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[2025] NSWLEC 26
General information, not legal advice.
Land and Environment Court (NSW)
2025-03-28
Pain J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Secretary, Department of Planning, Housing and Infrastructure v CEAL Limited (Trading as Multiquip Quarries); Secretary, Department of Planning and Environment v CEAL Limited (Trading as Multiquip Quarries) [2025] NSWLEC 26
Hearing dates: 27 February 2025
Date of orders: 28 March 2025
Decision date: 28 March 2025
Jurisdiction: Class 5
Before: Pain J
Decision: See below in [74]-[76].
Catchwords: PROSECUTION – sentencing – plea of guilty to breach of condition of development consent for locating unapproved silt cells in quarry development – commission of offence not intentional – no environmental harm – low objective seriousness – application for s 10 order under Crimes (Sentencing Procedure) Act 1999 (NSW) refused – mitigating factors – publication order made
PROSECUTION – sentencing – plea of guilty to breach of condition of development consent for bringing material onto site – commission of offence not intentional – no environmental harm – application for s 10 order under Crimes (Sentencing Procedure) Act 1999 (NSW) refused – low objective seriousness – mitigating factors – publication order made
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 10, 21, 21A, 22, 23, 98
Criminal Procedure Act 1986 (NSW), ss 247E, 257B
Environmental Planning and Assessment Act 1979 (NSW) ss 1.3, 2.2, 4.2, 7.11, 9.23, 9.51, 9.52, 9.56
Fines Act 1996 (NSW), s 122
Protection of the Environment Operations Act 1997 (NSW) s 250
Cases Cited: Ahmad v R [2021] NSWCCA 30
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Baladjam v R (2018) 341 FLR 162; [2018] NSWCCA 304
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68
Environment Protection Authority v Virotec International Ltd [2002] NSWLEC 110
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Environmental Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178
Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hoare v R (1989) 167 CLR 348; [1989] HCA 33
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
Plath v Fish (2010) 179 LGERA 386; [2010] NSWLEC 144 at [99]
R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283
R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
R v Paris [2001] NSWCCA 83
R v Rushby [1977] 1 NSWLR 594
R v Storey [1998] 1 VR 359 at 369
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Rushby [1977] 1 NSWLR 594
Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154
Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106
Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd (No 4) [2022] NSWLEC 32
Thorneloe v Fillipowski (2001) 52 NSWLR 60; [2000] NSWLEC 269
Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
Veen v R (1979) 143 CLR 458; [1979] HCA 7
Texts Cited: None
Category: Sentence
Parties: Secretary, Department of Planning, Housing and Infrastructure (Prosecutor, 2023/451490)
Secretary, Department of Planning and Environment (Prosecutor, 2023/451491)
CEAL Limited (Trading as Multiquip Quarries) (Defendant)
Representation: Counsel:
L Sims (Prosecutors)
P English (Defendant)
Solicitors:
Department of Planning, Housing and Infrastructure (Prosecutors)
Marsdens Law Group (Defendant)
File Number(s): 2023/451490
2023/451491
Publication restriction: No
The Defendant has entered pleas of guilty to two offences under s 9.51 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) in that it carried out development that required development consent and for which development consent had been obtained contrary to the conditions of consent, and therefore contrary to section 4.2(1)(b) of the EP&A Act.
The Prosecutor has departmental responsibility for planning and administration of the provisions of the EP&A Act and is subject to the control and direction of the Minister for Planning (s 2.2 EP&A Act).
A plea of guilty is an admission of all the essential elements of an offence. The Prosecutor must establish beyond reasonable doubt any matter not otherwise agreed for the purpose of sentencing, R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ) citing R v Storey [1998] 1 VR 359 at 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA).
The offences were carried out by the Defendant at Oallen Ford Road, Bungonia (Site). The Defendant is the owner of the Site, the person acting on the development consent, and authorises the procurement of services and the day to day works on the Site.
The Site is approximately 185 hectares in size and is being operated by the Defendant as a basalt rock and river sand quarry known as the ‘Ardmore Park Quarry’. Workers at the quarry are employed by a related entity of the Defendant, Multiquip Aggregates Pty Ltd (Multiquip).
Project approval for the Ardmore Park Quarry was granted by the Minister for Planning under the former Part 3A of the EP&A Act on 20 September 2009. The Consent has been modified on three occasions:
8 October 2020 (MOD 1);
11 December 2013 (MOD 2); and
18 September 2020 (MOD 3).
On 18 January 2020, a delegate of the Minister declared development for the purpose of the Ardmore Park Quarry to be state significant development (SSD), with the consequence that Part 4 Div 4.7 of the EP&A Act applied to the development and the project approval is taken to be a development consent granted under that Part.
