The emphasis on the plural has been added.
12 As was observed in the joint judgment (McHugh, Hayne and Callinan JJ) in Pearce v The Queen (1998) 194 CLR 610 at par 45:
"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."
13 However, in the present context the remarks of Kirby J (Mason P and Hoeben J concurring) in EPA v Barnes [2006] NSWCCA 246 at par 50 are pertinent:
"Where there are multiple offences, each punishable by a custodial sentence, the totality principle may find expression through the complete or partial accumulation of sentences, or through making all or some of the sentences concurrent (cf Pearce v The Queen (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at 624 (par 45)). However, there is obviously no room for partial accumulation or concurrence in the case of fines. If the sentencing Judge believed that the totality principle required an adjustment to the fines which may otherwise be appropriate, the amount of each fine had to be altered, applying the sentencing principles suggested in Johnson v The Queen (2004) 205 ALR 345."
14 Whilst Pearce was obviously dealing with sentences involving custody, it should be noted that the joint judgment in Johnson (Gummow, Callinan and Heydon JJ) contained this caution at par 26.
" Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining a time be served. To do that, is not to do what the joint judgment of Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender."
The emphasis appears in the judgment.
15 As can be seen in the foregoing extract from the orders made, her Honour imposed a total sentence for the six offences whereas (and it does not require the authority of Pearce for the conclusion) it was erroneous not to impose penalty in respect of each charge. No reference was made to any statutory authority enabling a single imposition on multiple charges.
16 Although it is well recognized that sentencing judges must be accorded flexibility in sentencing approach, in the absence of some rare circumstance assessing sentence by looking at the maximum penalty and making a proportional reduction from it is inappropriate: Markarian v The Queen (2006) 228 CLR 357 at par 31.
17 No rare circumstance can be discerned in the present case, nor was any suggested, and in my view it was erroneous to assess penalty by reference to a proportion against the maximum penalty.
18 The grounds of appeal expressly complained of the failure of the sentencing judge to allow a discount for assistance to authority in the prosecution of his employer and the company manager. Her Honour referred to the applicant's "full and continued cooperation" but there was no indication that this was reflected in the sentences.
19 There is no obligation upon a sentencing judge separately to quantify a discount for assistance: R v Gallagher (1991) 23 NSWLR 220 but it is obviously desirable that there be transparency so that an offender can perceive that he has received appropriate consideration and it is prudent to reveal the terms of any discount: R v PPB [1999] NSWCCA 360.
20 Of course, when there is a promise of future assistance, there are provisions whereby, in default of compliance, the benefit may be removed and the existence of such provisions is confirmatory of the need for some transparency in regard to the issue.
21 Her Honour observed that regulations of the type here breached are critical to the orderly and healthy functioning of urban environment and that the community depends upon people not to carry out these types of acts for its continued wellbeing. These observations are manifestly correct. However she also commented that it was usually difficult to detect those responsible for these types of acts because they tend to be carried out, as in the present case, in the middle of the night and the early hours of the morning. The location to which the applicant had been directed by his employer was described as being in the central business district. Whilst on occasions he was there in the night hours, on others it was obviously daylight in December. There was no suggestion that the applicant was behaving in a clandestine fashion or in any way seeking to cloak his activity. He acted in accordance with the fact that he believed that what he was doing was lawful. He was liable to conviction because the offence is one of strict liability.
22 Nevertheless, and perhaps particularly in cases of strict liability it is important that there be an appropriate assessment of the culpability of the offender. Her Honour stated that the offences were objectively serious and she referred to the fact that the waste water was directed into a stormwater drain, but in making such an assessment of the level of seriousness there should have been taken into account the mental state of the applicant which, as has been noted, was that of a belief that what he was doing was not unlawful.
23 As already observed, her Honour's statement of the necessity of regulation towards achieving the objectives of protection of the environment and the wellbeing of the community could not be doubted. Nevertheless, the institution of prosecution for the purpose of imposing conviction and penalty also provokes a necessity, and that necessity is to render an individual justice reflecting the culpability of the offender.
24 In this instance, the liability of the applicant was derived from a strict liability which was created by the legislation. A subjective culpability was not demonstrated. In summary, he performed a task in compliance with an express direction from his employer in a manner which accorded with that direction, he did not know that what he was required to do by that direction was wrong nor was it shown that he had cause to believe otherwise and, in the event, no actual harm was caused.
25 It is axiomatic that penalty should not only reflect the gravity of an offence, it must also reflect the circumstances of the offender. It was not disputed, as her Honour expressly mentioned in her remarks, that a fine or an order for costs would as a matter of practicality, force this applicant to sell his home. An enforced sale of his home would be a grossly excessive consequence of the strict liability of the applicant for an offence committed in subjectively innocent circumstances.
26 It would not be possible to require the applicant to enter a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 as that is only available in lieu of an option of imprisonment which is not within the ambit of penalty for these offences.
27 A dismissal of the charges without proceeding to conviction pursuant to s10 of that Act would fail to recognize appropriately the legislative will which finds expression in the creation of the offence.
28 In my view, fines should be imposed but they should be set at a level which should not result in the drastic consequence of a forced sale of the applicant's home. In making an assessment, the capacity of the applicant to have time to pay a fine and/or to make payments by instalments pursuant to an application under the Fines Act 1996 is noted.
29 It is frequently the case that the culpability of an offender can be perceived to elevate as offences are repeated. In the present instance, the circumstances in which the applicant committed all of the offences were the same, namely that he was doing as he was told without any consciousness of wrongdoing. When approached by the prosecutor's officers he was in the course of committing a sixth offence, and, consistent with the candour that he manifested throughout, he told them of his previous identical actions. I therefore do not consider it would be appropriate to discriminate between the penalties on each charge.
30 I propose the following orders: