Harrison v Harris [2013] NSWLEC 105 | Case summary

Harrison v Harris [2013] NSWLEC 105 | Case summary | Zoe

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The Property and the Pumps 4Much of the factual background of the circumstances giving rise to the charge was contained in an Amended Statement of Agreed Facts, together with supporting documents. 5The prosecution also relied upon an affidavit of Mr Paul Simpson, affirmed 22 June 2012. Mr Simpson is the Manager of Surface Water Management employed by the NSW Office of Water ("NOW"). 6In addition to an affidavit sworn by himself on 6 September 2012, Mr Harris also relied upon: (a) an affidavit of Mr Michael Eberand, sworn 26 September 2012. Mr Eberand is an accountant who provided a character reference for Mr Harris; and (b) Mr Philip Kaunitz, sworn 20 September 2012, a solicitor, who deposed to the easements located on Mr Harris' property. 7The property is located south of the Murrumbidgee River ("the River"), 50 to 75km west of Hay on the Sturt Highway. Maude Road and Moulamein Road run north to south through the middle of the property, dissecting it into the "East Farm" and the "Central Farm". 8The property is owned by Mr Ronald Harris, his wife, Mrs Susan Harris, and family members Ms Jane Harris and Mr Peter Harris. Mr Harris and his wife live on the property and Mr Harris is responsible for its day-to-day operation, which includes mixed farming (irrigated cropping of cotton, corn, barley, wheat and/or rice) and grazing activities. Approximately 8,100ha is utilised for irrigated cropping and an additional 1,000ha of rice bays are available to grow rice. A stock feedlot is also present on the property. 9The property has two main sources of water, namely, surface water and deep groundwater aquifers. 10The surface water is extracted from the River at two locations and is accessed by a number of pumps. The first location, known as the "Central Pump Site", supplies water to the Central Farm only, while the second location, the "East Farm Pump Site", supplies water to the East Farm only. Once pumped from the River, the water is directed into a series of privately owned above ground channels and is used for irrigation, stock and domestic use. 11Upon being extracted from the River by pump, the water enters a discharge pipe. As it passes through the discharge pipe, the water pressure acts to turn an impellor, which is connected to a water meter, causing the meter to record the volume of water extracted from the River. 12At the time of the offence, five large pumps were located at the Central Pump Site, four of which were operational. Each of these pumps was also fitted with an engine hour meter. The function of the engine hour meter was to record the number of hours that each pump engine is operational. This reading was then used to calculate how much water had been pumped irrespective of the presence of a water meter, assuming other parameters, such as the capacity of the pump. 13Relevant to these proceedings, one of the pumps located at the Central Pump Site was a 400mm Axial Flow Pump with a Caterpillar motor and a Davies Shephard branded water meter ("the Pump").

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Available Water Determinations 17Access to the water of the River is governed by the Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2003 ("the Water Sharing Plan"), which commenced on 1 July 2004. 18The Water Sharing Plan was suspended on 10 November 2006 pursuant to s 49A of the WMA because the water resources available in the Murrumbidgee Regulated River were so limited due to drought that the provisions of the Water Sharing Plan could not be implemented. The 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. 19The effect of the Water Sharing Plan being suspended was that NOW was responsible for making water allocations across the various licence categories under s 59 of the WMA (known as available water determinations, or "AWDs"). AWDs are expressed as a percentage of the share component of any water access licence whereby holders of licences in a specified category are entitled to a volume of water calculated by multiplying the number of units specified in the licence by the quantity of water specified by the AWD for that category of licence. 20At the time of the commission of the offence, s 60(3) of the WMA was engaged by s 49A of the WMA and stipulated the following rules of distribution applying to the making of an AWD by the Minister: (a) first priority is to be given to: (i)the taking of water for domestic purposes by persons exercising basic landholders rights, and (ii)the taking of water for domestic purposes or essential town services authorised by an access licence, (b) second priority is to be given to the needs of the environment, (c) third priority is to be given to: (i)the taking of water for stock purposes by persons exercising basic landholder rights, and (ii)in the case of regulated rivers, the taking of water for purposes (other than domestic purposes) authorised by a regulated river (high security) access licence, and (iii)the taking of water for the purposes of supply of commercial and industrial activities authorised by a major utility access licence or local water utility access licence, subject to the water made available being in accordance with any drought management strategy established by the Minister for that purpose, and (iv)the taking of water for the purposes of electricity generation authorised by a major utility access licence, and (v)the taking of water for purposes authorised by a domestic and stock access licence or by persons exercising any other water rights in relation to stock, and (vi)the taking of water for purposes authorised by a conveyance access licence in connection with the supply of water for any other purpose or need referred to in this paragraph, (d) fourth priority is to be given to the taking of water for purposes authorised by any other category or subcategory of access licence. 21On 1 July 2007, the following allocations were announced by the NSW Department of Water and Energy (NOW's predecessor agency): (a) local water utility licences - 50% of the respective share component; (b) domestic and stock licences - 50% of the respective share component; (c) high security licences - no new allocation and no access water carried over in individual licence accounts; and (d) general security licences - no new allocation and no access water carried over in individual licence accounts. 22Following a number of inflows, these allocations were increased progressively through the water year (that is, the financial year) such that, by 28 March 2008, allocations had increased to: (a) local water utility licences - 100%; (b) domestic and stock licences - 100%; (c) high security licences - 90%; and (d) general security licences - 13%. 23New allocations were announced on 1 July 2008 for the 2008/2009 water year, which again increased progressively throughout the water year. New allocations were announced on 1 July 2009 for the 2009/2010 water year. These allocations were: (a) local water utility licences - 50%; (b) domestic and stock licences - 50%; (c) high security licences - no new allocations, but access to 80% of water carried over in individual licence accounts in 2008/09; and (d) general security licences - no new allocations, but access to 80% of water carried over in individual licence accounts in 2008/09. 24Between 15 February 2006 and 16 November 2009, media releases and NOW Departmental communiqués regarding the water shortage, water allocations and conditions generally in the Murrumbidgee Regulated River were distributed to a wide audience. 25Mr Harris acknowledged that he was aware of the water shortage conditions and the restrictions on the taking of water under general access water licences applying at the time of the commission of the offence.

