NSWNSWLEC

Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd

[2022] NSWLEC 60

Land and Environment Court (NSW)|2021-08-17|Before: Pepper J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-08-17

Before

Pepper J

Catchwords

(2014) 253 CLR 58 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34
(2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280
Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
(2006) 148 LGERA 299 Environment Protection Authority v Wyanga Holdings Pty Ltd

Source

Original judgment source is linked above.

Catchwords

(2014) 253 CLR 58 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34(2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46(2006) 148 LGERA 299 Environment Protection Authority v Wyanga Holdings Pty LtdEnvironment Protection Authority v Cauchi [2015] NSWLEC 78 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242(2006) 145 LGERA 189 Harris v Harrison [2014] NSWCCA 84(2014) 86 NSWLR 422 Hoare v The Queen [1989] HCA 33(1989) 167 CLR 348 Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17 Johnson v The Queen [2004] HCA 15(2005) 228 CLR 357 Martin v RR v Martin [2021] NSWCCA 316 Mill v The Queen [1988] HCA 70(1988) 166 CLR 59 Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147(2010) 175 LGERA 93 Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36 Mouawad v The Hills Shire Council [2013] NSWLEC 165(2013) 199 LGERA 28 Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120 Owens v R [2017] NSWCCA 16 Pearce v The Queen [1998] HCA 57

Judgment (34 paragraphs)

[1]

The Application of the Principle in De Simoni

The state of mind of S&P at the time of the commission of the offences gives rise to the question of whether the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 applies (at 389).
The application of the principle in De Simoni was summarised in Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 (at [153]): 153 From the authorities, the two propositions that have emerged from De Simoni are that (as summarised by the learned author Stephen Odgers in the text earlier cited, p 184 at [3.123]): (a) first, no one should be punished for an offence for which they have not been charged; and (b) second, a sentencing court cannot take into account circumstances of aggravation which would warrant conviction for a more serious offence than that with which the offender had been convicted.
The existence of a more serious offence under the EPAA for which a tier 1 monetary penalty applies (see s 125A(1) and (2) of the EPAA), namely, the intentional commission of an offence under s 125(1) of the EPAA, attracts the application of the De Simoni principle to the charges to which S&P has pleaded guilty.
However, in Sydney Water Corporation the Court further observed as follows (at [158]-[159]): 158 The principle in De Simoni will not be breached if the Court takes in account conduct not to punish the offender for that conduct, but for some other reason such as to assess the objective seriousness of the offence for which the offender has been convicted (Weininger v R [2003] HCA 14; (2003) 212 CLR 629 at [31], Bourke at [70] and Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 at [146] per Basten JA) provided that the conduct is not entirely separate and distinct from that giving rise to the offence charged but is an incident of the conduct giving rise to the commission of the offence (Wilkins v R [2009] NSWCCA 222 at [34]-[35], Bourke at [55], [62] and [70] and Adams v R [2011] NSWCCA 47 at [29]-[35]). 159 Similarly, the principle is not breached if the otherwise offending conduct is considered for the purpose of assessing the need for specific deterrence (Thuong Nguyen v R [2012] NSWCCA 184 at [30]-[31]). Nor is it contravened if the offender is punished for facts that merely satisfy the elements of the offence for which they have been convicted even if one of those elements amounts to a circumstance of aggravation sufficient to establish guilt for another more serious offence (Turkmani v R [2014] NSWCCA 186; (2014) 244 A Crim R 402 at [33]-[46]).
Accordingly, while the Court cannot take into account whether S&P committed the offences intentionally as an aggravating factor in the determination of an appropriate sentence, the De Simoni principle does not preclude the Court from considering S&P's state of mind in either assessing the objective seriousness of the offences or when considering the need for specific deterrence as an aspect of the sentencing exercise.
S&P accepted that it deliberately - that is, intentionally - received a volume of scrap metal in excess of the 90,000tpa limit imposed by condition A8 in each of the 2016 and 2017 calendar years. Therefore, while not considered as a factor in aggravation, the Court nevertheless has regard to S&P's intentional commission of the offences.
However, this is not the end of the matter. This is because S&P further contended that this was not a complete or balanced characterisation of S&P's state of mind at the time that the offences were committed because of what transpired at the 20 September 2016 site inspection meeting and taking into account events subsequent to that meeting. S&P also strongly refuted any suggestion that the offending conduct was in any way contumelious.
S&P submitted that at the 20 September 2016 site inspection meeting: 1. Luke Parker disclosed that S&P was processing around 4,000t of scrap metal per week and was exceeding the 90,000tpa consent limit and that it had been doing so for some time. He offered to reduce S&P's tonnage to the limit prescribed in the consent immediately to the EPA and the Department, but went on to state that if it did so it would have to lay off 50 staff ("the first consequence"); 2. to which a Departmental officer, probably Pizzolato, gave the Departmental response; and 3. Luke Parker also identified a second consequence of strict compliance with the waste limit stipulated in the consent, namely, that it would decimate the NSW steel industry and construction industry because steel mills needed S&P product to supply the construction industry ("the second consequence").
S&P contended that the Department accepted Luke Parker's offer in order to avoid the two consequences referred to above, and that as a consequence, S&P continued to breach its tonnage limit.
As the evidence discloses, notwithstanding that he initially professed to having no recollection of who made that representation, it was Pizzolato who responded by saying, "No. We don't want you to do that" or "we don't want you to do that" (neither party attached any importance to whether the word "no" was uttered or not) (T128:09-23).
The prosecutor relied upon the inspection notes drafted by Bourne and Dingle, which did not record any response to Luke Parker's purported offer or two consequences. Pizzolato's inspection report was broadly consistent with Bourne's report (T119:33-34; 119:38; 119:16-19 and 153:29-30).
The prosecutor therefore urged the Court not to accept Luke Parker's version of events given that he deposed to the contents of his affidavit from memory nearly five years after the relevant discussion took place. It emphasised inconsistencies in his evidence regarding the precise words spoken at the 20 September 2016 site inspection meeting and in his ROI (T295:38-42; 296:18; 297:07-09; 297:38-41; 299:13-29; 302:22-303:01 and 299:32). Ultimately, Luke Parker himself agreed that in 2021 he did not have a precise recollection of the words used during the 20 September 2016 site inspection meeting (T303:05).
By contrast, S&P submitted that in light of Pizzolato's oral evidence, a reasonable inference was that he had deliberately chosen not to record the Departmental response. This was because Pizzolato could give no sensible (or any) explanation to the Court as to why he had not recorded the response. As S&P asserted, not only could Pizzolato recall the Departmental response, he understood the significance of Luke Parker's 'offer' and the two consequences that he outlined (T133:15-134:06).
S&P further contended that Dingle's omission of the Departmental response from his evidence was not mere inadvertence. The Court should therefore also infer that Dingle was aware that one of the officials present at the 20 September 2016 site inspection meeting had provided the Departmental response and that he had also deliberately omitted to record it. This was because: 1. Dingle was an experienced investigator; 2. as acknowledged by Dingle, the exchange was significant (T77:28-33); 3. the response was omitted from both the first and second Dingle affidavits (T78:15-23 and 79:04-39); 4. in cross-examination, Dingle accepted that there had been a response to Luke Parker's disclosure and the two consequences. Dingle had initially accepted that it was an "offer" (T75:12-15), however, he later rejected this characterisation (T78:03-08). It was not recorded in his affidavit because he did not consider its inclusion "appropriate" (T78:15-23 and 79:04-39); 5. Luke Parker had communicated his understanding of what had occurred at the 20 September 2016 site inspection meeting to Dingle in his ROI and Dingle did not query his recollection, especially in circumstances where he had told Luke Parker that Ritchie was not present at the 20 September 2016 site inspection meeting; 6. he did not refer to Luke Parker's ROI evidence in his affidavit and said in cross-examination that he first became aware of Luke Parker's evidence regarding what was said at the 20 September 2016 site inspection meeting during a pre-hearing video conference, not during his interview with him (T101:12-14); and 7. in drafting the second Dingle affidavit more than four years after the 20 September 2016 site inspection meeting, Dingle purported to recall, for the first time, that he responded to Luke Parker with words to the effect of "the Department is primarily here today to discuss your compliance with your conditionally approved State Significant Development".
The prosecutor submitted that Bourne's inspection report was a reliable account of what was said. By contrast, S&P submitted that neither Bourne's affidavit nor his inspection report provided a sequential account of the 20 September 2016 site inspection and meeting. This was not surprising given that his inspection report only recorded words spoken by Bourne and S&P officers.
I find beyond all reasonable doubt that at the 20 September 2016 site inspection meeting, in response to Luke Parker's purported offer and at least the first consequence, an officer of the Department, namely, Pizzolato, responded by stating, "No. We don't want you to do that" or "we don't want you to do that". I have reached this finding for the following reasons: 1. despite some inconsistencies as to the exact words spoken at the 20 September 2016 site inspection meeting, Luke Parker has provided consistent evidence that such words were spoken. For example, as early as his interview with Dingle he recalled such a statement being made (notwithstanding that in his ROI he incorrectly identified Ritchie as the person who made it); 2. Pizzolato corroborated Luke Parker's evidence that such words were spoken; and 3. Dingle and Bourne both accepted that it was possible that the words were stated notwithstanding that they did not record them.
It follows that I do not accept the statement given by Luke Parker in his ROI (at Q/A348) that someone from the Department said, "keep doing what you are doing" (it is not corroborated by other evidence before the Court on this issue and Ritchie was not present at the meeting), or that at any time words other than those provided for in the Departmental response were uttered at the 20 September 2016 site inspection meeting.
I also find that, consistent with the body of evidence referred to above, the first consequence and second consequence were stated by Luke Parker at the 20 September 2016 site inspection meeting. Notwithstanding cross-examination by the prosecutor on discrepancies between what Luke Parker said in his ROI and his affidavit in relation to these two consequences, ultimately little came of the challenge.
More important, however, is the meaning to be attributed to the exchange that took place at the 20 September 2016 site inspection meeting, and in particular, the meaning to be ascribed to the Departmental response.

