Natural Resources Access Regulator v Tony Thompson

Catchwords

(2002) 56 NSWLR 146 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34(2006) 145 LGERA 234 Bourke v The Queen [2010] NSWCCA 22(2010) 199 A Crim R 38 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280(2012) 192 LGERA 314 Chief Executive, Office of Environment & Heritage v Orica Pty Ltd(2019) 242 LGERA 241 Chiro v The Queen [2017] HCA 37(2017) 260 CLR 425 Croaker v R [2008] NSWCCA 232(2008) 190 A Crim R 15 Dale v R [2021] NSWCCA 320 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137(2013) 248 CLR 483 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113 Harris v Harrison [2014] NSWCCA 84(2014) 86 NSWLR 422 Harrison v Perdikaris [2015] NSWLEC 99 Hoare v The Queen [1989] HCA 33(1989) 167 CLR 348 Johnson v The Queen [2004] HCA 15(2005) 228 CLR 357 Mill v The Queen [1988] HCA 70(1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39

Judgment (52 paragraphs)

[1]

ion Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 Environment Protection Authority v Grafil [2021] NSWLEC 123 Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 Environment Protection Authority v P&M Quality Smallgoods Pty Ltd; Environment Protection Authority v JBS Australia Pty Limited [2017] NSWLEC 89 Environment Protection Authority v Rands [2019] NSWLEC 23 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Environment Protection Authority v Wollondilly Abattoirs Pty Ltd [2019] NSWLEC 72 Environmental Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Grant Barnes, Chief Regulatory Office, Natural Resources Access Regulator v O'Haire [2020] NSWLEC 158 Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113 Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 Harrison v Perdikaris [2015] NSWLEC 99 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Kabir v R [2020] NSWCCA 139 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 LS v R [2020] NSWCCA 27 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152 R v Crombie [1999] NSWCCA 297 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 R v Dodd (1991) 57 A Crim R 349 R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 R v Nichols (1991) 57 A Crim R 391 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 R v Wheeler [2000] NSWCCA 34 Ruge and Cormack v R [2015] NSWCCA 153 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Water NSW v Barlow [2019] NSWLEC 30 Woodward v R [2017] NSWCCA 44 Texts Cited: Sentence (5th ed), 2020, Longueville Media Pty Ltd Category: Sentence Parties: Natural Resources Access Regulator (Prosecutor) Tony Thompson (Defendant) Representation: Counsel: S Climo (Prosecutor) C Ireland (Defendant)

[2]

Solicitors: Crown Solicitors Office (Prosecutor) Webb and Boland Lawyers (Defendant) File Number(s): 2019/391281, 2019/391311 and 2019/391319 Publication restriction: Nil

[3]

Thompson Pleads Guilty to Two Water Offences

The defendant, Tony Thompson, has pleaded guilty to two offences against ss 60A(4) and 91I(2) of the Water Management Act 2000 ("WMA") committed between 21 April and 3 May 2017 inclusive, at 1882 Coola Bunnawanna Road, Brewarrina, Lot 3390 DP 766463 (known as "Wirricanna"): 1. one count of taking water from a water source regulated by the WMA as a holder of a water access licence otherwise than as authorised by that licence (matter 2019/391319) ("the licence offence"); and 2. one count of taking water from a water source regulated by the WMA while metering equipment was not operating properly or not in operation (matter 2019/391281) ("the meter offence").
Thompson has admitted to a further offence that is to be taken into account in sentencing through a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") ("the Form 1 offence").
The Form 1 offence occurred at the same time and place as the commission of the licence and meter offences. In the Form 1 offence Thompson has admitted to one count of breaching a Water Supply Works Approval by failing to meter the relevant pump and fit it with a DT5 data logger or keep a logbook during the period of water take, contrary to s 91G(2) of the WMA.
The amended summons for the licence offence charged: RELIEF CLAIMED The prosecutor claims: 1 An order that the Defendant, Tony James Thompson, of Jews Harp, Louth Road, Bourke in the state of New South Wales, appear before a Judge of the Court to answer to the charge that, between about 21 April 2017 and 3 May 2017 inclusive, at the property (known as Wirricanna) comprising Lot 3990 of Deposited Plan 766463, located at 1882 Coola Bunnawanna Road, Brewarrina in the state of New South Wales, the Defendant committed an offence contrary to s 60A(4) of the Water Management Act 2000 (NSW) (the Act), in that he was a holder of a water access licence who took water from a water source to which this Part applies otherwise than as authorised by the licence. Particulars (a) A holder of a water access licence The Defendant was the holder of a water access licence (WAL number 33683- Reference 85AL753120) between about 21 April 2017 and 3 May 2017 inclusive (b) who takes water The Defendant pumped water from the Barwon River between about 21 April 2017 and 3 May 2017 inclusive (c) from a water source to which Part 2 of Chapter 3 of the Act applies The Barwon River forms part of the Barwon-Darling Unregulated River Water Source which is a water source to which Part 2 of Chapter 3 of the Act applies in relation to all approvals other than drainage work approvals and aquifer interference approvals, as proclaimed in the Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012 (d) the conditions of the licence From 30 January 2017, and between about 21 April 2017 and 3 May 2017 inclusive, the water access licence with reference No 85AL753120 was subject to a number of conditions, including the following condition no. MW0605-0001: Water must be taken in compliance with the conditions of the approval for the nominated work on this access licence through which water is to be taken. The water access licence stated that the nominated work was Water Supply Works and Water Use No. 85CA753121. (e) the conditions of the nominated work Between about 21 April 2017 and 3 May 2017 inclusive, approval for the nominated work (Water Supply Works and Water Use No. 85CA753121) at Brewarrina was subject to a number of conditions, including the following condition no. MW2339-0001: A logbook must be kept, unless the work is metered and fitted with a data logger. The logbook must be produced for inspection when requested by the relevant licensor. (f) otherwise than as authorised by the licence Between about 21 April 2017 and 3 May 2017 inclusive, when water was taken from the Barwon River using the pump installed at Wirricanna pursuant to approval no. 85CA753121, the pump was not metered and fitted with a data logger, in that the DT5 time and event logger installed in connection with the pump was disconnected The Defendant failed to keep a logbook during the period of water take between about 21 April 2017 and 3 May 2017 inclusive, in contravention of the condition MW2339-0001 of approval no. 85CA753121 and condition MW0605-0001 of water licence No. 85AL753120.

[4]

The Form 1 was signed and dated by Thompson on 7 April 2022. The Court certified the Form 1 offence on that day.

