Harris v Harrison [2014] NSWCCA 84 | Case summary

Court of Criminal Appeal (NSW)|2014-02-05|Before: Simpson J, Hall J, Schmidt J, Pepper J

Background 19The appellant is one of a number of joint owners of a large mixed farming and grazing property ("Ravensworth Station") situated adjacent to the Murrumbidgee River west of Hay in the south west of NSW. The Murrumbidgee is a "regulated river" within the meaning of the WM Act and, accordingly, is subject to the controls and provisions contained in the WM Act. 20Ravensworth Station had two main sources of water: deep ground aquifers, and surface water from the Murrumbidgee. It is only the latter that is relevant to the present proceedings. Water is extracted from the river by pump, of which there were, at the relevant time, five (four operational) located at two pump stations on the banks of the Murrumbidgee. Once sourced, water is directed via a series of above ground channels to various locations on the property, for use in crop irrigation, for stock, and for domestic purposes. Water for domestic purposes is pumped into an irrigation channel known as "the main channel". The main channel is 22 kilometres long, and eventually feeds into a dam near the main residence known as "the house dam". This Court was told that along the length of the main channel, there are a number of access points through which water can be directed to other parts of the property. The main channel has a maximum capacity of approximately 150 megalitres. The house dam has a maximum capacity of 2-3 megalitres. In order to convey water from the Murrumbidgee to the house dam it is necessary, for gravitational reasons, to feed into the main channel a good deal more water than the 2-3 megalitres than would be sufficient to fill the house dam. Although it was mentioned only in passing, it seems that there is also a water treatment plant that enables water to be rendered suitable for domestic use, including drinking. The evidence does not disclose how or where this water is stored, or the capacity of any tanks or other storage facilities used for that purpose. 21The appellant held (at least) three approvals under s 90 for the construction of water supply works (pumps) to source water from the Murrumbidgee. The approvals were subject to a number of conditions, one of which was: "3 The approval holder must install, maintain and operate any device or devices for measuring the volume of water extracted by the approved works in accordance with any manufacturer's specifications, when required in accordance with any written directions from the Minister." Another was: "5 The approval holder must inform the Department of Water and Energy within seven (7) days if the device or devices used for measuring the volume of water taken from the approved work ceases to record water usage accurately ..." 22Whether these conditions were intended to operate as a requirement that the appellant install meters on the three pumps is not clear. The word "any" in Condition 3 would not suggest such a requirement, merely a requirement that if a meter were to be installed, it be installed in accordance with the manufacturer's specifications. Condition 5, however, seems to proceed on the basis that a meter is required. It was common ground that no direction to install a meter on any pump had been issued by the Minister under s 326. 23The appellant, either alone or jointly with others (presumably the co-proprietors of Ravensworth Station) held a number of water access licences. These permitted water in specified quantities to be taken from the Murrumbidgee for irrigation purposes and crop watering. 24Somewhat curiously, one of the licences held by the appellant (jointly with others) was identified as Water Access Licence ("WAL") 8309. WAL 8309 permitted the appellant to draw 619 megalitres of water per annum from the Murrumbidgee for "domestic and stock" purposes. It is likely that WAL 8309 was a domestic and stock access licence issued under s 57(1)(k). I say "somewhat curiously" because WAL 8309 appears to replicate (although with limitations) the rights the appellant had under s 52. That is, s 52 permitted him to take (unlimited) water for "domestic consumption and stock watering", WAL 8309 authorised him to take a limited quantity of water (619 megalitres per annum) for identical purposes. 25Some attempt was made in a Statement of Agreed Facts put before Pepper J to explain the apparent anomaly. A domestic and stock water access licence is issued where the same "water supply work" (eg a pump) is used to take water for s 52 purposes and for irrigation. The licence enables measurement of water taken for the two different purposes. What was not explained was how the separate measurements were achieved, or how (if at all) they impacted on any payments required. 26At the time of the offence, there were four operational pumps located at a site on Ravensworth known as the "Central Pump Site". Each was fitted with two meters: one meter recorded the volume of water extracted from the river, the other recorded its hours of operation. The proceedings in the Land and Environment Court 27The appellant notified his plea of guilty at an early stage. 28The facts relevant to the offence were put before her Honour by way of an Agreed Statement. After some negotiation, an Amended Statement of Agreed Facts was provided. In addition, her Honour had available affidavits sworn on behalf of the respondent by Paul Gavin Simpson and Craig Robert Jones. Mr Simpson was cross-examined. On behalf of the appellant the evidence consisted of an affidavit sworn by him and affidavits sworn by Phillip Kaunitz and Michael Eberand. The appellant was cross-examined at some length. Both parties provided detailed written and oral submissions.