[2]

Did Luke Parker's Words Constitute an Offer That Was Accepted by the Department or a Threat?

The prosecutor submitted that Luke Parker's affidavit evidence suggested that his representation, was not an offer but a threat. It was open to the Court to find that he knowingly issued a challenge, backed up with a threat, that if he was made to comply with the 90,000tpa limit that he would make 50 people redundant and that he would decimate the steel industry, and moreover, that these consequences would, as a matter of inference, lie at the feet of the Department. This was consistent with the evidence of Dingle and Pizzolato. It was Dingle's evidence that Luke Parker was agitated when he said these words and Pizzolato recalled a negative change in Luke Parker's behaviour when he made the statement.
In response, S&P contended that through the Departmental response, the Department had communicated to Luke Parker that it did not want S&P to reduce its tonnage to 90,000tpa because of the likely consequences, and that S&P acted upon that information. It submitted that if the Court accepted the position advanced by it as to what occurred at the 20 September 2016 site inspection meeting, it would also accept that, through Luke Parker, S&P formed a genuine and reasonably held belief that the Department had chosen to exercise its discretion not to require S&P to cut back its capacity to meet the limit imposed by condition A8 and that this position continued until the conclusion of 2017. This was not only highly material to the assessment of S&P's state of mind in committing the offences, it was a mitigating factor in its own right.
According to S&P, Pizzolato clearly understood the offer made by Luke Parker and the implications of not accepting it. The evidence establishes that Pizzolato understood that the Department was able to exercise a discretion not to insist that the 90,000tpa limit had to be complied with. It relied upon the following exchange with Pizzolato (T133:10-13): Q. You agree, don't you, that the department could essentially have said, "Yes, slow down the processing to 90,000 tonnes. We want you to do that", or, as it turns out, what was actually said, "No, we don't want you to do that"? A. Yes.
S&P further argued that it was not open to the prosecutor to advance a case in closing address that was contrary to the evidence of Pizzolato, especially in circumstances where: 1. Pizzolato did not record the full conversation in his notes or affidavit. This invited an inference that at the time that he prepared both, he recognised the significance of the Departmental response and that he deliberately chose not to record it. As noted above, Pizzolato could give not give any explanation as to why he had omitted the response from his recorded material; 2. in his discussion of Luke Parker's disclosure of the breach of the tonnage limit and his offer with other officers and stakeholders in the Department (for example, Dingle, Appleton and Ritchie), it made no sense to have omitted the Departmental response (T133:15-134:06); 3. Dingle's notes failed to make reference to the offer or the Departmental response. This was not mere inadvertence and his explanation that he did not record every detail of every conversation was not credible; 4. Dingle's affidavits record the offer - which he characterised as a "statement" (T78:03-08) - but not the Departmental response. Dingle stated that he did not think that it was "appropriate" or "necessary" (T78:15-79:39) to record it and that it was not his role in the Department to make any comment upon it (T75:12-15). This was therefore a deliberate omission by him; 5. Dingle's response recorded in his second affidavit that "the Department is primarily here today to discuss your compliance with your conditionally approved State Significant Development" was recent invention more than four years after the 20 September 2016 site inspection meeting; 6. during Luke Parker's ROI, Dingle did not take issue with Luke Parker's account of the offer or the Departmental response at the 20 September 2016 site inspection meeting. Rather, he took issue with the fact that Ritchie was not at that meeting; 7. Dingle ultimately agreed that Luke Parker's disclosure of S&P's breach of the consent was significant and so too was the offer, and that it ought to have been recorded (T86:25-50); and 8. in comparison to Pizzolato and Dingle, Bourne did record the breach disclosure, the offer and the first consequence in his inspection report. He agreed that it was a significant statement, however, he did not record the Departmental response.

