Environment Protection Authority v Maules Creek Coal Pty Ltd (No 4)

[2025] NSWLEC 92

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Environment Protection Authority v Maules Creek Coal Pty Ltd (No 4) [2025] NSWLEC 92

Hearing dates:

8 and 9 April 2025

Date of orders:

27 August 2025

Decision date:

27 August 2025

Jurisdiction:

Class 5

Before:

Pritchard J

Decision:

See orders at [230]

Catchwords:

SENTENCE – environmental offences – three offences contrary to s 64 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) – one offence contrary to s 140 of the POEO Act – applicable sentencing principles under Crimes (Sentencing and Procedure) Act 1999 (NSW) – objective seriousness of offence – strict liability – causation – insufficient evidence of actual harm to human health or environment – potential risk of harm to human health and environment – subjective circumstances of offender – lack of remorse – prior convictions – need for specific deterrence – totality – fine imposed – publication order – moiety – order pursuant to s 250(1)(c) of the POEO Act

Legislation Cited:

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

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

Protection of the Environment Operations Act 1997 (NSW) ss 64, 140, 241, Dictionary

Cases Cited:

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

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

Baker v R [2023] NSWCCA 262

Bankstown City Council v Hanna [2014] NSWLEC 152

Baumer v R (1988) 166 CLR 51

Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86

Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34

Budvalt Pty Ltd v Barnes [2022] NSWCCA; (2022) 251 LGERA 28

Burwood Council v Alam [2025] NSWLEC 2

Camilleri’s Stock Feeds v EPA (1993) 32 NSWLR 683

Chief Executive, Office of Environment and Heritage v Anthony Guy Murphy [2019] NSWLEC 120

Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51

Chief Executive, Office of Environment and Heritage v Douglas Brian Reitano (No 2) [2019] NSWLEC 39

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

Connell v Santos NSW Pty Limited [2014] NSWLEC 1

Director-General of the Department of Environment and Climate Change v Rae (2009) 68 LGERA 121; [2009] NSWLEC 137

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

Dyno Nobel Asian Pacific Pty Ltd v EnvironmentProtection Authority (2017) 228 LGERA 55; [2017] NSWCCA 302

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

Environment Protection Authority v Abbas [2021] NSWLEC 57

Environment Protection Authority v Ashmore [2014] NSWLEC 136

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

Environment Protection Authority v Ballina ShireCouncil (2006) 148 LGERA 278; [2006] NSWLEC 289

Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45

Environment Protection Authority v Belessis [2000] NSWLEC 251

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

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

Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 70

Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75

Environment Protection Authority v Geoff Robinson Pty Ltd; Environment Protection Authority v Robinson [2011] NSWLEC 14

Environment Protection Authority v Ghossayn [2009] NSWLEC 181

Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127

Environment Protection Authority v Koppers Carbon Materials & Chemicals Pty Ltd (the Spill Incident) [2021] NSWLEC 12

Environment Protection Authority v Maules Creek Coal Pty Ltd [2022] NSWLEC 33

Environment Protection Authority v McMullen [2020] NSWLEC 87

Environment Protection Authority v Metropolitan Collieries Pty Ltd [2025] NSWLEC 23

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

Environment Protection Authority v Orica Australia Pty Ltd (2014) 206 LGERA 239; [2014] NSWLEC 103

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

EnvironmentProtectionAuthorityv Pullinger (No 3) [2025] NSWLEC 59

Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd (2010) 174 LGERA 314; [2010] NSWLEC 114

Environment Protection Authority v Sydney Water Corporation [2024] NSWLEC 130

Environment Protection Authority v Sydney Water (No 2) [2023] NSWLEC 2

Environment Protection Authority v Timber Industries Ltd [2000] NSWLEC 39

Environment Protection Authority v Transpacific Industries Pty Limited; Environment Protection Authority v Transpacific Refiners Pty Limited [2010] NSWLEC 85

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

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

Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312

Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Metziya Pty Ltd [2003] NSWLEC 196

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

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242

Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6

Hunter v R [2011] NSWCCA 141

Imbornone v The Queen [2017] NSWCCA 144

Josevski v The Queen [2010] NSWCCA 41; (2010) 217 A Crim R 183

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

Lismore City Council v Ihalainen (No 2) [2014] NSWLEC 198

Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

McGonigle v R [2020] NSWCCA 84

Mill v The Queen (1988) 166 CLR 59

Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27

O’Neill-Shaw v R [2010] NSWCCA 42

Pearce v The Queen (1994) 194 CLR 610

Plath v Rawson (2009) 170 LGERA 253

R v Allpass (1993) 72 A Crim R 561

R v Dodd (1991) 57 A Crim R 349

R v H (1980) 3 A Crim R 53

R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267

R v Holder [1983] 3 NSWLR 245

R v JRD [2007] NSWCCA 55

R v McGourty [2002] NSWCCA 335

R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242

R v Murray (unreported, NSW Court of Criminal Appeal, 22 October 1997)

R v Nicols (1991) 57 A Crim R 391

R v Peel (1971) 1 NSWLR 247

R v Porte [2015] NSWCCA 174

R v Scott [2005] NSWCCA 152

R v Sgroi (1989) 40 A Crim R 197

R v To (2007) 172 A Crim R 121

R v Wheeler [2000] NSWCCA 34

R v Wickham [2004] NSWCCA 193

Royall v The Queen (1991) 172 CLR 378

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

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

Transport for New South Wales v Estuary Constructions Pty Ltd; Transport for New South Wales v Sampson [2022] NSWLEC 23

Veen v R (1979) 143 CLR 458

Veen v R (No 2) (1988) 164 CLR 465

WaterNSW v Peter James Harris and Jane Maree Harris [2023] NSWLEC 33

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Whelan v R [2012] NSWCCA 147

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

Environment Protection Authority v Forestry Corporation of New South Wales [2024] NSWLEC 78

Hijazi v Georges River Council [2020] NSWLEC 36

Category:

Sentence

Parties:

Environment Protection Authority (Prosecutor)
Maules Creek Coal Pty Ltd (Defendant)

Representation:

Counsel:
C Leggat SC and G Marsden (Prosecutor)
T Howard SC and J Lee (Defendant)

Solicitors:
Legal Services Branch, Environment Protection Authority (Prosecutor)
King & Wood Mallesons (Defendant)

File Number(s):

2021/234554; 2021/234556; 2021/234557; 2021/234558

Publication restriction:

Nil

JUDGMENT

Introduction

The four charges

The timing charge: proceeding 2021/234554

The stemming length charge: proceeding 2021/234556

The overloading charge: proceeding 2021/234557

The emission of noise charge: proceeding 2021/234558

Finding of guilty in respect of each of the four offences

Evidence

Prosecutor’s evidence

Defendant’s evidence

Evidence in relation to harm to human health

Prosecutor’s evidence in relation to harm to human health

Defendant’s evidence in relation to harm to human health

Evidence in relation to good character

Relevant legislative provisions

Evidentiary principles applicable in sentencing

General principles of sentencing

Objective seriousness of the offences

Maximum penalties

The nature and circumstances of the offences

Prosecutor’s submissions in relation to the nature and circumstances of the offences

Defendant’s submissions in relation to the nature and circumstances of the offences

Conclusions in relation to the nature and circumstances of the offences

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

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

The issue of causation

Alleged damage to the biodiversity corridor

Alleged harm to human health

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

Alleged flaw in the prosecutor’s approach to harmfulness and causation

Alleged damage to the biodiversity corridor

Alleged harm to human health

Conclusions in relation to the harm caused or likely to be caused to the environment by the commission of the offences

Defendant’s state of mind and reasons for committing the offence

Prosecutor’s submissions in relation to the defendant’s state of mind and reasons for committing the offences

Defendant’s submissions in relation to the defendant’s state of mind and reasons for committing the offences

Conclusions in relation to the defendant’s state of mind and reasons for committing the offences

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

Prosecutor’s submissions in relation to the practical measures that may be taken to prevent, control, abate or mitigate the harm

Defendant’s submissions in relation to the practical measures that may be taken to prevent, control, abate or mitigate the harm

Conclusions in relation to the practical measures that may be taken to prevent, control, abate or mitigate the harm

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

The prosecutor’s submissions in relation to the foreseeability of harm

Defendant’s submissions in relation to the foreseeability of harm

Conclusions in relation to the foreseeability of harm

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

Prosecutor’s submissions in relation to the extent to which the defendant had control over the causes that gave rise to the offences

Defendant’s submissions in relation to the extent to which it had control over the causes that gave rise to the offences

Conclusions in relation to the defendant’s control over the causes that gave rise to the offences

Prosecutor’s general submissions in relation to objective seriousness

Defendant’s general submissions in relation to objective seriousness

Conclusions in relation to objective seriousness

Subjective circumstances of the defendant

Previous convictions: s 21A(2)(d) of the CSP Act and s 21A(3)(e) of the CSP Act

Prosecutor’s submissions in relation to previous convictions

Defendant’s submissions in relation to previous convictions

Conclusions in relation to previous convictions

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

Prosecutor’s submissions in relation to the remorse shown by the offender for the offences

Defendant’s submissions in relation to the remorse shown by the offender for the offences

Conclusions in relation to the remorse shown by the offender for the offences

Good character, likelihood of re-offending and prospects of rehabilitation: s 21A(3)(f), (g) and (h) of the CSP Act

Prosecutor’s submissions in relation to good character, likelihood of re-offending and prospects of rehabilitation

Defendant’s submissions in relation to good character, likelihood of re-offending and prospects of rehabilitation

Conclusions in relation to good character, likelihood of re-offending and prospects of rehabilitation

Regard for public safety: s 21A(2)(i) of the CSP Act

Prosecutor’s submissions in relation to whether the offences were committed without regard for public safety

Defendant’s submissions in relation to whether the offences were committed without regard to public safety

Conclusions in relation to whether the offences were committed without regard for public safety

Whether the injury, loss or damage caused by the offence was not substantial: s 21A(3)(a) of the CSP Act

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

Other sentencing factors

General and specific deterrence

Prosecutor’s submissions in relation to general and specific deterrence

Defendant’s submissions in relation to general and specific deterrence

Conclusions in relation to general and specific deterrence

Totality

Prosecutor’s submissions in relation to the totality principle

Defendant’s submissions in relation to the totality principle

Comparative cases

The appropriate penalties to be imposed

Additional orders sought

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

Moiety

Order pursuant to s 250(1)(c) of the POEO Act in relation to a specified project for the restoration or enhancement of the environment

Costs

Orders

JUDGMENT

Introduction

1. In Environment Protection Authority v Maules Creek Coal Pty Ltd(No 3) [2024] NSWLEC 97 (the liability judgment), the Court found the defendant guilty of the four offences with which it was charged in connection with the overburden blast HRN_08_39_OB (the blast) carried out by Maules Creek Coal Pty Ltd ACN 140 533 875 (the defendant) on 20 August 2020 at 10:22 am at the Maules Creek open cut coal mine (the mine), located at Therribri Road, Boggabri in north-west NSW. The blast took place along part of the Herndale seam which runs through the upper benches of the mine (the Herndale seam).

