107 The prosecutor submits that in an abandoned building which had been vandalised and which formed part of a construction site and in which some strip-out works had been carried out, there was a foreseeable risk that any oil located in tanks located on the site could escape the site whether by inundation or otherwise. The evidence indicates that there was ongoing vandalising of this site even in the short period between the departure of Dwyers and the occupation by the defendant, but particularly in the period of some weeks over Christmas when it seems that there was actually a person or persons living on the site.
108 The defendant submits that the incident was either unforeseeable or had a very low foreseeability. The defendant concedes that, if it was foreseeable, the introduction of oil into the stormwater system would be likely to cause harm to the environment. However, the defendant submits that the sequence of events that led to the oil leaving the site was unexpected and substantially unforeseeable. In that regard the defendant directs attention to the following factors.
109 First, the incident was caused by the inundation of underground oil tanks located inside a building that had recently operated as a business and there was no evidence of any significant water leaks in the relevant area prior to this event. Secondly, a council s 149 certificate which the defendant had obtained did not indicate that the land was flood-prone or likely to be the subject of inundation. Thirdly, the defendant had made an inquiry and had been informed that the tanks had been drained. Fourthly, a licensed demolisher had been appointed to the demolition job and a firm of environmental engineers and a site auditor had been engaged, or was in the process of being engaged, to remove the underground storage tanks under a council-approved Remedial Action Plan which had made no mention of an inundation risk. Fifthly, the inundation occurred through the failure of a box gutter but the defendant was unaware of any defect in the gutter and there was no indication of a likelihood of a water inundation from the gutter in any document in the possession of the defendant. Sixthly, the inundation was caused by unexpected rain indicative of overnight flash flooding. Finally, the risk of such a pollution incident had not been remarked on in any report obtained from the defendant's environmental consultant concerning the site and its remediation.
110 The defendant concedes that a prudent regime of monitoring the site would involve checking whether any known subterranean oil tanks contained oil, that being relevant to risks of ongoing contamination, possibly fire risks and to the demolition which was soon to commence. The defendant disputes, however, that it would logically follow that it was foreseeable that a failure to check the known tank would lead to a flooding incident.
111 In my opinion, it was reasonably foreseeable that if there was inundation then the underground tank could flood causing any oil therein to escape. I earlier commented upon the failure of the defendant to check whether that tank was empty of oil. However, in my opinion, the foreseeability of inundation of this precise nature was very low because, on the evidence, the box gutter failed during the heavy storm on the night preceding the incident and there was no evidence of any previous flooding.
112 Some emphasis was placed by the prosecutor on the email of 30 January 2007 from the defendant's environmental consultant to the defendant, referred to at [28] above. In the email, the consultant summarised a discussion that morning with an officer of the defendant. The first matter summarised was that the defendant would send the consultant an electronic copy of the confirmation of the consultant's engagement that day in response to a proposal that the consultant had submitted to the defendant in August 2006. It was noted that the consultant's services would commence upon reception of the confirmation. The second matter summarised was the identity of the demolition contractor to be engaged by the defendant. The third matter summarised was the consultant's understanding of the work sequence that had been proposed. The first step in that sequence was the preparation of a technical scope of works report by the consultant. The third step in the sequence was a site inspection and clearance by the consultant. The proposed work sequence then moved on to demolition and removal of the five then known underground storage tanks.
113 The prosecutor's ultimate submission is that if the defendant had proceeded in accordance with that sequence and in a more timely way, then the preparation of the technical scope of works report by the consultant or the site inspection by the consultant should have revealed the oil in the subject underground tank. That is true. However, in the defendant's favour, the very next day after receipt of the email of 30 January, the defendant did send the consultant a consultancy services agreement for the remediation of the work confirming the consultant's engagement on the site and requesting the consultant to sign and return it. The consultant did not do so until March, some time after the incident. The only residual criticism by the prosecutor, I think, is that if the defendant had moved more quickly, and not left it to 30 January 2007 to crystallise the engagement with the consultant, that could and should have led to, at least, disclosure of the fact that the tank had oil in it. There is some substance in that proposition. In circumstances where there was an abandoned building which had been vandalised and which formed part of the construction site, it would have been prudent to get on with that process more quickly.
Control over the causes
114 A factor bearing on the gravity of the offence is the extent to which the offender had control over the causes that gave rise to the offence: s 241(1)(d) POEO Act. The prosecutor concedes that the defendant inherited a difficult site but submits that it nevertheless had control and management of the site and substantial control over the causes of the commission of the offence. The defendant acknowledges that it had ultimate control over the site. However, it submits with, I think, some force that its effective control over the faulty box gutter was limited in the sense that there was nothing to indicate that it was faulty prior to the incident.
Deterrence
115 The prosecutor submits that there is a need for the penalty to serve as a powerful general deterrent. I do not accept that the need for a general deterrent is aptly described as powerful in the circumstances of this case where the foreseeability of the inundation was very low. That is not, however, to negate the proposition that the need for some general deterrence is a consideration.
Prior convictions
116 The defendant has no prior convictions. This is a mitigating factor: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
Discount for early plea
117 It is common ground that the defendant entered a guilty plea at an early stage and that it is entitled to a full discount of twenty-five per cent for the utilitarian value of the plea: R v Thompson; R v Houlton (2000) 49 NSWLR 383.
Other mitigating factors
118 The defendant makes the following additional submissions in mitigation, which I accept: