Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator

[2022] NSWCCA 9

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9

Hearing dates:

17 November 2021

Date of orders:

2 February 2022

Decision date:

02 February 2022

Before:

Preston CJ of LEC at [1];
Price J at [2];
Adamson J at [136]

Decision:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

Catchwords:

CRIME – environmental offence – Water Management Act 2000 (NSW) – appeal against sentence – whether judge adopted a two stage approach to sentencing – whether judge erred in not taking into account publication order in determining quantum of fine – whether error in assessing objective seriousness of offence – whether mistake of law and appellant company’s lack of intention to commit the offence was mitigating factor – whether genuine contrition and remorse demonstrated – whether quantum of fine was manifestly excessive

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)-(3)

Water Management Act 2000 (NSW), Pt 3A, Pt 5, ss 3, 60G, 91B, 338A, 353A, 353B, 353C, 353F, 353G(1), 363B, 364, 364A

Water Management Amendment Act (No 31) 2018 (NSW)

Cases Cited:

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239

Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299

Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499; [1936] HCA 40 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Jackson v R [2021] NSWCCA 15

Lai v R [2021] NSWCCA 217

Lees v R [2019] NSWCCA 65

Mulato v R [2006] NSWCCA 282

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17

Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30

R v Baker [2000] NSWCCA 85

Saddler v R [2009] NSWCCA 83; (2009) 194 A Crim R 452

Zreika v R [2012] NSWCCA 44; 223 A Crim R 460

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Budvalt Pty Ltd (Appellant company)
Grant Barnes, Chief Regulatory Officer
Natural Resources Access Regulator (Respondent)

Representation:

Counsel:
M Elliott SC; G Lewer (Appellant company)
G Wright SC; M Pruscino (Respondent)
Solicitors:
Horton Rhodes Lawyers (Appellant company)
Crown Solicitor’s Office (Respondent)

File Number(s):

2020/307214

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 5

Citation:

Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113

Date of Decision:

29 September 2020

Before:

Moore J

File Number(s):

231599, 231598, 231608 and 231621 of 2018

Judgment

1. PRESTON CJ of LEC: I agree with Price J.

2. PRICE J: Budvalt Pty Ltd (“the appellant company”) appeals against the fine of $252,000 imposed by Moore J (“the judge”) in the Land and Environment Court on 29 September 2020 for an offence contrary to s 91B(1) of the Water Management Act 2000 (NSW) (“WMA”). The maximum penalty for the offence was $1,100,000. [1]

   1. WMA, s 363B; since amended by Water Management Amendment Act (No 31) 2018 (NSW), sch 1 [65]-[67], commencing 27 June 2018.

3. The judge also made an order pursuant to s 353G(1)(a) of the WMA for the publication of the court orders. The appellant company does not appeal against this order.

Notice of appeal

4. The notice of appeal identifies the following grounds:

1. The fine of $252,000 was manifestly excessive.

2. The sentencing judge erred in not finding that the offending conduct fell at or near the lowest range of conduct prohibited by s 91B of the Water Management Act 2000, and in doing so:

(a) failed to give any or any proper consideration to conduct falling    within the scope of that section;

(b) erroneously treated the scale of the channel and work to construct it as determinative of the characterisation of the objective seriousness of the offending conduct;

(c) did not afford any or any proper weight to a range of other considerations relevant to the objective seriousness of the conduct, including:

(i) the absence of any aggravating features under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999;

(ii) the absence of aggravation resulting from the presence of any factors in s. 364A of the Water Management Act 2000;

(iii) the absence of any environmental harm;

(iv) the fact that if approval had been sought it would have been granted, such as to indicate that the harm of the offending conduct was limited to                    non-   compliance with the correct regulatory process;

(d) the matters referred to in appeal ground 3, where relevant to an assessment of the objective seriousness of the conduct.

3. The sentencing judge erred by not having proper regard to, and attributing any or any proper weight to, relevant subjective features of the matter in arriving at the figure of $252,000, including that the [appellant company]:

(a) had been in business for 17 years;

(b) was a first offender;

(c) did not intend to commit the offence, being unaware of the fact that approval was required for the particular work in question (instead incorrectly concluding that there was no such intention and/or any    need for mitigation on that basis);

(d) had sought approval once aware of the need to do so, and that the  approval would have been granted;

(e) had demonstrated genuine contrition and remorse (instead incorrectly finding that the [appellant company] had not demonstrated any).

4. The sentencing judge erred by adopting the impermissible two-stage and mathematical approach referred to in Markarian (2005) 228 CLR 357 in determining the quantum of the fine.

5. The sentencing judge erred in finding that the making of publication orders and the [appellant company’s] lack of opposition to such an order was irrelevant to a determination of the quantum of any fine, and in proceeding to determine the quantum of the fine without regard to those matters.

The Amended Summons and particulars

5. The Amended Summons and particulars to which the appellant company pleaded guilty are in the following terms:

“The prosecutor claims:

1.   An order that the [appellant company], Budvalt Pty Ltd ACN 003 989 268, having its principal place of business at Miralwyn Cotton, Miralwyn, Carinda in the State of New South Wales, appear    before a Judge of the Court to answer to the charge that between  about 29 July 2015 and 20 August 2015 inclusive at the property  known as Miralwyn at 1503 Miralwyn Road, Carinda within  the County of Clyde, the Parish of Wyabray in the State of New South Wales (Miralwyn), the [appellant company] committed an offence contrary to section 91B(1) of the Water Management Act 2000 (the Act) in that it constructed and then used a water supply   work and did not hold a water supply work approval for that work.

Particulars

(i)   Miralwyn

The [appellant company] was the landholder and occupier of Miralwyn at all relevant times

(ii)   Water supply work

The channel at Miralwyn on or near Lot 12 of DP 43554 and Lot 21 of DP 42179 in the County of Clyde, the Parish of Wyabray, identified on the map attached to this summons and marked as Attachment 1, constructed for the purpose of conveying water to the point at which it was to be used at Miralwyn (the channel)

(iii)   Construction and use of water supply work

The channel was constructed at Miralwyn for the [appellant company] at its direction between 29 July and 10 August 2015 by contractors known to the [appellant company] as "Clyde Cotton”.

Thereafter on 20 August 2015, the channel was used by the [appellant company] to convey water taken from the Macquarie  River into storage for use for irrigation.

(iv)   Absence of approval

The [appellant company] did not hold a water supply work approval authorising the construction or use of the channel.

