Water NSW v Barlow

Land and Environment Court (NSW)|2019-02-08|Before: Preston CJ

Judgment

Mr Anthony Barlow is the occupier and manager of an agricultural property known as "Burren Downs". The property is 3,500 hectares (ha), of which 350 ha are under irrigation, 600 ha are used for dry land cropping and the balance is used for grazing. The south eastern boundary of the property borders the Barwon River.
Mr Barlow's parents, Frederick and Margaret Barlow, hold the perpetual lease of the property and are the joint owners of a Water Access Licence (Water Access Licence No 33618). The Access Licence is an unregulated river (B Class) Access Licence authorising the taking of water from the Barwon River, a watercourse within the Barwon-Darling Unregulated River Water Source. The water source is defined in the Water Sharing Plan for Barwon-Darling Unregulated and Alluvial Water Sources 2012. The Barwon-Darling river system is an unregulated river system. An unregulated river is a river without major storage facilities or dams or rivers where the storage facilities do not release water downstream.
Frederick and Margaret Barlow are also the joint holders of Water Supply Works and Water Use Approval (Number 85CA753238). This approval authorised the construction and use of water supply works at the property, including two mixed flow pumps, and the use of water taken from the water source by those works for the purpose of irrigation on the property.

The objective seriousness of the offences

The sentences that are to be imposed must be proportionate to both the objective seriousness of the offences committed by Mr Barlow and the subjective circumstances of Mr Barlow as the offender.

The nature of the offences

The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision, contravention of which constitutes the offence, and its place in the statutory scheme. A proper understanding of the purpose of creating an offence is assisted by a consideration of the objects of the statute. A fundamental consideration is the degree to which, having regard to the maximum penalty prescribed by the statute for the offence, the offender's conduct would offend against the legislative objective expressed in the offence.
The objects of the Water Management Act are stated in s 3: "The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular: (a) to apply the principles of ecologically sustainable development, and (b) to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and (c) to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including: (i) benefits to the environment, and (ii) benefits to urban communities, agriculture, fisheries, industry and recreation, and (iii) benefits to culture and heritage, and (iv) benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water, (d) to recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources, (e) to provide for the orderly, efficient and equitable sharing of water from water sources, (f) to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna, (g) to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users, (h) to encourage best practice in the management and use of water."
The principles of ecologically sustainable development are defined in the Dictionary to the Water Management Act as being the principles of ecologically sustainable development described in s 6(2) of the Protection of the Environment Administration Act 1991. These include the precautionary principle, intergenerational equity, conservation of biological diversity and ecological integrity, and improved valuation, pricing and incentive mechanisms (including the polluter pays principle).
Amongst the ways in which the Water Management Act provides for the sustainable and integrated management of the water sources of the State is by regulating the taking and use of water from water sources. Apart from some basic landholder rights to take and use water (in Part 1 of Chapter 3), a person can only take water from a water source if the person is the holder of an access licence (under Part 2 of Chapter 3) and use water taken from a water source if the person is the holder of a water use approval (under Part 3 of Chapter 3).
In this case, Mr and Mrs Barlow were the joint holders of a Water Access Licence (WAL No. 33618) entitling them to take water from the specified water source of the Barwon-Darling Unregulated River Water Source, subject to the conditions of the Water Access Licence and the conditions of the nominated water supply work approval. The nominated water supply work approval (No. 85CA753238) authorised in Sch 2 the construction and use of the specified water supply works of a bywash dam (work 1), two 660mm mixed flow pumps (work 2) and another 660mm mixed flow pump (work 3) at the specified locations on the property and in Sch 3 the use of water for the specified purpose of irrigation at the specified location of the property, both being subject to the conditions of the approval.
The specified water supply works are "metered works", being water management works (which include water supply works) in connection with which metering equipment has been installed (s 91I(4) of the Water Management Act).
"Metering equipment" is defined in the Dictionary of the Water Management Act as: "metering equipment includes any device used for or in connection with measuring the flow of water and any ancillary wiring, pipework, telemetry equipment or apparatus and any supporting structure."
In this case, the metering equipment installed and used in connection with the specified water supply works of the 660mm mixed flow pumps was the MACE AgriFlo Series 3 meter.
Use of metering equipment to measure the flow of water taken from the water source is an important means of enforcing compliance with the access licence and water supply work approval for the taking and use of water from a water source.
The Water Management Act emphasises the role that metering equipment plays in the regulatory scheme by creating offences of taking water when metering equipment is not working, s 91I(1) creates a mens rea offence and s 91I(2) creates a strict liability offence. The strict liability offence is relevant in this case. Section 91I(2) provides: "(2) A person who takes water from a water source to which this Part applies by means of a metered work while its metering equipment is not operating properly or is not operating is guilty of an offence."
In this case, Mr Barlow's conduct in taking water in the first and second periods from the Barwon-Darling Unregulated River Water Source while the metering equipment of the MACE meter was not operating properly undermines the regulatory scheme relating to the distribution, sharing and taking of water. The regulatory scheme licences water users to take a specified share of the available water within a particular water management area or water source and at specified times, rates or in specified circumstances (thereby providing for the orderly, efficient and equitable sharing of water between the environment, farmers and industry). Water meters are the main tool for the measurement and monitoring of water usage. Accurate metering is essential for fairness and equity of water sharing between users. A user is required to stop pumping until either the metering equipment is operating properly (s 91I) or written authorisation is given by the Minister (s 91I(3)). Mr Barlow's actions in taking water while his metering equipment was not operating properly avoided this regulatory scheme and this beneficial protection of water sources.
Another way in which the Water Management Act provides for the sustainable and integrated management of the water sources of the State is by empowering the Minister to give various types of directions to land holders and other persons to do or stop doing something in relation to water sources (under Part 1 of Ch 7). The directions the Minister may make under Part 1 of Ch 7 include: 1. directions that the taking of water from a specified water source is prohibited or is subject to specified restrictions (s 324); 2. directions concerning waste of water (s 325); 3. directions to install and maintain metering equipment in connection with a water supply work (s 326); 4. directions that a person stop unlawful construction or use of a water management work (s 327); 5. directions that a person remove unlawful water management works (s 329); 6. directions that, for a specified period, the use of a water management work is temporarily prohibited or subject to specified restrictions in the public interest (s 330); 7. directions to holders of basic land holder rights (s 331); 8. directions concerning damage caused by straying stock (s 332); and 9. directions to protect water sources (s 333).
In this case, the Minister gave a direction under s 324(1) of the Water Management Act, which provided at the time of the offences: "(1) If satisfied that it is necessary to do so in the public interest (such as to cope with a water shortage or threat to public health or safety), the Minister may, by order in writing, direct that, for a specified period, the taking of water from a specified water source is prohibited, or is subject to specified restrictions, as the case requires."
The Minister's delegate, "on being satisfied that it is necessary to do so in the public interest to cope with a water shortage in the city of Broken Hill", made the Temporary Water Restrictions Order Upper Darling Basin 2014 (No 2) commencing on 6 February 2015. The Order prohibited the taking of water from the Barwon-Darling Unregulated River Water Source as follows: "1. In the Barwon-Darling Unregulated River Water Source, the taking of water under a unregulated river (B Class) access licences or unregulated river (C Class) access licences is prohibited, except where the water is announced as available to be taken by media release from the NSW Office of Water, subject to any conditions prescribed in that announcement."
The Water Management Act emphasises the role that Ministerial directions play in the statutory scheme by creating an offence for failing to comply with a direction. Section 336C(1) provides: "(1) A person who fails to comply with a direction under this Part is guilty of an offence."
In this case, Mr Barlow's conduct of taking and using water, at a time when the taking of the water from the Barwon-Darling Unregulated River Water Source was prohibited, undermined the regulatory scheme, including to ensure the sustainable and integrated management of the water source. The Ministerial direction prohibiting the taking of water from the water source was given in the public interest to cope with a water shortage in the city of Broken Hill. There had been no announcement, by media release from the NSW Office of Water that water was available to be taken when Mr Barlow took water from the water source. This thwarted the purpose of the Ministerial direction to prohibit the taking of water in the public interest due to a water shortage.
Mr Barlow's conduct, in taking water in the two periods and during the embargo, offended against the objects of the Water Management Act and of the statutory provisions creating the offences against s 91I(2) and s 336C(1) of the Water Management Act and undermined the regulatory scheme. This increases the objective seriousness of the offences.

