Environment Protection Authority v Wambo Coal Pty Ltd

[2016] NSWLEC 125

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Environment Protection Authority v Wambo Coal Pty Limited (ACN: 000 668 057) [2016] NSWLEC 125
Hearing dates:	17 December 2015
Date of orders:	28 September 2016
Decision date:	28 September 2016
Jurisdiction:	Class 5
Before:	Sheahan J
Decision:	See orders in paragraph [170]
Catchwords:	SENTENCING – plea of guilty by occupier of premises which emitted offensive odour in breach of s 129 of the Protection of the Environment Operations Act 1997 – environmental harm and harm to human health – sentencing considerations – general and specific deterrence – appropriate fine/discounts – publication order – costs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Interpretation Act 1987 Protection of the Environment Operations Act 1997 (NSW)
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; 82 LGERA 21 Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; [2006] NSWLEC 289 Environment Protection Authority v BHP Steel (AIS) Pty Ltd [2000] NSWLEC 19 Environment Protection Authority v BHP Steel (AIS) Pty Limited [2001] NSWLEC 214 Environment Protection Authority v Burrangong Meat Processors Pty Ltd [2003] NSWLEC 102 Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 Environment Protection Authority v Environmental Treatment Solutions Pty Ltd [2015] NSWLEC 160 Environment Protection Authority v George Weston Foods Ltd [2010] NSWLEC 120 Environment Protection Authority v George Weston Foods Limited [2013] NSWLEC 16 Environment Protection Authority v Hunter Valley Energy Coal Pty Ltd [2015] NSWLEC 120 Environment Protection Authority v Illawarra Coke Company Pty Limited (2002) 118 LGERA 451; [2002] NSWLEC 21 Environment Protection Authority v Nationwide Oil Pty Limited [2002] NSWLEC 201 Environment Protection Authority v Nulon Products Australia Pty Ltd [2015] NSWLEC 153 Environment Protection Authority v Orica Australia Pty Ltd (the Evaporator Incident) [2014] NSWLEC 104 Environment Protection Authority v Shoalhaven Starches Pty Ltd [2006] NSWLEC 685 Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko [2013] NSWLEC 210 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 R v Dodd (1991) 57 A Crime R 349 R v McNaughton (2006) 66 NSWLR 500; [2006] NSWCCA 242 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	Environment Protection Authority (Prosecutor) Wambo Coal Pty Limited (ACN: 000 668 057) (Defendant)
Representation:	Counsel: Ms M Junor, solicitor (Prosecutor) Mr J Johnson, barrister (Defendant)   Solicitors: Environment Protection Authority (Prosecutor) Ashurst (Defendant)
File Number(s):	2016/158886 (formerly 50403 of 2015)

Judgment

INTRODUCTION

1. Wambo Coal Pty Limited (“Wambo”) is to be sentenced following its plea of guilty on 25 September 2015 to a charge brought by the Environment Protection Authority (“EPA”) in respect of a breach of s 129(1) of the Protection of the Environment Operations Act 1997 (“POEO Act”), committed by Wambo as the (deemed) “occupier of premises”.

2. Section 129(1) provides:

Emission of odours from premises licensed for scheduled activities

(1)   The occupier of any premises at which scheduled activities are carried on under the authority conferred by a licence must not cause or permit the emission of any offensive odour from the premises to which the licence applies.

3. The offence charged was committed by blasting on 14 May 2014. Ms M Junor, who appears for the Prosecutor, acknowledges (Tp19, LL22 – 27):

While the generation of the fumes is an essential step for an offence to occur, it's not, in and of itself, an offence until that fume is blown, or migrates, from the premises. In that context the cause of the offence really is the wind blowing the fumes from the premises, and the defendant had full responsibility for monitoring the weather conditions, and making the decision to detonate the blast.

4. The maximum penalty for this offence by a corporation has been $1,000,000, pursuant to s 132(a) of the POEO Act, since May 2006.

5. Sections 257 and 258 of the POEO Act provide:

257   Occupier of premises responsible for pollution from premises

(1)   In any proceedings under this Act, the occupier of premises at or from which any pollution occurs is taken to have caused the pollution, unless it is established that:

(a)   the pollution was caused by another person, and

(b)   the other person was not associated with the occupier at the time the pollution occurred, and

(c)   the occupier took all reasonable steps to prevent the pollution.

A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier.

(2)   Subsection (1) does not prevent proceedings being taken under this Act against the person who actually caused the pollution.

258   Evidence relating to occupier of premises

(1)   In any proceedings under this Act, no proof is required (until evidence is given to the contrary) of the fact that a person is, or at any relevant time was, the occupier of any premises to which the proceedings relate.

(2)   In any proceedings under this Act, the holder of a licence under this Act in respect of any premises at a particular time or period is taken to be the occupier of the premises at that time or during that period.

6. Wambo held Environment Protection Licence (“EPL”) No 529, in respect of the subject premises, being a colliery holding at Jerrys Plains Road, Warkworth, NSW (3km south-east of Jerrys Plains).

7. Under that EPL, “scheduled activities” being “coal works” and/or “mining for coal” were carried out. In the course of such activities, at 3.32pm on 14 May 2014, Wambo caused the emission of an offensive odour from the premises, namely an “odour associated with fumes generated by mine blasting”.

8. The sentencing hearing was assisted by the parties’ agreement on (a) a very extensive Statement of Facts (“SAF”), (b) a large bundle of documents (Exhibit P1), and (c) a number of relevant issues.

9. The SAF runs to 141 pars over 31 pages, and will not be set out in full in this judgment. The copy filed in Court will remain in the Court file, but important content has been decanted into, or summarised in, this judgment.

WAMBO’S OPERATIONS

10. Wambo has operated a colliery both underground and open-cut at the site since 1969. Wambo is part of a group of companies referred to as the Peabody Energy group, and, in its relevant operations, it was also associated with Dyno Nobel Asia Pacific Pty Ltd (“Dyno Nobel”, which provided “products and services”, notably explosives); Active Drilling Services Pty Ltd (“ADS”, which drilled holes for the placement of explosives); and Brent’s Cleaning and Maintenance Services (a subcontractor to Dyno Nobel).

11. As Ms Junor noted (Tp3, L49 – p4, L4):

the operations at the coal mine are undertaken by a number of employees of the company directly, of its parent company and of contractors. ... [and] its (sic) agreed that at all times all relevant people were acting on behalf of Wambo.

(see also SAF 3 – 10, and 14 – 29, and Exhibit P1, tabs A to H)

12. Wambo’s activities at the subject site are the subject of a modified 2004 development consent (“DC” – SAF 11), which, inter alia, requires it to monitor weather conditions (including wind speed and direction). For this purpose it established a meteorological station approximately 6.9km south-east of the blast site (SAF 12), rather than relying on official Bureau of Meteorology stations much further away (Exhibit P3).

13. The DC also required Wambo to put in place, and comply with, a Blast Management Plan (“BMP” – SAF 34 to 40, and Exhibit P1, tab I), which required the approval of the Department of Planning. The BMP was updated in March 2014, following an incident at the site in 2012, to include:

1. The “Australian Explosives Industry and Safety Group Incorporated Code of Practice: Prevention and Management of Blast generated NOx gases in Surface Blasting”, Edition 2 August 2011 (“the Code” – also in Exhibit P1, tab I), being an industry standard document on the prevention and management of blast fumes from mine blasts;

2. Requirements to:

1. Configure bench design and firing patterns to minimise impacts on neighbouring residents;

2. Deliver NSW Health Fact Sheets to neighbouring residents titled “Mine Blast Fumes and You”;

3. Make available an SMS messaging service to neighbouring residents notifying them of proposed blast events.

3. A Blast Fume Management Strategy (“BFMS”), which was added in response to the Department of Planning’s request to all Upper Hunter Coal Mines, suggesting minimum requirements (SAF 41).

14. As recently as 27 November 2015, the Department of Planning & Environment signified that Wambo’s further updates of the BMP and BFMS “generally address” its requirements (Exhibit D2).

15. At the time of the subject incident, Wambo also had in place a Pollution Incident Response Management Plan (“the PIRMP” – SAF 42).

16. The BMP stipulates requirements regarding weather conditions under which blasting may take place – blasting should proceed only in “suitable meteorological conditions that minimise the potential for blast generated dust and blast fume”. To identify favourable and/or less than favourable meteorological conditions, Wambo has developed a Wind Speed and Direction Blast Matrix to decide if a scheduled blast can proceed (Exhibit P1, tab I, p24).

17. Wambo conducts, on average, between 1 and 2 blasts per week at the premises (SAF 13). Preparation for blasting involves a number of quite technical processes, which may take a period of days or weeks, depending upon various factors (SAF 31 – 33, and 43 – 51).

18. The Prosecutor argues that Wambo has not established “best practice” (Tp12, LL34 – 39, and p17, LL43 – 44).

THE INCIDENT

19. The SAF (52 – 65) outlines the relevant incident as follows:

52   Wambo had responsibility for the design and execution of the Blast, an operational role in the Blast, as well as oversight of Dyno Nobel and ADS.

53   Throughout the day of 14th of May 2014, Mr [Gary] Perry [Wambo’s Drill and Blast Superintendent] accessed live readings of the meteorological conditions at the Meteorological Station and recorded them on a Blast Management Plan Checklist. [Exhibit P1, tab] L includes a copy of the Blast Management Plan Checklist completed by Mr Perry ...

