Environment Protection Authority v Big River Group Pty Ltd
[2011] NSWLEC 80
•11 May 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80 Hearing dates: 10 May 2011 Decision date: 11 May 2011 Jurisdiction: Class 5 Before: Pepper J Decision: The orders made by the Court are as follows:
(1) the defendant is convicted of the offence against s 120(1) of the POEOA as charged;
(2) the defendant is fined the sum of $67,000;
(3) the defendant is to pay the prosecutor's legal costs in the sum of $35,000 within 28 days of this order;
(4) the defendant, pursuant to s 248(1) of the POEOA, must pay the prosecutor's investigation costs agreed to in the sum of $24,644.80 within 28 days of this order; and
(5) the exhibits are to be returned.
Catchwords: ENVIRONMENTAL OFFENCES:- guilty plea - water pollution - unintentional discharge of resin into wetland - sentence - consideration of objective and subjective factors - actual and potential environmental harm caused by the pollution - offence in the moderate range of objective gravity - effect of prior convictions - defendant otherwise of good character - early guilty plea - defendant provided exemplary assistance to authorities Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22, 23
Protection of the Environment Operations Act 1997, ss 3, 120, 123(a), 241, 248Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008)163 LGERA 71
Environment Protection Authority v Boral Australian Gypsum Ltd [2009] NSWLEC 26
Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211
Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255
Environment Protection Authority v George Weston Foods Ltd [2010] NSWLEC 120
Environment Protection Authority v Hanna [2010] NSWLEC 98
Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39
Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23
Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 114; (2010) 174 LGERA 314
Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299
Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77
Hili v R; Jones v R [2010] HCA 45; (2010) 85 ALJR 195
Leach v R [2007] HCA 3; (2007) 230 CLR 1
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Veen v R (No 1) (1979) 143 CLR 458
Newcastle City Council v Pacefarm Egg Products Pty Ltd [2002] NSWLEC 66
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383Category: Principal judgment Parties: Environment Protection Authority (Prosecutor)
Big River Group Pty Ltd (Defendant)Representation: Ms K Caruana (Prosecutor)
Mr N Brunton (Defendant)
Office of Environment and Heritage Legal Services (Prosecutor)
Henry Davis York (Defendant)
File Number(s): 50041 of 2010
Ex Tempore Judgment
Introduction
The defendant, Big River Group Pty Ltd ("Big River"), has pleaded guilty to an offence that between 29 November and 30 November 2009, it polluted water contrary to s 120(1) of the Protection of the Environment Operations Act 1997 ("the POEOA").
Section 120 of POEOA creates a strict liability offence as follows:
120 Prohibition of pollution of waters
(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.
Pleading guilty to the charge, Big River has admitted that during the relevant period, an amount of pollutant flowed to a stormwater drain running along Elizabeth Avenue, Wagga Wagga and then onto a wetland located on a property known as 'Brunslea'. The pollutant contained a liquid known as Hexion Cascophen MPLY 4550 ("the resin"). The resin was classified as a Class 8 dangerous good under the Transport of Dangerous Goods Code and contained formaldehyde and phenol and had a pH value of more than 10.
The defendant is now before the Court for sentencing. Having regard to the objective circumstances of the commission of the offence and the subjective circumstances of Big River, the Court imposes a fine of $67,000 and orders that Big River pay the prosecutor's legal and investigation costs.
Factual Background
The facts in this matter were not in dispute and were largely contained in a comprehensive statement of agreed facts, which included plans of the internal layout of Big River; plans depicting its surrounding environment, the location of the stormwater drain and Brunslea; and plans and photos depicting the location of the wetlands. Also included were photos taken after the resin spill.
Further material was contained in three affidavits relied upon by the defendant, namely:
(a) an affidavit of Mr Robert De Marco sworn 16 March 2011. Mr De Marco is the General Manager at Ausply, a plywood manufacturing plant owned by Big River, from which the pollution emanated;
(b) an affidavit of Mr James Bindon sworn 15 March 2011. Mr Bindon is the Managing Director of Big River; and
(c) an affidavit of Mr Christopher Argus sworn 6 May 2011. Mr Argus is the Production Manager at Ausply and is employed by Big River.
Big River and Ausply
In 1958 a plywood manufacturing factory was established at 128 Elizabeth Avenue, Forest Hill, Wagga Wagga ("the premises"). Big River acquired the factory in 2007. At the time of acquisition, Big River was known as 'Big River Timbers Pty Ltd'. Big River changed its name to its current appellation in late 2008.
At the date of the offence, Big River was operating the plywood factory on the premises trading as 'Ausply'.
Big River held an environment protection licence in relation to timber milling and processing activities carried out on the premises. The factory on the premises was old and originally had no gutters on the roof. Gutters were later installed and downpipes directed water into open stormwater channels.
Big River manufactures plywood at the premises by running radiata pine logs through a lathe to produce sheets of veneer, which are then put through a dryer to remove any excess moisture. Layers of the dry veneer are glued together using resin based glue and pressed to produce structural plywood. The glue is manufactured at the premises by mixing the resin with flour, macadamia nutshells and water.
The Material Safety Data Sheet for the resin states that in the case of an accidental release, if the spill is minor, it is to be cleaned up immediately and should be covered with sand, earth or other inert material; if the spill is major, then the area is to be cleared of personnel, the New South Wales Fire Brigade is to be alerted and there should be prevention "by all means available, from spillage entering drains or water courses".
The resin is stored in the premises in two 24 tonne storage tanks located within an enclosed bunded room (the glue room) near the entrance to the premises. To make the glue used in the plywood manufacturing process a pump transfers the resin from the storage tanks to a mixing tank. The glue is then mixed in the mixing tank by an overhead motor connected to an agitator.