2.   An order that the [appellant company] be dealt with according to law for the commission of the above offence.

3.   Such orders as the Court in its discretion sees fit to make.”

The sentence proceedings

6. The proceedings on sentence took place on 26 August 2020 by remote means due to the COVID-19 pandemic.

7. An agreed statement of facts was tendered by the Prosecutor as was an affidavit of Amanda Fuller, the Manager Customer Assessments and Approvals for WaterNSW. Ms Fuller, who manages the team that assesses and approves applications submitted under the WMA, deposed that a decision on the appellant company’s application for approval for the water supply work on Miralwyn was likely to be made in 2020 and was likely to be granted.

8. The appellant company did not adduce oral evidence before the judge, but the written material tendered in the appellant company’s case included a letter from Mr Peter Harris to the judge, a list of organisations and events to which the appellant company and Mr Harris had personally contributed, a character reference from Mr Quinn and a marked up photograph entitled “Miralwyn (Budvalt Pty Ltd) Investigation Map”.

9. In his letter to the judge, Mr Harris wrote that he and his wife were the directors of the appellant company which owned one property called Miralwyn in 2003. Over the past 17 years, the appellant company had purchased a further six properties that adjoined or were in the vicinity of Miralwyn. He also owned land in partnership with his wife adjoining or in the vicinity of these properties with a total land area of approximately 76,000 hectares.

10. Mr Harris wrote that the appellant company had not been convicted or fined for any wrongdoing by any of the various water authorities. The channel, the subject of the offence, was constructed primarily to transfer tail water (recycled and potentially contaminated water) from the property called Wombullion to the nearest available water storage which was situated on the adjoining property of Miralwyn. The channel was constructed, Mr Harris wrote “after we acquired…Wombullion”.

11. Mr Harris wrote that “[w]ithout this channel in certain circumstances it would have been difficult to contain the tail water, therefore this water could have run onto neighbouring land and potentially back into the river system creating an offence under the Water Management Act”.

12. Mr Harris recounted that since 2017, a senior staff member who was dedicated to ensuring compliance with the WMA and regulations had been employed, which was designed to prevent contraventions of the regulatory regime going forward.

13. Mr Harris wrote:

“I understand now that an approval should have been sought and on behalf of Budvalt regret that the approval was not obtained before the construction of the channel.”

14. During oral submissions before the judge, Mr Elliott SC, who appeared for the appellant company before the judge and on appeal, said to his Honour:

“In respect of undermining of the regulatory scheme as my client has indicated in the correspondence that has been tendered and which I now confirm in these submissions orally that my client feels remorse and regrets the contravention.” [2]

2. Tcpt, 26 August 2020, p 11(32-35).

15. At the conclusion of submissions, judgment was reserved. His Honour delivered his sentencing judgment on 29 September 2020.

The sentencing judgment

16. The judge recounted the agreed facts with respect to the “rolled-up” charge to which the appellant company had pleaded guilty:

1. The appellant company is a registered Australian company with its principal place of business at “Miralwyn Cotton” located at 1503 Miralwyn Road, Carinda NSW 2831, being an irrigation farm situated approximately 90 kilometres from Walgett and used predominantly for growing cotton.

2. Between about 29 July 2015 and 20 August 2015 (“the charge period”), the appellant company was the registered proprietor and occupier of 30 parcels of adjoining land known together as “Miralwyn” (“the land”). The land included Lot 12 of DP/43554 and Lot 21 of DP/42179.

3. The land was subject to a number of water use approvals which permitted water to be pumped from the Macquarie River and used for irrigation on the land.

4. Before the charge period, a number of irrigation channels and water storages were constructed on the land.

5. At the appellant company’s direction, the channel was constructed by third party contractors in the period 29 July 2015 to 10 August 2015.

6. The channel is about 2 kilometres in length and thirty metres wide from outside bank to outside bank, with a water carrying width of approximately 10 metres.

7. On 20 August 2015, the appellant company was using the channel for the purpose of holding or conveying water for use in irrigation. On that date, water was being pumped into the channel from a briary (a natural holding area) located adjacent to it, the water being sourced from the Macquarie River which was in proximity of the channel.

8. The channel joined existing water conveyance and storage infrastructure on the property.

9. At the time of the offence, Part 3 of Chapter 3 of the WMA (which includes s 91B) applied to the Lower Macquarie River Water Source in relation to all approvals, other than drainage work approvals, flood work approvals and aquifer interference approvals.

10. The channel was not the subject of any water supply work approval during the period from 29 July 2015 to 20 August 2015. Neither the appellant company, nor its directors or managers held any water supply work approval for the construction or use of the channel during the charge period as was required to construct and use the channel.

11. On 20 August 2015, the investigators undertook a directed interview with the manager of the appellant company, Mr Jack Harris, during which he was asked questions and provided answers.

12. Following the interview, Mr Jack Harris agreed to accompany the investigators to pumps located on the Macquarie River. One river pump was observed to be running and pumping water into the briary.

13. On 22 January 2018, WaterNSW issued a statutory notice under s 338A to the appellant company. In response, the appellant company made admissions that the channel was constructed between 29 July 2015 and 10 August 2015 for the purpose of channelling water.

14. On 9 September 2015, Mr Jack Harris, in his capacity as manager of the appellant company, submitted an application to the then regulator (the NSW Office of Water) for retrospective approval of the channel. The approval status remains pending.

17. After recounting the agreed facts, the judge observed that the charge to which the appellant company had pleaded guilty was one of strict liability to which mens rea (intention) played no part. His Honour then referred to relevant statutory provisions in the WMA, to relevant sentencing legislation and to the maximum penalty of the offence.

18. The judge found the respondent had failed to make out the factor of aggravation under s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“SPA”); namely, that the offence was committed for financial gain. His Honour was not satisfied beyond reasonable doubt that financial gain was the, or a, reason for the commission of the offence. The judge pointed to the absence of evidence that the construction of the channel would have resulted in additional water becoming available for the appellant company’s commercial activities beyond what it was legally entitled to, or that the appellant company would not have been able to use the water to the same extent without construction of the channel.

19. Though the judge considered the channel to be a very substantial structure, his Honour found there was no evidence that its construction or use caused, or would cause, any harm to the environment. [3] The judge found the only harm caused by the commission of the offence was to the objectives and integrity of the regulatory system established by the WMA.

