NSWNSWLEC

Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Salvestro

[2023] NSWLEC 34

Land and Environment Court (NSW)|2023-01-31|Before: Pepper J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2023-01-31

Before

Pepper J

Catchwords

(2006) 145 LGERA 234 Bonwick v R [2010] NSWCCA 177 Bourke v R [2010] NSWCCA 22
(2010) 199 A Crim R 38 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280
(2012) 192 LGERA 314 Chief Executive, Office of Environment & Heritage v Orica Pty Ltd
Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114

Source

Original judgment source is linked above.

Catchwords

(2006) 145 LGERA 234 Bonwick v R [2010] NSWCCA 177 Bourke v R [2010] NSWCCA 22(2010) 199 A Crim R 38 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280(2012) 192 LGERA 314 Chief Executive, Office of Environment & Heritage v Orica Pty LtdEnvironment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114(2019) 242 LGERA 241 Church v R [2012] NSWCCA 149 Croaker v R [2008] NSWCCA 232(2010) 200 A Crim R 1 Elias v The Queen [2013] HCA 31(2006) 148 LGERA 299 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242(1989) 167 CLR 348 Johnson v The Queen [2004] HCA 15(2004) 78 ALJR 616 Kearsley v The Queen [2017] NSWCCA 28(2017) A Crim R 233 Markarian v The Queen [2005] HCA 25(2005) 228 CLR 357 Mill v The Queen [1988] HCA 70(1988) 166 CLR 59 Mouawad v The Hills Shire Council [2013] NSWLEC 165(2013) 199 LGERA 28 Muldrock v The Queen [2011] HCA 39(2017) 96 NSWLR 633 Plath v Rawson [2009] NSWLEC 178(2009) 170 LGERA 253 Postiglione v The Queen [1997] HCA 26

Judgment (59 paragraphs)

[1]

nment Protection Authority v Rands [2019] NSWLEC 23 Environment Protection Authority v Ravensworth Operations Pty Limited [2012] NSWLEC 222 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Grant Barnes, Chief Regulatory Office, Natural Resources Access Regulator v O'Haire [2020] NSWLEC 158 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 Maules Creek Coal Pty Ltd [2021] NSWLEC 135 Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Beltrame [2023] NSWLEC 18 Grant Barnes, NRAR v Schwager (unreported, Naarrabri Local Court, 26 November 2021) Grant Barnes, NRAR v Hogan (unreported, Griffith Local Court, 4 February 2022) Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Harris v Harrison [2014] NSWCCA 84 Harrison v Perdikaris [2015] NSWLEC 99 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Kearsley v The Queen [2017] NSWCCA 28; (2017) A Crim R 233 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Natural Resources Access Regulator v Thompson [2022] NSWLEC 48 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Palmer v R [2005] NSWCCA 349 Parente v R [2017] NSWCCA 284; (2017) 96 NSWLR 633 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Crombie [1999] NSWCCA 297 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Depoma [2003] NSWCCA 382 R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 R v Dodd (1991) 57 A Crim R 349 R v El Masri [2005] NSWCCA 167 R v MAK; R v K [2006] NSWCCA 381; 167 A Crim R 159 R v Nichols (1991) 57 A Crim R 391 R v Obeid (No 12) [2016] NSWSC 1815 R v Oliver (1980) 7 A Crim R 174 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 Rees v The Queen [2012] NSWCCA 47 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Water NSW v Barlow [2019] NSWLEC 30 WaterNSW v Harris (No 3) [2020] NSWLEC 18 Weininger v R [2003] HCA 14; (2003) 212 CLR 629 Wingecarribee Shire Council v O'Shanassy (No 6) [2015] NSWLEC 138 Zreika v R [2012] NSWCCA 44; (2012) A Crim R 460 Category: Sentence Parties: Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator (Prosecutor) Dean Troy Salvestro (Defendant) Representation: Counsel: M C O'Sullivan (Prosecutor) K H Averre (Defendant) Solicitors: Crown Solicitor's Office (Prosecutor) Hunt & Hunt Lawyers (Defendant) File Number(s): 2021/119175; 2021/119176; 2021/119177; 2021/119178; 2021/119179 Publication restriction: Nil

[2]

Salvestro Pleads Guilty to Five Water Offences

The defendant, Dean Salvestro has pleaded guilty to five offences against ss 91G(2) and 60C(2) of the Water Management Act 2000 ("WMA"). The offences were committed over five time periods between 1 July 2017 and 30 June 2020 inclusive, at a farming property in Warrawidgee NSW ("Warrawidgee Station").
Warrawidgee Station comprises of Lot 1 of DP 756037, Lot 45 of DP 756037, Lot 44 of DP 756037, Lot 47 of DP 756037, Lot 49 of DP 756037, Lot 52 of DP 756037, Lot 50 of DP 756037, Lot 48 of DP 756037, Lot 2 of DP 1086916, Lot 39 of DP 756037, Lot 7 of DP 756037, Lot 2 of DP 530979, Lot A of DP 181463, Lot B of DP 756037, Lot 36 of DP 756037, Lot 37 of DP 756037, Lot 38 of DP 756037, Lot 1 of DP 532284, Lot A of DP 378360, Lot 1 of DP 1105641, Lot 2 of DP 1105641, and Lot 3 of DP 1105641.
Salvestro has pleaded guilty to the following offences under the WMA. Charge Offence Date Section of WMA 1 Contravene term or condition of approval (approval holder) 1 July 2017 to 30 June 2018 (inclusive) s 91G(2) 2 Contravene term or condition of approval (approval holder) 1 July 2018 to 30 June 2019 (inclusive) s 91G(2) 3 Contravene term or condition of approval (approval holder) 1 July 2019 to 30 June 2020 (inclusive) s 91G(2) 4 Contravene term or condition of approval (approval holder) 1 July 2019 to 30 June 2020 (inclusive) s91G(2) 5 Take water not in accordance with access licence allocation 20 September 2019 to 31 October 2019 (inclusive) s 60C(2)

[3]

The Legislative Regime Creating the Offences

Section 91G of the WMA creates an offence of contravening the terms and conditions of an approval: 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. (2) If any term or condition of an approval is contravened by any person, each holder of the approval is guilty of an offence. Tier 2 penalty…
Section 60C of the WMA also creates an offence for taking water for which there is no, or insufficient, water allocation: 60C Taking water for which there is no, or insufficient, water allocation (1) Offences involving allocations under a single access licence A person who takes water from a water source to which this Part applies otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source is authorised and - (a) who intentionally or negligently fails to ascertain whether the taking of water is in accordance with the water allocation, or (b) who knows or has reasonable cause to believe that the taking of the water is not in accordance with the water allocation, is guilty of an offence. Tier 1 penalty. (2) A person who takes water from a water source to which this Part applies otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source is authorised is guilty of an offence. Tier 2 penalty.

[4]

Salvestro Operates Warrawidgee Station

Many of the basal facts forming the basis of this sentencing judgment were agreed to by the parties in an agreed statement of facts ("ASOF").
Salvestro, along with his wife Kiara Salvestro and other family members, own and operate Warrawidgee Station, a family farming business. Salvestro is a third generation farmer who manages approximately 12,000 ha of land within the Murrumbidgee irrigation area of Griffith. Salvestro is a shareholder and director of the farming business operated through Warrawidgee Station Pty Ltd.
At all relevant times, Salvestro was the person ultimately responsible for managing the farming business carried out at Warrawidgee Station. This included "running the staff", crop planning, irrigation, and all day-to-day operations.
Warrawidgee Station was primarily used to cultivate grapes, cotton, wheat, canola, barley and corn. A small number of livestock (approximately head of 200 cattle) were kept on the property each year.
Salvestro irrigated the crops on Warrawidgee Station using a combination of surface water obtained from Murrumbidgee Irrigation (a privately owned irrigation company which provides irrigation and drainage services in the area) and groundwater extracted from the Lower Murrumbidgee Deep Groundwater Source by way of groundwater bores.
At all material times, Salvestro allowed a variety of people, including his brother-in-law and the managers on the farm, to operate the bores on Warrawidgee Station on an as needed basis.

[5]

Water Sharing Plan

Warrawidgee Station is located within the water management area known as the "Lower Murrumbidgee Groundwater Sources". The groundwater sources located beneath Warrawidgee Station relevantly included the "Lower Murrumbidgee Deep Groundwater Source".
The current water sharing plan for the groundwater sources is the Water Sharing Plan for the Murrumbidgee Alluvial Groundwater Sources Order 2020.
This plan was made pursuant to s 50 of the WMA and contains provisions regarding water allocations and other water rules in the water management area.
Under the NSW Government's NSW Non-Urban Water Metering Policy, the Lower Murrumbidgee Deep Groundwater Source was at all material times categorised as an "at-risk" groundwater source for which additional metering was needed to manage the risk of over extraction. This means that all water users taking licensed water from the groundwater source are required to have a meter, regardless of infrastructure size (see Water Management (General) Regulation 2018, cl 231(4)(b) and Sch 9).

[6]

Application of Part 3 of Chapter 3 of WMA

On 29 September 2006 Proclamation No 598 of 2006 was published in Gazette No 120. The effect of this Proclamation was to apply Pt 2 of Ch 3 of the WMA to the Lower Murrumbidgee Groundwater Sources in relation to all categories and subcategories of access licences.
On 29 September 2006 Proclamation No 599 of 2006 was published in Gazette No 120. The effect of the Proclamation was also to apply Pt 3 of Ch 3 of the WMA to the Lower Murrumbidgee Groundwater Sources in relation to all water use approvals, and water supply work approvals, from 1 October 2006.

