DML Constructions Pty Ltd v Dolan - [2023] SASC 125

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
DML CONSTRUCTIONS PTY LTD v DOLAN
[2023] SASC 125
Judgment of the Honourable Justice Bampton
1 September 2023
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING AND DEVELOPMENT PROSECUTIONS - SENTENCING
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
Appeal against the recording of convictions following the appellant’s pleas to two environmental nuisance offences contrary to s 82(2) of the Environmental Protection Act 1993 (SA) – whether sentencing Judge erred in failing to exercise the discretion prescribed by s 24(1) of the Sentencing Act 2017 (SA) to not record convictions.
Held: Appeal dismissed – the sentencing Judge did not err in application of s 24(1) of the Sentencing Act 2017 (SA).
Environment Protection Act 1993 (SA) ss 3, 25(1), 82(1), 82(2), 124, 5C; Environment, Resources and Development Court Act 1993 (SA) s 30(4); Sentencing Act 2017 (SA) s 24; Magistrates Court Act 1991 (SA) s 42; Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.
Hemming v Lukin (1996) 67 SASR 248; Chehade v Commissioner for Consumer Affairs (2016) 125 SASR 223; R v Taylor; R v Teekens [2022] SASCA 79; Liemareff v Baldry [2016] SASC 152; Rusby v Kerley [2002] SASC 141; Piva v Brinkworth (1992) 59 SASR 92; H Stanke & Sons Pty Ltd v Parkes (2010) 108 SASR 296; City of Salisbury v Ahrens Group Pty Ltd (2010) 108 SASR 54, considered.

DML CONSTRUCTIONS PTY LTD v DOLAN
[2023] SASC 125
Appeal to a single Judge

BAMPTON J: This is a salutary tale for developers, engineers, and civil works contractors of a series of unfortunate events, compounded by an industry practice of deference to engineers inconsistent with statutory and contractual obligations.
In August 2016, DML Constructions Pty Ltd (“DML”), a civil works contractor, was invited by the engineering firm Fyfe Pty Ltd (“Fyfe”) to tender to perform civil construction works on a steeply sloping and challenging site (“the site”) at Nairne in the Adelaide Hills. The developer of the subdivision on the site was Nevarc Constructions Pty Ltd (“Nevarc”), more commonly known by its trading name “Oakford Homes”. DML’s tender for the stage 1C civil construction works (“the works”) was accepted. DML and Nevarc signed a contract for the works on 24 October 2017 and a variation to the contract on 1 March 2018. DML performed the works between January and early April 2018.
Part of the works involved the installation of erosion mitigation measures by DML pursuant to a stormwater erosion and drainage management plan (“SEDMP”) which had been prepared by Fyfe. Significant rain events in April and June 2018 impacting on the large-scale earthworks on the site, combined with an inadequate SEDMP, resulted in discharges of soil, clay, gravel, and sand from the site onto neighbouring residential properties and into Nairne Creek (“the two pollution events”). Following the June 2018 rain event and upon receipt of complaints from affected residents, the Environment Protection Authority (“the EPA”) commenced an investigation. On 10 July 2018, the EPA issued an environment protection order to Nevarc, requiring it to cease development until urgent soil erosion and sediment runoff control measures had been implemented.
Thereafter, DML was jointly charged with Nevarc on an Environment, Resources and Development Court (“ERD Court”) Information dated 6 April 2021 with offences against the Environment Protection Act 1993 (SA) (“the Act”) in relation to the two pollution events. By count 1 and count 2 of the Information, they were each charged with two offences against s 82(1) of the Act or, in the alternative, offences against s 82(2) of the Act. By count 3, Nevarc alone was charged with breaching an environmental protection order issued to it, contrary to s 93(8) of the Act.
Nevarc pleaded guilty to count 3 and to the alternative charges to counts 1 and 2 and was sentenced by the ERD Court on 24 September 2021. Convictions were recorded and fines imposed in relation to the three admitted offences. Nevarc agreed to the publication of a notice acknowledging the offending.
DML pleaded guilty to the alternative charges to count 1 and 2 and was sentenced by the ERD Court on 20 May 2022. Convictions were recorded and fines imposed in relation to each admitted offence. Like Nevarc, DML agreed to the publication of a notice acknowledging the offending.
Fyfe was not charged with any offending contrary to the Act arising out of its role in the design and oversight of the civil works.
DML’s appeal
DML appeals only against the recording of the convictions, contending that the sentencing Judge (“the Judge”) erred in failing to exercise his discretion not to impose convictions in that he:
1.found that ‘extenuating circumstances’, as the term in used in s 24 of the Sentencing Act 2017 (SA) (“the Sentencing Act”), did not exist in relation to DML.
2.failed to make any finding as to whether, for the purposes of s 24, good reason existed for not recording a conviction.
3.erred in his consideration of s 5C of the Environmental Protection Act 1993 (SA) and in confusing particulars with essential elements.
4.took into account irrelevant considerations in the course of his consideration of s 24.
5.misapplied the test in s 24.
6.should have, in all relevant circumstances, not recorded convictions.
Principles governing the appeal
Section 30(4) of the Environment, Resources and Development Court Act 1993 (SA) (“the ERD Court Act”) prescribes that a party to any criminal proceedings before the ERD Court may appeal against any judgment, including convictions, given in those proceedings in the same way, and to the same extent, as an appeal may be instituted against a judgment given in a criminal action under s 42 of the Magistrates Court Act 1991 (SA).
DML must demonstrate that the discretion of the ERD Court, in declining to not record convictions, miscarried. I must be satisfied of, in effect, an error, or that the failure to exercise the discretion is so manifestly unreasonable that an error may be inferred even if it is not apparent from the sentencing remarks of the Judge (“the remarks”). It is not enough that I may have exercised the discretion differently.
DML’s legislative and contractual obligations
The circumstances of DML’s offending must be considered in the context of DML’s legislative and contractual obligations. To that end, relevant provisions of the Act and the contract entered into between DML and Nevarc are set out below.
The Act
General environmental duty
Section 25(1) of the Act prescribes a general environmental duty:
(1)A person must not undertake an activity that pollutes, or might pollute, the environment unless the person takes all reasonable and practicable measures to prevent or minimise any resulting environmental harm.
Causing an environmental nuisance
Section 82(2) of the Act provides that a person who, by polluting the environment, causes an environmental nuisance is guilty of an offence. The maximum penalty for an offence against s82(2) of the Act in the case of a body corporate is $15,000.
Definition of occupier
Section 3(1) of the Act relevantly defines an “occupier” as:
occupier in relation to a place, includes a person with a right to occupy the place or a licensee or any holder of a right to use or carry on operations at the place.
Responsibility for pollution
Section 5C of the Act provides that, for the purposes of the Act, the occupier as defined in s 3(1):
… in charge of a place … at or from which a pollutant escapes or is discharged, emitted, deposited or disposed of will be taken to have polluted the environment with the pollutant (but without affecting the liability of any other person in respect of the escape, discharge, emission, depositing or disposal of the pollutant).
General defence
Section 124(1) prescribes the following defence:
It will be a defence in any criminal proceedings, or in any proceedings for the payment of an amount as a civil penalty, in respect of an alleged contravention of this Act, including—
(a)proceedings against a body corporate or a natural person where conduct or a state of mind is imputed to the body or person under this Part; and
(b)proceedings against an officer of a body corporate under this Part,
if it is proved that the alleged contravention did not result from any failure on the defendant’s part to take all reasonable and practicable measures to prevent the contravention or contraventions of the same or a similar nature.