[5]

The Legislative Regime Creating the Offences

Section 60A(4) of the WMA creates an offence of taking water otherwise than in accordance with a water licence: 60A Taking water without, or otherwise than authorised by, an access licence … (4) A holder of an access licence who takes water from a water source to which this Part applies otherwise than as authorised by the licence is guilty of an offence. Tier 2 penalty.
Section 91I(2) of the WMA creates an offence of taking water without an operating water meter: 91I Taking water when metering equipment not working … (2) A person who takes water from a water source to which this Part applies by means of a metered work while its metering equipment is not operating properly or is not operating is guilty of an offence. Tier 2 penalty.
Section 363B of the WMA establishes the following relevant Tier 2 penalty for individuals: 363B Penalties For the purposes of this Act: … (b) a Tier 2 penalty corresponds to a maximum penalty of: (i) in the case of a corporation, 10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,200 penalty units for each day the offence continues, or (ii) in any other case, 2,250 penalty units and, in the case of a continuing offence, a further penalty of 600 penalty units for each day the offence continues, and…
Division 3 of Pt 3 of the CSPA sets out the powers of a court to take into account an additional offence when sentencing an offender for a principal offence. The CSPA also outlines the procedures and formalities upon which that power is predicated and the manner in which it must be exercised (ss 31 and 32 of that Act).

[6]

Thompson Operates a Farm at Wirricanna

Most of the facts forming the basis of this sentencing judgment were agreed to by the parties.
Thompson is the joint proprietor of Wirricanna together with his wife Meredith Thompson.
Water is needed on the property for the purposes of growing cotton. Cotton was the only crop grown at Wirricanna in the 2016/2017 and 2017/2018 water years. A water year runs from 1 July to 30 June of the following year.
Water from the Barwon River is pumped onto Wirricanna by a 660 m centrifugal pump located on the northern bank of the Barwon River ("the river pump"). A separate pump is used on Wirricanna for stock and domestic water consumption.
A map of Wirricanna and the surrounding Barwon River system is found below:
At all material times, attached to the river pump was a measuring and control equipment meter ("MACE meter") which recorded water flow rates and the total flow of water through the meter. A DT5 data logger was also connected to the river pump. A cable from the logger was attached to a sensor on the river pump motor. A DT5 data logger records the date, time and duration of the operation of a pump in two-hour intervals. Data recorded from the DT5 data logger is downloaded to a computer by a data cable.
The irrigation infrastructure on Wirricanna consists of a network of irrigation channels and on-farm water storage ("the irrigation works").
The irrigation works are supported by the pumping of water from the Barwon River to the east of Wirricanna through a by-wash style channel to a large on-farm storage dam ("dam 1"). Dam 1 has a capacity of 5072.8 ML. There is a second smaller dam located adjacent to the crop fields ("dam 2").
Water taken from the Barwon River can be stored in dam 1. From dam 1, water is redistributed directly onto crops under cultivation in the southern and northern fields by the use of the irrigation works.

[7]

Water Management of the Barwon River and Wirricanna

Water Sharing Plans are the primary instrument for managing and sharing the distribution and taking of water from water sources within a given catchment area. They provide local scale arrangements for the sustainable management of water resources within a particular water source and balance the economic benefits of taking water from that water source with competing environmental, cultural and social needs. The regulatory scheme ensures an equitable distribution of water amongst users. However, its success and effectiveness relies upon water users complying with their licence conditions imposed by the regulatory scheme.
The Barwon River forms part of the Barwon-Darling Unregulated and Alluvial Water Source ("the water source"). Water sharing of that water source is regulated by the Water Sharing Plan for the Barwon-Darling Unregulated and Alluvial Water Source ("the WSP").
All of the rivers and creeks within the Barwon-Darling River catchment are unregulated. The WSP prescribes that any volume of water extracted from the water source must be recorded through the use of a meter and data logger or by keeping a logbook. The WSP also sets up flow classes to prioritise when each Licence Class (A, B or C) can access water.
The WSP also sets Flow Class Thresholds which determine the volume of flow at which licence holders may commence or must cease extracting water. These thresholds are expressed as ML/day at a specified gauge or gauges.
Wirricanna is within the Brewarrina to Culgoa River Junction Management Zone and is regulated by the WSP. The water source, where it abuts Wirricanna, is also within that zone under the WSP.
Accordingly, the WMA is applicable to Wirricanna and the section of the water source adjacent to the property.

[8]

Metering Equipment

Water meters are used to track the volume of water taken by a water user from regulated, unregulated or groundwater water sources. Meter readings are obtained by various means including, but not limited to, physical in-field meter readings (by Water NSW Customer Field Officers) and readings provided to Water NSW by water users (Water NSW customers) including by phone, email or online through the Water NSW internet Water Accounting System.
Water NSW and the Department of Primary Industries - Water rely on meter readings for water resource planning; to assess water users' compliance with WSP limits; to determine current account balances for water users; to invoice water users for water taken and to assess future available water determinations within a water source.

[9]

Water Access Licence and Approval

At all relevant times, Thompson together with his wife and Merrywinebone Pty Ltd ("Merrywinebone"), were holders of a B Class unregulated river Water Access Licence 33683 no 85AL753120 ("the WAL"). The WAL was in force at the time of the offending conduct.
The WAL included a number of conditions, including condition 5: Water must not be taken under this Access Licence otherwise than in compliance with the conditions of the approval for the nominated water supply work approval.
At all material times, Thompson, together with his wife and Merrywinebone, were also the holders of a Combined Water Supply Work and Water Use Approval no 85CA753121 ("the Approval"). The river pump was subject to the Approval. The Approval was in force at the time of each offence.
The Approval included a number of conditions, including condition number MW2339-0001: A logbook must be kept, unless the work is metered and fitted with a data logger. The logbook must be produced for inspection when requested by the relevant licensor.

[10]

Irrigation Works and Cotton Farming at Wirricanna During the 2016/2017 and 2017/2018 Water Years

During the final months of the 2016/2017 water year, water was stored in preparation for the cultivation of crops. As at 12 April 2017 dam 1 was emptying to its low point. By 18 April 2017 dam 1 was refilling. It was at its highest point by 4 May 2017.
During the 2017/2018 water year the irrigation works were utilised by Thompson to cultivate a cotton crop. The cotton crop was planted on 22 November 2017. The cotton crop was harvested between 9 to 14 May 2018.
The water used to cultivate this cotton crop was taken from the water source between April and May 2017, when water was observed to be filling dam 1.
The total volume of water released from dam 1 for irrigation purposes in the 2017/2018 water year was 1984 ML. That volume of water was held in dam 1 from the start of the 2017/2018 water year with limited water loss up to October 2017. From October 2017 to March 2018, the volume of water in dam 1 reduced until dam 1 was empty, the water being released into the irrigation channel to support crop growth.
Thompson's records indicate that approximately 106.3 ha of cotton was grown in the 2017/2018 water year.