[7]

Water Access Licence 11766 and Approval 40CA403568

Salvestro was a co-holder of Water Access Licence ("WAL") 11766 (reference number 40AL403566) ("WAL 11766"). WAL11766 entitled the holder to shares of water in the Lower Murrumbidgee Deep Groundwater Source.
WAL 11766 nominated Combined Water Supply Work and Use Approval 40CA403568 ("Approval 40CA403568"). Salvestro was a co-holder of Approval 40CA403568.
A water supply work is the means by which the licence holders extract water from a water source. At all relevant times, a water supply work, including a pump and other necessary related water infrastructure, required approval under the WMA.

[8]

Water Supply Works under Approval 40CA403568

From 1 July 2017 to 30 June 2020, Approval 40CA403568 authorised the construction and use of the following water supply works on Warrawidgee Station: 1. a groundwater bore on Lot 52 of DP 756037 (Work 1 of 40CA403568); 2. a groundwater bore on Lot 2 of DP 1105641 (Work 2 of 40CA403568); 3. a groundwater bore on Lot 1 of DP 1105641 (Work 3 of 40CA403568); and 4. a groundwater bore on Lot 86 of DP 756039 (Work 4 of 40CA403568).
On 3 October 2017 Approval 40CA403568 was amended to authorise the construction and use of an additional water supply work, namely, a groundwater bore on Lot 37 of DP 756039 (Work 5 of 40CA403568).

[9]

Bore Extraction Limit Charges

Prior to 20 August 2015, Approval 40CA403568 did not contain a condition expressly limiting the amount of water able to be extracted under that Approval. The total amount of water that was permitted to be extracted at Works 2 to 4 (identified above) during any water year was determined based upon the entitlements (share components) attached to WAL 11766.
Approval 40CA403568 and WAL 11766 must be considered together.
On 20 July 2015, following the transfer of additional entitlements to WAL 11766, the Department of Primary Industries - Water ("DPI-Water") sent a notice of intent to the holders of Approval 40CA403568, advising them of a proposed amendment to the conditions of the Approval to include a bore extraction limit condition of 9,500 ML per year. Condition DK2405-0006 was inserted into, and remained a condition of, Approval 40CA403568 during the period from 1 July 2017 to 16 June 2019.
On 17 June 2019 condition DK2405-0006 was deleted and replaced with a condition that provided that the total volume of groundwater extracted from all water supply works could not exceed 12,500 ML per year. Written notification was sent to the Approval holders, notifying them of the new bore extraction limit condition, namely, condition DK2405-00047. Condition DK2405-00047 remained in force from 17 June 2019 to 30 July 2020.

[10]

The Offending Conduct (Charges 1 to 3)

Five periods of offending conduct formed the bases of the five charges.
In relation to charge 1, during the period 1 July 2017 to 30 June 2018, condition DK2405-0006 of Approval 40CA403568 (which limited extraction to 9,500 ML per year) was contravened by a person insofar as 10,466.07 ML of water was extracted from the Lower Murrumbidgee Deep Groundwater Source. The amount of water extracted from each bore was as follows: Period of pumping Extraction site Amount of water extracted Cumulative amount of water extracted during 2017/2018 water year 1 July 2017 to Work 2 4,520.85 ML 4,520.85 ML 30 June 2018 1 July 2017 to Work 3 3,337.87 ML 7,858.72 ML 30 June 2018 1 July 2017 to Work 4 2,607.35 ML 10,466.07 ML 30 June 2018

[11]

This involved the over extraction of 966.07 ML of water.
In relation to charge 2, during the period 1 July 2018 to 30 June 2019, condition DK2405-00047 of Approval 40CA403568 (which limited extraction to 12,500 ML per year) was contravened by a person in that a total of 15,392.05 ML of water was extracted from the Lower Murrumbidgee Deep Groundwater Source. The amount of water extracted by each bore was as follows: Time period Extraction site Amount of water extracted Cumulative amount of water extracted during 2018/2019 water year 1 July 2018 to Work 2 5,083.35 ML 5,083.35 ML 30 June 2019 1 July 2018 to Work 3 4,589.09 ML 9,672.44 ML 30 June 2019 1 July 2018 to Work 4 4,534.64 ML 14,207.08 ML 30 June 2019 1 July 2018 to Work 5 1,184.97 ML 15,392.05 ML 30 June 2019

[12]

This involved the over extraction of 2,892.05 ML of water.
In relation to charge 3, during the period 1 July 2019 to 30 June 2020, condition DK2405-00047 of Approval 40CA403568 (which limited extraction to 12,500 ML per year) was contravened by a person in that a total of 15,175.03 ML of water was extracted from the Lower Murrumbidgee Deep Groundwater Source. The amount of water extracted by each bore was as follows: Time period Extraction site Amount of water extracted Cumulative amount of water extracted during 2019/2020 water year 1 July 2019 to Work 2 4,021.89 ML 4,021.89 ML 30 June 2020 1 July 2019 to Work 3 3,488.66 ML 7,510.55 ML 30 June 2020 1 July 2019 to Work 4 4,250.08 ML 11,760.63 ML 30 June 2020 1 July 2019 to Work 5 3,414.4 ML 15,175.03 ML 30 June 2020

[13]

This involved the over extraction of 2,675.03 ML of water.

[14]

Water Access Licence 11805 and Approval 40CA403680

At all relevant times, Salvestro was a co-holder of Combined Water Supply Works and Water Use Approval 40CA403680 ("Approval 40CA403680") which authorised the use of a single water supply work to extract water from the Lower Murrumbidgee Deep Groundwater Source for irrigation purposes.
Approval 40CA403680 was nominated under WAL 11805. That WAL was held by John Salvestro and Valda Salvestro only (that is, not Salvestro).
From 1 July 2019 to 30 June 2020, Approval 40CA403680 authorised the construction and use of a single groundwater bore on Lot 45 of DP 756037 (Work 1 of 40CA403680). The bore was in use during that period.
At all relevant times, WAL 11805 had a "zero share" component, which meant that the WAL did not entitle the holders to any permanent shares in available water in the Lower Murrumbidgee Deep Groundwater Source. Accordingly, WAL 11805 did not permit the taking of water from the water source unless and until a water allocation or a share component was assigned (traded) to the licence.
From 1 July 2019 to 30 June 2020, it was a condition (condition DK0175-00010) of Approval 40CA403680 that the volume of groundwater extracted annually from the water supply work authorised by the approval must not exceed 1500 ML. A notice of intent and a final notice of imposition of the condition were sent to the holders of Approval 40CA403680 on 20 July and 20 August 2015, respectively.

[15]

The Offending Conduct (Charges 4 and 5)

In relation to charge 4, during the period 1 July 2019 to 30 June 2020, condition DK1075-00010 in Approval 40CA403680 (which limited extraction from the works to 1,500 ML per year) was contravened by a person in that a total of 1,537.19 ML of water was extracted from the Lower Murrumbidgee Deep Groundwater Source. This involved the over extraction of 37.19 ML of water.
In relation to charge 5, during the period from 1 July to 7 November 2019, the only temporary water allocations to which the holder of WAL 11805 became entitled were as follows: Date granted Trade application no. Amount 24 October 2019 SWC78415 (assigned to WAL 11805 on 16 September 2019) 500 ML 5 November 2019 SWC783214 (assigned to WAL 11805 on 18 October 2019) 500 ML 7 November 2019 SWC783718 (assigned to WAL 11805 on 31 October 2019) 450 ML

[16]

During the period 2 September 2019 to 31 October 2019, Salvestro used 40CA403680 Work 1, being the water supply work nominated by WAL 11805, to take a total amount of 782.63 ML of water from the Lower Murrumbidgee Deep Groundwater source otherwise than in accordance with the water allocation for that WAL by: 1. continuous pumping between 2 to 5 September 2019, extracting a total of 63.48 ML, despite there being no water allocation credited to WAL 11805 at that time; 2. continuous pumping between 27 September and 31 October 2019, extracting a total of 719.15 ML, despite there being: 1. no water allocation credited to WAL 11805 prior to 24 October 2019; and 2. insufficient water allocation credited to WAL 11805 from 25 to 31 October 2019.

[17]

Water Accounting System

The Water Accounting System ("WAS") administered by WaterNSW (and which may be accessed by holders of WAL) stores account balances, data obtained from meter readings, customer water orders, and allocations of water. This information is used by WaterNSW and Natural Resources Access Regulator ("NRAR") to monitor WAL holders' compliance with the rules and limits placed on water extraction.
Through the WAS, Water Account Statements can be generated and downloaded at any time by WaterNSW and NRAR. Water Account Statements are produced in respect of an individual WAL and record transactions that have occurred in relation to that WAL over a given time period. They also record the Water Allocation Account balance for the WAL, being the water currently available for extraction. However, the WAS does not display a bore's extraction limit (as imposed by Work Approvals) or the user's remaining available water in respect of that extraction limit.
Customers of WaterNSW, including WAL holders and Water Use Approval holders, are able to access online Water Account Statements. Thus a WAL holder can access information about their water usage and water account balance at any time on WaterNSW's publicly available "internet Water Accounting System" (iWAS). However, as mentioned above, iWAS does not display a bore's extraction limit.

[18]

Salvestro Participates in a Voluntary Interview with NRAR

Salvestro was first notified of breach by him of the WMA in late May 2020.
On 10 September 2020 he participated in a voluntary interview with Investigator Alex Bowlay. During that interview, with respect to Approval 40CA403568 (relating to charges 1-3), Salvestro said that: 1. third parties, such as his brother-in-law and farm managers, would operate the bores on Warrawidgee Station and that starting and stopping the bores had "not been something that I've disciplined"; 2. he used the water taken by the bores on a variety of crops, including cotton, grapes, wheat and corn; 3. wheat was the highest demand crop being grown on Warrawidgee Station between 2017 to 2020, because "during the drought years you produce more wheat as it is the best value…probably in wetter years you'd grow more cotton"; 4. there was no training for the workers about turning the pumps on and they did not know how to read the meter; 5. regarding the review of the bore extraction limit condition in Approval 40CA403568 that resulted in an increase from 9,500 ML per year to 12,500 ML per year, "what happened was that we went to buy some water. Some - more ground water and asked to put it on the licence and got told that we couldn't do it at the time, and they were going to do a review and see if they could increase it. We put it on another licence basically, someone else's licence. That's when I think that review took place"; and 6. he did not keep any logbook or records of when he took water. Salvestro stated that, "there's not really any way of estimating which (water channels) goes where" and that he would "just look at an overall figure".
With respect to Approval 40CA403680 (relating to charges 4 and 5), Salvestro stated during the interview that: 1. the water extracted using Work 1 of 40CA403680 was used to grow a variety of crops including cotton, wheat, rice, and corn, but not grapes; 2. he had been aware of the bore extraction limit condition attached to this approval; 3. he was aware of how the exceedance of the bore extraction limit in the 2019/20 water year occurred. He stated that he "just basically stuffed up with the bloke that I was meant to switch it off and it pumped for an extra day more than what I anticipated"; 4. he was aware that WAL 11805 had a zero share entitlement. He said, "basically how this account works is…this is a zone 2 bore and the other one is a zone 1 licence. So, what I do, unless I buy from someone else, I usually just transfer it across from the zone 1 and so it's just a timing issue of when you put it across"; and 5. it was common practice only two to three years ago "that if you went in negative you made sure you cleaned it up."

[19]

Evidence Relied Upon by the Parties

As stated above, the parties relied upon an ASOF.
The prosecutor read an affidavit from Prem Kumar, a hydrogeologist, affirmed 5 April 2022.
Salvestro relied upon affidavits from the following persons: 1. himself, affirmed 22 April 2022; 2. Kate Beltrame, his sister, affirmed 22 April 2022; 3. John Broi, a previous Mayor of Griffith and a farmer, affirmed 28 April 2022. Broi has known Salvestro since he was a child; and 4. Mark Zanatta, a qualified agronomist and the Managing Director of Terra Ag, which Salvestro assisted in establishing and in which he remains a shareholder, affirmed 28 April 2022.
In his affidavit, Salvestro deposed to the fact that: 1. in addition to the Salvestro farming business, he was involved in a number of other agricultural businesses (five in total) and is the Deputy Chair of RivCott, a cotton ginning facility; 2. he based the water usage estimation on a range of factors and once the estimation is complete he uses it to create the water budgets for planting and for the purchasing of water; 3. the Salvestro family business is one of the biggest producers of the crops that it grows, especially wheat, in the region; 4. he is a life-long farmer who appreciates and has great respect for the environment; 5. he was "saddened" by the suggestion that he had caused environmental harm "as a result of my production of our food"; 6. it was an "onerous task to determine the meaning and true effect of each correspondence and whether any action is required in response" given the number of bores the family business operates; 7. he was aware that the law governing surface water is different from that concerning ground water. This created "further confusion amongst many farmers as we must be aware and remain up to date with both sets of rules". Moreover, he was aware that most bores had individual rules; 8. previously there were no extraction caps imposed on his red or green bores; 9. he was ultimately responsible for the management of various water licences and accounts, however, he relied upon his administrative assistants, his surface water accounts and his bore iWAS to assist him in ensuring that any important updates have been noted and to understand what water remains available in his respective water accounts; 10. he understood that the bores he managed operated by way of an amount that he was entitled to extract as follows: a. I understood that the reference to an entitlement was a theoretical amount of water I was permitted to take each year from the entire aquifer. I understand that entitlements were also referred to as unit shares, as reflected in the WAL. I knew that the water transferred onto the licence or held on the licence could not exceed the entitlement. b. For any licences with a zero WAL entitlement, I understood that no water could be carried over to the next water year. This meant that water had to be purchased for this licence each time you pumped, or at least in advance of when you intended to pump. If any water was left on the licence at 30 June each year, the water would be forfeited despite the owner having paid for and effectively purchased the water. I understood that this applied to the Green Bore. c. For any licences which did have an entitlement, I understood that you could carry over and pump up to 200% of water entitlement and have up to 300% of the water entitlement in the account, (assuming no water had been pumped from the licence in the previous year), unless a separate extraction limit was imposed on the licence. In saying that, I understood that extraction limits were generally only imposed on "newer" licences or licence which had zero entitlements. I understood that this was applicable to the Red Bores - works 1-5, which, until the commencement of NRAR's investigation, I thought did not have an extraction limit. d. I understood and believed that if you had the entitlement and the available carry over in your account, you could pump the available water up to 200%. e. I understood that the licence water allocation was the amount of water a user was allocated and permitted to actually pump from the aquifer each year. This quantity was subject to change, but for licence water our allocation was generally 100% of our entitlement. In saying that, the 2020/2021 water year was the first time that 100% allocation was not granted, with farmers receiving 70% allocation for bores, being 70% of their entitlements. f. I understood that the cap or the extraction limit attached to a specific licence was the limit of how much water I could take from a particular hole (licence), as mentioned above, I was not aware of any extraction limit in respect of the Red Bores. I understood that the Green Bore had an extraction limit of 1,500ML, because it was a 0 entitlement licence. 1. in April 2015 he instructed Beltrame to purchase and add a further two parcels of entitlements to the red bores of 500 ML and 700 ML, respectively. In mid 2015 he had a conversation with Beltrame to the following effect: Kate: Dean, I have been trying to transfer these parcels of water and have been talking to Tracie from WaterNSW. It seems like we can only transfer the 500ML because transferring both will exceed the liit allowed on the bore. Me: So, we can't do it all? Kate: Well Tracie said we can add the 500ML of entitlements to the licence, but it will change the conditions somehow. Me: How will it impact the bores? As long as it doesn't affect the carry over it should be fine. Kate: I don't really understand what she is saying but I did ask her about the carry over and she said it wouldn't be affected. Me: Okay. If it doesn't affect carry over, I think it should be fine. The carry over is the most important thing for these bores. Add what you can for now and we can work the rest out later. I still want to get the 700ML so I'll see if Stott will let us put it on his bore for a while. I'll talk to him but I am sure he won't have an issue with this. 1. he did not appreciate from this conversation that an extraction cap would be imposed on the red bores following the transfer of the entitlements. It was his understanding that only new bores and zero entitlement bores were the subject of an extraction cap. Thus he erroneously believed that any reference to "extraction limit" in the context of the red bore was a reference to the share entitlement amount. He did not recall viewing any correspondence to or from WaterNSW or the Department in respect of the imposition of an extraction limit in respect of the red bores; 2. had he known that transferring the entitlements would have resulting in the imposition of an extraction limit he would not have sought to do so; 3. when examining his iWAS account he incorrectly understood that he had water available in the account which he was entitled to pump in accordance with the works approval. The extraction limit was not referred to in his iWAS account and the "water available" figure on the account was misleading insofar as it reflected the total sum of water attached to the relevant bore. There was no way to clearly assess what he has used at a particular bore site in the iWAS account until the quarterly meter reads are conducted and the iWAS account is updated by WaterNSW; 4. he was aware that because the green bore was a zero WAL bore, water had to be transferred into the account before it could be pumped. He could transfer water into this account from WAL 11766 because he was permitted to transfer from a Zone 1 bore to a Zone 2 bore. The bore had an extraction cap of 1,500 ML; 5. in late August to early September 2019 he spoke to his water broker asking him to find 1000 ML of Zone 2 water to add to WAL 11805. On 16 September 2019 he submitted an application through his broker to WaterNSW to transfer 500 ML of temporary Zone 2 water to Access Licence 40AL403678 (the first transfer). It was erroneously rejected. A second transfer of 500 ML was prepared but not proceeded with until the issue surrounding the rejection of the first transfer was resolved. On 24 October 2019 the first transfer was finally approved and the water was transferred to the account that day. On 5 November 2019 the second transfer was approved and the water the subject of that application was transferred into the account. However, from 2 September 2019 to 3 February 2020 1,537.19 ML was extracted from the green bore, including 782.63 ML from 2 September to 31 October 2019. From 2 September to 23 October 2019, 632.13 ML; 6. while he accepts "full responsibility for each of the charges 1-5 outlined above" the erroneous initial rejection of the first transfer "explains why there was a delay between the allocation assignment of water on the WAL and the extraction of the water". He was under the impression that the transfer would have been completed and that the water had been added to the account. Had the first transfer been approved by WaterNSW, there would have been an over extraction of 63.48 ML in respect of the facts giving rise to charge 5. Furthermore, had he watered his crop any later significant damage would have been caused to the wheat crop; 7. the water taken in respect of charge 5 was purchased and applied to the account within the applicable season rectifying any overtake that may have occurred; 8. in respect of charge 4, he was aware of the 1,500 ML extraction limit relating to the bore and he had calculated his usage and prepared the season's crop plan based upon the bore's available capacity and the extraction limit, however, due to oversight on his part he misjudged the time period for the watering and turned the pump off approximately 24 hours later than intended on 3 February 2020. This resulted in an unintended over extraction of 37.19 ML. The error occurred during a stressful, busy and tiring period of work. It was not deliberate; 9. similarly, in respect of the charge 5 the conduct was unintentional; 10. he was "extremely remorseful for my oversight"; 11. he had received no financial or commercial benefit as a result of the unlawful extractions; 12. in respect of charges 1 to 3, the offending arose due to a misunderstanding for, and lack of knowledge in respect of, the imposition of the applicable extraction limits; 13. he believed that the reference to an "extraction limit" was a reference to his annual entitlement limit and he continued to use the bores in accordance with his understanding of its operation pursuant to previous conditions; 14. as soon as the issue with the extraction cap was brought to his attention in 2020, he has sought to fully comply with all of the conditions attach to his WAL and Water Works Approvals; 15. while he acknowledged "my obligation to be across the rule relating to my bores; however, had I been informed earlier of my mistaken understanding…I would have been alerted to my error and ensured subsequent overextractions did not occur"; 16. as responsible approval holders associated with the relevant approvals, the following individuals and entities received penalty notices in respect of the matters for which he was being prosecuted in charges 1 to 3: Benscrape Pty Ltd ("Benscrape") ($4,500); Belsal Pty Ltd ("Belsal") ($4,500); Kiara Salvestro ($2,250); Kate Beltrame ($2,250); Robert Beltrame ($2,250). Benscrape, Belsal and Kiara Salvestro received an official caution in respect of the conduct giving rise to charge 4; 17. the offences and the proceedings caused himself and his family stress and embarrassment. He has been the subject of adverse media treatment suggesting that he is a "thief", which has tarnished his reputation and that of his family in Griffith. The correct representation of the offences is that of "regulatory breach" and not stealing. The publicity has also affected the business of Grainlink and TerraAg. 18. he was "extremely sorry for any loss or damage my offending may have caused. I reiterate that I had no intention of breaching any aspect of the" WMA and "certainly did not seek to obtain any benefit at the cost of the environment or my other neighbouring farmers. I am embarrassed and regretful of the offences and through the advice received by my solicitors, I am now confident that I correctly understand the extraction limits imposed and my obligation in ensuring compliance with works approvals"; and 19. he has implemented the following mechanisms to ensure that such issues will not occur again, including: a. Prior to each extraction, I will ensure I confirm that the instructed transfers have actually been affected and that sufficient water is in the account. I will also ensure that I more frequently review my IWAS accounts, especially prior to pumping. b. When correspondence is received from WaterNSW regarding any of the bores, I have briefed my administrative staff to ensure I am notified and that the document is reviewed before it is filed. c. When correspondence is not properly understood, I will ensure further questions are asked of WaterNSW. d. Upon receiving amended conditions for any of the Approvals, I will enquire with Water NSW and seek the necessary legal advice to ensure that the terms are properly understood. e. We are currently working to transfer the bores into my name, removing the other approval holders currently listed. I believe this will assist in reducing the quantity of documents our office receives because, as mentioned above, various versions of the same letters/documents are sent by WaterNSW to the office address, addressed to each approval holder separately. f. Long term, the Salvestro Family Business will, to the best of its ability, ensure that the office is suitably staffed with individuals who have adequate knowledge of water issues and ensure that those staff receive ongoing training when necessary.

