State Pollution Control Commission v CSR Ltd

SOLICITORS Stone Partners

JUDGMENT: IN THE LAND AND Matters Nos . 50060-65 of 1999 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 1 March 2000

The Defendant has pleaded guilty to six charges of an offence against the Environmental Offences and Penalties Act 1989 s 8D, by virtue of contraventions of conditions of licence held by the Defendant under the Pollution Control Act 1970, s 17D(9) of the latter Act providing that a contravention of a condition of a licence is an offence against the former Act.

The admitted offences were committed in sets of three offences on two separate occasions, namely:- (i) on 17 September 1998 and (ii) on 7 October 1998.

Summonses alleging the offences were filed in Court on 16 September 1999 at a time when the aforesaid Acts had been repealed by the Protection of the Environment Operations Act 1997 (Act No 156) s 324 (which Act came into force on 1 July 1999: vide Government Gazette No 178 of 24 December 1998).

The Protection of the Environment Operations Act 1997, s 326 enacts in Schedule 5 savings and transitional provisions which include cl 2 providing the power for Regulations to be made containing "provisions of a savings or transitional nature consequent upon the enactment of the Act" and cl 10 which is in the following terms:

10 . The regulations under this Schedule may extend Chapter 8 (with modifications if any) to proceedings in connection with any Act or regulation repealed by this Act (in respect of offences committed against the Act or regulation before its repeal or in respect of any other matter that continues to have any force or effect). Those regulations may also make provision for the continued operation of any such repealed Act or regulation to those proceedings. In this clause a reference to a repealed Act or regulation includes a reference to a repealed provision of an Act or regulation.

The following transitional provision is made in the Protection of the Environment Operations (Savings and Transitional) Regulation 1998:

17(1) Parts 8.2 and 8.4 of the Act extend (subject to this clause) to proceedings in connection with a repealed Act in respect of offences committed against a repealed Act or regulation under a repealed Act before its repeal or in respect of any related matter that continues to have force or effect. This subclause applies whether the proceedings were pending on the commencement of the Act or whether the proceedings are instituted after that commencement. (2) Parts 8.2 and 8.4 of the Act apply with such modifications as are necessary for the purposes of applying those Parts to any such proceedings. In particular, the following references in those Parts are to be read as follows: A. a reference to an offence arising under Part 5.2 is to be read as including a reference to a Tier 1 offence under the Environmental Offences and Penalties Act 1989 , B. a reference to a prescribed offence for the purposes of section 216 is to be read as including a reference to a prescribed offence within the meaning of section 12 of the Environmental Offences and Penalties Act 1989, C. a reference in section 218 to an authority or officer entitled to institute proceedings is to be read as including a reference to an authority or officer entitled under section 13 of the Environmental Offences and Penalties Act 1989 to institute the proceedings. I. The provisions of a repealed Act relating to the orders that a court may make when it finds an offence proved continue to have effect in respect of any such proceedings.

Part 8.2 of the Act contains a number of relevant provisions eg s 215 providing for proceedings for an offence to be dealt with summarily before this Court; s 216 prescribing the time within which such proceedings must be commenced; s 217 authorising the Environment Protection Authority (EPA) to institute such proceedings; and s 241 which provides as follows: 241. (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant.

It is to be noted that none of the savings or transitional provisions that I have referred to, actually preserves criminal liability created by any of the repealed Acts or authorises the institution of proceedings seeking to enforce such liability. Such preservation of liability and authorisation of such proceedings is to be found in the Interpretation Act 1987, s 30(1) which relevantly provides as follows: (1) The amendment or repeal of an Act or statutory rule does not:

……………. (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty,

and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.

Accordingly, the Interpretation Act s 30(1) applies in the present cases so as to (i) authorise the institution of the present proceedings (which were commenced after the Protection of the Environment Operations Act 1997 came into force); (ii) preserve liability incurred by the Defendant under the repealed Acts; and (iii) authorise the imposition of the penalty incurred under the repealed Acts. In the present case, the relevant maximum penalty is $125,000 in the case of an offence committed by a corporation against the Environmental Offences and Penalties Act , s 8D . (This compares with the prescribed maximum penalty of $250,000 for the counterpart offence created by the Protection of the Environment Operations Act , s 64 )

The Defendant has held a pollution control licence under the Pollution Control Act 1970 since 1983 in relation to its Milk Processing Factory, situate at Raleigh alongside the Bellinger River approximately 10 km from the mouth of the river.