Maximum penalties

Both the offence against s 91I(2) and the offence against s 336C(1) of the Water Management Act are prescribed as having a Tier 2 penalty. At the time of Mr Barlow committing the offences in 2015, a Tier 2 penalty corresponded to a maximum penalty, in the case of an individual, of 2,250 penalty units or $247,500 and in the case of a continuing offence, a further penalty of 600 penalty units or $66,000 for each day the offence continued: s 363B(b) of the Water Management Act.
The prosecutor relied on s 365A of the Water Management Act in relation to the offence against s 336C(1) of the Water Management Act and contended that Mr Barlow was guilty of a continuing offence for each day the contravention of the Minister's direction continued, namely two days following the commencement of pumping on 16 May 2015.
These maximum penalties reflect the seriousness with which Parliament views the offences against s 91I(2) and s 336C(1) of the Water Management Act.

Harmfulness of the offences

The harm caused by commission of the offences is relevant to the objective seriousness of the offences. In sentencing for an offence against the Water Management Act, the Court is required to take into consideration: "(a) the impact of the offence on other persons' rights under this Act, (b) the market value of any water that has been lost, misused or unlawfully taken as a consequence of the commission of the offence, (c) the extent of the harm caused or likely to be caused to the environment (including, in particular, any water source or waterfront land) by the commission of the offence.." (s 364A(1) of the Water Management Act).
The causing of "substantial" injury, emotional harm, loss or damage by commission of the offence is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act").
The prosecutor contended that the substantial quantity of water taken is relevant to an assessment of the impact of the offences on other people's rights under the Water Management Act. During the first period of 16 - 18 May 2015, 381.62ML of water was taken and during the second period of 29 May - 2 June 2015, 512.52ML of water was taken. The prosecutor submitted that the water unlawfully taken in these two periods necessarily impacted on the rights of water users downstream.
The prosecutor submitted that, although there is no evidence of actual environmental harm, the Court is required by s 364A(1)(c) of the Water Management Act to take into consideration the harm "likely" to be caused to the environment by the commission of the offences. The prosecutor submitted that harm is likely to have been caused to the water source on the basis that water taken in the first period was taken during a time of water shortage.
Mr Barlow submitted that there is no evidence that the commission of the offences had any impact on any person's rights under the Water Management Act, including any person's right to take and use water from the water source. Mr Barlow contended that there is no evidence of an actual likelihood of environmental harm caused by the commission of the offence against s 336C(1) and certainly no evidence which would allow the degree or the magnitude of any risk of environmental harm to be ascertained. Whilst water taken in the first period was taken at a time when the Minister had determined there was a water shortage in the city of Broken Hill, there is no evidence that the taking of water at that time in fact caused harm to the environment or to the water source.
Mr Barlow submitted that the commission of the offences against s 91I(2) of the Water Management Act cannot have caused any harm by taking water when the meter was not operating properly because, if the meter had been operating properly, the water would still have been taken anyway.
I find that the prosecutor has not established, beyond reasonable doubt, that the commission of the offence against s 336C(1) impacted on other persons' rights under the Water Management Act or caused or was likely to cause harm to the environment, including the Barwon-Darling Unregulated River Water Source. Whilst taking water contrary to the temporary water restrictions order had the potential to impact on people's rights and on the environment, the evidence does not establish the likelihood or actuality of any such impacts.