[11]

The River Pump and DT5 Data Logger

From 2009 to 2017, Trevor Pearce, who was employed as a Customer Field Officer ("CFO") with Water NSW, conducted bi-annual meter readings on properties located along the Barwon-Darling River, including at Wirricanna. In carrying out these meter readings, it was Pearce's usual practice to conduct one round of meter readings between January and February, then another round of meter readings between June and August each year.
In December 2011 Water NSW issued an internal directive to employees of the State Water Corporation (where Pearce was employed) that MACE meters were secondary meters for water assessment purposes. Accordingly, where the primary meter was working, then no light maintenance of MACE meters was to be undertaken and no data was to be downloaded for the MACE meters.
Accordingly, Pearce's usual practice when undertaking meter readings at Wirricanna was to download the data from the DT5 data logger. He did this by attaching a cable from the DT5 data logger to his laptop. He would then save the downloaded data as both a text file and a Microsoft Access file.
During the 2016/2017 and 2017/2018 water years, the MACE meter at Wirricanna was not working because the cable had been sent back to MACE for repair. Thompson had not installed a new meter due to the uncertainty of the roll out of patent approved meters. There was no cable from the MACE meter to the sensor that was inserted into the discharge pipe of the river pump.
On 1 February 2017 Pearce attended Wirricanna to conduct a meter read of the river pump. Pearce saw that there was a cable connected to the body of the DT5 data logger but that the other end of the cable was not connected to the pump motor. The cable was hanging down and was not attached to anything.
On the same day Pearce downloaded data from the DT5 data logger for the period from 16 August 2016 to 1 February 2017. He converted the downloaded data into a text file. The text file showed that no data from the DT5 data logger was recorded after 21 January 2017.
Pearce again attended Wirricanna to conduct a meter read of the river pump on 13 July 2017. He saw that the cable from the DT5 data logger was hanging down and neither connected to any equipment nor to the river pump motor.
That same day Pearce downloaded the data from the DT5 data logger for the period from 16 August 2016 to 13 July 2017. Again, the text files showed that no data from the DT5 data logger had been recorded after 21 January 2017.

[12]

Water NSW Conducts an Audit in August 2017

In August 2017 Pearce was directed to conduct an audit of irrigators' water meters and pumps along the Barwon-Darling River system, including the water source.
On 9 August 2017 Pearce arrived at Wirricanna in his Water NSW vehicle. He took a number of photographs of the water inlet and suction pipe in the Barwon River and the river pump on the bank of the river.
During his audit, Pearce noticed that the DT5 data logger cable was hanging down and not connected to the pump motor.
After Pearce conducted the August audit, he spoke with Thompson on 14 August 2017 and requested pumping data from 21 January 2017 to 30 June 2017. Thompson stated he would send the data by email.
On 16 August 2017 Thompson emailed Pearce ("the 16 August 2017 email"). In that email, Thompson confirmed that he had commenced pumping at the property on 21 April 2017 at 9:30 am and had ceased pumping on 3 May 2017 at 8:30 am, excluding a short break to service the pump on 26 April 2017 for approximately 1.5 hours. In the 16 August 2017 email Thompson stated that he had pumped for a total of 261.5 hours during this period.
Thompson subsequently estimated that the total pumping time was 234.9 hours. This calculation was based on a reading from a Murphy gauge. Thompson accessed this reading several weeks after he sent the 16 August 2017 email.
A Murphy gauge is a type of meter that connects to the pump motor and records the engine hours that the pump is in use. It records an accumulation of time during an engine's operation. By subtracting a reading on one date from the reading on the next date, the total run time of the motor can be established between those readings and dates.
It was not accepted practice for Murphy gauges to be used as a primary method of measuring water take during the commission of the offences. This was because Murphy gauges are not accurate insofar as they do not provide any indication of the revolutions per minute ("rpm") that the pump is operating at while in operation. The number of hours that the pump is run is therefore not a reliable method of calculating the volume of water taken/pumped as flow rates vary with river water level and pump rpm. Murphy gauges also only display the accumulated hours run data if the motor is powered on at the time of an inspection of the pump by a CFO.

[13]

Water NSW Review of the Water Accounts for the Water Source

From January to February 2018, Water NSW undertook a review of all water accounts for water access licence holders within the water source for the 2016/2017 water year. This review included an audit of the WAL held by Thompson.
Abram Duffy, a Water NSW CFO, conducted the audit with his colleague, Bernie Ward. When reviewing the 2016/2017 water usage figures for water access licence holders, Duffy and Ward identified an entry in the Water NSW Water Accounting System ("WAS") which had been made by Pearce ("the WAS entry"). The WAS entry related to Thompson's DT5 logger data and stated as follows: DT5 Logger S/N 11578 Assessed at 11.9066 days @ 75ML/day = 893ML.
The WAS entry was for the period from 2 February to 30 June 2017. Duffy and Ward were unable to verify the WAS entry because no data had been recorded by the DT5 data logger connected to the river pump at the property during the period from 2 February to 30 June 2017.
In the absence of data verifying that 893 ML of water had been taken during the period from 2 February to 30 June 2017, the amount for that period was amended to zero in the WAS. The WAS record therefore reflected that the total use for the 2016/2017 water year was 4291 ML, being the amount recorded before 2 February 2017.
On 31 May 2018 the Water NSW Billing Team issued an invoice to Thompson in the amount of $10,298.40 for 4291 ML of water for "unreg water usage charge" for the period from 1 July 2016 to 30 June 2017.
The information about Thompson's pumping activity contained in the 16 August 2017 email was received by Water NSW from the Natural Resources Access Regulator ("NRAR") on 14 March 2019. As a result, Water NSW subsequently adjusted the usage for the WAL for the 2016/2017 water year in the WAS to account for the additional water that Thompson had disclosed that he had taken between 21 April 2017 and 3 May 2017.
On 17 August 2020 an invoice was issued to Thompson by Water NSW seeking payment of an additional $2,143.20 for the period from 1 July 2016 to 30 June 2017.

