Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink - [2010] NSWLEC 24

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Wattke, Environment Protection Authority v Geerdink [2010] NSWLEC 24

PARTIES: PROSECUTOR
Environment Protection Authority
FIRST DEFENDANT
Martin Wattke
SECOND DEFENDANT
Rene Geerdink

FILE NUMBER(S): 50070 of 2008; 50071 of 2008; 50077 of 2008; 50078 of 2008

CORAM: Pain J

KEY ISSUES:
PROSECUTION :- guilty plea - sentence - unlicensed waste operations – negligent disposal of waste on rural property in course of company business of waste disposal – one defendant director of company - one defendant manager with control of daily operations - serious environmental harm from disposal of toxic waste on rural property - harm confined to property - harm foreseeable - aggravating factors – whether extracurial punishment – appropriate sentence substantial community service order and fine - consideration of defendants’ means to pay – mitigating factors - late plea of guilty - defendants of good character - no prior convictions - substantial costs of prosecutor taken into account
PROSECUTION:- guilty plea - sentence – pollute waters - localised environmental harm - low to medium objective gravity - appropriate penalty - consideration of means to pay - mitigating factors - late plea of guilty - defendants of good character - no prior convictions - substantial costs of prosecutor taken into account

LEGISLATION CITED: Bankruptcy Act 1966 (Cth) s 82(3)
Crimes (Sentencing Procedure) Act 1999 s 3A, 5(1), 8, 9, 21A, 22, 66, 68, 69, 80, 86
Crimes (Sentencing Procedure) Regulation 2005 cl 15
Criminal Procedure Act 1986 s 257B
Environmental Offences & Penalties Act 1989 s 5(1)
Environmental Planning and Assessment Act 1979
Fines Act 1996 s 6
Mental Health (Criminal Procedure) Act 1990
Protection of the Environment Operations Act 1997 s 3, 155(1), 115, 119, 120(1), 123, 169, 214(2), 241(1), 248

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Courtney v Regina [2007] NSWCCA 195; (2007) 172 A Crim R 371
Director of Public Prosecutions v D’Arcy [2009] NSWLC 1
Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154
Environment Protection Authority v Ableway Waste Management Pty Ltd and Anor [2005] NSWLEC 469
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31; (2009) 165 LGERA 383
Environment Protection Authority v Delta Electricity [2009] NSWLEC 11
Environment Protection Authority v Douglass [No 2] [2002] NSWLEC 94
Environment Protection Authority v Gardner [1997] NSWLEC 212 (14 August 1997)
Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997)
Environment Protection Authority v Ghossayn [2009] NSWLEC 181
Environment Protection Authority v Hogan [2008] NSWLEC 125
Environment Protection Authority v N (1992) 76 LGRA 114; (1992) 26 NSWLR 352
Environment Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831
Environment Protection Authority v Pal [2009] NSWLEC 35
Environment Protection Authority v Ross [2009] NSWLEC 36; (2009) 165 LGERA 42
Environment Protection Authority v Waste Recycling Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Environment Protection Authority v Werris Creek Coal Pty Ltd; Environment Protection Authority v Holley [2009] NSWLEC 124
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77
Hoare v R [1989] HCA 33; (1989) 167 CLR 348
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62
P v KPB [2009] NSWLC 6 at [48]
Pearce v The Queen [1988] HCA 57; (1988) 194 CLR 610
Plath v Rawson [2009] NSWLEC 187; (2009) 170 LGERA 253
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Borkowski [2009] NSWCCA 102
R v Burnett (1996) 85 A Crim R 76
R v Carroll [2008] NSWCCA 218; (2008) 188 A Crim R 253
R v Einfeld [2009] NSWSC 119
R v Hallocoglu (1992) 29 NSWLR 67
R v Israil [2002] NSWCCA 255
R v Jiminez [1999] NSWCCA 7
R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300
R v Slattery (1996) 90 A Crim R 519 at 524
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Zamagias [2002] NSWCCA 17
Rahme v R (1989) 43 A Crim R 81
Veen v The Queen [No. 2] [1988] HCA 14; (1988) 164 CLR 465

TEXTS CITED: EPA Environmental Guidelines: Assessment, Classification and Management of Liquid and Non-Liquid Wastes (1999).
Ivan Potas, Sentencing Manual, Law, Principles and Practice in New South Wales (2001), Judicial Commission of New South Wales, Lawbook Co