54   The readings taken at the Meteorological Station are saved electronically as 5 minute averages of the minute-by-minute readings. Consequently, only the minute-by-minute readings that Mr Perry recorded on the Blast Management Plan Checklist were available as minute intervals following the Blast.

55   All available readings taken at the Meteorological Station during the hour preceding, and the 20 minutes following, the Blast are summarised in the table below:

Time (pm)	Direction from which wind blowing (degrees)	Wind speed (m/s)	Ok to fire
2.30	65	1.9	YES
2.35	64	1.8	YES
2.40	74	1.8	YES
2.45	79	1.7	YES
2.50	83.9	1	YES
2.52	106	1.5	NO
2.55	113.5	1.5	NO
3.00	82.9	1.8	YES
3.05	83.9	1.4	YES
3.10	93.4	1.7	NO
3.15	112	1.6	NO
3.20	85.9	1.6	YES
3.25	80.3	0.7	YES
3.29	43	1.33	YES
3.30	41	1.4	YES
3.31	39	1.06	YES
3.35	52	1.4	YES
3.40	56.7	1.2	YES
3.45	85	0.9	YES
3.50	130	1.3	NO

56   The complete set of wind readings taken by the Meteorological Station on the 14th of May 2014 are in [Exhibit P1, tab] M.

57   In addition, Mr Perry released 6 balloons into the air at the site of the Blast and made visual observations of the direction in which they were blown as follows:

Time released	Number of balloons	Approximate direction
3.00 pm	4	NE
3.15pm to 3.20pm	2	NE

58   At the time of the Incident, Wambo did not have hand held anemometers to measure the weather conditions at blasting sites.

59   Mr Perry noted that the wind readings were “varying a fair bit up and down” from 1.30pm to 3.15pm, after which time it “all dropped back well and truly inside the guidelines”. Mr Perry described the wind on the day as ranging from a “mild wind down to a very, very slight breeze”.

60   Typically, if Mr Perry observes variable wind conditions throughout the day prior to a shot his procedure is to take a string of readings from the Meteorological Station close together and a couple spaced out, to see if they are consistent. If Mr Perry receives a bad weather reading around 10 minutes before a shot is due to go off and there have been consistently bad readings in the lead-up, he will cancel the shot.

61   At 3.30pm, the scheduled time for detonation, Mr Perry took a final reading of the weather and cross-checked it against the BMP. Mr Perry entered this data onto the Blast Management Plan Checklist. Although he inadvertently entered the wind direction data against the ‘wind speed’ field and vice versa, the figures are otherwise correct and nothing of substance turns on this clerical error. The readings were “in the green section [of Figure 5], which means we’re right to fire”, so he called [Lewis Waight, Dyno Nobel’s shot firer] and directed him to detonate the Blast. Mr Waight also completed a Blast Management Plan Checklist around this time, which is included in [Exhibit P1, tab] L ...

62   At 3.31pm Mr Perry checked the weather data at the Meteorological Station, to make sure that it was still within the green section of Figure 5. He noted that it was.

63   Mr Waight detonated the blast at 3:32pm.

64   Following detonation, the Blast generated an amount of fume which appeared to emanate mainly from the north western corner of the bench as well as from the south eastern corner. The fume travelled in a plume in a north to north westerly direction and was seen by employees at the Premises.

65   The Code requires site personnel to identify and rate post-blast NOx gases using a scale from 1A to 5C (where 1A signifies the lowest intensity and 5C the highest intensity), for the purposes of improving industry standardisation of the reporting and recording of the visual characteristics of such gases. ...

20. The SAF then records (at 66 – 75):

66   Mr Perry, from his location in the immediate vicinity of the Blast, rated the fume generated by the Blast as “3C: Orange Gas, Extensive” in accordance with the above scale and noted this on the Blast Management Plan Checklist. This rating was according to the Code.

67   Employees of [a Peabody company] took videos of the Blast from three different locations ... [Exhibit P1, tab] N.

68   Still images taken from the beginning, middle and end of each of these videos are [in Exhibit P1, tab] O.

69 Following the Blast, the fume dispersed and would have been less concentrated by the time it left the Licensed Premises.

70   Shortly after the Blast, Mr Carter [an employee and neighbour], who saw the shot and fume and noted the wind was blowing to the north, said words to the following effect over the radio communications system:

“We should notify the residents that there is something wrong, the dust is coming.”

71   Mr Carter’s words were heard by Mr [Kevin] Pitcher [Wambo’s Drill and Blast Engineer], Mr Perry and Mr Jaeger. As Mr [Troy] Favell [then Wambo’s Manager Environment & Community] was in or around Newcastle at the time, Mr Jaeger assumed his responsibilities as the Environment and Community Manager.

72   Following the statement made over the radio by Mr Carter, Mr Perry responded to Mr Carter and then made a call to Mr Jaeger and said words to the following effect over the radio communication system:

“Check the ridge, we are getting some drift”.

73   In response, Mr Jaeger activated the PIRMP by contacting Mr Favell at about 3:47pm. Mr Favell directed Mr Jaeger to download the video footage and to get information together, which he did.

74   At approximately 4:00pm Mr Favell called Mr Jaeger. During their telephone calls, Mr Favell informed Mr Jaeger that complaints have been received from members of the public.

75   Mr Favell received the following complaints from members of the public:

a.   From Mr Wayne Oliver at 3:39pm concerning noise and vibration.

b.   From Mr David Thelander on behalf of Mr Reece Thelander and Ms Sharni Herbert at about 3:47pm reporting that they had smelled blast fume.

c.   From Gary and Debbie Pevy at 4.14pm who reported having been exposed to fumes while riding their horses.

21. Mr Favell (now no longer with Wambo) provided an affidavit, affirmed on 3 December 2015, which was read by Mr J Johnson of counsel, who appeared for the defendant. The locations of relevant nearby residential premises are shown in Exhibit P1 (at tab B – see SAF 30). Mr Johnson pointed out that many of Wambo’s neighbours were its employees and tenants (Tp45, LL14 – 26). Favell deposed (par 6) that “minimising blast fume impact on neighbouring land owners was a priority issue for Wambo”.

22. Mr Johnson also relied on an affidavit, and supplementary oral evidence (Tpp10 – 13), from Geoffrey Charles Moore, Wambo’s Open Cut Mine Manager, whose local knowledge and coal mine experience is illustrated by Exhibit D3. Moore returned from leave to attend Court in person to acknowledge Wambo’s responsibility and apologize for the subject incident. He too deposed (par 15) that “minimising blast fume and mitigating its impact on our neighbours has been a priority focus for several years”.

23. The objective of trialling newer explosives between June and December 2014, and then using them, was to “achieve zero NOx emissions” (Moore par 23, and annexure GM-4).

CAUSES OF THE OFFENCE

24. The blasting activity constituted a Scheduled Activity in accordance with the terms of the EPL, and the 3.32pm blast caused the emission of odorous fumes (SAF 76) in a north westerly direction (SAF 81).

25. Wambo authorised the detonation of the Blast through Perry’s direction to Waight. The BMP authorised Perry to direct the detonation of the Blast materials in certain wind conditions (SAF 77).

26. The Code states (SAF 78):

The underlying causes of high NOx are fuel deficiency in the explosive or detonation reactions that do not continue to completion. There are many ways in which these conditions may arise.

In the absence of a single general cause or general solution, these guidelines should be viewed as an aid identifying the local cause of NOx and a prompt for possible ways to address these causes. It should be understood that, given the complexity of the problem and the inherent variability in the blasting environment, NOx events may still occur even after prevention and mitigating actions have been put in place. ...

27. Despite inherent uncertainty as to the actual causes of fume production upon detonation of blast materials, the parties agreed (SAF 79) that a number of factors may have contributed to the fume, including:

1. “Powder factor” (SAF 79a, b, c);

1. Water damage (water in some drill holes – SAF 79d);

2. Cracks/ cavities in drill holes (suggested by the “slumping” of some drill holes – SAF 79e); and/or

3. “Lack of confinement in some soft weathered material on the surface of the blast area” (SAF 79f).

28. They also agree (SAF 80) that “the fume was not likely to have been caused by problems with the quality of the explosives used, although the Technical Specifications that Wambo relied on were changed by Dyno Nobel several weeks after the Blast ...” (see also SAF 79a).

29. The parties further agree (SAF 118 and 119) that:

118   The following relevant steps were taken prior to the Blast, for reasons including to minimise fume production:

•   Dyno Nobel sampled each truckload of explosives to ensure proper gassing of the product to the recommended density.

•   Dyno Nobel's delivery system settings were recorded to ensure accuracy of the delivery product.

•   Dyno Nobel calibrated its trucks on a fortnightly basis.

•   Dyno Nobel advised on changes to raw materials.

•   Geological conditions were evaluated prior to the Blast based on historical blast records and known geological characteristics of the area.

•   The presence of limestone or reactive sulphide rock types was considered from previous works in the area.

•   Holes were dipped by Dyno Nobel both before and after loading.

•   Wambo instructed Dyno Nobel to dewater and bag holes where possible, to load Titan 2050 GA product if the holes were dry and to load Titan 2070 G for holes containingdynamic (sic) water.

•   Recommended sleep time was followed. [The term “sleep time” is used to describe the maximum period for which it is recommended that a charge should remain in the hole before being detonated.]

•   All drill holes were designed in accordance with the BMP, which incorporates the Code.

