Environment Protection Authority v Viva Energy Pty Ltd

[2019] NSWLEC 13

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Environment Protection Authority v Viva Energy Pty Ltd [2019] NSWLEC 13
Hearing dates:	6 and 7 November 2018
Date of orders:	15 March 2019
Decision date:	15 March 2019
Jurisdiction:	Class 5
Before:	Moore J
Decision:	See orders at [171] to [173] For Matter No 358951 and Matter No 358952: The Defendant, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, must cause a notice in the form of Appendix D, at its expense: ... ... to be placed within 28 days of the date of this order in the North Shore Times within the first 5 pages on an odd-numbered page at a minimum size of 7 cm x 26.2 cm; and
Catchwords:	ENVIRONMENTAL OFFENCES - two offences arising from a single pipe failure causing a spill of marine fuel oil into Gore Bay on Sydney Harbour - offences of water pollution and breach of an environment protection licence condition - guilty pleas entered at earliest opportunity - whether deficiencies in clean-up activities constitute a factor of aggravation - aggravation not established - extent of environmental harm - defendant’s subjective factors - licence breach offence more serious than water pollution offence - no need for specific deterrence - need for general deterrence - breaches to be characterised as being toward the top of the lower end of the range - principle of totality engaged as both offences arose from the same course of conduct – payments ordered to be made to the Environmental Trust ENVIRONMENTAL OFFENCES - publication order - no dispute between the parties about the appropriateness of a publication order - disagreement as to terms of proposed notice - determination of appropriate terms - disagreement as to publications in which to publish - appropriate to require defendant’s conduct and results of prosecution to be drawn to a wide business audience - appropriate to include requirement to publish in the Australian Financial Review in addition to other agreed publications
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A and 22 Criminal Procedure Act 1986, s 257G Protection of the Environment Operations Act 1997, ss 3, 64(1) and (2), 120(1), 152, 241, 243(1), 244(2), 248(1) and 250(1)(a) and (e) Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014, cl 19(2) Lane Cove Local Environmental Plan 2009
Cases Cited:	Barbaro v The Queen, Saveio Zirilli v The Queen [2014] 253 CLR 58; [2014] HCA 2 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; [2006] NSWLEC 289 Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 Environment Protection Authority v Barnes (2006) NSWCCA 246 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Environment Protection Authority v Ardent Leisure Ltd [2018] NSWLEC 36 Environment Protection Authority v Collex Proprietary Limited (2001) 115 LGERA 337; [2001] NSWLEC 177 Markarian v R (2005) 229 CLR 357; [2005] HCA 25 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Shoalhaven City Council v Hayes [2018] NSWLEC 65 Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	Environment Protection Authority (Prosecutor) Viva Energy Pty Ltd (Defendant)
Representation:	Counsel: Mr P English, barrister (Prosecutor) Mr C Ireland, barrister (Defendant)   Solicitors: Environment Protection Authority (Prosecutor) Ashurst Australia (Defendant)
File Number(s):	358951 and 358952 of 2017
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The charges

Introduction

Charge 1

Matter 358951 of 2017

Charge 2

Matter 358952 of 2017

Charge 3

Matter 358953 of 2017

Viva’s guilty pleas and the procedural history of the charges

Strict liability offences

The legislation relevant to sentencing

The evidence

Sufficient factual basis for the pleas

Relevant facts

The incident

The response to the incident

The clean-up process

Environmental harm

Introduction

The question of aggravation

Introduction

The Prosecutor’s position on the water pollution offence

Viva’s position on the water pollution offence

The licence condition breach

POEO Act considerations - s 241(1)(b), (c) and (d)

Conclusion on environmental harm and aggravation

The water pollution offence

The licence breach offence

Viva’s subjective factors

Introduction

Viva's previous record (s 21A(3)(e))

Whether Viva is to be regarded as being of good character (s 21A(3)(f))

Whether Viva is unlikely to reoffend (s 21A(3)(g))

Contrition and remorse (s 21A(3)(i))

Viva’s guilty pleas (s 21A(3)(k))

Assistance to the EPA and other authorities (s 21A(3)(m))

Specific deterrence

General deterrence

Ranges in sentencing

Introduction

A general descriptive approach

The Defendant's conduct

Introduction

The Prosecutor's submissions

Mr Ireland’s submissions.

Consideration of characterisation

Comparability for sentencing purposes

The Prosecutor’s costs

The starting penalties

Discounting for the guilty pleas

Totality

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

Ordering a notice

The terms of the notice

Publications to be included

Size of the notices

Positioning of the notice

Provision of copies of the advertisement

Orders

Publication order

Costs

Appendix A

1 Offences against s 120 of the POEO Act only

2 An offence against s 120 of the POEO Act coupled with an offence against cl 19(2) of the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014

3 Offences against both ss 64 and 120 of the POEO Act

4 Offences against s 64 of the POEO Act only

Appendix B

Appendix C

Appendix D

JUDGMENT

Introduction

1. Viva Energy Australia Pty Ltd (Viva) owns and operates a fuel import and storage facility at the Gore Bay Terminal located at Manns Avenue, Greenwich (the premises). The premises are located on approximately 10 hectares of land adjacent to Gore Cove in Sydney Harbour.

2. The premises have been operating as a fuel import and storage facility since 1901. The land on which the premises are located is zoned IN4 Working Waterfront under the Lane Cove Local Environmental Plan 2009 (the LEP). The premises are bordered by land that is zoned R2 Low Density Residential, E2 Environmental Conservation and RE1 Public Recreation under the LEP.

3. Because of the nature of its operations, Viva requires an Environmental Protection Licence to regulate its operations. Viva holds such a licence (Environmental Protection Licence 661) (the EPL), issued to it by the Environment Protection Authority (the EPA). The scheduled activities authorised by the EPL are chemical storage, shipping in bulk and waste storage.

4. The EPL contains one condition that is relevant for consideration in these proceedings. The condition is O2.1. This provision was in the following terms at the time of Viva’s offending conduct:

O2 Maintenance of plant and equipment

O2.1   All plant and equipment installed at the premises or used in connection with the licensed activity:

a)   must be maintained in a proper and efficient condition …

5. It is the breaching of this condition which provides the foundation for Charge 2 to which Viva has pleaded guilty.

The charges

Introduction

6. On 27 November 2017, the EPA filed three Summonses with the Court. Each of the Summonses charged Viva with a separate breach of the Protection of the Environment Operations Act 1997 (the POEO Act).

Charge 1

7. Charge 1 was in the formal terms set out below:

Matter 358951 of 2017

… on or about 30 December 2016, at the Gore Bay Terminal at or near Manns Ave Greenwich in the State of New South Wales (the Premises), it committed an offence against section 120(1) of the Protection of the Environment Operations Act 1997 in that it polluted waters.

8. In the originating Summons for this charge, the basis for this charge was particularised as follows:

Particulars

a.   Waters

Sydney Harbour

b.   Pollutant

Marine Fuel Oil

c.   Manner of breach

The Defendant, being the occupier of the Premises, caused the Pollutant to be placed into an overhead pipe located off the “14/28” fuel oil transfer line, between Valves “542”, “543” and “544” on the Premises (the Spool). The Pollutant flowed through a hole or holes in the Spool and descended from the Spool and into the Waters.

Charge 2

9. Charge 2 was in the formal terms set out below:

Matter 358952 of 2017

… on or about 30 December 2016, at the Gore Bay Terminal at or near Manns Ave Greenwich in the State of New South Wales (the Premises), it committed an offence against section 64(1) of the Protection of the Environment Operations Act 1997 in that it was the holder of a license, a condition of which was contravened by a person.

10. In the originating Summons for this charge, the basis for this charge was particularised as follows:

a.   License

661

b.   License condition contravened

O2 Maintenance of plant and equipment

O2.1 All plant and equipment installed at the premises or used in connection with the licensed activity:

a)   must be maintained in a proper and efficient condition…

c.   Manner of breach

The Defendant failed to maintain the pipe, located off the “14/28” fuel oil transfer line, between Valves “542”, “543” and “544”, which was installed at the Premises, in a condition in which it did not leak marine fuel oil.

As a consequence, marine fuel oil entered Sydney Harbour on 30 December 2016.

Charge 3

11. Charge 3 was in the formal terms set out below:

Matter 358953 of 2017

… on or about 30 December 2016, at the Gore Bay Terminal at or near Manns Ave Greenwich in the State of New South Wales (the Premises), it committed an offence against section 152 of the Protection of the Environment Operations Act 1997 (the Act) by contravening section 148(2) of the Act in that, the Defendant was carrying on an activity, during the course of which a pollution incident occurred so that material harm to the environment was caused or threatened and it failed to immediately notify each relevant authority after it became aware of the incident and to provide all relevant information about the incident.

12. As this third charge was withdrawn, it requires no further elaboration or consideration.

Viva’s guilty pleas and the procedural history of the charges

13. All three charges had their first return date on 9 February 2018 before the List Judge. There are two matters to be observed arising out of this procedural process. First, it is appropriate to note that on this date Viva entered pleas of guilty to each of Charges 1 and 2 earlier set out.

14. It is accepted by the EPA that, for the purposes of s 22 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act), Viva’s plea of guilty was entered at the earliest possible opportunity. The consequences of this, for the sentencing process, are later expressly dealt with.

15. Second, the EPA indicated its intention to withdraw the proceedings relating to Charge 3. On 6 November 2018, the first day of this sentencing hearing, the originating Summons for this charge was formally withdrawn.

Strict liability offences

16. Each of the offences to which Viva has pleaded guilty are strict liability ones. That means that it is sufficient for the EPA to have established a proper factual basis to demonstrate (for Charge 1) that Viva polluted the waters and shoreline of Gore Cove.