The facts of the offence 29To a large extent, the objective facts were not in dispute. Some factual conclusions reached by her Honour, to which I will come, were, and remain, in dispute. The undisputed facts are as follows. 30At about 5.00pm on 21 July 2009 the appellant inserted a steel rod into the volume meter of one of the pumps ("pump 1") at the Central Pump Site. His purpose in doing so was to interfere with the operation of the meter, and prevent it recording the volume of any water pumped from the Murrumbidgee. The insertion of the steel rod constituted the offence to which the appellant pleaded guilty. He then turned on the pump. Water was pumped from the Murrumbidgee into the main channel. The taking of the water was not an element of the offence. The "hour meter" on pump 1 was, at that time, not operational. Accordingly, there was no metered record of the volume of water taken at that time. The appellant had previously manufactured the steel rod, which was thereafter left at the pump site. He had used it for the same purpose on at least one previous occasion. 31After doing this, the appellant left the area. He did not return until about 10.00am the following morning. 32The appellant knew that it would take some time for the pumped water to flow along the main channel and into the house dam. That was why he did not return to the Central Pump Site until about 10.00am the following morning. It was, no doubt, the continued operation of the pump over that time that caused the respondent to charge a "continuing offence" within the meaning of s 363B of the WM Act. (However, as no additional penalty was imposed, it is not necessary to consider this further.) 33On the morning of 22 July 2009, at about 10.00am, two officers of the State Water Corporation ("State Water") (Brett Richardson and Phillip Dempsey) attended the Central Pump Site on Ravensworth. The evidence does not disclose their purpose in doing so. They observed that pump 1 was operating, and feeding water from the Murrumbidgee into the main channel, and that the meter was not operating. It was shortly thereafter that the appellant arrived at the Central Pump Site. He had a conversation with the two officers, who told him that the volume meter was not operating. (The hour meter was also not operating, but that is not material to the present proceedings.) The appellant turned off pump 1, and turned on a second pump, on which a volume meter was operating. The pump was therefore operating continuously without the meter functioning, over a period of about 17 hours. The appellant estimated that in that time it would have extracted 30-40 megalitres of water. The appellant's motivation in tampering with the meter: relevant evidence 34The appellant's purpose in pumping the water was one of the principal matters in dispute. His evidence was that his purpose was to feed water into the house dam, via the main channel, to be used for domestic purposes in accordance with his "basic landholder rights" conferred by s 52. There was no statutory obligation to meter water taken for that purpose. Events following the commission of the offence 35The State Water officers then examined the meter on pump 1, and discovered the steel rod. They contacted compliance officers from the NSW Office of Water ("NOW"). (I use the terminology that appears in the evidence. It is likely that State Water and NOW are the same entity.) Two compliance officers from NOW (Greg Delmenico and Kerry Hehir) attended in the early afternoon. They, too, observed the steel rod in the meter of pump 1. They contacted the appellant by telephone and he joined them at the Central Pump Site shortly thereafter. They had a conversation with him in which they introduced themselves and told him that they were present to investigate an allegation about interference with the water meter. The conversation which ensued was electronically recorded. A transcript of the conversation was in evidence. The following extracts from the conversation, as recorded in the transcript, are material to the issues raised in the appeal: "Q15 Ron, I guess - what can you tell us about the matter of the meter not working? A Err there was either the rod there, isn't it? ... Q17 So you agree that the rod was interfering with the meter? A It seems to be. Q18 Okay. Do you know anything about that rod being up the pipe? A Well, the rod's up the pipe anyhow. Q19 Okay. You don't know who placed it there? A No, the rod's up the pipe though. ... Q22 You agree it appeared to be interfering with the meter working? A The (indistinct) seems to be that way. Q23 Yeah, okay. Did you put the rod up the pipe, Ron? A I'm not too sure. Q24 Okay, so you're not sure whether you put it up there? A I don't know whether I was there when that - when it happened or not ... could have been. ... Q26 Okay. Who else could have maybe put the rod up the pipe? A It could have been the employee. Q27 What's the employee's name? A I couldn't tell you that now. Q28 You don't know -- A No, just say - just say meself, you put my name down there. Q29 So you knew the pipe rod was going up the pipe. A Yeah. Q30 -- to interfere with the meter? A Mm. Q31 Why did you authorise your employee to do that? A I don't know. It doesn't matter, it's done. Q32 Okay. What was the water being used (sic), Ron? A To fill the house dam at the moment. Q33 Right, so how long had the rod been up the pipe? A Yesterday, last night. Q34 Last night, about what time? A At - I don't know, 5 o'clock or something like that. ... Q39 Okay, alright. So apart from putting the rod up the pipe interfering with the meter last night at 5 o'clock to fill a house dam -- A Mm mm Q40 -- have you ever done that before? A Done it before? Q41 Yeah. A It probably has been done once or twice before. Q42 Okay. With your knowledge? A Sometimes without my knowledge. Q43 So an employee? A Once upon a time the water - I didn't understand it not long ago. Q44 You didn't understand what exactly? A And then it might have happened once or twice. Q45 Alright, so - but you weren't aware of it -- A Mm mm. Q46 -- those other times? Okay. Has the rod ever been up the pipe interfering with the meter with water being pumped into one of the irrigation storages or applied to any crops? A Sometimes when it goes to the house dam, it does goes (sic) past there and goes into the crop sometimes yes Q47 Okay. Could you -- A It wouldn't have been - it hadn't been done too often. Q48 Could you estimate volumes? A No. ... Q65 I guess, Ron, did you know it was wrong to put the rod up the pipe to interfere with the meter? A Yeah, I suppose I did, yeah. ..." In cross-examination the appellant explained his answer to question 46 in the following way: "No, what I meant there when you fill up the channel near the house dam at the school bus stop you fill - usually we keep the channel always full of water so when we want to fill up the house dam we can quickly and sometimes there you're still - if you start irrigating you irrigate too but you don't let the channel drop down, you try and keep the head up in the channel, at all times because not only does it just feed the water to the house dam it also feeds our livestock on the other side of the road." 36On 20 November 2009 Mr Craig Jones (also a compliance officer with NOW) and Mr Hehir attended at Ravensworth, by arrangement, for a further interview with the appellant. A transcript of that interview was also in evidence. The following questions and answers, as recorded, are relevant: "Q260 Yes. Do you agree you said you used the number 1 Caterpillar Diesel Pump? A Yes. Q261 When did you start that pump? A The day before. Q262 So that would be 21 July? A Yes. Q263 Do you know what time you started it? A I'm not too sure. It was late in the afternoon. Q264 Who did start the pump? A I did. Q265 Was anyone with you? A No. Q266 Did you check the water meter after you started the pump? A No. Q267 Where were you pumping water to? A In the channel. Q268 Once it had gone into the channel, where did you intend the water to go? A In the house dam. Q269 How much water did you want to deliver to the house dam? A I had to fill the channel up first but the house dam didn't take much. Q270 How much does it take to fill that channel? A It'd take easy 100 megs. It might even be more, 150 megs maybe. Q271 Was there any water in the channel at the time? A There was some; not a lot. Very little on this end; virtually none. Only puddle - only puddle holes sort of thing. Q272 So in general terms would you describe the channel as wet or dry? A Dry. It had some on the bottom and that was all. ... Q276 So what do you think the capacity of the house dam is? A It might only be a couple of megs, two or three megs. Q277 To fill the house dam on this, what's pretty well dry channel, how many megs do you think you'd have to pump to get it down there? A I'd say you'd need probably 100, 150 megs altogether. Q278 Yes. The water that was going to the house tank, what was the intended use of that water? A It was going for the houses. Q279 When you say for the houses, do you agree it was for general domestic use in those houses? A Mm. Q280 Such as drinking? A Mm. Q281 Washing? A Mm. Q282 Showering? A Mm. Q283 And garden, domestic garden watering? A Yes. Q284 Once the house tank was full, where would water go to after that if it continued to be pumped? A Most times we keep it in the channel but then after that it can go to irrigation. But most times it just sits in the channel. We usually keep the channel full so that if you've got to top the dam up you can real quick and you can just open the gate up again and it doesn't take much to fill it up. But this particular time the channel was right empty. Q285 Whilst you were filling the house tank, was anyone monitoring where the water was going? A No, but because it wasn't - it had only just got there. It was only just starting to get there. ... Q289 Do you agree earlier that I said the NSW Office of Water compliance officers located an object up the outlet pump of the number 1 river pump on 22 July? A Yes. Q290 Have you seen that object before? A Yes. Q291 What would you call it? A A steel rod. A stick. A steel rod. Q292 Can you tell me how the steel rod got into the pump outlet? A Yeah, I put it there. Q293 When did you put it there? A The day before when I started the pump. Q294 Do you know what time it would have been? A Late in the afternoon. Q295 What was your intention in putting the rod up there? A I was trying to fill the channel up so that I can get some water for my house dam because it was empty ... Q300 After you inserted the rod into the pipe, what did you do? A Started the pump. Q301 Did you check the meter after you started the pump? A No. Q302 Who manufactured the steel rod? A I did. Q303 When did you make it? A Can't remember. Before (indistinct). Q304 How did you make it? A In the workshop. Q305 What's it made out of? A Steel. ... Q307 Where did you normally keep the steel rod? A Just there. And it was just there at the pump site. ... Q311 Have you used that steel rod on any previous occasions? A I might have used it once before. ... Q316 Why did you want the meter to stop? A So I can fill my house dam up because the channel's low. Q317 You could have filled the house dam though with the meter operating. A Mm. Q318 So why did you want the meter stopped? A I just did. I did something I shouldn't have done. I know that. Q319 Do you agree by stopping the meter working properly that your account probably wouldn't be debited for the water that you extracted? A Yes. Q320 Was it your intention not to be debited that water? A Yes. ..." There followed a number of questions and answers it is not necessary here to record. Some time later the following question was asked and answer given: "Q408 Sorry, just looking at how much water was in the channel and whether it reached the house dam or not, could you make a reliable estimate of how much water you'd pumped from how much water was in the channel or in that house dam? A No, not really because the water had only just got to the house dam. At that time it had only just got to the - not to the house dam, it only got to the end of the school bus stop where the water stops. It only just got there from - and we also had another pump going at the same time so the water was just there. It depends. I didn't go along the channel to see where it actually was. I just know the next morning the channel was chock a block full and the house dam was full. ..." 