The Webber Drive, Nairne contract document relating to stage 1C
The Oakford Homes subdivision development was situated in the vicinity of Webber Drive and Megan Circuit in Nairne (“the development”). The Mount Barker District Council (“the council”) gave approval for the development on 22 August 2013. Thereafter, Nevarc was involved in progressively clearing and undertaking other earthworks in connection with the development in stages numbered 1A, 1B, 1C, and 1D. Annexed to these reasons is a site plan of the development. Stage 1C is depicted by hatching and stage 1D is depicted by a red outline.
Fyfe prepared the design and specifications for works on stages 1A, 1B, 1C, and 1D. Fyfe also prepared a SEDMP for each stage.
Stages 1A and 1B (including the construction of the northern detention basin depicted in the annexure to these reasons) of the development had been completed by other contractors prior to Nevarc contracting with DML to perform the works.
Fyfe prepared the “[Webber] Drive, Nairne contract document” relating to stage 1C (“the contract”) between DML and Nevarc dated 24 October 2017. The contract specified Nevarc as the principal and DML as the contractor of the Webber Drive stage 1C project (“stage 1C”).
DML and Nevarc agreed the contract comprised the following documents:
(a)The General Conditions of Contract AS2124-1992, including Annexure A & B and any Special Conditions of Contract
(b)Specification Number: 9165-502 dated 21^st April 2016 (included in Appendix B)
(c)The drawings (included in Appendix A):
Civil9165-502-34-CV-S1-101 to 1039
Sewer9165-502-34-CV-S1-140 to 146
Water2013-3095-31 to 32
ElectricalLCE7790-1c-ELEC sheet 1 & 2
Reticulation
Reserve Lighting LCE7790-E01 & E02
Telecommunications AYCA-37L12B Legend and Sheet 1
GasN/A
(d)Soil Erosion and Drainage Management Plan in Appendix C
Clause 14 of the general conditions of contract mandated that DML comply with all State and Commonwealth Acts.
Clause 40 of the general conditions of contract concerned variations and provided that the contractor under the contract was bound only to execute a variation which was within the general scope of the contract.
Clause 1.1 of annexure A to the general conditions of contract (“annexure A”) nominated Nevarc the superintendent of stage 1C and Fyfe the superintendent’s representative.
Clause 1.2.2 of annexure B to the general conditions of contract (“annexure B”) added the following subclauses to cl 23 of the general conditions of contract:
23.1Instructions only from Superintendent
Except as otherwise expressly defined in the Contract, the Contractor shall take instruction and directions only from the Superintendent or subject to the limitations referred to in Clause 24, from the Superintendent’s representative.
23.2Contractors Responsibilities – Unaffected by Approval
Where under the terms of this Contract the approval of the Superintendent is required, such approval, if any, shall not relieve the Contractor of any obligation, duty, responsibility, or liability either in law or under the terms of the Contract.
Construction and contract requirements – construction environmental management plan (“CEMP”)
Clause 2.8 of annexure B required DML to develop a construction environmental management plan (“CEMP”). The CEMP relevantly was required to address erosion and sediment control.
Construction and contract requirements – environmental protection
Clause 2.9.1 of annexure B required DML, in addition to its general environmental obligations, to observe and comply with the following as a minimum:
Provisions of this clause and the requirements of any statute, by-law, standard and the like related to environmental protection …
…
Develop a soil erosion management plan for the works for approval by the Superintendent
Construction and contract requirements – nuisance
Clause 2.18 of annexure B required DML to take appropriate precautions to minimise noise, dust, mud, and nuisance to the satisfaction of the superintendent and council.
Stage 1C technical specification
Clause 3.6.2 on page 13 of the technical specification pertaining to stage 1C provided:
The Contractor shall implement and maintain appropriate control measures to ensure exposed soil, including batters, bunds and swales etc, are protected from erosion. Such measures shall be outlined in the Contractor’s approved CEMP document and sediment and erosion control plan.
(Emphasis added)
Stage 1C SEDMP
Clause 1.1 of the stage 1C SEDMP (“1C SEDMP”) prepared by Fyfe dated 22 March 2015 provided:
This management plan has been prepared to address erosion and sediment control, and stormwater runoff within the construction site in order to minimise the impact of the development on the surrounding roads, existing drainage system, adjoining properties, and downstream water courses.
and under the heading “Objectives”, cl 1.2 of the 1C SEDMP provided:
This SEDMP has been prepared to demonstrate an industry best practice methodology to the civil contractor, however it should be viewed as the minimum requirements and does not remove the contractor’s responsibility to manage soil erosion and stormwater runoff to the then relevant industry guidelines. As the construction site will continually change throughout the duration of the construction works, the contractor is required to update the erosion, sediment and drainage control measures as work progresses.
(Emphasis added)
Clause 2 of the 1C SEDMP, under the heading “Erosion, Sediment and Drainage Control”, provided:
The purpose of this section is to provide a set of best practice site management procedures in accordance with “Handbook for Pollution Avoidance on Commercial and Residential Building Sites” EPA (2001), “Stormwater Pollution Prevention” EPA (1999) and “Best Practice Erosion and Sediment Control” (Nov 2008) International Erosion Control Association (IECA) to control the severity and extent of soil erosion and pollutant transport for the balance of the site civil works.
Clause 2.2 of the 1C SEDMP required that:
Sediment and drainage control measures are to be installed throughout the construction site to ensure that all sediment and erosion is controlled on site. The control measures to be utilised are:
·Silt fences
·Hay bales
·Catch drains
·In kerb silt sock sediment traps
The minimum requirements for the installation of these sediment and drainage control measures onsite can be found in Appendix A. This set out of sediment and drainage control measures has been provided to demonstrate the minimum level of control requires, however it is the responsibility of the contractor to ensure that these measures are adequate and add/adjust control measures as construction work progresses.
(Emphasis added)
The works performed by DML
DML’s project manager, in an affidavit affirmed 24 February 2022,[1] recalled during the first meetings with Fyfe there was a focus on erosion and sediment controls for the development. Fyfe had explained there had been quite a few problems with erosion and sediment control during stage 1B due to the steep slope of the site and high rainfall in the area. The project manager deposed that DML was very conscious of achieving compliance with the 1C SEDMP, having regard to Fyfe’s experience with the site and engineering expertise in erosion control.
[1] FDN 34.
The project manager referred to the requirement under the contract that DML provide a CEMP containing short-term and long-term stockpile control and an erosion and sediment control management plan. The CEMP detailing how DML would implement the 1C SEDMP was provided to Fyfe for review prior to a start‑up meeting on 15 January 2018. DML asserted that Fyfe did not raise any significant concerns with sediment and erosion controls during site meetings held 15 January, 6 February, 20 February, 6 March and 29 March 2018 attended by DML, Fyfe and sometimes a council representative.
DML submitted that erosion and sediment controls were installed in accordance with the 1C SEDMP prepared by Fyfe and, once installed, inspected by Fyfe and a council representative. All additional recommendations made by Fyfe or the council representative were implemented by DML. DML also submitted that Fyfe advised DML the protection measures Fyfe had prescribed in the 1C SEDMP had been satisfied. DML maintained that it did not depart from the 1C SEDMP which had been prepared by Fyfe’s senior civil engineer and senior stormwater engineer.