    3. SPA, s 21A(3)(a).

20. The judge had regard, as a matter in favour of the appellant company, to its lack of any prior convictions for the purposes of considering s 21A(3)(e) of the SPA.

21. The judge found the appellant company was of good character,[4] but that the factors establishing this were of only modest weight in considering the appellant company’s subjective factors. His Honour observed that the community activities of Mr Peter Harris and Ms Jane Harris set out in Mr Peter Harris’ 14 August 2020 letter were personal and not corporate ones, and accordingly were not relevant to considering the appellant company’s good character. The judge further observed that the 17 August 2020 letter of Mr Quinn provided testimony that the appellant company’s activities made some contribution to the cotton-growing industry but also provided an inference of some element of corporate self-interest in doing so.

    4. SPA, s 21A(3)(f).

22. The judge gave positive regard, in considering the likelihood of reoffending,[5] to the appellant company’s employment of a staff member since 2017 working to ensure compliance with the regulatory regime. However, his Honour found the conclusion drawn in favour of the appellant company was “limited” as the information was provided in the form of Mr Peter Harris’ letter and there had been no opportunity for the respondent to test the geographic extent and nature of Mr Adams’ functions. The judge observed this finding also applied to consideration of the appellant company’s prospects of rehabilitation. [6]

    5. SPA, s 21A(3)(g).

    6. SPA, s 21A(3)(h).

23. The judge observed that there was no evidence of either of the appellant company’s directors attending the sentencing proceedings (which were held electronically due to COVID-19) and no sworn evidence of contrition and remorse on behalf of the appellant company. [7]

    7. SPA, s 21A(3)(i).

24. His Honour said:

“[84] In this instance, there is no representative of the [appellant company] coming before the Court to express sorrow or remorse for the breach of the legislation. Mr Peter Harris’s letter and sentiments in it were unable to be tested and carry little weight as a consequence.

[85] To submit, as Mr Elliott did, that matters of embarrassment to the [appellant company] or its directors are matters to be taken into account in understanding whether the [appellant company] or its directors were remorseful for, or genuinely regretful of, the breach of the regulatory regime caused by the construction and use of this substantial water supply work is entirely contrary to what would represent a proper acknowledgement of, and remorse for, the [appellant company’s] unlawful construction and use of the channel.

[86] I do not accept that the [appellant company] has demonstrated any genuine contrition and remorse whatsoever for its unlawful conduct.”[8]

8. Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113 (“Barnes v Budvalt”) at [84]-[86].

25. The judge took into account the cooperation of the appellant company to the extent that it cooperated with the respondent in preparing the agreed facts and Mr Jack Harris took part in a directed interview and thus provided some assistance to the respondent. His Honour considered there was nothing in the transcript extract in evidence from the directed interview which would lead to the conclusion that Mr Jack Harris’ frankness and candour were of “such extraordinary assistance” to warrant special consideration in the appellant company’s favour.

26. When considering the appellant company’s submission that Mr Jack Harris believed that the works were permissible in accordance with the approvals the appellant company held and his belief was a mistake of law which was a mitigatory factor which could be taken into account on sentence, referring to Ostrowski v Palmer (“Ostrowski”),[9] the judge said:

“[107] Relevant to this submission for the [appellant company], the joint reasons of Gleeson CJ and Kirby J said, at 500:

Ignorance of the legal consequences that flow from the existence of the facts that constitute an offence is ordinarily not a matter of exculpation, although it may be a matter of mitigation, and in some circumstances it may enliven a discretion not to prosecute.

[108] There is nothing in any of the evidence before me – let alone the untested assertions – that would indicate any valid reason why Mr Jack Harris’ state of knowledge, he being a person managing a substantial cotton-growing enterprise using (from the scale of the constructed channel and the water works shown on the final element of Exhibit 1) significant water infrastructure, might engage any need for the type of penalty mitigation postulated in the above passage from Ostrowski v Palmer.” [10]

9. Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30.

10. Barnes v Budvalt at [107]-[108].

27. The judge pointed to the respondent’s concession that any water extracted and stored in the channel was lawfully taken pursuant to the appellant company’s extraction licence entitlements. His Honour accordingly found there was no basis to conclude there had been disturbance to the equitable sharing of the overall water resource, and no evidence to conclude that there was any adverse impact on any other individual or entity that also held entitlements for extracting water from the same river system. His Honour further observed there was no suggestion the appellant company had breached any licence it held or been involved in any type of “water theft”.

28. The judge considered however that failure to comply with the requirements of a statutory regulatory regime tended to undermine the objects of that statutory regime as well as public confidence in the scheme’s integrity.

29. The judge found the dimensions of the channel indicated a scale of construction work demonstrating that the activities undertaken without lawful consent were not a matter of insignificance; “quite to the contrary”.

30. The judge found the appellant company’s construction of the channel, being a “very substantial” water supply work, without seeking and obtaining the mandated approval had the tendency to erode or undermine the objects of the regulatory regime set out in s 3 of the WMA.

31. His Honour said that a proper appreciation of the nature of the structure, viewed in the context of the regulatory regime established by the WMA, caused him to conclude that the appellant company’s offending conduct should be regarded as being “above the middle of the low range” of such offending conduct. The judge found the fundamental impact of the appellant company’s construction and use of the channel without consent was its undermining of the overall regulatory scheme for management of water resources under the WMA.

32. In considering relevant factors under s 364A of the WMA, the judge found:

1. The appellant company had complete control over the construction and use of the channel. ^[11]

2. There was no proper basis on the evidence for any conclusion other than that his Honour was not satisfied the offence was committed for the purpose of seeking a financial gain. ^[12]

   11. WMA, s 364A(f).

   12. WMA, s 364A(h).

33. The judge considered that a degree of specific deterrence was required to ensure the appellant company paid appropriate attention in future to the requirements of the regulatory regime under the WMA in carrying out its activities.

34. The judge determined that it was appropriate to have regard to the need for an element of general deterrence, noting that a deterrent message must be sent to those who are “similarly commercially engaged”.

35. The judge found there were no circumstances regarding the appellant company and its conduct that warranted mitigation of the penalty otherwise appropriate to impose due to the jurisdictional limit that would have applied had the respondent considered it appropriate to have the offending dealt with summarily in the Local Court.

36. Having regard to the objective factors of the offending conduct and the appellant company’s subjective factors and having “undertaken the process of instinctive synthesis of aggregating and weighing all those factors”, the judge found the appropriate starting penalty was $280,000.