The parties agreed a statement of agreed facts set out in part as follows (annexures omitted):
First Offence (charge 1)
11 The Defendant, in carrying out development, did not comply with the Development Consent (MOD 3) in its use of silt cells 1, 2 and 3a and silt and oversize management areas 1 and 2 to the west of the acoustic bund, as such development was not generally in accordance with the project layout incorporated into the approval by reference to condition 2 of Schedule 2 of the Development Consent (MOD 3).
12 The areas where development was carried out not in accordance with the Development Consent (MOD 3) are shown to the west of the “vegetated bund wall” on the marked up aerial photograph which is at Annexure D.
13 Conditions 2 and 3 of Schedule 2 of the Development Consent (MOD 3) state:
2. The project may only be carried out:
(a) in compliance with the conditions of this approval;
(b) in accordance with all written directions of the Planning Secretary; and
(c) generally in accordance with the EA and the Project Layout in Appendix 1.
3. If there is any inconsistency between the above documents, the most recent document shall prevail to the extent of the inconsistency. However, the conditions of this approval shall prevail to the extent of any inconsistency.
14 The evidence of the first offence first came to the attention of authorised officer Katrina O’Reilly on 21 May 2021.
Second Offence (charge 2)
15 Between 22 September 2020 and 9 September 2023, the Defendant, in carrying out development, did not comply with Condition 37A of Schedule 3 to the Development Consent (MOD 3) in that it imported VENM to the Site when the Planning Secretary had not approved a Waste Management Plan for the Ardmore Park Quarry.
16 Condition 37A of Schedule 3 states:
37A. The Proponent must prepare a Waste Management Plan for the project in consultation with the EPA and to the satisfaction of the Planning Secretary. This plan must:
(a) identify the different types and quantities of screened waste material to be imported to site;
(b) describe:
(i) how and where screened waste material will be stored on site;
(ii) the process for handling screened waste material, including for use in rehabilitation, product blending and on-sell purposes;
(c) provide an indicative schedule of screened waste material to be imported to the site over the life of the project in order to achieve the conceptual final landform.
The Proponent must not import any screened waste material until the Waste Management Plan is approved by the Planning Secretary.
17 “Screened waste material” is defined in the Development Consent (MOD 3) as “VENM, ENM and treated drilling mud, as defined under the relevant Resource Recover**y Orders and Exemptions”.
18 VENM is defined in cl 50 of Sch 1 to the Protection of the Environment Operations Act 1997 (NSW) as follows:
virgin excavated natural material means natural material (such as clay, gravel, sand, soil or rock fines)—
(a) that has been excavated or quarried from areas that are not contaminated with manufactured chemicals, or with process residues, as a result of industrial, commercial, mining or agricultural activities, and
(b) that does not contain any sulfidic ores or soils or any other waste,
and includes excavated natural material that meets such criteria for virgin excavated natural material as may be approved for the time being pursuant to an EPA Gazettal notice.
19 The evidence of the second offence first came to the attention of authorised officer Michael Wood upon receipt of a letter from the Defendant on 20 May 2022 in response to a Notice to Furnish Information and Records dated 11 April 2022.
20 In response to the Notice to Furnish Information and Records dated 11 April 2022, the Defendant supplied a VENM assessment report for the materials the subject of the second offence which described them as comprising “brown silty clay topsoil. No odour, staining, potential asbestos-containing material or other inclusions were observed”.
21 Between 22 September 2020 and 9 September 2021, the Defendant imported to the Site around 6,000 tonnes of VENM. At the time the VENM was imported to the Site, the Defendant had not prepared a Waste Management Plan.
The offence periods are between:
18 September 2020 and 20 April 2022 for the first offence; and
22 September 2020 and 9 September 2021 for the second offence.
1 I am Quarry Operations Manager for Multiquip Aggregates Pty Ltd, which operates the Ardmore Park Quarry located at 5152 Oallen Ford Road, Bungonia NSW 2580 (Quarry). I have held this position since August 2017. I have a Bachelor’s Degree in Engineering from the University of New South Wales.
2 The activities undertaken at the Quarry include the extraction of basalt and sand from the land and thereafter the processing of this material by crushing, grading and washing. The final product is stockpiled on the land before it is transported for sale.
3 Exhibited to me at the time of making this affidavit is a folder of documents titled SW-1. I refer to the documents behind the various tabs of SW-1 throughout this affidavit.
4 This is the second affidavit I have made in these proceedings, my first affidavit dated 12 June 2024 is behind Tab 1 of SW-1.
