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Environment Protection Authority v Centennial Newstan Pty Ltd

Environment Protection Authority v Centennial Newstan Pty Ltd

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Case Copied 25 October 2010 53 min read

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NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211

PARTIES:
PROSECUTOR
Environmental Protection Authority

DEFENDANT
Centennial Newstan Pty Ltd

FILE NUMBER(S):
50039 of 2009

CATCHWORDS:
ENVIRONMENTAL OFFENCES :- sentence – factors to be taken into account on sentencing – pollute waters – discharge over five days of sediment-laden waters from pipeline leading from underground coal mining site into creek – prior conviction for similar offence – early plea of guilty – general and specific deterrence – appropriate to make alternative order in lieu of fine – order to pay specified amount for purposes of local ecosystem enhancement program – publication order

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 s 3A, 21A, s 23
Protection of the Environment Operations Act 1997 s 3, s 120, s 241, s 248(1), s 250
Threatened Species Conservation Act 1995

CASES CITED:
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71
Environment Protection Authority v Fulton Hogan Pty Ltd [2008] NSWLEC 268; (2008) 163 LGERA 345
Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732
Environmental Protection Authority v Snowy Hydro [2008] NSWLEC 264; (2008) 162 LGERA 273
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v McNaughton (2006) 66 NSWLR 566
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Veen v The Queen (No.1) [1979] HCA 7; (1979) 143 CLR 458
Veen v The Queen (No. 2) (1988) 164 CLR 465

CORAM:
Craig J

DATES OF HEARING:
5 May 2010

JUDGMENT DATE:
25 October 2010

LEGAL REPRESENTATIVES

PROSECUTOR
G B Furness (Barrister)
SOLICITORS
Gordon Plath, Department of Environment, Climate Change and Water

DEFENDANT
N J Williams SC
SOLICITORS
Blake Dawson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
CRAIG J
25 October 2010
50039 of 2009 Environment Protection Authority v Centennial Newstan Pty Ltd

JUDGMENT

HIS HONOUR: The Newstan Colliery at Fassifern, south of Newcastle, is a colliery of some antiquity. Underground coalmining has been undertaken at the Newstan mine since 1887. Under its present stewardship, mining has ceased but that only occurred in April 2009.
In August 2008, longwall mining at Newstan was proceeding. It was then that an incident occurred, resulting in the pollution of an unnamed creek, the waters of which ultimately flow into Lake Macquarie.
The defendant, Centennial Newstan Pty Ltd, is presently, and was at the time of the incident, the owner and operator of the Newstan Colliery. It has pleaded guilty to an offence against s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 211
Decision Date: 25 October 2010

CaseChat Overview and Summary

This case involved an appeal against sentence by the defendant, a mining company, which had pleaded guilty to an offence under the Protection of the Environment Operations Act 1997 (POEO Act) for polluting waters. The defendant was found guilty of allowing sediment-laden water to discharge from a pipeline into an unnamed creek, which subsequently flowed into Stony Creek, causing environmental harm. The Land and Environment Court had to determine an appropriate penalty for the offence, taking into account the objective and subjective circumstances of the case. The court considered the objective gravity of the offence, including the extent of environmental harm, the practical measures that could have been taken to prevent harm, the foreseeability of the risk of harm, and the extent of control the defendant had over the causes of the offence. The court also considered subjective factors, such as the defendant's prior conviction for a similar offence, its early guilty plea, expressions of contrition and remorse, and its co-operation with authorities. After weighing all the relevant factors, the court determined that an appropriate penalty would be a fine of $150,000, subject to a discount of 30% due to the defendant's early guilty plea, resulting in a penalty of $105,000. The court also ordered the defendant to contribute to a local ecosystem enhancement program in lieu of the fine, pay the prosecutor's costs and investigation expenses, and make a publication order to inform the public of the offence and the penalty imposed.

The court's decision reflects the importance of considering both the objective and subjective circumstances of an offence when determining an appropriate penalty. The court emphasised the need for general and specific deterrence, as well as the importance of considering the environmental harm caused by the offence and the measures that could have been taken to prevent it. At the same time, the court recognised the mitigating factors presented by the defendant, such as its expressions of remorse, its co-operation with authorities, and its efforts to improve its environmental performance. The court's decision also highlights the importance of considering the principle of parity in sentencing, taking into account the general pattern of sentencing for similar offences and the specific circumstances of the case. Overall, the court's decision demonstrates a balanced approach to sentencing in environmental cases, taking into account the need to protect the environment and deter future offences, while also considering the circumstances of the offender and the harm caused by the offence.

Orders