37. The judge assessed the utilitarian value of the appellant company’s guilty plea and found the appropriate sentence discount to be 10%. This resulted in the penalty imposed of $252,000.

38. The judge also ordered that the appellant company cause a notice in a prescribed form to be published in The Land Newspaper and the Moree Champion pursuant to s 353G(1)(a) of the WMA, having found this to be necessary due to the desirability of the “name and shame” impact on an offender’s reputation and putting other operators in the same industry on notice that similar consequences will likely follow if they too offend.

39. The judge further ordered the appellant company pay a moiety of the fine, being $126,000, to Mr Grant Barnes in his capacity as Chief Regulatory Officer, Natural Resources Access Regulator.

Relevant legislation

40. His Honour detailed in his sentencing judgment the relevant statutory provisions under the WMA. For the purposes of the appeal, it is useful to set out ss 3, 91B(1), 353G(1) and 364A of the WMA.

41. Section 3 is as follows:

3   Objects

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.

42. Section 91B(1) is as follows:

91B   Constructing or using water supply work without, or otherwise than as authorised by, a water supply work approval

(1)  A person:

(a)  who constructs or uses a water supply work, and

(b)  who does not hold a water supply work approval for that work,

is guilty of an offence.

Tier 2 penalty.

43. Section 353G(1) is as follows:

353G   Additional orders

(1)  The court may do any one or more of the following:

(a)  it may order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the offender,

(b)  it may order the offender to carry out, or contribute a specified amount to the cost of carrying out, a specified project for the restoration or enhancement of the environment in a public place or for the public benefit,

(c)  it may order the offender to attend, or cause an employee or employees or a contractor or contractors of the offender to attend, a training or other course specified by the court.

44. Section 364A was as follows: [13]

    13. Amended by Water Management Amendment Act (No 31) 2018 (NSW), sch 1 [68]-[69], commencing 27 June 2018.

364A   Matters to be considered in imposing penalty

(1)  In imposing a penalty on a person for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):

(a)  the 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,

(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,

(f)  the extent to which the person had control over the causes that gave rise to the offence,

(g)  whether the offence was committed during a severe water shortage (that is, in contravention of an order in force under section 49A or 324),

(h)  the person’s intentions in committing the offence,

(i)  whether, in committing the offence, the person was complying with orders from an employer or supervising employee,

(j)  in the case of an offence of taking water in contravention of this Act, whether the water so taken had been released for environmental purposes and, if so, whether the person was aware of that fact,

(k) any civil penalty that has been imposed on the person under section 60G in relation to the conduct from which the offence arises.

(2)  The court may take into consideration other matters that it considers relevant.

Dealing with the appeal

45. In oral address, Mr Elliott told this Court that the essence of the appeal was the contention that the sentence was manifestly excessive and the other grounds of appeal could best be understood as “attempts by us to understand why the ultimate conclusion might have been one where we say the judgment did display manifest excess”. [14]

    14. Tcpt, 17 November 2021, p 2(2-3).

46. Notwithstanding the approach taken by Mr Elliott, it appears to me that Grounds 4 and 5 complain of discrete errors. Accordingly, it is appropriate to consider Grounds 4 and 5 and then Grounds 2 and 3 before Ground 1.

Ground 4: The sentencing judge erred by adopting the impermissible two-stage and mathematical approach referred to in Markarian (2005) 228 CLR 357 in determining the quantum of the fine

47. The appellant company submitted that what the judge appeared to have done was form a view about where the offending conduct sat within the low to high range by reference to the dimensions of the channel and then apply this view to the maximum penalty of $1,100,000, arriving at the figure of $280,000. It was submitted this appeared to involve the “impermissible two-stage approach” disapproved of by the High Court in Markarian v The Queen (2005) 228 CLR 357 (“Markarian”). It was also submitted this involved error in failing to have proper regard to other matters relevant to assessing objective seriousness and completely disregarding the appellant company’s subjective case.

48. The appellant company pointed to the judge’s language “above the middle of the low range of such offending conduct” as supporting the view that an improper mathematical approach had been taken of dividing the maximum penalty into ranges based solely on objective seriousness. The appellant company further argued this also showed that no weight was given to the subjective features of the appellant company’s case, and therefore no instinctive synthesis had occurred.

Consideration

49. There is no merit in this ground of appeal. It is abundantly clear from his Honour’s sentencing judgment that he did not adopt an “impermissible two-stage approach”. His Honour’s references to “instinctive synthesis” and the necessity to have regard to both the objective circumstances of the offence and the subjective circumstances of the appellant company included:

“[143] In determining the appropriate starting penalty for [the appellant company], I must undertake the mandated process of instinctive synthesis (Markarian v R (2005) 229 CLR 357; [2005] HCA 25) having regard to all the objective factors of the offending conduct (as earlier discussed) and the subjective factors peculiar to the [appellant company] that temper what might otherwise be the penalty to be imposed.

[144] The sentence to be imposed must reflect all the relevant objective circumstances of the offence and subjective circumstances of the [appellant company]…” [15]

15. Barnes v Budvalt at [143]-[144].

50. It is evident from the sentencing judgment that his Honour comprehensively considered the relevant objective facts, the subjective circumstances of the appellant company and the competing arguments of the parties before determining an undiscounted starting point of $280,000 was appropriate.

51. I would reject Ground 4 of the appeal.

Ground 5: The sentencing judge erred in finding that the making of publication orders and the appellant company’s lack of opposition to such an order was irrelevant to a determination of the quantum of any fine, and in proceeding to determine the quantum of the fine without regard to those matters

Appellant company’s submissions

52. The appellant company contended the judge erred by taking no account of the fact and terms of the publication order, and its intended purposes and effects, in determining the quantum of the fine. The appellant company argued that as deterrence was a relevant consideration in setting the quantum of the fine and the making of a publication order also plays a deterrent role, the making of a publication order may have a bearing on the quantum of the fine. Accordingly, where a publication order is made, there may be less need for the fine to be as high as it otherwise might be.

53. The appellant company pointed out that the only reason given by the judge for rejecting the appellant company’s argument was that s 353G of the WMA gave the court the power to make additional orders (such as publication orders). It was submitted that the fact that the court has the power to make additional orders does not mean that the making of such an order may not be relevant to a determination of the appropriate quantum of any penalty to be imposed.

