Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd

[2017] NSWLEC 64

Land and Environment Court

New South Wales

Medium Neutral Citation:	Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64
Hearing dates:	13 and 14 March 2017; further written material 24 March 2017
Date of orders:	31 May 2017
Decision date:	31 May 2017
Jurisdiction:	Class 5
Before:	Moore J
Decision:	Orders at [205]
Catchwords:	PROSECUTION – pollution of waters – plea of guilty – agreed facts demonstrate plea appropriate – discharge into watercourse – discharge for short period – discharged wastewater highly polluted – whether discharge caused death of five cattle – discharge did cause death of cattle – extent of harm caused by discharge substantial – whether aggravating factor – held to be aggravating factor – assessment of seriousness of the offending conduct – offending conduct significantly above the midpoint of the range of seriousness for such offences PROSECUTION – breach of Environment Protection Licence condition– plea of guilty – agreed facts demonstrate plea appropriate – failure of valve on wastewater transfer pipe – failure caused discharge of the wastewater in the first prosecution – assessment of seriousness of the offending conduct – offending conduct somewhat below the midrange of seriousness of offences of this type PENALTIES – discount for early plea – starting penalty of $650,000 for water pollution offence and of $100,000 for licence condition breach offence – total discount of 33% appropriate (including discount for the early guilty pleas) PENALTIES – appropriate to have regard to aggregation and totality when considering both offences – application of appropriate principle to derive penalties results in penalty of $400,000 for the water pollution offence and $60,000 for the licence breach offence PENALTIES – publication order – utility of publication order for general deterrence – no agreement between parties as to terms of notice for publication – terms of notice set having regard to but not adopting competing versions – deterrent effect of requiring publication in national media – order made requiring notices to be produced in one national, one regional and one local paper – order made specifying size and manner of publication – order made requiring notices to be filed with the Court as well as provided to the Prosecutor
Legislation Cited:	Protection of the Environment Operations Act 1995, ss 3, 3A, 64(1), 120(1), 123, 241, 250 Crimes (Sentencing Procedure) Act 1999, ss 21A, 22
Cases Cited:	Barca v R (1975) 133 CLR 82; [1975] HCA 42 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Wambo Coal Pty Limited (ACN: 000 668 057) [2016] NSWLEC 125 Environment Protection Authority v Waste Recycling and Processing Company 148 LGERA 299; [2006] NSWLEC 419 EPA v Barnes [2006] NSWCCA 246 Markarian v The Queen 228 CLR 357; [2005] HCA 25 R v Thompson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309 Plath v Rawson 170 LGERA 253; [2009] NSWLEC 178 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 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:	Principal judgment
Parties:	Environment Protection Authority (Prosecutor) Dyno Nobel Asia Pacific Pty Ltd (Defendant)
Representation:	Counsel: Mr S Rushton SC (Prosecutor) Mr T Howard SC (Defendant)   Solicitors: Office of Environment & Heritage (Prosecutor) King & Wood Mallesons (Defendant)
File Number(s):	147872 and 147999 of 2016
Publication restriction:	No

TABLE OF CONTENTS

Introduction

Wastewaters and the dams

The Relining Project and moving of the Transfer Pipe

The defects in the maintenance regime and system design

The pollution incident

The polluted nature of the wastewater

The consequences of the wastewater discharge

The charges

The maximum penalties

The Statement of Agreed Facts

The guilty pleas

The legislation

The hearing

The evidence

The witnesses

Initial observations on the evidence

The evidence of Dr Pablo and Mr Sutherland

Associate Professor House’s evidence

The cattle deaths

Introduction

The Prosecutor's written submissions

Associate Professor House’s evidence in detail

The Prosecutor’s oral submissions on the death of the cattle

The Company's submissions on the death of the cattle

The Prosecutor’s reply submissions on the death of the cattle

Conclusion on causation of the cattle deaths

The suffering of the cattle in dying

The factors requiring analysis

General introduction

An aggravating factor

The relevant objective and subjective factors

Introduction

Objective factors

The maximum penalties

Environmental harm

Introduction

Actual harm

Potential harm to the environment

Foreseeability of risk of harm to the environment

Control over the causes of the harm

Conclusion on harm/environmental harm

Practical measures the Company could have taken to prevent the offences

The downstream damage

Financial gain

Subjective factors

Introduction

Prior offences

The Company is a good corporate citizen

Likelihood of reoffending

Contrition and remorse

Introduction

Rectification

Reporting of the offence

Addressing the causes of the offence

Corporate apology and regret

Reparation

Conclusion on contrition and remorse

The Company’s pleas of guilty

Assistance to the Prosecutor

The sentencing process

Other potentially relevant offences and sentences

The objective seriousness of the offences

Sentencing

Introduction

Tier 2 offences

The Prosecutor's costs

Fitting in a range

The water pollution offence

The licence offence

The starting point

The benefit to the Company of its guilty pleas

The appropriate overall discount

Accumulation and totality

A publication of notice recording the Company’s conviction and sentence

The terms of a publication notice

Publications to be included

Size of the notices

Positioning of the notice

Provision of copies of the advertisement

Conclusion

Orders

Annexure A

Judgment

Introduction

1. Dyno Nobel Asia Pacific Pty Limited (“the Company”) is an Australian Company and a wholly owned subsidiary of Incitec Pivot Limited. The Company undertakes chemical manufacturing under an Environment Protection Licence (the EPL) issued by the Environment Protection Authority (the EPA) pursuant to the Protection of the Environment Operations Act 1995 (“the POEO Act”).

2. The Company manufactures ammonium nitrate emulsions at its premises at Warkworth (“the Site”) and handles and stores a range of hazardous goods for this purpose. These are scheduled activities of “chemical production” and “chemical storage” for the purposes of the POEO Act. They are authorised at the Site under the EPL. In the course of carrying out the Company’s licensed activities, wastewaters are generated.

Wastewaters and the dams

3. Wastewater, along with stormwater, was captured and stored in two dams at the Site, known as Old Dam and New Dam. Water in Old Dam could be transferred to New Dam by operating a pump (“the Pump”), which pumped the water through an above ground plastic pipe (“the Transfer Pipe”) between the two dams. One end of the Transfer Pipe was positioned in Old Dam, the discharge end of the Transfer Pipe was ordinarily positioned in New Dam, and the Pump only pumped water in one direction, from Old Dam to New Dam.

4. Connected to the Transfer Pipe was an evaporation spray recirculation system (“the Evaporation Spray”) to increase evaporation of the water in Old Dam. The Evaporation Spray was connected to the Transfer Pipe by a butterfly valve (“the Valve”).

5. The Evaporation Spray operated only when the Pump was operating and the Valve was closed (to stop the water flowing into the Transfer Pipe and out the discharge end of the Transfer Pipe). The Valve being closed whilst the Pump was operating allowed the water to be forced through the Evaporation Spray rather than flowing through the Transfer Pipe.

The Relining Project and moving of the Transfer Pipe

6. The Company commenced a project at the Site around January 2015 to reline and repair New Dam (“the Relining Project”). During the Relining Project, contractors were engaged by the Company to carry out certain works such as excavation and relining.

7. On 15 January 2015, an employee of one Relining Project contractor removed the discharge end of the Transfer Pipe from New Dam and placed it on the ground in the field between the dams to enable machinery to access New Dam. The discharge end of the Transfer Pipe was moved to a busy area of the premises where long grass obscured the visibility of the Transfer Pipe from the Pump. The removal of the discharge end of the Transfer Pipe was not communicated to the Site Manager at the time employed by the Company, nor to any other company personnel.

The defects in the maintenance regime and system design

8. Relevant to the adequacy or otherwise of the Company’s maintenance regime and system design, the Statement of Agreed Facts records, at [11], [13] and [14]:

11.   At all relevant times, there were no alarms or other fault-detection mechanisms connected with the Pump, Transfer Pipe or Valve, as the system was a relatively simple system based on a pump, pipes and valves, manually operated.

12. …

13.   The Evaporation Sprays were regularly used prior to the installation of New Dam in 2011. The Evaporation Sprays have been rarely used since this time and, prior to the incident, had not been used for around 12 months.

14.   The Valve was not part of the Premises’ routine inspection and maintenance schedule, and consequently had not been inspected or maintained for at least 5 years.

9. However, the written submissions from Mr Howard SC, counsel for the Company, concerning the Valve failure were (footnotes omitted):

27.   Secondly, the discharge would not have occurred had the valve on the transfer pipe near the Old Dam not failed.

28.   The valve in question was a simple valve, manually operated to open up or close off flow of wastewater through the transfer pipe. The evidence is that: (a), on 18 February 2015, prior to the pump being activated to utilise the evaporation sprays in the Old Dam to attempt to reduce its water level, Mr Saxby closed the valve, checked it for leaks and did not see any; and (b), Mr McMahon, an employee of the contractor acting on Mr Bodnar's instructions, was requested by Mr Bodnar on Friday 20 February 2015 to turn the pump off for the weekend; and (c), Mr McMahon must have turned the pump off as he was requested to do, as it is an agreed fact that he switched the pump on again on Monday 23 February 2015, without touching the valve or changing the valve setting.

29.   Thus the valve, which had been placed in the closed position by Mr Saxby on 18 February 2015, was left in the closed position throughout the whole of the relevant transaction.

30.   At some stage during this period, the valve failed, evidently without any visible sign of the failure at the location of the valve.

31.   It is an agreed fact that the inspection and maintenance of the valve in question was not part of the routine inspection and maintenance regime at the Warkworth Facility and consequently had not been inspected or maintained for at least 5 years. However it is also an agreed fact that “[i]nvestigations had not been able to determine conclusively what was the cause of the failure of the valve".

32.   There is no evidence as to the cause of the failure of the valve or even as to the likely cause of the failure of the valve. There is thus no evidentiary foundation to support the proposition that the valve failed as a result of any maintenance failure or by reason of any fault or omission on the part of the defendant. Nor is there evidence to establish that the defendant ought reasonably to have foreseen that a simple manual valve of this type would fail, or fail when it did.

10. As is later discussed when dealing with the appropriate penalty for the licence breach, these factors mitigate the seriousness of this offence compared to the water pollution offence – despite the fact that the same maximum penalty applies to each.

The pollution incident

11. Significant rainfall between 26 and 29 January 2015 caused the water levels in Old Dam to rise. Upon instruction by the Site Manager, following a meeting to discuss how to reduce water levels in Old Dam, the Company Mechanic and the Project Manager for the Relining Project closed the Valve and turned on the Pump in order to operate the Evaporation Spray to reduce Old Dam water levels.

12. It was known to the Company Mechanic and the Project Manager that the discharge end of the Transfer Pipe was positioned in the field and not in New Dam. Following the turning on of the Pump, the Mechanic checked the Valve for leaks but did not see any.

