Harrison v Perdikaris

Land and Environment Court (NSW)|2015-05-26|Before: Preston CJ, Smart J

Solicitors: Crown Solicitor's Office (Prosecutor) Wilshire Webb Staunton Beattie (Defendant) File Number(s): 50143 of 2013 Publication restriction: No

Judgment

In 2009, Mr Christopher Perdikaris instructed three contractors to increase the capacity of two dams across a creek on a rural property near Oberon, owned by his wife, Mrs Cindy Perdikaris. The contractors excavated earth from near the creek and deposited it on the old dam walls to increase their width and depth and the volume of water that the dams could impound. No approvals had been obtained authorising these activities.
The carrying out of these activities was in contravention of s 91E(1) of the Water Management Act 2000 ('WM Act'). Mr Perdikaris, by counselling or procuring the contractors to carry out the activities, also contravened s 91E(1) of the WM Act.
Mr Perdikaris has been charged with two offences against s 91E(1) of the WM Act, one in respect of each dam. He has pleaded guilty to the offences.
A sentence hearing was held yesterday. The parties have agreed and tendered a comprehensive statement of facts about the events leading up to, constituting, and subsequent to the offences. Mr Perdikaris also gave evidence by affidavit and orally at the sentence hearing.
The Court's task is to determine and to impose the appropriate sentences for the offences.

Facts of the offences

"Clover Hills" is a rural property at 609 Jaunter Road, Jaunter, near Oberon. Chimney Creek flows downstream through Clover Hills from the south to the north. Chimney Creek flows into a property immediately to the north of Clover Hills called "Chimney Creek", and then into another property called "Trickett's Arch". Further downstream, Chimney Creek flows into the Tuglow River, which in turn flows into the Kowmung River.
According to the Strahler Stream Order Classification System, Chimney Creek in Clover Hills is a third order stream. The application of the Strahler Stream Order methodology is described in Pt 1 of Sch 2 to the Water Management (General) Regulation 2011. Under that classification, starting at the top of the catchment, any watercourse which has no other watercourses flowing into it is classified as a first order stream. If two first order streams join, the stream becomes a second order stream. If a second order stream is joined by a first order stream, it remains a second order stream. If two second order streams join, they form a third order stream.
The two dams the subject of the two charges are called Windmill Dam and Taila Dam. Both dams have been constructed across Chimney Creek in Clover Hills. Taila Dam is about 50m upstream of Windmill Dam.
Prior to the activities in 2009, Windmill Dam consisted of an earthen wall that was used as a road crossing and it impounded water in Chimney Creek.
In early 2009, Mr Perdikaris directed Mr Brian Leihn, a contractor who had previously worked as a farm manager for the Perdikaris' rural properties, to increase the wall and the size of Windmill Dam. In late May or early June 2009, in accordance with Mr Perdikaris' directions, Mr Leihn used a D7H Caterpillar Bulldozer owned by Mr Perdikaris to strip back the topsoil on the wall of Windmill Dam. He pushed topsoil away from a borrow pit, located in the bank of Chimney Creek, downstream of the old dam wall. In order to widen the wall and to increase its height, Mr Leihn used the bulldozer to cut into the bedrock near the old dam wall and then deposited clay that had been taken from the borrow pit in the bank of Chimney Creek, at the base of the new wall.
Around 9 June and 12 to 14 June 2009, Mr Brian Gibbons, a second contractor engaged with the approval of Mr Perdikaris, and in accordance with the directions of Mr Perdikaris, operated the bulldozer to strip back topsoil from the old wall of Windmill Dam and to put the topsoil in a pile. He then used the bulldozer to rip up the clay bed of Chimney Creek.
Mr Brian Sinclair, a third contactor engaged with the approval of and acting in accordance with the directions of Mr Perdikaris, used a scraper to take that material and deposit it across the bed and banks of Chimney Creek in order to build up the new dam wall.
The effect of the removal from and deposition of material in the bed and banks of Chimney Creek was to increase the wall of Windmill Dam from about 2.5m in height to about 4.5m to 5m in height (measured from the bottom of the creek bed), and to increase the width of the wall at the top from around 3.5m to around 7m. This increased the volumetric capacity of the dam and the amount of water it could potentially impound from 1 ML to 3 ML before the activities were carried out, to 11.3 ML after the activities had been carried out. However, two existing 6 inch PVC discharge pipes remained in place.
Prior to the activities in 2009, Taila Dam consisted of an earthen wall that cut across Chimney Creek from a rocky hill on the eastern side and a natural slope on the western side, and it impounded water.
In around July 2009, Mr Perdikaris directed Mr Leihn to raise the wall of Taila Dam and to enlarge the dam. Around 17 to 21 August 2009, in accordance with Mr Perdikaris' directions, Mr Leihn used the bulldozer to strip the topsoil off the original dam wall and deposit it on the outside toe of the dam wall. The toe of the dam wall was the junction of the downstream face of the dam with the natural ground surface. Mr Leihn then excavated approximately 1,200 cubic metres of earth from a borrow pit located upstream of the wall in the bank of Chimney Creek. He also cut into a paddock on the western side in which the borrow pit was located. Mr Leihn deposited the excavated material downstream of the original dam wall in the creek bed in order to widen the wall and to increase its height. He then used the bulldozer to put the old topsoil on the new wall.
The effect of the excavation and deposition of material in the bed and banks of Chimney Creek was to increase the wall of Taila Dam from about 2m in height to about 3m in height (measured from the bottom of the creek bed but not including the spillway) and to increase the width of the wall at the top from about 2.7m to around 5.4m. This increased the volumetric capacity of the dam and the amount of water it could potentially impound from 1.6 ML before the activities were carried out to 5.6 ML after the activities were carried out.

The offences committed

The activities of excavating and depositing material in the bed and banks of Chimney Creek involved contraventions of s 91E(1) of the WM Act. Section 91E(1) provides: A person: (a) who carries out a controlled activity in, on or under waterfront land, and (b) who does not hold a controlled activity approval for that activity, is guilty of an offence. A "controlled activity" is defined in the Dictionary to the WM Act to include: (b) the removal of material (whether or not extractive material) or vegetation from land, whether by way of excavation or otherwise, or (c) the deposition of material (whether or not extractive material) on land, whether by way of landfill operations or otherwise, or …
The activities of the three contractors in stripping back topsoil on the old walls of the two dams and depositing it in piles in the banks of the creek, and in excavating clay and earth from borrow pits in the banks and bed of the creek and depositing the excavated material on the old walls of the dams and on the bed and banks of the creek adjacent to the old walls to build up new dam walls, constituted the removal of material and the deposition of material and hence a "controlled activity".
"Waterfront land" is defined in the Dictionary to the WM Act to include: (a) the bed of any river, together with any land lying between the bed of the river and a line drawn parallel to, and the prescribed distance inland of, the highest bank of the river, … where the prescribed distance is 40 metres or (if the regulations prescribe a lesser distance, either generally or in relation to a particular location or class of locations) that lesser distance. …
The regulations have not prescribed a lesser distance than 40m for Chimney Creek.
A "river" is defined in the Dictionary to the WM Act to include: (a) any watercourse, whether perennial or intermittent and whether comprising a natural channel or a natural channel artificially improved, and (b) any tributary, branch or other watercourse into or from which a watercourse referred to in paragraph (a) flows, and (c) anything declared by the regulations to be a river, whether or not it also forms part of a lake or estuary, but does not include anything declared by the regulations not to be a river.
The regulations have not declared anything not to be a river.
It has been said of the similar definition of "river" in the predecessor legislation of the Rivers and Foreshores Improvement Act 1948 that it: is inclusive because its purpose is to extend the beneficial objectives of the RFI Act widely, and therefore the RFI Act adopts an extensive definition rather than a limited definition. See: Zouki v Water Administration Ministerial Corporation [2001] NSWLEC 258; (2001) 118 LGERA 229 at [14].
It has also been said that "[t]he expressions used in the definition of 'river' are expansive and should not be read narrowly": Azzopardi v Gosford City Council [2002] NSWCA 234; (2002) 123 LGERA 118 at [40] (Davies AJA dissenting on the application of the definition to the facts but not on this interpretation of the definition).
These observations are also applicable to the definition of "river" in the WM Act.
The expression "watercourse" is not defined in the WM Act. It would, at least, include channels that would be accepted to be watercourses under the common law of England, which has been received into and forms part of Australian law: see, for example, Lyons v Winter (1899) 25 VLR 464 at 465; Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 at 23-25; Knezovic v Shire of Swan-Guildford [1968] HCA 38; (1968) 118 CLR 468 at 475-476; Macag Holdings v Torrens Catchment Water Management Board [2000] SASC 115; (2000) 76 SASR 434 at 438-441, and see also Jugiong Quarries Pty Ltd v Water Administration Ministerial Corporation [1995] NSWLEC 74 (Talbot J).
However, it might also be argued that the wide and inclusive definition of "river" in the WM Act and the particular physiographic, geomorphologic and hydrologic conditions of New South Wales, in respect of which the WM Act is to apply, might justify the expression "watercourse" as not being restricted to only those watercourses accepted under the common law: see M Taylor & R Stokes, "Up the Creek: What is wrong with the definition of a river in New South Wales?" (2005) 22 Environmental and Planning Law Journal 193.
In any event, in this case, there is no doubt that Chimney Creek, which is a third order stream within "Clover Hills", is a "watercourse" within the definition of "river" in the WM Act.
The relevant waterfront land consisted of the bed of Chimney Creek and the land on either side lying between the bed and a line drawn parallel to, and 40m inland of, the highest bank of Chimney Creek. The dam walls of Windmill Dam and Taila Dam, the borrow pits and other areas from which material was removed, the lands on which material was deposited, and the lands on which water was impounded, all were located on this waterfront land.
A "controlled activity approval" is defined in the Dictionary to the WM Act as an approval referred to in s 91(2) of the WM Act. Section 91(2) provides that: A controlled activity approval confers a right on its holder to carry out a specified controlled activity at a specified location in, on or under waterfront land.
The process of applying for an "approval" (which in the Dictionary includes a controlled activity approval) is governed by Div 2 of Pt 3 of Ch 3 of the WM Act. An application for approval may be made by any person and must be made to the Minister in accordance with the regulations (s 92(1) and (2) of the WM Act). At the time of the commission of the offences in 2009, the applicable regulations were the Water Management (General) Regulation 2004. Clause 31 required the application to be in the approved form and to include or be accompanied by an assessment of the likely impact of the activity concerned (prepared in accordance with any guidelines approved by the Minister): cl 31(1)(a) and (b) and (3).
After considering an application and all matters relevant to the application, the Minister may grant approval to the application or refuse the application: s 95(1) of the WM Act.
In considering whether or not to grant an approval, the Minister must take into account such matters as are prescribed by the regulations and such other matters as the Minister considers relevant: s 96 of the WM Act. Relevant matters may include matters relating to the objects of the WM Act in s 3, including application of the principles of ecologically sustainable development and protection, enhancement and restoration of water sources, their associated ecosystems, ecological processes and biological diversity and their water quality: s 3(a) and (b) of the WM Act.
A controlled activity approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that no more than minimal harm will be done to any waterfront land as a consequence of the carrying out of the proposed controlled activity: s 97(4) of the WM Act.
A controlled activity approval is subject to any mandatory conditions or discretionary conditions that the Minister may impose, including conditions relating to protection of the environment: s 100(1) of the WM Act.
In this case, none of Mr Perdikaris, Mrs Perdikaris, Mr Leihn, Mr Gibbons, Mr Sinclair or any other person held a controlled activity approval under the WM Act, or any equivalent licence or approval under the Rivers and Foreshores Improvement Act 1948 or the Water Act 1912, authorising the carrying out of the controlled activities at Clover Hills the subject of the offences.
In these circumstances, Mr Leihn, Mr Gibbons and Mr Sinclair carried out controlled activities on waterfront land on Clover Hills, without holding a controlled activity approval for those activities, and thereby committed offences against s 91E(1) of the WM Act.
Mr Perdikaris directed these people to carry out these activities. Mr Perdikaris had knowledge of all of the essential facts which constituted the offences, and intentionally counselled or procured the commission of the offences: see Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 479, 482, 483 (Gibb CJ), 493-494 (Mason J), 500-501, 504-505 (Wilson, Deane and Dawson JJ). Mr Perdikaris was, therefore, an accessory to the offences committed by the primary offenders, being Messrs Leihn, Gibbons and Sinclair. By s 347 of the WM Act, Mr Perdikaris is guilty of the same offences as those for which the principal offenders are liable. Section 347 relevantly provides: A person who: ... (b) aids, abets, counsels or procures another person to commit an offence against this Act or the regulations, or ... is guilty of that offence and liable to the penalty prescribed by this Act or the regulations in relation to that offence.
Mr Perdikaris was, therefore, derivatively or accessorially liable for the two offences against s 91E(1) of the WM Act by reason of counselling or procuring the principal offenders to commit the two offences against s 91E(1) of the WM Act.

