NSWNSWLEC

Stephen James Orr v Narrabri Coal Operations Pty Ltd; Stephen James Orr v Narrabri Coal Pty Ltd

[2021] NSWLEC 85

Land and Environment Court (NSW)|2021-07-13|Before: Pepper J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-07-13

Before

Pepper J

Catchwords

Zirilla v The Queen [2014] HCA 2
(2014) 253 CLR 58 Bentley v BGP Properties Pty Limited [2006] NSWLEC 34
(2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280
(2014) 206 LGERA 239 Environment Protection Authority v P&M Quality Small Goods Pty Ltd

Source

Original judgment source is linked above.

Catchwords

Zirilla v The Queen [2014] HCA 2(2014) 253 CLR 58 Bentley v BGP Properties Pty Limited [2006] NSWLEC 34(2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280(2014) 206 LGERA 239 Environment Protection Authority v P&M Quality Small Goods Pty Ltd(2006) 148 LGERA 299 Environment Protection Authority v Whitehaven Coal Mining Ltd [2019] NSWLEC 27(2006) 145 LGERA 189 Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144(2010) 179 LGERA 386 Gore v The Queen [2010] NSWCCA 330208 A Crim R 353 Harris v Harrison [2014] NSWCCA 84(2014) 86 NSWLR 422 Hili v RJones v R [2010] HCA 45(2010) 242 CLR 520 Hoare v The Queen [1989] HCA 33(1989) 167 CLR 348 Johnson v The Queen [2004] HCA 15(2004) 78 ALJR 616 Liverpool City Council v Leppington Pastoral Co Pty [2010] NSWLEC 170 Markarian v The Queen [2005] HCA 25(2005) 228 CLR 357 Mill v The Queen [1988] HCA 70(1988) 166 CLR 59 Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147

Judgment (55 paragraphs)

[1]

vironment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 Environment Protection Authority v P&M Quality Small Goods Pty Ltd; Environment Protection Authority v JBS Australia Pty Limited [2017] NSWLEC 89 Environment Protection Authority v Rands [2019] NSWLEC 23 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Environment Protection Authority v Whitehaven Coal Mining Ltd [2019] NSWLEC 27; (2019) 239 LGERA 31 Environmental Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 Environmental Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 Gore v The Queen [2010] NSWCCA 330; 208 A Crim R 353 Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Liverpool City Council v Leppington Pastoral Co Pty [2010] NSWLEC 170 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 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 Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Pesic v Sutherland Shire Council [2019] NSWLEC 38 Pham v R [2015] HCA 39; (2015) 256 CLR 550 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Plath v Vaccount Pty Ltd [2011] NSWLEC 202 R v Crombie [1999] NSWCCA 297 R v Doan [2000] NSWCCA 317; 50 NSWLR 115 R v Dodd (1991) 57 A Crim R 349 R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Nichols (1991) 57 A Crim R 391 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 R v Wheeler [2000] NSWCCA 34 R v Wickham [2004] NSWCCA 193 Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154 Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26 Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125; (2020) 245 LGERA 241 Secretary, Department of Planning and Environment v AGL Energy Ltd; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 Category: Sentence Parties: Stephen James Orr (Prosecutor) Narrabri Coal Operations Pty Ltd (Defendant) Narrabri Coal Pty Ltd (Defendant) Representation: Counsel: P English (Prosecutor) T Howard SC (Defendant)

[2]

Solicitors: Hunt & Hunt Lawyers (Prosecutor) Ashurst (Defendant) File Number(s): 2020/232873, 2020/232874, 2020/232875, 2020/232876, 2020/232877, 2020/232878, 2020/232879, 2020/232880, 2020/232881, 2020/232882, 2020/232883, 2020/232884, 2020/232885, 2020/232886, 2020/232887, 2020/232888, 2020/281850, 2020/281851, and 2020/281874 Publication restriction: Nil

[3]

TABLE OF CONTENTS Narrabri Coal and Narrabri Coal Operations Contravene the Mining Act 1992 [1] Unlawful Construction of Access Tracks (Charges 1 to 3) [6] Unlawful Drilling or Rehabilitation of Boreholes (Charges 4 to 8) [10] Failure to Adequately Rehabilitate a Borehole (Charge 9) [16] Failure to Prepare a Site Rehabilitation Plan (Charge 10) [17] Legislative Framework [19] The Mining Project [24] The Investigation by the Regulator [56] Enforcement Action [65] Contraventions [72] Contraventions of the 2016 and 2018 Activity Approvals [72] Contravention of the Commitment to Prepare a Site Rehabilitation Plan [82] The Contravention of the ML [87] Drone Footage [92] Causes of the Commission of the Offences the Subject of Charges 1 to 3 [94] The Humphris Affidavit [96] Sentencing Principles [113] The Purposes of Sentencing [113] Statutory Matters Required to be Taken into Account in Sentencing [114] Objective Seriousness of the Offences [119] Nature of the Offences [121] Maximum Penalty [127] The Environmental Harm Caused or Likely to be Caused by the Commission of the Offences [130] The Peake Reports [133] Driscoll Report [143] Findings on Environmental Harm [152] Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences [165] State of Mind of the Defendants at the Time of the Commission of the Offences [170] Reasons for Committing the Offences [186] Control Over the Causes of the Commission of the Offences [188] Practical Measures Which May be Taken to Avoid the Harm [191] Conclusion on the Objective Seriousness of the Offences [193] The Defendants' Subjective Circumstances [197] Whether the Harm to the Environment Was Substantial [199] The Offences Were Not Committed for Financial Gain [200] Prior Convictions [201] Early Pleas of Guilty [202] Assistance Provided to Authorities [204] Contrition and Remorse [210] Likelihood of Reoffending and Prospects of Rehabilitation [215] Evidence of NC and NCO's Good Corporate Character [216] Whether the Offences Could Have Been Prosecuted in the Local Court [220] General and Specific Deterrence [223] Retribution and Denunciation [228] Consistency in Sentencing [229] Totality Principle [235] Financial Means [239] Costs [240] Moiety [247] Publication Order [253] Appropriate Sentence [261] Orders [265]

[4]

Narrabri Coal and Narrabri Coal Operations Contravene the Mining Act 1992

Narrabri Coal Pty Ltd ("NC") and Narrabri Coal Operations Pty Ltd ("NCO") (together, "the defendants") have pleaded guilty to 19 offences of contravening s 378D of the Mining Act 1992 ("Mining Act"). The offences arose with respect to works undertaken at Narrabri Coal Mine ("the mine"), an underground coal mine located approximately 30 km southeast of Narrabri in New South Wales. The works comprise the unlawful construction of access tracks, the unlawful drilling and rehabilitation of boreholes, and the failure to prepare a site rehabilitation plan.
Liability in respect of the charges against NC arises under s 378D of the Mining Act on the basis that NC was the holder of exploration licence 6243 ("the EL") and mining lease 1609 ("the ML"), and contravened various conditions of those authorisations.
NCO is charged with contravening s 378EA of the Mining Act on the basis that it caused or permitted NC's contraventions. By doing so, NCO is also taken to have committed the offences in contravention of s 378D of the Mining Act.
This judgment concerns the appropriate sentence to be imposed on the defendants for the commission of the offences.
The various charges against NC and NCO are summarised below.

[5]

Unlawful Construction of Access Tracks (Charges 1 to 3)

Charges 2020/232881 (against NC) and 2020/232873 (against NCO) (together, "charge 1") relate to the unauthorised construction of an access track between drill pad sites E318 and E319. The summons in 2020/232881 is in the following terms: The Prosecutor claims: 1 An order that the Defendant, Narrabri Coal Pty Ltd (ACN 107 813 963), appear before a Judge of the Court to answer the charge that between 4-12 April 2019, on land within Exploration Licence 6243 approximately 30km southeast of Narrabri in the State of New South Wales (EL 6243), it committed an offence against section 378D of the Mining Act 1992 (NSW) (Act), in that it was the holder of an authorisation, a condition of which was contravened by a person. Particulars a. Authorisation EL 6243 - Activity Approval of Assessable Prospecting Operations for the Narrabri South Exploration Program (2018-2019), granted 15 November 2018 pursuant to section 23A of the Act (DOC18/808193). b. Licence condition contravened The Final Review of Environmental Factors version 7 dated 12 October 2018 (DOC18/778339) (the 2018 REF), required access tracks to be constructed in accordance with Figure 2: Narrabri South Exploration REF - Site plan (pg 8) and that "no access track be constructed between drill sites E318 and E319 to avoid disturbance to the drainage lines present in this area" (pg 36). c. Person who contravened the Licence condition i. The Defendant appointed Narrabri Coal Operations Pty Ltd (ACN 129 850 139) (NCO) on or about 28 March 2008 as their agent to have possession and control of EL 6243, including granting NCO with all such powers, functions and authority as is necessary to perform the obligations imposed on or with respect to EL 6243. ii. NCO's contractors, employees or persons associated with NCO in its capacity as agent for the Defendant, contravened the condition. iii. NCO was responsible for providing information, training, instruction and supervision of personnel who contravened the condition. d. Manner of breach Access tracks were constructed other than in accordance with the 2018 REF Figure 2: Narrabri South Exploration REF - Site plan, namely, an access track was constructed between drill sites E318 and E319, crossing the drainage lines present in this area, in circumstances where NCO was required to amend the previous REF DOC18/462350 submitted 6/7/18 to remove the proposed access track between drill site pads E318 and E319. 2 An order under s 246(1)(a) of the Criminal Procedure Act 1986 for the attendance of the Defendant before the Court to answer the above offence. 3 That the Defendant be dealt with according to law for the commission of the above offence. 4 An order that the Defendant pay the Prosecutor's costs. 5 An order pursuant to section 378ZD of the Act that the Defendant pay an amount representing the monetary benefit acquired by the Defendant, or accrued or accruing to the Defendant, as a result of the commission of the offence set out in [1] above. 6 Such orders pursuant to section 378ZE of the Act as the Court sees fit. 7 Such other orders as the Court in its discretion sees fit to make.