[3]

Sell & Parker's Belief Formed at the 20 September 2016 Site Inspection Meeting was Neither Genuine Nor Reasonable

While none of the three prosecution witnesses attending the 20 September 2016 site inspection meeting gave evidence that Luke Parker had made a threat at the meeting, and despite Luke Parker denying this characterisation (T321:05-15, 322:19-27 and 329:15-27) I nevertheless accept that this is in fact what occurred. An offer followed by a statement as to the adverse consequences (T321:18) or loss that will eventuate if that offer is not accepted is, on any reasonable view, a threat.
More importantly, however, is my finding that his asserted belief that an offer was made, that was accepted by the Department in the manner that he contends, is neither genuinely nor reasonably held. That is, I do not accept as credible Luke Parker's evidence as to his understanding of what occurred at that meeting. It is inconsistent with both the events leading up to the meeting and the events that took place after the meeting.
First, as the evidence discloses, Luke Parker is a sophisticated businessman who had prior experience with the planning regime in NSW and would not have readily understood that the Department was waiving compliance with the consent or exercising a discretion not to enforce compliance with condition A8. For instance: 1. he holds a law degree, a degree in commerce, and a Masters of Business Administration; 2. during the sentencing hearing he presented as intelligent; 3. by 2016 he was reasonably familiar with the statutory approval regime, having been personally involved in the SSD application and, prior to that, in litigation in which S&P sought to modify a condition of an earlier consent; 4. he had access to competent legal advice at all relevant times; 5. he was aware that between 2013 and 2016 the Department had informed S&P on multiple occasions of numerous and detailed concerns regarding air quality issues associated with the proposed increase of the waste receipt at the site and the concomitant need to ensure adequate mitigation measures, in particular, with respect to hammer mill emissions, prior to any increase being approved; and 6. he was also aware that the EPA had decided not to pursue a pollution reduction program because S&P had indicated that it would address air quality through the consent process. The EPA had made it clear when it issued GTAs that post-commissioning proof of performance of the air quality control infrastructure on site had to be completed prior to any permitted increase in tonnage limits.

[4]

Conclusion Regarding Sell & Parker's State of Mind

In summary, for the reasons above, I find that S&P committed the 2016 and 2017 offences intentionally and contumeliously, in the sense explained above. I do not accept that the response given by a Department official at the 20 September 2016 site inspection meeting was in fact made, or understood by S&P, as sanctioning its unlawful behaviour or that the Department in any way indicated to S&P that it would not be prosecuted for its offending conduct.

[5]

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

In Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299, Preston J stated that environmental harm includes both actual and potential harm (at [145]-[149]). His Honour identified the following principles in establishing environmental harm, namely, that: 1. harm is not limited to measurable harm, such as actual harm to human health, and can include a broader notion of quality of life; 2. harm can include harm to the environment and its ecology resulting from adverse impacts to a particular animal or plant; 3. harm can be direct or indirect, individual or cumulative; 4. the culpability of the defendant depends in part on the seriousness of the environmental harm; and 5. the fact that the environment that is harmed by the defendant's conduct was already disturbed or modified is not a mitigating factor.
The Court was taken by the prosecutor to zoning plans of the locality surrounding the site with the suggestion that air quality impacts from S&P's operations may have been experienced in residential areas, a school, and an area zoned for public recreation. However, this submission is to be rejected on the basis that: 1. there is no evidence that any person in the residential areas surrounding the site, the school or in the area zoned for public recreation suffered any particular adverse air quality impacts as a result of activities at the site; 2. there is no evidence of any complaints from residents or users of the school or the area zoned for public recreation in proximity to the site; 3. with respect to the evidence of complaints received in the period from 2015, the evidence is that they were from adjacent industrial facilities, one of which was a commercial competitor; 4. some complaints were made prior to January 2015 and predated the installation of the ECS and the commission of the offences by over a year; and 5. each of these complaints was investigated and found to have no substance.
S&P also submitted that the Court should have regard to the environmental benefits inherent in S&P's activities at the site (citing ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67 at 71A). S&P contended that the recycling of scrap metal reduced CO2 emissions (that would otherwise result from the making of steel from iron ore). These environmental benefits were acknowledged by, for example, the Secretary of the Department and were evidenced by documents tendered by S&P and by evidence given by Luke Parker in his affidavit.

[6]

Maximum Penalty

The maximum penalty prescribed for the commission of an offence reflects Parliament's, together with the community's, view of the seriousness of that offence (Camilleri's Stock Feeds at 698 and Rawson at [57]). S&P's offending must be examined in this light (Environment Protection Authority v Gilder [2018] NSWLEC 119 at [106]). The maximum penalty serves as a yardstick and the basis for the comparison between the case before the Court and the worst case.
The offences were each subject to a tier 2 maximum penalty under s 125B of the EPAA. Accordingly, in the case of a corporation, the maximum penalty is $2 million (s 125B(2)(a)(i) of the EPAA).

