Environment Protection Authority v Sydney Water Corporation

Case •

[2023] NSWLEC 68

•

05 July 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68
Hearing dates: 11 May 2023
Date of orders: 05 July 2023
Decision date: 05 July 2023
Jurisdiction:Class 5
Before: Pritchard J
Decision:

Orders as set out at [196]

Catchwords:

SENTENCING – environmental offences – s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) – guilty plea – pollution of waters – mid-range of objective seriousness – large volume of sewage overflow – harm caused to the environment – subjective circumstances – prior convictions for environmental offences – good character – likelihood of reoffending – even-handedness in sentencing – appropriate penalty – publication order.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3, 3A, 21A, 22(1)

Criminal Procedure Act 1986 (NSW) s 257G

Environmental Trust Act 1988 (NSW)

Fines Act 1996 (NSW) ss 6, 122

Protection of the Environment Operations Act 1997 (NSW) ss 3, 116, 120, 123, 241, 250(1)(e)

Cases Cited:

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

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

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

Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114

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

Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194

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

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

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

Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171

Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349

Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178

Environmental Protection Authorityv Ditchfield Contracting Pty Ltd [2018] NSWLEC 90

Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26

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

Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39

Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80

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

Environment Protection Authority v Ravensworth Operations Pty Limited [2012] NSWLEC 222

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

Environment Protection Authority v Sydney Water Corporation [1998] NSWLEC 144

Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 80

Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156

Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80

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

Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153

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

Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17

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

Environment Protection Authority v University of Sydney [2022] NSWLEC 41

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

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

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

Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242

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

Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84

Harrison v Perdikaris [2015] NSWLEC 99

Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33

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

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

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

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

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

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

R v Kilic (2016) 259 CLR 256; [2016] HCA 48

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

R v Peel [1971] 1 NSWLR 247

R v Van Ryn [2016] NSWCCA 1

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

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Water NSW v Barlow (2019) 244 LGERA; [2019] NSWLEC 30

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

Texts Cited:

Nil

Category:Sentence
Parties: Environment Protection Authority (Prosecutor)
Sydney Water Corporation (Defendant)
Representation: Counsel:
C Leggat SC with F Berglund (Prosecutor)
S Hall SC and J Caldwell (Defendant)
Solicitors:
Litigation Branch, Environment Protection Authority (Prosecutor)
Clayton Utz (Defendant)
File Number(s): 2021/302715; 2021/302716; 2021/302718
Publication restriction: Nil

JUDGMENT

Nature of proceedings

Outcome

Evidence

Statement of Agreed Facts

Affidavit of Iain Fairbairn, Head of Wastewater and Environment, Sydney Water Corporation

Summary of agreed facts

The locations and parts of the reticulation system at Naremburn

Condition of the Dawson Street Maintenance Hole and the Oviform Sewer

The cause of the incident

Rainfall during the period of the offences

The defendant’s actions during the period of the offences

Volume of sewage overflows during the period of the offences

Harm caused to the environment as a result of the offences

Relevant statutory provisions

Objective seriousness of the offences

Nature of the offences

Maximum penalty for the offence

Harm caused to the environment by the commission of the offences; s 241(1)(a) of the POEO Act

Offence 1, and harm caused to the environment

Offence 2, and harm caused to the environment

Offence 3, and harm caused to the environment

The defendant’s state of mind in committing the offences

The defendant’s reasons for committing the offences

Practical measures taken to avoid harm to the environment; s 241(1)(b) of the POEO Act

The reasonably foreseeable risk of harm to the environment by the commission of the offences; s 241(1)(c) of the POEO Act

The defendant’s control over the causes of harm to the environment; s 241(1)(d) of the POEO Act

Conclusions in relation to the objective seriousness of the offences

Offence 1

Offences 2 and 3

Subjective circumstances of the offender

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

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

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

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

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

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

Conclusions in relation to the subjective circumstances of the offender

Other principles of sentencing to be considered

Proportionality

Specific and general deterrence (s 3A(b) CSP Act)

Denunciation and retribution (s 3A(a), (e), (f) of the CSP Act)

Even-handedness and consistency in sentencing

Capacity to pay fine (s 6 of the Fines Act)

The appropriate penalty to be imposed

Totality principle

Conclusions in relation to the appropriate penalty to be applied in relation to each of the offences

Payment of share of fine to prosecutor (s 122 Fines Act)

Costs

Publication order and notice to affected persons

Orders

JUDGMENT

Nature of proceedings

  1. The defendant, Sydney Water Corporation, owns and operates the Northern Suburbs Sewage Treatment System (STS), which includes the sewage treatment plant at Blue Fish Road, Manly, New South Wales.

  2. The defendant is a statutory State-owned corporation established under the State Owned Corporations Act 1989 (NSW). As a State-owned corporation, for or in connection with the exercise of its powers, the defendant has all the powers of a natural person.

  3. On 24 February 2023, the defendant pleaded guilty to three offences of polluting waters contrary to s 120(1) of the Protection of the Environment Operations Act 1997 (POEO Act): to a first offence as charged in the prosecutor’s summons filed 25 October 2021, and to second and third offences as charged in the prosecutor’s amended summonses filed 24 February 2023.

  4. The three offences against s 120(1) of the POEO Act to which the defendant has pleaded guilty are:

  1. between about 26 October 2020 and about 30 October 2020, at or near the STS, the defendant polluted waters contrary to s 120(1) of the POEO Act, when sewage escaped from a 225mm gravity reticulation sewer (the 225mm Sewer) and an adjoining maintenance hole located to the rear of Dawson Reserve Naremburn (the Playground Maintenance Hole), and flowed over land and entered Flat Rock Creek (Offence 1);

  2. between about 27 October 2020 and 29 October 2020, at or near the STS, the defendant polluted waters contrary to s 120(1) of the POEO Act, when sewage discharged from an emergency relief structure near Gaza Road, Naremburn (Gaza Road ERS), and entered Flat Rock Creek (Offence 2); and

  3. between about 27 October 2020 and 29 October 2020, at or near the STS, the defendant polluted waters contrary to s 120(1) of the POEO Act when sewage discharged from an emergency relief structure at Garland Road, Naremburn (Garland Road ERS), and entered Flat Rock Creek (Offence 3).

  1. The particulars to each of the three offences are that the waters the subject of the offences was at Flat Rock Creek, Naremburn and downstream thereof, and that the pollutant was untreated sewage which included the following matter:

  1. excrete and urine; and/or

  2. matter that contains faecal coliform; and/or

  3. matter that contains a nitrogen compound; and/or

  4. matter that contains a phosphorous compound.

  1. The offences arise from an incident whereby sewage discharged from three parts of the STS in the suburb of Naremburn, and was introduced to the environment, ultimately entering Flat Rock Creek (the incident). It was agreed that the sewage overflows were caused by the partial collapse of an oviform-shaped sewer (the Oviform Server) and an adjoining maintenance hole, located at or near Dawson Street, Naremburn, which resulted in a blockage in the reticulation system, causing sewage to back up into and discharge from the upstream locations. As a result of the overflows in the period between 26 October 2020 and 30 October 2020, about 16,000,000 litres of sewage discharged to the environment. That is, on any view, a considerable volume of sewage.

  2. The defendant accepted that a large volume of sewage discharged into the environment.

Outcome

  1. The defendant has pleaded guilty to, and is convicted of three offences against s 120(1) of the POEO Act as charged. It arises to sentence the defendant for each of those offences.

  2. I have determined to impose the following monetary penalties on the defendant, reflecting the utilitarian value of the guilty pleas:

  1. a penalty in the amount of $337,500 in relation to Offence 1;

  2. a penalty in the amount of $112,500 in relation to Offence 2; and

  3. a penalty in the amount of $112,500 in relation to Offence 3,

to which I have applied a further discount of 35 percent having regard to the totality principle, and the circumstance that the three offences arose from the same incident. This produces a total penalty for the three offences in the amount of $365,625. I propose to make an order that 50 percent of that amount be paid to the Environment Trust established under the Environmental Trust Act 1988 (NSW), pursuant to s 250(1)(e) of the POEO Act for general environmental purposes, and the remaining 50 percent be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW). My orders to that effect and related orders are set out at the conclusion of these reasons for decision.

Evidence

Statement of Agreed Facts

  1. The parties filed an extensive Statement of Agreed Facts on 4 May 2023 (SOAF) which sets out the relevant background to the three offences.

  2. The prosecutor relied on no evidence beyond the SOAF. However, at the hearing, the prosecutor provided to the Court an aide-memoire which was subsequently the subject of an agreed tender which identifies the principal locations and parts of the reticulation system at Naremburn. The tendered annotated map (the annotated map) is reproduced below at [26], and has assisted the Court in these reasons for decision.

Affidavit of Iain Fairbairn, Head of Wastewater and Environment, Sydney Water Corporation

  1. The defendant read an affidavit of Mr Iain Fairbairn, head of wastewater and environment at the defendant, affirmed 9 May 2023. Mr Fairbairn was not required for cross-examination.

  2. Mr Fairbairn deposed that he had responsibility and oversight of the defendant’s staff who liaised with the prosecutor and other regulators during the time of the incident, and assisted with investigations conducted by the prosecutor subsequent to the incident. Mr Fairbairn deposed to being familiar with the defendant’s policies, procedures and practices relating to the environment, and the management systems flowing from those policies, procedures and practices. Among those is the defendant’s Environmental Management System (EMS) which is certified to international standard “Environmental Management System - ISO14001:2015”, certification of which was annexed to Mr Fairbairn’s affidavit, and which Mr Fairbairn said is monitored annually for its ongoing suitability, adequacy and effectiveness. Mr Fairbairn set out the corporate, group and operational levels at which the defendant monitors its environmental performance and compliance with relevant legislation and regulations through audits and inspections.