2. The mine is an open cut coal mine approximately 45 kilometres to the southeast of Narrabri and approximately 16 kilometres to the north-northeast of Boggabri. The mine is approximately 1.3 kilometres to the north of the Boggabri coal mine, and 5.2 kilometres to the north of the Tarrawonga coal mine. Mining operations commenced at the mine in 2014.

3. At all relevant times, the defendant held environment protection licence number 20221 (the EPL) issued under s 55 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) on 2 May 2013.

4. At all relevant times, Whitehaven Coal Limited (ACN 124 425 396) (Whitehaven Coal) was the ultimate holding company of the defendant.

5. The offences described in the liability judgment at [8]–[15] were three offences of carrying out the blast (a licensed activity) otherwise than in a competent manner contrary to condition O1.1 of the defendant’s EPL, being offences against s 64(1) of the POEO Act, and a fourth offence of dealing with materials in such a manner as to cause the emission of noise from the mine and the noise so caused or any part of it was caused by its failure to deal with those materials in a proper and efficient manner, being an offence against s 140(1) of the POEO Act.

6. It arises now to determine the appropriate penalties for the four offences.

The four charges

The timing charge: proceeding 2021/234554

7. The first charge was that between about 4 and 20 August 2020, at or near the mine, the defendant did not carry out the licenced activities in a competent manner in that it programmed the electronic initiation system for the blast with a burden relief time of 0.8–1.5 ms/m, which did not provide good progressive release of burden as required under section 3.3.5 of the defendant’s blast management plan (the timing charge). WHC_PLN_MC_BLAST MANAGEMENT PLAN (the BLMP) was first prepared in May 2013, and last updated to “Issue 2.2” in 2018.

The stemming length charge: proceeding 2021/234556

8. The second charge was that between about 4 and 20 August 2020, at or near the mine, the defendant did not carry out the licensed activities in a competent manner in that it designed the blast with a stemming length for the blast holes of 3.0 meters which deviated from the defendant’s Whitehaven Coal Drill and Blast Design Standard Fixed Pattern also known as “ST_HRN_229_OB_D_1” (the design standard) dated 16 October 2019 (the stemming length charge).

The overloading charge: proceeding 2021/234557

9. The third charge was that between about 4 and 20 August 2020, at or near the mine, the defendant did not carry out the licensed activities in a competent manner because it overloaded approximately 19% of blast holes for the blast with more than 10% of the amount of explosives prescribed in the design for the blast, which was in contravention of the defendant’s procedure for loading and stemming blast holes (the overloading charge).

The emission of noise charge: proceeding 2021/234558

10. The fourth charge was that between about 4 and 20 August 2020, at or near the mine, the defendant committed an offence against s 140(1) of the POEO Act in that, as the occupier of the licensed premises, it dealt with materials in or on the premises in such a manner as to cause the emission of noise from the licensed premises, and the noise so caused (or any part of it) was caused by its failure to deal with those materials in a proper and efficient manner (the emission of noise charge).

Finding of guilty in respect of each of the four offences

11. On 4 October 2024, I found the defendant guilty of each of the four offences following a trial which was conducted between 30 January and 3 February 2023, 6 and 10 February 2023, 18 and 21 September 2023, and 13 and 16 November 2023.

12. On 31 October 2024, I made final orders in each of the four proceedings.

Evidence

13. In the liability judgment, I made numerous findings of fact, most of which are also relevant to sentencing. In addition to the evidence already before the Court and that which was adduced for the purpose of sentencing, the parties agreed on two discrete facts concerning the defendant’s prior convictions for environmental offences:

1. On 25 November 2021, the defendant was convicted of and fined $187,500 for a breach of s 60A(2) of the Water Management Act 2000 relating to the taking of water from the Maules Creek Water Source without an access licence for that water source between about 1 July 2016 and 30 June 2019: Natural Resources Access Regulator v Maules Creek Coal Pty Ltd [2021] NSWLEC 135.

2. On 31 March 2022, the defendant was convicted of three offences against s 120 of the POEO Act for polluting waters with sediment on 18 January 2020 and 8 February 2020, as well as polluting waters with expanded polystyrene beads on 8 February 2020. The defendant was ordered to pay a total monetary penalty of $158,750 to the Environmental Trust: Environment Protection Authority v Maules Creek Coal Pty Ltd [2022] NSWLEC 33.

Prosecutor’s evidence

14. At the sentencing hearing, the prosecutor read the following affidavits and tendered the following documents:

1. statement of agreed facts dated 2 December 2022;

2. affidavit of Dr Henley Harrison, Ear Nose and Throat specialist, sworn 16 January 2025, and his expert report addressing the harm to health sustained by Jonathon Byrnes as a result of the blast (the Harrison report);

3. transcript of record of interview with Alexandra Williams, environmental officer employed by the defendant and on shift at the time of the blast, dated 4 April 2021. In that interview, Ms Williams:

1. described a 250-metre shared corridor "immediately off where the active mining area is" between the mine and Boggabri coal mine to allow wildlife access from the eastern side of the Leard State Forest down to the Namoi River (the biodiversity corridor or the vegetated corridor);

2. described the vegetation in the biodiversity corridor as follows:

Yeah, so it's Ironbark White Cypress Pine, a little bit of White box, not very much, a few scattered hollow-bearing trees, but the most part it's quite juvenile obviously because that areas been previously logged.

3. said that after the blast she “saw branches that had been snapped off trees and the notably, a large crack that extended from the blast area into the biodiversity corridor”;

4. said that the crack "would have been about 5 meters, 5 to 10 meters" in length, and was "I guess maybe 40 centimetres long". At its widest, "it was between 10 to 15 centimetres";

5. in relation to the trees she saw damaged in the biodiversity corridor, said the trees were "Mainly the White Cypress Pine because it's quite soft wood, the Ironbark's, you know, pretty tough". She did not see any damage to any hollow bearing trees; and

6. said that “on the Monday … the earthmoving guys were taken up there [to the biodiversity corridor] to remove the flyrock where they could, with minimal disturbance”.

4. transcript of record of interview with Matthew Williams dated 27 April 2021;

5. transcript of record of interview with Ryan Gomez, technical services superintendent at the mine at all relevant times, dated 30 April 2021, in which Mr Gomez answered the following questions about the impact of the blast on the biodiversity corridor:

Q: Okay.

A: - - - actually, I lie. There were a few rocks or something that went somewhere wasn't there? There was a few rocks that scattered and hit a tree or something.

Q: Okay. So, we've been told that, "about 10 to 20 meters away from the blast is the biodiversity corridor" - - -

A: Yeah, yeah.

Q: - - - yeah, and we've been told that, "flyrock did enter that corridor - - -

A That is true yes - - -

Q: - - - and damaged" - - -

A: - - - that is true.

Q: - - - yes, "and damaged vegetation."

A: Yeah.

6. report of Thomas Lewandowski titled “Maules Creek Coal: Review of meteorological constraints relative to overpressure hazard when blasting at Maules Creek Coal” dated 21 January 2021 (the Lewandowski report). Under the heading “Air blast level estimation for Boggabri mine”, Mr Lewandowski said:

To estimate the potential airblast over pressure impact for Boggabri Mine, data from Coomalagah monitoring station was utilised. In this case, the location of Coomalagah monitoring station was used as a reference point and the rule of 8.6 dBL decrease in the airblast level with the doubling distance (as specified in the AS 2187.2 2006) was applied.

Based on this analysis, potential airblast overpressure exposure for Boggabri Mine (located within 2.4 – 5.6.km distance) was assessed to be in the order of approximately 135 - 141 dBL, see Figure 2.

7. article authored by Kunio Mizutari titled “Blast-induced hearing loss” published in the Journal of Zheijang University dated 2019 (the Mizutari article); and

8. article authored by Hamid Jalilvand titled “Effects of blast and acoustic trauma: assessment of hearing status on war veterans” published in ENT and Audiology News dated 2014 (the Jalilvand article).

15. The prosecutor also relied on the report of Mr Tapan Goswami of Blast Outcome Services prepared for Whitehaven Coal dated 14 September 2020 which investigated the blast. In that report Mr Goswami said “There were some rocks spilled over to the Leard State Forest from this blast. This was subsequently picked up by the blast crew”.

Defendant’s evidence

16. The defendant read the following affidavits and tendered the following reports:

1. affidavit of Dr Paul Fagan, otolaryngologist, dated 7 March 2025, and his expert report exhibited thereto (the Fagan report), addressing the harm to human health alleged by the prosecutor to have been sustained by Jonathon Byrnes as a result of the blast, and responsive to the Harrison report;

2. Mr Ian Humphris, chief operating officer of Whitehaven Coal, dated 10 March 2025; and

3. report for Mr Jonathon Byrnes dated 17 October 2023 prepared by Sharon King Hearing Centres in the nature of an audiogram (the Sharon King Hearing Centres report), which recorded that Mr Byrnes was 600 metres away from the blast, and that “Mr Byrnes advised that he does not experience any otalgia, fullness of the ears, and does not experience any dizziness; however, does experience unilateral left sided tinnitus that is periodic and bothersome”.

17. At the sentencing hearing, Mr Howard SC for the defendant also drew the Court’s attention to the records of interview with Emma Bulkeley, environmental superintendent, Whitehaven Coal dated 14 April 2021, and Ms Williams, dated 4 April 2021 as set out at [14(3)] above.

18. In her record of interview, Ms Bulkeley was asked "What reports did you receive about any impacts on the environment?”, and answered “So, I was informed that some flyrock had been thrown into the vegetative corridor". Ms Bulkeley was asked "what damage in that corridor did that flyrock cause?", and answered "Minimal damage". The investigator asked "what do you mean by minimal?", and Ms Bulkeley answered "It went in maybe 10 metres", "It didn't affect the vegetative corridor in a way for it to be - not to be able to be used as a vegetative corridor", and "It may have knocked a few sticks off dead trees, but it did not bowl over trees or anything like that". Ms Bulkeley said that "When I went out there…there was flyrock in the corridor and minimal to no damage. There were some sticks and stuff that may have been". When asked about the type of vegetation located in the biodiversity corridor, she answered, "Probably most of it's ironbark, from memory". Ms Bulkeley said "There was no material environmental harm caused to the vegetative or the vegetated corridor. It was still able to work as a vegetated corridor". She also said that the flyrock extended “Maybe 10 meters” into the biodiversity corridor.

19. Ms Bulkeley also said that “they would have needed to” take both the location of the biodiversity corridor and the fact that it was relatively close to the corridor into consideration as “part of the drill and blast design”. She said that she understood there was a 10 metre standoff distance from the blast area to the edge of the corridor. In relation to cracking within the biodiversity corridor alleged to have been caused by the blast, Ms Bulkeley said “There was some cracking within the bio-corridor, but I can’t, that can’t be determined whether that came from the blast or whether it was from the drought or from previous blasts there”. Ms Bulkeley said that the cracking was “minimal”, and in answer to the question “How big … how long [was the cracking]” said that she could not recall.

20. Ms Bulkeley agreed that the blast originally scheduled to be carried out on 19 August 2020 at 3:30pm was rescheduled to 20 August 2020 (see the liability judgment at [76]). She said that she had a conversation, “potentially” with Mick Clark, the drill and blast superintendent, to the effect that “it was unsafe to leave the blast tied up and it couldn’t be untied … and required firing” as the shot had been tied for 24 hours, and that she “was just told it was a manual tie up that could not be untied”.