[20]

The Purposes of Sentencing

The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 2000 ("CSPA"): 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.

[21]

Statutory Matters to be Taken into Account in Sentencing

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

[22]

Objective Circumstances of the Offences

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

[23]

Nature of the Offences

The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are illustrative of the objective seriousness of an environmental offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49] and Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).
The relevant objects contained in s 3 of the WMA assist in identifying the purpose of the offences with which Salvestro has been charged: 3 Objects The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular: (a) to apply the principles of ecologically sustainable development, and (b) to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and (c) to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including: (i) benefits to the environment, and (ii) benefits to urban communities, agriculture, fisheries, industry and recreation, and (iii) benefits to culture and heritage, and (iv) benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water, (d) to recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources, (e) to provide for the orderly, efficient and equitable sharing of water from water sources, (f) to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna, (g) to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users, (h) to encourage best practice in the management and use of water.
The purpose of the WMA is also informed by s 5 of that Act, which outlines the water management principles and relevantly provides that: 5 Water management principles (1) The principles set out in this section are the water management principles of this Act. … (4) In relation to water use - (a) water use should 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 should be rehabilitated, and (b) water use should be consistent with the maintenance of productivity of land in the long term and should maximise the social and economic benefits to the community, and (c) the impacts of water use on other water users should be avoided or minimised.

[24]

Maximum Penalty

The maximum penalty provided for an offence indicates Parliament's view as to the seriousness of that offence and provides a sentencing yardstick to measure the relevant features of the offences for which Salvestro is to be sentenced (Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; and Rawson at [57]). Salvestro's offending must be examined in this light (Perdikaris at [49]).
The offences are all Tier 2 offences under the WMA. From 8 June 2017 to 26 June 2018, the maximum penalty for a Tier 2 offence under the WMA was 2,250 penalty units, or $247,500. This maximum penalty applies to charge 1.
However, from 27 June 2018 to 30 June 2020, the maximum penalty for a Tier 2 offence under the WMA increased to 4,550 penalty units, or $500,500. This maximum penalty applies to charges 2, 3, 4 and 5.

[25]

Salvestro's State of Mind in the Commission of the Offences

Offences under s 91G(2) and s 60C(2) of the WMA are offences of strict liability. Intention is not an element of the offence. But the state of mind of Salvestro in the commission of the offences is nevertheless relevant to the question of penalty, subject to the application of the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 (at 389 and see generally the discussion in Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [143]-[168]).
Thus if the circumstances of the offences for which Salvestro has been convicted are such that he could have been found guilty of a more serious form of the offence for which he is to be punished, then those facts cannot be relied upon as a factor in aggravation in sentencing (Croaker v R [2008] NSWCCA 232; (2008) 190 A Crim R 15 at [14] and Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38 at [50]). However, the Court can have regard to his mental state in its assessment of his overall culpability, which is relevant to its assessment of the objective seriousness of the commission of the offences (Sydney Water Corporation at [158] to [159] and [167] and Barlow at [57]).
The NRAR submitted that Salvestro committed the offences either intentionally or recklessly.
In Environment Protection Authority v Rands [2019] NSWLEC 23 the Court considered the test for recklessness (at [116]): 116 In Plath v Vaccount Pty t/as Tableland Timbers [2011] NSWLEC 202 the Court considered the meaning of the term "reckless" (at [98]): 98. The term recklessness describes the state of mind of an offender who, while performing or failing to perform an act, is aware of the risk that a particular consequence is likely, in the sense of probable or possible, to result from that act or omission (Pemble v R (1971) 124 CLR 107, La Fontaine v R (1976) 136 CLR 62 and R v Crabbe (1985) 156 CLR 464). Recently in Blackwell v R [2011] NSWCCA 93, the Court of Criminal Appeal described the mental element of "reckless" as (at [76]): 76. The effect of this line of authority is that where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence.
More recently, Pain J expressed the test for recklessness as follows (Environ-ment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 at [68]): 68 In Environment Protection Authority v Wollondilly Abattoirs Pty Ltd at [42] I considered the meaning of the term "reckless", citing Pepper J in Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 at [98] as the state of mind of an offender who, while failing to perform an act (or performing an act as in this case), is aware of the risk that a particular consequence is likely to result from that act or omission (citing Pemble v R (1971) 124 CLR 107; [1971] HCA 20, La Fontaine v The Queen (1976) 136 CLR 62; [1976] HCA 52 and R v Crabbe (1985) 156 CLR 464; [1985] HCA 22).

[26]

Green Bore (Charges 4-5)

It is convenient to start with the offences the subject of charges 4 and 5 (the green bore).
In respect of Salvestro's state of mind regarding the green bore (charges 4 and 5), in his affidavit, Salvestro deposed that, prior to the commencement of these proceedings, he understood that: 50 b. For any bores with a zero WAL entitlement, I understood that no water could be carried over to the next water year. This meant that water had to be purchased for this bore each time you pumped, or at least in advance of when you intended to pump. If any water was left on the licence at 30 June each year, the water would be forfeited despite the owner having paid for and effectively purchased the water. I understood that this applied to the Green Bore. … 88 As the Green Bore is a 0 WAL bore, water must be transferred into the account before it can be pumped. However, I am able to transfer water into this account from WAL 11766, as I am permitted to transfer from a Zone 1 bore to a Zone 2 bore. This was not my preference as Zone 1 water is of greater value than Zone 2; however, I would do this from time to time if water was required at the Green Bore and unavailable for purchase on the open market. This bore has an extraction cap of 1,500 ML. … 90 In or around late August to early September 2019, I recall speaking to Grant Volz of Terra Ag (our water broker) asking him to find me 1,000 ML of Zone 2 water to add to WAL 11805 in anticipation of a watering for the wheat.
In relation to the offence the subject of charge 4 and 5, from Salvestro's evidence the following timeline of events emerges: 1. in late August to early September 2019, Salvestro spoke to Terra Ag, his water broker, about finding 1,000 ML of Zone 2 water to add to WAL 11805 in anticipation of watering wheat; 2. on 16 September 2019 an application for transfer of 500 ML of Zone 2 groundwater ("first transfer") was submitted to WaterNSW; 3. on 8 October 2019 Salvestro's business received notification from Terra Ag that their transfer was rejected by Hydro Group within WaterNSW because they mistakenly concluded that the bore in question was in Zone 1, and not Zone 2; 4. in early to mid October, Alison Pittavino, the Financial Controller for Warrawidgee Station, exchanged email correspondence with WaterNSW querying the rejection in circumstances where applicable bores were in the same zone; 5. on 18 October 2019 Terra Ag lodged a second transfer application for a further 500 ML of water ("second transfer") after being satisfied that the dispute had been rectified; 6. on 24 October 2019 Salvestro's business received confirmation from WaterNSW that the first transfer had been approved and the water was added to the account on the same day; 7. on 5 November 201 the second transfer was approved and a further 500 ML transferred into the account that day; 8. in relation to charge 4, Salvestro extracted water from 26 January to 3 February 2020; and 9. in relation to charge 5, Salvestro extracted water from the green bore from 2 to 5 September 2019, 27 September to 23 October 2019, and 24 to 31 October 2019.