[7]

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

In light of my findings concerning the disingenuous and unreasonable nature of the purported belief by Luke Parker, there can be do doubt whatsoever that it was reasonably foreseeable that by deliberately increasing the capacity of the materials received on site in a manner contrary to condition A8 of the consent, that is, prior to approval being granted to do so, this would undermine the planning regime established under the EPAA.

[8]

Control Over the Causes of the Commission of the Offences

S&P was the sole operator of the site. It had control over the causes giving rise to the commission of the offences.

[9]

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

There were practical measures that S&P could have taken to prevent, control, abate or mitigate the environmental harm (Wollongong Recycling at [9] and [45]). These measures included not exceeding the tonnage limit imposed by its consent for the receipt or processing of waste. S&P could, and should, have decreased its waste intake in order to comply with its regulatory obligations.

[10]

Sell & Parker's Reasons for Committing the Offences

The criminality involved in the commission of an offence by an offender 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]). An offence committed for financial gain is objectively more serious than one which is not.
The prosecutor submitted that the offences were committed by S&P for financial gain, which is an aggravating factor pursuant to s 21A(2)(o) of the CSPA.
S&P conceded that while financial gain was the primary reason for the commission of the offences, it was not the only reason. S&P submitted that the Court would accept Luke Parker's evidence that S&P was also motivated by its desire not to lay-off staff and to continue to carry out a recycling activity that was environmentally beneficial and necessary for the continuing supply of scrap metal to the steel and construction industries in NSW.
S&P further submitted that if the Court accepted its version of events at the 20 September 2016 site inspection meeting that the Court should not place great weight on the fact the offences were committed for financial gain. For the reasons explained above, the Court has rejected the narrative attributed to that meeting by S&P.
In any event, the desire not to make staff redundant is, properly analysed, also a factor that was financially motivated. As Luke Parker stated, the consequence of complying with the tonnage limit was that costs would have to be reduced, the commission of an offence in order to avoid reducing business operating costs is, on any view, commercially motivated and for financial gain (namely, the reduction of business expenses).
There was no dispute that S&P had made a substantial financial gain as a result of the commission of the offences and that this was the dominant reason for the offending (T381:01-08): Q. I understand that the position of the defendant in this case ‑ that is, the company ‑ is that it accepts that a motive for engaging in the offence was for material financial gain; do you understand that? A. Yes. Q. Can I suggest to you that the dominant reason that the offence was committed was for financial gain? A. Yes.
I therefore find that the primary motive for the commission of the offences was that of profit-making and I take this factor in aggravation into account pursuant to s 21A(2)(o) of the CSPA.

[11]

Conclusion on the Objective Seriousness of the Offences

The prosecutor contended that the objective seriousness of both offences was towards the upper end of the moderate range for this type of offence. In this regard, the prosecutor emphasised that at all material times the offending was deliberate and that no attempt was made to slow down the rate and scale of the offending conduct.
In response, S&P contended that the prosecutor's submission regarding the objective seriousness of the offences constituted an impermissible suggestion by it that the Court should fix the sentence at some point of relative precision in the range contrary to the reasoning of the High Court in Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 (at [7] and [38]-[39]) and Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 (at [40] and [56]).
In Director, Fair Work Building Industry Inspectorate the High Court opined as follows (at [56], footnotes omitted): 56 Moreover, in criminal proceedings the imposition of punishment is a uniquely judicial exercise of intuitive or instinctive synthesis of the sentencing facts as found by the sentencing judge (consistently with the jury's verdict) and the judge's relative weighting and application of relevant sentencing considerations in accordance with established sentencing principle. There is no room in an exercise of that nature for the judge to take account of the Crown's opinion as to an appropriate length of sentence. For the purposes of imposing a criminal sentence, the question is what the judge considers to be the appropriate sentence. Nor can there be any question of a sentencing judge being persuaded by the Crown's opinion as to the range of sentences open to be imposed. As was observed in Barbaro, apart from the conceptually indeterminate boundaries of the available range of sentences and systemic problems which would likely result from a criminal sentencing judge being seen to be influenced by the Crown's opinion as to the available range of sentences, the Crown's opinion would in all probability be informed by an assessment of the facts and relative weighting of pertinent sentencing considerations different from the judge's assessment. That is why it was held in Barbaro that it is inconsistent with the nature of criminal sentencing proceedings for a sentencing judge to receive a submission from the Crown as to the appropriate sentence or even as to the available range of sentences.

[12]

Subjective Circumstances of Sell & Parker

Within the limits set by the objective seriousness of the offences, the Court must take into consideration the subjective circumstances of S&P in determining the imposition of an appropriate penalty (Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143 at [116] and [190]).

[13]

Prior Convictions

S&P has previously been convicted of the following offences: 1. on 10 June 2006 it was convicted of one offence contrary to s 64(1) of the Protection of the Environment Operations Act 1997 ("POEOA") for the contravention of a condition of an EPL following an explosion resulting from an airblast caused by pressure levels exceeding those prescribed under the EPL. The Court fined S&P $7,500 and ordered it to pay the prosecutor's costs. S&P pleaded guilty to the offence at the first available opportunity (Environment Protection Authority v Sell and Parker Pty Ltd [2006] NSWLEC 626); and 2. on 16 February 2007, following a plea of guilty, S&P was convicted of one offence contrary to s 64(1) of the POEOA for contravening a condition of an EPL resulting in another explosion due to pressure levels exceeding those prescribed under the EPL. S&P was fined $8,400 and ordered to pay the prosecutor's costs (Environment Protection Authority v Sell and Parker Pty Ltd [2007] NSWLEC 64).
The parties jointly submitted that S&P otherwise has no significant record of prior convictions, and therefore, S&P can take the benefit of s 21A(3)(e) of the CSPA. While I largely accept this submission, I nevertheless take the two prior convictions for environmental offences into account.