At the time of the offence the pump could only be switched on and off manually by two switches. Either switch could be used to operate the pump. To turn on the switches a finger had to apply pressure to the switch inwards. Neither switch could be turned on by a person bumping or knocking the switch.
An open drain designed to catch runoff resin from the plywood making process runs across a section of the concert floor adjacent to the mixing tank. Runoff resin is pumped back into the mixing tank by another pump.
The Stormwater System
At the time of the offence the premises' stormwater system included an open stormwater channel referred to above. It ran into a closed below-ground pipe near the boil-off pit. Only 40% of the internal stormwater system was covered with metal plates. Near the mixing tank a portion of the internal stormwater system was covered by metal plates, but a section on the other side of an adjacent corrugated iron wall, approximately 3 metres away from the mixing tank, was not covered. There was a 10 cm gap between the floor and the bottom of the corrugated iron wall and a series of pipes ran through unsealed holes at the bottom of the wall. The, runoff water from parts of the roof was channelled by downpipes directly into the internal stormwater system.
At the relevant time there was no bunding, alarms or a cut-off switch to prevent any resin that might overflow from the mixing tank from entering the internal stormwater system.
Stormwater exits the premises from the west and joins the external stormwater system at a connection pit on Elizabeth Avenue. At the time, the only source of inflow into the connection pit was from the premises' stormwater system.
From the connection pit, stormwater is channelled north along Elizabeth Avenue towards the Sturt Highway by an enclosed pipe. Stormwater pipes from a small number of residential properties in the area joined this line before it discharges into a stormwater pit approximately one kilometre north of the premises. A second stormwater line discharges into the stormwater pit on the eastern side.
The stormwater pit drains through an open earth channel that runs downhill in a north-westerly direction from Elizabeth Avenue and across a private property owned by Mr Douglas Brunskill at Brunslea.
The Wetland
The channel gradually becomes shallower before reaching an extensive wetland system, approximately 500 metres west of the stormwater pit. The channel continues to run in a westerly direction across the wetland.
The wetland contains freshwater land habitat which includes:
(a) tall stands of bull rushes;
(b) water couch;
(c) waterbirds, fish, aquatic vegetation, fresh water turtles and frogspawn;
(d) wood ducks; and
(e) ibis, spoonbill and heron species.
The presence of the bull rushes indicates that the wetland is either a semi-permanent or permanent freshwater wetland and is therefore likely to provide a refuge habitat for waterbird species during the prolonged drought and when wetland habitat in the Murrumbidgee catchment is limited.
The wetland covers a total of 99 ha, however, at the time of the pollution incident the wetland covered approximately 10 ha.
The Resin Spill
Sometime during the nightshift on 29 November 2009, the pump at the premises was activated causing approximately 6000 litres of resin to be pumped from the storage tanks to the mixing tank, which subsequently overflowed. The resin that overflowed from the mixing tank spilt onto the floor. Some of the spilt resin flowed into the internal stormwater system and then flowed offsite into the connection pit and into the external stormwater system.
The nightshift commenced at 10.00pm and ended at 6.00am on 30 November 2009. Because the nightshift commenced on a Sunday evening, only the drying procedures were in operation at the plant. As a consequence, only three dryer operators were on the premises. The dryer is located approximately 10-15 m away from the mixing tank and none of the employees that night had any reason to be situated anywhere near the switches used to turn on the pump that transferred resin from the storage tanks to the mixing tank.
At the time of the spill the fencing around the perimeter of the premises, approximately 7 feet in height, was locked. However, the exit and entrance doors, including the entrance door adjacent to one of the pump switches, were unlocked to permit employees to enter and leave the building.
At the start of the shift that night the three employees passed by the mixing tank and did not notice anything unusual. It was not until 12.30am on 30 November 2009 that one of the employees, Mr William Thomas, noticed a slippery and sticky liquid on the floor in the vicinity of the mixing tank. Mr Thomas then observed that the mixing tank was overflowing and switched the pump off. Mr Thomas telephoned Big River's production manager, Mr Argus, who instructed the employees to place sawdust over the resin to prevent it from spreading.
Mr Argus arrived very soon after the telephone call and inspected the areas around the spill that were accessible, but did not inspect the outside of the premises or the nearby stormwater connection pit. Mr Argus formed the view that the resin had been contained within the premises, and therefore, did not contact any of the regulatory authorities. A further clean-up of the resin inside the premises occurred. Mr Argus left the premises at 2.15am and the day shift leader, Mr Stephen McGill, was informed of the incident when he arrived at about 5.30am.
At approximately 6.00am Mr McGill left the premises and drove down Elizabeth Avenue to inspect the stormwater pit. It was at this stage that he became aware that the resin had entered the offsite stormwater system. Mr McGill returned to the premises and called Mr Argus who returned at about 7.30 am. The general manager, Mr De Marco, was then informed. Mr De Marco immediately contacted the Department of Environment, Climate Change and Water ("DECCW") and Wagga Wagga City Council ("the council"), and told them of the incident.
It was Mr McGill's estimate that approximately 6000 litres of resin had been spilt.
At about 9.00am personnel from the New South Wales Fire Brigade, Hazmat and the Rural Fire Services arrived and commenced clean-up operations. Council officers assisted, together with Big River staff.
At sometime prior to 11.30am on 30 November 2009, a licensed electrician attended the premises of Big River and examined the relevant electrical devices, including the switches and the pump. He confirmed that the pollution incident had not been caused by an electrical fault.