54. In oral address, Mr Elliott submitted it would be “logical and appropriate” to have regard to the fact a publication order is being imposed in deciding whether the fine should be as high as it otherwise would have been but that he could not take the court to any authority in support of the argument. [16]

    16. Tcpt, 17 November 2021, p 7(15-18).

Respondent’s submissions

55. The respondent submitted the powers in s 353G of the WMA are in addition to, and not in substitution for, the penalty imposed under s 363B. It was submitted a publication order does not operate directly to reduce a penalty and has a purpose of improving the effectiveness of general deterrence. The respondent submitted the Land and Environment Court consistently applies the principle that a publication order “ought not be considered in determining what financial penalty should be imposed”[17] and his Honour had not erred.

    17. Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 at [256].

Consideration

56. The appellant company’s complaint is that the judge rejected Mr Elliott’s submission that the making of a publication order would be a matter to be taken into account in determining the amount of any fine. His Honour said that an order under s 353G of the WMA was an “additional” order and Mr Elliott had not cited any authority for his submission. [18]

    18. Barnes v Budvalt at [190].

57. The appellant company’s argument in this Court is founded on the deterrent effect of a publication order. The argument is that the amount of the fine may be reduced as the need for deterrence is lessened when a publication order is made.

58. The deterrent effect of publication orders is well recognised. As Preston CJ of LEC explained in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 (“Waste Recycling and Processing”) at [242]:

“[242] Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma...”

59. Publication orders serve purposes other than deterrence. In Harris v Harrison,[19] Simpson J observed at [118] “that a publication order, while not a penalty, is intended to be remedial and even educative, rather than punitive, and to have a deterrent effect”.

    19. Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84.

60. The construction of the WMA does not support the appellant company’s argument. Orders under s 353G fall within Part 3A of the WMA whereas penalties which are imposed under s 363B fall within Part 5 of the WMA.

61. Part 3A provides for the making of court orders in connection with offences and applies when a court finds a person guilty of an offence against the WMA.

62. The orders that may be made under Part 3A specifically include orders for restoration and prevention (s 353B), orders for costs, expenses and compensation (s 353C), and orders regarding monetary benefits (s 353F). An order for publication under s 353G(1)(a) is an additional order to the orders that may be made under the Part. Section 353A is as follows:

353A   Orders generally

(1)  One or more orders may be made under this Part against the offender.

(2)  Orders may be made under this Part in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. (emphasis added)

63. Part 5 of the WMA provides for legal proceedings and appeals which includes the maximum penalties for offences (s 363B), proceedings for offences (s 364) and matters to be considered in imposing a penalty for an offence against the WMA (s 364A).

64. The separation of orders and penalties in distinct parts of the WMA and the language employed in s 353A(2) point to the independent determination of penalties and orders as does the sentencing regime for penalties established by s 364A.

65. Section 364A(1) specifies in sub-paragraphs (a) to (k) the matters that “the court is to take into consideration” when imposing a penalty, none of which includes the making of a publication order. Furthermore, s 364A(1) does not require a court when imposing a penalty to take into consideration any of the orders that a court might make under Part 3A.

66. The absence of any reference to Part 3A orders in s 364 stands in stark contrast to s 364A(1)(k), which obliges the court to take into consideration:

364A   Matters to be considered in imposing penalty

…

(k) any civil penalty that has been imposed on the person under section 60G in relation to the conduct from which the offence arises.

67. Section 60G enables the Minister to impose “a charge for water taken (which may include a penalty component) not exceeding 5 times the value of the water so taken…”[20]

    20. WMA, s 60G(1)(a).

68. I am not persuaded that the court is obliged when determining the appropriate penalty to take into consideration the making of a publication order. The determination of the appropriate penalty is a discretionary judgment which is to be exercised separately from the exercise of the discretion to make a publication order or any other order under Part 3A.

69. The respondent nevertheless conceded that it may be open in an appropriate case to take into account an offender’s consent to a publication order as a demonstration of remorse and contrition when determining the appropriate penalty. This concession is consistent with s 364A(2) which provides that “[t]he court may take into consideration other matters that it considers relevant”. However, as the respondent points out, no such submission was made to the judge.

67. This Court has stated on many occasions that it is a court of error and not a forum for the revision and reformulation of the case made before the sentencing judge. [21]

    21. Jackson v R [2021] NSWCCA 15 at [89]; Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81]-[82].

68. In any event, notwithstanding the terms of Ground 5 of the appeal, the appellant company did not advance this argument under this ground but under Ground 3 (see [87] below).

69. I would reject Ground 5 of the appeal.

Ground 2: The sentencing judge erred in not finding that the offending conduct fell at or near the lowest range of conduct prohibited by s 91B of the Water Management Act 2000, and in doing so:

(a)   failed to give any or any proper consideration to conduct falling within the scope of that section;

(b)   erroneously treated the scale of the channel and work to construct it as determinative of the characterisation of the objective seriousness of the offending conduct;

(c)   did not afford any or any proper weight to a range of other considerations relevant to the objective seriousness of the conduct, including:

1. the absence of any aggravating features under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999;

1. the absence of aggravation resulting from the presence of any factors in s 364A of the Water Management Act 2000;

1. the absence of any environmental harm;

1. the fact that if approval had been sought it would have been granted, such as to indicate that the harm of the offending conduct was limited to non-compliance with the correct regulatory process;

(d)   the matters referred to in appeal ground 3, where relevant to an assessment of the objective seriousness of the conduct

Appellant company’s submissions

73. As to sub-ground 2(a), the appellant company submitted the judge failed to give “any real consideration” to the range of conduct capable of falling within the scope of s 91B of the WMA. [22] The appellant company contended it was not difficult to imagine a range of offending conduct radically worse than the appellant company’s conduct, given the range of possible water supply works and uses to which they might be put.

    22. Appellant Company’s Written Submissions, 21 May 2021, par [28].

74. As to sub-ground 2(b), the appellant company argued that the judge treated the dimensions of the channel and excavation required as determinative of the characterisation of the seriousness of the offence, without addressing any other aspects of the offending that were relevant to proper characterisation of the conduct.

75. The appellant company further contended the judge’s characterisation of the relative seriousness of the offending was “mistaken”. [23] The appellant company suggested this arose due to a failure to have due regard to the scope of potential offending under s 91B of the WMA. It was argued that the function and practical effect of the works in question were of greater significance than the dimensions of the channel when looking at the overall operation of s 91B of the WMA.