•   ADS drilled via high precision GPS system which was attached to a drilling rig

•   Only high quality stemming material was purchased and used to ensure greater confinement and to preserve the integrity of the hole by preventing contamination of the hole

•   All blast holes had hole savers inserted at the time of drilling to minimise the ingress of both water and drill cuttings between the period when the hole was drilled and the hole was loaded, however bag liners were not used in holes with dynamic water.

•   Live weather conditions recorded at the Meteorological Station were monitored.

119   Wambo took the following steps prior to the Incident to prevent blast fumes that may be generated from migrating from the premises and affecting members of the public:

•   Mr Perry monitored weather conditions by referring to data from the Meteorological Station.

•   Mr Perry released balloons in the vicinity of the Blast was used to confirm the local wind speed and direction.

...

30. On 13 May 2014, the day before the Blast, a number of nearby residents, who were registered with Wambo to receive notification of blasts, received the following SMS message (SAF 84):

The next scheduled blast event for Peabody Wambo Coal is Wednesday 14 May @ approx. 3:30pm. Please note that a blast event may be rescheduled due to environmental or production constraints.

THE AFTERMATH OF THE BLAST

31. As a result of the scheduled Blast on 14 May 2014, fumes left the licensed premises and were blown by the wind in a north westerly direction, causing environmental harm in the form of air pollution (SAF 130, and [69] below), and adversely impacting upon the following residents located outside the site (SAF 128 – 129):

(1)   Mrs Helen Carter (SAF 89 – 92);

(2) & (3)   Mr Gary and Mrs Debbie Pevy (SAF 93 – 106);

(4)   Mr Mark Carmody (SAF 107 – 112);

(5)   Mr Reece Thelander (SAF 113 – 117); and

(6)   Mrs Kaye Atfield (Supplementary SAF, Exhibit P2)

32. I will return to these human impacts and Wambo’s response ([38] below), but I accept the description those witnesses give of the plume itself, which is also depicted in the video and still photography before the Court (Exhibit P1, tabs N, O, and P). The Code (tab I) notes that a plume will change its appearance as NO is converted to NO2, and as it disperses.

33. The air polluting plume and fumes dispersed and dissipated over a period of approximately 25 minutes (SAF 130).

34. I also note that, on the day of the offending blast, at 4.58pm, Wambo reported the incident to the Prosecutor, and, subsequently, to Singleton Council, NSW WorkCover, NSW Fire and Rescue, and the NSW Public Health Authority.

35. Wambo subsequently took the following measures (SAF 120):

1. Conducted an investigation;

2. Provided oral updates regarding the blast to meetings of its Community Consultative Committee (“CCC”);

3. Sent a letter containing details of the incident to members of the CCC and to residents who made complaints about the incident;

4. Purchased a mobile weather station, at a cost of $15,000;

5. Identified the need to use the SMS messenger service to proactively notify neighbours of fume generation; and

6. Updated the community on Wambo’s review and enhancement of its blast management processes, via the Wambo Coal Community Newsletter dated June 2015.

36. Mr Johnson submitted (Tp47, LL40 – 41):

... there's obviously a lot more work that's gone on, and expense incurred, than is listed in the bare statement of facts.

Environmental harm

37. The SAF (at 121 – 127), under the heading “Environmental Harm”, sets out the consequences of blasting incidents of this kind:

NOx gas

121   Ammonium nitrate-based explosives can generate post-blast gases known as Oxides of Nitrogen (NOx). The most common of these gases are nitric oxide (NO) and nitrogen dioxide (NO2), both of which are toxic. NO2 gives blast fume a reddish orange colour and pungent odour. Blast fumes have potentially high concentrations of NOx and pose a health risk if people are exposed to them before the fumes can dissipate.

122   Sections 7.3.8 and 7.3.9 of the Code recognise that people off-site are unlikely to be significantly affected by blast-generated NOx gases, as NOx plumes generated during blasting will generally dissipate to background levels in a relatively short time.

123   However, the Code recommends that if a NOx plume does not dissipate and people are exposed to the fumes, that medical attention is sought as soon as possible. Appendix 4 of the Code contains the following information about the health risks of NOx gases that should be provided to a medical practitioner treating a person who has been exposed to NOx gases:

NOx irritates the eyes and mucous membranes primarily by dissolving on contact with moisture and forming a mixture of nitric acids. But this is not the only mechanism by which injury can occur. Inhalation results in both respiratory tract irritation and pulmonary oedema. High level exposure can cause methhaemoglobinaemia. Some people, particularly asthmatics, can experience significant broncospasm at very low concentrations.

The following effects are commonly encountered after NOx exposure:

ACUTE

Cough

Shortness of breath

Irritations of the mucous membranes of the eyes, nose and throat.

SHORT TERM

Pulmonary oedema which may be delayed for up to 4-12 hours.

MEDIUM TERM

R.A.D.S. (Reactive Airways Dysfunction Syndrome)

In rare cases bronchiolitis obliterans which may take from 2-6 weeks to appear.

LONG TERM

Chronic respiratory insufficiency.

High level exposure particularly associated with methhaemoglobinaemia can cause chest pain, cyanosis, and shortness of breath, tachapnea, and tachycardia. Deaths have been reported after exposure and are usually delayed. Even non-irritant concentrations of NOx can cause pulmonary oedema. Symptoms of pulmonary oedema often don’t became (sic) manifest until a few hours after exposure and are aggravated by physical effort.

124   Appendix 5 of the Code contains the following information about the toxicology of NOx:

The first toxic effects observed with NO2 exposure are related to irritation of the airways and eyes. These effects have been studied many times with human volunteers in control environments. Because NO2 is not very soluble in the moist airways, some gas can reach deep into lungs, causing delayed effects, notably pulmonary oedema (fluid in the lung), which can cause death. Normally, asthmatics or people with chronic lung conditions (eg bronchitis) are considered to be the individuals most ‘at risk’ in the general population. As with many toxic substances, the observed effects depend on both the concentrations and duration of exposure…

125   The Department of Health advises that, for most people, any health effects from exposure to a blast fume are short-lived and may include:

a.   eye, nose and throat irritation and coughing,

b.   dizziness and headache,

c.   shortness of breath, and

d.   wheezing or exacerbation of asthma.

126   Serious lung inflammation (pulmonary oedema) has been known to develop several hours after exposure to very high levels of NO2.

127   The Department of Health advises people to avoid NOx fumes, to close windows and doors if exposed to blast fume and, if exposed, to use water to thoroughly wash their eyes and to clear their nose and throat.

Actual Human Harm

38. It was agreed by the parties (SAF 128) that actual harm was caused to the health of the residents who were exposed to the fume, but that that harm was of limited duration and seriousness, due to the generally short exposure times.

39. It was not anticipated that the residents harmed would suffer any serious or long term health problems as a result of the incident.

40. However, the parties agreed (SAF 131), and it was emphasised in the Prosecutor’s submissions, that the incident also had the potential to impact on other nearby residents, and children at the nearby child care centre (see [47] below, and Tp26, LL13 – 18).

41. It was agreed between the parties (SAF 129) that harm was actually caused also by way of interference with the comfort and/or repose of the impacted residents, in that they:

1. experienced an extremely unpleasant odour;

2. experienced discomfort including coughing, itchy and watering eyes and dry throat; and

3. were required to cease what they were doing outdoors and remain inside.

42. None of the affected residents ([31] above, and SAF 85) was contacted by Wambo or on its behalf between the blast and the time at which they were impacted by the odorous fumes.

43. Mrs Carter noticed a “rotten egg” gas type smell, and a large yellow cloud of fume heading her way, about five minutes after hearing the blast. She closed her windows, and went outside to remove her washing, experiencing a “rotten horrible taste in the back of [her] throat which made [her] cough. It made [her] throat [and] nasal passage very dry and [she] felt like [she] needed to drink a lot of water to get rid of the taste.” (SAF 91). The smell persisted in her house for a couple of days (SAF 92).

44. The Pevys operate an equestrian business on their boundary with the Wambo site, and would appear to be the mine’s closest neighbours. A dark orange fume rapidly approached them while they were out riding. Mrs Pevy found it hard to breathe, had a dry throat and dry nostrils, her husband coughed for three days, and they described the smell as “disgusting”, “horrible” and “metallic” (SAF 93 – 99, and 104 – 106). They took precautions to protect their horses (SAF 100). The smell “diluted” slowly and the fumes thinned out (SAF 101 – 102). They called the EPA and Wambo – it was the first time in five years there that they had to call the EPA (SAF 103).

45. Mr Carmody was in his backyard with his grandchildren when the blast occurred, and he noticed an orange plume heading towards him 10 to 20 minutes later (SAF 108). Before taking the children inside, he noticed a “horrible ‘rotten egg’ gas kind of smell” (SAF 109). His eyes were itchy for about an hour (SAF 110); the plume and smell disappeared in that time, but his wife’s eyes were still itchy (SAF 111).

46. At about 3.40pm, Mr Thelander was driving home to Jerrys Plains with his family, and noticed a large yellow/orange fume cloud (SAF 114). When they got home about five minutes later, he detected “a strong odour that had a sulphur smell and taste to it, and could feel it irritating his throat and eyes” (SAF 115). He drove away, and, when he returned around 7pm, the smell and fume had gone (SAF 116).

47. Mrs Atfield (Exhibit P2) has lived at 365 Redmanvale Road, Jerrys Plains since 1995, and runs a day care centre from her house. At the time of the blast she had seven children in her care, aged one to eight. As usual, when she heard a blast, she closed all doors and windows, and kept the children inside until pick-up time. Outside her residence she observed the fume, and detected an offensive “rotten egg” gas smell, which made her want to cover her nose and mouth. That smell had gone by sometime between 5.45 and 6.45pm.