Later that day, DECCW officers inspected the wetland and observed that the resin was present in an area of approximately 1.7 ha in the north-eastern corner of the dam on Brunslea. There were approximately 140 stud-cattle in a paddock on Brunslea to the south-west of the wetland. It was the only paddock on Brunslea with good feed and permanent water. As a consequence, the cattle were moved to another paddock to prevent them from been exposed to the resin. As there was no feed or water in this paddock, the cattle had to be fed and watered by hand for approximately one month after the spill at an estimated additional cost to the owners of Brunslea of $1,600. While inspecting the wetland, one of the officers heard frogs and observed frogspawn in an area where the resin was present. The officers observed that the resin was spreading throughout the wetland.
On 2 December 2009, DECCW officers again attended the premises and the wetlands and noticed that the resin could still be observed in the wetlands.
In the meantime, Big River conducted an internal investigation into the cause of the pollution incident. In a report dated 3 December 2009, it concluded that there had been a deliberate activation of the pump. However, all of the three employees present on the premises had, at all times from approximately 11.30pm to 12.00am, been fixing a blockage that had occurred in the dryer, and therefore, had been within sight of each other. Because Big River estimated that the pump had been running for approximately 58 minutes and 45 seconds. This meant that the pump had turned on at about the same time the dryer blockage occurred. Accordingly, because the three employees were always within sight of each other, it was the belief of Big River at that stage that none of the employees had activated the pump. Rather, an act of external vandalism or sabotage was suspected.
Subsequently, however, this view changed. It is now the opinion of Big River, as expressed by Mr Bindon and Mr De Marco in their affidavits, that more likely than not it was an employee who deliberately turned on the pump. This belief is held because the incident took place late on a Sunday night, it was raining, the gates were locked and somebody had to know how to switch on the pump. Both witnesses acknowledge, however, that there is no direct evidence that an employee is responsible, although they believe that this is the most likely explanation. The prosector did not seek to challenge this evidence.
Because it has a bearing upon the penalty to be imposed upon Big River, it is necessary that I make a finding as to the cause of the incident based on the evidence before the Court (Environmental Protection Authority v George Weston Foods Ltd [2010] NSWLEC 120 at [26]). I find on the balance of probabilities (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] and Leach v R [2007] HCA 3; (2007) 230 CLR 1 at [41]) that the pollution incident was caused, at least in part, for the reasons given by Big River, namely, the malicious and deliberate act of one of its employees on the premises on the nightshift of 29-30 November 2009.
On 8 December 2009, DECCW officers again attended the wetland. The officers observed residual contamination present in the standing water of the wetland. Dr Jennifer Spencer, an environmental scientist with DECCW, who was present during the inspection, made the following observations in relation to the flora in the wetland:
(a) a Long-necked Turtle (Chelodina longicollis) and some live Mosquito Fish (Gambusia holbrooki) were swimming in a channel in the wetland;
(b) there were no other fish species or tadpoles in the wetland and the remains of a Freshwater Crayfish (Cherax destructor ) were found;
(c) there were no frogs or frogspawn; and
(d) there were several waterbird species including Straw-necked Ibis (Threskiornis spinicollis), White-faced Herons, (Egretta novaehollandiae), Masked Lapwings (Vanellus miles), Australian Wood Ducks (henonetta jubata), Yellow-billed Spoonbills (Platalea flavipes) and several Clamorous Reed-Warblers (Acrocephalus stentoreus).
Big River's Safety and Operation Procedures and Training
At the time of the spill there were no physical controls in place to prevent the mixing tank from overflowing. While there had been several smaller spills in the past, on each occasion the resin was prevented from entering the stormwater system because workers were present in the vicinity of the mixing tank when it had overflowed.
Employees involved in the glue-mixing process were made aware of the Material Safety Data Sheet for the resin but it was not circulated to all staff. Employees were not trained in the emergency procedures set out in the Material Safely Data Sheet if it was not part of their duties to be involved in the glue-mixing process or the application of glue to the veneer. Further, staff not directly involved in the glue mixing process were not given training on the operation of the pump or procedures to be followed in the event of a spill.
The pump system was checked occasionally, but maintenance was generally only conducted when the pump operator reported a problem with it.
Environmental Harm
Analysis of the samples taken on 30 November and again on 2 December 2009 revealed the following:
(a) formaldehyde was the predominate chemical present in all samples and was detected at a level significantly above acceptable limits;
(b) phenol was detected in all samples at levels significantly above the trigger value, being the level that represents possible risk to the environment if exceeded (set by the Australian and New Zealand Guidelines For Fresh and Marine Water Quality); and
(c) the pH levels of many of the samples were in a range which considerably exceeded the recommended limit for fresh water ecosystems as set by the above Guidelines.
It was not in dispute that the resin was potentially toxic to livestock.
Mr Ross Hyne, a principal research ecotoxicologist with DECCW, analysed the test results from samples collected at the wetlands and stormwater drain. The analysis revealed that the concentrations for formaldehyde and phenol, as well as the elevated pH levels, in the wetland over the period 30 November to 2 December 2009 would be sufficient to cause rapid lethal toxicity to tadpoles, fish and various aquatic macroinvertebrates in the areas contaminated by the resin. Although, he concluded that the local biotic community would recover over time.
Dr Spencer provided an expert opinion on the extent of harm caused, or likely to have been caused, by the pollution in an affidavit affirmed 24 November 2010. Specifically, she opined as to the effect of the resin contamination on the wetland. In her opinion, the discharge of the chemical resin into the wetland could have directly or indirectly affected the health and distribution of wetland dependent fauna utilising the habitat by reason of its negative impact on the water quality in the wetland, including by increasing the turbidity and pH levels in the water. These adverse impacts were in addition to the direct toxicity of the resin to wetland biota.