[6]

Unlawful Drilling or Rehabilitation of Boreholes (Charges 4 to 8)

Charges 2020/232884 (against NC) and 2020/232876 (against NCO) (together, "charge 4") relate to the unauthorised drilling of exploration boreholes. The summons in 2020/232884 is, for example, as follows: The Prosecutor claims: 1 An order that the Defendant, Narrabri Coal Pty Ltd (ACN 107 813 963), appear before a Judge of the Court to answer the charge that between 15 April 2019 and 6 May 2019, on land within Exploration Licence 6243 approximately 30km southeast of Narrabri in the State of New South Wales (EL 6243), it committed an offence against section 378D of the Mining Act 1992 (NSW) (Act), in that it was the holder of an authorisation, a condition of which was contravened by a person. Particulars a. Authorisation EL 6243 - Activity Approval of Assessable Prospecting Operations and Amendment of Licence Conditions for the Narrabri South Exploration Program, granted 19 September 2016 pursuant to section 23A of the Act (OUT16/28189). b. Licence condition contravened The Review of Environmental Factors (Reference INW16/47465) dated 13 September 2016 (the 2016 REF) authorised the drilling of 41 exploration boreholes at the site locations identified in Table 1: Drill Site Locations (p6). The 2016 REF authorised one exploration borehole to be drilled at the site known as E259 (located at E773664 and N6611901). c. Person who contravened the Licence condition i. The Defendant appointed Narrabri Coal Operations Pty Ltd (ACN 129 850 139) (NCO) on or about 28 March 2008 as their agent to have possession and control of EL 6243, including granting NCO with all such powers, functions and authority as is necessary to perform the obligations imposed on or with respect to EL 6243. ii. NCO's contractors, employees or persons associated with NCO in its capacity as agent for the Defendant, contravened the condition. iii. NCO was responsible for providing information, training, instruction and supervision of personnel who contravened the condition. d. Manner of breach i. Drilling of an exploration borehole NC735C (at E773680 and N6611908) on the drill pad site known as E259 commenced on 19 March 2019 and was completed on 22 March 2018; ii. Drilling of a second exploration borehole NC817L (at E773682 and N6611904) on the drill pad site known as E259 commenced on 15 April 2019 and was completed on 6 May 2019. 2 An order under s 246(1)(a) of the Criminal Procedure Act 1986 for the attendance of the Defendant before the Court to answer the above offence. 3 That the Defendant be dealt with according to law for the commission of the above offence. 4 An order that the Defendant pay the Prosecutor's costs. 5 An order pursuant to section 378ZD of the Act that the Defendant pay an amount representing the monetary benefit acquired by the Defendant, or accrued or accruing to the Defendant, as a result of the commission of the offence set out in [1] above. 6 Such orders pursuant to section 378ZE of the Act as the Court sees fit. 7 Such other orders as the Court in its discretion sees fit to make.

[7]

Failure to Adequately Rehabilitate a Borehole (Charge 9)

The summons in proceeding 2020/281851 concerns the failure of NC to adequately rehabilitate a borehole. The summons charges NC as follows ("charge 9"): The Prosecutor claims: 1 An order that the Defendant, Narrabri Coal Pty Ltd (ACN 107 813 963), appear before a Judge of the Court to answer the charge that between about 22 February 2015 to 24 May 2018, on land within Mining Lease 1609 approximately 30km southeast of Narrabri in the State of New South Wales, it committed an offence against section 378D of the Mining Act 1992 (NSW) (Act), in that it was the holder of an authorisation, a condition of which was contravened by a person. Particulars a. Authorisation Deed of Mining Lease No 1609 made 18 January 2008, between the Minister for Mineral Resources NSW and the Defendant (ML1609). b. Condition contravened ML1609 Condition 17(2)(f) required that once any exploratory drill hole ceases to be used, the hole must be sealed in accordance with departmental guidelines. During 22 February 2015 to 24 May 2018, the relevant guidelines were: a. Borehole sealing requirements on land: Coal exploration (EDG01) (2012); b. Guideline for mineral exploration drilling; drilling and integrity of petroleum exploration and production wells (DRE, 2016). c. Person who contravened the Condition i. The Defendant appointed Narrabri Coal Operations Pty Ltd (ACN 129 850 139) (NCO) on or about 28 March 2008 as their agent to have possession and control of ML1609, including granting NCO with all such powers, functions and authority as is necessary to perform the obligations imposed on or with respect to ML1609. ii. NCO's contractors, employees or persons associated with NCO in its capacity as agent for the Defendant, contravened the condition. iii. NCO was responsible for providing information, training, instruction and supervision of personnel who contravened the condition. d. Manner of breach i. Drilling of an exploration borehole NC619C (at E772392 and N6620647) under ML1609 commenced on or about 16 February 2015 and was completed on or about 22 February 2016. ii. An audit conducted by the Department on 24 May 2018 identified that NC619C was inactive and left open, covered by a green bucket with a rock placed on top of it. iii. NC619C was not sealed in accordance with departmental guidelines which required: (a) A suitable casing cap or bridge over the top of the borehole (EDG01); and/or (b) Securing of the borehole to prevent leakage of fluids or gas to the surface, and prevent the unauthorised or inadvertent access by people, livestock and wildlife (DRE, 2016). 2 An order under s 246(1)(a) of the Criminal Procedure Act 1986 for the attendance of the Defendant before the Court to answer the above offence. 3 That the Defendant be dealt with according to law for the commission of the above offence. 4 An order that the Defendant pay the Prosecutor's costs. 5 An order pursuant to section 378ZD of the Act that the Defendant pay an amount representing the monetary benefit acquired by the Defendant, or accrued or accruing to the Defendant, as a result of the commission of the offence set out in [1] above. 6 Such orders pursuant to section 378ZE of the Act as the Court sees fit. 7 Such other orders as the Court in its discretion sees fit to make.

[8]

Failure to Prepare a Site Rehabilitation Plan (Charge 10)

The summons in 2020/281850 charges NC with a failure to prepare, as required, a site rehabilitation plan. The summons states as follows ("charge 10"): The Prosecutor claims: 1 An order that the Defendant, Narrabri Coal Pty Ltd (ACN 107 813 963), appear before a Judge of the Court to answer the charge that between about 16 January 2019 and 9 September 2019, on land within Exploration Licence 6243 approximately 30km southeast of Narrabri in the State of New South Wales (EL 6243), it committed an offence against section 378D of the Mining Act 1992 (NSW) (Act), in that it was the holder of an authorisation, a condition of which was contravened by a person. Particulars a. Authorisation EL 6243 - Activity Approval of Assessable Prospecting Operations for the Narrabri South Exploration Program (2018-2019), granted 15 November 2018 pursuant to section 23A of the Act (DOC18/808193). b. Licence condition contravened The Final Review of Environmental Factors version 7 dated 12 October 2018 (DOC18/778339) (the 2018 REF), Statement of Commitments required that Defendant prepare a site rehabilitation plan for the impacted areas of EL 6243 (2018 REF pg 79). c. Person who contravened the Licence condition i. The Defendant appointed Narrabri Coal Operations Pty Ltd (ACN 129 850 139) (NCO) on or about 28 March 2008 as their agent to have possession and control of EL 6243, including granting NCO with all such powers, functions and authority as is necessary to perform the obligations imposed on or with respect to EL 6243. ii. NCO's contractors, employees or persons associated with NCO in its capacity as agent for the Defendant, contravened the condition. iii. NCO was responsible for providing information, training, instruction and supervision of personnel who contravened the condition. d. Manner of breach i. EL 6243 was approved on 15 November 2018. ii. Activities under EL 6243 commenced by at least 16 January 2019: (a) Drilling of borehole E327 (at E775361 and N6615354) commenced on or about 16 January 2019 and was completed on or about 22 January 2019; (b) Drilling of borehole E329 (at E775333 and N6614815) commenced on or about 12 February 2019 and was completed on or about 14 February 2019; (c) Construction of tracks between drill sites E318 and E319 took place on or about 12-14 April 2019; (d) Construction of a track to drill site E307 took place on or about 12-14 April 2019; (e) Construction of a track to drill site E309 took place on or about 16-19 April 2019; (f) Drilling of borehole E321 (at E772633 and N6610581) commenced on or about 1 May 2019 and was completed on or about 13 May 2019. iii. On 5 March 2019, the Resources Regulator conducted an audit report of EL 6243 and found no evidence that a site rehabilitation plan had been prepared by NCO. A draft report issued by the Resources Regulator on 9 April 2019 recorded the same. iv. In response to the draft audit report dated 9 April 2019, NCO committed to providing a site rehabilitation plan by no later than 31 May 2019. v. A rehabilitation management plan was not submitted to the Resources Regulator by NCO until on or about 9 September 2019 (being a plan prepared by Eco Logical Australia dated 29 August 2019). 2 An order under s 246(1)(a) of the Criminal Procedure Act 1986 for the attendance of the Defendant before the Court to answer the above offence. 3 That the Defendant be dealt with according to law for the commission of the above offence. 4 An order that the Defendant pay the Prosecutor's costs. 5 An order pursuant to section 378ZD of the Act that the Defendant pay an amount representing the monetary benefit acquired by the Defendant, or accrued or accruing to the Defendant, as a result of the commission of the offence set out in [1] above. 6 Such orders pursuant to section 378ZE of the Act as the Court sees fit. 7 Such other orders as the Court in its discretion sees fit to make.

[9]

Legislative Framework

Section 5 of the Mining Act relevantly provides: 5 Mining or prospecting without authorisation A person must not prospect for or mine any mineral except in accordance with an authorisation that is in force in respect of that mineral and the land where the prospecting or mining is carried on.
Section 23A of the Mining Act was inserted into that Act on 1 March 2016 by the Mining and Petroleum Legislation Amendment (Harmonisation) Act 2015 and relevantly states: 23A Activity approval required for assessable prospecting operations (1) An exploration licence is subject to a statutory condition that the holder of the licence must not carry out an assessable prospecting operation on land over which the licence is granted unless an activity approval has been obtained for the carrying out of the assessable prospecting operation in relation to that land and is in force. … (7) For the purposes of this Act, it is a statutory condition of an exploration licence that the holder must comply with any activity approval granted to the holder and in force.
Section 378D(1) of the Mining Act provides that: 378D Contravention of condition of authorisation-offence by holder (1) If a condition of an authorisation is contravened by any person, each holder of the authorisation is guilty of an offence.
And s 378EA of the Mining Act is in the following terms: 378EA Aiding and abetting commission of offence A person who - (a) causes or permits the commission of an offence against this Act or the regulations, or (b) aids, abets, counsels or procures another person to commit an offence against this Act or the regulations, or (c) attempts to commit an offence against this Act or the regulations, or (d) conspires to commit an offence against this Act or the regulations, is guilty of that offence and liable to the penalty prescribed by this Act or the regulations in relation to that offence.
The following definitions are provided in the Dictionary to the Mining Act: authorisation means an authority, a small-scale title or an environmental assessment permit granted under section 252. … authority means an exploration licence, an assessment lease or a mining lease.

[10]

The Mining Project

Many, but not all, of the facts recited below were contained in a detailed statement of agreed facts ("SOAF") relied upon by the parties.
NC and NCO are both Australian proprietary companies limited by shares and are wholly owned subsidiaries of Whitehaven Coal Limited ("Whitehaven Coal").
On 21 May 2004 NC was granted the EL by the Minister for Mineral Resources ("the Minister") under the Mining Act to explore for group 9 minerals, that is, coal and oil shale, for a period of five years.
The EL was originally granted over an area of land much larger than the area currently the subject of the EL.
Since the EL was granted in 2004, exploration activities carried out pursuant to it have included the drilling of 130 boreholes and 30 km of seismic testing.
On 18 January 2008 NC was granted the ML for the prospecting and mining of coal for a period of 21 years.
On 26 March 2008 NC and NCO entered the Narrabri Joint Venture Management Agreement ("JVMA") to undertake exploration and mining operations at the mine. Under the JVMA: 1. pursuant to cl 2.1, NCO was appointed as the manager to carry out the operations at the mine as the exclusive agent of the participants in the joint venture; 2. pursuant to cl 2.4, NCO (as manager) was required to carry out its duties and obligations in accordance with all authorisations (defined to include authorisations, leases, licences, permits and consents of and from any government); 3. under cl 3.1, NCO was given possession and control of the joint venture assets, and charge of and responsibility for the conduct of the operations; and 4. by reason of cl 3.6, NCO was entitled to appoint agents and delegate to any such agents the whole or any part of its rights and obligations in carrying out the operations. No such delegation diminished or relieved NCO of any of its obligations under the JVMA.
The EL was renewed on 9 October 2009, subject to conditions.
On 18 January 2010 the following entities were registered as the holders of the ML and the EL: 1. NC; 2. Upper Horn Investments (Australia) Pty Limited; 3. EDF Trading Australia Pty Limited; 4. J-Power Australia Pty Limited; 5. Daewoo International Narrabri Investment Pty Limited; and 6. Kores Narrabri Pty Limited.
Of these registered holders, only NC was charged with offences.