The works involved the clearing of vegetation and soil across large areas of the stage 1C land, leaving significant areas of soil exposed and altering the natural topography of the stage 1C land. As part of Fyfe’s design of the 1C SEDMP, surface water, mud, and silt from the stage 1C land was to be diverted to the northern detention basin.
Variation to the contract
The contract originally required excavated soil to be removed from the stage 1C land and then brought back during the stage 1D works. To avoid the double handling of this excavated soil, Nevarc and DML agreed to a contract variation on 1 March 2018 prepared by Fyfe which required DML to place large amounts of soil excavated from stage 1C land onto stage 1D land (“variation 8”).
DML was aware that the stage 1D plans included the installation of a stormwater detention basin to control the escape of water, mud and silt from the southern end of stage 1D land (“southern detention basin” also depicted in the annexure to these reasons). During discussions leading to variation 8, DML’s project manager discussed with Fyfe’s representative the potential installation of the southern detention basin before the filling of the stage 1D land. DML stressed that Fyfe made clear the southern detention basin would not be constructed prior to the variation 8 works.
Fyfe did not provide an additional or specific SEDMP to DML for variation 8.
The variation 8 works were completed by early April 2018.
The rain events in April 2018 and June 2018
The first rain event
Between 14 and 17 April 2018, 30.6 mm of rain fell on the site and the northern detention basin design capacity of 18.68 mm over five days was exceeded. The amount of surface water mixed with mud and silt on the site was too great to be held by the mitigation measures that had been put in place by DML, and a portion of the mud and silt escaped from the stage 1C and stage 1D land, entering residential properties on William Street and Plowman Close, and Nairne Creek.
During May, June, July, and August of 2018, the site was the subject of regular, frequent rainfall with very few dry periods of more than a few days in between. In addition to the frequent light rain, the northern detention basin design capacity of 18.68 mm over five days was exceeded on the following occasions:
·3 May 2018 to 4 May 2018 – 24.6 mm;
·12 June 2018 to 15 June 2018 – 39.8 mm;
·6 July 2018 to 8 July 2018 – 28.6 mm;
·6 August 2018 to 8 August 2018 – 38.4 mm.
The second rain event

From 12 June to 15 June 2018, 39.8 mm of rain fell on the site. The northern detention basin design capacity was again exceeded. The amount of surface water mixed with mud and silt on the site was again too great to be held by the mitigation measures that had been put in place by DML, and a portion of the mud and silt escaped from the stage 1C and stage 1D land and entered properties on Nixon Street, Lower Nixon Street, William Street, Elder Street, and Plowman Close, as well as Nairne Creek.
Following the rain events, Nevarc contracted with DML to construct the southern detention basin at a cost of $825,000.[2]
[2] FDN 32, [19] (ERD-21-000039).
It is an agreed fact[3] the southern detention basin was correctly and adequately designed to control runoff from stage 1D land and should have been constructed prior to the variation 8 works. Its non-construction was a substantial cause of the escape of pollutants from the stage 1D land in June 2018.
[3] FDN 25, (ERD-21-000039).
Liability of DML
It is an agreed fact that as a result of its contractual engagement to carry on operations on the stage 1C land, DML was an “occupier” of the stage 1C land as defined in s 3(1) of the Act is thereby taken to have polluted the environment under s 5C in relation to the escape of pollutants.
Expert opinion obtained by DML from Andrew Macleod
In a report prepared for DML’s solicitors dated 2 November 2021, Andrew Macleod, an environment scientist specialising in erosion and sediment control and soil science, provided the following opinion:
1.The southern detention basin designed by Fyfe as part of the stage 1D works was correctly and adequately designed, and should have been in place to receive runoff from the variation 8 works area.
2.The variation 8 works involved significant land disturbance and soil exposure in an area that was outside of the catchment reporting to the northern detention basin.
3.The natural slopes within the stage 1D area disturbed as part of the variation 8 works were moderate to steep. The extent of the disturbance within the stage 1D area caused by the variation 8 works contributed to a significant risk of erosion and subsequently a significant risk of sediment being transported in runoff from the work area.
4.The stage 1D SEDMP prepared by Fyfe dated 2 August 2016 included the following instruction on drawing 9165-502-34-CV230:
Detention Basin in Lot 203 and Access Path MD203 is to be constructed prior to all works in Stage 1D. Basin is acting as a sediment control basin during construction of Stage.
which confirmed that the person who prepared the stage 1D SEDMP was aware of the importance of the southern detention basin to minimise potential impacts to the environment from sediment-laden runoff from the construction activities associated with stage 1D.
5.The southern detention basin should have been constructed prior to commencement of land disturbance within stage 1D associated with variation 8 works and responsibility for ensuring that the southern detention basin was constructed rested primarily with Fyfe.
6.The stage 1C SEDMP, which included the northern detention basin, did not include any instructions regarding the water quality requirements for discharge from the basin, and “extreme rain events” referred to in cl 2.1.2 of the stage 1C SEDMP were not defined.
7.“Best-practice erosion and sediment control as defined in IECA (2008) requires that sediment basins such as the Northern Basin be designed to a nominated rainfall depth, and any rainfall events that exceed that depth would cause the sediment basin to overflow.”
8.There were no instructions for a timeframe for reducing the water level in the northern detention basin following the cessation of rainfall, nor did it facilitate any discharge from the northern detention basin, other than would occur as natural overflow from the basin in an extreme rain event exceeding 18.68 mm over any five-day period.
9.Given the absence of instructions in the stage 1C SEDMP for treating, discharging, and monitoring water in the northern detention basin, the monitoring and maintenance regimes for that basin were inadequate.
Mr Macleod was asked by DML’s solicitor in what ways he would expect the “Objectives” set out in cl 1.2 of the stage 1C SEDMP[4] to cause civil contractors such as DML to depart from drawings and specifications set out in the SEDMP. His response was:
·… Erosion and sediment control is a specialised area of expertise so civil contractors rely on plans provided to them by designers and/or consultants to guide their implementation and management of erosion and sediment control onsite.
·… I would expect senior personnel such as supervisors or foremen working for a civil contractor such as DML to have a sound working knowledge of how to construct and install erosion and sediment control measures. … However, I would not expect such staff, or any staff within a civil contracting company such as DML to have the experience and knowledge to design [erosion and sediment control] measures or prepare a SEDMP.
·In my experience, only large, top-tier contractors working on multi-million dollar projects … have the resources and management systems to self-manage the environmental aspects of an earthworks project. …
·As the Stage 1C SEDMP is not marked as a “guidance document only” the civil contractor would be highly unlikely to assess the SEDMP for adequacy, depart from the drawings and specifications therein, propose changes, or update the plan.
[4] See [30] above.
Mr Macleod said the fact Fyfe designed the 1C SEDMP, prepared the contract, and was acting in an administrative role to oversee the planning and implementation of site activities as they related to erosion and sediment control, reinforced his expectation and opinion that a civil contractor such as DML would be unlikely to depart from the drawings and specifications in the stage 1C SEDMP. Mr Macleod noted an email from Fyfe dated 30 November 2018, which provided “Fyfe staff have been present on numerous occasions directing the repair or adjustment of silt control measures by DML staff”.
The grounds of appeal
DML submitted the Judge was in error in declining to exercise the discretion not to record convictions, pursuant to s 24 of the Sentencing Act. Section 24 provides:
24—Imposition of penalty without conviction
If a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both, and the court is of the opinion—
(a)that the defendant is unlikely to commit such an offence again; and
(b)that, having regard to—
(i)    the character, antecedents, age, or physical or mental condition, of the defendant; or
(ii)     the fact that the offence was trifling; or
(iii)    any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
Found that ‘extenuating circumstances’ did not exist
In considering whether to exercise his discretion to not record convictions (“the discretion”), the Judge:
1.found s 24(a) of the Sentencing Act was satisfied in that DML is unlikely to reoffend and that it had implemented significant measures to prevent such pollution events recurring, including employing a compliance officer, updating written policies in respect of environmental issues and ensuring that project managers undergo specific training in the management of environmental issues;
2.found s 24(b)(i) satisfied in that DML enjoyed “a good reputation and an otherwise unblemished history of operation”, it had been a good corporate citizen, had co-operated with the EPA and had taken steps and incurred expense to ensure the offending will not reoccur; DML’s contrition was genuine and was reflected in the pleas of guilty and the attendance of the directors during the sentencing hearings;
3.found the offending was not trifling and therefore s 24(b)(ii) of the Sentencing Act was not satisfied; and
4.found there were no extenuating circumstances and therefore s 24(b)(iii) of the Sentencing Act was not satisfied.
During sentencing submissions, DML had submitted the following matters were extenuating circumstances for the purposes of s 24 (b)(iii) of the Sentencing Act:
1.The nature of the offending was essentially one of strict or even absolute liability by virtue of s 3(1) of the Act;[5]
[5] FDN 25, [82] (ERD-21-000039).
2.There is no element of intent, recklessness or even awareness that the result would occur, nor is one alleged;
3.The attendance of the council and Fyfe in the early stages when the SEDMP measures were being put in place gave [DML] comfort that [DML] was in compliance with all requirements;
4.The ‘double-hatted’ role of Fyfe as both expert engineer-designer of the SEDMP and the superintendent’s representative with power and authority to give any reasonable direction to [DML], together with the usual arrangement and understanding that companies in DML’s position accept the SEDMP as designed by the engineer as being correct and sufficient, meant that [DML] did not perceive the danger until it arrived;
5.The rain events were very large, extensive and unable to be predicted in terms of size, duration and volume;
6.A ‘normal’ winter would not have resulted in the discharge events that were seen;
7.[DML] was bound to comply with the contract and variations thereto and, even if it had wanted to, it could not have undertaken any further work on the land without the authority and approval of the developer through its agent;
8.Fyfe wrote and had control over the SEDMP and it was the failings of this document which was a substantial cause of the discharge;
9.DML should not be blamed or penalised for the failings of the major player in the causation of the discharges, Fyfe, just because Fyfe has not been prosecuted;
10.It was Nevarc through Fyfe which decided not to build the southern detention basin and this was a major cause of the discharge, at least of the June 2018 event;
11.DML should not be blamed or penalised for the decision of Nevarc to save money on not building the southern detention basin; and
12.[DML] attended upon the homes it was aware had been the subject of the escape of pollutants and spent a considerable amount of time cleaning them up.
DML complained that a perusal of the remarks reveals that many of these submissions are not dealt with. It was submitted the Judge’s remark that he did:
… not consider DML was contractually bound to a set of circumstances which, in the light of the weather events, and once commenced, was impossible to reverse.
erroneously melded two distinct submissions. The first was that DML was subject to Fyfe’s direction. The second was that once the rains came, although it committed significant manpower and installed numerous further measures, it could not prevent the water from escaping the land. In other words, the cause was inadequate plans, not what was done once the rains came.
DML submitted the CEMP it prepared was reviewed by Fyfe as well as the council. DML argued it is a considerable mitigating circumstance that it thought it was doing the right thing, was given comfort by experts who should have known whether it was doing the right thing and was told it had done enough. It was conceded that in hindsight, DML should have put more measures in place and done more, or even refused to perform the works at the time of the year the works were undertaken.
It was submitted that the other extenuating circumstances regarding the character and antecedents of DML, as recorded by the Judge, are relevant factors to take into account in the exercise of the discretion. I note DML referred in its submissions to the Judge failing to record that DML had no previous convictions of any type. The Judge’s reference to “an otherwise unblemished history of operation” is a clear reference to a history with no criminal antecedents.
DML contended, contrary to the Judge’s finding that this was a “serious example of offending which goes to the heart of the Act”, its offending was at the lower end of the spectrum of seriousness because:
1.It was a strict liability offence in any event and s 5 of the Act meant that DML was liable whatever it did.
2.There was no element of intent or recklessness, or even awareness.
3.The attendances of the council and Fyfe onsite gave DML comfort that it was following all requirements.
DML submitted that it did not perceive any danger until it arrived in the form of rainfall because the experts said DML had done enough in complying with the 1C SEDMP. Further, it was submitted the rain events were extensive and unpredictable in terms of duration and volume.
DML contended it was bound to comply with the contract, the directions of Fyfe, and would not be paid for doing in excess of what it was obliged to under the contract.
In support of its submissions, DML relied on Mr Macleod’s opinion regarding the inadequacies of the 1C SEDMP, which was the substantial cause of the discharge, particularly in relation to the April 2018 rain event. In relation to count 2, DML pointed out it was Fyfe’s decision not to build the southern retention basin which was a major cause of the discharge at least following the June 2018 rain event.
It was submitted that as the southern detention basin would have cost around $825,000, the inference can be drawn that Nevarc made a financial decision not to build it and DML should not be blamed or penalised for that decision.
It was also submitted that DML attended upon the homes of the affected residents and spent a considerable amount of time cleaning up.
Having regard to all these matters, DML submitted there was good reason for not recording convictions.
Failure to make any finding as to whether, for the purposes of s 24 of the Sentencing Act, good reason existed for not recording a conviction
DML contended that, in applying s 24 of the Act and having found that DML was of good character, the Judge does not appear to have turned his mind to whether “good reason” exists to not record convictions.
DML submitted Mr Macleod’s report provided expert evidence to the Court that civil contractors rely on designers and consultants to provide the relevant designs for erosion and sediment control measures. It was submitted that this evidence, taken in conjunction with the contractual regime and the fact there was no permanent damage, amounts to extenuating circumstances and provides good reason for not recording convictions. DML relied on the comments of Doyle CJ in Hemming v Lukin in relation to the power in s 16 of the Criminal Law (Sentencing) Act 1988 (SA)[6] to impose penalty without conviction:[7]
In previous cases, it has been said that this power [s 16 of the Criminal Law (Sentencing) Act 1988 (SA)] is not often to be invoked in relation to regulatory offences. I refer to Piva v Brinkworth (1992) 59 SASR 92 at 96; Hemming v Neave (1989) 51 SASR 427 at 428‑429; and to Ly v Glover (1989) 150 LSJS 449 at 453-454.
I am cautious about applying such statements literally, but I think, in the present case, the thrust of them is that in the case of an offence under s 69 [of the Fisheries Act 1982 (SA)] where the offence is committed regardless of any question of fault and intent, one would look, in the case of such an offence, as a basis for leniency, for positive efforts directed to preventing or avoiding the commission of the offence.
[6] On 30 April 2018, the Criminal Law (Sentencing) Act 1988 (SA) was repealed by the Sentencing Act 2017 (SA) and s 24 of the Sentencing Act 2017 (SA) replaced s 16 of the Criminal Law (Sentencing) Act 1988 (SA).
[7] (1996) 67 SASR 248 at 251.
