGERA 115
Source
Original judgment source is linked above.
Catchwords
[2014] HCA 2
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234[2006] NSWLEC 34
Bonwick v R [2010] NSWCCA 177
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698[2010] NSWCCA 194
Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81
Garrett v Williams (2006) 160 LGERA 115[2006] NSWLEC 785
Grant Barnes, Chief Regulatory Officer Natural Resources Access Regulator v Budvalt Pty Ltd[2014] NSWCCA 84
Harrison v Perdikaris [2015] NSWLEC 99
Hili v The Queen (2010) 242 CLR 520[2010] HCA 45
Hoare v The Queen (1989) 167 CLR 348[2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39
Natural Resources Access Regulator v Tony Thompson [2022] NSWLEC 48
Plath v Rawson (2009) 170 LGERA 253[2009] NSWLEC 178
R v Crombie [1999] NSWCCA 297
R v Doan (2000) 50 NSWLR 115[2000] NSWCCA 317
R v M (CA) [1996] 1 SCR 500
R v McNaughton (2006) 66 NSWLR 566[2006] NSWCCA 242
R v Olbrich (1999) 199 CLR 270R v Houlton (2000) 49 NSWLR 383[1988] HCA 14
Water NSW v Barlow (2019) 244 LGERA 1
[2019] NSWLEC 30
Zreika v R (2012) 223 A Crim R 460
Judgment (45 paragraphs)
[1]
Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194
Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137
Elias v The Queen (2013) 248 CLR 483, [2013] HCA 31
Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349
Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd (No 3) [2022] NSWLEC 136
Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178
Environment Protection Authority v Ditchfield Contracting Pty Limited [2018] NSWLEC 90
Environment Protection Authority v Fulton Hogan Pty Ltd (2008) 163 LGERA 345; [2008] NSWLEC 268
Environment Protection Authority v Gammasonics Institute for Medical Research Pty Ltd [2019] NSWLEC 190
Environment Protection Authority v Hughes [2019] NSWLEC 108
Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29
Environment Protection Authority v Ravensworth Operations Pty Limited [2012] NSWLEC 222
Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160
Environment Protection Authority v University of Sydney [2022] NSWLEC 41
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312
Environmental Protection Authority v Crush and Haul Pty Ltd [2022] NSWLEC 113
Fairfield City Council v Oztech Developments Pty Ltd; Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81
Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785
Grant Barnes, Chief Regulatory Officer Natural Resources Access Regulator v Budvalt Pty Ltd; Harris [2020] NSWLEC 113
Grant Barnes, Chief Regulatory Officer Natural Resources Access Regulator v Hogan (Griffith Local Court (NSW), Love LCM, 4 February 2022, unrep)
Grant Barnes, Chief Regulatory Officer Natural Resources Access Regulator v Maules Creek Coal Pty Ltd [2021] NSWLEC 135
Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v O'Haire [2020] NSWLEC 158
Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84
Harrison v Perdikaris [2015] NSWLEC 99
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17
Kite v R [2009] NSWCCA 12
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Natural Resources Access Regulator v Tony Thompson [2022] NSWLEC 48
Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178
R v Crombie [1999] NSWCCA 297
R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
R v M (CA) [1996] 1 SCR 500
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Palmer [2005] NSWCCA 349
R v Peel [1971] 1 NSWLR 247
R v Rushby [1977] 1 NSWLR 594
R v Storey [1998] 1 VR 359
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Ryan v The Queen (2001) 206 CLR 267
Schwager (Narrabri Local Court (NSW), 26 November 2021, unrep)
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Water NSW v Barlow (2019) 244 LGERA 1; [2019] NSWLEC 30
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Texts Cited: Nil
Category: Sentence
Parties: Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator (Prosecutor)
Robert Beltrame (Defendant)
Representation: Counsel:
The defendant Mr Robert Beltrame operates a farming business in Warrawidgee, near Griffith, on land comprising Lot 3 in DP 529048, with his wife Mrs Kate Beltrame, through the vehicle of their agricultural company Carinya Ag Pty Ltd (Carinya). At all relevant times, the defendant and Mrs Beltrame were the sole directors and shareholders of Carinya. At all relevant times, Lot 3 in DP 529048 was owned by John Peter Salvestro and Valda Mana Salvestro, the parents of the defendant's wife, Kate Beltrame. At all relevant times, Lot 3 in DP 529048 was leased by Mr and Mrs Salvestro to Carinya.
The defendant operates a number of farms, including Farm 39P. Farm 39P is used for growing popcorn and other crops. Prior to July 2019, Farm 39P was managed by Warrawidgee Station Pty Ltd as part of a larger family business run by other members of the Salvestro family with the assistance and involvement of the defendant. From around July 2019, Farm 39P has been managed by the defendant and Mrs Beltrame separately through Carinya. At all relevant times, between 1 June 2019 and 30 June 2020 (the 2019/2020 water year), in operating Farm 39P the defendant relied on a Water Access Licence (WAL) entitling the licence holders Mr and Mrs Salvestro to a share of water in the Lower Murrumbidgee Deep Groundwater Source (the Deep Groundwater Source) as regulated by the Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources 2019 (NSW) (WSP).
The WAL is linked to a water supply work and water use approval, Approval 40 CA 40 3802 (the Approval) (also held by Mr and Mrs Salvestro) which at all relevant times permitted extraction from a groundwater bore (the Bore) for irrigation use on Farm 39P. A condition of the Approval was that the volume of groundwater extracted annually from the Bore not exceed 1,100ML (the bore extraction limit condition). In the 2019/2020 water year, the defendant contravened that condition by extracting 1,197.50ML from the Bore, an over-extraction of 97.50ML beyond the extraction limit condition. The over-extraction of 97.50ML of water occurred as a result of pumping water by the defendant, using the Bore, between 27 January 2020 and 21 February 2020.
On 29 April 2021, proceedings against the defendant for an offence against s 91G(1) of the Water Management Act 2000 (NSW) (WM Act) were commenced in this Court by way of summons. On 11 June 2021, the defendant pleaded guilty to an offence against s 91G(1) in that he used a water management work pursuant to an approval in contravention of a term or condition of the Approval, and was a person other than the Approval holder. The offence is a strict liability offence which does not require proof of a mental element. The offence is a Tier 2 offence. At the relevant time, the maximum penalty for a Tier 2 offence in the case of a natural person was 4,550 penalty units, that is a fine of $500,500: s 363B(b)(ii) of the WM Act.
[5]
Evidence
The parties agreed a comprehensive Statement of Agreed Facts (SOAF). The prosecutor provided no evidence beyond the SOAF. The defendant read affidavits from the following persons, none of whom was required for cross-examination:
1. the defendant, Mr Beltrame;
2. Mrs Beltrame, the defendant's wife who was at all material times a director of and jointly operated the farming company, Carinya;
3. Mr Allan Andreazza, the defendant's accountant; and
4. Mr Hayden Cudmore, an irrigation farmer who operated a farm next door to the defendant's farm and was at all material times a director of Murrumbidgee Irrigation Ltd (MI Ltd).
The defendant also tendered the exhibits to his affidavit and to Mrs Beltrame's affidavit, and a letter dated 3 November 2022 from MI Ltd to the defendant and Mrs Beltrame.
[6]
Purposes of sentencing
In sentencing the defendant, I take into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act):
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.
[7]
Objective seriousness of the offence
The objective seriousness of the offence is measured without reference to matters personal to the offender. It is to be determined wholly by reference to the nature of the offending. [2]
In determining the objective gravity or seriousness of the offence in this case, the circumstances to which the Court may have regard include:
1. the nature of the offence;
2. the maximum penalty for the offence;
3. the harm caused to the environment by the commission of the offence;
4. the defendant's state of mind in committing the offence;
5. the defendant's reasons for committing the offence;
6. the foreseeable risk of harm to the environment by the commission of the offence;
7. the practical measures to avoid harm to the environment; and
8. the defendant's control over the causes of harm to the environment. [3]
Some of these factors overlap with the statutory sentencing considerations in s 364A(1) of the WM Act (set out below at [54]).
[8]
Nature of the offence
When sentencing for environmental offences, a fundamental consideration is the degree to which, having regard to the maximum penalties provided in the statute, the offender's conduct would offend against the legislative objectives expressed in the statutory offence. [4] The nature of the provision creating the offence and its place in the statutory scheme shed light on the objective seriousness of the offence. [5] Ascertaining the purpose of creating an offence is assisted by consideration of the objects of the statute. [6] The Chief Judge's discussion in Bentley at [65]-[71] and [168]-[169] and in Rae at [15]-[20], although concerning regulatory schemes under different environmental legislation, is nevertheless apposite to the WM Act. [7]
The objects of the WM Act at the time of offending, as set out in s 3, were 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 he 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 the Dictionary to the WM Act, 'principles of ecologically sustainable development' are defined to mean the principles of ecologically sustainable development described in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW). These principles are described as involving the four principles of the precautionary principle, intergenerational equity, conservation of biological diversity and ecological integrity, and improved valuation, pricing and incentive mechanisms.
[9]
Maximum penalty for the offence
The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence and a yardstick to measure the relevant features of the offence for which the defendant is to be sentenced. [12] Careful attention to maximum penalties will almost always be required because, amongst other things, they invite comparison between the worst possible case and the case before the court at the time. [13]
Here, at the time of offending, the maximum penalty for a Tier 2 offence against s 91G(1) of the WM Act was a fine of 4,550 penalty units or $500,500. The penalty was increased to that amount from 2,250 penalty units after the commencement of the Water Management Amendment Act 2018 (NSW) on 27 June 2018. An increase in the maximum penalty is an indication that sentences for an offence should be increased. [14] However, it does not follow that for every offence after the date of increase, the increase in penalty will be by the same multiple as the increase in the maximum penalty, and offences of low criminality remain so. [15]
[10]
The harm caused to the environment by the commission of the offence
I consider the question of harm caused to the environment, and the foreseeable risk of harm to the environment at [65] to [76] below.