21. Mr Howard also drew the Court’s attention to the following extract from the record of interview with Dr Cameron McKenzie, the blasting consultant engaged by the defendant, dated 24 May 2021 in relation to the biodiversity corridor:

Q. Okay. And so just to clarify there, Cameron, Ryan [Gomez] never mentioned to you anything about a biodiversity corridor?

A. Sorry, yes, he did. I beg your pardon, it's not written anywhere, but he did mention that in the telephone discussion. And that related to disturbance to the rock mass behind the blast. Now I'm not exactly sure where that biodiversity zone was. He never sent me a file or any information which identified exactly where that was but you will note in an email from Lee Butler that he said that in implementing the recommended timing solution he included an additional very large delay for the last five rows of the shot. And that was specifically to address any material being thrown back into the biodiversity zone.

Evidence in relation to harm to human health

Prosecutor’s evidence in relation to harm to human health

22. In relation to harm to human health, the prosecutor relied on the following evidence of harm alleged to have been caused to Rebecca Severin and Jonathan Byrnes, employees of the adjacent Boggabri coal mine, as a result of the blast:

1. Ms Severin, who was working at the Boggabri coal mine at the time of the blast, experienced a pain in her ear, including constant ringing and an ache. She attended Boggabri Hospital for an ear check and returned to work that afternoon. Ms Severin had not reported any further health issues following the blast. ^[1]

2. Mr Byrnes, who was working at the Boggabri coal mine at the time of the blast, considered that he had suffered damage to his ears in the form of hearing loss and tinnitus. ^[2] Subsequent to the blast, Mr Brynes experienced ringing in his left and right ears, resulting in a diagnosis of tinnitus. The ringing impacted his ability to concentrate, focus and sleep. Mr Byrnes' ongoing symptoms affected his quality of life and employment.

   1. Liability judgment at [291].

   2. Liability judgment at [291].

23. The prosecutor also relied on the evidence of various community witnesses at neighbouring properties as to the noise and vibration resulting from the blast, including that of Roselyn Druce, Christine Westlake, Ross Kereopa and Lynette Louis, as well as the Court’s finding in the liability judgment that the noise and vibration caused by the blast were out of the ordinary. ^[3]

    3. Liability judgment at [294].

24. In relation to injuries said by the prosecutor to have been sustained by Mr Byrnes, the prosecutor relied on the Harrison report prepared for the purpose of pending common law proceedings taken by Mr Byrnes against the defendant in which Dr Harrison addressed0 the harm to human health sustained by Mr Byrnes as a result of the blast. In his report, Dr Harrison opined that:

1. Mr Byrnes was suffering from bilateral sensorineural deafness and tinnitus due to acoustic trauma arising from the blast;

2. Dr Harrison’s audiologist, Ms Jane Collingwood, performed an audiogram on Mr Byrnes on 9 May 2024;

3. the audiogram dated 9 May 2024 showed bilateral sensorineural deafness, “a little worse on the right side and mainly affecting the high frequencies”;

4. Mr Byrnes was likely to be suffering from intermittent earache and ear fullness due to temporomandibular dysfunction aggravated by the effects of the blast;

5. the blast was the cause of Mr Brynes' symptoms; and

6. Mr Byrnes' tinnitus was likely permanent and his ongoing symptoms would adversely affect his quality of life and employment due to the effects on his concentration and sleep associated with consequent fatigue.

25. During cross-examination, Dr Harrison accepted that he had not prepared his report for the purpose of these proceedings, rather it was a “workers’ compensation report”. Dr Harrison also gave the following evidence in relation to what Mr Byrnes told him about his experience of tinnitus:

Q. If you go to about halfway down what looks like one paragraph there, the first full paragraph or the first long paragraph, do you see the sentence, the short sentence, "The ears appear about equally affected"?

A. Yes.

Q. And that's what Mr Byrnes told you?

A. I probably asked him if the ears - if he'd noticed any difference between the ears.

Q. But the answer he gave is what he told you? In other words, what you've recorded there is information he gave to you?

A. Yes, that's correct.

Q. He certainly didn't suggest to you that he was experiencing tinnitus only in one ear, did he?

A. No.

Q. And he certainly didn't suggest to you that he was experiencing tinnitus only in his left ear?

A. No.

26. Dr Harrison gave the following evidence in relation to the Fagan report:

1. he agreed with Dr Fagan’s proposition that “Proof of such hearing loss [caused by the noise of a blast] is demonstrated by audiogram, albeit not an objective test”; and

2. in relation to Dr Fagan’s proposition that “hearing loss demonstrated by an audiogram would also be maximal immediately following the sound or blast, with any hearing loss improving from that point onward”, and whether he (Dr Harrison) “would expect that to be the case”:

A. I had thought so until I read the articles to which Professor Fagan refers. One of them states that - well, maybe both of them state that the hearing loss can get worse, and this is certainly an eye-opener for me because I had thought that after any trauma to the inner ear that hearing would be inclined to get better, but at least one of the articles that he refers to says the contrary.

Dr Harrison clarified that the article to which he was referring was the Jalilvand article, referred to in the Fagan report.

Defendant’s evidence in relation to harm to human health

27. In relation to Dr Fagan’s report, the defendant noted the following:

1. that Dr Fagan is an eminent medical practitioner in his field, having graduated from the University of Sydney some 62 years ago, published over 200 peer reviewed publications, and lectured and operated in multiple countries;

2. Dr Fagan’s opinion that the hearing loss demonstrated by an audiogram would be “maximal” immediately following the “sound or blast”, with any hearing loss improving from that point onward;

3. that the opinions expressed by Dr Fagan were based on the lack of change in Mr Byrnes’ audiograms, dated July 2018, August 2020, October 2023 and May 2024, which were conducted pre and post the blast. There was no change in “the threshold for all frequencies of Mr Byrnes’ hearing in his left ear over the four audiograms between July 2018 and May 2024”;

4. that Mr Byrnes’ medical records did not exhibit any disfunction of the external or middle ear;

5. that Mr Byrnes had moderate right high tone deafness and that his hearing was impacted prior to the blast. His hearing may have been impacted by gun exposure as a teenager and/or by exposure to chemicals;

6. that Dr Fagan referred to the Brainstem Evoked Response Audiology (BERA) test as an objective test to determine whether Mr Byrnes had suffered hearing loss, and he could see no evidence that any such test had been conducted;

7. Dr Fagan’s opinion that tinnitus is a symptom, not a diagnosis, tinnitus nearly always being associated with hearing loss, most commonly noise induced hearing loss, due to prolonged exposure to intense noise; and that a diagnosis of tinnitus relies entirely on the word of the patient and no diagnosis of the cause of tinnitus can be made by a trained specialist in living patients;

8. Dr Fagan’s opinion that it would be highly unlikely “that any permanent damage or tinnitus could have been caused to anyone at Boggabri coal mine including Mr Byrnes who was 2900m away” from the blast;

9. Dr Fagan’s acceptance that the blast could have caused transient discomfort;

10. Dr Fagan’s opinion that Mr Byrnes’ hearing may have been impacted by exposure to gunshots as a teenager; and

11. Dr Fagan’s opinion that given that the approximately 420 to 450 workers closer to the blast did not exhibit damage or hearing loss as a result of the blast, anyone located at the Boggabri coal mine, including Mr Byrnes who was 2,900 meters away from the blast, would not have suffered aural damage as a result of the blast. It would be “extremely rare to see physical damage to the ear at a distance of 2,900m away from the source of the sound”.

28. In examination-in-chief, Dr Fagan made a correction to his report, striking out the words “nor at the Boggabri monitor nor Tarrawonga monitor” as follows: “Given that the Australian Standard for airblast pressure was not exceeded at the Mine’s monitoring locations nor at the Boggabri monitor nor Tarrawonga monitor, it is, in my opinion, extremely unlikely that the blast caused pain and discomfort to Mr Byrnes, other than that of a transient nature”. Dr Fagan was referring to Australian Standard AS 2187.2-2006 “Explosives – Storage and use Part 2: Use of explosives” (the Australian Standard) which applied to blasting at the mine at all relevant times pursuant to cl 2.4 of the BLMP.

29. During cross-examination, Dr Fagan said that he revised his report to strike out the words nor “at the Boggabri monitor nor Tarrawong monitor” as he became aware after further reading that the “Australian standard … regulations” required that “the Maules Creek monitors be satisfied, and … I thought that … satisfied the regulations, so that I wanted to take out reference to the other two, regardless of what they said”.

30. Dr Fagan’s evidence during cross-examination included the following:

1. he did not hold qualifications in relation to coal mining or open cut coal mine blasting, and his area of expertise did not include wave propagation kinetics of blast overpressure waves in open cut coal mine blasting;

2. he did not accept that “two people standing next to each other may experience the impact of a blast differently due to factors such as prior exposure to loud noise or genetics”;

3. he accepted that the angle of a person's head in terms of its orientation to a blast can change how much of the blast reaches the ear canal of the person, and that “it’s possible” that Ms Severin appeared to describe what might be called the head angle effect following the second blast. As set out in the liability judgment at [176], Ms Severin deposed that on 20 August 2020 she was working at the Boggabri coal mine, and was sitting outside the crib hut when she heard the first explosion: “A second later I heard a second blast”; “[t]he pain was immediate, and I instantly grabbed my ear”;

4. he accepted that the human ear has a protective reflex called the acoustic reflex which tightens muscles in the middle of the ear to reduce damage. He knew “of no scientific evidence” that if someone is caught by surprise, their acoustic reflex may not engage in time. He agreed that the acoustic reflex phenomena is widely accepted in the “industry”;

5. in relation to the statement in his report that "[i]n Mr Byrnes case, if a lesion existed of which there's no evidence, it would be confined to the hair cells of the inner ear", and the suggestion that this statement was inconsistent with the Mizutari article which did not concern the confinement of a lesion to the hair cells of the inner ear, but damage to the whole auditory system, Dr Fagan responded:

A. Well, it's a matter of context, because at - for two reasons.

One is that the - Mr Byrnes hearing was shown afterwards not to have changed from his pre‑incident hearing, so that is a presumption - well, it's not a presumption, it's a fact. And, and secondly, this article talks about military and, and terrorist blasts at close range, where there is tremendous damage by the blast itself, the eardrum, that smashes the inner - the middle ear as well. The lungs, the throat, all those things, which are not - none of which occurred to Mr Byrnes, so I, I really don't think there's any inconsistency there.

6. in relation to the confinement of injuries to the hair cells of the inner ear, Dr Fagan responded:

Q. The contents [of the Jalilvand article] that I have just asked you to read demonstrate that the injuries are not confined to the hair cells of the inner ear. Do you agree with that?

A. Yes.

Q. Does that cause you to revisit your conclusion that there would be in Mr Byrnes' case a confinement to the hair cells of the inner ear?

A. Not at all.

Q. Why is that?

A. Because there's no evidence of any those, of any of that sort of damage, and that was based on the day of the incident his ear was examined, and from memory he was seen by ENT surgeons within a short period and none of them found any external damage the like of which is described there, like perforation of the tympanic membrane, change in the cochlear mechanics, et cetera.