[11]

The Investigation by the Regulator

On 24 May 2018 the Regulator conducted a compliance audit of the exploration activities associated with the mine. The audit was led by Jennifer Ehmsen, the Regulator's Principal Compliance Auditor.
The scope of the audit was the exploration activities associated with the mine including: 1. exploration activities within the EL and the ML, including a selection of the 41 exploration drill holes authorised to be drilled at identified site locations in the 2016 REF; 2. rehabilitation activities for the drilling programs undertaken since January 2015; 3. a review of documents and records pertaining to the exploration activities; and 4. the assessment of compliance for the period commencing 1 January 2016 and ending 23 May 2018.
During the inspection the investigators observed borehole NC619C, which had been drilled on 16 February 2015, and was located at E772392 and N6620647, to be inactive and left open. It was covered by a green bucket with a rock placed on top of the bucket.
The findings of the audit were contained in an audit report issued by the Regulator in July 2018, which noted the issue with borehole NC619C.
On 5 March 2019 a compliance audit of the exploration activities associated with the EL and the 2018-2019 REF was conducted by the Regulator.
The findings of the audit were contained in an audit report issued by the Regulator in July 2019. The report identified that there was no evidence sighted during the audit to indicate compliance by NCO with its commitment in the 2018-2019 REF to "prepare a site rehabilitation plan for the impacted areas".
On 18 June 2019 the Regulator's inspectors, Arnott and Warner, undertook an inspection of drill pad sites and boreholes described in the 2016 REF and the 2018-2019 REF within the boundaries of the EL.
The Regulator's findings of the inspection were contained in a letter sent to NCO on 11 July 2019. These included that: 1. "three access tracks have been constructed in locations not in accordance with the Narrabri South Exploration Program 2018-2019 approval"; 2. a borehole at E259 had "a lack of appropriate safety infrastructure installed"; and 3. "the Regulator identified a second borehole drilled at the E259 location. A search of records has failed to locate an approval for this borehole".

[12]

Enforcement Action

As a result of the unauthorised clearing of access tracks identified during the 18 June 2019 inspection, a Notice of Proposed Direction to Suspend Specified Operations at EL6243 was issued by the Regulator on 24 July 2019.
Upon receiving the proposed suspension notice, NCO, as a holder of the EL: 1. voluntarily suspended exploration operations (except rehabilitation) under the EL; and 2. voluntarily commenced discussions with Umwelt (Australia) Pty Ltd ("Umwelt") about engaging it to undertake a review of NCO's operations, systems and processes for complying with the conditions of the EL.
On 15 August 2019 the Regulator received a response to the proposed suspension notice from Jamie Frankcombe, a director of the defendants and Chief Operating Officer of Whitehaven Coal ("Frankcombe letter"). That response contained a proposal for an independent third party auditor to audit the systems and processes for compliance with the conditions of the EL.
On 22 August 2019 the Regulator issued a direction under s 240AA of the Mining Act to suspend all operations (except activities required to maintain a safe workplace or to undertake environmental rehabilitation) in relation to the EL. The direction was issued on the basis that consideration would be given to revoking the suspension once the licence holders had: 1. commissioned a suitably qualified independent person to the satisfaction of the Regulator to conduct a review of the licence holder's systems and processes for meeting its compliance obligations under the Mining Act in respect of the EL; 2. commissioned a suitably qualified independent person to the satisfaction of the Regulator to conduct a review of the management systems applying to the approval of work under the EL (activity approvals); 3. submitted a detailed report to the satisfaction of the Regulator that identified the key findings, corrective actions, and recommendations arising from both reviews undertaken at subparagraphs (a) and (b) above (including copies of both reports); and 4. completed all corrective actions and recommendations arising from the reviews at subparagraphs (a) and (b) above to the satisfaction of the Regulator.
On 13 February 2020 the Regulator received a letter from NCO signed by Steve Bow, a director of NC and NCO, enclosing the following reports prepared by Umwelt and addressing the matters necessary for the Regulator to consider revoking the suspension: 1. EL6243 Activity Approvals Review - Narrabri Coal Operations; and 2. EL6243 Compliance Management Systems Review - Narrabri Coal Operations.

[13]

Contraventions of the 2016 and 2018 Activity Approvals

The 2016 REF described the proposed exploration activities as including the drilling of 41 exploration boreholes at specified locations.
The 2016 REF stated that: All boreholes will be sealed within 28 days of works. Drill sites will be rehabilitated after each stage of the exploration program and as soon as practicable once drilling activities have ceased, to minimise subsequent soil erosion and sedimentation and to return sites back to their pre-drilling state. … All borehole rehabilitation activities will be completed in accordance with the requirements of EDG01: Borehole Sealing Requirements on Land: Coal Exploration.
Forty-one boreholes were drilled by NCO between 9 March 2017 and 15 April 2019. Their locations were recorded: 1. in its annual exploration reports, which noted the drilling dates and coordinates of each borehole; 2. in an Environmental Management Report submitted on 28 May 2019, in support of an application to renew the EL; and 3. in relation to some of the boreholes, by Regulator inspectors Warner and Endicott at their site inspections on 18 June and 31 July 2019.
Warner prepared a map on 28 June 2019, which recorded the drill hole data from the approved locations in the 2016 REF and the actual reported drill sites submitted by NCO in its annual exploration reports.
Boreholes were drilled or rehabilitated other than in accordance with the 2016 REF as follows (leading to some of the charges set out above): 1. the 2016 Activity Approval authorised one exploration borehole to be drilled at drill pad site E259 (located at E773664 and N6611901). Borehole NC735C was drilled at this location between 19 and 22 March 2018. The drilling of a second unauthorised exploration borehole NC817L (at E773682 and N6611904) on drill pad site E259 commenced on 15 April 2019, and was completed on 6 May 2019 (charge 4); 2. borehole NC817L (at E773682 and N6611904) on drill pad site E259 was observed by the inspectors on the site inspection on 18 June 2019 (40 days after the drilling of that borehole was completed) to be unsealed and left open, in an unsafe manner and was covered with a star picket (charge 5); 3. borehole NC737C at drill pad site E266 was drilled between 3 and 10 April 2018. This borehole was observed at the site inspection on 18 June 2019 to be sealed, but was not the subject of any rehabilitation (charge 6); 4. exploration borehole NC798 at drill pad site E291 was drilled in an unapproved location at E775757 and N6615271, whereas the approved location in the 2016 REF was E774544 and N6615479, approximately 1.2 to 1.3 km to the west (charge 7); and 5. exploration borehole NC799 at drill pad site E292 was drilled in an unapproved location at E775810 and N6614783, whereas the approved location in the 2016 REF was E774544 and N6615032 approximately 1.2 to 1.3 km to the west (charge 8).

[14]

Contravention of the Commitment to Prepare a Site Rehabilitation Plan

The following activities were commenced by NCO from at least 16 January 2019: 1. the drilling of borehole E327 (at E775361 and N6615354) that commenced on 16 January 2019, and that was completed on 22 January 2019; 2. the drilling of borehole E329 (at E775333 and N6614815) that commenced on 12 February 2019, and that was completed on 14 February 2019; 3. the construction of tracks between drill pad sites E318 and E319 between 10 and 12 April 2019; 4. the construction of a track to drill pad site E307 between 12 and 14 April 2019; 5. the construction of a track to drill pad site E309 between 16 and 19 April 2019; and 6. the drilling of borehole E321 (at E772633 and N6610581) on 1 May 2019, that was completed on 13 May 2019.
On 5 March 2019 Ehmsen conducted a compliance audit of the EL and found no evidence that a site rehabilitation plan had been prepared by NCO.
On 9 April 2019 the Regulator wrote to Mark Vile, the Environmental Superintendent for the mine, enclosing a copy of the draft audit report. The draft report noted that the 2018-2019 REF contained a commitment to prepare a site rehabilitation plan for the impacted areas and that there was no evidence sighted during the audit to indicate that this document had been prepared.
On 2 May 2019 Vile replied to correspondence from the Regulator stating that NCO would provide the rehabilitation plan by 31 May 2019.
The failure to comply with this requirement formed the basis of charge 10 as follows: 1. first, the requirement to prepare a site rehabilitation plan was a condition of the 2018 Activity Approval. That plan should have been prepared prior to the commencement of the activities authorised by the EL on 16 January 2019; and 2. second, a rehabilitation management plan was not submitted by NCO to the Regulator until 2 September 2019 (the plan was prepared by Eco Logical Australia and was dated 29 August 2019).

[15]

The Contravention of the ML

It was a term of the deed creating the ML that the leaseholder observe the conditions contained in the Schedule of Mining Lease Conditions 2007 ("Schedule") which formed part of the deed.
Condition 17(2)(f) of the Schedule stated that: (2) If the lease holder drills exploratory drill holes he must satisfy the Director-General that:- (f) once any drill hole ceases to be used the hole must be sealed in accordance with Departmental guidelines. Alternatively, the hole must be sealed as instructed by the Director-General.
The relevant "Departmental guidelines" included: 1. for the period 23 April 2012 to 1 March 2016 the EDG01 Borehole sealing requirements on land: coal exploration, which required that: If a hole is left open temporarily for any reason a suitable casing cap or bridge must be placed over the top of the hole for the period involved. 1. from 1 March 2016 the Guideline for mineral exploration drilling; drilling and integrity of petroleum exploration and production wells, which required that: A suspended drillhole or well must be made safe before the site is put on hiatus. This includes: a) securing the hole to prevent leakage of fluids or gas to the surface, and b) securing the site to prevent unauthorised or inadvertent access by people, livestock and wildlife.
Each of the Mining Operation Plans ("MOP") submitted by NCO in 2012 and 2017 referred to the relevant guidelines as follows: 1. section 4.5.2.1 of the MOP dated November 2012, provided as follows: Infrastructure Decommissioning, Bore Sealing and Capping …Each borehole will then be backfilled and capped in accordance with the EDG01 guideline "Borehole Sealing Requirements of Land: Coal Exploration. 1. section 2.3.1 of the MOP dated 6 November 2017, stated that: Borehole rehabilitation will be completed in accordance with Condition 17 of ML1609, Exploration Code of Practice: Rehabilitation (DP&E, 2015), and the Guideline for Mineral Exploration Drilling; Drilling and Integrity of Petroleum Exploration and Production Wells (DRE, 2016).
The failure to comply with the Schedule and the Departmental guidelines resulted in charge 9 insofar as: 1. the drilling of exploration borehole NC619C commenced on 16 February 2015. It was completed on 22 February 2015. The drill type was a "partly cored drill hole" and the purpose of the borehole was recorded as being for "exploration". The borehole was drilled to a total depth of 363m; 2. borehole NC619C's coordinates (E772392 and N6620647) were within the boundary of the ML; 3. during the compliance audit on 24 May 2018, Ehmsen observed borehole NC619C to be inactive, left open, and, as stated earlier, covered by a green bucket with a rock placed on top of it. This was contrary to condition 17(2)(f) of the Schedule and the Departmental guidelines; 4. on 28 June 2018 the Regulator wrote to Steven Farrar, the Environmental Superintendent of the mine, enclosing a copy of the draft compliance audit report. That audit report identified that borehole NC619C had not been sealed; and 5. on 27 July 2018 the Regulator received a letter from Farrar stating that: The mine acknowledges that borehole sealing and rehabilitation of historical boreholes requires more attention and a rehabilitation tracking system has been developed and implemented at the mine. Boreholes drilled more recently are sealed at the time of drilling.

[16]

Drone Footage

At the sentencing hearing aerial drone footage of the clearing the subject of some of the charges was admitted into evidence. The footage was not able to be played in the courtroom, and therefore, with the parties' consent it was viewed by the Court in chambers.
The footage showed cleared access tracks and drill pad sites, together with the surrounding environment. Care must be taken in placing too much weight on the footage because, as the defendants noted, the aerial footage captured both unlawfully and lawfully cleared areas.

[17]

Causes of the Commission of the Offences the Subject of Charges 1 to 3

The Frankcombe letter (referred to above) stated that the preliminary results of NCO's internal investigation into the causes of the offences the subject of charges 1 to 3 had identified that: 1. the original planning of the access tracks had occurred independent of, and prior to, the finalisation of the 2018-2019 REF; 2. following the grant of the 2018 Activity Approval, a number of key staff with carriage of the exploration activities under the EL had left the mine and the approved locations of the access tracks in the 2018-2019 REF were not adequately communicated to the new staff; and 3. the access tracks were cleared without reference to the location of the tracks in the 2018-2019 REF.
In the document entitled EL6243 Activity Approvals Review - Narrabri Coal Operation, Umwelt identified the following systemic failures within NCO that led to the contraventions the subject of charges 1 to 3: 1. the Environmental Management Strategy ("EMS") for the mine detailed the relevant statutory approvals and referred to the ML and the EL conditions but did not detail what the Compliance Management System was or how it worked. The EMS did not set out the procedures to be utilised on site for the management of compliance obligations and requirements and there was no clear process which identified how the compliance requirements of the exploration process were to be managed. The activity approval requirements were not included in the relevant system documents thereby ensuring that they were entered into the Compliance Management System; 2. there was no procedure that provided guidance to site personnel as to how the activity approval process was to be undertaken, defined how the compliance requirements of the activity approval were to be transferred into the Permit To Work ("PTW") process (which gave internal permissions for drilling and pad and track construction), or how these processes were to be implemented on the ground; 3. there were a number of staff changes at NCO between the version of the REF submitted in September 2018 and the final 2018-2019 REF submitted in October 2018. Staff responsible for signing off on PTWs did not know the site history and were not able to understand the background to the revisions made to the 2018-2019 REF; 4. the spatial information utilised for the development of PTWs was provided to the NCO survey team by the NCO Environmental Department prior to the approval of the 2018-2019 REF. This resulted in the survey team utilising spatial information not associated with final activity approvals. The spatial information was utilised to develop plans for PTWs which were subsequently implemented to develop access tracks within the EL that were in different locations to those approved in the 2018-2019 REF; 5. in accordance with the PTW procedure, a copy of the PTWs and selected documents associated with them were required to be stored on NCO computer servers at a designated folder location with a link to those documents noted on the PTWs. This did not occur and a copy of the 2018-2019 REF was not stored with the corresponding PTWs; 6. PTWs did not require the documentation of key controls which had to be implemented in accordance with the activity approvals. The PTW procedure required revision to ensure that environmental controls necessary for exploration works were documented on the PTW and that the implementation of the controls was reviewed, inspected and monitored on a defined frequency, either as articulated in the 2018-2019 REF, or as defined from a risk management perspective by NCO while the works were being undertaken; and 7. there was no requirement in the PTW procedures for NCO's Environmental Department to verify that works had been completed. Only the PTW supervisor and the PTW holder were required to do so.

[18]

The Humphris Affidavit

In relation to all charges, the defendants relied upon the affidavit of Ian Humphris affirmed on 10 June 2021 ("the Humphris affidavit").
Humphris is a director of NC and NCO. He was first appointed to those positions on 29 June 2020. Humphris is also a director of Whitehaven Coal Mining Limited ("WCML"). WCML is also a wholly owned subsidiary of Whitehaven Coal. He was appointed to this role on 1 July 2020.
Humphris commenced his employment with WCML as Executive General Manager, Operations, on 6 April 2020. In this role he has operational responsibility for all of Whitehaven Coal's mining operations in New South Wales, including the mine.
Humphris was authorised by the boards of NCO, NC and Whitehaven Coal to, on behalf of those companies, accept responsibility, to express regret and apologise to the prosecutor, the Court, and the broader community for the commission of the offences.
In his affidavit he deposed that NCO and NC have sought to remediate the harm caused by the commission of the offences by: 1. rehabilitating the access tracks the subject of charges 1 to 3; 2. rehabilitating the boreholes the subject of charges 4 to 8; 3. sealing borehole NC619C (charge 9); 4. taking steps to minimise the possibility of any recurrence of the offences; and 5. committing to carry out the recommendations of Travis Peake, the prosecutor's ecologist.
In addition to the matters referred to in the Frankcombe letter, Humphris added that the offences were committed, in his view, because of a lack of rigour and oversight in the mine's compliance management system and the PTW system.
Accordingly, Humphris deposed that since the commission of the offences NCO had: 1. developed and implemented an Environmental Compliance Management Standard; 2. reviewed the Compliance Management System to ensure compliance with requirements within activity approvals and the EL conditions; 3. updated the PTW procedure to include a requirement confirming that all works in the proposed PTW were consistent with those included in the approved REFs for those works; 4. developed and implemented a Narrabri Mine Drill Site Rehabilitation Procedure detailing environmental controls to be implemented during rehabilitation works following drilling; 5. commenced the preparation of environmental training packages to train employees and contractors on the requirements for exploration management; and 6. commenced developing a draft procedure for improved staff handover and change management processes to facilitate the appropriate transition of role responsibilities between staff.

[19]

The Purposes of Sentencing

The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"): 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.

[20]

Statutory Matters Required to be Taken into Account in Sentencing

Subsections 21A(2) and (3) of the CSPA set out the aggravating and mitigating factors that the Court must consider when sentencing an offender. Relevant to the facts of this case these factors are: 21A Aggravating, mitigating and other factors in sentencing (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows - … (o) the offence was committed for financial gain, The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows - (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if - (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23)…
Section 378D(3) of the Mining Act provides further matters that the Court must take into account: 378D Contravention of condition of authorisation - offence by holder (3) In imposing a penalty under this section for a contravention of a condition, 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) any other matters the court considers relevant.

[21]

Objective Seriousness of the Offences

The objective gravity of the offences fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crimes considered in light of their objective circumstances (Veen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offences (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).
The objective seriousness of the offences is to be determined by reference to the nature of the offences and not by reference to matters that are personal to the defendants (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]). A determination of the objective seriousness or gravity of the offences requires a consideration of the factors discussed below.

[22]

Nature of the Offences

The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision creating the offence and its place in the statutory scheme. A proper understanding of the underlying purpose of an offence is assisted by a consideration of the objects of the statute creating it. A fundamental consideration is the degree to which a defendant's conduct offended against the legislative objectives expressed or implied in the creation of the offence (Environment Protection Authority v Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114 at [97]; Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at 242-246; Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]; and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]).
The objects of the Mining Act are contained in s 3A of that Act: 3A Objects The objects of this Act are to encourage and facilitate the discovery and development of mineral resources in New South Wales, having regard to the need to encourage ecologically sustainable development, and in particular - (a) to recognise and foster the significant social and economic benefits to New South Wales that result from the efficient development of mineral resources, and (b) to provide an integrated framework for the effective regulation of authorisations for prospecting and mining operations, and (c) to provide a framework for compensation to landholders for loss or damage resulting from such operations, and (d) to ensure an appropriate return to the State from mineral resources, and (e) to require the payment of security to provide for the rehabilitation of mine sites, and (f) to ensure effective rehabilitation of disturbed land and water, and (g) to ensure mineral resources are identified and developed in ways that minimise impacts on the environment.
The offence of contravening a condition of an EL or ML is one of strict liability. By analogy to a breach of a condition of an environment protection licence under the Protection of the Environment Operations Act 1997 ("POEOA"), in Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239, the Court observed as follows (at [104]): 104. It is difficult to envisage industrial production that would not, having regard to the broad definitions ascribed to the various forms of pollution regulated by the POEOA, give rise to conduct that would otherwise, but for a proscribed licensing regime under that Act, be unlawful. Compliance with licence conditions is the price that entities must pay for permission to engage in potentially polluting manufacturing processes. The conditions imposed in any licence are aimed at maximising beneficial environmental outcomes and minimising environmental harm. They represent a balancing exercise between fostering economic growth and development, on the one hand, and protecting and preserving the environment now and for the future, on the other. Strict compliance with the conditions of any environmental licence is therefore necessary to ensure that this balance is achieved and that the objectives of the POEOA are met.

[23]

Maximum Penalty

The maximum penalty reflects the public expression by the New South Wales Parliament of the seriousness of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Muldrock at [31]). It also provides a sentencing yardstick for the case before the Court (Markarian at [31] and Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]).
While the maximum penalty is of significance in determining the objective seriousness of the offence (Rawson at [57]), it is only one of a number of factors that has a bearing on the Court's assessment in this regard. In Elias, French CJ, Hayne, Kiefel, Bell and Keane JJ stated (at [27]): 27. The maximum penalty is one of many factors that bear on the ultimate discretionary determination of the sentence for the offence…The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion. It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted.
The maximum penalty for each offence was $1,100,000 (s 378D(1) of the Mining Act).

[24]

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

The Court must take into account the extent of the harm caused or likely to be caused to the environment by the commission of the offences (s 378D(3)(a) of the Mining Act). Unlike the POEOA, "harm" is not defined in the Mining Act.
The environmental harm caused by the commission of the offences is central to determining their objective gravity. The concept of harm is broad. In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299, Preston J stated that harm includes both actual and potential harm (at [145]-[149]): 145. Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. 146. Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174]. 147. Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously. 148. The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty: Camilleris Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 149. The fact that the environment harmed by the offenders conduct was already disturbed or modified is not a mitigating factor: State Pollution Control Commission v White Wings Ltd (unreported, Land & Environment Court, No 50129 of 1991, Bignold J, 1 November 1991) at p 4; Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269 at 273 [14]; Environment Protection Authority v Coggins (2003) 126 LGERA 219 at 224 [18]; Environment Protection Authority v Abigroup Contractors Pty Ltd [2003] NSWLEC 342 (15 December 2003) at [24]; Environment Protection Authority v Arenco Pty Ltd [2006] NSWLEC 244 (9 May 2006) at [26].

[25]

The Peake Reports

In relation to charges 1 to 3, the prosecutor relied on the expert report of Travis Peake, an ecologist, dated 6 April 2021 and his report in reply dated 29 June 2021 ("the Peake reports").
Peake found: 1. that a total area of 1.116 ha had been cleared without approval. Against this, however, was the fact that a total area of 0.652 ha of authorised tracks had not been cleared; 2. while the 2018-2019 REF stated that tracks should be 5m wide, Peake observed that tracks at the site were generally 7m to 11m wide; and 3. a total of 1,437.5m of vegetation was cleared in unauthorised locations, which was less than the approved track length by 306m.
In relation to the unauthorised clearing the subject of charges 1 to 3, Peake made the following observations regarding the habitat features around the site: 1. that the surrounding vegetation contained intact ground cover, mid-storey, and tree or low tree strata, which provided habitat for a range of native fauna species including birds, mammals, reptiles, and frogs; and 2. that hollow-bearing trees were observed across the site with a number clearly retained along the tracks. There were also large logs (up to 60cm in diameter at breast height) and felled hollow-bearing trees placed over the tracks, presumably as a result of habitat rehabilitation efforts.
With respect to the waterways, the unauthorised constructed track to drill pad site E309 and the track between drill pad sites E318 and E319 crossed waterways consisting of ephemeral drainage lines forming broad depressions. The plant characteristic types ("PCTs") occurring along the waterways were variations of the surrounding PCTs and were not strictly riparian vegetation types.
The clearing of the unauthorised tracks was considered by Peake as potentially affecting a range of threatened fauna species. However, there was a low probability that threatened flora species were actually impacted by the works. In Peake's view, the clearing was unlikely to have had a significant impact on any threatened species or populations under the Biodiversity Conservation Act 2016 or the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
Peake additionally observed that the extensive material emplacement across the cleared areas would likely assist in providing a habitat for native fauna species and may assist in the regeneration process, particularly where fallen trees carried fruiting material. Good native species regeneration was also observed along the cleared tracks, particularly in relation to the ground layer. There had also been some regeneration of the mid-storey and canopy, including trees around 1m tall. Weed species were sparse throughout the rehabilitated areas.

[26]

Driscoll Report

In respect of charges 1 to 3 only, the prosecutor relied upon the expert ecological report of Dr Colin Driscoll dated 11 June 2021 ("the Driscoll report").
The Driscoll report included the following calculations of cleared areas from the unauthorised access tracks, which Dr Driscoll described as generally consistent with Peake's calculations: Table 1: Approved and Cleared Tracks Approximate Lengths, Widths, and Areas LENGTH AREA Target Approved Unapproved Approved Unapproved (m) (m) (ha) (ha) E307 295 428 0.148 0.300 E309 246 421 0.123 0.295 E318 640 589 0.320 0.412 Total 1181 1438 0.591 1.007 Difference 257 0.416

[27]

Dr Driscoll disagreed with Peake that it was likely that there would have been an impact on any threatened fauna or flora species as a result of the commission of the offences.
Furthermore, apart from the loss of habitat within the cleared areas, which was common to all of the cleared tracks, Dr Driscoll observed no evidence of changes to the environment of the cleared area, such as erosion.
Dr Driscoll considered that Peake had relied on incorrect information to conclude that the access track between drill pad sites E318 and E319 had crossed a third order stream.
However, he agreed with Peake that natural regeneration was progressing adequately for ground, mid-storey, and tree layers in the affected areas. In the case of the clearing for the access track, the loss was temporary with natural regeneration well underway.
Moreover, consistent with all reporting and field inspections, none of the PCTs along the cleared tracks were listed as threatened under the relevant legislation. There was no impact on any threatened ecological community.
Dr Driscoll concluded that the cleared tracks would recover to their pre-cleared condition over time. This would likely occur well inside 50 years.
The development of hollows in the regrown eucalypts would, however, generally take in excess of 80 years. Nonetheless, there were abundant hollows in the surrounding intact habitat. Dr Driscoll also noted that there were 94 hollow-bearing trees within 15m either side of the cleared tracks. Accordingly, the felling of 13 hollow-bearing trees along the three cleared tracks was unlikely to have a lasting detrimental impact on species habitat. Additionally, hollow-bearing trees would have been cleared in any event in the approved locations to lawfully construct the access tracks. This meant that the net loss of hollow-bearing trees as a consequence of the offences was less than 13 trees.

[28]

Findings on Environmental Harm

The prosecutor relied upon Peake's expert evidence to urge the Court to make the following findings as to environmental harm: 1. although the maximum width for the authorised tracks relevant to charges 1 to 3 was 5m, the tracks (in both authorised and unauthorised locations) were generally 7m wide and, in some places, up to 11m wide. As a consequence, while the combined length of unauthorised cleared track across charges 1 to 3 was less than the length of track that had been approved for clearance, the total area cleared without authorisation (1.116 ha) was larger than the area authorised to be cleared, at 0.88 ha; 2. the habitat cleared from unauthorised locations posed only a minimal risk of environmental harm insofar as its impact upon threatened species was concerned. Good native species revegetation was observed along the track routes, with fallen logs and brush placed along the tracks to provide habitat for native fauna species. Revegetation works were not necessary because natural revegetation appeared to be adequate with ground, mid-storey, and tree layers returning; 3. however, it was at least likely (and potentially highly likely) that vertebrate threatened fauna species were affected through direct loss of habitat in consequence of the clearing activities the subject of charges 1 to 3; 4. the vegetation surrounding the unauthorised tracks appeared to be at least 30 to 40 years old. On the assumption that recovery is not significantly retarded, the estimated revegetation time is approximately 40 to 50 years; 5. no environmental harm to groundwater or surface water was anticipated; and 6. thirteen hollow-bearing trees were felled during the unauthorised clearing of the access tracks.
The prosecutor contended that the improper sealing of boreholes (charges 5 and 9) was likely to result in environmental harm in the form of: 1. small animals such as snakes, lizards, and other mammals falling down the boreholes; and 2. groundwater or gas escaping up the borehole, which may have a detrimental surface impact (particularly if groundwater is contaminated).
Finally, the prosecutor argued that the evidence demonstrated to the requisite standard, that, at a minimum, the commission of the offences undermined the integrity of the statutory system regulating mining enacted in this State.
The prosecutor emphasised that the loss of habitat through the clearing of native vegetation is ecologically damaging and is a major factor contributing to the loss of biological diversity. Nevertheless, the prosecutor readily accepted that at least in relation to charges 1 to 3, Peake had concluded that although the clearing of unauthorised access tracks led to some inevitable short term actual environmental harm as described above, the overall actual environmental harm caused by the commission of those offences was "relatively minor".

[29]

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

Section 378D(3)(c) of the Mining Act requires the Court to have regard to 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. In Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211, Craig J remarked in this context that "the holder of an environment protection licence is clearly on notice of the possibility of harm to the environment occasioned by any of the activities which it carries out on the site to which that licence relates" (at [81]). His Honour's remarks are apposite in the present case.
For harm to be reasonably foreseeable, the precise cause of the event or events giving rise to the harm is not required to be foreseen (Environment Protection Authority v Baida Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [31]-[32]).
As was agreed by the parties, the harm caused or likely to be caused to the environment by the commission of the offences was reasonably foreseeable on the part of NCO.
However, the defendants contended that this proposition applied with less force with respect to NC, who did not carry out the activities the subject of the charges but was the mere licence holder, and moreover, in circumstances where NCO had been delegated with full responsibility for carrying out the operations at the mine in compliance with the conditions of approval.
But, merely because NC delegated responsibility for the carrying out of the licenced mining activities to NCO cannot absolve it from foreseeing the harm, or likely harm, caused to the environment by the unlawful activities of its delegate, NCO, by failing to comply with the conditions of the EL and ML. The test is objective, not subjective. In my view, it was objectively reasonably foreseeable by the holder of the EL and the ML - that is, NC - that if the subject conditions were breached, that environmental harm of the type that occurred would, or could, result.

[30]

State of Mind of the Defendants at the Time of the Commission of the Offences

The offences charged under the Mining Act are those of strict liability, and therefore, mens rea is not an element of the offences. However, the state of mind of NC and NCO at the time of the commission of the offences is nonetheless relevant to the question of penalty. A strict liability offence committed intentionally, recklessly or negligently "exacerbates the objective culpability of the defendant" (Camilleri's Stock Feeds at 700; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123]; Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [122]; and Rawson at [98]).
The prosecutor submitted that the defendants were "incompetent, arguably seriously incompetent". He argued that this was conceded by the defendants in relation to charge 9 by their admission (extracted in the SOAF): …borehole sealing and rehabilitation of historical boreholes requires more attention and a rehabilitation tracking system has been developed and implemented at the mine.
The prosecutor further contended that in correspondence the defendants had accepted that the circumstances leading to the unauthorised clearing of the tracks the subject of charges 1 to 3 were "unacceptable".
Finally, the prosecutor further relied upon the conclusions contained in the Umwelt report regarding the causes of the conduct giving rise to charges 1 to 3, in particular, the seven systems failures within NCO identified by Umwelt that led to the non-complying activity the subject of the offences (see above at [95]).
For these reasons, the prosecutor submitted that the defendants had committed the offences the subject of charges 1 to 9 negligently insofar as "from the view point of the reasonable person, it was foreseeable that the failure to have such adequate systems in place at the level of both Defendants, to ensure that conditions attaching to the authorisations were adhered to would create a real risk of contravention".
The prosecutor stated that this state of mind was particularly applicable with respect to charge 1, where the correspondence exchanged between the Regulator and the defendants in August and September 2020 put the defendants on notice that the proposed access track between drill pad sites E318 and E319 was not to proceed, but it was constructed in any event.

[31]

Reasons for Committing the Offences

The criminality involved in the commission of an offence 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 that is not.
There was no evidence to suggest that the defendants committed the offences for financial gain.

[32]

Control Over the Causes of the Commission of the Offences

The Court must consider the extent to which the defendants had control over the causes giving rise to the commission of the offences (s 378D(3)(d) of the Mining Act).
NCO accepted that it had control over the causes of the commission of the offences. As the prosecutor noted, NCO was appointed as the manager to carry out the operations at the mine. As manager, NCO was required to carry out its duties and obligations in accordance with all of the authorisations and was given possession and control of the joint venture assets with the right to appoint agents and to delegate obligations to such agents on the condition that no delegation diminished or relieved NCO from its obligations under the JVMA. While NCO hired contractors and personnel to carry out activities at the mine, it had ultimate responsibility to provide them with all necessary information, training, instruction, and supervision.
In respect of NC, however, it may be accepted that although it was the holder of the EL and the ML, the responsibility for the operation of the mine, and relevantly, the responsibility for the exploration operations, resided in NCO under the terms of the JVMA. In these circumstances, NC had little direct control over the causes of the commission of the offences. There was, moreover, no evidence that NC, by delegating those responsibilities to NCO, acted in a manner that caused NCO to commit the offences.

[33]

Practical Measures Which May be Taken to Avoid the Harm

In determining the objective seriousness of the offences it is appropriate to have regard to the practical measures that that may be taken by an offender to prevent, control, abate or mitigate the harm (s 378D(3)(b) of the Mining Act).
It was accepted that there were a number of practical measures available to the defendants to prevent, control, abate or mitigate the environmental harm caused by the commission of the offences. These measures were set out in the Humphris affidavit and were implemented following the commission of the offences to reduce the possibility of recurrence (for a detailed description of these measures see above at [100]-[106]). In particular, as stated above, it is noted that the defendants have agreed to ecological monitoring by a qualified ecologist being undertaken to ensure that there are no significant weed infestations and to enable ecological intervention if required.

[34]

Conclusion on the Objective Seriousness of the Offences

The prosecutor submitted that the offences "are accordingly objectively serious". Leaving aside the inherent ambiguity of this submission, it was premised, in part, upon a finding by the Court that the offences were committed negligently, which has been rejected (including with respect to charges 1 to 3).
In relation to charges 1 to 3, which are on any view objectively more serious than the remaining charges given the actual harm caused to the environment by their commission, the defendants nevertheless contended that the commission of these offences was only "of slightly higher objective seriousness" on the basis that the harm was not substantial. NCO accepted that the offences that it had committed were of slightly higher objective seriousness than those committed by NC given the reasonable foreseeability of the ensuing harm caused by their commission and the greater degree of control over the causes of the commission of the offences that it had.
In my opinion, having regard to the harm caused by the commission of the offences giving rise to charges 1 to 3, I find them to be at the lower end of medium objective seriousness for both NCO and NC. Although NC had less control over their causes, I am of the opinion that this does not materially derogate from their objective seriousness in all the circumstances.
The defendants submitted that the offences the subject of charges 4 to 10 were each of low objective seriousness given that no actual and minimal likely harm was caused by their commission, especially in light of the fact that no actual harm was caused by the failure to seal two boreholes within the required timeframes. Consistent with the reasons articulated above, this submission may be accepted.

[35]

The Defendants' Subjective Circumstances

Within the limits set by the objective seriousness of the offences, the Court must take into consideration the subjective circumstances of each of the defendants in determining the appropriate penalty to be imposed (Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143 at [116] and [190]).
A proportionate sentence requires the Court to take into account any mitigating factors that are personal to the defendants (s 21A(2) and (3) of the CSPA). Relevant subjective circumstances include: 1. whether the offences were committed for financial gain (s 21A(2)(o) of the CSPA); 2. whether the harm caused by the commission of the offences was not substantial (s 21A(3)(a) of the CSPA); 3. whether the defendants have a prior criminal record (s 21A(3)(e) of the CSPA); 4. whether the defendants are of good character (s 21A(3)(f) of the CSPA); 5. whether the defendants have demonstrated remorse for the commission of the offences (s 21A(3)(i) of the CSPA); 6. whether, and when, the defendants entered a guilty plea (ss 21A(3)(k) and 22 of the CSPA); 7. whether the defendants provided assistance to the regulatory authorities in the investigation and prosecution of the offences (ss 21A(3)(m) and 23 of the CSPA); and 8. the defendants' likelihood of reoffending and prospects of rehabilitation (s 21A(3)(g) and (h) of the CSPA). Each is dealt with in turn.

[36]

Whether the Harm to the Environment Was Substantial

As determined above (see at [161]-[164]), while there was actual and likely harm caused to the environment by the commission of the offences, it was not substantial.

[37]

The Offences Were Not Committed for Financial Gain

It has not been demonstrated that the offences were committed for financial gain.

[38]

Prior Convictions

The defendants do not have any prior convictions for environmental offences.

[39]

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 plea to the criminal justice system (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 [152]-[155] and [160]). What is regarded as an early plea will vary in the circumstances of the case (Thomson at [160(iii)]).
It was accepted that the defendants each entered pleas of guilty at the first available opportunity (namely, the first directions hearing on 11 December 2020), and therefore, the full 25% discount applies to all charges.

[40]

Assistance Provided to Authorities

The defendants both submitted that they have assisted the prosecutor to a high degree by: 1. voluntarily providing information and documents to the prosecutor about the commission of the offences and their impact (including the number of hollow-bearing trees felled), being information and documents that were not required pursuant to a statutory notice; 2. voluntarily suspending all exploration operations (except rehabilitation) under the EL upon receiving a proposed suspension notice under s 240AA(2)(a) of the Mining Act; 3. voluntarily commencing discussions with Umwelt in order to engage it to undertake a review of the operations, systems, and processes for complying with the conditions of the EL; 4. proposing to the prosecutor that an independent third party auditor be appointed to audit the systems and processes for complying with the conditions of the EL, a proposal which was adopted by the prosecutor as reflected in the suspension notice issued by it under s 240AA(1) of the Mining Act on 22 August 2019 ("the suspension notice"); 5. subsequently engaging Umwelt to carry out the reviews upon which the suspension notice stated that consideration would be given to revoking the notice; 6. obtaining a further verification report from Umwelt certifying the completion of all corrective actions and recommendations arising from Umwelt's earlier reviews; 7. cooperating with the prosecutor during its compliance audits and its investigation of the offences; 8. cooperating with the prosecutor throughout the proceedings, including in the preparation of the SOAF; and 9. committing to implementing the recommendations contained in the Peake reports.
Accordingly, the defendants submitted that the degree of assistance provided to the prosecutor was high and that this should be directly reflected in a reduction of the penalty that would otherwise be imposed.
By contrast, the prosecutor submitted that the defendants' actions did not constitute "assistance" within the meaning of that word in ss 21A(3)(m) and 23 of the CSPA warranting a reduction in penalty. I disagree.
There can be no doubt that the defendants assisted the prosecutor during his investigation into the commission of the offences in the manner set out above. The degree to which the defendants have assisted the prosecutor is significantly higher than that suggested by him.

[41]

Contrition and Remorse

Pursuant to s 21A(3)(i) of the CSPA, remorse will only be a mitigating factor if (see also the discussion by Preston J in Waste Recycling and Processing Corp at [203] to [215]): (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).
The Humphris affidavit evidences that each of the defendants have expressed genuine contrition and remorse for the commission of the offences.
From the outset, the defendants acknowledged their responsibility for the commission of the offences. By letter dated 4 September 2019 to the prosecutor, the defendants accepted and regretted the unlawful conduct the subject of the proceedings and unreservedly apologised for the contraventions.
The defendants' actions following the discovery of the contraventions of the licences are also demonstrative of their contrition and remorse. For example, by: 1. voluntarily suspending all exploration operations (other than rehabilitation) under the EL until, first, an independent third party auditor had completed an audit into the systems and processes for compliance with the conditions of the EL, and second, all corrective actions identified by the audit had been completed and their completion demonstrated; 2. taking steps to improve the systems and processes for compliance prior to the independent audit; 3. rehabilitating the access tracks the subject of charges 1 to 3; 4. rehabilitating the boreholes the subject of charges 4 to 8; 5. sealing the borehole the subject of charge 9; 6. taking steps to minimise the possibility of a recurrence of the commission of the offences; and 7. committing to carry out the recommendations in the Peake reports.
I take this demonstrated genuine contrition and remorse into account.

[42]

Likelihood of Reoffending and Prospects of Rehabilitation

Given the length of time that the defendants have been engaged in the mining industry, an absence of any prior criminal records, and the steps taken to avoid and minimise the possibility of any recidivism, NC's and NCO's likelihood of reoffending is low and they have good prospects of rehabilitation.

[43]

Evidence of NC and NCO's Good Corporate Character

The prosecutor submitted that the defendants have offered only limited evidence of their corporate good character, as opposed to the philanthropic activities of their parent company, Whitehaven Coal. There was, moreover, no evidence as to the good character of NC.
The defendants relied on the Humphris affidavit to submit that there was ample evidence that NCO, the operator of the mine and the entity with responsibility for carrying out exploration operations, has, in carrying out those operations, acted as a good corporate citizen. For example, that affidavit contained evidence of: 1. the implementation of Whitehaven Coal's RAP in respect of the mine, including by NCO's engagement of the services of businesses conducted by First Nations peoples; 2. NCO's investment in local skills development; 3. NCO's prioritisation of local employment at the mine, including the employment of women; 4. NCO's charitable grants, donations and sponsorships to local community initiatives; and 5. donations made by NCO's employees to the Westpac rescue helicopter.
While evidence of the good character of Whitehaven Coal cannot, without more, be attributed to the defendants, the evidence nonetheless discloses that NCO is of good corporate character.
In relation to NC, however, insufficient evidence was furnished to enable the Court to make any assessment as to its character.

[44]

Whether the Offences Could Have Been Prosecuted in the Local Court

It is well established 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 in the sentencing exercise (Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 at [92]-[93] citing R v Crombie [1999] NSWCCA 297; R v Doan [2000] NSWCCA 317; 50 NSWLR 115).
Section 378H(1) of the Mining Act provides that: 378H Proceedings for offences (1) Proceedings for an offence against this Act or the regulations are, except as provided by this section, to be dealt with summarily before - (a) the Land and Environment Court, in the case of an offence under Division 1 or 2 of Part 2, section 163C, or section 291 (committed by a corporation), section 240C, 246R, 248S, 378A, 378C, 378D, 378ZF or 378ZFE, or (b) the Local Court, in the case of any offence.
While it appears that the proceedings could have been brought by the prosecutor in the Local Court ("in the case of any offence": s 378H(1)(b)), I accept the prosecutor's submission that given the volume and complexity of the charges they were most appropriately heard and determined in this Court.

[45]

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 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 [188] and [192] and Environment Protection Authority v Rands [2019] NSWLEC 23 at [161]).
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 Axer at 359).
The principles of general deterrence were recently relevantly discussed by this Court in the context of a breach of licence provision committed by a mining company, albeit under the POEOA, in Environment Protection Authority v Whitehaven Coal Mining Ltd [2019] NSWLEC 27; (2019) 239 LGERA 31 (at [255]): 255. In relation to general deterrence: (a) offenders will not be deterred from committing environmental offences by the imposition of nominal fines (Bentley at [140] and Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60 at [98]); and (b) a penalty for a breach must be sufficient to compel attention to the environmental issues to ensure that the offender, and others, are encouraged to comply with the law and that the environment is not exposed to risk of harm (Environment Protection Authority v Robinson [2004] NSWLEC 629 at [30] and Elf at [99]).
General deterrence must be taken into account here to ensure that mining companies act in accordance with their authorisations to carry out activities.
In my opinion, specific deterrence is also an element in the present sentencing exercise because NC and NCO continue to operate in the mining industry. Having said this, in the particular circumstances of this case, the need for the sentence to serve the function of specific deterrence is more limited given that the defendants have accepted responsibility for their transgressions, have implemented measures to improve the systems and processes for compliance with the Mining Act, and are willing to adopt the recommendations contained in the Peake and Umwelt reports.

[46]

Retribution and Denunciation

Finally, it should be noted that the purposes of retribution and denunciation are also relevant. In particular, the Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and making NCO and NC accountable for their actions (Pesic v Sutherland Shire Council [2019] NSWLEC 38 at [41]).

[47]

Consistency in Sentencing

The task of the sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107C). However, care must be taken in achieving consistency. There is always difficulty in comparing the penalty handed down in one case with that imposed in another because of the wide divergence of facts and circumstances between cases (Axer at 365; Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [54]-[55]; Barbaro v The Queen; Zirilla v The Queen [2014] HCA 2; (2014) 253 CLR 58 at [28] and [40] and [41]; and Pham v R [2015] HCA 39; (2015) 256 CLR 550 at [28]-[32]).
The sentence imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).
These are the first sentencing proceedings under s 378D of the Mining Act to have been brought in this Court. There are therefore no directly comparable cases.
The defendants (the prosecutors did not assist in this regard) directed the Court to a number of analogous comparable authorities, especially in respect of the offences the subject of charges 1 to 3, where access tracks were cleared in contravention of the EL. They are summarised as follows: 1. in Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106, a project approval had been granted under Pt 3A of the Environmental Planning and Assessment Act 1979 ("EPAA"). It was a condition of that approval that the project be carried out generally in accordance with an environmental assessment. The defendant caused a haul road to be built in a location not in accordance with the location shown in the environmental assessment and over the site of a First Nations artefact. Approximately 2.04 ha of vegetation was cleared as a result of the construction of the haul road, of which 1.21 ha would have been cleared had the haul road been built in the approved location (a difference of 0.83 ha). Nearly 0.59 ha of White Box Yellow Box Blakeley's Red Gum Woodland, a threatened ecological community under the Threatened Species Conservation Act, was removed as a result of the commission of the offence, which would not have been cleared had the haul road been constructed in the approved location. The Court found that the environmental harm was low to moderate because the offence resulted in the clearing of a small area of a threatened ecological community and the harm to the site from a cultural and social perspective was considerable. The offence was committed negligently thereby increasing its objective seriousness. The Court concluded that the offence was in the low range of moderate objective seriousness. The defendant was fined $250,000, discounted by 30% to $175,000 for an early plea of guilty and other mitigating factors; 2. in Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154, the defendant stockpiled 90,000m3 of processed inter-burden material in a disused quarry on land outside the project boundary indicated in the environmental assessment, in contravention of a condition of the development consent that the project be carried out generally in accordance with that assessment. There was no evidence before the Court concerning the environmental harm caused the commission of the offence, and therefore, the Court made no findings in this regard. The offence was characterised as one of low objective seriousness. The defendant was fined $110,000, discounted by 25% to $82,500 for an early plea of guilty; 3. the defendant's logging operations crossed the boundary of a private property and were carried out partly within a national park in Plath v Vaccount Pty Ltd [2011] NSWLEC 202. The defendant harvested or damaged 503 trees located up to 500m into the national park in breach of s 156A of the National Parks and Wildlife Act 1974. The offence was committed negligently, thereby increasing its objective seriousness. The Court held that the offence was of moderate seriousness given the significant impact it had on local biodiversity and that the replacement of the affected trees was estimated to take in excess of 100 years. The defendant was fined $100,000, discounted by 23% for an early plea of guilty and a further 4% having regard to subjective factors, including assistance to the prosecutor. The total fine imposed was $73,000; 4. Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 concerned a defendant guilty of having cleared vegetation outside the area permitted by a consent granted under the Native Vegetation Conservation Act 1997. The defendant also failed to comply with a condition of the consent requiring the implementation of a drainage irrigation management plan prior to clearing. The Court found that the offence caused actual environmental harm of medium seriousness having regard to the high ecological value of the native vegetation cleared and because the vegetation consisted of habitat of threatened species known, predicted to occur, and observed in the area. The offence was committed recklessly, thereby increasing its objective seriousness. The Court concluded that the offence was of low to moderate objective seriousness. The defendant was fined $110,000, discounted by 25% to $82,500 for an early plea of guilty; and 5. finally, in Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93, the defendant cleared 4.1 ha of vegetation for the construction of a boundary fence in contravention of a condition of an approval granted under Pt 3A of the EPAA. Approximately 3.5 ha of native vegetation and 1.3 ha of White Box Yellow Box Blakeley's Red Gum Woodland, an endangered ecological community under the Threatened Species Conservation Act 1995, was cleared. The environmental harm was found to be minimal with short to medium term impact. While the defendant was aware, for at least part of the charge period, that the clearing was unlawful, the offence was nevertheless found to be of low to medium objective gravity. The defendant was fined $100,000, which was discounted by 30% to $70,000 for an early plea of guilty and other subjective factors.

[48]

Totality Principle

The totality principle is a relevant consideration when determining, as in the present proceedings, an aggregate penalty in sentencing for multiple offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62 to 63; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]; and Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [111]-[112]). Because there are multiple offences arising out of the same, common or related conduct, the totality principle applies in the present case. The effect of the totality principle is to require the Court, when imposing a series of sentences, to review the aggregate sentence to consider whether the totality of the penalty imposed is just and appropriate and reflects the overall criminality before the Court.
Care must nevertheless be taken "to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence" (Rawson at [222]; Gittany at [199] and [201]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46]; and R v Wheeler [2000] NSWCCA 34 at [36]-[37]). The 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 discount for multiple offending" (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]).
The Court discussed the totality principle and its application at length in Orica (at [224] to [229]). More recently see the examination and application of the principle in Barlow (at [111] to [112]).
Applying those authorities to the present proceedings, I find that the totality principle applies separately to charges 1 to 3, having regard to the commonality of fact, timing and location of the conduct giving rise to those contraventions, and again to charges 4 to 10 (Orica at [248]).

[49]

Financial Means

There was no evidence that the defendants would be unable to satisfy any monetary penalty likely to be imposed on them by this Court (s 6 of the Fines Act 1966).

[50]

Costs

The prosecutor sought an order for his professional costs as agreed or assessed under s 257B of the Criminal Procedure Act 1986. The defendants have agreed to pay the prosecutor's professional costs as assessed under 257G of that Act.
In the exercise of its sentencing discretion in relation to the quantum of any monetary penalty to be imposed on NC and NCO, the Court can take into account the costs that those parties agree to pay (Harris at [100]; Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123]; and 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 [2010] NSWLEC 170 at [50]).
The prosecutor also sought an order that the defendants pay his investigation costs. It is unclear if a power to award these costs in favour of the prosecutor exists under the Criminal Procedure Act (see the definition of "professional costs" in s 257A which purports to exclude such costs, whereas the reference in s 257B of that Act is more generally to "costs", not "professional costs". By contrast, s 257G refers to both).
As a consequence, the prosecutor relied upon the power expressly contained in s 378ZC(1) of the Mining Act: 378ZC Orders regarding costs and expenses of investigation (1) The court may, if it appears to the court that the Crown or a public authority has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the Crown or the authority the costs and expenses so incurred in such amount as is fixed by the order.
At the hearing, the defendants agreed to pay the prosecutor's professional costs and did not cavil with the proposition by the prosecutor that they pay his investigation costs. I have taken this agreement into account.
Subsequent to the sentence hearing, in written correspondence with the Court the prosecutor resiled from any reliance on s 378ZC(1) of the Mining Act because he could not furnish the Court with any evidence as to the nature and quantum of his investigation costs.
In the result, the Court does not need to resolve the question of construction inherent in s 257B of the Criminal Procedure Act (namely, whether the "costs" referred to therein include investigation costs) because the prosecutor stated that if a moiety was ordered by the Court (see the discussion immediately below) then he would not seek an award of his investigation costs pursuant to that provision (T73:06-08).

[51]

Moiety

The prosecutor contended that half of all monetary penalties imposed in these proceedings ought to be paid to the prosecutor pursuant to s 122 of the Fines Act 1996. This was because an order for the payment of the prosecutor's investigation costs would not compensate him for the totality of the time spent by the Regulator's officers investigating the commission of the offences.
An award of a moiety to a prosecutor is discretionary (Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 at [157]). One circumstance justifying the making of an order for a moiety is where a prosecutor does not have an independent right to recover its investigation costs (Secretary, Department of Planning and Environment v AGL Energy Ltd; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2 at [143], citing Boggabri at [62]). Having said this, the existence of an independent right to recovery of such costs does not deprive the Court of the power to impose a moiety (AGL Energy at [154]-[155] and Environment Protection Authority v Abbas [2021] NSWLEC 57 at [123] per Pain J).
In AGL Energy Moore J made an order for moiety of the fine imposed in Class 5 sentence proceedings for an offence against the EPAA. His Honour concluded (at [150]) that a moiety could nevertheless be ordered when "the full suite of additional therapeutic (but not punitive) powers contained in Pt 8.3 of the POEO Act were available", including the power to order the payment of the costs and expenses of the investigation. Although his Honour observed (at [155]) that the Court might decline "to exercise a discretion to award a moiety in circumstances where a statutorily based order [to pay costs] would have achieved the same outcome", his Honour went on to say (at [158]): 158. However, I also wish to make it clear that I am not to be taken as suggesting that there may not be other reasons why the ordering of a moiety might be appropriate. Specifically, it seems to me that there may be a basis for a prosecutor to seek both reimbursement of investigation expenses and a moiety of a fine in circumstances where a prosecutor could demonstrate that such an additional payment might support the sustaining, on a more general basis, of environmental law enforcement activities of the prosecuting authority.
As discussed above, in these proceedings, it is not immediately obvious that the Court can award the prosecutor his investigation costs under the Criminal Procedure Act. The prosecutor submitted that even if it could, such an award would, in any event, not include the significant time spent by officers of the Regulator investigating the offences and would not fully compensate him for his expenses in this regard (AGL Energy at [143] and Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 at [116]).