Foreseeability of harm and practical measures to prevent harm

In sentencing for an offence against the Water Management Act, the Court is required to take into consideration: "(d) the practical measures that may be taken to prevent, control, abate or mitigate that harm; (e) the extent to which the person could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence" (s 364A(1)(d) and (e)).
"That harm" in paragraph (d) refers to "the extent of harm caused or likely to be caused to the environment" by the commission of the offence in s 364(1)(c).
The prosecutor submitted that Mr Barlow did not have systems in place to ensure that water was not taken during any embargo and that any water taken was properly measured and recorded. The prosecutor submitted that Mr Barlow could have taken simple measures to avoid commission of the offences. In relation to the offence against s 336C(1), Mr Barlow could have made a simple enquiry of the regulator (including NSW Office of Water) through checking the internet, making a telephone call or enquiring by email about whether the embargo had been lifted so that water was available to be taken from the Barwon-Darling Unregulated River Water Source. In relation to the offences against s 91I(2), Mr Barlow (or his employees) could have checked the metering equipment's display panel to ensure that the quantity of water being taken was being measured.
Mr Barlow accepted that for the offence against s 336C(1), the practical measures that could have been taken were having reliable systems in place to ensure that water was not taken at a time when an embargo was in place. Mr Barlow has now put such measures in place. In relation to the offences against s 91I(2), Mr Barlow also acknowledged that he was insufficiently proactive to ensure compliance with the requirement as to the operation of the metering equipment. Mr Barlow has since changed the systems. The systems now in place are likely to result in the initial error that occurred in this case being detected at the time pumping commences. That detection would result in the immediate cessation of pumping pending the authorised service company (Waterquip) checking and repairing the meter or otherwise confirming its good working order. The current systems would also likely result in the earlier detection of errors closer to the time of onset.
Mr Barlow drew a distinction between practical measures to prevent, control, abate or mitigate the commission of the offences or the duration of the offences and practical measures to prevent, control, abate or mitigate harm caused or likely to be caused by commission of the offences. Mr Barlow accepted that the current systems, put in place after the commission of the offences, are likely to achieve the former, although not the latter. As there is no evidence of likely or actual environmental harm caused by the commission of the offences, it cannot be concluded that implementation of the current systems would have prevented, controlled, abated or mitigated any environmental harm.
I find that Mr Barlow could and should have put in place proper systems for checking whether water was available to be taken (such as checking whether the embargo was still in force) and whether the metering equipment was operating properly when taking water. The current systems now implemented by Mr Barlow for checking both of these matters were practical measures that Mr Barlow could have implemented at the time of the offences. The implementation of these measures would likely have prevented, controlled, abated or mitigated the commission of the offences. However, it cannot be established that they would have prevented, controlled, abated or mitigated any harm to the environment, as the evidence does not establish that any harm to the environment was in fact caused by the commission of the offences.

Control over causes giving rise to the offences

The Court is required to take into consideration the extent to which Mr Barlow had control over the causes that gave rise to the offences: s 364A(1)(f) of the Water Management Act.
Mr Barlow had complete control over the causes giving rise to the offences. Mr Barlow is the manager of the property. The agricultural activities for which the water was taken were for the benefit of his company. Mr Barlow gave the directions to start pumping water in both periods to his employee, Mr Von Warner.

Commission of two offences during water shortage

A particular matter that the Court is required to take into consideration in sentencing for an offence against the Water Management Act is "whether the offence was committed during a severe water shortage (that is, in contravention of an order in place under s 49A or 324)": s 364A(1)(g) of the Water Management Act.
In the first period of 16 - 18 May 2015, the Minister's delegate had issued a temporary water restriction order under s 324 of the Water Management Act, because the delegate was satisfied that "it is necessary to do so in the public interest to cope with the water shortage in the city of Broken Hill". The delegate said in the press release issued on 28 January 2015, at the time of making the Order, that: "The continuing dry conditions, across much of western NSW had made it necessary to put in place these temporary restrictions to help ensure future large flows reach the Menindee Lakes… The water supply situation for Broken Hill remains critical with assured supplies providing only 14 months security."
The prosecutor submitted that the fact that the offence against s 336C(1) was committed during a water shortage while an order under s 324 was in force, aggravates the offence against s 336C(1) committed by Mr Barlow.
Mr Barlow submitted that this consideration under s 364A(1)(g) cannot assist in determining the sentence for the offence against s 336C(1) because contravention of the Order in force under s 324 of the Water Management Act is an element of the offence. It can be taken into consideration for the offence against s 91I(2) committed in the first period when the order under s 324 was in force. However, Mr Barlow submitted that the Court would take account of the fact that he is to be sentenced separately for the offence against s 336C(1) committed by reason of the same conduct of taking water in this period.
I take into consideration in imposing the penalty for the offence against s 91I(2) committed by Mr Barlow in the first period that the offence was committed in contravention of an Order in force under s 324 during a water shortage. I do not take this fact into account in imposing the penalty for the offence against s 336C(1) of contravening the order in force under s 324 of the Water Management Act, as this is an element of that offence. The extent to which I take this fact into consideration is limited by my later consideration of the totality principle, as there is a degree of overlap in sentencing for both of these offences in respect of this aspect.