48. Mr Favell attempted to visit personally all the affected residents, to check on their health and wellbeing, encourage them to seek medical attention if needed, and provide them with the NSW Health Department Fact Sheet (SAF 86 – 88, SAF 120 item 1, and Exhibit P1, tab J)

THE SENTENCING FRAMEWORK

49. The parties were generally in agreement as to the sentencing principles to be applied by this Court. Nonetheless, there were differences between them regarding their application in the present case.

Relevant statutory provisions

Protection of the Environment Operations Act 1997

50. Section 241 of the POEO Act sets out those matters a court should take into consideration when imposing a penalty for an offence against the Act, such as this one. Section 241 reads as follows:

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,

...

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

51. These matters are all relevant considerations in the current proceedings. Subsection (1)(e) does not apply.

Crimes (Sentencing Procedure) Act 1999

52. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (“CSP Act”) outlines the purposes for which a sentence may be imposed:

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.

53. All those stated purposes are also relevant to the current sentencing exercise.

54. Section 10 of the CSP Act allows a court to grant relief from penalty, but the defendant in the present case seeks no s 10 relief (Tp42, LL5 – 6).

55. The CSP Act further sets out, in s 21A, relevant aggravating, mitigating and other factors that the Court should take into account in sentencing:

21A   Aggravating, mitigating and other factors in sentencing

(1)   General

In determining the appropriate sentence for an offence, the court is to take into account the following matters:

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

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

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

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

(2)   Aggravating factors

The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

…

(d)   the offender has a record of previous convictions …

…

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

…

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

…

(o)   the offence was committed for financial gain,

…

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

(3)   Mitigating factors

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

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

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

…

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

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

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

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

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

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

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

…

(k)   a plea of guilty by the offender (as provided by section 22),

…

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

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

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

…

56. The harm caused can be an aggravating or a mitigating factor, under s 21A. Mr Johnson submitted (Tp31, LL20 – 24):

... it is both an aggravating factor if it's there, and a mitigating factor if it's not there. The prosecution needs to prove beyond reasonable doubt that it is an aggravating factor, and the defence needs to prove, on the balance of probabilities that it's a mitigating factor. It is obviously possible that neither party succeeds and it remains a neutral factor.

Plath v Rawson

57. In Plath v Rawson (“Rawson”) (2009) 170 LGERA 253; [2009] NSWLEC 178, Preston ChJ set out (at [46] – [48]) various matters which may be taken into account when assessing the objective gravity or seriousness of an environmental offence. Although not an exhaustive list, these matters included:

• The nature of the offence;

• The maximum penalties for the offence;

• The harm caused to the environment by commission of the offence;

• The state of mind of the offender in committing the offence;

• The offender’s reasons for committing the offence;

• The foreseeable risk of harm to the environment by commission of the offence;

• The practical measures to avoid harm to the environment; and

• The offender’s control over the causes of harm to the environment.

58. Earlier authorities had noted that the objective gravity of the offence fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14. It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence: R v Dodd (1991) 57 A Crime R 349.

58. Further (at [140]), Preston ChJ set out the “favourable” factors relevant to an offender, which may be taken into account within the limits set by reference to the objective gravity of the offence. This also was not intended to be an exhaustive list, but included:

• Lack of prior criminality;

• Prior good character;

• Plea of guilty to the offences;

• Contrition and remorse; and

• Assistance to authorities.

60. Preston ChJ also noted (at [202]):

202   A fine is the most common sentencing option and often the most appropriate penalty for environmental offences. The fine embodies the legislative view, based on community standards, of the seriousness of criminal conduct. A fine can achieve the purposes of sentencing of retribution, accountability, denunciation and deterrence. ...

61. His Honour further noted (at [217]) that, ultimately, the penalty to be imposed in a particular case must be determined by what the High Court calls “an instinctive synthesis of all the relevant objective and subjective circumstances of the offence and offender”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, at [37], [39], [66], [72], and [73]. See also Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, at [26].

Objective factors

62. As Wambo submitted, the objective gravity or seriousness of the offence has two principal components: the precise acts or omissions of the offender (here the blasting), and the consequences of those acts or omissions (here the generation of a plume and odour, carried by wind). Mr Johnson points out (Tp40, LL12 – 17) that the topography near the site “is likely to have local wind effects”.

63. The maximum penalty prescribed by statute for the relevant offence ([4] above) is of “great relevance” to the question of objective gravity, as it publicly expresses the seriousness with which Parliament, and, by extension, the general community, regards an offence. See Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (“Camilleri”) (1993) 32 NSWLR 683; 82 LGERA 21.

64. As noted in Camilleri (at 698):

The task of a court is to assess the relative seriousness of the offender’s particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum.

65. A key consideration when determining the objective seriousness of an offence is the statutory context in which the offence was committed: Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34. The various objectives of the POEO Act are set out in s 3 of it, and the Prosecutor relies on the following as relevant:

(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,

...

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

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

(i)   pollution prevention and cleaner production,

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

(iia)   the elimination of harmful wastes,

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

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

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

…

66. The Prosecutor also submitted (par 11) that the offence created by s 129 of the POEO Act is “one of the primary mechanisms by which the ... Act achieves the objectives of preventing pollution and degradation of the environment and of minimising the risks to human health”.

67. Insofar as an offender’s state of mind can be relevant ([57] above), the Prosecutor made clear that it was not alleging either any criminal scheme, or any intention or negligence on Wambo’s part. The Prosecutor simply submits that “steps” could reasonably have been taken to mitigate the outcome of the blast.

Statutory considerations

68. I turn now to the considerations mandated by s 241 of the POEO Act (see [50] above).

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

69. The Dictionary of the POEO Act includes the following definitions relevant to this consideration:

air impurity includes smoke, dust (including fly ash), cinders, solid particles of any kind, gases, fumes, mists, odours and radioactive substances.

air pollution means the emission into the air of any air impurity.

harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.

offensive odour means an odour:

(a)   that, by reason of its strength, nature, duration, character or quality, or the time at which it is emitted, or any other circumstances:

(i)   is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or

(ii)   interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or

(b)   that is of a strength, nature, duration, character or quality prescribed by the regulations or that is emitted at a time, or in other circumstances, prescribed by the regulations.

pollution means:

(a)   water pollution, or

(b)   air pollution, or

(c)   noise pollution, or

(d)   land pollution.

70. In Environment Protection Authority v Waste Recycling and Processing Corporation (“Waste”) [2006] NSWLEC 419, at [145] – [147], the Chief Judge broadly interpreted the concept of “harm”:

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

146   Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174].

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

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

71. In the present case, actual harm to the environment has been agreed. The intensity of the NOx fumes generated was rated as 3C on a scale from 1A to 5C (SAF 65 – 66, Appendix 2 to the Code). They extended across the whole of the Blast site (SAF 65 and 66), and they took some 25 minutes to disperse and dissipate.

72. It is also agreed that there was actual harm to the health of six neighbouring residents, who were exposed to the fume, and experienced itchy, stinging eyes; sore throat; headache; difficulty breathing and a dry mouth, and had their comfort and/or repose interfered with. Such harm was of limited duration and seriousness due to the generally short exposure times, and no long-term health impacts were anticipated or claimed.

73. There was, however, the potential that harm may have been caused to more than the seven residents to whom I have referred, and that potential must be taken into account: Waste, at [145] (see [40] and [70] above).

74. The Prosecutor submitted (par 41, and Tp16, LL4 – 5) that, as the present offence caused what might be called “moderate” harm – i.e. harm which is not s 21A “significant” (see Environment Protection Authority v Orica Australia Pty Ltd (the Evaporator Incident) (“Orica Evaporator”) [2014] NSWLEC 104, at [118]) – it falls within the mid-range of objective seriousness, whereas the defendant emphasised that all the harm was of limited duration and seriousness, and submitted that, on the scale of objective criminality encompassed by activities which would contravene s 129, the harm caused should be found to fall at the upper end of the low range, or the lower end of the medium range.

75. Like the defendant, I do not accept the proposition that harm caused to the residents should be adjudged more serious because they were at home, rather than in a workplace (c.f. Orica Evaporator, at [116]). No statutory or common law basis was advanced for such a principle, but Ms Junor clarified her submission thus (Tp52, LL28 – 33):

The submission isn't that the physical harm is any greater whether it's at home, or at work, but harmfulness does take into account the impact on quality of life, and quality life in one's leisure time, compared to one's work. The impact is greater, in my submission, when the impact is on people when they're at home in their free time.

(b)   The practical measures that may have been taken to prevent, control, abate or mitigate harm

76. The parties agree (SAF 134) that there were two practical measures that Wambo may have taken to prevent, control, abate or mitigate the harm arising from the offence. These measures were the use of hand-held anemometers or more proximate weather stations, and the notification of relevant persons who were likely to be affected by the fumes by text message once Wambo personnel observed that the fumes was blowing in a north-westerly direction.

77. As the Prosecutor noted, these measures could easily have been adopted after a similar prior incident in 2012. In any event, as the defendant noted (subs par 8.10), these measures have since been implemented.

78. The superior weather devices available were not unreasonably expensive, and a text messaging procedure was already in place to warn of blasting.

79. The Prosecutor also submitted that Wambo should have accessed weather forecasts to determine the predicted post-blast winds, and should have delayed the Blast until the following morning when weather conditions were expected to be more favourable. The next day would have been within the 8-day maximum sleep-time for the explosives, which were loaded between 8 and 14 May 2014.

80. Wambo submits that it undertook the relevant practical measures dictated by the extensive documentation in place – neither the PIRMP nor the BMP contained any express requirement to proactively warn residents in the event of a blast fume incident, and, further, Wambo complied with the procedures set out in the BMP in relation to post-blast notification of authorities. Wambo took significant care to ensure that the blast was conducted in compliance with those documents ([13] above—see SAF 53 – 62, and Favell affidavit par 8), and had taken extensive and significant practical measures to minimise the prospect of an incident occurring (See SAF 118 – 119, Moore affidavit par 15, and Favell affidavit par 7). Despite the employment of significant practical measures, blast fume events can still occur.

81. The defendant noted that, in the calendar years of 2014 and 2015 (to the end of October) there were 155 blast events at the Wambo site, and the May 2014 incident is the only blast event in the calendar years of 2014 and 2015 (to the end of October) which, according to Wambo’s records, involved any complaint from neighbours or the EPA in relation to blast fume (Moore affidavit par 14).

(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

82. In Environment Protection Authority v BHP Steel (AIS) Pty Limited [2001] NSWLEC 214, Talbot J said (at [68]):

… the test of whether the defendant could reasonably have foreseen the harm caused requires something more than an appreciation of the mere possibility that the harm could occur.

83. Wambo was aware that mine blasts can produce fumes and associated odour. It also had knowledge of the wind conditions at the meteorological station and the Blast site immediately prior to the Blast and the location of residents to the north and west of the Licensed Premises. It was aware of the Code, and that there were potential and harmful human health and amenity effects from exposure to fumes produced by mine blasts (SAF 132 – 133), and it knew of the impacts experienced by a number of residents as a consequence of the 2012 incident at the Wambo site. Hence, the harm caused by the emission of NOx gas from the Licensed Premises in this incident was entirely foreseeable.

84. The defendant conceded that the risk of harm was foreseeable, but suggested that such incidents resulted from the unfortunate coincidence of two primary factors. While the generation of NOx was foreseeable, Wambo sought to deal appropriately with the wind contingency by utilising a weather station, weather balloons, and adherence to the BMP, which prescribes when blasts may be carried out (Tp38, LL30 – 35). There is nothing that the Prosecutor could suggest Wambo could have done, or would have done differently, given its state of knowledge, and the circumstances at the time (Tp38, LL16 – 21).

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

85. The causes of the offence in this case are the production of an odorous fume and the intervention of wind conditions.

86. Clearly, the defendant can have no “control” over the wind, beyond taking adequate precautions.

87. The cause(s) of fume production upon detonation of the Blast are not known (SAF 79), but, as the deemed occupier of licensed premises (s 258 of the POEO Act), Wambo had complete control over the manner in which its scheduled activities were carried on at the licensed premises, blasting being an integral part of the scheduled activities carried out by Wambo, governed by the BMP (SAF 43 and 34).

88. It was further submitted by the Prosecutor (par 32) that, under its Services Agreement with Dyno Nobel (Exhibit P1, tab F), Wambo and Dyno Nobel were jointly responsible for managing health, safety and environmental impacts of shot firing activities (SAF 26). Wambo was solely responsible for the design and preparation of the Blast, firing timing notification, and approval to fire, and both Perry, who approved the detonating of the blast, and Pitcher, who designed the blast, both worked full-time at the Licensed Premises, and were acting on behalf of Wambo at all relevant times (SAF 16 – 20, and 45 – 50).

89. The Prosecutor argued (par 33) that Wambo was ultimately responsible for the planning and execution of the blast, and overseeing Dyno Nobel’s work (SAF 52), and (par 34) that Perry should have identified a number of relevant discrepancies which indicated that the data recorded at the Meteorological Station (SAF 55) was either incorrect, or that the wind conditions at the actual blast site were different. There is no evidence that the station was not working properly (Mr Johnson at Tp39, LL15 – 16).

90. The Defendant argues that Wambo, and, more specifically, Perry, strictly observed the BMP and BFMS. Mr Perry’s professional judgment was that the weather conditions were suitable, and within the “green zone” identified in the BMP matrix. The defendant rejects the submission that the blast was detonated in “unfavourable weather conditions”. In terms of exercising control, the defendant again submits that the Prosecutor can identify nothing that the defendant could have done, or would have done differently, given the state of knowledge and the circumstances at the time (Tp38, LL16 – 21).

91. It is clear that the defendant did have general control over its blasting procedure, and followed the usual protocols in the BMP by utilising the Meteorological Station, and also weather balloons. However, the Court acknowledges the difficulties associated with wind prediction, and considers that the defendant perhaps should have been careful in monitoring any discrepancies between those two methods of measurement.

Other relevant matters?

92. Section 241(1)(e) does not apply to this case, but s 241(2) enables the Court to take into consideration any other matters it considers relevant.

93. The Prosecutor submits that a further relevant factor is the known toxic nature of NOx gases, and the potential for such fumes to impact seriously on human health (SAF 121 – 127). It is incumbent on any entity dealing with such gases to ensure that it has rigorous practices and procedures in place to manage the risks posed by those materials. Wambo was, or should have been, well on notice of the need to exercise particular caution when conducting blasting activities.

Conclusion on objective seriousness – classifying the offence within a range?

94. Moore AJ (as his Honour then was) noted, in Environment Protection Authority v Nulon Products Australia Pty Ltd (“Nulon”) [2015] NSWLEC 153, at [166], that offences normally fall somewhere within a range of behaviour that ranges from the “least bad case” to the “worst case” of such conduct.

95. In this case, where in that range the offence falls will be determined by reconciling the Prosecutor’s characterization of the offence as constituting behaviour that falls in the mid-range of objective seriousness, with the defendant’s characterization of the offence as falling in the upper end of the low-range of objective seriousness. As his Honour noted (at [167]), placement within a range is not a task of mathematical precision, but merely a tool to assist with the instinctive synthesis process required to determine an appropriate penalty (see [61] above).

96. On the basis of (1) the actual harm to human health of the impacted residents, (2) the rating of the NOx gas emission as 3C on the relevant scale, (3) the transitory environmental harm resulting, (4) the foreseeability of the risk, and (5) the relative degree of control Wambo had over the causes of the offence, I consider that the offence falls into the low-end of the middle range of objective seriousness.

Subjective factors

97. I turn now, therefore, to the other side of the synthesis, namely the subjective factors.

98. The factors in CSP Act s 21A (see [55] above) which are of relevance to Wambo are considered below.

Prior convictions

99. The first relevant factor is found in s 21A(2)(d) and s 21A(3)(e) of the CSP Act and requires consideration of whether Wambo has any record (or any significant record) of previous convictions, and whether a previous conviction amounts to an aggravating or mitigating factor.

100. Wambo has one prior conviction, imposed by Singleton Local Court on 1 August 2014, for a breach of s 129 of the POEO Act which occurred on 24 July 2012. The Court imposed a fine of $13,000, and Wambo agreed to pay the Prosecutor’s costs of $24,000 (SAF 137).

101. The Prosecutor submits that that prior conviction is an aggravating factor under s 21A(2)(d) of the CSP Act, and the defendant maintains that Wambo’s prior conviction could not be considered “significant”, and so does not amount to an aggravating circumstance.

102. I agree with the prosecution’s submission that the 2012/2014 conviction involved the same factual circumstance of wind blowing NOx gas fumes from the premises. It occurred only two years prior to the present event, and I agree that the measures the defendant was required to implement following that previous incident have been shown by the “strikingly similar” (Tp22, L42) present incident to have been clearly insufficient to prevent future offences.

99. In contrast, the defendant submitted that prior convictions must be considered in the context of major industries running large operations which necessarily and continuously interact with the environment, making it more likely that environmental incidents (whether involving culpability or not) will occur simply by reason of the frequency and scale of operations. Many environmental offences involve strict liability, so occasional convictions may be expected, and do not amount to any systematic (attitude of) disobedience of the law. As Wambo does not have “any significant record” of previous convictions for environmental offences, it is entitled to have its lack of a significant record of previous convictions taken into account as a mitigating factor.

100. Mr Johnson placed heavy reliance on the use of the plural “convictions” in both s 21A(2)(d) and s 21A(3)(e), suggesting that the drafter intended that there need be more than one conviction before a “record of previous convictions” became an aggravating circumstance (Tp43, LL2 – 4). He drew particular attention to s 8(c) of the Interpretation Act 1987 which requires a plural form of a word or expression to be seen as including the singular form.

101. The parties’ competing submissions referred to a number of cases.

102. In Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80, the defendant had four prior convictions more than 15 years prior to the offence in question, involving different causes, circumstances, and consequences, including as to the nature and extent of harm. The Court found that Sydney Water’s prior convictions did not manifest a continuing attitude of disobedience of the law, nor establish that it had not been deterred from reoffending. The Court also declined to accept that the defendant’s record could be considered a mitigating factor – the defendant couldn’t be considered a first time offender.

103. In Environment Protection Authority v George Weston Foods Ltd [2010] NSWLEC 120, the Court determined that the defendant was entitled to the benefit of a clean record, on the basis that its sole prior conviction had been 14 years prior. The Court took into account as relevant considerations such things as the magnitude of the defendant’s operations, the spread of its facilities, the size of its workforce, and the fact that it operated in two countries. These findings were essentially restated in Environment Protection Authority v George Weston Foods Limited [2013] NSWLEC 16.