[14]

The NRAR Conducts a Site Inspection in December 2018

A NRAR Senior Investigator, Alexander Bowlay, attended Wirricanna at 9:15 am on 4 December 2018, to inspect water management works and related infrastructure. He was accompanied by another NRAR Senior Investigator, Jennifer Davis. The inspection was prompted by Pearce's audit of Wirricanna and his findings regarding the non-operational MACE meter and disconnected DT5 data logger.
At all relevant times, Bowlay was an authorised officer under s 390 of the WMA.
At about 3 pm, following the inspection, Bowlay had a telephone conversation with Thompson. During this conversation, when asked why the MACE meter and DT5 data logger were not working at Wirricanna in 2017, Thompson admitted that the DT5 data logger was disconnected because he had to "relocate a pump motor from the river to the lift pump site and that the lift pump motor was taken away for repairs".
Thompson claimed that, during the period that the DT5 data logger was disconnected, he "kept diary notes of pump times during the period we took water".
On 4 December 2018 Bowlay emailed Thompson to enquire about the dates that water was taken during the period when the meter was disconnected.
On 21 December 2018 Thompson responded to Bowlay by email and made the following admissions: On 21 January 2017, the river pump motor at the property was relocated to a storage pump site. On 1 March 2017, a repaired motor was installed at the river pump site. When this motor was installed, the defendant "was not present when the motor went back in" and "did not realise the time and event data logger was not fitted to the motor due to the previous storage motor not having the modification needed to accommodate the time and event data logger." The defendant expressed that he takes "full responsibility for this oversite (sic) and for not checking the installation. I was not aware of this oversite (sic) until I returned from overseas in August 2017 and after Water NSW had done its Audit." The defendant again confirmed "water was pumped through the river pump from April 21st to May 3rd 2017". The defendant confirmed that pumping ceased on "3rd May due to a hole which had rusted through the elbow on the suction pipe becoming exposed as the height of the river fell. Once this happened, the pump lost its prime and stopped pumping." The pump was eventually replaced on 1 July 2017. The defendant "did not record pumping hours at the time of pumping" as he was "unaware the time & event sensor was not connected." The defendant accepted "full responsibility for not having the time and event meter installed during this pumping event. We were under great pressure during that hot summer on both farms and I simply did not think to check the time and event sensor was connected."

[15]

Thompson is Interviewed in March 2019

On 14 March 2019 Thompson attended a scheduled interview. He was asked a series of questions, during which he made several further admissions. They are relevantly extracted below: When asked whether he agreed that the DT5 data logger was disconnected on 9 August 2017, being the date of Mr Pearce's audit at the property, the defendant said "absolutely, yep". The defendant was then asked why the DT5 data logger was disconnected. He stated that the farm had two pumps, one being the pump at the storage facility that directly irrigated cotton crops, the second being the river pump. These pumps had motors that were interchangeable. In about January 2017, the motor part for the "pump at the storage failed" so the motor part for the river pump was taken to the storage facility to replace it, given the pressing need for irrigation. The motor pump for the storage facility was subsequently repaired and fitted onto the river pump. However, "because the new motor, or the motor from the storage, didn't have the modification to fit the sensor for time and event [data logger], it wasn't put on." The workers who did the installation did not ensure that data logger was connected, as their job was only to ensure that the motor was correctly fitted. When the defendant was asked to comment about whether there was capacity to fit the DT5 data logger onto the pump with the repaired motor, given that they were identical, the defendant said "yeah it was possible" but that he didn't know that until "Trevor Pearce told me … following that inspection." The defendant agreed he "only became aware that there was an error … when Trevor Pearce from Water New South Wales brought it to [his] attention it wasn't connected." The defendant pumped water when the DT5 data logger was disconnected from "21 April 2017 to 3 May" (pumping event). When asked to comment whether the river pump was operating for 13 days without a meter, the defendant said: "correct, yeah I'll take your word, 13 days, but yeah it's roughly that. But yes it was being operated without a time and event meter connected." The defendant agreed that there was no metering equipment attached for combined approval 85CA753121 during the period of 21 April to 3 May 2017. During this pumping event, the defendant's staff who turned on the pump did not raise with him that the pump was not connected, as "they wouldn't have even known really that it was there." The defendant has "never kept a logbook" of the water taken. The defendant was not aware that the DT5 data logger had been disconnected, and "assumed it was working." He said that the failure that he made was "not deliberate." The defendant agreed that he was "absolutely" responsible for the DT5 data logger not being connected and operating.

[16]

The Purposes of Sentencing

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

[17]

Statutory Matters to be Taken into Account in Sentencing

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

[18]

Objective Circumstances of the Commission of the Offences

The objective gravity of the offence fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).
The objective seriousness is to be determined by reference to the nature of the offences and not by reference to matters that are personal to a particular offender (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).
In determining the objective seriousness or gravity of the offences the relevant objective circumstances include the nature of the offences; the maximum penalty under the Act establishing the offences; the reasons for committing the offences; the environmental harm caused by the commission of the offences; the foreseeability of the risk of environmental harm caused by the commission of the offences; the practical measures to prevent environmental harm; Thompson's control over the causes giving rise to the offences; and Thompson's state of mind in committing the offences.

[19]

Nature of the Offences

The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are illustrative of the objective seriousness of an environmental offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49] and Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).
The relevant objects contained in s 3 of the WMA identify the purpose of creating the offences with which Thompson has been charged: 3 Objects The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular: (a) to apply the principles of ecologically sustainable development, and (b) to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and (c) to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including: (i) benefits to the environment, and (ii) benefits to urban communities, agriculture, fisheries, industry and recreation, and (iii) benefits to culture and heritage, and (iv) benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water, (d) to recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources, (e) to provide for the orderly, efficient and equitable sharing of water from water sources, (f) to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna, (g) to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users, (h) to encourage best practice in the management and use of water.
In respect of the objects of the WMA, in Harrison v Perdikaris [2015] NSWLEC 99 the Court observed that (at [46]-[47]): 46 There is a need for the upholding of the regulatory system under the WM Act. The system depends on persons, first, taking steps to ascertain when approval is required to carry out activities, 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. 47 Offences which undermine the integrity of the regulatory system are objectively serious. Use of the criminal law ensures the credibility of the regulatory system.

[20]

Maximum Penalty

The maximum penalty provided for an offence indicates the seriousness with which Parliament views the commission of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698E and Rawson at [57]). It also provides a sentencing yardstick for the case before the Court (Markarian at [31] and Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]).
The two offences are categorised as Tier 2 penalties and, as the parties confirmed, carry a maximum penalty of $247,500 for individuals for each offence.

[21]

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

The offences are crimes of strict liability which means that mens rea is not an element of the offence. However, the state of mind of Thompson at the time of their commission is a relevant consideration in the determination of an appropriate sentence. A strict liability offence that is committed intentionally, negligently, or recklessly, will be objectively more serious than one committed accidentally (Camilleri's Stock Feeds at 700A-700E; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123]; Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42] and Rawson at [98]).
The NRAR submitted that the commission of the offences was reckless and that the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 did not apply.
Thompson submitted that the Court could not take into account whether the offences were committed recklessly, intentionally or negligently because to do so would infringe the principle in De Simoni. Thompson relied on ss 60A(3) and 91I(1) of the WMA, which are equivalent Tier 1 penalty offences for intentional or negligent taking of water in contravention of a licence or without metering equipment, respectively.
The fundamental nature of the De Simoni principle has been emphasised repeatedly (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [18]).
In Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656, Bell and Keane JJ remarked that "the De Simoni principle is an aspect of the fundamental principle that no one should be punished for an offence of which the person has not been convicted" (at [29] and see Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425 at [72] to similar effect). A further proposition arising from De Simoni is that a sentencing court cannot take into account circumstances of aggravation which would warrant conviction for a more serious offence than that which the offender had been convicted (Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [153]).
If the circumstances of the offence for which the person is to be sentenced are such that the offender could have been found guilty of a more serious offence, the facts constituting such a finding cannot be relied upon in sentencing (Bourke v The Queen [2010] NSWCCA 22; (2010) 199 A Crim R 38 at [50] and Ruge and Cormack v R [2015] NSWCCA 153 at [38]-[41]). Similarly, if the circumstances of the offence for which the person has been convicted are such that the offender could have been found guilty of a discrete aggravated form of that offence, then those facts cannot be relied upon when sentencing the offender (Croaker v R [2008] NSWCCA 232; (2008) 190 A Crim R 15 at [14] and Bourke at [50]).