  3. Mr Fairbairn deposed that the wastewater network operated by the defendant was constructed between 1888 and 2023, servicing approximately 5,161,000 people, and collecting and treating approximately 536 billion litres of wastewater annually. The sewer the subject of the incident is part of a system initially constructed between 1916 and 1930, comprising some 6,300 kilometres of pipes and still growing, servicing approximately 1,440,000 customers.

  4. In relation to the defendant’s response to the incident, Mr Fairbairn said that the defendant “took all reasonable and feasible actions to minimise harm to the environment and protect public health”. Those actions included:

  1. engaging internal and external specialists, including ecology and heritage consultants, to ensure the site clean-up and remediation activities were conducted in a manner that minimised environmental harm;

  2. regularly communicating with the local community and providing alternate accommodation options to those residents directly affected by the response works;

  3. providing regular updates and situation reports on the defendant’s response, clean-up progress, water quality, pollution control and mitigation measures to the prosecutor, the Department of Health, and local councils;

  4. continuing testing of the water quality and stream health after the incident: the defendant prepared a report titled “Naremburn Wastewater Overflow – Stream Health – Flat Rock Creek” (annexed to Mr Fairbairn’s affidavit) which provided the results of the testing conducted one month and six months after the incident, concluding that “[a]nalysis of the rapid riparian assessment, long-term SIGNAL-SF and post incident SIGNAL-SG biotic index scores, and multivariate analyses suggests wastewater overflow from the incident in October 2020 has not had a lasting impact on the macroinvertebrate community structure in Flat Rock Creek”; and

  5. undertaking an investigation of the incident and response to the incident, resulting in the defendant making improvements to its governing procedure for the work programming and reporting process and its decision framework for allocating resources. The defendant also reviewed its standards for asset valuation and condition assessment, and maintenance inspections programs to reassess asset prioritisation.

  1. Mr Fairbairn outlined improvements that the defendant has undertaken in recent years relating to its internal frameworks in order to deliver appropriate environmental outcomes. He said that in 2019, the defendant implemented a new work instruction to improve its processes in relation to overflows. Mr Fairbairn annexed to his affidavit a recent copy of the work instruction, titled “clean up of overflow or surcharge”, issued 22 November 2021, after the incident. Mr Fairbairn said that over 520 staff and contractors have been trained on the new work instruction, and that all new staff and contractors are to be trained before commencing work on responding to wastewater overflows. This involves comprehensive training on how to install signage and containment, assess the impact of an overflow, install watergates and sandbags and undertake pumping and other clean-up activities.

  2. Mr Fairbairn deposed that also in 2019, the defendant commenced an Environment Performance Improvement Program (EPIP), designed to deliver improved environmental outcomes in response to a decline in the defendant’s environmental performance during the 2017 to 2020 drought in Sydney. The EPIP’s five key focuses are incident response, incident prevention, restore compliance, environmental ambition, and environmental governance.

  3. Mr Fairbairn identified other initiatives that the defendant has undertaken in order to reduce the risk of overflows from its wastewater networks. These include:

  1. the commencement of a maintenance hole inspection program in 2018 in which the defendant has invested approximately $9 million for the inspection of around 90,000 manholes and adjoining pipe assets, and which has resulted in the identification of around 8,700 sewer blockages;

  2. the development in 2020 of the Sydney Canine Environmental Networks Team to train dogs to detect the presence of wastewater in the environment, and which has resulted in the identification in more than 45 wastewater faults and 185 drinking water faults;

  3. a substantial increase to its preventative cyclic root cutting program, resulting in 922 kilometres of root cutting undertaken in wastewater pipes in the 2021-22 financial year;

  4. investing approximately $1 million in the installation of 10,000 “Internet of Things” sensors to detect blockages in wastewater pipes which, when he affirmed his affidavit on 9 May 2023, had detected more than 400 blockages in wastewater pipes; and

  5. the recent development of an artificial intelligence machine learning closed circuit television review tool to assess and rapidly identify potential faults in sewer mains and provide insights into asset condition and serviceability risk in which the defendant continues to invest.

  1. Mr Fairbairn also deposed to the defendant’s improvements in resourcing through the recruitment of additional technicians and maintenance crews to respond to overflows, network operators to ensure that large clean-ups have a dedicated site co-ordinator, specialised clean-up contractors, as well as more robust clean-up equipment, and team leaders to oversee and manage crews and contractors.

  2. Mr Fairbairn provided detail of environmental improvement and community projects that the defendant has undertaken to provide water and wastewater services that sustain and enhance the environment, as well as the community’s lifestyle and enjoyment of waterways. These include:

  1. from 2016 to the time of affirming his affidavit on 9 May 2023, running a community grants program to the value of $60,000 which has supported over 100 community organisations in the areas of water conservation, healthy waterways, health and wellbeing, education and environment, safety, arts and heritage;

  2. commencing the “Refresh Vaucluse and Diamond Bay” project in March 2018 to construct 4km of pipework and two pumping stations to redirect sewage discharged into the ocean to be treated at the Bondi Sewage Treatment Plant, in relation to which project works commenced in 2021;

  1. since 2018, providing portable water stations to more than 450 sponsored or community events, estimating to have prevented the purchase of 57,402 single-use plastic bottles in the 2022/23 year;

  2. investing $126 million between 2020 and 2025 on a targeted program of works in the Parramatta River catchment to “make the Parramatta River swimmable by 2025”, as well as launching a program called “Urban Plunge” in 2022 to accelerate the delivery of more swimming and aquatic recreation opportunities in waterways across Greater Sydney in which it has spent $1.5 million in the 2022-23 financial year;

  3. contributing $100,000 in the 2021-22 and 2022-23 years to fund the maintenance and calibration of a series of water quality monitoring buoys owned by Hornsby Shire Council;

  4. running a community education campaign named “the Wonders of Water Discovery Tour” with staff since May 2022, having attended over 100 events and had direct educational engagement with over 33,000 community members; and

  5. launching a source control program in September 2022 to reduce fats, oils and grease discharged into the wastewater network, seeking to ensure that retail food businesses have a connection agreement with the defendant and approval to discharge commercial trade waste.

  1. Mr Fairbain expressed remorse and contrition. He said:

Sydney Water recognises and accepts that the fact that the Incident occurred means Sydney Water has fallen short of what it is reasonably required to do to appropriately protect the environment. In particular, I express remorse and contrition on behalf of Sydney Water for the Incident and for the resulting impact on the environment and our customers.

Sydney Water recognises and accepts that the pollution is not acceptable. It is not acceptable to the public and it is not acceptable for a public authority operating a significant public utility.

  1. Annexed to Mr Fairbairn’s affidavit was a letter from Mr Roch Cheroux, managing director of the defendant, also expressing remorse and contrition for the incident and the pollution which resulted from it. Mr Cheroux said:

Sydney Water recognises the importance of maintaining a high standard of environmental care while meeting our Operating Licence and Environment Protection Licence requirements as we provide essential water and wastewater services throughout our area of operations. Through regular reviews of our environmental management systems and our environmental compliance obligations, we strive to continually improve our environmental performance. Since this incident there have been a number of improvements to our procedures, including those arising out of the incident investigations and the Environmental Performance Improvement Program (EPIP). These improvements will reduce the risk of similar incidents occurring into the future.

  1. Mr Fairbairn deposed that the improvements undertaken by the defendant under the EPIP “represented a substantial investment by Sydney Water and have led to a significant reduction in the average time to manage and close out pollution incidents”. He said that “this improvement has also been recognised by the EPA which has reported a substantial improvement in the management of pollution incidents by Sydney Water.” Further, Mr Fairbairn deposed that:

Sydney Water notes that since 2021, the number of incidents reported to the EPA has declined, and the number of enforcement actions taken against Sydney Water has also declined. Sydney Water is confident that its focus on preventing problems from occurring is resulting in change across the system and the reduced number of incidents.

However, the average time to manage and close out pollution incidents was not in evidence, nor was the numbers of incidents reported to the EPA.

Summary of agreed facts

  1. The following factual background is derived from the SOAF.

  2. The defendant owns and operates the STS. The defendant holds environment protection licence No 378, issued under the POEO Act (the licence). The licence authorises the scheduled activity of “sewage treatment” at the STS.

  3. The annotated map, identifying the principal locations and parts of the reticulation system at Naremburn, is reproduced below:

The locations and parts of the reticulation system at Naremburn

  1. The locations and assets in the reticulation system at Naremburn identified in the annotated map are as follows:

  1. Dawson Playground is a public playground located opposite 18 and 20 Dawson Street, Naremburn (Dawson Playground).1 There is a walking track with some stairs behind the playground which leads to Flat Rock Creek.

  2. Flat Rock Creek is situated downhill from Dawson Playground, extending from Artarmon, through Naremburn to Tunks Park at Cammeray where it meets Long Bay, Middle Harbour. [1] The upper section of Flat Rock Creek is an ephemeral watercourse, part of a stormwater system consisting of a main concrete stormwater channel and a series of connecting underground stormwater pipes that captures flows from Artarmon, Willoughby, Naremburn and St Leonards. During wet weather, diluted sewage can overflow into the upper section of Flat Rock Creek from the Garland Road ERS and the Gaza Road ERS. The middle section of Flat Rock Creek is an open creek, situated to the north of Dawson Playground, before continuing east downstream. Overflows from the 225mm Sewer and the Playground Maintenance Hole entered Flat Rock Creek from this middle section. The lower section of Flat Rock Creek runs from the confluence of Flat Rock Creek and Quarry Creek to a weir under Long Gully Bridge into an underground stormwater tunnel at Tunks Park, and towards outlets under Mortlock Reserve to Long Bay in Cammeray.

    1. Number 10 on the annotated map at [26].

  3. Tunks Park is a public park in Cammeray which extends west from the foreshore of Long Bay under the Cammeray Suspension Bridge to Flat Rock Gully Reserve.

  4. Long Bay and the wider Middle Harbour area is a “secondary contact” waterway used for recreational activities that have less frequent body contact with water, such as fishing and boating.