13. At some stage during the period between 18 and 20 February 2015 and 23 to 25 February 2015, while the Pump was in operation, a failure of the Valve meant that, whilst the wastewater contained in Old Dam (“the wastewater”) continued to circulate through the Evaporation Spray, some of the wastewater escaped through the Valve into the Transfer Pipe and flowed out of the discharge end of the Transfer Pipe where it lay in the field between the dams (“the wastewater discharge”).

14. The wastewater discharge flowed downslope of the dams into an open ephemeral gully on the Site and continued to flow overland, down-slope in a south-easterly direction and into a culvert under Gouldsville Road. The wastewater discharge flowed out the other side of the culvert into the continuation of the gully on the farm land (“the Farm”) beyond the road and into a stock-watering dam at the Farm (“the Farm Dam”). The wastewater discharge which flowed into the Farm Dam caused the Farm Dam to overflow across the adjacent paddock (“the paddock”). This further flow was toward the Hunter River but stopped some 200 metres short of entering that waterway.

The polluted nature of the wastewater

15. Though the exact concentration of chemicals in Old Dam at the time of discharge is not known, nor is the volume of the polluted wastewater discharged, measurements of the nitrate, nitrite and ammonia levels in Old Dam and New Dam were taken prior to the incident, as well as sampling following the incident. The Statement of Agreed Facts sets out, in [68] to [77], data derived from the sampling conducted.

16. Although there were differences between the parties as to the applicability of, and relevant interpretation to be given to, the ANZECC Water Quality Guidelines, it is unnecessary to resolve these matters as there is no dispute that the levels of pollutants in the discharged water were high. This is sufficient to found the conclusions necessary for this decision without the need for mathematical precision.

The consequences of the wastewater discharge

17. The Farm was used for grazing and cropping by the farmer. The paddock was fenced and used for grazing cattle. The Farm Dam was used for stock watering

18. On 20 February 2015, the farmer moved 60 to 80 cattle into the paddock and locked them in there. The cattle were mostly dairy cattle and the majority of the cattle were in calf. Whilst the cattle were locked in the paddock, the Farm Dam was the only source of drinking water for the cattle. At that time, the water in the Farm Dam was clear.

19. On 24 February 2015, the farmer returned to the Farm and discovered, in the paddock containing the Farm Dam, that five of the cattle were dead. One of the dead cattle had partly aborted its calf, which was also dead. The dead cattle were puffed up and swollen, and most had foaming salivation around their mouths and noses.

20. The condition of the remaining cattle was described as “looking hollow and appearing to be thirsty”. Further, when the farmer opened the gate to the paddock, the remaining cattle rushed straight to water at the northern area of the Farm.

21. On 10 March 2015, EPA officers inspected the premises and the Farm, taking water samples from affected areas. There were pools of water at various points along the flow path. One EPA officer observed these pools to be green in colour, further there was a green discolouration of the soil in places.

The charges

22. As a consequence of the incident, the EPA has charged the Company with two offences under the POEO Act. These offences are of “polluting waters” in breach of s 120(1) of the POEO Act and breaching a condition of the Company's EPL, this being a breach of s 64(1) of the POEO Act.

The maximum penalties

23. The maximum penalty for a corporation for each offence is $1,000,000.

The Statement of Agreed Facts

24. The Prosecutor and the Company settled a Statement of Agreed Facts which was tendered. The factual introduction to this decision has been drawn from that document.

The guilty pleas

25. The Company has pleaded guilty to each offence, a matter requiring subsequent consideration as a result of the terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act).

26. A careful reading of the Statement of Agreed Facts satisfies me that the plea of guilty to each offence has been appropriately entered and that, as a consequence, the Company should be convicted of each offence.

The legislation

27. There are two pieces of legislation requiring consideration in these proceedings. The first is the POEO Act, whilst the second is the Sentencing Procedure Act. It is appropriate to set out the legislative elements requiring consideration on sentencing for the two offences to which the Company has entered a guilty plea. First, the objectives of the POEO Act include, in s 3, the following:

3   Objects of Act

The objects of this Act are as follows:

(a)   to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,

(b)   to provide increased opportunities for public involvement and participation in environment protection,

(c)   to ensure that the community has access to relevant and meaningful information about pollution,

(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,

(iia)   the elimination of harmful wastes,

(iii)   the reduction in the use of materials and the re-use, recovery or recycling of materials,

(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,

(e)   to rationalise, simplify and strengthen the regulatory framework for environment protection,

(f)   to improve the efficiency of administration of the environment protection legislation,

(g)   to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act2001.

28. In addition, with respect to offences committed in breach of this Act, s 241 mandates matters that are required be taken into account when sentencing for such offences. This provision is in the following terms:

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.

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

29. The Sentencing Procedure Act operates in parallel with the POEO Act. There are three provisions of this Act that have relevance to these proceedings. The first element is the provision, s 3A, that contains the objects of the sentencing process. This provision is in the following terms:

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.

30. The second provision of the Sentencing Procedure Act that requires consideration, to the extent that it is engaged as dealt with in my subsequent detailed discussion, is s 21A of this Act. This provision sets out a range of topics that potentially require consideration as aggravating or mitigating circumstances in the context of the particular offence. It is unnecessary to set out the whole of the section, as a number of the elements contained in it are clearly irrelevant to the Company and to these offences. However, there are two observations to be made concerning this provision.

31. First, any matter said by the Prosecutor (as is here the case, as later discussed) to be an aggravating factor is required to be proved beyond reasonable doubt, whilst those factors potentially favourable to the Company are required to be demonstrated by the Company on the balance of probabilities.

32. Second, the various elements of s 241 of the POEO Act, as set out above, also find parallel elements of s 21A of the Sentencing Procedure Act that are to the same effect. In my subsequent analysis, it is convenient to use the framework set out by this provision of the Sentencing Procedure Act but, as I do so, I also note and have appropriate regard to the relevant element arising from s 241 of the POEO Act.

33. The final provision of the Sentencing Procedure Act that is relevant is s 22 of that Act. This provision requires that I make an allowance for the utilitarian value of the guilty pleas that have been entered by the Company and the timing of the entry of those pleas. This provision is in the following terms:

22   Guilty plea to be taken into account

(1)   In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:

(a)   the fact that the offender has pleaded guilty, and

(b)   when the offender pleaded guilty or indicated an intention to plead guilty, and

(c)   the circumstances in which the offender indicated an intention to plead guilty,

and may accordingly impose a lesser penalty than it would otherwise have imposed.

(1A)   A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

(2)   When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.

(3)   Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4)   The failure of a court to comply with this section does not invalidate any sentence imposed by the court.

The hearing

34. The hearing was completed well within the two days allocated. Although the Company was granted leave to file a further affidavit to deal with “character” (see discussion of s 21A(3)(f) of the Sentencing Procedure Act below), no further hearing was required in response to that material.

The evidence

The witnesses

35. On behalf of the Company, affidavit evidence was given by:

• Mr Andrew Gardner, Vice President - Coal of the Company (two affidavits);

• Mr Drew O'Brien, Senior Environmental Adviser to Incitec Pivot Ltd, the Company's corporate parent; and

• Mr Neil Sutherland, an employee of Gilbert & Sutherland Pty Ltd, a consulting firm of environmental and agricultural scientists and engineers. Mr Sutherland's two affidavits described his occupation as “Principal Agricultural and Environmental Science and Hydrographer”.

36. On behalf of the Prosecutor, affidavit evidence was given by:

• Dr Fleurdelis Pablo, a Senior Scientist, Environmental Forensics - Eco‑Toxicology, employed in the Environmental Protection Science Branch, Science Division of the Office of Environment and Heritage NSW;

• Associate Professor John House, an Associate Professor, Livestock Health and Production and Director of the University Veterinary Teaching Hospital of the University of Sydney, located at Camden; and

• A dairy farmer whose farming operation is located downstream of the point of discharge from which the polluted waters were emitted.

Initial observations on the evidence

37. There are three initial observations to be made concerning the evidence. First, only a portion of the farmer’s affidavit was read, with this evidence being confined to the first 13 paragraphs of his affidavit. Of these paragraphs, [1] to [11] merely provided context. The remaining two paragraphs form part of the matters requiring consideration at a later point in this decision.

The cattle

12.   Around February 2015, I was running approximately 60-80 cattle at the property. Most of them were dairy cattle. The majority of the cattle were in calf.

13.   Prior to 24 February 2015, the cattle were in very good condition and good health.

38. The second observation to make is that the Prosecutor required Mr O'Brien for cross-examination. To the extent that matters arising out of that cross‑examination need consideration, they are dealt with later in this judgment.

39. The final matter to be observed is that Dr Pablo and Mr Sutherland gave concurrent oral evidence.

The evidence of Dr Pablo and Mr Sutherland

40. Prior to their giving of that evidence, Mr Rushton SC, counsel for the Prosecutor, and Mr Howard had discussed the concurrent evidence process I had indicated I considered appropriate and had settled four topics to be dealt with by these two witnesses in their concurrent evidence. These topics were:

1. Harm caused, or likely to be caused, to the environment between the discharge point and the endpoint;

2. The applicability and use of the ANZECC Water Quality Guidelines;

3. The applicability of the Irrigation Guidelines; and

4. Whether the environmental harm was transient.

41. Dr Pablo and Mr Sutherland gave concurrent evidence. The transcript records that evidence between page 12 and page 64. Although there was a deal of interaction between the two experts, there was also extensive cross‑examination of Dr Pablo as to the adequacy of the methodology leading to the conclusions she expressed on environmental harm she posited was caused by the Company's contaminated discharge. This evidence was directed to what she had considered would have been the impact on macro‑invertebrate aquatic life downflow from the discharge point to the end of the overland flow path, some 200 metres shy of the Hunter River.

42. On the other hand, the Prosecutor cross-examined Mr Sutherland on his qualifications to give evidence on matters interacting with Dr Pablo and on the conclusions he drew on the matters relating to topics covered by Dr Pablo's written and oral evidence.

43. In my view, it is unnecessary to undertake an extensive analysis of their written and oral evidence for the purposes of resolving detailed disagreements between them (or to address the question of Mr Sutherland's qualifications). I have reached two broad conclusions that I consider are appropriate to be drawn concerning this aspect of the Prosecutor’s environmental harm case (excluding, of course, the impact on the farmer’s cattle, as separately dealt with). Those conclusions are:

1. I cannot be satisfied, on Dr Pablo's evidence, that there was any downflow impact on macro-invertebrate aquatic life; and

2. I am satisfied, having considered Mr Sutherland's evidence as well as relevant photographic evidence, that the Company's discharge did cause chemical scalding and resultant die-off of grass between the discharge point and the Farm Dam. However, with respect to this impact, I am not satisfied that such damage is either permanent or long-lasting so as to require me to regard this harm as exacerbating, to any relevant extent, the factor of aggravation arising from the death of the farmer’s cattle.

44. With respect to the conclusion I have drawn concerning Dr Pablo’s evidence, it is appropriate to note, at the outset, that these are criminal proceedings and, therefore, the Prosecutor is required to prove beyond reasonable doubt any contested matters.

