Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd

[2015] NSWLEC 109

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109
Hearing dates:	19 June 2015
Date of orders:	19 June 2015
Decision date:	19 June 2015
Jurisdiction:	Class 5
Before:	Preston CJ
Decision:	Orders as set out at [150]
Catchwords:	OFFENCES AND PENALTIES – sentence – damaging reserved land – pollution of waters – objective seriousness of offences – environmental harm caused was at lower end of range of extent of harm – foreseeability of risk of environmental harm – practical measures to avoid environmental harm not taken – control over causes giving rise to the offences – offences not committed for financial gain – low overall objective seriousness – subjective circumstances of offender – record of prior convictions not aggravating factor – early pleas of guilty – offender’s genuine remorse for the offences – offender of good corporate character – offender unlikely to reoffend – offender cooperated with authorities – appropriate penalties are fines – totality principle applies – no overlap of the elements of the offences – areas of overlap of aggravation in commission of offences – appropriate to adjust sentences to avoid double punishment and reflect total criminality involved – offender ordered to pay prosecutor’s costs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 s 21A Criminal Procedure Act 1986 ss 257B, 257G Environmental Planning and Assessment Act 1979 Mining Act 1992 National Parks and Wildlife Act 1974 ss 2A, 30A(1)(c), 30D(d), 30G, 47J, 155(2), 156A(1), 156A(2), 194(1) Protection of the Environment Operations Act 1997 ss 3, 120(1), 122, 123(a), 241(1) National Parks and Wildlife Regulation 2009 cll 17(1)(c), 31(1)(c)
Cases Cited:	Cittadini v The Queen [2009] NSWCCA 302 Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Category:	Principal judgment
Parties:	Chief Executive, Office of Environment & Heritage (Prosecutor in 14/50172) Environment Protection Authority (Prosecutor in 14/50173) Orica Pty Ltd (Defendant in both)
Representation:	Counsel: Mr E C Muston (Barrister) with Ms S F Cirillo (Barrister) (Prosecutors) Mr D Jordan SC with Ms A Bonner (Defendant)   Solicitors: Legal Services Branch, Office of Environment & Heritage (Prosecutors) Ashurst (Defendant)
File Number(s):	50172 and 50173 of 2014
Publication restriction:	No

Judgment

1. Oceanic Coal Australia Pty Ltd (‘Oceanic Coal’) operates the West Wallsend Colliery in the Newcastle coalfields near Lake Macquarie. Coal is extracted from the West Wallsend Colliery beneath Sugarloaf State Conservation Area by using the longwall extraction method.

2. During longwall mining, the roof immediately above the coal seam is allowed to collapse into the void that remains after the coal is extracted. As this happens, rock fracture and settlement progresses through the overburden strata resulting in sagging and bending of the near surface rocks and cracking and subsidence of the ground above. Grouting is used to fill subsidence cracks, pores, fissures or voids in soil or rock to reduce public safety risks, to reduce water ingress, to increase the strength and stability of the ground and to reduce ground movements.

3. In July 2012, mining of longwall 41 at the West Wallsend Colliery commenced, leading to significant surface subsidence impacts in Sugarloaf State Conservation Area. These included a major vertical block movement, rock falls, small soil scarps and numerous surface cracks. One of the largest cracks was adjacent to longwall 41 in the vicinity of the vertical block movement. The crack was approximately 470 m in length and ran north/south parallel to longwall 41. The crack started on top of a cliff and ran down the side. Its depth was at least 18 m.

4. Oceanic Coal was required by the project approval granted under the Environmental Planning and Assessment Act 1979 (‘the Planning Act’) to remediate surface subsidence cracking and it was authorised by a consent granted under the National Parks and Wildlife Act 1974 (‘the Parks Act’) to carry out such subsidence management works in Sugarloaf State Conservation Area, being land reserved under the Parks Act.

5. In September 2012, Oceanic Coal contracted with Minova Australia Pty Ltd (‘Minova’) to carry out subsidence management works , including grouting the subsidence crack in the cliff above longwall 41 (‘the supply contract’). The “supply” was remediation by grouting of surface subsidence cracking above the West Wallsend Colliery underground mining area.

6. On 27 February 2013, Minova’s assets and liabilities were transferred to Orica Australia Pty Ltd (‘Orica’), including Minova’s ground support business and the supply contract with Oceanic Coal. Thereafter Orica conducted the activities formerly conducted by Minova and became the supplier under the supply contract.

7. Orica commenced grouting of the surface subsidence crack near longwall 41 on Thursday 30 May 2013, continued on Friday 31 May 2013, did not work on the weekend of 1 and 2 June 2013 or on Monday 3 June 2013 because of wet weather, and resumed grouting on Tuesday 4 June 2013. Work continued on 4 June 2013 until about 9.30am to 10.00am when one of the workers noticed that grout was leaking from the base of the cliff into an ephemeral drainage channel and work then stopped. The leaking grout affected about 280 m of the drainage channel.

8. The leaking of the grout into the drainage channel in Sugarloaf State Conservation Area resulted in Orica committing two offences, the first of damaging reserved land in contravention of s 156A(1) of the Parks Act and the second of polluting waters in contravention of s 120(1) of the Protection of the Environment Operations Act1997 (‘POEO Act’).

9. The Chief Executive, Office of Environment and Heritage (‘OEH’) prosecuted Orica for the first offence and the Environment Protection Authority (‘EPA’) prosecuted Orica for the second offence. Orica has pleaded guilty to both offences. A sentence hearing has been held today. The Court’s task is to determine and impose the appropriate sentences for the offences.

The events of the offences

10. Oceanic Coal was required under the project approval to undertake subsidence mapping, including surveys of surface cracking (width and depth), slope instability and significant erosion during and after longwall extractions.

11. Oceanic Coal employed geotechnical consultants, Robert Carr and Associates (‘RCA’), to undertake this subsidence mapping, including identifying surface cracking and its risks, measuring and recording dimensions of cracks, and determining which cracks posed the highest risk. This information was used to make decisions as to which cracks should be grouted.

12. The surface subsidence crack adjacent to longwall 41 was mapped as being approximately 470 m in length and ran parallel to the edge of longwall 41, orientated north to south. The crack started on the top of the cliff and ran down the side. Its maximum depth was recorded as being about 18 m.

13. Oceanic Coal and RCA determined that this crack required remediation by grouting. Oceanic Coal directed Orica to fill the crack with grout. This was done by pumping a foamed cement-based grout through poly pipes to a nozzle that was inserted into the cracks. The approved grout required to be used was called Air-O-Cem, an Orica product. It was composed of Portland cement (greater than 60%), aluminium sulfate (1 to less than 10%) and crystalline silica (quartz) (less than 1%).

14. The terrain in which this crack occurred was particularly difficult to access. The crack started on a cliff-top, unlike other cracks that had been filled. The cracks adjacent to longwall 41 were extremely large. For example, one of the cracks Orica had filled prior to the incident required about 600 tonnes of grout to fill due to the depth of the crack.