That licence, which operates from year to year, and as in force on the dates of the admitted offences, permits the discharge into the Bellinger River via two specified discharge points designated 001 and 002 of certain volumes and concentrations of pollutants, namely wastes.

The discharge point relevant to the present offences is that designated 001 being the drain (adjacent to the truck washing bay) which permits a discharge of waste waters not exceeding 400 kilolitres on any day (Condition W1) being wastes that do not - (i.) cause more than 1000 milligrams per litre of biochemical oxygen demand (Condition W2.1); (ii.) contain more than 500 milligrams per litre of non-filtrable residue (Condition W2.2); (iii.) contain any grease or oil (Condition W2.3); and (iv.) have a pH value below 6.5 or greater than 8.5 pH units (Condition W2.4).

The Licence in force at the relevant time additionally imposed monitoring conditions upon the Licensee in respect of wastes discharged into the Bellinger River, namely - (i.) to record daily the volume in kilolitres of wastes discharged; and (ii.) to analyse daily, a representative sample of the wastes so discharged, for their biochemical oxygen demand, non filtrable residue, grease and oil and pH.

In March 1999, the EPA received at its Grafton Office a Certificate of Compliance prepared on behalf of the Licensee in respect of the year January 1998 to January 1999. Such information is required to be supplied to the EPA by condition S9 of the Licence as in force at the relevant times. The obligation so imposed upon the Licensee is to address (i) monitoring conditions and (ii) compliance with the conditions of licence. In respect of the latter obligation, condition s 9.1 (h) and (i) requires certification of the following: (h) whether every condition of this licence has been complied with; (i) if one or more conditions have not been complied with, in relation to each such condition: (i) the nature of the non-compliance; and (ii) the reasons for that non-compliance; and (iii) any action taken to prevent, control or mitigate the non-compliance; and (iv) any action that has been or will be taken to prevent a recurrence of the non-compliance.

In the Certificate of Compliance submitted to the EPA, the Licensee noted, inter alia, that there had been various non-compliances with respect to conditions relating to wastes discharged via the discharge point 001.

The reasons for non compliance were stated as follows:

The exceedances are the result of high levels of milk product in the waste stream and inadequate pH corrections.

In the section of the Certificate of Compliance dealing with " action taken to prevent the non-compliance or a recurrence of the non-compliance " the following is stated:

Inordinate milk losses incurred during initial operation of new processing equipment have been addressed and significantly reduced.

Ongoing review and improvement process in place to minimise milk losses and wastewater strengths.

Upon receipt of the Certificate of Compliance and accompanying data, Mr Richard Cummins, Senior Regional Operations Manager of the EPA, checked the Certificate and examined the accompanying data. He concluded that there had been multiple non-compliances with the licence conditions concerning waste water discharges via both authorised discharge points and the related monitoring requirements. In particular, he noted " multiple exceedances of BOD, NFR and pH limits for 17 September 1998 and 7 October 1998 ". (These exceedances form the basis of the present charges.)

On 2 June 1999, the EPA wrote to the Licensee advising that "a review of the monitoring data indicates numerous breaches of both the limit and monitoring conditions" relevant to both authorised discharge points.

The letter requested the Licensee to "provide a detailed explanation of the cause and remedial measures undertaken to rectify non-compliances with licence conditions, including the limits on the nature and characteristics of waste waters discharged via authorised discharge point 001".

On 25 June 1999, the Licensee's Engineering Manager, Mr Elvin Robb responded to the EPA's letter.

In respect of the exceedances of the condition limiting biochemical oxygen demand, Mr Robb stated:

The high number of BOD exceedances is a reflection of the changes made within the factory in 1998. Completely new milk processing and packaging was installed at the Raleigh factory throughout the year. The new packaging area became operational at the end of April with the processing equipment coming on line from mid August.

Examination of BOD data reveals real trends in relation to these dates. There was an increase in the frequency of exceedances from late April and a rapid decline in BOD standards from August.

This was as a result of installed equipment and systems not meeting our requirements for low milk wastage. Milk loss at the factory increased two to three fold in this period and was the subject of serious negotiations with the contractors responsible for the design/installation of the new processes.

Subsequent to the completion of their contract, modifications and additions have been made to the several systems to cut milk wastage and improve wastewater quality. This work was undertaken earlier this year and has resulted in a reduction in BOD levels in the initial months of the current licence period.