[27]

Red Bores (Charges 1 to 3)

In relation to the red bores, at issue was the reasonableness of Salvestro's understanding that his entitlement to extract water was based on his unit entitlements, which had been the historical position up to a particular point in time, rather than the extraction limits that were imposed by the Department in relation to the bores (T29:39-30:05).
In his affidavit, Salvestro stated that c. For any bores which did have an entitlement, I understood that you could carry over and pump up to 200% of the water entitlement and have up to 300% of the water entitlement in the account, (assuming no water had been pumped from the bore in the previous year), unless a separate extraction limit was imposed on the bore. In saying that, I understood that extraction limits were generally only imposed on "newer" bores or bores which had zero entitlements. I understood that this was applicable to the Red Bores - works 1 - 5, which, until the commencement of NRAR's investigation, I thought did not have an extraction limit. d. I understood and believed that if you had the entitlement and the available carry over in your account, you could pump the available water up to 200%. e. I understood that the bore water allocation was the amount of water a user was allocated and permitted to actually pump from the aquifer each year. This quantity was subject to change, but for bore water our allocation was generally 100% of our entitlement. In saying that, the 2020/2021 water year was the first time that 100% allocation was not granted, with farmers receiving 70% allocation for bores, being 70% of their entitlements. f. I understood that the cap or the extraction limit attached to a specific bore was the limit of how much water I could take from a particular hole (bore). As mentioned above, I was not aware of any extraction limit in respect of the Red Bores. I understood that the Green Bore had an extraction limit of 1,500 ML, because it was a 0 entitlement bore.
During cross-examination Salvestro clarified that he meant "newer licences" instead of "newer bores" (T21:37-42). He accepted that he knew that it was open to the Department to impose conditions at its discretion, including extraction limits, but stated that he believed these extraction limits were generally only imposed on newer licences and that water entitlements prevailed over extraction limits.

[28]

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

The extent of the harm caused or likely to be caused to the environment by the commission of the offences is relevant to the objective seriousness of the offences (s 364A(1)(c) of the WMA). Further, the Court must consider whether any injury, emotional harm, loss or damage caused by the offences was substantial (s 21A(2)(g) of the CSPA).
In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299, Preston J stated that harm includes both actual harm and potential harm (at [145]-[149]). His Honour identified the following principles in establishing harm, namely, that: 1. harm is not limited to measurable harm such as actual harm to human health, and can include a broader notion of quality of life; 2. harm can include harm to the environment and its ecology resulting from that caused to a particular animal or plant; 3. harm can be direct or indirect, individual or cumulative; 4. the culpability of the defendant depends in part on the seriousness of the environmental harm; and 5. the fact that the environment that is harmed by Salvestro's conduct was already disturbed or modified is not a mitigating factor.
The meaning of the words "likely to be caused to the environment" was considered by Lloyd J in Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 and held to mean "a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance" (at [44]).
It is settled law that harm can result from conduct which undermines a regulatory scheme that seeks to prevent environmental damage (Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 at [23]).
The harmful effects of the over extraction of groundwater occasioned by five charges agreed to by the parties in the ASOF included that: 1. it lowered the groundwater pressure in the Lower Murrumbidgee Deep Groundwater Source, which is initially concentrated in the immediate area but will equalise across the entire water source over years; 2. the commission of the offences the subject of charges 1 to 4 increased the risk of aquifer compaction, which can permanently reduce the capacity of aquitards to transmit water to the underlying aquifers and reduce the capacity of those aquifers to be recharged with water and to hold or carry water; 3. risked increasing costs for neighbouring water users to access groundwater; 4. increased risk of lowering groundwater pressures to a level that limits neighbouring users' access to entitlements; 5. risked increasing rates of leakage from the shallow groundwater source into the deep groundwater source; 6. risked decreasing rates of downwards leakage from the deep groundwater source into the underlying hard rock aquifers, or increasing rates of upwards leakage from the underlying hard rock aquifers into the deep groundwater source leading to depressurisation of the deeper hard rock aquifer; and 7. risked reducing groundwater discharge to distant features that have a hydraulic connection at lower elevation to the deep groundwater source or any of its adjacent or underlying aquifers.

[29]

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

The NRAR's written submissions outlined the additional costs that could have been incurred by all users of the groundwater source. However, because the submission was put no higher than a possibility it was subsequently withdrawn for failing to meet the requisite criminal standard. I therefore make no findings on this matter.

[30]

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

The NRAR provided the Court with a table detailing the market value of water taken unlawfully during each of the 2017/2018, 2018/2019 and 2019/2020 water years, calculated by reference to the average of the monthly weighted average price of water trades: Water year Amount unlawfully taken Average weighted Average price Market Value 2017/2018 996.07 ML $41.33 $41,170.89 2018/2019 2,892.05 ML $175.41 $507,313.77 2019/2020 2,994.85 ML $190.41 $570,269.35

[31]

I note that the total market value of the water taken unlawfully is substantial and increases the objective seriousness of the commission of the offences. I take this matter into account.

[32]

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

There were practical measures that Salvestro could have taken to prevent, control, abate or mitigate the environmental harm outlined above (s 364A(1)(c) of the WMA and Barlow at [45]). For example: 1. by maintaining a logbook or records of when water was taken, for how long, and from which bores; 2. by providing training to workers about turning the pumps on and off, and the taking and recording of meter readings; 3. by creating a reporting system for those persons who used the bores; 4. by disciplining any contraventions of water conditions or licence limits to prevent or mitigate environmental harm; 5. by creating an administrative system to ensure that correspondence was read by him; 6. by asking for clarification or seeking advice if he did not understand the effect of water purchases and transfers on his entitlements; and 7. by ensuring that he understood the conditions of his WAL, as varied over time.
As evidenced from the practical measures referred to in Salvestro's affidavit (quoted above at [51(dd)]) that have subsequently been implemented, steps could and should have been taken prior to the commission of the offences to avoid or mitigate the environmental harm caused by their commission.

[33]

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

The NRAR submitted that the over extraction of water and the consequential harm to the environment was reasonably foreseeable in circumstances where a number of bores were operating with none of the practical measures identified above having been implemented.
I accept this submission, particularly in the context of Salvestro being a third generation farmer who admitted to possessing a general level of awareness that environmental harm would result from the over extraction of groundwater over several water years, even if he did not possess any specific expert knowledge of the effects of excessive drawdown of groundwater.

[34]

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

There is no doubt whatsoever that Salvestro had complete control over the causes of the commission of the offences. This includes the commission of the offences giving rise to charges 1 to 3. That Beltrame was assisting in the administration of the Salvestro family business does not derogate from this finding. Ultimately it was Salvestro that was responsible for ensuring compliance with his conditions of approval and WAL.

[35]

Whether the Commission of the Offences Occurred During a Severe Water Shortage or Extreme Heat Event (s 364A(1)(g) of the WMA)

A particular matter that the Court is required to take into consideration in sentencing for an offence against the WMA is "whether the offence was committed during a severe water shortage (that is, in contravention of an order in place under ss 49A or 324 of that Act)" (s 364A(1)(g) of the WMA).
The NRAR noted in its written submissions that during the 2019/2020 water year, total extraction from the Lower Murrumbidgee Deep Groundwater Source was larger than the average annual recharge. Groundwater levels almost reached the historical lows that were observed during 2007 to 2009 at the end of the Millennium drought (which was the worst drought on record in southeast Australia, lasting from 2001 to 2009).
It was an agreed fact that the 2020/2021 water year, the relevant Minister reduced the Available Water Determination for the Lower Murrumbidgee Deep Groundwater Source below the usual 1.0 ML per unit share to 0.65 ML per unit share.
However, no evidence was put before the Court of an order in place under either ss 49A or 324 of the WMA. While this may have been the statutory basis for the agreed fact referred to above, this is supposition only. I therefore cannot take this factor into account.