37In his affidavit, the appellant explained why he had disabled the meter. He said that, on the afternoon of 21 July, he noticed that the house dam was becoming low. He intended to release some water from the main channel to fill the dam, but found that there was insufficient water in the channel to allow gravitational feeding into the house dam. For this to occur, it was necessary to pump water from the Central Pump Station into the channel. To do this, he wished to make use of his basic landholder's right under s 52 of the WM Act to take unmetered water for domestic or stock purposes. Access to water from the Murrumbidgee under that right did not require metering. 38Given the distance between the Central Pump Station and the house dam (22 kilometres) it typically takes about two days for water to travel from the Central Pump Site to the house dam. It takes another two days for the water to be filtered through the water treatment plant. For this reason, the appellant said, his usual practice was to maintain a high level of water in the main channel. Why this was not the case in July 2009 was not explained, but the appellant said that at "this particular time the channel was right empty". 39In paragraphs 49 and 50 of his affidavit the appellant said: "49 As I was intending to use the water to fill up the House Dam, and I understood that we were entitled to use Domestic and Stock Water for that purpose without it being ordered or metered, I did not want to use water allocated to the General Security Licence that could otherwise be used to irrigate commercial crops on Central Farm. That was a particular concern to me around this time because I was aware that there was a water shortage in the Murrumbidgee Regulated River Water Source. 50 For that reason, at about 5pm on 21 July 2009, I placed a rod in the pipe of the water flow meter for the pump known as "pump 1" at the Central Pump Site so that the water that was pumped for the purposes of the House Dam would not be debited to our water account. I then turned on pump 1." 40He said that when he returned to the Central Pump Site at 10am on 22 July (when he encountered Messrs Richardson and Dempsey) he did so with the intention of turning off pump 1 and turning on another (metered) pump. This would mean that the balance of water taken would be recorded on the meter of that pump. The evidence of the appellant 41The appellant's answers in cross-examination are not easy to interpret. For example, he was asked about his answer to question 46 in the first interview. The following questions and answers appear in the transcript of evidence: "Q I take you to question 46 [of the first interview, extracted above], do you accept you were asked this question, 'those other times, okay, has the rod ever been up the pipe interfering with the meter with water being pumped into one of the irrigations (sic) storages or applied to any [crops]?' Answer 'Sometimes when it goes to the house dam, it goes past there and goes into the crop sometimes, yes'. Do you accept that was the answer you gave in question 46? A Yes. Q So you told the person asking the question that you'd used the rod sometimes which means more than once, doesn't it? A No, what I meant there when you fill up the channel near the house dam at the school bus stop you fill - usually we keep the channel always full of water so when we want to fill up the house dam we can quickly and sometimes there you're still - if you start irrigating you irrigate too but you don't let the channel drop down, you try and keep the head up in the channel at all times because not only does it just feed the water to the house dam it also feeds our livestock on the other side of the road. ... Q In any event lets look at the answer, 'and goes into the crop sometimes', can you use the red pen and mark with whatever shape is appropriate, a circle, a square, where you're referring to 'it sometimes went into the crop'? A What I'm trying to say there - all the time what I tried to say there is it's a double edged sword there. We fill the channel up and when the channel's full and that's where we keep it full so we've got our stock order for the other side of the road and we also keep it full so we can fill the house dam at any time - when you want to find out your house dam's low you can go and open the gate and fill it and then sometimes there if you're irrigating your crops later on when you want to irrigate your crops, well, what pallets of water - I've been to the dam and there's two lots of water in there sort of thing so when you want to irrigate your crops you still keep the channel at the same height. It's a bit hard question to answer, sir. ... Q So on one occasion at least previously when you've used the rod the water was used to irrigate crops, wasn't it? A No. ... Q Having been taken to those answers didn't you say previously that on at least one occasion the water extracted after using the rod on the meter had been used to go on the crops? A All the time I said when we filled up the channel all the time - we try and keep the channel full all the time for your livestock on the other side of the road and your Pethers (?) block and also fill our house dam up. At the same time if you can irrigate on the other side, well sometimes the water - you always keep that channel full and water can still go past onto the other side. ... Q So once the house dam is filled the water left in the channel, some of that goes to irrigating crops, doesn't it? A It's only when you start pumping to go to irrigate you still keep the channel full, the channel is still full. Q So some of the water used to fill the house dam once you recommence pumping, that existing water would then used to be irrigate that was in the channel? A No, it'll still be equivalent because you've still got the channel full and the water runs over the top, over the other side, so you kept the channel full. Q Can you explain that running over the top? A Well, or you can keep the channel at a certain height and while you're there you just regulate your pipes at the other end, at the gate, so as X amount of water is coming down you keep the channel height exactly the same, you don't drop the level so you keep the same volume of water in that channel at all times so you don't drop the volume of water that's in that channel. Q So are you saying none of the water already in the channel that's moved along? A It's only got new water coming from the pump site, new water comes in and move over, it might mix up but the channel is always still full. Q So some of the water existing in the channel in the way you've described would then be used to irrigate? A No, it depends. You can't tell which water it was that was in there. You use a common channel. ... Q And if you hadn't been detected on 22 July 2009 the plan was to fill your channel for the whole 22 kilometres? A That's why I went and swapped over and put the other motor on and I also had - there was two other pumps pumping into that channel that day. There was also one pump in storm water. Q So as I understand it you say about 10am on 22 July you turned up to stop the pump pumping to which the rod was connected? A Yes. Q If all you wanted to do was fill the house dam for two to three megalitres you could have done that, that is, stock [sic - ? stop] the rod being around the meter on the afternoon or evening of 21 July 2009 so that only about two to three megalitres went? A No. Q Why not? A Because you had to build the channel head level up high enough to get the water to gravitate into the house dam." 42In oral evidence the appellant agreed that that part of his answer to question 295 in the second interview, that the house dam had been empty, was incorrect. He said that the house dam "might have been a third full". 43Throughout his oral evidence, the appellant maintained that his intention in disabling the meter was to facilitate the exercise of his rights under s 52 of the WM Act. He did not wish his entitlement under WAL 8309 to be debited with water to which he was entitled to have free access. 44The appellant was extensively cross-examined. He was asked about the apparent evasiveness in his responses to Mr Delmenico in the initial interview. He said this was: "... because I was just told there was an offence committed and I was devastated really and I've got the officers there and I'm not too sure what you should say or do then." Asked if he panicked, he said: "I'm not too sure, I didn't have any representation or anything there." 45Concerning his intention in disabling the meter, what was, in effect, put to the appellant in cross-examination was that his intention was to fill the main channel with unmetered water taken pursuant to his s 52 rights, but, consistently with his answers to question 284 in the second interview, and consistently with past practice, after filling the house dam, to use the water remaining in the channel to irrigate crops. This would be an impermissible use of water taken under s 52. It was in response to these questions that the appellant gave the answers recorded at para [41] above. It was never clearly or directly put to the appellant that his motive in disabling the meter was financial gain, nor that his intention was to use the unmetered water (or some of it) to irrigate crops and to avoid paying for that water. 46As I have noted, the appellant's answers are not easy to interpret. It seems to me that what he was saying was that he intended to exercise his s 52 rights to provide water to the house dam. This entailed taking more water than the 2 to 3 megalitres that would fill that dam, because of the need to create sufficient force for the water to "gravitate" to the dam. (There was no evidence as to the gradient of the main channel, but there was no challenge to his evidence in this respect.) The consequence was that, after the house dam filled, there remained some unmetered (s 52) water in the main channel. By reason of s 52(1)(c) that water could not be used for any purpose other than domestic or stock requirements. However, having taken sufficient water to fill the house dam, the appellant then intended to switch pumps, in order to obtain metered water that could be used for irrigation purposes. The inevitable result would be a mingling of unmetered and metered water. Some of the (unmetered) water pumped by pump 1 was at least available for irrigation purposes (whether actually used for that purpose or not). What, it seems to me, the appellant was saying was that, to the extent that this occurred, he made good so much of the unmetered (s 52) water used for irrigation by replacing it with metered water. 47It is reasonably clear that the appellant could make no precise assessment of the quantity of unmetered water taken via pump 1, and that taken via a metered pump. That, however, is a consequence of a number of factors, including that the main channel had to be used to funnel water for both s 52 purposes, and for irrigation and any other non-s 52 purpose. 48Cross-examination of the appellant established that he had, prior to the offence, planted a considerable wheat crop which it was hoped would eventually realise "some millions of dollars". He had also (as deposed in his affidavit) placed an order for 300 megalitres of water. That water had not, at the time of the offence, been made available. What is not clear is when it would have become available and when the appellant required it for the purpose of the wheat crop.