In respect of the exceedances of the condition limiting non-filtrable residues, Mr Robb stated:

On the 17 September and 7 October 1998 the samples tested at extreme levels. This is attributed to major quantities of milk or milk products being lost into the waste stream.

In respect of the exceedances of the condition limiting pH levels, Mr Robb stated:

pH correction of this discharge commenced in December, 1997. It continued during the licence period however the caustic dosing pump in use was not able to cope with the required flowrate to achieve licence conditions. This situation was not recognised and rectified until the data was assembled for the Certificate. A larger pump is now in service and a spare pump was recently purchased to cover the possibility of breakdowns.

Mr Robb's letter concluded with the following statements:

Clearly there has been deterioration in the standards achieved for both limit and monitoring condition compliance at Raleigh for this licence period. This has been caused by the distractions associated with the redevelopment activities at the site. Insufficient attention was paid to maintaining environmental performance while the upgrading works were in progress.

In addition, some of the systems installed over this period were not up to our expectations for wastage control. Improvements to such processes have taken place in the first few months of the current licence.

We propose to further discuss these results and the current situation with the EPA in our meeting at Raleigh on 1 July. Graphs of BOD levels since January 1997 will be provided so that trends can be examined.

The particular contraventions of the relevant licence conditions should now be noted.

On 17 September 1998, the analysed representative sample of wastes discharged via authorised discharge point 001 exceeded the stipulated limits for BOD, NFR and pH respectively as is shown in the following Table:

TABLE A Quality Permitted Limit Analysed Sample BOD 1000mg/L >3033 mg/L NFR 500 mg/L 909 mg/L 5.8 pH not less than 6.5 units

On 7 October 1998 , the analysed representative sample of wastes discharged via the authorised discharge point 001 exceeded the stipulated limit for BOD, NFR and pH respectively as is shown in the following Table:

TABLE B Quality Permissible Limit Analysed Sample BOD 1000 mg/L 2750 mg/L NFR 500 mg/L 610 mg/L 6.01 units pH not less than 6.5 units

Affidavit evidence of Mr Robb that was read (without objection and without any cross-examination) included the following explanations of the contraventions of the relevant Licence conditions: 18. The licence exceedances on 17 September 1998 were caused during the commissioning of new systems for milk product mixing/storage and product recovery. These systems feature automated technology which controls the flow to and from new vats, pipework, valves and pumps. Malfunctions in automatic sequences occurred which caused milk products to be discharged to the waste stream rather than transferred to appropriate storage vats. Design, installation and commissioning of the new equipment was the responsibility of the Joint Venture's contractor, Tetra Pak Engineering Pty Ltd. 19. The licence exceedences on 7 October 1998 were caused by ongoing problems with the new systems. Efforts to improve the operations and minimise product losses were continuing. Changes to the automation sequences were being made and commissioned. In addition, different products were being handled through these new systems and new problems were discovered. The result of such failures were increased volumes of milk products in the trade waste stream.

I do not think these explanations derogate from the earlier explanations (that I have referred to) proffered on behalf of the Licensee (i) in the Certificate of Compliance submitted to the EPA and in (ii) Mr Robb's letter in response to the EPA's letter seeking an explanation of the exceedances of the Licence conditions.

In particular, the explanations provided in Mr Robb's affidavit do not negate the admission made in Mr Robb's letter to the effect that the Defendant had given insufficient attention to maintaining environmental performance while involved in the significant upgrading of plant and equipment at the Raleigh Milk Processing Factory.

Mr Robb's affidavit also deposes to the Defendant's efforts and expenditure since 1989 in implementing programmes to eliminate waste water discharges into waterways from the three milk processing plants it conducts at Lismore, Casino and Raleigh respectively.

The Raleigh Factory which has the smallest milk throughout of all three factories, has been the last to be upgraded. In 1994, the Defendant made application to the Bellingen Shire Council to discharge trade waste into the Council's sewerage treatment system at nearby Uranga, but the application was refused.

In 1995, the Defendant introduced a trade waste treatment plant into the Raleigh Factory.

In the same year, the Defendant made a development application to the Bellingen Shire Council to spray irrigate to land the waste waters produced by the Raleigh Factory. The processing of this application has been very protracted and its determination by the Council is not expected until June 2000.