[36]

Salvestro's Intentions and Reasons for Committing the Offences (s 364A(1)(h) of the WMA; s 21A(2)(o) of the CSPA)

The criminality involved in the commission of the offences by a defendant is measured not only by the seriousness of what actually occurred but also by reference to the reasons for its occurrence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley at [237]).
The carrying out of an offence to make a profit, or to save or defer the incurring of an expense, increases the seriousness of that offence (s 21(2)(o) of the CSPA). Put another way, it is an aggravating factor if an offence was committed for financial gain.
Salvestro submitted that there was an absence of motivation of financial gain. He stated the following in his affidavit: 125 I do not believe I have received any financial or commercial benefit as a result of the extractions. In respect of charge 4, the water was in fact not required for the purpose of the cropping and therefore represented a further, unnecessary expense as the additional 37.19 ML of water still had to be purchased and paid for. In respect of charge 5, although the transfer was affected late, the offence only arose as a result of a timing issue, my own misunderstanding/assumptions in respect of the First and Second Transfers and the mistake in respect of the applicable bore zones. However, the water was purchased and paid for and the extractions still occurred within the extraction limit of the bore. 126 In respect of charges 1-3, the offending arose due to my misunderstanding for and lack of knowledge in respect of the imposition of the applicable extraction limits. If I had known the extraction limit existed, I would have sold my carry over for approximately $60-$110 per ML (depending on the timing within the season) and purchased an increased amount of surface water to cover the shortfall. I would have planned for this and purchased more of surface water to cover the shortfall. I would have planned for this and purchased more forward water, as referenced at paragraph 19 and 20. Exhibited at page 255-271 of DTS-1 is a summary of the average purchase prices for groundwater in the Murrumbidgee Deep ground water source between 2017/2018 - 2019/2020 water years. 127 During the relevant periods, I would have been able to obtain the equivalent surface water at an average rate of approximately $110. When considering the $50 per ML costs associated with the pumping of ground water, the surface water could have been acquired at the same or cheaper price, as I would have pre-planned my watering at the start of the season and pre-purchased the water required. Alternatively, if this was not possible, I would have adjusted my crop plan and planted an alternative crop which required less water usage. I only used the bores (and in fact, pre-planned to use the bores) during the appliable years because I believed the entitlement to do so was available. This was therefore factored into the estimated water use for the applicable seasons, the decision to purchase a certain amount of surface water and to plant the selected crops.

[37]

Conclusion on the Objective Seriousness of the Offence

The NRAR submitted that the offending was in the low to middle of the high range for offences of this type.
By contrast, Salvestro submitted that overall the offending was at the lower end of objective seriousness, and in particular, the offences the subject of charges 1, 4 and 5 at the very bottom of the range of objective seriousness.
The NRAR's submission cannot be maintained. On the contrary, I find that charges 1 to 3 and 5 are in the middle range of objective seriousness, with charge 5 being objectively more serious than charges 1 to 3. Charge 4 is at the lower end of objective seriousness.

[38]

Subjective Circumstances of Salvestro

A proportionate sentence requires the Court to take into account any mitigating factors that are personal to Salvestro (s 21A(3) of the CSPA). Relevant subjective circumstances include: 1. whether Salvestro has demonstrated remorse for the commission of the offences (s 21A(3)(i) of the CSPA and see the remarks by Preston J in Waste Recycling at [203]-[215]); 2. when Salvestro entered his guilty pleas (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]); 3. whether Salvestro provided assistance to the regulatory authorities in the investigation and prosecution of the offences (ss 21A(3)(m) and 23 of the CSPA); 4. whether Salvestro is of good character (s 21A(3)(f) of the CSPA); 5. whether Salvestro has a prior criminal record (s 21A(3)(e) of the CSPA); and 6. Salvestro's likelihood of reoffending and prospects of rehabilitation (s 21A(3)(g) and (h) of the CSPA).

[39]

Early Plea of Guilty (ss 21A(3)(k) and 22 of the CSPA)

A guilty plea entered at the earliest available opportunity entitles the defendant to the full 25% discount for the utilitarian value of that early plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton at [152]).
The parties agreed that Salvestro entered his plea at the earliest opportunity. I therefore award a 25% discount to the sentences imposed for the commission of all five offences.

[40]

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

Salvestro provided assistance to the NRAR in the investigation and prosecution of the offences by: 1. giving full and frank evidence in an interview; 2. accepting, at least in part (see the discussion below under "Contrition and Remorse", responsibility for the commission of the offences; and 3. participating in the preparation of an agreed statement of facts for the purposes of the sentence hearing thereby obviating the necessity of calling any expert evidence.
I take this assistance into account.

[41]

Prior Convictions and Good Character (ss 21A(3)(e)-(f) of the CSPA)

Salvestro has no prior convictions and is of good character.
Broi and Zanatta's affidavits deposed of Salvestro's good character, including his contribution to various community events (Broi's affidavit) and making donations to a private hospital (Zanatta's affidavit).
I find Salvestro is a person of good character.

[42]

Likelihood of Salvestro Reoffending and Prospects of Rehabilitation (ss 21A(3)(g)-(h) of the CSPA)

In Broi's affidavit he stated that he was confident that Salvestro had now received the necessary legal advice to ensure he properly understood the rules and requirements associated with his WAL to extract groundwater and was unlikely to reoffend (at [17]).
Zanatta expressed a similar view.
I am confident that Salvestro is unlikely to reoffend in light of all of the circumstances giving rise to these proceedings and that his prospect of rehabilitation are good.

[43]

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

The contrition or remorse of an offender must be taken into account as a mitigating factor in determining the appropriate sentence for an offence (s 21A(3)(i) of the CSPA).
In Waste Recycling and Processing Corp, Preston J stated that contrition and remorse is more readily demonstrated by an offender "taking actions" rather than offering "smooth apologies" through legal representatives (at [203]). His Honour identified four acts that would demonstrate genuine contrition and remorse (at [204]-[214], applied in Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220 at [223]; Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [85]-[89] and Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 at [101]). These are: 1. first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence (at [204]); 2. second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities (at [210]); 3. third, taking action to address the cause of the offence (at [212]); and 4. fourth, the personal appearance of corporate executives in court to give personal evidence of the defendant's regret and a plan of action to avoid repetition of the offence (at [214]).
The NRAR acknowledged that Salvestro has taken steps to implement measures designed at ensuring that the offending conduct was not repeated. These included: 1. purchasing and transferring water after Salvestro's pumping in respect of charges 4 and 5 to correct the shortfall in the Green Bore. This was completed within a relatively short period of time; 2. apologising for the loss and damage caused as a result of his offending, reiterating his lack of intention to breach the WMA and stating his embarrassment and regret at the commission of the offences; 3. a commitment to comply with the WMA and to adhere to any rules or obligations imposed upon him as a water user; and 4. procedures implemented to prevent further offending (see above at [51(dd)]).
Salvestro also submitted that there has been a cessation of the use of the bores the subject of the offending.
Having regard to the above circumstances, I find that Salvestro has, in the main, demonstrated genuine remorse and contrition. I do not give this factor full weight, however, because of the numerous statements made by Salvestro where he sought to partially blame his offending on the complexity of the regulatory system itself and the fact that he was notified of his initial offending by WaterNSW (or some other regulatory body). At all times the onus is on account or WAL holder to adhere to the conditions of their WAL or account. It is not incumbent upon a regulator to inform the account or licence holder of any actual or potential breach. An offender's culpability cannot be deflected by recourse to some spurious obligation on the part of the entities who regulate the use of water in this State.

[44]

Extra-curial Punishment Suffered by Salvestro

During the hearing, it was submitted that Salvestro had already received extra-curial punishment as a result of the proceedings and that this should be reflected in the imposition of a lesser sentence than would otherwise be warranted.
The extra-curial punishment was in the form of negative local newspaper coverage, where Salvestro's particular circumstances should be seen as "being somewhat out of the ordinary in terms of the adverse publicity which wasn't a true reflection of the circumstance of the offending" (T52:25-27). In particular, the newspaper articles portrayed him as a "thief" who stole water when this was not the case. The publicity has also adversely affected the business of Grainlink and Terra Ag, despite Salvestro's limited involvement in the day-to-day management of those businesses. It has also adversely impacted his family.
This Court has taken extra-curial punishment in the form of public opprobrium consequent upon adverse publicity into account as a mitigating factor in sentence proceedings (see, for example, Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 at [189]-[194], Wingecarribee Shire Council v O'Shanassy (No 6) [2015] NSWLEC 138 at [229]-[230], Environment Protection Authority v McMullen [2020] NSWLEC 87 at [156]).
As Button J stated in Church v R [2012] NSWCCA 149 (at [34]): 34 I accept that the actions of the media can, in extreme cases, amount to extra-curial punishment. I also accept that the media interest in this matter was substantial, and having one's crimes exposed on national television could be gruelling and possibly deleterious to one's mental health. But here the applicant had undertaken an unusual and brazen crime that featured not only deception of a magistrate but also of a community. More generally, it is well-known that crimes committed by local citizens are given much more prominence in the media in small country towns than they are in metropolises like Sydney.
Given the weight of authority (see also R v Obeid (No 12) [2016] NSWSC 1815 at [98]-[100], Kearsley v The Queen [2017] NSWCCA 28; (2017) A Crim R 233 at [76] and Parente v R [2017] NSWCCA 284; (2017) 96 NSWLR 633 at [26]), the extensive nature of the adverse media, the fact that all water was either purchased, allocated to Salvestro based on his entitlements or carried over, and the unchallenged nature of this submission, I take the adverse publicity into account in the imposition of an appropriate penalty for his offending.