DML also referred to the following comments of Hinton J in Chehade v Commissioner for Consumer Affairs:[8]
… leniency extended under s 16 in relation to a regulatory offence, bearing in mind the social reasons justifying the creation of the offence as one of strict or absolute liability, will likely turn on there being efforts made to avoid committing the offence for which the accused is to be sentenced and the nature of such efforts. To so hold is to recognise little more than that s 16 operates in the context of sentencing courts being required to impose penalties that reflect the seriousness of the offending. …
(Footnotes omitted, my emphasis)
[8] (2016) 125 SASR 223 at [63].
Error in considering s 5C of the Act and in confusing particulars with essential elements
In relation to the Judge’s remark that the respondent does not rely on s 5C of the Act, DML submitted, by reference to the ERD Information and the agreed facts, it was agreed between the parties that under the contract DML was an “occupier” of the stage 1C land pursuant to s 3(1) of the Act and is thereby, by virtue of s 5C of the Act, taken to have polluted the environment in relation to the escape of pollutants.
DML complained that the Judge treated the particulars pleaded in the ERD Court Information as elements. It was submitted the particulars provide the factual background and, as the parties agreed, DML’s liability under s 5C arose when the water escaped, not from failing to take appropriate action when the rain came. Reference was made to the record of interview of Roderick Cameron, a Fyfe employee, who refers to DML’s exemplary rectification work. It was submitted that the Judge proceeded to, in effect, record convictions on a basis other than that upon which DML pleaded guilty.
DML argued that the Judge’s observations about its contractual obligations are at odds with the contract itself and the evidence. DML submitted that by pleading guilty, it was not conceding these matters and, in fact, DML’s evidence was to the contrary. It was submitted the Judge appears to have conflated DML’s pleas of guilty with a purported admission by DML that it was at liberty to deviate from its contractual obligations and its failure to do so had caused the pollution.
DML also complained about the Judge’s consideration of its submission that the offending was committed in extenuating circumstances as it acted reasonably in following (a) the plans prepared by Fyfe, and (b) the directions of Fyfe as to the construction of the SEDMP measures. The Judge held that the offending occurred because the variation 8 works were not the subject of sufficient engineering and risk analysis. It was submitted this observation only applies to count 2. Count 1 had an associated SEDMP prepared by skilled civil engineers and the works were approved by the council and Fyfe. DML complained that the Judge held the “responsibility for managing soil erosion was with DML”. It was contended that the Judge failed to consider properly the contractual requirements of DML to obey the instructions of Fyfe and to follow Fyfe’s plans.
DML submitted it had no lawful or contractual right to do anything more than it was contracted to do. As Fyfe supervised the works and drew the 1C SEDMP, DML maintained it was obliged to follow Fyfe’s directions and could do no more.
DML contended that when Fyfe directed it to perform the variation 8 works, those works became part of DML’s contractual obligations. It was submitted the Judge implicitly found that DML should have carried out the construction of the southern detention basin at its own cost and disregarded the directions of Fyfe, because that was the only measure that could have prevented the runoff from stage 1D land. DML submitted it was unclear what the Judge then did with these findings, but suggested the findings allowed his Honour to find that the offending was more serious than he otherwise would have.
Error in taking into account irrelevant considerations in the course of considering s 24 of the Sentencing Act and misapplication of the test

DML asserted, having found that DML was of good character pursuant to s 24(b)(i) of the Sentencing Act, the Judge did not go on to consider good reason and accordingly, misapplied the requirements of s 24 of the Sentencing Act.
DML argued that had good reason been found, a full discretionary evaluation of the circumstances and consideration of the cases concerning regulatory offences would have been required. It was submitted these matters were referred to in the submissions before the Judge but were not considered in the remarks. It was contended the Judge arguably did not move to this stage because he erroneously found the second limb of s 24 of the Sentencing Act test not satisfied. DML argued the Judge did not make clear what issue he was, in fact, addressing in the following passage; good reason or the discretion:
I consider the balance to be in favour of convictions being recorded against DML so that the whole community may know of this offending. I also consider that the recording of convictions in these circumstances will provide specific and general deterrence. I therefore decline to exercise my discretion not to record a conviction against DML.
Further, he did not go on, it was submitted, to consider any circumstances in favour of not recording convictions.
It was submitted that on the assumption the Judge was addressing the discretion, he misapplied the discretion and took into account irrelevant considerations. First, the Judge considered the balance to be in favour of recording convictions. Second, he failed to acknowledge that prior to the sentencing, it was agreed between the parties that a notice would be published informing the community of the offending.
It was submitted that the only considerations the Judge seemed to take into account are publication and deterrence. DML argued that none of the matters put forward as being in favour of the exercise of the discretion are mentioned and, accordingly, the application of s 24 of the Sentencing Act has miscarried.
In all relevant circumstances, convictions should not have been recorded
It was submitted extenuating circumstances are circumstances that “seemed to lessen the seeming magnitude of guilt by partial excuses”. DML contended that this is not a high bar to leap over, and it was amply overleapt by the matters referred to in submissions as extenuating circumstances.
DML complained that the Judge did not consider the opinion of Mr Macleod and whether it supported a finding of circumstances that seemed to lessen the seeming magnitude of DML’s guilt. It was submitted the Judge erred in finding no extenuating circumstances, given the circumstances that existed and the evidence before the Court.
Accordingly, it was submitted the convictions should be set aside and the question determined afresh.
The respondent’s submissions
The respondent referred to the general environmental duty prescribed by s 25(1) of the Act which requires all persons undertaking an activity to take all reasonable and practicable measures to prevent or minimise environmental harm. It was pointed out s 25(1) is backed up by s 82, which criminalises the creation of an environmental nuisance. The respondent accepts that the offence in s 82(2) of the Act to which DML pleaded guilty does not specify a mens rea, nor does it require that the person creating the nuisance should have been negligent. It creates, therefore, a strict liability offence. It was submitted that it does not create an absolute liability offence because there is a statutory defence available. Section 124(1) of the Act provides a defence to s 82 of the Act.
If, for example, DML sought to rely on s 82 and proved on the balance of probabilities that it had taken “all reasonable and practicable measures” to prevent the environmental nuisance, it would not be guilty of a s 82 offence.
Accordingly, it was submitted that s 82 must be read with s 124(1) which provides it will be a defence in any criminal proceedings “if it is proved that the alleged contravention did not arise from any failure on the defendant’s part to take all reasonable and practicable measures to prevent the contravention or contraventions of the same or a similar nature.”
It was submitted that DML pleaded guilty to two counts of causing an environmental nuisance and an extensive disputed facts hearing was conducted before the Judge.[9]
[9] DML takes issue with the fact that the hearing before the Judge is classified as a disputed facts hearing. Having considered the 190-page transcript before the ERD Court, the hearing on 4 March and 25 March was a contested hearing regarding sentencing.
The respondent contended that there are no limits to the matters in mitigation that may be advanced when a defendant pleads guilty, with one exception. That exception is that a defendant may not submit in mitigation a circumstance that implies it is not guilty of the offence to which it has pleaded guilty. Accordingly, the respondent argued that no submission in mitigation may therefore be made suggesting DML took “all reasonable and practicable measures” to avoid the commission of the two offences. It was submitted that this would be an “exculpatory” submission given the defence to s 82 under s 124(1) of the Act, and impermissible for that reason. It would amount to DML asking that it be sentenced on a basis that is inconsistent with its guilt. It was contended that many of DML’s submissions by way of sentence mitigation appear to infringe this basic legal principle.
It was submitted the Judge made explicit findings recorded in the remarks which are not attended by appellable error.