In all, the Defendant has expended some $525,000 on the pending development application and improvement works at the Raleigh Factory. Annual operating expenses of $250,000 are incurred in environmental management activities at the Raleigh Factory.

I interpose that Condition W7 of the Defendant's Licence required the contemplated spray irrigation system to be installed by 30 April 1998 in substitution for the permitted discharges of wastes from discharge point 001.

The parties have advanced divergent submissions on what should be the appropriate sentence for these admitted offences. However, there is no dispute that there should be a conviction of the Defendant in respect of each of the charges, notwithstanding relevant mitigating factors ie (i) this is the first occasion that the Defendant has been convicted of an environmental offence in respect of its conduct in the milk processing industry over many, many decades; (ii) the Defendant's early entry of pleas of guilty; (iii) the Defendant's co-operation with the Prosecutor in the detection and investigation of the offences (indeed the Defendant provided the EPA with all of the incriminating evidence and there was no observed pollution incident or pollution impact); (iv) the Defendant's contrition; and (v) the Defendant's attempts to obtain approval to spray irrigate waste waters rather than discharge them to the Bellinger River.

In my judgment, it is appropriate to convict the Defendant of each of the charges and I do so convict the Defendant of all the offences as charged.

The parties' submissions diverge, in respect of sentence, in two fundamental respects, namely: (i.) the proper assessment of the gravity of the offences and the Defendant's degree of culpability - should the offences be regarded as at the lower end of the spectrum of gravity for this particular offence, as contended by the Defendant, or at the mid-range, as contended by the Prosecutor? and (ii.) should each of the offences be regarded as discrete, as contended by the Prosecutor, or should the principle of totality be applied, as contended by the Defendant and if so, should the principle be applied by regarding all six offences as related or each set of three offences as related?

Although I shall presently come to consider the factors stipulated in the Protection of the Environment Operations Act s 241(1) (these replicate the factors previously contained in the Environmental Offences and Penalties Act s 9(1) which is the point of reference addressed by the parties in the present case), it is to be noted that those factors generally are directed to the issue of environmental harm, which is not an essential element of the offence created by the Environmental Offences and Penalties Act s 8D. The essential element of such offence is a contravention of a condition of a pollution control licence.

In respect of such an offence, the Court has long held the view that a contravention of a condition of licence involves a sense of breach of public trust: see State Pollution Control Commission v CSR Ltd (1989) 75 LGRA 1 and State Pollution Control Commission v Broken Hill Pty Co Ltd No 2 (1991) 74LGRA 358.

In the earlier case, Cripps CJ, in the context of sentencing a defendant, convicted of multiple offences involving (i) the pollution of waters; and (ii) related contraventions of licence conditions (by virtue of exceedances of limits imposed on the nature of waste waters permitted to be discharged to waters) considered the offence of pollution of waters to be the significant offence.

This does not mean, however, that penalties under the State Pollution Control Commission Act for breach of licence conditions should be nominal only (otherwise than in respect of different conditions of the licence). CSR Ltd was given a licence to pollute. Its licence was conditional upon it not polluting any more than permitted and maintaining certain standards to ensure that its limit was not exceeded. Its licence placed it in a special category over and above other persons and corporations and consequently imposed on it certain obligations. In effect, CSR was trusted so to conduct its operations that it would not pollute the water more than that for which permission was given.

More recently, Talbot J in Environment Protection Authority v ADI Ltd (1999) NSWLEC 14, a case involving the offence of polluting waters, has observed, in the context of rejecting a submission that some allowance should be accorded to the defendant because of the existence of a licence to pollute the waters:-

In the Court's opinion, the fact that the Company held a licence heightened its responsibility to keep the level of discharge from the premises within the parameters set by the licence.

I would regard this well established approach by the Court to sentencing for convictions of offences involving contravention of licence conditions to be a more relevant consideration in terms of the Protection of the Environment Operations Act s 241(2) , than are the considerations stipulated in s 241(1) concerning the issue of any environmental harm involved in the offence.

This is not to say that the considerations stipulated in s 241(1) are not relevant in the present case. Long before the enactment of the Environmental Offences and Penalties Act 1989 s 9, the Court, in sentencing for a conviction of an offence of contravening a licence condition would generally consider the question whether environmental harm had been occasioned. This approach is reflected in the two earlier decisions I have cited.

In the present cases both charges of exceedances of the BOD permissible limits were, in particular, considerable and those offences must be regarded as serious conformably to the established jurisprudence in this Court on sentencing for such an offence.