[45]

Parity Principle

Salvestro submitted that the parity principle should be applied to the imposition of his sentence by reason of the PINs issued to other persons who were holders of the approvals relevant to the commission of the offences. He submitted that they were involved in the same offending (including Benscrape, Belsal, Kiara Salvestro, Beltrame and Robert Beltrame).
Sentencing disparity imposed on co-offenders breaches the norm of equal justice, as was stated by Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 (at [28], footnotes omitted): 28. "Equal justice" embodies the norm expressed in the term "equality before the law". It is an aspect of the rule of law. It was characterised by Kelsen as "the principle of legality, of lawfulness, which is immanent in every legal order". It has been called "the starting point of all other liberties". It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." (Emphasis in original) Consistency in the punishment of offences against the criminal law is "a reflection of the notion of equal justice" and "is a fundamental element in any rational and fair system of criminal justice". It finds expression in the "parity principle" which requires that like offenders should be treated in a like manner. As with the norm of "equal justice", which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.
In Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Dawson and Gaudron JJ stated (at 301 and 303): Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. … …as between co-offenders, different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison. And, of course, it is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender's criminal history or custodial situation which has no counterpart in the case of his or her co-accused. If so, it may justify the imposition of a different sentence or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody…

[46]

The Offences Could Have Been Prosecuted in the Local Court

Salvestro submitted that the Court should give considerable weight to the fact that the proceedings were brought in this Court instead of the Local Court. This had the consequence of exposing Salvestro to a significantly higher maximum penalty than would otherwise have been imposed in the Local Court for offences against the WMA.
The Court was referred to a number of authorities in the Court of Criminal Appeal (Palmer v R [2005] NSWCCA 349, R v Crombie [1999] NSWCCA 297, R v Doan (2000) NSWCCA 317; (2000) 50 NSWLR 115, R v Depoma [2003] NSWCCA 382, R v El Masri [2005] NSWCCA 167, Bonwick v R [2010] NSWCCA 177). In particular, I note Doan, which was cited in Palmer, where Hall J stated (at [15(d)]): 15(d) …the significance of the loss of the chance of the matter being dealt with in the Local Court varies from case to case. In some cases it would contribute to mitigation of sentence. It is a matter to be taken into account, but is not a universal factor for the reduction of sentence: R v Doan (2000) 50 NSWLR 115.
In Harris v Harrison [2014] NSWCCA 84, Simpson JA stated (at [96]-[99]): 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.
Salvestro argued that he was not contending that there was no justification in bringing the proceedings in this Court, rather that substantial weight should be given to the fact that they could have been brought in the Local Court. This was because of the low objective gravity of the offences committed, Salvestro's absence of a prior record, his payment for the water, and the fact that he did not extract more than he was allocated. The NRAR was not seeking orders that could not be imposed in the Local Court and the election to prosecute Salvestro in this Court increased the costs for the defendant and exposed him to higher costs if he is ordered to pay the prosecutor's costs. Counsel for Salvestro annexed a table of Local Court examples of offences which contravened s 91(2) of the WMA.

[47]

Capacity to Pay a Fine

There was no evidence before the Court to suggest that Salvestro was not capable of paying any fine that the Court was likely to impose (s 6 of the Fines Act 1996).

[48]

Retribution, Denunciation and Deterrence

The Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offence and making Salvestro accountable for its actions.
Furthermore, the Court required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569 per Brennan J). One of the purposes of the Court in imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences. This purpose is enshrined in s 3A(b) of the CSPA (Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [188] and [192] and Environment Protection Authority v Rands [2019] NSWLEC 23 at [161]).

[49]

General Deterrence

The penalty imposed by the Court must serve as a general deterrent (Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177]). General deterrence is vital "to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences" (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188]. See also Axer at 359).
The NRAR submitted that the sentence must create a clear disincentive to other irrigators contemplating the unlawful use of water under the WMA; irrigators will not be deterred by the imposition of nominal fines.
Salvestro submitted that there should not be any greater weight afforded to general deterrence because any financial penalty imposed would sufficiently reflect an element of general deterrence.
But, as stated above, general deterrence is not directed to Salvestro; its purpose is to deter other WAL holders from extracting water over their allocated limit.
I therefore take this factor into consideration.

[50]

Specific Deterrence

The NRAR submitted there is a need for specific deterrence because of the significant amount of water repeatedly extracted during the commission of the offences. This amounted to a "persistent disregard for the law" (T34:23).
By way of response, Salvestro argued that the circumstances of the offending, the steps taken by him to avoid any reoffending and the adverse publicity that he had been exposed to, warranted only limited weight being placed upon specific deterrence.
While I do not agree with the description by the prosecutor afforded to Salvestro's offending above, I place weight on the need for specific deterrence for the purposes of imposing an appropriate penalty on Salvestro. As identified in Environment Protection Authority v Ravensworth Operations Pty Limited [2012] NSWLEC 222 (at [48]), specific deterrence is relevant where an offender continues to operate in the same industry. Salvestro continues to operate his farm and family business.
In Roche [2013] NSWLEC 191 Pain J further noted (at [45]): 45 Specific deterrence is appropriate for corporate defendants to catalyse rehabilitation so that the company takes the required steps to prevent repetition (See BJ Preston, "Principled Sentencing for Environmental Offences", a paper presented to the 4th International IUCN Academy of Environmental Law Colloquium, 16 - 20 October 2006 at p 5.)

[51]

Consistency in Sentencing

The task of a sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107C). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case (Axer at 365). The sentence imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).
The NRAR and Salvestro provided the Court with a schedule of comparable cases, which the Court has had regard to in determining an appropriate sentence. They include: 1. Water NSW v Barlow [2019] NSWLEC 30, where the defendant pleaded guilty to an offence under s 336C(1) of the WMA for taking water during an embargo. He was found to have acted recklessly by not checking that the embargo was lifted (at [68]). He also pleaded guilty to two offences under s 91I(2) for taking water when metering equipment was not operating properly, namely, taking 381.62 ML and 512.52 ML of water over two periods in 2015. The embargo charge was found to be of medium objective seriousness, while the metering charges were found to be of low objective seriousness (at [83]). The defendant was entitled to a discount of 12.5% for the utilitarian value of his early pleas, and found to have cooperated with the prosecutor, was remorseful, and had no prior convictions (at [85]-[103]). He was convicted and fined in the amounts of $86,625 for the embargo charge and $48,726 and $54,140, respectively, for the metering charges (at [117]); 2. in Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Harris [2020] NSWLEC 113, the defendant company pleaded guilty to an offence under s 91B(1) for constructing or using a supply work without a water supply work approval in relation to the unauthorised construction and use of a channel for irrigating cotton. Moore J was not satisfied beyond reasonable doubt that the offence was committed for the purpose of seeking financial gain (at [49]). Although there was no evidence of substantial harm despite the size of the channel (at [55]), His Honour held there was harm to the integrity of the regulatory system (at [56]) and concluded the offences were above the middle of the low range of objective seriousness (at [126]). Moore J found that specific deterrence was required (at [138]). A 10% discount was afforded for the utilitarian value of the defendant's guilty plea (at [173]), resulting in a fine of $252,000, with a moiety paid to the prosecutor (at [195]). A publication order was also made; 3. in O'Haire, the offender pleaded guilty to eight offences of taking water from the Murray River other than in accordance with a WAL contrary to s 60(2) of the WMA. The amount taken was 1,378 ML from 12 April 2016 to 9 March 2019 (at [112]). The most serious offence involved the taking of 598.99 ML of water other than in accordance with a water allocation. Charges 1 to 7 attracted penalties of $25,000 each before the application of the totality principle and a 15% discount for O'Haire's early guilty plea, reducing the penalties to $15,000 per offence (at [211]-[213]). A fine of $35,000 was imposed in respect of charge 8 for the taking of 273.45 ML of water, which was reduced to $20,000 after applying the totality principle and taking into account the utilitarian value of his guilty pleas (at [211]-[212]). The Court found that the defendant demonstrated no insight or contrition (at [134]-[135]) and had committed the offences "knowingly with a contumacious disregard" for the conditions of his WAL (at [190]. The offences were found to be in the moderate range of objective seriousness (at [151]). The defendant was convicted and fined a total amount of $131,250 with a 50% moiety paid to the prosecutor. A publication order was also made (at [218]); 4. Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Maules Creek Coal Pty Ltd [2021] NSWLEC 135 concerned a defendant company that pleaded guilty to an offence under s 60A(2) of the WMA for taking water without an access licence while operating an open cut mine, in circumstances where 1,000 ML of clean surface water was captured in water storages without an access licence between 1 July 2016 and 30 June 2019. It was accepted that there was undefined actual harm to surface water flows, and a likelihood of harm being caused to vegetation and to its aquatic ecology as a result of the commission of the offence (at [239]). The Court accepted that general deterrence was an important consideration (at [255]) and found the offending to be at the low end of the medium range (at [239]). The defendant was convicted and fined $187,500, with a 50% moiety paid to the prosecutor after evidence of its good character (at [250]), remorse (at [247]), and cooperation with the prosecutor were accepted by the Court (at [242]). A 25% discount for the utilitarian value of its early guilty plea was taken into account (at [241]). A publication order was also made, and the defendant was ordered to pay 60% of the prosecutor's costs as agreed or assessed; 5. In Natural Resources Access Regulator v Thompson [2022] NSWLEC 48, the defendant offended against ss 60A(4) and 91I(2) of the WMA for taking water otherwise than as authorised by the licence and for taking water while metering equipment was not operating properly or not in operation. The amount of water pumped during the commission of the offences was 734 ML (at [55]). The offences fell within the low range of objective seriousness (at [136]). The Court was not satisfied that the offences were committed recklessly (at [110]), but held that the offending conduct caused actual harm to the regulatory regime (at [118]). The defendant was of good character, had no prior convictions and was remorseful (at [143]-[151]). The defendant was fined $57,500 for the two offences after a 25% discount for the utilitarian value of his early guilty plea was taken into account (at [140]). The Court also accepted that the offences could have been prosecuted in the Local Court (at [153]). The commission of a s 91G(2) offence was also taken into consideration in sentencing the offence of failing to meter the pump and keep a logbook during the period of the water intake (at [3]); and 6. WaterNSW v Harris (No 3) [2020] NSWLEC 18, where each of the defendants were found guilty of an offence contrary to s 91G(2) of the WMA for taking water in breach of a condition of a Water Supply Works and Water Use or Approval which prohibited the taking of water when the flow was equal to or less than 4,894 ML per day (at [416]). An appeal to the Court of Criminal Appeal was dismissed.