7. in relation to the diagnosis of tinnitus, Dr Fagan gave the following evidence:

Q. You accept, don't you, that a diagnosis of tinnitus in human patients rests entirely on the subjective word of the patient?

A. I, I should have put in there as well "in the absence of other evidence" like a hearing loss or a, say, a, a radiological finding such as an MRI showing an acoustic tumour or something like that. But in‑‑

…

A. In that context, in the absence of any other evidence the diagnosis rests entirely on the description by the patient.

…

Q. So, you say that in the absence of other evidence the only way that a diagnosis of the cause of tinnitus can be made is on a dead person?

A. Correct.

8. on the assumption that Ms Severin and Mr Byrnes were at the point shown in Figure 2 in the Lewandowski report (see [14(6)] above) of 140.6 dBL or closer to the blast, and asked whether he would agree that Ms Severin and Mr Byrnes would likely have experienced aural pain, Dr Fagan responded:

A. Aural pain is absolutely - I don't agree with some of the stuff about aural pain here. I mean, a shout in the ear at 30 centimetres will cause aural pain. So the answer to your question is, yes, they could well have experienced aural pain. What the significance of it is would be I'm not sure.

9. and, in relation to the Mizutari article and the concept of hidden hearing loss, Dr Fagan accepted that the article suggests there can be hearing dysfunction because of hidden hearing loss without it showing up on an audiogram, but said that he had reservations about what was said by Mizutari:

A. Hidden hearing loss is, is a concept that is not yet widely accepted in the profession, and I understand that because I tried to write a, an article about it a while ago and ran into - I, I ran into - I worked with a, a scientist, hearing scientist, and we decided there just wasn't enough evidence for it at this time.

Q. Is it perhaps as simple as this, that you and Mizutari would disagree about the correctness of the conclusion that you've reached on page 15 [namely, that because the speech frequencies in Mr Byrnes’ audiogram undertaken immediately post blast in August 2020 were normal it is unlikely that Mr Byrnes had problems understanding speech in background noise]

A. Well, I'd certainly have reservations about what, I'd certainly have reservations about what he says.

Evidence in relation to good character

31. In relation to good character, the defendant sought to rely on the affidavit of Mr Ian Humphris, chief operating officer of Whitehaven Coal, in support of a finding that the defendant is an entity otherwise of good character and unlikely to re-offend, being mitigating factors to be taken into account in determining the appropriate sentence for an offence for the purpose of s 21A(3)(f)-(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act).

32. In his affidavit of 10 March 2025, Mr Humphris deposed that he had been employed by Whitehaven Coal as chief operating officer since June 2024. Between April 2020 and May 2024, he was employed as executive general manager of Whitehaven Coal. In examination-in-chief, he confirmed that he was also a director of the defendant. Mr Humphris said that as the ultimate holding company of the defendant, Whitehaven Coal undertakes “community engagement, sponsorship and donations for and on behalf of itself and each of its subsidiaries”, including the defendant. He said that the defendant undertakes donations and initiatives of its own, and deposed to the following actions undertaken by Whitehaven Coal and the defendant since the blast:

1. Investment in environmental and animal diversity. In June 2024, Whitehaven Coal provided $2 million towards the Gunnedah Koala Sanctuary; in June 2023, it hosted members of the NSW Biodiversity Conservation Trust for a tour of the areas under Conservation Agreements for offsets connected to Whitehaven Coal's mine sites; and in 2023 it rehabilitated 281 hectares of land in the 2024 financial year, an increase from 107 hectares.

2. Environmental management systems that align with the principles of ISO 14001 (Environment Management Systems). Whitehaven Coal’s approach to environmental management was “focused on mitigating unavoidable impacts”, and it consults with various stakeholders including governments, businesses and communities. Whitehaven Coal has set a “Scope 1” greenhouse gas emissions intensity reduction target aligned with its obligations under the “reformed Safeguard Mechanism scheme”. In the financial year ending in 2024, 35% of water used in Whitehaven Coal’s operations was recycled water.

3. Regional investment “to the North-West New South Wales economy”. In the financial year ending in 2024, Whitehaven Coal spent $462 million with regional suppliers, an increase from $356 million the year before; 75% of its workforce was based in local communities and in areas surrounding its operations; and it was the largest private employer in north-west NSW.

4. Women in mining. In the financial year ending 2022, Whitehaven Coal committed to having women represent 20% of its employees and 20% of its leadership roles by the end of the 2026 financial year. In the 2024 financial year, female representation across its operations was “up to 22.7%, while women represented 19.7% of leadership roles overall”. In March 2023, two Whitehaven Coal employees were nominated for NSW Women in Mining Awards.

5. Health. In 2023, Whitehaven Coal donated $25,000 to Little Wings; in 2025, it donated $10,000 to Narrabri Hospital and in 2021 and 2022, $5,000; and in 2024, it donated $25,000 to Royal Far West. In March 2023, the defendant donated $33,433 to Boggabri Hospital.

6. Education. The defendant donated $30,000 to Boggabri Public School for the purchase of 90 new laptops; committed $100,000 over five years for staff training at Nurruby Boggabri Early Learning Facility; conducted school tours of the Maules Creek coal mine; donated annual scholarship funding of $10,000 to the Country Education Foundation and Gunnedah Shire Council Community Education Fund. In 2024, Whitehaven Coal donated $10,000 to Dymocks Children's Charity, and $5,000 in 2025.

7. Sporting clubs. In November 2022, the defendant donated $32,990 to Boggabri Golf Club for the purchase of a larger fairway mower, and is a major sponsor of the Australian Bushmen's Campdraft and Rodeo Association National Finals, donating $15,000 in 2023, and $25,000 in 2024.

8. Aboriginal and Torres Strait Islander initiatives. 10.5% of Whitehaven Coal's workforce identify as Aboriginal and/or Torres Strait Islander. In the 2024 financial year, Whitehaven Coal spent $17 million with 14 Aboriginal and Torres Strait Islander suppliers, and donated $250,000 to Aboriginal and Torres Strait Islander organisations, including the Clontarf Foundation which supports young Aboriginal men across Australia. Whitehaven Coal also supports the Clontarf Foundation on regional employment forums and hosts site visits for Clontarf students. For 10 years, Whitehaven Coal has sponsored the Gomeroi Roos, a Rugby league team.

9. General support. Whitehaven Coal supports community activities and causes, including arts and culture, the Westpac rescue helicopter, flood support, Police Citizens Youth Clubs NSW, the Salvation Army and COVID-19 initiatives and support.

33. During cross-examination, Mr Humphris gave the following evidence in relation to the governance and management of Whitehaven Coal and the defendant:

1. He reports to Mr Paul Flynn, the managing director and chief executive officer of Whitehaven Coal. Mr Humphris was aware that, as at the hearing on sentence, Mr Flynn was in Australia and “seemed to be in good health” when Mr Flynn spoke to him on Monday, 7 April 2025, the day before Mr Humphris gave evidence at the hearing on sentence.

2. Mr Kevin Ball is the chief financial officer of Whitehaven Coal, and reports to Mr Flynn. Mr Humphris agreed that generally speaking, Mr Ball's area of expertise is in the financial area, and Mr Humphris’ area of expertise is in the operating area. Mr Humphris confirmed that Mr Ball was (as at the hearing on sentence) currently in Australia and “appeared to be in reasonable health”, but he could not comment on Mr Ball’s availability to have attended court. Mr Humphris gave evidence that Mr Ball as chief financial officer would be able to find out whether particular donations made by Whitehaven Coal and the defendant were likely claimed as tax deductions. He also said that Mr Ball could provide information concerning how much, if any, of the $100,000 “committed over five years for staff training” at Nurruby Boggabri Early Learning Facility had been paid.

3. Whitehaven Coal has a Health, Safety, Environment and Community Committee, and whilst Mr Humphris attends the meetings of the Committee, he was unsure whether he was a member of the Committee.

4. Ms Nicole Brooke is a chair of Whitehaven Coal’s Health, Safety, Environment and Community Committee, and on the board of Whitehaven Coal as a director. Mr Humphris was unable to comment on whether Ms Brooke was in Australia, able to attend court or to give evidence at the hearing on sentence.

34. Under cross-examination, Mr Humphris gave the following evidence in relation to changes the defendant had made following the blast to reduce the likelihood of reoffending in relation to future blasts:

1. He was “not able to specifically point to” any changes that had been made to reduce the likelihood of reoffending in relation to future blasts.

2. In relation to whether the defendant had taken any actions to reduce the likelihood of reoffending similar to the action to which Mr Humphris referred the Court in Environment Protection Authority v Maules Creek Coal Pty Ltd ^[4] at [212(b)] (in relation to improvements to the Northern Overburden Emplacement Area the subject of those proceedings), Mr Humphris answered: “The actions that have just been read out were in relation to water management, so the answer to your question is no.”

   4. [2022] NSWLEC 33.

3. There had been no changes in the governance of the defendant insofar as its organisational structure was concerned. There may have been some minor changes in relation to roles on an operational level.

4. If issues of inadequate fragmentation were to arise again in the future, the defendant proposed to deal with such issues “based on the circumstances”:

A. Every blast is considered on its merits depending on the, I guess, the environmental factors that are at play where the blast will occur in the mine, the type of materials et cetera. So how and what needs to be done to ensure that there's an effective, safe, compliant blast will be judged at the time based on the circumstances.

5. The decision made in relation to the burden relief time at the time of the blast was the correct decision at the time:

Q. If the defendant formed the view that the practice and procedure in relation to the burden relief time was satisfactory at the time of the blast incident the subject of the present proceedings, then the defendant is likely to use the same burden relief time in the future. Is that right?

A. I don't think you can look at one particular aspect of the drill and blast design and say that would or would not be the case.

Q. It's your view, is it, that the burden relief time that was used at the time of the blast incident the subject of the present proceedings was competent and correct at the time and you still believe that. Is that right?

A. The decision made at the time, yes, correct.

6. The stemming length of 3.0 metres was a competent decision at the time of the blast and “may still be a competent decision, depending on all the requirements of the blast that needed to be done, again depending on the situation at hand”.

7. There may have been “some slight changes” in practice and procedure in relation to measuring and weighing explosives to ensure blast holes were not overloaded since the blast, however he was “not across that detail”.

Relevant legislative provisions

35. Each of the timing charge, the stemming length charge and the overloading charge involved a contravention of s 64(1) of the POEO Act. That provision relevantly provides:

64 Failure to comply with condition

(1) Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence.

36. The relevant licence condition contravened for each of the timing charge, the stemming length charge and the overloading charge was condition O1.1 of the defendant’s EPL, which provided as follows:

O1 Activities must be carried out in a competent manner O1.1 Licensed activities must be carried out in a competent manner. This includes:

a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and

b) the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity.

37. The emission of noise charge involved a contravention of s 140 of the POEO Act. That provision relevantly provides:

140 Dealing with materials

(1) The occupier of any premises who deals with materials in or on premises in such a manner as to cause the emission of noise from those premises is guilty of an offence if the noise so caused, or any part of it, is caused by the occupier’s failure to deal with those materials in a proper and efficient manner.

38. At the time of each of the offences, the maximum penalty for an offence against ss 64(1) and 140(1) was $1,000,000 in the case of a corporation and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continued. The prosecutor did not contend that any of the offences here was a continuing offence.