104. In Environment Protection Authority v BHP Steel (AIS) Pty Ltd [2000] NSWLEC 19, the defendant had operated since 1961 and had 26 convictions. The critical factors that the Court took into account in finding a clean record, were the size of the workforce, being 6,900 people, the fact that the incident was caused by circuit failure where there were 1,000 circuits at the site, and the design of the defendant’s operations.

105. I agree with the Prosecutor that the 2014 conviction for the 2012 incident should be considered an aggravating factor, because of its “striking similarity” to the present incident. The defendant should not be entitled to the benefit of a finding that it has a clean record, but I acknowledge that some relevant remedial steps were taken between 2012 and 2014 to improve the prospect of avoiding any further incident such is now before the Court.

106. Between 2004 and 2011 some five Penalty Infringement Notices were issued to Wambo for environmental incidents or contraventions of EPL conditions, but, as those notices involved offences unrelated to the present facts, they should be given minimal weight: Environment Protection Authority v Burrangong Meat Processors Pty Limited [2003] NSWLEC 102. In any event, they form only part of the historical factual matrix of this case.

Defendant’s Character

111. The question of whether Wambo is “of good character” must be considered in the context of what the Chief Judge said in Rawson (at 143] – [148], citations omitted):

143   Prior good character can have both a negative and a positive aspect: … The negative aspect of good character can refer to the absence of prior convictions and otherwise not having previously engaged in other criminal conduct: … The positive aspect of good character can include a history of prior good works and contribution to the community: … The reason for prior good character being a mitigating factor is that a “morally good” person is less deserving of punishment for a particular offence than a “morally neutral or bad” person who has committed an identical offence: ...

144   Good character may operate to reduce the sentence which the objective facts of the offence would otherwise attract: ... As with prior criminality, prior good character is not part of the objective circumstances of the offence: … Prior good character is relevant to where, within the boundary set by the objective circumstances, a sentence should lie: ...

145   There are two distinct stages in using prior good character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. Secondly, if so, it is necessary to determine the weight that must be given to that mitigating factor. The weight that must be given to the offender’s otherwise good character will vary according to all the circumstances: …

146   The weight to be given to prior good character depends, to an extent, on the character of the offence committed: ...

…

148   Environmental offences are another illustration of a class of offences committed by person who, typically, are of prior good character. They very rarely have previously engaged in other criminal conduct and mostly do not have any prior convictions for environmental offences. The prevalence of the commission of environmental offences by persons of otherwise good character, and the importance of the sentence for environmental offences achieving the purpose of general deterrence, makes the fact that the offender is of otherwise good character of less relevance than it might be in sentencing for other types of offences.

(His Honour referred, in particular to Ryan v The Queen (“Ryan”) (2001) 206 CLR 267; [2001] HCA 21, and R v McNaughton (2006) 66 NSWLR 500; [2006] NSWCCA 242.)

112. Despite its prior conviction, I am satisfied that I should regard Wambo as a corporation of good character, on the basis of its history of prior good works and its contribution to the community: Ryan, at [27]. I have reached this conclusion for several reasons.

113. Moore deposes (pars 15 – 23) to the seriousness with which Wambo takes its environmental responsibilities, and his affidavit also contains (at pars 9 – 10) evidence of Wambo’s significant contributions to the local community over many years, including support of local schools, sponsorship and participation in scholarship programs, local sporting clubs and associations, supporting wildlife rehabilitation, and various fundraisers and local festivals. It also testifies to the Peabody Group’s commitment to acting as a good environmental citizen, including being a foundation member of the “COAL21 Fund”, participating in the Upper Hunter Mining Dialogue, and relevantly reviewing its corporate practices against international sustainability benchmarks.

114. These activities extended over several years prior to the incident, indicating that Wambo has provided support for the community of its own accord, and the Court accepts that it plays an active, positive role in the community within which it operates.

Likelihood of reoffending

115. Moore deposes (pars 15 – 23):

15   Minimising blast fume and mitigating its impact on our neighbours has been a priority focus for several years. The initiatives that Wambo had implemented in the two years preceding the Blast Incident included:

a.   conducting an extensive review of Wambo’s Blast Management Plan (BMP) (December 2008 edition). ... This extensive review involved, among other things:

i.   developing a revised Blast Fume Management Strategy (BFMS) which is incorporated in the revised approved BMP (May 2013 and February 2014 editions). The BFMS is designed to address the “Code of Practice ...;

ii.   establishing an SMS message service to enable members of the community who have registered for the service to be automatically notified by SMS message with blasting details the day before a scheduled blast event. This SMS message service supplemented the existing 24 hour Blasting Information Hotline, which enables the public to obtain up-to-date information on blasting operations at the Wambo Coal Mine.

b.   delivering to neighbouring residents a copy of the NSW Health fact sheet titled “Mine Blast Fumes and You” (NSW Health fact sheet);

c.   distributing information to its employers and contractors concerning the health effects of blast fumes; and

d.   continually reviewing and implementing best practice management standards and procedures for blast management and fume management.

16   Following the Blast Incident, Wambo carried out an investigation in an endeavour to indentify the root causes for its occurrence. It retained an independent explosives expert, Dr Alistair Torrance to assist in this review. No definite root causes for the fume production could be identified.

17   The relevant actions taken by Wambo and after the Blast Incident to investigate the fume event, update our neighbours, and to implement initiatives to minimise the recurrence of such an event and to mitigate the impacts of fume events, are listed in paragraph 120 of the SoAF.

18   In paragraph 120 of the SoAF, reference is made to Wambo having identified a need to use the SMS messenger service to proactively notify neighbours of fume generation. What we have done in this regard, is to revise our Blast Management Plan (BMP) and BFMS. ...

...

23   In addition to the initiatives referred to in paragraph 120 of the SAF, Wambo has worked closely with Dyno Nobel to trial a new explosives product known as Titan 9000. This product was designed by Dyno Nobel to reduce post blast fume where blasts occur in damp soft ground conditions. Titan 9000 was extensively trialled at the Wambo Coal Mine from June 2014 through to the end of that year. The trial was successful, and as a result, Wambo is now regularly using this product in the upper horizon to the first coal seam in the Montrose Pit, which is where the Blast Incident occurred. Annexed to this affidavit and marked “GM-4” is a copy of Dyno Nobel’s brochure dated 2015 on its new Titan 9000 product. The trials of this product at Wambo made a contribution to the commercialisation of the Titan 9000 product by Dyno Nobel.

116. Given the nature of the industry, the Court cannot be satisfied that a similar incident will not occur in the future, particularly as the measures undertaken subsequent to the 2012 event (SAF 35, and Moore’s affidavit) were clearly insufficient to suggest that the causes of that offence were fully addressed by the defendant (Tp22, L48 – p23, L4].

117. After 2012, the defendant reviewed the BMP, incorporated the BFMS, distributed a NSW Health fact sheet, and implemented a pre-blast notification procedure. The Prosecutor submits that the measures taken in response to the current charge were largely the same.

118. Significantly, between the 2012 incident and the current incident, the defendant not only maintained the ultimate decision-making responsibility for blasting, but it also took over from its 2012 sub-contractor (Downer EDI Mining Pty Ltd) control of blasting operations (see Exhibit P1, tab R, pars 14 – 16).

119. After each of the 2012 and 2014 incidents, the defendant trialled a different type of explosive.

120. After the 2014 incident, the BMP was also amended to implement the fume incident notification procedure, but the amendment was not submitted to the Department of Planning until 17 months later.

121. In response to the later incident, the defendant also purchased a mobile weather station, but the evidence before the Court is insufficient to found a conclusion that that welcome acquisition will prevent future occurrences of fumes being blown from the site.

122. The Prosecutor submits that as the 2012 and 2014 responses are largely the same, and have already been shown to be inadequate, the Court should not be satisfied that they will prevent any further offences.

123. Mr Johnson conceded that he was unable to say on behalf of the defendant that such an incident would not occur again. In his written submissions (at 9.23), he argued that there is no need for specific deterrence, as the company has taken, and continues to take, serious measures to address blast fume management. Orally, he submitted (1) that, if such an incident were to occur again, it would be despite the best efforts of the company to ensure it did not (Tp45, LL32 – 40), and (2) that no element of penalty should be necessary to ensure that everything that can be done, will be done, to prevent such an incident from occurring again (Tp46, LL8 – 10).

Contrition and remorse

124. Section 21A(3)(i) of the CSP Act states that the contrition and remorse of the offender for the offence should constitute a mitigating factor only if:

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

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

125. Moore’s affidavit expressly contains the following (pars 11 – 14):

Wambo’s acknowledgement of responsibility for the Blast Incident, and apology to those affected

11   On behalf of Wambo, I am authorised to acknowledge Wambo’s responsibility for the Blast Incident and to extent Wambo’s apology to all persons adversely impacted, and to the Court. I have been authorised by Charles Meintjes, director of Peabody Energy Australia (PEA) and President (Australia) of the Peabody Group, to also extend this apology on behalf of PEA, which is Wambo’s ultimate Australian parent company. Annexed to this affidavit and marked “GM-2” is a copy of a letter from Charles Meintjes to me dated 26 November 2015 in relation to that authorisation. [not reproduced here]

12   Wambo is a long-term participant in the Hunter Valley community and takes its environmental obligations very seriously.