[14]

Assistance Provided to Authorities

S&P's officers provided documents pursuant to statutory notices in a timely manner and agreed to two statements of fact with the prosecutor (Waste Recycling at [216]-[217] and s 21A(3)(m) of the CSPA).
I agree with the prosecutor, however, that the agreed statements of fact were cursory, requiring considerable evidence to be tendered and witnesses to be extensively cross-examined at the sentence hearing, especially Luke Parker.
Moreover, to the extent that S&P relied upon its act of replying to statutory notices as a demonstration of the assistance that it provided to the regulatory authorities, compliance with a legal obligation does not constitute the provision of assistance for the purposes of s 23 of the CSPA (Wollongong Recycling at [64]).
Therefore, while S&P has provided some assistance to the Department in its investigation of the offences, I find that this factor in mitigation cannot be afforded full weight.

[15]

Early Pleas of Guilty

A plea of guilty entered by a defendant at the first available opportunity can attract a maximum discount of 25% off the penalty imposed as a reflection of the utilitarian value of the pleas to the criminal justice system (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]). What is regarded as an early plea will vary in the circumstances of the case (Thomson at [160(iii)]).
The prosecutor submitted that the utilitarian value of S&P's guilty pleas was eroded by the way in which S&P conducted the proceedings. A defendant who pleads guilty but puts the prosecution to proof on numerous factual issues, and who subsequently loses that contest, is not entitled to the same discount for a plea of guilty (citing R v AB [2011] NSWCCA 229; (2011) 59 MVR 356 at [2]-[3]). In particular, the prosecutor submitted that the body of facts agreed between the parties was not substantial but constituted a bare chronology of events necessitating the need to tender "a deal of" documentary evidence.
Conversely, S&P submitted that because it had entered a plea of guilty at the earliest opportunity it was entitled to the full 25% discount. The utilitarian benefit of that plea was not reduced as a result of S&P's refusal to agree to certain facts. The key issue at the sentence hearing was the refusal of the prosecutor to accept that the words "No. We don't want you to do that" were spoken at the 20 September 2016 site inspection meeting by a Department officer. It was the prosecutor's late disclosure regarding Pizzolato's recollection that those words were said that resulted in the need for extensive oral evidence from three prosecution witnesses and from Luke Parker.
In R v AB Johnson J stated that (at [32]-[33]): 32 Likewise, a person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing. 33 These observations will have no application to the determination of the present Crown appeal. However, as a matter of general principle, this Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element, and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. This involves no more than an acknowledgment of the fact that what may be gained in utilitarian terms as a result of the avoidance of a trial may be lost, also in utilitarian terms, by way of a protracted sentencing hearing involving the adducing of evidence and the consumption of public resources for a purpose ultimately determined adversely to an offender.

[16]

Contrition and Remorse

Pursuant to s 21A(3)(i) of the CSPA, remorse 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),
In Waste Recycling Preston J remarked that "contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives" (at [203]). His Honour went on to summarise four ways by which an offender may demonstrate genuine contrition and remorse: 1. the efficiency of action rectifying the harm caused or likely to be caused by the commission of the offences (at [204]); 2. the voluntary reporting of the commission of the offences and any consequential environmental harm to the authorities (at [210]); 3. the measures taken to address the causes of the commission of the offences to prevent their occurrence in the future (at [212]); and 4. the personal appearance of corporate executives in court to give evidence of the defendant's regret and a plan of action to avoid the repetition of the offences (at [214]).
The prosecutor accepted that S&P has demonstrated some remorse but submitted that the Court would have misgivings regarding the extent to which these expressions were genuine, and therefore, would place only moderate weight upon them as a mitigating factor.
For example, Luke Parker's affidavit deposing to the extent to which S&P had accepted responsibility for the commission of the offences was qualified. In particular, he accepted in cross-examination that in his affidavit he sought to justify S&P's commission of the offences by noting delays in the approval process and by relying upon his belief that the Department was exercising a discretion not to take enforcement action with respect to the offences.
However, as the prosecutor acknowledged, Luke Parker was present throughout the proceedings and gave evidence of the steps taken by S&P to ensure that tonnage limits were not breached in the future.
In response, S&P submitted that the Court should not attribute the explanation contained in his ROI for S&P's non-compliance with condition A8, namely, that it was because S&P was "too successful" and because "we can't get our management plans approved", as an expression of remorse. S&P was not asserting that the commission of the offences was mitigated by the regulator's delay in granting approvals to S&P. Rather, it was emphasising that it had engaged a number of external experts in what was a complex process, in order to achieve compliance.

[17]

Likelihood of Reoffending and Prospects of Rehabilitation

Having regard to S&P's SSD application for increased processing capacity and Luke Parker's evidence that the 350,000tpa waste receipt limit will be adhered to in the future while it remains in place (T384:12-19), I find that S&P's risk of reoffending to be moderately low, but not negligible, especially in light of the findings immediately above concerning contrition and remorse and having regard to its state of mind during the commission of the offences (s 21A(3)(g) of the CSPA).
Having said this, I find that it has reasonable prospects of rehabilitation (s 21A(3)(h) of the CSPA).

[18]

Corporate Character

Luke Parker deposed that S&P is involved in the following charitable endeavours: 1. since 2002 it has donated over $5,000,000 to the Sydney Children's Hospital Foundation through its "Metal for Miracles" program; 2. it runs programs in Western Australia and the Northern Territory that support the Royal Flying Doctor Service. Since 2013 S&P has donated in excess of $250,000 to those organisations; 3. for 19 years it has been a major supporter of Sculpture by the Sea, through the provision of materials and transport, to the value of approximately $1,000,000; 4. it has been an active supporter of RUOK Day since its inception in 2009; 5. in 2020 it donated $120,000 to purchase equipment for the Westmead Institute for Medical Research's Brain Dynamics Centre to support research focussed on the resolution of mental health disorders; 6. S&P has been approved by the EPA to operate various automated collection points for the NSW Government's "Return and Earn" drink container deposit scheme; and 7. since 2010, S&P has employed and trained 10 apprentices and three management cadets at the site.
To the extent that the prosecutor's records show that S&P has received and paid two penalty infringement notices ("PIN") for non-compliance with the conditions of consent, while this is not a conviction to be taken into account for the purpose of s 21A(3)(e) of the CSPA, there is a question as to whether the PINs can be taken into account in relation to good character (Environment Protection Authority v Koppers Carbon Materials & Chemicals Pty Ltd (the Spill Incident) [2021] NSWLEC 12 at [79]). In the absence of the circumstances surrounding the notices, the Court notes the fact that the PINs related to a breach of the consent but accords minimal weight to them in this context (Koppers at [81]).
The Court also notes the positive character evidence provided by Bethwaite in respect of Luke Parker (see earlier in the judgment).
I therefore find that, subject to remarks above and but for the commission of the offences, S&P is generally of good corporate character (s 21A(3)(f) of the CSPA).