[22]

Thompson Did Not Commit the Offences Recklessly

In Environment Protection Authority v Rands [2019] NSWLEC 23 the Court considered the test for recklessness (at [116]-[117]): 116 In Plath v Vaccount Pty t/as Tableland Timbers [2011] NSWLEC 202 the Court considered the meaning of the term "reckless" (at [98]): 98. The term recklessness describes the state of mind of an offender who, while performing or failing to perform an act, is aware of the risk that a particular consequence is likely, in the sense of probable or possible, to result from that act or omission (Pemble v R (1971) 124 CLR 107, La Fontaine v R (1976) 136 CLR 62 and R v Crabbe (1985) 156 CLR 464). Recently in Blackwell v R [2011] NSWCCA 93, the Court of Criminal Appeal described the mental element of "reckless" as (at [76]): 76. The effect of this line of authority is that where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence. 117 The appropriate test of criminal negligence is that of "indifference to an obvious risk" (Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [114]; Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60 at [79] and [83]; Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 at [81]; Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111 at [37]; Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106 at [34] per Pain J; and Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132 at [54] - [55]).
More recently, Pain J expressed the test for recklessness as follows (Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 at [68]): 68 In Environment Protection Authority v Wollondilly Abattoirs Pty Ltd at [42] I considered the meaning of the term "reckless", citing Pepper J in Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 at [98] as the state of mind of an offender who, while failing to perform an act (or performing an act as in this case), is aware of the risk that a particular consequence is likely to result from that act or omission (citing Pemble v R (1971) 124 CLR 107; [1971] HCA 20, La Fontaine v The Queen (1976) 136 CLR 62; [1976] HCA 52 and R v Crabbe (1985) 156 CLR 464; [1985] HCA 22).

[23]

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

The extent of the harm caused or likely to be caused to the environment by the commission of the offences is relevant to the objective seriousness of the offences (s 364A(1)(c) of the WMA).
The concept of harm in the context of environmental offences is broad. In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Preston J stated that harm includes both actual harm and potential harm (at [145]-[149]): 145 Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. 146 Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174]. 147 Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously. 148 The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 149 The fact that the environment harmed by the offenders conduct was already disturbed or modified is not a mitigating factor: State Pollution Control Commission v White Wings Ltd (unreported, Land & Environment Court, No 50129 of 1991, Bignold J, 1 November 1991) at p 4; Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269 at 273 [14]; Environment Protection Authority v Coggins (2003) 126 LGERA 219 at 224 [18]; Environment Protection Authority v Abigroup Contractors Pty Ltd [2003] NSWLEC 342 (15 December 2003) at [24]; Environment Protection Authority v Arenco Pty Ltd [2006] NSWLEC 244 (9 May 2006) at [26].

[24]

The Impact of the Commission of the Offences on Other Persons' Rights under the WMA

The NRAR submitted that the commission of the offences had an adverse impact on downstream water users of the Barwon River due to reduced flow and water availability and reduced other licence holders' access to water (s 354A(1)(a) of the WMA). However, in the absence of any evidence adduced by the NRAR, this submission is rejected.

[25]

The Market Value of Any Water That Has Been Lost, Misused or Unlawfully Taken as a Consequence of the Commission of the Offences

The NRAR conceded that no evidence was adduced to prove the market value of any water lost, misused or unlawfully taken (s 364A(1)(b) of the WMA). I therefore cannot take this factor into account.

[26]

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences

To the extent that there was harm caused or likely to be caused by the commission of the offences, it was reasonably foreseeable.
Thompson submitted that the foreseeability was low because the water taken was recorded by the Murphy gauge. I do not accept this submission.
Thompson is an experienced and qualified farmer and heavily involved in water management committees for the Darling-Barwon River system (as is discussed below). A reasonable person in Thompson's position would have known that the Murphy gauge was an inaccurate and inadequate measure of water taken and that taking water in contravention of the regulatory scheme harms the efficacy of its administration and community trust in that scheme.

[27]

Control Over the Causes of the Commission of the Offences

Thompson accepted that he had control over the causes of the commission of the offences under s 364A(1)(f) of the WMA.

[28]

Practical Measures Which Could Have Been Taken to Prevent or Mitigate the Environmental Harm

There were practical measures that Thompson could have taken to prevent, control, abate or mitigate the environmental harm (s 364A(1)(c) of the WMA and Barlow at [45]). For example: 1. he could have ensured that the DT5 data logger was reattached during the offending period; and 2. he could have refrained from taking water until he, or his agent, were satisfied that the taking of water would be in accordance with the conditions of the WAL.
Thompson submitted that because there was no harm occasioned, no mitigation was required. However, harm to the regulatory scheme was occasioned by the commission of the offences. Therefore, Thompson should, and could, have taken additional practical measures to prevent that harm.

[29]

Whether the Commission of the Offences Occurred During a Severe Water Shortage or Extreme Heat Event

There was no evidence that the commission of the offences occurred during a severe water shortage or extreme heat event (s 364A(g)).