39. Section 241 of the POEO Act provides as follows in relation to the matters to be considered in imposing a penalty for an offence against the Act:

241 Matters to be considered in imposing penalty

(1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant)-

(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence,

(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm,

(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,

(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,

(e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee,

(f) the presence of asbestos in the environment.

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

40. Section 250 of the POEO Act provides as follows in relation to additional orders the court may make where it finds an offence against the Act proved:

250 Additional orders

(1) Orders The court may do any one or more of the following—

(a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person,

(b) order the offender to take specified action to notify specified persons or classes of persons of the offence (including the circumstances of the offence) and its environmental and other consequences and of any orders made against the person (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender’s conduct),

…

(d) order the offender to carry out a specified environmental audit of activities carried on by the offender,

(e) order the offender to pay a specified amount to the Environmental Trust established under the Environmental Trust Act 1998, or a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes,

…

(h) if the EPA is a party to the proceedings, order the offender to provide a financial assurance, of a form and amount specified by the court, to the EPA, if the court orders the offender to carry out a specified work or program for the restoration or enhancement of the environment.

…

(1A) Without limiting subsection (1) (c), the court may order the offender to carry out any social or community activity for the benefit of the community or persons that are adversely affected by the offence (a restorative justice activity) that the offender has agreed to carry out. ..

41. The Dictionary to the POEO Act defines "environment" as meaning "components of the earth", including, relevantly, "air", as well as "any organic or inorganic matter and any living organism". "[H]arm" to the environment is defined as "any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution".

42. The purposes of sentencing set out in s 3A of the CSP Act are as follows:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

43. Section 21A of the CSP Act identifies aggravating, mitigating and other factors which the court is to take into account in determining the appropriate sentence for an offence. Those include, as relevant, the following:

21A Aggravating, mitigating and other factors in sentencing

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

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

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

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

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

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

…

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

…

(i)  the offence was committed without regard for public safety,

…

(o)  the offence was committed for financial gain,

…

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

(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows-

(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b) the offender was not part of a planned or organised criminal activity,

…

(e) the offender does not have any record (or any significant record) of previous convictions,

(f) the offender was a person of good character,

(g) the offender is unlikely to re-offend,

(h)  the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i) the remorse shown by the offender for the offence, but only if-

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…

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

…

44. Section 23 of the CSP Act provides relevantly in relation to the power to impose a lesser penalty for an offence for assistance provided to law enforcement authorities:

Power to reduce penalties for assistance provided to law enforcement authorities

(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters—

…

(b) the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d) the nature and extent of the offender’s assistance or promised assistance,

(e) the timeliness of the assistance or undertaking to assist,

(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,

(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,

…

45. Section 6 of the Fines Act1996 (NSW) provides in relation to consideration of the means of the accused in fixing the amount of any fine:

6 Consideration of accused's means to pay

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

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

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

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

122 Payment of share of fine to prosecutor

(1) This section applies where-

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

(b) the prosecutor is not a police officer.

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

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

Evidentiary principles applicable in sentencing

47. The evidentiary principles applicable in sentencing were uncontroversial. A court may not take facts into account in a way that is adverse to the interests of the defendant unless those facts have been established beyond reasonable doubt. ^[5] The defendant bears the burden of proving, on the balance of probabilities any matters submitted to be in the defendant’s favour. ^[6]

    5. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (The Queen v Olbrich) at [27]–[28] (Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ); Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41] (Gleeson CJ), [23] (Gummow, Hayne, Heydon and Crennan JJ); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64], [66] (French CJ, Bell, Keane and Nettle JJ) (Filippou v The Queen); Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 at [32] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).

    6. Filippou v The Queen at [64], [66] (French CJ, Bell, Keane and Nettle JJ); The Queen v Olbrich at [27]–[28] (Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ); Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27 at [48] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ), [87] (Gageler J).

48. The court must do its best to find facts in relation to the offending and the defendant’s moral culpability. Disputed facts are to be resolved by the accusatorial process upon the evidence before the court, ^[7] applying the respective onus and standards of proof. Not all disputed issues of fact related to sentencing must be resolved for or against the offender and some cannot be resolved in a way that goes to either increase or to decrease the sentence that is to be imposed. ^[8] Where it is not possible for the court to ascertain everything which is relevant, the court must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard. ^[9] The court is not bound to adopt the view of the facts most favourable to the defendant for the purposes of sentencing. ^[10]

    7. O’Neill-Shaw v R [2010] NSWCCA 42 at [26] (Basten JA with whom Howie and Johnson JJ agreed) (O’Neill-Shaw v R).

    8. See Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [19]-[20] (Gleeson CJ, McHugh, Gummow and Hayne JJ) (Weininger v The Queen).

    9. Filippou v The Queen at [70] (French CJ, Bell, Keane and Nettle JJ).

    10. Filippou v The Queen at [5], [70], [72] (French CJ, Bell, Keane and Nettle JJ); Weininger v The Queen at [20] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

General principles of sentencing

49. The general principles of sentencing were likewise uncontroversial, and the defendant did not take issue with the statement of general principles by the prosecutor, but contended that there were some additional principles in relation to totality which should be considered in the circumstances of these offences, set out at [204(1)]-[204(4)] below.

50. The defendant is to be sentenced pursuant to the CSP Act. The sentence imposed must reflect the objective seriousness of the offence and the subjective circumstances of the offender, ^[11] and the aggravating, mitigating and other factors in s 21A of the CSP Act that are relevant and known to the court. The court may also take into consideration other matters that it considers relevant: s 241(2) of the POEO Act.

    11. Veen v R (1979) 143 CLR 458 at 490; [1979] HCA 7 (Veen v R) (Jacobs J) and Veen v R (No 2) (1988) 164 CLR 465 at 472 (Mason CJ, Brennan, Dawson and Toohey JJ); [1988] HCA 14 (Veen v R (No 2)).

51. The guiding principles which have emerged to assist with sentencing for environmental offences recognise the unique nature of environmental offences, and the need for certain purposes of sentencing, particularly deterrence, to be reflected in the sentences imposed. The principles emphasise that environmental offences are crimes, not merely administrative breaches. ^[12]

    12. Environment Protection Authority v Waste Recycling and Processing Company (2006) 148 LGERA 299 at [226]; [2006] NSWLEC 419 (Preston CJ of LEC); Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; [2006] NSWLEC 289 at [65]-[68] (Preston CJ of LEC) (EPA v Ballina Shire) cited in Chief Executive, Office of Environment and Heritage v Douglas Brian Reitano (No 2) [2019] NSWLEC 39 at [94] (Robson J).

52. The sentence of the court is a public denunciation of the conduct of the offender. The sentence must ensure that the offender is held accountable for their actions and is adequately punished. ^[13] It must be of a severity that will deter the offender from committing similar offences in the future. It also needs to operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed. ^[14]

Objective seriousness of the offences

13. Environment Protection Authority v Ghossayn [2009] NSWLEC 181 at [75] (Pepper J); Director-General of the Department of Environment and Climate Change v Rae (2009) 68 LGERA 121; [2009] NSWLEC 137 (Rae) at [8]-[9] (Preston CJ of LEC); Environment Protection Authority v Orica Australia Pty Ltd [2014] NSWLEC 103; (2014) 206 LGERA 239 (Pepper J); EPA v Ballina Shire at [65]-[68] (Preston CJ of LEC) cited in Chief Executive, Office of Environment and Heritage v Douglas Brian Reitano (No 2) [2019] NSWLEC 39 at [94] (Robson J).

14. Rae at [8]-[9] (Preston CJ of LEC) citing R v Rushby [1977] 1 NSWLR 594 at 597; Environment Protection Authority v McMullen [2020] NSWLEC 87 at [166] (Pepper J); Chief Executive, Office of Environment and Heritage v Anthony Guy Murphy [2019] NSWLEC 120 at [100] (Robson J).

53. The objective gravity or seriousness of the offending fixes both the upper and lower limits of proportionate punishment. ^[15] It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances. ^[16] It fixes the lower limit because allowance for the subjective factors of the case, particularly of the offender, cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence, ^[17] or the objectives of punishment such as retribution and general and specific deterrence. ^[18]

    15. Veen v R (No 2) at 472 (Mason CJ, Brennan, Dawson and Toohey JJ), 485–486 (Wilson J), 490-491 (Deane J) and 496 (Gaudron J); Baumer v R (1988) 166 CLR 51 at 57–58 (Mason CJ, Wilson, Deane, Dawson and Gaudron JJ); Hoare v R (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

    16. Ibid.

    17. R v Dodd (1991) 57 A Crim R 349 at 354 (Gleeson CJ, Lee CJ at CL and Hunt J); R v Nicols (1991) 57 A Crim R 391 at 395 (Lee AJ, Carruthers and Sully JJ agreeing at 397); R v Allpass (1993) 72 A Crim R 561 at 563 (Gleeson CJ, Hunt CJ at CL and McInerney J); R v Murray (unreported, NSW Court of Criminal Appeal, 22 October 1997) at pp 6–7 (Barr J with whom Newman J agreed); R v Scott [2005] NSWCCA 152 (18 April 2005) at [15] (Howie J, Barr and Grove JJ agreeing); McGonigle v R [2020] NSWCCA 84 at [121]-[122] (Johnson J) (McCallum JA and Adamson J agreeing); Environment Protection Authority v O’Brien [2025] NSWLEC 14 at [30] (Robson J) (EPA v O’Brien).

    18. R v McGourty [2002] NSWCCA 335 at [34] and [35] (Wood CJ at CL) (Giles JA and Levine J agreeing); see also Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242 at [109] (Preston CJ of LEC) (Gittany Constructions); R v Porte [2015] NSWCCA 174 at [134] (Johnson J) (Leeming JA and Beech-Jones J agreeing); EPA v O’Brien at [30] (Robson J).

54. The objective seriousness of an offence is to be determined by reference to the nature of the offending and without reference to matters personal to the offender. ^[19] Allowance for the subjective features of the offender cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence, ^[20] or the objectives of punishment. ^[21]

    19. Williams v R [2012] NSWCCA 172 at [30] and [42] (Price J) (Allsop P and SG Campbell J agreeing).

    20. R v Dodd (1991) 57 A Crim R 349 at 354 (Gleeson CJ, Lee CJ at CL and Hunt J); R v Nicols (1991) 57 A Crim R 391 at 395 (Lee AJ, Carruthers and Sully JJ agreeing at 397); R v Allpass (1993) 72 A Crim R 561 at 563 (Gleeson CJ, Hunt CJ at CL and McInerney J); R v Murray (unreported, NSW Court of Criminal Appeal, 22 October 1997) at pp 6–7 (Barr J with whom Newman J agreed); R v Scott [2005] NSWCCA 152 (18 April 2005) at [15] (Howie J, Barr and Grove JJ agreeing).

    21. R v McGourty [2002] NSWCCA 335 at [34] and [35] (Wood CJ at CL) (Giles JA and Levine J agreeing) and see Gittany Constructions at [109]; R v Porte [2015] NSWCCA 174 at [134] (Johnson J) (Leeming JA and Beech-Jones J agreeing); EPA v O’Brien at [30] (Robson J).