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The Meter Tampering 26On 22 July 2009 at approximately 10.00am, two Officers from the State Water Corporation ("State Water"), Mr Brett Richardson and Mr Phillip Dempsey, attended the Central Pump Site on the property. The Officers observed that the Pump was operational and there was water discharging from the end of the Pump's discharge pipe, but that neither the water meter nor the engine hour meter on the Pump were functioning. 27Shortly after 10.00am, Mr Harris arrived at the Central Pump Site. The State Water Officers informed Mr Harris that the water meter was not working and that the engine hour meter needed fixing. Mr Harris turned off the Pump motor and turned on a second pump at the Central Pump Site. The State Water Officers observed that the water meter and the engine hour meter were both working on the second pump. Mr Harris left the Central Pump Site at approximately 10.45am. 28After Mr Harris had left the Central Pump Site, Mr Dempsey looked up the end of the discharge pipe for the Pump to ascertain whether there was anything wrapped around the water meter impellor, or whether the impellor was broken, thereby explaining why the water meter for the Pump was not operating. 29At that time, Mr Dempsey observed a steel rod of approximately 16mm in diameter and 2.5m in length lying on the bottom of the discharge pipe. The end of the rod was hooked around the impellor shaft of the water meter further up the discharge pipeline. The State Water Officers further observed that a wire was loose in the back of the panel of the engine hour meter with electric tape wrapped around it. 30The State Water Officers then contacted Compliance Officers from NOW. At approximately 2.10pm, NOW Officers Mr Greg Delmenico and Mr Kerry Hehir attended the Central Pump Site. They also observed the steel rod inside the discharge pipe attached to the water meter. 31Mr Delmenico contacted Mr Harris by telephone and requested that he attend the Central Pump Site. At approximately 3.10pm, Mr Harris arrived at the site. 32At this point Mr Delmenico cautioned Mr Harris that he had formed the opinion that an offence had been committed. 33The NOW Officers asked Mr Harris to turn on the Pump. They observed water discharging from the end of the Pump discharge pipe and that the water meter and engine hour meter were not operating. 34The NOW Officers requested that Mr Harris switch off the Pump. When the Pump was switched off, the steel rod was removed from the discharge pipe of the Pump. Mr Harris was again requested to turn on the Pump. When the Pump was turned on the NOW Officers observed water discharging from the end of the Pump discharge pipe and also saw that the water meter on the Pump was operating as the numbers on the water meter began turning over. 35A recorded interview was conducted on 22 July 2009 ("the 22 July 2009 interview"). During this interview, Mr Harris stated that: (a) he was not sure who placed the rod inside the discharge pipe but that he was aware that the rod had been placed there; (b) the water was being used to fill up the "house dam"; (c) the rod had been placed inside the pipe at approximately 5pm the previous evening; (d) the rod had been placed inside the pipe "once or twice" before for an unknown period of time; (e) sometimes the rod had been used in a way that caused the water to go "past" the house dam and "into the crops", but that this "hadn't been done too often"; and (f) he had not attempted to speak to anyone from NOW or State Water about his approval conditions. 36Following the interview, the NOW Officers left the Central Pump Site and followed the channel system that the Pump discharge pipe emptied into for approximately 10km by car. The NOW Officers met with Mr Harris at the crossing of another channel with a driveway that led to a number of houses. They followed Mr Harris along the driveway and around the north side of one of the houses. Mr Delmenico observed a small dam near the house, that was half full with no water discharging into it ("the House Dam"). Mr Harris indicated that the water needed to "build up a head" to reach the House Dam. 37On 20 November 2009 at approximately 9.00am, Mr Craig Jones, a NOW Compliance Officer, attended the property with Mr Hehir and carried out another interview with Mr Harris ("the 20 November 2009 interview"). 38During this interview, Mr Harris confirmed that he had been pumping water on 22 July 2009, and that at that time: (a) the water was intended to go into a channel ("the Main Channel") and to the House Dam. The Main Channel was usually kept full in case the House Dam needed to be topped up quickly; (b) the Main Channel was dry, that is to say, empty; (c) because the Main Channel was dry, it would take approximately 100 to 150 ML of water to fill it before the water reached the House Dam; (d) the capacity of the House Dam was 2 to 3 ML; (e) once the House Dam was full, if water continued to be pumped it could "go to irrigation" or sit in the Main Channel; (f) he usually kept the Main Channel full; (g) he inserted the steel rod into the discharge pipe; (h) his intention in placing the steel rod into the pipe was to fill up the Main Channel to get water for the House Dam because it was empty; (i) he manufactured the steel rod in his workshop and kept it at the Central Pump Site; (j) he might have used the steel rod once before, at the end of March; (k) in placing the steel rod inside the discharge pipe, it was his intention to stop the meter turning over and not to be debited for that water; (l) approximately 30 to 40 ML of water were extracted during the period over which the meter was disabled, based on an assumption that the Pump was pumping water at 50 ML per 24 hours; (m) Mr Harris had bought water in the past, some of which cost $150 per ML and some of which cost $280 per ML; (n) he was aware that tampering with the meter was a criminal offence. He knew that it was wrong and he knew that he should not have done it; and (o) he agreed that other users within the regulated system could be affected by unmetered extractions.

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Sentencing Principles 39Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") sets out the purposes of imposing a sentence on an offender. The most relevant purposes are those contained in that section at paragraphs (a), (b), (e), (f) and (g). 40The correct method of sentencing is the instinctive synthesis method, where the judge identifies all the factors relevant to the sentence and weighs their significance in determining an appropriate sentence (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [26] and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]). 41The sentence imposed by the Court for an offence must both reflect, and be proportionate to, the objective circumstances of the offence and the personal or subjective circumstances of the offender (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472). 42Section 21A of the CSPA identifies matters that the Court must take into account when determining an appropriate sentence, including factors in aggravation (s 21A(2)) and factors in mitigation (s 21A(3)). 43Section 364A of the WMA additionally sets out matters that the Court is to take into account when imposing a sentence for an offence under that Act. That section provides: 364A Matters to be considered in imposing penalty (1) In imposing a penalty on a person for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the impact of the offence on other persons' rights under this Act, (b) the market value of any water that has been lost, misused or unlawfully taken as a consequence of the commission of the offence, (c) the extent of the harm caused or likely to be caused to the environment (including, in particular, any water source or waterfront land) by the commission of the offence, (d) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (e) the extent to which the person could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (f) the extent to which the person had control over the causes that gave rise to the offence, (g) whether the offence was committed during a severe water shortage (that is, in contravention of an order in force under section 49A or 324), (h) the person's intentions in committing the offence, (i) whether, in committing the offence, the person was complying with orders from an employer or supervising employee, (j) in the case of an offence of taking water in contravention of this Act, whether the water so taken had been released for environmental purposes and, if so, whether the person was aware of that fact, (k) any civil penalty that has been imposed on the person under section 60G in relation to the conduct from which the offence arises. (2) The court may take into consideration other matters that it considers relevant. 44The factors most relevant to this offence are those contained in ss 364A(1)(a)-(h), some of which overlap with those factors contained in s 21A of the CSPA. 45Although the parties agree on the majority of facts, there is disagreement regarding a number of aggravating factors. The Court must not take matters into account in a manner adverse to Mr Harris unless the matters have been established beyond reasonable doubt. But if there are circumstances that the Court proposes to take into account in mitigation, it is enough that these circumstances are established by Mr Harris on the balance of probabilities (Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [18]-[19] and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]).

