Environment Protection Authority v Cadia Holdings Pty Limited

Case •

[2025] NSWLEC 27

•

31 March 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Environment Protection Authority v Cadia Holdings Pty Limited [2025] NSWLEC 27
Hearing dates: 21 June 2024
Date of orders: 31 March 2025
Decision date: 31 March 2025
Jurisdiction:Class 5
Before: Pritchard J
Decision:

See orders at [223]

Catchwords:

SENTENCING — environmental offences — s 128(1)(b) of the Protection of the Environment Operations Act 1997 (NSW) — air pollution — guilty plea — environmental services order — publication order made

Legislation Cited:

Crimes (Sentencing Procedure) Act (NSW) ss 3A, 21, 21A, 22, 23

Criminal Procedure Act 1986 (NSW) s 257B, 257G

Environmental Planning and Assessment Act 1979 (NSW)

Fines Act 1996 (NSW) ss 6, 122

Protection of the Environment Operations Act 1997 (NSW) ss 3, 116, 128, 132, 241, 250, Dictionary

Protection of the Environment Operations Amendment Act 2005 (NSW) (repealed)

Protection of the Environment Operations (Clean Air) Regulation 2021 (NSW) (repealed) cll 33, 39, Sch 4

Protection of the Environment Operations (Clean Air) Regulation 2022 (NSW) cll 43, 47, 52, Sch 2

Cases Cited:

ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 4

Assam v R [2019] NSWCCA 12

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357

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

Burwood Council v Alam [2025] NSWLEC 2

Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21

Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54

Chief Executive, Office of Environment and Heritage v Brummell (2019) 242 LGERA 241; [2019] NSWLEC 114

Chief Executive, Office of Environment and Heritage v Kurstjens Onroerend Goed AU B.V.; Kurstjens; Beefwood 1 Pty Ltd; Beefwood 2 Pty Ltd [2024] NSWLEC 140

Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137

Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31

Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280

Environment Protection Authority v BHP Steel (AIS) Pty Ltd [2000] NSWLEC 19

Environment Protection Authority v CPB Contractors Pty Limited [2019] NSWLEC 134

Environment Protection Authority v Dial-a-Dump (EC) Pty Ltd (2024) 261 LGERA 103; [2024] NSWLEC 21

Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60

Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70

Environment Protection Authority v Grafil Pty Ltd (2022) 254 LGERA 76; [2022] NSWCCA 268

Environment Protection Authority v Hanna (2018) 235 LGERA 114; [2018] NSWLEC 80

Environment Protection Authority v Laison [2015] NSWLEC 89

Environment Protection Authority v Minto Recycling Pty Ltd [2019] NSWLEC 193

Environment Protection Authority v Mouawad (No 4) [2023] NSWLEC 76

Environment Protection Authority v Nulon Products Australia Pty Ltd [2015] NSWLEC 153

Environment Protection Authority v O’Brien [2025] NSWLEC 14

Environment Protection Authority v P&M Quality Smallgoods Pty Ltd; Environment Protection Authority v JBS Australia Pty Limited [2017] NSWLEC 89

Environment Protection Authority v Queanbeyan City Council (No 3) (2012) 192 LGERA 415; [2012] NSWLEC 220

Environment Protection Authority v Robinson [2004] NSWLEC 629

Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273; [2008] NSWLEC 264

Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100

Environment Protection Authority v Unomedical Pty Ltd (No 4) [2011] NSWLEC 131

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

Environment Protection Authority v Whitehaven Coal Mining Ltd (2019) 239 LGERA 31

Environment Protection Authority v Whites Timber Products Pty Ltd; Environment Protection Authority v White’s Haulage Pty Ltd [2024] NSWLEC 135

Environmental Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90

Fairfield City Council v Oztech Developments Pty Ltd; Bellagio Investments Pty Ltd [2021] NSWLEC 81

Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785

GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22

Georges River Council v SAF Developments Pty Ltd [2023] NSWLEC 50

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

Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17

Ishac v The Queen (2011) 211 A Crim R 102

Jones v R [2025] NSWCCA 28

Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3

Lupton v The King [2024] NSWCCA 29

Markarianv The Queen (2005) 228 CLR 357; [2025] HCA 25

Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46

Mohr v R [2024] NSWCCA 197

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Plath v Rawson (2009) 170 LGERA 253; [2009] NSWCA 178

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Cotterill [2012] NSWSC 89

R v De Simoni (1981) 147 CLR 383; [1981] HCA 31

R v O’Neill [1979] 2 NSWLR 582

R v Thomson (2000) 49 NSWLR 383; (2000) 115 A Crim R 104; [2000] NSWCCA 294

R v Tuan Anh Tran [2011] NSWSC 1480

Regina v Sharma (2002) 54 NSWLR 300; (2002) A Crim R 238; [2002] NSWCCA 142

Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2

Secretary, Department of Planning and Environment v Boggabri Coal [2014] NSWLEC 154

Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd (2020) 245 LGERA 241; [2020] NSWLEC 125

Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10

SZ v R (2007) 168 A Crim R 249; [2007] NSWCCA 19

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Tukuafu v The King [2024] NSWCCA 84

Williams v R [2012] NSWCCA 172

Wong v The Queen (2001) 207 CLR 584; [2021] HCA 64

Texts Cited:

B Preston, “Principled Sentencing for Environmental Offences ‒ Part 2: Sentencing Considerations and Options” (2007) 31 Criminal Law Journal 142

Category:Principal judgment
Parties: Environment Protection Authority (Prosecutor)
Cadia Holdings Pty Limited (Defendant)
Representation:

Counsel:
P English and E Dunlop (Prosecutor)
J Davidson (Defendant)

Solicitors:
Environment Protection Authority (Prosecutor)
Ashurst Australia (Defendant)
File Number(s): 2023/323614, 2023/261675 and 2023/323615
Publication restriction: Nil

JUDGMENT

Introduction

Outcome

Evidence

Summary of agreed facts

The defendant’s operations

Environment protection licence and project approval for underground mining operations at East Cadia

Mining operations at the Cadia East underground mine

Prescribed standard of concentration

Installation of new centrifugal surface fans at VR8 in December 2020

Sampling of emissions at VR8 in November 2021

Air quality audit by Zephyr dated 11 August 2022

AECOM presentation in February 2023

Installation of dry air filtration plants in April/May 2023

Additional relevant facts set out in the defendant’s submissions

The defendant's operations at the time of the offences

Material sampled within VR8

Different sampling methods used by Ektimo and Cadia offsite monitors

The air quality assessment criteria in the project approval

Steps taken by the defendant following the offences

Summary of statement of agreed facts on environmental harm (SOAF on EH)

Measures taken by the defendant to reduce emission of solid particles (total) from VR8 below the prescribed concentration

Extent of harm caused or likely to be caused to the environment by the commission of each of the offences

Solid particles as an air pollutant

The nature of the material sampled in VR8

The project approval criteria

Ambient air quality monitoring results

Actual harm caused to the environment by the commission of each of the offences

Likely harm to the environment caused by the commission of the November 2021 offence

Likely environmental harm caused by the commission of the March 2022 offence

Likely environmental harm caused by the commission of the May 2023 offence

The defendant’s additional evidence

Mr Dewar

Mr Todoroski

Relevant legislation and legislative history

Onus and standard of proof at sentencing

Objective seriousness of the offence

Nature of the offences

Prosecutor’s submissions

Defendant’s submissions

Maximum penalty

The defendant’s state of mind in committing the offences

Parties’ submissions in relation to the November 2021 offence and the defendant’s state of mind

Parties’ submissions in relation to the March 2022 offence and the defendant’s state of mind

Parties’ submissions in relation to the May 2023 offence and the defendant’s state of mind

The harm caused or likely to be caused to the environment by the commission of the offences: s 241(1)(a) of the POEO Act

Prosecutor’s submissions in relation to the harm caused or likely to be caused to the environment by the commission of all three offences

Defendant’s submissions in relation to the harm caused or likely to be caused to the environment by the commission of all three offences

The defendant’s reasons for committing the offences

The practical measures that may be taken to prevent, control, abate or mitigate the harm (s 241(1)(b) of the POEO Act)

Prosecutor’s submission in relation to s 241(1)(b) of the POEO Act

Defendant’s submissions in relation to s 241(1)(b) of the POEO Act

The foreseeability of harm caused or likely to have been caused to the environment: s 241(1)(c) of the POEO Act

Prosecutor’s submissions in relation to the foreseeability of harm

Defendant’s submissions in relation to the foreseeability of harm

The defendant’s control over the causes that gave rise to the offences (s 241(1)(d) of the POEO Act)

Parties’ general submissions in relation to objective seriousness

Prosecutor’s general submissions in relation to objective seriousness

Defendant’s general submissions in relation to objective seriousness

Conclusions in relation to the objective seriousness of the offences

Subjective circumstances of the offender

Harm caused was not substantial and no planned criminality: s 21A(3)(a) and (b) of the CSP Act

Prior criminality: s 21A(3)(e) of the CSP Act

Good character: s 21A(3)(f) of the CSP Act

Likelihood of reoffending: s 21A(3)(g) of the CSP Act

Remorse shown by the offender: s 21A(3)(i) of the CSP Act

Guilty pleas: ss 21A(3)(k), 22 of the CSP Act

Assistance to authorities: ss 21A(3)(m) and 23 of the CSP Act

Conclusions in relation to the subjective circumstances

Other principles of sentencing to be considered

Proportionality

General and specific deterrence: s 3A(b) of the CSP Act

Even-handedness and consistency in sentencing

Totality

Capacity to pay a fine: s 6 of the Fines Act

The “instinctive synthesis approach” and the appropriate penalties to be imposed

Additional orders sought

Publication order: s 250(1)(a) of the POEO Act

Environmental service order: s 250(1)(e) of the POEO Act

Professional costs

Moiety

Orders

JUDGMENT

Introduction

  1. By three summonses filed on 17 August 2023, the Environment Protection Authority (EPA) (the prosecutor) commenced Class 5 proceedings against Cadia Holdings Pty Limited (Cadia) (the defendant). At all relevant times, the defendant operated Cadia Valley Operations, one of Australia’s largest gold mining operations (Cadia Valley Operations) located at Cadia Road, Cadia, New South Wales (the premises).

  2. At all relevant times, the defendant was a wholly owned subsidiary of Newcrest Mining Limited (Newcrest). It appears that on 6 November 2023, Newmont Overseas Holdings Pty Ltd, a wholly owned indirect subsidiary of Newmont Corporation, acquired Newcrest. Upon seeking clarification as to the identity of “Newmont Australia”, the entity referred to in draft consent orders provided by the parties, I was informed that “Newmont Australia” is a registered business name held by Newmont Australia Pty Ltd, and that Newmont Corporation is the ultimate holding corporation of both Newmont Australia Pty Ltd and the defendant. “Newmont Australia” is also the name or “handle” on each of the social media accounts specified in the draft consent orders.