    23. Appellant Company’s Written Submissions, 21 May 2021, par [34].

76. When addressing sub-grounds 2(c) and 2(d), the appellant company submitted the judge was obliged in fixing the objective seriousness of the offending to have regard to the absence of any aggravating features under s 21A of the SPA, the absence of aggravation resulting from the presence of any factors in s 364A of the WMA and the absence of any environmental harm. The appellant company contended that the absence of these factors “pulled down” the objective seriousness of the offending towards the lower end of the range. [24]

    24. Appellant Company’s Written Submissions, 21 May 2021, par [37].

Respondent’s submissions

77. The respondent submitted that none of the sub-grounds relied upon to support Ground 2 establish House v The King [25] error.

    25. House v The King (1936) 55 CLR 499; [1936] HCA 40.

78. The respondent argued that the judge considered a range of objective features of the appellant company’s offending in assessing the objective seriousness of the offence and error had not been demonstrated. The respondent submitted that it was open to his Honour to treat the scale of the construction as heightening the objective seriousness of the offence.

79. The respondent contended that the judge was not required to deliberate upon hypothetical offending of a more serious kind in order to assess objective seriousness. Another contention was that the absence of an aggravating feature does not decrease the objective seriousness of the offence.

Consideration

80. There is no merit in the appellant company’s argument that his Honour erred by failing to consider a range of offending conduct that would be radically worse than the appellant company’s conduct. When assessing the objective seriousness of an offence, a judge is not obliged to compare the gravity of the offence with a hypothetical offence. [26]

    26. Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [59].

81. Furthermore, the appellant company’s contention that the judge was required to consider the absence of aggravating features when assessing objective seriousness is misconceived. As Grove J observed in Saddler v R [27] at [3]:

“[3] It is a well established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse.”

27. Saddler v R [2009] NSWCCA 83; (2009) 194 A Crim R 452.

82. It is plain from the sentencing judgment that his Honour did not confine his assessment of objective seriousness to the dimensions of the channel and excavation that was required. His Honour referred to the respondent’s failure to establish a factor of aggravation, namely that the offence was committed for financial gain. His Honour pointed to the absence of evidence that the construction of the channel would have resulted in additional water becoming available for the appellant company’s commercial activities beyond its legal entitlement. His Honour said that he could not be satisfied that the storage of the water in the channel would have inevitably allowed the appellant company to increase its earnings from the crops grown on the site. Another observation that the judge made was that the appellant company had neither breached any licence it held nor had engaged in “water theft”. His Honour further observed that there was no evidence that the construction or use of the channel caused harm to the environment.

83. It has been frequently stated that the assessment of objective seriousness of an offence is “quintessentially for the sentencing judge”[28] and this Court will be “very slow”[29] to determine such matters for itself or to set aside the assessment made by the sentencing judge.

    28. Mulato v R [2006] NSWCCA 282 (“Mulato”) at [46]; Lees v R [2019] NSWCCA 65 (“Lees”) at [55].

    29. Mulato at [37]; Lees at [55].

84. In assessing the objective seriousness of the offence, his Honour was entitled to emphasise the scale of the construction work, which his Honour found was “very substantial”[30] and undertaken without lawful consent. The channel was about two kilometres in length and 30 metres wide, with a water carrying width of approximately 10 metres. As his Honour observed, the construction of the channel without consent undermined the regulatory scheme for the management of water resources under the WMA.

    30. Barnes v Budvalt at [125].

85. Sub-ground 2(d) refers to matters in Ground 3 “where relevant to an assessment of the objective seriousness of the conduct”. All of the matters in Ground 3 are matters personal to the appellant company and have no part to play in the assessment of objective seriousness.

86. It was open to his Honour to find that the appellant company’s offending conduct was “above the middle of the low range” and I would reject Ground 2 of the appeal.

Ground 3: The sentencing judge erred by not having proper regard to, and attributing any or any proper weight to, relevant subjective features of the matter in arriving at the figure of $252,000, including that the [appellant company]:

(a)   had been in business for 17 years;

(b)   was a first offender;

(c)   did not intend to commit the offence, being unaware of the fact that approval was required for the particular work in question (instead    incorrectly concluding that there was no such intention and/or any need for mitigation on that basis);

(d)   had sought approval once aware of the need to do so, and that the approval would have been granted;

(e)   had demonstrated genuine contrition and remorse (instead incorrectly finding that the appellant company had not demonstrated any)

87. As to Ground 3, the appellant company submitted it had a “relatively compelling” subjective case,[31] including the fact it had been in business for 17 years, was a first offender and that the transcript of the directed interview recorded that Mr Jack Harris was unaware of the fact permission was required for construction of this kind of channel.

    31. Appellant Company’s Written Submissions, 21 May 2021, par [38].

88. The appellant company contended that the fact its intention was not to commit the offence was a mitigating factor on sentence under s 364A(1)(h) of the WMA. The appellant company argued the judge incorrectly concluded this was not a mitigating factor on the basis there was nothing in the evidence to indicate any valid reason why Mr Jack Harris’ mistake might be a relevant consideration for sentencing purposes. It was submitted this was at odds with s 364(1)(h) of the WMA and Ostrowski. The appellant company submitted a reading of the remarks tended to suggest the judge did not give “any or any proper” consideration to the mitigating factors, instead putting them aside without saying so or giving them no value or weight. Another contention was that the remarks did not state that the judge had taken any one or more of the mitigating features into account in determining the starting penalty, and did not explain how they had been taken into account if they had been.

89. In oral address to this Court, Mr Elliott submitted the judge was required to take into account Mr Jack Harris’ intention or otherwise and that if he had done so, the appropriate conclusion on the evidence was “all one way”. [32] This was said to be supported by the prompt seeking of approval after the appellant company became aware that approval was required and that approval was likely to be granted.

    32. Tcpt, 17 November 2021, p 11(25).

90. Mr Elliott also referred to the appellant company’s contrition and remorse, expressed in correspondence to the court and through himself, a Senior Counsel to the court. It was further submitted the appellant company had showed contrition and remorse by indicating its willingness to accede to orders for publication. Mr Elliott submitted that whilst one might say more could have been done, to say there had not been demonstrated any genuine contrition or remorse whatsoever was an “overstatement”. [33]

    33. Tcpt, 17 November 2021, p 7(42).

91. Mr Elliott conceded that the complaint of “overstatement” would not “make a great deal of difference” to the “practical ground of appeal which is manifest excess”. [34]

    34. Tcpt, 17 November 2021, p 9(4-5).

Respondent’s submissions

92. The respondent submitted that Ground 3 could not be sustained as the judge considered each of the specified matters and in the case of matters (a)-(d), took them into account in the appellant company’s favour.