Sentencing considerations 49It was common ground that, in addition to the specific provisions of s 364A of the WM Act, the Sentencing Procedure Act applies in the determination of an appropriate penalty for an offence under the WM Act. Section 21A(2) of the Sentencing Procedure Act contains a comprehensive catalogue of circumstances that a court must take into consideration as features aggravating an offence. Relevantly for the present case, that sub-section identifies as an aggravating factor: "... that the offence was committed for financial gain." (s 21A(2)(o)) 50Those matters listed in s 364A of the WM Act that are, by reason of the issues raised on the appeal, here relevant are those mentioned in sub-paras (a)-(h).

The issues in the Land and Environment Court 51The hearing in the Land and Environment Court occupied two days. Two witnesses, Mr Simpson and the appellant, gave evidence at length, and were extensively cross-examined. Mr Simpson's affidavit evidence appears to have been primarily directed to establishing that the offence was committed during a period of "severe water shortage" (s 364A(1)(g)). If that were so, it would operate as a circumstance increasing the seriousness of the offence. Otherwise, in his affidavit, Mr Simpson explained the water management system. Cross-examination of the appellant was principally directed to establishing that he committed the offence for the purpose of obtaining, without payment, water for irrigation - that is, he committed the offence for financial gain. 52At the conclusion of the hearing, each party provided her Honour with written submissions. By this time, the issues were more clearly defined. The respondent identified as relevant the following: (i)the volume of unmetered water taken; (ii)the market value of the water; (iii)"the intention and motive" of the appellant in committing the offence, and, in particular, whether there was any financial gain, whether by not incurring an expense that would otherwise have been incurred or otherwise; (iv)whether the offence was committed during a "severe water shortage" (see s 364A(1)(g)); (v)whether the offence was or was not an "uncharacteristic aberration"; (vi)whether the water taken during the commission of the offence fell within the appellant's domestic consumption rights as provided by s 52 of the WM Act; (vii)whether, if the water was taken in the exercise of rights under s 52, it needed to be metered. 53An important concession was made by the respondent in the Land and Environment Court. That was that, at the time of the offence, there did not exist in any relevant legislation any requirement that a water meter be installed for pump 1. (Such requirements may be imposed by way of conditions on approvals (s 90) or licences (s 56), and they may be imposed by direction of the Minister under s 326 of the WM Act.) 54It was also explicitly recognised that the appellant was not charged with any offence of taking water unlawfully. 55The issue that occupied the largest proportion of the time taken in the Land and Environment Court was the appellant's motivation in committing the offence. Another issue, that does not appear to have taken a great deal of time, was whether s 52 was applicable - that is whether the appellant had rights under that section. Since this issue was resolved in his favour, it is unnecessary to explore the detail of the respondent's contention. I mention it here because it is relevant to the appeal so far as the costs order is concerned.

The judgment 56The judgment is comprehensive. The bulk of it is taken up with the assessment of the objective gravity of the offence. Some matters, no longer in dispute, can be disposed of at the outset: (a)her Honour rejected an argument put on behalf of the respondent that the offence was "part of a planned or organised criminal activity" (Sentencing Procedure Act, s 21A(2)(n)) (paras [148]-[152]); (b)she rejected another contention put on behalf of the respondent that the offence was committed during a "severe water shortage", and, therefore, in accordance with s 364A(1)(g), aggravated (paras [115]-[127]). (She held, however, as a factor relevant to objective seriousness, that there was a "water shortage" (even if not severe) at the time of the offence); (c)she found the market value of the water taken to have been between $5130 and $6840, and the water "not of significant monetary value"; (d)she considered various other matters under s 364A. They will be mentioned below. The assessment of the objective gravity of the offence 57For the purposes of this appeal it is her Honour's consideration of the objective seriousness of the offence that principally commands attention. That consideration had a number of aspects. 58Perhaps the most significant finding with respect to the assessment of objective gravity was a finding that the offence was committed for financial gain ([99]). That was treated as an aggravating factor that was (as it had to be) proved beyond reasonable doubt. In reaching this conclusion her Honour rejected the appellant's evidence that his purpose in tampering with the meter was to enable him to take unmetered water in accordance with his statutory rights. She found as a fact that a significant proportion of the 30-40 megalitres of water pumped during the commission of the offence was to be utilised for the purposes of the wheat crop that had been planted. 59In coming to this conclusion, her Honour made no direct findings concerning the credibility of the appellant. Instead, she relied upon six aspects of the evidence from which she drew the inference that the appellant's intention was to acquire the water for the purposes of irrigation. In particular, her Honour made no findings with respect to the appellant's evidence to the effect that he intended to pump metered water into the main channel to balance any unmetered water used for irrigation. The six matters upon which her Honour relied were:

the appellant's answer, in the second interview: "Most times we keep it in the channel but then after that it can go to irrigation.";
his answer given in the first interview: "Sometimes when it goes to the house dam, it goes past there and goes into the crop sometimes, yes.";
an acknowledgement given in cross-examination by the appellant that it would have been open to him to have taken 2 to 3 megalitres of water pursuant to his s 52 rights, and then used another (metered) pump and "another account" to pump the water necessary to provide the gravitational force that would project the water into the house dam;
the fact that the appellant had planted a wheat crop for which he had ordered 300 megalitres of water which had not arrived at the time of the commission of the offence;
the fact that it had been a dry winter and there was a water shortage in the area;
the fact that only a small proportion of the 30 to 40 megalitres pumped during the meter tampering was capable of being used for domestic consumption. 60Her Honour said: "96 I have no hesitation in finding that the water pumped by [the appellant] was not wholly to be used for 'domestic consumption' as claimed by [the appellant], but that a significant proportion of the 30 to 40 ML pumped during the commission of the offence was to be utilised by [the appellant] for irrigation of his wheat crop. This was not a permissible purpose under s 52 of the [WM Act] and [the appellant] cannot rely on it in mitigation. 97 Moreover, in my opinion, acting lawfully pursuant to an exercise of rights under s 52 could only authorise the extraction of sufficient water to fill the House Dam. Otherwise the provision would give those water users with a domestic dam some distance from the water source a considerable advantage over those whose dams were closer in proximity to the extraction source. I do not believe that this was the objective intention of the legislature in enacting s 52 of the [WM Act]." 61Notwithstanding these significantly adverse findings, her Honour found that the offence was of "low objective gravity". 62Other conclusions were also relevant to the assessment of objective gravity. These were: (i)at [110]: that "real harm was nevertheless caused to the regulatory regime enshrined in the [WM Act], a regime created to protect and manage one of our most vital and scarce resources, viz, water" (WM Act, s 364A(1)(c)); (ii)at [114]: that extraction of water other than in accordance with the regulated scheme "upsets the equitable sharing system in place under the [WM Act]" (s 364A(1)(a)); (iii)that, although there was no "severe water shortage" at the time of the offence (s 364A(1)(g)), there was, nevertheless, a water shortage (s 364A(2)); (iv)at [144]: that the harm caused by the offence was reasonably foreseeable (s 364A(1)(e)); (v)at [146]: that there were practical measures available to avoid the harm (s 364A(1)(d)); (vi)at [147]: that the appellant was in control of the causes of the offence (s 364A(1)(g)). Other penalty considerations 63Her Honour turned to consider mitigating factors. These were agreed and were as follows:
the appellant has no prior criminal history, and has not been charged with any previous water offence;
but for the commission of the offence the appellant was a person of good character;
the appellant was unlikely to re-offend;
the appellant has good prospects of rehabilitation;
the appellant entered a very early plea of guilty entitling him to a 25 per cent reduction in the penalty that would otherwise have been imposed: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383;
the appellant provided assistance to authorities to the extent that he voluntarily participated in two interviews in which he made various admissions; he co-operated with investigators by showing the NOW officers around the property; and he assisted in the preparation of the Amended Statement of Agreed Facts. She accepted that the appellant expressed a degree of remorse although she noted that he had never apologised for the unlawful act. She regarded the appellant's adherence to his position that he tampered with the meter in order to exercise his rights under s 52 of the WM Act as inconsistent with contrition or remorse. 64In all, she considered that the subjective circumstances operated to mitigate the penalty that would otherwise have been imposed and determined that a reduction of 30 per cent was appropriate. That incorporated the reduction attributable to the plea of guilty. Her Honour considered that the appropriate penalty referable to the objective circumstances was one of $40,000, and reduced that by 30 per cent to arrive at the $28,000 penalty she ultimately imposed. 65She considered that both specific and general deterrence were relevant considerations, as were denunciation and retribution. Other orders 66Her Honour acceded to the application of the respondent that the appellant be ordered to pay the costs of the prosecution, recognising that those costs would be "not insignificant". 67She then made the publication order to which I have referred above. She accepted a proposal as to the content put on behalf of the respondent that the notice be in the following terms: "Publication Order - Ronald Norman Harris Convicted of Meter Tampering On 17 July 2013, the Land and Environment Court of New South Wales found Ronald Norman Harris of Ravensworth, Hay, NSW guilty of an offence against the Water Management Act 2000, in that he intentionally interfered with or disconnected metering equipment that had been installed in connection with a water supply work. The Court found that in July 2009 Mr Harris had tampered with a water meter connected with a pump installed to pump water from the Murrumbidgee River. Mr Harris had tampered with the water meter by attaching a steel rod around the water meter's impellor which prevented the meter from recording the volume of water being pumped from the River. At the time of the offence there existed a water shortage in the Murrumbidgee Regulated River Water Source. The relevant Water Sharing Plan was suspended on 10 November 2006 because the water resources available were so limited that the provisions of the Water Sharing Plan could not be implemented. The Murrumbidgee Regulated River had moved into drought conditions from that date and remained effectively in drought conditions until February 2010. The Water Sharing Plan continued to be suspended until 16 September 2011. Mr Harris was fined $28,000 and ordered to pay the prosecutor's legal costs as agreed or assessed. Mr Harris was prosecuted by the NSW Office of Water and was ordered by the Land and Environment Court to place this notice in this publication. The NSW Office of Water is now part of the NSW Department of Primary Industries." 68She rejected a proposal put on behalf of the appellant that the notice include: "Mr Harris was extracting the water to fill up his house dam and the channel leading to it."