State of mind in committing the offences

The offences against s 91I(2) and s 336C(1) of the Water Management Act are strict liability offences. Subject to the principle in R v De Simoni (1981) 147 CLR 383 at 389; [1981] HCA 31, the state of mind of an offender in committing a strict liability offence can have an effect on increasing the seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed. Offences committed deliberately are more serious than offences committed by inadvertence and error. A large measure of premeditation or planning will make an offence more serious than if it is committed on the spur of the moment. A failure to heed advice or warnings, including from regulatory authorities, will be an aggravating feature: Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 at [98]-[99].
One of the matters to be considered in sentencing a person for an offence against the Water Management Act is "the person's intentions in committing the offence" (s 364A(1)(h) of the Water Management Act). The strict liability offence against s 91I(2) is a less serious offence than the mens rea offence against s 91I(1) of the Water Management Act. The offence against s 91I(1) is that: "(1) A person who takes water from a water source to which this Part applies by means of a metered work while its metering equipment is not operating properly or is not operating and: (a) who intentionally or negligently fails to ascertain whether the metering equipment is not operating properly or is operating, or (b) who knows or has reasonable cause to believe that the metering equipment is not operating properly or is not operating, is guilty of an offence."
Application of the principle in R v De Simoni requires that, in sentencing for an offence against s 91I(2), the Court should not take into account as aggravating circumstances of the offence, matters which would lead to the offender being punished for the more serious offence against s 91I(1) for which the offender has not been charged and convicted: R v De Simoni at [389].
As the De Simoni principle is part of the common law, it can be circumscribed by statute. As noted above, s 364A(1)(h) of the Water Management Act requires the Court, in imposing a penalty on a person for an offence against the Water Management Act, to take into consideration the person's intentions in committing the offence. This consideration is not necessarily coterminous with the mens rea element in the offence against s 91I(1). The person's intentions in committing the offence of taking water from a water source by means of a metered work while its metering equipment is not operating properly or is not operating may or may not involve intentionally or negligently failing to ascertain whether the metering equipment is not operating properly or is not operating or knowing or having reasonable cause to believe the metering equipment is not operating properly or is not operating. Accordingly, the Court, in sentencing a person for an offence against s 91I(2), can take into consideration the person's intentions in committing the offence without actually sentencing the person for the more serious offence against s 91I(1) for which the person has not been convicted. In Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57 at [8], [54]-[55], [92], [98] and [105], the Court of Criminal Appeal held that the De Simoni principle, that a sentencing judge cannot have regard to uncharged acts or aggravating circumstances that would have warranted a conviction for a more serious offence, is breached only when an offender is in fact sentenced for the conduct constituting the uncharged offence or aggravating circumstance, not when it is taken into account.
For the offence against s 336C(1) of the Water Management Act, no De Simoni considerations arise, as there is no more serious offence.
The prosecutor submitted that, in relation to the offence against s 336C(1), the evidence supports findings beyond reasonable doubt that: "- the offender deliberately took water the subject of the offence; - the offender was aware when he took water that there was a temporary water restriction order in force; - the offender received information and advice that a temporary water restriction was in force and acted in disregard of this information and advice when he gave directions to his employee to commence pumping water on 16 May 2015; … - the offender committed the offence for financial reasons, rather than need; - the offender only stopped taking water when Water NSW intervened and directed him to do so."
The prosecutor submitted that Mr Barlow is likely to have known of the temporary water restriction at the time the water was taken in the first period of 16 - 18 May 2015 because: "- the order was published on the Department of Primary Industries' website and emailed to water users and water user groups, of which Mr Barlow was a member; - during the embargo period, emails were sent to him in his capacity as a member of the Barwon-Darling water users group recalling that the embargo was in force. On 9 April 2015, he received an email containing a media release of the NSW Office of Water dated 6 April 2015 which noted that 'temporary restrictions remain in place for the Barwon-Darling River with no access to flows by entitlement holders with B and C Class licences.' The covering email reminded him (and other recipients) that 'embargos on the unregulated Barwon-Darling River were unlikely to be lifted anytime soon.' The offender did not take water despite the flow event that occurred at that time (April 2015) suggesting that he knew it was not permitted; - A document attached to an email sent to him on 22 April 2015 noted that the embargo remained in place; - the offender was Vice-Chairman of the Barwon-Darling water users group from 25 March 2015. He attended meetings of the group. The embargo was a significant matter that would be expected to have been discussed among water users; - while the prosecution accepts that some confusion may have been engendered by the Minister informing a meeting on 25 March 2015 that no embargo was in place, that error was overtaken by subsequent communications to water users. In particular, when the flow commenced on or about 6 April 2015, the media release reminded users of the temporary water restriction in the unregulated Barwon-Darling system. No media release lifting the embargo was issued at any stage (until 29 May 2015)."
The prosecutor submitted that the heightened state of mind in relation to the illegality of the offence against s 336C(1) increases the objective seriousness of the offence.
In respect of the two offences against s 91I(2) of the Water Management Act, although the prosecutor accepted that any finding that Mr Barlow intentionally or negligently failed to ascertain whether the metering equipment was operating properly or that Mr Barlow knew or had reasonable cause to believe that the metering equipment was not operating properly cannot aggravate the objective seriousness of the offences against s 91I(2) on the basis of the Di Simoni principle, the prosecutor submitted that the Court can still take into consideration Mr Barlow's intention in committing the offences against s 91I(2). Mr Barlow deliberately took the water in the first and second periods. The offences were not the result of a mere mistake in relation to the metering equipment. Prior to taking the water in the first period, Mr Barlow knew that the metering equipment had previously failed to record the taking of water in 2013 - 2014. Prior to taking water in the second period, Mr Barlow knew (by being told by Mr Warner) that the metering equipment had not been operating properly in the first period.
Mr Barlow contested that he intentionally or negligently failed to comply with the Minister's direction prohibiting the taking of water in the first period, contrary to s 336C(1) of the Water Management Act. Mr Barlow said that he believed, based on the Minister's statements at the public meeting on 25 March 2015, that the embargo had been lifted and that water was available to be taken from the Barwon-Darling Unregulated River Water Source during the first period. Mr Barlow accepted, however, that he may have acted recklessly in not checking whether the embargo had actually been lifted by revocation of the order made by the Minister under s 324 of the Water Management Act or announcement by media release from the NSW Office of Water that water was available to be taken from that water source. In relation to the offences against s 91I(2) of the Water Management Act, Mr Barlow accepted that he deliberately took water during the two periods at a time when, as a matter of fact, the metering equipment was not operating properly. Mr Barlow submitted, however, that he did not know that the metering equipment was not operating properly. The evidence provides a satisfactory explanation for why the metering equipment did not operate properly in both periods.