On a more general level she noted in her report that the degradation of wetland habitats had increased in extent and condition over recent years, resulting in the listing as threatened or of conservation concern of previously widespread wetland species.
Previous Resin Pollution Incident
It was an agreed fact that a previous spill had occurred at the premises on 13 August 2009 when resin was found in the stormwater and connection pits. On that occasion, a DECCW officer attended the premises on 17 August 2009, and raised with Big River the potential for resin to overflow and escape into the internal stormwater system and thus the external stormwater system. In answer to a request by DECCW to identify the source of the contamination Big River stated that it had been unable to do so, but it assured DECCW that the resin channel was isolated from the internal stormwater system. DECCW informed Big River that regulatory action would be pursued if further contamination of the stormwater system occurred.
Post-Incident Conduct
Big River co-operated with the prosecutor in the investigation of the pollution spill. In particular:
(a) Mr De Marco contacted the prosecutor and the council to report the incident immediately after he was advised that the resin had entered the stormwater system;
(b) Big River carried out the clean-up in accordance with instructions and advice provided by the prosecutor, the New South Wales Fire Brigade and Hazmat;
(c) Big River provided its internal report to the prosecutor, as well as all other relevant documentation regarding the resin and the plant's operation when it was requested to do so; and
(d) its employees, including key members of Big River's management, all voluntarily participated in recorded interviews and were, at all times, willing to assist the prosecutor with its enquiries.
Further, Big River advised the prosecutor prior to the first return date of the summons commencing the proceedings that it proposed to enter a plea of guilty to the charge and it entered such a plea on the first return date.
In addition, since the pollution incident Big River has taken the following steps to prevent future spills and any resultant pollution:
(a) the switch for the resin pump has now been modified to include a lockout mechanism. This means that the pump can only be utilised with a key and only shift team leaders have access to the key;
(b) it has installed a proximity switch and laser sensor at a cost of $1,584.50, which will cut the pump off when the tank volume in the mixing tank hits a pre-determined level;
(c) it has commenced conversion of the open section of the internal stormwater system to a fully enclosed pipe system. Enclosed pipes reinforced with concrete have also been installed in all other stormwater drains within close proximity to the resin tanks and most of the drains across the whole of the premises have been covered. That is to say, there are no longer any open stormwater points inside the Ausply plant;
(d) it has installed downpipes to direct runoff from the roof into the connection pit instead of directly into the internal stormwater system; and
(e) it has installed a CCTV system throughout the premises, which includes 16 cameras.
At the hearing, Mr Bindon gave further oral evidence describing in detail the upgrade of the Ausply plant at the premises. In short, the whole plant is being rebuilt, including the area associated with the mixing tank. This new area will include appropriate catchment pits and bunding to prevent, if further spillage should occur, the escape of any resin.
Mr Bindon, on behalf of Big River, expressed his deep regret for the environmental harm caused by the incident and the harm caused to the owner of Brunslea. This sentiment was echoed by Mr De Marco who apologised that the spill had occurred and that environmental harm had been caused. Likewise, Mr Argus stated that he felt "extremely disappointed and regretful that this incident occurred".
Sentencing Principles
The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA"). They are:
3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.
In determining the appropriate sentence the Court must consider the aggravating and mitigating factors, and other matters specified in s 21A of the CSPA.
It was agreed by the parties, and the Court accepts, that no aggravating features (this includes Big River's prior convictions, which are discussed further below) pursuant to that Act are applicable in these sentencing proceedings.
Relevant mitigating factors in s 21A(3) are as follows:
(3) Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offence was not part of a planned or organised criminal activity, ...
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), ...
(k) a plea of guilty by the offender (as provided by section 22), ...
(m) assistance by the offender to law enforcement authorities (as provided by section 23).
Sections 22 and 23 of the CSPA further relevantly provide:
22 Guilty plea to be taken into account
(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:
(a) the fact that the offender has pleaded guilty, and
(b) when the offender pleaded guilty or indicated an intention to plead guilty, and
(c) the circumstances in which the offender indicated an intention to plead guilty,
and may accordingly impose a lesser penalty than it would otherwise have imposed.
(1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
23 Power to reduce penalties for assistance provided to law enforcement authorities
(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:
...
(b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,
(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,
(d) the nature and extent of the offender's assistance or promised assistance,
(e) the timeliness of the assistance or undertaking to assist,
(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, ...
(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, ...
In determining the appropriate sentence in pollution matters the Court must also consider the factors contained in s 241(1) of the POEOA. That section provides:
241 Matters to be considered in imposing penalty
(1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):
(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence,
(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,
(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
(e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee.
The Court may also take into account the objects of the legislation that has been breached. The relevant objects of the POEOA in s 3 include the following:
3 Objects of Act
The objects of this Act are as follows:
(a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, ...
(d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following:
(i) pollution prevention and cleaner production,
(ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, ...
Both these objects and the operative provisions of the POEOA reflect the community adoption of "a stern policy against pollution" (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359 per Mahoney JA and Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211 at [61]).
In Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 114; (2010) 174 LGERA 314 Biscoe J also noted in relation to s 3(a) of the POEOA that (at [57]):
57 The principles of ecologically sustainable development include inter-generational equity - namely that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations: s 6(2) of the Protection of the Environment Administration Act 1991.
It is with these statutory provisions and principals in mind that a determination of the appropriate penalty in this case is made. The determination must reflect both the objective circumstances of the offence and the subjective of circumstances of Big River (Veen v R (No 1) (1979) 143 CLR 458 at 490). Ultimately, the penalty should be determined by an instinctive synthesis of all of the relevant objective and subjective considerations (Markarian v R [2005] HCA 25; (2005) 228 CLR 257).