[11]
The defendant's state of mind in committing the offence
A strict liability offence that is committed intentionally, negligently, or recklessly will be objectively more serious than one that is not so committed. [16]
In oral submissions, the prosecutor accepted that the defendant was not aware of the bore extraction limit condition. The defendant submitted that the breach was inadvertent and not deliberate, and that he lacked knowledge in relation to extraction caps and water account statements provided by WaterNSW (iWAS statements), relying on his wife Mrs Beltrame to review documents and provide him with information on water entitlements.
The defendant was born in 1969. He owned and operated his own business as an electrician from 1996 until 2004, when he met Mrs Beltrame. Mrs Beltrame's parents, Mr and Mrs Salvestro, had a history of farming in the Griffith area. From 2010, the defendant provided labour on Salvestro family farms. His uncontested evidence was that during this time he had no involvement in the review of business documents or office paperwork. He was involved in switching on or off various bore pumps during watering seasons under instruction from another family member.
In 2018, Mr and Mrs Beltrame decided to commence their own farming business separate from that of the Salvestro family. Carinya was incorporated in 2018. During the 2019/20 water year, Carinya employed one part-time office member one day per month to assist with bookkeeping and data entry, and two full-time farmhands.
From 1 July 2019, the defendant was responsible for management of and cropping on nine farms. He was responsible for making all watering and cropping decisions. Mrs Beltrame became responsible for the book work of Carinya. She dealt with WaterNSW and completed paperwork for the purchasing and transferring of water when the defendant instructed her this was required. The defendant's uncontested evidence was that his understanding of the rules and operation of bores was based upon Mrs Beltrame's advice and his previous discussions and experience working with another member of the Salvestro family. He had never separately reviewed any documents, licences or approvals in relation to bores. This was due to his difficulty with reading, which led him to focus more on labour rather than administrative aspects of the business. At the time of his offending, the defendant had no experience or involvement in checking the iWAS statements provided by WaterNSW in respect of a WAL.
[12]
The defendant's reasons for committing the offence, and the question of financial gain
The reasons for the occurrence of crime are relevant to the objective gravity of the criminality involved. [17] Committing an offence for financial gain is also an aggravating factor under s 21A(2)(o) of the CSP Act.
The prosecutor submitted that on the evidence of the defendant and Mrs Beltrame, the offence was committed for the purpose of growing popcorn, that is, for financial gain. The prosecutor submitted that the fact that the crop was not ultimately profitable is irrelevant to the inquiry under s 21A(2)(o), a submission with which the defendant agreed. [18]
The defendant's evidence was that it was never his intention to obtain any benefit by deception. Prior to pumping any water from the Bore, the water was properly purchased and paid for, approval had been granted by WaterNSW for the water to be added to the iWAS account, and all government fees and charges had been paid. He also deposed that the popcorn crop yielded less than the contract amount as part of the crop fell over due to lack of rainfall (although as noted above at [47], the defendant also accepted that whether or not the crop was ultimately profitable is irrelevant to the inquiry under s 21A(2)(o)).
The defendant submitted that the offending was not an attempt to covertly take water or to avoid having to pay for the water extracted. The water was paid for, and the defendant waited for approval from WaterNSW in relation to the purchase and transfer of water onto the WAL before pumping. He submitted that merely because the offence was committed for the purpose of irrigation, which has a commercial advantage, is insufficient for the purpose of s 21A(2)(o) of the CSP Act.
In circumstances in which the defendant had, and believed that he had paid for the water extracted from the Bore in excess of the bore extraction limit condition, and believed that he was entitled to extract that water, I am not satisfied that the defendant committed the offence for financial gain. It is true that he stood to gain commercially if the popcorn crop had not failed. However, the evidence does not establish that this was the reason for him committing the offence. Whilst the defendant was mistaken in law, the fact that the offence was committed in the course of commercial activity is not sufficient to prove that he intended to commit the offence for commercial gain. [19]
[13]
The practical measures to avoid harm to the environment
I consider the practical measures to avoid harm to the environment at [77]-[80] below.
[14]
The defendant's control over the causes of harm to the environment
I consider the defendant's control over the causes of harm to the environment at [82]-[83] below.
[15]
Statutory matters to be taken into account
In imposing a penalty, the Court is also bound to consider the matters identified in s 364A(1) of the WM Act so far as they are relevant, and may take into consideration other matters that it considers relevant: s 364A(2). A number of these have already been addressed. Section 364A provides:
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.
[16]
The Deep Groundwater Source
The statutory matters in s 364A require consideration of the Deep Groundwater Source in relation to which an expert report was obtained by the prosecutor and there was comprehensive agreement in the SOAF. It was agreed that the Deep Groundwater Source is a vast subsurface reservoir with a typical thickness of 100 to 300 metres. It holds a finite quantum of water, and its aquifers recharge slowly by gradual leakage from shallower and deeper groundwater sources and surface water. It can take decades or even centuries for rainfall to recharge an aquifer (unless there are direct hydraulic connections to surface water features). The Deep Groundwater Source is located beneath the Lower Murrumbidgee Shallow Groundwater Source. There are approximately 1,390 registered bores in the Deep Groundwater Source. Under the NSW Government's NSW Non-Urban Water Metering Policy, the Deep Groundwater Source is classified as an "at-risk" groundwater source for which additional metering is needed to manage the risk of over-extraction.
The amount of water made available to water users in groundwater sources is based on the Minister making an available water determination (AWD) which permits each user to extract a certain amount of water based on the number of unit shares the user holds. The Minister may reduce the AWD from the usual 1.0ML per unit share if recent groundwater extraction exceeds the limit set by the relevant WSP. During the 2019/2020 water year, total extraction from the Deep Groundwater Source was larger than the average annual recharge, and groundwater levels fell to their second lowest value on record. Groundwater levels in the 2019/2020 water year almost reached the historical lows that were observed from 2007-2009 at the end of the Millennium drought, the worst drought on record in southeast Australia, lasting from 2001 to 2009. For the 2020/21 water year, the Minister reduced the AWD for the Lower Murrumbidgee Deep Groundwater Source below the usual 1.0 ML per unit share to 0.65 ML per unit share.
During the offence period, special management rules applied to the local management areas just north of where the Bore on Farm 39P is located. Those areas were identified as areas of concern in 2007 due to cumulative impacts from groundwater extractions on the aquifer and on other groundwater users.
[17]
Impact on other persons' water rights (s 364A(1)(a))
In relation to the impact of the offence on other persons' rights under the WM Act, it was agreed that extracting groundwater from the Lower Murrumbidgee Deep Groundwater Source lowers the groundwater pressure in the water source. This change in pressure (or drawdown) is initially concentrated in the immediate area, with the change decreasing as a function of distance from the groundwater well. Since the aquifers are pressurised (confined), disturbances from pumping travel quickly throughout the Deep Groundwater Source, and pressure levels equalise quickly across the entire Deep Groundwater Source between years. This means that when groundwater levels fall within the Deep Groundwater Source as a consequence of individual pumping, the flow rates of all pumping wells decrease, thereby affecting the availability and accessibility of water for all users across the entire water source. It follows that a predictable consequence of decreased groundwater pressure is the risk of increased costs for neighbouring water users to access groundwater. It was agreed that the cost to extract groundwater using a diesel pump can range between $0.96 to $2.27 per ML per metre of lift.
It was agreed that there are 26 production bores within a 10km radius of the Bore on Farm 39P which would have been affected by the additional drawdown if operated during the offence period, and that the users of those bores would have incurred additional costs for pumping water from deeper underground.
The evidence does not disclose how much water the users of those 26 bores extracted during the offence period. However, it was agreed that the defendant's over-extraction had an effect on groundwater pressures. The maximum additional drawdown contribution for the two nearest neighbouring production bores was 1.2-1.3m at one groundwater work, and 0.7-1.0m at another.
The AWD for the Deep Groundwater Source for the 2020/2021 water year, the water year following the offence period, was reduced by the Minister from the usual 1.0ML per unit share to 0.65ML per unit share due to long term average extractions in the water source exceeding the limit set by cl 28 of the WSP. By his over-extraction, the defendant was therefore 0.10% responsible for the reduced amount of water made available to all water users in the Deep Groundwater Source in the 2020/2021 water year.
[18]
Market value of water lost, misused or unlawfully taken (s 364A(1)(b))
At the time of the over-extraction, the market value of the 97.50ML of water extracted by the defendant in contravention of the bore extraction limit was $21,000. The defendant submitted, and I accept, that this would assume less importance in circumstances where, as in his case, the water was purchased and paid for.
[19]
Extent of harm caused or likely to be caused to the environment (s 364A(1)(c))
The defendant unlawfully extracted 97.50ML of water from the Deep Groundwater Source during the 2019/2020 water year. It was agreed that when groundwater pressure is decreased, there are a series of predictable consequences which are usually disadvantageous to water users and the environment. In so far as they relate to harm to the environment, these consequences can include:
1. Increased risk of aquifer compaction which can permanently reduce the capacity of aquitards to transmit water to the underlying aquifers and the capacity of those aquifers to be recharged with water and to hold or carry water. This risk is at its greatest when groundwater levels fall to record depths below ground. Aquifer compaction is caused by a loss of fluid pressure which puts extra pressure on sediment grains which then compact; and compacting may be irreversible.
2. Increased rates of leakage from the shallow groundwater source into the Deep Groundwater Source leading to lower groundwater levels in the shallow groundwater source.
3. Risk of decreased rates of downwards leakage from the Deep Groundwater Source into the underlying hard rock aquifers, or increased rates of upwards leakage from the underlying hard rock aquifers into the Deep Groundwater Source leading to depressurisation of the deeper hard rock aquifer, with practical consequences for water users in the hard rock aquifers.
4. Risk of reductions in groundwater discharge to distant features at lower elevation that have a hydraulic connection at lower elevation to the Deep Groundwater Source or any of its adjacent or underlying aquifers.