[30]

Thompson's Reasons for Committing the Offences

Section 364A(1)(h) of the WMA requires the Court to consider Thompson's reasons for committing the offences. The criminality involved in the commission of the offences by a defendant is measured not only by the seriousness of what actually occurred but also by reference to the reasons for its occurrence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley at [237]).
The NRAR submitted that Thompson committed the offences for financial gain, which is an aggravating factor under s 21A(2) of the CSPA. This was because: 1. he was not billed by Water NSW for the correct amount of water used at the relevant time and was only billed for the water taken on 17 August 2020; 2. there was no data recorded by the DT5 data logger between the dates of 2 February and 30 June 2017, and therefore, there was no capacity to verify the amount of water taken by the river pump during that period; and 3. in the result, he made a financial gain by the savings that he accrued by paying a lower price for water during the 2016/2017 water year.
In Barlow, notwithstanding that the Court found that the water offence was committed as part of operating an agricultural business and that the defendant stored the water for future commercial cropping use, the Court held that this did not establish that the offences were committed for financial gain (at [82]).
Similarly, in Budvalt the prosecutor submitted that the defendants had committed the offence for financial reasons (at [42]). Moore J rejected this submission, relevantly stating (at [49]-[51]): 49 Despite the Prosecutor's submissions, I am unable to conclude that I can be satisfied, beyond reasonable doubt, that financial gain was the (or a) reason for the commission of the offence. It is sufficient, in these circumstances, that I cannot be satisfied that the storage of water in the channel (water acknowledged by the Prosecutor as having been obtained lawfully within the overall entitlement of the Company) would have inevitably allowed "the offender to increase its earnings from crops grown on" the site. 50 In circumstances where there is no evidence that the construction of the channel would have resulted in additional water being made available for the Company's commercial activities beyond its lawful entitlement or that the Company would not otherwise have been able to use water to the same extent without the construction of the channel, I cannot conclude that alterations to the method and timing of distribution and storage of water must result in financial gain to the Company or was expected to so result. 51 As a consequence, I cannot be satisfied, to the necessary high standard, that the construction of the channel was motivated by financial gain to the Company.

[31]

Conclusion on Objective Seriousness

Considering all of the objective circumstances of the commission of the offences, I consider that both offences are in the low range of objective seriousness for offences of this kind.

[32]

Subjective Circumstances of Thompson

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

[33]

Early Plea of Guilty

A guilty plea entered at the earliest available opportunity entitles the defendant to the full 25% discount for the utilitarian value of that early plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton at [152]).
Thompson submitted that he is entitled to the full 25% discount. He pleaded guilty at the earliest opportunity after amendment of the summonses to remove inappropriate references to the disused MACE meter. He deposed that: 24 At the time that the investigation commenced, which was in or about December 2018, I was upset as I believed that I had not done anything wrong. Similarly, at the time that I received the original summonses I was adamant that I would be pleading not guilty to these offences as I genuinely believed that I had not committed any breach of the Act. As the evidence was filed in the case and as I had opportunity to speak to my solicitor and barrister about the matter, I gradually formed the view that I had in fact breached the legislation albeit without deliberately intending to do so. It dawned on me that I was in the wrong. Accordingly, as the Honourable Court is aware, I instructed my solicitor and barrister to enter pleas of guilty to the matters that are not before the Court. I know that the Prosecutor amended these charges to remove references to the MACE mater not operating, and I pleaded guilty following the amendments. 25 The MACE meter connected to the river pump has not been maintained by Water NSW (as with other MACE meters in the region) due to policy decision by them and it was important that a reference to it was removed before a plea of guilty was entered as I was in no way responsible for its non-operation. Water NSW does not use those meters any more. I do not think I could reasonably have pleaded guilty any earlier than I did without rushing to a decision on such an important matter prior to the Prosecutor finalising its charges.
The NRAR conceded, correctly in my view, that Thompson was entitled to the full 25% discount for the utilitarian value of his early plea (T62:03).

[34]

Assistance to the NRAR

Thompson provided assistance to the NRAR in the investigation and prosecution of the offences (ss 21A(3)(m) and 23 of the CSPA) by: 1. providing timely responses to statutory notices for information and records; 2. voluntarily giving full and frank evidence in the interview; and 3. participating in the preparation of a number of agreed statement of facts for the hearing thereby reducing the duration of the sentence hearing.
I therefore take this assistance into account.

[35]

Prior Convictions of Thompson

Thompson has no prior convictions (s 21A(3)(e) of the CSPA).

[36]

Contrition and Remorse

The expression of genuine contrition and remorse by Thompson is a mitigating factor in sentencing (s 21A(3)(i) of the CSPA). The NRAR directed the Court's attention to Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54, where Moore J stated that (at [101]-[102]): 101 Although it should be self-evident, one of the ways of demonstrating contrition and remorse for the offending conduct which brings a defendant before a court is to, in plain words, express sorrow or remorse for the offending conduct and the consequences that have flowed from it. Doing so is a method by which a defendant can demonstrate an insight into why the offending conduct has been criminalised by legislative enactment; why that conduct is not accepted as a societal norm; and what are the punitive consequences or potential consequences of such rejected offending conduct. 102 Contrition and remorse are not demonstrated by some sense of shame or impact on an offender and/or (as is here the case) on the offender's family. Feeling ashamed of one's offending conduct or regretting the shame and humiliation that that conduct brings on the perpetrator or those near and dear to the perpetrator demonstrates no insight whatsoever into why the offending conduct is set outside the barriers of societal acceptability.
Thompson, in an affidavit affirmed on 15 February 2022 expressed remorse in the following way: 26 I am upset with myself that I committed these offences, and unreservedly apologise for them. I feel that I have let my family and my staff down as I have always strived to be the best person that I can throughout the entirety of my life. I pride myself on being an honest and hardworking farmer and I am incredibly disappointed that I am now before the Land and Environment Court as a 58 year old farmer. I make it clear that I unreservedly apologise for the offending. 27 I accept that I ought to have paid closer attention to the state in which the river pump was left, after the exchange of its engine with that from the storage pump by my employee's in January 2017. While I accept that any additional water taken that is not budgeted for will inevitably have an effect on the environment and will also downstream users, the amount that I estimate which was taken, was well within my water allocation for that water year and it follows that my offending has not had any adverse environmental impact. I also regard it as important that my offending, although a contravention of the terms of the WAL, did not conceal or prevent there being a record of the amount of water extracted as recorded by the engine hours meter. 28 These proceedings have taken a physical and emotional toll on me and I have observed them as having taken a toll on Meredith as well, which causes me further distress. The proceedings have been very stressful and they have been a constant weight hanging over me since NRAR first commenced its investigation back in 2019. I have not had a good night sleep since the investigation started and in addition to these proceedings, Meredith and I have also battled the prolonged drought which is slowly now starting to finally recede.