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Nature of the Offence 48The objective seriousness of the offence is illuminated by the nature of the statutory provision and its place in the statutory scheme (Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15] citing Bentley v BGP Properties at [51]-[71], [168]-[169]). The degree to which the offender's conduct offends against the legislative objectives expressed in the statutory offence is a fundamental consideration in sentencing for environmental offences (Rae at [15]; R v Peel [1971] 1 NSWLR 247 at 262; Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [89] and Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 at [52]). 49The objects of the WMA are expressed in s 3 of that Act as follows: 3 Objects The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular: (a) to apply the principles of ecologically sustainable development, and (b) to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and (c) to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including: (i) benefits to the environment, and (ii) benefits to urban communities, agriculture, fisheries, industry and recreation, and (iii) benefits to culture and heritage, and (iv) benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water, (d) to recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources, (e) to provide for the orderly, efficient and equitable sharing of water from water sources, (f) to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna, (g) to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users, (h) to encourage best practice in the management and use of water. 50The prosecutor submitted that Mr Harris' conduct in extracting and using unmetered water offends against these objects, particularly those contained in s 3(b), (d), (e), (g) and (h), and undermines the regulatory system under the Act. 51Mr Harris submitted that, while the metering of water indirectly furthered some of the objects of the WMA, the offence did not directly engage any of the objects set out in s 3 of the WMA because the offence with which he had been charged does not involve an element of taking water unlawfully. 52Cognisant of the fact that Mr Harris has not been charged with any offence of unlawfully taking water, his submission is, in my view, unpersuasive. While it may not be a direct consequence of meter tampering that water was taken without, or contrary to, a water licence, in most instances it will be an inevitable consequence (see, for instance, Murray Irrigation Limited v ICW Pty Ltd [2006] NSWLEC 23 at [16]). The present case is no exception. 53Thus, irrespective of the unlawfulness or otherwise of the taking of water occasioned by the commission of the offence, it does not follow that the commission of an offence contrary to s 91K(1) does not directly impinge upon the objects of the WMA. The offence plainly does. 54The importance of the system of measuring extracted water enshrined in the WMA was recognised by the parties. It allows the NOW to monitor and control the taking of water, manage the flow of the River, lessen negative impacts of the extraction of water on the environment, and ensure the lawful and equitable sharing of water. 55The consequences of Mr Harris' commission of the offence included that: (a) the volume of water being taken by the Pump was not metered; (b) NOW was precluded from assessing whether or not the water taken was available from the water allocation account; (c) NOW was precluded from effectively monitoring the water taken to ensure that it was lawfully taken; (d) the amount of water available to, and for use by, downstream water users could have been reduced; (e) NOW was precluded from maintaining an accurate water allocation account for the relevant access licence; and (f) NOW was denied the opportunity of calculating aggregate water usage accurately. 56Thus, in this instance Mr Harris' actions in tampering with a water meter clearly offended against the objects of the WMA, particularly those contained in s 3(b), (d), (e), (g) and (h), because they undermined the system of measuring and managing water established under the Act.

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The Offence was Committed Intentionally 59It is relevant in determining the seriousness of the offence to consider the state of mind of the offender at the time of its commission. Section 91K(1) of the WMA is not a strict liability offence. Therefore, by pleading guilty he has committed the offence either intentionally or recklessly. 60In my opinion, there can be no doubt whatsoever that Mr Harris committed the offence intentionally. During the 20 November 2009 interview, Mr Harris indicated that he was personally responsible for manufacturing the steel rod in or about March 2009 and inserting it into the discharge pipe on the Pump. He made it in his workshop out of steel and kept it "lying down there in the grass" approximately 20m from the Pump site and 5 to 10m from the water meter. Mr Harris bent the end of the rod into a hook shape using oxy-acetylene equipment and another piece of steel. 61Mr Harris clearly understood that the effect of placing the rod around the impellor would be to prevent it from turning and to stop the meter recording the water being taken. During the 20 November 2009 interview Mr Harris stated that: Q 314. Was your intention to stop the meter turning over when you were pumping that water? A Beg your pardon? Q 315. Was it your intention - A Yes it was. Q 316. Why did you want the meter to stop? A So I can fill my house dam up because the channel's low Q 317. You could have filled the house dam though with the meter operating. A Mm. Q 318. So why did you want the meter stopped? A I just did. I did something I shouldn't have done. I know that. Q 319. Do you agree that by stopping the meter working properly that your account probably wouldn't be debited for the water that you extracted? A Yes. Q 320. Was it your intention not to be debited that water? A Yes. 62Mr Harris further indicated that the rod or similar implement had been placed inside the discharge pipe to interfere with the water meter. During the 20 November 2009 interview and during cross-examination, he stated that he had done this once before, in about March (T 27/09/12 68:39-68:42). Mr Harris also conceded that one purpose for making the rod was to place it around the impellor to stop it recording the water being taken, notwithstanding the fact that Mr Harris had, on previous occasions, used such an implement to clean debris and rubbish out of the pipes (T 27/09/12 58:43; 59:7-59:16 and 59:29).

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Mr Harris' Reasons for, and Intention in, Committing the Offence 63The prosecutor submitted that Mr Harris committed the offence for financial gain and that this should be taken into account as a matter in aggravation (s 364A(h) of the WMA; s 21A(2)(o) of the CSPA and Garrett v Williams at [118]). This is because the effect of pumping water whilst the water meter was inoperative was that this water was not extracted from Mr Harris' allocation account, thereby resulting in a cost saving to Mr Harris. This, the prosecutor submitted, was his motive in committing the offence. 64By contrast, Mr Harris argued that at the time of the commission of the offence he did not believe the volume of water in question needed to be extracted or metered. This is because he intended to use the water for domestic purposes, "to ensure that we would have water for cooking, drinking, washing, showering, and watering the gardens about the house". The use of the water was pursuant to his "basic landholder right" contained in s 52 of the WMA. 65Section 52 of the WMA relevantly provides: 52 Domestic and stock rights (1) Subject to subsection (2), an owner or occupier of a landholding is entitled, without the need for an access licence, water supply work approval or water use approval: (a) to take water from any river, estuary or lake to which the land has frontage or from any aquifer underlying the land, and (b) to construct and use a water supply work for that purpose, and (c) to use the water so taken for domestic consumption and stock watering, but not for any other purpose. ... (3) In this section: domestic consumption, in relation to land, means consumption for normal household purposes in domestic premises situated on the land. 66It was agreed that it is the practice of NOW to issue water access licences for domestic and stock use irrespective of s 52. NOW may, for example, issue a domestic and stock water access licence where a landholder wishes to take domestic and stock water through a pump that is also to be used to take water for other purposes, such as irrigation. Because the water taken may be extracted for more than one purpose, water access licences may be issued for domestic and stock purposes (notwithstanding s 52 of the WMA), in order to permit the volume of water extracted for each use to be measured. The WAL is an example of such a licence. 67But the fact that Mr Harris holds a domestic and stock licence does not prevent any reliance by him on s 52 of the WMA. Section 52 of the Act applies so long as the requirements of the provision are satisfied. 68Two issues arise in relation to the application of s 52 of the WMA to the present proceeding: (a) first, whether s 52(1) of the WMA applied because Mr Harris did not "take water from any river... to which the land has frontage" by reason of the fact that the Main Channel flows partly through land which Mr Harris does not own; and (b) second, if it did apply, whether it only covered the volume of water required to fill the House Dam.