Apology
5 With the authority of the board of directors of the Defendant, I apologise to the Court and community for the commission of the two offences for which the Defendant has entered pleas of guilty.
6 I have set out below an explanation for the offending conduct, which was at all times unintentional.
Map of the Quarry
7 Behind Tab 2 of SW-1 is a map I have created of the Quarry that enables the identification of areas within the property boundary by use of coordinates on the X (letters) and Y (numbers) axes.
Temporary silt cells and overburden management areas
8 The areas in orange to the west of the western acoustic bund are the areas the subject of the offence (2023/451490), being namely:
(a) Silt and Overburden Management Area 1 (in and around J4 of Tab 2 of SW-1);
(b) Silt and Overburden Management Area 2 (in and around J6 of Tab 2 of SW-1);
(c) Active Silt Cell 1 (I6-7 of Tab 2 of SW-1);
(d) Active Silt Cell 2 (I-J7 of Tab 2 of SW-1);
(e) Active Silt Cell 3 (J7 of Tab 2 of SW-1).
9 Each of the Active Silt Cells 1-3 was progressively built (3 first, 2 second and 1 last). These silt cells were always intended to be a temporary measure until such time as a silt cell(s) could be created within an exhausted section of the quarry.
10 Silt and Overburden Management Areas 1 and 2 were being used to temporarily store partially dried silt which had been recovered from Active Silt Cells 1, 2 and 3, until such time as a suitable place within the exhausted Quarry became available to permanently house that material.
11 Construction of the first silt cell within the confines of the exhausted Quarry commenced between February to April 2021 (J10 of Tab 2 of SW-1).
12 It was my original understanding that these activities were permissible in accordance with modifications 1 and 2 to the project approval (MOD 1 and MOD 2), having been carried out in accordance with the approved use of the land as a quarry and within the Quarry’s site boundary. Copies of MOD 1 and MOD 2, including their annexed project layouts, are behind respectively Tabs 3 and 4 of SW-1.
13 In accordance with my original view as to the permissibility of these activities, I had no hesitation in disclosing on 21 May 2021 the existence of the disturbance areas the subject of this prosecution to the Department’s officer responsible for ensuring the Quarry’s compliance with the project approval, Katrina O’Reilly. In this regard, I refer to paragraphs 15-24 of my first affidavit located at Tab 1 of Ex SW-1.
14 The General Layout of the Project at Appendix 1 to MOD 1 and MOD 2 both refer to a “Silt Storage Dam” to the west of the acoustic bund in the same general area where the Silt and Overburden Management Areas and Active Silt Cells referred to at [8] above are situated (at H4 of Tab 2 of SW-1). The General Layout of the Project at Appendix 1 to MOD 1 and MOD 2 also does not contain a reference to an “Approved Extraction Area” in its key.
15 The General Layout of the Project Approval at Appendix 1 to the third modification (MOD 3), a copy of which is behind Tab 5 of SW-1, is different to that in MOD 1 and MOD 2 in that it shows a “Water Storage Dam” in the location of the former “Silt Storage Dam” and includes a hashed black line marking out an “Approved Extraction Area”.
16 The diagrams depicting the General Layout of the Project at Appendix 1 to MOD 1, MOD 2 and MOD 3 were created by the Defendant’s environmental consultant, RW Corkery & Co. Having made investigations with RW Corkery & Co, I am aware that these diagrams were created by a former employee of that firm, Alex Irwin. The principle of RW Corkery & Co, Rob Corkery, was unable to provide any specific information to me in relation to these diagrams, beyond referring me to Mr Irwin.
17 I have attempted to contact Mr Irwin to discuss the diagrams for the purpose of understanding why the change to the diagram referred at [15] above was made. I had in my possession a mobile telephone number for Mr Irwin from my previous dealings with him. During the week of 2 December 2024, I rang this telephone number for Mr Irwin. The phone did not answer but directed me to a voicemail message. I recognised the message to be in the voice of Mr Irwin. I left a message for Mr Irwin to phone me back. I next phoned Mr Irwin on the same telephone number on 10 December 2024. On this occasion I was once more directed to the voicemail where I left another message for Mr Irwin to phone me. I followed up this message by also sending a text message to the same telephone number asking Mr Irwin to call me. I have not received a response from Mr Irwin to any of the messages that I left for him. I am aware that the Defendant’s solicitor, David Baird, has also attempted to discuss the creation of these maps with Mr Irwin with no success.
18 Notwithstanding the approval of MOD 3 on 18 September 2020, the Quarry has still been operating generally in accordance with the conditions of consent permitted by MOD 2, including:
(a) The lower extraction limits provided by MOD 2;
(b) The more restrictive transport hours under MOD 2;
(c) Paying contributions in accordance with s 7.11 of the Environmental Planning and Assessment Act 1979 (NSW) at the higher rate provided for under MOD 2.
19 In its annual reviews submitted to the Department of Planning for the periods 21 August 2019 to 31 December 2020 and 1 January 2021 to 31 December 2021, the Defendant disclosed that, until such time as the environmental management plans for MOD 3 had been lodged and approved, it was carrying out quarrying operations in accordance with the terms of MOD 2. Copies of these two annual reviews are at, respectively, Tabs 6 and 7 of SW-1.
20 As at the time of making this affidavit, the Quarry is still operating generally in accordance with the terms of MOD 2.
21 After the approval of MOD 3 on 18 September 2020, as part of the implementation process for MOD 3, the Defendant engaged RW Corkery and Co to prepare management plans for submission to the Department. As part of this process, RW Corkery and Co became aware of the areas of disturbance the subject of this prosecution (at [8] above), and advised that the Defendant needed to report these disturbances to the Department in accordance with Schedule 5 Condition 4 of MOD 3. Although this advice conflicted with my and the Defendant’s original opinion, we accepted it and followed RW Corkery and Co’s instruction to submit a notification of non-compliance report to the Department, a copy of which is at Tab 8 of SW-1.
Offence concerning the importation of VENM
22 Under cl 37 of MOD 2, the Defendant was permitted “to only import VENM [virgin excavated natural material] to the site”.
23 Under cl 37A of MOD 3, the Defendant “must not import any screened waste material [which is defined to include VENM] until the Waste Management Plan is approved by the Planning Secretary”. At the time of the commission of this offence, that is between 22 September 2020 and 9 September 2021, the Defendant had not submitted its Waste Management Plan to the Planning Secretary for approval.
24 In the environmental assessment accompanying the Defendant’s application for MOD 3 dated December 2017 the following is stated [2.5.3.2]:
Multiquip has approval to import VENM generated by construction activities undertaken in the Sydney, Canberra and local markets, primarily to backfill the extraction area as part of final landform creation and rehabilitation of the Quarry. Some screening and blending with extracted sand and/or basalt may be undertaken to meet specific customer requirements.
25 The 6,000 tonnes of VENM the subject of this offence was brought on site for the purpose of rehabilitating the Quarry as required upon the staggered completion of quarrying activities. At the time of the commission of this offence, I and the Defendant believed that the Quarry was operating within the terms of MOD 2 and that the importation of this VENM was still permissible.
26 On 15 September 2023, the Defendant submitted its Waste Management Plan to the Department for approval. To date, this is yet to be approved by the Planning Secretary.
Status of the areas of disturbance the subject of this prosecution
27 The Silt and Overburden Management Areas and Active Silt Cells referred to at [8] above are currently the subject of a development control order (DCO) preventing the carrying out of any activities within their location. Once this DCO is lifted, consistent with the Quarry’s approved final landform, the Defendant intends to use the material within these areas to backfill exhausted sections of the quarry. The timing for the transfer of this material depends on the progress of extraction operations and the availability of a suitably sized exhausted section of the quarry to house these materials.
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.
Subsections (a), (b), (e), (f) and (g) are particularly relevant to these offences.
Section 21A of the CSP Act identifies aggravating and mitigating matters to be considered if relevant to sentencing. No aggravating matters identified in s 21A(2) were identified by the Prosecutor.
The legislative scheme enshrined in the [EP&A Act] in support of its objects requires that the integrity of the system of planning is not subverted, irrespective of whether or not any actual environmental harm is caused by the offending conduct (Pittwater Council v Scahill (2009) 165 LGERA 289; [2009] NSWLEC 12 at [46] ; and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [104] –[105]).
There is no dispute that the Defendant’s actions in relation to both charges were unintentional.
In relation to charge 1, Mr Wall the Defendant’s quarry manager stated in his second affidavit extracted in full above in [11] that he held a reasonable belief that what he was doing was carried out in accordance with the previous version of the development application being MOD 2. While MOD 3 was extant he believed that the Defendant was carrying out development in accordance with MOD 2 as it was yet to lodge and have approved its environmental management plans for MOD 3. Mr Wall also stated that MOD 1 and MOD 2 both referred to a ‘Silt Storage Dam’ in the same general area where the ‘Silt and Overburden Management Areas and Active Silt Cells’ the subject of charge 1 were situated and did not identify an ‘Approved Extraction Area’ which was introduced in MOD 3. In MOD 3 a ‘Water Storage Dam’ was shown in the location of the former ‘Silt Storage Dam’ and an ‘Approved Extraction Area’ was marked. The site layouts in MODs 1, 2 and 3 were prepared by a former employee of the Defendant’s environmental consultant and Mr Wall has been unable to contact that employee regarding the changes made in MOD 3 introducing the ‘Approved Extraction Area’.