15. The crack on the cliff was larger than the others previously grouted and consisted of many different holes to be filled, the bottom of which could not be seen, making it difficult to determine how much grout would be required to fill the crack.

16. An RCA senior engineering geologist advised Oceanic Coal that, contrary to the usual practice for grouting of subsidence cracks, it was too dangerous to place an operator at the base of the crack in the cliff or downslope, either to form an earthen plug to prevent any grout leaking from the crack or to act as a spotter to check for spillages of grout, because the cliff face was showing signs of slabbing or fracturing as a result of subsidence. The RCA geologist had observed movement nearby.

17. In light of this advice, Oceanic Coal determined that the top of the cliff line was a safe location to view the downslope area (rather than positioning the spotter at the base of the cliff) due to the absence of cracking or unsupported strata in the vicinity of that location. Oceanic Coal installed tape demarking the accessible areas and directed Orica employees not to go past a certain tree. Based on RCA’s advice, Oceanic Coal also directed Orica that the area at the base of the cliff was out of bounds and that Orica’s employees could not work there for safety reasons. Instead, Oceanic Coal directed Orica to monitor the downslope area from the top of the cliff feature. The supply contract required Orica to comply with such safety directions from Oceanic Coal.

18. Oceanic Coal also instructed Orica that, due to the location of the crack near the cliff edge, the nozzle operators needed to wear harnesses at the nozzle site and have a certification for working at heights. Orica requested Oceanic Coal to install an anchor point on the cliff-top for the harness ropes, which was done on 13 May 2013. On the same day, Orica prepared a job safety and environment risk assessment entitled “Amendment to Subsidence Crack Grouting LW41 (Working at Heights on the Cliff Line).”

19. Around this time, a visual assessment of the potential spotting locations was undertaken by Oceanic Coal and Orica prior to commencing the grouting of the crack. Based on this assessment, a general location for spotting was identified at the top of the cliff but along the ridge from the nozzle location.

20. On 7 May 2013, Orica raised a concern with Oceanic Coal regarding whether or not there was a possibility of grout leaking down into the area below the cliff and in particular whether Orica’s operators would be able to spot any leakage from above the cliff line without being able to go below the crack. From the proposed spotting location it was not possible to see that part of the crack or any potential exit points at the base of the cliff.

21. Oceanic Coal informed Orica that RCA were conducting geotechnical assessments and would pick up any grout leakages when RCA did their weekly inspection. Oceanic Coal directed Orica to pump grout into the crack in the manner that it had previously directed.

22. On the morning of Thursday 30 May 2013, the grouting of the crack commenced. The nozzle was positioned right on the edge of the cliff and pumped grout into the crack. Two Orica employees operated the nozzle and one worked as a spotter, positioned on the top of the cliff in the safe area that had been directed by Oceanic Coal.

23. Around 9.30am that day, RCA geotechnical engineers inspected the base of the cliff and did not observe any evidence of grout spillage.

24. Work continued on Friday 31 May 2013. On each of these two days, 10.8 tonnes of grout product was mixed with water and pumped into the crack.

25. No work took place over the weekend. No work was done on Monday 3 June 2013 due to wet weather.

26. Work recommenced on Tuesday 4 June 2013. Pumping commenced at 8am and continued until about 9.30am to 10am. At that time, the spotter heard a sound like running water and noticed something grey in colour about 5 to 10 m out from the base of the cliff. He deduced it could be grout. He told the nozzle operators to stop pumping. They communicated with the pump operators to stop the pump straight away. By this time, about 1.8 tonnes of grout product had been mixed with water and pumped into the crack on the morning of 4 June 2013.

27. Orica employees undertook inspections. One of the nozzle operators harnessed up and went down below the cliff to obtain a clear view. He saw wet grout that was no longer flowing.

28. Subsequent investigations at the base of the cliff revealed that an estimated volume of 148 m³ had leaked and that the affected area was approximately 280 m in length within an unnamed ephemeral drainage channel. Visual inspections indicated the grout was layered as if it had leaked over multiple applications but the duration of the leakage was unknown. One of the experts who subsequently inspected the grout leakage considered that, based on the volume of grout that had leaked, it had leaked from 30 May 2013 and the leak had remained undetected until 4 June 2013.

Events after the offences

29. Orica notified Oceanic Coal who notified various regulatory agencies, including the EPA and OEH, of the pollution incident, as required by law. Oceanic Coal, EPA and OEH personnel inspected the site. Oceanic Coal undertook a detailed investigation and provided an incident report, as required under the project approval.

30. On 28 August 2013, OEH issued Oceanic Coal with a remediation direction under s 91K of the Parks Act, requiring Oceanic Coal to submit a remediation plan to OEH for approval. On 11 October 2013, Oceanic Coal submitted a final remediation plan to OEH. On 14 October 2013, the remediation direction was varied to require Oceanic Coal to implement the trial phase of the final remediation plan.

31. On 25 October 2013, the trial phase of remediation commenced and it continued until 4 December 2013. On 5 December 2013, Oceanic Coal submitted a trial report and revised operational project plan to OEH. On 12 December 2013, Oceanic Coal submitted a final revised remediation plan for the remainder of the grout removal.

32. On 13 December 2013, by a further remediation direction issued to Oceanic Coal, OEH approved and required the implementation of the remediation plan. This required:

1. all grout to be removed from the site by 27 June 2014;

2. a written report on the completion of the grout removal by 18 July 2014; and

3. all remaining project works including post removal ancillary activities and monitoring to be completed by 5 August 2014.

33. Orica assisted Oceanic Coal with the remediation works. In particular, Orica’s workers carried out the remediation in accordance with the remediation plan and actioned the requests of OEH officers on-site during the remediation activities.

34. The remediation works primarily included: the manual breakup of grout using hand tools; the removal of bulk bags of grout by helicopter (a total of 232 bulk bags of grout were removed in a total of approximately 25 hours); and the placement of removed grout into designated waste receptacles on an adjacent private property before being transported to a licensed waste facility. All of these tasks were undertaken by Orica’s workers.

35. A total of 57.3 tonnes of waste were recorded which included the weight of the grout material, the bulk bags, inherent and free moisture, soil and leaf litter and one tonne of sandbags and silt fencing which was discarded following the completion of the remediation project.

36. Ancillary activities conducted during the grout remediation project included: making access available through an adjacent private property; construction, and subsequent removal following completion of the works, of a footbridge over the first drainage channel adjacent to the vehicle parking area to minimise disturbance to the drainage line embankments and allow safe access; provision of an access track to minimise multiple footpaths; weed control activities to limit the potential for weed spread; minor clearing activities in the drainage channel to allow safe access for employees and contractors undertaking the remediation work; completion of rock fall stabilisation works at the top of the grout affected channel to allow safe access to the top of the work site beneath the cliff; establishment of a site office and base camp; installation and maintenance of silt fences within the drainage channel to minimise the potential for downstream impacts as a result of the remediation activity; construction of earthen steps on a steep section adjacent to the grout affected area to allow safer walking access; weed removal program carried out for the grout channel and site access tracks; ecological and stream geomorphic monitoring prior to remediation and post remediation; installation of water monitoring stations; and photo monitoring points. All of these activities were undertaken by Orica’s workers.