55. In determining the objective seriousness of environmental offences, the circumstances to which the court may also have regard include:

1. the maximum penalty for the offence;

2. the nature and circumstances of the offence;

3. the objective harmfulness of the offence;

4. the defendant's state of mind in committing the offence;

5. the defendant's reasons for committing the offence;

6. the foreseeability of risk of harm to the environment;

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

8. the defendant's control over the causes of harm to the environment. ^[22]

   22. Environment Protection Authority v Transpacific Industries Pty Limited; Environment Protection Authority v Transpacific Refiners Pty Limited [2010] NSWLEC 85 at [89] ( Pepper J), referring to Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [163] (Preston CJ of LEC) (Bentley v BGP Properties); Gittany Constructions at [110] (Preston CJ of LEC), both cited in Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 (Pain J) at [36]-[38] and Plath v Rawson (2009) 170 LGERA 253 at [48] (Preston CJ of LEC); Fairfield City Council v Oztech Developments Pty Ltd; Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81 at [57] (Robson J); Burwood Council v Alam [2025] NSWLEC 2 at [53] (Duggan J).

56. Some of the circumstances overlap with the statutory sentencing considerations in s 241 of the POEO Act.

Maximum penalties

57. The penalty that is appropriate in each case should be determined by reference to the maximum penalty for the offence which reflects the public expression by Parliament, as well as the community’s perception of the gravity of the offence. ^[23] The maximum penalty serves as a yardstick and a basis for the comparison between the case before the court and the worst case. ^[24] The court should have regard to the maximum penalty and determine the degree by which the offender’s conduct offends against the legislative objectives. ^[25]

    23. Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 (Kirby P) (Campbell and James JJ agreeing), citing R v H (1980) 3 A Crim R 53 at 65 (Moffitt P).

    24. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [30]-[31] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86 at [61] (Preston CJ of LEC).

    25. R v Peel (1971) 1 NSWLR 247 at 262 (Herron CJ, Manning JA and O'Brien J); cited with approval in R v To (2007) 172 ACrimR 121 at 126 [19] (Hulme J), 139 [94] (Hall J); Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [15] (Preston CJ of LEC); EPA v O’Brien at [34] (Robson J).

58. As set out above at [38], at the time of the blast, the maximum penalty for offences against ss 64(1) and 140(1) of the POEO Act was $1,000,000 in the case of a corporation.

59. I find, as submitted by the prosecutor, that that maximum penalty is significant, and is evidence that the legislature considers the offences for which the defendant has been found guilty to be objectively serious.

The nature and circumstances of the offences

60. The nature of the offences and their place within the statutory scheme are also significant when assessing objective seriousness. ^[26] A “fundamental consideration” is the extent to which “the offender’s conduct would offend against the legislative objective expressed in the statutory offence”, having regard to the (significant) penalties prescribed. ^[27]

    26. Bentley v BGP at [51]-[71], [168]-[169] (Preston CJ of LEC).

    27. Rae at [15] (Preston CJ of LEC); see also R v Peel [1971] 1 NSWLR (Herron CJ, Manning JA and O'Brien J) at 262; Environment Protection Authority v Ashmore [2014] NSWLEC 136 at [40] (Craig J).

61. The objects of the POEO Act provided for by s 3 relevantly include:

1. to protect, restore and enhance the quality of the environment in NSW, having regard to the need to maintain ecologically sustainable development (s 3(a));

2. to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote:

1. pollution prevention and cleaner production;

2. the reduction to harmless levels of the discharge of substances likely to cause harm to the environment;

3. the elimination of harmful wastes; and

4. the monitoring and reporting of environmental quality on a regular basis,

3. to rationalise, simplify and strengthen the regulatory framework for environment protection (s 3(e)); and

4. to improve the efficiency of administration of the environment protection legislation (s 3(f)).

62. The POEO Act achieves these objects by, among other things, providing for the offences in ss 64(1) and 140(1).

63. In relation to an offence against s 64(1) and the objects of the Act, Duggan J has observed: ^[28]

These relevant objects reinforce the public protective nature of the legislative regime and the essential role that the regulation of pollution – through the licensing regime and the prohibition on nominated types of pollution outside that regime – plays in achieving those objects.

The strict liability nature of the offence and the quantum of the maximum penalty are indicators of the public expression by Parliament of the seriousness of the offence and the gravity of the offences as perceived by the community…

In addition, there is a need for strict compliance with conditions imposed upon an EPL, as the licensing regime is a system of “authorised pollution” and the failure to observe the conditions imposed upon such authority will undermine the achievement of the objects of the POEO Act and the legislative intent of managing the discharge of pollutants into the environment…

28. Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 at [49]-[51] (Duggan J); Environmental Protection Authority v Bald Hill Quarry Pty Ltd [2024] NSWLEC 114 at [75] (Pepper J).

64. Environment protection licences are the primary means of regulation under the POEO Act. As Pepper J said in Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103 at [104] in relation to strict compliance with the conditions of an environmental protection licence:

… The conditions imposed in any licence are aimed at maximising beneficial environmental outcomes and minimising environmental harm. They represent a balancing exercise between fostering economic growth and development, on the one hand, and protecting and preserving the environment now and for the future, on the other. Strict compliance with the conditions of any environmental licence is therefore necessary to ensure that this balance is achieved and that the objectives of the [POEO Act] are met.

Prosecutor’s submissions in relation to the nature and circumstances of the offences

65. The prosecutor submitted that carrying out licensed activities in a competent manner is vital to the functioning of the regulatory framework for environmental protection. The defendant’s failure to carry out its licensed activities in a competent manner undermined the regulatory framework for environment protection. ^[29]

Defendant’s submissions in relation to the nature and circumstances of the offences

29. See, eg, Environment Protection Authority v BSV Tyre Recycling Australia Pty Ltd [2024] NSWLEC 63, [55] (Pepper J); EPA v Ballina Shire at [99] (Preston CJ of LEC).

66. In relation to the nature and circumstances of the offences, the defendant submitted that as at the time of the blast, there had been no consideration by any court of whether a miner could be held to be incompetent in the manner of carrying out a mine blast by firing a blast which otherwise complied with the specific conditions in its EPL. The Court must, it submitted, take into account that it was “intent” upon complying with the prescribed limits in the EPL and, as such, no finding could be made that it deliberately had disregard for any aspect of the EPL. Rather, the Court should find that the unique circumstances of the blast gave rise to a set of circumstances which the defendant had not previously encountered and which, on the evidence, had not arisen since.

186. I attach little weight to the defendant’s submission that the “unique circumstances” of the blast were “unlikely to ever eventuate again”.

187. Ultimately, as Mr Howard accepted as correct, as a matter of principle, if the Court considers that there is a lack of insight, that is a matter that can be relevant to specific deterrence. I have found that the defendant lacks insight in relation to the offences it has been found to have committed here, and that is a matter weighing upon my consideration of the need for specific deterrence.

Totality

190. The totality principle is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. ^[80] The effect of the totality principle is to require the Court to review the totality of the sentence to consider whether the penalty imposed is just and appropriate and reflects the overall criminality of the offender before the Court. ^[81]

     80. Mill v The Queen (1988) 166 CLR 59 at 62-63; [1988] HCA 70; (Wilson, Deane, Dawson, Toohey and Gaudron JJ) (Mill v The Queen); Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40] (McHugh, Hayne and Callinan JJ); Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 at [18]-[22] (Gummow, Callinan and Heydon JJ); Water NSW v Barlow (2019) 244 LGERA 1; [2019] NSWLEC 30 at [111]-[112] (Preston CJ of LEC).

     81. Environment Protection Authority v Maules Creek Coal Pty Ltd [2022] NSWLEC 33 at [227] (Pepper J).

191. The principle of totality was articulated by Street CJ in R v Holder ^[82] at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straight-forward adding up of the terms appropriate for the offences if each were viewed alone. ^[83]

82. [1983] 3 NSWLR 245.

83. Cited in Connell v Santos NSW Pty Limited [2014] NSWLEC 1 at [151] (Preston CJ of LEC).

192. In Mill v The Queen, Wilson, Deane, Dawson, Toohey and Gaudron JJ quoted at 63 from pp 56-57 of Thomas, Principles of Sentencing (2^nd ed, 1979) as follows:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.

193. In Pearce v The Queen ^[84] McHugh, Hayne and Callinan JJ said at [40] that punishment should reflect what the offender has done and should not be affected by the way in which the boundaries of particular offences are drawn:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

84. (1994) 194 CLR 610 at [40] (McHugh, Hayne and Callinan JJ).

194. In Environment Protection Authority v Barnes (EPA v Barnes) ^[85] Kirby J at [43]-[50] writing for the Court confirmed that the principle of totality applies to fines. At [50] his Honour said:

Here, the fine in respect of count 1 ($4,000) was significantly different from that in respect of count 2 ($500). However, the disparity by itself does not suggest error. Where there are multiple offences, each punishable by a custodial sentence, the totality principle may find expression through the complete or partial accumulation of sentences, or through making all or some of the sentences concurrent (cf Pearce v The Queen (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at 624 (para 45)). However, there is obviously no room for partial accumulation or concurrence in the case of fines. If the sentencing Judge believed that the totality principle required an adjustment to the fines which may otherwise be appropriate, the amount of each fine had to be altered, applying the sentencing principles suggested in Johnson v The Queen (2004) 205 ALR 346.

85. [2006] NSWCCA 246.

195. In Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn (EPA v Ghossayn) ^[86] at [128] Preston CJ of LEC said in relation to the totality principle:

The totality principle applies where an offender has committed, and is to be sentenced for, multiple offences. The effect of the totality principle is to require the court in passing a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is “just and appropriate” and reflects the total criminality before the court: Mill v the Queen (1988) 166 CLR 59 at 62-63; [1998] HCA 70; Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57 at [49]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [196]. In the case of a sentence of a fine, if the Court believes the totality principle requires an adjustment to the individual fines that would otherwise be appropriate, the amount of each fine can be altered: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [50].

86. [2023] NSWLEC 127.

196. In ACE Demolition & Excavation Pty Ltd v Environment Protection Authority ^[87] Leeming JA (Garling and Kavanagh JJ agreeing) said at [74] that nothing in Markarian v The Queen alters the process of determining individual sentences before applying the principle of totality, and at [111] referred to the principled approach applied by Kirby J in EPA v Barnes and Preston CJ of LEC in EPA v Ghossayn, observing that “the principled approach…is to leave questions of totality to the end, and apply a final check of the aggregate against whether it is a just and appropriate punishment for the entire criminality”.

     87. (2024) 260 LGERA 358; [2024] NSWCCA 4.

197. As has been frequently observed, care must be taken “to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender’s conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence”. ^[88] Further, the application of the totality principle must not cause public confidence in the administration of justice to be undermined by any perception that “what is in effect being offered is some kind of a discount for multiple offending”. ^[89]

Prosecutor’s submissions in relation to the totality principle

88. Rawson at [222] (Preston CJ of LEC); Gittany at [199] and [201] (Preston CJ of LEC); R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46] (McClellan CJ at CL, Hulme and Hislop JJ); R v Wheeler [2000] NSWCCA 34 at [36]–[37] (Sully J) (Carruthers AJ agreeing at 51).