45. In essence, Dr Pablo's evidence on environmental harm was that there must have been macro-invertebrates living downflow from the point where the Company's contaminated discharge took place. It was also her opinion that such macro-invertebrates as she had considered would have existed prior to the discharge would have been killed as a consequence of that discharge.

46. Although I accept that that Dr Pablo was appropriately scientifically qualified to express such opinion, that opinion was expressed in circumstances where there was no actual data derived by field inspection of that downflow pathway. Dr Pablo was also unable to point to any study of any similar ephemeral creek flow path that was potentially relevant to provide a baseline comparison for what might have been the nature of any macro-invertebrate lifeforms to be inferred to have been living in the ephemeral waterways that comprised the downflow pathway of the Company's discharge. The extent to which information may have been provided to her concerning the Hunter River (information not recounted in any significant detail) could not provide any appropriate basis upon which I could be satisfied that the Prosecutor had discharged its onus on this aspect of its case.

Associate Professor House’s evidence

47. Associate Professor House prepared an expert report “in relation to the effects on cattle of ingesting water containing discharged process water generated in the course of explosives manufacturing by Dyno Nobel Australia Pacific Pty Ltd between 18 and 25 February 2015”. A copy of his expert report was annexed to his affidavit. Associate Professor House was not required for cross-examination.

48. Because I have formed the view that a proper understanding of Associate Professor House’s report is an essential underpinning of my conclusion concerning whether or not I can be satisfied beyond reasonable doubt that ingestion of water from the Farm Dam contaminated by the polluted water discharged by the Company was the cause of the death of five cattle and the partial aborting of the dead calf of one of those cows, it is appropriate to reproduce the entirety of Associate Professor House’s expert report (omitting the citations contained in it). I do so in the following section on the death of the cattle.

The cattle deaths

Introduction

49. There is a significant difference between the Prosecutor and the Company as to the degree of certainty to which I could conclude that the cattle that died had died as a consequence of the discharge of the polluted waters by the Company.

50. The Prosecutor submits that I can be satisfied, beyond reasonable doubt, that these deaths were occasioned by the Company's failure, whilst the Company submits that, whilst it is probable that the discharge was the cause, I could not be satisfied of this beyond a reasonable doubt.

51. This contest is a matter of some import, as the Prosecutor submits that, on its analysis of the evidence, these deaths demonstrate that the harm caused by the incident was substantial. Such a conclusion would lead to this aspect constituting an aggravating factor of the offence, as a consequence of the engagement of s 21A(2)(g) of the Sentencing Procedure Act, a provision in the following terms:

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

(a)-(f)   …

(g)   the injury, emotional harm, loss or damage caused by the offence was substantial,

(h)-(p)   ….

52. As my determination of this difference between the Prosecutor and the Company potentially plays a significant part in my assessment as to the seriousness of the offending conduct and, hence the penalty to be imposed, it is necessary to deal with this point at some length and set out details of the competing submissions and the evidence engaged by them.

The Prosecutor's written submissions

53. The Prosecutor’s written submissions on this point (omitting footnotes) were:

83.   The prosecutor acknowledges that on sentence matters that are adverse to the offender must be established beyond reasonable doubt. However, that does not mean that each matter must be established by direct evidence.

84.   It is submitted that the circumstantial evidence is such that the Court would be satisfied to the requisite standard that Mr Rumbel’s cattle were adversely affected by the chemical laden waste water discharged by Dyno Nobel. The relevant facts and circumstances upon which the prosecutor relies are:

(a)   At some point between 18 and 24 February the chemical laden waste water commenced to flow along the flow path which led to the Farm Dam;

(b)   The concentration of nitrate which is toxic to cattle is >1,500 mg/L.

(c)   On 25 February 2015 the concentration of nitrate in the Farm Dam was 9,700 mg/L. This concentration was 6.5 times above the level considered toxic to cattle;

(d)   The measure of EC which can cause diarrhoea and loss of condition in cattle is 6,300 µS/cm.

(e)   On 25 February, 2015 and 31 March 2015 the EC of the water within the Farm Dam was measured as 21,120 and 18,750 µS/cm respectively. This is 3 to 3.5 higher than the standard set for livestock drinking guidelines in the ANZECC Guidelines;

(f)   The pH level below which there can be digestive problems, rejection of water, acidosis and reduced feed intake in cattle is 6.5;

(g)   On 25 February, 2015 the pH of the water within the Farm Dam was 5.7;

(h)   Prior to the incident the Farm Dam was used for watering the stock. The source of water in the Farm Dam was runoff. The condition of the pasture in the paddock around February 2015 was “a little bit dry but healthy and had good feed on it.” The pasture consists of Lucerne and Kikuyu.

(i)   The paddock containing the Farm Dam is fenced.

(j)   Prior to 24 February, 2015 the cattle were in very good condition and health;

(k)   No herbicides or pesticides had been used on the paddock since 2009 when Mr Rumbel first leased the property for the purpose of running cattle;

(l)   On 20 February 2015 Mr Rumbel locked 60-80 cattle in the paddock containing the Farm Dam. Most were dairy cattle;

(m)   Whilst contained within the paddock, the water in the Farm Dam was the only source of drinking water for the cattle;

(n)   When the cattle were first locked in the paddock the water contained in the Farm Dam was clear;

(o)   On 24 February 2015 Mr Rumbel returned to the paddock to find 5 dead cattle, one having aborted a calf;

(p)   The dead cattle were puffed up and swollen and most had foaming salivation around their mouths and noses;

(q)   The remaining cattle looked hollow and appeared to be thirsty. When released from the paddock they rushed straight to water at the northern area of the Farm

(r)   Mr Rumble (sic) observed that the water in the Farm Dam was murky green. Later that day Mr Rumbel’s agronomist, Mr Ropa, observed that the water in the Farm Dam had a greenish tinge to it with a sort of scum or alga floating on the surface. The water was clear and did not have a lot of visible sediment.

(s)   The affected pasture was water logged starting to turn brown. Over the next few days the pasture was dying off in the water logged area.

(t)   Mr Ropa inspected the paddock. He searched for poisonous weeds that may have been responsible for the cattle deaths. None were located.

(u)   Elevated levels of nitrate can cause cattle to perish. The prosecutor understands that this is common ground. A study conducted in 1963 in Queensland reported the death of calves and cattle through nitrate poisoning attributed to drinking water containing a concentration of nitrate of 2,200 mg/L. The study concluded that the toxic nitrate concentration for cattle is between 300 and 2,200 mg/L.

(v)   As has been noted, on 25 February 2015 the water in the Farm Dam contained nitrate with a concentration of 9,700 mg/L. That concentration is extreme. The water also had other harmful components/attribute which have been addressed above.

(w)   The prosecutor understands that it is common ground that the death of Mr Rumbel’s cattle is consistent with poisoning;

85.   It is submitted that the Court would be satisfied to the required standard that the death of a number of Mr Rumbel’s cattle, and the adverse effects suffered by others, was the product of the offences committed by Dyno Nobel. It is a compelling circumstantial case. There is no other rational hypothesis consistent with innocence

54. As can be seen from what follows from the written submissions on behalf the Company, the various factual elements set out by the Prosecutor are not in contest. The conclusion on causation to be drawn from them is, however, vigorously disputed by the Company. Mr Howard's written submissions on this point were in the following terms:

35.   Of a herd of 60 – 80 cattle, which Mr Rumbel left in the paddock on 20 February 2015 with access to the farm dam for water, 5 cows died in the period before Mr Rumbel returned on 24 February 2015. One of those cows had partly given birth to a calf, which was also dead when Mr Rumbel returned to the farm.

36.   The defendant accepts that it is likely and, indeed, probable that those five cattle and the calf died by reason of those cows drinking from the farm dam. It is probably that, as a result of the inflow of the defendant’s wastewater into the dam, those particular cows drank water containing sufficiently elevated concentrations of, relevantly, nitrate and nitrite to have caused their deaths. In other words, the defendant accepts that the commission by it of the pollution of waters probably caused the death of those five cattle and one calf. In this regard, the defendant has accepted the opinion evidence of Associate Professor John House, whose affidavit sworn 20 May 2016, the prosecutor has indicated it will rely upon on sentence.

37.   The defendant’s acceptance of its responsibility for probably having caused the death of these cattle is reflected in its decision to compensate Mr Rumbel in the amount of $76, 000 and in its expression of deepest regret to Mr Rumbel for having accidentally caused the incident.

38. However, the prosecutor seeks to take the matter further and submits that the Court should be satisfied beyond reasonable doubt that “the death of a number of Mr Rumbel’s cattle, and the adverse effects suffered by others, was the product of the offence committed by Dyno Nobel.” The prosecutor then relies on that proposition as the foundation for its submission that the harm actually caused to the environment is “substantial” and thus an aggravating circumstance within the meaning of s 21 A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.

39.   The position thus taken by the prosecutor is not supported by any question the prosecutor asked of Associate Professor House and is not supported by the opinion the gentleman has provided.

40.   At page 6 of the report annexed to his affidavit of 20 May 2016, Associate Professor House records that the relevant question he was asked by the EPA was this:

If you are able to comment, what in your opinion was the likely cause of death of the cattle? [emphasis added]

41.   In addressing that question, Associate Professor House says:

In this case, no definitive cause of death was determined and with the information available it is not possible to provide a definitive diagnosis. Despite this limitation, it appears likely that the contaminated water was responsible for the death of the cattle. Nitrate toxicity appears the most plausible cause however dehydration and blue green algae toxicoses cannot be ruled out.

42.   In providing that opinion, Associate Professor House presumably had in mind among other things, as he expressly noted elsewhere in the body of his report, that no post mortem was conducted on the dead cows.

43.   Associate Professor House goes on to record that:

Alternate causes of sudden death include toxic plants which the paddock was determined to be clear of. Infectious causes are also possible however it appears unlikely and co-incidental that this should occur in a 4 day period that happened to co‑incide with exposure to contaminated water. An infectious cause would also not be expected to cause the cows to be “very hollow and thirsty”. Similarly nutritionally related causes of sudden death such as bloat (associated with grazing lush lucern) or hypomagnesaemia appear unlikely. Neither would explain the behaviour of the cattle. The mixed pasture was also reportedly mature which reduced the risk of bloat. Herd level hypomagnesaemia is also less likely with the pasture composition and reproductive status of the cows.

44.   Those expressions of opinion support the proposition that the commission of the offence probably caused the death of the cattle in question and, as stated, the defendant accepts that proposition. However, those expressions of opinion do not support a finding beyond reasonable doubt that the commission of the offence caused the death of the cattle.

45.   The next contentious submission made by the prosecutor in relation to Mr Rumbel’s cattle is the submission that the commission of the offences not only caused the death of the cows that died, but also caused “adverse effects suffered by others”. If the prosecutor means by this that, by the time Mr Rumbel returned to the farm on 24 February 2015, the other cattle were thirsty by reason of having refrained from drinking the water in the dam, then so much may be accepted, although that would not take the matter any further on the question of sentence. However, it seems the prosecutor is asserting or implying, that, in addition to the cattle that died, other cattle in Mr Rumbel’s herd suffered some unspecified adverse effects caused by exposure to the wastewater.

46.   In rebuttal of that proposition, the defendant submits it is clear from the report of Associate Professor House that, apart from the five that died, none of the remaining cattle was sick: all of the remaining cattle were in a normal condition, save only for one cow, which Associate Professor House concluded had become sick earlier on from some infectious cause unrelated to the incident.

Associate Professor House’s evidence in detail

55. As earlier noted, Associate Professor House was engaged by the Prosecutor to provide an expert report concerning the death of the cattle. Although a little lengthy, it is necessary to set out the totality of his evidence in the expert report appended to his affidavit. It is to be observed that his affidavit was read without objection, and Associate Professor House was not required for cross‑examination. His report was in the following terms (footnoted citations omitted) (Affidavit of John Kimberley House, read 13 March 2017, pages 1 to 7):

Response to questions posed by Michelle Bragg

1.   "In relation to the concentration of nitrate in the water sample identified as 'Cow Dam 1’ (CD1) in Eurofins Certificate of Analysis 448914-W (Tab6):

a.   What effect/s would you expect to see if cattle ingested such water? - The reported concentration of nitrate in the dam water sampled on the 25th of February was 9746 49 mg/L (Eurofins Certificate of Analysis 448914-W) which is considered toxic for cattle. There is a range of signs that may be observed when cattle ingest feed or water containing high levels of nitrates. The speed of onset and severity of signs will be influenced by the amount ingested and the animal's prior exposure to nitrates. Death may occur within 1 hour or up to a day following acute intoxication.

Besides sudden death without struggling, clinical signs in live animals include increased salivation, abdominal pain, diarrhoea, constant dribbling of urine, muscle tremor, weakness, inco-ordination or staggering gait, severe dyspnoea (often mouth breathing), rapid but weak pulse, cyanosis, collapse, convulsions, muddy-brown mucous membranes and brown discolouration of the blood. The temperature is usually subnormal (38°C). Fatally affected animals become recumbent, showing severe depression and convulsions, with death occurring from a few minutes to an hour after onset.(2,3)

b.   What effect/s would you expect to see in pregnant cattle if they ingested such water? - In addition to the signs described for non-pregnant cattle, cows in the latter stages of pregnancy may abort.

c.   What volume of such water would need to be ingested to cause the death of cattle? ­ Cattle normally drink approximately 8 and 20% of their body weight per day which for a 400kg beef cow equates to between 35 and 80 litres.(4) The amount of water consumed depends on numerous variables including age, environmental conditions, pasture composition, activity, and lactation status.

The volume of nitrate contaminated water that cattle would need to ingest to cause death will vary according to the time frame over which the contaminated water is consumed, the concentration of nitrate in the water, and according to the cattle's diet and prior consumption of nitrate. "Nitrate concentrations less than 400 mg/L in livestock drinking water should not be harmful to animal health. Stock may tolerate higher nitrate concentrations in drinking water, provided nitrate concentrations in feed are not high. Water containing more than 1500 mg/L nitrate is likely to be toxic to animals and should be avoided."

Nitrate is converted into the toxic nitrite in the rumen by the rumen microflora. There are also nitrite detoxification pathways in the rumen. If the rate of nitrate reduction to nitrite exceeds the rate of detoxification of nitrite then toxic levels of nitrite build up and cause toxicity. Animals that have previously had moderate exposure to nitrate develop increased capacity to detoxify nitrite and are therefore more tolerant of nitrate exposure. Cattle that have not had prior exposure to moderate levels of nitrate will be more susceptible to toxicity. The toxic dose for cattle that may result in mortality is subsequently variable with a reported range of 169- 500 mg/kg.(2)

In regards to toxicity, nitrate in water is additive with nitrate in feed so the amount of water required to cause toxicity will also depend on how much nitrate is consumed in the feed. The toxicity of contaminated water is considered somewhat more potent than in feed because it is consumed more rapidly. Assuming negligible feed nitrate intake, a wa­ ter nitrate concentration of 500 mg/L is reported to deliver a dose of 100 mg/kg Body weight.(2) Given that a 400 kg non lactating cow is likely to drink approximately 40 litres of water (10% of body weight) per day. Forty litres would provide 40 x 500 = 20,000 mg of nitrate which equates to 50 mg/kg of body weight. However, assuming the access to water continues and clearance of the nitrate takes 24-36 hours there will be accumulation of nitrate over time.

Given that the concentration of nitrate in the dam was 9746 mg/L a 400 kg cow consuming 40 litres of water would consume 40x9746 = 389,840 mg. This equates to a daily ingested dose of 389,840/400 = 974.6 mg/kg this dose is approximately double the high end dose that is reported to be toxic for cattle. Given the time taken for excretion of nitrate there would be potential for the cumulative dose to significantly exceed the calculated daily dose. This level of nitrate exposure exceeds numerous reports of nitrate toxicity and mortality in cattle associated with consumption of contaminated water.

In regards to the dose of nitrate consumed it is likely that there was variation in the amount consumed by different cattle due to variability in the concentration of nitrate in the dam and run off water available in the paddock. This is indicated by the test results on the 24th of February the nitrate concentration on the inflow to the dam was 8860 mg/L and the concentration of nitrate in the channel below the dam was 5759 mg/L. On the 11th of March three water samples were collected from the farm dam the concentration of nitrate in the dam water ranged from 5700 to 12000 mg/L. All levels of nitrate measured in the dam water were at toxic levels. The large range in nitrate concentration in the farm dam water indicates that the nitrate was not evenly distributed in the farm dam. The observation by Mr Rumbel that the cows were "very thirsty and very hollow" also suggests that the palatability of the water was compromised and that some cattle choose not to drink or drank less water than others.

2.   In relation to the concentration of cyanophytes in the water sample identified as "Farm Dam (OSD) on p.20 of the EnviroRisk Report (Tab 10):

a.   What effect/s would you expect to see in cattle if they ingested such water? - The number of cyanobacteria reported in the dam water was 12,600 cells/ml which is in excess of the trigger level of 11500 cells/ml indicating potential for toxicity. Many cyanobacterial blooms are non-toxic to animals but all should be considered potentially toxic. Animals that have consumed the toxin will appear unwell very quickly. They may initially appear depressed and weak, show signs of tremors, have a staggering gait, and then become recumbent, convulse and die. Acutely affected animals will often die within 24 hours of ingesting the toxin. In many cases affected animals are found dead near a pond or waterhole containing an algal bloom.(3,5)

b.   What effects would you expect to see in pregnant cattle if they ingested such water? ­ Similar signs to non-pregnant cattle.

c.   What volume of such water would need to be ingested to cause death of cattle? ­ Variable, this would depend on the species and number of cyanophytes present in the water. Depending on the toxicity of the bloom and the concentration of the toxin, between a few mouthfuls and many litres of water may be ingested before livestock show signs of poisoning.(5) The level of cyanophytes present in the water was above the trigger level for potential toxicity. There is not a direct correlation between the number of cyanophytes present in the water and the amount of toxin in the water as it depends on the specific species present. Hence it is not possible with the data available to know if the high level of cyanophytes present rendered the water toxic. Despite this given the information available the recommendation would be to prevent stock accessing the dam.

3   If you are able to comment, what in your opinion was the likely cause of death of the cattle? - In this case no definitive cause of death was determined and with the information available it is not possible to provide a definitive diagnosis. Despite this limitation it appears likely that the contaminated water was responsible for the death of the cattle. Nitrate toxicity appears the most plausible cause however dehydration and blue green algae toxicosis cannot be ruled out.

When I initially considered this question I queried the link between contamination of the water and the mortality of 5 cows from a group of 60 to 80. It was unclear to me why more cows had not died if the water was responsible as it was the only water source in the paddock. The data provided revealed that the level of contamination present in the water was generally very high however it was also variable. This finding is logical when one considers that the water in the dam was likely to have been clean prior to the spill. When the contaminated water ran into the dam, clean and contaminated water would have mixed leading to variable concentrations in the dam. The initial overflow from the dam had lower contamination than that found in the in-flow from the culvert. Different cattle would have consumed water from different areas (dam, overflow) which would have contained different levels of contamination. The concentration of nitrates in the water is also likely to have changed/increased over time.

As previously indicated when cattle consume nitrate the microflora in the rumen convert the nitrate to nitrite which is absorbed into the body and is toxic to the cow. The contaminated water entering the farm dam was also contaminated with nitrite. The nitrite in the water would have been additive to the nitrite produced in the rumen from nitrate contributing to the toxicity of the water.

Mr Rumbel's observation that the cows were hollow and ran to the water source in the new paddock indicates the water in the contaminated dam and dam outflow was not palatable. The water sample collected from the dam by Kyle Ropa on the 24th of February had an electrical conductivity of 21120 uS/cm and pH of 5.1, findings that support Mr Rumbel's observation. The conversion factor for electrical conductivity (uS/cm) to total dissolved solids (mg/L) is 0.67. Therefore an electrical conductivity of 21120 uS/cm equates to 21120x0.67 = 14150 mg/L total dissolved solids. The maximum concentration of total dissolved solids that may be safe for beef cattle for limited periods is 5,000-10,000 mg/L.(7)

Water for livestock use should be in the pH range of 6.5 to 8.5. Water rejection and depressed appetite are observed when the pH of water is less than 6.5. Animals may die, even when they apparently have adequate water.(7)

Poor palatability is likely to have contributed to the survival and death of cattle. Those cows that had reduced water consumption would have been protected, conversely if some cows initially did not drink the water and then were overcome by thirst and drank a larger volume of water toxicosis and death would be a likely outcome. Conversely failure to drink and dehydration is also a possible cause of death.

Alternate causes of sudden death include toxic plants which the paddock was determined to be clear of. Infectious causes are also possible however it appears unlikely and coincidental that this should occur in a 4 day period that happened to coincide with exposure to contaminated water. An infectious cause would also not be expected to cause the cows to be "very hollow and thirsty". Similarly nutritionally related causes of sudden death such as bloat (associated with grazing lush lucern) or hypomagnesaemia appear unlikely. Neither would explain the behaviour of the cattle. The mixed pasture was also reportedly mature which reduces risk of bloat. Herd level hypomagnesaemia is also less likely with the pasture composition and reproductive status of the cows.