13   It regrets the Blast Incident and any resulting discomfort caused to affected neighbours.

14   In the calendar years of 2014 and 2015 (to the end of October) there were 155 blast events at the Wambo Coal Mine. The Blast Incident is the only blast event in the calendar years of 2014 and 2015 (to the end of October) which, according to Wambo’s records, involved any complaint from neighbours or the EPA in relation to blast fume.

126. I also acknowledge again here Moore’s presence in Court, and his oral evidence (Tpp10 – 13) on 17 December 2015, in which he accepted responsibility for the incident and offered a sincere apology to the Court and community members, as a representative of Wambo, and in a personal capacity (Tp11, LL9 – 12).

127. I am satisfied that Wambo has effectively demonstrated its remorse, that it has provided evidence that it has accepted responsibility for its actions, and that it regrets the occurrence of the subject incident.

Early plea of guilty

128. One thing which provides some evidence of remorse is a plea of guilty: Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74, (at 663 – 664).

129. The parties jointly acknowledged (SAF 139) that Wambo entered its plea of guilty at the earliest opportunity, so avoiding the expense of a trial. The plea had utilitarian value to the system of administration of justice: R v Thomson; R v Houlton (“Thomson”) (2000) 49 NSWLR 383; [2000] NSWCCA 309.

130. Wambo should be entitled to the full Thomson discount of 25%, and this was not contested by the Prosecutor.

Assistance to the Prosecutor

131. The following was agreed by the parties (SAF 140):

Assistance to Authorities

140   Wambo has fully cooperated with the EPA during its investigation of the Incident. Specifically, Wambo has provided assistance to the EPA:

•   by making all requested agents, officers and employees and representatives of entities associated with Wambo available for directed interviews;

•   by providing requested responses to all statutory notices for information and records; and

•   through its solicitors, agreeing to a statement of agreed facts.

132. In its written submissions, Wambo submitted that it should be afforded a lesser penalty, or a specific percentage discount, for its full cooperation with, and the assistance it provided to, the EPA. That assistance was said to be significant and useful, in line with the criteria outlined in the CSP Act, s 23(2)(b) and (d), which states as follows:

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

…

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

…

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

133. Mr Johnson submitted orally (Tp47, LL12 – 14) that:

... cooperation can’t be assumed, ... and where it is forthcoming the law is clear that it should be rewarded.

134. The Prosecutor acknowledged that the defendant had cooperated with its investigation, but refuted the submission of the defendant that its cooperation had necessarily been “significant and useful”, as compliance with statutory notices and attending interviews are legal obligations under the POEO Act, and failure to comply with such obligations would amount to an offence in itself (Tp25, LL15 – 18).

135. The Prosecutor accepted that the defendant made available a number of its employees, and provided documents, but the defendant’s cooperation in this case is no greater or more significant or useful than in any other case (Tp25, LL18 – 23).

136. I am satisfied that the defendant’s cooperation should earn it a modest discount on penalty.

Discounts

137. I discussed discounts at length in Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko (“Magdalene”) [2013] NSWLEC 210 (see [269] – [277]), where I said, inter alia:

269   There are more mitigating factors to consider on sentencing than there are factors for which specific discounts have been defined in the authorities. There is really only the Thomson/Houlton discount for a guilty plea which finds clear definition (10-25%), but the cases recognise that undefined percentages will be added to the guilty discount to take account of those mitigating factors discussed above, or any other exculpatory factor which may be established ...

270   One of the discount principles stated in [R v Borkowski [2009] NSWCCA 102] provides, for example, that there should be no separate discount for remorse.

271   “Total” discounts of 30 to 35%, and occasionally more, are not uncommon in environmental prosecutions; …

272   In marine pollution cases, Lloyd J allowed a total discount of 35% (rounded down to one-third) …, and discounts of 40% were allowed by Bignold J ...

(See also cases to which Preston J referred in Rawson, at [46], and the cases I discussed in Magdalene, at [275] – [277])

138. For the record I discounted the $1.8M penalty in Magdalene by one-third (to $1.2M).

139. In the present case, I am again prepared to allow a total discount of one-third, in light of Wambo’s early plea of guilty, its assistance to the Prosecutor, its attempts to improve its practices, and its remorse.

Deterrence

140. The consideration of general deterrence is highly relevant to the sentencing of environmental offences: Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; [2006] NSWLEC 289, (at [65]-[68]. People will not be deterred from committing such offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354.

140. In the present case, the Prosecutor submitted that both specific and general deterrence are relevant factors to be weighed in the assessment of the appropriate penalty (Tp25, LL25 – 30). There is said to be a need to send a message to the mining community in the Upper Hunter area that breaches of environmental protection requirements are taken seriously (Tp25, LL31 – 37).

141. The defendant submitted (9.23) that there is no need for specific deterrence in this case. It accepts responsibility for the offence to which it has pleaded guilty, but it has taken (and continues to take) serious measures to address blast fume management.

142. Whilst I acknowledge that Wambo has taken a number of measures to address blast fume management in response to the incident, I believe that both Wambo’s prior conviction, and its concession that it is unable to guarantee that such an incident will not occur again in the future, requires some element of specific deterrence, as well as general deterrence.

143. Including an element of specific deterrence in the penalty will help ensure that this defendant will continue to do – as it claims it has done – everything it can do to minimize further offending.

Consistency in sentencing

145. As noted in the defendant’s submissions (9.24, some citations omitted):

The task of the sentencing court is to pursue the ideal of even-handedness in the matter of sentencing: ... However, care must be taken in the task of achieving consistency. There is always a difficulty with comparing the penalty in one case with a penalty in another because of the wide divergence of facts and circumstances: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357. Each case is different and one case does not demonstrate the limits of a sentencing court’s discretion: …

146. In Environment Protection Authority v Hunter Valley Energy Coal Pty Ltd (“Hunter Valley”) [2015] NSWLEC 120, Pain J noted (at [49]) that:

The sentencing principle of evenhandedness provides that like offences should generally receive like penalties subject always to recognition of the individual circumstances of a case.

147. Her Honour referred to the useful summary given by Pepper J in Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131, at [143] – [147], regarding cases involving the emission of an offensive odour under s 129(1), and Pepper J’s summary was also included in the Prosecutor’s submissions (par 50):

143   First, in Environment Protection Authority v Nationwide Oil [2002] NSWLEC 201 the defendant company breached s 129(1) of the Act by allowing an odour to be emitted from its premises due to a spill of light gas oil, contrary to a condition of an environment protection licence. The defendant also breached s 120(1) of the Act. The maximum penalty under the Act at the time for each offence was $250,000. In taking into account the totality principal and the discount for an early guilty plea, the defendant was fined $50,000 for the s 129(1) breach, with a total fine of $80,000 for both offences. The defendant also agreed to pay the prosecutor's costs in the amount of $17,000.

144   Second, in Environment Protection Authority v Illawarra Coke Co Pty Ltd [2002] NSWLEC 21; (2002) 118 LGERA 451 the defendant was the occupier of premises at which a scheduled activity was carried on under an authority conferred by an environment protection licence. It caused the emission of an offensive odour on three separate occasions. The defendant was therefore charged with three breaches of s 129(1) of the Act. The maximum penalty at the time was $250,000. The odour was described as offensive and when particularly strong degraded the amenity of the environment causing headaches, nausea and irritating eyes and throats. The defendant was fined a total of $70,000 for all three breaches in circumstances where the defendant had one previous conviction, pleaded guilty at an early stage and cooperated with the authorities. The defendant was also ordered to pay the prosecutor's costs in the sum of $25,000.

145   Third, in Environment Protection Authority v Burrangong Meat Processors Pty Ltd [2003] NSWLEC 102 the company, which operated an abattoir in Young, was charged with four offences. The first offence involved a breach of s 64(1) of the Act, namely, that it contravened a condition of its environment protection licence by failing to operate its sewerage treatment system in a proper and efficient manner. This offence involved an excess of effluent being pumped through the system that produced offensive odours. The other three offences involved contraventions of s 129(1) of the Act on the basis that the defendant was the occupier of premises at which a scheduled activity was carried on under the authority of a licence and which caused an offensive odour to emanate from the premises. The Court considered that a fine of $50,000 was warranted for each offence, which was then reduced to a total penalty of $58,875 for all four offences taking into consideration the totality principle and mitigating factors, which included that the defendant had pleaded guilty and had agreed to pay $930,000 to undertake works aimed at minimising pollution. In imposing the penalty the Court took into account the fact that the defendant had a high level of culpability, the offences were foreseeable and there were practical measures that the defendant could have put into place to prevent the offences from occurring.

146   Fourth, in Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 the defendant pleaded guilty to an offence against s 129(1) of the Act being the emission of an offensive odour from occupied premises at which a scheduled activity, being a livestock slaughtering rendering plant, was carried on under the authority of a licence. The maximum penalty under the Act at the time was $250,000. The defendant was ordered to carry out a specified project under s 250(1)(c) of the Act being the provision of a park at the cost of $32,000 and to pay the prosecutor's costs in the sum of $40,000. The penalty was imposed in circumstances where there were practical steps that the defendant could have taken to prevent the emission of the odour, the offence was foreseeable, the defendant had control over the causes of the offence, the defendant pleaded guilty and the defendant had one prior conviction.

147   Fifth, in Environment Protection Authority v Shoalhaven Starches [2006] NSWLEC 685 the defendant was the occupier of premises at which scheduled activities were carried on under the authority of a licence and was found guilty of emitting offensive odours from waste water ponds on the premises in contravention of s 129(1) of the Act. The maximum penalty under the Act at the time was $250,000. In addition to being ordered to pay the prosecutor's costs in the amount of $235,000, the defendant was fined the sum of $125,000, ordered to place a publication notice and to carry out an environmental audit. This penalty was imposed in circumstances where the defendant pleaded not guilty, the odour was not toxic, the emission of the odour was reasonably foreseeable and the defendant had prior convictions.