In the first period, the meter's recording of zero velocity and flow rate for most of the time between the morning of 16 May 2015 and the morning of 18 May 2015 was explicable by loose connections between the plugs of the sensor leads and the sockets in the meter. On the morning of 18 May 2018, Mr Barlow's employee, Mr Von Warner, disconnected the sensor leads from the two pumps, cleaned the plugs and reconnected the plugs but unfortunately swapped the sockets into which the sensor leads were plugged. This caused the meter to record negative velocities and flow rates for the two pumps, as the meter was configured for different orientations of the sensors connected to the pumps. In the second period, as the sensor leads remained swapped, the meter continued to record negative velocities and flow rates for both pumps until the afternoon of 2 June 2015 when the problem was detected and the sensor leads were swapped back and plugged into their correct sockets in the meter. The times when the meter did not record velocity and flow rate for a pump might be explained by the pump having been turned off at that time. Mr Barlow submitted that this evidence does not support the prosecutor's submission that Mr Barlow deliberately took water knowing that the metering equipment was not working properly.
I find that Mr Barlow was reckless in committing the offence in s 336C(1) of the Water Management Act in failing to comply with the Order under s 324 prohibiting the taking of water from the Barwon-Darling Unregulated River Water Source during the first period of 16 - 18 May 2015. In late January 2015, Mr Barlow accepted that he became aware that the Minister had, by making an official document, directed that the taking of water from that water source was prohibited; in effect, Mr Barlow knew that there was an embargo on pumping water from that water source. Mr Barlow knew that the embargo would remain in force until the Minister lifted the embargo by some official means. Mr Barlow knew no official document lifting the embargo had been issued at any time until 29 May 2015.
On 25 March 2015, Mr Barlow attended a meeting of water users at Bourke. The Minister and representatives of the NSW Office of Water and the prosecutor attended the meeting. At the start of the meeting before the Minister had arrived, a water user advised the group that the Minister had earlier told the user that there was "no embargo on pumping on the Barwon-Darling". After the Minister arrived at the meeting, he reiterated that "there is currently no embargo on the Barwon-Darling". A file note made by Mr Scott, an employee of the NSW Office of Water who was present at the meeting, recorded these statements of the Minister as well as the Minister's response to the query by a water user about the Minister saying that there was no embargo, "that you're not listening -> there's no embargo". No representative of the NSW Office of Water or the prosecutor corrected the Minister's incorrect statement that there was no embargo.
Subsequent to the meeting on 25 March 2015, Mr Barlow received information that the embargo on taking water from the Barwon-Darling Unregulated River Water Source remained in force. On 9 April 2015, Mr Barlow received an email, in his capacity as a member of the Barwon-Darling water users group, containing a media release from the NSW Office of Water dated 6 April 2015 stating "that temporary restrictions remain in place for the Barwon-Darling River with no access flows by entitlement holders with B and C Class licences". The covering email dated that "embargos on the unregulated Barwon-Darling River were unlikely to be lifted any time soon".
On 22 April 2015, Mr Barlow received an email attaching a document that noted that the embargo remained in place. Mr Barlow said that although he received these emails advising that the embargo was still in place, he did not read them at the time.
I find that Mr Barlow was recklessly indifferent to whether the embargo was still in place. He had heard the Minister say at the meeting on 25 March 2015 that the embargo had been lifted, but he did not check whether that had actually occurred. He knew that the embargo was imposed by a formal process and needed to be lifted by a similar formal process, but he took no steps to ascertain whether the formal process for lifting the embargo had been carried out.
In relation to the offences against s 91I(2) of the Water Management Act, I find that the prosecutor has not proven, beyond reasonable doubt, that Mr Barlow committed the offences intentionally, negligently or recklessly. I find, on all of the evidence, that the most likely explanations for why the metering equipment was not operating properly are as follows. First, loose connection of the sensor leads in the meter might have resulted in zero velocities and flow rates being recorded for most of the first period. Mr Ryan Hunt, a Waterquip pump and irrigation technician, suggested that the meter's recording of zeros could be from the plugs of the sensor leads being disconnected from their sockets, but there could also be other reasons for registering zeros. Mr Hunt noted that the plugs in this meter were not able to be locked into place, which could lead to the connection between the plugs and sockets becoming loose. Mr Von Warner referred to his previous experience that vibration of the pump could break the connection or cause a weak connection, resulting in a recording of zeros. Mr Bernard Ward, a former Water NSW officer, considered that only a total disconnection of the plugs from the sockets would account for the zero recordings of the meter on this property. I find that a loose connection, and not only total disconnection, of the plugs in the sockets could account for the zero recordings of the meter. There could be a variety of mechanisms by which the connection between the plugs and the sockets might become loose, including the inability of the plugs to be locked into place or movement of the sensor leads, whether by vibration from the pump or other cause.
Second, swapping of the sensor leads in the meter resulted in negative velocities and flow rates being recorded for the balance of the first period and most of the second period. It was not in dispute that Mr Warner pulled both plugs of the sensor leads out of their sockets in the meter, cleaned the plugs, and inserted the plugs into the wrong sockets. The plug on the sensor lead for pump 1 was inserted into the socket for pump 2 and vice versa. It was common ground that this would cause negative readings if the configurations for the sensors of the pumps were different.
Third, turning off of one pump or another in the second period could result in no velocity or flow rate being recorded for the pump that had been turned off. Mr Warner said that after a certain number of hours of operating the pumps, there is a need to service the pump. One service is done every 250 hours but another service is done every 24 to 36 hours. Servicing is done by turning the pump off, greasing and oiling it, then starting it up again. If there are two pumps, this servicing can be done by shutting one pump off, letting it cool down, servicing it, and then starting it up again and repeating the process for the other pump. Mr Barlow agreed that servicing of the pumps might account for turning one or other of the pumps off. Mr Barlow also suggested that if the flows in the river are dropping and are insufficient to sustain two pumps, one pump would be turned off.
I do not accept the prosecutor's submission that Mr Barlow or an employee at his direction deliberately tampered with or interfered with the metering equipment in order to prevent or change data being recorded by the metering equipment.
Equally, however, I do not accept Mr Barlow's submission that the improper operation of the metering equipment was an accident without human intervention. The loose connection of the sensor leads in the sockets in the meter likely was a result of the plugs not being properly secured in the sockets or vibration, when pumping occurred, loosening the connection. Mr Warner had experienced such a problem of loose connection with another meter on another property. He had been advised to fix that problem by unplugging the sensor leads, cleaning the plugs and reconnecting the sensor leads in the meter. The swapping of the sensor leads, by plugging the wrong plug into the wrong socket, was caused by Mr Warner taking this remedial action. Mr Warner's replacement of the battery in the meter appears to have been unnecessary but did not affect the proper operation of the metering equipment.
The short times when no velocity or flow rate was recorded for one or other of the pumps during the second period might have been caused by the pumps being turned off. Mr Barlow and Mr Warner suggested that this might have occurred in order to service one or other of the pumps or to reduce the volume of water being taken, but neither person said that they turned the pumps on or off in this second period. Mr Warner thought another employee might have done so, but he could not now recall. If this is the explanation for the change in data, from recording negative to zero velocity and flow rate, then the change in data is caused by human intervention and not accident.