The grounds of appeal 69The grounds of appeal pleaded are numerous. On behalf of the appellant it was asserted that a number of errors can discerned in the approach taken by her Honour to the assessment of the objective gravity of the offence. The principal attack was made upon the finding that the appellant committed the offence for financial gain. This, in itself, had a number of strands. In part the finding rested upon the conclusion at [97] set out above ([60]). That was that s 52 of the WM Act entitled the appellant to take only sufficient water to fill the house dam - 2-3 megalitres. The rationale for that conclusion was that, if it were not so, then water users with a dam some distance from the water source would acquire a significant advantage over others. It appears that her Honour considered that the quantity of water taken during the commission of the offence so far exceeded the appellant's s 52 rights (as she considered them to be) that it should be inferred that the water was taken for other purposes, the obvious one being crop irrigation. Consideration 70This reasoning, and the conclusion, are flawed. Her Honour's construction of s 52 does not find any support in the clear words of the section. The provision imposes no limit on the quantity of water that may be taken for domestic or stock purposes. The limitation - the sole limitation - imposed by s 52 is as to the use to which the water taken under the section may be put. There is little doubt that the provision confers variable rights on landholders, depending on the circumstances of their properties and their stock holdings. The reasoning of her Honour would also apply to landholders who had large dams; those who had voluminous tanks or other storage facilities; and to those who had high numbers of stock. No doubt s 52 was drafted in recognition that the rights it conferred would be exercised by landholders with existing infrastructure, and by those who continued to develop and improve their properties. Provided the water taken was used for domestic or stock purposes, s 52 imposes no limit on the volume thereby taken. The restriction imposed in para [97] is artificial, and outside the language of the section. 71In any event, s 52(1)(b) expressly permits the construction and use of a "water supply work" for the purpose of taking water. The main channel comes within the definition of "water supply work". The main channel was necessary to enable the water to be conveyed to the house dam. Without using the main channel to convey the water to the house dam, the appellant would have been unable to exercise his s 52 "domestic and stock rights". Her Honour noted, but appears to have rejected, a submission made on behalf of the appellant, that: "Whenever anything is authorized, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorized in express terms be also done, then that something else will be supplied by necessary intendment.": Transport Workers' Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26; 166 FCR 108 72The erroneous construction of s 52 was one of the factors, but not the only factor, that led her Honour to conclude that the appellant committed the offence for financial gain. It remains to be seen, however, what effect (if any) the erroneous conclusion had on the outcome of the proceedings. 73Since the appellant had a right to take unmetered water for s 52 purposes, it could not be concluded that the mere fact that he took water in excess of that that could be stored in the house dam was an indicator that he did so for financial gain. That is not to say, however, that taking water in excess of what could reasonably be used for domestic or stock purposes could not be used to provide the basis for an inference that the water was taken for other, illegitimate, purposes. Much depends on the circumstances. Here, it was uncontested that, even though the house dam's capacity was limited to 2-3 megalitres, it was necessary to take vastly more than that quantity in order for the appellant to exercise his s 52 rights. 74There were other reasons given by the judge for reaching the conclusion that the offence was committed for financial gain. These were the six matters set out above: [62]. It is necessary to consider whether these six matters, with or without the erroneous construction of s 52, could sustain the conclusion as to the appellant's motivation in committing the offence - bearing in mind (as her Honour did) that an aggravating feature must be proven beyond reasonable doubt. 75Two of the six matters concerned the admissions made by the appellant in the first and second interviews to the effect that, on other occasions, water from the main channel could have been, or had been, used for irrigation purposes. The answer in the first interview was unequivocal, and related expressly to water pumped while the meter was disabled. On examination, however, the answer in the second interview was not unequivocal; it was given in a general context of questions concerning water contained in the main channel, not necessarily sourced via an unmetered pump. 76Also considered relevant was an answer given by the appellant in cross-examination, acknowledging that he acted as he did in order to exercise his s 52 rights, and that, had he chosen to do so, he could have used another (metered) pump. In my opinion, this answer could not properly be used to support the inference that the offence was committed for financial gain. True it is that the appellant could have used another pump, which would have metered the water taken, for which he then would have been liable to pay. That would have been an exercise of his rights under WAL 8309, and would have been recorded as part of his licence allocation. It would also have incurred a charge. But the appellant was entitled, without metering or charge, to take water for s 52 purposes. It can hardly be said that avoiding a payment he was not obliged to make was obtaining a financial gain. 77Also relevant in the equation was the fact that the appellant had planted a wheat crop. That is a circumstance that might indicate a need for water. However, it was linked to the fact that the appellant had ordered a quantity of water which had not arrived. The fact that water had been ordered specifically for the wheat crop does not support a conclusion that the appellant took unmetered water for that purpose and therefore to avoid payment of water he would have otherwise have had to make; it points in the opposite direction. There was no evidence to indicate when the appellant needed that water, and no evidence when it was expected to be made available. 78The final circumstance taken into account in this conclusion was that only a small proportion of the water taken was capable of being used for domestic consumption. On its own, that may be a circumstance providing the basis for an inference that the purpose of taking the water was other than for domestic or stock use. However, it ignores the appellant's explanation that, in order to deliver the 2 to 3 megalitres into the house dam, it was necessary to take more water to provide the gravitational force required. He said that, by 10.00am on 22 July, the water was only beginning to reach the house dam. 79In my opinion, the admissions made in the second interview could not be used to support a conclusion beyond reasonable doubt that the meter tampering offence on 21 July was to enable the appellant to take water for which he ought to have paid, and was therefore committed for financial gain. Nor could the answer given in cross-examination in which the appellant asserted his s 52 rights; far from supporting that conclusion, it indicates to the contrary. The evidence concerning the wheat crop is no more than neutral, in the absence of other evidence to demonstrate the need for water before that which had been ordered became available. The very fact that water had been ordered points in the opposite direction. 80The conclusion (beyond reasonable doubt) that the offence was committed for financial gain is unsustainable. That was a significant feature in the assessment of objective seriousness. 81Grounds 12, 13 and 14 concern what might be called subsidiary findings with respect to objective gravity - that is (i) that actual environmental harm was caused by the commission of the offence, (ii) that there was harm or damage to the regulatory system caused by the offence, and (iii) that the offence upset the equitable sharing system in place under the WM Act. Essentially, these grounds assert that the judge treated the offence, not as one of tampering with a meter, but of taking water unlawfully. I think there is merit in these grounds. It is true that it is almost impossible to disentangle the offence of tampering with the meter from its consequences in the taking of unmetered water. The seriousness of those consequences depends upon the extent (if any) to which the appellant in fact used the water for irrigation rather than for domestic or stock purposes. Actual environmental harm cannot be caused by a mere intention to do something, whether lawful or unlawful. Nor can the equitable sharing system be upset by an intention to do something unlawful. These consequences, if they existed, would have resulted from an offence different from that with which the appellant was charged. What he in fact did with the water formed no part of the prosecution case. Pepper J was satisfied beyond reasonable doubt that the appellant intended to use the bulk of the water for irrigation. For reasons I have given, that conclusion is unsustainable on the evidence. Even if sustained, it does not have the consequences found. 