4.   If you are able to comment, what is your opinion on the health of the surviving cattle that were examined by Mr Prichard? - The description provided by Mr Prichard suggests that the surviving cattle were normal. The blood test from the "sick" cow suggested that this cow had an inflammatory disease process that may have preceded entry to the paddock. In my opinion the normal level of nitrates observed in the six cows tested does not rule out the possibility of nitrate toxicity in other cattle within the group. The amount of nitrate consumed by the different cattle in the group is likely to have been variable and variable responses to nitrate ingestion are common. The cattle were also tested the day following removal from the affected paddock providing time for nitrate to be excreted. The biologic half-life of nitrate in beef cattle is 7.7 hrs, increased nitrate concentrations from excessive nitrate exposure diminish to normal expected values in 24 to 36 hours.(6)

The Prosecutor’s oral submissions on the death of the cattle

56. It is also appropriate to reproduce, in their entirety, the submissions made by the Prosecutor, both as to the factual interpretation to be made of the evidence and the proper approach, at law, to be taken in doing so. The transcript (Transcript 13 March 2017, page 67, line 25 to page 72, line 13) relevantly reads:

In para 36 of the defendant's submissions, it accepts that it is likely that, and indeed probable, that those five cattle and the calf died by reason of the cows drinking from the farm dam. It's probable that as a result of the inflow of the defendant's waste water, those particular cows drank water containing sufficiently elevated concentrations of relevantly nitrate and nitrite to have caused their deaths. In other words, the defendant accepts that the commission by it of the pollution of waters offence probably caused the death of those five cattle and one calf.

But the submissions go on to say, and in particular para 44, that because nobody says, in effect, that you can be satisfied to a level of scientific certainty that the cattle died through nitrate toxicity, that that's the end of the matter and your Honour couldn’t be satisfied beyond reasonable doubt. Can I suggest your Honour, that is the wrong way to look at issues of circumstantial evidence. And in order to make that point good, I'd like to take your Honour just briefly to the decision of the High Court in Barker v R. Can I hand up a copy of that to your Honour. Now, before I take you to particular paragraphs and explain the facts in that case to your Honour, can I say this; that one practical way of looking at the way that circumstantial evidence is handled within the context of a criminal trial, is to consider what a jury might make of circumstantial evidence.

And my primary submission is this; that the mere fact that people say highly probable, probable, but don't actually say it definitely did, wouldn’t mean in a jury trial that the matter was taken away from the jury. It would be up to the jury to assess that opinion in the light of the other evidence, and it would be up to the jury, or in this case your Honour, to decide whether you are satisfied beyond reasonable doubt taking into account all the circumstances. Professor Hauser's report, which I'll go to in a minute, is just one aspect of that, and it's very important, in my respectful submission, to understand it. One has to draw inferences from the entire facts, which I'll go through in one moment.

In Barker [sic – should be Barca], the High Court was dealing with a murder, and the accused was a Calabrian and it was alleged that he had engaged in an honour killing. That is, he had murdered his brother‑in‑law for engaging in behaviour which was dishonourable to the accused's sister.

One of the hypotheses that was put forward at the trial was that in Calabrian culture if an honour killing was to take place in respect of the dishonour of a woman the murder would be carried out by the father: that is, the father of the person who had been dishonoured, so to speak. Counsel for the accused put that hypothesis to the jury, and the trial judge instructed the jury to reject it. It was something they couldn't take into account. The High Court granted special leave and allowed the appeal primarily on the basis that it should never have been put on those terms and that the jury were entitled to consider all the evidence and decide whether that hypothesis was reasonably open, and there were a number of aspects of the evidence which suggested that it was open.

At para 95 just after line 45, Gibbs, Stephen and Mason JJ had this to say, "When the case...of the accused" - and then they refer to Peacock v The King, which is the case where Dr Peacock murdered a young woman - "to enable the...them to draw." Then their Honours refer to Plomp v The Queen, which is a case which involved a conviction of a man for murdering his wife where they could not establish on recovering the body that he'd actually done it, but there were a number of circumstantial facts that suggested he had: The body was recovered from the surf, and the accused's explanation was that she had been pulled out in a rip, but there was evidence to suggest that he was having a relationship with another woman, he said that he'd marry the other woman et cetera.

They then go on to say something which is very important: "However, an inference...facts in evidence." What their Honours are really saying there is that a hypothesis consistence with innocence will - if all of the evidence puts forward a hypothesis consistent with innocence then your Honour couldn't be satisfied beyond reasonable doubt. But nevertheless, it has to be a rational and reasonable inference taking into account all the circumstances of the case. What I wanted to do, your Honour, is just to draw your Honour's attention again to the matters that we rely upon as set out in our outline of submission and expand on a few of them. They are contained in para 84 and following. The first point of course is a fairly obvious one, that at some point, and we don’t know when - and this is para 84 page 14 - between 18 and 24 February that chemical‑laden waste commenced to flow along the flow path.

The concentration of nitrate which is toxic to cattle is 1,500 milligrams per litre. Pausing there, your Honour, might I ask your Honour to also have at hand the affidavit of Associate Professor House.

HIS HONOUR: Could I observe at this time I think I have Mr Howard's submissions electronically. I'm not sure that I've got yours.

RUSHTON: I'm sorry, your Honour. I'll make sure‑‑

HIS HONOUR: No, I'm not saying I haven't. I know I've got them. I'm not sure if I've got them electronically.

RUSHTON: I can tell your Honour you haven't gotten them electronically, but I'll make sure this afternoon that you do get them.

HOWARD: And I'll provide mine in Word, if it please the Court. I've only provided a PDF version.

RUSHTON: That's the affidavit of Mr House of 20 May 2016, and I'll be coming back to aspects of that as I go through. I'll draw attention to the fact that the concentration of nitrate which is toxic to cattle is above 1,500 milligrams per litre. That is a standard that is set out in the water quality guidelines of which my learned friend has been critical. That is, there is a suggestion they shouldn't have been used. But I can I draw your attention, your Honour, to p 4 of Associate Professor House's affidavit and the last paragraph on p 4, which commences with the words, "Nitrate is converted into toxic nitrite." Can I ask your Honour just to read to the end of that paragraph.

HOWARD: None of which has ever been disputed, your Honour, by us.

RUSHTON: Would you mind allowing me to address the Court, and then I'll give you a fair go. So rude.

HOWARD: My learned friend - no, with respect, Mr Rushton - your Honour, Mr Rushton attributed a submission to me or to the defendant that the defendant took issue with the proposition about nitrate being toxic at greater than 1,500, and that is not correct. What we've taken issue with is an unqualified use of the trigger values in relation to the toxic chemicals. So I regret that I've caused my learned friend concern in putting the position, but what I wanted to ensure is that the Court is not confused about our position in respect of the guidelines. We don't dispute the position that water containing more than 1,500 milligrams per litre of nitrate is likely to be toxic to the cattle. We've only taken issue with the very definite and unqualified use of the water quality guidelines in relation to the trigger values for nitrate and ammonium, if it please the Court.

RUSHTON: Things must have changed over the last couple of years. When I last appeared up here I had an opportunity to address first and then counsel for the defendant addressed second.

HOWARD: I'm sorry to have interrupted. I'll just‑‑

RUSHTON: It's quite rude. Can I just remind your Honour that in Associate Professor House's report he confirms as an expert that the toxic dose to cattle that may result in mortality is subsequently variable, with a reported range of 169 to 500 milligrams per kilogram. Now, a litre of water weighs a kilogram as I understand it, so the reported range he gives, I think it works out to 169 to 500. If that's so, then I have to say it's not really apparent why there is such concern about using the trigger values when one has in mind just how excessive the nitrate concentrations were in this case. But be that as it may, on 25 February we say in para C, "The concentration of nitrate on the farm was 9,700 milligrams per litre." On any view, your Honour, that is off the planet in terms of toxicity.

We then set out - and these are all facts from which I'm going to ask you to draw an inference in due course - the measure of electrical connectivity which can cause diarrhoea and loss of condition in cattle is 6,300 microsiemens per centimetre, and we note that on 25 February - that's the day after Mr Rumble discovered his dead latter, the EC in the water was measured at 21,120 and 18,750 microsiemens per centimetre respectively. Again, those measurements are just off the planet. The pH level at which there can be digestive problems, rejection of water, acidosis and reduced feed intake is 6.5.

On 25 February, the pH was 5.7, well below that. Next in terms of important facts, prior to the incident, the farm dam was used for watering the stock. The source of water in the farm was runoff. The condition of the pasture in the paddock around February 2015 was a little bit dry but healthy and had good feed on it, and the pasture consisted of Lucerne and kikuyu. The paddock was fenced and as we point out in sub‑para J, prior to 24 February 2015 the cattle were in good condition and healthy. In fact, I think Mr Rumble in para 13 of his affidavit goes so far as to say they were very healthy - if I recall.

HIS HONOUR: Very good condition and in good health.

RUSHTON: Yes. So here we have a fenced paddock with a dam in it which fills from runoff, including no doubt, these waste waters that came over the hill some time prior to 24 February. His cattle is put in there, it's fenced, they're in good condition, no herbicides or pesticides have been used in the paddock since 2009. Paragraph M, "Whilst they were contained within the paddock, the water in the dam was the only source of drinking water for the cattle." Importantly too, when the cattle were first locked in the paddock, the water contained in the farm dam was clear. And on 24 February, he returns to find five dead cattle, one having aborted a calf. Importantly too, "They were puffed and swollen, most had foaming salivation around their mouths and noses." Pausing there, can I ask your Honour to go back to Associate Professor House's report.

And you'll see, your Honour, again on p 4 at para 1(a), second paragraph, that the Associate Professor gives a description of the symptoms or the clinical signs of nitrate poisoning, which include increased salivation, abdominal pain, diarrhoea, constant dribbling of urine, muscle tremors, weakness, incoordination. Now, none of those factors were observed except for salivation, and it's common ground that most had foaming salivation around their mouths and noses. So that's a clinical sign which is consistent with nitrate poisoning. When you go on to read some of the other possibilities - pretty remote possibilities, might I say - one being dehydration and the other being poisoning through blue green algae, your Honour will see that when he describes the symptoms of exposure to blue green algae.

That the symptoms are, "they appear depressed and weak, show signs of tremor, have a staggering gate and then become recumbent, convulse and die." One of the symptoms of poisoning from blue green algae is not salivation around the mouth as was observed with these particular animals. It's also relevant, can I say, when considering the evidence to note that there's no suggestion that the water in the dam had ever caused Mr Rumble's cattle to become sick in the past. As I said, when the cattle were first locked in the paddock, the water contained in the farm dam was clear, and it was only on 24 February that an observation was made that there was a sort of scum or algae floating on the surface. That observation was made by Mr Roper, who was Mr Rumble's agronomist when he turned up on the 24th. But the evidence suggest that prior to that time, there was no such observation.

It's agreed that on 31 March 2015, some time after the event, EnviroRisk found cyanobacteria in one sample, and that's referred to in Associate Professor House's report in para 2(a). Most cyanobacteria are non‑toxic, your Honour. As you'll see from para 2(a), the measure of cells here was only marginally above the trigger value. And of course, unlike being marginally over the trigger value here, the toxicity of the nitrate was off the scale. As we've noted, the affected pasture was water‑logged, starting to turn brown. Over the next few days, the pasture was dying off in the waterlogged area. Mr Roper inspected the paddock, he searched for poisonous weeds that may have been responsible for the cattle deaths. None were located.

