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

Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v University of Sydney [2022] NSWLEC 41
Hearing dates: 24 March 2022
Date of orders: 14 April 2022
Decision date: 14 April 2022
Jurisdiction: Class 5
Before: Pain J
Decision:
See [76]

Catchwords:
SENTENCING – offence under Radiation Control Act of failing to ensure regulated material not in possession of person with appropriate license – accidental disposal of PET scanner with radiation source – late plea of guilty
SENTENCING – offence under Radiation Control Regulation of disposing of regulated material without consent of Environment Protection Authority – accidental disposal of PET scanner with radiation source at tip – late plea of guilty

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23
Criminal Procedure Act 1986 (NSW), ss 257B, 257G
Fines Act 1996 (NSW), s 122
Radiation Control Act 1990 (NSW), ss 3, 4, 6, 23B, 13A, 14, 14A, 14B, 19, 24, 33A
Radiation Control Regulation 2013 (NSW), cll 3, 6, 34, 36

Cases Cited:
Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54
Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137
Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60
Environment Protection Authority v Gammasonics Institute for Medical Research Pty Ltd [2019] NSWLEC 190
Environment Protection Authority v Hanna (2018) 235 LGERA 114; [2018] NSWLEC 80
Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24
Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312
Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1
Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
Lowe v The Queen (1984) 154 CLR 606
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
Newcastle City Council v Pace Farm Egg Products [2002] NSWLEC 66
Office of Environment and Heritage v Swansbel (Pastoral) Pty Ltd [2019] NSWLEC 69
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Peel [1971] 1 NSWLR 247
R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Visconti [1982] 2 NSWLR 104
Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2
Secretary, Department of Planning and Environment v Boggabri Coal [2014] NSWLEC 154
Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd (2020) 245 LGERA 241; [2020] NSWLEC 125
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7
Veen v The Queen(No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Sentence
Parties: Environment Protection Authority (Prosecutor)
The University of Sydney (Defendant)
Representation:
Counsel:
E Muston SC with H El-Hage
T Howard SC
Solicitors:
Environment Protection Authority (Prosecutor)
MinterEllison (Defendant)

File Number(s): 2021/78167
2021/78168
2021/78169
2021/78170

Judgment

The Defendant the University of Sydney has pleaded guilty to two charges arising from the same circumstances concerning the disposal of a Positron Emission Tomography (PET) scanner. Matter no. 2021/78167 concerns a contravention of s 6(6) of the Radiation Control Act 1990 (NSW) (RC Act) as the Defendant was responsible for regulated material and failed to ensure the regulated material was not possessed by a person who was not the holder of an appropriate licence under Part 2 of the RC Act on 11 January 2019 (the section 6(6) offence). Matter no. 2021/78170 concerns a contravention of cl 34(1) of the Radiation Control Regulation 2013 (NSW) (RC Regulation) because on 11 January 2019 the Defendant disposed of regulated material without the consent of the Chairperson of the Environment Protection Authority (EPA) (the cl 34(1) offence).
It is necessary to sentence the Defendant for these offences. A plea of guilty can be considered as an admission of the essential elements of an offence. The offences are strict liability offences so that mens rea is not an essential element of the offence. When sentencing, any matter adverse to a defendant must be proved by a prosecutor beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich) at 281. Any contested matter relied on by a defendant must be established on the balance of probabilities: Olbrich at 281.
Essentially the offending conduct resulted from a failure of the Defendant’s employees to identify that a PET scanner located at the University contained regulated material being the radioactive isotope caesium chloride (the Source), in a sealed capsule. The PET scanner was acquired by the Defendant in 2007 and until 11 January 2019 was stored at the University. The PET scanner was proposed to be dismantled and disposed of to allow refurbishment works. A contractor FDC Construction (NSW) Pty Ltd (FDC) was hired to undertake the building works. On the Defendant’s instructions a further contractor, EverX Pty Ltd (EverX) was ultimately hired by FDC to dispose of the PET scanner. EverX engaged Janala Pty Ltd trading as COPE Sensitive Freight (COPE) to transport the PET scanner to the tip. COPE transported the metal items from the disassembled PET scanner to a metal scrap yard operated by Barca Investments Pty Ltd trading as Barca Metals (Barca). Neither COPE nor Barca metals held a radiation management licence or radiation user licence under the RC Act to enable them to handle the Source. They were therefore prohibited from possessing, storing or using the Source within the meaning of s 4 of the RC Act. The scrap metal from Barca Metals was then transferred by truck to a scrap metal yard operated by OneSteel Recycling Pty Ltd trading as Liberty Recycling (Liberty) whereupon equipment and employees of Liberty first detected the radiation from the Source.

Summonses

The summons in matter no. 2021/78167 stated as follows:

The Prosecutor claims:
1 An order that the Defendant, University of Sydney (ABN 15 211 513 464) being a body corporate incorporated by s 5 of the University of Sydney Act 1989 and having its office at 71-79 Arundel Street, Forest Lodge in the State of New South Wales, appear before a Judge of the Court to answer the charge that, on or about 11 January 2019, from at or near Camperdown to at or near Chipping Norton in the said State, it committed an offence against section 6(6) of the Radiation Control Act 1990 (the Act) in that it was the person responsible for regulated material and it failed to ensure the regulated material was not possessed by a person who was not the holder of an appropriate licence under Part 2 of the Act in respect of the regulated material.
Particulars
a. Person responsible
The Defendant was the person responsible for the regulated material as defined in section 6(1) of the Act.
b. Regulated material
The regulated material is a sealed capsule containing the radioactive substance caesium chloride (Cs-137), a radioactive isotope of caesium which emits ionising radiation spontaneously with a specific activity that exceeds the prescribed amount of 100 becquerels per gram and consists of a prescribed activity of greater than 1 (the regulated material).
c. Manner of breach
i. On or about 31 October 2018, the Defendant instructed FDC Construction (NSW) Pty Limited (ACN 608 609 427) (FDC) to engage EverX Pty Ltd (CAN 094 871 191) (EverX) to decommission and dispose of a positron emission tomography machine (the PET Scanner) located at the Defendant's premises at Camperdown NSW which contained the regulated material inside;
ii. On 11 January 2019, EverX decommissioned the PET Scanner and gave it and the regulated material to Janala Pty. Limited (ACN 003 672 839) trading as COPE Sensitive Freight (COPE) to be transported by road from the Defendant's premises at Camperdown NSW to a scrap metal yard in Chipping Norton NSW operated by Barca Investments Pty Ltd (ACN 003 258 419) trading as Barca Metals (Barca Metals);
iii. On 11 January 2019, COPE possessed the regulated material during its transport by road from the Defendant's premises to Barca Metals' premises where it gave the PET Scanner and the regulated material to Barca Metals;
iv. At no time did COPE hold an appropriate licence under Part 2 of the Act in respect of the regulated material to be able to possess the regulated material.
d. Date on which evidence of the offence first came to the attention of an authorised officer
Evidence of the alleged offence first came to the attention of an authorised officer on 22 March 2019, namely Mr Leonit Potapof, Unit Head of the Radiation Regulation Unit of the Environment Protection Authority.
…

The summons in matter no. 2021/78170 stated as follows:

The Prosecutor claims:
1 An order that the defendant, University of Sydney (ABN 15 211 513 464) being a body corporate incorporated by section 5 of the University of Sydney Act 1989 and having its office at 71-79 Arundel Street, Forest Lodge in the State of New South Wales, appear before a Judge of the Court to answer the charge that, on or about 11 January 2019, from at or near Camperdown in NSW to at or near Chipping Norton in NSW, it committed an offence against clause 34(1) of the Radiation Control Regulation2013 (the Regulation) in that it disposed of regulated material when it did not have the consent of the Chairperson of the Environment Protection Authority to do so.
Particulars
a. Regulated material
The regulated material is a sealed capsule containing the radioactive substance caesium chloride (Cs-137), a radioactive isotope of caesium which emits ionising radiation spontaneously with a specific activity that exceeds the prescribed amount of 100 becquerels per gram and consists of a prescribed activity of greater than 1 (the regulated material).
b. Manner of breach
i. Between or about December 2007 - 11 January 2019, the Defendant stored and possessed the regulated material within a positron emission tomography machine (the PET Scanner) located at its premises in Camperdown, NSW;
ii. On or about 31 October 2018, the Defendant instructed FDC Construction (NSW) Pty Limited ACN 608 609 427 (FDC) to engage EverX Pty Ltd (ACN 094 871 191) (EverX) to decommission and dispose of the PET Scanner;
iii. On 11 January 2019, EverX decommissioned the PET Scanner and gave it and the regulated material to Janala Pty. Limited (ACN 003 672 839) trading as COPE Sensitive Freight (COPE) to be transported by road from the Defendant's premises at Camperdown NSW to a scrap metal yard in Chipping Norton NSW operated by Barca Investments Pty Ltd (ACN 003 258 419) trading as Barca Metals (Barca Metals) for disposal;
iv. On 11 January 2019, COPE transported the PET Scanner and the regulated material to Barca Metals' premises where it was disposed of as scrap metal;
v. At no time did the Chairperson of the Environment Protection Authority as the appropriate Authority provide consent generally or in this particular case for the disposal of the regulated material.
c. Date on which evidence of the offence first came to the attention of an authorised officer
Evidence of the alleged offence first came to the attention of an authorised officer on 22 March 2019, namely Mr Leonit Potapof, Unit Head of the Radiation Regulation Unit of the Environment Protection Authority.
…

Radiation Control Act 1990 (NSW)

Relevant provisions of the RC Act are extracted below:

Part 1 Preliminary
…
3   Objects of Act
(1) The objects of this Act are as follows:
(a)  to secure the protection of persons and the environment from exposure to ionising and harmful non-ionising radiation to the maximum extent that is reasonably practicable, taking into account social and economic factors and recognising the need for the use of radiation for beneficial purposes,
(b)  to protect security enhanced sources from misuse that may result in harm to people or the environment,
(c)  to promote the radiation protection principles.