17. The existence of the marine fuel oil (MFO) pollution, and the circumstances which gave rise to it, as later set out, self-evidently demonstrate insufficient equipment maintenance in a fashion which provides a proper foundation for Charge 2.

The legislation relevant to sentencing

18. There are two pieces of legislation requiring consideration in these proceedings. The first is the POEO Act, whilst the second is the Sentencing Procedure Act. It is appropriate to set out the legislative elements requiring consideration on sentencing for the two offences to which Viva has entered a guilty plea.

19. First, the objectives of the POEO Act include, in s 3, the following relevant elements:

3   Objects of Act

The objects of this Act are as follows:

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

(b)   …,

(c)   ...,

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

(i)   pollution prevention and cleaner production,

(ii)   …,

(iia)   …,

(iii)   …,

(iv)   …,

(v)   …,

(e)   …,

(f)   …,

(g)   ….

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

241   Matters to be considered in imposing penalty

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

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

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

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

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

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

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

21. There are two other provisions of the POEO Act to be noted. The first is s 248, which expressly empowers the Court to order reimbursement of a regulatory authority (in this case, the EPA) the quantum of reasonably incurred costs and expenses during the investigation of the offending conduct.

22. In these proceedings, Viva has agreed to pay the EPA's investigation costs in the agreed amount of $3,050. As this is an agreed amount, further consideration of this provision does not arise and the orders at the conclusion of this decision reflect that agreement.

23. The final relevant provision of the POEO Act is s 250 Additional Orders. Two elements of this provision (s 250(1)(a) and (e)) are engaged in these proceedings. In general terms, s 250 expands the range of matters that can be ordered when the Court finds that an offence against the POEO Act has been proved (s 243(1)). Orders made pursuant to ss 248 or 250 are in addition to any penalty that may be imposed, or any other action that may be taken, in relation to the offence (s 244(2)). The relevant elements in s 250(1) of the POEO Act are in the following terms:

250   Additional orders

(1)   Orders

The court may do any one or more of the following:

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

(b)   …,

(c)   …,

(d)   …,

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

(f)   …,

(g)   …,

(h)   ….

24. Although there was no contest, as noted above, concerning the terms of the order to be made pursuant to s 248 of the POEO Act, that was not the position with respect to a publication order pursuant to s 250(1)(a) of the Act.

25. It is to be observed, in addition, that the Prosecutor sought that the amount of any penalty considered appropriate should be ordered to be paid to the Environmental Trust pursuant to s 250(1)(e), a position to which Viva raised no objection.

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

3A   Purposes of sentencing

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

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

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

(c)   to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

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

(f)   to denounce the conduct of the offender,

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

27. The second engaged here is s 21A of this Act. This provision sets out a range of topics that potentially require consideration as aggravating or mitigating circumstances in the context of any particular offence. It is not necessary, at this point, to set out the totality of this provision, but it will be necessary to deal with the relevant elements of it in my subsequent sentencing analysis. However, there are two observations to be made concerning this provision.

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

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

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

22   Guilty plea to be taken into account

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

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

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

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

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

(1A)   ...

(2)   ...

(3)   ...

(4)   ...

The evidence

31. The evidence was largely documentary. It comprised a Statement of Agreed Facts (the general facts) and a Statement of Agreed Facts concerning the clean-up of the spilt MFO (the clean-up facts). Each of these documents was supported by a range of photographic and other documentary evidence. The folder containing the general facts, and its supporting documentation and photographs, became Exhibit A, whilst that for the clean-up facts became Exhibit B. This material will later be referred to, as appropriate.

32. An affidavit from Ms Julie Seymour, Viva’s Area Manager Southern, was also read. Ms Seymour was required for cross-examination and her evidence is also referred to, as appropriate, later in this judgment.

Sufficient factual basis for the pleas

33. As earlier noted, the statement setting out the general facts, and that setting out the clean-up facts, were settled by the legal representatives of the parties prior to the commencement of the hearing. I have carefully read these and the supporting documentation. I am satisfied that this material contains a proper factual basis to support convictions on each of the charges to which Viva has pleaded guilty.

33. I am also specifically satisfied that no defence is available to Viva pursuant to s 64(2) of the POEO Act for the contravention of licence condition charge to which a guilty plea has been entered.

Relevant facts

The incident

35. At or around 3.26 pm on 30 December 2016, MFO leaked from a subsidiary pipe (known as a spool) within the pipe network on the premises. This occurred during transfer of MFO from a tank to a bunker barge docked at Wharf 2. The spool was located approximately 11 metres from the waters of Gore Cove, in an unbunded area above a concrete deck that was bordered, on the water side, by a concrete kerb.

36. The leak occurred through two small holes in the spool, caused by corrosion. At the time of the incident, the spool was encapsulated by insulation that is known as ‘lagging’, such that the surface of the spool itself was not visible. When the lagging was removed from the spool after the incident, the point of failure on the spool was identified. Based on a visual inspection of the condition of the outside surface of the spool, Viva's corporate representative (Mr Crowden) acknowledged (agreed facts at (66)) that the spool was no longer fit-for-purpose and that it had not been maintained for its intended purpose. Viva had not tested or carried out maintenance work on the spool, nor inspected the surface of the spool prior to the incident.

37. Some of the MFO that leaked from the spool flowed to the concrete kerb which bordered the concrete deck. The concrete kerb was not designed for containment of oil spills and MFO entered Gore Cove through at least two holes in the concrete kerb.

38. Some of the MFO that leaked from the spool flowed into an “oily water drain”. Although the oily water drain was not designed to contain oil spills, an amount of MFO (not possible to quantify) was contained on site in the oily water drain and did not reach the marine environment.

39. The precise volume of MFO that spilled into the water is not known. Viva estimates that the volume of MFO that leaked from the spool was approximately 800 litres and, of this volume, an estimated 500 litres of MFO entered the waters of Gore Cove. There is no evidence that the MFO that spilled into the waters of Gore Cove travelled into the wider waters of Sydney Harbour.

40. The spill affected approximately 350 metres of the shoreline of the premises. The shoreline was comprised predominantly of two shoreline types: vertical, concrete seawall and man-made rock seawall/rocky foreshores, with approximately 100 metres zoned E2 Environmental Conservation and 250 metres zoned IN4 Working Waterfront.

41. At the time of the incident, the lower levels of the intertidal zone of the shoreline within the spill area were colonised by oysters. The shoreline also supported an assemblage of intertidal organisms, including whelks, limpets, crabs, sea snails and barnacles, along with various types of algae. The waters of the spill area also comprised fish habitat.

The response to the incident

42. In response to the incident, various activities were carried out to notify appropriate authorities and contain and control the leak.

43. At about 3.26 pm on 30 December 2016, the first Viva employee saw a stream of MFO coming from the spool onto the concrete deck. He also observed a puddle of MFO on the shore-side of the concrete deck and that some MFO had entered the waters of Gore Cove. He radioed Viva’s Terminal Controller, notifying him of the leak, and shut down the relevant pump (Pump P6014A). The first Viva employee subsequently closed Valve 544 to isolate the spool from the 14/28 line.

44. At 3.34 pm on 30 December 2016, Viva notified the Ports Authority of New South Wales of the incident. Viva formally notified Fire and Rescue NSW of the incident at 5.46 pm. The EPA was formally notified by Viva, via the EPA Environment Line, at around 5.54 pm. Lane Cove Council was notified of the incident by Viva on 3 January 2017. Viva formally notified SafeWork NSW of the Incident on around 10 January 2017. Viva did not formally notify the Ministry of Health of the incident.

45. Shortly after the spill was first observed, a second Viva employee deployed a 200-metre-long boom in the water with the assistance of one of the crew of the bunker barge, with the objective of containing the extent of the spill in Gore Cove.

46. At about 4.15 pm, a representative of the Ports Authority of New South Wales assisted with containment of the spill by deploying a 360-metre-long boom (known as the Gore Cove boom) at up to about 20 to 30 metres from shore. A further 60 metres of boom was subsequently deployed by Ports Authority of New South Wales’ staff to help seal the Gore Cove boom at the northern end to Wharf 6.

47. Granular absorbent material was placed along the concrete kerb on the premises and over the concrete deck area near the spool. Absorbent padding was placed inside and adjacent to the booms and along the shoreline and infrastructure to absorb the MFO.

48. From about 5.45 pm, Cleanaway crews, earlier summoned by Viva’s Operations Manager, began arriving on site to assist with the clean-up. At around 8.00 pm, Cleanaway staff brought a vacuum tanker to the premises to skim the MFO from the surface of the boomed area. Cleanaway staff attended the site again on the following three days and over the course of January 2017.

The clean-up process

49. A verbal Clean-Up Direction was issued by the EPA to Viva on 4 January 2017. It “required Viva to use a high-pressure Gerni to remove as much of the MFO as reasonably practical from concrete structures and to use marine water to wash the rocky shoreline until the water ran clear off it” ((14) of the clean-up facts).

50. A written Clean-Up Notice was issued by the EPA to Viva on 6 January 2017. It contained a number of provisions concerning how the clean-up operation was to be undertaken. As there is a limited contest between Viva and the EPA about how the clean-up operation unfolded over time, it is appropriate to note a number of aspects contained in the 6 January 2017 Clean-Up Notice as setting out the EPA's first methodology requirements for the clean-up operation. These were in the following terms:

1.   The licensee must use a high pressure gurney to remove as much oil as reasonably practical from the concrete structures impacted by the pollution incident.

2.   The licensee must use marine water to wash all of the rocky shoreline impacted by the pollution incident until the water runs clear off it.

3.   By no later than Friday 13 January 2017 the licensee must nominate in writing to the EPA, a prioritised list of two suitably qualified and experienced ecological practitioners to undertake the following work:

•   Ascertain the nature and extent of the pollution incident on the intertidal ecology on the shoreline;

•   Assess the recovery of the intertidal ecology on the shoreline from the pollution incident. This recovery should be compared to a minimum of two suitable shoreline reference sites that were not affected by the pollution incident;

•   Make recommendations regarding the need for further clean up action; and

•   Submit weekly written reports to the EPA on clean-up progress. Reports are to be provided by email to [email protected].

51. On 11 January 2017, the EPA issued a revised Clean-Up Notice. This notice withdrew several terms of the earlier notice and replaced them with different operative provisions. The relevant elements of this second notice were in the following terms:

The DIRECTION TO TAKE CLEAN-UP ACTION which states that:

1.   The licensee must use a high pressure gurney to remove as much oil as reasonably practical from the concrete structures impacted by the pollution incident.

2.   The licensee must use marine water to wash all of the rocky shoreline impacted by the pollution incident until the water runs clear off it.

Is replaced by:

1.   CONCRETE STRUCTURES

1a.   ABOVE OYSTER LINE The licensee must use a high pressure gurney directing marine water at ambient temperature to remove as much oil as is reasonably practical from concrete structures that do not contain oyster communities.

1b.   OYSTER LINE AND BELOW use low pressure flushing units existing fire monitor systems or shoreline flushing units using marine water at ambient temperature to wash down the surfaces to remove less viscous oil to the point at which remaining residues are not mobile or able to inhibit the potential for recovery through toxic or smothering effects.

1c.   While some staining of concrete structures will be inevitable washing should continue until no oil on the surface is able to rub-off on people, boats or infrastructure.

2.   BOULDER FIELDS AND COBBLE STONES

2a.   Rocks, cobblestones or boulders that can be carefully manually moved to allow low pressure flushing of residual oil must be done so in a manner that does not disturb surviving biota. Any built up oil to be captured within the boomed area for immediate removal from the waters surface by skimmers and absorbent material.

No oil or residues are permitted on the surface of the sea and any oil contamination below the surface must be non-toxic to all life stages of biota.

No changes to Clause 3 of Clean-up Notice 154813.

52. A “Clean-Up Plan”, dated 28 February 2017, was prepared by the Office of Environment and Heritage and provided to Viva. The Clean-Up Plan defined quantitative end-points for the clean-up and provided guidance with respect to the objectives and considerations for cleaning. The end-point for each segment of the shoreline was, “No oil likely to inhibit recruitment and recovery - defined as only a very thin cover of oil and substratum clearly visible” and the end-point for the water in Gore Cove was, “No oil visible on water surface”.

53. The clean-up process then continued until 21 July 2017, this being the date of the final clean-up report.

54. There are two matters to be observed about the clean-up activities undertaken between the time of the spill, in December 2016, and the completion of the clean-up process, in July 2017.

55. First, there was regular contact between Viva and the EPA concerning progress of the clean-up ((31) of the clean-up facts). Second, there were two detailed reports authored by Dr Scanes, the Office of Environment and Heritage’s Marine Ecologist. These reports, dated 28 February 2017 and 30 May 2017, covered:

• Clean-up progress;

• Identifying inadequacies in outcomes;

• Identifying areas where additional work needed to be undertaken;

• Proposed changes to clean-up methods (including changes necessary because the composition of the MFO residue changed over time because of weathering); and

• Outlining more precise required outcomes for various aspects of the clean-up operation.

56. Dr Scanes’ 28 February 2017 report made note of oil coverage on the affected shoreline, structures and biological assemblages, particularly the oysters above sea level at low tide. Of the oyster band, one metre above sea level, the upper 300-millimetre band of oysters had 80%-100% coverage of one millimetre of oil and estimated mortality of 20%-40%. Below this band, oysters showed minimal oil cover and less than 20% mortality. Dr Scanes commented that the oil observed on the oysters and underneath small rocks was, at that time, mobile or, in the case of the rocks, almost liquid. Empty oyster and snail shells were observed, as was very little sheen on the water surface.

57. The 28 February 2017 report acknowledged that the use of low-pressure salt water had limited effectiveness and recommended the trialling of pressure‑cleaning with ambient marine water at moderate pressure on the 300-millimetre band of heavily oiled oysters, high-pressure cleaning above the oyster band and no pressure cleaning below the oyster band. The report also recommended that moveable rocks be turned over and cleaned on all sides.

58. On 30 May 2017, Dr Scanes concluded that there was no observable change to the amount of oil contamination above the oyster line since 28 February 2017 and that, in the intervening period, the oil on the shoreline had weathered significantly. The weathered oil coating ranged in thickness from one-to-two millimetres, including coverage on surfaces in high intertidal/supratidal and mid-to-upper tide levels. Dr Scanes anticipated that the cleaning carried out had taken place from the landward (south-west) side of the shore, as large areas of seaward-facing surfaces remained heavily oiled. Moveable rocks had weathered oil of up to two millimetres on the underside. Empty oyster shells and indicators of mortality were observed.

59. Dr Scanes recommended the continued use of pressure-cleaning in conjunction with a shoreline sorbent boom. In relation to moveable rocks, Dr Scanes advised that the cleaning method be adapted to pressure-washing and use of sorbents by hand to remove the coating of weathered oil.

60. On 18 August 2017, the EPA and the New South Wales Office of Environment and Heritage completed, and signed-off on, a “Foreshore Inspection and Sign‑Off Report”, dated 21 July 2017, indicating that satisfactory clean-up of the MFO had been achieved.

Environmental harm

Introduction

61. There are a number of matters which required to be considered in my assessment of the environmental harm caused by the spill of the MFO. The first of these is the extent of the spill and its immediate environmental consequences along the foreshore of Gore Cove. The second is whether or not, in the clean-up process which followed, there were aspects of the operation that can be regarded as being carried out in a less than satisfactory fashion. If that was potentially to be the position, was that established beyond reasonable doubt (that being the necessary test to give rise to a factor of aggravation for these sentencing purposes)?

62. Section 21A(2)(g) of the Sentencing Procedure Act requires consideration of whether or not the damage caused by the offence was substantial; “damage”, in this context, meaning “environmental harm”. This also finds its place in s 241(1)(a) of the POEO Act as a factor to be taken into account in sentencing for an offence against that Act as is here the case with Charges 1 and 2.

63. The difference between the two statutory regimes is that, for the purposes of s 21A(2)(g) of the Sentencing Procedure Act, the damage (environmental harm) has to be proved by the Prosecutor to be substantial and so proved beyond reasonable doubt for a factor of aggravation to be triggered. On the other hand, for the purposes of s 241 of the POEO Act, the extent of environmental harm caused, or likely to be caused, is to be taken into consideration in assessing the appropriate penalty but does not constitute a separate factor of aggravation.

The question of aggravation

Introduction

64. There was a dispute between the Prosecutor and Viva as to whether, for each of the offences to which Viva has pleaded guilty, the offending conduct should be regarded as aggravated. For each of the offences, if I am satisfied that, on the facts of each offence as submitted by the Prosecutor, either or both of them should be regarded as being aggravated offending conduct, this becomes engaged as a factor weighing in favour of the imposition of a more severe penalty than might otherwise be occasioned.

The Prosecutor’s position on the water pollution offence

65. The Prosecutor’s submissions on this point can be understood from (75) of the Prosecutor’s written submissions on penalty. This submission element was in the following terms:

75. Given the following factors, it is submitted that the extent of the environmental harm was significant and “substantial” for the purposes of CSP Act s. 21A(2)(g) (see EPA v Custom Chemicals Pty Ltd [2016] NSWLEC 146 at [67]; EPA v Sydney Water Corporation [2015] NSWLEC 80 at [62]):

(a)   The hazardous and environmentally harmful nature of MFO;

(b)   The affected shoreline being colonised by oysters and supporting an assemblage of intertidal organisms including whelks, limpets, crabs, sea snails and barnacles along with various types of algae, and the waters of the Spill Area comprising fish habitat;

(c)   Through the smearing of MFO, the Incident affecting approximately 350 metres of shoreline within Gore Bay;

(d)   The clean-up operation lasting seven months and costing over $680,000;

(e)   The actual environmental harm caused to the waters and the shoreline in and around Gore Bay and to the local oyster population;

(f)   The likelihood that the Incident and the subsequent cleaning methods, in particular the use of high pressure hot water, caused harm to mobile invertebrate organisms;

(g)   The Incident causing a lower abundance within the Spill Area of mobile organisms such as limpets and snails compared with four reference locations.

Viva’s position on the water pollution offence

66. In this context, it is to be noted that the submissions on behalf of Viva, as to how the harm to the environment can be characterised, commenced with a general introductory paragraph, (52), in the following terms:

52   Viva Energy submits that there was limited actual environmental harm caused by the incident, mainly to the oysters forming an encrustation, as in many harbour areas, to exposed areas of man-made seawall and the cobbles around the foreshore boundary of this intensively industrialised site. Importantly, there is no suggestion the encrusting oysters were suitable for human consumption and it would be surprising if they were free from microbial and pollutant contamination simply as a result of their location in a heavily used working harbour. The oyster impact took place in a confined area of industrialised man-made shoreline.