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Do the House Dam and Pump Sites Constitute the Same Landholding? 69In order to reach the House Dam, water flowed along the Main Channel and partly through a strip of land between the Central and East Farm sites which Mr Harris did not own, but over which Mr Harris had the benefit of a number of easements as the affidavit of Mr Kaunitz demonstrates. 70It is a requirement that any water taken for domestic purposes pursuant to s 52(1) of the WMA by the owner or occupier of a landholding is used in domestic premises situated on that land. This much is apparent from the express words of the definition of "domestic consumption" in s 52(3). The issue therefore is whether the two parcels of land owned by Mr Harris and connected by easements constitute the same landholding. 71In the Dictionary to the WMA, the terms "landholder" and "landholding" are defined as follows: landholder, in relation to land, means: (a) the owner of the land or (if the owner is not in occupation of the land) the lawful occupier of the land ... landholding means a holding that is owned or occupied by a person (either alone or together with some other person with whom he or she has an association of a kind prescribed by the regulations), being a holding that comprises: (a) a parcel of land that is separately valued under the Valuation of Land Act 1916, or (b) two or more such parcels that together form a single area of land (ignoring any division that arises merely because the land is transacted by a road or river). 72Relying on paragraph (a) in the definition of "landholding", Mr Harris argued that because the Central and East Farm sites had been valued as one parcel of land, his properties constituted a single "landholding" able to take the benefit of s 52 of the WMA. In support of this argument he relied upon the unchallenged evidence of Mr Kaunitz and a Land Value Search of the Land and Property Information NSW database for the property that included Lot 2 in DP 232168, Lot 1 in DP 245159, Lot 2 in DP 449255, Lots 1 and 2 in DP 563764, Lot 1 in DP 751224, Lots 1 and 2 in DP 751230, Lots 21 and 22 in DP 756768, Lots 1, 3, 49, 50 and 51 in DP 756775, Lots 3-6 and 10-15 in DP 756789 and Lots 18, 19, 27, 28, 34, 38-41, 44 and 50 in DP 756813. This included land comprising the House Dam and the Pump. 73Although the description of a "landholding" in paragraph (a) refers to a "parcel" of land, rather than multiple "parcels" that are separately valued, in my opinion, this does not matter when regard is had to the text of paragraph (a) (see s 8(b) of the Interpretation Act 1987). Because the multiple parcels of land owned by Mr Harris have been valued separately as one parcel of the land under the Valuation of Land Act 1916, they constitute a single "landholding" for the purpose of the WMA. This construction is consistent with the language of "holding" contained in the chapeau of the definition of "landholding". In this case, the Central Farm was owned, occupied and run by Mr Harris as a complete holding. 74On this basis, Mr Harris was, assuming the water was being consumed for domestic use, entitled to take the water pursuant to s 52 of the WMA. However, for the reasons discussed below, this does not mean that Mr Harris' submission that the commission of the offence was not for financial gain must be accepted. 75In the alternative, Mr Harris relied on paragraph (b) to the definition of "landholding" to contend that because Mr Harris owns and occupies the same blocks of land on which the Pump and the House Dam are located and uses the Channel that connects them under an easement, the two blocks together form a single area of land and hence constitute a "landholding" for the purpose of s 52 of the WMA. In support of this contention Mr Harris relied on the decision in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 (at [69] and [70]). 76Although it is not strictly necessary for me to determine this issue, I do so anyway for the benefit of the parties given that it was argued in full. 77I did not find the decision above to be of assistance given its very different statutory context, namely, whether land can be said to be "lawfully used or occupied" in order to determine if it was claimable Crown land under the Aboriginal Land Rights Act 1983. Whether Mr Harris can be said to be the owner or lawful occupier and thus a "landholder", for the purpose of s 52 of the WMA, by virtue of the easements connecting the parcels of land he owns gives rise to different questions than those arising under the Aboriginal Land Rights Act. 78For present purposes it is sufficient to define an easement as the conferral of certain rights, falling short of possession, by an owner of a servient tenement on the owner of a dominant tenement (the parcel of land with the benefit of the easement), to be exercised over the servient tenement (P Butt, Land Law (6th ed), Lawbook Co, 2010 at [1607]). Mr Harris contended therefore that he is the "occupier" of the various parcels of land connecting the blocks of land that he owns because he exercises the requisite degree of control over the easements insofar as they are exclusively and continually used by him. 79In my opinion, this argument is misconceived when regard is had to the wording of paragraph (b) of the definition of "landholding" in the WMA. In no way can it be said that the four parcels of land that comprise the totality of Mr Harris' landholding "together form a single area of land". They do not. They are plainly and physically separate from each other. Each parcel is entirely surrounded by land that Mr Harris neither owns nor occupies in the relevant sense (Mr Harris accepted that the easements that he held over the Channel did not confer any right of occupation of the Channel). Although not going so far as to necessarily demand contiguity (this is manifest from the words in parentheses in paragraph (b) to the definition), no intention is evinced, in my view, in the definition of "landholding" in the WMA, that would permit the four discrete parcels of land that Mr Harris owns to "form a single area of land". Any reliance by Mr Harris on paragraph (b) must be rejected.