We know that elevated levels of nitrate can cause cattle to perish, indeed, I've taken your Honour to the observations made by Associate Professor House in relation to the levels which will be toxic. Dr Pablo also refers to a study from Queensland which concluded that the toxic nitrate concentration for cattle was between 300 and 2,200 milligrams per litre. It is accepted that Associate Professor House has said in his report that no definitive cause of death was determined and therefore, it's not possible to provide a definitive diagnosis. What the standard of beyond reasonable doubt doesn't require is absolute science or scientific certainty. It never has, it never will. What must be decided is whether putting all the facts together, you are satisfied beyond reasonable doubt that the cattle perished as a consequence of the waste water. He says it's the most plausible cause.

Your Honour has to decide, is there in those circumstances, an inference, a reasonable and rational inference, which is consistent with innocence, not just some speculative possibility about blue green algae, or indeed, dehydration is another possibility he puts forward. Nitrate poisoning, most plausible, my learned friend accepts it's the probable cause. The blue green algae has reached a level of marginal toxicity, and you can discount straight away, your Honour, death by dehydration, because if they died through dehydration, it was a consequence of refusing to drink this toxic water. So the defendant's responsible on that basis in any event. So in circumstances where the expert says it's the most plausible explanation, my learned friend says it's probable, and you put all those facts and circumstances together, the ones I've listed about the animals being in good condition, locked in, only source of water and the like.

In my respectful submission, your Honour would be satisfied beyond reasonable doubt that the defendant's crimes caused Mr Rumble's cattle to perish. But the alternative submission of course is that in circumstances where it's plausible - and in the words of my learned friend probable - your Honour would certainly be satisfied that it had a likelihood of harm and certainly it was potentially deadly to those cattle.

The Company's submissions on the death of the cattle

57. On the other hand, the oral submissions on this point on behalf of the Company were in the following terms (Transcript 14 March 2017, page 91, line 22 to page 93, line 38):

HOWARD: Now, I'll come back ultimately to the question of whether it's open to your Honour to find there's substantial harm. You won't be hearing me submit to the Court that it's not open to the Court to find that there was substantial harm, and really, I must say that our submissions were oversimplified insofar as they were referred to and addressed by the prosecutor yesterday. But let's deal with the question of whether it has been proved beyond reasonable doubt that the commission of the offences actually caused the death of those six cattle. We've addressed that matter in our written submissions at paras 35 and following. I don't propose to read them all out, but one of the matters of considerable importance is that there was a herd of 60 to 80 cattle here, only five of which, plus the calf, died.

Now, your Honour knows what happened, and let me preface this by saying that in putting this I am not in any way suggesting any criticism whatsoever of Mr Rumble. But your Honour knows that what happened was that Mr Rumble put his cattle, a herd of 60 to 80 cattle, into the paddock adjoining that farm dam where the water source was that farm dam, and then he went away from the property for a number of days, returning on the 24th, so about four days. When he returned five cows were dead plus the calf and he noticed that the others looked hollow and thirsty.

Your Honour is probably well familiar with what a bushman means when he says cattle looked hollow. They obviously appeared to him to be in need of a drink and as soon as he opened the gate, they rushed off to find some good water but the remainder of the herd was neither dead nor sick, with one exception. There was one cow that appeared poorly and I'll take your Honour to the evidence about it which is not insignificant.

Your Honour, if I could take you right now to the evidence of Mr House, we say it will put the matter beyond any real disputation. Again, let me say what is agreed. There's no doubt that these cattle had - insofar as one could discern symptoms after they were dead, those symptoms were consistent with the ingestion of this wastewater. We accept that but look at what the associate professor was asked, if you wouldn't mind, your Honour, on p 6 of his report.

Your Honour is well alive to this. He was only asked what in his opinion was the likely cause of the death of the cattle. He has never been asked whether having regard to circumstances that have been identified to him or not that he can take the matter further, but may I say that what we are dealing with here is a matter ultimately that will come to the Court.

We embrace the prosecutor's submission that it's up to the Court to determine whether it is satisfied beyond reasonable doubt as a tribunal of fact and that is not a matter as to which the Court delegates its role to any expert, but having said that, this is a case in which the issue is the causation of the death of those cattle and that is very much a matter within the domain of a forensic vet. That is exactly what we see here in the report of the associate professor who says, "In this case…be ruled out."

Your Honour, if the cause of death was blue-green algae toxicosis, there's no doubt that that was contributed to by the discharge, but one needs to look a little more closely at what Associate Professor House says in the discussion that then follows. He said, "When I initially…increased over time." He goes on to make some further observations about that. Clearly he has considered the matter, with respect to him in his absence, in quite an appropriate careful manner.

He goes on to say in the last paragraph under this head of consideration, namely, "What is your opinion was the likely cause of death of the cattle?" to say this, "Alternative causes of…hollow and thirsty." Your Honour can see the rest of that paragraph. Then if you go forward to s 4 he was asked about the health of the surviving cattle, Associate Professor House indicated that the description that had been provided by Mr Pritchard, a veterinary surgeon that had been brought on by the farmer, your Honour, suggests that the surviving cattle were normal, "The blood test…within the group."

So your Honour, what you'll see earlier on in this is discussion of the circumstance that there were of these cattle - if I can take your Honour back to p 3 of the report of the associate professor, you'll see that he indicates in the second paragraph under the Clinical Case Summary that Mr Rumble called a Singleton vet surgery, that's Dr Pritchard - "visited the property…blood magnesium concentration."

Your Honour, the prosecutor has taken you to a number of circumstances and says that notwithstanding the qualified expression of opinion by Associate Professor House, the Court should be satisfied beyond reasonable doubt that the cattle were killed by ingesting this wastewater. Those factors that the prosecutor refers to are set out in its written submissions at 84. He has taken you today, the prosecutor, to some aspects of Associate Professor House's report.

The point I would like to make to your Honour is that all of the circumstances on which the prosecutor relies were circumstances which were made known to Associate Professor House. There is nothing, we say, that the prosecutor relies upon that he can characterise as something that's probative of the issue of the cause of death of the cattle that was not taken into account by Associate Professor House. Thus your Honour will be, we say, principally informed by a responsible opinion expressed by the associate professor in which taking into account all of the relevant circumstances, he expresses an opinion which can be paraphrased accurately by stating he can't be sure but it's probable that these cows died because of ingesting these wastewaters. We say that in those circumstances, the Court should not find that the prosecutor has satisfied its burden of establishing to the criminal onus that the discharge actually caused the death of those cattle.

Your Honour, as to the difference that that might make at the end of the day, there may be more dispute here than really matters a great deal to sentence, because this is put in support of the prosecutor's position, that there is an aggravating factor under s 21A(2)(g). Your Honour will have gleaned from my submissions, my written submissions, that we say a commonsense approach is taken to environmental harm on a spectrum, so we say that the fact that this discharge probably caused the death of those cattle is a matter that the Court will take into account as a significant matter against the interests of my client.

We don't seek to derive a massive amount from a difference between it being established that it was a probable cause of the death of these cattle or it being proved beyond reasonable doubt but we fight this issue because the prosecutor seems to be saying that by making a finding of substantial harm under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act, that would somewhat ratchet up the penalty and we don't accept that proposition. I would like your Honour to understand that we say that the Court can and will, we expect, make the defendant answer by way of the imposition of this penalty if the Court is satisfied, as we admit, that this probably caused the death of those cattle. That doesn't really leave your Honour, in our submission, in much of a quandary about this, although your Honour is presumably going to have to make a finding as to whether the prosecutor has made out its onus of proving that it actually killed these cattle.

The Prosecutor’s reply submissions on the death of the cattle

58. The Prosecutor made brief reply submissions on this point in response to those set out above advanced on behalf the Company. The relevant portion of the transcript on this point is in the following terms (Transcript 14 March 2017, page 118, line 34 to page 119, line 41):

RUSHTON: Just briefly, your Honour, there's only two matters I wish to address: the first concerns the cows again. My learned friend quite properly and sensibly made a concession that if there was blue‑green algae in the farm water then the waste that had been discharged contributed to that, but what he then suggested - and it's the only suggestion he's put forward - is that there is a reasonable hypothesis consistent with innocence, namely that these cows may have been suffering from infection.

HOWARD: Sorry, I just have to interrupt and say it's not a proposition put consistent with innocence. The defendant maintains its plea of guilty, your Honour.

RUSHTON: An explanation consistent with some other cause. That cause was the possibility that the five cattle that died had picked up an infection. Can I just briefly take your Honour to what Associate Professor House says about that, and it's on p 7 of his report. My friend took you to that, but I just want you to concentrate, if your Honour wouldn't mind, on the words that he uses, "Infectious causes are also possible, however it appears unlikely and coincidental that this should occur in a four day period that happened to coincide with exposure with contaminated water." Pausing there, your Honour, I took your Honour to the decision of the High Court and Barca v The Queen. Does your Honour still have a copy of that?

135. On the question of likely environmental harm, relevantly, his Honour said, at [44], [47] and [48]:

44    On the basis of the documented cocktail of chemicals discharged into the pond over the offence period, it is most likely that any aquatic organisms present in the affected pond and creek waters over the offence period would have been adversely affected by exposure to the inorganic chemicals in the pollutants discharged from the premises over that period.

45   …

46   …

47   The water quality in the pond and downstream creek was degraded to a point that it would have likely adversely affected any exposed aquatic organisms.

48   The spill of 10-12 litres of concentrated phosphoric acid on the week commencing 8 June 2015 would have caused the pH of pond waters to drastically and abruptly drop to well below the ANZECC Guidelines’ site-specific acceptable pH range of 5-8. This would have caused severe adverse effects on any exposed organisms, including death to any organisms in the pond. This would also have triggered the mobilisation of, and increased the toxicity of, aluminium, copper and zinc.

136. I have earlier explained why I have not accepted Dr Pablo’s evidence in which she hypothesised what might have been the downflow impact on potential macro-invertabrate life. However, as can be seen from the above extracts from Environment Protection Authority v Custom Chemicals, the matter of harm and likely harm in that case were not comparable with the extent and nature of the actual harm caused by the Company’s polluted water discharge here involved.

137. Even so, in Custom Chemicals, the total monetary penalty equivalent that fell on that company in those proceedings was $360,000 - an amount not disproportionate to the amount I later set as the appropriate total penalty to be imposed for the two offences under consideration in these two matters.

The objective seriousness of the offences

138. Assessment of the objective seriousness of the offences is not a matter of mathematical precision along a defined continuum. In this instance, there is the earlier outlined contest between the Prosecutor (submitting that the offending conduct should be regarded as falling within the moderate to high range) and the position advanced on behalf of the Company that a significantly lesser characterisation should be adopted.