67. The specific “key facts” in relation to environmental harm relied upon by Viva were set out in (55) of the submissions in the following terms (references to the general facts or clean-up facts omitted):

55   The following are the key facts in relation to environmental harm made out to this standard in the evidence:

(a)   There is no evidence the MFO left Gore Bay, and but for a small amount of sheen outside the boomed area on 4 January 2017, it was contained entirely within that secure area;

(b)   Only 350m of shoreline of the Premises was affected, 250m of which was zoned IN4 Working Waterfront;

(c)   The Spill Area comprises a industrialised area where some shore-side Terminal assets are located, and where ships and other marine vessels (including but not limited to oil tankers, bunker barges, tug boats, ferries, naval vessels and commercial charter vessels) manoeuvre through, moor at and attend the Premises to undertake a variety of activities (including but not limited to fuel discharge and refuel activities, maintenance operations, unload/reload of stores, tug boat operations and vessel departure related movements);

(d)   Impacts from human activity in the harbour have significantly changed the ecology of the system and resulted in contaminated sediments, extensive habitat modifications, resource extraction and non-indigenous species. Oysters in Port Jackson contain concentrations of metals that are associated with cellular stress;

(e)   There is a Council stormwater discharge point within the Premises seaward boundary, one south of the seaward boundary, and one north of the Premises northern boundary, which discharge contaminants;

(f)   There was a smear of oil on the shoreline of the Premises within the Spill Area, including over a proportion of oysters, limpets and mobile organisms;

(g)   A scattered rainbow coloured sheen was observed on the water within the Spill Area on 2, 4, 5 and 12 January 2017;

(h)   The clean-up direction issued to Viva Energy on 11 January 2017 (which was different to the direction issued on 4 January 2017 that specifically required Viva Energy to use a high pressure Gerni to remove as much MFO as reasonably practicable from the concrete structures and to use marine water to wash the rocky shoreline until the water ran clear of it), itself impeded the progress of the clean-up by restricting the high pressure hosing (with a Gerni unit) to above the so called “oyster line”, and restricting clean up techniques below the “oyster line” to low pressure flushing units, and by requiring use of ambient temperature marine water (as opposed to warmer water capable of rendering the oil more mobile);

(i)   It was only on 28 February 2017 that the EPA’s newly styled “Clean-Up Plan” allowed the use of high pressure heated water, but even then only in circumstances where other clean up methods had already been trialled and proven to be unsuccessful;

(j)   The actual harm to the environment occasioned to the waters and shoreline of Gore Bay was temporary;

(k)   is no evidence of actual environmental harm to mobile marine species such as fish or sea floor dwelling species such as sea stars;

(l)   Environmental monitoring undertaken in the 15 months following the incident (in March 2017, October 2017 and March 2018) demonstrated no clear differences between species richness within reference areas within the Spill Area and background locations;

(m)   It is likely that the incident and the subsequent cleaning methods, as directed by the EPA, together caused temporary harm to mobile invertebrate organisms;

(n)   Given the oyster habitat on the shoreline has now been cleaned of oil, recovery will occur;

(o)   impacts resulting from the oil in the Spill Area are not likely to be permanent and recovery can be expected, while the timing cannot be reliably predicted.

68. Mr Ireland’s written submissions summarised the position advanced for Viva on the extent of the actual environmental harm as follows:

56 In summary, the actual environmental harm caused by the incident is properly categorised as "very low". In the medium to long term, there will be zero residual environmental impact, as recovery of the shoreline will occur: Agreed Facts, [56], [60].

69. Viva also submitted that the shifting nature of the EPA's requirements for clean-up of the MFO should also weigh against the finding of any aggravation as arising out of the matters in Dr Scanes’ reports which could be taken to have reflected on the adequacy of the clean-up operation. Mr Ireland submitted:

75   Viva Energy submits that the pollution prevention methods prescribed by the EPA required refinement over time as a result of Viva Energy's regular reporting and the EPA's inspections revealing to the EPA that the methods imposed on Viva Energy for carrying out clean-up were not proving to be effective and efficient in light of the nature of MFO.

76   This can be evidenced by the fact that there was a shift in the prescribed pollution prevention methods for cleaning different parts of the shoreline as the clean-up progressed.

70. Following on from these paragraphs, Mr Ireland set out instances arising from the February and May 2017 reports that demonstrated, he said, how the evolution in the EPA-mandated clean-up methodology had impacted on the ability of Viva to address the consequences of the spill of the MFO.

The licence condition breach

71. The Prosecutor submitted that the licence condition breach should be regarded as more serious than that of the water pollution breach. This submission was made in the Prosecutor’s written submissions in the following terms:

76 The failure to maintain the Spool at the Premises in a proper and efficient condition caused the water pollution incident. The s. 64 offence accordingly caused the same extent of environmental harm as that caused by the water pollution offence.

77   In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289, Preston CJ held at [99] that “if contravention of a licence condition results in harm to the environment, the contravention is thereby an aggravated offence”. This principle has application in the present case.

72. As can be seen, the Prosecutor submitted that, separately, the licence offence should be regarded as having been committed in circumstances of aggravation.

POEO Act considerations - s 241(1)(b), (c) and (d)

73. I am required to consider, by these provisions, the practical measures that may be taken to prevent, control, abate or mitigate the environmental harm caused, or likely to be caused, to the environment by the commission of the offence. The agreed facts set out below records the following concerning Viva’s activities with respect to its pipeline network, generally, and the risks associated with failure of a pipeline because of “corrosion under insulation” causing a failure:

20.   While Viva's maintenance program involves operational surveillance of Premises plant and equipment, the surveillance conducted by Viva's terminal operators provided no information on the condition of the Spool. This was because the surface of the Spool was not visible due to the lagging.

21.   Corrosion of pipes beneath lagging was known in the industry and to Viva at the time of the Incident as "CUI" or corrosion under insulation. Visual inspection of lagged pipes is not in itself an adequate method for assessing whether underlying pipes are affected by corrosion.

22.   In late 2014, Viva began a program of removing lagging from pipelines on the Premises on a priority basis depending on a pipe specific and location based risk assessment. Following lagging removal, pipelines were painted with three layers of paint to minimise the risk of corrosion. Where operationally possible, lagging was not reinstated. However, this had not been done in relation to the Spool before the Incident.

23.   Prior to the Incident, no operator from Viva had logged an issue with the Terminal Controller in respect of the condition of the Spool or the condition of the lagging on the Spool.

24.   In a formal interview, Viva's corporate representative acknowledged that any pipeline at the Premises was a "safety critical piece of equipment", in that if a pipeline was to fail there would be potential for a "serious incident".

74. I have set out, later in my consideration of Viva’s subjective factors, the further actions being undertaken by Viva to ensure that an incident of this nature does not recur. I must also have regard to the fact that Viva had been undertaking a program which, in the fullness of time, would have resulted in the discovery of the corrosion to this pipeline (had the pipe’s failure not intervened to bring forward such a discovery).

75. I am also satisfied that Viva could reasonably have foreseen the consequences of the failure of a pipeline and, thus, the environmental harm that was likely to arise if such a failure took place. In addition, there is no doubt that Viva had full control over all elements of its operations (including the undertaking of prophylactic activity to prevent corrosion breaches of any elements of its pipeline network) and, thus, had full control over the cause of the failure giving rise to both the pollution incident and the breach of the licence condition.

Conclusion on environmental harm and aggravation

The water pollution offence

76. Although the clean-up measures needed to address the spill of the MFO were time-consuming and varied over that time period for several reasons (changes required by the EPA during the initial period and subsequently required, as dealt with by Dr Scanes in response to the efficacy of the clean-up methodology as it evolved), nonetheless, it is the position that, by the time the EPA was satisfied that the clean-up had been completed effectively (July 2017 as the concluding time for the clean-up activities), the position had been reached where there was not likely to be any ongoing impact on the environment of any significance and the initial impacts had been cleaned up.

77. Although Dr Scanes concluded, in his second report, that additional work needed to be done to remove the MFO from the underside of loose rocks as it had become weathered (whilst, at the time of his first report, the MFO at such locations was more mobile and more easily removed), there was no evidence in these sentencing proceedings that could satisfy me, beyond reasonable doubt, that this aspect of the clean-up could be regarded as a factor of aggravation. In this context, the assertion above, in the Prosecutor’s submissions at (75)(f) as to the “likelihood” of a particular element of harm, cannot lead to a conclusion supporting a finding of aggravation. The concept of “likelihood” cannot give rise to a finding adverse to Viva beyond reasonable doubt. The use of the word “likelihood” is one addressing a “balance of probabilities” proposition, a propositional basis not potentially engaged for the purposes of s 21A(2)(a) of the Sentencing Procedure Act.

78. Similarly, the time for, and cost of, the clean-up operation need to be viewed in the context of the two reports prepared by Dr Scanes. Although the clean‑up operation was, as a matter of fact, a time-consuming one, and one which occurred at considerable cost to Viva, these are indicators of the complexity of the operation and do not automatically reflect the extent of the environmental harm occasioned by the spill of the MFO at Gore Cove.

79. In these circumstances, I am satisfied that the environmental harm actually occasioned at Gore Cove, although having an impact of moderate significance on the foreshore aquatic life in the immediate aftermath of the MFO spill and, to varying degrees, throughout the clean-up period, was resolved after the clean-up had concluded to the satisfaction of the EPA. Although this harm was foreseeable and Viva’s lagging-removal program had not reached the failed spool and thus prevented the spill from occurring, none of this elevates the environmental harm matters requiring consideration to warrant being regarded as a factor of aggravation.

80. Although I am satisfied that some of the aspects of Viva's clean-up may have been less than optimal and may have resulted in an extension of the time and cost necessary to achieve the outcome upon which sign-off was given in July 2017, I am unable to be satisfied, beyond reasonable doubt, that these circumstances comprised a factor of aggravation for sentencing purposes.

81. In forming this opinion, I have also had regard to the fact that, although the changes in clean-up methodology mandated by the EPA may have, at least to some extent, arisen as a result of deficiencies in Viva’s clean-up efforts, nonetheless, it has not been established, beyond reasonable doubt, that all of the methodological changes following from Dr Scanes’ reports were purely in response to a lack of diligence in Viva’s clean-up activities (as opposed to a lack of effectiveness of those clean-up activities being carried out pursuant to EPA directives).

The licence breach offence

82. The element of Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; [2006] NSWLEC 289 (Ballina Shire Council) at [99], cited by the Prosecutor, finds its express genesis in the decision of Bignold J in Environment Protection Authority v Collex Proprietary Limited (2001) 115 LGERA 337; [2001] NSWLEC 177, at [9], where his Honour said that, because:

... the offence charged (namely a contravention of a condition of Licence) does not involve any element of causing harm to the environment (eg by virtue of water pollution), if the contravention of the Licence Condition results in harm to the environment, the contravention is thereby an aggravated offence ...

83. The necessary result which follows from these earlier decisions is that, for sentencing purposes, the breach of the licence condition, having caused environmental harm, is to be regarded as having been committed in circumstances of aggravation.

84. For the reasons explained above, I am satisfied that the breach of the licence condition, as the environmental harm was occasioned as a consequence of that breach, does separately require to be taken into account as a factor of aggravation and thus elevate the licence condition breach above that of the water pollution breach.

85. This, of course, does not negate the necessity to have regard to the extent of the environmental harm occasioned, but merely to shift the sentencing emphasis, to some extent, from the water pollution offence to that of the licence breach offence.

Viva’s subjective factors

Introduction

86. I have earlier noted that there is a range of factors set out in s 21A(2) of the Sentencing Procedure Act that require to be taken into account (if relevant) in undertaking my assessment of the subjective factors concerning Viva in determining the appropriate sentence to impose. I now turn to addressing the relevant factors.

Viva's previous record (s 21A(3)(e))

87. In 1999, Viva, in its then corporate incarnation as a subsidiary of Shell Australia Pty Ltd, was convicted and fined $20,000 for the spill of 2,300 litres of unleaded petrol at a service station located at Ocean Beach Road, Woy Woy (the general facts at (79)). It is to be observed that Viva has no convictions for environmental offences at its Gore Cove facility, nor has it had any other environmental convictions subsequent to those 1999 proceedings.

88. Whilst this single conviction does not in itself warrant any adverse inferences against Viva, nonetheless, it does mean that, in my instinctive synthesis undertaken to assess what is the appropriate starting penalty for each offence, it is not appropriate for me to treat Viva as if it had an entirely unblemished record. This factor, therefore, is to be regarded as neutral in my sentencing process as a consequence of the age of the 1999 conviction.

Whether Viva is to be regarded as being of good character (s 21A(3)(f))

89. In Ms Seymour's affidavit, she sets out, between (17) and (24), a wide range of community support activities undertaken by Viva. These community support activities demonstrate considerable financial commitment by Viva to supporting projects and programs that are communally beneficial. These activities include those in the local community where the Gore Bay Terminal is located and, more broadly, to supporting disadvantaged groups in our society.

90. It is unnecessary to set out, extensively, the detail of these projects. I have been provided with sufficient detail, in Ms Seymour's affidavit, to be satisfied that I should conclude that Viva should be regarded as being of good corporate character.

Whether Viva is unlikely to reoffend (s 21A(3)(g))

91. The general facts, at (75) and (76), had set out a short summary of a program that Viva had been undertaking concerning its pipeline network at the premises. These paragraphs recorded that:

75   In late 2014, Viva began a program of removing lagging from pipelines on the Premises. Following lagging removal, pipelines were painted with three layers of paint to minimise the risk of corrosion. Where operationally possible, lagging was not reinstated. This program prioritised what Viva assessed as higher risk pipelines, as described by Mr Crowden in his formal interview:

"So we had a program underway to remove lagging on piping that had lagging on them, that program was structured in a prioritised way associated with lines over water, height, lines over concrete and then ultimately lines within bunded areas, also started looking at big diameter pipelines and also lines that were at the highest pressure and we were working on a program to remove that lagging, paint those lines and where possible keep lagging off …"

This had not been done on the Spool at the time of the incident.

76   With particular pipelines on the Premises, Viva had done ultrasonic thickness testing (a screening tool used to identify areas with wall thickness issues that need more specific examination). Long range ultrasonic thickness testing is able to identify defects or holes in pipes without having to remove lagging. Ultrasonic thickness testing was typically not done on small spools and was not done on the Spool.

92. Further detail was provided in Ms Seymour's affidavit, from (6) to (13), concerning this program. It is unnecessary to repeat that material.

93. However, in her affidavit, from (14) to (16), she set out the steps taken by Viva to ensure that there would be no future incident of the nature that gave rise to these prosecutions. Her affidavit said:

Measures taken by Viva Energy to prevent re-occurrence

14   Since the incident occurred, Viva Energy has taken measures to prevent a re-occurrence of a similar incident in the future. The measures taken by Viva Energy include:

a.   the de-lagging program which was commenced in April 2015 and was completed in April 2017;

b.   where any lagging has needed to be re-instated on pipes, it has been re-instated such that it is open at the bottom, allowing any water to drain out thus reducing the risk of corrosion under insulation;

c.   testing and inspection of all pipework that had not otherwise recently been tested was undertaken. Process piping was separated into 12 discreet pipeline systems, two Wharf Areas, stormwater piping, five tank farm systems, and transfer pump house zones. Each pipeline within these systems was then assigned specific line numbers and identifiers noted on P&IDs (Piping & Instrumentation Diagrams), also known as PEFS, along with respective pipe support numbers (1-134) to document the location and relevant findings. In the case of pipes sitting direct on steel beams that were not able to be accessed via conventional ultrasonic thickness testing, an Electro Magnetic Acoustic Transducer or EMAT test unit was utilised to gain an understanding of the condition of the pipe;

d.   maintenance work was undertaken to the concrete kerb and concrete deck including sealing along the entire Gore Bay curbing infrastructure water frontage;

e.   maintenance procedures at the Premises have been improved and more effectively defined in order that they are more prescriptive:

i.   PEFS of the MFO system have been amended such that all connected components in a system are broken down and clearly identified so that all connected components are assessed before a work order can be closed off; and

ii.   over a five year period, all MFO assets at the Premises are to be routinely inspected.

f.   the continuation and reinforcement of daily operational surveillance by Viva Energy’s Terminal Operators who perform the outdoor operational work at the Premises. Terminal operators are trained, when carrying out their daily outdoor activities, to constantly undertake visual, auditory and olfactory surveillance of the Premises to identify any abnormalities. Where abnormalities are detected, they are required to be reported to the Terminal Controller, recorded in one of the Premises’ electronic maintenance databases (known as “JDE or “MYOSH”, and prior to June 2018, “SAP”) and subsequently remedied by Viva Energy’s Maintenance and Integrity team; and

g.   the continuation of live spill response exercises at the Premises in collaboration with Ports and/or Fire and Rescue NSW. Prior to the incident such exercises were carried out in November 2014, December 2015 and March 2016. Records of each of each of these spill exercises are annexed to this affidavit and marked “JMS-2”, “JMS-3” and “JMS-4”, respectively. Following the incident further live spill response exercises were conducted at the Premises also in collaboration with NSW Police (including the Marine Area Command) and the Australian Marine Oil Spill Centre in June 2017 and July 2018. Records of these spill exercises are annexed to this affidavit and marked “JMS-5” and “JMS-6”, respectively.

15   I consider that the above measures will be effective in preventing any similar incident from occurring at the Premises. I hold this view because:

a.   in the four years since ownership of the Premises changed we have substantially diminished the possibility of pipeline leakage by undertaking the de-lagging program and instituting more prescriptive maintenance procedures. The work that has been done will facilitate the early detection of corrosion in pipelines;

b.   we have maintained and reinforced the strong culture and work practice of daily operational surveillance by Viva Energy’s Terminal Operators; and

c.   we have maintained and continued our practice of having periodic live spill response exercises with the key Government emergency response agencies. Early containment of spills is essential to minimising environmental impact. That is the reason why we undertake live spill exercises.

16   The Incident is the only discharge of petroleum product to water which has occurred at the Premises since ownership of the Premises changed in August 2014. As a result of the measures that Viva Energy has implemented, specifically the de-lagging program, a failure of a pipeline in the complex network of pipelines at the Premises should not occur again.

94. I am satisfied that the active response by Viva in the steps which it has taken that are designed to ensure that there is no foreseeable possibility of a recurrence of this offence, when coupled with the heightened corporate awareness that will result from its conviction on these two charges, means that it is unlikely that Viva will reoffend.

Contrition and remorse (s 21A(3)(i))

95. In Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419, Preston CJ explained why contrition and remorse are more readily to be shown by an offender "taking actions" rather than offering "smooth apologies" through legal representatives (at [203]). His Honour identified four forms of actions that would demonstrate genuine contrition and remorse (at [204]-[214]). These are:

1. first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence (at [204]);

2. second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities (at [210]);

3. third, taking action to address the cause of the offence (at [212]); and

4. fourth, the personal appearance of corporate executives in court to give personal evidence of the defendant's regret and a plan of action to avoid repetition of the offence (at [214]).

96. It is in this context that I turn to consider Viva’s position in these proceedings.

97. As to the first of the above listed matters, I have earlier set out a description of the clean-up activities undertaken by Viva to address the MFO pollution that it had caused. Whilst there can be no doubt that the initial response should be regarded as prompt and that the totality of the clean-up activities, over the lengthy time during which they were undertaken, has ultimately been effective, it is also obvious that (although not to a sufficient extent as to constitute a factor of aggravation) Viva’s clean-up activities could have been conducted in a more efficient fashion. In this regard, however, I do not consider that has any significance as to whether Viva has demonstrated genuine contrition and remorse.

98. As to the second of the above listed matters, the MFO spill was initially observed at 3.26 pm on 30 December 2016, and the EPA was notified of the incident by Viva a little over two hours later (as noted earlier at [35] and [44]). This prompt reporting of the incident, coupled with the activities of Viva employees in seeking to contain the extent of the spill, in the immediate aftermath of its observation, is to be regarded as a positive aspect of Viva’s post spill conduct.

99. As to the third of the above listed matters, the evidence discloses that Viva has undertaken significant on-site activities in order to eliminate, as much as is possible, any possibility of recurrence of an event such as that which has given rise to these charges.

100. Ms Seymour's evidence concerning these steps was set out above in the context of my consideration of whether or not Viva was likely to reoffend.

101. As to the fourth of the above listed matters, in her affidavit Ms Seymour said, at (25) and (28):

25   On behalf of Viva Energy, I am authorised to acknowledge Viva Energy’s responsibility for the Incident.

26   I extend Viva Energy’s and my personal apology for the Incident to members of the community, and to the Court. This Incident does not reflect Viva Energy’s corporate culture or the way Viva Energy wishes to carry out its business, either at the Premises or generally. The Incident has been embarrassing for Viva Energy, and Viva Energy is committed to ensuring an incident like this will not happen again.

27   Viva Energy is very much aware that the Premises are located close-by to residential properties and to Sydney Harbour, and takes its environmental and community obligations very seriously.

28   Viva Energy sincerely regrets the Incident and any harm caused by the Incident. I do so as well.

102. Ms Seymour also gave oral evidence in which she reinforced Viva’s corporate regret at the occurrences that have given rise to the offences that bring the company before the Court. It is also to be observed that Ms Seymour remained present in the Court throughout the entirety of these sentencing proceedings (which took place over a day-and-a-half).

103. I am therefore satisfied that Viva has genuinely demonstrated contrition and remorse for the incident which has given rise to these charges and, as a consequence, is entitled to have that finding weigh in its favour.

Viva’s guilty pleas (s 21A(3)(k))

104. I earlier noted that Viva pleaded guilty to each of the charges for which it is to be convicted and that it did so at the earliest opportunity. As a consequence, s 22 of the Sentencing Procedure Act is engaged and a discount is to be granted from the otherwise applicable sentences to reflect the utilitarian value to the system of justice of the early entry of these pleas. It is, therefore, appropriate to grant the maximum conventional discount of 25% for these early pleas (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383).

Assistance to the EPA and other authorities (s 21A(3)(m))

105. Viva has cooperated with the EPA in the processes leading up to this sentencing hearing. That is evidenced by the agreement by Viva to the preparation of the general facts and the clean-up facts and the various elements of the supporting photographic and documentary evidence. No submission is made by the Prosecutor that there has not been sufficient and prompt assistance given by Viva to it.

Specific deterrence

106. I have earlier set out the conclusion that I had reached concerning s 21A(3)(g), that I considered it unlikely that Viva would reoffend. Under the circumstances, I do not consider that there is any necessity for any significant, specific deterrence element to be incorporated in the penalties to be imposed.

General deterrence

107. Imposing penalties for offences such as those to which Viva has pleaded guilty serve as a general warning to others of the unacceptability of not running industrial enterprises in a fashion to ensure that equipment defects or potential defects are not readily and promptly identified and appropriate remedial action taken in order to avoid the possibility of a pollution event occurring. Similarly, at a broader policy level, sentencing for breaches of conditions of an EPL should also send a message to the broader industrial community that it is essential that the conditions of an EPL are rigorously adhered to.

108. As a consequence, although there is no need for any element of specific deterrence for Viva for the reasons earlier explained, the sentences to be imposed for these offences must also have regard to the necessity to send the message of general deterrence described above.

Ranges in sentencing

Introduction

109. It is, therefore, appropriate to have regard to the need for general deterrence in consideration as to what might be the appropriate penalty for each offence to be imposed on Viva.

110. It is customary, when sentencing for environmental offences, to describe where the relevant offending conduct might fall within a range which might be defined as running from minor offending conduct through to that which could be characterised as being toward the worst type of conduct (noting, however, that it is not appropriate to characterise conduct as being the worst case as it is always possible to hypothesise something that is even less acceptable (Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14 at [478])).

111. It is also to be noted that such a process of characterisation is not one of mathematical precision warranting identification on some statistical basis (such an approach was expressly disapproved by the Court of Criminal Appeal in Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683).

A general descriptive approach

112. For my own part, I prefer to approach the question of characterisation in a generally descriptive fashion, one that is not to be taken as having any mathematical precision attached to it. This is in the context where, if I was to describe (which I do not) Viva’s offending conduct as being in the middle of the range, where the upper limit of the range is the maximum penalty as set by the Parliament of $1 million, the midpoint of the middle of the range might well be anticipated as being somewhere about $500,000. I prefer a multi‑layer descriptive analysis for such characterisation, noting that, in doing so, I am not to be taken as seeking to be mathematically prescriptive in any fashion and that there is to be inherent penalty flexibility in undertaking the instinctive synthesis when sentencing for any specific offending conduct. However, for my purposes, I am content to adopt three broad range descriptors (whilst attaching no numerical precision to them). These range descriptors are:

1. Upper range;

2. Middle range; and

3. Lower range.

113. Within each of these ranges, it seems to me that it is also appropriate to adopt (again without proposing any inference of mathematical precision) the following additional descriptors within a range. These are:

• Toward the top;

• About the centre; and

• Toward the bottom.

114. However, in adopting such a descriptive process, I caution myself that it is necessary not only to have regard to how Viva’s offending conduct might be regarded with respect to any other offending conduct that might be regarded as broadly comparable (as later discussed), but also to have regard to the fact that in addition to each of the offences with which Viva has been charged and to which it has pleaded guilty, there is also a vast spectrum of other, distinctly different offending conduct capable of falling within the ambit of each charge. It is with these caveats that I now turn to my consideration of the incidents which underpinned Viva’s two guilty pleas in these proceedings.

The Defendant's conduct

Introduction

115. In these proceedings, both the Prosecutor and Mr Ireland made submissions proposing how I should characterise Viva’s offending conduct. In addition, Mr Ireland also set out, in some detail, what penalties Viva considered were appropriate to be imposed for these two offences (a course of some precision not available to the Prosecutor, see Barbaro v The Queen, Saveio Zirilli v The Queen [2014] 253 CLR 58; [2014] HCA 2). These submissions were contained in each of the written submissions and the Prosecutor and Mr Ireland expanded on these during the course of their oral submissions. The respective positions can be understood from the relevant portions of the written submissions and it is unnecessary to undertake an analysis of that which was advanced orally.

The Prosecutor's submissions

116. In his written submissions, the Prosecutor observed:

89.   In consideration of the above factors, and in particular the foreseeability and control over the cause of both offences, that satisfactory clean-up was not achieved, owing in part to the nature of the MFO, until some seven months after the Incident and the significant cost of clean-up operations, the Prosecutor submits that the objective seriousness of the offending lies around the middle range for both offences.

90. However, given the deficiencies in the inspection and maintenance program in respect of the Spool, the objective seriousness in relation to Viva’s s. 64 offence must be slightly higher.

Mr Ireland’s submissions

117. In his written submissions, Mr Ireland wrote:

61   Viva Energy agrees with the Prosecutor's conclusion that the objective seriousness of the offences is in the moderate or mid-range (Prosecutor’s Submissions (PS) [89]), although Viva Energy does not agree with all of the reasons given by the Prosecutor for reaching that conclusion. Viva Energy submits that the Court should find that the offences fall at the lower end of the moderate or mid-range.

62 Further, the Prosecutor has, at PS [89], contended that the characterisation of the objective seriousness of the s 64 and s 120 water pollution offences is influenced by the cost incurred, and also the time spent by Viva Energy, on the clean-up operations. The Defendant disputes this submission.

63   First, it is submitted by Viva Energy that the cost of the clean-up operations may be taken into account by the Court in sentencing it for the offences, but only in the context of considering the mitigating factors personal to Viva Energy: see, eg, Environment Protection Authority v CSR Ltd [2001] NSWLEC 267 at [21] and Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273 at [205]. The Defendant is not aware of any decision of this Court where it has been said that the cost of clean-up operations goes to the objective seriousness of an offence. This, in Viva Energy's submission, provides support for the conclusion being reached that the cost of the clean-up may only be considered in the context of mitigation.

64   Secondly, in relation to the time spent by Viva Energy on the clean-up operations, Viva Energy acknowledges that the time spent by Viva Energy on the clean-up operations may be relevant to the Court's consideration of objective factors such as the extent of environmental harm and the carrying out of practical measures to prevent environmental harm. However, Viva Energy submits that the matter of the amount of time spent by Viva Energy on the clean-up operations must be understood in its proper context (as to which, see [72] to [79] below).

118. There are two observations to be made with respect to the above element extracted from Mr Ireland’s submissions.

119. First, I do not consider that the extent of the cost of clean-up incurred by Viva (more than $680,000, as set out at (62) of the clean-up facts) constitutes a material fact in my assessment of the seriousness of the offending conduct. Cost of clean-up is not necessarily indicative of the extent of environmental harm as a factor to be weighed in assessing the seriousness of the offending conduct. Some types of environmental harm may well be cured by, for example, subsequent rainfall or merely by the effluxion of time. In these proceedings, the question of the extent of the environmental harm and the activities necessary to address it have earlier been dealt with by me in the context of the evidence of Dr Scanes and the clean-up processes involved. The fact that a considerable sum of money was expended by Viva in conducting the clean-up activities that were the necessary response to the MFO spill does not add to what was earlier set out as appropriate to be taken into account as part of my sentencing consideration.

