Environment Protection Authority v Pullinger (No 3)

Case •

[2025] NSWLEC 59

•

12 June 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Environment Protection Authority v Pullinger (No 3) [2025] NSWLEC 59
Hearing dates: 1 October 2024
Date of orders: 12 June 2025
Decision date: 12 June 2025
Jurisdiction:Class 5
Before: Pritchard J
Decision:

Orders at [169] of judgment

Catchwords:

SENTENCING – offences – environment and planning – non-compliance with clean-up notice and prohibition notice – ss 91(5) and 102 of the Protection of the Environment Operations Act 1997 (NSW) – defendant convicted after not guilty pleas – totality – limited capacity to pay fine – s 6 of the Fines Act 1996 (NSW) – fine imposed – investigation costs – legal costs – moiety

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22

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

Fines Act 1996 (NSW) ss 6, 122

Protection of the Environment Operations Act 1997 (NSW) (as at 16 November 2020) ss 91, 101, 102, 114, Part 5.2

Protection of the Environment Operations Act 1997 (NSW) s 3, 241, 248, 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

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

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

Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden (2010) 172 LGERA 52; [2010] NSWLEC 3

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

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

Environment Protection Authority v Carbon MF Pty Ltd; Environment Protection Authority v Fair [2023] NSWLEC 120

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

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

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

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

Environment Protection Authority v Grafil Pty Ltd (No 4) (2021) NSWLEC 123

Environment Protection Authority v Hughes [2024] NSWLEC 91

Environment Protection Authority v Imad Osman-Kerim [2017] NSWLEC 63

Environment Protection Authority v Laison [2015] NSWLEC 89

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

Environment Protection Authority v Pullinger [2022] NSWLEC 143

Environment Protection Authority v Pullinger (2021) 252 LGERA 102; [2021] NSWLEC 144

Environment Protection Authority v Routledge [2024] NSWLEC 8

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

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

Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4

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

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

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

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

EPA v Barnes [2006] NSWCCA 246

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

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

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

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

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

Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36

Morrison v Defence Maritime Services Pty Ltd (2007) 156 LGERA 365; [2007] NSWLEC 552

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

Newcastle City Council v Pace Farm Egg Products Pty Limited (No 3) [2005] NSWLEC 423

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

R v Holder [1983] 3 NSWLR 245

R v O’Neill [1979] 2 NSWLR 582

R v Peel [1971] 1 NSWLR 247

R v Thomson; R v Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104; [2000] NSWCCA 309

Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21

SafeWork NSW v Williams Timber Pty Ltd [2021] NSWCCA 233

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

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 51

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

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

Category:Principal judgment
Parties: Environment Protection Authority (Prosecutor)
Robert Lenard Pullinger (Defendant)
Representation:

Counsel:
F Berglund (Prosecutor)
L Sims (Defendant)

Solicitors:
Legal Services Branch, Environment Protection Authority (Prosecutor)
Carmody Lawyers (Defendant)
File Number(s): 2020/327089, 2020/327090 and 2020/327091
Publication restriction: Nil

JUDGMENT

Introduction

Outcome

Relevant background

Evidence

Prosecutor’s evidence on sentence

Defendant’s evidence on sentence

Relevant legislative provisions and legislative history

Principles of sentencing

Onus and standard of proof at sentencing

Objective seriousness of the offences

Maximum penalties for the offences

The defendant’s state of mind and reasons for committing the offences

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

The practical measures taken to avoid harm to the environment: s 241(1)(b) of the POEO Act

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

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

Conclusion in relation to objective seriousness

Subjective factors

Injury, emotional harm, loss or damage caused by the offences: s 21A(2)(g) of the CSP Act

The harm caused by the offence: s 21A(3)(a) of the CSP Act

Defendant's record of previous convictions: s 21A(3)(e) of the CSP Act

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

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

Contrition and remorse: s 21A(3)(i) of the CSP Act

Plea of guilty: s 21A(3)(k) of the CSP Act

Assistance to authorities: s 21A(3)(m) of the CSP Act

Other principles of sentencing to be considered

Proportionality

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

Even-handedness and consistency in sentencing

Totality

Capacity to pay (s 6 of the Fines Act)

The appropriate penalty to be imposed

Additional orders

Publication order

Payment of share of fine to the prosecutor: s 122 of the Fines Act

Orders regarding costs and expenses of investigation: s 248 of the POEO Act

Legal costs

Orders

JUDGMENT

Introduction

  1. Following a liability hearing held between 21 and 25 August 2023, on 22 May 2024, I found Mr Robert Lenard Pullinger (also known as Bob Pullinger and Robert Leonard Pullinger) (the defendant) to be guilty of the following three offences:

  1. in proceedings 2020/327089, the offence against s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) of, without reasonable excuse, not complying with direction 7 of variation of clean-up notice 1564650 given on 18 May 2018 (the varied clean-up notice) pursuant to s 110 of the POEO Act (the direction 7 offence);

  2. in proceedings 2020/327090, the offence against s 91(5) of the POEO Act of, without reasonable excuse, not complying with direction 10 of the varied clean-up notice pursuant to s 110 of the POEO Act (the direction 10 offence); and

  3. in proceedings 2020/327091, the offence against s 102 of the POEO Act, of not complying with prohibition notice ref: DOC20/565127 (the prohibition notice) given on 25 August 2020 pursuant to s 101 of the POEO Act (the prohibition notice offence).

  1. The defendant has been convicted of two offences against s 91(5) of the POEO Act and one offence against s 102 of the POEO Act as charged. It now arises to sentence the defendant for each of the three offences in relation to which he has been found guilty.

Outcome

  1. In relation to each of the offences, for the reasons that follow, applying the “instinctive synthesis” explained by the High Court in Markarian v The Queen,[1] before applying the totality principle, considered individually, I would fix the following penalties: in relation to the direction 7 offence, a fine in the amount of $75,000; in relation to the direction 10 offence, a fine in the amount of $75,000; and in relation to the prohibition notice offence, a fine in the amount of $100,000.

    1. (2004) CLR 357; [2005] HCA 25 at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ); following Wong v The Queen (2001) 207 CLR 584 at 611-612 [74]-[76] (Gaudron, Gummow and Hayne JJ).

  2. Having regard to the totality principle, considered below at [122]-[130], I will make orders that:

  1. in relation to the direction 7 offence, the defendant is fined in the amount of $60,000;

  2. in relation to the direction 10 offence, the defendant is fined in the amount of $60,000;

  3. in relation to the prohibition notice offence, the defendant is fined in the amount of 80,000.

  1. I will make an order that 50% of each of the fines be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).

  2. I will also make orders that the defendant pay the prosecutor’s legal costs pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 (NSW), and that the defendant pay the prosecutor’s investigation costs pursuant to s 248 of the POEO Act.

  3. My orders to such effect are set out at the conclusion of these reasons for decision.

Relevant background

  1. The particulars of the three offences and my reasons for finding the defendant guilty are set out in Environment Protection Authority v Pullinger [2] (the liability judgment). The relevant factual background and evidence in relation to the three offences is detailed at [43]-[183] of the liability judgment. The factual background was largely derived from the parties’ extensive agreed facts which I mostly do not repeat here. In summary, the relevant background to the three offences is as follows.

    2. [2024] NSWLEC 51 (Pritchard J).

  2. The offences relate to the operation of a waste oil processing facility by Truegain Pty Limited (ACN 055 126 497) (Truegain) between December 2000 and April 2016 at Lot 29 of Deposited Plan 221102 at 62 Kyle Street, Rutherford (the premises). The defendant was a director of Truegain from 26 March 1992, and its secretary from 24 February 1997. From 20 August 2016 until Truegain was deregistered on 3 February 2022, the defendant was the sole director of Truegain.

  3. Between 7 December 2000 and 1 April 2016, Truegain undertook the scheduled activities of waste oil processing and waste storage at the premises under Environment Protection Licence no 7638 (the Truegain EPL). During this period, Truegain received, stored and processed waste oils and waste water at the premises by refining and processing waste oils into re-usable petroleum-based products, and processed waste water for discharge to a sewer spill containment system operated by the Hunter Water Corporation (Hunter Water).

  4. On 24 February 2016, Hunter Water directed Truegain to stop discharging waste water into Hunter Water’s sewers due to Hunter Water detecting per- and poly-fluoroalkyl substances (PFAS) in discharges from the premises in samples taken by Hunter Water on 12 February 2016 (the Hunter Water direction).

  5. On 30 September 2016, the Environmental Protection Authority (the EPA) (the prosecutor) gave prevention notice no 1545252 to the defendant pursuant to s 96(2) of the POEO Act. The prevention notice required the removal and lawful disposal off-site of all liquids or waste materials within bunded areas (including waste oil and contaminated rainwater) to prevent discharge of contaminated water from the premises.

  6. On 5 June 2017, the EPA gave the defendant clean-up notice 11548804 (the clean-up notice).

  7. On 5 January 2018, the EPA revoked the Truegain EPL. 

  8. On 18 May 2018, the EPA (Ms Karen Marler, director North-Hunter), by delegation, gave the defendant the varied clean-up notice. The varied clean-up notice relevantly required the defendant to:

7. By no later than 5pm on Friday 31 August 2018, process, remove and lawfully dispose from the Premises all liquids contained within all above ground tanks.

…

10. Upon the completion of Direction 6, immediately remove and lawfully dispose of all liquids from the onsite bunds (or similar structures) and the underground tank and pit system as a result of the following circumstances:

a) Following a rainfall of 10mm or more in any 24 hour period (9:00am to 9:00am) recorded at the Commonwealth Government’s Bureau of Meteorology (Maitland Airport) Weather Monitoring Site and/or recorded on the Premises.

b) When the underground tank is over 1/3 full. For the purposes of determining if the underground tank is over 1/3 full the tank shall be dip tested at 9:00am each day or levels monitored by installing monitoring equipment.

  1. On 30 August 2018, the defendant entered into a contract with Enviro Pacific Solutions Pty Ltd (EPS) for EPS to design, procure, commission and operate a water treatment system to treat 3 megalitres of PFAS contaminated water at the premises (the EPS contract). The works were to be completed by EPS in two phases that addressed direction 6 (phase 1) and direction 7 (phase 2) of the varied clean-up notice. Under the EPS contract, the defendant was obliged to pay EPS amounts for scheduled items and milestone payments, totalling $302,158.61. The defendant did not make all payments in accordance with the EPS contract and the works undertaken by EPS at the premises in accordance with the EPS contract did not progress beyond phase 1.

  2. As at 31 August 2018, the liquids which were contained in the above ground tanks as at 18 May 2018 (the date the varied clean-up notice was given) remained in the above ground tanks, and had not been processed or removed from the premises and disposed of lawfully.

  3. On 25 August 2020, the defendant was given the prohibition notice by the Honourable Matt Kean MP, the then NSW Minister for Energy and Environment (the Minister). The background section to the prohibition notice relevantly provided as follows:

N. On 4 February 2019, Mr Pullinger and Glowbye provided the EPA with a preliminary investigation report examining groundwater and soil contamination at the Premises. Sampling involved targeting PFAS, petroleum hydrocarbons, polycyclic aromatic hydrocarbons and heavy metals as contaminants of concern, but did not include solvents despite a solvent wash area and a drum storage area in the northern parts of the Premises. The report found groundwater exceedances against the PFAS National Environment Management Plan (NEMP) drinking water guidelines, concentrations of copper, nickel and zinc exceeding NEPM groundwater investigation levels and soil detections of PFAS and NEPM Ecological Investigation Level exceedances for zinc.

…

P. On 12 September 2019, the EPA undertook sampling of the bund storage areas at the Premises confirming high levels of PFAS and other contaminants in bund water. It is believed that the above ground tanks are still holding waste material with similar pollutant characteristics to the bund water. There is an ongoing risk that contaminated liquids will be discharged from the System to areas within the Premises, especially during or after rain.

Q. Under s 101 of the Act the EPA may recommend the issuing of a prohibition notice, including if it is of the opinion that there is an ongoing discharge of pollutants within premises arising from an activity, and that the continued activity is likely to cause harm to the environment or be harmful to public health. The EPA has made such a recommendation in respect of the activities at the Premises.

…

  1. The prohibition notice relevantly directed the defendant to cease storing waste and keeping substances that are harmful or potentially harmful to the environment, including hydrocarbons and PFAS chemicals for a period of two years from the date of the notice.

  2. On 9 December 2021, in Class 4 civil debt recovery proceedings in relation to clean up activities at the premises, Pain J delivered judgment in favour of the EPA, ordering the defendant to pay the prosecutor the sum of $1,178,940.78 plus interest in the amount of $63,362.77: Environment Protection Authority v Pullinger. [3]

    3. (2021) 252 LGERA 102; [2021] NSWLEC 144 (Pain J).

  3. As a consequence of my finding in the liability judgment that the defendant was guilty of each of the three offences, a sentencing hearing was held on 1 October 2024 before me.

Evidence

  1. As indicated above, findings of fact, largely reflecting facts agreed between the prosecutor and defendant for the purpose of the liability hearing, are set out at [45]-[164] of the liability judgment.

Prosecutor’s evidence on sentence

  1. As additional evidence for the purpose of sentencing, the prosecutor read the affidavit of Mr Ross McFarland, chief environmental scientist (Asia Pacific) for AECOM Australia Pty Ltd (AECOM) dated 4 November 2020. The prosecutor tendered part of exhibit RVM-1 to the affidavit of Mr McFarland which is a report by AECOM titled “Truegain Expert Opinion Site Investigation of 62 Kyle Street Rutherford NSW” and dated 18 September 2020 (the AECOM report).

  2. The AECOM report included a table titled “Conceptual Site Model” which is extracted below:

Source

Plausible Scenarios

Pathway

Receptors

Exposure Assessment

Bunds and tanks

Leaking or tank failure which leads to off-site migration of impacts

● Surface Water

● Adjacent residential property

● Stony Creek surface water ecosystem

● Residential human receptors

Potential for off-site migration

● ASTs [above ground storage tanks] generally in poor condition, several considered no longer serviceable.

CoPCs [chemicals of potential concern] exceeded EILs in 62 tanks and five bunds.

● Approximately 2,100,000 Litres (L) or about 2.1 Megalitres (ML) of contaminated water estimated within the 62 sampled tanks.

Approximately 347,000 L of Non-aqueous phase liquid (NAPL) estimated to be contained in 38 ASTs. Nine (9) of these with severe corrosion.

● Wastewater treatment plant bund has collapsed in sections, providing a potential point of discharge to neighbouring property and surface waters.

● Pavements generally in poor condition, potential leakage through cracks.

● Bunds close to capacity with contaminated water; further rain events may result in “overtopping” with uncontrolled release to the environment.

● Four of the five bunds in poor condition with evidence of leakage.

Bunded area at rear of the wastewater treatment plant has collapsed in sections,

providing potential point

  1. In relation to the receptors indicated in the “Conceptual Site Model” table, the prosecutor conceded at the sentencing hearing that “the only plausible receptor is the Stony Creek surface water” receptor. The AECOM report described Stony Creek as an “ecological receptor with the potential for migration directly into the creek from bund overflow or tank failure”.

  2. The AECOM report referred to the following three documents which include criteria for use in evaluating potential risk to human health and to the environment:

  1. National Environment Protection (Assessment of Site Contamination) Measure 2013 (ASC NEPM);

  2. PFAS National Environmental Management Plan (HEPA 2020); and

  3. National Environmental Management Plan 2013.

Defendant’s evidence on sentence

  1. The defendant relied on the affidavit of Mr Robert Lenard Pullinger dated 17 August 2023 (the 2023 Pullinger affidavit) which was read at the liability hearing. The defendant also read the affidavit of Mr Pullinger dated 30 September 2024 (the 2024 Pullinger affidavit) which annexed the following documents:

  1. a letter from Hall Chadwick Chartered Accountants & Business Advisors to Mr Pullinger dated 4 January 2023 which states that Mr Pullinger would be “automatically discharged from Bankruptcy” on 13 October 2024 (the bankruptcy letter dated 4 January 2023);

  2. a hospital doctor’s letter to Mr Pullinger’s general practitioner which includes Mr Pullinger’s medical history dated 16 September 2024; and

  3. a letter from one of Mr Pullinger’s doctors dated 25 September 2024 which made comment on what he considered the defendant’s impairments due to a medical condition and noted that the defendant:

  1. was separated from his wife;

  2. had suffered reputational damage; and

  3. had no work capacity.

  1. In the 2024 Pullinger affidavit, the defendant said that he:

  1. was a retired pensioner;

  2. was presently bankrupt;

  3. resided in rented accommodation;

  4. relied on a pension as his “exclusive source of income” with no other assets; and

  5. had, since September 2023, experienced a number of medical episodes for which he was still being treated at the time of making the affidavit.

Relevant legislative provisions and legislative history

  1. Section 3 of the POEO Act provides as follows in relation to the objects of the Act:

3 Objects of Act

The objects of this Act are as follows—

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

…

(d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following-

(i) pollution prevention and cleaner production,

(ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment

…

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

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

…

  1. As at 16 November 2020, when the direction 7 charge and direction 10 charge proceedings were commenced, s 91(1) and (5) of the POEO Act relevantly provided:

91 Clean-up by occupiers or polluters

(1) Notices The appropriate regulatory authority may, by notice in writing, do either or both of the following—

(a) direct an owner or occupier of premises at or from which the authority reasonably suspects that a pollution incident has occurred or is occurring,

(b) direct a person who is reasonably suspected by the authority of causing or having caused a pollution incident,

to take such clean-up action as is specified in the notice and within such period as is specified in the notice.

…

(5) Offence A person who, without reasonable excuse, does not comply with a clean-up notice given to the person is guilty of an offence.

Maximum penalty—

…

(b) in the case of an individual-$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

  1. As at 16 November 2020, when the prohibition notice charge proceedings were commenced, ss 101 and 102 of the POEO Act relevantly provided:

101 Prohibition on activities

(1) Application of section This section applies where the EPA recommends to the Minister that a notice be given under this section because it is of the opinion that the emission or discharge of pollutants from (or within) any premises in which any activity is carried on—

(a) is causing or is likely to cause such harm to the environment, or

(b) is or is likely to be so injurious to public health, or

(c) is causing or is likely to cause such discomfort or inconvenience to any persons not associated with the management or operation of the activity,

that the giving of the notice is warranted.

(2) Notice The Minister may, by notice in writing, do either or both of the following—

(a) direct the occupier of the premises,

(b) direct the person carrying on the activity,

to cease carrying on the activity, or any specified aspect of it, for such period as is specified in the notice.

…

102 Offence

A person who, without reasonable excuse, does not comply with a prohibition notice given to the person is guilty of an offence.

Maximum penalty—

…

(b) in the case of an individual-$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

  1. Section 114 of the POEO Act provides as follows in relation to classification of offences in the POEO Act:

114 Classification of offences

(1) Tier 1 offences are the offences under Part 5.2.

(2) Tier 2 offences are all other offences under this Act or the regulations.

(3) Tier 3 offences are tier 2 offences that may be dealt with under Part 8.2 by way of penalty notice.

  1. Section 241 of the POEO Act provides in relation to the matters to be considered in imposing penalty:

241   Matters to be considered in imposing penalty

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

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

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

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

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

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

(f)  the presence of asbestos in the environment.

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

  1. The Dictionary to the POEO Act defines “harm” as follows:

harm to the environment includes 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.

  1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) provides as follows in relation to the purposes of sentencing:

3A Purposes of sentencing

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

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

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

(c)  to protect the community from the offender,

(d)  to promote the rehabilitation of the offender,

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

(f)  to denounce the conduct of the offender,

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

  1. Section 21A of the CSP Act sets out the following relevant aggravating and mitigating factors:

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,

…

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,

…

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

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

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

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

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

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

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

…

(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),

…

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

…

(4)  The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5)  The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

  1. Section 6 of the Fines Act provides in relation to the consideration of the accused’s means to pay:

6 Consideration of accused's means to pay

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

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

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

  1. Section 122 of the Fines Act provides in relation to payment of share of fine to 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).

Principles of sentencing

  1. The direction 7 offence, the direction 10 offence and the prohibition notice offence are tier 2 offences pursuant to s 114 of the POEO Act because they are not identified as tier 1 offences in Part 5.2 of the POEO Act. As the offences are each strict liability offences with the same maximum penalty, the principle in The Queen v De Simoni [4] does not arise.

    4. (1981) 147 CLR 383 at 389; [1981] HCA 51 (Gibbs CJ, Mason and Murphy JJ agreeing).

Onus and standard of proof at sentencing

  1. Facts may not be taken into account in a way that is adverse to the interests of the defendant unless those facts have been established beyond reasonable doubt. [5] Where the prosecutor contends that a particular sentencing consideration should be treated as an aggravating factor it must establish by evidence, beyond a reasonable doubt, the presence of such aggravating factor. Where the defendant contends for the presence of a mitigating factor, it must be established on the balance of probabilities: Olbrich at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Environment Protection Authority v Metropolitan Collieries Pty Ltd [6] at [76] (Robson J); Environment Protection Authority v Sydney Water Corporation [7] at [131] (Pepper J).

    5. Olbrich at [27]-[28] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41] (Gleeson CJ); Strbak at [27]-[28] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70 at [45] (Robson J).

    6. [2025] NSWLEC 23 (Robson J).

    7. [2019] NSWLEC 100 at [131] (Pepper J).

Objective seriousness of the offences

  1. The objective seriousness of the offences is measured without reference to matters personal to the offenders. It is to be determined “wholly by reference to the nature of the offending”. [8]

    8. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [27] (French CJ, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

  2. In determining the objective gravity or seriousness of the offences in this case, the circumstances to which the Court may have regard include: [9]

    9. Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 (Plath v Rawson) at [48] (Preston CJ of LEC); Fairfield City Council v Oztech Developments Pty Ltd; Bellagio Investments Pty Ltd [2021] NSWLEC 81 (Oztech Developments) at [57] (Robson J).

  1. the nature of the offences;

  2. the maximum penalty for the offences;

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

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

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

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

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

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

  1. I am also required to take into account the statutory matters in s 241 of the POEO Act set out above at [33]. Some of these factors overlap with the factors concerning objective seriousness set out at [42] above.

  2. When sentencing for environmental offences, a fundamental consideration is the degree to which, having regard to the maximum penalties provided in the statute, the offender’s conduct would offend against the legislative objectives expressed in the statutory offence. [10] The nature of the provision creating the offence and its place in the statutory scheme shed light on the objective seriousness of the offence. [11] Ascertaining the purpose of creating an offence is assisted by consideration of the objects of the statute, which are extracted above at [29].[12]

    10. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ) quoting Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [75] (Gaudron, Gummow and Hayne JJ).

    11. R v Peel [1971] 1 NSWLR 247 at 262 (Herron CJ, Manning JA and O’Brien J).

    12. Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [168]-[172] Preston CJ of LEC).

  3. Chapter 4 of the POEO Act creates a system of environment protection notices, including prohibition notices, prevention notices and clean-up notices. The prosecutor referred to the decision of Pepper J in Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden [13] (Cessnock City Council v Quintaz) where her Honour said at [65]:

There is a clear need to uphold the regulatory system established under the POEOA which depends on personal and corporate entities taking steps to remediate, rectify and remove sources of pollution as directed and in a timely manner. This system minimises any actual or potential environmental harm caused by the pollution and ensures that the costs of remediation are borne by those responsible for the pollution. The actions of Quintaz in failing to comply with the Clean Up Notice undermined this system and offended the objects of the Act ...

13. (2010) 172 LGERA 52; [2010] NSWLEC 3 at [65] (Pepper J).

  1. The defendant submitted that the nature of the offences should be considered in the context of the statutory scheme, and that the features in relation to clean-up notices included the following:

  1. a clean-up notice can be issued to a number of different categories of person including a person reasonably suspected of having caused or contributed to the pollution incident or the owner or occupier of the premises from which the pollution incident is reasonably suspected of having occurred: s 91(1) of the POEO Act;

  2. there is a power to vary, including by extending the time for compliance, or to revoke a clean-up notice, however, there is no formal process for a person to apply for a variation or revocation: s 110 of the POEO Act;

  3. the EPA may also direct a public authority to take clean-up action if it reasonably suspects that a pollution incident has occurred or is occurring: s 92(1) of the POEO Act. Public authorities are also authorised to undertake clean-up action voluntarily if they reasonably suspect a pollution incident: s 92(2) of the POEO Act. This is so even if the public authority was not involved in the pollution incident; and

  4. if a public authority undertakes clean-up action, it may recover the costs of doing so from the occupier of the premises from which it reasonably suspects the pollution incident occurred or from a person who it reasonably suspects caused or contributed to the pollution incident: s 104(2) of the POEO Act.

  1. The defendant submitted that these four features provided “an overall scheme to protect the environment and clean-up pollution with the objective of primary responsibility for pollution ultimately falling to the polluter”. In the present case, the defendant submitted that the varied clean-up notice was issued to the defendant as the owner of the land. He was not the polluter. The source of PFAS pollution at the premises was not identified.

  2. The premises had previously been operated by Truegain as a licensed waste oil processing and waste storage facility. In February 2016, Hunter Water detected PFAS in trade waste discharged to the sewer and directed that discharge from the premises to cease. This meant that Truegain could no longer carry out its business. Truegain’s EPL was suspended in April 2016 and the company entered administration in 2016. With Truegain no longer occupying the premises, the EPA required the defendant as the owner of the land to take clean-up action.

  3. The defendant submitted that he took steps over a number of years including engaging employees and contractors and expending considerable financial resources in attempting to comply with the clean-up notice. I considered these attempts in the liability judgment when considering the defence of reasonable excuse sought to be relied upon by the defendant. While I did not find the defence to have been made out, the defendant submitted that the attempts to comply with the varied clean-up notice were relevant to the objective seriousness of the offence.

  4. The defendant did not comply fully with the varied clean-up notice. The EPA stepped in and took clean-up action, as it was entitled to do under the statutory scheme. The EPA issued compliance costs notices to the defendant and brought Class 4 proceedings in this Court, also a feature of the statutory scheme, to recover the cost of its clean-up action from the defendant. [14]

    14. See Environment Protection Authority v Pullinger (2021) 252 LGERA 102; [2021] NSWLEC 144 (Pain J) (Pullinger (Class 4)).

  5. I find that the offences were in the middle range of objective seriousness.

Maximum penalties for the offences

  1. The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence and a yardstick against which to measure the relevant features of the offence for which the defendants are to be sentenced. Careful attention to maximum penalties will almost always be required because, amongst other things, they invite comparison between the worst possible case and the case before the court at the time. [15]

    15. Muldrock at [31] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Harrison v Perdikaris [2015] NSWLEC 99 at [49] (Preston CJ of LEC); Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; (1993) 82 LGERA 21 (Camilleri’s Stock Feeds) (Kirby P, Campbell and James JJ agreeing).