  5. Both the Garland Road ERS and the Gaza Road ERS discharge into an underground section of Flat Rock Creek between Willoughby Road and to the east of Flat Rock Drive. [2] They are designed to discharge excess diluted sewage from the STS when the capacity of the system is exceeded due to wet weather infiltration. The Garland Road ERS and the Gaza Road ERS each includes a maintenance hole, an overflow weir and a discharge pipe which connects to the council stormwater network. The Garland Road ERS maintenance hole is located on the northern side of the roadway at Garland Road, approximately 15 metres east of the intersection with Willoughby Road. The Gaza Road ERS maintenance hole is located on a cycle way, approximately 27 metres due north of the end of Gaza Road.

    2. Number 8 on the annotated map at [26].

  6. The Playground Maintenance Hole is a maintenance hole located behind the Dawson Playground at or near Dawson Street. It is adjacent to the 225mm Sewer which allows access for inspection and maintenance. [3]

    3. Numbers 5 and 6 on the annotated map at [26].

  7. The 225mm Sewer is a circular 225mm buried, non-pressurised gravity reticulation sewer located at or near Dawson Reserve at Dawson Street, Naremburn (Dawson Reserve). [4]

    4. Number 4 on the annotated map at [26].

  8. The Dawson Street Maintenance Hole is a maintenance hole located 2 metres from the north-west corner of 24 Dawson Street (Dawson Street Maintenance Hole). [5] It was installed on 15 June 1910, and is at the junction of four sewers, including the 225mm Sewer and the Oviform Sewer, providing access for inspection and maintenance works.

  9. The Oviform Sewer is a 533mm x 736mm oviform-shaped sewer main located at or near Dawson Street. [6] It was also installed on 15 June 1910, and is part of a submain that captures flows from Willoughby (Willoughby Submain).

  10. The Grafton Avenue Maintenance Hole is a maintenance hole located in the middle of Grafton Avenue, opposite 16A Grafton Avenue (Grafton Avenue Maintenance Hole). [7] It allows access for inspection and maintenance and is downstream of the Oviform Sewer and the Dawson Street Maintenance Hole.

  11. The Flat Rock Gully Walking Track is an unsealed walking track near Flat Rock Creek (Flat Rock Gully Walking Track). [8] One of its paths, the Dawson Street Track, is located behind Dawson Street and Dawson Playground, with a number of rock steps leading downhill toward Flat Rock Creek (Dawson Street Track). [9]

  12. At the time of the incident, an excavation pit (the Excavation Pit) had been dug out by contractors of the defendant to allow access to the 225mm Sewer between the Playground Maintenance Hole and the Dawson Street Maintenance Hole for the purpose of repair works. [10]

    5. Number 3 on the annotated map at [26].

    6. Number 2 on the annotated map at [26].

    7. Number 1 on the annotated map at [26].

    8. Number 11 on the annotated map at [26].

    9. Number 12 on the annotated map at [26].

    10. Number 7 on the annotated map at [26].

Condition of the Dawson Street Maintenance Hole and the Oviform Sewer

  1. At the time of the incident, the agreed condition of the Dawson Street Maintenance Hole was as follows:

  1. The shaft and lower chamber were in poor condition, mainly as a result of poor construction and poor concrete quality. There was significant softening of the original surface to a 40 millimetre depth. Patches of bony concrete were present, and the exposed aggregate was loose and poorly bonded as a result of very little cementitious mix. Evidence of previous patch repairs was present.

  2. A large void was present as a result of the partial collapse of the concrete capping and lower chamber surrounding the concrete pipe section.

  3. The quality of mass concrete capping at the downstream face was poor.

  4. The concrete benching was significantly eroded. At the downstream side, the benching and lower section of the chamber base was completely missing, with the upper portion of the pipe bulkhead suspended.

  1. The Oviform Sewer, over 100 metres in length, runs between the Dawson Street Maintenance Hole (upstream) and the Grafton Avenue Maintenance Hole (downstream). The Oviform Sewer is 8.15 metres deep at the Dawson Street Maintenance Hole, and 20.89 metres deep at the Grafton Avenue Maintenance Hole.

  2. At the time of the incident, the crown of the Oviform Sewer had collapsed into the void of the Oviform Sewer, within 2 metres of the Dawson Street Maintenance Hole.

The cause of the incident

  1. The cause of the incident which occurred between 27 October 2020 and 30 October 2020, agreed between the prosecutor and the defendant, was as follows:

  1. The incident occurred as a result of a blockage in the Oviform Sewer and the Dawson Street Maintenance Hole. This caused sewage to back up into and overflow from the 225mm Sewer and the Playground Maintenance Hole, as well as to back up to the Willoughby Submain to discharge from the Gaza Road ERS and the Garland Road ERS.

  2. The blockage was a result of the Oviform Sewer partially collapsing within 2 metres of the Dawson Street Maintenance Hole and a portion of the Dawson Street Maintenance Hole also failing and collapsing, contributing to debris that was already present in the Oviform Sewer.

  3. The partial collapse of the Oviform Sewer occurred due to a loss of structural integrity in the crown of the Oviform Sewer. This resulted in the crown collapsing in the void of the Oviform Sewer with mixed material from above the pipe. A portion of the adjacent Dawson Street Maintenance Hole also failed.

Rainfall during the period of the offences

  1. There was rainfall during the period of the offences. The defendant operates two proximal rain gauges which recorded levels of rainfall at the time of the incident. Closer to the location of the incident was the rain gauge at Chatswood Bowling Club (Chatswood Gauge). Further from the location of the incident was the rain gauge near Taronga Zoo, Mosman (Mosman Gauge).

  2. The following table, reproduced from the SOAF, summarises rainfall between 6:00pm on 25 October 2020 and 7:10pm on 30 October 2020, as recorded at the Chatswood Gauge and at the Mosman Gauge:

The defendant’s actions during the period of the offences

  1. On 26 October 2020 at about 6:00pm, after and during rainfall, sewage began to overflow from the 225mm Sewer and from the Playground Maintenance Hole.

  2. On 27 October 2020:

  1. Sewage overflowed from the Gaza Road ERS and from the Garland Road ERS.

  2. From about 7:00am, staff from IPC Projects Pty Ltd, the sub-contractor engaged by Comdain Infrastructure Pty Ltd, contractor for the defendant, (IPC Projects) were present at the Playground Maintenance Hole and the Excavation Pit to carry out repair works to the 225mm Sewer and the Playground Maintenance Hole. Between about 7:00am to 8:30am, staff from IPC Projects observed sewage leaking from gaps in the side wall of the Playground Maintenance Hole chamber, discharging through the rock face adjacent to the Playground Maintenance Hole and filling the Excavation Pit. Sewage was subsequently observed to be discharging along the rock face for around 15 metres downstream of the Playground Maintenance Hole and below the Excavation Pit.

  3. At about 8:54am, Mr Christian Groeneveld, site foreman of IPC Projects, called the defendant’s emergency hotline to report that sewage was escaping from the Playground Maintenance Hole.

  4. At about 9:00am, Mr Groeneveld called the defendant’s contracts officer, Mr Tony Ciliegi, to notify him of the sewage overflows. Mr Groeneveld subsequently called Mr Kyle Wilson, from a contractor referred to as IC Pipes, to arrange a tanker to reduce flows in the sewer main and a jetter to clear the blockage in the sewer. From about 10:00am to 6:30pm, an IC Pipes truck was on site to perform tankering and jetting.

  5. At about 10:58am, the defendant's first response “jetter” crew member, Mr Greg Smith, arrived at the Dawson Street Maintenance Hole. At this location, Mr Smith did not observe any sewage discharging and was advised by IPC Projects crew that he was not needed, so he left Naremburn without attending Dawson Playground, the Playground Maintenance Hole or the vicinity of the 225mm Sewer at this time.

  6. At about 6:38pm, Mr Steven Dann from the defendant arrived at Dawson Reserve. Between about 6:38pm and 7:40pm, Mr Dann installed containment below the Excavation Pit, but that containment was washed away by high sewage flows. Between about 8:11pm and 9:30pm, Mr Dann installed signage and cordoning tape at the Flat Rock Gully Walking Track at both the top of the Dawson Street Track at the Dawson Playground, and at the end of Dawson Street.

  7. At 9:19pm, the defendant declared the sewage overflow an “incident” and reported it to the EPA at 9:34pm.

  1. On 28 October 2020:

  1. At about 7:30am, a contractor for the defendant, Veolia Environmental Services (Australia) Pty Ltd, commenced dredging works to remove the blockage in the Oviform Sewer from the downstream side.

  2. At about 8:00am, the defendant upgraded the status of the incident to “significant”.

  3. From about 8:00am, tankering commenced from the Dawson Street Maintenance Hole and continued until the evening of 30 October 2020. This involved pumping out sewage from the sewer system into a tanker to prevent the sewage discharging into the environment, then transporting and discharging the sewage back into the sewage system at an appropriate location.

  4. At about 11:20am, a containment in the form of approximately 1,000 sandbags was installed in Flat Rock Creek, upstream of an overpass at Strathallen Avenue near Long Gully Bridge (the sandbag containment). Pumps and hoses were also installed and operated at this containment location to divert sewage overflowing into Flat Rock Creek to a nearby trunk sewer in Tunks Park. This pumping operation remained in place until 7 November 2020.

  5. At about 1:30pm, bypass pumping commenced between the Dawson Street Maintenance Hole and the Grafton Avenue Maintenance Hole, downstream. This continued until 30 October 2020.

  6. Sandbag containment was also established around the Excavation Pit and the Playground Maintenance Hole. “Flex drive” pumps were set up to pump sewage from the containment back into the Excavation Pit, which drained back to the 225mm Sewer and flows to the Dawson Street Maintenance Hole where tankering and the bypass around the blockage were in operation.

