Configuration of the Marina before demolition
33 Prior to the demolition of the pontoons at the Marina, the Marina comprised:
(i) a main walkway 2.7 m wide and 67 m long (Main Walkway);
(ii) a northern arm (Northern Arm), 2.1 m wide and approximately 102 m long, perpendicular to the Main Walkway;
(iii) a southern arm (Southern Arm), 2.1 m wide and approximately 106 m long, perpendicular to the Main Walkway; and
(iv) 'finger pontoons', 1.2 m wide and each between 7.1 and 10.9 m long, perpendicular to both sides of the Northern Arm and Southern Arm.
34 The configuration of the Marina can be seen from the plan of the Marina prior to the demolition of the pontoons commencing at page 82 of the Bundle [of Agreed Documents on Liability].
35 The WUC involved the demolition of pontoons, pontoon walkways, pontoon fingers and pontoon gangways at the Marina, such waste including, without limitation, plastic flotation chambers, metal frames, wooden planks, carpet lengths, metal fixtures, and wiring derived from the demolition (Waste Materials).
Commencement, carrying out, and completion of WUC
36 ECWC commenced the WUC in November 2015. ECWC had primarily completed the WUC by 24 December 2015.
37 In performance of the WUC, ECWC stripped down various Waste Materials at the Marina into their component parts. Photographs and videos taken during the demolition depict ECWC's activities, including Mr King and/or others acting on behalf of ECWC:
a. walking on the pontoons;
b. approaching the pontoons and demolished pontoons by boat;
c. using a crane to remove demolished pontoon segments;
d. moving floating demolished pontoon sections by boat; and
e. loading demolished pontoon segments, including floatation chambers, onto a boat and onto a barge by crane.
Removal of the Waste Materials from the Marina
38 Following demolition of the structural components of the Marina, some of the demolished pontoons were stored at the Marina in an area described by Mr King as 'the duck pond'. In a recorded interview with RMS on 22 March 2017 (the ROI), Mr King stated that:
(a) ECWC commenced stripping down the demolished pontoon segments and disposing of their component parts from that location;
(b) initially, portions of the stripped down metal frames were taken to a scrap metal yard, however, Mr King felt that stripping down the pontoons at the Marina and disposing of the Waste Material in this way "turned out to be just a headache" and was "too much of a cluster to keep pulling it all apart, and too slow";
(c) after this, the sections of demolished pontoon were either:
(i) cut up and taken directly to the tip from Berowra;
(ii) cut up and stored for around 12 months in a yard in Windsor before being taken to the tip and disposed of as general waste;
(iii) given away; or
(iv) transported by water to the Mooring;
(d) in so far as (c)(iv) is concerned, "a whole bunch" of the smaller pontoon segments were tied together and towed by ECWC from the Marina to the Mooring; and
(e) ECWC tied the Waste Materials together for their transportation by water from the Marina to the Mooring.
39 Aerial images obtained by RMS from the Office of Environment and Heritage depict the Dumb Barge attached to the Mooring on 6 December 2015 with no pontoon material attached around the Dumb Barge. Those aerial images are produced in the Bundle commencing at page 81.
40 In December 2015, an RMS officer sighted the Dumb Barge and a number of demolished pontoons and other items of building waste attached to the Mooring.
41 On 6 February 2016, an RMS officer inspected the Mooring and observed a Dumb Barge attached to the Mooring with numerous sections of pontoons, in poor condition, tied to it, together with rubbish including PVC pipe, planks, marine carpet and general debris. Photographs were taken during this inspection.
42 Aerial images obtained by RMS from the Office of Environment and Heritage depict the Dumb Barge at the Mooring with pontoon segments stored at the side of the Dumb Barge on 13 February 2016. Those aerial images are produced in the Bundle commencing at page 83.
43 On 16 February 2016, an RMS officer inspected the Mooring and observed a Dumb Barge attached to the Mooring with numerous sections of pontoons, in poor condition, tied to it. The pontoons were constructed of large black plastic buoyancy chambers with a combination of steel framework and timber decking. Photographs taken by the RMS officer on that date are produced in the Bundle commencing at page 85.
44 On 23 February 2016, an RMS Officer inspected the Mooring. Some decking and rubbish had been removed but a considerable amount of Waste Material remained on the barge.
45 In the ROI, Mr King stated:
(a) The materials were ratchet-strapped together and attached to the Dumb Barge.
(b) While the materials were being stored at the Mooring, Mr King observed people inspecting and showing interest in the pontoon segments that were stored at his Mooring and on three or four occasions found that pontoon segments were being taken away from the Mooring.
(c) On multiple occasions, Mr King found that materials (including pontoons sections up to 9m in length) had been moved from the Mooring to various locations around Pittwater including the beach at Lovett Bay and Careel Bay (see map at page 100 of the Bundle).
(d) On these occasions, Mr King rounded up the materials that he found and strapped them all together again at the Mooring.