[37]

The Good Character of Thompson

In his affidavit, Thompson detailed his extensive environmental and community work, including the following projects: 1. he has entered into a number of voluntary conservation agreements to conserve environmental and heritage values on his properties. In 2009, he voluntarily entered into a 15-year Enterprise Based Conservation Agreement on the property known as "Llandillo", located 15 km upstream of Bourke on the Darling River. Under the agreement he committed to fencing off and managing 1499 ha for conservation outcomes; 2. at Wirricanna, he has also voluntarily fenced off the areas of the property that abut the Barwon River and restricted grazing in those areas in order to promote regeneration to the riparian corridor and reverse erosion; 3. in 2020 he initiated the Range Lands Living Skin Project in partnership with other farmers and Meat and Livestock Australia. The project focuses on regenerating NSW range lands in order to achieve a healthy and sustainable environment which will ensure the ongoing viability of grazing in those areas; 4. he has been a volunteer in the local farming community. He has been the chairman and an executive of the Bourke Water Users Association, an executive of the Darling River Food and Fibre, the chairman and executive of the Barwon Darling Water, an executive of the Bourke Cotton Growers Association, a board member of the Western Catchment Management Authority, and a committee member of the Local Community Advisory Group. He is further involved with the MLA Global Adoption Stakeholder Reference Group, a committee member of the Southern Australia Livestock Research Council and a committee member of the MLA Producer Adoption Reference Group; 5. he has served as an executive of the Bourke Aboriginal Employment Strategy to provide access to training and learning opportunities for Indigenous people; and 6. he has served as a board member of the local convent school at Bourke and as a member of the Schools Parents and Friends Committee and is a committee member of the Louth Turf Club.
I find Thompson to be of good character notwithstanding the commission of the offences (s 21A(3)(f) of the CSPA).

[38]

The Likelihood of Thompson Reoffending and Prospects of Rehabilitation

Because Thompson is of good character, has demonstrated genuine contrition and remorse, and has put measures in place to prevent similar future offending, I find the likelihood that Thompson will reoffend to be extremely low and that his prospects of rehabilitation are good (s 21A(3)(g) and (h) of the CSPA).

[39]

The Offences Could Have Been Prosecuted in the Local Court

I have taken into account the fact that the offences could have been prosecuted in the Local Court (s 364 of the WMA; Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 at [92]-[93] citing R v Crombie [1999] NSWCCA 297 and R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115).

[40]

Consideration of the Form 1 Offence

The Court must comply with a number of formalities in order to take into account the Form 1 offence (LS v R [2020] NSWCCA 27 at [16] and Woodward v R [2017] NSWCCA 44 at [25]): 1. Thompson was asked (Kabir v R [2020] NSWCCA 139 at [49] and Dale v R [2021] NSWCCA 320 at [38]) whether he wanted the Court "to take any further offences into account in dealing with the offender for the principal offence" (s 33(1) of the CSPA). He confirmed that he wanted the Court to take into account the Form 1 offence in sentencing the second offence (s 33(2)(a)(ii) of the CSPA) (T78:01-03); and 2. Thompson admitted his guilt to the Form 1 offence in the Form 1 (s 33(1)(a)(i) of the CSPA).
I find it appropriate to take the Form 1 offence into account in sentencing the licence offence (s 33(2)(b) of the CSPA and LS v R at [27]). The Court certified that the necessary formalities were complied with on the Form 1 at the sentence hearing on 7 April 2022 (s 35(1)(a) of the CSPA) (T78:14-17).

[41]

Deterrence

The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569 per Brennan J).
The penalty imposed by the Court must serve as a general deterrent (Axer at 359; Camilleri's Stock Feeds at 701 and Bentley at [139] and see s 3A(b) of the CSPA). In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278, Preston J discussed general deterrence in the context of sentencing for environmental crime (at [65]-[68]). Those principles are applied here without repetition.
The Court accepts that embedded in the determination of the appropriate sentence to be imposed on Thompson is an element of general deterrence to ensure that WAL holders comply with the conditions of their licence when taking water.
In relation to specific deterrence (s 3A(b) of the CSPA), Thompson submitted that there was no need for this to be taken into account because he had taken steps to prevent a similar incident and he was determined not to repeat the offence.
The NRAR submitted that specific deterrence was a relevant factor taking into account the total criminality before the Court, including the Form 1 offence (citing R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152 at [31]).
I agree with the NRAR that there is a need for specific deterrence in this instance. Thompson has committed two offences, and in relation to the licence offence, the Court is also to take into account the Form 1 offence (Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [42]-[43] per Spigelman CJ).
The Court also notes that Thompson continues to operate Wirricanna as a cotton farming enterprise. I accept the submission of the NRAR that the penalty imposed must serve to reinforce Thompson's responsibility to ensure that his activities are in compliance with the terms of the WAL and the WMA.

[42]

Denunciation and Retribution

Finally, the Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and making Thompson accountable for his actions.

[43]

The Totality Principle

The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62 to 63; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18] and Barlow at [111]-[112]).
Because there are multiple offences arising out of the same, common or related conduct, the totality principle applies in the present case. The effect of the totality principle is to require the Court to review the totality of the sentence to consider whether the penalty imposed is just and appropriate and reflects the overall criminality of the offender before the Court.
Care must nevertheless be taken "to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence" (Rawson at [222]; Gittany at [199] and [201]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46] and R v Wheeler [2000] NSWCCA 34 at [36]-[37]). The Court discussed the totality principle and its application at length in Orica (at [224]-[229]). More recently, see the examination and application of the principle in Barlow (at [111]-[112]).

[44]

Consistency in Sentencing

The task of the sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case (Axer at [365]). The sentence imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [312] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).
Thompson relied on one comparable case, namely, Barlow. Barlow was charged with two offences against s 91I(2) and one offence against s 336C(1) of the WMA. The former offences involved taking water by means of a metered work when metering equipment was not operating properly and the latter offence involved failing to comply with a direction given under Pt 1 of Ch 7 of the WMA. Barlow ultimately pleaded guilty to the charges on the first day of the trial. As a result, he was afforded only a 12.5% discount for the utilitarian value of his plea. His offending conduct was considered to be contrary to the objects of the WMA, including the principles of ecologically sustainable development, because it undermined the regulatory water management scheme. The Court also found that he had committed the offences recklessly and that the agricultural activities for which water was taken were for the benefit of Barlow's business. Barlow did not have any prior convictions for any environmental offences and was otherwise of good character. He demonstrated remorse, accepted responsibility for his actions, and endeavoured to make reparation, as far as practicable, for the harm occasioned by the commission of the offences. The objective seriousness of the s 91I(2) offences was considered to be in the mid-range and low for the s 336C(1) offence. Barlow was fined $48,726, $54,140, and $86,625, respectively for each of the offences. He was also ordered to pay Water NSW's costs.
The Court has also had regard to Budvalt. That case concerned the contravention of s 91B(1) of the WMA by Budvalt Pty Ltd ("Budvalt"), which constructed and used a channel to convey water from the Macquarie River for irrigation purposes without approval to do so. Budvalt pleaded guilty on the first day of the trial, and therefore, a discount of 10% was applied to the plea. Budvalt had no prior convictions. Although Budvalt was considered to be of good character because it had contributed to the cotton-growing industry, Moore J afforded this fact modest weight because there was evidence that the activities of the company contained an element of corporate self-interest and that the behaviour was of commercial benefit. Budvalt showed no sorrow or remorse; the company's embarrassment was not considered to be a proper acknowledgment of, and expression of remorse for, its unlawful behaviour. Budvalt was fined $252,000, with a moiety of 50% to be paid to the NRAR. A publication order was made.