The fact that the maximum penalty for such an offence was increased in 1990 from $40,000 to $125,000 only serves to heighten the seriousness of such an offence that was recognised in the Court's earlier decisions, including the two I have cited.

In my opinion, the nature of the offences, particularly involving the exceedances of the BOD limits, should be regarded as mid-range offences, but the Defendant is entitled to a significant reduction in penalty on account of the mitigating circumstances that I have earlier mentioned.

Concerning the parties' competing submissions on the application of the totality principle, I think there is proper scope to apply that principle to each of the two sets of offences, ie the three offences committed on 17 September 1998 should be regarded as related, as should the three offences committed on 8 October 1998, since in each case it was the same sample of waste that was analysed and revealed the exceedances of the limits imposed by the licence condition on BOD, NFR and pH levels.

However, I do not think the totality principle should be applied to link the offences committed on 17 September 1998 with the offences committed on 8 October 1998. They were truly separate offences committed three weeks apart, even though they involved the same discharge point and the same premises from which the waste waters were discharged and even though the exceedances might be said to be for the same reasons, as explained by the Defendant in its advices to the EPA and in its evidence in these proceedings, that I have earlier summarised.

My approach of applying the totality principle to each of the two sets of offences is consistent with the approach taken by Cripps CJ in the CSR case.

I come finally to consider the factors stipulated in s 241(1).

Having regard to my conclusions in respect of s 241(2), these factors will operate by way of aggravation, if findings adverse to the Defendant are made. If no such findings are made, the effect of s 241(1) will not affect my conclusions based upon s 241(2).

Factors (a), (b), and (c) concern the issue of environmental harm. Affidavit evidence was given on this issue by two experts, Mr Coade, Senior Environmental Scientist in the employ of the EPA and Dr Eyre, a Consultant Biochemist called by the Defendant.

Mr Coade opined that the BOD load of the volumes of waste waters discharged on each of the two days upon which the offences were committed (195 kilolitres and 228 kilolitres respectively), if distributed evenly in the receiving waters, "would result in a measurable, but not excessive decline in dissolved oxygen concentrations" in the part of the Bellinger River so affected by those discharges. He opined that the dissolved oxygen concentrations "would most not likely remain greater than 80 per cent of saturation, the minimum guideline value specified in the Australian Water Quality Guidelines for Fresh and Marine Waters".

However, Mr Coade expressed "more concern" at the possibility if the organic load was not evenly distributed, "but instead concentrates near the bottom of the deeper parts of the estuary". In this respect, he noted the existence of a deep hole (10 m deep) about 2 km downstream the discharge point and cited 1983-84 EPA unpublished recordings of dissolved oxygen levels down to 50 per cent of saturation.

He expressed the belief that the organic loads created by the discharges of the waters on the two separate days that the offences were committed "could have posed a real threat to parts of the aquatic ecosystem" (namely organisms living in the sediment of the waters of the deep hole).

In respect of the exceedances of the NFR and pH limits, Mr Coade opined that their impact would be experienced locally near the discharge point by decreasing water clarity and creating a chemical environment unsuited for some organisms.

However, he was of the opinion that the effect of dilution would rapidly ameliorate these impacts.

Dr Eyre's opposing opinion was that "the effect on the Bellinger Estuary of the discharges… would have been minimal, and most likely to have caused less change to the dissolved oxygen concentrations in the river than the typical daily variability caused by all other factors" (operating in the river system).

Dr Eyre's opinions concerning the impact of BOD in the discharged waste waters were based upon "a simple salt-balance model" which he considered to be a more accurate approach than that adopted by Mr Coade "because it includes the effects of both the river flow (freshwater) and the tidal flow (seawater) on the mixing of the BOD discharge".

Dr Eyre estimated that the effect of the BOD levels of the wastes discharged by the Defendant "would have been less than the typical natural daily variability in dissolved oxygen concentrations in northern NSW estuaries".

Concerning Mr Coade's opinions on the effect of the discharges on the deep hole, situate 2 km downstream the discharge point, Dr Eyre pointed out that there was no data to support Mr Coade's conclusion. Indeed, his own 1996 studies had revealed no oxygen stratification and no oxygen deficits in the deep hole such as had apparently been revealed in the much earlier data (ie 1983/4) relied upon by Mr Coade.