89. R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [18] (Spigelman CJ, Whealy and Howie JJ).

198. The prosecutor acknowledged that there is “a degree of overlap” in circumstances where each of the offences arises out of related conduct and, in particular, the emission of noise charge effectively results from the conduct underpinning the timing charge, stemming charge and overloading charge (the three s 64 offences).

199. The position in relation to the application of the totality principle in consideration of the additional s 140(1) was different. In that regard, the prosecutor accepted that the s 140(1) offence “effectively resulted from the conduct underpinning” the s 64 charges.

Defendant’s submissions in relation to the totality principle

200. Whilst it was uncontroversial that the four offences arose out of the same conduct, that is, carrying out the blast, the defendant submitted that the prosecutor had understated the importance of the totality principle in relation to the three s 64 offences. That was because the entirety of the offending conduct encompassed by the three s 64 charges could have been charged as a single offence of carrying out the blast otherwise than in a competent manner, particularised by reference to the timing, stemming length and overloading complaints. In substance, the three s 64 offences, considered together, were no different to a single offence of carrying out the blast otherwise than in a competent manner.

201. The defendant submitted that the only way the Court could avoid “double punishment (or triple punishment)” in relation to the s 64 offences was to apply the totality principle to ensure that the accumulated total of penalties for what the prosecutor had charged as three offences of contravention of condition O1.1 in relation to the same blast was no more than the total penalty the Court would have imposed were it sentencing the defendant for a single offence of carrying out the blast otherwise than in a competent manner in contravention of condition O1.1, supported by particulars concerning the initiation timing, the stemming length and the overloading.

202. The defendant identified the following principles in relation to totality as relevant to the Court’s sentencing for the offences here:

1. First, imposing a sentence “for multiple offences and before it imposes the sentence for any one offence, the Court will have considered the outcome for all offences”: R v JRD ^[90] Howie J at [33] (McClellan CJ at CL and Bell J agreeing), this approach ensuring that the effective sentence reflects the overall criminality and that the individual sentences imposed conform to any statutory limitations that exist for specific sentencing options: R v JRD Howie J at [31], [33] (Bell and Howie JJ agreeing).

2. Second, where a court sentences an offender for more than one offence, or sentences an offender serving an existing sentence, the aggregate or overall sentence must be “just and appropriate” to the totality of the offending behaviour: Mill v The Queen ^[91] at 63 (Mason CJ, Wilson, Deane, Dawson and Gaudron JJ).

3. Third, the principle of totality, while it may not apply with the same force in the case of the imposition of fines as it does in cases involving the imposition of imprisonment, it nonetheless applies where the penalty imposed is by way of fine: see R v Sgroi ^[92] Malcolm CJ at 203 (Brinsden and Rowland JJ agreeing); Camilleri’s Stock Feeds v EPA ^[93] Kirby P at 704 (Campbell and James JJ agreeing); EPA v Barnes ^[94] Kirby J at [46] (Mason P and Hoeben J agreeing).

4. Fourth, to the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish the offender twice for the commission of the elements that are in common. The punishment should reflect what the offender has done, and not be affected by the way in which the boundaries of particular offences are drawn: Pearce v The Queen ^[95] McHugh, Hayne and Callinan JJ at [40].

Comparative cases

90. [2007] NSWCCA 55.

91. (1988) 166 CLR 59.

92. (1989) 40 A Crim R 197.

93. (1993) 32 NSWLR 683.

94. [2006] NSWCCA 246.

95. (1994) 194 CLR 610.

203. While noting that each case turns on its own facts, the prosecutor submitted that the Court is required to consider whether there is any sentencing pattern for like offences in order to avoid inconsistent sentences. ^[96] A table of comparative cases was attached to the prosecutor’s submissions, and is reproduced in Annexure C to this judgment. Ms Marsden for the prosecutor placed particular reliance on Environment Protection Authority v Whitehaven Coal Mining Limited (EPA v Whitehaven Coal Mining) ^[97] and Environment Protection Authority v Bald Hill Quarry Pty Ltd ^[98] (Bald Hill Quarry).

     96. R v Visconti [1982] 2 NSWLR 104 at 107 (Street CJ) (Lee and Maxwell JJ agreeing).

     97. [2019] NSWLEC 27 (Pepper J).

     98. [2024] NSWLEC 114 (Pepper J).

204. In EPA v Whitehaven Coal Mining, the defendant pleaded guilty to one offence against s 64(1) of the POEO Act. Justice Pepper found that the defendant carried out the blast the subject of the proceeding in a less than competent manner as it failed to undertake a written risk assessment prior to conducting the blast, ^[99] conducted the blast in a manner that did not reduce blast fume generation, ^[100] overloaded “8.5% of the blast holes with explosive”, ^[101] made several departures from provisions contained in internal blast management plans, ^[102] and failed to notify adjoining land holders when potentially dangerous fumes traversed onto their property. ^[103]

     99. EPA v Whitehaven Coal Mining at [161], [221] (Pepper J).

     100. EPA v Whitehaven Coal Mining at [169], [172] (Pepper J).

     101. EPA v Whitehaven Coal Mining at [170], [215], [222] (Pepper J).

     102. EPA v Whitehaven Coal Mining at [172] (Pepper J).

     103. EPA v Whitehaven Coal Mining at [214] (Pepper J).

205. Ms Marsden submitted that the impact in EPA v Whitehaven Coal Mining was not factually similar to the present proceeding as it concerned the release of gasses into the environment. In that case, Pepper J found that there was no evidence of actual harm, ^[104] although there was the potential for serious environmental harm as a consequence of the gasses released by the blast. ^[105] Ms Marsden submitted that in “this case there was both actual harm to the environment and harm to human health”. Also, in EPA v Whitehaven Coal Mining, the defendant had no prior convictions, ^[106] did not commit the offence intentionally, recklessly or negligently ^[107] or for financial gain, ^[108] co-operated with authorities, showed remorse and contrition, ^[109] and received a 25% discount for its early plea of guilty. Justice Pepper found that the offence was at the upper end of the low range of objective seriousness for offences against s 64(1) of the POEO Act, ^[110] and imposed a penalty of $38,500, after applying a 30% discount to the starting penalty of $55,000, and made costs and publication orders.

     104. EPA v Whitehaven Coal Mining at [207].

     105. EPA v Whitehaven Coal Mining at [211].

     106. EPA v Whitehaven Coal Mining at [227].

     107. EPA v Whitehaven Coal Mining at [202].

     108. EPA v Whitehaven Coal Mining at [204].

     109. EPA v Whitehaven Coal Mining at [227]-[232].

     110. EPA v Whitehaven Coal Mining at [224].

206. Bald Hill Quarry ^[111] involved a contravention of licence condition O1.1 contrary to s 64(1) of the POEO Act by not carrying out licensed activities in a competent manner in that shredded rubber was used in lieu of virgin excavated natural material as daily cover in circumstances where the use of shredded rubber was not approved by the EPA and increased the risk of a fire occurring. Other offences included a contravention of licence condition O5.3 contrary to s 64(1) by not using virgin excavated natural material to cover exposed landfill waste at the property without the EPA’s approval. Ms Marsden submitted that there were some relevant differences in that case which elevated the objective seriousness, in particular that the licence breach was committed deliberately, ^[112] and for financial gain. ^[113] There was a greater degree of harm as the offences, including the licence breach offence, caused transient localised actual harm to the environment by way of the emission into air of impurities, ^[114] although there was no actual harm to human health. ^[115]

     111. [2024] NSWLEC 1 (Pepper J).

     112. Bald Hill Quarry at [165] (Pepper J).

     113. Bald Hill Quarry at [125].

     114. Bald Hill Quarry at [140].

     115. Bald Hill Quarry at [140].

207. Ms Marsden submitted that there were some similarities to the present proceeding, the defendant having given similar reasons for committing the offences. In Bald Hill Quarry, the defendant submitted that the offences were committed as a result of weather-related and operational factors. ^[116] Pepper J imposed a penalty of $50,000 for the s 64(1) offence concerning the contravention of licence condition O1.1, with a starting penalty of $150,000, before the application of the totality principle and a 20% discount for the defendant’s plea of guilty. Ms Marsden submitted that the Court may be assisted by the manner in which Pepper J applied the principle of totality. Justice Pepper said at [194]:

The principle of totality is applicable to the first and second licence breach, air pollution and waste disposal offences only. This is because all four offences arose out of BHQ applying shredded rubber as daily cover in lieu of VENM [virgin excavated natural material]. The notification offence represents distinct conduct arising out of BHQ failing to notify relevant authorities of the fire.

116. Bald Hill Quarry at [124].

208. I have had regard to each of the cases referred to in Annexure C and, in particular to EPA v Whitehaven Coal Mining and Bald Hill Quarry in determining the penalties to be imposed for the offences here.

The appropriate penalties to be imposed

209. The task of the sentencer is one of “instinctive synthesis”. In Markarian v The Queen ^[117] at [37], Gleeson CJ, Gummow, Hayne and Callinan JJ referred to that task as described by Gaudron, Gummow and Hayne JJ in Wong v The Queen ^[118] at [75] as follows:

In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed. As Gaudron, Gummow and Hayne JJ said in Wong:

"Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.

It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say 'may be' quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.

... the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an “instinctive synthesis” …

117. (2005) 228 CLR 357; [2005] HCA 25.

118. (2001) 207 CLR 584; [2001] HCA 64 at [75] (Gaudron, Gummow and Hayne JJ); applied in, eg, Chief Executive, Office of Environment and Heritage v Kurstjens Onroerend Goed AU B.V.; Kurstjens; Beefwood 1 Pty Ltd; Beefwood 2 Pty Ltd [2024] NSWLEC 140 at [45] (Robson J); Environment Protection Authority v Forestry Corporation of New South Wales [2024] NSWLEC 78 at [70] (Pepper J); Hijazi v Georges River Council [2020] NSWLEC 36 at [42] (Pain J).

210. In sentencing here, I have had regard, in particular, to the objective seriousness of the four offences (which I have found to be in the low to mid range of objective seriousness), and the subjective circumstances of the defendant, including its two prior convictions, and that I was unable to make a positive finding in relation to the likelihood of its reoffending and its prospects of rehabilitation. I have also had regard to the importance of general deterrence, as well as the need for specific deterrence, the defendant lacking insight in relation to the offences it has been found to have committed.

211. The defendant, having contested liability, is not entitled to a discount for entering a plea of guilty.

212. In sentencing for the three s 64 offences, I have had regard, in particular, to the authorities set out above at [192]-[199] and the submissions of the defendant in relation to the totality principle. I accept that the three s 64 offences could have been charged as a single offence of carrying out the blast otherwise than in a competent manner, particularised by reference to the timing, stemming length and overloading complaints. I will review the accumulated total of penalties for the three contraventions of s 64 to ensure that the aggregate sentence is just and appropriate and reflects the overall criminality of the defendant.

213. Likewise, I will also approach the penalty of the s 140(1) offence recognising that it effectively resulted from the conduct underpinning the s 64 offences.

214. As McHugh, Hayne and Callinan JJ observed in Pearce v The Queen at [40], the punishment should reflect what the defendant has done, and not be affected by the way in which the boundaries of particular offences are drawn.