82Moreover, to treat the consequences of the offence as including the unlawful taking of water comes dangerously close to contravening the rule in The Queen v de Simoni [1981] HCA 31; 147 CLR 383. I accept, as was pointed out by senior counsel for the respondent, that any additional offence that might be applicable such as, for example, offences against s 91A (unauthorised taking of water), s 91B (unauthorised use of a water supply work) and s 91H (failure to install or maintain metering equipment as required) are all "Tier 2" offences, and therefore of lesser gravity than a s 91K offence, and not strictly within the de Simoni principle. However, care must be taken to ensure that an offender is not punished for an offence which is not charged. 83If it be accepted that the appellant was entitled to take the quantity of water he did for s 52 purposes, there can be no environmental harm caused by an offence that facilitated the exercise of that right. Similarly, there could be no harm or damage to the regulatory system, since the water taken was within the bounds of that system. The same applies to the finding that the offence upset the equitable sharing system. 84Grounds 2 and 3 of the Notice of Appeal complain that, in assessing the objective seriousness of the offence, and in considering circumstances of aggravation, the judge failed to take into account the concession made by the respondent that there was no obligation on the appellant to install or use a meter on the pump. 85I consider these grounds of appeal also to have been made out. To disable a pump required by law to be installed and operational is, in my opinion, a more serious offence than disabling a pump which is not so required. 86It is reasonably clear that the overall scheme of water administration requires the installation and use of meters on pumps used to extract water pursuant to various licences for which the WM Act provides. Interference with the operation of a meter installed for that purpose would be a serious offence. In my opinion, the fact that the meter the subject of the offence was not required to be installed is a significant matter of mitigation. 87Further complaint was made (ground 15) that the judge, in assessing objective gravity, took into account that there was a water shortage at the time. The complaint was that, since s 364A(1)(g) of the WM Act specifies that there was a "severe water shortage", then the fact that there is a mere "water shortage" is irrelevant. In my opinion this ground should be considered along with those concerning environmental and other harm. That there is a water shortage has no bearing on the offence of tampering with a meter; it might be different if the offence were of taking water unlawfully. 88The classification of an offence against s 91K as a Tier 1 penalty offence, the magnitude of the monetary penalty provided, and the possible term of imprisonment prescribed are indicative of the seriousness with which the legislature regards the water management scheme. Other Tier 1 penalty offences are the intentional or reckless unauthorised taking of water (eg s 60A(1) and (3)) and the intentional or reckless taking of water for which there is an insufficient allocation (eg s 60C(1) and (3)). 89The purpose of s 91K is, it seems to me, to ensure the maintenance of the integrity of the water management scheme, which would be seriously compromised if meters required to be installed were interfered with in order to bypass the arrangements for the equitable sharing of water. It was no doubt considered that, in the ordinary case, deliberate (intentional or reckless) interference with a meter would be done with the intention and the consequence of bypassing those arrangements. That, in my opinion, explains the classification of the offence as a Tier 1 penalty offence. 90In this case, as I have concluded, the evidence could not establish beyond reasonable doubt either that intention or that consequence. 91It is of interest that, even in the face of her conclusion that the appellant acted with that intention (and that, if undiscovered, his actions would have had that consequence), Pepper J still judged the offence to be one of low objective gravity. Her assessment that the starting point for the monetary penalty should be $40,000 reflected that assessment. That is just over 3.6 per cent of the maximum penalty. Nevertheless, the assessment took into account impermissible aggravating circumstances that must have affected the end result. 92A matter that was not drawn to her Honour's attention, and a significant matter, is that the offence could have been prosecuted in the Local Court, where the maximum applicable monetary penalty was $22,000. It is well established that that may be a relevant sentencing consideration: R v Crombie [1999] NSWCCA 297; R v Doan [2000] NSWCCA 317; 50 NSWLR 115. 93In Doan, Grove J, with whom Spigelman CJ and Kirby J agreed, observed that the fact that an offence could have been dealt with in a court with a lower jurisdictional limit is an available circumstances to be taken into account; the significance of the circumstance varies from case to case (at [42]). 94In Zreika v R [2012] NSWCCA 44, Johnson J, with whom McClellan CJ at CL and Rothman J agreed, considered in detail a number of relevant authorities. His Honour first observed (at [83]) that it was difficult to see how the possibility of summary disposal (in a court with more confined jurisdiction) came within the rare category of cases in which this Court would allow a point not taken at first instance to succeed (cf Criminal Appeal Rules (NSW), s 4). His Honour said: "109 Unless this Court is able to clearly determine that the offence in question, committed by the particular offender with his or her criminal history, ought to have remained in the Local Court, then the argument is theoretical at best. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice ... ... 111 The ground of appeal can only be meaningful if this Court determines that the total sentence for the particular offence should not have exceeded the jurisdictional limit of the Local Court ... 112 Unless it is plainly wrong that the offence is in the District Court [read Land and Environment Court], it is difficult to see how an offender can succeed on a ground of appeal which claims that a relevant factor has not been taken into account by the sentencing Judge." (italics added) 95In this case, senior counsel for the respondent argued that it was legitimate to bring the proceedings in the Land and Environment Court because s 91K had not been the subject of prior judicial consideration at the level of a superior court. It was, he contended, desirable that a superior court rule upon the issues raised. That may be so, but it exposed the appellant to a maximum penalty 50 times that which could have been imposed in the Local Court. 96Given 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. 97Notwithstanding 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. 98I 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. 99In the circumstances of this case, I would not prevent the appellant from advancing this circumstance as relevant to the issues before this Court. 100Moreover, in considering the appropriate penalty, it was legitimate to take into account the associated costs order and publication order. Although she had no way of knowing at what amount the costs would be assessed, Pepper J recognised that it would be substantial. This Court was told by senior counsel for the respondent that the costs it would seek to recover were $75,000. Whether such an amount would be ordered after assessment is not known, but there was never any doubt that they would be substantial. 101In view of the finding (with which I agree) that the offence was one of low objective gravity, together with the costs order, I am of the view that the offence was one that ought to be dealt with pursuant to s 9 of the Sentencing Procedure Act. 102That brings me to a consideration of the costs order. Much of the time taken up in the Land and Environment Court proceeding was devoted to one issue (the applicability of s 52) on which the respondent failed at first instance; another part of it was devoted to an issue (the appellant's motive in committing the offence) which the respondent has, after appeal, failed to prove to the requisite standard. Mr Simpson's evidence was directed to an attempt (unsuccessful at first instance) to prove that the offence was committed at a time of severe water shortage. For that reason, the appellant should not be liable to pay the entire costs of the proceedings. In any event, any costs for which the respondent is liable should be assessed on the basis that the proceedings were brought in the Local Court and should exclude so much of the hearing time, and preparation, as was taken up with those issues. 103However, there is a further important consideration. The appellant has had a very significant measure of success in this appeal. By s 17(1) of the Criminal Appeal Act, he is not entitled to recover any costs of the appeal. In my opinion, that circumstance warrants setting aside the costs order made by the Land and Environment Court.