93. The respondent pointed out that the judge expressly referred to Mr Peter Harris’ letter in which it was stated the appellant company had been in business for 17 years as well as the appellant company’s absence of prior convictions, making a finding of good corporate character though giving this modest weight.

94. The respondent submitted it was open to the judge not to be satisfied that the offence was committed through a mistake of law. The respondent contended the evidence relied on by the appellant company did not provide a sufficient basis for satisfaction on the balance of probabilities as to the state of the appellant company’s mind in committing the offence. The respondent argued that whilst the judge did not find ignorance of the law was available to mitigate the offending, he did not find the appellant company had deliberately intended to flout the law such as to increase the objective seriousness.

95. As to sub-ground 3(d), the respondent submitted the judge took the relevant matters into account and contended these matters were of marginal relevance given the appellant company had no choice but to seek approval once the regulator discovered the channel.

96. The respondent submitted the evidence was insufficient for the judge to find on the balance of probabilities that the appellant company’s director was in fact remorseful. Referring to Mr Peter Harris’ letter, the respondent argued it was “not a tangible expression of contrition”, was unsworn and unable to be tested, and provided a “tenuous” basis for the judge to conclude there was evidence of remorse. [35]

    35. Respondent’s Written Submissions, 10 September 2021 at par [93].

97. In oral submissions, Ms Wright SC, for the respondent, referred to Waste Recycling and Processing, contending that none of the four ways specified by Preston CJ of LEC of demonstrating contrition regarding environmental offences were present.

98. Ms Wright also submitted that the appellant company did not have proper procedures to ensure an approval was in place, which reflected a failure in the appellant company to provide for appropriate management of its business.

Consideration

99. In approaching this ground of appeal, which to some extent complains that “proper weight” has not been given to certain subjective features of the appellant company’s case, it must be remembered that “[q]uestions of weight in the exercise of a discretion are matters for the first instance judge” and that “[t]he circumstances in which matters of “weight” will justify intervention by an appellate court are narrowly confined”. [36]

    36. R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ).

100. There is no substance in the submission that the judge failed to give proper weight to the appellant company’s lack of prior offending during the 17 years it had been in business. His Honour said that he had regard to the absence of prior convictions as a matter in the appellant company’s favour and found that the appellant company was of good character.

101. The thrust of the appellant company’s submissions in sub-ground 3(c) is that the judge incorrectly concluded that Mr Jack Harris’ mistake of law was not a mitigating factor as the offence was unintentional and the judge was required to consider the appellant company’s intention in committing the offence pursuant to s 364A(1)(h) of the WMA.

102. Section 364A(1)(h) of the WMA required the judge, in imposing a penalty for the offence contrary to s 91B(1) of the WMA, to take into account the appellant company’s “intentions in committing the offence”. The judge did not ignore this obligation, stating:

“[135] It is also to be noted that the [agreed facts] contains nothing of relevance, in my view, that would explain the intention of the [appellant company] behind the construction of the channel. To the extent that the explanation given by Mr Jack Harris in his record of interview differs from that provided by Mr Peter Harris in his letter, I have no contestable evidence that would enable me to resolve that dichotomy. I am, therefore, satisfied that there is no proper basis upon which I can reach a conclusion for the purposes of s 364A(h) [sic], save the negative conclusion that I am not satisfied that the offence was committed for the purpose of seeking a financial gain.”[37]

37. Barnes v Budvalt at [135].

103. His Honour was referring to the reason provided by Mr Jack Harris in the extracts of the “directed interview” which were recorded as “Annexure D” in the agreed facts for the construction of the channel and in Mr Peter Harris’ letter, which was tendered during the proceedings on sentence.

104. Shortly stated, Mr Jack Harris explained the channel was constructed to avoid flooding by getting excess water “off the fields” and back “into the water system”.

105. Mr Peter Harris wrote in his letter to the judge that he understood “that the channel was constructed primarily to transfer tail water (recycled and potentially contaminated water) from Wombullion to the nearest available water storage which was situated on the adjoining property of Miralwyn”.

106. His Honour’s finding that he was not satisfied that the offence was committed for financial gain was favourable to the appellant company.

107. In the passage quoted at [26] above, the judge dealt with the submission that Mr Jack Harris’ belief that the works were permissible and his mistake of law was a mitigating factor.

108. His Honour was not bound to accept that Mr Jack Harris’ mistaken belief was a mitigating factor. It is hardly surprising that his Honour did not make such a finding given the scale of the works being undertaken, the substantial cotton growing enterprise being conducted by the appellant company and the importance of the regulatory system under the WMA. At the very least, Mr Harris should have enquired as to whether construction of the channel required approval before the works commenced.

109. Furthermore, it was the responsibility of the appellant company to ensure that its manager was aware of and complied with all regulatory requirements which responsibility has been recognised by the employment of a senior staff member dedicated to ensuring compliance with the WMA since 2017. His Honour did not err by failing to conclude that the appellant company’s intention not to commit the offence was a mitigating factor.

110. As to sub-ground 3(e), the appellant company’s complaint of error by the judge is that his Honour did not have “proper regard to” and did not attribute “any proper weight to…demonstrated genuine contrition and remorse (instead incorrectly finding that the [appellant company] had not demonstrated any)”. Evidence of the appellant company’s contrition was confined to Mr Peter Harris’ letter to the judge which included the expression of regret in the passage quoted at [13] above. This was supported by the oral submissions made by Mr Elliott to his Honour. [38] However, it appears that the appellant company’s directors did not attend the sentencing proceedings, which were conducted virtually, and sworn evidence was not given of contrition and remorse.

     38. See [14] above.

111. This Court has emphasised on many occasions that little or no weight should be placed upon unsworn exculpatory material tendered in sentencing proceedings on behalf of an offender. Most recently in Lai v R,[39] Bellew J commented upon the increasing practice in the District Court of tendering an unsworn statement to the sentencing judge and an offender not giving evidence. Bellew J (with whom Bathurst CJ and Adamson J agreed) said at [80]:

“[80] Those observations have since been consistently reiterated by this Court. There is, in my view, no utility in adopting the practice of tendering a statement in the absence of sworn evidence, in circumstances where this Court has made it abundantly clear that little or no weight should be attached to its contents. It follows that in my view, such a practice is to be strongly discouraged.” (footnotes omitted)

39. Lai v R [2021] NSWCCA 217.

112. Bellew J’s comments, although directed at sentencing proceedings in the District Court, are apposite to sentencing proceedings in the Land and Environment Court where the significance of corporate executives giving sworn evidence of remorse has been recognised for many years.