Sentencing considerations

In sentencing Mr Perdikaris for the offences, the Court must identify and analyse all the factors that are relevant to sentence and, by way of instinctive or intuitive synthesis, determine the appropriate sentences. The sentences must reflect and be proportionate to the objective seriousness of the offences and the subjective circumstances of Mr Perdikaris. The Court must consider the factors of relevance in s 21A of the Crimes (Sentencing Procedure) Act 1999 ('CSP Act') and s 364A(1) of the WM Act, as well as such other matters it considers relevant: s 364A(2) of the WM Act.
The Court must consider the purposes for which the Court may impose a sentence in s 3A of the CSP Act. Paragraphs (a), (b), (e), (f) and (g) are relevant to the offences and the offender in this case.

Objective seriousness of the offences

The objective circumstances of the offences of relevance are: the nature of the offences; the maximum penalty; whether there was any impact of the offences on other people's rights under the WM Act; the environmental harm; the foreseeability of the risk of environmental harm; the control over the causes giving rise to the offences; and the offender's intentions in committing the offences.

Nature of the offences

The objects of the WM Act in s 3 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 …
The principles of ecologically sustainable development are defined in the Dictionary to the WM Act to mean the principles of ecologically sustainable development described in s 6(2) of the Protection of the Environment Administration Act 1991. These principles are described as involving the four principles of the precautionary principle, intergenerational equity, conservation of biological diversity and ecological integrity, and improved valuation, pricing and incentive mechanisms.
Amongst the different regulatory mechanisms to achieve these objects is the controlling of activities on waterfront land (including the bed and banks of rivers) that are likely to adversely affect water sources, their associated ecosystems, ecological processes and biological diversity and their water quality. This is achieved by prohibiting the carrying out of controlled activities on waterfront land, but allowing for that prohibition to be relaxed by granting various kinds of approvals, including a controlled activity approval. The application for and grant of a controlled activity approval requires assessment of the likely environmental impacts of the controlled activity and imposition of conditions relating to protection of the environment. The statutory provisions requiring prior environmental impact assessment and approval of controlled activities are linchpins of the WM Act. An offence against such provisions thwarts the attainment of the objects of the WM Act, including the principles of ecologically sustainable development. My discussion in Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [65]-[71], [168]-[169] and Director General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15]-[20], although concerning the regulatory schemes under different environmental legislation, is nevertheless equally apposite to the WM Act.
There is a need for the upholding of the regulatory system under the WM Act. The system depends on persons, first, taking steps to ascertain when approval is required to carry out activities, including controlled activities on waterfront land, secondly, making application in the appropriate form and manner (including environmental impact assessment of the activity) and obtaining any approval so required before carrying out the activity and, thirdly, complying with the terms and conditions of any approval granted in carrying out the activity.
Offences which undermine the integrity of the regulatory system are objectively serious. Use of the criminal law ensures the credibility of the regulatory system.
The activities of the contractors, who acted in accordance with the directions of Mr Perdikaris, in carrying out the controlled activities on the waterfront land of Chimney Creek on Clover Hills without first applying for and obtaining a controlled activity approval or any other approval authorising the activities offended against the legislative objective expressed in the statutory offence and also thwarted attainment of the objects of the WM Act, including the principles of ecologically sustainable development.