Objective Gravity of the Offence
The maximum penalty for an offence against s 120(1) of the POEOA in the case of a corporation is $1 million (s 123(a) of the POEOA).
The maximum statutory penalty for an offence is of significance in determining the seriousness with which the legislature regards the particular offence under consideration (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698). The maximum penalty of an offence by a corporation against s 120 of the POEOA increased fourfold on 1 May 2006. This increase indicates a legislative intention that existing sentencing patterns for offences involving pollution of waters are to move upwards (Centennial Newstan at [65]).
The objective gravity of the offence has two principle components: first, the specific acts or omissions of the offender; and second, the consequences of those acts and omissions (Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [22] and Centennial Newstan at [66]).
Actual or Likely Environmental Harm
The phrase "harm to the environment" is widely defined in the Dictionary to the POEOA to include:
... any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.
The breadth of the above definition is further amplified when regard is had to the meaning of the word "likely" in the phrase "harm caused or likely to be caused to the environment" contained in s 241(1)(a) of that Act, namely, "a real or not remote chance or possibility regardless of whether it is less or more than a fifty percent chance" (Newcastle City Council v Pacefarm Egg Products [2002] NSWLEC 66 at [44]).
The harm to the environment need not only be considered in terms of actual harm, but must include the potential risk of harm (Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]).
As Preston J in Waste Recycling and Processing stated (at [145]-[147]):
145 Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life.
146 Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd at [174].
147 Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously.
While not all of the 6000 litres of resin that was spilt found its way into the external stormwater drain and the wetland, the wetland nevertheless suffered material degradation. The resin was present throughout a significant portion of the wetland on 30 November 2009 and could still be observed more than a week later during inspections by DECCW officers on 8 December 2009.
Overall, approximately 1.7 ha of the wetland was affected by the pollution incident. These effects included the fact that:
(a) actual harm was caused by reducing the water quality in the wetland below the accepted limits for phenol and pH levels;
(b) the concentrations for formaldehyde in samples taken in the wetland were approximately 100 to 200 times the concentrations necessary to cause acute toxicity to the flora likely to be present in the wetland;
(c) the concentration composition for the pollutant in the wetland was sufficient to have rapidly killed any frogs, tadpoles, fish or aquatic macroinvertebrates that may have been present from 30 November to 2 December 2009; and
(d) because the resin was potentially toxic to livestock, the cattle that were present on Brunslea had to be moved from the paddock to prevent them coming into contact with the contaminated water.
It follows from the evidence that there can be no doubt that actual harm was caused by the resin spillage to the environment.
In addition to the actual environmental harm caused by the pollution, I find that the incident gave rise to the potential for environmental harm. This may be summarised as:
(a) potential toxicity to frogs, tadpoles, fish, aquatic invertebrates or any livestock that came into contact with the pollutant;
(b) the direct or indirect effects on the health and distribution of flora and fauna utilising the wetland as a result of the increased turbidity and elevated pH levels;
(c) the potential to reduce light penetration and gas exchange for aquatic vegetation and invertebrates and to lower dissolved oxygen levels in the water causing the death of aquatic organisms, particularly fish, through affixation; and
(d) the potential for the resin to spread further into the wetland thereby affecting a larger area of the wetland in circumstances where not all of the material was cleaned up by the authorities on 30 November 2009.
Against both the proven actual and potential environmental harm caused to the environment, was the fact that there is no evidence that any long term environmental harm was caused by the spill and that the local biotic community in the wetland would recover over time as the resin readily biodegraded. Thus while I find that the pollution event caused, and had the very real potential to cause, substantial environmental damage, I accept that the effects would not be long lasting.
Having regard to the actual environmental harm caused by the contaminating resin and the potential for harm, I consider that the environmental harm was in the low to moderate range. But in so finding I do not accept that it was as low as that posited by Big River.
Practical Measures
A factor bearing upon the objective gravity of an offence is the practical measures that may have been taken to prevent, control, abate or mitigate the harm to the environment (s 241(1)(b) of the POEOA).
The prosecution submitted, and with one exception Big River agreed, that there were several practical measures that could have been taken to prevent, control or mitigate the harm. These included:
(a) the installation of physical controls to prevent the resin pump switch from being pressed by employees operating the tank, for example, modifying the switch for the pump to include a lockout mechanism;
(b) the installation of more precise level monitoring equipment on the mixing tank to prevent it from overflowing, for example, the installation of a proximity switch and laser sensor, which would turn the pump off when the volume in the mixing tank reached a certain level;
(c) the installation of alarms or other devices allowing Big River to prevent, control or monitor the flow of materials from the internal stormwater system to the external stormwater system;
(d) the conversion of open sections of the internal stormwater system to a fully enclosed pipe system;
(e) the bunding of areas associated with the use of the resin;
(f) the installation of downpipes to direct runoff from the roof into a connection pit instead of directly into the internal stormwater system;
(g) the installation of a CCTV system throughout the premises;
(h) the training of all staff in emergency procedures to ensure that all employees were aware of how to respond to spills involving resin; and
(i) ensuring staff inspected the external stormwater pits in order to ascertain whether any spill had escaped the premises.
Big River cavilled with this last suggested practical measure. It was Big River's submission that inspecting internal stormwater pits located some distance from the premises, particularly at night and during inclement weather, was unrealistic.
I do not agree. I accept the submission of the prosecutor that at the time the incident was first discovered by the employees of Big River, Big River could have mitigated the harm caused by more thoroughly investigating the possibility of the spill having entered the external stormwater system. Had this occurred, then it is possible that the regulatory authorities could have been alerted much sooner and a clean-up operation effected more quickly, thereby avoiding the contamination to the wetland entirely, or at the very least, minimising its effects.