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Did Mr Harris Intend to Use the Water for Domestic Consumption? 80The prosecutor submitted that even if the definition of "landholding" was satisfied by Mr Harris, Mr Harris intended to use some if not all of the water in the Main Channel for irrigation purposes. This was evident from the amount of water extracted, which was clearly in excess of that required to fill the House Dam. 81According to Mr Harris, pumping water to the House Dam required filling up the Main Channel. Water pumped at the Central Pump Site had to be gravity fed for approximately 22km along the Main Channel to Central Farm. When Mr Harris initially caused the water meter to cease turning and began pumping water, the Main Channel was relatively dry with "some small puddles" (T 27/11/12 71:35). At the time of the commission of the offence, the Main Channel was almost empty and required approximately 100 to 150 ML of water to fill it before the water could reach the House Dam. By the afternoon of 22 July 2009, the water level was still too low for the water to travel to the House Dam. 82The capacity of the House Dam was approximately 2 to 3 ML. But the House Dam already had some water in it. Images taken of the House Dam that afternoon showed that the Dam was approximately one third to half full. This is consistent with Mr Harris' evidence given during cross-examination that because of the dam's conical shape, it "might have been a third full", but could have been up to half full. 83The prosecutor submitted that if the capacity of the House Dam was 2 to 3 ML, and if on 22 July 2009 the House Dam was already half or one third full, the water extracted during the offence period was in excess of the amount needed to fill the House Dam, and therefore, must have been intended for some other additional unlawful use, such as irrigation. 84The prosecutor relied on the following evidence to support this claim. First, during the 20 November 2009 interview with Mr Harris, in response to the question, "once the house tank was full, where would water go to after that if it continued to be pumped?" Mr Harris replied, "most times we keep it in the channel but then after that it can go to irrigation". 85Second, during the 22 July 2009 interview with Mr Harris, he said: 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 goes past there and goes into the crop sometimes, yes. 86Third, in cross-examination, he stated (T 27/09/12 73.19-73.40): Q. You could have taken 2 to 3 megalitres if it was for domestic use and then put the John Deere pump on on 21 July-- A. Because I was just filling up the channel to where it was before. It was a dry time and we wanted to save all our other water for our irrigation crops all the normal allocated water so we wanted to use our basic landholder rights which we were told there was no water left in the stock and domestic licence, 25 this one here that you referred me to. There was no water in there from the piece of paper that I received from the Department so therefore we wanted to make sure we could maximise our water that was there by using the basic landholder right. Q. You accept you could have used another pump and another account? A. Yeah could have done. Q. If you chose to? A. Yeah no could have done. That's right, could have done but I wanted to maximise my rights. Q. Are you saying under your domestic and stock right as you call it you could take I think you've said 150 megalitres to fill the channel to then get water into the house dam? A. If it's not it's only for stock and domestic purposes. 87Fourth, Mr Harris admitted that a wheat crop had been planted at the time in respect of which approximately 300ML of water had been ordered by him for the purpose of irrigating the crop, but that the water had not arrived at the time of the commission of the offence. 88Fifth, Mr Harris admitted that it had been a dry winter before the offence was committed and that there was a water shortage in the area. 89Sixth, only a small proportion of the 30 to 40 ML pumped during the meter tampering was water capable of being used for "domestic consumption". As Mr Harris stated in his affidavit, "water from the House Dam is only for domestic purposes such as showering, washing clothes, watering house gardens and drinking". 90Suffice it to say that I found this evidence compelling. This was so notwithstanding that in cross-examination Mr Harris emphatically denied that any water pumped during the commission of the offence was to be used for the purpose of irrigation. According to Mr Harris, it was his usual practice to keep the Main Channel full to allow water to be moved quickly into the House Dam if needed and to keep water backed up upstream "which is important because this part of the Main Channel is the only source of drinking water for livestock". This was consistent with the fact that during the commission of the offence, Mr Harris had closed all other channels so that the water being pumped was travelling only to the House Dam. Thus, Mr Harris argued that it was never his intention to fill the Main Channel before switching the water meter back on and that at 10am on 22 July 2009 he visited the Central Pump Site with this very intention of swapping the pump over. 91But in my opinion this argument is unconvincing. It is inconsistent with waiting until 30 to 40 ML of water had been extracted before switching the pumps over. On any view, this amount of water was well in excess of what was required to fill the House Dam, which was already, by Mr Harris' own admission, half to a third full. 92Mr Harris argued that s 52 of the WMA does not place any limit on the amount of water that may be extracted pursuant to domestic and stock rights and, on its proper construction, s 52(1) allows the extraction of sufficient water to enable it to be transported to the place where it was to be used for domestic consumption, if not the right would be illusory. Mr Harris relied on the ancient maxim and its more modern formulation, applied in Transport Workers' Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26; (2008) 166 FCR 108 (at [38]), 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... 93The prosecutor submitted that in the circumstances of this case, the maxim would not extend to permitting a person to pump 30 to 40 ML or up to 150 ML of water to fill a dam of 2 to 3 ML capacity. Although Mr Harris believed he had a zero allocation under the WAL, he nevertheless had access to water under a number of other licences and approvals that he could have utilised to fill the Main Channel. For example, he had at the time access to 300 ML of water that he had already ordered under his general security licences for irrigation purposes. He also had other pumps available for use. 94As Mr Harris explained in cross-examination (T 27/09/12 73:21-73:28): It was a dry time and we wanted to save all our other water for our irrigation crops all the normal allocated water so we wanted to use our basic landholder rights which we were told there was no water left in the stock and domestic licence, this one here that you referred me to. There was no water in there from the piece of paper that I received from the Department so therefore we wanted to make sure we could maximise our water that was there by using the basic landholder right. 95On the balance of probabilities, I do not accept that the purpose of Mr Harris tampering with the meter was to take unmetered water for the purpose of satisfying any domestic or stock rights pursuant to s 52 of the WMA. The evidence relied upon by the prosecutor was persuasive, particularly the answers given by Mr Harris during cross-examination. 96I have no hesitation in finding that the water pumped by Mr Harris was not wholly to be used for "domestic consumption" as claimed by Mr Harris, but that a significant proportion of the 30 to 40 ML pumped during the commission of the offence was to be utilised by Mr Harris for irrigation of his wheat crop. This was not a permissible purpose under s 52 of the WMA and Mr Harris cannot rely on it in mitigation. 97Moreover, 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 WMA. 98I also find beyond reasonable doubt, albeit as a matter of inference, that the offence was committed in order to obtain a financial benefit, namely, to avoid water from being debited from the relevant water licence account, whether this was the WAL or some other licence or approval. For instance, if it was the WAL, the taking of unmetered water resulted in a financial benefit to Mr Harris to the extent that he could take additional megalitres of water from the River pursuant to this licence without having to utilise water allocated to the WAL or some other licence. If it was another water licence or approval, the result is the same, namely, the taking of water occurred in circumstances where it could not be recorded, debited, and therefore, the cost of which could not be charged to Mr Harris. This finding is consistent with the answers Mr Harris gave during the 20 November 2009 interview (see Q and A 314 to 320: quoted above at [61]). 99I find, therefore, that the prosecutor has proved to the requisite standard of proof that Mr Harris committed the meter tampering offence for financial gain and I take this factor into account as a factor in aggravation.

[40]