There was evidence (that was agreed) that the Department of Planning and Environment manages risks to groundwater pressure by the measurement of impacts against the 'pre-development total available drawdown" (pre-development TAD) which is the amount of confined pressure in the aquifer prior to significant irrigation development, and represents the basal fullness of thickness of the aquifer prior to significant human intervention. The Department uses two rules for assessing acceptable groundwater impacts in the Deep Groundwater Source:
1. the 70% TAD rule which means that the sum of all water allocations (past, present and 10 years into the future) is not permitted to cause the aquifer to become more than 70% empty (or drop below 30% full) at a distance of 200 metres from any water supply work; and
2. the 10% TAD rule which means that no single groundwater dealing is permitted to lower the groundwater elevation or pressure at any neighbouring work by more than 10% of the pre-development saturated thickness of the aquifer or 3 metres (whichever is less) at any point in time up to 10 years into the future.
[20]
Practical measures (s 364A(1)(d))
In relation to practical measures that may be taken to prevent, control, abate or mitigate the harm caused or likely to be caused to the environment, the prosecutor submitted that the defendant could have taken measures such as reading the user interface on the Bore meter which displays the amount of water extracted, and viewing the information available on iWAS statements, including the amount of water extracted in the water year.
Mrs Beltrame deposed that she was aware in early January 2020 that 1,059.40ML had been pumped from the Bore, leaving only 40.60ML available to be pumped at the Bore during the 2019/2020 water year. She did not recall discussing this with the defendant at length during the applicable season. The prosecutor submitted, and I accept, that it is unclear from the evidence whether she discussed this matter at all with the defendant.
The defendant submitted that the practical measures taken by him were that in the following water year the Bore was not used at all.
I find that the practical measures that could have been taken by the defendant (within the meaning of s 364A(1)(d) of the WM Act) include making more diligent efforts to understand and, if necessary, seek advice on the operation of the Approval and extraction cap, the bore extraction limit condition, and the extent of water extracted at the Bore at relevant times during the 2019/2020 water year. I do not accept the defendant's submission that not using the Bore at all in the next water year was a practical measure to mitigate the harm. There is no evidence that this was done for the purpose of mitigation.
[21]
Reasonable foreseeability (s 364A(1)(e))
The prosecutor submitted, and I find, that the risks and potential consequences to the environment outlined above at [65] to [76] were reasonably foreseeable.
[22]
Control over causes that gave rise to the offence (s 364A(1)(f))
The prosecutor submitted that the defendant had complete control over the causes that gave rise to the commission of the offence. The defendant submitted that there was a degree of inadvertence involved because of his lack of knowledge about extraction caps and iWAS statements in circumstances of reliance on others.
I accept that there was a degree of inadvertence on the part of the defendant, and that he relied upon Mrs Beltrame in relation to the bookwork of Carinya and that Mrs Beltrame dealt with WaterNSW and completed the purchasing of water when instructed by the defendant. However, I find, beyond reasonable doubt, that the defendant had control and management of the Bore (as he acknowledged in his affidavit), and he had control over the causes that gave rise to the offence.
[23]
Whether offence committed during a severe water shortage (s 364A(1)(g))
The prosecutor did not submit that the offence was committed during a severe water shortage within the meaning of s 364A(1)(g).
[24]
Intentions in committing the offence (s 364A(1)(h))
I have considered the defendant's intentions in committing the offence above at [36] to [45]. I have found that the defendant's breach of s 91G(1) of the WM Act was inadvertent and not deliberate.
[25]
Other matters (s 364A(2))
In relation to other matters, the prosecutor submitted that the objective seriousness of the offence was increased by the fact that the water was unlawfully taken during a period of severe drought, where there was an even greater need to preserve and protect valuable water resources. The defendant acknowledged the drought conditions prevailing at the time of the offence as bearing upon the assessment of objective seriousness. Whilst the offence was not committed during a severe water shortage within the meaning of s 364A(1)(g), I find that the objective seriousness of the offence is increased by the severe drought conditions then prevailing.
[26]
Conclusion on objective seriousness
The prosecutor submitted that the offending was "in the low to bottom end of the moderate range". The defendant submitted that the offending was "in the lowest range of objective seriousness". Considering all the objective circumstances above, I find the offence committed by the defendant to be of low to medium objective seriousness.
[27]
Subjective circumstances of the offender
Within the limits set by the objective seriousness of the offence, I take into account the favourable and mitigating circumstances of the defendant personal to the defendant. [21] Mitigating factors to be taken into account are set out in s 21A(3) of the CSP Act.
[28]
Prior criminality (s 21A(3)(e))
The lack of any record (or significant record) of previous convictions is a mitigating factor to be taken into account in determining the appropriate penalty for an offence. [22] The defendant has no record of any prior convictions.
[29]
Remorse shown by the offender (s 21A(3)(i))
Remorse is a mitigating factor under s 21A(3)(i) of the CSP Act, but only if:
1. the offender has provided evidence that he or she has accepted responsibility for his or her actions; and
2. has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).
The defendant deposed that he is deeply sorry for any damage his offending has caused and reiterated that the conduct was unintentional. He is embarrassed and regretful of the offence. He regrets that upon the commencement of Carinya, he did not inform himself of the terms of the Approval and the legislation which governed the Bore, and instead relied upon the information provided to him by Mrs Beltrame. He acknowledges that in his role as a farmer, he should have sought necessary advice to ensure the operations of the Bore were properly understood, especially in circumstances where irrigation practices are such an important aspect of his work. He now understands that had he not pumped the water in excess of the bore extraction limit condition, the water would have been potentially available for another licence holder to purchase and use.
Since becoming aware of the offence, the defendant and Mrs Beltrame have established mechanisms to ensure such oversights do not occur again. These include ensuring further questions are asked of WaterNSW when completing transfers and when correspondence is not properly understood; the defendant himself reviewing documents from WaterNSW; and seeking necessary legal advice on conditions of approvals. Mrs Beltrame likewise deposed that these measures have been put in place. The defendant further deposed that while he takes full responsibility for his conduct, the offending conduct was an oversight which unfortunately occurred and which was the result of stress and pressure because of the commencement of his own business in a drought year and the financial pressure to generate an income and support his family, ill-health and death in his family, and his limited education and struggle with reading and comprehension. He deposed that he has great respect for the need to protect the longevity of the environment, and that he would not intentionally attempt to better his financial circumstances at the detriment of our valuable resources. Had he properly understood the terms of the Approval, he would not have purchased and pumped the groundwater at the Bore and would have attempted to seek surface water or otherwise let the crop fail.
[30]
Early plea of guilty (ss 21A(3)(k), 22)
The Court is required to take into account the fact that the defendant has pleaded guilty, the timing of the plea, and the circumstances in which the defendant indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it otherwise would have imposed, although a lesser penalty cannot be unreasonably disproportionate to the nature and circumstances of the offence. [23] The utilitarian value of the plea is primarily dependant on its timing and is generally assessed in the range of 10-25 percent discount on sentence. [24]
Here, the summons was filed on 29 April 2021. The defendant entered a plea of guilty on 11 June 2021, at the first available opportunity. I find that he is entitled to the maximum discount of 25% of the sentence imposed for the utilitarian value of the plea of guilty to the justice system.
[31]
Assistance to authorities (s 21A(3)(m))
Assistance to law enforcement authorities is a mitigating factor under s 21A(3)(m) of the CSP Act. The defendant submitted that he was fully cooperative with investigators and gave full and frank evidence, including making admissions in his voluntary interview with the prosecutor dated 18 December 2020; and that he accepted full responsibility. He also participated in the preparation of a comprehensive SOAF which has assisted the sentencing process. I find that this mitigating factor is established.
[32]
Good character (s 21A(3)(f)) and prior convictions (s 21A(3)(e))
The parties agreed, and I find, that the defendant was of good character and had no prior convictions for environmental offences. The defendant has paid three fines of $750 each associated with bore extractions for water years 2017/2018 and 2019/2020 relating to another approval. These fines were a result of his being listed as approval holder, although he had no involvement with the relevant bores at the time of the offences.
The defendant read affidavits of Mr Andreazza and Mr Cudmore, each of whom provided an endorsement of the defendant's character.
Mr Andreazza has been the defendant's accountant since around 2004, but has known him personally since 1994. He had worked with the Salvestro family as their accountant for some years prior to 2004. Mr Andreazza acknowledged that the defendant has pleaded guilty to an offence involving over-extraction of 97.50ML from a bore. He considered the defendant to be a caring, hard-working and dedicated individual, a dedicated family man, who has shown great strength in supporting his family and furthering his business through difficult times caused by both family affairs and the severe drought. He deposed to the defendant's involvement with the Rural Fire Service and local sporting teams. He considered the defendant's offending to be out of character and that the offence arose due to a lack of understanding of the operation of the Bore and the terms of the Approval.
Mr Cudmore is the operator of a farm next door to Farm 39P. He also understood that the defendant has pleaded guilty to extracting 97.50ML of water above his annual extraction limit. He referred to the defendant as a man with strong family values with love and dedication to his family, and a determined hard worker. He said that from interactions with the defendant's staff, the defendant is an affable employer, and has created a good workplace culture. He expressed confidence that this will be the defendant's final episode in terms of offending.
Mr and Mrs Beltrame received a letter dated 3 November 2022 from MI Ltd which was tendered at the hearing. MI Ltd stated that the significant volume of rainfall across the Murrumbidgee Irrigation Area in October 2022 saw the breaching of both the Murrumbidgee River and Mirrool Creek, causing overland flow of water onto public roads and neighbouring landholdings. The Griffith Local Emergency Management Committee directed MI Ltd to make cuts to its works to release pressure along the system to minimise damage caused by floodwaters. Griffith City Council instructed MI Ltd to activate the use of a supplementary bypass channel. The letter purported to formalise discussions already had with Mr and Mrs Beltrame. The defendant gave brief oral evidence-in-chief that:
1. he received the letter from MI Ltd dated 3 November 2022;
2. in around October 2022, Griffith was declared a disaster zone, and he was working with Griffith City Council and MI Ltd to reach an agreement for the use of his farm for the diversion of floodwater;
3. as at 25 November 2022, MI Ltd was using a supplementary bypass channel on the defendant's property to transport water across his land and to a suitable flood plain area;
4. this action was to avoid or minimise flooding upon the land of neighbouring farmers; and
5. as at 25 November 2022, the defendant was unable to plant any crops on the part of the land being used for this purpose.