(2) The radiation protection principles are as follows:
(a)  justification of a practice by assessing that the benefits of the practice involving exposure to ionising radiation outweigh any detriment,
(b)  optimisation of protection by ensuring that each of the following is kept as low as reasonably achievable taking into account economic and social factors:
(i)  the magnitude of individual doses of ionising radiation,
(ii)  the number of people exposed to ionising radiation,
(iii)  the likelihood of exposure to ionising radiation,

(c) dose and risk limitation by setting dose limits or imposing other measures so that the health risks to any person exposed to ionising radiation is kept below levels that are generally considered to be unacceptable.

(3) A person is to take the radiation protection principles into consideration when exercising functions under this Act or under a licence.
4 Definitions
(1) In this Act:
…
regulated material means any of the following:
(a)  radioactive substances,
(b)  ionising radiation apparatus,
(c)  non-ionising radiation apparatus of a kind prescribed by the regulations,
(d)  sealed source devices.
…
security enhanced source means a sealed radioactive source prescribed by the regulations as a security enhanced source.
…
Part 2 Licences and accreditations
6   Radiation management licences
(1) For the purposes of this Act each of the following persons is a person responsible for regulated material:
(a)  the owner of the regulated material,
(b)  any person who is storing, selling or giving away the regulated material,
(c)  any person who has possession of the regulated material, other than:
(i)  a person who is the holder of a radiation user licence in respect of the regulated material and who has possession of the regulated material only for the purposes of using the regulated material, or
(ii)  a person who has possession of the regulated material only for the purposes of transporting the regulated material.

(2) A person responsible for regulated material must hold a radiation management licence in respect of the regulated material and must comply with any conditions to which the licence is subject.
Maximum penalty: 1,500 penalty units in the case of a corporation or 250 penalty units or imprisonment for 2 years, or both, in any other case.
…
(6) Each person responsible for regulated material must ensure that the regulated material is not sold, leased or given to, or stored, possessed or used by, any other person unless that other person is the holder of an appropriate licence under this Part in respect of the regulated material.
Maximum penalty: 1,500 penalty units in the case of a corporation or 250 penalty units or imprisonment for 2 years, or both, in any other case.
…
13A   Conditions of suspension, cancellation or surrender
…
(4) The former holder of a licence that has been cancelled or surrendered, or the holder of a licence that has been suspended, must comply with any conditions to which the cancellation, surrender or suspension is subject.
Maximum penalty—1,500 penalty units in the case of a corporation or 250 penalty units or imprisonment for 2 years, or both, in any other case.
…
Part 2A Security of radioactive sources
14 Preparation of security plans
…
(1) Each person responsible for a security enhanced source must ensure that a plan is made that addresses—
(a)  the security of the source (a source security plan), and
(b)  if the source is to be transported, the security of the source during transport (a source transport security plan).
…
(6) Each person responsible for a security enhanced source must ensure that any security plan in respect of the source—
(a)  is made or amended in accordance with this section, and
(b)  is provided to the Authority—
(i)  at such times as the Authority or the regulations may require, and
(ii)  in the case of a source transport security plan, as soon as reasonably practicable after the plan is made or amended, and

(c) is reviewed periodically or at such times and in such manner as may be prescribed by the regulations, and
(d) is implemented and complied with.

(7) A person who has been given a copy of a security plan or part of such a plan in respect of a security enhanced source must comply with the plan or the part in the person’s dealings with the source.
Maximum penalty—1,500 penalty units in the case of a corporation or 250 penalty units in any other case.
14A   Implementation of security measures
(1) Each person responsible for a security enhanced source must ensure that the source is protected by any security protection measure prescribed by the regulations with respect to the source.
Maximum penalty—1,500 penalty units in the case of a corporation or 250 penalty units in any other case.
(2) A person must not interfere with any security protection measure prescribed with respect to a security enhanced source unless the interference—
(a)  occurs during repair or maintenance, but only if the security protection measure complies with this section following the repair or maintenance, or
(b)  is to a security protection measure that is no longer required under this section, or
(c)  is by the Authority or an authorised officer or by a person acting in accordance with a direction or notice under this Act, or
(d)  occurs in circumstances prescribed by the regulations.

Maximum penalty—1,500 penalty units in the case of a corporation or 250 penalty units in any other case.
14B   Identification and security checking
(1) Each person responsible for a security enhanced source prescribed by the regulations must ensure that the following natural persons have undergone and satisfied an identity check that ascertains the identity and residential address of the person and any other prescribed information in respect of the person—
(a)  a person who deals with the source,
(b)  a person prescribed by the regulations.

(3) A check is not required under this section in respect of—
(a)  a person if—
(i)  the person is under the direct supervision of another person at all times when engaged in the activity in respect of which the check would otherwise be required, and
(ii)  the other person is a natural person who has undergone and satisfied the relevant check, or

(b) a person prescribed by the regulations.

(5) A person must not engage in any activity for which the person is required to undergo a check under this section unless the person has undergone and satisfied that check.
(6) The regulations may make provision with respect to a check under this section and any matter related to any such check including requiring additional persons to ensure that such checks are carried out.
Maximum penalty—1,500 penalty units in the case of a corporation or 250 penalty units in any other case.
…
Part 3 Enforcement
…
19   Powers to deal with dangerous situations
(1) If the Authority considers that a dangerous or potentially dangerous situation exists involving actual or threatened exposure of any person, animal or thing or the environment to an excessive level of radiation or contamination by regulated material, the Authority may, to avoid, remove or alleviate the danger or potential danger—
(a)  direct the person responsible for the danger or potential danger or any person affected by it to take, or refrain from taking, any specified action, or
(b)  direct that the regulated material giving rise to the danger or potential danger or anything contaminated or affected by it be seized, removed, disposed of, treated or otherwise dealt with, or

(c) give any other direction that the Authority considers appropriate, or
(d) take any action that the Authority considers necessary to alleviate the danger or potential danger (including any action that a person has been directed to take but has failed to take).

…
(4) The person must comply with a direction.
Maximum penalty—1,500 penalty units in the case of a corporation or 250 penalty units or imprisonment for 2 years, or both, in any other case.
(5) A person must not hinder or obstruct any person exercising any function, or complying with any direction, under this section.
Maximum penalty—1,500 penalty units in the case of a corporation or 250 penalty units or imprisonment for 2 years, or both, in any other case.
…
23B Additional orders
(1) Orders The court may do any one or more of the following:
(a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person,
…

(3) Machinery The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order.
…
24 Increased penalty for offence causing serious harm
(1) This section applies when a person is convicted of an offence against a provision of this Act and it is proved beyond reasonable doubt that the person knew that its commission was likely to cause serious harm to a person, animal or thing or the environment by exposure to radiation.
(2) When this section applies, the maximum penalty that may be imposed in respect of the offence concerned is increased to 10,000 penalty units in the case of a corporation or 1,500 penalty units or imprisonment for 2 years, or both, in any other case.
…
Part 5 General
33A Abandoning radioactive substance
A person must not abandon any radioactive substance without reasonable excuse.
Maximum penalty—1,500 penalty units in the case of a corporation or 250 penalty units or imprisonment for 2 years, or both, in any other case.

Radiation Control Regulation 2013 (NSW)

Relevant provisions of the RC Regulation are as follows:

Part 1 Preliminary
…
3 Definitions
…
category 1 source means a sealed radioactive source (or an aggregation of sealed radioactive sources) that is a category 1 source (determined in accordance with Schedule B to the Code).
category 2 source means a sealed radioactive source (or an aggregation of sealed radioactive sources) that is a category 2 source (determined in accordance with Schedule B to the Code).
category 3 source means a sealed radioactive source (or an aggregation of sealed radioactive sources) that is a category 3 source (determined in accordance with Schedule B to the Code).
…
the Code means the document entitled Code of Practice for the Security of Radioactive Sources, published by the Australian Radiation Protection and Nuclear Safety Agency, as in force from time to time.
…
6   Definition of “security enhanced source”
A sealed radioactive source (or an aggregation of sealed radioactive sources) that is a category 1, 2 or 3 source is a security enhanced source for the purposes of the Act.
…
Part 4 Radiation safety and public health
…
Division 4 Disposal and transport of radioactive substances and radiation apparatus
34   Disposal of regulated material
(1) A person must not dispose of any regulated material except with the consent of, and in accordance with any conditions imposed by, the Chairperson of the Authority.
Maximum penalty: 400 penalty units (in the case of a corporation) and 200 penalty units (in any other case).
…
36   Transport of radioactive substances
A person must not cause any radioactive substance to be transported otherwise than in accordance with the requirements of the document published by the Australian Radiation Protection and Nuclear Safety Agency entitled Code of Practice for the Safe Transport of Radioactive Material, as in force from time to time.
Maximum penalty: 400 penalty units (in the case of a corporation) and 200 penalty units (in any other case).
…

Evidence

The Prosecutor tendered the following exhibits:

the Statement of Agreed Facts (SOAF) dated 11 March 2022 and annexures (Ex A);

the supplementary statement of agreed facts dated 23 March 2022 (Ex B); and

the expert report of Mr Robert Blackley annexed to his affidavit dated 15 March 2021 (Ex C).

Statement of Agreed Facts

The parties provided the following SOAF dated 11 March 2022 (Ex A), footnotes omitted:

STATEMENT OF AGREED FACTS ON SENTENCE
The Defendant and the Offences
1. The Defendant is the University of Sydney (ABN 15 211 513 464) (the University) and is a body corporate established under s 5 of the University of Sydney Act 1989 (NSW).
2. The University has pleaded guilty to the following charges:
i. A charge of contravening section 6(6) of the Radiation Control Act 1990 (RC Act) in that it was the person responsible for regulated material and it failed to ensure the regulated material was not possessed by a person who was not the holder of an appropriate licence under Part 2 of the RC Act (being Janala Pty. Limited ACN 003 672 839 trading as COPE Sensitive Freight) (COPE) on 11 January 2019 (NSW proceedings no. 2021/78167); and
ii. A charge of contravening clause 34(1) of the Radiation Control Regulation 2013 (RC Regulation) in that on 11 January 2019 the University disposed of regulated material without the consent of the Chairperson of the Environment Protection Authority (EPA) (NSW proceedings no. 2021/78170).

3. The maximum penalty for an offence against section 6(6) of the RC Act is $165,000 for a corporation.
4. The maximum penalty for an offence against clause 34(1) of the RC Regulation is $44,000 for a corporation.
Acquisition of the PET Scanner and installation of the Source into the PET Scanner
5. In or about December 2007, the University acquired a Philips ADAC Allegro positron emission tomography (PET) scanner, Serial Number U0212A058, manufactured December 2002 (the PET Scanner).
6. From about December 2007 and up until 11 January 2019, the University held the following radiation licences issued under the RC Act:
a. Radiation Licence 27352, from 16 September 2005 to 16 September 2006;
b. Radiation Licence RL27352, from 17 September 2008 to 16 September 2011;
c. Radiation Licence RL27352, from 17 September 2011 to 16 September 2014; and
d. Radiation Management Licence 5061026 (the Licence), from 1 July 2013 to 15 July 2019.

7. Under the Licence, the University was permitted to sell, possess, store or give away regulated material (including radiation apparatus, radioactive substances or items containing radioactive substances) subject to the terms of the Licence.
8. The PET Scanner was an imaging device comprising several rings of gamma ray detectors and electronics enclosed in a cylindrical gantry, with a motorised patient gantry that moved the patient into the detector gantry during a PET scan. Its function was to acquire images of the distribution and dynamics of a positron emitting radiopharmaceutical administered to a patient prior to the commencement of a PET scan.
9. The Brain and Mind Centre (formerly known as the Brain and Mind Research Institute) (BMC) is, and at all material times was, part of the University and is a trading name of the University.
10. At all material times, academics associated with the BMC conducted research and treatment in relation to disorders of the brain and mind, with a focus on areas such as child development, ageing and neurodegeneration.
11. Prior to 10 December 2007, Philips Medical Refurbished Systems (Philips) in Cleveland, Ohio ordered a sealed capsule which contains the radioactive isotope caesium chloride (Cs-137) in a ceramic matrix which has the unique serial identifying number “CZ-874” and which has an activity level of 740 megabecquerels (MBq) (the Source) from Eckert and Ziegler Isotope Products (Eckert & Ziegler) in Valencia, California, for delivery and installation into the PET Scanner.
12. The detector gantry of the PET Scanner contained a space for a shielded capsule containing Caesium-137 (Cs-137) inside a lead block.
13. The Cs-137 capsule enabled “attenuation correction” in the PET Scanner. PET scanning involved the injection of a patient with a positron emission radionuclide and then measuring the incident radiation from the patient in a PET Scanner. To account for the different properties of soft tissues in a body and its effect on positron emission, attenuation correction is required to correct the image generated from the PET Scan. In a PET scanner, the attenuation correction is typically based on transmissions measurements made from one or more positron emitting sources such as Cs-137, prior to the PET scan. The measurement of this transmission radiation provides input to calculations to determine the correction required to the image due to attenuation in the patient.
14. If the PET Scanner was operated to perform a transmission scan on a patient, the capsule containing the Cs-137 extended out of its shielding and rotated around the patient emitting gamma rays. The emitted gamma rays would then be detected by the PET detectors to produce a transmission scan.
15. In order to facilitate the delivery of a Cs-137 capsule (the Source) to Australia, Mr Steven Meikle, who at the time was an Associate Professor at the Brain and Mind Research Institute at the University, completed and signed an “Application for Customs Prohibited Import Release for Medical Radioisotopes Single Shipment Permit No. 83088” (the Permit) on 8 November 2007.
16. The Permit was issued by the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) on 28 November 2007. The Permit included the following information:
a. The applicant’s name was listed as “Steven Meikle” and the applicant’s address was listed as “Brain and Mind Research Institute, 100 Mallet Street Camperdown NSW 2050”;
b. The licence number listed on the Permit was 21052 (being Mr Meikle’s Radiation User Licence number at the time).

17. On 10 December 2007, Eckert and Ziegler Isotope Products in California, issued an invoice for the Source to Philips. The invoice listed the shipping address for the Source as the Brain and Mind Research Institute at the Premises, for the attention of Steven Meikle.
18. The Source was delivered to the University in December 2007. Mr Meikle received the Source after its delivery and provided it to an engineer from Insight Oceania Pty Ltd (ABN 79 085 446 653) trading as Quantum Healthcare Group (Quantum Healthcare) for installation into the PET Scanner.
19. The Source was installed into the PET Scanner at some time between December 2007 and February 2008.
20. The PET Scanner was an older type of machine and unusual by modern standards in that it required a source to be installed within the machine. By 2005, most PET scanners did not require the installation of a source but rather were combined with computed tomography (CT) devices.
21. Quantum Healthcare are the Australian representatives and distributors for Philips. Philips have a distributorship agreement with Quantum Healthcare dated 24 November 2005 whereby Philips sells radiation apparatus to Quantum Healthcare for distribution.
22. From the date of its installation into the PET Scanner in December 2007 and up until 11 January 2019, the Source was stored and kept inside the PET Scanner in Room 127 Building F, at 100 Mallet Street Camperdown NSW 2050 (Room 127). Room 127 was at all relevant times part of the BMC.
23. The PET Scanner was last operated in late 2013 by Dr Will Ryder, an employee of the University, to undertake quality assurance testing ahead of a proposed research project that did not proceed.
The refurbishment of the Premises
24. In late 2018, the University engaged a building contractor, FDC Construction (NSW) Pty Ltd ACN 608 609 427 (formerly FDC Construction & Fitout (NSW) Pty Ltd) (FDC) under a Master Agreement for Managing Contractor dated 16 September 2016 (the Contract) to undertake building works at the BMC at the University’s premises at 94 Mallet Street Camperdown NSW 2050 (the Premises). Such works included the conversion of unused floorspace within the BMC research facility located at Level 1 of Building M02F for office use, and the removal of the PET Scanner from Room 127 (Refurbishment Works). The Contract was varied and extended on 9 November 2018.
25. FDC is, and at all material times was, a company that carried out building and construction work. From 2016 onwards, it carried out building work at the University on multiple building and refurbishment projects, including the fit out of office spaces and laboratories.
26. At all material times, FDC did not hold a licence issued under the RC Act allowing it to possess, sell, store, use or give away “regulated material” as defined under the RC Act.
27. Under the Contract, FDC participated in a planning phase for a potential project and if the University approved the project to proceed to delivery phase, the University would issue FDC with a Notice to Proceed. FDC was required to obtain approval from the University to engage any subcontractors.
28. Representatives from the University, including Ms Catherine Lee (at the relevant time, Senior Project Manager, Campus Infrastructure Services (CIS)), Ms Michelle Isherwood (at the relevant time, Executive Officer, BMC), Ms Renee Barber (at the relevant time, Research Readiness Engineer, Core Research Facilities (CRF)), Mr Timothy (Tim) Dixon (at the relevant time, Operations and Program Manager, CRF) and representatives FDC were part of a group called the “Mallett Street Project Working Group 2” (PWG).
29. On 26 April 2018, Mr Felix Werner, who in 2018 was employed by the University as its Radiation Safety Officer, sent an email to Ms Michelle Isherwood. Mr Werner’s email stated:
“Michelle, Re-disposal of old PET scanner: If you are replacing the unit, then the provider should be able to take the old one away for you. Otherwise, it can be disposed of at the local tip. For this, it must:
1. Not be contaminated by radioactive material:
Most radioactive material used for PET scan are very short lived. Please let me know at what date the unit stopped being used and what type of radioactive materials where [sic] injected to patients.
2. Render unusable:
This can be done by smashing the X-ray tubes with a hammer (the tube should be placed in a towel to protect from sharp), or cutting the power supply.
3. The University Radiation Management Licence must be updated: Please send me the brand, model and serial number of the unit to update the University inventory.
Once the above has been confirmed, you can contact CIS to organise pick up and disposal
Kind regards”…

30. On 30 April 2018, Ms Michelle Isherwood sent an email in response to Mr Felix Werner which attached photographs of the PET Scanner, provided details of its model and make and noted that it had never been used. Ms Isherwood requested Mr Werner confirm if the PET Scanner could be disposed of at a local tip.
31. On 30 April 2018, Mr Felix Werner sent an email responding to Ms Michelle Isherwood. He stated that the PET Scanner was not registered on the University’s Radiation Management Licence and confirmed that, as per his earlier email of 26 April 2018, it would need to be disposed of by returning it to the constructor or as non-radioactive equipment by CIS after being made unusable.
32. Sometime during or prior to June 2018, the University took steps to obtain a quote from Quantum Healthcare for the decommissioning and disposal of the PET Scanner.
33. On 19 June 2018, Mr Felix Werner sent an email to Ms Catherine Lee, which forwarded his email to Ms Michelle Isherwood of 30 April 2018 and which confirmed the PET Scanner could be disposed of by returning it to its constructor or as nonradioactive equipment by CIS after it had been rendered unusable.
34. On 22 June 2018, Ms Michelle Isherwood sent an email to Mr Steven Meikle requesting he confirm if a number of rooms in Level 1, Building M02F (122 (Hotlab), Toilet T102 (Hot WC), 124, 126, 128 and 130) had ever been used for radiation work. Ms Isherwood copied Mr Felix Werner into her email.
35. Mr Steven Meikle sent an email in response on 25 June 2018 and advised that none of the rooms noted in Ms Michelle Isherwood’s email sent on 22 June 2018 had any radiation work done in them for the last 5 years and that any sources would have otherwise decayed to background level. Mr Meikle copied Mr Felix Werner into his email.
36. On or about 26 June 2018, Mr Ben McGann, an engineer employed by Quantum Healthcare, inspected the Premises and PET Scanner.
37. On or about 27 June 2018, the University obtained an initial quote from Quantum Healthcare for the decommissioning of the PET Scanner.
38. By email sent to Ms Michelle Isherwood on 6 July 2018, Quantum Healthcare provided an updated quote to the University (Quantum Healthcare Group Quotation No. 00014508 dated 14 June 2018) (Quantum Healthcare Quotation No. 00014508) for the decommissioning of the PET Scanner for the price of $16,613.30 inclusive of GST. The terms of Quantum Healthcare Quotation No. 00014508 made provision for the removal and transport of radioactive sources.
39. On 6 July 2018, Ms Michelle Isherwood sent an email to Ms Catherine Lee forwarding Quantum Healthcare Group Quotation No. 00014508.
40. On 10 July 2018, Mr Felix Werner sent an email to Ms Michelle Isherwood in which he provided clearance for Room 127 from radioactive contamination.9 Mr Werner’s email included the following statements:
“Hi both,
Following Michelle Isherwood email from 30/04/2018 indicating that: The PET scanner in room 127 was never used.
• I make the following conclusion: No unsealed sources were used, therefore no radioactive contamination can be present in room 127.”

…………….
IN CONCLUSION:
• There is no reason for radioactive contamination to be present in the space highlighted for decommissioning in M02F (See attached plan).

…”

41. On 16 July 2018, Ms Janani Suseelar, a Project Manager at FDC, sought advice from Mr Ben McGann in relation to Quantum Healthcare Quotation No. 00014508 including specific information as to how any radioactive components would be disposed of.
42. On 16 July 2018, Mr Ben McGann responded to Ms Janani Suseelar by email and stated, amongst other things, as follows: “…The Radioactive source will be removed and stored in a secure facility at a local hospital - we will arrange this (there are currently no other facilities for storage of radioactive waste)…”.
43. On 17 July 2018, Ms Michelle Isherwood sent an email to Ms Catherine Lee which attached a copy of Quantum Healthcare Quotation No. 00014508 and which sought confirmation that the costs would be covered by 1F Project Funding.
44. On 17 July 2018, Ms Lucy Alexus, Customer Service Engineer at Quantum Healthcare, sent an email to Ms Michelle Isherwood to follow up on Quantum Healthcare Quotation No. 00014508.
45. On 24 July 2018, Ms Janani Suseelar sent an email to Ms Renee Barber, attaching Quantum Healthcare Quotation No. 00014508. Ms Suseelar stated in her email:
“Hi Renee,
Please find attached Philips quote for removal of the PET machine.
They have confirmed the radioactive materials will be removed and stored at a local hospital. Philips will arrange this.
The cost for this can be captured within the contingency at this stage…”

46. On 24 July 2018, Ms Renee Barber sent an email in response to Ms Suseelar’s earlier email of 24 July 2018, and copied in Mr Tim Dixon to seek advice on who would be responsible for the costs quoted by Quantum Healthcare.
47. The University’s Procurement Policy at the time required at least two written quotations to be obtained for subcontractor engagements with a value between $10,000 and $49,000.
48. On 25 July 2018, Ms Renee Barber sent an email to Ms Catherine Lee and Ms Michelle Isherwood, noting she had discussed the disposal of the PET Scanner with Mr Tim Dixon and Mr Rod Gilroy and that Mr Dixon had requested they obtain a competitive quote for its disposal. Ms Barber instructed Ms Isherwood to obtain a comparison quote for the removal and disposal of the PET Scanner.

49. On 27 July 2018, Ms Catherine Lee sent an email to Mr Felix Werner as follows:
“Hi Felix,
I tried to call earlier this week but have only just realised that you are on leave. Thank you for the email below confirmation that there are no radioactive contamination risk for room 122, T102, 124, 126, 128, 130, 119, 123 and 127. Some of those rooms still have radioactive signs on the door. Can we remove these radioactive signs where applicable? Also, as you have no [sic] assessed the radioactive risks for the above listed rooms, would you be able to complete the decommissioning/ decontamination checklist for these rooms so we can give the checklist to the builders prior to taking possession of site.
Can we have a chat next week when you are back?
Thanks...”

50. On 6 August 2018, Mr Felix Werner sent an email to Ms Catherine Lee as follows:
“Catherine,
The radioactive signs can be removed from the door of room 122, T102, 124, 126, 128, 130, 119,123.
If the PET in room 127 is not powered, the sign can be removed too.
Decontamination checklist is not required in this case. The e-mail I sent to you on Tuesday 10/07 concluding that:
There is no reason for radioactive contamination to be present in the space highlighted for decommissioning in M02F (See attached plan).
Can be used as a clearance certificate for builders and contractors…”

51. At all material times, it was a requirement at the University that a decommissioning checklist was required to be completed for the decommissioning of any laboratories. The checklist required that the principal investigator, head researcher or laboratory manager certify that the laboratory and any associated equipment has been decontaminated and all hazardous materials disposed of or transferred.
52. At all material times, the University’s Hazardous Waste Guidelines specified that prior to the disposal of sealed source equipment, the radioactive source must be removed. The guidelines specified that this could normally be arranged with the manufacturer. Once the radioactive source had been removed and the equipment checked for any contamination, the equipment may be disposed of as general waste.
53. On 7 August 2018, Ms Catherine Lee forwarded Mr Felix’s Werner’s email of 10 July 2018 to Ms Janani Suseelar and Mr Carlos Martinez, a Contract Administrator at FDC, and requested that they confirm if the email would suffice as clearance for the purposes of FDC taking possession of the relevant spaces at the Premises to commence the Refurbishment Works.
54. At all material times, Mr Werner failed to identify that the PET Scanner contained the Source but nevertheless provided an email clearance certifying that Room 127 was free from radioactive contamination.
55. At the PWG meeting on 7 August 2018, it was noted that Ms Michelle Isherwood had received a quote from Quantum Healthcare for the disposal of the PET Scanner, and that Ms Liz Blanchard had contacted external parties who were potentially interested in taking possession of the PET Scanner and was awaiting confirmation that the PET Scanner was functional prior to relocating it. It was further noted that Mr Felix Werner had confirmed that rooms 119, 123 and 127 were clear of radiation, that his email clearance would suffice as a clearance certificate and the preparation of the decommissioning/decontamination checklist was not required.
56. On 20 August 2018, Ms Michelle Isherwood sent an email to Mr Anil Wadhwa, an employee of EverX Pty Ltd ACN 094 871 191 (EverX), requesting a quote for the disposal of the PET Scanner. Ms Isherwood stated that the PET Scanner was a “Philips ADAC Model: Allegro SN:U0212A053 manufactured Dec 2002” and that it had never been used. Ms Isherwood attached photos of the PET Scanner to her email.
57. During August and September 2018 employees from the University and EverX exchanged further email correspondence regarding a proposed quote from EverX for the decommissioning and removal of the PET Scanner.
58. During the PWG meeting on 4 September 2018, members in attendance became aware Ms Liz Blanchard had contacted external parties interested in taking possession of the PET Scanner, but there were some missing components for the PET Scanner and it was not considered suitable for reuse.
59. At the PWG meeting on 18 September 2018, members in attendance became aware that Ms Michelle Isherwood and Ms Catherine Lee were waiting to receive a second quote for the disposal of the PET Scanner from EverX. It was confirmed by Ms Renee Barber that the project would fund the disposal of the PET Scanner.
60. At all material times, EverX was a private company that specialised in the sale of used and refurbished medical equipment including CT scanners, MRI scanners, Ultrasound, Colour Dopplers, C-arms, Mobile X-ray units, Mammography machines and Cath Labs.
61. At all material times, EverX was the holder of a licence issued under s 6 of the RC Act (Radiation Management Licence Number 5061015). That licence permitted EverX to own, store, sell or give away regulated material (including radioactive substances or items containing radioactive substances) subject to the terms and conditions of the licence.
62. At all material times, Mr Nirvikar Yadav, an employee of EverX who worked in technical sales and operations, was the holder of a licence issued under s 7 of the RC Act (Radiation User Licence Number 5021954) which permitted Mr Yadav to use radiation apparatus for the purposes of installing and/or servicing that radiation apparatus, subject to the terms and conditions of the licence.
63. By email sent on 25 September 2018, Mr Nirvikar Yadav provided the University with an itemised quote for the removal and disposal of the PET Scanner for the total price of $13,800 excluding GST assuming that the work would be completed between 9:00am and 5:00pm on a week day (EverX Quote). Mr Yadav confirmed the quote was “all inclusive” to have the PET Scanner removed from the Premises to a tip.
64. At some point between 19 and 25 September 2018, Mr Nirvikar Yadav notified Ms Catherine Lee and Ms Michelle Isherwood that EverX would be engaging COPE to transport the PET Scanner from the Premises to the tip. In his email, he was referring to Janala Pty. Ltd trading as COPE Sensitive Freight.
65. At the PWG meetings on 2 October 2018 and 16 October 2018 it was discussed that a cheaper quote for removal of the PET Scanner had been received from EverX, and that Ms Lee would circulate the two quotes to Ms Barber and Mr Dixon for approval.
66. The PWG met on 30 October 2018. Ms Catherine Lee, Ms Michelle Isherwood, Ms Renee Barber and Ms Janani Suseelar were present at the meeting along with Mr Mufaro Tumbare (Project Trainee, CIS), Ms Liz Blanchard, Mr Grant Bates (Audiovisual Analyst/Designer), Mr Ian Garthwaite (Lab Services Manager, CPC), Mr Clinton Isa (Contracts Administrator FDC) and Mr Donald Gonzo (Contracts Administrator, FDC). Those present at the meeting resolved that:
a. FDC would proceed with engaging EverX, who had provided a lower quote for removal of the PET Scanner than Quantum Healthcare;
b. the University would issue the two quotes to FDC who would issue instructions to EverX;
c. the removal of the PET Scanner could be completed when Building F was still being occupied by the Brain and Mind Centre and Sydney Imaging