Environmental Harm 100The extent of harm caused, or likely to be caused, by the commission of the offence can increase the objective seriousness of the offence. This is reflected in s 364A(1)(c) of the WMA. 101Harm to the environment includes not only actual harm, but also potential harm. Harm can be direct or indirect, individual or cumulative (Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[147]; Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties at [175]). 102The volume of water taken during the commission of the offence can provide an indicator of the quantum of potential harm caused. 103Ultimately it was not in dispute that the volume of water extracted during the charge period was between 30 to 40 ML. This is based on calculations to the effect that: (a) the offence continued for approximately 17 hours from 5pm 21 July 2009 to 10am 22 July 2009; and (b) the Pump extracted water at a rate of approximately 50 ML of water per 24 hour period. 104Mr Harris argued that the removal of 30 to 40 ML of water from the River would have no effect on the environment where the total amount of water used was less than that available under his water access licence. Thus, where 300 ML of water had been purchased and only 280 ML was actually used, 30 to 40 ML of which was not metered, the extraction of this unmetered amount could cause no disruption to downstream users. 105The evidence of Mr Simpson, however, was that any water extracted and not metered would be "picked up" at a gauge downstream and recorded as a loss. Losses are discouraged by NOW because they represent water that would otherwise be retained and put to a more effective use. 106But as Mr Harris submitted, the WMA also contains exceptions whereby water may be lawfully extracted from a regulated water source without being metered. The regime contained in s 52 of the WMA is one example. 107It is important to put the volume of 30 to 40 ML in context. Mr Harris relied upon the following report prepared by NOW, General Purpose Water Accounting Report 2009-2010 Murrumbidgee ("the Report"). The Report contained a Statement of Water Assets and Water Liabilities for the Murrumbidgee Catchment for the period 1 July 2009 to 30 June 2010, which outlined the water available as at 30 June 2010 and 30 June 2009 within the regulated component of the River and groundwater aquifers of the Catchment. The Report indicated that, as at 30 June 2009, that is to say, less than a month before the commission of the offence, NOW estimated total surface water assets, which comprised surface water stored in the Murrumbidgee River, the Blowering and Burrinjuck Dams, weirs, other tributaries, and groundwater assets, of 1,191,969 ML (or 1,192 GL). The total water liabilities as at 30 June 2009 were 350,913 ML, resulting in net water assets of 841,056 ML. This included water asset increases caused by rainfall and contribution by tributaries, and water asset decreases caused by evaporation, storage releases, diversions, extractions, in addition to an "unaccounted volume" of 215,000 ML. Various components of the net water asset calculations were, as Mr Simpson confirmed in cross-examination, subject to error ranges of between  10 to 50%. 108Having regard to the figures above, it is easy to conclude that an unmetered extraction of between 30 to 40 ML was, as Mr Harris described, "a drop in the ocean". The effect on the River and Catchment, and thus on the environment, was all but negligible. Accordingly, Mr Harris submitted that no harm was done to the environment by the commission of the offence. The submission was superficially compelling. 109But this is not the end of the matter. Environmental harm encompasses not only direct harm to the flow of water in the River and Catchment, but also harm to the regulatory regime. As stated by Pain J in Harrison v Baring (No 2) [2012] NSWLEC 145 (at [44]): The systems of ordering water and measuring water taken are important as they allow the NSW Office of Water to monitor and control the taking of water, manage the flow of the river, lessen negative impacts on the environment, and ensure the lawful and equitable sharing of water. 110Therefore, while the barely registrable amount of water that was extracted during the commission of the offence means that the actual environmental harm caused by the commission of the offence was at the lower end of the scale, real harm was nevertheless caused to the regulatory regime enshrined in the WMA, a regime created to protect and manage one of our most vital and scarce resources, viz, water.

[42]

There Was No Severe Water Shortage 115It was not in dispute that at the time of the commission of the offence there existed a water shortage in the Murrumbidgee Regulated River as defined in the Water Sharing Plan, of which Mr Harris was aware. Mr Harris was aware not only that there was a water shortage in the River but also of the restrictions applying to the taking of water under general access water licences. Mr Harris conceded that the fact that there was a shortage of water made the offence objectively more serious than if there had been no such shortage. 116More controversial was whether the water shortage could be characterised as "severe" for the purpose of the aggravating factor in s 364A(i)(g) of the WMA. 117It was not in dispute that there was no order in place under s 324 of the WMA at the time of the commission of the offence. There had been an order made under s 323 of the WMA (s 323 was repealed and replaced by s 324 pursuant to the Water Management Amendment Act 2008 from 1 January 2009) on 26 July 2007, but it was repealed later in 2007. 118In respect of s 49A of the WMA, a Ministerial Order made in NSW Government Gazette No 137, dated 10 November 2006 ("the Ministerial Order"), suspended the operation of the Water Sharing Plan as at that date upon the Minister being satisfied as to the existence of a severe water shortage pursuant to s 60(2) of the WMA. Section 60(2) was repealed and replaced by s 49A of the WMA by Sch 6 of the Water Management Amendment Act 2008 on 28 October 2008 and, pursuant to cl 73 of Sch 9 of the WMA, the s 60(2) Order of 2006 became and continued as a s 49A Order. The 2006 Order for the suspension of the Water Sharing Plan was not repealed until 19 August 2011 (NSW Government Gazette No 90). 119The Ministerial Order stated: WATER MANAGEMENT ACT 2000 Order under section 60(2) SEVERE WATER SHORTAGE Murrumbidgee Regulated River PURSUANT to section 60(2) of the Water Management Act 2000, I, IAN MACDONALD, M.L.C., Minister for Natural Resources, on being satisfied that there exists a severe water shortage in the Murrumbidgee Regulated River as defined in the Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2003, do, by this Order, suspend the operation of the rules of distribution in section 60(1) of that Act so that instead the rules of distribution in section 60(3) apply in relation to the water source. 120Therefore, at the time of the commission of the offence there was a Ministerial Order in force under s 49A of the WMA. 121Mr Harris denied that s 364A(1)(g) of the WMA was applicable because, he submitted, he did not commit the offence "in contravention of" the Ministerial Order. Given the nature of the offence, namely, meter tampering, and not the unlawful taking of water, this submission must be correct. 122It is not clear whether the phrase appearing in brackets in s 364A(1)(g) ("that is, in contravention of an order in force under section 49A or 324") has the effect of limiting the applicability of that subsection only to a breach of those provisions. If it is so confined, then the subsection does not apply because Mr Harris has not contravened a Ministerial Order. The prosecutor argued that the words in parentheses were not to be read as words of limitation confining the scope of the aggravating factor only to those two circumstances. 123The word "contravene" includes "fail to comply with" (s 21 of the Interpretation Act). A failure to comply with the Ministerial Order is, in effect, a failure to comply, pursuant to s 49A, with the rules of distribution set out in s 60(3) of the WMA. The rules of distribution apply to the making of AWDs, which is a function of NOW, and not to individual licence holders, such as Mr Harris. 124But having regard to the text and context of s 364A(1)(g) and construing the provision by reference to the scope, purpose and objects of the WMA, I do not accept that s 364A(1)(g) is intended to be limited in this way. First, having regard to the text of the provision (Environment Protection Authority v Du Pont (Australia) Ltd [2013] NSWLEC 98 at [47]-[52] and the authorities cited thereat), if Parliament had intended to circumscribe the operation of the subsection in this way, it could have readily done so explicitly and it has not done so. The words in parentheses are clearly not meant to be interpreted as the only circumstances that will mean the offence is committed during a severe water shortage. If they were, then the words before the parentheses would have no work to do. Rather, the bracketed subclause is a specific and expressly stipulated illustration of when the offence will be committed in a severe water shortage thereby engaging the subsection. But this is not, in my view, to the exclusion of all other circumstances. 125Second, the existence of a severe water shortage is a statutory factor relevant to the assessment of the objective gravity of offences against the WMA, with offences committed during a severe water shortage being objectively more serious than those committed during normal conditions. The existence of a severe water shortage will have the effect of exacerbating the potential impact of the commission of an offence under the Act. As Pain J stated in Harrison v Baring (No 2) (at [51]): It is particularly important to maintain the confidence of licence holders as to the fairness of the system in times of severe water shortage when all licence holders face significant restrictions on their ability to take water. 126But on the facts of this case, the aggravating factor in s 364A(1)(g) has no application. This is because at the time that Mr Harris breached the WMA, although the Ministerial Order had been in effect for almost three years and was not repealed until 2011, it was Mr Simpson's evidence that in December 2010 there was widespread flooding in the Murrumbidgee Valley and that between 30 June 2008 and 30 June 2009, the capacity of the Burrinjuck and Blowering Dams fluctuated, with the Burrinjuck Dam reaching, at one stage, 51%. As Mr Simpson therefore agreed in cross-examination, it could not be concluded from the fact that the Water Sharing Plan was suspended that there was necessarily a "severe" water shortage. 127I agree. When regard is had to the entirety of the evidence, notwithstanding the Ministerial Order there was not a "severe water shortage" as at 22 July 2009. The prosecutor has failed to establish this fact beyond reasonable doubt. 128But, pursuant to s 364A(2) of the WMA, I do take into account the fact that, as Mr Harris freely conceded, there existed a water shortage at the time of the commission of the offence. This fact amplifies the objective seriousness of the offence.