Maximum penalty

Contravention of s 91E(1) of the WM Act is a Tier 2 offence with a maximum penalty of 2,250 penalty units or $247,500: see s 363B(b) of the WM Act. There is also a daily penalty of 600 penalty units ($66,000) in the case of continuing offences, but Mr Perdikaris is not charged with committing a continuing offence. The maximum penalty reflects the seriousness with which Parliament regards the offence and it provides a yardstick to measure the relevant features of the offences for which Mr Perdikaris is to be sentenced against the worst case: Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27].

Whether any impact on other persons' rights

Section 364A(1)(a) of the WM Act requires the Court, in imposing a penalty on a person for an offence against the WM Act or the regulations, to take into consideration "the impact of the offence on other persons' rights under this Act".
Part 1 of Ch 3 of the WM Act sets out the basic landholder rights, including domestic and stock rights (s 52), harvestable rights (s 53) and native title rights (s 55).
There is no evidence that any owner or occupier of a landholding, any native title holder, or any other person had any rights under the WM Act in relation to water from Chimney Creek or that the offences had any impact on any persons' rights under the WM Act. In the circumstances, therefore, this factor is not relevant in sentencing Mr Perdikaris for the offences.

Environmental harm

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 offences is relevant to the objective seriousness of the offences: s 364A(1)(c) of the WM Act and s 21A(2)(g) of the CSP Act.
The commission of the offences caused immediate and consequential harm to the environment and was likely to cause harm to the environment.
The immediate harm caused was threefold. First, the carrying out of the controlled activities on waterfront land, namely, the removal and deposition of earthen material in the bed and banks of Chimney Creek, caused disturbance to the waterfront land of Chimney Creek. By use of a bulldozer, topsoil was stripped from the wall of Windmill Dam that cut across Chimney Creek and also away from a borrow pit in the bank of Chimney Creek downstream of the dam wall, and was deposited in piles on the banks of the creek. The bulldozer cut into the bedrock near the dam wall and deposited clay excavated from the exposed borrow pit in the creek bed at the base of the wall. The bulldozer ripped up the clay bed of Chimney Creek and a scraper took the ripped material and deposited it across the bed and bank of Chimney Creek to build up the new dam wall.
Similarly, the bulldozer was used to strip topsoil off the wall of Taila Dam and deposit it at the toe of the wall in the bed of Chimney Creek. The bulldozer excavated earth from a borrow pit and a paddock on the western bank of Chimney Creek upstream of the wall, and then deposited the excavated material downstream of the wall to widen and increase its height.
These activities caused substantial disturbance of the bed and banks of Chimney Creek and exposed large areas of earth which provided a source for sedimentation downstream in Chimney Creek.
Secondly, the main physical effect on Chimney Creek during the carrying out of the controlled activities was to increase the sediment load through the erosion of the disturbed soils, especially after rainfall. In relation to the enlargement of Taila Dam, the increase in sediment load would have affected only about 50m of Chimney Creek between Taila Dam and Windmill Dam, because Windmill Dam was likely to have trapped sediment after dropping from the water column as flow was reduced in the pool of the dam. For Windmill Dam, however, the sediment load would have extended downstream of the wall and the borrow pit. However, the evidence does not establish the volume of sediment, the sediment levels in the water, or the length of Chimney Creek that was affected by sedimentation.
Thirdly, the flow of Chimney Creek downstream of the dams was reduced temporarily and during high flow events. Both Windmill Dam and Taila Dam had outlets before the activities were carried out, two six inch diameter pipes in the wall of Windmill Dam and a bypass or spillway on one side of Taila Dam. Neither of these outlets was affected by the activity. However, by raising each of the dam walls, during periods of high rainfall when inflows to the dams exceeded outflows through the outlets, more water was able to be impounded and the water levels increased, rather than overtopping and being released downstream.
This effect was observed by downstream users. Each of the owners of the two downstream properties, Chimney Creek and Trickett's Arch, observed a reduction in flow of Chimney Creek in August, September and October 2009 after the carrying out of the activities at Windmill Dam and Taila Dam. Again, the evidence does not establish the periods in which flow was reduced or the volume of water that was reduced by reason of the carrying out of the controlled activities.
One of the consequences of the carrying out of the controlled activities, in particular increasing the height and width of the dam walls, was to increase the volumetric capacity of the dams and the amount of water that each dam could potentially impound. This had three consequential impacts.
First, in times of high rainfall when inflows exceeded outflows and the area of ponded water increased, additional sections of the channel of Chimney Creek behind each dam were drowned. The length of the additional sections of the channel that were inundated were not measured. Some estimate can be gleaned from the aerial photographs of the two dams taken in April 2008, with superimposed GPS survey points of the circumference of the impounded bodies of water in June 2010 after the carrying out of the activities. These show a much greater difference in area of impounded waters for Windmill Dam than for Taila Dam. The effect of increasing the areas of impounded waters was to change the habitat in the additional areas from a creek channel habitat into a ponded habitat. The evidence does not establish what flora or fauna were affected by this change in habitat, the period of affectation or the degree of affectation.
Secondly, after the completion of the controlled activities, Windmill Dam continued to contribute to sedimentation in Chimney Creek downstream of the dam. Windmill Dam lacked a bypass channel or spillway. This meant that in periods of high rainfall when inflows exceeded outflows via the two six inch diameter pipes in the dam wall, water levels rose and could overtop the dam wall. Because the dam wall was an exposed earth wall, overtopping caused erosion and scouring of the earth wall and movement of sediment downstream into Chimney Creek. Overtopping was observed on 2, 6 and 21 March 2012.
The overtopping of Windmill Dam on 2 March 2012, concentrated in the centre of the dam wall, led to significant scouring of the dam wall face, which consisted of relatively soft clay. This led to some tunnelling in the dam wall associated with the two PVC discharge pipes installed near the base of the dam wall. Tunnelling and dam wall face scour can cause cavity failure in the dam wall.
Photographs taken on those occasions in March 2012 show a heavy flow of water over the earth wall of Windmill Dam and the loss of a substantial amount of earthen material around the discharge pipes, and deposition of the material in the scour pool and bed of Chimney Creek immediately downstream of Windmill Dam.
The overtopping of Windmill Dam on 2 March 2012 caused a sudden gush of water down Chimney Creek and destroyed the crossing over Chimney Creek on one of the downstream properties, Trickett's Arch. As a result of the damage to this crossing, the owner was unable to cross Chimney Creek in his car and he had no road access out of his property by car for one month. A new crossing was later built at a cost of $5,000.
Thirdly, the enlargement of Windmill Dam and Taila Dam provided a larger surface area of water for evaporation. Evaporation of water from the two dams meant that any evaporated water was lost from the water source of Chimney Creek. The evidence did not establish the additional amount of water lost by evaporation from this larger surface area.
The sentencing court is required to consider not only the extent of harm caused to the environment by the commission of the offences, but also the extent of harm likely to be caused to the environment: see s 364A(1)(c) of the WM Act. The word "likely" means a real and not remote chance, rather than more probable than not (in the sense of being more than a 50% chance): Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 346-347; Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10 at 21; Matthews v Goulburn Wool Processors Pty Ltd (Supreme Court (NSW), Smart J, 6 November 1986, unrep) at p 9; State Pollution Control Commission v Blayney (1991) 72 LGRA 221 at 224; State Pollution Control Commission v New South Wales Sugar Milling Co-operative Ltd (1991) 73 LGRA 86 at 100; Environment Protection Authority v Anning (1998) 100 LGERA 354 at 359; Pace Farm Egg Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403; (2006) 151 LGERA 260 at [54]-[56] and see also R v SLD [2003] NSWCCA 310; (2003) 58 NSWLR 589 at [30]-[32].
In this case, the immediate and consequential effects of the commission of the offences were likely (in the sense of they had a real and not remote chance) to cause harm to the water source and the waterfront land of Chimney Creek in a number of ways.
First, sedimentation can affect any aquatic plants and animals occupying the stream bed surface at low flows by smothering them or their habitats (eg infilling pool habitats). At higher flows, sediment particles can clog the gills of animals, causing their death. While there was no evidence of any animal or plant surveys of Chimney Creek or any investigation to determine what animals or plants were present in the creek at the time of commission of the offences, macro invertebrates would have been expected to be present in the creek at the time of commission of the offences and two species of native freshwater fish, the long finned eel and short finned eel, were likely to inhabit Chimney Creek.
Secondly, there was a real chance that the combination of increased sedimentation and lower flows caused the settling of sediment particles on the creek bed surface that can form a seal that disconnects surface water from the internal spaces. Where this occurs, the weakened exchange between the surface and internal sediments can starve the creek bed of oxygen and promote reducing conditions altering the nutrient dynamics by limiting oxygen or by altering interstitial bacterial communities.
The evidence did not establish that these likely harms actually occurred.
Collectively, these immediate and consequential actual harms and likely harms to the environment (including the water source and the waterfront land) are of medium seriousness.

Practical measures to prevent harm

The availability of practical measures to prevent, control, abate or mitigate the harm caused or likely to be caused to the environment by the commission of the offences is relevant to the objective seriousness of the offences: s 364A(1)(d) of the WM Act.
There were practical measures that could and should have been taken to prevent the actual and likely environmental harms. The best available measure to prevent harm was for Mr Perdikaris not to have directed the carrying out of the controlled activity. If Mr Perdikaris had wished to carry out the controlled activities, he could and should have ascertained what approvals were required for the activities, made application in the appropriate form and manner for the required approval, and only if approval was granted, then directing the carrying out of the activities in accordance with any approval granted.
Mr Perdikaris said that his purpose in carrying out the works to Windmill Dam was to improve road access across Chimney Creek. However, that purpose could have been achieved by constructing the road and culverts across the creek that he ultimately built in response to the directions under s 329(2) of the WM Act. Windmill Dam was removed by these works. Mr Perdikaris would still have needed to have applied for and obtained a controlled activity approval because the works involved controlled activities on waterfront land. However, the environmental harm caused, or likely to be caused, by carrying out these works would have been significantly less than the harm caused, or likely to be caused, by the commission of the offences.