[33]
Not likely to reoffend (s 21A(3)(g))
The defendant submitted that he has good prospects of rehabilitation and is unlikely to reoffend. I find that the defendant has insight into, and takes responsibility for his offending. Both Mr Cudmore and Mr Andreazza consider that the defendant now understands the operation of the Bore and Approval, and is unlikely to reoffend.
The defendant deposed to a range of farming practices, carried out by him, directed towards environmental sustainability. Since becoming aware of the offence, he and Mrs Beltrame have established mechanisms to ensure such oversights will not occur again (as to which see [92] above).
The defendant also submitted that the Court might take comfort in the relatively small usage of the Bore in the years prior to and subsequent to the offending.
I find, having regard to his lack of previous convictions, his early plea of guilty, his genuine remorse for the offence, and his actions to avoid reoccurrence of the offence, that the defendant is unlikely to reoffend.
[34]
Proportionality
It is a fundamental principle of sentencing that the sentence should not exceed what is proportionate to the gravity of the offence, having regard to its objective circumstances. [26]
The defendant submitted that the prosecutor failed to grapple with the principle of proportionality. He submitted that his over-extraction was 97.50ML, representing 8.82% of that which he was entitled to extract under the WAL; and that such over-extraction should be seen in light of the under-extraction relative to the water entitlements in relation to the Bore in the years prior and subsequent to the offence period.
In determining the appropriate penalty in this case, I have regard to the principle of proportionality, the defendant's submissions in relation to proportionality, and the pattern of sentences for like offences (as to which see [117]-[133] below).
[35]
General and specific deterrence
In the context of environmental offences, general deterrence is of particular significance. [27] It is the duty of the Court to send a powerful message. Persons will not be deterred from committing environmental offences by nominal fines. [28] By its sentence, the Court shows its abhorrence of crimes against the environment and significant components of it, and promotes the achievement of ecologically sustainable development, including the internalisation of external environmental costs. [29] The prosecutor submitted that more than a nominal penalty would be appropriate to deter other irrigators who might contemplate unlawfully taking water in contravention of the WM Act. I accept the prosecutor's submission in relation to the particular significance of general deterrence.
Specific deterrence is enumerated as a purpose of sentencing in s 3A(b) of the CSP Act. It is particularly relevant where the offender continues to operate in the same area in which the offence occurred. [30] The need for specific deterrence is linked to the purpose of the WM Act to prevent more than just deliberate or negligent pollution, by encouraging the taking of proper precautions to prevent accidents, akin to the intention of the Environmental Offences and Penalties Act 1989 (NSW) and Clean Waters Act 1970 (NSW), as explained in Axer at 359 (Mahoney JA). The prosecutor submitted that specific deterrence is required in this case as the defendant continues to operate his farm, and that the sentence must reinforce his responsibility to ensure compliance with the Approval when using the Bore.
I am not persuaded in the circumstances of this case that specific deterrence is required. I have found that the defendant has genuine remorse for the offence, has insight into his offending, has taken actions to prevent reoccurrence, that he takes responsibility for his offending, and that he is unlikely to reoffend.
[36]
Denunciation and retribution
In accordance with s 3A(a), (e) and (f) of the CSP Act, I take into account retribution and denunciation as purposes of sentencing. A sentence represents "a symbolic collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law". [31] Existing principles require many sentences to be retributive in nature. [32]
[37]
Even-handedness and consistency in sentencing
Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. [33] In seeking consistency, judges must have regard to what has been done in other cases which may well establish a range of sentences which have been imposed. [34] But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. [35] The history stands as a yardstick against which to examine a proposed sentence, [36] the plurality referring to the decision of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194 (De La Rosa) at [304]. When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned". [37]
As the Chief Judge observed in Environmental Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 (Ditchfield) at [72], the more appropriate yardstick against which the sentence in this case should be compared is the penalty set by Parliament ($500,500), rather than the amount of fines imposed in past cases.
The prosecutor provided a table of comparative sentences in this Court and in the Local Court. The defendant also identified a number of cases in this Court and in the Local Court, as well as a number of instances of enforceable undertakings entered into by the prosecutor in relation to allegations of similar offending and of penalty infringement notices issued pursuant to s 365 of the WM Act.
Limited information was provided to the Court in relation to proceedings in the Local Court. One sentence in the Local Court for an offence against s 91G(1) of the WM Act imposed on 10 June 2021 against a corporation that pleaded guilty was a fine in the amount of $11,000. No other relevant information was available about that matter. There has been no prosecution of an offence against s 91G(1) in this Court, other than this matter in which a plea of guilty was also entered.
In the Local Court, three sentences had been imposed in relation to offences against s 91G(2) of the WM Act. Section 91G(2) provides an offence against each holder of an approval if any term or condition of an approval is contravened by any person. The offence is also a Tier 2 offence. In one case, an individual was fined $3,000 for two counts of contraventions of s 91G(2), with no guilty plea and 'no priors' recorded. In another case, an individual was fined $10,000 for two counts of contraventions of s 91G(2), with no guilty plea and 'no priors' recorded. In a third case, a person was fined $5,000 for 3 counts of contraventions of s 91G(2) with no guilty plea and 'no priors' recorded. Plainly, no pattern of sentencing can be discerned from these three cases without understanding the circumstances of the offending, objective and subjective.
[38]
Capacity to pay fine (s 6 Fines Act)
In exercising my discretion to fix the amount of a fine, I am required to consider such information regarding the means of the accused as is reasonably and practicably available to the court for consideration and such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. [41] The defendant did not submit that he lacks the means to pay a financial penalty. He nevertheless submitted that he and his wife are in challenging financial circumstances and provided evidence of his tax returns for the 2019 and 2020 financial years.
The defendant's tax returns for the 2019 and 2020 financial years provide limited assistance in appreciating his means to pay a financial penalty, particularly as at the date of sentencing. I accept that the defendant's income earned between 2019 and 2020 was not consistent. However, the financial information before the Court is not sufficient to permit a finding about the defendant's financial circumstances. Accordingly, I find that the defendant does not lack the means to pay a financial penalty.
[39]
The offence could have been prosecuted in the Local Court
A further matter submitted by the defendant to be relevant to the monetary penalty to be imposed is that the maximum penalty in the Local Court for an offence against s 91G(1) of the WM Act during the offence period was $22,000. The maximum penalty which could be imposed by this Court is over 22 times greater; that is $500,500.
The defendant submitted that the Court would consider the lower jurisdictional limit of the Local Court to be a significant factor when fixing the quantum of penalty. The defendant relied on a series of authorities in the Court of Criminal Appeal. [42]
In Harris v Harrison, Simpson J at [92]-[99] said the following:
92. A matter that was not drawn to her Honour's attention, and a significant matter, is that the offence could have been prosecuted in the Local Court, where the maximum applicable monetary penalty was $22,000. It is well established that that may be a relevant sentencing consideration: R v Crombie [1999] NSWCCA 297; R v Doan [2000] NSWCCA 317; 50 NSWLR 115.
93. In Doan, Grove J, with whom Spigelman CJ and Kirby J agreed, observed that the fact that an offence could have been dealt with in a court with a lower jurisdictional limit is an available circumstances to be taken into account; the significance of the circumstance varies from case to case (at [42]).
94. In Zreika v R [2012] NSWCCA 44, Johnson J, with whom McClellan CJ at CL and Rothman J agreed, considered in detail a number of relevant authorities. His Honour first observed (at [83]) that it was difficult to see how the possibility of summary disposal (in a court with more confined jurisdiction) came within the rare category of cases in which this Court would allow a point not taken at first instance to succeed (cf Criminal Appeal Rules (NSW), s 4). His Honour said:
109 Unless this Court is able to clearly determine that the offence in question, committed by the particular offender with his or her criminal history, ought to have remained in the Local Court, then the argument is theoretical at best. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice ...
...
111 The ground of appeal can only be meaningful if this Court determines that the total sentence for the particular offence should not have exceeded the jurisdictional limit of the Local Court ...
112 Unless it is plainly wrong that the offence is in the District Court [read Land and Environment Court], it is difficult to see how an offender can succeed on a ground of appeal which claims that a relevant factor has not been taken into account by the sentencing Judge." (italics added)
95. In this case, senior counsel for the respondent argued that it was legitimate to bring the proceedings in the Land and Environment Court because s 91K had not been the subject of prior judicial consideration at the level of a superior court. It was, he contended, desirable that a superior court rule upon the issues raised. That may be so, but it exposed the appellant to a maximum penalty 50 times that which could have been imposed in the Local Court.
96. Given the known circumstances of the offence, and the assessment of the offence as one of low objective gravity, her Honour's attention should have been drawn to the fact that the offence could have been prosecuted in the Local Court, and to the maximum penalty there available.
97. Notwithstanding the respondent's desire to have some parameters established by a superior court, this was an offence that should have been treated as one suitable to be prosecuted in the Local Court, with its limitation on penalty. It is a pity that neither counsel thought to inform her Honour of these circumstances.
98. I am satisfied that the total sentence imposed ought not to have exceeded the jurisdictional limit of the Local Court, $22,000. While I consider that the respondent's reasons for bringing the prosecution in the Land and Environment Court, to establish some principles and benchmarks with respect to offences against s 91K, were legitimate, I also consider that the jurisdictional limit of the Local Court ought to have been regarded as a highly significant sentencing factor.
99. In the circumstances of this case, I would not prevent the appellant from advancing this circumstance as relevant to the issues before this Court.
[40]
The appropriate penalty to be imposed
Synthesising all the relevant objective and subjective circumstances of the offence and the offender, and considering the relevant purposes of sentencing, the maximum penalty now set by Parliament, and the check or yardstick provided by the cases in this Court referred to at [125]-[132] above, I consider that the appropriate monetary penalty is $35,000. This amount should be discounted by 25% for the utilitarian value of the plea of guilty. This results in a monetary penalty in the amount of $26,250
[41]
Payment of share of fine to prosecutor (s 122 Fines Act)
The parties agreed that an order that a moiety of any fine be paid to the prosecutor ought to be made under s 122 of the Fines Act. The prosecutor proposed that a half share of the fine imposed by the Court be paid to the prosecutor. I find accordingly.