148. All the cases to which Pepper J referred were decided prior to the increase in the maximum penalty for an offence under the relevant provision from $250,000 to the present $1 million. However, such a fourfold increase in the maximum penalty does not automatically result in penalties being multiplied fourfold. In Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280, Giles JA said (at [37]):

Offences of low criminality remain offences of low criminality even if the maximum penalty is increased, and the increase can readily be recognised as operating as a deterrent to wilful disregard of statutory obligations. It remains necessary to address the facts of the particular case, with due regard to the current maximum penalty and the seriousness of the offence and to the need for deterrence thereby indicated together with all other relevant matters.

149. Two other relevant prosecutions have been brought, under s 129 of the POEO Act, since the increase in maximum penalty.

150. One was the 2014 prosecution of Wambo in the Singleton Local Court for the 2012 blast fume incident. The Local Court imposed a penalty of $13,000 (plus costs) in respect of this offence.

151. The Prosecutor submits that the offence the subject of the present proceedings is significantly more serious than the 2012 offence as:

1. Wambo staff, as opposed to a contractor, designed and prepared the Blast;

2. The present offence incident impacted on residents who were also impacted by the 2012 incident (Mrs Carter, Mr Carmody, Mr Thelander and Mrs Atfield) who should have been assured after that incident that Wambo’s procedures and operations would be improved; and

3. This is Wambo’s second offence under s 129 in a period of two years.

152. The second case is Hunter Valley. As the parties differ on its comparability to the present case, Hunter Valley needs to be carefully reviewed.

153. Hunter Valley Energy Coal Pty Ltd (“HVEC”) prepared a number of shots at its Mt Arthur coal mine. Detonation of the blast was required to be delayed until the final day of the recommended sleep-time due to an extended period of wet weather and unsuitable winds. Whilst HVEC detonated a number of blasts during the morning of the final day of the “sleep” period without incident, the final blast, detonated in the afternoon, generated fumes that were rated as 5C in accordance with the Code. The blast fumes were attributed to a change in the wind direction approximately five minutes after the blast, which proceeded to blow fumes across a neighbouring industrial estate, and impacted on the health of seven workers.

154. The Court found that the offence in Hunter Valley was towards the low end of the mid-range of objective seriousness. After a discount of 35% was applied to the original penalty of $90,000, HVEC was required to pay $58,500 to Muswellbrook Shire Council, in addition to $30,000 in prosecution costs. The discount was applied in Hunter Valley on the basis of the defendant’s “clean record”, early plea of guilty and genuine remorse.

155. The Prosecutor submits that the present case is more serious than Hunter Valley for the following reasons:

1. HVEC had only partial control over the causes of the offence, given that the weather was unsuitable for around 17 days and the only two suitable weather windows occurred on Sundays, when HVEC was not permitted to blast;

2. HVEC accessed weather forecasts, which predicted favourable conditions from the time of the blast at 2.25pm up to 4pm, such that the 2.30pm change in wind direction was not really foreseeable;

3. The offence caused harm to amenity only, and none to human health;

4. The people affected by the blast in Hunter Valley were impacted at their places of work and some had access to dust masks, whereas in the present incident impacted on people in their private homes during their leisure time. Consequently, the impact on quality of life is greater in the present case than in Hunter Valley;

5. HVEC issued a media release on the afternoon of the incident, thereby alerting the broader community to it; and

6. HVEC had no prior convictions for environmental offences.

156. The defendant submits that the present case is actually less serious than Hunter Valley because:

1. The blast fume in the present case was classified as “3C” under the Code, which is a moderate rating and considerably less severe than the blast fume the subject of the prosecution in Hunter Valley, which attracted a rating of “5C” (the highest possible rating), indicating that the blast fume was of the worst and most serious type;

2. The video evidence shows the dispersion and dissipation of the fume over time, suggesting that about 8 to 12 minutes after the Blast, the blast fume would no longer be classified “3C”, but some lower rating on the scale;

3. The present incident caused five persons to lodge complaints, whereas the incident in Hunter Valley caused 14 persons to lodge complaints; and

4. The sleep time of explosives in the present case was no more than seven days, which was within Dyno Nobel’s recommended sleep time for Titan 2050 GA loaded into either a dewatered or dry hole, whereas in Hunter Valley, the sleep time of explosives was 21-22 days, which was in excess of the manufacturer’s recommended maximum of 21 days.

157. The impacts in Hunter Valley were expressed by Pain J (at [18] – [19]) in these terms:

18   … [T]he odour was highly offensive, being described as “a sharp, gunshot, sulphur-type smell” (SOAF at par 41), “a strong, acrid, sulphur type smell that filtered through the air conditioning” (SOAF at par 44), “like rotten egg gas” (at par 45), and “similar to ammonia” (SOAF) at par 51. Three workers experienced a sore or dry, scratchy throat (SOAF at par 43, 49 and 51). Another witness described his eyes watering and another developed a headache (SOAF at par 45).

19   The Defendant accepts that the event caused actual harm to the environment as defined in the PEO Act and that the blast fume was significant. Those affected experienced relatively minor symptoms which resolved shortly afterwards (SOAF at par 40-53). There is no evidence that anyone required medical treatment or suffered long lasting health impacts. The environmental harm was transitory and therefore less harmful, relying on Kirby P in Camilleri’s Stock Feeds at 701. The harm was to amenity rather than human health. The blast dispersed within 25 minutes and dispersed over vacant property owned by the Defendant on the other side of the industrial estate. I agree with the Defendant that there is no evidence of any potential for serious impact on human health as a result of the blast fume.

158. The impacts upon human health in the present case were similar in nature and duration to those experienced in Hunter Valley, including a “rotten egg”/sulphur type smell, dry throat and itchy eyes. One exception was the sore throat of Mr Pevy, in the present case, which was estimated to have continued for about three days.

159. Certain other features of the two cases are comparable – the element of control, the accessing of weather forecasts, attempts to alert residents etc.

160. Again I note that I do not accept the Prosecution’s submission ([155](4) above) that the present incident was more serious than Hunter Valley because it impacted residents at their private homes, during their leisure time, as opposed to at their place of work, as was the case in Hunter Valley. I also agree with the submissions of the defendant that the present offence can be taken to be less serious than Hunter Valley, in that the fumes caused by the present offence were rated as “3C” under the Code, compared to “5C” in Hunter Valley, and quickly dissipated.

161. However, the seriousness of the present offence case is elevated by a number of factors, including, notably, Wambo’s previous conviction.

162. On balance, I have concluded that of the cases I have reviewed – Orica Evaporator, Hunter Valley, Nulon, and Environment Protection Authority v Environmental Treatment Solutions Pty Ltd [2015] NSWLEC 160 – Hunter Valley is the most comparable in its seriousness with the present case.

CONCLUSION

Fine

163. I am satisfied, after consideration of all the relevant objective and subjective factors, that the appropriate penalty in this case should be a fine of $90,000, discounted by one-third to $60,000.

Publication Order

164. The parties have reached agreement that there should be a publication order, but they disagree on the precise wording of a particular sentence in the advertisement proposed by the Prosecutor.

165. The Prosecutor submitted the particular sentence should read (Exhibit P4):

The plume travelled in a north to north westerly direction towards the village of Jerrys Plains, causing discomfort and some temporary health impacts to a number of residents.

but the defendant submitted that it should read (Exhibit D1):

Although the detonation of the blast complied with the applicable controls, the plume was blown by the wind towards the village of Jerrys Plains, causing discomfort and some temporary health impacts to a limited number of residents.

166. The Prosecutor was concerned that the term “applicable controls” was unclear, and I respectfully agree. The plain language of s 129(1) provides that Wambo, as the occupier of premises at which scheduled activities are carried on, under the authority conferred by a licence, must not cause or permit the emission of any offensive odour from the premises to which the licence applies.

167. By entering a plea of guilty to an offence under s 129(1), Wambo has signified its guilt in respect of all elements of this offence. It simply cannot now be said that Wambo complied with all applicable controls.

168. My publication order will reflect the Prosecutor’s draft (Exhibit P4), and the draft advertisement appears as Annexure A to this judgment.

Costs

169. The defendant has agreed to pay the Prosecutor’s costs, but they have not yet been quantified.

ORDERS

170. Accordingly, as I have found the offence proven, the orders of the Court will be that:

1. The Defendant is convicted of the offence with which it was charged;

2. The Defendant is to pay a fine of $60,000.

3. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 the Court orders the Defendant, at its expense, within 35 days of the date of this order, to place a notice, in the form of Annexure A to this judgment, in the following publications, at a minimum size of a quarter page:

1. The Newcastle Herald,

2. The Singleton Argus,

3. The Muswellbrook Chronicle, and

4. ‘Coal Face’ magazine.

4. The Defendant, within 14 days of the date of publication of the notice specified in (3), provide to the Prosecutor a complete copy of the pages of the publications on which the notice appears.

5. The Defendant is to pay the Prosecutor’s costs, as agreed or assessed.

6. Exhibits are returned.

**********

ANNEXURE A (218 KB, pdf)

Amendments

28 September 2016 - Annexure A - Last paragraph, line 2 now reads "$60,000".

Decision last updated: 28 September 2016