DATES OF HEARING: 10 December 2009
11 December 2009
10 March 2010 (mention re pre-sentencing reports)

DATE OF JUDGMENT:
25 June 2010

LEGAL REPRESENTATIVES: PROSECUTOR
Mr J Giles
SOLICITOR
Department of Environment, Climate Change and Water
FIRST DEFENDANT
Mr G Brady
SOLICITOR
Brenda Duchen
SECOND DEFENDANT
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

25 June 2010

50070 of 2008 Environment Protection Authority v Wattke
50071 of 2008 Environment Protection Authority v Geerdink
50077 of 2008 Environment Protection Authority v Wattke
50078 of 2008 Environment Protection Authority v Geerdink
JUDGMENT

1 Her Honour: The Defendants are each charged with two offences under the Protection of the Environment Operations Act 1997 (the POEO Act). In proceedings 50077 of 2008 Mr Wattke is charged with an offence under s 115(1) of the POEO Act that he was a director of Hook-It-Waste Pty Limited (the company) which negligently disposed of waste in a manner that harmed or was likely to harm the environment. In proceedings 50078 of 2008 Mr Geerdink is charged with the same offence in his capacity as a person involved in the management of the company. The offences under s 115(1) occurred between about 1 July 2007 and 31 January 2008 at or near a property situated at 79 Tara Loop Road, Ilford (the property).

2 Both Defendants (Mr Wattke in proceedings 50070 of 2008 and Mr Geerdink in proceedings 50071 of 2008) are also charged with committing an offence under s 120(1) of the POEO Act in that between August 2007 and October 2007 they polluted water at or near the property.

3 The Defendants are charged on the basis of s 169 of the POEO Act for each offence which provides:

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:

(a) (Repealed)

(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.

(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.

…

4 The relevant offence provisions of the POEO Act are as follows:

115

Disposal of waste—harm to environment

(1)

Offence

If a person wilfully or negligently disposes of waste in a manner that harms or is likely to harm the environment:

(a) the person, and

(b) if the person is not the owner of the waste, the owner,

are each guilty of an offence.

(2) Defence—lawful authority
It is a defence in any proceedings against a person for an offence under this section if the person establishes that the waste was disposed of with lawful authority.

(3) Definitions
In this section:

dispose

of waste includes to dump, abandon, deposit, discard, reject, discharge or emit anything that constitutes waste, and also includes to cause or permit the disposal of waste.

owner of waste includes, in relation to waste that has been disposed of, the person who was the owner of the waste immediately before it was disposed of.

5 The maximum penalty applicable to an offence committed under s 115(1) by an individual is $500,000 or four years’ imprisonment, or both, for an offence that is committed negligently (s 119(b) POEO Act). Prior to May 2006 the maximum penalty was $250,000 or seven years imprisonment, or both for negligent and wilful. There was no differentiation in maximum penalty based on whether the offence was committed negligently or wilfully. By reason of s 214(2) of the POEO Act, the maximum term of imprisonment which this Court can impose in respect of the offences under s 115(1) of the POEO Act is two years.

6 Section 120 - Prohibition of pollution of waters provides:

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

(2) In this section:

pollute

waters includes cause or permit any waters to be polluted.

7 The maximum penalty applicable to an offence committed under s 120(1) by an individual is set out in s 123 of the POEO Act. The maximum penalty is $250,000 with a maximum daily penalty of $60,000 for each day that the offence continues. The maximum penalty of $250,000 was increased from $120,000 in May 2006. The maximum daily penalty of $60,000 was maintained.

8 The Defendants have both pleaded guilty to each offence and have therefore admitted the essential elements of each offence including that the disposal of waste was negligent. It is necessary to determine the appropriate sentences which should be imposed. Mr Wattke was represented by a barrister at the hearing on sentence. Mr Geerdink represented himself at the hearing.

Purposes of sentencing

9 The purposes of sentencing are identified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) and include to ensure the offender is adequately punished (s 3A(a)), to make the offender accountable for its actions (s 3A(e)) and to denounce the conduct giving rise to the offence(s 3A(f)).

10 In Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] relevant factors to determine the objective gravity of an offence were identified for offences under the Environmental Planning and Assessment Act 1979 (the EP&A Act). The factors include the maximum penalty, the objective harmfulness of the defendant’s actions, the reasons for the commission of the offence and the state of mind of the offender. These factors are also relevant to offences under the POEO Act, Environment Protection Authority v Delta Electricity [2009] NSWLEC 11 at [12].

11 Another relevant factor is the statutory scheme in which the offence provision appears, Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31; (2009) 165 LGERA 383 at [21]. The POEO Act is directed to the protection, restoration and enhancement of the environment in NSW, including by reducing harm to the environment through pollution prevention (s 3(d)(i)). As observed by Pepper J in Environment Protection Authority v Ghossayn [2009] NSWLEC 181 at [75]:

The sentence of the Court is a public denunciation of the conduct of the offender. It must ensure that the offender is held accountable for his or her actions and is adequately punished.

12 Incorporated into the Prosecutor’s outline of submissions was a lengthy statement of agreed facts (SOAF) which provided as follows:

The Corporation, its Directors, Shareholders and Management

8. The Corporation was incorporated on 17 May 1995.

9. Between 17 August 2005 and 11 October 2006 Mr Wattke was a Director of the Corporation and its Secretary. At all relevant times thereafter its Directors were Mr Wattke and John Van de Putte (“Mr Van de Putte”) and Mr Wattke remained its Secretary. Mr Wattke was also the Chief Executive Officer of the Corporation.

10. Mr Van de Putte has not been charged with any offence as during the relevant period in 2007 he was seriously ill and in hospital for some months. He was not then taking a role in the business of the Corporation. As a consequence Mr Wattke was, at least as a practical matter, very much the directing mind and will of the Corporation.

11. The sole shareholders of the Corporation were at all relevant times Mr Wattke and Mr Van de Putte. At the time of the offences Mr Wattke had a 49% interest and Mr Van de Putte held a 51% interest in the issued capital of the Corporation.

12. Mr Geerdink had no proprietary interest in the Corporation. He was however employed first as the Corporation’s sales representative and then its General Manager. He had substantial involvement in the day-to-day operations of the Corporation and the incidents which are the subject of these prosecutions.

13. At all relevant times, the Corporation held an Environment Protection Licence to transport hazardous, industrial and “Group A” Waste. It also operated a non-scheduled waste facility located at 25 Bromley Road, Emu Plains (‘the Emu Plains Premises”).

14. In March 2008 the Corporation was placed into administration by its Directors. A liquidator was appointed to the Corporation on 2 May 2008.

The Property

15. During March 2007 Mr Geerdink and Mr Steve Smith (“Mr Smith”) of Pacific Environmental, an environmental consultant engaged by the Corporation, had an over the counter meeting with Mr. Nathan Burr (“Mr. Burr”), an Environmental Town Planner with Mid-Western Regional Council (“Council”).

16. At the time of the meeting the discussion was general and concerned the permissibility of bio-solid application to land within the Mid-Western Regional Council local government area.

17. Because Mr Geerdink indicated to Mr Burr that there was no particular site in mind, Mr Burr gave general advice about the permissibility of application of bio-solids including advice that there were a number of different planning instruments applicable in the local government area that might apply which depended on the location of the property.

18. Mr Burr recommended that Mr Geerdink contact the Council once a property was identified. Mr Geerdink said to Mr Burr that the Corporation had the Environment Protection Authority’s “Guidelines for Use and Disposal of Bio-Solid Products” and would comply with those guidelines.

19. In March 2007 Mr Steve Smith provided written advice to the company.

20. On 29 June 2007 the Corporation purchased the Property.

21. The Property is a rural property located in the Central Tablelands area of NSW near Mudgee in the Mid Western Regional Council area. The Property comprised Lots 269, 285, 202 and 283 in DP755799. The Property was Zoned 1(a) General Rural and was subject to the Rylestone Local Environmental Plan 1996 (as amended).

22. The Property is located outside the Extended Regulatory Area (ERA). Gullies and intermittent watercourses are scattered though the Property.

23. The Corporation did not obtain development consent from Mid Western Regional Council for disposal of bio-Solids or any waste at the Property.

24. While the company held an Environment Protection Licence to transport Hazardous, Industrial and Group A Waste it did not hold an Environment Protection Licence, which it required, for the disposal of waste at the Property. A licence was required for all Group A Waste and waste contaminated with TBT wherever placed and no waste could be dumped within 40 metres of a watercourse.