[19]

The Offences Could Have Been Prosecuted in the Local Court

While the offences could have been prosecuted in the Local Court, given their duration and complexity, such a course would have been highly undesirable (Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 at [92]).

[20]

General and Specific Deterrence

The Court is required to take into account both general and specific deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569-570 per Brennan J). One of the purposes of the Court in imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences. This purpose is enshrined in s 3A(b) of the CSPA (Gittany at [101]-[103] and Environment Protection Authority v Rands [2019] NSWLEC 23 at [162]).

[21]

General Deterrence

The penalty imposed by the Court must serve as a general deterrent (Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177]). General deterrence is vital "to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences" (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188] and see also Axer at 359-360).
In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Preston J discussed general deterrence in the context of environmental offending in the following terms (at [66]-[68]): 66 The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. 67 This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354; and Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93]. 68 The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court's sentence, the offender is given his just desserts.
In Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93, the defendant pleaded guilty to an offence against s 125 of the EPAA of clearing 4.1 ha of land for the purposes of erecting a boundary fence contrary to an approval granted under Pt 3A of that Act. During the course of explaining the purpose of sentencing the Court said (at [46]): 46 The sentencing purpose of general deterrence identified in s 3A(b) is of particular significance in this matter. So much was submitted by the prosecutor and not gainsaid, in terms, by the defendant. It is a corporation engaged in a multimillion dollar coalmining project, an activity which in all its aspects had the potential to have a very significant impact upon the environment. Corporations engaged in activities of this kind must be reminded of the obligations imposed upon them to ascertain the laws and controls applicable to the carrying out of any activity associated with a particular project in order to ascertain the need for any consent or approval to that activity so that the appropriate environmental assessment can be undertaken before any approval is given to it. The sentence therefore needs to make clear to the community at large that the failure of a corporation to take these steps will be visited with significant financial penalties.

[22]

Specific Deterrence

Specific deterrence is an aspect of the sentencing exercise, especially where a defendant continues to operate in the same field in which the incident has occurred (Axer at 359).
The prosecutor's position was that specific deterrence should constitute a material element in the exercise of the sentencing discretion in this case because: 1. S&P continues to engage in the metal recycling industry; 2. the evidence establishes that S&P took a cavalier approach to interactions with the Department and sought, on several occasions, to use those interactions to its advantage and to the detriment of the regulatory system. This is illustrated by S&P making the 20 September 2016 site inspection meeting central to its case in mitigation; 3. S&P's failure to seemingly take seriously the findings of the Independent Audit Report demonstrated its unpreparedness, at least in 2016, to take seriously the regulatory oversight imposed by the consent; 4. S&P's conduct was driven by financial gain; and 5. S&P sought to justify its commission of the offences on delay by the regulator.
The prosecutor accepted, however, that these considerations were mitigated to some degree by Luke Parker's evidence that S&P had applied to increase its threshold limits (T384:12-19).
S&P stated that the Court was not required to take specific deterrence into account because: 1. S&P has complied with the final pre-requisites of the consent to increase production to 350,000tpa; 2. S&P has lodged a further SSD application to allow for further increases in production at the site; 3. S&P has operated in the metal recycling industry for 55 years with an excellent record; and 4. S&P has not re-offended in the three and a half years since the offences were committed and is unlikely to do so.
S&P further argued that it has incurred costs in order to avoid committing the offences, such as the commissioning and installation of the ECS, and that this should be taken into account by the Court.
That it undertook this and other measures is afforded weight by the Court, however, what must also be taken into account is the fact that S&P did not incur the cost of slowing down production in order to ensure that condition A8 of the consent was complied with.
Although S&P has proactively applied for increased capacity limits, and in light of my finding above that S&P is unlikely to reoffend, I nevertheless take specific deterrence into account for the reasons given by the prosecutor which I accept.

[23]

Sentencing Corporations

In Pacific Real Estate (Warilla) the Court made the following observations about the sentencing of corporations (at [103]): 103 In the circumstances of the present case, the need to specifically deter the defendant from repeating the conduct that resulted in the commission of the offences in the future is, on the evidence outlined above, limited but it is not, contrary to the submission of the defendant, non-existent. The intentional nature of the defendant's conduct in commencing construction absent development consent, driven as it was in part by financial gain, favours the need for, albeit minimal, specific deterrence.
Here the offence was committed with the knowledge of the most senior officer of the company - Luke Parker. Moreover, everyone on S&P's board had knowledge that S&P was breaching condition A8 (T359:39-41).
As the prosecution highlighted, S&P is a prominent participant in the metal recycling industry and its operations are sizable in scale. As a major operator, its capacity to negatively impact upon the integrity of the planning system is commensurate with the space that it occupies in that industry. It had the capacity to offend in a material way, and it did so, by exceeding its limit by a factor of multiple times. These matters have a real tendency to augment the seriousness of the offences and may be taken into account in relation to the Court's assessment of the objective culpability of the offending conduct and in assessing the need for general deterrence.

[24]

Retribution and Denunciation

The Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and makes S&P accountable for its actions (Pesic v Sutherland Shire Council [2019] NSWLEC 38 at [41]).