According to the evidence of Mr De Marco and Mr Bindon, almost all of the practical measures detailed above were implemented by Big River after the pollution incident. The cost of doing so amounted to $43,509 and the total clean-up costs incurred by Big River were in the order of $128,194.
With the one exception referred to above, Big River acknowledged that had it implemented these measures prior to the commission of the offence the spill would have either been prevented or would have been detected far more quickly and thus abated, controlled or mitigated in a more satisfactory manner.
In summary, there were a number of practical measures that could and should have been taken to prevent harm to the environment of the kind that resulted from the pollution incident. Having said this, once the incident occurred, with the exception of the failure of Big River to check the external stormwater system, I find that the abating and mitigatory measures taken by Big River were appropriate to the task.
Foreseeability of Risk of Harm
It may be observed that any manufacturer that uses toxic chemicals is on notice of the possibility of harm to the environment occasioned by a failure in the manufacturing process that results in the spillage of those toxic materials (Centennial Newstan at [81]).
Big River submitted that in the unusual circumstances of the commission of this offence, the extent to which it could have reasonably foreseen the harm caused, or likely to be caused, to the environment was extremely limited. This is because it could not have foreseen that an employee would deliberately activate the pump thereby leading to an overflow of the mixing tank.
In support of this contention, it relied on the evidence of Mr Argus who deposed that in his 30 years experience working at the Ausply plant, he could not recall any incident involving resin entering the stormwater system other than the incident on 30 November 2009 and the earlier August 2009 incident. Similarly, Mr De Marco's evidence was that in the past 50 years of operation of the plant, the resin pump had only ever been activated when an employee was present in the glue-mixing station. Accordingly, Big River submitted, given the history of the manufacturing operation of the premises, it was not reasonable for Big River to foresee that absent the pump operating during the course of production, that the mixing tank could be in use and could overflow and that contamination of the waterways could result.
Big River further submitted that when regard was had to the August 2009 pollution incident, there was nothing about that incident to suggest at the time that it was also the product of employee sabotage.
In response, the prosecutor proposed that it was not necessary that the specific cause of a pollution incident be foreseeable in the context of determining the foreseeability of environmental harm for the purposes of s 241(1)(c). This proposition is correct (Baiada at [32]).
Thus, the prosecutor submitted, it was entirely reasonably foreseeable that any spillage of resin from the mixing tank when employees were not in the vicinity could flow to the external stormwater system, having regard to the characteristics of the resin and the location of the mixing tank, namely, very close to a unbunded and open part of the internal stormwater system on the other side of the corrugated iron wall, where spills had occurred in the past. The prosecutor also argued that Big River must have been aware that the internal stormwater system was connected to the external stormwater system given the spill in August 2009, when resin was found in the external stormwater system.
Big River sought to distinguish Baiada on the basis that the polluting event in that case was an accident (in Baiada one million litres of effluent escaped from the defendant's premises due to an accidental pipe failure). Instead Big River relied on the decision of Biscoe J in Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23, and in particular, his Honour's finding that the turning of a T-Bar in a valve carried out by an unauthorised third party was the cause of the effluent spill and the cause of the harm to the environment (at [169]).
While Big River acknowledged that, similar to the finding made in Ramsey Food Processing, improved security to prevent the pump being turned on may have prevented the offence, it nevertheless contended that the extent to which the harm or risk of harm was reasonably foreseeable was towards the low end of the spectrum of possibilities. This is because, first, Big River would have to have foreseen that the resin pump would be activated when no employees were working at the glue-mixing station, and second, it would have to have foreseen that there would be no employees physically present to notice the resin overflowing from the mixing tank. Both events were highly unlikely and were effectively unforeseeable because the resin pump was normally only ever activated during the glue-mixing shift when staff were present. In fact, as the evidence above revealed, the resin pump had never been activated when there had been no employees engaged in glue-mixing during the past 50 years. In short, Big River submitted that "it is extremely difficult for a company to foresee the deliberate causing of a pollution incident and the manner in which that might occur".
I accept Big River's submissions that, at least in the circumstances of the commission of this offence, the foreseeability of the deliberate causing of a pollution incident by the activation of the resin pump was slight. However, I do not accept that "the manner in which that [pollution incident] might occur" was wholly unforeseeable.
By reason of the events in August 2009, I do not agree that once the mixing tank overflowed, it was unforeseeable that the escaped resin would make its way to the external stormwater system from the premises. While the investigation carried out by Big River into the August 2009 spill concluded that there was no evidence that the resin had entered the external stormwater system due to an overflow of the mixing tank, the resin was nevertheless present in that system. As a consequence, the possibility that resin could enter into the external stormwater system, by reason of spillage from the mixing tank or some other cause, ought to have been present in the mind of Big River and was thus reasonably foreseeable.
The Extent to Which Big River had Control over the Causes that Gave Rise to the Offence
I accept the submission of the prosecutor that as the owner and operator of the premises, as well as the employer of all staff working at the Ausply plant, Big River had control over the operation of the premises. This included the mixing tank, the internal stormwater system, and the procedures for, and training of staff in, dealing with resin spills. It follows that Big River had complete control over the causes that gave rise to the offence (s 241(1)(d) of the POEOA).
Reasons for Committing the Offence
A factor by which the objective seriousness may be augmented is the reason for its occurrence. In the present case, I find that the offence was not committed deliberately and that Big River gained no commercial advantage from its commission.