[43]

The Market Value of the Water Taken During the Commission of the Offence 129While the parties agreed that the volume of water taken during the commission of the offence was between 30 to 40 ML, the market value to be attributed to that water remained in dispute. The market value of any water that has been "lost, misused or unlawfully taken" as a consequence of the commission of the offence is a relevant consideration on sentence under s 364A(1)(b) of the WMA. 130In the regulation of water access licences under the WMA, water entitlements may be transferred, with Ministerial approval, by either: (a) a general water dealing or "permanent trade", which allows a licence holder to assign all or part of their share of water under a licence to another licence holder. This means the purchaser obtains the assigned entitlement to the water share on a permanent, ongoing basis; or (b) a water allocation assignment dealing or "temporary trade", which allows a licence holder to temporarily trade all or part of their current water allocation under their licence. The sale does not affect a licence holder's underlying water share entitlements, but rather allows a licence holder to sell water in their water allocation account that is surplus to their immediate needs and, conversely, allows another licence holder to buy water to meet a short term requirement. 131Generally, the prices paid for temporary trades are less than the prices paid for permanent trades. This is no more than a reflection of the short term nature of the water entitlement obtained under the former, rather than the latter. 132The parties agreed, based on estimates by Ms Christine Hill, the Principal Economist employed by NOW, on a price of water of $171 per ML based on temporary trading prices as at the time of the offence, and $1,303 per ML based on permanent trading prices. Assuming 30 to 40 ML of unmetered water was taken, the value of this water was, using the temporary trade price, between $5,130 and $6,840, and, using the permanent trade price, between $39,090 and $52,120. 133While these prices were not in dispute, whether market value should be calculated using the temporary trade price or the permanent trade price, or both, was contested. 134Mr Harris submitted that, because the taking of the water was a singular event, and not a permanent assignment of water rights, the appropriate price to calculate the market value was the temporary trade price. Whereas the prosecutor submitted that the permanent and temporary trading prices reflected two parts of a single market, and that the market value of the water taken during the commission of the offence should be determined by combining the temporary trading price and the permanent trading price to arrive at a single figure. 135The term "market value" is not defined in the WMA and has not received prior judicial consideration. In Harrison v Baring (No 2), the market value of the water was utilised to calculate the value of the water in issue without agreement. Based on expert evidence, it was calculated at $1,000 per ML. 136I am not convinced that the permanent trading price, or indeed any amalgamated value involving the permanent trading price, is the proper construction to adopt. My reasons are three-fold. First, Mr Harris' act in taking unmetered water did not affect his underlying water entitlements. That is, Mr Harris did not transfer any entitlement or ongoing right to continue to pump a specified amount of water to or from another person. 137Second, the definition of 'market value' is often discussed and applied by this Court in land valuation matters. In this context, the following passage from Spencer v Commonwealth [1907] HCA 82; (1907) 5 CLR 418 is of assistance, albeit by analogy (at 432): ... the test of value of land is to be determined ... by inquiring 'What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?' It is, no doubt, very difficult to answer such a question, and any answer must be to some extent conjectural. The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together. 138Had a "desirous purchaser", in the position of Mr Harris wished to purchase 30 to 40 ML of water to be pumped from the River on 22 July 2009, the additional water would have been allocated to his existing licence, that is, the WAL. The value of water purchased in this manner is calculated in accordance with the temporary trading price. 139Third, the prosecutor has not provided any evidence of comparable sales where the market value of water under the WMA was determined by combining the temporary trading price and the permanent trading price. Neither has any methodology nor formula been put forward demonstrating how the amount would be calculated. 140I therefore conclude, using the temporary trading price, that the market value of the water taken during the commission of the offence was between $5,130 and $6,840. In other words, the water taken was not of significant monetary value.

[47]