  3. On 29 September 2023, in proceedings 2023/261675, the defendant pleaded guilty to an offence against s 128(1)(b) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) for operating a plant in such a manner to cause or permit the emission at any point specified in or determined in accordance with the regulations of air impurities in excess of the standard of concentration or the rate prescribed by the regulations (the March 2022 offence).

  4. On 24 November 2023, the defendant pleaded guilty to two offences against s 128(1)(b) of the POEO Act as charged in proceedings 2023/323614 (the November 2021 offence) and 2023/323615 (the May 2023 offence).

  5. The three offences against s 128(1)(b) of the POEO Act to which the defendant has pleaded guilty are as follows:

  1. The November 2021 offence is that between 3 and 5 November 2021 at or near the premises, Cadia committed an offence against s 128(1)(b) of the POEO Act, in that, being the occupier of a premises, it operated plant in or on the premises in such a manner as to cause the emission, at a point determined in accordance with the Protection of the Environment Operations (Clear Air) Regulation 2021 (NSW) (the 2021 Clean Air Regulation), of air impurities in excess of the standard of concentration prescribed by the 2021 Clean Air Regulation in respect of that plant.

  2. The March 2022 offence is that on or about 1 March 2022, at or near the premises, Cadia committed an offence against s 128(1)(b) of the POEO Act, in that, being the occupier of a premises, it operated plant in or on the premises in such a manner as to cause the emission, at a point determined in accordance with the 2021 Clean Air Regulation, of air impurities in excess of the standard of concentration prescribed by the 2021 Clean Air Regulation in respect of that plant.

  3. The May 2023 offence is that between 24 and 25 May 2023, at or near the premises, Cadia committed an offence against s 128(1)(b) of the POEO Act, in that, being the occupier of a premises, it operated a plant in or on the premises in such a manner as to cause the emission, at a point determined in accordance with the Protection of the Environment Operations (Clear Air) Regulation 2022 (NSW) (the 2022 Clean Air Regulation), of air impurities in excess of the standard of concentration prescribed by the 2022 Clean Air Regulation in respect of that plant.

  1. The particulars of all three offences provide that the defendant operated surface exhaust fans attaching to Ventilation Rise 8.1 (VR8.1) in such a manner as to cause the emission, at a point between Panel Cave 2 and the release point of VR8.1 (referred to as sampling plan A by Ektimo Pty Ltd (Ektimo)) of solid particles in excess of the standard of concentration of 100 milligrams per cubic metres (mg/m3). Mr Michael Dewar, an employee of Newcrest in various roles, gave evidence orally that VR8 and VR8.1 are the same thing at Cadia.

  2. At the time of the offences, the maximum penalty for an offence against s 128 of the POEO Act was, in the case of a corporation, a penalty not exceeding $1,000,000: s 132(a).

  3. The proceedings were listed before me for a hearing on sentence on 21 June 2024.

Outcome

  1. The defendant has pleaded guilty to, and is convicted of, three offences against s 128(1)(b) of the POEO Act. It arises to sentence the defendant for each of the three offences.

  2. In relation to each of the offences, I fix the following penalties:

  1. In relation to the November 2021 offence, I would sentence the defendant to pay a penalty in the amount of $150,000. To this, I would apply a discount of 25% in light of the plea of guilty entered on 24 November 2023, and a further discount of 5% in light of other mitigating factors.

  2. In relation to the March 2022 offence, I would sentence the defendant to pay a penalty in the amount of $150,000. To this, I would apply a discount of 25% in light of the plea of guilty entered on 29 September 2023 and a further discount of 5% in light of other mitigating factors.

  3. In relation to the May 2023 offence, I would sentence the defendant to pay a penalty in the amount of $200,000. To this, I would apply a discount of 25% in light of the plea of guilty entered on 24 November 2023 and a further discount of 5% in light of other mitigating factors.

  1. Accordingly, I will make orders that:

  1. In relation to the November 2021 offence, the defendant pay a penalty in the amount of $105,000.

  2. In relation to the March 2022 offence, the defendant pay a penalty in the amount of $105,000.

  3. In relation to the May 2023 offence, the defendant pay a penalty in the amount of $140,000.

  1. I will also make an order that 50% of each of the penalties be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW). I will also make orders that the defendant pay the EPA’s legal costs pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 (NSW). I will make a publication order pursuant to s 250(1)(a) of the POEO Act and an environmental service order pursuant to s 250(1)(e) of the POEO Act.

Evidence

  1. The parties filed a statement of agreed facts on 18 January 2024 (the SOAF) and a statement of agreed facts on environmental harm on 27 May 2024 (the SOAF on EH).

Summary of agreed facts

  1. The significant relevant facts agreed in the SOAF are summarised as follows:

The defendant’s operations

  1. An aerial image of the premises, which has an area of approximately 5,219 hectares, as at the date of the offences is reproduced below:

Environment protection licence and project approval for underground mining operations at East Cadia

  1. In 2000, the defendant applied for and was granted environment protection licence number 5590 (the EPL) under the POEO Act. At all relevant times, the EPL authorised the scheduled activities of mining for minerals, mineral processing, and crushing, grinding or separating. In 2008, the defendant submitted an application for approval under Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to consolidate and replace the previous development consents for the premises and, amongst other things, permit mining operations to be undertaken underground at a deposit located 2.5 kilometres (km) to the east of the existing Cadia Hill open-cut pit (Cadia East). On 6 January 2010, the then Minister for Planning granted project approval no 06_0295 (the project approval). On 13 December 2021, that approval was last modified.

  2. At all relevant times, condition 17 of Schedule 3 to the project approval provided:

Except for the land in Table 1, [Cadia] shall ensure that all reasonable and feasible avoidance and mitigation measures are employed so that particulate matter emissions generated by the [project] do not cause exceedances of the criteria listed in Tables 8, 9 and 10 at any residence on privately owned land, or on more than 25% on any privately-owned land.

  1. Between 31 August 2015 and 21 December 2021, tables 8, 9 and 10 in the project approval were as follows:

Table 8: Long term impact assessment criteria for particulate matter

Pollutant

Averaging period

dCriterion

Total suspended particulate (TSP)

Annual

a90µg/mg3

Particulate matter < 10µm (PM10)

Annual

a30µg/mg3

Table 9: Short term impact assessment criterion for particulate matter

Pollutant

Averaging period

dCriterion

Particulate matter < 10µm (PM10)

24 hour

a50µg/mg3

Table 10: Long term impact assessment criteria for deposited dust

Pollutant

Averaging period

Maximum total deposited dust level

Maximum total deposited dust level

cDeposited dust

Annual

b2g/m2/month

a4g/m2/month

Notes to Tables 8-10:

a total impact (i.e. incremental increase in concentrations due to the development plus background concentrations due to all other sources);

b incremental impact (i.e. incremental increase in concentrations due to the development on its own);

c Deposited dust is to be assessed as insoluble solids as defined by Standards Australia, AS/NZS 3580.10.1:2003: Methods for Sampling and Analysis of Ambient Air – Determination of Particulate Matter – Deposited Matter – Gravimetric Method; and

d Excludes extraordinary events such as bushfires, prescribed burning, dust storms, sea fog, fire incidents or any other activity agreed by the Secretary.

  1. On 13 December 2021, tables 8 and 9 in the project approval and notes a and b to tables 8 to 10 were replaced with the following:

Table 8: Long term impact assessment criteria for particulate matter

Pollutant

Averaging period

dCriterion

Total suspended particulate (TSP)

Annual

a90µg/mg3

Particulate matter < 10µm (PM10)

Annual

a25µg/mg3

Particulate matter < 2.5µm (PM2.5)

Annual

a8µg/mg3

Table 9: Short term impact assessment criterion for particulate matter

Pollutant

Averaging period

dCriterion

Particulate matter < 10µm (PM10)

24 hour

a50µg/mg3

Particulate matter < 2.5µm (PM2.5)

24 hour

a25µg/mg3

“a Cumulative impact (i.e. increase in concentrations due to the project plus background concentrations due to all other sources);

b Incremental impact (i.e. increase in concentrations due to the project on its own) with up to five allowable exceedances of the criteria over the life of the project.”

  1. At all relevant times, condition 19(a) and (b) of Schedule 3 to the project approval provided:

[Cadia] shall:

(a) ensure any visible air pollution generated by the project is assessed regularly and that operators are relocated, modified, and/or stopped as far as is reasonable and feasible to minimise air quality impacts on privately-owned land;

(b) ensure that the real-time air quality monitoring and meteorological monitoring data are assessed regularly, and that operations are relocated, modified and/or stopped as required to ensure compliance with the relevant air quality criteria;

  1. On 13 December 2021, condition 6A was inserted into Schedule 2 to the project approval. That condition provides that the defendant may process an additional 3 million tonnes of ore per calendar year subject to it commissioning an independent air quality audit report to the satisfaction of the Secretary of the Department of Planning, Industry and Environment.

  2. It was agreed that for the purpose of modelling the potential air quality impacts of the proposed development, the independent air quality impact report assumed particulate matter emissions from the ventilation outlets to be 2.96mg/m3. This was based on the average of measurements from the ventilation shafts from two underground coal mines in NSW. No site-specific modelling was completed to determine the likely emission rate or concentration from the exhaust shafts at the premises.

Mining operations at the Cadia East underground mine

  1. Gold and copper is mined at the Cadia East underground mine using panel caving, which involves fracturing ore and host rock under controlled conditions, and results in caving and subsidence of the overlying host rock and involves significant underground infrastructure. The Cadia East underground mine has a ventilation system that includes vertical intake and exhaust shafts that extend from the surface to the underground workings.

  2. The environmental assessment submitted in June 2009 by the defendant described, as part of the Cadia East underground mine proposal, the installation of nine additional ventilation rises, including VR8. An aerial image showing the location of the ventilation intake shafts and exhaust shafts for Cadia East, including VR8, as at 10 January 2024, is reproduced below:

  1. It was agreed that VR8 is an exhaust ventilation rise for Panel Cave 2 East (PC2E); and also that Cadia undertakes a number of activities within PC2E that generate solid particles of different kinds that are expelled from VR8, including but not limited to the operation of tipples, crushing stations and conveyors, vehicle movements, and extraction activities.

Prescribed standard of concentration

  1. It was also agreed that at all relevant times, the prescribed standard of concentration for solid particles (total) (TSP) emitted from VR8 was 100mg/m3.

Installation of new centrifugal surface fans at VR8 in December 2020

  1. In December 2020, the defendant removed the underground axial fans at VR8 and replaced those fans with three large centrifugal surface fans (the surface fans). In January 2021, the surface fans were energised and in August 2021, they were fully commissioned. Three drawings of the surface infrastructure at VR8 showing the fans and the sampling plane are reproduced below:

  1. Prior to December 2020, the lower airflow being generated by the underground axial fans at VR8 meant that dust was predominately settling and building up underground and needed to be removed by loaders, trucks and other equipment.

  2. It was agreed that the defendant did not conduct any modelling or testing for the potential impact of the surface fans on the concentration of TSP that would be emitted from VR8 before installing the surface fans, and that meeting a dust emission threshold was not part of their design criteria.

Sampling of emissions at VR8 in November 2021

  1. In November 2021, the defendant engaged Ektimo to sample TSP in VR8 and another exhaust ventilation shaft. Between 3 and 5 November 2021, Ektimo conducted sampling of VR8 while two of the three surface fans were in operation (the November 2021 sampling). The November 2021 sampling provided the following results:

  1. on 3 November 2021 between 16:20 and 17:48, TSP was sampled in VR8 at a concentration of 210mg/m3 with a mass rate of 7,800 grams per minute (g/min); and

  2. on 5 November 2021 between 09:17 and 11:18, TSP was sampled in VR8 at a concentration of 210mg/m3 with a mass rate of 7,800g/min.

  1. The results of the November 2021 sampling were provided to the defendant in a report issued 17 December 2021.

  2. In January 2022, the defendant engaged Zephyr Environmental Pty Ltd (Zephyr) to prepare and complete an air quality audit in accordance with condition 6A of Schedule 2 to the project approval, as set out above at [21].

  3. On 1 March 2022, Ektimo tested the concentration of TSP and certain other air impurities at VR8 as part of that audit (the March 2022 sampling), with the following results:

  1. between 09:05 and 13:15 on 1 March 2022, TSP was sampled in VR8 at a concentration of 360mg/m3, with a mass rate of 11,000g/min.

  1. The results of the March 2022 sampling were supplied to the defendant on 5 April 2022 in a report issued on 24 May 2022.

  2. On 24 and 25 May 2023, Ektimo completed further sampling at VR8 (the May 2023 sampling), with the following results:

  1. on 24 May 2023 between 11:34 and 15:40, TSP was sampled in VR8 at a concentration of 200mg/m3 (test 1A) with a mass rate of 6,000g/min and simultaneously at a concentration of 410mg/m3 (test 1B) with a mass rate of 12,000g/min;

  2. on 25 May 2023 between 08:43 and 12:55, TSP was sampled in VR8 at a concentration of 350mg/m3 (test 2A) with a mass rate of 10,000g/min and simultaneously at a concentration of 460mg/m3 (test 2B) with a mass rate of 13,000g/min; and

  3. on 25 May 2023 between 14:58 and 16:35, TSP was sampled in VR8 at a concentration of 570mg/m3 (test 3A1) with a mass rate of 17,000g/min and simultaneously at a concentration of 390mg/m3 (test 3A2) with a mass rate of 11,000g/min.

  1. The results of the May 2023 sampling were provided to the defendant in a report issued on 24 July 2023.

Air quality audit by Zephyr dated 11 August 2022

  1. On 11 August 2022, Zephyr provided the defendant with a document titled “Cadia Valley Operations Independent Air Quality Audit” (the air quality audit). That document included a copy of Ektimo’s report of 24 May 2022. The air quality audit refers to Zephyr’s inspection of the premises on 11 and 12 April 2022 and notes that “[a] site inspection of … VR8-1 indicated there were significant particulate emissions from this vent shaft [which] could be clearly seen from … approximately 2 km to the south …”.

AECOM presentation in February 2023

  1. In October 2022, Cadia engaged AECOM, who in turn engaged BME Australia and the University of Wollongong, to conduct a technology assessment and prefeasibility study to consider dust emissions from primary ventilation fans and corresponding dust sources at the premises, and to provide recommendations for dust mitigation measures.

  2. In February 2023, AECOM presented its findings to Cadia, the Department of Planning and Environment and the Environment Protection Authority (EPA). AECOM set out the results of both the November 2021 sampling and the March 2022 sampling. It was agreed that this was the first occasion the EPA became aware of the November 2021 sampling.

Installation of dry air filtration plants in April/May 2023

  1. On 4 April 2023, Cadia had two dry air skid mounted filtration scrubbers delivered that could be connected directly into the exhaust ventilation ducts from the tipple being operated in PC2E. These two filtration scrubbers commenced operating at the start of May 2023.

Additional relevant facts set out in the defendant’s submissions

  1. In addition to the agreed, and uncontroversial, facts set out above, the defendant set out what it submitted to be relevant facts in its written submissions. None of these additional facts were controverted by the prosecutor and, accordingly, I make the following findings.

The defendant's operations at the time of the offences

  1. The panel caving method of underground gold mining involves significant underground infrastructure, including ventilation shafts. The defendant's ventilation system includes exhaust shafts, which expel air from the underground mine into the atmosphere above ground in order to maintain underground air quality. The stream of air expelled includes heat, steam and solid particles of various sizes, including PM10 and PM2.5.

Material sampled within VR8

  1. The extent of actual or likely harm to the environment as a consequence of the commission of each of the offences was influenced by the actual or likely concentration and duration of solid particles in the air at any receptor.

  2. Further, the method used to sample the concentration of TSP at the sampling plane in VR8 on the dates of each offence collected a significant volume of material in the form of globules of mud which “do not have the potential to remain suspended in the air and be carried on air currents to reach receptors”. That was because for particles to reach offsite receptors, they must be small enough to remain suspended in the air for a sufficient time so as to be capable of being transported to receptors by the natural movement of the air.

  3. Some of the mud globules that were sampled in VR8 deposited in the duct of VR8 downstream of the sampling plane, while the rest deposited in the immediate vicinity of VR8 within the premises after being discharged from VR8. As mud globules emitted from VR8 are unable to reach receptor locations, they are not an air pollutant that can cause actual or likely harm to the environment at those locations. Conversely, the remainder of the TSP sampled had the potential to remain suspended in the air and be carried on air currents offsite.

Different sampling methods used by Ektimo and Cadia offsite monitors

  1. Additionally, the defendant submitted, the concentration of PM10 and PM2.5 in the samples collected by Ektimo on 3 and 5 November 2021, 1 March 2022, and 24 and 25 May 2023 was not determined using any approved method. The method used was said to be significant in view of the nature of the material sampled within VR8. The terms PM10 and PM2.5 were relevantly defined as particulate matter less than 10 and 2.5µm respectively in aerodynamic equivalent diameter. The aerodynamic equivalent diameter of a particle is the diameter of a sphere with a density of 1 gram per cubic metre (g/cm3) (the density of water) which settles in still air at the same velocity as the particle in question.

  2. The defendant acknowledged that there was no dispute that there is potential for PM10 and PM2.5 to have adverse impacts on human health. The purpose of measuring particle size by aerodynamic equivalent diameter is to classify particles based on how they behave when transported by air. Particles with small aerodynamic equivalent diameters are more likely to reach deeper into the airways and lungs and therefore have more harmful effects than particles with larger aerodynamic equivalent diameters.

  3. Further, by way of additional facts sought to be relied on by the defendant, the defendant said that particles with larger aerodynamic equivalent diameters have a greater settling velocity than particles with smaller aerodynamic equivalent diameters; and that particles with a large surface area relative to their mass (for example, pollen) can have a smaller aerodynamic equivalent diameter than particles that have a small surface area relative to their mass, such as fine grains of rock from mining activities. This was said to be because friction in the air and particle interactions with gases will slow the settling velocity of physically large, fluffy particles more than they will slow the settling velocity of physically small, dense particles.

  4. At all relevant times, the only methods for sampling PM10 (and PM2.5 from 24 February 2022) approved in the Approved Methods (Sampling and Analysis) Publication (Approved Methods Publication) under the 2021 Clean Air Regulation and 2022 Clean Air Regulation required the use of equipment that would sort particles based on their aerodynamic equivalent diameter as they were being sampled. Monitoring of PM2.5 commenced in April 2022 after the PM2.5 impact assessment criteria were inserted into the project approval by modification on 13 December 2021. The ambient air quality monitors used by the defendant to monitor air quality impacts in accordance with the project approval (the locations of which are shown above at [15]) met this requirement.

  5. These ambient air quality monitors were located, at all relevant times, to capture likely air quality impacts from the premises.

  6. By contrast to the ambient air quality monitors used by the defendant in accordance with the project approval, Ektimo did not use any approved method to measure the concentration of PM10 and PM2.5 in the samples it collected on 3 and 5 November 2021, 1 March 2022, and 24 and 25 May 2023. Instead, the concentration of PM10 and PM2.5 in the samples was assessed by placing all of the collected material in a container of clear liquid, then sonically agitating the contents to break apart clusters and clumps, then measuring the physical size of the individual disaggregated particles in the liquid with a laser. The concentration of PM10 and PM2.5 reported by Ektimo for each of the samples was therefore based on the physical size of the particles once separated, not their aerodynamic equivalent diameter as sampled.

The air quality assessment criteria in the project approval

  1. The short-term ambient impact assessment criteria for air quality forming part of the conditions to the project approval are set out above at [17]-[19] and applied to measured 24 hour average concentrations. The defendant submitted, and I find, that at no time on 3 and 5 November 2021, 1 March 2022, or 24 and 25 May 2023 did any measured 24-hour average concentration at any monitoring station exceed the relevant project approval criteria, nor was there any exceedance of this criteria by the defendant between September 2021 and May 2023.

Steps taken by the defendant following the offences

  1. Further, I find, as submitted by the defendant, that it took a number of steps after the first of the offences to bring the emissions of TSP from VR8 below the prescribed standard of concentration. These included:

  1. in October 2022, engaging AECOM to engage a technology assessment and prefeasibility study to consider dust emissions at the premises and recommend dust mitigation measures;

  2. in April 2023, delivery (and commencement of operation at the beginning of May 2023) of two dry air skid mounted filtration scrubbers (for the purposes of removing particles from the airstream) which were connected directly into the exhaust ventilation ducts from the tipple being operated within PC2E;

  3. from June 2023, developing and implementing a revised underground mine operating plan for the underground mine to reduce solid particle emissions while it worked towards the planned commissioning of additional dust filtration units that would enable normal underground operations to resume;

  4. commissioning four additional dust filtration scrubbers (to bring the total to six) at PC2E and Panel Cave 2 West (PC2W);

  5. installing additional dust sprays and spray curtains on PC2E, PC2W and at other locations in the ventilation system;

  6. reconfiguring ventilation systems in PC2E to ensure as best as possible that air flows from contributing dust sources were being processed through the filtration scrubbers; and

  7. installing additional dust sampling instrumentation in the underground mine at the inlets to VR8, in order to provide data to the mine production control system to keep TSP emissions below prescribed concentration levels.

  1. As a further means of investigating potential air quality impacts of Cadia Valley Operations, Cadia engaged the Australian Nuclear Science and Technology Organisation (ANSTO) to sample and characterise PM2.5 over a 24-hour period twice each week, at four towns in the region surrounding the mine, over a period of one a year.

Summary of statement of agreed facts on environmental harm (SOAF on EH)

  1. On 27 May 2024, the parties filed an agreed statement of facts on environmental harm. The significant relevant facts agreed in the SOAF on EH are summarised below.

Measures taken by the defendant to reduce emission of solid particles (total) from VR8 below the prescribed concentration

  1. In addition to the steps described at [53] above, it was agreed that the defendant took the following steps to bring the emission of TSP from VR8 below the prescribed standard of concentration:

  1. from June 2023, the defendant developed and implemented a revised underground mine operating plan for the underground mine to reduce TSP emissions, while the defendant worked towards the planned commissioning of additional dust filtration units that would enable normal underground operations to resume;

  2. in addition to the two dust filtration units already in service, the defendant commissioned four dust filtration scrubbers (to bring the total to six) at PC2E and PC2W);

  3. the defendant installed additional dust sprays and spray curtains on PC2E, PC2W and at other locations in the ventilation system;

  4. the defendant reconfigured ventilation systems in PC2E to ensure as best as possible that the air flows originating at contributing dust sources were being processed through the filtration scrubbers; and

  5. the defendant installed additional dust sampling instrumentation in the underground mine at the inlets to VR8 to provide data to the mine production control system to keep TSP emissions below prescribed concentration levels.

Extent of harm caused or likely to be caused to the environment by the commission of each of the offences

Solid particles as an air pollutant

  1. From 25 February 2022, the Approved Methods Publication as defined in the 2021 Clean Air Regulation and then the 2022 Clean Air Regulation has defined the terms PM10 and PM2.5 as particulate matter less than 10 and 2.5 microns (μm) respectively in aerodynamic equivalent diameter. PM2.5 is a sub-component of PM10.

  2. The tapered element oscillating mass-balance (TEOM) and beta attenuation monitor (BAM) ambient air quality monitors used by Cadia to monitor air quality impacts of Cadia Valley Operations in accordance with the project approval measured PM10 (and PM2.5 from April 2022) in aerodynamic equivalent diameter. The locations of those monitors are shown in the image reproduced above at [15].

  1. In April 2022, after the PM2.5 impact assessment criteria were inserted into the project approval by modification on 13 December 2021 (see [19] above), monitoring of PM2.5 commenced. At all relevant times, the ambient air quality monitors were located to capture likely air quality impacts from the premises.

  2. It was agreed that the ambient air quality monitor at the Woodville monitoring station is on elevated terrain 2.5km west from VR8 and downwind of VR8 during a west-southwest wind, and that it is one of two closest monitors to VR8, being approximately equally as close to VR8 as the monitor at Flyers Creek (depicted in the aerial image reproduced at [24] above).

The nature of the material sampled in VR8

  1. It was also agreed that the air that is expelled from the underground mine via VR8 contains solid particles of various sizes, including PM10 and PM2.5. From the underground mine, air rises approximately 900m in height to the surface. The gradual reduction in air pressure as the air ascends towards the surface causes moisture in the air to condense, particularly on solid particles known as condensation nuclei which then agglomerate and form globules or clumps of mud in the high velocity air (approximately 100km/hr) by the time it reaches the sampling plane in VR8.

  2. The sampling plane is immediately before a 90 degree bend in the duct of VR8 downstream of the sampling plane. Immediately after the sampling plane, the air flow is split into three horizontal ducts which fan outwards from the vertical shaft and lead into the three surface fans. Each surface fan connects via another 90 degree bend to a vertical riser which discharges into the air. When the air in VR8 splits into the three horizontal ducts after the sampling plane, it causes a drop in air pressure leading to more condensation which likely causes more material to agglomerate and for some of the material to stick to or deposit inside the duct. The vertical risers taper outwards, which reduces the velocity of the airflow and causes further agglomeration and deposition in the duct or deposition on the ground next to VR8. The above-surface configuration of VR8 is shown above at [27].

  3. Some of the mud globules that were sampled in VR8 deposited in the duct of VR8 downstream of the sampling plane, while the rest deposited in the immediate vicinity of VR8 within the premises after being discharged from VR8. It was agreed that as mud globules emitted from VR8 are unable to reach receptor locations, they are not an air pollutant that can cause actual or likely harm to the environment at those locations. The remainder of the TSP sampled, which comprised both PM10 and PM2.5, had the potential to remain suspended in the air and be carried on air currents offsite.

The project approval criteria

  1. In relation to the project approval criteria, it was agreed that there is no known concentration and duration of exposure to PM10 and PM2.5 below which there is no risk of any adverse health impact. The ambient air quality impact assessment criteria in condition 17 of Schedule 3 to the project approval set out above at [17] represent the concentration and duration of exposure to PM10 and PM2.5 that was accepted by the then Department of Planning, Industry and Environment at all relevant times.

  2. Between 31 August 2015 and 12 December 2021, the short-term ambient air quality impact assessment criterion in condition 17 of Schedule 3 to the project approval (set out above at [17]-[18]) was 50μg/m3 for PM10 averaged over 24-hours caused by all sources in total, including background concentrations of particulate matter as well as particulate matter from Cadia Valley Operations (see above at [18]).

  3. From 13 December 2021 onwards, the short-term ambient air quality impact assessment criteria in condition 17 of Schedule 3 to the project approval were 50μg/m3 for PM10 and 25μg/m3 for PM2.5, each averaged over 24-hours and caused only by the incremental impact of Cadia Valley Operations (that is, excluding background concentrations of particulate matter) “with up to five allowable exceedances … over the life of the project” (see above at [19]).

Ambient air quality monitoring results

  1. It was also agreed that measured ambient 24-hour average concentrations of PM10 were below the project approval short term impact assessment criterion for PM10 at all monitoring stations on 3 and 5 November 2021, 1 March 2022, and 24 and 25 May 2023. Likewise, measured ambient 24-hour average concentrations of PM2.5 were below the project approval short term impact assessment criterion for PM2.5 at all monitoring stations on 24 and 25 May 2023.

  2. Monitoring of ambient PM2.5 concentrations (as a sub-category of PM10) commenced in April 2022 after the PM2.5 impact assessment criteria were inserted into the project approval by modification on 13 December 2021.

Actual harm caused to the environment by the commission of each of the offences

  1. Applying the definition of “harm to the environment” in the POEO Act, it was agreed that the commission of each of the offences caused actual harm to the environment by the deposition of mud within the premises in the immediate vicinity of VR8. The following three images show mud that was deposited on the exterior of VR8 and in the immediate vicinity of VR8 (noting that the dates on which the images were taken were not in evidence):

  1. Further, it was agreed that the offences resulted in the emission of air impurities (being TSP) into the air, causing actual “harm to the environment” as defined in the POEO Act.

Likely harm to the environment caused by the commission of the November 2021 offence

  1. It was also agreed that the commission of the offence on 3 and 5 November 2021 is not likely to have caused more than minimal harm to the environment of the kind described at [69]-[70] above because:

  1. a significant quantity of material from VR8 in the form of mud globules deposited in the duct of VR8 or in the immediate vicinity of VR8; and

  2. there was no exceedance of the project approval 24-hour impact assessment criteria for PM10 at any of the defendant's monitoring locations on those days. Ambient concentrations of PM10 recorded on 3 and 5 November 2021 were low, and well below the project approval 24-hour impact assessment criteria of 50μg/m3.

Likely environmental harm caused by the commission of the March 2022 offence

  1. Likewise, it was agreed that the commission of the offence on 1 March 2022 is not likely to have caused more than minimal harm to the environment of the kind described at [69]-[70] above, again because:

  1. a significant quantity of material from VR8 in the form of mud globules deposited in the duct of VR8 or in the immediate vicinity of VR8; and

  2. there was no exceedance of the project approval 24-hour impact assessment criteria for PM10 at any of the defendant’s monitoring locations on that day. Ambient concentrations of PM10 recorded on 1 March 2022 were low, and well below the project approval 24-hour impact assessment criteria of 50μg/m3.

Likely environmental harm caused by the commission of the May 2023 offence

  1. In relation to likely environmental harm caused by the commission of the May 2023 offence, it was agreed as follows. On 24 May 2023, there was a spike in the one-hour average PM10 and PM2.5 data at the Woodville monitoring station at 11:00 (a time at which the monitor was downwind from VR8). This may have been partly attributable to the emission of solid particles from VR8 in exceedance of the prescribed standard of concentration. It is also possible that this spike was caused by smoke from a nearby domestic wood heater which is on the same wind axis as VR8. It was agreed that the spike was small, one-hour in duration, and did not cause an exceedance of the 24-hour impact assessment criteria for PM10 or PM2.5 in the project approval. The measured levels of PM10 and PM2.5 at Woodville on 24 May 2023 were low (approximately half the project approval 24-hour impact assessment criteria), indicating that any contribution from VR8 would have been low over the applicable 24-hour average period.

  2. It was agreed that the commission of the offence on 24 and 25 May 2023 is unlikely to have caused more than minimal harm to the environment of the kind described in [69]-[70] above because:

  1. a significant quantity of material from VR8 in the form of mud globules deposited in the duct of VR8 or in the immediate vicinity of VR8;

  2. there was no exceedance of the project approval 24-hour impact assessment criteria for PM2.5 or PM10 at any of the defendant’s monitoring locations on 24 or 25 May 2023; and

  3. overall measured levels of PM2.5 and PM10 on 24 and 25 May 2023 were well below half the project approval 24-hour impact assessment criteria at all monitoring locations.

The defendant’s additional evidence

  1. The defendant read the affidavit of Mr Michael Dewar, employee of Newcrest in various roles at Cadia, dated 23 February 2024, and tendered the exhibit to his affidavit. Mr Dewar was required for cross-examination by the prosecutor.

  2. The defendant also tendered the expert report of Mr Aleksandar Todoroski, consulting air quality engineer, dated 20 March 2024.

Mr Dewar

  1. In his affidavit, Mr Dewar says that he was “employed by Newcrest in various roles at Cadia Valley Operations from 2007 to January 2024”. Between March 2022 and March 2023, he was head of projects at Cadia; between March 2023 and 1 July 2023, he was acting general manager of Cadia; and between 1 July 2023 and 20 November 2023, he was general manager and a director of Cadia. Mr Dewar said that Newmont Overseas Holdings Pty, a wholly owned indirect subsidiary of Newmont Corporation, acquired Newcrest. Mr Dewar says that he is the head of productivity, Australia, for Newmont Mining Services Pty Ltd.

  2. Mr Dewar deposed that he was authorised by the boards of Cadia and Newcrest to accept responsibility, on behalf of Cadia, for the commission of the offences; express regret for the actions that caused the commission of the offences; and apologise to the prosecutor, the Court and the broader community for the commission of the offences.

  3. In examination-in-chief, Mr Dewar gave the following evidence in relation to whether Cadia conducted modelling prior to installing the surface fans at VR8:

Q. Well, it’s an agreed fact … that prior to installing those fans, Cadia did not conduct any modelling or testing for the potential impact of those fans on the concentration of TSP - total solid particles - that would be emitted from VR8; that’s correct, isn’t it?

A. We relied on modelling of the rise and failed to undertake modelling that adjusted for the higher airflow.

Q. So when you say the rise - you undertook modelling of the rise - can you go back please to the schematic behind tab 3 and describe what you’re referring to there?

A. The rise is the vertical shaft. So underneath the sampling plane is a vertical shaft 6 metres in diameter that descends about 1,000 metres.

Q. So that’s part of VR8; isn’t it?

A. Correct.

Q. So there was modelling of part of VR8, but there was no modelling done of the surface exhaust fans; is that right?

A. No. The existing modelling for the ventilation circuit was relied upon, and it was inaccurate.

  1. In cross-examination, Mr Dewar gave evidence that in March or April 2022 the first questions were raised by the environmental team that there could be a “problem” with the Clean Air Regulation.

  2. In cross-examination, Mr Dewar agreed that the modelling of particulate matter emissions from ventilation outlets in 2009 was 2.96mg/m3, and that Cadia had relied on that assumption for the purposes of designing the fans at VR8. Mr Dewar accepted that the results it received that were 70 times higher than the 2.96 mg/m3 assumption was a concern to Cadia. However, Mr Dewar said that the concern was “driven around the fact that we were installing fans that were not performing, and we’re depositing mud and rubbish around the fan sets”.

  3. Mr Dewar said that Cadia became “fixated on a problem that we were unable to solve”. He agreed that Cadia only became aware of the risk that emissions may have been unlawful in around March 2022 when the “environmental superintendent or senior engineer [flagged] concerns with his manager”. Cadia sought advice from experts on how to interpret the regulation. Mr Dewar gave evidence that Cadia could not and still cannot discriminate between dry and wet particulate.

  4. Mr Dewar’s evidence in relation to whether Newcrest is a reasonably prudent operator of a publicly listed company was as follows:

Q. Do you agree that a prudent reasonable operator of a publicly listed mining company such as Newcrest would have realised, as the time of receiving those results in December 2021, that there was a real risk of exceedance of the Clean Air Regulation?

A. Look, having - having been that situation and - and - and being in the frame of mind we were trying to solve a problem, I - I don’t think we’d be the only company to have fallen short in that respect under those conditions. But it’s - it’s clearly, you know, something we missed at the time.

…

I - I regard ourselves as - as a reasonably prudent company … and we made a mistake. I don’t think we would be the only company to make a mistake of that, either in the past or in the future. It - it was something at the time that - that we missed, and it wasn’t through, you know, any - any sort of lack of effort. There was just ignorance of that regulation.

  1. Mr Dewar accepted that it was Newcrest’s responsibility to be aware of the relevant regulations and that Newcrest was complying with what it understood it needed to and that when it became aware of the problem it took “a little bit of time to understand how to comply”.

Mr Todoroski

  1. In his expert report, Mr Todoroski explained the “concepts that are being used” in relation to the emission of particulate matter, the model he conducted “in respect of these emissions”, and the particulate sizes in the period after November 2021. All of the matters raised in Mr Todoroski’s report were ultimately the subject of agreed facts.

Relevant legislation and legislative history

  1. Section 3 of the POEO Act sets out the objects of the Act, relevantly, as follows:

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,

…

(iv) the making of progressive environmental improvements, including the reduction of pollution at source,

(v) the monitoring and reporting of environmental quality on a regular basis,

…

  1. At the time of the offences, s 128 of the POEO Act provided as follows in relation to standards of air impurities not to be exceeded: [1]

    1. Protection of the Environment Operations Act 1997 (NSW) No 156, Historical version for 24 February 2023 to 13 July 2023; Historical version for 29 November 2021 to 3 March 2022; Historical version for 25 March 2021 to 28 November 2021.

128 Standards of air impurities not to be exceeded

(1) The occupier of any premises must not carry on any activity, or operate any plant, in or on the premises in such a manner as to cause or permit the emission at any point specified in or determined in accordance with the regulations of air impurities in excess of—

(a) the standard of concentration and the rate, or

(b) the standard of concentration or the rate, prescribed by the regulations in respect of any such activity or any such plant.

(1A) Subsection (1) applies only to emissions (point source emissions) released from a chimney, stack, pipe, vent or other similar kind of opening or release point.

(2) The occupier of any premises must carry on any activity, or operate any plant, in or on the premises by such practicable means as may be necessary to prevent or minimise air pollution if—

(a) in the case of point source emissions—neither a standard of concentration nor a rate has been prescribed for the emissions for the purposes of subsection (1), or

(b) the emissions are not point source emissions.

(3) A person who contravenes this section is guilty of an offence.

  1. At the time of the offences, the maximum penalty for an air pollution offence against s 128 was, in the case of a corporation, a penalty not exceeding $1,000,000: s 132(a).

  2. The 2021 Clean Air Regulation applied to the November 2021 offence and the March 2022 offence. The 2022 Clean Air Regulation applied to the May 2023 offence.

  3. Part 5 of the 2021 Clean Air Regulation concerns air impurities emitted from activities and plant. In Division 2 of Part 5 titled “Air impurities emitted from activities and plant”, cl 33 provided as follows (at relevant times) in relation to the general grouping of activities and plant:

33 General grouping of activities and plant

(1)  Subject to this Division, an activity carried out, or plant operated, on scheduled premises—

…

(e)  belongs to Group 5 if it commenced to be carried on, or to operate, on or after 1 August 1997 as a result of—

(i)  a pollution control approval granted under the Pollution Control Act 1970 pursuant to an application made on or after 1 August 1997 and before 1 July 1999, or

(ii)  an environment protection licence granted under the Protection of the Environment Operations Act 1997 pursuant to an application made on or after 1 July 1999 and before 1 September 2005, or

(f)  belongs to Group 6 if it commenced to be carried on, or to operate, on or after 1 September 2005, as a result of an environment protection licence granted under the Protection of the Environment Operations Act 1997 pursuant to an application made on or after 1 September 2005.

(2) Any activity or plant that would, but for this subclause, belong to Group 6 is taken to belong to Group 5 if it is the subject of a development consent in respect of which the EPA had given general terms of approval, within the meaning of section 4.50 of the Environmental Planning and Assessment Act 1979, before 1 September 2005.

  1. Clause 33 of the 2021 Clean Air Regulation sets out a series of conditions to determine within which group a “plant operated” falls. Here, the relevant plant was the surface exhaust fans attaching to VR8.1. As Cadia’s EPL was issued under the POEO Act, the only relevant groups for the purposes of cl 3.3 of the 2021 Clean Air Regulation are Group 5 and Group 6.

  2. The plant falls within Group 5 (cl 33(1)(e)) because:

  1. the plant meets the first condition of having commenced operations on or after 1 August 1997;

  2. the application for the EPL under which the plant operates was made in 2000; and

  3. cl 34 does not apply so as to change its grouping from Group 5 to Group 6.

  1. Clause 39(1)(c) of the 2021 Clean Air Regulation provided (at all relevant times) in relation to the prescribed standards of concentration for emissions of air impurities for the purposes of s 128(1) of the POEO Act:

39   Prescribed standards of concentration for air impurities

(1) For the purposes of section 128(1) of the Act, the prescribed standards of concentration for emissions of air impurities are-

…

(c) in relation to any activity or plant specified in Schedule 4, other than those covered by Schedule 2 or 3, the standards of concentration specified in Schedule 4 in relation to that activity or plant.

  1. Schedule 4 to the 2021 Clean Air Regulation provided, relevantly, that the standard of concentration for the air impurity “Solid particles (Total)” for “[a]ny activity or plant” was for Group 5, 100mg/m3.

  2. Part 5 of the 2022 Clean Air Regulation, which applies to the May 2023 offence, concerns air impurities emitted from activities and plant.

  3. In subdivision 2, titled “Scheduled premises”, s 43(1) of the 2022 Clean Air Regulation provided (at all relevant times) in relation to the groups with which an activity carried out, or plant operated, in scheduled premises belongs as follows:

43 Group to which activity or plant belongs

(1) An activity carried out, or plant operated, on scheduled premises belongs to—

(a) if the carrying on of the activity, or the operation of the plant, commences after the commencement of this Regulation-Group 6, or

(b) otherwise—the Group in which the activity or plant belonged immediately before the commencement of this Regulation, except as otherwise provided by this Subdivision.

Note— The groups in which activity or plant belonged originally was as follows—

…

(e) Group 5 —if it commenced on or after 1 August 1997 under—

(i) a pollution control approval, if the application for the approval was made on or after 1 August 1997 and before 1 July 1999, or

(ii) an environment protection licence if the application for the licence was made before 1 September 2005,

…

  1. Section 47 of the 2022 Clean Air Regulation is concerned with the group to which an emission unit belongs. Section 47(5) provides that the section does not affect the group to which plant associated with the emission unit belongs.

  2. An emission unit was defined, for the purposes of Division 1 of Part 5 of the 2022 Clean Air Regulation, as an item of plant that:

(a) forms part of, or is attached to, a larger plant, and

(b) emits, treats or processes air impurities, or controls the discharge of air impurities into the atmosphere.

  1. Section 52(1)(c) of the 2022 Clean Air Regulation provided (at all relevant times) in relation to the prescribed standards of concentrations for air impurities for the purposes of s 128 of the POEO Act as follows:

Standards of concentration for air impurities—Act, s 128

(1) For the Act, section 128(1), the prescribed standards of concentration for emissions of air impurities in relation to an activity carried on, or plant operated, at scheduled premises are—

…

(c) for an activity or plant specified in Schedule 2, Part 2, Division 3, other than those covered by Schedule 2, Part 2, Division 1 or 2-the standards of concentration specified in Schedule 2, Part 2, Division 3 in relation to the activity or plant.

  1. In Schedule 2 to the 2022 Clean Air Regulation, titled “Standards of concentration”, in Part 2 titled “Scheduled premises”, in Division 3 titled “General activities and plant” the standard of concentration for the air impurity “Solid particles (Total)” for “[a]n activity or plant” is relevantly specified for Group 5 as 100mg/m3.

  2. Section 241 of the POEO Act provides as follows in relation to the matters to be considered in imposing a penalty:

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,

(f) the presence of asbestos in the environment.

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

  1. The Dictionary to the POEO Act defines “environment” as meaning “components of the earth”, including, relevantly, “air”, as well as “any organic or inorganic matter and any living organism”. “[H]arm” to the environment is defined as “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”.

  2. The purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) are as follows:

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.

  1. Section 21A of the CSP Act identifies aggravating, mitigating and other factors for consideration in sentencing. The following subsections, as relevant, are extracted below:

21A   Aggravating, mitigating and other factors in sentencing

(1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters-

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c) any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

…

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(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 offender 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,

…

(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 or Division 1A),

…

(m) assistance by the offender to law enforcement authorities (as provided by section 23), …

  1. Section 22 of the CSP Act provides in relation to a guilty plea:

22 Guilty plea to be taken into account for offences not dealt with on indictment

(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.

…

  1. Section 6 of the Fines Act provides in relation to the means of the accused to pay any fine:

6 Consideration of accused's means to pay

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider-

(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

  1. Section 122 of the Fines Act provides in relation to the payment of a share of a fine to the prosecutor:

122   Payment of share of fine to prosecutor

(1)  This section applies where—

(a)  the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and

(b)  the prosecutor is not a police officer.

(2)  The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor.

(3)  For the purposes of this section, fine does not include an amount of the kind referred to in section 4 (1) (e) or (f).

Onus and standard of proof at sentencing

  1. A plea of guilty admits those matters which are the essence of the charge, or the legal “ingredients” of each of the offences. [2] It does not admit the non-essential ingredients of an offence. [3] It also does not relieve the prosecutor of its obligation to prove the facts on which it seeks to have the offender sentenced without the offender’s assistance. In GAS v The Queen [4] at [30], the High Court said as follows in relation to fact finding following a plea of guilty:

In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge’s capacity to find potentially relevant facts in a given case.

2. Maxwell v The Queen (1996) 184 CLR 501 at 508-510; [1996] HCA 46 (Dawson and McHugh JJ); Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 (Strbak) at 508-509 [32]-[33] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).

3. R v O’Neill [1979] 2 NSWLR 582 at 588 (Moffitt ACJ); cited in Ishac v The Queen (2011) 211 A Crim R 102 at 122 [28] (McColl JA, RS Hulme and Hislop JJ agreeing); Fairfield City Council v Oztech Developments Pty Ltd; Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81 (Oztech) at [48] (Robson J).

4. (2004) 217 CLR 198; [2004] HCA 22 at [30] (Gleeson CJ, Gummow J, Kirby J, Hayne J and Heydon JJ); cited in Lupton v The King [2024] NSWCCA 29 at [128] (Ierace J, Ward P and Button J agreeing); Environment Protection Authority v Laison [2015] NSWLEC 89 at [33] (Pain J).

  1. In relation to the standard of proof, a court may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. [5]

    5. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]-[28] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41] (Gleeson CJ); Strbak at [27]-[28] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); Assam v R [2019] NSWCCA 12 at [133] (Hoeben CJ at Common Law, Bathurst CJ and Price J agreeing); Mohr v R [2024] NSWCCA 197 at [27] (Bell CJ, Davies and Wright JJ agreeing); Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70 at [45] (Robson J).

  2. Where the prosecutor contends that a particular sentencing consideration should be treated as an aggravating factor it must establish by evidence, beyond a reasonable doubt, the presence of such aggravating factor. Where the defendants contend for the presence of a mitigating factor, it must be established on the balance of probabilities. [6]

    6. Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [131] (Pepper J).

Objective seriousness of the offence

  1. The objective seriousness of the offences is measured without reference to matters personal to the offenders. It is to be determined “wholly by reference to the nature of the offending”. [7] In determining the objective gravity or seriousness of the offences in this case, the circumstances to which the Court may have regard include: [8]

    7. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] (French CJ, Hayne, Heydon, Crennan, Kiefel and Bell JJ); cited in Tukuafu v The King [2024] NSWCCA 84 at [91] (Huggett J, Ward P and Chen J agreeing); Jones v R [2025] NSWCCA 28 at [65]-[67] (Leeming JA, Dhanji and Yehia JJ).

    8. Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 (Plath v Rawson) at [48] (Preston CJ of LEC); Oztech at [57] (Robson J); Burwood Council v Alam [2025] NSWLEC 2 at [53] (Duggan J).

  1. the nature of the offences;

  2. the maximum penalty for the offences;

  3. the harm caused to the environment by the commission of the offences;

  4. the defendant’s state of mind in committing the offences;

  5. the defendant’s reasons for committing the offences;

  6. the foreseeable risk of harm to the environment by the commission of the offences;

  7. the practical measures to avoid harm to the environment; and

  8. the defendant’s control over the causes of harm to the environment.

  1. I am also required to take into account the statutory matters in s 241 of the POEO Act set out above at [101]. Some of these factors overlap with the factors concerning objective seriousness set out at [111] immediately above.

Nature of the offences

Prosecutor’s submissions

  1. The prosecutor submitted that the “nature of the offending” is not confined to the ingredients of the offence, but may be taken to mean the fundamental qualities of the offence. [9] These include the physical acts of the offender and their effects or consequences, as well as circumstances personal to the offender which are objectively relevant because of their causal connection with the commission of the offence, such as the state of mind of the offender in committing the offence. [10]

    9. Williams v R [2012] NSWCCA 172 at [42] (Price J, Allsop P and Campbell J agreeing); cited in Environment Protection Authority v O’Brien [2025] NSWLEC 14 (EPA v O’Brien) at [33] (Robson J).

    10. R v Tuan Anh Tran [2011] NSWSC 1480 at [13] (Rothman J); R v Cotterill [2012] NSWSC 89 at [30] (McCallum J).

  2. The objective seriousness of an environmental offence is “illuminated by the nature of the statutory provision, contravention of which constitutes the offence, and its place in the statutory scheme” and “[a] proper understanding of the purpose of creating an offence is assisted by consideration of the objects of the statute”. [11] These objects, set out in s 3 of the POEO Act, are extracted above at [86]. A related consideration is the “degree by which, having regard to the maximum penalties by the statute in question, the offender’s conduct would offend against the legislative objective expressed in the statutory offence”. [12]

    11. Environment Protection Authority v Hanna (2018) 235 LGERA 114; [2018] NSWLEC 80 (EPA v Hanna) at [97] (Preston CJ of LEC).

    12. Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [15] (Preston CJ of LEC); EPA v O’Brien at [34] (Robson J).

  3. The prosecutor submitted that as the offences involved the emission into the air of impurities, the offences involved actual environmental harm. [13] The offences also involved actual harm in that they caused the deposition of mud within the premises in the immediate vicinity of VR8. In this way, the commission of the offences contravened the legislative intent of protecting the quality of the environment: s 3(a) of the POEO Act. [14]

    13. Environment Protection Authority v CPB Contractors Pty Limited [2019] NSWLEC 134 (EPA v CPB Contractors) at [41] (Pain J), citing Environment Protection Authority v Hunter Valley Energy Coal [2015] NSWLEC 120 at [17] (Pain J).

    14. Environment Protection Authority v Dial-A-Dump (EC) Pty Ltd (2024) 261 LGERA 103; [2024] NSWLEC 21 (EPA v Dial-A-Dump) at [80] (Pepper J).

  4. The 2021 Clean Air Regulation, and for the May 2023 offence the 2022 Clean Air Regulation, provided that, at the time of the offences, for plant such as VR8, the allowable standard of concentration for TSP was limited to 100mg/m3. The prosecutor submitted that the degree by which the offences exceeded that allowable standard of concentration was a relevant consideration in relation to the nature of the offending conduct, namely:

  1. during the November 2021 offence, TSP was sampled at a concentration that was more than two times the allowable limit (being 210mg/m3);

  2. during the March 2022 offence, TSP was sampled at a concentration that was more than three and a half times the allowable limit (being 360mg/m3); and

  3. during the May 2023 offence, TSP was sampled at various concentrations with a minimum of two times the allowable limit (being 200mg/m3) and a maximum of over five and a half times the allowable limit (being 570mg/m3).

Defendant’s submissions

  1. The defendant submitted that the authorities cited by the prosecutor in relation to the nature of the offences were concerned with analysis of the maximum penalty prescribed for the offence and the degree by which the offence committed offended against the statutory objective as reflected by that maximum penalty, relative to other offences in the statute. [15] Here, the relevant legislative objective is to address air pollution, but in the present case a significant volume of the sampled material was mud, which cannot remain suspended in air.

    15. See Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [90]-[96] (Preston CJ of LEC).

  2. The defendant submitted that the prosecutor takes the phrase “degree by which” used in the cases upon which it relies out of context where they refer to the degree by which the offences involved exceeding the prescribed standard of concentration. While it is factually correct that the "degree by which" the offences exceeded the prescribed standard of concentration at the sampling plane varied by differing degrees, this approach was of limited utility in characterising the nature of the offences here. It should not be assumed, having regard to the location of the sampling plane (described above at [62]), that the sampled concentrations of TSP measured within VR8 were emitted into the atmosphere. The sampling method used by Ektimo resulted in the collection of a significant amount of material in the form of mud globules, and the disaggregated concentration of TSP sampled exceeded the prescribed standard of concentration at the sampling plane.

  3. The defendant submitted that the offending should be regarded as of low objective seriousness, having regard in particular to the degree of harm to the environment (whether actual, likely or potential), that the Court would not accept that the defendant was reckless at the time of any of the offences (the prosecutor having conceded on recklessness at the hearing), and the limited practical measures available to the defendant at the time of the offending falling within s 241(1)(b) of the POEO Act, including due to an absence of reasonable foreseeability of the offending (s 241(1)(c) of the POEO Act), at least at the time of the first two offences.

Maximum penalty

  1. The maximum penalty for a statutory offence serves as an indication of the seriousness of the offence and a “yardstick” against which to measure the relevant features of the offence for which the defendant is to be sentenced. [16] Careful attention to maximum penalties will almost always be required because, amongst other things, they invite comparison between the worst possible case and the case before the court at the time. [17]

    16. Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280 (Baida) at [24] (Preston CJ of LEC). In Baiada, Preston CJ of LEC said at [24] that at the time of commission of the offence there charged, the maximum penalty for a breach of s 120(1) of the POEO Act was $1,000,000: s 123(a). This maximum penalty was raised from $250,000 as and from 1 May 2006. The chief judge commented that this high maximum penalty reflects the seriousness with which Parliament views the offence.

    17. Muldrock v The Queen at [31] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Elias v The Queen at [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Harrison v Perdikaris [2015] NSWLEC 99 at [49] (Preston CJ of LEC); Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; (1993) 82 LGERA 21 (Camilleri’s Stock Feeds) at 36 (Kirby P) (Campbell and James JJ agreeing).

  1. The importance of general deterrence in sentences for environmental offences was reiterated by Bellew J (Gleeson JA and Hamill J agreeing) in EPA v Grafil at [108], where his Honour referred to and endorsed the Court of Criminal Appeal’s previous statement that there is a legal imperative to include general deterrence in sentence assessment.

  2. In relation to specific deterrence, the prosecutor submitted that there is, here, a need for specific deterrence. The prosecutor submitted that the defendant operates one of Australia’s largest gold mining operations, and that the penalties imposed should ensure that its future activities are conducted in accordance with the POEO Act so as not to cause pollution: cf EPA v Elf Farm Supplies at [97] (Sheahan J). [45]

    45. Environment Protection Authority v Robinson [2004] NSWLEC 629 at [31] (Lloyd J).

  3. The defendant submitted that general deterrence beyond that which promotes the objects of the POEO Act is not required; in other words, there is nothing about the facts of the offences here that give rise to a greater need for general deterrence than other breaches of s 128(1)(b) of the POEO Act.

  4. In relation to specific deterrence, the defendant submitted that it was not an instance of a defendant "neglecting" its responsibility to conduct its business in such a manner as not to cause pollution. [46] The defendant commenced taking a series of actions to bring the emission of TSP emissions from VR8 below the prescribed standard of concentration by October 2022, having received the air quality audit in August 2022. The defendant engaged ANSTO to independently investigate and monitor air quality over a period of a year, notwithstanding that there was no exceedance of the project approval 24-hour impact assessment criteria for PM10 or (after it started to be measured) PM2.5 at any of the defendant’s monitoring locations. Specific deterrence was not required in order to encourage the defendant to comply with the law.

    46. EPA v Elf Farm Supplies at [100] (Sheahan J).

  5. In arriving at the penalties to be imposed here, I will take into account the importance of general deterrence in sentencing for environmental offences in accordance with the authorities set out above at [188]-[189].

  6. In relation to specific deterrence, I have found that the defendant commenced taking a series of actions to bring the emission of TSP emissions from VR8 below the prescribed standard of concentration by October 2022, having received the air quality audit in August 2022. In the circumstances, I am not satisfied that that there is anything about the facts of the offences that gives rise to a need for specific deterrence to encourage the defendant to comply with the law.

Even-handedness and consistency in sentencing

  1. Consistency of sentencing is important; but the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. [47] In seeking consistency, judges must have regard to what has been done in other cases which may establish a range of sentences which have been imposed. [48] However, that history does not establish that the sentences which are imposed mark the outer bounds of the permissible discretion. [49] The history stands as a yardstick against which to examine a proposed sentence. [50] 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”. As the chief judge observed in Environmental Protection Authority v Ditchfield Contracting Pty Ltd [51] at [72], the more appropriate yardstick against which the sentence should be compared is the penalty set by Parliament, rather than the amount of fines imposed in past cases.

    47. Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at 535 [48]-[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

    48. Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 (Barbaro) at [40] (French CJ, Hayne, Kiefel and Bell JJ).

    49. Barbaro at [41] (French CJ, Hayne, Kiefel and Bell JJ).

    50. Hili at [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

    51. [2018] NSWLEC 90 at [72] (Preston CJ of LEC).

  2. The prosecutor was not aware of any previous cases decided under s 128(1) of the POEO Act, and submitted that there were therefore no directly comparable cases to which the Court might have regard. The predecessor to s 128(1) of the POEO Act was s 15(1) of the Clean Air Act 1961 (NSW) for scheduled premises, and s 19(1) of that Act for non-scheduled premises. The prosecutor was not aware of any cases decided under those two provisions.

  3. One case decided under s 128(2) of the POEO Act was Environment Protection Authority v Unomedical Pty Limited (No 4) [52] (Unomedical). Section 128(2) of the POEO Act provided as follows:

(2) The occupier of any premises must carry on any activity, or operate any plant, in or on the premises by such practicable means as may be necessary to prevent or minimise air pollution if—

(a) in the case of point source emissions—neither a standard of concentration nor a rate has been prescribed for the emissions for the purposes of subsection (1), or

(b) the emissions are not point source emissions.

52. [2011] NSWLEC 131 (Pepper J).

  1. In Unomedical, the maximum applicable penalty was, as here, $1,000,000. The defendant was sentenced under s 128(2) of the POEO Act for an offence arising from the sterilisation of medical instruments and equipment that resulted in the emission of a carcinogenic (ethylene oxide). The defendant had failed to implement some form of an abatement system, for example, the installation of a catalytic converter (being a “practicable means”). Pepper J at [97] concluded that the offence was of low objective gravity, and at [111] that the harm was not substantial. Mitigating factors included the defendant’s lack of prior convictions, its good character, its assistance to authorities, and that it was unlikely to reoffend: at [100]-[101], [106]-[110] and [112]. The defendant neither pleaded guilty, nor expressed remorse: at [102]-[103]. Pepper J gave a discount of 15% in recognition of the “not immaterial utilitarian benefit of Unomedical's cooperation – notwithstanding the absence of a guilty plea”, imposed a fine of $90,000, made an order for the prosecutor’s costs of the proceeding, and made a publication order.

  2. In relation to Unomedical, the defendant submitted that a significant point of distinction was that the offending there was not discrete, but occurred on multiple occasions and over a significant period of time which “augmented” its objective seriousness: Unomedical at [51]. Further, in Unomedical, the defendant neither pleaded guilty nor expressed remorse, and the Court imposed a fine of $90,000, which the defendant submitted to be of “some use as a comparator”.

  3. In arriving at the penalties here, I have had regard to the importance of even-handedness and consistency in sentencing. Whilst I have not identified any case decided under s 128(1) of the POEO Act or its predecessor provisions under the Clean Air Act, the facts here are materially different and objectively less serious than those the subject of the penalty imposed in Unomedical for an offence against s 128(2) of the POEO Act.

Totality

  1. The totality principle is applicable where a court imposes more than one non-custodial sentence, or a mixture of different non-custodial sentences, or imprisonment is imposed with an additional penalty or order, although “it may be that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation”: Camilleri's Stock Feeds at 704 (Kirby P). In ACE Demolition at [111], Leeming JA (Garling and Cavanagh JJ agreeing) said that “the principled approach…is to leave questions of totality to the end, and apply a final check of the aggregate against whether it is a just and appropriate punishment for the entire criminality”.

  2. The defendant pleaded guilty to three offences, and accordingly the maximum penalty to which it could be subject is $3,000,000. As a matter of principle, totality and the need for the Court to avoid a “‘crushing sentence’ not in keeping with [the offender’s] record and prospects” [53] aim to ensure that the amount of any fine ordered is proportionate to the offending and not unjustifiably excessive. Here, the offences were discrete, and did not overlap in time. For that reason, the prosecutor submitted that the Court would be careful in applying the totality principle to adjust the total amount of any fines ordered by way of “final check” relying on ACE Demolition at [108]-[111] (Leeming JA) (Garling and Cavanagh JJ agreeing).

    53. Postiglione v The Queen (1997) 189 CLR 295 at 304; [1997] HCA 26 (Dawson and Gaudron JJ, Kirby J concurring, McHugh and Gummow JJ dissenting) citing Thomas, Principles of Sentencing, 2nd ed (1979) 57-58. See also, on the application of the totality principle to fines, Camilleri’s Stock Feeds at 704 (Kirby P); EPA v Barnes at [43]-[50] (Kirby J, Mason P and Hoeben J agreeing); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at [118] (Dowsett, Greenwood and Wigney JJ).

  3. The defendant submitted that the Court of Criminal Appeal was clear in ACE Demolition at [108]-[111] that the principle of totality applies to fines. The fact that the offences do not overlap in time did not reduce the applicability of the need to consider the aggregate sentence, in accordance with the “principled approach” referred to by Leeming JA.

  4. In arriving at the total penalties I have decided to impose in relation to the three offences here, I have had regard to the totality principle by way of “final check” of the aggregate against whether it is a just and appropriate punishment for the entire criminality, noting that the offences were discrete and did not overlap in time.

Capacity to pay a fine: s 6 of the Fines Act

  1. In exercising my discretion to fix the amount of any fine, I am required to consider such information regarding the means of the accused as is reasonably and practicably available to the court for consideration and such other matters as, in the opinion of the court, are relevant to the fixing of that amount (s 6(a) and (b) of the Fines Act).

  2. The defendant filed no evidence in relation to its means to pay any fine. Accordingly, in arriving at the penalties to be imposed here, I have taken into consideration that there was no evidence before me about the means of the defendant to pay the amount of any fine.

The “instinctive synthesis approach” and the appropriate penalties to be imposed

  1. In determining sentence, the Court must apply the instinctive synthesis approach which seeks to identify all relevant objective and subjective circumstances to reach a judgment on the appropriate sentence. [54] The determination of an appropriate sentence is to be undertaken bearing in mind what Preston CJ of LEC said at [162] in Bentley:

[a] sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances

54. Markarian v The Queen (2005) 228 CLR 357; [2025] HCA 25 at [70] (McHugh J), at [37]-[39] (Gleeson CJ, Gummow, Hayne and Callinan JJ) quoting Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [75] (Gaudron, Gummow and Hayne JJ); cited in Chief Executive, Office of Environment and Heritage v Kurstjens Onroerend Goed AU B.V.; Kurstjens; Beefwood 1 Pty Ltd; Beefwood 2 Pty Ltd [2024] NSWLEC 140 at [45] (Robson J).