Foreseeability of harm

Another factor affecting the objective seriousness of the offences is the extent to which Mr Perdikaris could reasonably have foreseen the harm caused, or likely to be caused, to the environment by the commission of the offences: s 364A(1)(e) of the WM Act.
Mr Perdikaris clearly could reasonably have foreseen the harm that was actually caused or was likely to be caused to the environment (including the water source and the waterfront land of Chimney Creek) by the carrying out of the controlled activities of removing and depositing material in the bed and banks of Chimney Creek so as to enlarge Windmill Dam and Taila Dam. The nature, extent and location of the activities made environmental harm inevitable.

Control over causes

The extent to which Mr Perdikaris had control over the causes that gave rise to the offences is another factor relevant to the objective seriousness of the offences: s 364A(1)(f) of the WM Act. In this case, Mr Perdikaris had complete control over the causes that gave rise to the offences. By his deliberate decisions to direct the carrying out of the controlled activities, he counselled or procured the commission of the primary offences.

Intention in committing the offences

Section 364A(1)(h) of the WM Act requires the Court to consider Mr Perdikaris' intentions in committing the offences. An offence against s 91E(1) of the WM Act is a strict liability offence. However, Mr Perdikaris' liability is derivative or accessorial, not primary. By counselling or procuring the contractors to commit the principal offences, Mr Perdikaris is also guilty of those offences: s 347(b) of the WM Act. Accessorial liability, however, requires Mr Perdikaris to have intentionally participated in the principal offences and so he must have had knowledge of the essential matters which constituted the offences, whether or not he knew that those matters amounted to a crime: Giorgianni v The Queen at 479, 482, 483, 493-494, 500-501, 504-505.
Mr Perdikaris has admitted that, at all material times, he had knowledge that: 1. Chimney Creek was a third order stream according to the Strahler Stream Ordering methodology; 2. the activity of removing material from and depositing material on waterfront land at Windmill Dam and Taila Dam would be or was being conducted; 3. no person held a controlled activity approval or a replacement approval created by cl 3(1)(d) of Sch 10 to the WM Act, which permitted the activity of removing material from or depositing material on waterfront land at Windmill Dam or Taila Dam; and 4. it was unlawful to remove material from or deposit material on waterfront land at Windmill Dam or Taila Dam in the absence of a controlled activity approval or a replacement approval created by cl 3(1)(d) of Sch 10 to the WM Act.
Mr Perdikaris, therefore, had knowledge of the essential matters which constituted the offences. He intentionally participated in the primary offences by the contractors by deliberately directing them to carry out the activities with full knowledge of their illegality.
Mr Perdikaris directed that the controlled activities be carried out despite his previous dealings with the Department and the regulatory directions in 2004 and 2008 concerning Windmill Dam and Taila Dam. Those dealings and directions put Mr Perdikaris on notice that he would require some kind of approval before carrying out the activities in relation to Windmill Dam and Taila Dam.
Mr Perdikaris' conduct, therefore, can be seen to be premeditated and he intentionally directed the carrying out of the activities with knowledge of their illegality. The commission of the offences with this knowledge increases the objective seriousness of the offences.
The prosecutor also submitted that Mr Perdikaris' intentions in committing the offences were for financial gain. The prosecutor referred to the evidence that Clover Hills had been listed with a real estate agent for sale in 2010 after the carrying out of the activities to enlarge the two dams. Promotional brochures drew attention to the "large spring fed dams and run-off dams" and included a picture of Taila Dam with its increased ponded surface area. Mr Perdikaris accepted in cross-examination that increased dam capacity may make the property more attractive to potential purchasers and increase the value of the property. The prosecutor submitted that the Court could draw the inference from this evidence that one of the intentions of Mr Perdikaris in directing the controlled activities to be carried out was to increase the value of the property and its sale price. If so, the commission of the offences for financial gain would increase the objective seriousness of the offences: see s 21A(2)(o) of the CSP Act.
I find that the prosecutor has not established, beyond reasonable doubt, that Mr Perdikaris did commit the offences for financial gain. Mr Perdikaris gave evidence as to the purposes for which he directed the carrying out of the activities on Windmill Dam and Taila Dam. These purposes were not for financial gain. Mr Perdikaris was cross-examined on his purposes. He denied that he enlarged the dams for the purpose of increasing agricultural productivity, making the property more attractive for potential purchasers, or increasing the value of the property or the sale price that might be achieved if the property were to be sold. He accepted that these might be consequences of the activities that he had carried out but they were not the purposes for which he directed the activities to be carried out. In the face of these direct denials, I am not prepared to draw the inference from the mere fact of listing the property for sale or the content of the promotional brochures that the purpose and reason for Mr Perdikaris committing the offences was for financial gain.