The respondent submitted s 24 of the Sentencing Act required the Judge to do two things. First, having found s 24(a) of the Sentencing Act satisfied, the Judge had to decide whether the circumstances in one or more of the subparagraphs (b)(i), (ii), or (iii) arose. If so, the Court then had to consider that matter in weighing whether or not to record convictions. It was submitted that the Judge proceeded to find the relevant facts and, in particular, found:
The contract was clear in placing responsibility for managing the soil erosion with DML. DML also had to ensure the works the subject of the variation met the standard required. DML did not, as the contract required it, possess the internal skills and resources or consultant assistance to prepare such plans and carry out the work as it was contractually required. As Fyfe had a role as a consultant to the developer and as superintendent and in practice and by convention prepared erosion plans, and had put in place soil erosion management, DML deferred to Fyfe, notwithstanding its contractual obligations.
At its core, this offending occurred because the variation works were not the subject of a sufficient engineering and risk analysis. In that respect, DML had responsibility as a consequence of their contractual and legislative obligations. If such an assessment had been made, this incident may never have occurred.
The respondent submitted that this finding is important as the Court had before it various contractual documents, affidavit evidence, and had heard extensive submissions. The respondent contended that it is quite clear that the contract squarely placed the burden of ensuring adequate environmental measures on DML which, it was contended, is entirely consistent with its obligations as an independent contractor.
The respondent pointed out that DML was not a mere employee subject to the control and direction of Nevarc. As an independent contractor and not merely an employee, DML was, pursuant to the contract, obliged to draw its own plans and expected to execute the contracted works independently.
The respondent argued that the contract, far from relieving DML from the need to address the risk of offsite pollution, explicitly required DML to address this issue and ensure adequate controls were in place. It was submitted DML did not discharge its obligation by simply installing what were referred to in the contract as “minimum” controls.
It was submitted that, in addressing DML’s submission pursuant to s 24 of the Sentencing Act, the sentencing Court was required to consider these contractual provisions and was also bound to consider any obligations DML had by virtue of s 25(1) and s 82 of the Act.
The respondent referred to DML’s submission that DML was contractually bound to implement variation 8 as directed by Fyfe, as Nevarc’s superintendent, irrespective of any deficit in environmental controls. The respondent said this submission overlooks the fact that the defective environmental controls in this case included not simply the failure to install the southern detention basin, but also the inadequacy of the other measures including silt and sediment controls such as fences.
As pointed out by the respondent, general provisions must be read and interpreted in conjunction with other contractual provisions and relevant statutory obligations. The general obligation DML was under to execute a variation direction from Fyfe does not mean that Fyfe could direct DML to perform a variation in a way that meant DML did not comply with its obligations under state and federal law. Nor could Nevarc and Fyfe unilaterally override DML’s obligation to plan and execute appropriate environmental controls and to update these in compliance with an express obligation under the special sections of the contract. The respondent argued that if DML’s submissions were accepted it would mean that Fyfe could have ordered DML as part of any variation under cl 40 to ignore any of its statutory obligations including those, for example, with respect to occupational health and safety of its workers. Further, it was argued DML’s submissions in this regard are far-reaching, lead to extreme results, and should be rejected.
The respondent accepted the explicit finding made by the Judge that DML did have good character and antecedents.[10] The respondent pointed out that the Judge did not find the offending was trifling and noted no submission was made to this effect. The respondent submitted the Judge found, as he was clearly entitled to do in light of the evidence, that this was a serious example of this type of offending which goes to the heart of the Act and the protection of the community.
[10] Sentencing Act 2017 (SA) s 24(b)(i).
The Judge declined to accept the submission that DML’s deferral to Fyfe was appropriate, finding:
Further, DML submits the factors going to the relative lack of seriousness of its offending and to the exercise of the discretion not to record a conviction, include the fact that it relied on Fyfe to provide guidance as to what was to be done, and had reasonable grounds for that reliance and there is no permanent damage alleged.
…
I do not consider DML was contractually bound to a set of circumstances which, in light of the weather events, and once commenced, was impossible to reverse. The work was a consequence of an agreed variation in accordance with the contract. The contract was clear in placing responsibility for managing soil erosion with DML. DML had to ensure that the works the subject of the variation met the required standard. In that respect, the reliance on and deferral to Fyfe did not reflect the requirements of the contract.
The respondent contended that these findings are important as the Judge was correct to assess the submissions put by DML against DML’s explicit contractual obligations. The submission that DML was obliged to follow Fyfe’s directions was inconsistent with its explicit contractual and statutory obligations and was not, therefore, an extenuating circumstance in the Judge’s view.
As submitted by the respondent, DML had both statutory and contractual obligations to manage the runoff from the site that its own operations caused. Yet the evidence suggested DML did not have at the time of the offending any in‑house expertise to address sedimentation control. Nor did it employ a consultant to provide it with expertise on an ad hoc basis in connection with the contract. As the Judge found, “DML did not, as the contract required it, possess the internal skills and resources or consultant assistance to prepare such plans and carry out the work as it was contractually required”. As a result, this led to DML deferring to Fyfe notwithstanding its contractual obligations as identified by the Judge. The respondent argued that the affidavit evidence tendered by DML confirmed this. In DML’s managing director’s affidavit,[11] reference is made to the steps undertaken by DML to improve its environmental management which include enhanced policies, the engagement of a compliance manager and the strengthening of and adding to environmental policies. In DML’s construction manager/director’s affidavit,[12] DML expresses:
We are deeply and genuinely sorry about this incident and apologise for the damage that has been caused. Whilst we were guided and controlled by Fyfe in what we did, we understand now that it is our duty under the law to not cause pollution and that we have failed in what we have done because the protective measures were insufficient given the topography of the site and the size of the rain events.
If we had known that this was possibly going to occur, we would not have done the work. We trusted Fyfe to provide good advice and thought that following their contractual plans and requirements would ensure that we encountered no difficulty with the project.
In hindsight and based on the advice we have now received from own expert, we should have insisted that the Southern Detention Basin be constructed before we commenced any work on the Stage 1D area.
[11] FDN 33, [15]-[17] (ERD-21-000039).
[12] FDN 32, [38]-[40] (ERD-21-000039).
The respondent argued that it remains the case that as DML was not able to meet its legislative and contractual obligations to assess, plan, and implement adequate sedimentation controls for the steeply sloping and challenging site, it ought not to have bid for the contract, or it ought to have ensured it had appropriate consultant expertise on hand.
Extenuating circumstances
It was submitted that in addressing whether extenuating circumstances arose under paragraph s 24(b)(iii) of the Sentencing Act, the Judge was required to identify circumstances that attenuate DML’s conduct. The Judge’s approach, it was submitted, was clearly correct. He found that DML’s obligation to ensure adequate site preparation controls were in place to prevent the escape of muddy water was imposed by contract and by legislation.
DML did not fulfil its contractual or legislative obligations by ensuring there were adequate onsite controls. The respondent argued that installing controls expressed in contract to be minimum requirements only was not appropriate.
As the respondent submitted, that does not mean that DML was the only person responsible. The Judge found explicitly that “the conflict inherent in the roles of Fyfe as the developer, environmental consultant and superintendent of the development contributed to what occurred”. The respondent pointed out that the Judge then proceeded to reject an argument that the Council was partly to blame:
I also think that the submissions of DML do not fully grapple with either the contractual provisions I detailed earlier or the tension at the heart of the principal cause of this offending. That is, the failure of the developer, Fyfe and DML, having regard to their respective contractual and legislative responsibilities, to adequately address the proper storage of soil excavated by the defendant from stage 1C and stored onto stage 1D.