139. Weighing all the factual elements concerning the causation of the pollution, and taking into account the aggravating factor arising from s 21A(2)(g) of the Sentencing Procedure Act (as a statutorily derived factor) and the separate need to have regard to this factor as a consequence of S 241(a) of the POEO Act, I am satisfied that the Prosecutor’s general proposition is to be preferred. Indeed, having proper regard to the aggravating factor (the circumstances and nature of the death of the cattle), I am satisfied that the water pollution offence should be regarded as significantly above the middle of the range for offences of this type.

Sentencing

Introduction

140. The sentencing process to be followed here involves:

1. First, determination of an initial sentence for each of the two offences to which the Company has pleaded guilty; then

2. Determining the extent to which each such sentence should be discounted, having regard to the Company's early guilty pleas and the other factors weighing in the Company's favour; then

3. Finally, considering to what extent the resultant, potentially aggregated penalties should be further reduced having regard to the fact that the two offences arose out of the same incident and that, thus, having regard to matters of accumulation and totality, the total penalty should not be disproportionate as a consequence.

Tier 2 offences

141. It is also to be observed that the two offences with which the Company has been charged are Tier 2 offences. There are two matters arising out of this to be noted. The first is that Tier 2 offences are ones of strict liability, with the consequence of this being that it is sufficient for the Prosecutor to prove that the elements of the offence actually occurred and there is no necessity to address matters of intention and the like that would otherwise have arisen for consideration had the Company been charged with Tier 1 offences.

142. Second, the Company’s guilty pleas constitute admission of all the elements necessary to found conviction for each offence.

143. As a consequence, the maximum penalty for a corporation available to be imposed for the water pollution prosecution is $1,000,000 (see s 123 of the POEO Act), whilst the same maximum penalty applies for the licence condition breach (see s 64(1)(a) of the POEO Act).

The Prosecutor's costs

144. I have taken into account, as part of my instinctive sentencing synthesis, the fact that the Company is being ordered, in addition to the penalties to be imposed, to pay the Prosecutor's legal and investigation costs (EPA v Barnes [2006] NSWCCA 246).

Fitting in a range

145. Although a statutory maximum penalty is defined for each offence, it is necessary to consider whereabouts in a range of offending conduct each of the breaches to which the Company has pleaded guilty should be regarded as falling. This assessment of seriousness is necessary to take account of the fact that the legislature has, in determining the maximum penalty for such offences, reflected the seriousness with which the community regards breaches of these legislative provisions. This process is descriptive and is not one of mathematical precision.

146. Nor is it appropriate to endeavour to consider how the facts in a particular instance might relate to the “worst case”, as it is always possible to hypothesise some instance that might be regarded as worse than that under consideration in the particular proceedings. It is sufficient to consider what might be the broad category within which an offence should be regarded as falling (Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 at [15]).

The water pollution offence

147. In this instance, particularly having regard to the downstream impact on the farmer’s cattle (this being a factor of aggravation for the reasons earlier set out), I am satisfied that the offence committed of “water pollution” should be regarded as being more than somewhat significantly above the middle of the range of such offences – that is, as being significantly above the midpoint of the range of seriousness for such offences.

148. Undertaking the process of instinctive synthesis required to assess a penalty for this offence (reminding myself that the maximum penalty for a corporation is $1,000,000, as earlier noted), I have concluded that the appropriate starting penalty for this offence is $650,000.

The licence offence

The starting point

149. In light of the fact that the failure potentiality of the Valve (where the actual failure gave rise to the prosecution pursuant to s 64(1) of the POEO Act) was not readily apparent, as has been acknowledged in the Statement of Agreed Facts, means that more than a regular inspection regime was likely to have been necessary if such latency of defect could have been discovered (assuming that such latency was, in fact, capable of discovery).

150. As a consequence, I do not consider that this breach should be regarded as being of the same seriousness as the water pollution offence. The offence, however, is nonetheless of some seriousness, given the nature of the substances being transported by the pipe system of which this Valve formed a component part. Taking all the relevant factors into account, I am satisfied that this offence, although serious, should be regarded as falling somewhat below the midrange of seriousness of offences of this type.

151. I have concluded that the appropriate starting penalty for this offence is $100,000.

The benefit to the Company of its guilty pleas

152. I have earlier set out the terms of s 22 of the Sentencing Procedure Act. This provision requires me to have regard to the guilty pleas entered by the Company to each offence. These pleas, the Prosecutor accepts and I am satisfied is the position, were entered at the earliest opportunity.

153. The early entry of the Company’s guilty pleas has had a significant beneficial effect for the administration of justice, in that it spares the Prosecutor from the task of proving all the relevant elements of the offences charged and saves the court system the time and expense of running the trial that would be necessary to assess whether the Prosecutor has done so with respect to any of the offences charged.

154. In Thomson, the Court of Criminal Appeal established that the range of discount to be given to an offender who enters a guilty plea is up to a maximum of 25% of the penalty that would otherwise be imposed for the offence charged. The extent of the discount to be permitted is contingent on when the guilty plea was entered.

155. In these proceedings, the Company, as earlier noted, entered its guilty plea to each of the offences at the earliest available opportunity. As a consequence, I repeat that I am satisfied that it is appropriate to allow the Company the maximum 25% discount for the penalty that I would otherwise consider appropriate for each of the offences charged.

The appropriate overall discount

156. Having regard to the totality of all of the objective and subjective factors earlier set out (including the guilty plea discount), I am satisfied that the Company is entitled to an overall discount of 33.3% on each of the penalties that I have otherwise determined would be appropriate. This leads (before giving the necessary consideration dealt with below to the question of accumulation and totality) to a penalty for the water pollution offence of $433,334 (to the nearest dollar) and $66,667 (to the nearest dollar) for the breach of licence condition offence.

Accumulation and totality

157. Although the Company has been charged with two separate offences, they arise out of the same event. It is clear that the offence charged pursuant to s 64(1) of the POEO Act (of breaching the condition of the Company’s EPL requiring it to maintain its equipment in a properly functioning fashion) has its genesis in inadequacies in the Company's maintenance or periodic equipment replacement practices over a period of years.

158. Nonetheless, the failure that gave rise to the charge was evidenced by the discharge of the polluted water giving rise to the charge pursuant to s 120 of the POEO Act.

159. In such circumstances, because each of the charges is not entirely stand alone and absolutely unrelated to the other, it is appropriate to have regard to the extent to which some adjustment to the total of the two penalties set out above might also be appropriate in order to avoid failing, unjustly, to have regard to the interrelationship of the offences charged.

160. This is to be achieved by a further adjustment, I consider, to each of those penalties. This is appropriate to be achieved by setting the penalty for the water pollution offence at $400,000 and, for the breach of licence condition offence, at $60,000.

A publication of notice recording the Company’s conviction and sentence

The terms of a publication notice

161. The Court is given the power, pursuant to s 250(1) of the POEO Act, to require a person or company convicted of an offence or offences against the Act to publish a notice in a specified media publication or publications with such notice reporting the prosecution, its circumstances, the conviction and the penalty imposed.

162. It is, by now, frequently the position that the terms of such a notice, and the journals in which it is to be published, will be settled between the Prosecutor and the Defendant. However, it is to be observed that, even in the event of such agreement, this Court is not obliged merely to give effect to that agreement. The terms of the notice, and the publications in which it is to appear, are matters to be determined by the sentencing judge.

163. The publication of such a notice is, in my view (as discussed in 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 at [120] to [133]) to be regarded as an additional penalty. However, in addition to the punitive aspect of such notices, they also serve a significant aspect of the general deterrence function that sentencing for offences such as these fulfil by bringing to broader attention the consequences of acts such as those here giving rise to the matters for which this sentencing is taking place.

164. In Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76, I observed, inter alia, at [167], that such notices are “an aspect of the general deterrence from proceedings such as these”.

165. In a similar vein, in Environment Protection Authority v Waste Recycling and Processing Corporation, Preston CJ commented, at [242]:

Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent.

166. In these proceedings, there is no agreement between the Prosecutor and the Defendant as to the terms of the notice that should be published (although the Defendant clearly accepts the appropriateness of such a notice being published).

167. There is, however, agreement between the Prosecutor and the Defendant that the notice should be published in the Singleton Argus and in the Newcastle Herald. For reasons which I later discussed, I do not consider that publication should be restricted in this fashion.

168. However, before turning to the question of publications, it is necessary to address what should be the terms of such a notice. It is, first, appropriate to set out the terms of the notice proposed by the Prosecutor. The Prosecutor’s proposed notice would read:

DYNO NOBEL ASIA PACIFIC PTY LTD CONVICTED OF POLLUTING WATERS AT WARKWORTH

Dyno Nobel Asia Pacific Pty Ltd (ACN 003 269 010) (Dyno Nobel) has been convicted by the Land and Environment Court of New South Wales of two offences under the Protection of the Environment Operations Act 1997. Dyno Nobel was prosecuted by the Environment Protection Authority (EPA) and pleaded guilty to one offence of water pollution and one offence of contravening its Environment Protection Licence by failing to carry out its licensed activities in a competent manner.

The offences resulted from an incident in 2015 when waste waters from a dam on its licensed premises in Warkworth were discharged and flowed to a neighbouring farm. The waste waters contained high levels of nitrate and other contaminants. Dyno Nobel had caused the operation of a pump connected to evaporation sprays in the dam, but as a result of a valve on a transfer pipe failing, the waste waters discharged from the pipe. The waste waters flowed downhill through a gully on the premises, to a culvert under Gouldsville Road, into a dam on a neighbouring farm, across a paddock and into another gully on the farm.

The offence caused significant harm to the waters and would have affected aquatic life in the flow path. The resulting levels of pollutants including nitrate in the farm dam exceeded livestock drinking water guidelines. Five cattle on the farm were found dead following the incident. The soil and pasture in the paddock was also affected by the pollutant.

169. On the other hand, the Company proposes a notice that would have the substantive portions read:

DYNO NOBEL ASIA PACIFIC PTY LTD CONVICTED OF POLLUTING WATERS AT WARKWORTH

Dyno Nobel Asia Pacific Pty Ltd (ACN 003 269 010) (Dyno Nobel) has been convicted by the Land and Environment Court of New South Wales of two offences under the Protection of the Environment Operations Act 1997. Dyno Nobel was prosecuted by the Environment Protection Authority (EPA) and pleaded guilty to one offence of water pollution and one offence of contravening its Environment Protection Licence by failing to carry out its licensed activities in a competent manner.

The offences resulted from an incident in 2015 when waste waters from a dam on its licensed premises in Warkworth were accidentally discharged through a suspected faulty butterfly valve during pumping operations and flowed to a neighbouring farm. The waste waters contained elevated levels of nitrate, nitrite and ammonia. The waste waters flowed downhill through a gully on the premises, to a culvert under Gouldsville Road, into a dam on a neighbouring farm, across a paddock and into another gully on the farm.

Dyno Nobel cooperated fully with the EPA and accepted responsibility for the incident at the earliest opportunity.