Conclusion on the Objective Gravity of the Offence
Having regard to the nature of the offence; the high maximum penalty; the extent of harm to the environment; the practical measures able to have been taken to prevent the harm; the actions of Big River in controlling, abating and mitigating the harm; the reasonable foreseeability of harm likely to be caused by the commission of the offence; the extent to which Big River had control over the causes that gave rise to the offence, and the absence of any deliberate commercial motive in committing the offence, I find that the offence committed is of moderate objective gravity.
Subjective Considerations
In determining the appropriate penalty to be imposed, the Court must take into account those factors specific to Big River that mitigate the seriousness with which its conduct should otherwise be considered (s 21A(3) of the CSPA).
Prior Criminality
Big River has two prior convictions for environmental offences. As Big River Timbers Pty Ltd, the company was convicted in 1990 of breaching conditions 1 and 3 of a pollution control licence on 22 January and 1 February 1990, contrary to s 17(5)(k) of the State Pollution Control Commission Act 1970 (State Pollution Control Commission v Big River Timbers Pty Ltd [1990] NSWLEC 127).
Both convictions arose out of the same set of facts, namely, a breach of condition 1 of the licence, which required construction of an acoustic enclosure around a new wood chipper. Condition 3 was breached because use of the new chipper had occurred absent a certificate required to be provided to the State Pollution Control Commission. The company was fined $10,200 for the offences.
In Baiada (at [50]) and Waste Recycling and Processing Corp (at [196]), the Court held that prior offences of a different nature and arising out of different circumstances that do not demonstrate a pattern of conduct of disregard for environmental laws ought to be given little weight in any determination of sentence.
I accept the submissions of Big River that little weight is to be placed on these convictions because:
(a) the prior convictions arose out of circumstances materially different from the commission of the present offence;
(b) the prior convictions occurred over 20 years ago;
(c) the prior convictions were relatively minor in nature; and
(d) the prior convictions were related to each other.
I also agree with the submission of Big River that the earlier convictions do not manifest a continuing attitude of disobedience with environmental laws. Accordingly, limited weight is placed on them (s 21A(3)(e) of the CSPA).
Early Plea of Guilty
That Big River pleaded guilty at the first available opportunity should be reflected by discounting the penalty that Big River would otherwise incur by the full amount of 25% (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 and ss 21A(3)(k) and 22 of the CSPA).
Assistance of Big River to the prosecutor
It was agreed by the parties that at all times Big River co-operated fully with the prosecutor. This commenced with its early reporting of the pollution incident and continued with the investigation of the incident onsite, its participation in recorded interviews and the provision of documents and information. It culminated in the filing of the statement of agreed facts (ss 21(A)(3)(m) and 23 of the CSPA). I find Big River's conduct in this regard to have been exemplary.
Contrition and Remorse
Remorse for the commission of the offence with which Big River has been charged has been expressed in the evidence of all three witnesses before the Court: Mr Bindon, Mr De Marco and Mr Argus. This expression was supported by the fact that Mr Bindon was present in Court during the sentence hearing. In my view, Big River has amply demonstrated its contrition as a mitigating factor to be considering in determining an appropriate sentence (s 21A(3)(i) of the CSPA).
Good Character
With exception of the earlier convictions, Big River was able to demonstrate to the Court evidence of good character that should be taken into account as a mitigating factor (s 21A(3)(f) of the CSPA).
Mr Bindon gave evidence that Big River has acted as a good corporate citizen. Big River is a continuing participant in environmental improvement projects. For example, in 2006 it invested in a co-generation electricity plant at one of its facilities in Grafton. This plant uses waste to generate steam which is subsequently converted into electricity. It accounts for 35-40% of the plant's electricity needs.
Big River has also taken positive steps to improve the environmental performance of its activities and processes on the premises. As stated above, it is currently undertaking a major investment in the plant of up to $22 million and has engaged a National Safety, Health and Environmental Manager responsible for overseeing the environmental performance of the company and ensuring that all environmental laws and regulations are complied with. This manager reports directly to Mr Bindon, who in turn reports to the board of directors. Ausply has also employed a Quality and Safety Manager, who is responsible for the environmental performance of the plant. This Manager reports all environmental issues to Mr De Marco.
The Appropriate Sentence
The imposition of a sentence serves a number of purposes. As s 3A of the CSPA indicates, these purposes include retribution and denunciation, as well as deterrence, both specific and general.
General Deterrence
The element of general deterrence in fixing an appropriate penalty is an important consideration in the sentencing process. The penalty must be sufficient to deter others who, by oversight or inadequacy in process systems, risk committing an offence against the POEOA in the hope that should the oversight or inadequacy be exposed, only nominal penalties will be applied.
But the object of the POEOA is to prevent pollution. Accordingly, penalties must be imposed that are substantial enough to encourage corporations engaged in manufacturing process to adopt preventative measures (Axer and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234. In particular, the deterrent effect of a fine must send an important message to companies using toxic materials in their production processes to avoid harm to the environment.
While I have acknowledged the unusual circumstances of this case insofar as I accept Big River's explanation that the pollution incident was caused, in part, by the malicious acts of an employee, nevertheless this is not a case in which it could be said that there is nothing more that the defendant could have done to avoid the commission of the offence. The offence occurred not only for the reason given by Big River, but also because of a failure by Big River to ensure that any spillage that occurred was not discharged into the external stormwater system. Put another way, the offence occurred, in part, because of a failure to implement a system which would have avoided the commission of the offence. The necessity for those engaged in manufacturing, particularly those using toxic substances, to ensure all necessary precautions are taken to avoid water pollution is a message that must be given by the imposition of an appropriate penalty.
Specific Deterrence
Big River submitted that the significant expenditure by it in upgrading the entire plant and the evidence of new works carried out to prevent any further such incident from occurring in the future meant that the likelihood of reoffending was negligible and that the need to consider, as an element of punishment, specific deterrence, was extremely low.