Concerning the issues of environmental harm raised by s 241(1) (a), (b), and (c), it must be borne in mind that it is for the Prosecutor to establish the relevant facts upon the criminal standard of proof. The High Court of Australia in R v Olbrich (1999) 166 ALR 330 has recently adopted the following statement from the majority judgment of the Victorian Court of Appeal in R v Storey (1998) 1 VR 359 at 369:

….a sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if these circumstances are proved on the balance of probabilities

On the evidence, I have not been satisfied beyond reasonable doubt that environmental harm (other than minimal harm) was caused or likely to be caused by the discharges of wastes on the days in question.

The experts were not cross- examined and if the matter were to be resolved on the basis of preferring the opinion of one expert against the other, I would, in this case, prefer the evidence of Dr Eyre. At the very least, his opinions create sufficient doubt to preclude a finding in favour of the Prosecution.

Concerning the remaining factors (d) and (e) stipulated in s 241(1), I am satisfied that the Defendant had relevant control over the causes that gave rise to the commission of the offences, even though it was the Defendant's contractor, Tetra Pak Engineering Ltd that was responsible for the design, installation and commissioning of the new equipment in the Raleigh Milk Factory: see par 18 of Mr Robb's affidavit.

For all the foregoing reasons, I have concluded that the Defendant ought be convicted of all offences as charged and that the appropriate sentence in the case of each offence is to impose a global fine of $30,000 in respect of each of the two sets of offences (reflecting the application of the totality principle in each case) to be applied in each case as follows - (i.) $20,000 for each offence involving exceedance of the BOD limit (ii.) $5,000 for each offence involving exceedance of the NFR limit; and (iii.) $5,000 for each offence involving exceedance of the pH limit.

These penalties have been significantly reduced (by some $20,000 in each of the two sets of offences where I would otherwise have imposed a penalty of $50,000 in each case) to reflect the mitigating factors that I have earlier recited which operate in favour of the Defendant.

The Defendant has agreed to pay the Prosecutor's legal costs in the sum of $7,000 which I regard as reasonable.

Accordingly, I make the following orders:-

1. The Defendant is convicted of all offences as charged. 2 In respect of the convictions in proceedings Nos 50061 of 1999 and 50062 of 1999, a penalty of $20,000 is imposed in respect of each of the two convictions.
2. In respect of the convictions in proceedings nos 50060 of 1999, 50063 of 1999, 50064 of 1999 and 50065 of 1999, a penalty of $5,000 is imposed in respect of each of the four convictions.
3. The Defendant pay the Prosecutor's costs in the agreed sum of $7,000.
4. The exhibit to remain on the Court file.

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.

51. However, I do not think the totality principle should be applied to link the offences committed on 17 September 1998 with the offences committed on 8 October 1998. They were truly separate offences committed three weeks apart, even though they involved the same discharge point and the same premises from which the waste waters were discharged and even though the exceedances might be said to be for the same reasons, as explained by the Defendant in its advices to the EPA and in its evidence in these proceedings, that I have earlier summarised.

52. My approach of applying the totality principle to each of the two sets of offences is consistent with the approach taken by Cripps CJ in the CSR case.

53. I come finally to consider the factors stipulated in s 241(1).

54. Having regard to my conclusions in respect of s 241(2), these factors will operate by way of aggravation, if findings adverse to the Defendant are made. If no such findings are made, the effect of s 241(1) will not affect my conclusions based upon s 241(2).

55. Factors (a), (b), and (c) concern the issue of environmental harm. Affidavit evidence was given on this issue by two experts, Mr Coade, Senior Environmental Scientist in the employ of the EPA and Dr Eyre, a Consultant Biochemist called by the Defendant.

56. Mr Coade opined that the BOD load of the volumes of waste waters discharged on each of the two days upon which the offences were committed (195 kilolitres and 228 kilolitres respectively), if distributed evenly in the receiving waters, "would result in a measurable, but not excessive decline in dissolved oxygen concentrations" in the part of the Bellinger River so affected by those discharges. He opined that the dissolved oxygen concentrations "would most not likely remain greater than 80 per cent of saturation, the minimum guideline value specified in the Australian Water Quality Guidelines for Fresh and Marine Waters".

57. However, Mr Coade expressed "more concern" at the possibility if the organic load was not evenly distributed, "but instead concentrates near the bottom of the deeper parts of the estuary". In this respect, he noted the existence of a deep hole (10 m deep) about 2 km downstream the discharge point and cited 1983-84 EPA unpublished recordings of dissolved oxygen levels down to 50 per cent of saturation.