113. In Waste Recycling and Processing, Preston CJ of LEC observed at [203]:

“[203] Contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives. The actions underlying genuine contrition and remorse may take at least four forms.”

114. After discussing three forms by which a corporation might express genuine contrition and remorse, the Chief Judge went on to say at [214]:

“[214] Fourthly, the personal appearance of corporate executives in court and their personal evidence outlining the company’s genuine regret and stating future plans to avoid repetition of such offences is an indication of genuine corporate contrition…”

115. These principles enunciated by the Chief Judge have been followed by judges of the Land and Environment Court. It is clear that the judge had these principles in mind when he said:

“[77] Pepper J set out, in Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 at [80] - an approach endorsed in Environment Protection Authority v Terrace Earthmoving Pty Ltd [2016] NSWLEC 158 by Robson J, the four types of action which may demonstrate genuine contrition and remorse in satisfaction of these requirements [citations excluded]:

(a)   first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence;

(b)   second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities;

(c)   third, taking action to address the cause of the offence; and

(d)   fourth, the personal appearance of corporate executives in court to give personal evidence of the defendant’s regret and a plan of action to avoid repetition of the offence.”[40]

40. Barnes v Budvalt at [77].

116. His Honour found that the first to third matters were not “presently relevant”. [41] No complaint is made about those findings.

     41. Barnes v Budvalt at [78].

117. In the passage quoted at [24] above, his Honour considered that Mr Peter Harris’ letter carried “little weight”. This finding was plainly open to the judge. However, his Honour subsequently said that he did not accept that the appellant company had demonstrated “any genuine contrition and remorse whatsoever”. The appellant company complains that whilst one might say more could have been done, to say that no genuine contrition or remorse had been demonstrated whatsoever was an “overstatement”.

118. The onus was on the appellant company to establish on the balance of probabilities that the company’s remorse and contrition for the offending conduct was genuine. In this Court, Mr Elliott submitted that the appellant company had shown contrition and remorse by indicating its willingness to accede to orders for publication.

119. This submission overstates the appellant company’s position at first instance. Whilst the appellant company did not oppose the publication of the notice in The Land Newspaper, it did oppose publication of the notice in the Moree Champion. So much appears clear from what was said by Mr Elliott to the judge:

“We had said that it would be open to your Honour to make an order for publication, but we resist the suggestion that the publication should be in a publication other than The Land. The Moree publication is circulated in an area that is a long way away from the site, over 300 kilometres…” [42]

42. Tcpt, 26 August 2020, p 11(42-45).

120. Mr Elliott did not submit to his Honour that the lack of resistance to the publication in The Land Newspaper demonstrated remorse and contrition. As this argument was not advanced at first instance and there is no suggestion that to entertain it would correct a “miscarriage of justice, or serious injustice”,[43] I do not propose to consider Mr Elliott’s submission further.

     43. Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [82].

121. In my view, in the absence of sworn testimony, the judge was entitled to conclude that the appellant company had failed to establish genuine remorse and contrition.

122. I would reject Ground 3 of the appeal.

Ground 1: The fine of $252,000 was manifestly excessive

Appellant company’s submissions

123. The appellant company submitted that the fine was manifestly excessive. The appellant company pointed out that the construction of the channel was entirely within the landowner’s property and moved water that had been legitimately taken by the owner from the water source and no environmental harm or loss had been caused. Further reference was made to the failure to obtain approval being mistaken and not deliberate and the failure being the appellant company’s first offence after it had operated in the region with a water management system for a very long time. Furthermore, there were no aggravating factors under either the WMA or SPA, the regulator would have approved the channel if the application had been made and a plea of guilty was entered.

124. A further submission was that a public conviction with the imposition of a modest fine and a publication order was an appropriate outcome.

125. The appellant company’s written submissions stated that submissions under other appeal grounds were said to have been made in support of Ground 1, as the other appeal grounds identified factors in the judge’s remarks that may illuminate “how the erroneous sentence came to be passed”. ^[44]

     44. Appellant Company’s Written Submissions, 21 May 2021 at par [26].

Respondent’s submissions

126. The respondent contended that the sentence imposed was not manifestly excessive. The respondent submitted that the examination of Grounds 2 to 5 demonstrates that the judge considered all relevant objective and subjective factors before performing an instinctive synthesis (as he was obliged to) to reach the starting penalty of $280,000.

127. The respondent argued the appellant company failed to have regard to the yardstick provided by the maximum penalty in the sentencing exercise and the sentencing remarks as a whole, “which evince no error of principle or failure to consider relevant matters, nor consideration of any irrelevant matter or factual error”. [45]

     45. Respondent’s Written Submissions, 10 September 2021 at par [134].

128. The respondent submitted against a maximum penalty of $1,100,000, the fine was well within the judge’s sentencing discretion, and even if considered stern was not unreasonable or plainly unjust.

Consideration

129. In order to succeed on a ground where a complaint of manifest excess is made, the appellant company must establish that the sentence was unreasonable or plainly unjust. [46]  Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for an offence by balancing many different and conflicting features. It follows that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles. [47]

     46. Markarian at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

     47. Markarian at [27]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34].

130. The appellant company has been unsuccessful in the various complaints made in Grounds 2 and 3, which were relied upon by the appellant company to lead to the ultimate conclusion of manifest excess.

131. In his sentencing judgment (which extends to 51 pages of transcript), the judge gave careful consideration to the objective gravity of the offence and the appellant company’s subjective case.

132. Water is a precious resource and it is fundamental to the management of water sources of the State that landowners understand and comply with their obligations under the WMA.

133. As the judge observed, the appellant company’s construction of the channel without obtaining approval undermined the objects of the regulatory scheme for the management of water resources under the WMA.

134. Notwithstanding the appellant company’s strong subjective case, I am not persuaded that the fine of $252,000 was manifestly excessive. Accordingly, I would reject Ground 1 of the appeal.

Orders

135. The orders I propose are:

1. Leave to appeal granted.

2. Appeal dismissed.

136. ADAMSON J: I agree with Price J.

**********

Endnotes

Amendments

02 February 2022 - Formatting of paragraphs

Decision last updated: 02 February 2022