[45]

Capacity to Pay a Fine

Section 6 of the Fines Act 1996 provides that: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider-- (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
At the hearing, counsel for Thompson stated that "we don't submit that if a fine is imposed by your Honour it won't be paid or it can't be paid, it will. It would be paid promptly" (T62:09-10). Accordingly, the Court finds that Thompson will be able to pay any monetary penalty determined by it.

[46]

Application of Section 10A of the CSPA

Thompson sought an order under s 10A (he expressly eschewed an order under s 10) of the CSPA.
Section 10A of the CSPA relevantly states: 10A Conviction with no other penalty (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty. (2) Any such action is taken, for the purposes of the Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender.
In relation to the application of s 10A of the CSPA, the learned author Stephen Odgers SC has opined that "utilisation of this option would be rare and for unusual cases" (Sentence (5th ed), 2020, Longueville Media Pty Ltd at [5.11]). For example, a s 10A order was made in Bikhit v The Queen [2007] NSWCCA 202, where it was doubted that any offence was disclosed on the evidence but the appellant nevertheless maintained his plea of guilty.
There is no statutory equivalent to the mandatory matters set out in s 10(3) of the CSPA that the Court must have regard to when determining whether to make a s 10A order. However, these factors are an appropriate guide for the exercise of discretion under s 10A of that Act.
Section 10(3) of the CSPA provides: 10 Dismissal of changes and conditional discharge of offender (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors - (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider.
Justice Pain undertook this task in Environment Protection Authority v Wollondilly Abattoirs Pty Ltd [2019] NSWLEC 72, a case that concerned the provision of false or misleading information to the regulator. In that case, her Honour made an order under s 10A of the CSPA after considering the matters set out in s 10(3) and the relevant mitigating circumstances identified in s 21A(3) of the CSPA (at [57]-[77]). Her Honour, in assessing the factors contained in s 10(3)(a)-(d), found that the defendant had positively contributed to the community but had received 11 penalty infringements notices over its lifetime and that the offences were not trivial. The fact that the offences were committed unintentionally was not a relevant extenuating circumstance (at [58]-[62]). Her Honour further took into account relevant mitigating circumstances, including that the harm was not substantial, the defendant had no prior convictions, was of good character and that genuine remorse was expressed in respect of the offending conduct (at [64]-[77]).

[47]

Costs

The NRAR sought an order for its professional costs as agreed or assessed under s 257B of the Criminal Procedure Act 1986. Thompson has agreed to pay the prosecutor's professional costs fixed in the amount of $135,000.
In the exercise of its sentencing discretion, the Court can take into account the costs payable (Harris at [100]; Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123] and Barnes at [78]-[88]). In doing so, the Court must be mindful that the payment of the prosecutor's costs is not a reason for reducing any penalty to be imposed in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50]).

[48]

Appropriate Sentence

Having regard to the objective seriousness of the offences and the mitigating subjective factors of Thompson, together with the penalties imposed in the relevant comparable cases, I find that the imposition of a monetary penalty is warranted for each offence as follows: 1. for the licence offence a fine of $50,000; and 2. for the meter offence a fine of $50,000.
Each penalty must be discounted by 25% for the utilitarian value of Thompson's early plea of guilty resulting in the imposition of a monetary penalty for each offence as follows: 1. for the licence offence a fine of $37,500; and 2. for the meter offence a fine of $37,500.
After the application of the totality principle, the penalty for the commission of the meter offence should be reduced to $20,000.
This brings the total penalty to $57,500.

[49]

Moiety

The prosecutor contended that half of all monetary penalties imposed in these proceedings ought to be paid to the prosecutor because of the costs incurred in investigating the offences, pursuant to s 122 of the Fines Act 1996. Having regard to all of the circumstances of this case, I make such an order.

[50]

Publication Order

The NRAR sought a publication order pursuant to s 353G(1)(a) of the WMA. Thompson consented to this order.
In the context of the purposes of sentencing, a publication order serves the functions of general deterrence, denunciation and a recognition of the harm caused by the offending (Environmental Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 at [105]).
In Ditchfield, Preston J emphasised that the primary purpose of publicising the detection, prosecution and punishment of offenders is to enhance general deterrence (at [76]). His Honour observed that by the public becoming aware of offending conduct, people and businesses will be deterred from committing environmental offences (see also Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 at [163]-[165]).
I am of the opinion that the making of a publication order in the terms attached at annexure A is appropriate.

[51]

Orders

In conformity with the reasons given above, the Court makes the following orders: In proceedings 391319 of 2019 (1) Thompson is convicted of the offence against s 60A(4) of the Water Management Act 2000 as charged; (2) Thompson is fined the sum of $37,500; In proceedings 391281 of 2019 (3) Thompson is convicted of the offence against s 91I(2) of the Water Management Act 2000 as charged; (4) Thompson is fined the sum of $20,000; In proceedings 391281 and 391319 of 2019 (5) pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor; (6) pursuant to ss 257B and 257G of the Criminal Procedure Act 1986, Thompson is to pay the prosecutor's professional costs in the amount of $135,000; (7) pursuant to s 353G(1)(a) of the Water Management Act 2000, Thompson must, within 28 days of this order, at his own expense, publicise the commission of the offences, its circumstances, and the orders made against him, by causing a notice to be published in the terms of annexure A to this judgment in the digital and print versions (and at a minimum size of 10 cm x 18 cm within the first five pages of the print version) of the following publications: (a) The Australian; (b) The Western Herald; and (c) The Land; (8) within seven days of the date of publication of the notice referred to in order 7 above, Thompson must provide to the prosecutor a complete copy and screenshot of the entire page of the publications in which the notice appears; and (9) the exhibits are to be returned. Annexure A Tony Thompson was convicted and fined in the New South Wales Land and Environment Court ("the Court") on 29 April 2022, for breaches of ss 60A(4) and 91I(2) of the Water Management Act 2000 ("the WMA") relating to the taking of water from the Barwon River water source contrary to the conditions of his licence and while his metering equipment was not operating properly. Following an investigation by the Natural Resources Access Regulator ("NRAR"), Tony Thompson was prosecuted in the Court, where he pleaded guilty to both charges. He was fined a total of $57,500 and ordered to pay the NRAR's legal costs. All property owners, companies and water users should be aware of the serious consequences for committing offences against the WMA. The NRAR undertakes ongoing auditing and investigations to ensure that activities involving the taking of water are authorised by means of licences so as to ensure the equitable sharing of water from water sources in accordance with the objects of the WMA.

[52]

Amendments 02 May 2022 - Slip rule amendment - the words "the Registrar is directed to pay" are struck out at order (5) of [199]. The order now reads "pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor". 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: 02 May 2022

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