58. He expressed the belief that the organic loads created by the discharges of the waters on the two separate days that the offences were committed "could have posed a real threat to parts of the aquatic ecosystem" (namely organisms living in the sediment of the waters of the deep hole).

59. In respect of the exceedances of the NFR and pH limits, Mr Coade opined that their impact would be experienced locally near the discharge point by decreasing water clarity and creating a chemical environment unsuited for some organisms.

60. However, he was of the opinion that the effect of dilution would rapidly ameliorate these impacts.

61. Dr Eyre's opposing opinion was that "the effect on the Bellinger Estuary of the discharges... would have been minimal, and most likely to have caused less change to the dissolved oxygen concentrations in the river than the typical daily variability caused by all other factors" (operating in the river system).

62. Dr Eyre's opinions concerning the impact of BOD in the discharged waste waters were based upon "a simple salt-balance model" which he considered to be a more accurate approach than that adopted by Mr Coade "because it includes the effects of both the river flow (freshwater) and the tidal flow (seawater) on the mixing of the BOD discharge".

63. Dr Eyre estimated that the effect of the BOD levels of the wastes discharged by the Defendant "would have been less than the typical natural daily variability in dissolved oxygen concentrations in northern NSW estuaries".

64. Concerning Mr Coade's opinions on the effect of the discharges on the deep hole, situate 2 km downstream the discharge point, Dr Eyre pointed out that there was no data to support Mr Coade's conclusion. Indeed, his own 1996 studies had revealed no oxygen stratification and no oxygen deficits in the deep hole such as had apparently been revealed in the much earlier data (ie 1983/4) relied upon by Mr Coade.

65. Concerning the issues of environmental harm raised by s 241(1) (a), (b), and (c), it must be borne in mind that it is for the Prosecutor to establish the relevant facts upon the criminal standard of proof. The High Court of Australia in R v Olbrich [1999] HCA 54; (1999) 166 ALR 330 has recently adopted the following statement from the majority judgment of the Victorian Court of Appeal in R v Storey (1998) 1 VR 359 at 369:

....a sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if these circumstances are proved on the balance of probabilities

66. On the evidence, I have not been satisfied beyond reasonable doubt that environmental harm (other than minimal harm) was caused or likely to be caused by the discharges of wastes on the days in question.

67. The experts were not cross- examined and if the matter were to be resolved on the basis of preferring the opinion of one expert against the other, I would, in this case, prefer the evidence of Dr Eyre. At the very least, his opinions create sufficient doubt to preclude a finding in favour of the Prosecution.

68. Concerning the remaining factors (d) and (e) stipulated in s 241(1), I am satisfied that the Defendant had relevant control over the causes that gave rise to the commission of the offences, even though it was the Defendant's contractor, Tetra Pak Engineering Ltd that was responsible for the design, installation and commissioning of the new equipment in the Raleigh Milk Factory: see par 18 of Mr Robb's affidavit.

69. For all the foregoing reasons, I have concluded that the Defendant ought be convicted of all offences as charged and that the appropriate sentence in the case of each offence is to impose a global fine of $30,000 in respect of each of the two sets of offences (reflecting the application of the totality principle in each case) to be applied in each case as follows--

(i.) $20,000 for each offence involving exceedance of the BOD limit

(ii.) $5,000 for each offence involving exceedance of the NFR limit; and

(iii.) $5,000 for each offence involving exceedance of the pH limit.

70. These penalties have been significantly reduced (by some $20,000 in each of the two sets of offences where I would otherwise have imposed a penalty of $50,000 in each case) to reflect the mitigating factors that I have earlier recited which operate in favour of the Defendant.

71. The Defendant has agreed to pay the Prosecutor's legal costs in the sum of $7,000 which I regard as reasonable.

1. The Defendant is convicted of all offences as charged.

2 In respect of the convictions in proceedings Nos 50061 of 1999 and 50062 of 1999, a penalty of $20,000 is imposed in respect of each of the two convictions.

3. In respect of the convictions in proceedings nos 50060 of 1999, 50063 of 1999, 50064 of 1999 and 50065 of 1999, a penalty of $5,000 is imposed in respect of each of the four convictions.

4. The Defendant pay the Prosecutor's costs in the agreed sum of $7,000.