Reason for committing the offences

The criminality involved in the commission of an offence is to be measured not only by the seriousness of what occurred but also by reference to the reasons for its occurrence. The carrying out of an offence to make a profit, or to save incurring an offence, or to avoid the cost of obtaining and implementing a statutory permission, such as a licence or approval under the Water Management Act, increases the seriousness of the offence: see Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [47], [48]. The committing of an offence for financial gain is an aggravating factor: s 21A(2)(o) of the Sentencing Act.
The prosecutor noted that Mr Barlow admitted that he had taken water in the two periods to store it for future commercial cropping use. His plan was to grow two fields of cotton the following summer. At the time, he considered that the existing water in the dam was sufficient but wanted water in reserve. The dam was about half full in April 2015. The dam had a capacity of 5000 megalitres. As of 2 June 2015, Mr Barlow estimated that the dam was approximately two thirds full. The prosecutor submitted that the offences were submitted for financial gain, as the water would allow Mr Barlow to increase the money he earned from crops grown on the property. The offender necessarily profited from the offences.
Mr Barlow submitted that none of the offences were committed "for" financial gain. True the water was taken for the purpose of conducting his agricultural business. The water taken was stored in the dam to be used for irrigation of commercial crops. But the commission of the offences was not done for financial gain. Mr Barlow did not take water during the embargo (in contravention of s 336C(1)) for financial gain. Mr Barlow did not take water while the metering equipment was not operating properly (in contravention of s 91I(2)) for financial gain. Mr Barlow did not seek to avoid having the water that he had taken being deducted from his water allocation.
I find that the prosecutor has not proven, beyond reasonable doubt, that Mr Barlow committed the offences against s 336C(1) and s 91I(2) of the Water Management Act for financial gain. As Mr Barlow conceded, his actions in taking water in the two periods were part of operating his agricultural business. But this does not establish that he committed the offences for financial gain. The volume of water that Mr Barlow took in the two periods was within his water allocation and for which he paid a fee. Mr Barlow gained no financial advantage by taking the volume of water that he took in the first period of 16 - 18 May 2015 during the embargo, rather than later in the month after the embargo had been lifted on 29 May 2015. Mr Barlow gained no financial advantage in taking water in the first and second periods by the metering equipment not operating properly. The volume of water taken was nevertheless later calculated and could be deducted from his water allocation: he did not take or use water at no cost.

Conclusion on objective circumstances

Having regard to the nature of the offences committed by Mr Barlow; the maximum penalties prescribed for the offences; the non-establishment of impact on other persons' rights under the Water Management Act or harm to the environment; the availability of practical measures that would have prevented the commission of the offences, but not necessarily harm to the environment; Mr Barlow's control over the causes giving rise to the offences; the commission of the offence against s 91I(2) in the first period whilst there was a water shortage; Mr Barlow's recklessness in committing the offence against s 336C(1), by failing to comply with the Minister's direction prohibiting the taking of water during an embargo, but not in committing the offences against s 91I(2) in the first and second periods; and the non-establishment that Mr Barlow committed the offences for financial gain, I find that the offence against s 336C(1) is of medium objective seriousness and the offences against s 91I(2) are of low objective seriousness.

Subjective circumstances

Within the limits set by the objective seriousness of the offences, the Court may take into account factors personal to Mr Barlow.

No prior convictions

Mr Barlow does not have any prior convictions for any environmental offences. This is a mitigating factor: s 21A(3)(e) of the Sentencing Act.

Prior good character

There is evidence that Mr Barlow has been, otherwise than committing the offences for which he has been charged, a person of good character. This is another mitigating factor: s 21A(3)(f) of the Sentencing Act. This factor has less significance for environmental offences, as they are typically committed by persons of prior good character: Plath v Rawson at [147]-[148].
Nevertheless, I take into consideration the evidence that Mr Barlow is generally held to be a person of good character.