[25]

Consistency in Sentencing

The task of the court is to seek evenhandedness 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 107C). 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 (Axer at 365). The penalty 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 [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).
The prosecutor provided a table of comparative cases to assist the Court in the sentencing exercise. These cases are summarised as follows: 1. in Wollongong Recycling the defendant was charged with contravening ss 76A(1)(b) and 125(1) of the EPAA for exceeding the volume of waste that was permitted to be received and processed under its applicable SSD consent. The defendant was permitted to receive 30,000tpa of waste but received 40,024t of waste in the 2017 calendar year. The maximum penalty for the offence was $2,000,000. The Court found that no actual environmental harm was caused as a result of the commission of the offence, however, harm was caused to the integrity of the planning system. The evidence was insufficient to establish that the offence was committed recklessly or negligently. The defendant had no prior convictions and there were no other aggravating factors. The time period of any financial gain was limited. Genuine remorse was not established. The penalty was discounted by 25% for the utilitarian value of the defendant's early guilty plea. The defendant provided a limited degree of assistance to the prosecutor by agreeing to a statement of facts. The Court fined the defendant $36,000, half of which was to be paid as a moiety to the prosecutor, and a publication order was made. The defendant was liable for $26,000 in costs; 2. in Environment Protection Authority v Mortdale Recycling Pty Ltd [2019] NSWLEC 106 the defendant was fined $30,000 (after the application of a 25% discount for its early guilty plea) for contravening s 64(1) of the POEOA. Additionally, it was subject to a publication order and ordered to pay costs fixed in the sum of $40,000. The contravention related to the defendant's exceedance of a limit regarding the amount of material that could be received and processed on its premises. The limit was 30,000tpa and the defendant exceeded it by 29,931t in the 2017/2018 reporting year. The defendant was granted a SSD consent in late 2017 for the increase in volume limits. The maximum penalty for the commission of the offence was $1,000,000. The Court found that the offence was of low to medium objective seriousness and constituted a clear case of negligence bordering on recklessness. There was potential environmental harm, albeit minimal, in addition to harm caused to the integrity of the planning regime. The defendant had no prior convictions, assisted the authorities and took prompt remedial action. The defendant demonstrated a level of contrition and remorse; 3. Environment Protection Authority v Minto Recycling Pty Limited [2019] NSWLEC 193 concerned the appropriate sentence to be imposed on the defendant for contravening s 64(1) of the POEOA for exceeding the 30,000tpa waste receipt limit contained in its EPL. The maximum penalty was $1,000,000. The defendant received 169,695t of waste in the relevant year. During the charge period, the defendant had made a SSD application to increase its permitted waste receipts. This increase was subsequently granted. The defendant had ceased trading prior to the imposition of the sentence, and therefore, specific deterrence was given no weight. The objective seriousness of the offence was at the top of the low range. The sole factor of aggravation was that the offence was committed for financial gain. The dispute regarding environmental harm resulted in the hearing taking over ten days. The defendant did not agree to a statement of facts but did tender a statement of admissions. Assistance to the prosecutor was not established. The defendant was fined $90,000 (after the application of a 25% discount for the entry of an early guilty plea). A publication order was made and the defendant was ordered to pay the prosecutor's costs as agreed or assessed; 4. in Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi [2015] NSWLEC 78 a corporate defendant and its directors were sentenced for three contraventions of s 64(1) of the POEOA. The maximum penalty was $1,000,000 for the corporate defendant and $250,000 for each of the directors. The defendants exceeded the volume limit of 50,000tpa imposed under their EPL in respect of quarried extractive material. Each offence related to a different charge period. The exceedances were substantial (96,597t for the first offence, 368,363t for the second, and 81,512t for the third). The EPL was suspended in 2013. The defendants had sought an increase in the volume limit in 2010 and there were extensive delays in the approval process. The Court found that the objective seriousness of the offences was low to moderate. There was the potential for environmental harm, albeit minimal. The Court took into account the defendants' intentional disregard for the extraction limit, the long-running nature of the substantial exceedances in volume and the fact that the investigation and show-case notice were ignored. There were no relevant prior convictions. The offences were found to have been committed for financial gain. In mitigation, the defendants were held to be unlikely to reoffend given that a new increased volume limit was subsequently granted. Specific deterrence was, therefore, given no weight. Remorse was established. The Court applied a 40% discount for the defendants' early pleas of guilty and other mitigating factors. The defendants were fined $81,000 after the relevant discounts and the application of the totality principle. The defendants were also sentenced for the provision of misleading information to the EPA; 5. a corporate defendant was fined $30,000 for contravening s 64(1) of the POEOA by handling 88,949tpa of extracted material, a quantity almost three times its EPL limit of 30,000tpa, in Environment Protection Authority v M A Roche Group Pty Ltd [2014] NSWLEC 114. Towards the end of the charge period the defendant had applied to increase its limit to 250,000tpa. The maximum penalty for the offence was $1,000,000. The offence was held to be of low objective seriousness. The defendant had prior offences for water pollution and for obstructing an authorised officer. The offences were held to be committed for financial gain. Moreover, there was no remorse or contrition. However, in mitigation, the sentences were discounted by 25% for an early guilty plea. Other factors in mitigation included the assistance provided by the defendant and its agreement to pay the prosecutor's costs. The defendant was ordered to pay the prosecutor's costs as agreed or assessed and to publish details of the offence in two publications; and 6. in Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 the same corporate defendant was sentenced for contravening s 64(1) of the POEOA for handling 62,475t of extracted material when its EPL limit was 30,000tpa. The objective seriousness of the offence was assessed as being low to medium. There was a risk of environmental harm as a result of the commission of the offence due to increased dust and noise emanating from the subject site. The offence also undermined the regulatory planning scheme in NSW. The Court considered specific deterrence in undertaking the sentencing exercise. The Court found that the defendant should have been on notice of the risk of the contravention having received a prior PIN. The Court found that the offence was committed for financial gain. Mitigating circumstances included that the defendant was fully cooperative and entered a plea of guilty at the earliest opportunity. The defendant was fined $52,000 after the application of a 35% discount for the utility of its early guilty plea and other mitigating factors. The defendant paid the prosecutor's costs in the agreed sum of $9,751.

[26]

Publication Order

Pursuant to s 126(2A) of the EPAA, the Court is empowered under s 250(1)(a) of the POEOA to order S&P to publicise the commission of the offences (including the circumstances of their commission). The parties have agreed to a publication order in the terms provided at annexure A to this judgment.