67. On 31 October 2018, the University instructed FDC to engage EverX to decommission and remove the PET Scanner from the Premises as agreed at the PWG meeting on 30 October 2018.
68. On 21 December 2018, the University issued a Notice to Proceed with Stage 1 and 2 of the refurbishment works at the BMC at the Premises, dated 14 December 2018.
69. As a result of that Notice to Proceed, FDC was required to procure the removal of the PET Scanner from Room 127.
70. By email sent on 4 January 2019, FDC confirmed to EverX that it had been instructed by the University to engage EverX to remove the PET Scanner from the Premises. FDC requested EverX provide its formal quotation.
71. EverX provided a formal quotation to FDC on 4 January 2019 of $15,180 inclusive of GST for the decommissioning, removal and disposal of the PET Scanner (EverX Quotation No. PI #020190104AN). The terms of that quotation did not include any reference to the removal and disposal of any radioactive material.
72. On 7 January 2019 FDC issued a purchase order (Purchase Order No. 100077-023) to EverX for the removal and disposal of the PET Scanner. The terms of that purchase order did not include any reference to the removal and disposal of any radioactive material.
The disposal of the PET Scanner and the Source
73. On 11 January 2019, Mr Yadav attended at Room 127 with Mr Lonnie Hardaker, the National Project Manager at COPE, and three other employees of COPE, to decommission, disassemble and remove the PET Scanner.
74. Mr Yadav knew that this particular type of PET Scanner contained a source but assumed it had been removed from the machine by the time he attended Room 127 on 11 January 2019.
75. COPE is a logistics company which, at all material times, provided services for the transport of sensitive freight to commercial and residential areas by truck and/or trailer.
76. During the process of decommissioning, the PET Scanner was unplugged and unbolted, disassembled into parts which were then separated depending on the type of material (metal, cardboard and plastics). The separated items were then packed onto pallets, shrink wrapped, removed from Room 127 and loaded onto a truck belonging to COPE with a tail lift. The pallets were then secured to the walls of the truck with belts so that they would not move during transportation.
77. COPE then transported the metal components from the PET Scanner (with the Source still inside those components) by road on 11 January 2019 for disposal at a metal scrap yard operated by Barca Investments Pty Ltd ACN 003 258 419 trading as Barca Metals (Barca Metals) and located at 1/24-28 Childs Road, Chipping Norton NSW 2170. The metal components, with the Source inside, were off-loaded from the truck and deposited at the metal scrap yard. Plastic components removed from the PET Scanner remained on the truck belonging to COPE and were transported to Cleanaway’s facility at Smithfield.
78. At all material times, neither COPE nor Barca Metals held a radiation management licence or radiation user licence under the RC Act in respect of the Source. Without a radiation management licence or a radiation user licence, COPE and Barca Metals were prohibited from possessing the Source, storing the Source and using the Source (within the meaning of “use” in s 4(1) of the RC Act).
79. No consent had been obtained by the University (or any other person) from the Chairperson of the EPA to dispose of the Source prior to and as at 11 January 2019.
80. At some point after the receipt of the PET Scanner on 11 January 2019, Barca Metals processed the PET Scanner using a heavy metal shear and utilised the disassembled parts for metal reclamation purposes. Although the Source was still inside the PET Scanner, this process did not damage, interfere with or otherwise affect the Source or the integrity of the Source.
81. At all material times, OneSteel Recycling Pty Limited trading as Liberty Recycling ABN 28 002 707 262 (Liberty Recycling) operated a scrap metal yard at 107 Sparke Street, Hexham NSW 2322. Liberty Recycling had an arrangement with Barca Metals where they would regularly accept scrap metal from Barca Metal’s premises at Chipping Norton that Barca Metals cannot process.
82. On the morning of 14 February 2019, a driver employed by Silver Truck Services Pty Ltd ACN 158 222 432 (Silver Truck Services) , a company which subcontracts to Liberty Recycling, arrived at the Barca Metals scrap yard in Chipping Norton NSW. The driver was driving a semi-trailer combination truck with a four-sided bin and no roof with NSW registration number CP67KG (Vehicle).
83. Employees from Barca Metals loaded the Vehicle with mingled unprocessed scrap metal from the Barca Metals yard, which was to be sold and delivered to Onesteel at Hexham.
84. The Vehicle transported the load to Onesteel’s Hexham premises on 14 February 2019, leaving Barca Metals’ premises at approximately 6:55am.
85. At the time, there were two radiation detectors installed onto two separate weighbridges at Liberty Recycling’s premises at Hexham. The system operates automatically, and when it detects radiation it causes an audible alarm to go off and a computer screen will display a picture of a truck with a red flashing banner.
86. On 14 February 2019, the Vehicle carrying the load of scrap metal from Barca Metals’ premises entered one of the weighbridges at Hexham and caused the radiation detector to alarm. The Vehicle was directed to pass through the weighbridge 3 times to confirm that it was not a false positive detection. The Vehicle alarmed three times for three passes of the radiation detectors, indicating that the load of scrap metal was contaminated with radiation.
87. An employee of Liberty Recycling, Mr Matthew Franks, used a handheld radiation detector to scan the sides of the Vehicle carrying the load of scrap metal (and the Source). Mr Franks determined a point source located an estimated 2 metres above ground level in the trailer and one third of the length of the front of the tipper, on the left-hand side of the trailer. The maximum radiation reading recorded was 15.7 microsieverts (μSv) per hour.
88. Mr Glen Schrader, Shredder Manager at Liberty Recycling, instructed the driver of the Vehicle to transport the load back to Barca Metals. The driver drove the Vehicle back to Barca Metals with the whole load it had been carrying on 14 February 2019.
89. Upon return to Barca Metals at approximately 1:30pm, employees from a local Liberty Recycling premises located 53-57 Riverside Road, Chipping Norton NSW 2170 arrived at Barca Metals with a radiation detector.
90. Using an excavator, employees from Barca Metals and Liberty Recycling grabbed material from the trailer attached to the Vehicle and surveyed the material with handheld radiation detectors.
91. A small piece of scrap metal was identified and isolated (Item). Mr Soto Shen, a Senior Account Manager at Liberty Recycling, measured the radiation levels of the Item and noted a reading of 734 microsieverts (μSv) per hour at approximately 2:45pm.
92. Mr Tony Barca of Barca metals then placed the Item into a plastic container and relocated it to a disused toilet building at the Barca Metals premises. He then closed off the area.
93. On 22 March 2019, the EPA received a notification via telephone call advising that radioactive material was present at the Barca Metals scrap yard in Chipping Norton. EPA officers attended the Barca Metals scrap yard and inspected the Item. EPA officers relocated the Item to the EPA’s secured lab facility in Lidcombe.
94. On 1 May 2019, Mr Robert Blackley of the Australian Nuclear Science and Technology Organisation (ANSTO) inspected the Item and dismantled it. Mr Blackley identified that the Item was the Source. He then proceeded to prepare a characterisation report.
95. EverX reported the incident involving the Source to FDC on or about 25 June 2019 and FDC prepared an incident report.
Other relevant matters
96. At all material times the Source:
a. was a “sealed radioactive source” within the meaning of that expression in s 4(1) of the RC Act;
b. contained a “radioactive substance” within the meaning of that expression in s 4(1) of the RC Act and cl 5 of the RC Regulation;
c. was “regulated material” within the meaning of that expression in s 4(1) of the RC Act.

Potential environmental harm
97. None of the events and conduct above resulted in any actual harm to any person or the environment.
Cooperation of the Defendant
98. The Defendant has at all times cooperated with the Prosecutor from the commencement of the investigation process including participating in ROI's during a critical phase of COVID-19 in Sydney and the production of significant documentation pursuant to statutory notices.

Additional agreed facts (Ex B)

The parties agreed a supplementary statement of agreed facts dated 23 March 2022 which stated as follows:

SUPPLEMENTARY STATEMENT OF AGREED FACTS ON SENTENCE
1. A Statement of Agreed Facts on Sentence signed by the Prosecutor and the Defendant was filed on 11 March 2022 in these proceedings.
2. The purpose of this Supplementary Statement of Agreed Facts on Sentence is to record the Prosecutor and the Defendant’s agreement on a further fact associated with potential environmental harm.
Potential Environmental Harm
3. Based upon the scenarios in the IAEA D- Values, any harm to an individual in the form of death of the exposed individual or permanent injury which decreases that person’s quality of life resulting from any such contamination from the smelting process is considered to be ‘very unlikely’. A likelihood score of ‘very unlikely’ equates with a qualitative risk analysis of 0.0001 to 0.001 per annum.

Blackley report (Ex C)

Dr Robert Blackley is a Senior Health Physicist and Manager at the Australian Nuclear Science and Technology Organisation, Radiation Services. He has 21 years’ experience working in the radiation protection industry. The Prosecutor asked him to provide an expert opinion on a range of matters including the extent of actual, likely or potential harm to persons or the environment resulting from the offence. The parties accepted that Mr Blackley’s report represented a shared position with respect to harm and the matter was not traversed in the SOAF except in relation to the agreed fact in the SOAF par 97 and the supplementary agreed fact on potential environmental harm (above in [10]).
The radio activity of the Source at the time of inspection on 1 May 2019 was calculated as 0.571 gigabecquerels (GBq). As at 1 May 2019 the Source was retained within its housing, with no removable radioactive contamination detected. As a result, the only potential exposure of persons that may have occurred in its state at the time of inspection is from external dose rates from the source in its holder, and not from inhalation or ingestion of loose radioactive contamination.
In the International Atomic Energy Agency (IAEA) publication ‘Dangerous quantities of radioactive material (D-values) dated 2006, scenarios for determining D-values (Dangerousness values) are provided. Mr Blackley stated that the exposure scenarios involving non-dispersed material are most appropriate for assessing potential harm to an individual. This includes scenarios where a source is carried in a hand for one hour duration, carried in a clothing pocket for a period of up to 10 hours, or is left in a room with persons at a distance of one metre from a source for 100 hours’ duration. Based on his experience, Mr Blackley opined that these scenarios are reasonable for estimating actual and potential exposure scenarios in the actual disposal of the Source.
Based upon scenarios where a source is carried in a pocket, individual’s hand or an individual spends an extended time at a distance of one metre to a source, the likely absorbed dose in soft tissue received would have been significantly less than one gray (Gy), and below the limit for observing any cutaneous radiation injuries to an individual. As a result, harm to an individual, such as death or permanent injury, which decreases that person’s quality of life, was considered to be “very unlikely”, meaning a qualitative risk analysis of 0.0001 per annum to 0.001 per annum. Although harm to an individual in this manner is very unlikely in these scenarios, after a duration of 17 hours at a distance of 1 metre from a source, a person would receive an exposure in excess of the regulatory annual whole body dose limit for a member of the public, being 1 millisieverts (mSv). The likelihood of an external exposure of a person in excess of the annual dose limit for a member of the public was “likely” as it has previously occurred overseas within the industry. A likelihood score of “likely” is related to a qualitative risk analysis of 0.01 per annum to 0.1 per annum.