Pleas of guilty

Mr Barlow has pleaded guilty to each of the offences: s 21A(3)(k) and s 22 of the Sentencing Act. He is entitled to a discount for the utilitarian value of his pleas of guilty to the criminal justice system. In assessing the utilitarian value of the pleas, the timing of the pleas is a critical factor. In determining the extent of any discount that should be given for a plea of guilty, the Court is required to consider when the offender pleaded guilty or indicated an intention to plead guilty: s 22(1)(b) of the Sentencing Act. A plea entered at the earliest possible opportunity has more significant utilitarian benefit and should attract a higher discount than a plea entered at a later stage: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [154], [158], [160].
In this case, there was a delay in Mr Barlow indicating that he would plead guilty and in entering the pleas of guilty to the charges. The summonses commencing the proceedings were filed on 8 March 2018. Mr Barlow indicated that he would be pleading not guilty to the charges. On 2 May 2018, a 10 day trial was fixed, to commence on 26 November 2018. On 9 November 2018, Mr Barlow formally entered pleas of not guilty to the charges. On 21 November 2018, the Court granted leave to the prosecutor to file amended summonses and to rely on supplementary affidavits, in part to address objections raised by Mr Barlow to existing affidavits. Mr Barlow did not indicate at that time that he intended to change his pleas. On the first day of the trial, Monday 26 November 2018, Mr Barlow changed his pleas and entered a plea of guilty to each of the charges. The first time that Mr Barlow indicated that he intended to change his pleas was on the preceding Thursday, 22 November 2018, when he notified the prosecutor and the Court of his intention to plead guilty to the charges on the first day of the trial.
The prosecutor submitted that the lateness of the change of plea reduces significantly the utilitarian benefit of the guilty pleas to the criminal justice system. By the time Mr Barlow indicated his intention to enter guilty pleas, just two working days before the trial was due to commence, all preparations had been made for the trial, including the prosecutor preparing and filing extensive evidence, including supplementary evidence to address objections filed by Mr Barlow.
The prosecutor also submitted that the utilitarian benefit of a plea of guilty is reduced where the offender, by the plea, admits only the essential legal ingredients of the offence but otherwise contests the factual basis of the plea and on which the Court should pass sentence. If the contested factual matters require a lengthy or complex sentence hearing to resolve the factual basis for sentence, the utilitarian benefit to the criminal justice system that ordinarily should have resulted from the plea of guilty will be dissipated: Plath v Rawson at [153].
The prosecutor submitted that in this case, despite the agreement of facts for the purpose of sentence, Mr Barlow contested that he knew of the existence of the embargo at the time of committing the offence against s 336C(1). He also contested knowing that the metering equipment was not operating properly at the time of committing the offences against s 91I(2) of the Water Management Act. This required the prosecutor to prepare for the sentence hearing evidence of expert and departmental witnesses. If the Court makes findings adverse to Mr Barlow on these contested factual matters, the prosecutor submitted the utilitarian value of his pleas of guilty may be diminished by the additional time taken in the sentence hearing in relation to these factual matters.
Mr Barlow submitted that, although late, his indication prior to the trial commencing of his intention to plead guilty still avoided the necessity of holding the trial, which had been fixed for 10 days, and thereby saved the Court and the prosecutor significant expense and time.
Mr Barlow submitted that he had made extensive admissions of fact for the purposes of sentencing in the agreed statement of facts. These admissions significantly narrowed the issues in dispute for the purposes of sentencing. Mr Barlow submitted that insofar as he did contest certain factual matters, which the prosecutor contended were aggravating factors, if the Court finds that the prosecutor has not proven these matters beyond reasonable doubt, Mr Barlow's contesting of the matters will be shown to be justified.
Mr Barlow submitted that the utilitarian value of his pleas of guilty should still be found to be significant, around 20%.
I find that the significant delay in indicating and entering the pleas of guilty significantly reduces the utilitarian value of the pleas. Much of the utilitarian benefit that ordinarily would come from pleas of guilty was lost by Mr Barlow delaying indicating and entering the pleas of guilty until just before and at the trial. I assess the utilitarian value to be at the lower end of the range of 10% - 25%, namely at 12.5%.

Remorse for the offences

Apart from the utilitarian value of a plea of guilty, genuine contrition and remorse of an offender is a further mitigating factor. However, s 21A(3)(i) of the Sentencing Act states that remorse by the offender for the offence will only be a mitigating factor if: "(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)"
The existence of genuine contrition and remorse is also relevant to the weight to be given to individual deterrence and the prospects of rehabilitation of the offender: R v Thomson; R v Houlton at [116]. Contrition by an offender can be associated with insight by the offender into the reasons for, or factors contributing to, the offending conduct. If the offender has insight into the offending conduct, there is a reduced risk of reoffending and a reduced need for a sentence to be imposed for the purpose of individual deterrence: Plath v Rawson at [158].
The prosecutor submitted that the evidence does not clearly establish that Mr Barlow is remorseful for committing the offences.
Mr Barlow gave evidence, both by affidavit and orally, accepting responsibility for his actions. He acknowledged that adequate systems were not in place at the time of committing the offences to ensure compliance with the Water Management Act. He accepted that he was responsible for not having adequate systems in place. Since commission of the offences, Mr Barlow has made changes to the systems to prevent a reoccurrence of the offences. Mr Barlow has endeavoured to make reparation for his actions. On 18 May 2015, the day his attention was drawn to the fact that he was pumping while there was an embargo, Mr Barlow made two offers to make recompense for the water taken. Had those offers been accepted, and Mr Barlow returned the water, there would have been no loss to the water source. Mr Barlow has also offered for the volume of water taken during the first and second periods in 2015 to be deducted from his current water allocation if that did not already occur in 2015 or 2016.
I find Mr Barlow has demonstrated remorse for the offences. He has accepted responsibility for his actions. He has endeavoured to make reparation, as far as practicable, for the offences he committed.