120. Second, with respect to the time spent in undertaking the clean-up operations, this has also been earlier dealt with in the context of environmental harm and the question of whether or not the clean-up activities were conducted in a fashion that was dilatory and could have given rise to a factor of aggravation to be taken into account in my sentencing consideration. That is the appropriate context within which the extent (and thus time) of the clean-up operations is to be considered.

121. Mr Ireland made a specific submission concerning the quantum of penalties it was submitted should be imposed on Viva. He encapsulated this in (111) of his written submissions, saying:

111   On a review of the above cases, while always mindful of the remarks of Preston CJ in Ditchfield as to the difficulty of the sentencing task, it can be seen that a fine of around $40,000 for the s120 offence and $30,000 for the s 64 offence (reduced by reason of the totality principle), for a total aggregate penalty of around $70,000 would avoid inconsistency with the above cases and give effect to the principle of evenhandedness or parity.

122. There are two observations to be made concerning this submission. First, for reasons elsewhere explained, the licence breach offence is to be punished modestly more severely than the water pollution one. Second, as can be understood from the conclusions I have drawn as to quantum, the penalties he proposes are somewhat “light”.

Consideration of characterisation

123. As can be seen from what I have reproduced above, the respective proposals as to how I should characterise the Defendant’s offending conduct were as being in the middle of the range of such offending conduct, with the objective seriousness of Charge 2 being treated as slightly higher (by the Prosecutor), and towards the lower end of the middle of the range (by Mr Ireland).

124. As I have earlier noted, characterisation, for the purposes of determining whereabouts offending conduct might be described, must be considered in the context of the maximum penalty determined by the Parliament to be appropriate for the particular offence. For each of the offences to which the Defendant has pleaded guilty in these proceedings, that maximum penalty is $1 million.

125. The descriptors advanced by the parties in these proceedings do not coincide with the broad framework I have earlier set out as my own preferred approach. However, it is clear that neither the Prosecutor or Mr Ireland regards the descriptor that they propose I should adopt would warrant any conclusion that a penalty of the order of $500,000 was appropriate. Yet, in the context of language (as opposed to quantum) that has been applied in the past, such a conclusion might be thought to be appropriate to follow.

126. The Prosecutor’s position can be seen by necessary inference from the penalties imposed in the cases to which the Prosecutor drew my attention as potentially providing assistance in penalty determination (as discussed below). Viva’s position can be understood from the specific penalty amounts proposed by Mr Ireland (and the extensive table of cases he proposed would provide me assistance to understand and accept his penalty submissions).

127. Adopting the approach which I have earlier indicated I favour as the general approach to characterising offending conduct, I am satisfied that, in each instance, the appropriate descriptor for Viva’s conduct involved with the spill of the MFO should be toward the top of the lower range of offending conduct for offences of this broad type.

128. However, consistent with the approach adopted by Preston CJ in Ballina Shire Council, the breach of licence condition has a degree of culpability than the particular specific offending conduct giving rise to what might be regarded as the operative offending conduct of the water pollution offence. As a consequence, I am satisfied that the starting penalty for each of these offences should be broadly similar, but with a somewhat higher penalty to be imposed for the licence condition breach (sending a message concerning the desirability of meticulous observation of licence conditions thus warranting greater emphasis in general deterrence terms).

Comparability for sentencing purposes

129. In assessing how an offender should be sentenced, it is also appropriate to have regard to other instances where sentencing for other offending conduct may provide some guidance to the potential range of sentences appropriate for the conduct under consideration.

130. In these proceedings, I have had regard to some 23 other instances drawn to my attention by either the Prosecutor or Mr Ireland where offending conduct was dealt with arising from breaches of either s 64 of the POEO Act or s 120 of that Act or where breaches of both sections arose. The cases which I have considered are set out, with a short summary, in Appendix A to this decision.

131. The Appendix also includes a decision, Environment Protection Authority v Ardent Leisure Ltd [2018] NSWLEC 36 (Ardent Leisure), where the offences charged were a breach of s 120 of the POEO Act and cl 19(2) of the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014. The second of the offences arose from the necessity to have, as required by the Regulation, an “environment protection plan” when no such plan existed.

129. There is, in my view, sufficient analogy between the requirement for such a plan and the existence of an EPL to render that case as potentially warranting consideration (although, for the reasons I discuss below, in my broad approach to the various cases in Appendix A, I am not satisfied that any of them provide any relevant assistance to me in these proceedings).

130. In addition to Ardent Leisure, Appendix A lists nine cases where the defendant was prosecuted for a water pollution offence in breach of s 120 of the POEO Act; six instances where breaches of a licence condition, contrary to s 64 of the POEO Act, and one or more water pollution offences were charged; and seven cases where the charge solely related to breach of a condition of an EPL in breach of s 64 of the POEO Act.

131. I have carefully considered the facts and circumstances of each of the 23 cases, together with the sentencing outcomes in each of them. In each instance, the facts and circumstances vary sufficiently from those with which I am presently dealing that they provide little or no assistance in determining what would be the appropriate sentence to be imposed on the Defendant for each of the offences here prosecuted.

132. I expressly note that none of the cases noted in Appendix A warrant specific discussion as being sufficiently analogous to be called up for detailed consideration for comparability purposes.

133. However, to the extent that, at a very broad level, guidance can be gleaned as to a sentencing approach, I have had regard to those matters in my consideration of what are the appropriate starting penalties for these two offences.

The Prosecutor’s costs

137. Mr Ireland also made a submission about the necessity to have regard to Viva’s agreement to pay the EPA’s costs. He wrote:

114   It is submitted that the observation of Biscoe J at [49] in Liverpool City Council v Leppington Pastoral [2010] NSWLEC 170, the imposition of costs is a part of the punishment imposed and at [50] that costs in themselves would not reduce the penalty from what would otherwise be appropriate, it is the proportion that the costs bear to the otherwise appropriate penalty for each charge that would result in this costs amount placing downward pressure on that penalty in the Court's instinctive synthesis or sentencing discretion (but not necessarily as a one for one deduction).

115   The EPA has estimated its costs in the amount of $131,628, and while this figure is yet to be agreed, the estimate alone represents a significant proportion of what would otherwise be an appropriate penalty, and this would place downward pressure on the penalty in the circumstances of the present case.

138. Whilst Environment Protection Authority v Barnes (2006) NSWCCA 246 is often said to provide a basis for taking the liability of a defendant to pay a prosecutor’s costs into account when setting a penalty, a reading of that decision makes it clear that there the question arose in the context of capacity to pay. That clearly does not arise for Viva. Given the overall total of the starting penalties discussed below, I am satisfied that there is no relevant “downward pressure” to be applied to those starting amounts as a result of the likely amount of the Prosecutor’s costs.

The starting penalties

139. Undertaking the mandated process of instinctive synthesis (Markarian v R (2005) 229 CLR 357; [2005] HCA 25), and having regard to all the objective factors of the offending conduct and the subjective factors peculiar to the Defendant, I am satisfied that the appropriate starting penalty for these offences, when regard is had to the maximum penalty for each of them as earlier set out, should be $60,000 for the water pollution offence and $80,000 for the licence breach offence.

Discounting for the guilty pleas

140. I have earlier set out the basis upon which Viva is entitled to a 25% discount on each of the starting penalties as a consequence of the utilitarian value of its early guilty pleas. As a consequence, the starting penalties are to be reduced to $45,000 for the water pollution offence, and $60,000 for the licence breach offence.

Totality

141. As each of the offences to which the Defendant has pleaded guilty arose out of the same incident and can, therefore, be regarded as arising from the same course of conduct, it is also necessary to give consideration to the question of totality to ensure that the appropriate penalty to be imposed reflects the aggregate nature of the offending conduct arising out of a single incident (Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at 624).

142. I note that there have been two approaches taken in the past to how the question of totality might be addressed. The first is to adhere to the sentence considered appropriate for what might be regarded as the primary offence, whilst moderating the penalty for the second offence (and, if relevant, subsequent offences), whilst the second is to moderate the penalty for each of the offences for which a penalty is to be imposed.

143. Although it would seem that the overall outcome is unlikely to differ, whichever of these approaches is adopted, I should explain why I remain of the view that the former approach is appropriate. The penalty imposed for the primary offending conduct (here the breach of the licence condition) is able to be seen, on a standalone basis for general deterrence purposes, as providing the relevant appropriate point for subsequent comparative analysis if this was to become appropriate. Addressing the necessity to have regard to questions of totality by moderating penalties across all of the offences to be punished risks losing this utility.

144. In this instance, in order to reflect matters of appropriate totality, I have concluded that the penalty for the water pollution offence should be modestly reduced to $40,000. This results in the appropriate total overall penalty quantum (if imposed as a fine) to be $100,000.

145. However, as the Prosecutor and the Defendant have agreed that the amount I determine should be paid to the Environmental Trust fund for general environmental purposes, the orders will reflect this outcome, rather than imposing these amounts as penalties.

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

Ordering a notice

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

147. Such a notice is to be regarded as an additional penalty. However, in addition to the punitive aspect of such notices, they also serve a significant aspect of the general deterrence function that sentencing for offences such as these fulfil by bringing to broader attention the consequences of acts such as those here giving rise to the matters for which this sentencing is taking place.