[52]

Totality Principle

The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple overlapping offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62 to 63 and Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient. The application of the principle must not cause public confidence in the administration of justice to be undermined by any perception that "what is in effect being offered is some kind of discount for multiple offending" (R v MAK; R v K [2006] NSWCCA 381; 167 A Crim R 159 at [18]).
The NRAR submitted that the totality principle is relevant to charges 1 to 4 only, whereas Salvestro submitted that there is a complete overlap between the offending in respect of charges 4 and 5 because the same acts of taking the water gave rise to the commission of the offences. It was also submitted that there was a close relationship between the commission of all of the offences and that the Court should reduce the penalties for each of the offences to reflect the totality of the offending.
I find that the circumstances of charges 1 to 3 are such that it would be appropriate to apply a reduction in penalty to reflect the overall criminality of Salvestro. Although they were over different water years and were considered discreet offences, the offending originated from the same failure to monitor the most up-to-date condition of Salvestro's water access licence in relation to the red bores.
There is no warrant for applying the totality principle to either charges 4 and 5 merely because they arise from the same acts of taking water from the green bore. They are different offences under the WMA, their commission involved different acts and they occurred at different times.

[53]

Appropriate Sentence

Synthesising the relevant objective and subjective circumstances of the commission of the offences discussed above, and taking into account purposes of sentencing, the penalties imposed in the relevant comparable cases, and the additional orders to be imposed, I find that the imposition of a monetary penalty is warranted for each offence as follows: 1. for charge 1, a fine of $50,000; 2. for charge 2, a fine of $60,000; 3. for charge 3, a fine of $60,000; 4. for charge 4, a fine of $10,000; and 5. for charge 5, a fine of $75,000.
Each penalty must be discounted by 25% for the utilitarian value of Salvestro's early plea of guilty resulting in the imposition of a monetary penalty for each offence as follows: 1. for charge 1, a fine of $37,500; 2. for charge 2, a fine of $45,000; 3. for charge 3, a fine of $45,000; 4. for charge 4, a fine of $7,500; and 5. for charge 5, a fine of $56,250.
After the application of the totality principle, the penalty for each of the offences should be reduced to the following: 1. for charge 2, a fine of $30,000; and 2. for charge 3, a fine of $25,000.
This brings the total penalty to $156,250 for the commission of all five offences.

[54]

Moiety

The NRAR sought an order for moiety pursuant to s 122 of the Fines Act 1996 for half of the fine ordered against Salvestro to be paid to the prosecutor. In my opinion, such an order is appropriate in the circumstances of the proceedings (Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 at [102]-[113]).

[55]

Costs

The Court is also empowered to make a discretionary order for costs pursuant to s 257B of the Criminal Procedure Act 1986. Costs were agreed at $60,000 and I make an order pursuant to s 257G of that Act that Salvestro pay the prosecutor's costs fixed in this sum.

[56]

Publication Order

Pursuant to s 353G(1)(a) of the WMA, the NRAR also seeks an order publicising Salvestro's commission of the offences under ss 91G(2) and 60C(2) of the WMA. Salvestro did not dispute the appropriateness of making a publication order but submitted a competing version of the publication which contained two differences: 1. first, the use of the word "extraction" rather than "taking"; and 2. second, whether Salvestro should be named.
Salvestro submitted that he had suffered sufficient adverse publicity which had resulted in the necessary deterrence, both general and specific.
In Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 Duggan J usefully set out the principles to be derived from the authorities to be applied in determining whether or not to make a publication order, which I respectfully adopt and apply (at [84] and [86]): 84 Whether it is appropriate it impose a publication order in a sentence has been considered by this Court on a number of occasions. The principles to be derived from those authorities and the factors that have been considered in determining whether to make such an order can be summarised as follows: (1) The Court has a wide discretion as to whether to impose a publication order and the POEO Act does not identify, in terms, the circumstances in which such an order should or should not be made: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [36]; (2) Publication orders assist in serving a deterrent purpose in environmental crimes: EPA v Waste Recycling Corporation (2006) 148 LGERA 299. Such a notice informs or reminds the public that such an offence exists, and may add some "sting" to the imposition of a fine. The objectives of general and specific deterrence are thus satisfied: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [163]. A publication order operates as a message to the community that a holder of an EPL is under a heightened responsibility to ensure that their operations are conducted in accordance with the conditions of such licence: Environment Protection Authority v Biosolids Management Pty Limited [2004] NSWLEC 90; (3) Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma: Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 at [242]; (4) Because a publication order is made in addition to, rather than instead of, any penalty, it ought not be considered in determining the quantum of any monetary penalty to be imposed (Environment Protection Authority v Incitec Ltd; (2003) 131 LGERA 176 at [58]-[59]); (5) If an order under s 250(1)(e) is imposed a publication order ought be made because it is important to publicise to the community at the time such an order is made that any works being undertaken are as a result of committing an offence: Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732 at [141]; (6) Existing adverse publicity in the media or an intention to self-publicise a conviction will not necessarily preclude the making of a publication order: Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160 at [104]; (7) The circumstances of the case may dictate that the interests of justice and the purpose of the publication will not be served if publication is ordered such as: where the offence is a first offence and the harm and objective seriousness of the offence is low; where publication of the offence is likely to confuse or mislead the reader in light of the substance earlier Court ordered publication: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [41]; Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd [2007] NSWLEC 466 at [169]; (8) Such an order is no less appropriate because the offences have been found to be of a low level of objective seriousness: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [164]. … 86 The notion of the Defendant self-publishing the convictions does not have the same force or reach of a Court ordered publication order and I therefore consider it, in the circumstances of this case, inadequate to ensure general and specific deterrence. However, I do not, by these observations, seek to discourage the Defendant from undertaking its own publications of these convictions.

[57]

Orders

In conformity with the reasons given above, the Court makes the following orders: In proceeding 119175 of 2021 1. Salvestro is convicted of the offence against s 91G(2) of the Water Management Act as charged; 2. Salvestro is fined the sum of $37,500; In proceeding 119176 of 2021 1. Salvestro is convicted of the offence against s 91G(2) of the Water Management Act as charged; 2. Salvestro is fined the sum of $30,000; In proceeding 119177 of 2021 1. Salvestro is convicted of the offence against s 91G(2) of the Water Management Act as charged; 2. Salvestro is fined the sum of $25,000; In proceeding 119178 of 2021 1. Salvestro is convicted of the offence against s 91G(2) of the Water Management Act as charged; 2. Salvestro is fined the sum of $7,500; In proceeding 119179 of 2021 1. Salvestro is convicted of the offence against s 60C(2) of the Water Management Act as charged; 2. Salvestro is fined the sum of $56,250; In proceedings 119175, 119176, 119177, 119178 and 119179 of 2021 1. pursuant to s 122 of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor; 2. pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 Salvestro is to pay the prosecutor's professional costs as agreed fixed in the sum of $60,000; 3. pursuant to s 353G(1)(a) of the Water Management Act 2000, Salvestro must, within 28 days of this order, at his own expense, cause a notice to be published in the terms of annexure 'A' to this order in the digital and print versions of the following publications at the minimum size specified below on the first available page of the print version of: 1. The Land (10 cm x 18.6 cm); and 2. The Irrigator (10 cm x 18.6 cm); 1. within seven days of the date of publication of the notices in accordance with the preceding order, Salvestro must provide to the prosecutor a copy of the entire page of the publication in the print version of each publication and a screenshot of the entire page of the publication in the digital version of each publication in which the notice appears; and 2. the exhibits are to be returned.

[58]

Annexure 'A' Dean Salvestro was convicted and fined before the Land and Environment Court of New South Wales ("the Court") on 30 March 2023 in respect of five offences under the Water Management Act 2000 ("the WM Act") relating to the extraction of groundwater from the Lower Murrumbidgee Deep Groundwater Source in contravention of conditions of approvals and a water access licence granted under that Act. Following an investigation by the Natural Resources Access Regulator ("NRAR"), Salvestro was prosecuted in the Court, where he pleaded guilty. Salvestro was convicted of four offences under s 91G(2) of the WM Act, in relation to an overextraction of groundwater in excess of annual bore extraction limits. Salvestro was also convicted of one offence under s 60C(2) of the WM Act, in relation to the extraction of water otherwise than in accordance with the water allocation of an access licence. Salvestro was fined a total of $156,250 and ordered to pay the NRAR's costs in the sum of $60,000. All water users must be mindful of and comply with the terms and conditions of both water access licences and water management work approvals. The NRAR undertakes auditing and investigations to ensure that activities affecting water sources and involving the extraction of water are authorised and in line with the principles of the WM Act and the welfare of the environment.

[59]

Amendments 31 March 2023 - paragraph [215] - corrected paragraph numbering 12 April 2023 - Typographical error amended in paragraph 113(e). 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: 12 April 2023

Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Salvestro

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