Assistance to authorities

The Court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree with which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of proceedings relating to the offence concerned or any other offence: s 23(1) of the Sentencing Act.
Mr Barlow has assisted the prosecutor by providing information at the time of the commission of the offences and in the subsequent investigation of the offences. He provided information on 18 May 2015 about operating the pumps over the previous two days. He participated in a record of interview on 2 June 2015. Although legally required to do so, Mr Barlow complied with notices issued by the prosecutor to have the meter inspected and certain changes made. Mr Barlow has assisted, since entering his pleas of guilty, by agreeing with the prosecutor a statement of agreed facts.

The appropriate sentences for the offences

I take into account the objective circumstances of the offences and the subjective circumstances of Mr Barlow as the offender, as I have discussed above.
I take into account the purposes of sentencing in s 3A of the Sentencing Act. The purposes of punishment, retribution and denunciation are relevant. There is a need for the Court, through the sentences it imposes, to ensure that Mr Barlow is adequately punished for the offences, to hold him accountable for his actions, and to denounce the conduct of Mr Barlow in proportion to the seriousness of the offences.
The sentence needs to act as a deterrent. The purpose of general deterrence is relevant to ensure that water users take and use water from water sources in accordance with access licences and water use approvals and any directions of the Minister under the Water Management Act, as well as by means of a water management work with which metered equipment has been installed and is operating properly. The sentence of the Court must act to deter other water users from committing like offences to those committed by Mr Barlow.
In the circumstances of this case, having regard to Mr Barlow's lack of prior convictions, his remorse for committing the offences, his prior good character, the actions taken at the time of and following commission of the offences to address the causes giving rise to the offences and to prevent reoccurrence of the offences, and the unlikelihood of Mr Barlow reoffending, there is no particular need for individual deterrence of Mr Barlow.
Synthesising all of the relevant objective and subjective circumstances of each offence and of Mr Barlow as the offender, and considering the relevant purposes of sentencing, I consider that the appropriate monetary penalties to be imposed are: 1. for the offence against s 336C(1), $99,000, 2. for each of the offences against s 91I(2), $61,875.
These amounts should be discounted by 12.5% for the utilitarian value of the pleas of guilty. This makes the amounts: 1. for the offence against s 336C(1), $86,625, 2. for each of the offences against s 91I(2), $54,140.
The prosecutor contended that the Court should impose a further penalty for the two days the offence against s 336C(1) of the Water Management Act continued, as it was a continuing offence (s 365A of the Water Management Act). Mr Barlow submitted that a further penalty was not necessary as the fact that the offence continued for two days can and should be taken into account in assessing the objective seriousness of the offence against s 336C(1) committed by Mr Barlow. I agree with this submission and have reflected the fact that the offence continued for two days in my assessment of the appropriate monetary penalty for the offence against s 336C(1).
Because there are multiple offences, and the offence against s 336C(1) and s 91I(2) of the Water Management Act committed in the first period arise out of the same conduct, the totality principle is applicable. The effect of the totality principle is to require the Court which passes a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is just and appropriate and reflects the total criminality before the Court. In relation to fines for multiple offences, an appropriate result may be reached by reducing the amount of the fine for each offence.
Care must be taken, however, to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality or the sentence for any individual offence to become disproportionate to the objective gravity of that offence.
In this case, I consider that the totality principle does require there to be an adjustment of the monetary penalty for the offence against s 91I(2) committed in the first period. The aggregate of the monetary penalties for the offence against s 336C(1) and the offence against s 91I(2) committed in the first period marginally exceeds what I consider is just and appropriate to reflect the total criminality involved in Mr Barlow taking water in the first period. There is a degree of overlap in the conduct of taking water during a water shortage. That water shortage led to the Minister directing that the taking of the water from the Barwon-Darling Unregulated River Water Source was prohibited (the contravention of which direction constituted the offence against s 336C(1)) and it also is an aggravating factor under s 364A(1)(g) of the Water Management Act required to be taken into consideration in imposing a penalty for the offence against s 91I(2) committed whilst there was a water shortage. It would be wrong to punish an offender twice for conduct falling in that area of overlap: Pearce v The Queen (1998) 194 CLR 610 at 623.
The adjustment that I consider just and appropriate to avoid punishing Mr Barlow twice for the commission of this aspect of the offences that overlaps is to reduce the monetary penalty for the offence against s 91I(2) committed in the first period by 10%, so that the amount becomes $48,726.
The monetary penalties to be imposed are therefore: 1. for the offence against s 336C(1), $86,625; 2. for the offence against s 91I(2) committed in the first period of 16 - 18 May 2015, $48,726; 3. for the offence against s 91I(2) committed in the second period of 29 May - 2 June 2015, $54,140.
The prosecutor sought, and Mr Barlow did not contest, an order that Mr Barlow pay the legal costs of the prosecutor. As the amount of the costs has not yet been able to be agreed, the appropriate order is that Mr Barlow pay the prosecutor's costs under s 257B of the Criminal Procedure Act, in an amount to be determined under s 257G of the Criminal Procedure Act.
The Court orders: 1. Mr Anthony Barlow is convicted of the offence against s 336C(1) of the Water Management Act 2000 charged in proceedings number 2018/75634, the offence against s 91I(2) of the Water Management Act 2000 charged in proceedings number 2018/75635, and the second offence against s 91I(2) of the Water Management Act 2000 charged in proceedings number 2018/75633. 2. Mr Barlow is fined: 1. $86,625 for the offence against s 336C(1) of the Water Management Act 2000 charged in proceedings number 2018/75634; 2. $48,726 for the offence against s 91I(2) of the Water Management Act 2000 charged in proceedings number 2018/75635; and 3. $54,140 for the second offence against s 91I(2) of the Water Management Act 2000 charged in proceedings number 2018/75633. 1. Mr Barlow is to pay the prosecutor's costs of proceedings numbers 2018/75633, 2018/75634 and 2018/75635 as may be determined under s 257G of the Criminal Procedure Act 1986.

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: 22 March 2019

(2009) 168 LGERA 121

(2009) 170 LGERA 253

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