The potential for detrimental harm to the environment from external dose rates from a sealed source under the relevant conditions was “very unlikely.”
There was potential for the integrity of the capsule for the Source to be breached if the Source had undergone significant crushing, cutting or high temperatures in the scrap metal yard from compaction, grinding and smelting processes. If the entire radioactive contents of the Source were released, the potential existed for a person to receive exposure via inhalation or ingestion. The actual exposure would be highly dependent upon the quantity of the Source inhaled or consumed, the particulate size of the material and the dissolvability of the caesium chloride in the ceramic matrix. Based upon the IAEA publication mentioned above in [13], the likely absorbed does would be significantly less than 1 Gy, below the limit for observing any cutaneous radiation injuries to an individual. Harm to an individual in the form of death of exposed individual or permanent injury, which decreases that person's quality of life was considered to be 'very unlikely'.
The likelihood of an exposure resulting in a dose in excess of dose limits if the material became dispersed was considered to be “likely”. This has occurred within industry overseas under similar circumstances. The potential injury to the environment is dependent on a number of parameters. Significant injury to the environment in this scenario was considered to be “unlikely”. Pollution of the environment requiring some level of remediation has occurred within industry and was considered to be “very likely” equivalent to a qualitative risk analysis of 0.1 per annum to 1 per annum.
If the Source was smelted, in Mr Blackley’s experience this would be very likely to contaminate consumer items manufactured from the material and contaminate the smelter facility. He was aware of at least three occurrences of this within the last five years within industry and more examples are described in Session 4 of the proceedings of an IAEA conference entitled ‘Control and Management of Radioactive Material Invertedly Incorporated into Scrap Metal’ in 2009.

Affidavit of Michael Powell

Mr Michael Powell Chief Health and Safety Officer has been employed by the Defendant since 2 February 2021. He was authorised to make his affidavit on the Defendant’s behalf and was aware the Defendant pleaded guilty to the offences the subject of these proceedings.
He was authorised by the Defendant to express its deep regret that the incident occurred and that the Defendant’s systems did not ensure that the Source was disposed of pursuant to its legislative requirements. He deposed that the Defendant takes its obligations under environmental legislation very seriously and is committed to ongoing environmental improvements.
Since commencing in his role on 2 February 2021 directly in response to the incident the subject of the offences, he has overseen a number of actions and changes to ensure that processes surrounding the handling and storage of regulated material are reviewed and improved so that the incident does not happen again. He estimated that during the first three months of his employment around 25% of his workload was spent implementing steps directly related to the incident.
In April 2021 audits of the Defendant’s radiation standards and compliance with them were undertaken. The System Audit reviewed the adequacy of the standards used in relation to radiation safety management and the Compliance Audit reviewed compliance with those standards. Seven key findings were made by the System Audit and three were made by the Compliance Audit. A table was annexed to Mr Powell’s affidavit outlining the implementation of the recommendations of the audits by the Defendant, highlighting that 12 out of 14 recommendations have been adopted and implemented. The two outstanding recommendations are either currently being implemented or, in the case of a recommendation that opportunities for further training for local radiation safety officers be identified, those opportunities are being identified.
New specialised staff members in various roles have been recruited with particular expertise in radiation safety management. The Defendant has hired a Senior Specialist in radiation safety who is now the appointed Radiation Safety Officer, who was one of the “more qualified, senior people” attracted by the increased salary now offered to the occupant of the role. A Senior Manager in Specialist and Technical Projects has been hired, with experience in managing large-scale safety projects and with radiation safety. That role includes leading the development of standards including radiation standards, risk management and control and providing strategic guidance and leadership with regards to compliance with safety regulations. A further hire is a ‘casual contractor - Radiation Safety Officer’ who is employed full-time at the University of New South Wales and is contracted on a part-time basis to the Defendant. He acts as a back up to the Radiation Safety Officer.
The Defendant has implemented a radiation safety system in the form of a set of documented requirements which ensure that the Defendant has a system in place to meet its legislative requirements with respect to radiation safety. One of those documents, the Ionising Radiation Safety Standard, has been updated following the incident to include a new section on disposal and decommission, a new ‘purpose’ for the Radiation Safety Committee, and updated information on the role of the Radiation Safety Officer.
To ensure the incident is not repeated, the Defendant has implemented and will continue to implement the following.

A digital system which captures the full end-to-end lifecycle of all laboratory reagents, from purchase to disposal.

The Radiation Safety Officer has been instructed to review the level of training for all local radiation safety officers and once the findings are available appropriate training will be implemented.

A procedure specifically for the disposal of regulated material stored and used at the Defendant’s premises which ensures that:

the Radiation Safety Officer inspects all radiation apparatuses and premises within which radioactive material is used prior to disposal or refurbishment of the premises;

staff with appropriate experience and seniority approve quotations involving the decommissioning of radiation apparatuses and proposed disposal of radioactive material; and

the EPA’s consent is obtained prior to disposal of regulated material.

A procedure specifically for the transport of regulated material stored or used at the Defendant’s premises, so as to ensure compliance in the future with the Australian Radiation protection and Nuclear Safety Agency (ARPANSA) Code of Practice and the Safe Transport of Radioactive Material (Code of Practice).

Better record keeping and management of all regulated materials stored and used at the Defendant’s premises, including specific details of their age, nature, use and location.

Purposes of sentencing

The offences will be considered together unless it is otherwise necessary to differentiate between them.
Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) states:

Part 1 Preliminary
…
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.

The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of a defendant: Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J) and Veen v The Queen(No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 472-73 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-91 (Deane J). The sentence should not exceed what is justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen (No 2) at 472, 485-86, 490-91, 496 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 (Hoare) at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

Objective seriousness

Nature of the offences

A fundamental consideration for environmental offences is the extent to which the defendant’s conduct offends against the legislative objectives expressed in the offence: R v Peel [1971] 1 NSWLR 247 at 262; Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [89]; Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 at [52]; and Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 (Rae) at [15]. The objects of the POEO Act are set out in s 3 above, which assist in ascertaining the purpose of creating an offence: Environment Protection Authority v Hanna (2018) 235 LGERA 114; [2018] NSWLEC 80 at [97] (Preston CJ). The objects of the RC Act are extracted above in [6].
These offences are environmental offences: Environment Protection Authority v Gammasonics Institute for Medical Research Pty Ltd [2019] NSWLEC 190 (Gammasonics) at [24], [29], [34], [68]. The RC Act is directed to ensuring the safe handling of radioactive material. That purpose is commensurate with the objects of the RC Act, which include “to secure the protection of persons and the environment from exposure to ionising radiation…to the maximum extent that is reasonably practicable…” (s 3(1)(a) of the RC Act) which indicates a particular emphasis on safety.
As the Prosecutor submitted, the radiation protection principles in s 3(2) of the RC Act seek to strike a balance between the need to have strict measures that guard against potentially catastrophic consequences if radioactive material is mishandled and the need to make such material available for use for beneficial purposes. As Duggan J stated in Gammasonics at [24]:

24. These objects identify the balance that has been struck between the beneficial use of radiation and the potential risks of such radiation. In striking that balance the objects identify the provision of security of radioactive sources as a fundamental goal. The security of radioactive sources is aimed at the protection of people and the environment against the inherent risks of radioactive material and its misuse. The regime of licensing and the preparation of the required plans are intended to provide that desired security and protection.

While Gammasonics concerned different, arguably more serious, offences under ss 14(1), 14(6) of the RC Act in relation to the transportation of a security enhanced source and cl 36 of the RC Regulation these observations are apposite to the two offences before me.
I do not agree with the Defendant’s submission that the strict nature of the requirements and extensive protections in the RC Act and Regulation do not inform the assessment of the relative seriousness of the offences. The Defendant’s actions clearly undermined the statutory requirements and protections and the objects of the RC Act.

State of mind

The two offences being considered are offences of strict liability. Mens rea is not an element of the offence. The offender’s state of mind at the time of committing the offence may nevertheless be relevant when assessing the objective seriousness of the offence: Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312 at [72] (Brereton JA, Harrison and Bellew JJ agreeing); Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd (2020) 245 LGERA 241; [2020] NSWLEC 125 at [14] (Preston CJ).
The parties agreed that the offending conduct was accidental. The Prosecutor did not contend that the offending was intentional, negligent or reckless to the criminal standard.

Maximum penalty

In setting a penalty the Court should have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and 701:

The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided...
…the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty.

The maximum penalty for an offence represents the legislature’s assessment of the seriousness of the offence and therefore provides a sentencing yardstick. It commonly invites comparison between the case before the Court and cases falling within the category of the “worst case”.
The maximum penalty for the s 6(6) offence at the time of the offending was $165,000.
The maximum penalty for the cl 34 offence at the time of the offending was $44,000.

Section 6(6) offence

The Defendant in particular made submissions which sought to place the s 6(6) offence in the context of the RC Act. As the Defendant emphasised the maximum penalty applicable to a s 6(6) offence covers a wide range of offences and offending conduct. The maximum penalty with respect to s 6(6) applies to offences including those (as extracted above in [6]) created by:

Section 13A ‘Conditions of suspension, cancellation or surrender’ subsection (4);

Section 14 ‘Preparation of security plans’ subsection (7);

Section 14A ‘Implementation of security measures’ subsections (1) and (2);

Section 14B ‘Identification and security checking’;

Section 19 ‘Powers to deal with dangerous situations’ subsections (4) and (5); and

Section 33A ‘Abandoning radioactive substances’.

By way of contrast the RC Act provides a high maximum penalty of $1,100,000 (10,000 penalty units) and possible imprisonment if the offender knows that criminal conduct is likely to cause serious harm to a person inter alia: s 24 of the RC Act (above in [6]). In Gammasonics at [30] Duggan J observed in relation to s 24, dealing with offences under s 14 and cl 36 of the RC Act and Regulation respectively,:

30. The inclusion of such provision indicates a legislative intent that the maximum penalty for the offence with which this Defendant is charged does not include the “full range” of possible breaches, but is rather intended to provide a maximum in for all circumstances other than those provided for in s 24. Therefore any penalty is to be considered in a range that does not include a knowing causing of actual harm.