Conclusion on objective seriousness

Considering all of the objective circumstances, the offences are in the moderate range of objective seriousness for offences of these kinds.

Subjective circumstances

Within the boundaries set by the objective seriousness of the offences, the Court may consider the subjective circumstances of Mr Perdikaris, including: his prior record of convictions; his pleas of guilty; his remorse for the offences; the unlikelihood of his reoffending; and his assistance to authorities.

Prior record of convictions

Mr Perdikaris does have a record of previous convictions for a variety of offences, which may be characterised as a "significant" record so that the mitigating factor of absence of a criminal record does not apply: see s 21A(3)(e) of the CSP Act. However, none of the offences are against any environmental legislation. The prosecutor accepted that Mr Perdikaris' previous convictions do not reveal that he has a propensity for the type of offences for which he is presently being sentenced.

Pleas of guilty

Mr Perdikaris has pleaded guilty to the offences, a fact that the Court is required to take into account: s 21A(3)(k) and s 22(1)(a) of the CSP Act. A plea of guilty has utilitarian value to the criminal justice system. A court takes account of the utilitarian value of the plea of guilty by imposing a lesser penalty than it would otherwise have imposed: s 22(1) of the CSP Act. However, a lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offences: s 22(1A) of the CSP Act.
In determining the extent of any discount that should be given for a plea of guilty, the Court is required to consider when the offender pleaded guilty or indicated an intention to plead guilty: s 22(1)(b) of the CSP Act. As a general rule, the earlier the plea, the greater the discount, while the later the plea, the lesser the discount: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160].
In this case, there was a substantial delay in Mr Perdikaris entering his pleas of guilty to the two charges.
The proceedings were commenced on 28 February 2013. The first date on which Mr Perdikaris appeared before the Court to answer the charges specified in the summons (there were then eight charges) was 5 April 2013. Various directions were made on that occasion. These directions were varied by a judge in chambers on two occasions, on 26 June 2013 and 6 September 2013. There then followed five directions hearings at which further directions were made, on 20 September 2013, 1 November 2013, 22 November 2013, 6 December 2013 and 7 March 2014.
On 7 March 2014, Mr Perdikaris applied for a separate hearing of a preliminary jurisdictional objection he had raised. The Court fixed the hearing of Mr Perdikaris' preliminary jurisdictional objection on 22 May 2014.
On 22 May 2014, the prosecutor and Mr Perdikaris reached an in-principle settlement relating to the prosecution against Mr Perdikaris and a related prosecution against Mrs Perdikaris and appeals lodged by Mrs Perdikaris in relation to directions issued under s 329 of the WM Act for the removal and modification of unlawful water management works, being the two dams on Chimney Creek. As part of the settlement, Mr Perdikaris agreed to carry out remedial works to remove Windmill Dam and to reduce the height of the dam wall of Taila Dam, in accordance with the directions given under s 329 of the WM Act.
On the same day, 22 May 2014, by consent, the Court vacated the hearing of Mr Perdikaris' preliminary jurisdictional objection and adjourned the proceedings for a further directions hearing. There then followed three more directions hearings at which more directions were made, on 29 August 2014, 14 November 2014 and 6 February 2015. Prior to the last directions hearing, the prosecutor served a proposed agreed statement of facts and a proposed agreed bundle of documents on 14 January 2015.
At the directions hearing on 6 February 2015, the prosecutor was granted leave to file the further amended summons reducing the charges to the two charges that are presently before the Court. Mr Perdikaris then entered pleas of guilty to both charges. The sentence hearing was fixed for 26 and 27 May 2015.
It therefore took two years and at least ten directions hearings in court before Mr Perdikaris entered his pleas of guilty to the charges. This substantial delay in entering the pleas of guilty reduces the utilitarian value of Mr Perdikaris' pleas. The advantages to the criminal justice system are less and hence the discount should be lower: R v Dib [2003] NSWCCA 117 at [5] and [6]; R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32]; Morton v The Queen [2014] NSWCCA 8 at [32] and [33].
Nevertheless, the entry of the guilty pleas, when they did eventually occur, still yielded advantages to the criminal justice system. The preliminary jurisdictional objection no longer had to be determined and the trial no longer had to be held, and instead a sentence hearing could be conducted.
In these circumstances, I consider that the guilty pleas still had utilitarian value, although less than they would have had had they been entered earlier, and the discount should be reduced from the maximum 25% to 15%: see R v Borkowski at [31] and Morton v R at [36].