Dyno Nobel has remediated the impacted land and provided compensation to the adjacent landholder.

[THE DEFENDANT PROPOSES THAT A SHORT SUMMARY PARAGRAPH IN LIEU OF THE PRECEDING PARAGRAPH BE SETTLED WHEN THE COURT MAKES FINDINGS IN RELATION TO THE HARM CAUSED OR LIKELY TO BE CAUSED TO THE ENVIRONMENT BY THE COMMISSION OF THE OFFENCES].

170. A much more limited contest concerning the wording of such a notice faced Sheahan J in Environment Protection Authority v Wambo Coal Pty Limited (ACN: 000 668 057) [2016] NSWLEC 125. In circumstances where the dispute was over the wording of a single sentence, his Honour resolved the dilemma with which he was faced by concluding that it was appropriate to adopt the Prosecutor’s proposed words (at [164] to [168]).

171. In this instance, I am not satisfied that the totality of the wording proposed by the Prosecutor is appropriate to be adopted for the purposes of the publication. The words “would have affected aquatic life in the flow path” are not appropriate in light of my earlier conclusion that such a finding would be entirely speculative on the basis of the evidence before me. That aspect of the Prosecutor’s proposed wording is therefore rejected.

172. On the other hand, the wording proposed by the Company is somewhat softer. The Company’s proposal for a subsequently-to-be-inserted paragraph is rendered otiose by the nature of my earlier finding that the Company had caused the death of the farmer’s cattle.

173. My conclusion as to causation of the death of the cattle, and my resultant conclusion as to the seriousness of the offending conduct (that it constitutes significant environmental harm) as a result, means that the general tenor of notice to be published is to be reflective, generally, of the version formulated by the Prosecutor. In addition, the notice should refer specifically to the death of the cattle and the partial abortion of a calf. It is not appropriate to soften or sanitise the description of what took place.

174. However, some elements of the Company’s proposed reformulation should be adopted.

175. As a result, I have concluded that the appropriate wording of the substantive element of the notice should be:

DYNO NOBEL ASIA PACIFIC PTY LTD CONVICTED OF POLLUTING WATERS AT WARKWORTH

Dyno Nobel Asia Pacific Pty Ltd (ACN 003 269 010) (Dyno Nobel) has been convicted by the Land and Environment Court of New South Wales of two offences under the Protection of the Environment Operations Act 1997. Dyno Nobel was prosecuted by the Environment Protection Authority (EPA) and pleaded guilty to one offence of water pollution and one offence of contravening its Environment Protection Licence by failing to carry out its licensed activities in a competent manner.

The offences resulted from an incident in 2015 when waste waters from a dam on its licensed premises in Warkworth were discharged and flowed to a neighbouring farm. The waste waters contained high levels of nitrate, nitrite and ammonia. Dyno Nobel had caused the operation of a pump connected to evaporation sprays in the dam but, as a result of a valve on a transfer pipe failing, the waste waters discharged from the pipe. The waste waters flowed downhill through a gully on the premises to a culvert under Gouldsville Road, into a dam on a neighbouring farm, across a paddock and into another gully on the farm.

Dyno Nobel cooperated fully with the EPA and accepted responsibility for the incident at the earliest opportunity.

Dyno Nobel has remediated the impacted land and provided compensation to the adjacent landholder.

The offence caused substantial environmental harm. The waste water discharge resulted in high levels of pollutants in the farm dam. Five cattle on the farm were found dead following the incident. One cow had partially aborted its calf. The soil and pasture in the paddock were also affected by the pollutants.

176. The parties are in agreement as to the formal aspects of the recording of dates and amounts at the conclusion of the descriptive text and I see no need to intervene with that agreed formulation. As a consequence, the terms of the notice are to be those set out in Annexure A to this decision.

Publications to be included

177. As earlier noted, publication notices are not merely simply matters of “name and shame” for a defendant but also have value in their power to afford notice to others as an element of general deterrence. Indeed, I am satisfied that such notices have a potentially powerful deterrent effect, particularly if they are sufficiently widely likely to be read amongst the Australian business community.

178. It is for this value of general deterrence that I have concluded that it is appropriate to expand the range of publications beyond merely that of the Singleton Argus and the Newcastle Herald, publications of comparatively limited local or regional reach. To expand the general deterrent effect in a fashion which I consider takes the appropriate message to the broader Australian business community, the orders made in these proceedings also require that the notice be published in the Australian Financial Review.

Size of the notices

179. The parties propose that the notices should be of a minimum size of 9 centimetres by 12 centimetres and I see no reason to depart from that agreed position.

Positioning of the notice

180. It has become customary to require that notices be published within a specified number of pages from the publications’ cover (including the cover in the counting). This is an approach which I also embrace but one where I propose to be specific, differentially, for the Singleton Argus, a publication of more local circulation in the portion of the Hunter Valley where the Site is located, whist being slightly less prescriptive for both the Newcastle Herald and the Australian Financial Review.

181. However, it has also been established that material published on the right‑hand page of a pair of internal opposing pages of a newspaper is more likely to be read than material on a left-hand page of such a pair of opposing pages. The orders, therefore, require that the advertisement to be placed in the Newcastle Herald and the Australian Financial Review, in addition to specifying the page count from the front of each paper within which the advertisement is to be placed, also specify that the advertisement is to be placed on a right-hand page.

Provision of copies of the advertisement

182. It is also usual that the orders require that a copy of the advertisement, from each publication, be provided to the Prosecutor. I consider it is appropriate to amend this requirement in two respects. First, I consider it appropriate that what is to be provided is to be a copy of the whole page of the publication so that the advertisement can be seen in its proper location and context.

183. Second, I consider it is also appropriate to require that a copy of each of the relevant pages should also be filed with the Court so that the advertisement and its location and context are available as part of the publicly accessible documents on the Court’s file (against the eventuality that there might be some future academic research undertaken into publication orders and their attributes – whether as to content, efficiency or any other aspect that might provide some proper foundation for scholarly research).

Conclusion

184. In summary, I have concluded:

1. The proved environmental harm was confined, primarily, to the deaths of the farmer’s cattle;

2. The manner of the death of the cattle is appropriate to be taken into account when assessing the extent of the environmental harm caused by the Company's discharge of polluted waters;

3. In the relevant statutory context, the environmental harm caused by the discharge of the polluted waters was substantial and, therefore, to be taken into account as a factor of aggravation in the sentencing process for the water pollution offence;

4. As a consequence, the breach of s 120(1) of the POEO Act is to be regarded as significantly above the midpoint of the range of seriousness for such offences;

5. On the other hand, for the reasons set out, the breach of s 64(1) of the POEO Act by failing to comply with a condition of the Company’s EPL is to be regarded as somewhat below the midrange of seriousness of offences of this type;

6. After applying a one-third discount, having had regard to the relevant objective and subjective circumstances and, after having done so, making further adjustments to address accumulation and totality, the appropriate penalties are a fine of $400,000 for the water pollution offence and $60,000 for the licence breach offence;

7. The versions of a publication notice proposed by the Prosecutor and by the Company are, in general context, acceptable. However, I have adopted a version, modified by me and set out in Annexure A, which I consider more correctly reflects what should be said concerning my findings and the outcome of the proceedings;

8. The proposal of the parties that such notice should be published in the Singleton Argus and the Newcastle Herald would provide insufficient public denunciation of the Company’s offending conduct for the purposes of general deterrence. As a consequence, I have determined that the notice should also be published in the Australian Financial Review and I have specified, for each of the three publications, the size and positioning of the notice; and

9. I have also ordered the Company to pay the Prosecutor's legal and investigation expenses in the sums agreed to by the parties.

Orders

185. The orders of the Court therefore are:

1. In Matter No 147872 of 2016, Dyno Nobel Asia Pacific Pty Ltd (the Defendant) is convicted of pollution of waters contrary to s 120(1) of the Protection of the Environment Operations Act 1997;

2. In Matter No 147872 of 2016, the Defendant is fined $400,000;

3. In Matter No 147999 of 2016, the Defendant is convicted of failure to comply with a licence condition contrary to s 64(1) of the Protection of the Environment Operations Act 1997;

4. In Matter No 147999 of 2016, the Defendant is fined $60,000;

5. The Defendant is to pay the Prosecutor’s legal costs in the amount of $72,000;

6. The Defendant is to pay the Prosecutor’s investigation costs in the amount of $750; and

7. For the purposes of both proceedings, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, within 28 days of the date of this order, at its expense, the Defendant will cause a notice in the form of Annexure A at a minimum size of 9 cm by 12 cm to be placed in:

1. the Singleton Argus;

2. the Newcastle Herald; and

3. the Australian Financial Review;

8. The notice in (7)(i) is to be published within the first ten (10) pages of the issue within which it appears;

9. The notices in (7)(ii) and (iii) are to be published on an odd-numbered page within the first thirteen (13) pages of the issue of the publication within which they appear; and

10. Within 35 days of the date of this order, the Defendant is to provide to the Prosecutor and file with the Court a complete copy of the page of each of the publications in which the notice appears.

**********

ANNEXURE A

DYNO NOBEL ASIA PACIFIC PTY LTD CONVICTED OF POLLUTING WATERS AT WARKWORTH

Dyno Nobel Asia Pacific Pty Ltd (ACN 003 269 010) (Dyno Nobel) has been convicted by the Land and Environment Court of New South Wales of two offences under the Protection of the Environment Operations Act 1997. Dyno Nobel was prosecuted by the Environment Protection Authority (EPA) and pleaded guilty to one offence of water pollution and one offence of contravening its Environment Protection Licence by failing to carry out its licensed activities in a competent manner.

The offences resulted from an incident in 2015 when waste waters from a dam on its licensed premises in Warkworth were discharged and flowed to a neighbouring farm. The waste waters contained high levels of nitrate, nitrite and ammonia. Dyno Nobel had caused the operation of a pump connected to evaporation sprays in the dam but, as a result of a valve on a transfer pipe failing, the waste waters discharged from the pipe. The waste waters flowed downhill through a gully on the premises to a culvert under Gouldsville Road, into a dam on a neighbouring farm, across a paddock and into another gully on the farm.

Dyno Nobel cooperated fully with the EPA and accepted responsibility for the incident at the earliest opportunity.

Dyno Nobel has remediated the impacted land and provided compensation to the adjacent landholder.

The offence caused substantial environmental harm. The waste water discharge resulted in high levels of pollutants in the farm dam. Five cattle on the farm were found dead following the incident. One cow had partially aborted its calf. The soil and pasture in the paddock were also affected by the pollutants.

On 31 May 2017, Dyno Nobel was convicted and ordered by the Land and Environment Court to:

1.   pay fines totalling $460,000;

2.   pay the EPA’s legal costs of $72,000;

3.   pay the EPA’s investigation costs of $750; and

4.   place and pay for this publication notice in the Australian Financial Review, the Singleton Argus and the Newcastle Herald.

Decision last updated: 31 May 2017