  7. From the afternoon, additional tankering operations were established at two other maintenance holes located upstream of the Oviform Sewer: the first at the corner of Garland Road and Willoughby Road where tankering occurred overnight between 28 to 30 October 2020 due to heavy traffic during the day, and the second at Ruth Street where tankering occurred from the evening of 29 October 2020 until 31 October 2020.

  1. On 29 October 2020:

  1. At 1:00pm, the defendant upgraded the status of the incident to “major”.

  2. At 11:30am, the sandbagging containment in Flat Rock Creek which had collapsed multiple times due to rainfall was reinstated for the Garland Road ERS, and at 12:30pm for the Gaza Road ERS.

  1. On 30 October 2020:

  1. At about 7:10pm, dredging works were undertaken to reduce the blockage in the Oviform Sewer and the Dawson Street Maintenance Hole to allow flows to pass around the remaining blockage.

  2. Also at about 7:10pm, the overflows from the 225mm Sewer and the Playground Maintenance Hole ceased.

  1. On 30 and 31 October 2020, aerators were installed and operated in Flat Rock Creek, both upstream and downstream of the sandbag containment in Flat Rock Creek. The aerators ran until 6:00pm on 7 November 2020.

  2. Between 31 October 2020 and 5 November 2020, the sandbag containment in Flat Rock Creek collapsed three times due to increased flows from storms and rainfall, and in each case was reinstated the following day.

  3. From 7:30am on 12 November 2020 to about 7:00pm on 13 November 2020, aerators were reinstated in Flat Rock Creek. On 12 and 13 November 2020, additional pumping out of Flat Rock Creek occurred. On 14 November 2020, clean-up crews removed a small portion of the sandbag containment to restore natural flows and tidal fluctuations in the lower section of Flat Rock Creek.

  4. By 28 November 2020, all remaining debris had been removed from the Oviform Sewer and the Dawson Street Maintenance Hole, which had returned to normal operating capacity.

Volume of sewage overflows during the period of the offences

  1. Reproduced below is a summary from the SOAF of the overflows from each of the three discharge locations in relation to each of Offences 1 to 3:

  1. Offence 1 caused an estimated discharge volume of 14,656kL, being 14,656,000 litres during the period 26 to 30 October 2020.

  1. Offence 2 caused an estimated discharge volume of 704kL, being 704,000 litres during the period 27 to 29 October 2020.

  1. Offence 3 caused an estimated discharge volume of 640kL, being 640,000 litres during the period 27 to 30 October 2020.

Harm caused to the environment as a result of the offences

  1. The sewage discharged from the reticulation system was predominantly comprised of domestic residential wastewater including greywater and wastes excreta, urine and faecal bacteria. “Faecal coliforms” and “Enterococci” were used as faecal indicator organisms for pathogenic risk in recreation waters as they are present in high concentrations in sewage-contaminated environments relative to uncontaminated environments.

  2. The Australian and New Zealand Guidelines for Fresh and Marine Water Quality 2000 (ANZECC Guidelines) and the Australian and New Zealand Guidelines for Fresh and Marine Water Quality 2018 (ANZ Guidelines) are used to assess water quality and levels of contaminants within waterways. When concentrations exceed the default guideline values (DGVs), also referred to as guideline trigger values (GTVs) in the ANZ Guidelines and ANZECC Guidelines, there is a risk of impact occurring, including adverse health or environmental impacts. There are separate GTVs in relation to primary recreational contact, such as swimming (primary contact), and secondary recreational contact, such as fishing (secondary contact).

  1. The overflows charged in Offences 1 to 3 altered the chemical and biological characteristics of the receiving environment. This had the effect of degrading the waters of Flat Rock Creek to the foreshore of Long Bay, Middle Harbour (foreshore Middle Harbour) for a period of approximately 6 to 7 days.

  2. In relation to Offence 1, the estimated 14,656,000 litres of sewage that overflowed from the 225mm Sewer and the Playground Maintenance Hole between 26 to 30 October 2020 caused a significant flow of sewage into Flat Rock Creek. The sewage discharged on 26 October 2020 was likely to have been diluted due to rainfall between 25 to 26 October 2020, with much less dilution in the discharge on 27 October 2020. It was agreed that sewage discharged on 29 October 2020 “would have been" diluted with some rainfall ingress to the sewer system, with the dilution lessening on 30 October 2020.

  3. Offence 1 resulted in the pollution of the receiving waters with faecal coliforms and Enterococci for approximately 7 days at Flat Rock Creek, and 6 days at foreshore Middle Harbour. During those periods, as a result of Offence 1, the GTVs for faecal coliforms and Enterococci in relation to secondary contact were exceeded by:

  1. between 8 to 5,038 times (faecal coliforms), and 16 to 4,779 times (Enterococci) in Flat Rock Creek; and

  2. between 2.5 to 641 times (faecal coliforms), and 0 to 195 times (Enterococci) at foreshore Middle Harbour.

These results were agreed, and recorded in tables annexed to the SOAF.

  1. In relation to Offence 2, the overflow of an estimated 704,000 litres of sewage from the Gaza Road ERS on 27 and 29 October 2020 contributed a load of sewage pollutants to the overflow that concurrently occurred downstream at the inflow point of the overflow from the 225mm Sewer and the Playground Maintenance Hole (Inflow Point). It was agreed that the sewage discharged “was likely to have been” diluted with some rainfall ingress to the reticulation system. Offence 2 resulted in the pollution of the receiving waters with faecal coliforms and Enterococci for approximately 7 days at Flat Rock Creek, and 4 days at foreshore Middle Harbour.

  2. During those periods, the GTVs for faecal coliforms and Enterococci in relation to secondary contact were exceeded by:

  1. between 0 to 242 times (faecal coliforms), and 0 to 230 times (Enterococci) in Flat Rock Creek; and

  2. between 3 to 31 times (faecal coliforms), and 0 to 9 times (Enterococci) at foreshore Middle Harbour.

These results were agreed, and also recorded in tables annexed to the SOAF.

  1. In relation to Offence 3, the overflow of an estimated 604,000 litres of sewage from the Garland Road ERS on 27 and 29 October 2020 contributed a load of sewage pollutants to the overflow that concurrently occurred downstream at the Inflow Point. It was agreed that the sewage discharged was likely to have been diluted with some rainfall ingress to the reticulation system. Offence 3 resulted in the pollution of the receiving waters with faecal coliforms and Enterococci for approximately 7 days at Flat Rock Creek, and 4 days at foreshore Middle Harbour.

  2. During those periods, the GTVs for faecal coliforms and Enterococci in relation to secondary contact were exceeded by:

  1. between 0 to 220 times (faecal coliforms), and 0 to 209 times (Enterococci) in Flat Rock Creek; and

  2. between 3 to 28 times (faecal coliforms), and 0 to 9 times (Enterococci) at foreshore Middle Harbour.

These results were agreed, and also recorded in tables annexed to the SOAF.

  1. It was agreed that the following alterations to the characteristics of the receiving waters at Flat Rock Creek and downstream thereof were observed as a direct result of Offences 1 to 3:

  1. The concentrations of faecal coliforms were elevated, exceeding the GTV for secondary contact at Flat Rock Creek for approximately 7 days, by between 9 to 5,500 times, and at foreshore Middle Harbour for approximately 6 days, by between 3 to 700 times.

  2. The concentrations of Enterococci were elevated, exceeding the GTV for secondary contact at Flat Rock Creek for approximately 7 days, by between 17 to 5,217 times, and at foreshore Middle Harbour for approximately 6 days, by between 0 to 213 times.

  3. The concentrations of ammonia exceeded the DGV for the 95 percent level of protection of species by between 0 to 15 times at Flat Rock Creek (freshwater) for approximately 5 days, and between 0 to 3 times at Middle Harbour (marine waters) for approximately 4 days.

  4. The dissolved oxygen levels were below the ANZECC Guidelines for slightly disturbed ecosystems in a lowland river in southeast Australia for approximately 6 days around the area of Long Gully Bridge. At foreshore Middle Harbour, some measurements slightly below the ANZECC Guidelines for slightly disturbed ecosystems in a lowland river in southeast Australia were recorded for approximately 3 days. It was agreed that dissolved oxygen levels “would have” improved due to rainfall.

  5. Slight sewage odour was observed in parts of Flat Rock Creek on 3 days, and moderate sewage odour was observed near the Inflow Point and near Long Gully Bridge on 1 day.

  6. Turbidity was also observed, although the SOAF does not say by whom, where, and when.

  1. It was also agreed that there was no evidence of the incident causing long-term harm to the environment.

Relevant statutory provisions

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

3A    Purposes of sentencing

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

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

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

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

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

(f) to denounce the conduct of the offender,

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

  1. The objects of the POEO Act set out in s 3 relevantly provide:

3   Objects of Act

The objects of this Act are as follows—

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

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

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

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

(i)  pollution prevention and cleaner production,

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

(iia)  the elimination of harmful wastes,

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

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

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

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

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

(g)  to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001.

  1. The three offences to which the defendant has pleaded guilty are offences against s 120(1) of the POEO Act which provides:

120 Prohibition of pollution of waters

(1) A person who pollutes any waters is guilty of an offence.

Note—

An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.

(2) In this section—

pollute waters includes cause or permit any waters to be polluted.

  1. The applicable maximum penalty, in the case of a corporation, for an offence against s 120(1) of the POEO Act is set out in s 123 of the POEO Act as follows:

123 Maximum penalty for water pollution offences

A person who is guilty of an offence under this Part is liable, on conviction—

(a) in the case of a corporation—to a penalty not exceeding $1,000,000 and, in the case of a continuing offence, to a further penalty not exceeding $120,000 for each day the offence continues…

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

241 Matters to be considered in imposing penalty

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

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

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

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

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

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

(f) the presence of asbestos in the environment.

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

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

21A   Aggravating, mitigating and other factors in sentencing

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

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

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

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

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

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

…

(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,

…

(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)…

Objective seriousness of the offences

  1. The objective seriousness of the offences is measured without reference to matters personal to the offender. It is to be determined wholly by reference to the nature of the offending. [11]

    11. Number 9 on the annotated map at [26].

  2. In determining the objective gravity or seriousness of the offences in this case, the circumstances to which I may have regard include:[12]

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

  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 [59]. Some of these factors overlap with the factors concerning objective seriousness set out at [62] above.

  2. In relation to the objective seriousness of the offences, the prosecutor referred to R vKilic,[13] where the High Court said that a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instances of the offence to the worst category. In R v Van Ryn, [14] the NSW Court of Criminal Appeal held that it is erroneous to fail to say anything at all about the objective seriousness of the offence.

    13. Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 (Bentley) at [163] (Preston CJ); Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 (Plath) at [48] (Preston CJ); Fairfield City Council v Oztech Developments Pty Ltd; Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81 (Oztech Developments) at [57] (Robson J).

    14. (2016) 259 CLR 256; [2016] HCA 48 at [19] (Bell, Gageler, Keane, Nettle and Gordon JJ).

  3. The prosecutor also referred to the approach adopted by Robson J in Environment Protection Authority v Sydney Water Corp [2021] NSWLEC 17 (the Northmead decision) at [130] to [132], where his Honour said:

130. The prosecutor submits that the Offences each fall within the medium range of objective seriousness, having regard to the circumstances that led to the collapse of the inner wall and failure of the Pumping Station; the volume of sewage that was discharged; the foreseeability of the harm occurring; the temporal and special features of the harm; and the extent of Sydney Water’s control over the harm (albeit recognising that the Offences were not committed intentionally, recklessly or negligently).

131. Sydney Water supports the submission that the Offences were within the medium range of objective seriousness, however for different reasons to the prosecution, including that the events were limited spatially and temporally, the foreseeability and control of the offending conduct, and the offending conduct in the context of the overall Incident. In oral submissions, Sydney Water submitted that the Second Offence must be considered at a lower level of objective seriousness than the First Offence, which I take to mean a mid to low level of objective seriousness.

132. Conscious that the task in which the Court is engaged is one of instinctive synthesis and not what may otherwise be described as two-staged sentencing, and that an assessment of objective seriousness referable to a notional point on a spectrum of culpability, despite being a convenient shorthand descriptor, is not a necessary component of the sentencing task, I consider that, on account of the objective factors noted above, each of the Offences is at the mid-range of objective seriousness for offences of this kind. However, the Second Offence is of less objective seriousness within that range than the First Offence.

  1. Relying on the approach of Robson J in the Northmead decision, the prosecutor submitted that:

  1. Offence 1 lies towards the upper end of the mid-range of objective seriousness for offences of this kind; and

  2. Offences 2 and 3 lie towards the lower end of the mid-range,

and that such a classification does not form part of a two-stage sentencing, rather is one of the matters to be considered during the “instinctive synthesis”. [15]

15. [2016] NSWCCA 1 at [130], [133], [141] (R A Hulme J, Leeming JA and Johnson J agreeing).

  1. The “instinctive synthesis” approach to sentencing was described by the High Court in Wong v The Queen and Markarian v The Queen as follows (emphasis in original):[16]

…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’.

16. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) at [36]-[37] (Gleeson CJ, Gummow, Hayne and Callinan JJ), [51] (McHugh J), [137] (Kirby J).

  1. In this case, factors informing the objective seriousness of the offences, the prosecutor submitted, include the maximum penalty, the nature of the offences and the state of mind of the defendant, including its reasons for committing the offences. Factors relevant to the objective seriousness of the offences were submitted to include the considerations required under s 241(1) of the POEO Act, being the extent of harm caused to the environment, the extent to which this harm was reasonably foreseeable by the defendant, the defendant’s control over the causes that gave rise to the offences, and whether practical measures were available which could have prevented, controlled, abated or mitigated the harm.

  2. In all the circumstances, the defendant submitted that the prosecutor’s contention that Offence 1 is in the mid-range of objective seriousness is one that the Court could accept.

  3. However, the defendant submitted that Offences 2 and 3 are in the low-range of objective seriousness, having regard to the following matters:

  1. the much lower volume of sewage discharged, namely, 704,000 litres (Offence 2) and 640,000 litres (Offence 3), in comparison with 14,656,000 litres (Offence 1);

  2. the much shorter period over which the sewage was discharged, being approximately 16.75 hours across two days (Offence 2) and 14.25 hours across two days (Offence 3), in comparison with a period of 5 days estimated by the defendant (Offence 1);

  3. the more limited environmental impact of the offences, namely that:

  1. as a result of Offence 1, the GTVs for faecal coliforms and Enterococci (secondary contact) were exceeded by between 8 to 5,038 times and 16 to 4,779 times respectively in Flat Rock Creek, and by between 2.5 to 641 times and 0 to 195 times respectively at foreshore Middle Harbour;

  2. as a result of Offence 2, the GTVs for faecal coliforms and Enterococci (secondary contact) were exceeded by between 0 to 242 times and 0 to 230 times respectively in Flat Rock Creek, and by between 3 to 31 times and 9 times respectively at foreshore Middle Harbour; and

  3. as a result of Offence 3, the GTVs for faecal coliforms and Enterococci (secondary contact) were exceeded by between 0 to 220 times and 0 to 209 times respectively in Flat Rock Creek, and by between 3 to 28 times and 0 to 9 times respectively at foreshore Middle Harbour;

  1. the fact that the offences were inadvertent and not deliberate (as accepted by the prosecutor, see below at [100]);

  2. the condition of the receiving environment, including that, as agreed, there was no evidence that the incident caused long-term harm to the environment, and that the defendant’s specialist environment response team and clean-up team observed live fish and eels in the affected sections of Flat Rock Creek during the incident, and that no dead biota were observed; and

  3. the practical measures which were taken by the defendant, Sydney Water, to prevent, control, abate and mitigate the caused or likely to be caused to the environment, including the installation of a sandbag containment, pumping out of contaminated creek waters, installation of a floating boom to capture and remove floating solids, as well as a floating siltation boom to contain finer solids that passed the sandbag containment, the manual clean-up of Flat Rock Creek, and the installation of multiple aerators in Flat Rock Creek to ameliorate the impact of reduced dissolved oxygen concentrations caused by the sewage pollutants.

Nature of the offences

  1. In relation to the nature of the offences, in 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. [17] The nature of the provision creating the offence and its place in the statutory scheme shed light on the objective seriousness of the offence. [18] Ascertaining the purpose of creating an offence is assisted by consideration of the objects of the statute. [19]

    17. Markarian 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).

    18. R v Peel [1971] 1 NSWLR 247 at 262 (Herron CJ, Manning JA and O’Brien J); Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [89] (Preston CJ).

    19. Bentley at [168]-[172] (Preston CJ).

  2. The prosecutor submitted, and it is plainly correct, that the offence of water pollution plays an important role in giving effect to the objects in s 3 of the POEO Act. [20]

    20. Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 (Rae) at [15] (Preston CJ); Environment Protection Authority v University of Sydney [2022] NSWLEC 41 at [29] (Pain J).

Maximum penalty for the offence

  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 defendant is to be sentenced. [21] 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. [22]

    21. Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280 (Baiada Poultry) at [23] (Preston CJ).

    22. Muldrock at [31]; 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); Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; (1993) 82 LGERA 21 (Camilleri’s Stock Feeds) at 36 (Kirby P, Campbell and James JJ agreeing).

  2. Here, in the case of a corporation, the maximum penalty for each of the three offences against s 120(1) of the POEO Act, stipulated in s 123 of the POEO Act, is $1,000,000.

Harm caused to the environment by the commission of the offences; s 241(1)(a) of the POEO Act

  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. The prosecutor submitted, and I accept, that “harm” in environmental offences includes both actual harm and potential harm. In Environment Protection Authority v Waste Recycling and Processing Corporation,[23] Preston CJ said:

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 Environmental Protection Authority (1993) 113 LGERA 357 at 366 and Bentleyv BGP Properties Pty Ltd (2006) 145 LGERA 234 (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. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley vBGP Properties Pty Ltd at [174].

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 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: State Pollution Control Commission v White Wings Ltd (unreported, Land and Environment Court, NSW, Bignold J, No 50129 of 1991, 1 November 1991) at 4; EnvironmentProtection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269 at [14]; Environment Protection Authority v Coggins (2003) 126 LGERA 219 at [18]; Environment Protection Authority v Abigroup Contractors Pty Ltd [2003] NSWLEC 342 (15 December 2003) at [24]; Environment Protection Authorityof New South Wales v Arenco Pty Ltd [2006] NSWLEC 244 (9 May 2006) at [26].

23. Markarian at [31].

  1. The prosecutor referred to the agreement of the parties that the sewage pollutants introduced to the receiving environment as a result of the incident caused actual environmental harm. The overflows charged in Offences 1 to 3 directly altered the chemical and biological characteristics of the receiving environment. This had the effect of degrading the waters of Flat Rock Creek to the foreshore of Long Bay, Middle Harbour, for approximately 6 to 7 days.

  2. The prosecutor also referred to the agreement of the parties that:

  1. the incident caused potential harm to the environment and human health;

  2. the incident had an impact on amenity; and

  3. there was no evidence that the incident caused long-term environmental harm.

  1. The defendant submitted that the extent of the harm could be summarised numerically in the number of days the chemical and biological characteristics of the waters were altered (4 to 6 days at the foreshore of Long Bay, Middle Harbour, and 7 days at Flat Rock Creek), the extent of the waters that were affected (1.25km at the Long Bay foreshore), and the volume of sewage estimated to be discharged (approximately 16,000,000 litres).