Remorse for the offences

Apart from the utilitarian value of the pleas of guilty, genuine remorse of an offender is a further mitigating factor. However, s 21A(3)(i) of the CSP Act states that remorse by an offender for the offence will only be a mitigating factor if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
The existence of genuine remorse is also relevant to the weight to be given to individual deterrence and the prospects of rehabilitation of the offender: R v Thomson at [116].
I find that Mr Perdikaris is remorseful for the offences. He has accepted responsibility for his actions and has acknowledged the harm caused to the environment and his neighbours. Mr Perdikaris gave evidence by affidavit and orally at the sentence hearing. He was cross-examined. In his affidavit, Mr Perdikaris said: [10] I regret my actions in causing the Works to be carried out and I am sorry and apologise to the Court and the Office of Water (as representatives of the community) for causing the Works to be carried out and committing the offences. [11] I also sincerely regret having caused any problems for my neighbours Peter Dykes and Andrew Upton. I now accept that the Works temporarily altered the flow of Chimney Creek and caused concern for them. However, I was not aware of this when the Works were carried out and I did not become aware of this until I was served with the prosecution affidavits in these proceedings. They never came to me (or Cindy) to discuss the Works or any problems with Chimney Creek or to communicate their concerns to me or Cindy. … [17] I have learned an important lesson from this experience and I will always seek the proper advice and obtain the proper approvals for any future works that I may carry out. [18] Also, the experience has caused my family and me a great deal of personal angst involving a lot of time and effort which has not helped in me trying to reconcile my separation with Cindy. Finally there is also Cindy's and my own legal expenses which are in excess of $160,000 and I will also be paying the prosecutor's costs agreed at $93,000.
Mr Perdikaris has carried out remedial works to remove Windmill Dam and to construct an alternative road with culverts across Chimney Creek and has lowered and substantially reduced the area of Taila Dam. These remedial works were done in accordance with the directions under s 329(2) of the WM Act issued to Mr Perdikaris. The prosecutor is satisfied that there has been full compliance with the s 329(2) directions and indeed accepts that the environmental outcome is better than that which pertained prior to the controlled activities being carried out.
Mr Perdikaris said that the cost of carrying out the remedial works was approximately $20,500 (including hiring an excavator, purchasing crown and headwall culverts, concrete pipes and fuel). He deployed farm management employees to carry out the remedial works, which had an opportunity cost because they could not carry out the farm management program.

Unlikely to reoffend

Another mitigating factor to be taken into account is if the offender is unlikely to reoffend: s 21A(3)(g) of the CSP Act. I find that, by reason of Mr Perdikaris' genuine remorse for the offences and the remedial works he has undertaken to remove Windmill Dam and substantially reduce Taila Dam, he is unlikely to reoffend.

Assistance to authorities

Mr Perdikaris has cooperated with the prosecutor, by his plea bargain, by agreeing to carry out the remedial works and by agreeing a comprehensive statement of facts and a bundle of documents. Mr Perdikaris has also agreed to pay $93,000 as a contribution to the prosecutor's costs. Such assistance is a mitigating factor: s 21A(3)(m) and s 23 of the CSP Act.

Appropriate penalty

I take into account the objective circumstances of the offences and the subjective circumstances of Mr Perdikaris, as I have discussed above.
I take into account the purposes of sentencing in s 3A of the CSP Act. The purposes of punishment, retribution and denunciation are relevant. There is a need for the Court, through the sentence it imposes, to ensure that Mr Perdikaris is adequately punished for the offences, to hold him accountable for his actions, and to denounce his conduct, in proportion to the seriousness of the offences.
The sentence also needs to act as a deterrent. The purpose of general deterrence is relevant to ensure that owners and occupiers of landholdings near water sources and watercourses do not carry out controlled activities on waterfront land without first obtaining approval to do so and then carrying out the activities in accordance with the terms and conditions of the approval. The sentence of the court needs to send a message to such persons about the need to obtain and to comply with all necessary approvals.
In the circumstances of this case, having regard to Mr Perdikaris' genuine remorse for the offences and the remedial works he has undertaken, and the unlikelihood of him reoffending, there is no particular need for individual deterrence.
Synthesising all of the relevant objective and subjective circumstances of the offences and this offender, and considering the purposes of sentencing, I consider that the appropriate penalty for the offence against s 91E(1) of the WM Act concerning Windmill Dam is $70,000 and for the offence against s 91E(1) of the WM Act concerning Taila Dam is $40,000. These amounts should be discounted by 15% for the utilitarian value of the pleas of guilty. This makes the amounts $59,500 and $34,000 respectively.
I have considered whether the totality principle requires these penalties to be adjusted. I consider that no adjustment is required. I consider that the aggregate of $93,500 is just and appropriate and reflects the total criminality before the court. I consider that any downward adjustment of the penalties would make them not reflect the seriousness of the offences, either in total or individually.
The prosecutor seeks, and Mr Perdikaris does not oppose, a moiety in the fines payable by Mr Perdikaris under s 122 of the Fines Act 1996.

Orders

I make the following orders: 1. The defendant is convicted of the two offences charged in the Further Amended Summons filed on 6 February 2015. 2. The defendant is to pay fines in the amounts of: 1. $59,500 for the offence against s 91E(1) of the Water Management Act 2000 in charge one of the Further Amended Summons; and 2. $34,000 for the offence against s 91E(1) of the Water Management Act 2000 in charge two of the Further Amended Summons. 1. Pursuant to s 122 of the Fines Act 1996, the Registrar is directed to pay 50% of each of the fines that the defendant pays pursuant to Order 2, to the prosecutor, as delegate of the NSW Office of Water. 2. Pursuant to s 257B and s 257G of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor's legal costs in the amount of $93,000.

Amendments 18 June 2015 - Typographical error, change made to [68], s 364A(1)(e) changed to s 364A(1)(c). 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: 18 June 2015

(2002) 123 LGERA 118

(2006) 145 LGERA 234

(2009) 168 LGERA 121

(1998) 100 LGERA 354

(2006) 151 LGERA 260

(2001) 118 LGERA 229

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