  2. The maximum penalty for failing to comply with a clean-up notice under s 91(5) of the POEO Act was, at the relevant time, $250,000 in the case of an individual.

  1. The maximum penalty for failing to comply with a prohibition notice under s 102 of the POEO Act was, at the relevant time, $250,000 in the case of an individual.

  2. The defendant has been convicted of two offences against s 91(5), and one offence against s 102, of the POEO Act.

The defendant’s state of mind and reasons for committing the offences

  1. A strict liability offence, such as s 91(5) and s 102 of the POEO Act, that is committed intentionally, negligently or recklessly will be objectively more serious than one that is not so committed. [16]

    16. Plath v Rawson at [98]; Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 at [72] (Brereton JA, Harrison and Bellew JJ agreeing).

  2. The prosecutor did not submit that the offences were committed recklessly, but did submit that they were committed intentionally. The defendant elected to deploy significant funds and resources in the period 2016 to 2020 on matters not relating to remediating the premises. [17] He did not prioritise the expenditure of available funds on the balance of the EPS contract to achieve compliance with the varied clean-up notice. [18]

    17. Liability judgment at [183], [285], [314], [318].

    18. Liability judgment at [314].

  3. The defendant submitted the Court ought not to find that he intended to commit the offences. The evidence of his attempts to comply shows that he intended to do so. The evidence also demonstrated that his intention was to seek to establish a new business on the premises, a necessary component of which would be cleaning up the premises.

  4. In oral submissions, Ms Sims for the defendant submitted that during the charge periods the defendant made attempts to reduce the likelihood of environmental harm. For example, he employed Mr Konstanin (Kosta) Vujkovic (see the liability judgment at [64]), before EPS was engaged.

  5. I find that the offences were committed intentionally, not negligently or recklessly. As the prosector submitted, in the period 2016 to 2020, he elected to deploy resources in the period 2016 to 2020 on matters not relating to the remediation of the premises. [19] He did not, but could have, prioritised the expenditure of available funds to achieve compliance with the varied clean-up notice and prevention notice. [20]

    19. Liability judgment at [183], [285], [314], [318].

    20. Liability judgment at [314].

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

  1. Whether the prosecutor established, beyond reasonable doubt, environmental harm caused or likely to be caused to the environment was a central point of contention in the hearing on sentence. In environmental offences, “harm” includes both actual harm and potential harm. In Environment Protection Authority v Waste Recycling and Processing Corporation,[21] the chief judge said as follows at [145]-[149] (emphasis added) in relation to harm:

145. Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life.

146. Harm can include harm to the environment and its ecology …

147. Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously.

148. The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701; 39. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 NSW.

149. The fact that the environment harmed by the offender's conduct was already disturbed or modified is not a mitigating factor …

21. (2006) 148 LGERA 299; [2006] NSWLEC 419 at [145]-[149] (Preston CJ of LEC).

  1. The prosecutor accepted that there was no evidence of actual harm to the environment caused by the offences, but submitted that there was evidence that there was a risk of serious potential harm to the environment and that that risk was real and not theoretical.

  2. The prosecutor submitted that the serious risk of potential harm is evidenced by the scenarios, and pathways in the AECOM report, particularly the “Conceptual Site Model” extracted above at [24]. In relation to potential environmental harm, the prosecutor further relied on the statement in section 4 of the AECOM report that “Stony Creek is considered an ecological receptor with the potential for migration directly into the creek from bund overflow or tank failure”. The prosecutor also referred to the three documents referred to in the AECOM report, set out above at [26], which it submitted further demonstrated that the risk of potential harm from incidents caused by the defendant’s failures to comply with the notices was serious and real.

  3. Further, the prosecutor submitted that the findings of fact in the liability judgment demonstrated that the scenarios outlined in the conceptual site model were not theoretical, but real as there were occasions on which flooding occurred and liquids did discharge onto the site. On that basis, the potential risk was serious and real rather than hypothetical.

  4. The defendant accepted that there was a risk of harm to the environment if liquid wastes contained within the tanks or spill containment system were discharged from the premises. However, he submitted that the risk to Stony Creek was low because the above ground tanks were within the bunded area of the premises. Until April 2019, he was managing liquids within the spill containment system (by evaporation, storage in above ground tanks, or processing by EPS). From June 2020, the EPA engaged contractors to remove liquids from the spill containment system as needed. By a combination of these measures, there was little risk of liquid wastes discharging from the premises. Ms Sims submitted on behalf of the defendant that if there was a tank failure, it was not the case that all of the liquid would immediately make its way into the creek, even in the case of a catastrophic failure of a tank.

  5. Further, Ms Sims submitted that during the charge periods there were attempts made by the defendant to “reduce the likelihood of an environmental incident”. For example, the defendant employed Mr Konstanin (Kosta) Vujkovic “to pump out the underground tank into the above ground tanks or into the [bunded] areas to allow for evaporation”.

  6. I find, as submitted by the prosecutor, that there was a risk of serious potential harm to the environment, and that the risk was real and not hypothetical.

  7. The scenarios and pathways in the AECOM report, extracted above at [24], in particular the “Conceptual Site Model” demonstrate the seriousness of the risk to the Stony Creek surface water receptor. Stony Creek was considered by AECOM to be an ecological receptor with the potential for migration directly into Stony Creek from bund overflow or tank failure. The three documents referred to in the AECOM report set criteria for evaluating potential harm in investigation levels, exceedances of which each demonstrate that the risk of potential harm from incidents caused by the defendant’s failures to comply with the notices was serious and real.