Physical Characteristics of the Property

25. The Property consists of undulating hills, steep hillsides and relatively low slope sections.

26. Most importantly within the Property are a number of un-named intermittent water courses which, during the course of the investigation by officers of the Department of Environment and Climate Change (“DECC”), were allocated the descriptions “Creek 1”, “Creek 2” and “Creek 3”.

27. All the creeks at the Property are intermittent watercourses and are shown on topographical maps. In addition, the Property had a number of dams into which the intermittent water courses flowed. The principal dams concerned in these prosecutions were named “Dam 1”, “Dam 2” by the investigators. There were also 2 dams located on “Creek 3” which were named “Creek 3 Dam 1” and “Creek 3 Dam 2”.
28. Attachment 2 is a set of Maps [not included] of the Property setting out the locations of various relevant features and watercourses at the Property. Creek 1, Creek 2 and Creek 3 are identified. These creeks do not join-up. Creek 1 is an unnamed intermittent watercourse located near the entrance gate to the Property. Creek 2 is another unnamed intermittent watercourse that runs from a south-east to north-west direction across the Property. Creek 3 also an unnamed intermittent watercourse which runs from a south to north direction near the eastern boundary of the Property.

29. During the investigation by the Prosecutor of these incidents water was seen flowing in parts of the creeks after rain.

30. The maps also identify Dam 1and Dam 2. Dam 1 is associated with Creek 1 and Dam 2 is associated with Creek 2.

31. …

32. The gate to the Property was always locked with a padlock. Only the Corporation’s employees had keys to the padlock. Whenever officers of the Prosecutor attended the Property arrangements had to be made with an employee of the Corporation to have the gate unlocked.

The Conduct – July 2007 to January 2008

33. Between July 2007 and January 2008 employees of the Corporation transported waste to the Property including waste from the Emu Plains Premises where it was dumped. The capacity of the tankers was approximately 25,000 Litres.

34. From July 2007 there was at least one employee of the Corporation permanently located at the Property. In the earlier period this employee was Brett Pilon (“Mr Pilon”). Later it was Ben Glew (“ Mr Glew”).

35. Both Mr Pilon and Mr Glew received instructions from Mr Wattke and Mr Geerdink as did other employees in relation to the acts and omissions which comprise the offences against both Section 115 (1) and 120 (1) of the POEO Act. Mr Wattke was involved in the preparation of the site to receive waste.

36. Mr Glew was also instructed by Mr Wattke and Mr Geerdink to ‘keep “quiet” about certain deliveries of waste being dumped at the Property.

Concerns Reported To Prosecutor

37. On 3 August 2007 Waste Recycling and Processing Corporation (trading as WSN Environmental Solutions) (“WSN”) advised the Prosecutor, as was the fact, that the Corporation was transporting leachate from WSN’s solid waste landfill (the Eastern Creek Waste Management Centre at Wallgrove Road, Eastern Creek) to a property at Ilford. This was in accordance with an arrangement with the Corporation for transport and disposal of liquid wastes (a mixture of leachate and stormwater run off from a dam) from WSN’s facility. The Corporation was transporting about two truck loads a day of this material to the Property. Mr Wattke believed that the storm water run off was being deposited at the Property and that the leachate was being deposited elsewhere.

38. Prior to the Corporation commencing the transport, WSN had requested and received a section 143 certificate from the Corporation which falsely certified that the Property could receive this waste. The section 143 certificate was signed by an employee of the Corporation, Mr Mark Williams, who expressed in the certificate that it was signed on behalf of Hook-It-Waste

39. During August 2007 Mid Western Regional Council also received a number of complaints from local residents that trucks were entering the Property and that there might be illegal dumping being carried out.

Surveillance of the Corporation’s Tanker

40. The Prosecutor was concerned that WSN’s leachate was being transported to premises that could not lawfully accept it.

41. On 16 August 2007 Officers Ruth Owler (“Officer Owler”) and Danielle Playford (“Officer Playford”) covertly followed a Tanker and trailer (capacity 25,000 litres) owned by the Corporation from WSN’s premises, where it had picked up liquid waste, to the Property. The Tanker was being driven by an employee of the Corporation, James Coventry (“Mr Coventry’).

42. At Ilford, the tanker turned into the Property, proceeded up a steep hill with some difficulty and stopped. Mr Coventry then alighted and connected a hose to the Tanker.

43. He then discharged about 10,000 litres of dark brown coloured liquid from the Tanker into a gully which led to Creek 1, which was at the time a dry creek, and further on to Dam 1.

44. Creek 1 is in a fairly steep sided gully which is located on the left hand side of the Property, as the Property is entered from its gateway on Tara Loop Road, and runs parallel to the road.

45. The liquid flowing from the hose connected to the Tanker ran down the gully, through a pile of felled trees and into Dam 1. As the liquid flowed into Dam1 it created a dark brown coloured plume on the surface of the dam waters.

46. The liquid contained leachate.

47. Officer Playford ran up the hill to try to stop the Tanker driver discharging further liquid while Officer Owler took video footage. Before Officer Playford could reach the Tanker the discharge of waste into the gully ceased. Mr Coventry re-entered the tanker and drove further into the Property.

48. Officer Playford eventually caught up to Mr Coventry and interviewed him. Mr Coventry stated that his tanker was carrying “recycled water” and he had dumped it in Creek 1 as he could not make it up the hill and needed to get rid of some of the contents.

49. Officers Playford and Owler then followed the Tanker further into the Property for approximately 2km.

50. They then observed the Tanker parked in a large cleared area that contained a number of sheds. This area is referred to as “the Homestead Area” on the attached Maps. There was also a bulldozer parked in this area.

51. The Tanker had stopped at the top of another gully. Officers Playford and Owler noticed that Mr Coventry was preparing to discharge more waste from the Tanker into this gully. The gully led to Creek 2.

52. Officers Owler and Playford then informed Mr Coventry that he should not discharge any further contents of the Tanker into the gully and directed him to deposit the remaining material on to a nearby ploughed paddock where they believed that there was a low likelihood of runoff into waters.

53. According to Mr Coventry, Mr Wattke ( who according to Mr Coventry was ‘the boss, Martin’) had told him that any waste tipped above Creek 2 would run “down into .. another dam and [the Corporation could].. then transfer it out of the dam …wherever they need to put it.”. He said had been instructed to tip it at this location by ‘Brett’. Mr Wattke believed that the storm water run off was being deposited at the Property and that the leachate was being deposited elsewhere.

54. Officers Owler and Playford then inspected the gully where Mr Coventry had been intending to dump the remaining load and saw it flowed to Creek 2.

55. A substantial volume of sludge-like material had previously been deposited at the top of this gully and had flowed into Creek 2. Samples of the material observed near the proposed discharge point were taken. The results of analysis are dealt with later in these submissions.

56. Officers Owler and Playford also inspected the gully and Creek 2 for about 200 metres, observing a large and continuous amount of sludge-like material flowing down the gully and into the creek.

57. From the waste drop off point, the waste had flowed downhill into Creek 2. This material was different from that discharged into Creek 1. It included grease trap waste.

58. Photographs and video footage were taken on 16 August 2007.

The Following Day: A Further Inspection

59. On 17 August 2007 Officers Owler and Playford returned to the Property with Belinda Lake (“Officer Lake”) and Luke Formosa (“Officer Formosa”).

60. They returned to Creek 2 for the purpose of making further observations of the material in the creek and to take samples.

61. A very large amount of grease trap waste was located in Creek 2. It covered about 800 metres of the length of the creek from the fence line. The waste smothered Creek 2. It was odorous. The odour was consistent with grease trap waste. Ponding of waste occurred at various locations along the creek line. Both sludge and free liquids (oils) were present and visible.

62. It was estimated that at least 750 cubic metres of waste remained in Creek 2 (which at 1000 litres per cubic metre equates to about 750,000 litres or 0.75 mega litres of liquid waste).

63. At a point 800m downstream of the fence there was a very large pool of waste sludge. Beyond this point residues of the waste sludge were present for approximately a further ten metres.

64. Beyond the point where the waste stopped flowing in Creek 2, the topography flattened to a grassy wetland flat area. Dam 2 was located about 150 metres downstream of this point.

65. The water in Dam 2 was dark and odorous. It smelled of leachate. There was no insect life (e.g. dragonflies and the like) which would have been usual in a dam of this type and in this location.

66. Dam 2 had a high overflow/spillway point and at the time the officers inspected the Property in August, Dam 2 was not full. However on subsequent inspections after heavy rain, the Prosecutor’s officers noticed the water level was very close to the overflow point.