The Judge noted Nevarc also had responsibilities as the owner of the land and proponent of the development to ensure that its contractor acted properly.
It was submitted that when all these matters are taken into account, it is clear that the Judge’s finding that there were no extenuating circumstances was amply justified.
Weighing the exercise of the discretion
The respondent argued that given the finding that DML was of good character, the Court was bound to consider that factor when weighing all relevant factors to decide whether the discretion should be exercised. It was submitted that the Judge performed this task and, in weighing his discretion, was right to have regard to:
(a)the seriousness of the offending;
(b)the importance of the regulatory regime that Parliament had implemented to promote public safety and to preserve the environment;
(c)the inadequacy of DML’s actions (given its statutory and contractual obligations);
(d)the desirability of the community knowing of the offending; and
(e)the need to provide general and specific deterrence.
The exercise of the discretion to not record convictions must be judged by reference to the totality of the circumstances. The respondent contended the totality of circumstances must take into account DML’s statutory responsibility to ensure all reasonable and practicable measures were taken, its contractual obligations to observe all applicable law (including the Act), and its specific contractual obligation to update and implement adequate pollution control mechanisms onsite. Further, once it is accepted that the Court could not be asked in law to sentence DML on the basis that it has taken all reasonable and practicable measures to avoid the commission of the offences, it was clearly open to the Court to decide there was not good reason to exercise the discretion.
Other arguments of DML
The respondent submitted DML’s argument that the basis of its pleas and as agreed to by the Crown was that DML was merely deemed to have polluted the environment is erroneous. Agreed fact 23 makes clear it was agreed that DML was “conducting operations” on the land under the contract and was therefore an occupier of the land as defined in the Act. Section 5C of the Act was therefore enlivened, which deemed DML an occupier responsible for any pollution escaping from the land. However, it was submitted it was clear as a matter of fact that DML’s operations and no-one else’s caused the removal of vegetation and stockpiling of earth on stage 1D land. When rain came, muddy water left the site and caused pollution. It was submitted that contrary to DML’s submission in [21.3], the Judge noted the very argument put by DML, namely, that it was directed by Fyfe not to construct the southern detention basin. The Judge rejected the argument and explicitly held that DML “had responsibility as a consequence of their contractual and legislative obligations”. It was submitted that, for the reasons given, that conclusion was amply justified.
The respondent contended DML’s pleas of guilty required that it be sentenced on a basis that no mitigating circumstances it wished to adduce could be elevated to a point where they amount to DML having taken all reasonable and practicable measures to avoid pollution leaving the site.
No cause to intervene even if error has been made
The respondent pointed out the Sentencing Act includes five secondary purposes for sentencing for an offence, one of which is “to deter the defendant and others in the community from committing offences”. Offences against the Act are of a regulatory nature. In sentencing for regulatory offences, both general and personal deterrence are significant considerations.[13]
[13] Liemareff v Baldry [2016] SASC 152, [36] (Doyle J); Rusby v Kerley [2002] SASC 141, [77] (Lander J): “In regulatory offences the deterrent aspect of punishment is paramount”.
The respondent argued that regulatory offences can be very difficult to detect without the investment of significant resources by agencies responsible for ensuring regulatory compliance. Accordingly, it is important that sentences serve as a deterrent to the defendant and the wider community to ensure that all reasonable and practicable measures are taken to prevent pollution and unreasonable interference with the enjoyment of an area by those occupying private spaces within that area. When regulatory offences are detected, the deterrent aspect of sentencing should be prominent.[14]
[14] Rusby v Kerley [2002] SASC 141 at [77].

The respondent submitted that any contractor on a site who is performing earthmoving or other activities will automatically be guilty of an offence under s 82(2) if pollution escapes the site and causes an environmental nuisance unless all reasonable and practicable measures are taken to prevent the nuisance. The fact that the Act penalises automatically this behaviour (unless all reasonable and practicable measures are taken) is an important indication of Parliament’s attitude to environmental protection and the environment in this context also includes people’s homes and properties. The respondent pointed out the regulatory regime is strict and is intended to compel those working on sites to ensure they have taken all reasonable and practicable measures to protect the environment.
Various authorities establish that it is rarely appropriate for a court not to record a conviction in cases involving a breach of regulatory legislation.[15] It was submitted it is important that the sanctions imposed for such offences serve as a deterrent to the defendant and the wider community. It was submitted it is the recording of convictions, in particular, that provide this specific and general deterrent in relation to regulatory offences.[16]
[15] See Rusby v Kerley [2002] SASC 141, [77]; Hemming v Neave (1989) 51 SASR 427, 428-429; Piva v Brinkworth (1992) 59 SASR 92, 96; Hemming v Lukin (1996) 67 SASR 248, 251-252; H Stanke & Sons Pty Ltd v Parkes (2010) 108 SASR 296, 303-304.
[16] Rusby v Kerley [2002] SASC 141, [80].
Conclusion
As occupier of the stage 1C land, DML was under the general environmental duty prescribed by s 25(1) of the Act to, in performing the works, take all reasonable and practicable measures to prevent or minimise environmental harm. By its pleas, DML admitted it polluted the environment when muddy water escaped the stage 1C and stage 1D land following the two rain events causing environmental nuisance. In relation to the first rain event, the Judge found from 14 to 17 April 2018 rain fell over the site which exceeded the capacity of the northern detention basin. Moreover, “[s]urface water mixed with mud and silt was too great to be held by the mitigation measures that had been put in place by DML”. As a result, mud and silt escaped and entered several residential properties and Nairne Creek. The Judge found that after this event DML took steps to “repair and improve the containment measures it had put in place in stage 1D. It repaired silt fencing, repaired a collapsed bund and cleared and repaired sediment fences”.
The northern detention basin capacity was once more exceeded during the second rain event. Again, the containment measures put in place to hold back mud and silt failed and they escaped, entering several residential properties and Nairne Creek. Two of the residential properties were subject to inundation during both the first and second rain events.
There can be no doubt the contract mandated that DML was subject to the overall direction of Nevarc as superintendent and the direction of Fyfe as the superintendent’s representative. However, cl 23.2 of the general conditions of contract prescribed that DML’s responsibilities were unaffected by approval of the superintendent as follows:
Where under the terms of this Contract the approval of the Superintendent is required, such approval, if any, shall not relieve the Contractor of any obligation, duty, responsibility, or liability either in law or under the terms of the Contract.
(Emphasis added)
DML was required under the contract to develop a CEMP which addressed erosion and sediment control and the implementation of the SEMDP prepared by Fyfe. DML was obliged by cl 2.9.1 of annexure B, in addition to its general environmental obligations, to observe and comply with the following as a minimum:
… the requirements of any statute, by-law, standard and the like related to environmental protection …
Develop a soil erosion management plan for the works for approval by the Superintendent.
No provision of the contract required DML, nor could it in law, to ignore its statutory obligations. The contract imposed obligations on DML to address the risk of offsite pollution and ensure adequate controls were in place. DML did not discharge its obligation by installing what Fyfe had specified as “minimum” requirements or, for that matter, by taking comfort in Fyfe’s and the council’s affirmation that what DML put in place complied with Fyfe’s and the council’s requirements.