[52]

Publication Order

Pursuant to s 378ZE(1)(b) of the Mining Act the Court is empowered to make an order requiring that the defendants notify specified persons or classes of persons of the offences, their circumstances and consequences of their commission and of any orders made against them.
In the context of the purposes of sentencing, a publication order serves the functions of general deterrence, denunciation and a recognition of the harm caused by the offending (Environmental Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 at [105] per Duggan J).
In Environmental Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90, Preston J emphasised that the primary purpose of publicising the detection, prosecution and punishment of offenders is to enhance general deterrence (at [76]). His Honour observed that by the public becoming aware of offending conduct, people and businesses will be deterred from committing environmental offences (see also Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 at [163]-[165]).
As the prosecutor submitted, in order to achieve this purpose, the notice must be placed in publications and other media (including social media) accessed by the people and businesses to whom the deterrence is directed. In conformity with this principle, in Environment Protection Authority v Ardent Leisure Ltd [2018] NSWLEC 36 Robson J ordered a notice to be published in six newspaper and industry publications (at [166]).
There is no authority for the proposition that publication orders are inappropriate in circumstances where there has been no or minimal environmental harm caused as a consequence of the offending conduct (Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26 at [664]).
Having said this, it does not necessary follow that a publication order should be made as a matter of course in all sentencing proceedings for environmental crime (Bartter Enterprises (No 4) at [105]). The making of such an order must be warranted having regard to the circumstances of the case.
In the present case, a publication order is justified given that the offences involved contraventions of conditions of mining authorisations in the form of an EL and ML, caused actual and likely environmental harm, and where general deterrence is an important element in the imposition of an appropriate penalty.

[53]

Appropriate Sentence

Instinctively synthesising the factors discussed above, I find that the imposition of a monetary penalty is warranted for each of the offences committed as follows: 1. charge 1 - for NCO a fine of $110,000 and for NC a fine of $55,000; 2. charge 2 - for NCO a fine of $70,000 and for NC a fine of $35,000; 3. charge 3 - for NCO a fine of $70,000 and for NC a fine of $35,000; 4. charge 4 - for NCO a fine of $30,000 and for NC a fine of $15,000; 5. charge 5 - for NCO a fine of $40,000 and for NC a fine of $20,000; 6. charge 6 - for NCO a fine of $30,000 and for NC a fine of $15,000; 7. charge 7 - for NCO a fine of $30,000 and for NC a fine of $15,000; 8. charge 8 - for NCO a fine of $30,000 and for NC a fine of $15,000; 9. charge 9 - for NC a fine of $40,000; and 10. charge 10 - for NCO a fine of $20,000 and for NC a fine of $10,000.
Each penalty must be discounted by 25% for the utilitarian value of NC and NCO's pleas of guilty as follows: 1. charge 1 - for NCO a fine of $82,500 and for NC a fine of $41,250; 2. charge 2 - for NCO a fine of $52,500 and for NC a fine of $26,250; 3. charge 3 - for NCO a fine of $52,500 and for NC a fine of $26,250; 4. charge 4 - for NCO a fine of $22,500 and for NC a fine of $11,250; 5. charge 5 - for NCO a fine of $30,000 and for NC a fine of $15,000; 6. charge 6 - for NCO a fine of $22,500 and for NC a fine of $11,250; 7. charge 7 - for NCO a fine of $22,500 and for NC a fine of $11,250; 8. charge 8 - for NCO a fine of $22,500 and for NC a fine of $11,250; 9. charge 9 - for NC a fine of $30,000; and 10. charge 10 - for NCO a fine of $15,000 and for NC a fine of $7,500.
After the application of the totality principle, the penalties for the commission of charges 1 to 10 should be reduced respectively as follows: 1. charge 1 - for NCO a fine of $82,500 and for NC a fine of $41,250; 2. charge 2 - for NCO a fine of $40,000 and for NC a fine of $20,000; 3. charge 3 - for NCO a fine of $30,000 and for NC a fine of $10,000; 4. charge 4 - for NCO a fine of $22,500 and for NC a fine of $11,250; 5. charge 5 - for NCO a fine of $20,000 and for NC a fine of $10,000; 6. charge 6 - for NCO a fine of $15,000 and for NC a fine of $10,000; 7. charge 7 - for NCO a fine of $10,000 and for NC a fine of $5,000; 8. charge 8 - for NCO a fine of $10,000 and for NC a fine of $5,000; 9. charge 9 - for NC a fine of $15,000; and 10. charge 10 - for NCO a fine of $10,000 and for NC a fine of $5,000.

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Orders

In conformity with the reasons given above, the Court makes the following orders: Proceeding 2020/232873 (charge 1) 1. NCO is convicted as charged; 2. NCO is fined the sum of $82,500; Proceeding 2020/232874 (charge 2) 1. NCO is convicted as charged; 2. NCO is fined the sum of $40,000; Proceeding 2020/232875 (charge 3) 1. NCO is convicted as charged; 2. NCO is fined the sum of $30,000; Proceeding 2020/232876 (charge 4) 1. NCO is convicted as charged; 2. NCO is fined the sum of $22,500; Proceeding 2020/232877 (charge 5) 1. NCO is convicted as charged; 2. NCO is fined the sum of $20,000; Proceeding 2020/232878 (charge 6) 1. NCO is convicted as charged; 2. NCO is fined the sum of $15,000; Proceeding 2020/232879 (charge 7) 1. NCO is convicted as charged; 2. NCO is fined the sum of $10,000; Proceeding 2020/232880 (charge 8) 1. NCO is convicted as charged; 2. NCO is fined the sum of $10,000; Proceeding 2020/281874 (charge 10) 1. NCO is convicted as charged; 2. NCO is fined the sum of $10,000; Proceeding 2020/232881 (charge 1) 1. NC is convicted as charged; 2. NC is fined the sum of $41,250; Proceeding 2020/232882 (charge 2) 1. NC is convicted as charged; 2. NC is fined the sum of $20,000; Proceeding 2020/232883 (charge 3) 1. NC is convicted as charged; 2. NC is fined the sum of $10,000; Proceeding 2020/232884 (charge 4) 1. NC is convicted as charged; 2. NC is fined the sum of $11,250; Proceeding 2020/232885 (charge 5) 1. NC is convicted as charged; 2. NC is fined the sum of $10,000; Proceeding 2020/232886 (charge 6) 1. NC is convicted as charged; 2. NC is fined the sum of $10,000; Proceeding 2020/232887 (charge 7) 1. NC is convicted as charged; 2. NC is fined the sum of $5,000; Proceeding 2020/232888 (charge 8) 1. NC is convicted as charged; 2. NC is fined the sum of $5,000; Proceeding 2020/281851 (charge 9) 1. NC is convicted as charged; 2. NC is fined the sum of $15,000; Proceeding 2020/281850 (charge 10) 1. NC is convicted as charged; 2. NC is fined the sum of $5,000; Proceedings 2020/232873, 2020/232874, 2020/232875, 2020/232876, 2020/232877, 2020/232878, 2020/232879, 2020/232880, 2020/232881, 2020/232882, 2020/232883, 2020/232884, 2020/232885, 2020/232886, 2020/232887, 2020/232888, 2020/281850, 2020/281851, and 2020/281874 1. pursuant to s 122 of the Fines Act 50% of each fine imposed is to be paid to the prosecutor in respect of the penalty imposed for each offence; 2. pursuant to s 257B of the Criminal Procedure Act NC and NCO are to jointly pay the prosecutor's professional costs as determined pursuant to s 257G of that Act; 3. pursuant to s 378ZE(1)(a) and (b) of the Mining Act NC and NCO are to jointly: 1. within 28 days of the date of this order, cause a notice in the form of annexure 'A' to this judgment to be placed within the first 11 pages of the following publications, at a minimum size of 139 mm x 19 cm: (i) the Australian Financial Review; (ii) The Daily Telegraph; and (iii) The Narrabri Courier; 1. within 28 days of the date of this order and for a minimum of 30 days, cause a notice in the form of annexure 'A' to this judgment to be placed on the mine's website: ; 2. within 14 days of the date of this order, post the text of annexure 'A' to this judgment on Whitehaven Coal's LinkedIn page, together with the photo at annexure 'B'. The text is to be posted between the hours of 8:00 am and 10:00 am or 4:30 pm and 6:30 pm on a weekday. The post must remain as a pinned post on the LinkedIn page for a minimum of seven days, and as a post on the LinkedIn page for 30 days; 3. within 35 days of the date of this order, provide to the prosecutor a complete copy of the pages of the publications and websites referred to in orders 41(a) to (c) above in which the notices have appeared or been posted pursuant to these orders; 4. cause a notice in the form of annexure 'A' to this judgment to be placed in the next Sustainability Report published by Whitehaven Coal; and 5. within 28 days after the publishing of the next Sustainability Report, provide to the prosecutor a complete copy of the page of the Sustainability Report in which the notice has appeared pursuant to these orders; and 1. the exhibits are to be returned. Annexure A Narrabri Coal Pty Ltd and Narrabri Coal Operations Pty Ltd Guilty of Breaching Mining Act and Fined a Total of $372,500 Narrabri Coal Pty Ltd ("NC") has been convicted of 10 offences under the Mining Act 1992 (NSW) for being a holder of two authorisations under that Act, conditions of which were contravened by Narrabri Coal Operations Pty Ltd ("NCO"). The authorisations held by NC are Mining Lease 1609 ("ML") in respect of the Narrabri Coal Mine ("mine"), approximately 30km from Narrabri, New South Wales, and Exploration Licence 6243 ("EL"). NCO has been convicted of nine offences under the Mining Act 1992 for causing the contraventions of the EL. NC and NCO are both wholly owned subsidiaries of Whitehaven Coal Limited ("Whitehaven Coal"). They were fined a total of $372,500 by the Land and Environment Court of NSW ("the Court") for the commission of the offences. Two activity approvals under the EL provided for a number of exploration boreholes to be drilled at numerous locations within the exploration area. NCO contravened a condition of the EL on nine occasions, including drilling two exploration boreholes in the wrong locations, failing to seal one borehole within 28 days after use, and creating access tracks in unapproved locations within the Pilliga East State Forest. NCO also failed to prepare a Rehabilitation Management Plan within a required time period. As holder of the EL, NC was liable for those contraventions and was convicted for the nine offences. An exploration borehole within the ML was not sealed once it ceased to be used resulting in the tenth conviction against NC. The creation of access tracks in unapproved locations within the Pilliga East State Forest led to short term minimal environmental harm through the loss of habitat, breaks in ecological connectivity, and disturbances to the ecosystem in those locations. The conduct comprising the offences was first discovered by the NSW Resources Regulator ("the Regulator") during an audit of the mine. Following the audit, the defendants voluntarily suspended exploration activities from 24 July 2019. The Regulator formally suspended exploration activities from 22 August 2019, pending completion of a third party audit and report in relation to the defendants' systems for compliance with conditions of the EL and the completion of all necessary corrective actions to the satisfaction of the Regulator. The defendants completed all corrective actions and recommendations arising from the third party audit, and on 10 August 2020 the Regulator revoked the suspension. On 13 August 2021 the Court convicted the defendants of the offences against s 378D of the Mining Act 1992, and: 1. imposed fines totalling $372,500; 2. ordered the defendants to jointly pay the prosecutor's professional costs; 3. ordered the defendants to publish this notice in the Australian Financial Review, The Daily Telegraph, The Narrabri Courier; and 4. ordered the defendants to publish this notice on the mine's website and on Whitehaven Coal's Linkedln page and in its next Sustainability Report. Annexure B

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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: 13 August 2021

Stephen James Orr v Narrabri Coal Operations Pty Ltd; Stephen James Orr v Narrabri Coal Pty Ltd

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