  8. The AECOM report used the three documents to provide guidance in evaluating potential risk to human health and to the environment. The NEPA 2000 set the criteria of “95% species protection in slightly to moderately disrobed systems”, the ASC NEPM “95% protection trigger value” and “solubility limits” in relation to ecological investigation limits used in the AECOM report. Results from the underground storage tank exceeded the PFOS ecological investigation limit (0.13 µg/L) by two orders of magnitude (13.4 µg/L) and TRH>C10-C16 exceeded the ASC NEPM solubility limit (3000 µg/L), inferring that dissolved hydrocarbons have the potential to form non-aqueous phase liquid. Above ground tanks and the bund in the solvent wash tank farm and tank farm 123 exceeded ecological investigation limits for PFOS, hydrocarbons, phenols, halogenated aromatic compounds, nitroaromatics, ketones. Above ground tanks and the bund in the drum tank farm exceeded ecological investigation limits for PFOS.

  9. Five of the ten sampled above ground storage tanks in the southern tank farm reported exceedances of PFOS, hydrocarbons, PAHs, phenols and zinc. Above ground tanks and the bund in the wastewater treatment plant exceeded ecological investigation limits for hydrocarbons, PAHs, phenols, PFOS, PFOA and zinc. Above ground tanks and the bund in the 112 and 108 tank farm and trade waste tank farm exceeded ecological investigation limits for hydrocarbons, PAHs, PFOS, PFOA and phenols. Above ground tanks and the bund in the main processing area exceeded ecological investigation limits for hydrocarbons, phenols, PFOS and zinc. The process area tank farm and bund exceeded ecological investigation limits for PFOS by an order of magnitude, and the above ground tank also exceeded for hydrocarbons, phenols and zinc. Three trunk tanks reported exceedances above the ecological investigation limit for PFOS (truck 3 by three orders of magnitude). Truck 2 exceeded the ecological investigation limit for hydrocarbons, PAHs and phenols, and exceeded TRH>C10-C16 solubility limits.

  10. That the potential risk was serious and real rather than hypothetical is demonstrated by the fact that there were occasions on which flooding occurred, and liquids discharged on the site: see liability judgment at [71], [73], [92].

  11. I accept, as submitted by the defendant, that some efforts were made by the defendant during the charge periods to manage liquids within the soil containment system and reduce the likelihood of an environmental incident. However, I am not satisfied that such efforts were sufficient to render the risk of potential harm to Stony Creek other than serious and real.

  12. I conclude, as submitted by the prosecutor, that there was a risk of serious potential harm to the environment, and that the risk was real and not hypothetical.

The practical measures taken to avoid harm to the environment: s 241(1)(b) of the POEO Act

  1. The prosecutor submitted that the potential for harm could have been prevented by:

  1. properly maintaining the premises;

  2. complying with the clean-up notices when directed;

  3. directing available funds and resources to complying with the clean-up notices rather than to other matters; and

  4. complying with the prohibition notice when directed.

  1. In oral submissions, Ms Sims for the defendant submitted that during the charge periods there were attempts by the defendant to “reduce the likelihood of an environmental incident”. For example, the defendant employed Mr Konstanin (Kosta) Vujkovic “to pump out the underground tank into the above ground tanks or into the [bunded] areas to allow for evaporation”. Ms Sims further submitted that although he did not comply, the defendant’s “intention throughout, evidenced by his conduct, was to comply”.

  2. I find that during the offence periods there were practical measures the defendant could have taken to avoid potential harm to the environment. These are as identified by the prosecutor. The employment of Mr Vujkovic in the circumstances referred to in the liability judgment at [64], [72], [76], [106], [128], [250], [288], [291], [293], [311] was not an adequate practical measure.

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

  1. For harm to be foreseeable, the precise cause of an incident is not required to be foreseen. [22]

    22. See, for example, Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273; [2008] NSWLEC 264 at [145]-[151] (Biscoe J).

  2. The prosecutor submitted that the potential for harm was foreseeable due to the nature of activities carried on at the site, the nature of the substances being stored at the site and the condition of the tanks and bunds in which those substances were being stored. The prosecutor submitted that it is not necessary to establish that the defendant could have foreseen any particular rainfall event or particular overflow event. It is sufficient that it was foreseeable that deficient ongoing maintenance could cause these breaches. The defendant was on notice that heavy rainfall had occurred and was expected during the relevant period [23] and ought to have taken reasonable steps to anticipate heavy rainfall by monitoring weather forecasts.

    23. Liability judgment at [82].

  3. The defendant made no submission in relation to the foreseeability of harm caused or likely to have been caused to the environment.

  4. I find, as submitted by the prosecutor, that the potential for harm was foreseeable due to the nature of activities carried on at the site, the nature of the substances being stored at the site and the condition of the tanks and bunds in which those substances were being stored. The defendant was on notice that heavy rainfall had occurred and was expected during the relevant period and ought to have taken reasonable steps to anticipate heavy rainfall by monitoring weather forecasts.

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

  1. The prosecutor submitted that the defendant had significant control over the causes of the offences as operator of the premises who made decisions about ongoing maintenance, and who had obtained funds necessary and sufficient to comply with the clean­up notice.

  2. There were no submissions from the defendant in relation to this factor.

  3. I find, as submitted by the prosecutor, that the defendant had significant control over the causes of the offences.

Conclusion in relation to objective seriousness

  1. In relation to objective seriousness, in addition to the above sentencing considerations relevant to the seriousness of the offences, the prosecutor accepted that the defendant did take steps to partially comply with the clean-up notices, [24] and as such the clean-up notice offences were less serious in light of the partial efforts for compliance than might have been the case had there been no compliance.