37. Grout removal was undertaken in teams of between two and six men in total, (the average number of workers was three persons). The grout removal was the most labour intensive and costly part of the remediation project. During the course of remediation, Orica’s staff participated in on-site meetings to plan the remediation, coordinated all logistic movements involved in the remediation process including waste collection and heli-lift, and carried out the remediation works.

38. Orica undertook the remediation works at its own cost, including labour, plant and equipment and heli-lifting. The estimated cost to Orica of its role in the remediation was $431,900.

39. Grout removal was completed approximately 52 days ahead of schedule and final signoff was granted by OEH on 6 June 2014 after all of the grout had been removed from the site to the satisfaction of OEH.

The offences committed

40. The discharge of grout from the crack at the base of the cliff near longwall 41 into the ephemeral drainage channel involved two offences. The first offence was against s 156A(1) of the Parks Act which provides:

A person must not, on or in land reserved under this Act or acquired under Part 11:

…

(b)   damage or remove any vegetation, rock, soil, sand, stone or similar substance, or

...

(d)   cause or permit any removal or damage referred to in paragraph (a), (b) or (c).

41. Orica is charged with having caused damage to the vegetation, soil, sand, stone and/or similar substances in the ephemeral drainage channel in Sugarloaf State Conservation Area.

42. It is a defence to a prosecution for an offence under s 156A(1) of the Parks Act if the damage was authorised by a consent granted under the Parks Act. Section 156A(2)(a) provides:

It is a defence to a prosecution for an offence under subsection (1) if the accused proves that the removal or damage concerned:

(a)   was done in accordance with the consent of the Director-General or of a person or body that has the care, control and management of the land concerned under this Act, or

...

43. In this case, however, the damage was not authorised by the consent that had been granted under the Parks Act.

44. Sugarloaf State Conservation Area was reserved on 1 July 2007 under s 30A(1)(c) of the Parks Act. The concurrence of the Minister administering the Mining Act 1992 to the reservation as a state conservation area would have been required under s 30D(d) of the Parks Act. Notwithstanding the reservation of the land as a state conservation area, the Mining Act continued to apply (s 47J(2) of the Parks Act) and a mining lease under the Mining Act could be granted with the concurrence of the Minister administering the Parks Act (s 47J(3) of the Parks Act).

45. Project approval under the Planning Act and mining leases under the Mining Act, as well as an environment protection licence under the POEO Act, were granted to extract coal from the West Wallsend Colliery beneath the Sugarloaf State Conservation Area, including longwall 41.

43. The project approval contained conditions requiring rehabilitation of subsidence impacts in Sugarloaf State Conservation Area caused by longwall mining.

44. The rehabilitation of subsidence impacts in Sugarloaf State Conservation Area required consent under the Parks Act. Rehabilitation included remediation of subsidence cracking by filling cracks with grout. Such remediation involved construction and maintenance of access trails to the cracks and construction, operation and use of plant and equipment for pumping the grout into the cracks, which activities would damage or remove vegetation, rock, soil, sand, stone or similar substances in the Sugarloaf State Conservation Area. In addition, the filling of the cracks with grout itself would damage vegetation, rock, soil, sand, stone or similar substances in the Sugarloaf State Conservation Area. Such damage to the reserved land was unlawful under s 156A of the Parks Act without consent.

45. Section 155(2) of the Parks Act authorises the making of regulations, including for the grant of consent for activities on land reserved under the Parks Act. Pursuant to this power, cl 17(1)(c) of the National Parks and Wildlife Regulation 2009 (‘the Parks Regulation’) authorises the grant of consent to “construct, operate or use any structure, installation, engineering work, plant, equipment, amusement device, fixture or improvement in a park.” The consent may be given in the form of a written approval (cl 31(1)(c) of the Parks Regulation).

46. On 23 July 2012, the Minister administering the Parks Act granted a consent under cl 17(1)(c) and cl 31(1)(c) of the Parks Regulation to Oceanic Coal to carry out the activity described in item 5 of schedule 1 of the consent, namely:

Undertake subsidence management works associated with the underground mining in Sugarloaf State Conservation Area:

1.   Installation and inspection of survey marks, and;

2.   Monitoring and remediation of subsidence cracking on the surface;

3.   Installation of subsidence warning signage;

4.   Access track construction and maintenance;

5.   Installation of groundwater monitoring wells.

50. Condition 4.8 of the consent required Oceanic Coal, in undertaking the activity, not to cause contamination or pollution of Sugarloaf State Conservation Area:

The Applicant will not take any action which has the effect, whether direct or indirect, of causing any contamination or pollution of the Park. In particular the Applicant will not permit any waste matter or fluid of any description or any fumes to emanate from its undertaking of the Activity except as may be approved by the Park Authority and subject to such conditions as may be specified by the Park Authority.

51. Oceanic Coal and its contractor Orica were, therefore, authorised by the consent to undertake in Sugarloaf State Conservation Area the activity of filling the crack in the cliff near longwall 41 with grout. However, such consent did not authorise the discharge of the grout from the crack at the base of the cliff into the ephemeral drainage channel. Such discharge was not part of the activity authorised by the consent (only the crack was to be filled with grout, not land outside the crack) and caused contamination or pollution of the drainage channel in contravention of condition 4.8 of the consent. As a consequence, the damage to the drainage channel in Sugarloaf State Conservation Area was not done in accordance with the consent and hence the defence of authority under s 156A(2) of the Parks Act was not available.

52. The second offence that resulted from the discharge of the grout into the drainage channel was against s 120 of the POEO Act, which provides:

(1)   A person who pollutes any waters is guilty of an offence.

(2)   In this section:

pollute waters includes cause or permit any waters to be polluted.

53. “Waters” is defined in the Dictionary to the POEO Act to include:

the whole or any part of:

(a)   any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or

...

54. Orica was charged with having polluted waters, being the natural watercourse or drainage channel, in two ways: first, by being the occupier of the site at or from which the pollution (the leaked grout) occurred (under s 257(1) of the POEO Act) and, second, by failing to have in place adequate measures to prevent the pollutant (the leaked grout) entering the waters and as a result of which the pollutant entered the waters.

55. Neither the environment protection licence issued to Oceanic Coal for the underground coal mine or any other environment protection licence authorised the discharge of the grout into the drainage channel. Hence, there was no defence of authority conferred by an environment protection licence under s 122 of the POEO Act to pollute the waters.