The prosecutor, however, submitted that some weight should be given to specific deterrence in this matter because Big River had the opportunity to respond to the very type of pollution incident that founds the commission of this offence following the spill in August 2009, but did not do so.
I accept that there is a need for specific deterrence ought to be included as a component of the present penalty to be imposed on Big River given the earlier pollution incident in August 2009.
Retribution and Denunciation
The penalty must be such as to ensure that retribution and denunciation, which are part of the purpose of sentencing (s 3A(a) and (e) of CSPA), are properly addressed. The sentence of this Court is a public denunciation of the conduct of the offender which must ensure that the offender is held accountable for his or her actions and is adequately punished (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at 127 at [8]-[9] and Environment Protection Authority v Hanna [2010] NSWLEC 98 at [34]). Accordingly, I take these elements into account.
Costs
I further take into account the fact that Big River has agreed to pay the prosecutor's costs in the agreed amount of $59,644.80. This comprises $35,000 in legal costs and $24,644.80 investigation costs (s 248 of the POEOA). It is appropriate to take these costs into account in determining the overall penalty to be imposed (Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39 at [139]).
Even-handedness
The principal of even-handedness in sentencing requires the Court to have regard to the general pattern of sentencing for offences of the kind being considered. But care must be taken given the wide divergence of facts and circumstances leading to the imposition of specific penalties.
In Hilli v R; Jones v R ([2010] HCA 45; (2010) 85 ALJR 195) the High Court reaffirmed the principle that there should be reasonable consistency with sentencing (at [49]) but it went on to note that (at [54] citations omitted and emphasis added):
54 In Director of Public Prosecutions (Cth) v De La Rosa , Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence " (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned".
Having said this, the prosecution and Big River agreed that regard could properly be had to the following water pollution cases under s 120 of POEOA decided since the maximum penalty was increased to $1 million for a corporation.
In Environment Protection Authority v Boral Australian Gypsum Ltd [2009] NSWLEC 26 Pain J imposed a fine of $58,500 (which included a discount, for an early guilty plea) and ordered the defendant to pay the prosecutor's legal costs in the amount of $20,000 and investigation cost in the amount of $3,000. The case involved the pollution of water in a drain, which flowed to the Parramatta River by 6400 litres of Gardisperse (a liquid chemical). The spill of the liquid occurred when it was transferred from a large storage tank to a small batching tank and an electronic sensor failed. The harm was reasonably severe but not of long term duration. The defendant had no prior convictions and the seriousness of the offence was characterised as being in the low to medium range.
In Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77 Biscoe J imposed a fine of $25,000 after a 25% discount for an early guilty plea, and ordered the defendant to pay the prosecutor's legal costs as agreed or assessed and its investigation costs in the sum of $5,844.35. The case concerned an accidental spill of approximately 50 litres phenolic resin products used by the defendants that entered the stormwater system and flowed downstream into Piles Creek. There was short term environmental harm. The defendant had no prior convictions and the offence was of a low degree of objective seriousness.
George Weston Foods Ltd concerned the discharge of a blend of animal tallow and vegetable oil into a stormwater drainage system which discharged into the Peel River. Actual harm was effected on the visual amenity of the river and use of the river for recreational activities. The pollution was confined to small parts of the river and while there was potential environmental harm with respect to the aquatic ecosystem, this was neither widespread nor long term. The cause of the pollution was found by Craig J to be the result of "an incident occasioned through misadventure" (at [27]), namely, undetected corrosion in a welded joint of a steampipe resulting in the creation of a small hole through which the oil and tallow passed. The defendant had one prior conviction (which was held to be of little relevance to the circumstances of the commission of the offence in question), pleaded guilty early and at all times co-operated fully with the prosecutor, including in the clean-up of the pollutant. The defendant was ordered to pay Tamworth Regional Council $67,000 to fund a river rehabilitation program and to pay the prosecutor's legal costs of $18,000 and investigation costs of $12,000.
Finally, in Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255 a cracked pipe led to 98,000 litres of untreated abbatoir effluent spilling into a nearby creek and river. The pipe was fractured as a result of contact with an underground rock. There was significant actual environmental harm to the creek which had the potential to last several months. The defendant had one prior conviction but was found unlikely to reoffend. The defendant expressed remorse and entered an early guilty plea. The defendant was found to have co-operated fully with the authorities. Sheahan J ordered the defendant to pay the Land and Property Management Authority the sum of $60,000, to be applied to a restoration and enhancement project, and to pay the prosecutors' legal costs as agreed or assessed and the prosecutor's investigation costs of $16,070.58.
Conclusion as to Appropriate Penalty
Synthesising the objective circumstances of the offence, including its objective gravity, and the subjective circumstances of Big River, I consider that, subject to a discount, the appropriate penalty to be imposed is a fine of $100,000. Discounted by 33% for all mitigating factors, the resulting monetary penalty is in the sum of $67,000. In fixing this sum I take into account that Big River has agreed to pay the prosecutor's costs in the amounts referred to above.
Orders
The orders made by the Court are as follows:
(1) the defendant is convicted of the offence against s 120(1) of the POEOA as charged;
(2) the defendant is fined the sum of $67,000;
(3) the defendant is to pay the prosecutor's legal costs in the sum of $35,000 within 28 days of this order;
(4) the defendant, pursuant to s 248(1) of the POEOA, must pay the prosecutor's investigation costs agreed to in the sum of $24,644.80 within 28 days of this order; and
(5) the exhibits are to be returned.
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Decision last updated: 17 May 2011
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