The Prosecutor disputed in submissions that Mr Wall’s belief was reasonable by referring to the site maps for MOD 2 and MOD 3 in evidence to demonstrate that Mr Wall’s understanding was not correct. The Defendant has pleaded guilty and has therefore accepted that its understanding of the MOD 3 conditions was not correct. The Prosecutor did not cross-examine Mr Wall. Based on the unchallenged evidence identified in Mr Wall’s second affidavit concerning the operation of MOD 2 in contrast to MOD 3 I accept that his belief that the operation was being properly conducted under MOD 2 conditions rather than MOD 3 in relation to charge 1 was reasonable.
The circumstances relating to charge 2 are also addressed in the second affidavit of Mr Wall to the effect that VENM had been able to be brought onto the Site under MOD 2 and the requirement for doing so was altered in MOD 3 by requiring the approval of a waste management plan before VENM could be brought onto the Site. The VENM was to be used for rehabilitating the quarry in stages. Mr Wall understood that he was properly operating under MOD 2 so that he understood the importation of VENM was permissible at the time of the commission of the second offence, as identified in the environmental assessment accompanying the MOD 3 application. In the absence of cross-examination about his understanding being unreasonable I accept that explanation as the reason for the commission of charge 2.
Mr Wall’s evidence that during the offence periods the Defendant operated the quarry generally in accordance with the conditions of MOD 2, including with lower extraction limits, more restrictive transport hours, and paying a higher rate of contributions pursuant to s 7.11 of the EP&A Act than were required under MOD 3 was not subject to cross-examination and further underlines that both offences were committed unintentionally.
For charge 1 the Prosecutor accepted that the risk of sediment discharge was adequately managed meaning that no harm or likelihood of harm arose from that offence.
Similarly, for charge 2 no harm or likelihood of harm was submitted to arise by the Prosecutor.
Taking into account the above matters I find that the objective seriousness of charge 1 is at the low end of a low range of objective seriousness.
The objective seriousness of charge 2 is at the low to mid range of a low range of objective seriousness.
The Defendant made an application under ss 10(1)(a) and (b) of the CSP Act in relation to both offences.
Section 10 provides:
Part 2 Penalties that may be imposed
Division 3 Non-custodial alternatives
10 Dismissal of charges and conditional discharge of offender
(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders—
(a) an order directing that the relevant charge be dismissed,
(b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9),
(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.
(1A) A reference in any legislation (including this Act) to an order under this section includes, in the case of an order under subsection (1) (b), a reference to a conditional release order made under section 9 pursuant to that paragraph.
(2) An order referred to in subsection (1) (b) may be made if the court is satisfied—
(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or
(b) that it is expedient to discharge the person under a conditional release order.
…
(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.
The factors to consider in deciding whether to make an order under s 10(a) or (b) are identified in s 10(3). These are the person’s character, antecedents, age, health and mental condition, the trivial nature of the offence, extenuating circumstances in which an offence was committed, and any other matter that the court thinks it is proper to consider. The four factors in s 10(3) must be considered. It is not necessary for the sentencing judge to be satisfied of all of these before a court exercises its discretion to make an order, the factors being ‘disjunctive’ and ‘nonexhaustive’, R v Paris [2001] NSWCCA 83 at [42] (Simpson J, Wood CJ at CL and Ipp AJA agreeing).
In Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213 at [151] Spigelman CJ said:
The discretion conferred by s 10 is wide-ranging. There is no warrant for treating the scope and range of matters which it is proper for a sentencing judge to take into account in a narrow way. Nevertheless, it is a discretion which must be exercised judicially. The identification of relevant considerations turns on the scope and purpose of s 10.
The Defendant submitted that, if not trivial, charge 1 is of very low objective seriousness. It was the Defendant’s environmental consultants who amended the diagram depicting the general layout of the site appended to MOD 3 in such a manner that it rendered illegal what the Defendant had a reasonable belief was a continuing legal use. The Defendant accepted that less extenuating circumstances exist in relation to charge 2, as is the case.
In terms of character and antecedents, I find below in [56] that based on the evidence of Mr Mikosic the company is of good character. The Defendant emphasised that these are the first offences under the EP&A Act with which it has been charged.
While an application was made for the imposition of a conditional release order under s 10(1)(b) as an alternative, I am reluctant to consider its application for a company (accepted to be a person in the legal sense) noting that no case where this has occurred was provided by the Defendant. In Environment Protection Authority v Virotec International Ltd [2002] NSWLEC 110 at [36] Talbot J stated that it was (theoretically) ‘open for the Court to release the company on a good behaviour bond [former CRO] even though parts of ss 95 and 96 of the [CSP Act] [now partially contained in s 98] are referable only to non-corporate persons.’ No such order was made in that case. I consider such an order is more appropriately made in the case of an individual defendant, as appears to be usual practice.
Weighing up these various matters in the exercise of my discretion, I decline to make the s 10(1) orders sought in relation to either of the offences. While I have found the objective seriousness of both offences is low to very low the offences are not trivial. I do not consider the circumstances for either offence are extenuating. The conditions of development consent regulate this SSD, a large quarry, and that activity should be carried out with the necessary due diligence such a large operation entails.
I turn now to the subjective circumstances of the Defendant.
An early plea of guilty may entitle a defendant to a discount in penalty in the range of 10-25%, R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160] (Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) (Thomson). This range is intended to be a guide only. It does not create a presumption or entitlement to a particular discount in a given situation, R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283 at [44] (Johnson J, Simpson and Rothman JJ agreeing). A guilty plea has utilitarian value and that value is greater the earlier a plea is made, Thomson at [130]-[133] (Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ agreeing). The value of a guilty plea is reflected by the particular discount in the range of 10-25% that is given with earlier pleas receiving a greater discount, Thomson at [160] (Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ agreeing).
These proceedings were commenced on 13 December 2023. Initially four charges were brought against the Defendant. On 14 August 2024 two of the charges were withdrawn. The Prosecutor was given leave to amend the summons for charge 1. The amended summons was filed on 15 August 2024. Charge 1 was mentioned on 22 August 2024, 13 September 2024 and 27 September 2024. The Defendant pleaded guilty on 27 September 2024.
In relation to charge 2, there were court appearances on 17 May 2024, 14 August 2024, 22 August 2024 and 13 September 2024 following commencement of proceedings on 13 December 2023. The guilty plea was entered on the fifth court attendance on 27 September 2024. The Defendant submitted that an amended notice of the prosecution case under s 247E of the Criminal Procedure Act 1986 (NSW) was filed on 20 May 2024. It argued that the promptness of its guilty plea should be considered from 20 May 2024.
Given the history outlined above in [42], I accept a relatively prompt plea of guilty was entered in relation to charge 1 and will apply a substantial discount for the entry of the plea of guilty of 20%.
The history outlined above in [43] in relation to charge 2 shows a slightly greater delay in the entry of a plea and a discount of 15% will be applied.
203 … The actions underlying genuine contrition and remorse may take at least four forms.
…
204 First, the speed and efficiency of action to rectify any harm caused or likely to continue to be caused by the commission of the offence is the clearest indication of contrition and remorse. Where it occurs it justifies a reduction in the sentence: Mickelberg v The Queen (1984) 13 A Crim R 365 at 370; s 21A(3)(i) of the Crimes (Sentencing Procedure) Act and R v United Keno Hill Mines Ltd (1980) 10 CELR 43 at [24].
…
210 Secondly, voluntarily reporting the commission of the offence and any concomitant environmental harm to relevant authorities indicates a genuine desire to act responsibly. Environmental regulation depends upon the integrity of persons making full disclosure. Voluntarily reporting breaches should therefore be acknowledged as a mitigating circumstance by the courts in sentencing: R v United Keno Hill Mines Ltd at [24].
…
212 Thirdly, the taking of action to address the causes of the offence, such as designing and installing improved pollution prevention and control systems, also indicates a genuine desire to act responsibly: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority at 700-701; 38-39.
…
214 Fourthly, the personal appearance of corporate executives in court and their personal evidence outlining the company's genuine regret and stating future plans to avoid repetition of such offences is an indication of genuine corporate contrition: R v United Keno Hill Mines Ltd at [26]; Environment Protection Authority v Port Kembla Copper Pty Ltd [2001] NSWLEC 223 (28 September 2001) at [28]. See also Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719 (5 December 2005) at [186]-[187] and Environment Protection Authority v Ballina Shire Council (5 May 2006) at [115].