The First Clean Up Notice issued to ECWC on 24 February 2016
46 On 24 February 2016, RMS issued a Clean Up Notice to ECWC pursuant to s 91 of the Protection of the Environment Operations Act 1997 (First Clean Up Notice). A copy of the First Clean Up Notice commences on page 94 of the Bundle.
47 The First Clean Up Notice directed "Mr Benjamin Peter KING of East Coast Wharf Constructions Pty. Ltd", amongst other things, to remove, within seven days of 9am, Friday 26 February 2016:
"...the unsecured materials and pontoon type sections attached to commercial mooring CL8027 from the navigable waters of NSW, by means of land disposal at Cargo Wharf, Church Point, Pittwater, to an appropriate land based refused disposal site. The materials must not be moved to another location on navigable waters of NSW."
Inspection of demolished materials stored at the Mooring on 7 March 2016
48 On 7 March 2016, an RMS officer observed that the materials the subject of the First Clean Up Notice continued to be attached to the Mooring. Photographs taken by the RMS officer on that date are produced in the Bundle commencing at page 98.
The Second Clean Up Notice
49 RMS issued a further Clean Up Notice to ECWC on 15 March 2016 (Second Clean Up Notice). A copy of the Second Clean Up Notice commences at page 105 of the Bundle.
50 The Second Clean Up Notice stated that "In view of the pollution hazard that is likely to occur as a result of the pontoons remaining in their current state in navigable waters", Mr King and ECWC were directed within seven days of 9am, Friday 18 March 2016, to "remove the dilapidated pontoon type sections attached to commercial mooring CL8027" and to comply with the other directions in the First Clean Up Notice.
Removal of Waste Materials
51 In his record of interview, Mr King stated:
(a) ECWC pulled lengths of pontoons out of the water, stripped them back and cut them up into smaller pieces at the Mooring.
(b) Waste Materials were then taken to Church Point Cargo Wharf where they were taken out of the water with a crane and placed onto a truck.
(c) A portion of the Waste Materials were disposed of by ECWC at landfill tips, taken to metal recyclers and also placed into storage.
52 On 23 March 2016, Mr King wrote to RMS on behalf of ECWC and stated that "I wish to advise that all action, requirements and clean up has been removed and taken to the tip" [sic]. A copy of that letter commences at page 107 of the Bundle.
53 At the end of March, an RMS officer observed that there were no more waste materials derived from the Marina at the Mooring.
RMS' salvage of sunken pontoons
54 On 27 September 2016, RMS salvaged three pontoon segments from the seabed of Pittwater (the Pontoon Segments).
55 The Pontoon Segments were retrieved from the seabed of Pittwater at a location with the latitude and longitude co-ordinates of 33° 38.11932'S and 151° 17.19396'E.
56 The distance between the location of the Mooring and the salvage location has been been calculated by the Prosecutor's geospatial analyst, Amanda Kildea, as approximately 282.88m.
57 The three Pontoon Segments formed part of the Berowra Waters Marina, prior to the works being undertaken by ECWC.
58 The Pontoon Segments consist of a galvanised metal frame lined with treated pine plank floorboards, surmounting black plastic flotation boxes 1.0 m x 0.9 m wide, and 0.72 m deep, with 28 flotation boxes in total. A roll of marine carpet was found tied to the third Pontoon Segment.
59 Photographs taken by an RMS officer at the time of the retrieval of the Pontoon Segments commence at page 116 of the Bundle [of Agreed Documents on Liability].
60 The deposition of the Pontoon Segments and connected materials into the marine environment of Pittwater resulted in an alteration to that environment by:
(i) direct means (smothering of the sea floor and the provision of hard structures where there were none beforehand); and
(ii) indirect means (altering the hydrodynamic environment surrounding the pontoons as they lay on the bottom).
61 The deposition of the Pontoon Segments into the marine environment caused actual harm and likely harm to the to the environment.
Criminal Antecedents and Compliance History
62 Mr King's criminal antecedents and non-compliance history are set out in Annexure A.
- It is not necessary, at this point, to address any of the detail of Mr King's criminal antecedents and non-compliance history. To the extent relevant, they are later addressed in my consideration of matters concerning Mr King arising pursuant to s 21A(3)(e) of the Sentencing Procedure Act.
- Although what has been set out above represents the fashion in which the Prosecutor frames the issues requiring consideration, I later set out, in my own terms, how I see the matters I am required to determine and the sequence in which it is appropriate to address them.
- Of the elements in red from the Prosecutor's document, the following observations are to be made:
- with respect to the not conceded elements in pars 40, 41 and 44, all those matters are established on the basis of the affidavit evidence of Mr Nugent. Nothing during Mr Nugent's cross‑examination challenged the accuracy of those matters. I therefore accept that they are established;
- with respect to the contested element of par 43, the accuracy of the description of the pontoons is self-evident from the photographs at folios 85 and 87 of Exhibit B (these are reproduced as Annexures A and B to this decision); and
- the matters set out in pars 55 and 56 are established by the unchallenged Expert Report of Ms Kildea.
- As a consequence, only those matters set out by the Prosecutor at pars 57, 60 and 61 are the subject of controversy requiring my resolution of them.