[42]
Costs
The parties agreed that it is appropriate for the defendant to pay the prosecutor's costs of the proceedings under s 257B of the Criminal Procedure Act 1986 (NSW) (CP Act) in the amount of $20,000, as agreed pursuant to s 257G(a) of that Act. In Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd (No 3) [2022] NSWLEC 136 (Charlotte Pass) at [198] Pepper J said as follows:
198. In the exercise of its sentencing discretion the Court can take into account any costs payable by the defendant (Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78]-[88]). In doing so, the Court must be mindful that the payment of the EPA's costs is not a reason for reducing any penalty to be imposed in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50]).
I have taken into account the costs payable by the defendant in determining the sentence to be imposed, mindful of Pepper J's remarks on sentence in Charlotte Pass.
[43]
Publication order
The main purpose of publicising the detection, prosecution and punishment of the defendant is to improve the effectiveness of general deterrence: Ditchfield at [76]. The parties agreed that a publication order pursuant to s 353G(1)(a) of the WM Act was warranted. There was disagreement as to the precise wording of such an order. The prosecutor's version, presented to the Court, named the defendant Mr Beltrame, whereas the defendant's version refers to the defendant as "a local irrigator" and "the offender".
The defendant deposed, and I accept, that the offence and the proceedings have caused great stress to his family. Throughout 2021, he was named in media articles which described him as a "thief". Living in a small country town, this caused great upset and reputational damage to the defendant and his family. Whilst he acknowledges his mistake, he is saddened at the suggestion that he has intentionally attempted to receive a financial gain at the detriment of other licence holders or the environment. Mrs Beltrame deposed, and I accept, that the publicity has caused her and the defendant further upset with many members of their small country town becoming judgmental. Mr Andreazza recalled Mr and Mrs Beltrame being referred to in the media and by some community members as "water thieves". Mr Cudmore was aware of the embarrassment and stress the offence has caused the defendant within the community of Griffith.
The prosecutor submitted that failing to identify the defendant in a publication order would detract from the purpose of making the order; namely, to publicise the details of the offence and the conclusion reached by the Court. Failing to identify the defendant would also lead to conjecture in the community as to the identity of the irrigator involved in the offending, and could lead to questions as to why no suppression orders were sought.
The prosecutor, upon questioning by the Court, noted that in Hogan the publication order identified the defendants as "owners of a property"; and that in Schwager, the defendant was referred to as a "grazier". Those proceedings were not the subject of suppression orders and were published on the prosecutor's website. However, neither party was able to identify any proceeding in this Court where the publication order did not identify the defendant by name.
In Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160 (Sibelco) (Pain J), a publication order was made notwithstanding the submission that the defendant has already been subject to adverse publicity in the local media: see at [104]. Her Honour considered the following factors to weigh in favour of naming the defendant: the failure to seek suppression orders; that the defendant had already been named in publications in the Griffith locality; that not to name the defendant failed to give proper consideration to general and specific deterrence by removing a significant "sting" in the punishment imposed by the Court; and that the consistent practice of this Court has been to identify the defendant in publication orders.
[44]
Orders
The orders of the Court are as follows:
1. The defendant is convicted of the offence charged.
2. The defendant is fined the sum of $26,250.
3. Pursuant to s 257B of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor's costs in the agreed amount of $20,000 in accordance with s 257G(a) of that Act.
4. Pursuant to s 353G(1)(a) of the Water Management Act 2000, the defendant is to cause a notice to be published within 28 days of this order in the digital and print versions of The Land newspaper and The Irrigator newspaper (at the minimum sizes of 10cm x 18.6cm and within the first 12 pages of those publications) in the terms set out in Annexure A to this order.
5. Pursuant to section 122 of the Fines Act 1966, a half share of the fine imposed by the Court under order 2 is to be paid to the prosecutor.
[45]
Endnotes
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ), citing the majority in R v Storey [1998] 1 VR 359 at 369.
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] (Muldrock) (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 (Plath) at [48] (Preston CJ); Fairfield City Council v Oztech Developments Pty Ltd; Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81 at [57] (Robson J).
R v Peel [1971] 1 NSWLR 247 at 262 (Herron CJ, Manning JA and O'Brien J); Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [89] (Preston J).
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 (Bentley) at [168]-[172] (Preston CJ).
Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 (Rae) at [15] (Preston CJ); Environment Protection Authority v University of Sydney [2022] NSWLEC 41 at [29] (Pain J).
Harrison v Perdikaris [2015] NSWLEC 99 (Perdikaris) at [45] (Preston CJ).
s 9(1)(a).
cl 14 of the WSP.
cl 9(a), (b), (d), (e) and (f).
cl 10(c) and (g).
Muldrock at [31]; Elias v The Queen (2013) 248 CLR 483, [2013] HCA 31 at [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Perdikaris at [49] (Preston CJ); Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; (1993) 82 LGERA 21 (Camilleri's Stock Feeds) at 36 (Kirby P, Campbell and James JJ agreeing).
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] (Markarian) (Gleeson CJ, Gummow, Hayne and Callinan JJ).
Muldrock at [31].
Environment Protection Authority v Fulton Hogan Pty Ltd (2008) 163 LGERA 345; [2008] NSWLEC 268 at [146] (Biscoe J); see also Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17 at [45] (Robson J).
Plath at [98] (Preston CJ); Rae at [46] (Preston CJ); Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312 at [72] (Brereton JA, Harrison and Bellew JJ agreeing).
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 (Axer) at 366 (Badgery-Parker J, Mahoney JA and Finlay J agreeing); Bentley at [237].
Parties
Applicant/Plaintiff:
Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator
Respondent/Defendant:
Robert Beltrame
Legislation Cited (8)
Environment Administration Act 1991(NSW)s 6(2)
Environmental Offences and Penalties Act 1989(NSW)
An issue in the proceedings agitated by the defendant is that the offence could have been prosecuted in the Local Court where the maximum penalty for an offence against s 91G(1) of the WM Act during the offence period was $22,000. The defendant submitted that there were numerous circumstances which made the offence such that the proceedings ought to have been commenced in the Local Court, and that the penalty imposed ought not exceed the jurisdictional limit of the Local Court. This submission is addressed below at [136] to [144].
In pleading guilty, the defendant has admitted the following elements which constitute an offence against s 91G(1) of the WM Act:
1. he used a "water management work", which includes a water supply work (that is, the Bore);
2. he did so pursuant to the Approval; and
3. he contravened the bore extraction limit condition of the Approval.
The prosecutor is required to prove matters adverse to the defendant beyond reasonable doubt, while matters relied upon by the defendant must be proven by the defendant on the balance of probabilities. [1]
The defendant is convicted of the offence charged. It arises to sentence the defendant for an offence against s 91G(1) of the WM Act. I have determined that the defendant is fined the sum of $26,250. My order to that effect and the related orders are set out at the conclusion of these reasons for decision.
Section 9(1) of the WM Act provides that it is the duty of all persons exercising functions under the Act, amongst other things, to take all reasonable steps to do so in accordance with, and so as to promote, the water management principles of the Act. [8]
The water management principles are set out in s 5 of the WM Act. These include those in paras 5(4)(c) and (8)(a)-(b) on which the prosecutor placed particular emphasis:
5 Water management principles
(1) The principles set out in this section are the water management principles of this Act.
(2) Generally -
(a) water sources, floodplains and dependent ecosystems (including groundwater and wetlands) should be protected and restored and, where possible, land should not be degraded, and
(b) habitats, animals and plants that benefit from water or are potentially affected by managed activities should be protected and (in the case of habitats) restored, and
(c) the water quality of all water sources should be protected and, wherever possible, enhanced, and
(d) the cumulative impacts of water management licences and approvals and other activities on water sources and their dependent ecosystems, should be considered and minimised, and
(e) geographical and other features of Aboriginal significance should be protected, and
(f) geographical and other features of major cultural, heritage or spiritual significance should be protected, and
(g) the social and economic benefits to the community should be maximised, and
(h) the principles of adaptive management should be applied, which should be responsive to monitoring and improvements in understanding of ecological water requirements.
…
(4) In relation to water use -
…
(c) the impacts of water use on other water users should be avoided or minimised.
…
(8) In relation to aquifer interference activities -
(a) the carrying out of aquifer interference activities must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and
(b) the impacts of the carrying out of aquifer interference activities on other water users must be avoided or minimised.
The regime for water sharing applicable to Farm 39P and the Deep Groundwater Source is relevant in assessing the nature of the offence. Farm 39P is located in the water management area known as the Lower Murrumbidgee Groundwater Sources. The groundwater sources beneath Farm 39P include the Deep Groundwater Source. The applicable water management plan for the Lower Murrumbidgee Groundwater Sources during the relevant period was the WSP.
Under s 88A(1) of the WM Act, Pt 3 Ch 3 of the Act applies to:
(a) each part of the State or each water source, and
(b) each type or kind of approval that relates to that part of the State or that water source,
that is declared by proclamation to be a part of the State or water source, and type or kind of approval, to which this Part applies.
On 29 September 2006, a proclamation was published for the Deep Groundwater Source in the NSW Government Gazette, applying Pt 3 Ch 3 of the WM Act to all water use approvals and water supply works in the Lower Murrumbidgee Groundwater Sources from 1 October 2006.