67. Past Dam 2, Creek 2 opened up into a wider gully area with a continuous downward slope. No waste was observed beyond Dam 2. Subsequent investigations revealed that Creek 2 is a natural intermittent watercourse with an approximate total length of 1.6 km originating from near the top of Clinton Hill (elevation: about 840 metres above sea level) to the junction just north of a culvert on Sofala Road near the Tara Loop Road intersection.

68. At this junction point, the watercourse is at an elevation of about 800 metres above sea level. From this point the watercourse joins another natural intermittent watercourse that runs about 900 metres westwards roughly parallel to the Sofala Road, before joining to Warrangunia Creek. The Warrangunia Creek flows into Crudine Creek. The Crudine Creek flows into Turon River, then the Burrengong Dam.

69. More waste was located at and around the top of the gully leading to Creek 2 which was in a position to be washed into Creek 2.

70. Samples were taken and later analysed. The results are outlined later in these submissions.

71. Photographs and video footage were taken on 17 August 2007.

The Prosecutor Discovers Grease Trap Stockpiles

72. On 17 August 2007 those inspecting the Property observed further waste which had the appearance and odour of grease trap waste. Its location is noted on the Map (Exhibit DMP 2) as “Grease Trap Waste Stockpiles” and on the Map (Exhibit RO3) as “Dam and Drop Off Point””.

73. This waste was sitting above another gully on the Property. This gully flowed to another intermittent watercourse which then flowed to Creek 2, at a location downstream of (i.e. below) Dam 2.

74. In the period between 17 August 2007 and 6 December 2007 a substantial further volume of waste having the appearance and odour of grease trap waste was dumped at this location and was piled up in large piles. Until June 2008 material from the piles was observed to have gradually flowed further into both an intermittent watercourse feeding Creek 2 and into Creek 2 itself for a distance of approximately 600 metres.

75. The results of sampling of this material are outlined later in these submissions.

76. Photographs of this waste were taken on various dates – 17 August 2007, 5 March 2008, 4 June 2008 and 12 June 2008.

The Prosecutor Inspects the Corporation’s Emu Plains Premises and Takes Samples

77. On 22 August 2007 Officers Owler and Wilson conducted an inspection of the Corporation’s Emu Plains Premises having previously been informed by Mr Wattke and Mr Coventry that waste dumped on the Property originated from these premises.

78. Mr Geerdink and Bruce King (“Mr King”), the Corporation’s operations manager met with Officers Owler and Wilson.

79. Officer Owler informed Mr Geerdink that she and Officer Wilson were investigating an incident at the Property which allegedly involved waste sourced from the Emu Plains Premises of the Corporation.

80. Samples were taken from one of the Corporation’s Tankers which was parked at the Emu Plains Premises (NSW registration AN-12-UV). Mr Geerdink had informed Officer Owler that it held waste having the same characteristics as that which the Corporation was taking to the Property at the time.

81. A sample was also taken from a bucket of liquid waste that had been decanted from a Tank located at the Emu Plains Premises.

82. Analysis of these samples revealed this waste was Group A Waste because of high levels of molybdenum, nickel and lead as follows:

Table 1 - Waste classification of samples RO2 and RO6 taken on 22 August 2007

Lab number	Sample label	Molybdenum total mg/kg	Nickel total mg/kg	Lead total mg/kg
200701830	RO2	410	5.1	9
200701834	RO6	470	6.1	14
Maximum specific contaminant concentration*	200	3	5
Classification	Group A	Group A	Group A

* From Table A1 in the EPA’s Environmental Guidelines: Assessment, Classification & Management of Liquid & Non-Liquid Wastes, 1999

83. Mr Geerdink was given a Notice pursuant to s. 191 of the POEO Act to provide information and/or records, in relation to waste that had been transported by the Corporation to the Property.

84. Photographs were taken by the Prosecutor at the Emu Plains Premises.

The Prosecutor Takes Samples of WSN’s Leachate

85. On 22 August 2007 Julie Currey (“Officer Currey”) and Officer Lake also took a number of samples at WSN’s solid waste landfill at Eastern Creek. Samples were taken at a stormwater dam (Dam 206) and the leachate collection sump.

86. At both locations Officer Lake noted an odour consistent with what she had experienced at Creek 1 and Dam 1 on the Property earlier in the day.

The Prosecutor Issues A Clean Up Notice

87. On 24 August 2007 the Prosecutor issued a notice pursuant to section 91 of the POEO Act directing the Corporation not to dispose of, or cause or permit the disposal of, solid or liquid materials within 40 metres of any dam, creek or other permanent or intermittent waterbody on the Property.