    24. Liability judgment at [68]-[72].

  2. The prosecutor submitted that each of the three offences falls within the mid-range of objective seriousness for offences of this kind, and that such a classification does not form part of a two-stage sentencing but rather is one of the matters to be considered during the instinctive synthesis.

  3. Taking into consideration each of the sentencing considerations relevant to the seriousness of the offence, and that the defendant took steps to partially comply with the clean-up notices, I find that that each of the offences falls within the mid-range of objective seriousness.

Subjective factors

  1. Within the limits set by the objective seriousness of the offence, I take into account the favourable and mitigating circumstances of the defendant.

Injury, emotional harm, loss or damage caused by the offences: s 21A(2)(g) of the CSP Act

  1. The prosecutor relied on s 21A(2)(g) of the CSP Act which lists as an aggravating factor whether the injury, emotional harm, loss or damage caused by the offence was substantial. The prosecutor submitted that although there was no evidence of actual substantial harm to the environment, there was nevertheless harm caused by the substantial costs of the clean-up which fell to the EPA and ultimately the public. These costs amounted to $7,444,977.56. [25]

    25. Liability judgment at [139].

  2. The defendant submitted that the Court should note that the EPA issued compliance costs notices to the defendant and took Class 4 proceedings [26] to recover the part of the clean-up costs pursuant to s 105(1) of the POEO Act.

    26. See Pullinger (Class 4)).

  3. The Court notes that in Pullinger (Class 4), at [168] Pain J ordered Mr Pullinger to pay the EPA $1,178,940.78 plus interest in the amount of $63,362.77.

The harm caused by the offence: s 21A(3)(a) of the CSP Act

  1. The prosecutor submitted that the potential harm caused by the offending was substantial and that this potentially mitigating factor is not available to the defendant for the reasons set out above at [61]-[64]. I so find.

Defendant's record of previous convictions: s 21A(3)(e) of the CSP Act

  1. The prosecutor was not aware of the defendant having any prior convictions.

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

  1. No submissions were made by either party as to whether the defendant could be said to be of good character.

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

  1. The prosecutor submitted that the defendant no longer operated any waste management facilities and conceded that his prospects of reoffending were low.

  2. The defendant submitted that there was “virtually no prospect” of the defendant reoffending. He was not currently working in the waste industry and given his age (75 at the time of hearing on sentence), health, the circumstances of the offences and his financial position, it was very unlikely that he would do so in the future. Even if his bankruptcy was discharged, it was unlikely that he would be able to raise funds or be considered a fit and proper to hold an EPL due to the bankruptcy and finding of guilt for the offences. In oral submissions, Ms Sims further submitted that the bankruptcy letter dated 4 January 2023 stated that “upon discharge from bankruptcy your name will appear on the National Personal Insolvency Index (NPII) forever as a discharged bankrupt”, another barrier to Mr Pullinger commencing a new business.

Contrition and remorse: s 21A(3)(i) of the CSP Act

  1. The prosecutor submitted that there was no evidence of contrition or remorse from the defendant.

  2. The existence of remorse is relevant to the weight that needs to be given in sentencing to specific deterrence and the prospects of rehabilitation. [27]

    27. R v Thomson; R v Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104; [2000] NSWCCA 309 (R v Thomson) at [116] (James J, Spigelman CJ, Wood CJ at CL, Foster AJA and Grove J agreeing).

  3. Having considered the affidavits of Mr Pullinger dated 17 August 2023 and 30 September 2024, I find that there is no evidence of contrition or remorse from the defendant.

Plea of guilty: s 21A(3)(k) of the CSP Act

  1. The Court may apply a discount to a maximum of 25% where a guilty plea is entered at the earliest reasonable opportunity. [28]

    28. R v Thomson at [160].

  2. Here, the defendant did not plead guilty to any of the three offences. Accordingly, there can be no discount for a plea of guilty in determining the appropriate sentences.

Assistance to authorities: s 21A(3)(m) of the CSP Act

  1. The prosecutor accepted that the defendant engaged with the EPA during its investigations and responded to various notices, both of which could be considered assistance by the offender to law enforcement authorities within s 21A(3)(m) of the CSP Act.

  2. In the course of the liability hearing, the defendant agreed to extensive agreed facts: see [43] of the liability judgment. In ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (ACE Demolition), [29] the Court of Criminal Appeal held at [98] that “[t]here may be exceptional cases where an offender’s participation in a statement of agreed facts nonetheless amounts to assistance for the purposes of s 21A(3)(m)”.

    29. (2024) 260 LGERA 358; [2024] NSWCCA 4 at [92]-[101] (Leeming JA, Garling and Cavanaugh JJ agreeing).

  1. The defendant to pay a fine in the amount of $80,000.

In proceedings 2020/327089, 2020/327090 and 2020/327091:

  1. Pursuant to s 122 of the Fines Act 1996 (NSW), 50% of the fines imposed on the defendant pursuant to orders (2), (4) and (6) to be paid to the prosecutor.

  2. Pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 (NSW), the defendant to pay the prosecutor's legal costs as agreed or assessed.

  3. Pursuant to s 248 of the POEO Act, the defendant to pay to the prosecutor the amount of $201,487 incurred in the investigation of the offences.

**********

Endnotes

Amendments

13 June 2025 - Typographical error in [141] corrected.

Decision last updated: 13 June 2025

Most Recent Citation
Cases Citing This Decision

1

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

57

Statutory Material Cited

5

ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4
ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4
Harris v Caladine [1991] HCA 9