Sentencing considerations

56. The sentence imposed by the Court must reflect both the objective seriousness of the offences and the subjective circumstances of the offender, Orica. The Court must consider the factors of relevance in s 21A of the Crimes (Sentencing Procedure) Act 1999 (‘CSP Act’) (for both offences) and in s 194 of the Parks Act (for the offence against s 156A(1) of the Parks Act) and in s 241(1) of the POEO Act (for the offence against s 120(1) of the POEO Act).

57. The Court must consider the purposes for which the Court may impose the sentence in s 3A of the CSP Act. The purposes in s 3A(a), (b), (e), (f) and (g) are relevant to the offences and the offender in this case.

Objective seriousness of the offences

58. The objective circumstances of the offences of relevance are: the nature of the offences; the maximum penalties for the offences; the environmental harm; the foreseeability of the risk of environmental harm; the practical measures to prevent environmental harm; the control over the causes giving rise to the offences; and whether the offences were committed with any heightened state of mind or for financial gain.

The nature of the offences

59. The objective seriousness of an environmental offence is illuminated by the nature and purpose of the statutory provision, contravention of which constitutes the offence, and its place in the statutory scheme, and the degree to which the offender’s conduct offends against the legislative objective expressed in the statutory offence.

60. The objects of the POEO Act (in s 3) include to protect the quality of the environment and to prevent pollution of it. To this end, provisions of the POEO Act prohibit various forms of pollution, including pollution of waters. The prohibitions can be relaxed by obtaining various forms of authority, including an environment protection licence. The application for and approval of an environment protection licence requires environmental impact assessment of the activity and imposition of conditions on a licence to prevent, control, abate or mitigate pollution and other harm to the environment.

61. Orica’s conduct of polluting waters, by discharging grout into the drainage channel, without first obtaining and acting in accordance with an environment protection licence, undermines this legislative objective and scheme.

62. The objects of the Parks Act (s 2A) include the conservation of nature, including habitat, ecosystems and ecosystem processes, biological diversity at the community, species and genetic levels, landforms of significance, and landscapes and natural features of significance (s 2A(1)(a)) and providing for the management of land reserved under the Parks Act in accordance with the management principles applicable to each type of reservation (s 2A(1)(d)).

63. The purpose of reservation and the management principles for a state conservation area in s 30G of the Parks Act are:

(1)   The purpose of reserving land as a state conservation area is to identify, protect and conserve areas:

(a)   that contain significant or representative ecosystems, landforms or natural phenomena or places of cultural significance, and

(b)   that are capable of providing opportunities for sustainable visitor or tourist use and enjoyment, the sustainable use of buildings and structures or research, and

(c) that are capable of providing opportunities for uses permitted under other provisions in this Act in such areas, including uses permitted under section 47J,

so as to enable those areas to be managed in accordance with subsection (2).

64. Under subsection (2) of s 30G, a state conservation area is to be managed in accordance with the following principles:

(a)   the conservation of biodiversity, the maintenance of ecosystem function, the protection of natural phenomena and the maintenance of natural landscapes,

(b)   the conservation of places, objects and features of cultural value,

(c) provision for the undertaking of uses permitted under other provisions of this Act in such areas (including uses permitted under section 47J) having regard to the conservation of the natural and cultural values of the state conservation area,

…

(d)   provision for sustainable visitor or tourist use and enjoyment that is compatible with the conservation of the state conservation area’s natural and cultural values and with uses permitted under other provisions of this Act in such areas,

…

65. Provisions of the Parks Act prohibit certain conduct and the causing of certain consequences in land reserved under the Parks Act. These include the conduct of construction, operation and use of any structure, installation, engineering work, plant or equipment on reserved land and the consequences of damaging vegetation, rock, soil, sand, stone or similar substances in reserved land. The prohibitions on such conduct and such consequences can be relaxed by obtaining consent under the Parks Act to carry out the conduct or cause the consequences.

66. Orica’s conduct of discharging grout from the base of the cliff into the drainage channel and causing the consequences of damaging the vegetation, soil, sand, stone and similar substances in the drainage channel, undermined this legislative objective and scheme. Orica was authorised by the consent to carry out remediation of the subsidence crack, but not to allow grout to leak from the crack and cause pollution of and damage to the drainage channel. Orica therefore caused damage to reserved land other than in accordance with the consent under the Parks Act.

Maximum penalties

67. The maximum penalty for a breach of s 156A(1) of the Parks Act by a corporation is 10,000 penalty units, which is $1,100,000: s 156A of the Parks Act and s 17 of the CSP Act.

68. The maximum penalty for a breach of s 120(1) of the POEO Act by a corporation is $1 million: s 123(a) of the POEO Act.

69. The large maximum penalties prescribed for both offences reflect the seriousness with which Parliament views the offences.

The environmental harm caused

70. The extent of the harm caused or likely to be caused by the commission of each offence is relevant to the objective seriousness of the offence: s 194(1)(a) Parks Act, s 241(1)(a) of POEO Act and s 21A(2)(g) of the CSP Act.

71. In this case, the environment that was harmed by the commission of each offence is restricted to the drainage channel downslope of the cliff. There was significant harm to the environment of Sugarloaf State Conservation Area by the subsidence caused by longwall mining underneath it. There was also damage caused to the vegetation, rock, soil, sand, stone and similar substances of Sugarloaf State Conservation Area by undertaking the remediation of the subsidence cracks, including by pumping cement based grout into the cracks. However, these harms are not caused by the commission of the offences.

72. The harm caused by the commission of the offences occurred only after the grout leaked from the crack at the base of the cliff into the drainage channel. The leakage of the grout into the drainage channel caused two types of harm in the affected area: damage to vegetation and rocks and impact to aquatic habitat.

73. The vegetation in the affected area was largely moist gully forest, a warm temperate rainforest type. The affected area also included elements of the surrounding forest types, Hunter Valley Moist Spotted Gum-Ironbark Forest and Freemans Peppermint-Apple-Bloodwood Forest. None of these vegetation communities are currently listed as threatened under either the Threatened Species Conservation Act 1995 (NSW) or the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

74. The incident resulted in grout covering the ground stratum of vegetation and rocks in the gully within the affected area. This had a negative impact on the vegetation in the gully for the period that the grout was in situ, primarily on the ground stratum. But it is unlikely that this impact will cause long term changes to the vegetation and habitat values of the affected gully.

75. The main observable impact of the grout and its removal on the vegetation in the gully was damage to the plants in the ground stratum and on the rocks. This included the death and damage to ferns, mostly Pyrrosia rupestris (rock felt fern) and Adiantum aethiopicum (common maidenhair fern), and grasses as well as the removal of mosses, lichens and ferns from rocks. Some damage to species in the mid stratum was observed, mainly due to the activity associated with removal of the grout, although this was minimal and resprouting of some individuals was observed in March 2014.

76. In addition, leaf litter, representing habitat for a range of invertebrate and frog species, was reduced in areas where the grout had been removed. However, it is likely that this leaf litter, and hence the habitat value it provided, will be replaced in a relatively short period of time.

77. The ongoing impact of these changes to vegetation and habitat is likely to be minimal in the longer term and resprouting and germination of ground stratum plans was already evident in March 2014.

78. The remediation activities involved the clearing or pruning of vegetation that would have had immediate impacts on the vegetation, including destruction of some individuals and damage to others. The use of these areas by personnel would have led to compaction of the topsoil, which is likely to have impeded the natural regeneration of the cleared area. In addition, clearing of these areas will have made the area more susceptible to infestation by weeds such as Lantana camara (Lantana) and Ageratina adenophora (Crofton weed) which are commonly found in the Sugarloaf State Conservation Area.

79. The remediation works were undertaken in such a way as to minimise the overall impacts, including restricting clearing where possible and avoiding the removal of large trees. In addition, weed control works were undertaken to reduce the incursion of weed species into the newly cleared area. Vegetation monitoring during the remediation process showed that vegetation experienced some minor impacts, predominantly to ground cover (from trampling) and canopy and shrub cover (from pruning for the heli-lift site).

80. However, an analysis of floristic data suggested little change in vegetation structure or composition. There were also signs that regeneration of vegetation within the grout affected areas was occurring. The removal of individual plants was unlikely to have long term impacts given the small area involved, however the increased likelihood of weed incursion has the potential for ongoing impact. In particular, Lantana is a particularly aggressive invasive species and readily outcompetes native species. Ongoing efforts will be required to ensure that the newly cleared areas do not become weed infested before the native vegetation is able to regenerate sufficiently.

81. The leakage of grout into the drainage channel also had the potential to affect aquatic ecology.

82. The ephemeral drainage channel would have provided habitat for freshwater biota such as insect larvae during wetter periods, although the drainage channel was dry in September 2013. The grout had the potential to cause the loss of aquatic habitat during wet periods.

83. The grout material is light and erodible and in some places there was evidence of some grout having eroded out and been washed downstream, whilst grout remained in the drainage channel. This had the potential for it to affect the water quality downstream from the site of the incident by increasing alkalinity, salinity and levels of aluminium and other metals in the water during wet periods. The effect is likely to be localised due to dilution as the pollutants moved downstream. The removal of the grout material would have allowed rainfall induced waters to return to normal quality relatively quickly.

84. Remediation was undertaken in accordance with a remediation plan prepared by Oceanic Coal and approved by OEH. The remediation plan required monitoring of surface water quality in the surrounding catchment during the remediation phase between October 2013 and June 2014. The monitoring included sampling for pH, electrical conductivity, total suspended solids and alkalinity. Ongoing results were provided to the OEH.

85. The results of the monitoring and assessments conducted for downstream waters indicated that there had not been any significant changes in the aquatic habitat due to the leakage of grout into the drainage channel.

86. In assessing the objective harmfulness of the offences, the Court is also required to consider the significance of the reserved land and whether any threatened or endangered species, populations or ecological communities were harmed or were likely to be harmed by the offences against s 156A(1): s 194(1)(b) of the Parks Act.

87. In this case, the evidence does not establish that there were plants or animals of a threatened or endangered species, population or ecological community that were harmed or were likely to be harmed by the leakage of the grout into the drainage channel. The evidence also does not establish that the damage caused by the leakage of the grout and its removal adversely affected the significance of Sugarloaf State Conservation Area.

88. In summary, the leakage of the grout into the drainage channel and its removal caused actual environmental harm to the plants and rocks in the affected area, and the habitat of freshwater biota in the drainage channel, during the period until the grout was removed, and had the potential to cause harm by increasing the likelihood of weed invasion into the disturbed area of the drainage channel and by affecting water quality downstream by increasing alkalinity, salinity and levels of aluminium and metals in the water during wet periods. Such actual and potential environmental harm, however, can be characterised as being towards the lower end of the range of extent of harm. I do not consider that it can be classified as “substantial” so as to be an aggravating factor under s 21A(2)(g) of the CSP Act.

Foreseeability of risk of harm

89. The extent to which Orica could reasonably have foreseen the harm caused or likely to be caused by the commission of the offences is a relevant objective circumstance: s 194(1)(d) of the Parks Act and s 241(1)(c) of the POEO Act.

90. The prosecutor submitted that Orica could reasonably have foreseen, and in fact did foresee, the harm caused or likely to be caused by the commission of the offences. Orica expressly identified the risk of a grout leak and was concerned that members of its team might not spot the grout leaking through an area below the cliff which could not be seen. Orica did raise its concerns with Oceanic Coal, however Oceanic Coal’s response that the geotechnical engineers undertaking weekly inspections at the base of the cliff would report any grout leakage, did not adequately address this concern. Orica itself took no steps to ensure leakage in such a location did not occur or, if it did occur, was able to be quickly detected.

91. Orica submitted that the extent to which it could reasonably have foreseen the risk of the harm that later eventuated was low. Orica did foresee the risk of leakage of grout and raised this with Oceanic Coal. Orica received assurance from Oceanic Coal that any grout leakage would be identified in the geotechnical inspections. Orica had been directed not to work below the cliff and it had no responsibility for geotechnical issues. Orica assumed that Oceanic Coal and its geotechnical engineers knew the complete crack details from the geotechnical investigations and had completed a site inspection of the crack. Orica submitted, in these circumstances, it was justified in assuming that the risk of grout leakage from the base of the cliff was unlikely.

89. I find that the risk that grout might leak from the crack in the cliff that was being filled into the drainage channel downslope of the cliff was reasonably foreseeable.

90. A risk of harm can be foreseeable even if it is unlikely to occur. As was said in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 46:

A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

94. In this case, the risk that grout might leak from the base of the cliff and descend into the drainage channel beneath and cause the environmental harm that actually occurred clearly was not far-fetched or fanciful or, indeed, not unlikely.

95. First, there was uncertainty as to the location, pattern and extent of subsidence cracks. Although the RCA geologist had identified and mapped the surface expression of the cracks and, to the extent that they were able to probe, the depth, the subsurface expression was largely unknown. As a result of this uncertainty, it was foreseeable the grout might leak from an unmapped crack at the bottom of the cliff.

96. Second, in part because of the first reason, the protocol for filling cracks with grout required a person to act as a spotter to see whether any grout leaked from the rocks or earth. In the usual situation, the spotter was located downslope of the crack being filled. In this case, the RCA geologist and Oceanic Coal had directed that it was unsafe for the spotter to be downslope of the cliff in which the crack being filled occurred and instead the spotter was positioned at the top of the cliff. But the role of spotter remained the same – to see whether any grout leaked from the crack being filled. Hence, it was foreseeable and indeed was foreseen that grout might leak from cracks in the bottom of the cliff.

97. Third, Orica did in fact foresee that grout might leak from an area at the bottom of the cliff that the spotter, who had been directed to be positioned at the top of the cliff, might not be able to see. Orica had been directed by Oceanic Coal that the base of the cliff was out of bounds and that Orica employees were not able to work there for safety reasons. Orica raised its concern with Oceanic Coal a few weeks before work began filling the crack. Oceanic Coal advised that this risk of grout leaking could be addressed by RCA geologists completing weekly inspections at the base of the cliff and observing if any leakage had occurred in the period between the weekly inspections. Hence, both Orica and Oceanic Coal foresaw that grout might leak from the base of the cliff.