The Defendant submitted that, axiomatically, the provision of a higher maximum penalty for offences exhibiting the conduct to which s 24 applies means that the maximum penalty of $165,000 is intended to cover a wide range of offending conduct and the provision of the much higher s 24 penalty is reserved for a narrow category of case. The maximum penalty of $165,000 applies to intentional breaches of ss 14(1) and 14(6) of the RC Act (considered in Gammasonics); breaches of the offence provisions related to “security enhanced sourced”, for which the RC Act makes provision because enhanced security is perceived to be necessary for such sources (as considered in Gammasonics); and a range of offending under s 6 of the RC Act including conscious contraventions and those made for financial gain and those involving sources with higher radioactivity.

Clause 34 offence

In relation to the cl 34 offence, the same maximum penalty of $44,000 has been prescribed for most offences created by the RC Regulation according to the Defendant. The maximum penalty applies to a wide range of conduct which includes deliberate contraventions, for example, a deliberate decision not to notify the EPA Chair of the disposal of a source under cl 34.

Harm

The Prosecutor submitted that, although no actual harm to persons or the environment resulted from the offending, the potential for harm needs to be taken into account: Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 (EPA v WRPC) at [145]. In the context of other environmental offences, harm does not extend to harm which is remote, as opposed to harm that might arise as a real possibility: Newcastle City Council v Pace Farm Egg Products [2002] NSWLEC 66 at [44]. In the context of offences under the RC Act, the legislative context indicates that the Court is permitted to take into account remote risks of harm: Gammasonics at [35]-[36]. Duggan J in Gammasonics at [36] stated:

36. For these reasons I find that the risk sought to be managed by the RC Act and its Regulations are risks that include ones that are on the spectrum of risk that would include remote risks and those that are less than a real chance or possibility. I therefore consider that in the context of these offences it is open to consider risks that may be determined to be remote as relevant to the sentencing exercise. However, I also consider that in sentencing it is relevant to treat the more possible the risk with greater weight than the less possible.

While the handling of the Source by the employees of Barca Metals for short periods did not expose them to any risk of harm (Blackley report above in [14]), any person exposed to the Source at a distance of 1 metre would after 17 hours receive an exposure in excess of the revelatory annual whole-body dose limit for a member of the public. The chances of external exposure of a person in excess of the annual dose limit was considered “likely” having regard to the fact that such exposure has occurred overseas (Blackley report above in [14]).
Barca Metals subjected the Source to a metal shear in the scrap metal yard which fortuitously did not damage the Source. There was clearly potential for the Source to have been breached and its integrity to have been risked from crushing, cutting, high temperatures, compaction or grinding (Blackley report above in [16]).
Had the Source undergone a smelting process, that would have likely contaminated consumer items manufactured from the resultant material as well as the smelter facility (Blackley report above in [18]).
The Defendant submitted that a “circumspect” approach to consideration of remote harm was appropriate and consistent with Duggan J’s approach in Gammasonics. In Gammasonics Duggan J was very careful in approaching this issue and careful to give remote or speculative harm limited weight. Her Honour differed in her consideration in relation to the three separate risks she identified and defined, namely the “Public Health Risk”, the “Public Safety Risk” and the “Risk to the Environment”. Even more circumspection is warranted here, where, unlike Gammasonics, there is no failure to comply with the security provisions applicable to security enhanced sources and the offending here involved a significantly less radioactive source. For comparison, in Gammasonics the source had a radioactivity of 86.7 terabecquerels (TBq) (at [4]) whereas the Source had a radioactivity of 0.751 GBq. It is evident from Gammasonics at [35] that an additional reason for taking into account improbable risks of harm in that case were security concerns attached to security enhanced sources under the RC Act. The risk of harm to humans or the environment was quite remote and speculative in this case and should not be given any weight.
Turning to my consideration of harm in the circumstances of the offences, the evidence of Mr Blackley summarised at [11]-[18] is accepted. In relation to the potential harm arising from the smelting of the Source, Mr Blackley opined that it would have been “very unlikely” that any individual exposed to contaminated consumer items would suffer harm in the form of death or permanent injury which decreases that individual’s quality of life. The term “very unlikely” is defined in Mr Blackley’s report as 1 occurrence of harm per 10,000 occurrences of exposure at this level and 1 occurrence per 1,000 occurrences at this level, per year.

Mr Blackley identifies that the potential for harm which arose from those offences in relation to personal exposure such as being in close proximity for an extended period was very unlikely. The potential for detriment to the environment from the sealed source was very unlikely. While the prospect of the commission of the offences potentially causing any harm of any material kind to persons or the environment was remote it remains relevant. Contrary to the Defendant’s submissions, Gammasonics supports the Prosecutor’s approach as Duggan J appropriately identifies in [35]-[36] that the scheme in the RC Act seeks to avoid prospective harm that falls into the ‘’remote’ category, consistent with the objects of the RC Act. Reflecting the circumstances before her of failures in the transportation of a security enhanced source, a public safety risk was identified, in addition to a public health risk and a risk to the environment. The potential for the latter two arise in this case based on Mr Blackley’s evidence. Weight should be given to those risks in this sentencing exercise.

Conclusion on objective seriousness of offences

The Defendant had complete control over the causes of the offences in that it permitted an entity which did not have an appropriate licence under the RC Act to possess the Source (relevant to the s 6(6) offence) and it did not take any steps to obtain the consent of the Chairperson of the EPA (relevant to the cl 34(1) offence). Harm was avoided because fortuitously the metal shear did not breach the integrity of the Source and because Liberty had a radiation detector which resulted in the identification of the Source before it was smelted and not because of any actions by the University.
The objective seriousness is at the high end of the low range of objective seriousness.

Subjective matters

Under s 21A(3) various matters are to be considered in mitigation of sentence where relevant.

Guilty plea: ss 21A(3)(k), 22

Pleas of guilty can be considered in mitigation depending on when a plea is entered by a defendant. The utilitarian value of a plea should generally be assessed in the range of a 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall is the timing of the plea: R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160] (Spigelman CJ, with whom Wood CJ at CL, Foster AJA and Grove and James JJ agreed).
The Prosecutor submitted that the Defendant’s guilty pleas were late, entered at the pre-trial mention, meaning any discount should be at the lower end of the range. The Defendant submitted that while its pleas were late, they retained some real utilitarian value as their entry has avoided the matter going to trial. I will discount the sentence by 10% in light of the lateness of the guilty pleas in both offences.

Contrition/remorse: s 21A(3)(i)

I accept that the Defendant has expressed its deep regret for the commission of the offences through Mr Powell (see above in [20]). That expression is consistent with the steps taken by the Defendant, described by Mr Powell above in [21]-[25], to prevent a recurrence of an incident of this nature.

Cooperation with regulatory authority: ss 21A(3)(m), 23

The Defendant submitted that it has at all times cooperated with the Prosecutor. It agreed to pay the costs of the Prosecutor as agreed or assessed, as well as the disposal costs of the Source which are estimated to be up to $11,000. The Defendant submitted from the bar table that the Prosecutor had approached it seeking consent for it to utilise University facilities to facilitate the training of radiation consulting experts. The Defendant committed to offering its facilities to the Prosecutor for that purpose and fostering greater collaboration between it and the Prosecutor on matters of radiation safety.

Sentencing principles

General and specific deterrence

General deterrence is an important consideration in offences before the Court. Nominal fines do not deter: Rae at [13] (Preston CJ), Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 at [140] (Preston CJ) (Bentley); Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60 at [98] (Sheahan J).
In Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 (Abbas), concerning an offence under s 142A(1) inter alia, at [104]-[105] I stated:

104. General deterrence is an important aspect of sentencing in environmental crime. As held by Preston CJ in Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 at [139]-[140]:
The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598.
This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93] per Lloyd J.
105. Specific or personal deterrence is applicable where an offender has a prior criminal record which manifests a continuing attitude of disobedience, such that more weight should be given to retribution, personal deterrence or protection of the community: Veen (No 2) at 477; R v Abboud [2005] NSWCCA 251 at [33]; R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [54].

With reference to oft-cited passages in Bentley at [139]-[141], the Prosecutor submitted that general deterrence is particularly important in the context of environmental offences, and these comments are apposite to the provisions of the RC Act: Gammasonics at [68]. I agree that general deterrence is an important factor in sentencing given the stringent protective requirements of the RC Act.
The Prosecutor submitted that there is a need for specific deterrence in this case because the Defendant is still licenced under the RC Act. Furthermore, given the circumstances of the offending which included failure by the Defendant’s officers to identify the existence of the Source inside the PET scanner, the sentence should reflect an element of specific deterrence to ensure the Defendant exercises vigilance in observing their requirements under the RC Act and Regulation in the future: relying on Gammasonics at [66].
The Defendant accepted that specific deterrence is a relevant consideration for the reasons submitted by the Prosecutor. It further submitted that given the matters deposed to by Mr Powell, the Court would allow specific deterrence to play only a limited role in the sentencing exercise. The Defendant has accepted responsibility for the incident, expressed contrition, and Mr Powell’s evidence above in [21]-[25] would give the Court confidence that the Defendant will not allow an incident like this to recur. The Defendant has learned from its mistakes and the chances of the offences reoccurring have been minimised as far as is reasonably possible.
Accepting the Defendant’s submission, specific deterrence remains relevant to sentencing.

Even-handedness/parity

The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty: R v Visconti [1982] 2 NSWLR 104 at 107 (Street CJ, Lee and Maxwell JJ agreeing). No other prosecutions of the provisions creating the offences in these proceedings in this Court or elsewhere have been identified.

Totality

The sentencing principle of totality is relevant where more than one similar offence is being considered to ensure that the sum of any fines imposed is not disproportionate to the total criminality of a defendant: Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [98] citing Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 62; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; and Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45].
The parties agreed that there is a role for the totality principle in relation to the two offences, which arose from the same facts and circumstances. The Defendant orally submitted that the nub of its criminality lay in the s 6(6) offence. I agree.