Under the WSP, the average annual recharge rate of the Deep Groundwater Source, representing the amount of water that could be expected to return to a water source each year, was 335,000ML. The average annual recharge rate for the smaller Lower Murrumbidgee Shallow Groundwater Source was 65,000ML. [9]
The objectives of the WSP are stated in cl 9 to include sharing groundwater sustainably between users and the environment, sharing groundwater equitably amongst extractive users, protecting groundwater quality, maximising the social, economic and environmental benefits of groundwater management strategies, and minimising the negative social and economic impacts of groundwater management strategies. [10]
The strategies of the WSP are stated in cl 10 to include establishing an extraction limit for each groundwater source, taking into account the requirements of the environment, and establishing rules for minimising the local impacts of groundwater extraction on the environment, the aquifer itself and between users. [11]
Clause 16 establishes the quantum of planned environmental water to be reserved in the Deep Groundwater Source, being 65,000ML of the average annual recharge rate. Clause 28 sets the extraction limit for each groundwater source, being 270,000ML in the Deep Groundwater Source, as well as the total requirements for basic landholder rights at the commencement of the WSP.
The charged offence against s 91G(1) is in Pt 3 of Ch 3 of the WM Act titled 'Approvals'. It provides as follows:
Part 3 Approvals
…
Division 1A Offences
…
91G Contravention of terms and conditions of approval
(1) A person (other than the holder) who uses water, constructs or uses a water management work or carries out a controlled activity or an aquifer interference activity, pursuant to an approval is guilty of an offence if the person contravenes any term or condition of the approval.
Tier 2 penalty.
Under the Dictionary to the WM Act, a 'water management work' includes a water supply work. A 'water supply work' includes a work such as a water bore for the purpose of taking water from a water source.
Under s 99A of the WM Act, the Minister could grant two or more approvals by means of a single, combined approval. Approval 40CA403802, the contravention of which gave rise to the offence here, was one such combined approval. The Minister could grant an approval subject to conditions: s 100(1) of the WM Act. Here, the Approval authorised the holders, Mr and Mrs Salvestro, to construct a bore on the whole lot to which the approval applied. The specified purpose identified in Sch 3 to the Approval was "irrigation". Schedule 4 contained conditions, including relevantly, condition DK0175-00037, which provided as follows:
A. The volume of groundwater extracted annually from the water supply work authorised by this approval must not exceed 1100ML.
…
In relation to the nature of the offence, the prosecutor relied upon the observations of Preston CJ in Perdikaris 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…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.
The prosecutor also relied upon the observations of Preston CJ in Water NSW v Barlow (2019) 244 LGERA 1; [2019] NSWLEC 30 at [20]:
20. Amongst the ways in which the Water Management Act provides for the sustainable and integrated management of the water sources of the State is by regulating the taking and use of water from water sources. Apart from some basic landholder rights to take and use water (in Part 1 of Chapter 3), a person can only take water from a water source if the person is the holder of an access licence (under Part 2 of Chapter 3) and use water taken from a water source if the person is the holder of a water use approval (under Part 3 of Chapter 3).
A feature of the regulatory regime, as described by the Chief Judge in Perdikaris extracted above at [29], is the ability to place conditions upon approvals. As set out below at [67], the Department of Planning and Environment sometimes places conditions on approvals based on scientific assessments as to the health and nature of the water source in question. These conditions may be constituted by extraction limits to protect the water source and other users. In Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v O'Haire [2020] NSWLEC 158 (O'Haire) Pepper J said at [104]:
104. The water management system depends on persons obtaining a licence to access water and adhering to the conditions of that licence. The licence is the price payable for the taking of a valuable and increasingly scarce resource. Accessing water that contravenes the conditions of an access licence and that continually causes the licence to be in debit by using water that exceeds the allocation of the access licence directly subverts the objectives of the statutory water management regime.
As the prosecutor submitted, contraventions of the extraction limits of water supply and use approvals equally subvert the objectives of the statutory water management regime in s 91G(1) of the WM Act.
During the 2019/20 water year, Mr and Mrs Beltrame grew wheat and popcorn. They were unable to grow other crops as a result of the drought which then prevailed. Due to the drought and other family reasons, including extreme ill-health, the defendant was under significant stress. The defendant's evidence in this regard was confirmed by Mrs Beltrame.
During the early months of the 2019/2020 water year, the defendant grew wheat at Farm 39P. On 15 November 2019, the defendant, on behalf of the Trustee for Beltrame Ag Trust, entered into a contract to grow and supply 60 ha of popcorn to a buyer. The defendant calculated that he would need 420ML of the remaining 470ML bore water entitlements available for that water year to fulfil this contract. Following advice from the buyer's agronomist that the crop needed more watering, the defendant and Mrs Beltrame purchased another 100ML of water, which transfer was approved by WaterNSW. Mrs Beltrame told the defendant that WaterNSW had approved the transfer and that he was allowed to water the popcorn. The defendant proceeded to water the crop. His evidence was that this took place in early February 2020, rather than in March 2020 as was displayed on the iWAS statement.
The defendant's uncontested evidence was that he relied on Mrs Beltrame to review the iWAS account as he considered that to be part of her administrative role. The defendant considered this to be a suitable approach given his lack of experience or knowledge in reading iWAS accounts. Prior to the prosecutor's investigation, he was not aware that he had breached the terms of the Approval.
Mrs Beltrame confirmed the defendant's account of the division of labour between them in operating Carinya, the history of their involvement with farming and with the Salvestro family business, and the operations on Farm 39P during the 2019/2020 water year, including the decisions to grow popcorn and to purchase an additional 100ML in water entitlements. Mrs Beltrame also gave evidence in relation to her misunderstandings as to the effect of the 100ML additional water entitlement approved by WaterNSW on the quantum of water the defendant could legally extract from the Bore.
I find that the defendant's breach of s 91G(1) of the WM Act was inadvertent and not deliberate. In so finding, I have regard to his level of education and difficulty with reading and comprehension, the very recent transition to operating his own business with Mrs Beltrame and to making watering decisions, his total reliance on Mrs Beltrame to review documents, licences and approvals in relation to bores, his confidence in Mrs Beltrame's advice that the additional purchase of water enabled him to use the Bore water on Farm 39P to water the popcorn during the early months of the 2019/2020 water year, and family and commercial stresses about which there was a deal of evidence.
The commission of the offence for financial gain is an aggravating factor the prosecutor must prove beyond reasonable doubt. On the evidence before the Court, the prosecutor has not proven this aggravating circumstance.
The defendant accepted that there was a risk of impact on other person's rights. However, he emphasised the lack of evidence as to how much water other users extracted from surrounding bores during the period of his over-extraction (between 1 July 2019 and 30 June 2020).
I find, beyond reasonable doubt, that the defendant's over-extraction had an effect on groundwater pressures, and that 26 production bores within a 10km radius of the Bore on Farm 39P, if operated during the offence period, would have incurred additional costs for pumping water from deeper underground. I also find, beyond reasonable doubt that the defendant was 0.10% responsible for the reduced amount of water made available to all water users in the Deep Groundwater Source in the 2020/2021 water year.
In the case of a water supply work approval for a ground water bore or bores, the Department's assessment may lead it to recommend that a bore extraction limit be imposed to limit the volume of water that can be extracted from the Bore or bores authorised by the approval during a water year. Here, the bore extraction limit in the Approval was based on a hydrological assessment undertaken by the Department in 2016. The Department's assessment identified that the extraction of no more than 1,100ML of water per year could be expected to limit the impacts of the Bore to the following approved levels:
1. 2.3 metres of additional drawdown at irrigation bore 40WA416411 (at a distance of 1.2km from the primary bore site); and
2. 2.13 metres of additional drawdown at the irrigation bore 40CA403489 (at a distance of 1.7 km from the Bore site).
In addition to the approved additional drawdown referred to at [67] above, the over-extraction by the defendant of 97.50ML during the 2019/2020 water year temporarily caused the following drawdown in the surrounding area:
1. approximately 2.0 metres additional drawdown up to 500 metres from the Bore site;
2. approximately 1.0 metres additional drawdown up to 2 km from the Bore site;
3. approximately 0.1 metres additional drawdown at about 7 to 12 km from the Bore site; and
4. approximately 0.03 cm additional drawdown at about 30 km from the Bore site.
The duration of the significant additional drawdown effects in these areas, before pressure levels equalised across the aquifer, was as follows:
1. less than 3km: 22 to 83 days;
2. within 3 to 5 km: 42 to 108 days;
3. within 5 to 15 km: 24 to 153 days; and
4. within 15 to 30 km: up to 141 days.
By taking water in excess of the bore extraction limit condition, the defendant also increased the risk of aquifer compaction and other adverse effects occurring in the Deep Groundwater Source. The over-extraction caused approximately 0.2 metres additional drawdown at one nearby monitoring bore, where groundwater levels dropped to within ten centimetres of their record lows. At another nearby monitoring bore, groundwater pressures remained relatively stable, likely because the Deep Groundwater Source was receiving significant leakage from the surface to the north.
I have addressed the effect on neighbouring bores at [58]-[63] above. This also bears on environmental harm. The maximum additional drawdown contribution for the two nearest neighbouring production bores of 1.2-1.3m at one, and 0.7‑1.0m at another, exceeded the drawdown approved in the Department's hydrogeological assessment.
Having regard to these agreed facts, the prosecutor submitted that although there was no evidence of actual harm to the environment, harm needs to be considered not only in terms of actual harm, but also in terms of the potential or risk of harm. In Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419, Preston J said at [147]:
147 Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously.
The prosecutor submitted that there was evidence of increased risk of harm, and that harm can also result from conduct that undermines a regulatory scheme the purpose of which is preventing environmental harm. [20]
The defendant accepted that there was potential for harm. However, it was submitted that the Court should look to the quantity which was taken above the extraction cap in the context of the period in which it was taken, and the extraction from the Bore over the entire period prior and subsequent to the offending. The defendant deposed that he mostly relied upon surface water for irrigation of crops. Further, between 2016 and 2022, the following quantities were extracted from the Bore:
1. between 1 July 2016 and 30 June 2017, 0 ML was extracted, with an extraction limit of 1,100ML, leaving a balance of 1,100ML;
2. between 1 July 2017 and 30 June 2018, 151.50ML were extracted, with an extraction limit of 1,100ML, leaving a balance of 948.50ML;
3. between 1 July 2018 and 30 June 2019, 516.60ML were extracted, with an extraction limit of 1,100ML, leaving a balance of 583.40ML;
4. between 1 July 2019 and 30 June 2020, 1,197.40ML were extracted, with an extraction limit of 1,100ML, leaving a balance of -97.40ML; and
5. between 1 July 2021 and 21 February 2022, 0ML were extracted, with an extraction limit of 1,100ML, leaving a balance of 1,100ML.