148. The Prosecutor sought the following substantive orders concerning publication of a notice pursuant to s 250(1) of the POEO Act. These orders were in the following terms:

1 The Defendant, at its expense, and pursuant to section 250(1)(a) of the Act must cause a notice in the form of Annexure “A”:

a.   to be placed within 28 days of the date of this order in the Sydney Morning Herald, within the first 13 pages on an odd-numbered page at a minimum size of 9 cm x 12 cm;

b.   to be placed within 28 days of the date of this order in the Australian Financial Review, within the first 13 pages on an odd-numbered page at a minimum size of 7 cm x 10 cm;

c.   to be placed within 28 days of the date of this order in the North Shore Times within the first 5 pages on an odd-numbered page at a minimum size of 9 cm x 12 cm; and

d.   to be placed within 60 days of the date of this order in the Defendant’s Gore Bay Newsletter in the Village Observer (Lane Cove), on an odd-numbered page, at a minimum size of 9 cm x 12 cm.

2   Within 7 days of the date of publication of each notice referred to in the previous order, the Defendant must provide to the Prosecutor and file with the Court a complete copy of the pages of the publications in which the notice appears.

149. For the reasons later given concerning the publications in which the notice is to be required to be published, orders in these terms are appropriate.

The terms of the notice

150. It is frequently the position that the terms of such a notice, and the journals in which it is to be published, will be settled between the Prosecutor and a defendant. That is not here the case (although Viva clearly accepts the appropriateness of such a notice being published). Although the terms of the notice are largely agreed, its terms, therefore, fall to be determined by me.

151. The version of the notice proposed by the Prosecutor is reproduced as Appendix B to this decision. An alternative version was proposed by the Defendant. That alternative version is reproduced as Appendix C to this decision.

152. There were four changes proposed by the Defendant.

153. The first merely proposed that the Prosecutor’s word “pipeline” be replaced with the word “spool”, wherever appearing. “Spool” is an engineering term, appropriately used elsewhere in this decision for technical precision. However, it is not a word in common usage and I am satisfied that if the change proposed by the Defendant was to be adopted, it would have a negative impact on the ability of any reader of the statement to understand what was the nature of the structure from which the MFO leak occurred. However, I also consider that, given the complexity of the Defendant's operations on the site, the preferable word to be used is pipe, simpliciter, in substitution for “pipeline” as being more appropriate. The word “pipe” therefore appears in Appendix D, the version of the notice which is ordered to be published as a consequence of the orders at the conclusion of this judgment.

154. The second change proposed for the Defendant is to the second sentence of the third paragraph. The Prosecutor’s version reads:

When the insulation was later removed, it was evident that the pipeline was visibly corroded.

155. The Defendant objects, in this sentence, to the inclusion of the words, “It was evident that”. The words used in the version proposed by the Prosecutor are entirely consistent with the evidence in the proceedings and are to be accepted.

156. The third change proposed by the Defendant was the deletion of the second sentence in the fourth paragraph of the Prosecutor’s proposed notice. This sentence read:

Viva Energy is unaware of any inspections, testing or maintenance having been carried out on the pipeline between its installation in the mid-1990s and the date of the spill.

157. As earlier noted, the general facts were tendered, becoming Exhibit A. At (67), the general facts record the following:

Viva is unaware of, and has been unable to locate records of, any inspections, testing or maintenance work, carried out by anyone on the spool at any time between its installation and the date of the offences.

158. Given that the sentence to which Viva raises objection is, effectively, a recital of this extract from the general facts, I can see no reason why the sentence proposed by Viva to be deleted should so be deleted. Viva has certainly not pressed any substantive reason why this should be the case.

159. The fourth change proposed by Viva is the insertion of a new sentence in the fifth paragraph of the statement. This new sentence would then appear as the third sentence in that paragraph. The proposed sentence would read:

Where impacts occurred arising from the incident, those incidents are not likely to be permanent and recovery of the ecosystem can be expected.

160. As I have also noted, the clean-up facts were set out in Exhibit B. At (60), those agreed clean-up facts record the following:

In summary, where impacts to the ecosystem have occurred in the spill area arising from the incident, those impacts are not likely to be permanent and recovery of the ecosystem in the spill area can be expected. However, the timing of recovery cannot be reliably predicted.

161. The first sentence of the above quoted extract from the clean-up facts is, I am satisfied, accurately reflected in the sentence which Viva proposes should be added to the fifth paragraph of the notice. I am satisfied that this is not an inappropriate addition. However, the second sentence in (60) of the clean-up facts contains a cautionary qualifier to the first sentence of that paragraph. Viva does not propose the inclusion of that cautionary qualifier. Without that cautionary qualifier, that which Viva seeks to have inserted does not accurately reflect the agreement between the parties contained in that paragraph. As a consequence, although I am satisfied that the words proposed by Viva to be inserted in the fifth paragraph should be so inserted, the qualifying sentence must also be inserted as an appropriate reflection of the entirety of that agreed element.

162. As a consequence, the version of the notice which is ordered to be published in the orders at the conclusion of this judgment is to be the version contained in Appendix D to this judgment.

Publications to be included

163. Publication notices are not merely simply matters of “name and shame” for a defendant, but also form an element of general deterrence by affording notice to others of the consequences of such breaches, particularly if they are sufficiently widely likely to be read amongst the Australian business community.

164. General deterrence from causing pollution has value that is not confined merely to deterring corporations from committing polluting activities within the jurisdiction of New South Wales and thus committing offences against the POEO Act. Making corporations and other enterprises aware that there are potential criminal sanctions for causing pollution is a matter fitting within broad public policy considerations across a nationwide legislative spectrum. As a consequence, when a corporation of the nature of Viva causes such pollution, the general deterrent value of widespread publicity of the conduct and its consequences arising from convictions in proceedings such as these, is entirely appropriate.

165. It is for this value of general deterrence that I have concluded that it is appropriate to expand the range of publications beyond merely that of the Defendant’s Gore Bay Newsletter in the Village Observer (Lane Cove), the North Shore Times and the Sydney Morning Herald, publications of comparatively limited local or regional reach.

166. As a consequence, to expand the general deterrent effect in a fashion which I consider takes the appropriate message to the broader Australian business community; the orders made in these proceedings also require that the notice be published in the Australian Financial Review.

Size of the notices

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

Positioning of the notice

168. In Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 (Dyno Nobel), at [180] and [181], I observed:

180   It has become customary to require that notices be published within a specified number of pages from the publications’ cover (including the cover in the counting). ….

181   However, it has also been established that material published on the right‑hand page of a pair of internal opposing pages of a newspaper is more likely to be read than material on a left-hand page of such a pair of opposing pages. …

Provision of copies of the advertisement

169. In Dyno-Nobel at [182] and [183], I also observed:

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

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

170. I am satisfied that that approach should be adopted for these proceedings.

Orders

171. It therefore follows that the orders of the Court are:

Matter No 358951

1. Viva Energy Pty Ltd (the Defendant) is convicted of polluting waters in breach of s 120(1) of the Protection of the Environment Operations Act 1997; and

2. The Defendant is to pay the sum of $40,000 to the Environmental Trust fund established pursuant to the Environmental Trust Act 1998 for general environmental purposes.

Matter No 358952

(1) Viva Energy Pty Ltd (the Defendant) is convicted of a breach of s 64(1) of the Protection of the Environment Operations Act 1997 in that, as a holder of an environmental protection licence, the Defendant contravened a condition of that licence; and

(2)   The Defendant is to pay the sum of $60,000 to the Environmental Trust fund established pursuant to the Environmental Trust Act 1998 for general environmental purposes.

Publication order

172. For Matter No 358951 and Matter No 358952:

1. The Defendant, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, must cause a notice in the form of Appendix D, at its expense:

1. to be placed within 28 days of the date of this order in the Sydney Morning Herald, within the first 13 pages on an odd-numbered page at a minimum size of 9 cm x 12 cm;

2. to be placed within 28 days of the date of this order in the Australian Financial Review, within the first 13 pages on an odd-numbered page at a minimum size of 7 cm x 10 cm;

3. to be placed within 28 days of the date of this order in the North Shore Times within the first 5 pages on an odd-numbered page at a minimum size of 7 cm x 26.2 cm; and

4. to be placed within 60 days of the date of this order in the Defendant’s Gore Bay Newsletter in the Village Observer (Lane Cove), on an odd-numbered page, at a minimum size of 9 cm x 12 cm.

2. Within 7 days of the date of publication of each notice referred to in the previous order, the Defendant must provide to the Prosecutor, and file with the Court, a complete copy of the pages of the publications in which the notice appears.

3. Liberty to relist on three days’ notice to work out the terms of this order if necessary.

Costs

173. For Matter No 358951 and Matter No 358952, together:

1. Pursuant to s 257G of the Criminal Procedure Act 1986, Viva Energy Pty Ltd is to pay to the Environment Protection Authority its costs as agreed or assessed.

2. Pursuant to s 248(1) of the Protection of the Environment Operations Act 1997, Viva Energy Pty Ltd is to pay to the Environment Protection Authority its investigation costs and expenses of $3,050.

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Appendix A (20.9 KB, docx)

Appendix B (17.0 KB, docx)

Appendix C (17.2 KB, docx)

Appendix D (17.2 KB, docx)

Amendments

02 April 2019 - On 2 April 2019, under the Slip Rule, orders contained in the judgment of 15 March 2019 were varied to read as follows:

172 For Matter No 358951 and Matter No 358952:

(1) The Defendant, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, must cause a notice in the form of Appendix D, at its expense:

...

(c) to be placed within 28 days of the date of this order in the North Shore Times within the first 5 pages on an odd-numbered page at a minimum size of 7 cm x 26.2 cm; and

17 July 2019 - Correction to proceedings number.

Decision last updated: 17 July 2019