The Offence was Not Part of a Planned or Organised Criminal Activity 148The prosecutor argued additionally that Mr Harris' actions constituted a planned or organised criminal activity (s 21A(2)(n) of the CSPA). 149The meaning and application of s 21A(2)(n) of the CSPA was comprehensively discussed in Hewitt v The Queen [2007] NSWCCA 353; (2007) 180 A Crim R 306 (at [25]): 25 The provisions of s 21A(2)(n) have been the subject of consideration on a number of occasions. The following propositions may be derived from relevant decisions: (a)The wording of the provision conveys more than simply that the offence was planned: Fahs v R [2007] NSWCCA 26 per Howie J at [12] (Simpson and Buddin JJ agreeing). His Honour further observed: ... The fact that there was a 'level of planning in the offences' as found by the judge does not necessarily give rise to the aggravating factor in s 21A(2)(n). In Wickham [2004] NSWCCA 193, the Court stressed the importance of making findings under s 21A in accordance with the words of the provision ..." (b)In a case where an offender has been charged with multiple drug trafficking offences, a conclusion may be drawn that it is part of a planned or organised criminal activity. In Fahs (above), Howie J observed: ... In this case, it would have been open to the judge to find that such a factor existed in respect of each of the offences because it was clear that the applicant was committing the crimes as part of a drug trafficking organisation capable of supplying large amounts of different types of drugs to order. (c)The expression "organised criminal activity" may embrace the activities of several people or it may involve activity carried out by one person. In NCR Australia v Credit Connection [2005] NSWSC 1118, Campbell J observed at [72]: In deciding whether the aggravating factor in para (n) is present, there is first a question of construction about what is meant by 'organised criminal activity'. In one sense, 'organised criminal activity' involves the activities of several people that are planned or co-ordinated to carry out the crime. That is the sense involved in media discussion about whether organised crime is on the increase. In another sense, however, it can include activity that is carried out by just one person, concerning which that person engages in planning or preparation." His Honour also observed: ... as a matter of ordinary English, to think that 'planned criminal activity' has any necessary element in it of there being more than one person involved ... For these reasons, I conclude that the factor in para (n) can be present if there is planned organised criminal activity engaged in by just one person." (at [74] and [75]). (d)Offences committed over a period of time may involve sufficient repetition and a system to lead to the conclusion that they were organised within the meaning of paragraph (n): NCR Australia (above) at [76]. (e)In determining whether the facts give rise to "planning" as an aggravating factor, it is necessary to consider and refer to both the evidence that may affirm, and the evidence that may negative the drawing of such a conclusion. This Court in R v Reynolds [2004] NSWCCA 51, in determining on the facts of that case that evidence of planning was very limited but that it did exist and was of greater significance than that considered by the sentencing judge, observed at [39]: It may be that, had he considered the evidence in detail, his Honour would nevertheless have reached a factual finding similar to that which he did. The error lies in his failing to make reference to evidence pointing to a contrary conclusion. In particular, the list of businesses was, in my view, quite strong evidence of a degree of planning. The absence of a disguise is only one factor pointing in the other direction, or pointing to poor, rather than no, planning. (f)Planning that is "... somewhat haphazard, clumsy in many respects and bound to fail ..." may nevertheless be sufficient so as to enliven the application of s 21A(2)(n): R v Willard [2005] NSWSC 402 per Whealy J at [32]. 150In Knight v The Queen [2010] NSWCCA 51, the Court of Criminal Appeal emphasised that (at [16]); 16 Section 21A(2)(n) has been the subject of interpretation by this Court. See for example R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218; Fahs v R [2007] NSWCCA 26; Hewitt v R [2007] NSWCCA 353; (2007) 180 A Crim R 306. It has been consistently held by this Court that a sentencing judge should not find that the aggravating factor in s 21A(2)(n) was present, unless there is evidence that would permit a finding beyond reasonable doubt that the degree of planning in the instant case exceeded the degree of planning which would ordinarily be expected in an offence of that kind. 151The prosecutor submitted that Mr Harris' actions in committing the offence are sufficient to engage s 21A(2)(n) of the CSPA because: (a) Mr Harris was in complete control of pumping activities on the property. He alone made decisions regarding when to pump, which pump to use and how much water to pump. The fact that he acted alone is not a barrier to the application of the provision; (b) a level of planning was involved in the commission of the offence. Mr Harris manufactured the steel rod in his workshop in March 2009. This involved bending the rod to form a hook of sufficient size and shape to disengage the impellor for the water meter; (c) Mr Harris kept the rod at the Pump site lying in the grass in order to conceal it so that someone coming to read the meter would not see it; (d) on 22 July 2009 Mr Harris was not expecting anyone to inspect the Pump meter; and (e) the commission of the offence was not an "uncharacteristic aberration" (Camilleri's Stock Feeds at 700D-E) because Mr Harris had used the rod to prevent the water meter impellor from turning on at least one prior occasion. 152I do not accept that these circumstances are sufficient to meet the criminal standard so as to enliven s 21A(2)(n) of the CSPA as an aggravating factor because: (a) first, although Mr Harris committed the offence intentionally, which obviously involved some level of planning (namely, the manufacture of the steel rod and the placing it into the discharge pipe), there is no evidence that would permit a finding beyond reasonable doubt that the degree of planning in this case exceeded what would ordinarily be expected of an offence of this kind (R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218 at [39]; Sadler v The Queen [2009] NSWCCA 83; (2009) 194 A Crim R 452 at [32]-[36] and Fahs v The Queen [2007] NSWCCA 26 at [21]-[22]). Where the evidence reveals a low level of planning, s 21A(2)(n) is generally not engaged (Hewitt at [39] and [41]). In the present case, Mr Harris manufactured a single steel rod and placed it into the discharge pipe; (b) second, Mr Harris admitted that he had interfered with the water meter by placing the rod in the discharge pipe only once before; (c) third, there is no cogent evidence that Mr Harris deliberately "hid" the steel rod in the grass where inspectors could not see it. Mr Harris' evidence was that he sometimes used the rod to clean out the pipes and kept the rod near the Pump where it was easily accessible to him. The placement of the rod cannot be held to be an aspect of his planning; and (d) fourth, it is not surprising that Mr Harris was not expecting inspectors to arrive on the property on 22 July 2009, because Mr Harris was never notified of such visits. Again, I do not consider this to be an aspect of his planning.

[55]

Consistency in Sentencing 164A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question (Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [179]-[182] and Rae at [69]). 165Consistency requires that "like cases be treated alike and different cases differently" (Elias at [29]). The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence that merely forms part of that range (Gittany at [182]). Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion, given the wide divergence of facts and circumstances leading to the imposition of specific penalties (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54]). 166The Court has not previously considered any meter tampering offence or sentence under s 91K(1). The decision of Pain J in Harrison v Baring (No 2) provides the barest of assistance because that case involved ten offences against the then ss 341(1)(a) and 343(1)(a1) of the WMA for unlawfully taking 280 ML of water from the Lachlan Regulated River Source in 2008 for the irrigation of a wheat and canola crop. Four of the offences were for taking water from a water source otherwise than in accordance with a water access licence, and the other six offences were for using a water supply work, being a pump, without a water supply work approval. Furthermore, at the time the offences were committed in 2008 the maximum penalty for an individual for each offence was $132,000. 167In that case, restrictions under s 60(3) of the WMA applied to AWDs for the Lachlan Regulated River with domestic water, the highest priority, receiving only 70% of its needs. Wyangala Dam had been at only 4% capacity one year prior to the offence being committed, and in 2008, 80% of the releases from the dam were to maintain the flow of the river (at [19]-[20] and [33]-[40]). The defendant committed the offences deliberately and for financial gain. The offences were committed during a severe water shortage, exacerbating the impacts of the unlawful taking of water on the environment and on other licensees under the WMA. The defendant had complete control over the circumstances that gave rise to the offences and was aware of the restrictions applying to the taking of water under the licensing regime. It was determined that the market value of the water unlawfully taken might have been as high as $280,000 to $632,000. Her Honour considered that the objective circumstances were in the moderate to serious range. The defendant had no prior convictions, other than a small fine for a breach of the Corporations Act 2001 (Cth) and was unlikely to re-offend. However, the defendant did not express remorse, no guilty plea was entered and minimal assistance was provided to law enforcement authorities. Applying the principle of totality, her Honour imposed a total fine of $290,000, comprised of individual fines for each offence of between $5,000 and $90,000, and ordered the defendant to pay the prosecutor's costs in the amount of $80,000. 168Mr Harris understandably drew the Court's attention to the decision in Murray Irrigation. In that case, Bignold J considered three separate offences of interfering with a water meter and three separate offences of taking water without authority, contrary to ss 346(1)(b) and 347(1) of the WMA respectively. These provisions have since been repealed and re-enacted with more severe maximum penalties. At the time of commission of the offences, the maximum penalty for each offence for a corporation was $275,000. The defendants led evidence concerning their difficult economic circumstances and their good character in relation to environmental matters. The offences were committed without the knowledge or consent of the company directors and without any neglect on their behalf. His Honour dismissed the charges pursuant to s 10 of the CSPA and ordered the defendant to pay the reasonable costs of the prosecutor (approximately $140,000). 169At their highest, comparing the circumstances of Harrison v Baring (No 2) and Murray Irrigation with those present in this case, the most that can be said is that the offence committed in this case is objectively more serious than those committed in Murray Irrigation but far less serious than the offences the subject of the penalty awarded in Harrison v Baring (No 2).

[60]

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. 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: 17 July 2013

Harrison v Harris

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