The defendant submitted, based on the SOAF, that in the period between 1 July 2016 and February 2022, a total of 4707.4ML of water was taken from an entitlement of 6,600ML. He submitted that the Bore on Farm 39P produces low quality water, and that he and Mrs Beltrame considered the Bore to be an emergency resource. Mrs Beltrame's evidence was consistent with the defendant's in relation to these matters.
I find, beyond reasonable doubt, that the defendant's over-extraction posed an increased risk of harm to the environment. I treat that increased risk of harm seriously, and consider it to undermine the regulatory scheme of the WM Act, and the water management principles set out in s 5 of the Act (relevantly extracted above at [18]). The seriousness of the potential harm to the environment is to some extent mitigated by the quantity of water which was taken above the extraction limit condition (97.50ML or 8.82%), and the extraction from the Bore over the period prior and subsequent to the offending. It remains inescapable, however, that the over-extraction occurred during the 2019/2020 water year, a water year in which total extraction from the Deep Groundwater Source was larger than the average annual recharge, and groundwater levels fell to their second lowest value on record.
Mrs Beltrame also deposed to ill-health in her family, illness and death in the defendant's family and the sadness, embarrassment and regret felt by herself and the defendant. She was remorseful for the part she played in the matter and referred to measures now in place to ensure the offence does not occur again. Mr Andreazza deposed that he is aware that the defendant is greatly remorseful for the offence.
The defendant submitted that he has expressed contrition and remorse, acknowledged the offending, taken steps to ensure compliance in the future and demonstrated an ability to comply with what is required. The defendant also submitted that his guilty plea represented contrition. I consider that submission to sit uneasily with the remarks of Blanch J in Kite v R [2009] NSWCCA 12 at [12] (Grove and Kirby JJ agreeing) that because s 21A makes specific provision for remorse to be considered as a separate mitigating factor, to include remorse as a factor contributing to the percentage discount for the plea of guilty can give rise to a perception of double counting. The prosecutor agreed that the defendant has taken steps to put mechanisms in place to ensure that the offending conduct is not repeated.
In Environment Protection Authority v Waste Recycling and Processing Corporation at [203]-[215] Preston J identified at least four forms of action that genuine contrition and remorse may take. These are:
1. the speed and efficiency of action to rectify any harm caused or likely to continue to be caused by the commission of the offence;
2. voluntarily reporting the commission of the offence and any concomitant harm to relevant authorities;
3. the taking of action to address the causes of the offence, such as designing and installing improved pollution prevention and control systems; and
4. (an action not relevant here), the personal appearance of corporate executives in court.
I find that the defendant has expressed genuine remorse for the offence. He has accepted responsibility for his actions. He has taken action to address the causes of the offence (as to which see [92] above).
The prosecutor submitted, relying on Plath at [148], that the consideration of good character assumes less relevance for offences under the WM Act and environmental offences generally because such offences are typically committed by persons of prior good character. I find the defendant to be a person of otherwise good character. However, having regard to the nature of the offence and the importance of general deterrence in sentencing for the offence, I give less weight to this factor. [25]
In relation to the matters of Grant Barnes, NRAR v Hogan (Griffith Local Court (NSW), Love LCM, 4 February 2022, unrep) (Hogan) and the matter of Schwager (Narrabri Local Court (NSW), 26 November 2021, unrep), more material was provided to the Court.
In Hogan, the defendants, as holders of an approval, pleaded guilty to two counts against s 91G(2) relating to breaches of a bore extraction limit in the approval. The extraction was also from the Deep Groundwater Source. The over-extraction was 511.06ML in the 2018/2019 water year, and 10.25ML in 2019/2020 water year. Mr Hogan was fined $10,000 in respect of the 2018/2019 water year charge, and $3,000 in respect of the 2019/2020 water year charge. Mrs Hogan was fined $3,000 in respect of the 2018/2019 water year charge, and $1,000 in respect of the 2019/2020 water year charge. An order that a moiety be paid directly to the prosecutor, a publication order and a costs order (in the amount of $2,673.004) were made against the defendants. Neither defendant had a prior criminal record, and their concern for the environment was accepted. Magistrate Love found that the offending was reckless as Mr Hogan had forgotten about the bore extraction limit, and there were no measures in place to prevent the offences. A request that the matter be dealt with by way of an order under s 10 of the CSP Act (which provides for dismissal of charges and conditional discharge) was rejected.
The defendant provided information about the matter of Schwager to the Court by way of a screenshot of the prosecutor's website. According to the screenshot, the defendant pleaded guilty to, and was convicted of three offences against s 91G(2) for exceeding the extraction limit attached to their works approval. The over-extraction was more than 1,200ML over a three-year period between 2017 and 2020. The water was taken during a period of severe drought and involved accessing the Lower Namoi Groundwater Source, an at-risk groundwater source. The defendant was fined $10,000 in total, $3,000 for the first offence, $5,000 for the second, and $2,000 for the third. A publication order and a costs order in the amount of $9,476.20 were also made.
Both the prosecutor and defendant referred to cases in this Court involving offences against other provisions of the WM Act, including Water NSW v Barlow [2019] NSWLEC 30 (Preston CJ); Grant Barnes, Chief Regulatory Officer Natural Resources Access Regulator v Budvalt Pty Ltd; Harris [2020] NSWLEC 113 (Moore J) (Budvalt & Harris); O'Haire; Grant Barnes, Chief Regulatory Officer Natural Resources Access Regulator v Maules Creek Coal Pty Ltd [2021] NSWLEC 135 (Pain J) (Maules Creek Coal); and Thompson.
In Water NSW v Barlow, the defendant pleaded guilty to one offence against s 336C(1) of the WM Act for taking water during an embargo for which the maximum penalty was $247,500 and a further penalty of $66,000 for each day the offence continued. The defendant also pleaded guilty to two offences against s 91I(2) of the WM Act for taking water when metering equipment was not operating properly for which the maximum penalty for an individual was $247,500. The offending conduct took place between the periods 16 May 2015 and 18 May 2015, and 29 May 2015 and 2 June 2015. Preston CJ found that the offence against s 336C(1) was of medium seriousness, and the offences against s 91I(2) of low seriousness. The defendant was fined $86,625 for the s 336C(1) offence, and $48,726 and $54,140 respectively for the first and second s 91I(2) offences.
In Budvalt & Harris, the defendant Budvalt Pty Ltd pleaded guilty to an offence against s 91B(1) of the WM Act in relation to the construction and use of a water channel without holding a water supply work approval authorising the construction or use of that channel. The offending conduct took place between 29 July 2015 and 20 August 2015. The maximum penalty for a corporation was $1,100,000. In weighing the relevant objective and subjective factors, Moore J considered that the appropriate starting penalty for the offence was $280,000. Upon application of a 10% discount for the guilty plea, the penalty imposed was $252,000.
In O'Haire, the defendant pleaded guilty to eight offences against s 60C(2) of the WM Act for taking water from a water source otherwise than in accordance with the water allocation for the defendant's WAL. The offending conduct took place over several periods, the first seven offences being in the period between 12 April 2016 and 22 May 2018, and the eighth offence in the period between 14 September 2018 and 4 March 2019. The maximum penalty for an individual was $247,500 for the first seven offences, and $500,500 for the eighth offence (as a result of subsequent amendments to the WM Act which commenced on 27 June 2018 (see above at [34])). Pepper J considered the offences to be in the moderate range of objective seriousness. The penalty imposed was $21,250 for the first offence, $15,000 for each of the following four offences, and $20,000 for the eighth offence, a total of $131,250.
In Maules Creek Coal, the defendant pleaded guilty to an offence against s 60A(2) of the WM Act for taking water, being 1,000ML, over the period between 1 July 2016 and 30 June 2019 without a WAL. The maximum penalty for the offence for a corporation was $1,100,000. Pain J considered the objective seriousness of the offence to be at the low end of the medium range. The defendant was fined $187,400 for the offence.
In Thompson, the defendant pleaded guilty to offences against ss 60A(4) and 91I(2) of the WM Act for taking water from a water source regulated by the WM Act as a holder of a WAL, otherwise than as authorised by that WAL, and taking water while metering equipment was not operating properly. The offences arose out of the same, common or related conduct that took place between 21 April 2017 and 3 May 2017. The maximum penalty for an individual for each of the offences was $247,500. In considering the objective circumstances of the offences, Pepper J found the seriousness to be in the low range. The defendant was fined $37,500 for the s 60A(4) offence, and $20,000 for the s 91I(2) offence.
I have had regard to the sentences imposed by this Court for offences against the WM Act in each of the above cases. However, I recognise that each involved a different offence, and different facts in relation to the objective and subjective circumstances of the offence. Accordingly, it is not a useful exercise to compare only the amount of the fine imposed. [38] However, I have taken these cases into account insofar as they provide guidance relating to the sentence imposed where there is a degree of comparability with the offending conduct to be assessed. [39]
I have also had regard to the fact that in Water NSW v Barlow, Budvalt & Harris, O'Haire, Maules Creek Coal, and Thompson, the offending conduct either took place or commenced to take place prior to 27 June 2018, when the maximum penalty for Tier 2 offences under s 363B(b) of the WM Act was increased. [40] In O'Haire, one of the eight offences was committed after 27 June 2018, and was therefore sentenced in accordance with the maximum penalty of $500,500 for an individual. In Maules Creek Coal, although the offending conduct occurred over a period between 1 July 2016 and 30 June 2019, the prosecutor abandoned its original submission that the applicable maximum penalty for a corporation was 18,200 penalty units, and instead accepted that the applicable maximum penalty was 10,000 penalty units, being the maximum penalty prior to 27 June 2018. In applying the principle enunciated in Muldrock at [31], I find that the increase in the maximum penalty for Tier 2 offences under the WM Act indicates that sentences for those offences, such as in the present case, should be increased. Accordingly, the sentences imposed in the above decisions of this Court are of relatively limited comparability.