  2. In assessing the extent of harm, the defendant submitted that it was important to note that there was a combined impact caused by the occurrence of three overflows at once. This was said to be indicative of the difficulty in apportioning specific harm for each offence. The defendant submitted, and I accept, that it is relevant to the application of sentencing principles that the three offences overlapped, given the time periods (namely, on 27 and 29 October 2023: see the tables above at [43]), and the locations (the sewage in all three offences entering Flat Rock Creek) at which they occurred. I also find that the waters had already been compromised at the time Offences 2 and 3 occurred. Offence 1 resulted in an initial overflow that polluted Flat Rock Creek and the foreshore of Long Bay, Middle Harbour, prior to the discharges of sewage constituted by the offences.

  3. Further, I accept the defendant’s submission that Flat Rock Creek, the upper section of which is part of a stormwater system, was designed to receive water affected by human activity. In particular, it was designed to receive diluted sewage in the course of wet weather overflows. However, it is not only sewage that runs into Flat Rock Creek. In the SOAF, the parties agreed that sampling of Flat Rock Creek in November 2020 returned levels of contamination that were not attributable to the incident. To acknowledge the day-to-day pressure on Flat Rock Creek, it is submitted, was not to discount or disregard the actual and potential harm caused by the incident, it is simply to observe that, when considering the extent of harm caused, it was relevant for the Court to turn its mind to the condition of the receiving environment.

  4. The defendant submitted that notwithstanding the objectively large volume of sewage discharged (14,656,000 litres for Offence 1, 704,000 litres for Offence 2, and 640,000 litres for Offence 3), there were a number of features which suggested that the impact was not as great as the bare numbers in the days following the incident might suggest:

  1. It was significant that the defendant’s specialist environmental response team and clean-up team saw live fish and eels in the affected areas of Flat Rock Creek during the incident. No dead biota were seen.

  2. There was no evidence that the incident caused long-term environmental harm.

  3. Further, whilst it was accepted that sewage flowing over land at the Dawson Street Track may have potentially posed health risks to persons who accessed the area, there was no evidence that any person did, in fact, access the area.

  4. In order to minimise the prospect of anyone accessing the area, the defendant erected sewage overflow signs, installed danger tape, cordoned off access to all walking tracks and stationed customer advocates at Tunks Park and near a boat ramp at the foreshore of Middle Harbour.

  1. In those circumstances, the defendant submitted, it had not been established that harm was “likely” within the terms of s 241(1)(a) of the POEO Act. Similarly, although it was accepted that the incident caused potential harm to aquatic organisms, this did not mean such harm was “likely” within the meaning of s 241(1)(a).

Offence 1, and harm caused to the environment

  1. In relation to Offence 1, the prosecutor submitted that the extent of the harm to the environment caused by the offence was substantial. In Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 (the Malabar decision) Preston CJ at [62] considered that factors relevant to whether harm caused by the offences in that case was substantial included the nature of the pollutant, the volume of the pollutant, the number of days over which the pollutant was discharged, and interference with public amenity.

  2. Here, the prosecutor submitted, Offence 1 involved a relatively large volume of sewage (14,656,000 litres), particularly when compared to the volumes of sewage discharged in previous EPA prosecutions of the defendant. In the Northmead decision, the discharged volume of sewage was 2,800,322 litres. In the decision of Moore J in Environment Protection Authority v Sydney Water (No 2) [2023] NSWLEC 2 (the Carramar decision), the prosecutor submitted that the discharged volume of sewage was approximately 1,100,000 litres. However, the prosecutor did not draw to attention that in the Carramar decision, while the total volume of discharge was approximately 1,103,000 litres, the volume of discharge that was subject to sentencing was only 282,000 litres. [24]

    24. (2006) 148 LGERA 299; [2006] NSWLEC 419 at [145]-[149].

  3. Further, in relation to Offence 1, the prosecutor referred to the following matters said to demonstrate substantial harm:

  1. The harm in relation to Offence 1 took place over 6 to 7 days.

  2. The GTVs for faecal coliforms and Enterococci (secondary contact) were exceeded by up to 5,038 times and 4,779 times respectively in Flat Rock Creek, and by up to 641 times and 195 times respectively at foreshore Middle Harbour. [25]

    25. Carramar decision at [65]-[66].

  3. The incident was sufficiently serious to warrant:

  1. installation of danger tape, warning signs and cordoning off;

  2. customer advocate interactions with the public; and

  3. relocation of 39 residents and 14 complaints.

  1. The prosecutor relied on the agreed fact that the three offences resulted in:

  1. Concentrations of ammonia which exceeded the DGVs for the 95 percent level of protection of species by:

  1. between 0 and 15 times at Flat Rock Creek (freshwater) for approximately 5 days; and

  2. between 0 and 3 times at Middle Harbour (marine waters) for approximately 4 days; and

  1. Dissolved oxygen levels below the ANZECC Guidelines for slightly disturbed ecosystems in a lowland river in south east Australia for approximately 6 days around the area of Long Gully Bridge at the lower section of Flat Rock Creek near Tunks Park. At foreshore Middle Harbour, some measurements slightly below the ANZECC Guidelines for slightly disturbed ecosystems in a lowland river in south east Australia were recorded for approximately 3 days.

  1. In short, the prosecutor submitted that these factors establish beyond reasonable doubt that the harm caused by Offence 1 was substantial.

  2. The defendant accepted that the largest overflow of sewage, being in the order of 14,656,000 litres, occurred over 5 days. The defendant also acknowledged that the harm to the environment which occurred as a result of Offence 1 lasted for a period of approximately 6 to 7 days at the foreshore of Middle Harbour and Flat Rock Creek.

  3. The defendant acknowledged that there were days within the testing period (between 28 October to 2 November 2020) when the GTVs were significantly exceeded. The tables annexed to the SOAF showed the results of the faecal coliform and Enterococci contamination at the relevant testing sites. However, the defendant submitted that whilst those tables highlighted the significant elevations of faecal coliform and Enterococci, they also highlighted the varied results across the testing sites. The tables also showed the way in which the levels rise and fall.

  4. Further, the defendant submitted, the rainfall figures in the table above at [33] might provide some explanation for why it is that the figures on 30 October were so high (0.5 and 0mm of rainfall being recorded in the respective gauges on 29 October), while figures on 31 October were significantly lower, except at sites 3-18 and 3-3 (20mm and 7.5mm of rainfall in the gauges on 30 October).

  5. What the tables make clear, the defendant submitted, and I find, that while it is important to have regard to the top end of the range, it is also important to note the broad range of readings in Flat Rock Creek and the foreshore of Long Bay, Middle Harbour, the oscillating nature of the figures, and just how quickly the receiving waters recovered.

Offence 2, and harm caused to the environment

  1. In relation to Offence 2, the prosecutor submitted that the extent of the harm to the environment that was caused by the offence was not insubstantial for the following reasons:

  1. The volume of sewage overflow was 704,000 litres.

  2. The GTVs for faecal coliforms and Enterococci (secondary contact) were exceeded by up to 242 times and up to 230 times respectively in Flat Rock Creek, and by up to 31 times and up to 9 times respectively at foreshore Middle Harbour.

  1. The prosecutor accepted that the environmental harm caused by Offence 2 was less than that caused by Offence 1.

  2. The defendant agreed that Offence 2 involved a discharge of 704,000 litres of sewage, and lasted over a period of 6 hours on one day, and just over 10 hours on the second. The impact on the receiving waters lasted some 4 days at the foreshore of Long Bay, Middle Harbour and 7 days at Flat Rock Creek. The tables annexed to the SOAF set out the relevant contamination figures for Offence 2.

  3. I find, as shown in the agreed tables, that there was a significantly more limited impact of Offence 2 on the receiving waters, and that the receiving waters recovered from the discharge of sewage more expeditiously than they did in relation to Offence 1.

Offence 3, and harm caused to the environment

  1. In relation to Offence 3, the prosecutor submitted that the extent of harm to the environment that was caused by the offence was not insubstantial, but was less that that caused by Offence 1 by reason of the following matters:

  1. The volume of overflow was about 640,000 litres.

  2. The GTVs for faecal coliforms and Enterococci (secondary contact) were exceeded by up to 220 times and up to 209 times respectively in Flat Rock Creek, and by up to 28 times and up to 9 times respectively at foreshore Middle Harbour.

  1. The defendant submitted that Offence 3 concerned a discharge of 640,000 litres. It took place on 27 October 2020 for a period of 4.5 hours and on 29 October for just short of 10 hours. As with Offence 2, the harm was said to have lasted at the foreshore of Middle Harbour for 4 days and at Flat Rock Creek for 7 days. The tables annexed to the SOAF were said to demonstrate the impact of Offence 3 to be less than that of Offence 2.

  2. I am likewise satisfied that the agreed tables show the impact of Offence 3 on the receiving waters to be less than the impact of Offence 2 on the receiving waters.

The defendant’s state of mind in committing the offences

  1. In determining the objective seriousness of the strict liability offences in this case, the circumstances to which the Court may have regard include the defendant’s state of mind in committing the offence. [26] A strict liability offence, such as that against s 120 of the POEO Act, that is committed intentionally, negligently or recklessly will be objectively more serious than one that is not so committed. The prosecutor accepted that the defendant’s breaches of s 120 of the POEO Act were inadvertent and not deliberate, and were not committed intentionally, negligently or recklessly.

    26. These figures were provided in the form of tables annexed to the SOAF.

  2. The defendant, in turn, submitted (and the prosecutor accepted) that the offences were inadvertent and not deliberate, and that there was no basis for a finding of intention, recklessness or negligence on the part of the defendant. In any event, due to the principle in R v De Simoni,[27] the Court, it was submitted, is precluded from considering whether the offences were committed intentionally, recklessly, or negligently by reason of the existence of a more serious water pollution offence in s 116 of the POEO Act. [28] I accept that submission.

    27. Plath at [48], [98] (Preston CJ); Rae at [46] (Preston CJ); Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312 at [72] (Brereton JA, Harrison and Bellew JJ agreeing); Oztech Developments at [57] (Robson J).