I will consider these four factors, noting that no environmental harm or likelihood of harm arises from the offences. For both charges, Mr Mikosic director of the Defendant expressed personal remorse in his affidavit dated 21 February 2024, also stating that he understood the offending conduct was unintentional and that the Defendant and Multiquip take their environmental responsibilities seriously. I accept that giving first hand evidence of an apology and attending the proceedings is one demonstration of contrition and remorse. One gap in the Defendant's evidence relevant to remorse for both offences, which the Prosecutor identified, is that there is no evidence of what the Defendant intends to do or has implemented already to avoid a similar failure to understand the effect of any applicable development consent conditions in the future.
In relation to charge 1 the Defendant submitted and I accept that it twice voluntarily self-reported the circumstances giving rise to the offence. The first notification was to Ms O’Reilly as outlined in paragraph 13 of Mr Wall’s second affidavit in [11] above, and as outlined in Mr Wall’s first affidavit summarised in [12] above, albeit that Mr Wall did not then appreciate that what was occurring was an offence. The second notification to the Prosecutor was on the advice of the Defendant’s environmental consultant as outlined in paragraph 21 of Mr Wall’s second affidavit in [11] above when a non-compliance report was provided to the Prosecutor in December 2021.
In terms of taking action to address the circumstances of the offence the Defendant also relied on the report of non-compliance submitted to the Prosecutor, which included a plan to remediate the areas on the Site where the activities giving rise to the first offence occurred. Such actions support the expression of remorse by Mr Mikosic in relation to charge 1.
The second affidavit of Mr Wall referred to the DCO the Defendant is currently subject to. This prevents it undertaking possible ameliorative action in relation to the silt and overburden management areas and active silt cells the subject of the first offence. Mr Wall stated that once the DCO is lifted the Defendant intends to use the material within these areas to backfill exhausted sections of the quarry in the approved final landform. The Prosecutor submitted that the expressions of remorse were not supported by actions taken to rehabilitate the areas the subject of the first offence and that the Defendant should have applied to have the DCO changed or removed to allow this to occur. That is a curious, if not unfair, submission in my view which is difficult to attribute weight to as a valid criticism of the Defendant. The Prosecutor also submitted that the Defendant could have applied to vary the development consent to enable changes which would facilitate ameliorative action, once again a criticism which is difficult to weigh up in this context.
In relation to charge 1, I accept that the Defendant has demonstrated genuine contrition and remorse through apologies proffered, the attendance of a director in court throughout the sentencing hearing, voluntary self-reporting of charge 1 and its proposed remediation of that area of the Site which is currently prevented by the Prosecutor’s DCO.
In Doan, Grove J, with whom Spigelman CJ and Kirby J agreed, observed that the fact that an offence could have been dealt with in a court with a lower jurisdictional limit is an available circumstance to be taken into account; the significance of the circumstance varies from case to case: at [42].
General deterrence is an important factor when imposing penalties for environmental offences, Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [139] (Preston CJ), Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 367 (Badgery-Parker J, Finlay J agreeing) (Axer). Nominal fines are insufficient for deterrence, Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68 at [159] (Pritchard J) citing Axer at 359 (Mahoney AJA), 367 (Badgery-Parker J, Finlay J agreeing), Camilleri at 701 (Kirby P, Campbell and James JJ agreeing).
The sentence should operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed, Plath v Fish (2010) 179 LGERA 386; [2010] NSWLEC 144 at [99] (Pain J) citing R v Rushby [1977] 1 NSWLR 594 at 597 (Street CJ for the Court).
Specific deterrence as referred to in Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 477 (Mason CJ, Brennan, Dawson and Toohey JJ) is relevant for a defendant who displays ‘uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law’.
The Prosecutor submitted that specific deterrence is relevant where a defendant continues in the same area of operation in which an incident has occurred as has been recognised in several cases in the Court. The Prosecutor also submitted that there is no evidence of steps taken to avoid similar offences. In light of all the circumstances specific deterrence has some relevance for the Defendant.
Retribution requires a sentence that denounces the conduct the subject of the offences to the limited extent necessary in these circumstances.
Although discretionary decision-making in sentencing can never be entirely uniform, consistency in sentencing requires a court to consider what has been done in like cases and why it was done with the aim that like cases will be treated alike and different cases differently, Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [18], [47] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) quoted in Baladjam v R (2018) 341 FLR 162; [2018] NSWCCA 304 at [150] (Bathurst CJ, Hoeben CJ at CL and Fagan J agreeing).
The Prosecutor referred to two cases but identified that there are few cases to refer to in considering consistency in sentencing. Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106 is a more objectively serious case than these two offences.
In Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154, interburden was placed on land outside the approved project boundary of a mine contrary to the conditions of development consent. In relation to objective seriousness the conduct offended against the statutory scheme and the objects of the EP&A Act. There was no evidence of environmental harm and no evidence as to why or how the offence came to be committed. The offence was of low objective seriousness. In relation to subjective circumstances there was an early plea of guilty, no prior record and demonstrated contrition and remorse. The Defendant was of good character and cooperated with the prosecutor. A fine of $82,500 was imposed (the then-maximum penalty was $1.1 million for a corporation). This case has some similarities to these offences.
The Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a ‘value judgment as to what is the appropriate sentence given all the factors of the case’, Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [26], the Court unanimously following Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J). The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant, see Veen v R (1979) 143 CLR 458; [1979] HCA 7 at 477, 490 (Jacobs J) and Veen (No 2) at 472-3 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-1 (Deane J). The sentence should not exceed what is ‘justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances’, Hoare v R (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ) citing Veen (No 2) at 472, 485-6, 490-1, 496 (Mason CJ, Brennan, Dawson and Toohey JJ).
In light of the objective seriousness of the offence and the subjective factors of the Defendant outlined above the penalty for charge 1 to be imposed is $70,000 reduced by 20% to reflect the early plea of guilty to $56,000.
Making some allowance for the totality of the seriousness of the offences, the penalty for charge 2 to be imposed is $50,000 reduced by 15% to $42,500.
84 Whether it is appropriate [to] impose a publication order in a sentence has been considered by this Court on a number of occasions. The principles to be derived from those authorities and the factors that have been considered in determining whether to make such an order can be summarised as follows:
(1) The Court has a wide discretion as to whether to impose a publication order and the POEO Act does not identify, in terms, the circumstances in which such an order should or should not be made: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [36];
(2) Publication orders assist in serving a deterrent purpose in environmental crimes: EPA v Waste Recycling Corporation (2006) 148 LGERA 299. Such a notice informs or reminds the public that such an offence exists, and may add some “sting” to the imposition of a fine. The objectives of general and specific deterrence are thus satisfied: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [163]. A publication order operates as a message to the community that a holder of an EPL is under a heightened responsibility to ensure that their operations are conducted in accordance with the conditions of such licence: Environment Protection Authority v Biosolids Management Pty Limited [2004] NSWLEC 90;
(3) Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma: Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 at [242];
(4) Because a publication order is made in addition to, rather than instead of, any penalty, it ought not be considered in determining the quantum of any monetary penalty to be imposed (Environment Protection Authority v Incitec Ltd; (2003) 131 LGERA 176 at [58]-[59]);
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(7) The circumstances of the case may dictate that the interests of justice and the purpose of the publication will not be served if publication is ordered such as: where the offence is a first offence and the harm and objective seriousness of the offence is low; where publication of the offence is likely to confuse or mislead the reader in light of the substance earlier Court ordered publication: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [41]; Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd [2007] NSWLEC 466 at [169];
(8) Such an order is no less appropriate because the offences have been found to be of a low level of objective seriousness: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [164].
The Court orders in proceedings no 2023/451490:
The Defendant is convicted.
The Defendant is to pay a fine of $56,000.
The Court orders in proceedings no 2023/451491:
The Defendant is convicted.
The Defendant is to pay the fine of $42,500.
In proceedings nos 2023/451490 and 2023/451491:
The Defendant is to pay the Prosecutor’s costs of $45,000.
Pursuant to s 122(2) of the Fines Act 1996 (NSW) a moiety of 50 percent of the fines in orders (2) and (4) above be paid to the Prosecutor.
Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), 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 these orders at a minimum of size 10 Arial font to be placed within the first 10 pages of the following publications:
(a) Daily Telegraph; (b) The Goulburn Post.
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Annexure A 2023-451490, 2023-451491 (99921, pdf)
Secretary, Department of Planning, Housing and Infrastructure
CEAL Limited
(1993) 113 LGERA 357
(2018) 341 FLR 162
(2006) 145 LGERA 234
(1993) 32 NSWLR 683
(2006) 148 LGERA 299
(2014) 86 NSWLR 422
(2010) 242 CLR 520
(1989) 167 CLR 348
(2005) 228 CLR 357
(2011) 244 CLR 120
(2010) 179 LGERA 386
(2000) 50 NSWLR 115
(2000) 49 NSWLR 383
(1999) 199 CLR 270
(2001) 52 NSWLR 60
(1988) 164 CLR 465
(1979) 143 CLR 458
(2009) 165 LGERA 289
(2006) 145 LGERA 189
(2003) 131 LGERA 176
While the Defendant relied on self-reporting of the second offence, the notification was in response to a regulatory notice to provide information from the Prosecutor and carries less weight in supporting an expression of remorse. Fewer actions taken by the Defendant support a finding of genuine contrition and remorse by the Defendant in relation to charge 2.