Additional orders

Publication order – Radiation Control Act ss 23B(1)(a) and 23B(3)

The Prosecutor sought a publication order pursuant to ss 23B(1)(a) and 23B(3) of the RC Act in the terms at Annexure A. In EPA v WRPC, Preston CJ stated at [242]:

242. Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma: see B Fisse, “Reconstructing Corporate Criminal Law: Deterrence, Retribution, Fault and Sanction”, (1982-1983) 56 S Cal L Rev 1141 at 1147, 1153, 1154, 1156, 1166, 1220, 1229, 1230, 1240. See also B Fisse, “The Use of Publicity as a Criminal Sanction against Business Corporations” (1971-1972) 8 Melb ULR 107; M Rankin and P Finkle, “The Enforcement of Environmental Law: Taking the Environment Seriously” (1983) 17 U Brit Colum L Rev 35 at 49; and D Chappell and J Norberry, “Deterring Polluters: The Search for Effective Strategies” (1990) 13 UNSWLJ 97 at 108.

Following the hearing the parties reached agreement on the terms of a publication order on 31 March 2022. I will make such an order in the terms of Annexure A as I consider that it is warranted in the circumstances.

Moiety

The Fines Act1996 (NSW) (Fines Act) provides for the possibility of an order for moiety, as follows:

Part 9 Miscellaneous
…
122   Payment of share of fine to prosecutor
(1) This section applies where—
(a)  the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and
(b)  the prosecutor is not a police officer.

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

The Prosecutor applied for a moiety pursuant to s 122 of the Fines Act. The penalties for offences under s 6(6) of the RC Act and cl 34 of the RC Regulation do not make provision for the application of a fine once recovered by the Courts, meaning s 122(1)(a) is enlivened. The Prosecutor is not a police officer: s 122(1)(b). One basis for making an order for moiety is where the prosecutor does not have an independent right to recovery of investigation costs: Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 (AGL) at [143]; Office of Environment and Heritage v Swansbel (Pastoral) Pty Ltd [2019] NSWLEC 69 at [69]. Similar to the circumstances before Preston CJ in Secretary, Department of Planning and Environment v Boggabri Coal [2014] NSWLEC 154, there is no independent provision allowing the Court to order recovery of investigation costs and expenses in the RC Act. I note that the existence of such an independent right does not prevent an order for moiety: AGL at [158]. The power to make an order for moiety is discretionary: Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 at [157]. I will make an order for moiety as this is appropriate in the circumstances.

Legal costs

The Prosecutor sought an order that the Defendant pay its professional costs as agreed or assessed under s 257B and s 257G of the Criminal Procedure Act 1986 (NSW). The Defendant has agreed to the making of such an order.

Dismissal of some charges

On 8 March 2022 with the consent of the parties the Court noted that it was the parties intention that, upon the Court accepting the Defendant’s pleas of guilty and making final orders in matter nos. 2021/78167 and 2021/78170, the Court, by consent, will dismiss the summonses in matter nos. 2021/78168 and 2021/78169 with no order as to costs. I will make such an order.

Conclusion on penalty to be imposed

When sentencing, the Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a “value judgment as to what is the appropriate sentence given all the factors of the case”: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26] unanimously following Markarian at [51] per McHugh J.
The appropriate penalty in matter no. 2021/78167 (s 6(6)) is $60,000 which I will reduce by 15% in light of all the mitigating factors to $51,000.
The appropriate penalty in matter no. 2021/78170 (cl 34) is $20,000 reduced by 10% to $18,000 and further reduced to $10,000 in light of the principle of totality.

Penalty/orders

The Court orders that:

In NSWLEC matter no. 2021/78167:

The Defendant the University of Sydney is convicted of the offence charged.
The Defendant is fined the sum of $51,000.

In NSWLEC matter no. 2021/78170:

The Defendant is convicted of the offence charged.
The Defendant is fined the sum of $10,000.

In NSWLEC matter nos. 2021/78167 and 2021/78170

Pursuant to section 122 of the Fines Act 1996, a half share of each of the fines imposed by the Court under orders 2 and 4 above, respectively, is to be paid to the Prosecutor.
Pursuant to section 257B of the Criminal Procedure Act 1986, the Defendant is to pay the Prosecutor’s costs as agreed or assessed under section 257G of the Criminal Procedure Act 1986.
Pursuant to sections 23B(1)(a) and 23B(3) of the Radiation Control Act 1990, the Defendant is to cause a notice of a minimum size of 12cm x 16cm in the terms of the notice at Annexure A to these orders (Notice) to be published within the first 10 pages of the Sydney Morning Herald, within 28 days of the date of these Orders, and is to provide to the Prosecutor a copy of the entire page of the Sydney Morning Herald on which the Notice was published within 42 days of the date of these Orders.
Pursuant to sections 23B(1)(a) and 23B(3) of the Radiation Control Act 1990, the Defendant is to cause a notice of a minimum size of 12cm x 16cm in the terms of the Notice to be published within the first 10 pages of the Quarterly Newsletter published by the Australasian Radiation Protection Society within 35 days of the date of these Orders, and is to provide to the Prosecutor a copy of the entire page of the Quarterly Newsletter on which the Notice was published within 70 days of the date of these Orders.
Pursuant to sections 23B(1)(a) and 23B(3) of the Radiation Control Act 1990, the Defendant is to cause a notice in the terms of the Notice to be posted on its news and opinion webpage and featured on its homepage, together with a hyperlink directly to the Court’s judgment as published on the New South Wales Caselaw website, within 14 days of the date of these Orders. The Defendant is to retain the inclusion of the Notice on its website for a minimum of 30 days from publication, and is to provide a copy of the webpage displaying the Notice to the Prosecutor within 21 days of the date of these Orders.
Pursuant to sections 23B(1)(a) and 23B(3) of the Radiation Control Act 1990, the Defendant, within 14 days of the date of these Orders, is to post the following text on its Facebook page, together with a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website. The Defendant is to “pin” the post to its Facebook page for 7 days and retain the post for a minimum of 30 days from publication, and is to provide a copy of the Facebook publication to the Prosecutor within 21 days of the date of these Orders:

The University of Sydney pleads guilty to and is convicted of offences against the Radiation Control Act 1990 and the RadiationControl Regulation 2013. See: [insert link to University’s webpage containing the Notice].

The summonses in each of NSWLEC matter nos. 2021/78168 and 2021/78169 are dismissed with no order as to costs.
The exhibits are to be returned.

**********

Annexure A – Print Media Notice

University of Sydney pleads guilty and is convicted for offences against the Radiation Control Act 1990 and the Radiation Control Regulation 2013.

The University of Sydney (“the University”) has pleaded guilty and been convicted by the Land and Environment Court of NSW for offences under section 6(6) of the Radiation ControlAct 1990 (“RC Act”) and clause 34(1) of the RadiationControl Regulation 2013.

The convictions relate to an incident which occurred in January 2019 in which the University engaged a contractor to decommission and dispose of a positron emission tomography scanner which contained a sealed radioactive caesium-137 source (“the Source”). The University was required to obtain consent from the EPA’s Chairperson to dispose of the Source, and to ensure that it was not given to or possessed by any person who did not hold an appropriate licence. It did not do so.

The Source was transported from the University’s premises in Camperdown NSW to a scrap metal yard in Chipping Norton NSW by a company which was not licensed under the RC Act to transport it.

The Source was subsequently sent from Chipping Norton to another scrap metal yard in Hexham NSW, where it was detected via a radiation alarm and reported to the EPA. No actual harm was caused to the environment or any person as a result of the offences and the Source remained in its protective casing at all times. There is no suggestion the offences were intentional or caused by negligence or recklessness.

The University was prosecuted by the EPA and pleaded guilty to the two offences. On 14 April 2022 the Court ordered the University to:

1. pay a fine of $61,000 with 50% of the fine to be paid to the EPA as a moiety;

2. pay the EPA’s legal costs as agreed or assessed; and

3. cause this notice to be published in the Sydney Morning Herald, the ARPS Quarterly Newsletter, on its website and posted on Facebook.

Decision last updated: 20 April 2022

Medium Neutral Citation:	Environment Protection Authority v University of Sydney [2022] NSWLEC 41
Hearing dates:	24 March 2022
Date of orders:	14 April 2022
Decision date:	14 April 2022
Jurisdiction:	Class 5
Before:	Pain J
Decision:	See [76]
Catchwords:	SENTENCING – offence under Radiation Control Act of failing to ensure regulated material not in possession of person with appropriate license – accidental disposal of PET scanner with radiation source – late plea of guilty SENTENCING – offence under Radiation Control Regulation of disposing of regulated material without consent of Environment Protection Authority – accidental disposal of PET scanner with radiation source at tip – late plea of guilty
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23 Criminal Procedure Act 1986 (NSW), ss 257B, 257G Fines Act 1996 (NSW), s 122 Radiation Control Act 1990 (NSW), ss 3, 4, 6, 23B, 13A, 14, 14A, 14B, 19, 24, 33A Radiation Control Regulation 2013 (NSW), cll 3, 6, 34, 36
Cases Cited:	Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60 Environment Protection Authority v Gammasonics Institute for Medical Research Pty Ltd [2019] NSWLEC 190 Environment Protection Authority v Hanna (2018) 235 LGERA 114; [2018] NSWLEC 80 Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312 Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Lowe v The Queen (1984) 154 CLR 606 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 Newcastle City Council v Pace Farm Egg Products [2002] NSWLEC 66 Office of Environment and Heritage v Swansbel (Pastoral) Pty Ltd [2019] NSWLEC 69 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Peel [1971] 1 NSWLR 247 R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Visconti [1982] 2 NSWLR 104 Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 Secretary, Department of Planning and Environment v Boggabri Coal [2014] NSWLEC 154 Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd (2020) 245 LGERA 241; [2020] NSWLEC 125 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen(No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	Environment Protection Authority (Prosecutor) The University of Sydney (Defendant)
Representation:	Counsel: E Muston SC with H El-Hage T Howard SC Solicitors: Environment Protection Authority (Prosecutor) MinterEllison (Defendant)
File Number(s):	2021/78167 2021/78168 2021/78169 2021/78170