In relation to DML’s complaint regarding the Judge’s consideration of s 5C of the Act, I agree the references in the remarks to elements and particulars are confusing. However, it was agreed between DML and the respondent that:[17]
As a result of its contractual engagement to carry on operations on the Stage 1C land, DML was an “occupier” of the Stage 1C land as that term is defined in s 3(1) of the Environment Protection Act, 1993 and thereby is taken to have polluted the environment under s 5C in relation to the escape of pollutants.
[17] FDN 25, Agreed fact 23 (ERD-21-000039).
DML was not merely occupying the stage 1C land, it was conducting operations on it pursuant to the contract. As the Judge said:
… as a result of the actions of DML surface water mixed with mud and silt escaped the land and that escape constituted pollution of the environment and environmental nuisance for the purposes of the Act.
DML’s operations caused the removal of vegetation and the stockpiling of earth on the stage 1D land. The pollution occurred when the rain came and the muddy water escaped. On my assessment, the Judge’s remarks demonstrate that he did not record convictions on a basis other than that upon which DML pleaded guilty.
The evidence clearly supports the Judge’s finding that DML had both legislative and contractual obligations in its own right.
DML submitted the following was an extenuating circumstance:
1.the ‘double-hatted’ role of Fyfe as both expert engineer-designer of the 1C SEDMP and the superintendent’s representative, together with
2.the usual arrangement and understanding that civil works contractors accept the SEDMP as designed by the engineer as being correct and sufficient,
which meant that DML did not perceive the danger until it arrived.
DML’s submission that it was obliged to follow Fyfe’s directions is inconsistent with its explicit contractual obligations and its statutory obligations. Further the contention that DML’s conduct in deferring to Fyfe must be assessed against the usual arrangement and understanding that civil works contractors accept the SEDMP as designed by the engineer as being correct and sufficient, is an explanation for the offending, not a mitigating factor.
DML submitted it is a substantial commercial enterprise. As such, I assume it was within its ken to seek expert assistance in circumstances where it did not have relevant expertise and to have robust conversations with superintendents, superintendent’s representatives, and other contractors when the need arose. By reference to DML’s managing director’s affidavit referred to above, significant steps have now been taken by DML to improve its environmental management.
Fyfe’s SEDMP should have provided for “very large, extensive and unable to be predicted” rain events “in terms of size, duration and volume” and a winter that was not “normal”.[18] In this regard, I note Mr Macleod’s opinion that “extreme rain events” referred to in cl 2.1.2 of the 1C SEDMP were not defined by Fyfe. Further, Mr Macleod stated the southern detention basin, which was correctly and adequately designed, should have been constructed prior to commencement of the variation 8 works, and responsibility for ensuring it was constructed rested primarily with Fyfe. I infer, having regard to Mr Macleod’s opinion, the southern detention basin design was adequately designed to cope with “very large, extensive and unable to be predicted” rain events “in terms of size, duration and volume” and a winter that was not “normal”.
[18] FDN 39, [82] (ERD-21-000039).
The obligations imposed by the Act and by the contract on DML meant its CEMP, erosion, sediment and drainage control measures had to provide for “very large, extensive and unable to be predicted” rain events “in terms of size, duration and volume” and a winter that was not “normal”. DML raised with Fyfe the need for the construction of the southern detention basin prior to the variation 8 works. DML’s contractual obligation to prepare the CEMP and update the erosion, sediment and drainage control measures as the works progressed imposed a heavy onus on DML. In the wake of Fyfe declining to agree to the construction of the southern detention basin, DML was placed in an invidious situation. It had, being conscious of Fyfe’s “double-hatted role”, the option of having a robust discussion with Fyfe, bolstered by its own expert stormwater engineering advice, or refusing to perform the works[19] until it had ensured it would not fall foul of its environmental obligations imposed by contract and statute. DML was not required to construct the southern detention basin at its own cost without Fyfe’s approval.
[19] Such refusal would, of course, risk breaching the contract.
In its written submissions, DML referred to the following being put to the Judge regarding extenuating circumstances:
DML should not be blamed or penalised for the failings of the major player in the causation of the discharges, Fyfe, just because Fyfe has not been prosecuted;
…
DML should not be blamed or penalised for the decision of Nevarc to save money on not building the southern detention basin.
There is no suggestion in the remarks that DML was punished for either Fyfe’s or Nevarc’s conduct.
DML submitted that its conduct in dealing with complaints from affected residents and spending considerable time making repairs after damage occurred was an extenuating circumstance.[20] Leniency under s 24 of the Sentencing Act:[21]
… in relation to a regulatory offence, bearing in mind the social reasons justifying the creation of the offence as one of strict or absolute liability, will likely turn on there being efforts made to avoid committing the offence for which the accused is to be sentenced and the nature of such efforts.
(Emphasis added)
The efforts made after the offences were committed do not amount to extenuating circumstances[22] and are not relevant to the consideration of whether good reason exists to exercise the discretion.[23] It could be argued it is to be expected that DML would assist in clearing and repairing following the pollution events and to not do so would be contumelious and aggravating.
[20] City of Salisbury v Ahrens Group Pty Ltd (2010) 108 SASR 54, [27]-[28].
[21] Chehade v Commissioner for Consumer Affairs (2016) 125 SASR 223, [63].
[22] City of Salisbury v Ahrens Group Pty Ltd (2010) 108 SASR 54, [27]-[28].
[23] H Stanke & Sons Pty Ltd v Parkes (2010) 108 SASR 296, [33]-[34], [45].
On my assessment, the Judge considered the opinion of Mr Macleod by:
1.finding the southern detention basin should have been constructed before the variation 8 works were carried out; and
2.being cognisant of the fact that “the conflict inherent in the roles of Fyfe as the designer, environmental consultant and [superintendent’s representative] contributed to what occurred”.
The Judge correctly found none of the matters relied on by DML were extenuating circumstances.
As submitted by the respondent the exercise of the discretion must be judged by reference to the totality of the circumstances which includes DML’s statutory responsibility to ensure all reasonable and practicable measures were taken, its contractual obligations to observe all applicable law (including the Act), and its specific contractual obligation to update and implement adequate pollution control mechanisms onsite. Further, the importance of regulatory offences in the implementation of legislative schemes promoting public safety and the preservation of natural resources, as well as the importance of personal and general deterrence must borne in mind in the sentencing process.[24]
[24] H Stanke & Sons Pty Ltd v Parkes (2010) 108 SASR 296, [34], [45].
In considering whether good reason existed for not recording convictions, the Judge was required to weigh the benefit to DML against the public interest in convictions being recorded.[25]
[25] See R v Taylor; R v Teekens [2022] SASCA 79, [21].
In the exercise of the discretion conferred by s 24 of the Sentencing Act, the Judge determined, having regard to all the circumstances, good reason did not exist for not recording convictions. In doing so, the Judge spoke of the importance of the regulatory scheme in promoting public safety and preserving the environment. His Honour also expressed the view that DML’s actions were inadequate, and the offending was not minor, administrative, inadvertent, or procedural. The remarks were to the effect that the offending required public denouncement and a sentence that provided for specific and general deterrence. As such, it is apparent the Judge had regard to the primary and secondary sentencing purposes prescribed by Division 2 of the Sentencing Act. Despite finding s 24(b)(i) satisfied, the Judge correctly found there were no other extenuating circumstances and was not satisfied good reason existed to exercise the discretion to not record the convictions.
None of the grounds of appeal are made out. The Judge did not err in the application of s 24 of the Sentencing Act. As no error has been demonstrated, I dismiss the appeal.

Annexure