98. It was reasonably foreseeable that if grout did leak from the base of the cliff it would flow downslope into the drainage channel. The drainage channel was immediately downslope of the crack in the cliff. The fluidity of the grout used to fill the crack was such that any grout that did leak would flow downslope into the drainage channel.

99. It was also foreseeable that the leakage of grout might not be detected immediately and could continue for some days. The spotter on the top of the cliff would not be able to see any leaked grout when it exited the base of the cliff and would only be able to see it after the grout had flowed downslope some way (as in fact happened). This might take some days. There could also be a delay in detection if the leakage of grout occurred shortly after a weekly inspection of the base of the cliff by the RCA geologist. The leakage could continue undetected until the next weekly inspection. The fact that the leakage of grout might continue for a number of days meant that the grout could flow into the drainage channel.

100. It was reasonably foreseeable that if the grout did flow into the drainage channel it would damage the vegetation, rock, soil, sand, stone or similar substances in the drainage channel and the waters and aquatic ecology in it. The grout was a cement based product that by its nature would cause such damage.

Practical measures to prevent risk of harm

101. Another factor relevant to the objective seriousness of the offences is the practical measures that may be taken to prevent, control, abate or mitigate the environmental harm caused or likely to be caused by the commission of the offences: s 194(1)(c) of the Parks Act and s 241(1)(b) of the POEO Act.

102. There were practical measures that could have been taken to prevent, control, abate or mitigate the harm that was caused to the drainage channel and its biotic and abiotic components. These measures were identified in the agreed statement of facts:

138.   Mr Lees [an engineer with expertise in grouting and geotechnical contracting] considered it was possible to place a spotter in a safe position downslope of the crack which may have given the grouting team a quicker notification of the leak. The downslope area could have been accessed through the private property or via a 40 minute walk around the ridge line.

139.   Other measures which could have been taken may include:

(a)   carrying out cliff stabilisation such as has been carried out since 4th June 2013 to make the cliff safe and stable;

(b)   mapping the crack in more detail to determine its size and the quantity of grout required to fill it;

(c)   not grouting the crack in this location at all;

(d)   plugging any leakage paths;

(e)   using a different grout to fill the crack that is less fluid and sets quicker;

(f)   grouting the crack in smaller loads over a few days so that there is less risk of a major leak;

(g)   providing access to the bottom of the cliff to enable a spotter to view if there was leakage of grout from the crack;

(h)   providing the spotter on the top of the cliff line with a harness so that he could stand closer to the edge of the cliff line;

(i)   installing cameras at the base of the crack to enable remote monitoring; and

(j)   not flushing the poly pipe into the crack on completion of grouting hence minimising the amount of material in the crack and the potential for watering down the grout in the crack.

103. Not all of these measures could have been undertaken unilaterally by Orica; many were within the control of Oceanic Coal or required its approval or action to be implemented. This was recognised in the agreed statement of facts:

140.   In relation to paragraphs 139(a) and 139(b), these measures were generally within the control of Oceanic Coal.

141.   In relation to paragraphs 139(c) and 139(d), the defendant acknowledges that it could have escalated its concerns with Oceanic Coal about the risk of leaks before continuing grouting activities, although a decision whether or not to grout in this location was ultimately a matter for Oceanic Coal’s determination.

142.   In relation to paragraphs 139(d) and 139(e)...the defendant suggested to Oceanic Coal the use of Geofoam in grouting activities prior to January 2013 but the Geofoam in the grouting activities at WWC was not approved by OEH until 6 June 2013.

143.   In relation to paragraph 139(f), the defendant could have grouted the crack in smaller loads although the defendant would have had to obtain Oceanic Coal agreement to this.

144.   In relation to paragraphs 138, 139(g) to 139(i), the defendant could have discussed these potential measures with Oceanic with a view to having them implemented. However, the implementation of any of these measures ultimately required the agreement of Oceanic Coal.

145.   In relation to paragraph 139(j), the defendant could have not flushed the poly pipe into the crack on completion of grouting although it is not expected that this would have had any significant impact on the amount of grout involved in the incident.

104. However, the fact that Orica could not take all of the measures unilaterally does not cause them not to be practical measures that could have been taken; it only changes the process by which those practical measures could be undertaken. For Orica’s part, it could have proposed, and pressed the case for, the taking of the measures. As Orica accepted in submissions, it could have escalated further its concerns about the potential for a spill of grout and ultimately refused to undertake grouting until its concerns were addressed.

105. In conclusion, there were practical measures which, either in total or in part, could have reduced the risk of grout leaking and reaching the drainage channel, and thereby could have prevented, controlled, abated or mitigated the environmental harm caused.

Control over causes giving rise to the offences

106. The extent to which Orica had control over the causes that gave rise to the offences is another factor relevant to the objective seriousness of the offences: s 194(1)(e) of the Parks Act and s 241(1)(d) of the POEO Act.

107. Orica was in occupation of the site at the cliff in order to carry out the remediation of the subsidence crack. Orica’s employees performed the work of filling the crack with grout. They were obliged to do so in accordance with all requirements of the law, including the Parks Act and the POEO Act, as well as the supply contract, for the protection of the environment. Clause 2.3(a) of the supply contract provided:

(a)   The Supplier must:

(i)   comply with all requirements of the Law and this agreement for the protection of the environment;

(ii)   provide the Supply in accordance with the Environmental Management System, the EPA Licence and other Authorities’ requirements; and

(iii)   provide the Supply in a manner so as to avoid unlawful pollution of the site and its surroundings.

(b)   The Supplier is responsible for, and must make good, any damage to the environment caused by the provision of the Supply (including any unlawful pollution of the site or its surroundings)

...

The “Supplier” was Minova and later Orica.

108. The filling of the crack with grout, but not detecting the leakage of grout for some days, were the causes that gave rise to the offences. Orica had control over these causes.

No heightened state of mind or financial gain

109. A factor that can increase the objective seriousness of a strict liability offence, such as the two offences with which Orica is charged, is if the commission of the offence is premeditated or it is committed intentionally, recklessly or negligently.

110. The prosecutor originally submitted that the offence against s 156A(1) of the Parks Act was committed negligently and that this increased the objective seriousness of that offence. The prosecutor accepted that it could not submit that Orica acted negligently in committing the offence under s 120(1) of the POEO Act because, applying the principle in the R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, there was a more serious offence against s 116 of the POEO Act of wilfully or negligently causing any substance to leak, with which Orica had not been charged.