[27]

Financial Means of Sell & Parker

There was no suggestion that S&P would be unable to pay any monetary penalty likely to be imposed upon it by this Court (see s 6 of the Fines Act 1996).

[28]

Costs

In the exercise of its sentencing discretion in relation to the quantum of any monetary penalty to be imposed on S&P, the Court can take into account the costs that S&P agrees to pay (Barnes at [78] and [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]).
The prosecutor sought an order under s 257B of the Criminal Procedure Act 1986 for the payment of its professional costs as agreed or assessed. During the sentence hearing the parties agreed that S&P would pay the professional costs of the prosecutor fixed (see s 257G of that Act) in the sum of $269,630 (rounded down), excluding the costs associated with two of the prosecutor's experts, Natalie Faulkner and Gregor Riese (T552:07-08), and the preparation and hearing of the notices of motion on 14 March 2019, which resulted in a finding of duplicity (T552:17-33).

[29]

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 62-63; 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 Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [111]-[112]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient.
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]). The identified risk is that if "sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences" (Gittany at [199] and [201]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [45]-[46] and R v Wheeler [2000] NSWCCA 34 at [36]-[37]). That is to say, the application of the totality principle must not cause public confidence in the administration of justice to be undermined by any perception that "what is in effect being offered is some kind of a discount for multiple offending" (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]).
In R v Toohey [2019] NSWCCA 182, Gleeson JA summarised the application of the principle as follows (at [56]): 56 As to totality, it is well established that questions of accumulation and concurrence are, generally speaking, matters for determination by a sentencing judge in the exercise of his or her discretion. The focus is on a consideration of the similarity, differences and the degree of connection between the offences both in time and type to ascertain the extent to which the sentence for one offence can comprehend and reflect the criminality of the other: Pannowitz v R [2016] NSWCCA 13 at [40] (Davies J, Hoeben CJ at CL and Beech-Jones J agreeing). That calls for the identification and an evaluation of the relevant factors pertaining to the offences and will include the nature and seriousness of each offence.
The principle applies with different force where the penalty imposed is a fine. In Camilleri's Stock Feeds Kirby P (as he then was) said (at 704D): The principle of totality is applicable where the penalty imposed is by way of fine: see R v Sgroi (1989) 40 A Crim R 197 at 203. However, it may be that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation: see R v Brown (1982) 5 A Crim R 404 at 407.

[30]

Moiety

The prosecutor seeks an order pursuant to s 122(1) of the Fines Act directing the payment of half of any fine imposed upon S&P to the prosecutor. S&P did not contest the appropriateness of such an order and I make it.

[31]

Appropriate Sentence

Having regard to the objective seriousness of the offences and the mitigating subjective factors in favour of S&P, together with the penalties imposed in the relevant comparable cases, I consider that the appropriate sentence to be imposed is a monetary penalty of $200,000 for the 2016 offence and $225,000 for the 2017 offence.
The penalties must be discounted by 20% for the utilitarian value of S&P's early pleas of guilty, resulting in a monetary penalty of $160,000 for the 2016 offence and $180,000 for the 2017 offence.
After the application of the totality principle, the penalty for the 2017 offence should be reduced to $90,000.
The total monetary penalty imposed on S&P for the commission of the two offences is, therefore, $250,000.

[32]

Orders

In conformity with the reasons given above, the Court makes the following orders: Proceeding 2018/242442 1. the defendant is convicted as charged; 2. the defendant is fined the sum of $160,000, half of which ($80,000) is to be paid to the prosecutor under s 122(2) of the Fines Act 1996; Proceeding 2018/242443 1. the defendant is convicted as charged; 2. the defendant is fined the sum of $90,000, half of which ($45,000) is to be paid to the prosecutor under s 122(2) of the Fines Act 1996; Proceedings 2018/242442 and 2018/242443 1. pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, within 28 days of the date of this order, and at its own expense, the defendant is to cause a notice in the form of annexure A, at a minimum size of 12 cm x 15 cm, to be placed within the first 10 pages of the following publications: 1. The Daily Telegraph; 2. The Australian Financial Review; and 3. The Sydney Morning Herald; 1. pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, within 28 days of the date of this order, and at its own expense, the defendant is to cause a notice in the form of annexure A to this order to be placed on the home page of the website of Sell & Parker Pty Ltd (https://www.sellparker.com.au); 2. within 35 days of the date of this order, the defendant is to provide to the prosecutor a complete copy of the pages of the publications and website in which the notices have appeared pursuant to orders 5 and 6 above; 3. pursuant to ss 257B and 257G of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor's costs fixed in the sum of $269,630 for both sets of proceedings; and 4. the exhibits are to be returned.

[33]

Annexure A Sell & Parker Pty Ltd is Convicted of Contravening its Development Consent and Ordered to Pay $250,000 Sell & Parker Pty Ltd ("Sell & Parker") has been convicted and has been ordered to pay a fine in the sum of $250,000 by the Land and Environment Court of NSW for two offences against s 125(1) of the Environmental Planning and Assessment Act 1979 ("EPAA") of carrying out development on land, comprising an expansion of its metal recycling facility at Kings Park, NSW, to enable it to receive and process up to 350,000 tonnes of scrap metal per calendar year, otherwise than in accordance with a development consent issued by the then Department of Planning and Environment ("the Department"), contrary to s 76A(1)(b) of the EPAA. The development consent included a condition that Sell & Parker was not permitted to receive or process at the facility more than 90,000 tonnes per calendar year of waste until the emissions collection system for a hammer mill had been commissioned and approved for operation, and before a final occupation certificate had been issued. In the 2016 calendar year Sell & Parker received 105,386.751 tonnes of scrap metal in excess of its permitted limit. In the 2017 calendar year Sell & Parker received 178,645.476 tonnes of scrap metal in excess of its permitted limit. On 19 May 2022, the Land and Environment Court of NSW sentenced Sell & Parker for the two offences and ordered it to: 1. pay a fine in the sum of $250,000; 2. pay the Department's costs fixed in the sum of $269,630; 3. place a notice in news publications advising of the commission of the offences, and to pay for the placement of those notices; and 4. place a notice on the home page of Sell & Parker's website advising of Sell & Parker's commission of the offences.

[34]

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: 23 May 2022

Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd

At a glance

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