The publication order 104The final matter for consideration is the publication order. It was in respect of this order that a jurisdictional issue arose. It is the respondent's contention that this Court does not have jurisdiction to deal with an appeal against that order.

The jurisdiction of this Court 105The publication order was made under s 353G(1)(a) of the WM Act. Section 353G appears in Ch 7 thereof. Chapter 7 is entitled "Enforcement". Parts 1 and 2 of Ch 7 set out a wide range of enforcement actions that may be taken by the Minister or authorised officers. Part 3 creates a series of offences. Part 3A, in which s 353G appears, is headed "Court orders in connection with offences". The following provisions are relevant: "353 Operation of Part (1) This Part applies where a court finds a person guilty of an offence against this Act. (2) ... 353A Orders generally (1) One or more orders may be made under this Part against the offender. (2) Orders may be made under this Part in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. 353G Additional orders (1) The court may do any one or more of the following: (a) it may order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the offender, (b) it may order the offender to carry out, or contribute a specified amount to the cost of carrying out, a specified project for the restoration or enhancement of the environment in a public place or for the public benefit, (c) it may order the offender to attend, or cause an employee or employees or a contractor or contractors of the offender to attend, a training or other course specified by the court. (2) The Local Court is not authorised to make an order referred to in subsection (1)(b) or (c). (3) The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order. (4) If the offender fails to comply with an order under subsection (1)(a), the prosecutor or a person authorised by the prosecutor may take action to carry out the order. (5) The reasonable cost of taking action referred to in subsection (4) is recoverable by the prosecutor or person taking the action, in a court of competent jurisdiction, as a debt from the offender." 106I have mentioned above that proceedings for offences against the WM Act are to be disposed of summarily, either in the Local Court or in the Land and Environment Court in its summary jurisdiction (s 364). An appeal from a decision of the Land and Environment Court is brought under s 5AB of the Criminal Appeal Act, which permits a person convicted of an offence in the summary jurisdiction of the Land and Environment Court to appeal to this Court under s 5AA of the Criminal Appeal Act. It is s 5AA that spells out the parameters of the appeal. Relevantly, s 5AA provides: "5AA Appeal in criminal cases dealt with by Supreme Court or District Court in their summary jurisdiction (1) A person: (a) convicted of an offence, or (b) against whom an order to pay any costs is made, or whose application for an order for costs is dismissed, or (c) in whose favour an order for costs is made, by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order. ... (4) The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Supreme Court in its summary jurisdiction or may order that the determination made by the Supreme Court in its summary jurisdiction be vacated and make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal. ..." Section 5AB provides: "5AB Appeal in criminal cases dealt with by Land and Environment Court in its summary jurisdiction Section 5AA applies to and in respect of a person: (a) convicted of an offence, or (b) against whom an order to pay costs is made, or whose application for an order for costs is dismissed, or (c) in whose favour an order for costs is made, by the Land and Environment Court in its summary jurisdiction in the same way as it applies to a person referred to in section 5AA(1), and, for the purposes of this section, a reference in section 5AA to the Supreme Court shall be read and construed as a reference to the Land and Environment Court." 107The respondent's contention is that an order under Ch 7 Pt 3A is not a "sentence" within the meaning of s 5AA(1) of the Criminal Appeal Act, and is therefore not subject to appeal to this Court. Two bases were advanced for this proposition. The first is the terms of s 353A(2): "Orders may be made under this Part ... in addition to any penalty that may be imposed ..." (italics added) 108It may at once be acknowledged that there is some apparent force in this submission. The language of sub-s (2) does indeed support the proposition that an order under Pt 3A is not a penalty. It would be otherwise if the language used were "in addition to any other penalty". I will return to this. 109The second reason advanced by the respondent invokes the definition of "sentence" for the purposes of the Criminal Appeal Act, contained in s 2 thereof. In order to deal with the argument, it is necessary to set out the whole of the lengthy definition: "Sentence means: (a) any order made by the court of trial on convicting a person of an offence, including: (i) any sentence of imprisonment (including any sentence of imprisonment the subject of an intensive correction order or home detention order and any sentence of imprisonment whose execution is suspended), and (ii) any community service order, and (iii) any good behaviour bond, and (iv) any fine, imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999, or (b) any order made by the court of trial in respect of a person under section 10 or 11 of the Crimes (Sentencing Procedure) Act 1999 on finding the person guilty of an offence, or (c) any order made by the court of trial in respect of a person under section 12 or 17A of the Crimes (Sentencing Procedure) Act 1999 on convicting the person of an offence, or (ca) any order made by the court of trial, after a person's conviction for an offence, revoking a good behaviour bond and any order made by the court of trial as a consequence of the revocation of the good behaviour bond, or (d) any order made by the court of trial imposing a limiting term of imprisonment on a person under section 23(1) of the Mental Health (Forensic Provisions) Act 1990, and any other order or penalty made or imposed by the court of trial in respect of the person under section 23 (2) of that Act, or (e) any order made by the court of trial in respect of a person under section 39 of the Mental Health (Forensic Provisions) Act 1990, or (f) any direction for compensation made by the court of trial in respect of a person under section 94 (Directions for compensation for injury) or 97 (Directions for compensation for loss) of the Victims Rights and Support Act 2013, or (g) any order for restitution made by the court of trial in respect of a person under section 43 of the Criminal Procedure Act 1986, or (h) any order for the payment of costs made by the court of trial in respect of a person under Division 3 of Part 5 of Chapter 4 of the Criminal Procedure Act 1986, or (i) any child protection registration order made under section 3D of the Child Protection (Offenders Registration) Act 2000, or (j) (Repealed) and the power of the Court of Criminal Appeal to pass any such sentence includes power to make any such order or direction." 110The respondent's contention was that the publication order does not come within any sub-paragraph of the definition. Accordingly, so the argument ran, the publication order was not a "sentence" within s 5AA of the Criminal Appeal Act, and not susceptible of appeal under that provision. The appellant's response was to rely on the words "or order" in the concluding part of s 5AA(1). The respondent countered - correctly, in my opinion - by arguing that, in its context, "order" can only mean a costs order of the kind referred in s 5AA(1)(b) and (c). 111There are three fundamental flaws in the respondent's argument, any of which would be fatal. 112The first, and most simply exposed, flaw lies in overlooking the opening words of the definition of "sentence". A "sentence" is "any order made by the court of trial on convicting a person of an offence". The definition could stop there. The detailed individual subparagraphs that follow are illustrative of the kinds of orders that are included. They do not mark out the boundaries of the definition. The publication order was "an order made by the court of trial on convicting [the appellant] of the offence". It is therefore a "sentence" (or a component of a sentence) within s 5AA. 113There are cases that suggest that the use of the word "includes" (or "including") in a definitional provision may import an "exhaustive explanation of the meaning of the word described: see, for example, Dilworth v Commissioner of Stamps [1899] AC 99; YZ Finance Co Pty Ltd v Cummings [1964] HCA 12; 109 CLR 395. 114This is not such a case. Section 2 of the Criminal Appeal Act contains, in the opening words, a complete definition, which incorporates all the orders that are mentioned, by way of example, in the subparagraphs that follow. 115The second flaw in the argument is this. While it is correct to say that the publication order does not come within any sub-paragraph of the s 2 definition of "sentence", it is equally true that the order imposing the fine of $28,000 does not come within any sub-paragraph of that definition. If the respondent's argument were accepted, the fine also would not be a "sentence" within s 5AA. Yet the respondent does not challenge the jurisdiction of this Court to entertain an appeal against that order. Nor, in the light of s 5AB and s 5AA, could he realistically do so. Section 5AA expressly confers a right of appeal against a costs order and a costs order comes within para (h) of the definition of "sentence" in s 2 of the Criminal Appeal Act. There is therefore no question that the costs order is subject to appeal to this Court. But the respondent's argument in relation to the publication order applies squarely to the order imposing the fine. If the respondent's contention were accepted, the only appeal open to the appellant would be against the costs order. That was manifestly not the intention of the legislature. 116On behalf of the respondent, reference was made to a number of decisions of the High Court and this Court concerning the definition of "sentence" in the Criminal Appeal Act, and orders that have been held to come within that definition or not come within it. Reference was made to Griffiths v The Queen [1977] HCA 44; 137 CLR 293; R v Carngham [1978] HCA 48; 140 CLR 487; R v Kakura (1990) 20 NSWLR 638; and Wise v R [2006] NSWCCA 264. 