111. Orica agreed that the De Simoni principle precluded the Court considering whether Orica acted negligently in committing the offence against s 120(1) of the POEO Act, but also submitted that the De Simoni principle applied to the offence against s 156A(1) of the Parks Act in the particular circumstances of this case where the offence arose from the same conduct of Orica. Orica submitted that in any event, however, the evidence did not establish criminal negligence beyond reasonable doubt.

112. After considering Orica’s submissions on the evidence, the prosecutor accepted that the evidence did not support criminal negligence. As a consequence, it is not necessary to determine the debate as to the application of the De Simoni principle in this case.

113. I agree that the evidence is not sufficient to establish, to the criminal standard required, that Orica committed the offences negligently. Although I have found that Orica could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offences, and there were practical measures that could have been taken to prevent, control, abate or mitigate that harm, these findings do not lead ineluctably to the further finding that Orica committed the offences by criminal negligence.

114. For conduct to be criminally negligent, there needs to be not merely a breach of a duty of care or a failure to take relevant precautions, but also that the circumstances of the breach of duty or failure to take precautions involved a sufficient degree of carelessness, disregard of the objects of relevant statutes, or indifference to the obvious risks as would warrant criminal punishment: Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 at 438-439; Cittadini v The Queen [2009] NSWCCA 302 [38]-[40]; and Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 at [81], [82].

115. I find that the evidence in this case does not establish that Orica had the degree of carelessness, disregard for the objects of the Parks Act or the POEO Act, or indifference to the risk of grout leaking and causing environmental harm, as can properly be characterised as criminal negligence and that would warrant criminal punishment.

116. Another factor that increases the objective seriousness of an offence is if the offence was committed for financial or commercial gain, such as to make a profit or to save incurring an expense: s 21A(2)(o) of the CSP Act and s 194(1)(h) of the Parks Act.

117. In this case, there is no evidence that Orica committed the offences for financial or commercial gain, such as to make a profit or to save incurring an expense or to avoid the cost of obtaining and implementing a statutory permission such as a consent under the Parks Act or an environment protection licence under the POEO Act.

Conclusion on objective seriousness

118. Considering all of the objective circumstances, the offence is in the low end of the range of objective seriousness for offences of these kinds.

Subjective circumstances

119. Within the boundaries set by the objective seriousness of the offences, the Court may consider the subjective circumstances of Orica, including: its prior record of convictions; its pleas of guilty; its remorse for the offences; its good corporate character; the unlikelihood of re-offending; and its assistance to authorities.

Record of prior convictions

120. Orica does have a record of prior convictions for environmental offences. It has 18 prior convictions for environmental offences throughout Australia, 11 of those in New South Wales. Nine of the offences in New South Wales were committed between October 2010 and December 2011. Eight of these involved various incidents at Orica’s manufacturing site at Kooragang Island and one at its manufacturing site at Botany. Of the remaining two convictions, one was in 2005 at Kooragang Island and the other about 25 years ago at Botany. None of the convictions related to the carrying out of subsidence management works, including remediation of subsidence cracks by filling with grout.

121. The causes of, and circumstances giving rise to, the prior offences were different to the causes of, and circumstances giving rise to, the two current offences. The consequences of the prior offences, including the nature and extent of environmental harm caused, were also different to the consequences of the current offences.

122. The current offences were also committed by Orica as a result of it acquiring the assets of Minova, including the supply contract to remediate the subsidence cracks caused by the underground mining at the West Wallsend Colliery.

123. In these circumstances, I do not consider that Orica’s prior convictions manifest a continuing attitude of disobedience of the law or that Orica has not been deterred from re-offending by the sentences imposed for the prior offences, or that it has a propensity to re-offend. I do not view Orica’s record of prior convictions as an aggravating factor: s 21A(2)(d) of the CSP Act.

124. On the other hand, it cannot be viewed as a mitigating factor under s 21A(3)(e) of the CSP Act. Orica does have a record of prior convictions for environmental offences. It cannot be treated as a first time offender or as an offender with little criminal history.

Pleas of guilty

125. Orica entered pleas of guilty to both offences at the first available opportunity. This provided full utilitarian value to the criminal justice system and the maximum discount of 25% should be afforded for the utilitarian value of the pleas of guilty.

Remorse for the offences

126. Orica has expressed genuine remorse for the offences in four ways. First, the speed and efficiency of the action taken by Orica to rectify the harm caused or likely to continue to be caused by the commission of the offences is a clear indication of remorse. Orica took action immediately upon noticing the grout leakage. It stopped pumping immediately. It notified Oceanic Coal who in turn notified the relevant regulatory authorities. It assisted Oceanic Coal in the investigation of the leakage and it played a major role in the removal of the grout and the successful rehabilitation of the drainage channel. Orica estimated that the cost of its role in remediation was $431,900.

127. Second, Orica’s and Oceanic Coal’s reporting of the commission of the offences and the concomitant environmental harm to the relevant authorities, and their full cooperation with the authorities, indicates a genuine desire to act responsibly.

128. Third, Orica has taken steps to ensure that the type of incident does not happen again. Orica no longer offers surface crack grouting services in Australia. It does continue providing grouting products, including supplying products to grouting service providers who perform surface crack grouting at West Wallsend Colliery. Orica provides with its grouting products safety fact sheets and other information setting out procedures for the proper and safe use of the products. Orica is also working on the development of a new resin product that could be used in any future remediation and could assist in preventing a repeat of the grout leakage, mainly because of the product’s fast gel time.

129. Fourth, the personal appearance of corporate executives in court and their personal evidence outlining the company’s genuine regret for the offence and its consequences and stating future plans to avoid repetition of such offences can be an indication of genuine corporate contrition. In this case, Mr Pereira, the Business Manager East Metals, Underground and Quarries and Construction for Orica attended the sentence hearing and gave evidence by affidavit about Orica’s environmental management systems and community contributions. However, his evidence did not include expressing regret on behalf of Orica for committing the offences and causing environmental harm. That task was undertaken by Mr Nick Bowen, the Global Head of Mining Services of Orica Ltd, and a director of Orica Australia Pty Ltd (the defendant), in a letter to the Court dated 17 March 2015. In the letter, Mr Bowen states:

On 4 June 2013, an incident occurred at the West Wallsend Colliery which is the subject of these proceedings.

Orica accepts responsibility for the 4 June 2013 incident and the resulting environmental harm which is explained in the statement of agreed facts being finalised between the parties.

Orica accepts that there were some measures within Orica’s control which could have been taken to prevent or minimise the incident.

In my capacity as Global Head of Mining Services of Orica Limited and a director of Orica Australia Pty Ltd I offer an apology formally on behalf of Orica Australia Pty Limited to the Court and to the public for this incident.

In response to the events that took place, Orica has focussed significant efforts on remediating the grout and minimising any impact on the environment, as well as providing assistance to the Office of Environment and Heritage and the Environment Protection Authority in their management of the incident and associated investigation. These efforts are explained in the statement of agreed facts being finalised between the parties.

130. Although the evidence of Orica’s corporate executives was more impersonal and generic, I find that Orica nevertheless is genuinely contrite.