    28. (1981) 147 CLR 383; [1981] HCA 31 (Gibbs CJ, Mason, Murphy, Wilson, Brennan JJ).

  3. Consistently with the parties’ submissions and the evidence, I find that the defendant’s breaches of s 120 of the POEO Act were inadvertent and not deliberate, and were not committed intentionally, negligently or recklessly.

The defendant’s reasons for committing the offences

  1. There is nothing in the evidence which suggests anything untoward in the defendant’s reasons for committing the offences. As Mr Fairbairn deposed, the sewer the subject of the incident is part of a system initially constructed between 1916 and 1930, comprising some 6,300 kilometres of pipes and still growing, and servicing approximately 1,400,000 customers. As I have found in relation to the defendant’s state of mind, there is no basis for a finding of anything untoward in the defendant’s reasons for committing the offence.

Practical measures taken to avoid harm to the environment; s 241(1)(b) of the POEO Act

  1. In relation to practical measures to avoid harm to the environment, the prosecutor submitted that there were practical measures that could have been taken by the defendant to prevent, control or mitigate the harm that occurred as a result of the incident. The practical measures were submitted to be apparent from a consideration of the agreed causes of the incident, which causes are set out above at [31].

  2. It was an agreed fact that there was a blockage in the Oviform Sewer and in the Dawson Street Maintenance Hole. The prosecutor submitted, and the defendant did not suggest to the contrary, that the blockages could have been the subject of practical investigation and practical timely maintenance.

  1. In the Bangor decision, the defendant pleaded guilty to two offences against ss 64(1) and 91(5) of the POEO Act arising from, between about 14 September 2018 to 19 October 2018, an overflow of sewage from a maintenance hole in a Sydney Water sewer into an unnamed creek and surrounding bushland at Bangor, caused by a pipe blockage due to tree root overgrowth. The defendant estimated that approximately 57,000 litres of untreated sewage was discharged from the maintenance hole into the creek. Pepper J found that the objective seriousness of the offences was “at the very high end of the low range (or conversely at the very lower end of the mid range)” (at [196]). The total monetary penalty imposed for the commission of the two offences was $185,000, calculated after applying a 30 percent discount for early plea, and further reductions for other mitigating factors and the totality principle. Her Honour also ordered that the defendant pay the prosecutor’s investigation costs in the amount of $10,758, and legal costs as determined under s 257G of the CPA.

  2. In the Lane Cove decision, the defendant pleaded guilty to two offences against ss 64(1) and 120(1) of the POEO Act arising from, between about 26 July 2018 to 17 August 2018, the defendant’s failure to implement identified clean-up recommendations in relation to the discharge of 64,000 litres of untreated sewage from a maintenance hole into an unnamed creek in Lane Cove National Park. Pain J found that the offences were at the “high end of the low range” of objective seriousness (at [81]). The total monetary penalty imposed for the commission of both offences was $145,000, calculated after applying discounts for early plea (25 percent for the s 64(1) offence and 30 percent for the s 120(1) offence), as well as the totality principle. Her Honour also ordered that the defendant pay the prosecutor’s investigation costs in the amount of $24,369, and legal costs as agreed or determined under s 257G of the CPA.

  3. The defendant placed particular reliance on the Mill Stream decision of Pepper J. In that case, the defendant pleaded guilty to two offences against s 120(1) and one offence against s 64(1) of the POEO Act arising from the defendant’s installation between about 22 May 2017 and 16 June 2017 of flow isolations on a continuing basis in the South Western Sydney Ocean Outfall Sewer Number 1 which caused raw sewage to enter the overflow structure adjacent to Mill Pond and the waters or dry bed of Mill Stream. Notwithstanding that there was a substantial degree of uncertainty in relation to the volume of sewage discharged into Mill Stream, the defendant estimated the volume relating to the first offence against s 120(1) to be between 145,000,000 and 334,000,000 litres (at [64]). In relation to the second offence against s 120(1), it was estimated that 173,000,000 litres of sewage was discharged into Mill Stream (at [90]-[91]). The publication order stated the total volume of sewage discharged to be the highest possible number from the above estimates, being 507,000,000 litres (at [345(10)]).

  4. Pepper J found that the first offence against s 120(1) involving “hundreds of millions of litres” of discharged sewage was “at the upper end of the moderate range of objective seriousness” (at [281]). Her Honour found that the second offence against s 120(1) involving “millions of litres” of discharged sewage was to be assessed as “slightly lower” than the first offence, but “still characterised as moderately objectively serious” (at [281]). The total penalty imposed on the defendant for the commission of the three offences was $269,500, calculated after applying 30 percent for an early plea, and further reductions arising from mitigating factors and the totality principle. The defendant agreed to pay the prosecutor’s investigation costs in the amount of $3,267.20, and was ordered to pay the prosecutor’s legal costs as assessed under s 257G of the CPA.

  5. In the Malabar decision, a decision of Preston CJ, the defendant pleaded guilty to two offences against ss 64(1) and 120(1) of the POEO Act arising from conduct between about 5 September 2013 and 7 September 2013, where treated effluent coming from a leak in a split joint in a reclaimed effluent pipe was discharged into the ocean through a submerged cliff face discharge pipe at Yellow Rock on Malabar headland. The volume of the treated effluent that was discharged into the ocean was not clear. While the defendant calculated there to be between 117,000 to 500,000 litres of effluent that might have leaked from 5 to 7 September 2013, the chief judge, Preston CJ considered those amounts to be underestimates. His Honour found that the offences were in the “low to moderate range of objective seriousness” (at [79]). The defendant was ordered to pay a total monetary penalty of $157,500 for the two offences, calculated after applying a 25 percent discount for an early plea and a further 25 percent discount considering the totality principle. The defendant was also ordered to pay the prosecutor’s costs as determined under s 257G of the CPA.

  6. In EPA v Crown, the Crown pleaded guilty to one offence against s 120(1) of the POEO Act for polluting the waters of Perisher Creek between 14 June 2017 to 4 September 2017 by discharging from the Perisher sewage treatment plant, partially treated sewage effluent containing elevated levels of ammonia and total nitrogen. Pepper J characterised the objective seriousness of the offence as being “in the low range” (at [157]). Her Honour imposed a monetary penalty of $84,000 for the offence, calculated after applying a 30 percent discount for early plea, as well as considering other mitigating factors. The Crown was also ordered to pay the prosecutor’s costs in the agreed amount of $104,204.

  7. In EPA v Hawkesbury, Hawkesbury City Council pleaded guilty to three offences against ss 64(1) and 120(1) of the POEO Act arising from two incidents. The first incident, which occurred between about 16 July 2015 to 20 July 2015, involved approximately 465,715 litres of sewage discharged from Council’s sewage treatment plant flowing into an adjacent nature reserve, including into an ephemeral creek where the sewage flowed downstream for approximately 400m. The second incident, occurring between about 6 August 2015 to 9 August 2015, involved approximately 100,000 litres of partially treated sewage flowing onto a neighbouring property, but did not pollute any waters. Pain J considered the offences in relation to the first incident to be “in the low range of moderate seriousness” (at [54]), and the second incident to be “at the high end of the low range of objective seriousness” (at [55]). Her Honour imposed a total monetary penalty of $175,000 for the three offences, calculated after applying a 30 percent discount for early plea, as well as considering other mitigating factors. Her Honour also ordered that Council pay an amount of $90,000 for the prosecutor’s legal costs and $4,529.30 for the prosecutor’s investigation costs.

  8. In Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26, Forbes Shire Council pleaded guilty to two offences against ss 120(1) and 148 of the POEO Act, arising between about 23 June 2012 and 9 July 2012 at the site of its commercial stock saleyard facility in Daroobalgie. Upon discovering an overflow from an effluent dam, Council pumped a total of 11,260,800 litres in effluent containing sewage, septic waste and manure to an irrigation area, causing some surface runoff of the effluent to enter a stormwater drain and flow into an ephemeral creek and two dams along that creek. Pain J considered that the offence against s 120(1) was “firmly in the medium range of objective seriousness given its duration and the complete absence of appropriate decision-making capacity and knowledge” on the part of Council at ([34]). Her Honour imposed a monetary penalty of $165,000 for the two offences, calculated after applying a 25 percent discount for an early plea and other mitigating factors. Council also agreed to pay the prosecutor’s legal costs in the amount of $47,000.

  9. In this proceeding, Ms Hall, senior counsel for the defendant, submitted that the Mill Stream decision was more comparable to the present case as the other decisions referred to by the prosecutor, in particular the Carramar decision and the Northmead decision, were “factually very different”. Ms Hall submitted that the Mill Stream decision represents a “much more serious event”, having regard to the high volumes of sewage discharged and the time period it concerned.

  10. Whilst adhering to the principle that the consistency that is sought is in the application of relevant legal principles, not numerical equivalence, and that when considering past sentences “it is only by examination of the whole of circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned”,[50] I have derived assistance in the exercise of my sentencing discretion from the Carramar decision, the Northmead decision and the Mill Stream decision in providing a “range”, the circumstances of those decisions being most proximate to those here.

Capacity to pay fine (s 6 of the Fines Act)

50. [2018] NSWLEC 90 (Preston CJ).

  1. In exercising my discretion to fix the amount of a fine in relation to each and all of the three offences, I am required to consider:

  1. such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration, and

  2. such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. [51] There is no evidence before me on which I could find other than that the defendant has the capacity to pay a fine.

The appropriate penalty to be imposed

51. De La Rosa at [304]; Hili at [54].

Totality principle

  1. The totality principle requires that in imposing sentences for related offences, after calculating the appropriate sentence for each offence, the Court should consider whether the aggregate sentence imposed is just and appropriate having regard to the totality of the criminal behaviour. [52] The prosecutor acknowledged that the first, second and third offences all arose from the same incident, being the collapse of the Oviform Sewer and the Dawson Street Maintenance Hole, and that the criminal behaviour associated with each offence was causally, temporally and spatially linked. The prosecutor accepted that the totality principle applies to the penalty to be imposed here in relation to the three offences.