The material provided by the defendant in relation to enforceable undertakings entered into by the prosecutor and penalty infringement notices issued by the prosecutor do not assist in the sentencing exercise in this case. In the case of the enforceable undertakings, the factual background to each of the undertakings is obscure. Likewise, in the case of the penalty infringement notices, little was demonstrated in relation to the circumstances of the offending.
During the hearing, the Court drew to the parties' attention the decision in Chief Executive, Office of Environment and Heritage v Parrish & Son Pty Ltd [2020] NSWLEC 47 (Parrish) at [127]-[133] (Moore J). In Parrish, Moore J said at [127]-[133]:
127. Mr Johnson submitted that I should have regard to the fact that the Prosecutor had had the option of having this matter dealt with summarily in the Local Court and that, as a consequence, I should have regard to the far lower jurisdictional limit of the Local Court as to the extent of penalty able to be imposed on the Company. In support of this proposition, he cited what had been said in Harris v Harrison [2014] NSWCCA 84, by Simpson J (as her Honour then was), at [92] and [93]:
…
128. To the extent potentially relevant, it is clear that I am to do so. However, for a better understanding of the proposition which her Honour had derived from the decision in R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 (Doan), it is appropriate to turn to the relevant portion of that decision to obtain a more fine-grained understanding of the proposition providing the foundation for her Honour's observation. In Doan, Grove J (Spigelman CJ and Kirby J agreeing) said, at [42]:
42 It was submitted by the Crown that these cases do not expose any reasoning underlying a principle that the availability of summary jurisdiction and lower ceiling of penalty should be a matter of mitigation. The cases reveal that the circumstance can, rather than should, be a matter of mitigation. All offenders in the relevant situation would have lost the chance of being dealt with within the restrictions applicable in the summary court and for that reason that chance should not be ignored. The significance of the loss of that chance would undoubtedly vary from case to case and in some cases it would contribute to mitigation, in others, not. I see no reason to depart from the approach taken in those cases but they are authority for the proposition that it is a matter to be taken into account and not a universal factor for reduction of sentence. [emphasis added]
129. First, it is to be observed that all prosecutions for a breach of the statutory provision here engaged could be dealt with summarily in the Local Court. It is therefore self-evident that that position cannot be accepted as providing some universal factor of mitigation on the penalty that would otherwise be appropriate to be imposed. That is also clearly reflected in the above passage from Doan.
130. What is required is an examination of whether there is some basis to conclude that the particular circumstances of this prosecution are such that it might have been appropriate for the Prosecutor to contemplate commencing proceedings in the Local Court rather than in this Court.
131. Mr Johnson advanced no specific submission pointing to factors which could lead me to such a conclusion.
132. My own examination of all of the matters set out in the Statement of Agreed Facts lead me to the conclusion that there are no obvious circumstances warranting such a conclusion. The Company has been in business, as submitted by Mr Johnson and as disclosed in the ASIC records in evidence, for in excess of two decades. The business is that of land clearing. The appropriateness of prosecution in this Court for the purposes of sending a general deterrence message to others engaged in this industry is dealt with elsewhere in this decision and it is unnecessary to repeat it here.
133. However, I am satisfied that there are no circumstances concerning this Defendant and its offending conduct that would warrant me mitigating the penalty which I otherwise consider appropriate to impose because of the jurisdictional limit which would have applied had the Prosecutor considered it appropriate to have this offending conduct dealt with summarily in the Local Court. I therefore reject Mr Johnson's submission in this regard.
Here, unlike in Parrish, the defendant made submissions relating to factors suggesting that the proceedings ought to have been commenced in the Local Court. The defendant submitted that, as in Harris v Harrison at [96], the known circumstances of the offence and the low objective gravity of the offence tended to indicate that it should have been prosecuted in the Local Court, and pointed to the maximum penalty there available. It was submitted that the offending had all the hallmarks of a prosecution in the Local Court, namely that:
1. the objective seriousness of the offence here is lower than in prosecutions in the Local Court (such as Hogan (4 February 2022, Griffith Local Court, Love LCM) and the matter of Schwager (26 November 2021, Narrabri Local Court)), particularly in relation to the quantity of over-extraction;
2. the offence was a single offence;
3. the defendant had no prior record;
4. the defendant had paid for the water taken prior to extraction;
5. the prosecutor was not seeking orders which could not be imposed by the Local Court such as those under s 353G(1)(b) or (c) of the WM Act (see s 353G(2)); and
6. the election to prosecute in this Court increased costs for the defendant and exposed him to higher costs should he be ordered to pay the prosecutor's costs.
The prosecutor took issue with the defendant's characterisation of the objective seriousness of the offence, a matter which I have considered above at [87]. The prosecutor noted that in Parrish the objective seriousness of the offence was held to be at the top of the low range which the prosecutor considered to be of lower seriousness than the offending in these proceedings. The prosecutor submitted that merely because offending is characterised as in the low range does not mean that significant weight would be placed on the election to proceed in this Court, and that while the matter is a relevant consideration, it does not operate universally in mitigation as the reasoning in Doan and Palmer makes clear. The prosecutor submitted that it was appropriate for the prosecution to have been commenced in this Court because:
1. the Court is a specialist court with experience dealing with the complexities associated with the operation of groundwater sources;
2. there has been no decision of the Court on s 91G(1) of the WM Act; and
3. it sends a message of general deterrence to other irrigators.
That the matter could have been prosecuted in the Local Court is only relevant if I determine that the penalty for the offence exceeds the jurisdictional limit of the Local Court; by analogy, Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [111] (Johnson J, McClellan CJ at CL agreeing).
Budvalt & Harris was decided after Parrish. In that case, the defendant Budvalt Pty Ltd submitted that the Court should have regard to the possibility of having the matter dealt with summarily in the Local Court as a mitigating feature and that, as a consequence, the Court should have regard to the far lower jurisdictional limit of the Local Court as to the extent of penalty to be imposed (see at [146], [150]). Moore J held at [153] that there were no obvious circumstances warranting such a conclusion as the defendant had been in business under its present ownership for some 17 years, and as an irrigator for about three decades. His Honour held at [154]-[155] that the matter was appropriate for prosecution in this Court for the purposes of sending a general deterrence message to others in the industry, and that there were no circumstances concerning the defendant and its offending conduct that would warrant mitigating the penalty that would otherwise be imposed because of the jurisdictional limit had the offending conduct been dealt with summarily in the Local Court.
Ultimately, I do not attach particular weight, as a mitigating factor on penalty, to the election by the prosecutor to proceed in this Court. I am unable to form a view in light of the limited material before me as to the objective seriousness and mitigating circumstances of the matters prosecuted in the Local Court. I accept that the offence here was a single offence, that the defendant has no prior record, that he paid for the water taken prior to extraction, that the prosecutor has not sought orders unavailable in the Local Court, and that the election to prosecute in this Court is likely to have increased costs for the defendant. However, none of these matters establishes that it was inappropriate in the circumstances of this case for the prosecution to have been brought in this Court, a specialist court, for the purpose of sending a message of general deterrence.
For the reasons given by Pain J in Sibelco and adopting what was said by Duggan J in Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 at [84], I will make a publication in the terms in Annexure A to these reasons for decision.
Environment Protection Authority v Hughes [2019] NSWLEC 108 at [98] (Pepper J).
Natural Resources Access Regulator v Tony Thompson [2022] NSWLEC 48 (Thompson) at [133] (Pepper J); Environmental Protection Authority v Crush and Haul Pty Ltd [2022] NSWLEC 113 (Crush and Haul) at [85]-[86] (Preston CJ).
Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 at [23] (Craig J).
Crush and Haul at [91].
s 21A(3)(e).
s 22(1) and (1A) of the CSP Act.
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [152]-[155], [160] (Spigelman CJ, Wood CJ at CL, Foster AJA and Grove and James JJ agreeing).
Plath at [148]; Environment Protection Authority v Gammasonics Institute for Medical Research Pty Ltd [2019] NSWLEC 190 at [63]-[64] (Duggan J).
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 472 (Mason CJ, Brennan, Dawson and Toohey JJ), 485-486 (Wilson J), 490-491 (Deane J), 496 (Gaudron J); Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ); R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15] (Spigelman CJ, McLellan CJ at CL, Grove, Barr and Bell JJ agreeing).
Axer at 359 (Mahoney JA), 367 (Badgery-Parker J, Finlay J agreeing); Camilleri's Stock Feeds at 701 (Kirby P, Campbell and James JJ agreeing).
Bentley at [139]-[141] citing R v Rushby [1977] 1 NSWLR 594 at 597-598 (Street CJ); Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354 (Stein J); and Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 at [85] and [93] (Lloyd J).
Bentley at [149], [157].
Environment Protection Authority v Ravensworth Operations Pty Limited [2012] NSWLEC 222 at [48] (Pain J).
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 (Ryan) at [118] (Kirby J), citing R v M (CA) [1996] 1 SCR 500 at 558 (Lamer CJ).
Ryan at [46] (McHugh J).
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [48]-[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 (Barbaro) at [40] (French CJ, Hayne, Kiefel and Bell JJ).
Barbaro at [41].
Barbaro at [41].
See Hili at [54].
De La Rosa at [304]; Hili at [54].
Ditchfield at [72] (Preston CJ).
Budvalt Pty Ltd & Harris at [156].
Water Management Amendment Act 2018 (NSW) s 2, Sch 1, items [66]-[67].
s 6 of the Fines Act 1996 (NSW) (Fines Act).
R v Crombie [1999] NSWCCA 297 (Wood CJ at CL, Simpson J agreeing), R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 (Grove J, Spigelman CJ and Kirby J agreeing) (Doan), R v Palmer [2005] NSWCCA 349 (Hall J, Grove J and Smart AJ agreeing) (Palmer), Bonwick v R [2010] NSWCCA 177 (Davies J, McLellan CJ at CL and James J agreeing) and Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 (Simpson J, Hall and Schmidt JJ agreeing).
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: 03 March 2023