131. All of these actions speak of Orica’s genuine remorse for the offences: see s 21A(3)(i) of the CSP Act.

Good corporate character

132. Orica is of good corporate character: s 21A(3)(f) of the CSP Act. Mr Nigel Pereira gave evidence by affidavit about Minova’s environmental management systems at the time of the incident and the implementation of Orica’s environmental management systems following the incident. He also detailed Minova’s and Orica’s contributions to the community, including donations, sponsorships and contributions to community organisations, projects and programs.

Unlikelihood of reoffending

133. Another mitigating circumstance to be taken into account in determining the appropriate sentence is if the offender is unlikely to reoffend: s 21A(3)(g) of the CSP Act. I find that Orica is unlikely to reoffend for at least three reasons.

134. First, Orica is genuinely remorseful for the offences. Second, Orica has taken action to avoid a reoccurrence of the incident or similar incidents by no longer providing surface crack grouting services. Third, Orica’s remediation response to the incident shows that it has insight into the causes and the seriousness of the incident and is committed to preventing further incidents that may harm the environment.

Assistance to authorities

135. Orica has fully cooperated with the prosecutor in relation to its investigation of the incident, the remediation and the prosecution. Orica made its staff and company representatives available for interviews conducted by OEH officers, voluntarily made staff available to attend site inspections to assist OEH and EPA, cooperated with OEH officers on-site during the remediation works by providing information and assistance and actioning the requests of OEH, and negotiated and agreed a comprehensive statement of facts. Orica has also agreed to pay the prosecutor’s costs of the proceedings, as agreed or assessed. Such assistance to authorities is a mitigating factor: s 21A(3)(m) and s 23 of the CSP Act.

Appropriate sentences for the offences

136. I take into account the objective circumstances of the offences and the subjective circumstances of Orica, as I have discussed above.

137. I take into account the purposes of sentencing and s 3A of the CSP 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 Orica is adequately punished for the offences, to hold it accountable for its actions, and to denounce the conduct of Orica, in proportion to the seriousness of the offences.

138. The sentences also need to act as a deterrent. The purpose of general deterrence is relevant to ensure that persons undertaking activities in land reserved under the Parks Act and near to waters do not damage the vegetation and abiotic components of the reserved land or pollute waters, and take the necessary precautionary and preventative measures. The sentences of the Court must act to deter other persons in these circumstances from committing like offences to those committed by Orica.

139. In the circumstances of this case, having regard to Orica not manifesting a continuing attitude of disobedience of the law or a propensity to reoffend, its genuine remorse for the offences, its good corporate character, its actions taken at the time of and following the incident to address the causes of the incident and to prevent reoccurrence, and its unlikelihood of reoffending, there is no particular need for individual deterrence of Orica.

140. In determining the appropriate penalties, the Court should be consistent with the pattern of sentencing for like offences. I have had regard to the sentences imposed by this Court in other cases, involving damage to reserved land contrary to s 156A(1) of the Parks Act and pollution of waters contrary to s 120(1) of the POEO Act, to which the parties have drawn my attention. I have considered the sentences imposed and the objective and subjective circumstances of those offences and of the offenders involved that led the sentencing courts to impose those particular sentences. The sentences that I consider appropriate to be imposed on Orica for these two offences are not inconsistent with the sentences imposed in similar cases that provide a check or yardstick.

141. Synthesising all of the relevant objective and subjective circumstances of the offences and this offender, and considering the relevant purposes of sentencing, I consider that the appropriate monetary penalty is $100,000 for the offence against s 156A(1) of the Parks Act and $100,000 for the offence against s 120(1) of the POEO Act. These amounts should be reduced for the utilitarian value of the pleas of guilty. This makes each of the amounts $75,000.

142. Because there are two offences arising out of the same incident, the totality principle needs to be considered. The effect of the totality principle is to require the Court, which has passed 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 the case of fines, adjustment may be made by reducing the amount of the fine for each offence. Care needs to be taken, however, to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender’s conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence.

143. In this case, I consider that the totality principle does require there to be an adjustment of the combined fines for the offences. I consider the aggregate of the amount of the fines of $150,000 to exceed what is just and appropriate in the circumstances and the total criminality involved.

144. This results not from the fact that there is an overlap in the elements of the offences. The boundaries of the offences against s 156A(1) of the Parks Act and s 120(1) of the POEO Act are drawn so as not to be co-terminous. Both offences are strict liability offences but the physical or external elements of the offences are different. Hence, Orica would not be punished twice for the commission of the elements of the offences that are common, because there are no common elements: see Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40].

145. However, the criminality involved by Orica in committing the two offences is not limited to only the commission of the elements of each offence. The objective seriousness of the two offences committed by Orica is raised or aggravated by the relevant factors in s 194(1) of the Parks Act, s 241(1) of the POEO Act and s 21A(2) of the CSP Act.

146. I have found earlier that Orica’s commission of each offence caused and was likely to cause harm to the environment. Orica could and should have foreseen the environmental harm caused or likely to be caused by the commission of the offences. There were practical measures that could and should have been taken to prevent, control, abate or mitigate the environmental harm. Orica had full control over the causes that gave rise to the offences. These matters increase the objective seriousness of each of the offences committed by Orica and hence the criminality involved in Orica committing each of the offences.

147. Dealing with each offence individually, the sentence of the Court for each offence needs to be, and has been, increased to reflect the increase in the objective seriousness and criminality involved in the commission of the offence by reason of these matters. This results, however, in areas of overlap of aggravation being reflected in the commission of each offence by Orica. It would be wrong to punish Orica twice for its conduct in committing the offences in these areas of overlap. Rather, it is just and appropriate to adjust the sentences for the offences in a way that avoids double punishment and takes account of any specific circumstances of aggravation reflected in the elements of the separate offences: Pearce v The Queen at [120].

148. In the circumstances of the offences committed by Orica, I consider that the appropriate adjustment that should be made to remove the extent of double punishment and to reflect the total criminality involved is to reduce the aggregate of the fines by 20%, which should be evenly divided between each offence, so as to make the amount of the fine $60,000 for each offence.

149. Orica should be ordered to pay the prosecutor’s costs under s 257B of the Criminal Procedure Act 1986. As the amount of costs has not yet been agreed, the appropriate order is that Orica pay each prosecutor such costs as may be determined under s 257G of the Criminal Procedure Act.

ORDERS

150. I make the following orders:

50172/14

1. The defendant is convicted of the offence against s 156A(1) of the National Parks and Wildlife Act 1974 as charged.

2. The defendant is fined $60,000.

3. The defendant is to pay the prosecutor’s costs, in such amount as may be determined under s 257G of the Criminal Procedure Act 1986.

50173/14

4. The defendant is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997 as charged.

5. The defendant is fined $60,000.

6. The defendant is to pay the prosecutor’s costs, in such amount as may be determined under s 257G of the Criminal Procedure Act 1986.

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Decision last updated: 08 July 2015