215. After weighing all of the relevant factors and arriving at an “instinctive synthesis” in relation to each of the three s 64 offences and the s 140(1) offence, I would impose a monetary penalty in the sum of $200,000 for each offence.

216. However, considering the overall criminality in all the offences, and the significant overlap between the four offences and in order to achieve an appropriate relativity between the totality of the criminality and the totality of the penalties, I will impose a monetary penalty in the sum of $50,000 for each offence.

Additional orders sought

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

217. The prosecutor also sought orders pursuant to s 250(1)(a) of the POEO Act for the defendant to take specified action to publicise the offences and its environmental and other consequences.

218. In Environment Protection Authority v Ditchfield Contracting Pty Ltd,^[119] Preston CJ of LEC at [76] emphasised that the main purpose of publicising the detection, prosecution and punishment of offences is to improve the effectiveness of general deterrence: ^[120]

The main purpose of publicising the detection, prosecution and punishment of Ditchfield for the offence is to improve the effectiveness of general deterrence. People and businesses need to be aware that the offence of pollution of waters committed by Ditchfield is a crime, that offenders will be prosecuted and that the courts will impose significant penalties on offenders. By such awareness, people and businesses will be deterred from committing the offence. However, in order to achieve this purpose of deterrence, notice must be published in publications and other media accessed by the people and businesses who are to be deterred. The offence of pollution of waters is committed widely and not only in a particular industry. Publication of the notice therefore needs to be widespread. Publication in both a State-wide and a regional newspaper, as well as a trade publication, is appropriate.

119. [2018] NSWLEC 90.

120. Applied in Environment Protection Authority v Dial-A-Dump (EC) Pty Ltd [2024] NSWLEC 21; (2024) 261 LGERA 103 at [176] (Pepper J); Transport for New South Wales v Estuary Constructions Pty Ltd; Transport for New South Wales v Sampson [2022] NSWLEC 23 at [145] (Duggan J).

219. As the chief judge observed, publicising sentences for environmental crime also improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders who are susceptible to criminal stigma: Environment Protection Authority v Waste Recycling and Processing Corporation ^[121] at [242] (Preston CJ of LEC).

     121. (2006) 148 LGERA 299; [2006] NSWLEC 419. Applied in Budvalt Pty Ltd v Barnes (2022) 251 LGERA 28; [2022] NSWCCA at [58] (Price J) (Preston CJ of LEC and Adamson J agreeing); Environment Protection Authority v Sydney Water Corporation [2024] NSWLEC 130 at [133] (Pain J).

220. I will make publication orders in the form sought by the prosecutor.

Moiety

221. Section 122(2) of the Fines Act relevantly provides that “the court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor”. The power of the Court in s 122(2) to direct a moiety of the fine imposed was explained by the chief judge in Chief Executive, Office of the Environment and Heritage v Brummell ^[122] at [107]-[111].

     122. [2019] NSWLEC 114. See, by way of example, WaterNSW v Peter James Harris and Jane Maree Harris [2023] NSWLEC 33 at [164] (Robson J); Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Commins [2023] NSWLEC 43 at [149] (Pepper J).

222. The prosecutor seeks an order that one half of any fine imposed on the defendant be paid to the prosecutor pursuant to s 122 of the Fines Act. The prosecutor submitted that the making of such an order would be appropriate to compensate the prosecutor for the time spent investigating the offences and to support the sustaining, on a more general basis, of environmental law enforcement activities, ^[123] and would not represent a “windfall gain” to the prosecutor even if it is separately compensated for its professional costs. ^[124]

     123. Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75 at [148]-[152] (Moore J); Environment Protection Authority v Sydney Water (No 2) [2023] NSWLEC 2 at [127] (Moore J); Chief Executive, Office of Environment and Heritage v Kurstjens Onroerend Goed AU B.V.; Kurstjens; Beefwood 1 Pty Ltd; Beefwood 2 Pty Ltd [2024] NSWLEC 140 at [161] (Robson J); Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 at [116]-[118] (Pain J); Environment Protection Authority v Pullinger (No 3) [2025] NSWLEC 59 at [155] (Pritchard J).

     124. Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 at [116]-[118] (Pain J); Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 at [246] (Pepper J); JBS Australia Pty Ltd v SafeWork NSW [145]-[152] (Bastan AJA) (Ward P and Adams J agreeing); Chief Executive, Office of Environment and Heritage v Douglas Brian Reitano (No 2) [2019] NSWLEC 39 at [126] (Robson J).

223. I will make an order pursuant to s 122(2) of the Fines Act that one half of the penalties imposed on the defendant be paid to the prosecutor.

Order pursuant to s 250(1)(c) of the POEO Act in relation to a specified project for the restoration or enhancement of the environment

224. Pursuant to s 250(1)(c) of the POEO Act, the court may order the offender to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit. An order under s 250(1)(c), being an order made under Part 8.3 of the POEO Act, may be made “regardless of whether any penalty is imposed, or other action taken, in relation to the offence”: s 244(3). ^[125] Orders under s 250(1)(c) have previously been considered or imposed in lieu of fines. ^[126] Here, the prosecutor sought an order pursuant to s 250(1)(c) for a contribution to be paid to the NSW National Parks and Wildlife Service to contribute to the Brush-tailed Rock-wallaby Mount Kaputar National Park Translocation Project.

     125. Environment Protection Authority v Central Coast Council [2024] NSWLEC 141 at [105] (Pain J).

     126. See, for example, EPA v Metziya Pty Ltd [2003] NSWLEC 196 (Pain J); EPA v Yolarno Pty Limited [2004] NSWLEC 765 (Bignold J); EPA v Queanbeyan City Council (No 3) [2012] NSWLEC 220 at [281]-[284] (Pepper J); EPA v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 at [148]-[152] (Craig J); EPA v Central Coast Council [2024] NSWLEC 141 at [105] (Pain J).

225. The prosecutor submitted that given that an order under s 250(1)(c) “would operate, in the circumstances of this case in lieu or in partial lieu of a fine”, it would be necessary that the quantum of the fine be determined prior to considering whether (and in what amount) an order under s 250(1)(c) should be made. Such an approach would, by analogy, be consistent with the “stepped” approach to sentencing for an intensive correction order endorsed by the plurality in Stanley v Director of Public Prosecutions (NSW) ^[127] at [59]. Here, that would involve first determining whether a fine was appropriate, second determining the quantum of any such fine; and third determining how the fine should be paid, that is, by way of ordinary fine or by way of order under s 250(1)(c).

     127. (2013) 278 CLR 1; [2023] HCA 3 (Gordon, Edelman, Steward and Gleeson JJ).

226. Having determined that fines are appropriate in the circumstances of the offences here, and having determined the quantum of those fines, I will make an order under s 250(1)(c) of the POEO Act that 50 percent of those fines be paid to the National Park and Wildlife Service to contribute to the Brush-tailed Rock-wallaby Mount Kaputar National Park Translocation Project.

Costs

227. The prosecutor seeks an order pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 (NSW) that the defendant pay its professional costs as agreed or assessed.

228. In Liverpool City Council v Leppington Pastoral Co Pty Ltd ^[128] Biscoe J said at [50]:

The Court is empowered to order a defendant to pay to the registrar of the Court, for payment to the prosecutor, such costs as the Court specifies or as may be determined under s 257G of the Criminal Procedure Act 1986 (which prescribes determination by agreement or in accordance with the Legal Profession Act 2004): s 257B Criminal Procedure Act 1986. In this jurisdiction such an order is routinely made. Consequently, payment of the prosecutor’s costs is a constant aspect of punishment such that it is embedded in the general pattern of sentencing for all offences. Therefore, of itself, it does not generally seem to be a reason for reducing a penalty in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence. Something more would seem to be required. ^[129]

128. [2010] NSWLEC 170.

129. See, eg, Transport for New South Wales v Estuary Constructions Pty Ltd; Transport for New South Wales v Sampson [2022] NSWLEC 23 at [53] (Duggan J); Environment Protection Authority v Metropolitan Collieries Pty Ltd [2025] NSWLEC 23 at [141]-[142] (Robson J).

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

Orders

230. The Court makes the following orders:

In proceedings 2021/234554:

1. The defendant is convicted of the offence contrary to s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), as charged.

2. Subject to order 10 herein, the defendant is to pay a monetary penalty in the sum of $50,000.

In proceedings 2021/234556:

3. The defendant is convicted of the offence contrary to s 64(1) of the POEO Act, as charged.

4. Subject to order 10 herein, the defendant is to pay a monetary penalty in the sum of $50,000.

In proceedings 2021/234557:

5. The defendant is convicted of the offence contrary to s 64(1) of the POEO Act, as charged.

6. Subject to order 10 herein, the defendant is to pay a monetary penalty in the sum of $50,000.

In proceedings 2021/234558:

7. The defendant is convicted of the offence contrary to s 140(1) of the POEO Act, as charged.

8. Subject to order 10 herein, the defendant is to pay a monetary penalty in the sum of $50,000.

In proceedings 2021/234554, 2021/234556, 2021/234557 and 2021/234558:

9. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50 percent of the fines imposed on the defendant pursuant to orders 2, 4, 6 and 8 above is to be paid to the prosecutor as a moiety.

10. Pursuant to s 250(1)(c) of the POEO Act, and in lieu of the monetary penalty imposed on the defendant in orders 2, 4, 6 and 8, the defendant to make a contribution to the value of $100,000 to be paid to the NSW National Parks and Wildlife Service, within 28 days of this order, to contribute to the Brush-tailed Rock-wallaby Mount Kaputar National Park Translocation Project (the Project). A description of the Project is set out in Annexure A.

11. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's legal costs as agreed or as may be determined under s 257G of that Act.

12. Pursuant to s 250(1)(a) of the POEO Act, the defendant, at its own expense:

1. within 28 days of the date of this order, is to cause a notice of a minimum size of a quarter page (and corresponding size in the digital edition) to be published within the first 12 pages of The Sydney Morning Herald, Mining Magazine Australia, The Australian Financial Review and The Northern Daily Leader with the text of such notice and the defendant's logo (of reasonable size) to be as set out in Annexure B to these orders;

13. Pursuant to s 250(1)(b) of the POEO Act, the defendant, at its own expense:

1. within 28 days of the date of this order, is to cause a notice to be placed on the Whitehaven Coal Limited company website under the "News" section to be as set out in the form of Annexure B;

2. is to cause a notice in the form of Annexure B to be placed in the next annual Sustainability Report published by Whitehaven Coal Limited after the date of this order; and

3. within 14 days of the date of this order, is to publicise the offences and the orders made against it by posting the text of Annexure B to these orders on Whitehaven Coal's LinkedIn page, together with a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website and tagging the Environment Protection Authority in the post. The post is to be made between the times of 8am and 10am or between 4.30pm and 6.30pm on a weekday. This post must remain a pinned post on the Linkedin page for a minimum of 7 days.

14. Within 7 days of the date of each of the publications referred to in orders 12 and 13 above, the defendant is to provide the prosecutor with a complete copy of the pages of the publication, Linkedin post, report and websites in which the notices have appeared.

**********

ANNEXURE A

ANNEXURE B Publication notice

ANNEXURE C Comparable cases

Endnotes

Amendments

28 August 2025 - Typographical error on cover sheet amended

Decision last updated: 28 August 2025