88. The Notice made it clear that the expression “intermittent waterbody” included dry creek beds.

The Prosecutor Observes Further Activity at the Property

89. On 28 August 2007 Officers Owler and Lake were returning to Sydney after attending a meeting with Council which concerned the Corporation’s activities on the Property. They both observed a Tanker bearing the Corporation’s livery proceeding along the road.

90. They followed this Tanker back to and into the Property.

91. At the Property the Tanker stopped on the steep hill adjacent to Creek 1. Once more Mr Coventry was the driver.

92. Mr Coventry claimed that the Tanker was overweight and accordingly he was unable to take it over the weighbridge at Mount White. He informed Officers Owler and Lake that he proposed to decant some of the load into another Tanker.

93. Another of the Corporation’s Tankers was observed on the Property. It was being driven by Brett Viewey (“Mr Viewey”). He proceeded to park it behind the Tanker driven by Mr Coventry. Liquid was then transferred from this Tanker to Mr Viewey’s Tanker.

94. Officers Owler and Lake took a sample of the liquid. They also returned to the Homestead Area and observed further stockpiles of waste and a long continuous stockpile of waste located within this area that had not been present on previous inspections.

95. The stockpile emitted an odour of grease trap waste. Officers Owler and Lake took some samples from the stockpile of waste and left the Property.

96. The results of the sample analysis are referred to later in this Outline.

The Corporation Responds to the Section 191 Notice

97. On 30 August 2007 the Corporation responded to the Notice which had been issued by the Prosecutor on 22 August 2007.Additional material in response to the Notice was provided by the Corporation during September 2007. On each occasion the Corporation’s response was signed by Mr Geerdink. In the 30 August 2007 response, the Corporation provided the following answer to a question requesting information in relation to “how waste(s) were applied and/or disposed at the Property between 1 May 2007 and 18 August 2007”:

“Recycled liquids and Group “B” Wastes were deposited on the property from early June … in designated prepared areas to allow the liquids to pass through a preliminary earth filter and then to drain towards two man made dams on the property. This was believed to be the best method to allow for recovery of the liquid component for future reuse through soil injection techniques as well as for irrigation water during extended dry periods.”

Mid-Western Regional Council Inspects the Property

98. On 6 September 2007 Council officers Mr Burr and Dorothy Springett (“Ms Springett”) carried out an inspection of the Property.

99. During the inspection Mr Burr spoke to Mr Wattke in relation to his concerns that no development consent had been obtained for the activity being undertaken by the Corporation at the Property.

100. Mr Wattke asserted that:

(a) there had been no pollution incident at the Property;

(b) the Corporation’s “people” would demonstrate that the location of waste on the Property was “not a waterway”;

(c) the Corporation already had “the Council approvals”;

(d) he was “…sure the approvals have been obtained. Rene made the necessary inquiries and approval is not required.”;

(e) the Corporation had “…been informed in writing that the current activity can be carried out without consent and we don’t need an EPA licence.”;

(f) he had “…letters from Council saying we don’t need consent and I will get copies for you. In any case there is no operation on site, the current activity is not scheduled and therefore doesn’t require approval. The previous owner used to graze the site and what we are doing is undertaking a beneficial application of organic food products and reclaimed aqueous substances.”;

(g) he was “…not an expert on what approvals are required, generally Rene handles all the approvals so I think it would be best if you spoke with him. I’m more involved in the operational side of things.”

101. Mr Wattke gave Mr Burr two documents that the Corporation had provided to neighbours of the Property. During the inspection on 6 September 2007 Mr Burr took a number of photographs.

102. Shortly after the inspection Mr Burr contacted Mr Geerdink and expressed his concerns that no development consent had been obtained from Council in relation to the Corporation’s activities at the Property. Mr Geerdink claimed that:

“The substances are not biosolids but are food wastes and recycled aqueous products and the current activity isn’t necessarily agriculture but they are beneficial applications.”

Council Prohibits Further Dumping of Waste at the Property

103. On 11 September 2007 Mid-Western Council served an Emergency Order on the Corporation pursuant to s. 121B of the Environmental Planning and Assessment Act 1979. The Order stipulated that the Corporation was required to:

“Immediately cease the application of waste materials and/or biosolid products to the subject site and any activities associated with the application of waste materials and/or biosolid products to the subject site.”