  1. Here, synthesising all the relevant objective and subjective circumstances of the three offences and the offender, and considering the relevant purposes of sentencing, the maximum penalty of $1 million for each of the offences set by Parliament, and the check or yardstick provided by Unomedical referred to at [197]-[199] above, and before applying the principle of totality, I determine as follows:

  1. In relation to the March 2022 offence, Cadia would be sentenced a monetary penalty in the amount of $150,000.

  2. In relation to the November 2021 offence, Cadia would be sentenced a monetary penalty in the amount of $150,000.

  3. In relation to the May 2023 offence, Cadia would be sentenced a monetary penalty in the amount of $200,000.

  1. This would produce a total of $500,000 for the three offences.

  2. I would discount this sum by 25% having regard to Cadia’s early plea, and a further 5% having regard to the other mitigating factors set out above at [184(1)]-[184(4)].

  3. Applying the totality principle, and noting the offences were discrete and did not overlap in time, this produces a penalty in the amount of $350,000 for the three offences.

Additional orders sought

Publication order: s 250(1)(a) of the POEO Act

  1. The prosecutor seeks a publication order pursuant to s 250(1)(a) of the POEO Act in the form set out in Annexure B to the prosecutor’s proposed orders on sentence.

  2. In Environment Protection Authority v Crown in the Right of New South Wales [55] at [84], Duggan J set out the principles applicable to whether a publication order should be made:

    55. [2019] NSWLEC 178 at [84] (Duggan J); applied in Georges River Council v SAF Developments Pty Ltd [2023] NSWLEC 50 at [143] (Pepper J).

(1) The Court has a wide discretion as to whether to impose a publication order and the POEO Act does not identify, in terms, the circumstances in which such an order should or should not be made: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [36];

(2) Publication orders assist in serving a deterrent purpose in environmental crimes: EPA v Waste Recycling Corporation (2006) 148 LGERA 299. Such a notice informs or reminds the public that such an offence exists, and may add some “sting” to the imposition of a fine. The objectives of general and specific deterrence are thus satisfied: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [163]. A publication order operates as a message to the community that a holder of an EPL is under a heightened responsibility to ensure that their operations are conducted in accordance with the conditions of such licence: Environment Protection Authority v Biosolids Management Pty Limited [2004] NSWLEC 90;

(3) Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma: Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 at [242];

(4) Because a publication order is made in addition to, rather than instead of, any penalty, it ought not be considered in determining the quantum of any monetary penalty to be imposed (Environment Protection Authority v Incitec Ltd; (2003) 131 LGERA 176 at [58]-[59]);

(5) If an order under s 250(1)(e) is imposed a publication order ought be made because it is important to publicise to the community at the time such an order is made that any works being undertaken are as a result of committing an offence: Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732 at [141];

(6) Existing adverse publicity in the media or an intention to self-publicise a conviction will not necessarily preclude the making of a publication order: Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160 at [104];

(7) The circumstances of the case may dictate that the interests of justice and the purpose of the publication will not be served if publication is ordered such as: where the offence is a first offence and the harm and objective seriousness of the offence is low; where publication of the offence is likely to confuse or mislead the reader in light of the substance earlier Court ordered publication: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [41]; Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd [2007] NSWLEC 466 at [169];

(8) Such an order is no less appropriate because the offences have been found to be of a low level of objective seriousness: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [164].

  1. Applying the principles set out by Duggan J, I consider it appropriate to make a publication order in the form sought by the prosecutor for the following reasons:

  1. A publication order would serve the objective of general and specific deterrence and inform the community that the defendant, as the holder of an EPL under the POEO Act, had obligations to ensure that its operations are carried out in accordance with the POEO Act. The proposed “mediums” of publication are appropriate in order to expose the offences and sentencing outcome to industry, the general public and the local community.

  2. A publication order is particularly appropriate in the case of a corporate offender.

  3. Such an order is no less appropriate because the November 2021 and March 2022 offences have been found to be of a low level of objective seriousness, and the May 2023 offence to have been found to be in the low to mid range of objective seriousness.

Environmental service order: s 250(1)(e) of the POEO Act

  1. The prosecutor seeks an environmental service order (ESO) pursuant to s 250(1)(e) of the POEO Act for the defendant to pay a specified amount to a specified organisation for a specific project for general environmental purposes as follows:

  1. The defendant is ordered to pay $[insert amount], within 28 days to the Rural Air Quality Monitoring Network, managed by the Department of Climate Change, Energy, the Environment and Water, to assist with the purchasing and installation of a new DustTrack system in Mudgee as described in Annexure A of the Prosecutor’s Proposed Orders on Sentence.

  1. At the hearing the parties handed up an agreed environmental service order. I will make an order in the terms proposed.

Professional costs

  1. The prosecutor seeks an order for its legal costs pursuant to s 257B of the Criminal Procedure Act, as agreed or assessed pursuant to s 257G of that Act. The defendant does not oppose an order for the prosecutor's costs as agreed or assessed. As the chief judge observed in Environment Protection Authority v Hardt [56] at [66], “the total penalty that is imposed upon an offender should also take into account any order against the defendant for payment of the prosecutor's costs”. [57]

    56. [2007] NSWLEC 284 at [66] (Preston CJ of LEC); applied in EPA v P&M at [105]-[107] (Robson J). Cf Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17 at [84] (Robson J).

    57. Citing EPA v Barnes at [78] and [88] (Kirby J) (Mason P and Hoeben J agreeing).

  2. In oral submissions, Ms Davidson for the defendant submitted that the estimate of the prosecutor’s costs is $211,857 excluding the costs of the sentence hearing. Ms Davidson submitted that it would be reasonable for the Court to take into account that the prosecutor’s costs will be in excess of $200,000.

  3. I will make an order for the prosecutor’s professional costs as agreed or as may be determined under s 257G of the Criminal Procedure Act.

Moiety

  1. The award of a moiety to a prosecutor is discretionary. [58] One circumstance justifying the making of an order for a moiety is when a prosecutor does not have an independent right to recovery of investigation costs. [59] However, the existence of an independent right to recovery of investigation costs does not without more disentitle the prosecutor to a moiety: AGL Energy at [154]-[155] (Moore J).

    58. Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 at [157] (Moore J).

    59. Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 (AGL Energy) at [143] (Moore J); citing Secretary, Department of Planning and Environment v Boggabri Coal [2014] NSWLEC 154 at [62] (Preston CJ of LEC); applied in Environment Protection Authority v Whites Timber Products Pty Ltd; Environment Protection Authority v White’s Haulage Pty Ltd [2024] NSWLEC 135 at [216] (Pain J).

  1. The prosecutor seeks an order under s 122 of the Fines Act that half of the monetary penalty imposed on the defendant be paid to the EPA. This would be exclusive of any amount the defendant is required to pay for the purposes of an ESO pursuant to s 250(1)(e) of the POEO Act. The defendant did not oppose an order under s 122 of the Fines Act directing the payment of a moiety to the prosecutor.

  2. I will make such an order.

Orders

  1. In light of the preceding reasons, the Court makes the following orders:

In proceedings 2023/323614:

  1. The defendant is convicted of an offence against s 128(1)(b) of the Protection of the Environment Operations Act 1997 (NSW) (the November 2021 offence).

In proceedings 2023/261675:

  1. The defendant is convicted of an offence against s 128(1)(b) of the Protection of the Environment Operations Act 1997 (NSW) (the March 2022 offence); and

In proceedings 2023/323615:

  1. The defendant is convicted of an offence against s 128(1)(b) of the Protection of the Environment Operations Act 1997 (NSW) (the May 2023 offence).

In proceedings 2023/323614, 2023/261675 and 2023/323615:

  1. For the three offences in relation to which the defendant is convicted, the defendant is to pay a penalty in the total amount of $350,000, being $150,000 for the November 2021 offence, $150,000 for the March 2022 offence, $200,000 for the May 2023 offence, which amounts have been reduced by 25% in light of the pleas of guilty entered on 29 September 2023 and 24 November 2023, and by a further 5% in light of other mitigating factors.

  2. Pursuant to s 122 of the Fines Act 1996 (NSW), 50% of the penalty imposed on the defendant pursuant to order (4) above is to be paid to the prosecutor as a moiety.

  3. Pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997 (NSW), the defendant is ordered to pay within 28 days of these orders an amount of $61,500 to the Department of Climate Change, Energy, Environment and Water for the Rural Air Quality Monitoring Network for a new DustTrack system located in Mudgee NSW, as described in Annexure A.

  4. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), at its own expense, the defendant within 28 days of the date of these orders is to cause a notice at a minimum size of 12cm by 15cm to be published within the first 10 pages of the following publications (or as close to the first 10 pages as can be accommodated having regard to the editorial requirements of the newspaper) with the text as set out in Annexure B to these orders:

  1. The Australian Financial Review;

  2. Daily Telegraph; and

  3. Central Western Daily.

  1. Pursuant to s 250(1) of the Protection of the Environment Operations Act 1997 (NSW), the defendant, at its own expense:

  1. within 14 days of the date of these orders, is to publicise the offences of which it is convicted and these orders by causing the text of Annexure C to these orders to be posted on the Newmont Australia Facebook wall, together with a hyperlink to the Court’s judgment as published on the New South Wales Caselaw website and tagging the Environment Protection Authority in the post. The Facebook post is to be made between the times of 8am and 10am or between 4:30pm and 6:30pm (Australian Eastern Standard Time) on a weekday. The post must remain a pinned post on Facebook that remains at the top of the Newmont Australia Facebook wall for a minimum of 7 days; and

  2. within 14 days of the date of these orders to publicise the offences of which it is convicted and these orders by causing a link to the Facebook post set out in order 6(a), together with a hyperlink directly to the Court’s judgment as published on the New South Wales Caselaw website and tagging the Environment Protection Authority to be posted on the Newmont Australia X account (formerly known as Twitter). The post on X is to be made between the times of 8am and 10am or between 4:30pm and 6:30pm (Australian Eastern Standard Time) on a weekday. The post must remain a pinned post on X that remains at the top of the Newmont Australia X feed for a minimum of 7 days.

  1. Within 7 days of the date of publication of the notices referred to in orders (7) and (8), the defendant is to provide the prosecutor with a complete copy of the notices published pursuant to those orders.

  2. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s legal costs as agreed or assessed pursuant to s 257G of that Act.

**********

Annexure A (4569245, pdf)

Annexure B (38483, pdf)

Annexure C (35513, pdf) ​​​​​​​

Endnotes

Decision last updated: 31 March 2025

Most Recent Citation
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Cases Cited

87

Statutory Material Cited

8

ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4
ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4
Assam v R [2019] NSWCCA 12