    52. Fines Act 1996 (NSW) s 6.

  2. In accordance with the totality principle, I have considered the appropriate sentence for each offence and reviewed the aggregate to ensure that it reflects the total criminality of the defendant. [53]

Conclusions in relation to the appropriate penalty to be applied in relation to each of the offences

53. Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70 at [8] (Wilson, Deane, Dawson, Toohey and Gaudron JJ); Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242; at [196] (Preston CJ); Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40] (McHugh, Hayne and Callinan JJ); Water NSW v Barlow (2019) 244 LGERA 1; [2019] NSWLEC 30 (Barlow) at [111] (Preston CJ).

  1. Synthesising the relevant objective and subjective circumstances of the offences and the offender, and considering the relevant purposes of sentencing, the maximum penalty now set by Parliament in the case of a corporation ($1,000,000 for each of the offences), the check or yardstick provided by the cases in this Court referred to at [170] to [182] above, in particular, the Carramar decision, the Northmead decision, and the Mill Stream decision, I consider that the appropriate monetary penalty:

  1. for Offence 1 is $375,000;

  2. for Offence 2 is $150,000; and

  3. for Offence 3 is $150,000.

  1. These amounts should be discounted by for the utilitarian value of the pleas of guilty:

  1. in the case of Offence 1 by 10 percent;

  2. in the case of Offence 2 by 25 percent; and

  3. in the case of Offence 3 by 25 percent.

  1. This results in a monetary penalty:

  1. for Offence 1, in the amount of $337,500;

  2. for Offence 2, in the amount of $112,500; and

  3. for Offence 3, in the amount of $112,500.

  1. Having regard to the totality principle, the circumstance that the three offences arose from the same incident and that the criminal behaviour associated with each offence was causally, temporally and spatially linked, I apply a further discount of 35 percent.

  2. This results in a total penalty for the three offences in the amount of $365,625. I will make an order that 50 percent of that amount be paid to the Environmental Trust established under the Environmental Trust Act 1998 (NSW), pursuant to s 250(1)(e) of the POEO Act, for general environmental purposes, and the remaining 50 percent be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).

Payment of share of fine to prosecutor (s 122 Fines Act)

  1. The prosecutor seeks an order than one half of any monetary penalties imposed on the defendant be paid to the prosecutor under s 122 of the Fines Act 1996 (NSW) (Fines Act). Section 122 of the Fines Act applies where “the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered”, and “the prosecutor is not a police officer”: s 122(1). In this case, section 122 applies because the POEO Act does not make any provision for the application of a fine once recovered by the courts, and the prosecutor is not a police officer.

  2. 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 court before which proceedings “are taken to recover” a fine refers to the court which has power to impose the fine. An order may be made under s 122(2) at the time the fine is imposed. [54]

    54. Barlow at [111] (Preston CJ).

  3. The prosecutor submitted, and I find, that the making of an order under s 122 of the Fines Act is 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 of the prosecuting authority”. [55] It would not represent a “windfall gain” to the prosecutor even if it were to be separately compensated for its professional costs. [56]

    55. Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 at [109]-[111] (Preston CJ).

    56. Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75 at [148]-[152] (Moore J); Carramar decision at [127] (Moore J).

Costs

  1. In relation to costs, the defendant did not oppose an order to pay the prosecutor’s costs in each of the proceedings, as agreed or assessed. I have taken this into account in determining the appropriate penalties. [57] I note, however, that an order for costs does not justify reducing a penalty to an amount in relation to the offences lower than that suggested by the general pattern of sentencing for like offences. [58]

    57. Lane Cove decision at [116]-[118] (Pain J); Bangor decision at [246] (Pepper J).

    58. Harris v Harrison at [100] (Simpson, Hall, and Schmidt JJ).

Publication order and notice to affected persons

  1. The parties agreed on the form of publication orders and the terms of a publication notice, reproduced at Annexure A to these reasons for decision, and a notice to affected persons, to be provided to occupiers of premises surrounding the location of the incident, reproduced at Annexure B to these reasons for decision.

Orders

  1. I make the following orders:

  1. In proceedings 2021/302715, the defendant is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) as charged.

  2. In proceedings 2021/302716, the defendant is convicted of the offence against s 120(1) of the POEO Act as charged.

  3. In proceedings 2021/302718, the defendant is convicted of the offence against s 120(1) of the POEO Act as charged.

  4. In proceedings 2021/302715, the defendant is to pay a monetary penalty in the sum of $219,375.

  5. In proceedings 2021/302716, the defendant is to pay a monetary penalty in the sum of $73,125.

  6. In proceedings 2021/302718, the defendant is to pay a monetary penalty in the sum of $73,125.

  7. Pursuant to s 250(1)(e) of the POEO Act, 50 percent of the monetary penalty imposed on the defendant in orders 4, 5 and 6 is to be paid to the Environmental Trust established under the Environmental Trust Act 1998 (NSW).

  8. Pursuant to s 122(2) of the Fines Act 1996 (NSW), the remaining 50 percent of the monetary penalty imposed on the defendant in orders 4, 5 and 6 is to be paid to the prosecutor.

  9. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) (CPA), the defendant is to pay the prosecutor's professional costs of these proceedings in an amount as agreed or assessed under s 257G of the CPA.

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

  1. within 28 days of the date of these orders, cause a notice of size 139mm x 129mm to be published within the first 12 pages of The Sydney Morning Herald (or as close to the first 12 pages as can be accommodated having regard to the editorial requirements of the newspaper) with the Sydney Water Corporation logo (of reasonable size) and the text as set out in Annexure A to these orders;

  2. within 28 days of the date of these orders, cause a notice of size 70mm x 129mm to be published within the first 12 pages of The Daily Telegraph (or as close to the first 12 pages as can be accommodated having regard to the editorial requirements of the newspaper) with the Sydney Water Corporation logo (of reasonable size) and the text as set out in Annexure A to these orders.

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

  1. within 14 days of the date of these orders, publicise the offences and the orders made against it by posting on its Facebook wall the text as set out in Annexure A to these orders, together with Photograph 22 of Annexure F to the Statement of Agreed Facts filed in these proceedings on 4 May 2023 and 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 8.00am and 10.00am or between 4.30pm and 6.30pm on a weekday. This post must remain a pinned post on Facebook that remains at the top of the Sydney Water Facebook page for a minimum of 7 days;

  2. within 14 days of the date of these orders, publicise the offences and the orders made against it by tweeting the following text (subject to any technical limitations of the Twitter platform) from its Twitter account:

@SydneyWaterNews was prosecuted by @NSW_EPA and convicted of polluting waters following an overflow of about 16 million litres of sewage at Naremburn in 2020. Flat Rock Creek and the foreshore of Long Bay, Middle Harbour were polluted for about 6-7 days. Fined $365,625.

The tweet must be made between the times of 8.00am and 10.00am or between 4.30pm and 6.30pm on a weekday. This tweet must remain a pinned tweet on Twitter that remains at the top of the Sydney Water Twitter page for a minimum of 7 days. The Environment Protection Authority may tag Sydney Water’s Twitter account in any Environment Protection Authority tweets about the judgment; and

  1. within 14 days of the date of these orders, publicise the offences and the orders made against it by posting Photographs 17 and 24 of Annexure F to the Statement of Agreed Facts filed in these proceedings on 4 May 2023 with the words “Sydney Water convicted of polluting waters” in bold text inserted over the top of the first photograph on its Instagram account (subject to any technical limitations of the Instagram platform), with the following caption:

@sydneywater was prosecuted by @NSW_EPA and convicted of polluting waters following an overflow of about 16 million litres of sewage at Naremburn in 2020. Flat Rock Creek and the foreshore of Long Bay, Middle Harbour were polluted for about 6-7 days. Sydney Water was fined $365,625 and ordered to publish this post. Sydney Water apologises to the community for these sewage discharges and has implemented actions in an effort to prevent recurrence of the circumstances leading to the offences.

#sydneywater #environment #pollution #guilty #NSWEPA #Naremburn #Cammeray #MiddleHarbour #willoughbycouncil #northsydney

The post must be made between the times of 8.00am and 10.00am or between 4.30pm and 6.30pm on a weekday. This post must remain on its Instagram account for a minimum of one month.

  1. Within 7 days of the date of publication of the notices referred to in Orders 10 and 11, the defendant must provide the prosecutor a complete copy of the notices as published pursuant to those orders.

  2. Pursuant to s 250(1)(b) of the POEO Act, the defendant must, at its expense, within 14 days of the date of these orders, cause a notice in the form of Annexure B, at a minimum size of A4 and on the defendant’s letterhead, to be placed in the mailboxes of all properties (including but not limited to residential and commercial properties) at:

  1. Dawson Street, Naremburn NSW 2065,

  2. Grafton Avenue, Naremburn NSW 2065,

  3. Marks Street, Naremburn NSW 2065,

  4. Hamilton Avenue, Naremburn NSW 2065,

  5. Market Street East, Naremburn NSW 2065,

  6. West Street, Naremburn NSW 2065,

  7. Cliff Avenue, Northbridge NSW 2063, and

  8. The Boulevarde and Rowlison Parade, Cammeray NSW 2062.

  1. Within 7 days of delivering the notice pursuant to Order 13, the defendant must provide the prosecutor with a complete copy of the final notice as delivered to each of the specified properties.

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Annexure A (58655, pdf)

Annexure B (72965, pdf)

Endnotes

Amendments

05 July 2023 - Corrected link in DOCX version.

Decision last updated: 05 July 2023

Most Recent Citation
Cases Cited

61

Statutory Material Cited

5

Harris v Caladine [1991] HCA 9
Barbaro v The Queen [2014] HCA 2
GAS v The Queen [2004] HCA 22