117In Griffiths, it was held that an order deferring sentence for a lengthy period conditional upon entry into a good behaviour bond was not a "sentence" within the meaning of the term as used in the Criminal Appeal Act. In Carngham, it was held that an order for release, associated with the imposition of a term of imprisonment (pursuant to the Crimes Act 1914 (Cth)) was an integral part of a "sentence" for the purposes of the Criminal Appeal Act. In Kakura this Court held that an order for forfeiture of property not that of the offender was not a sentence for the purposes of the Criminal Appeal Act. One difficulty with each of these is that the definition in s 2 then in force was in very different terms to the definition as it now stands. Of the cases cited, it is only Wise that was decided under the definition in its current form. There is nothing in that decision that assists in determining the present question. The authorities referred to on behalf of the respondent do not support his position. 118The third flaw in the argument is that a publication order, while not a penalty, is intended to be remedial and even educative, rather than punitive, and to have a deterrent effect. It is also undoubtedly "an order made by a court ... on convicting a person of an offence". While a publication order is not (or may not be) a penalty, in that respect it is not to be distinguished from other of the orders mentioned in the catalogue of orders that follow the opening words of the definition. 119That brings me back to the terms of s 353A(2). In Carngham (in which the High Court held that an order for release was inseverable (for appellate purposes) from a sentence of imprisonment), Gibbs ACJ said: "[9] If it were thought that doubt remained on this point, it would be permissible, in construing the provisions of the Criminal Appeal Act, to resolve the ambiguity by adopting a construction that would avoid absurdity and injustice. It would in my opinion be absurd, and in some cases unjust, if the Court of Criminal Appeal, whether on an appeal by the convicted person or on an appeal by the Crown, had power to quash a sentence of imprisonment, and to pass another sentence in substitution therefor, but had no power to affect an order that the person convicted be released after serving portion of the sentence originally imposed. It seems to me that it must have been intended by the legislature that if the Court of Criminal Appeal quashed a sentence the result would be to put an end to any order that the person convicted be released after he had served portion of that sentence. In other words the power of the Court of Criminal Appeal to pass a new sentence of imprisonment, whether more or less severe, was not intended to be fettered, or rendered futile by the continued operation of an order for release after the sentence in conjunction with which it was imposed had been quashed." 120In this case, it would be more than absurd to adopt a construction of "sentence" in s 5AA(1) that effectively eliminated the appeal the legislature manifestly intended to be available to a person convicted and penalised in the Land and Environment Court. It would thwart the legislative intent. 121That the power of the Court of Criminal Appeal on re-sentencing was not intended to be fettered in the way for which the respondent contended is confirmed by the concluding words of the definition of sentence: "and the power of the Court of Criminal Appeal to pass any such sentence includes power to make any such order or direction.". That means that in the case of a sentence appeal brought by the respondent under s 5D, for example, which empowers the Court of Criminal Appeal to impose "such sentence as to it may seem proper", that includes the power to impose a publication order under s 353A(2) which had been refused by the Land and Environment Court. 122The starting point for the construction of s 353A(2) is that this provision, too, must be construed with a view to avoiding not only absurdity, but also injustice. There are, as senior counsel for the respondent recognised, potential practical difficulties should an appeal against the fine be allowed and the fine imposed at first instance reduced or varied. 123The publication order made by Pepper J was very specific in its terms, and required the appellant to publish locally that he had been fined $28,000 and ordered to pay the respondent's costs as agreed or assessed. Should my views expressed above prevail in this Court, that would be simply factually wrong. The respondent's position is untenable. It must be open to this Court to vary orders made that are closely associated with the order recognised to be a sentence. The respondent sought to deal with this by submitting: "89 If the Court interfered with the amount of penalty imposed or the costs as assessed or agreed order, the respondent would not object to the applicant including such variations in any publication order." 124No basis was advanced on which the parties could, between themselves, agree to depart from an order of the Land and Environment Court that the respondent claims is binding and beyond the supervision of this Court. If this Court lacks jurisdiction to entertain an appeal against the publication order, it lacks jurisdiction to order or even authorise a variation of the terms of the publication order. 125There is an even more absurd, and unjust, potential consequence of the respondent's position. There will, no doubt, be cases in which a person is convicted in the Land and Environment Court and the conviction overturned on appeal. What of such a case where a publication order had been made? On the respondent's construction of s 353A, the person convicted (and subsequently acquitted) would be required to publish a patently false notice, and one highly damaging to his/her reputation. On that argument, this Court would have no jurisdiction to interfere with the order. 126It is also material to remember that these proceedings were Class 5 proceedings in the Land and Environment Court. Section 56 of the Land and Environment Court Act provides as follows: "56 Nature of decision of the Court Except as provided: (a) by Division 2, in relation to proceedings in Class 1, 2, 3, 4 or 8 of the Court's jurisdiction, or (b) by the Criminal Appeal Act 1912, in relation to proceedings in Class 5, 6 or 7 of the Court's jurisdiction, a decision of the Court shall be final and conclusive." In other words, the only appeal in relation to Class 5 proceedings is that provided by the Criminal Appeal Act. Even where a conviction is set aside, if the respondent's argument were accepted, the publication order would stand. 127Orders under s 353A may only be made on conviction. The avoidance of absurdity and of injustice demands that s 353A(2) be read as though the word "other" appeared before "penalty". In my opinion this Court has jurisdiction to entertain an appeal against the publication order. 128The provision for publication orders has, in my opinion, a significant educative and deterrent function. It is important that others who may be minded to commit offences against the WM Act be made aware of the possible consequences of such offences. On behalf of the appellant it was argued that the publication order ought to be set aside, primarily because the offence was "trivial" or "technical". I do not accept these descriptions. However, the publication order in the terms specified by Pepper J cannot stand, in the light of what I have said above. In my opinion, it will be sufficient to order the appellant to publish, in one locally circulating newspaper, a notice drawing attention to the plea of guilty, the conviction, and the maximum fine available. It is not necessary to identify the appellant. The terms of the notice I propose are attached. 129Section 5AA(4) and s 5AB of the Criminal Appeal Act provides that this Court may vacate any determination of the Land and Environment Court and make any determination that was available to that Court. 130I propose the following orders: (1)Appeal allowed. (2)Order (1) of the Orders made by the Land and Environment Court (by which the appellant was convicted of the offence against s 91K(1) of the Water Management Act 2000 (NSW)), is confirmed. (3)Orders (2)-(7) made by the Land and Environment Court are vacated. In lieu thereof, the following determinations are made: (a)direct, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), that Ronald Norman Harris enter into a good behaviour bond for a period of 2 years; (b)order, pursuant to s 353G(1)(a) of the Water Management Act 2000, that Ronald Norman Harris, within 28 days of the date of this judgment, at his own expense, publish in either the Riverine Grazier or The Land, a notice in the form attached as Annexure "A" to these orders. 131HALL J: I agree with Simpson J. 132SCHMIDT J: I agree with Simpson J.

Annexure "A" By s 91K of the Water Management Act 2000 (NSW) it is an offence to tamper with water metering equipment installed in connection with, among other things, a pump constructed or used for the purpose of taking river water. Such an offence incurs heavy penalties. Where committed by an individual, the fine can be as high as $1,100,000. In July 2009, a local farmer and grazier inserted a steel rod into a pump that was used to take water from the Murrumbidgee. The steel rod prevented the meter from operating and recording the volume of water taken. Although the offender claimed that he took this action only for the purpose of filling his house dam, which he was entitled to do, the interference with the meter was still an offence. He was prosecuted in the Land and Environment Court, where he pleaded guilty and has been convicted. All water users should be aware of the serious consequences of offences against the Water Management Act, including meter tampering.

Amendments 28 May 2014 - substitute "Riverina Gazette" with "Riverine Grazier" Amended paragraphs: coversheet, 130 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: 28 May 2014

Statute Law (Miscellaneous Provisions) Act 2009(NSW)

diction: 9106 Citation: Harrison v Harris [2013] NSWLEC 105 Date of Decision: 2013-07-17 00:00:00 Before: Pepper J File Number(s): 50028 of 2012

Harris v Harrison

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