104. Apart from submitting to Council that the Emergency Order should be removed and that Council might be sued if it did not do so the Corporation ignored it as did Mr Wattke and Mr Geerdink. A subsequent inspection by Mr Burr and Ms Springett revealed that the scope of activities and the extent of the Corporation’s dumping had significantly increased.

There Should Have Been No Further Dumping of Any Waste on The Property

105. It has previously been noted that on 27 August 2007 the Prosecutor issued a Clean Up Notice pursuant to section 91 of the POEO Act which prohibited the Corporation from dumping any waste within 40 metres of a waterbody, including dry creek beds.

106. The effect of the Emergency Order issued by Council on 11 September 2007 was that the Corporation was prohibited from dumping any waste upon any part of the Property.

107. The Corporation ignored both the Prosecutor’s Notice and Council’s Emergency Order.

The Corporation Belatedly Obtains Expert Assessment To Persuade Council To Withdraw Emergency Order.

108. On 16 September 2007 Mr Smith prepared a Report for the Corporation styled “Treated Effluent Re-Use Scheme – Ilford, NSW. Design Considerations for Hookit Waste Pty” which was based on inspections of the Property he undertook in August and September 2007. Mr Smith’s report included advice in relation to soil conditions at the Property (including physical and chemical characteristics) and groundwater analysis which had previously not been obtained by the Corporation prior to commencement of waste dumping activities at the Property.

109. The Report was submitted to Council.

110. Council refused to withdraw the Emergency Order.

The Prosecutor Carries Out a Further Inspection of The Property - The Section 120 (1) Offences – Matters 50070 and 50071 of 2008

111. On 26 September 2007 Officers Owler and Playford together with Gary Vaughan (“Officer Vaughan”), Tsuyoshi Kobayashi (“Officer Kobayashi”) and Valerie Spikmans (“Officer Spikmans”) carried out a further inspection of the Property.

112. The area between the Homestead Area and the fence line had been cleared by the Corporation since the Prosecutor’s last inspection on 28 August 2007.

113. Excess soil had been pushed to the side of this area. At the fence line a dam was being constructed and there was a newly constructed earth wall approximately three metres high.

114. Large areas around and along Creek 2 had been excavated, smothered and cleared of riparian vegetation. The part of Creek 2 which had been excavated was part of the area where the deposit of waste had been observed on 16 and 17 August 2007.

115. Beyond the newly constructed dam/earth wall a track had been bulldozed along the Creek 2 creek line. The material which comprised the track consisted of very fine sediment.

116. Sections of the track were adjacent, and in very close proximity, to the creek line. Other sections of track went across the Creek 2 creek line. Some small feeder creek lines joining the Creek 2 creek line had been filled in by dirt and trees which had been pushed over. Some of trees were estimated to have age in excess of 50 years.

117. Some remaining trees had large blue crosses on the trunks. Cleared vegetation and soil had been pushed across into the location where the DECC officers had observed the creek on the previous inspection. The soil and vegetation was located where the creek bed and banks had previously been located.

118. There was a strong grease trap odour along the Creek 2 creek line. Some of the pools of waste that were present on 17 August 2007 had partially dried out and had been smothered by sediment from the track making activities. The grassed area leading to the Dam 2 had also been partially bulldozed.

119. Adjacent to the newly constructed dam/wall near the Homestead Area liquid waste sludge was present. However it appeared that most of the waste sludge and liquid waste in Creek 2 had been covered up by the dirt and the vegetation which had been pushed into the Creek 2 creek line, although there were still some sludge filled pools in the creek line and small balls of liquid waste in Creek 2.

120. There were also a large number of flies present in some areas of the Creek 2 creek line where waste had been previously located. When the flies were disturbed dried sludge waste was visible underneath where the flies had been feeding/breeding.

121. The excavation was approximately 700 metres long from the Homestead Area to the grassy meadow and 10 metres in width (including the creek bed).

122. The banks of Creek 2 had been destroyed and rocks, riffles and vegetation had been significantly disturbed. Patches of waste were also visible on the sides of what had been Creek 2.

123. Mr Geerdink had a conversation with Officer Playford. He endeavoured to explain why the earthworks around and in Creek 2 had been undertaken by the Corporation stating:

“We thought we’d clean it up a bit and make sure the grease waste didn’t leak down when it rained, so we’ve put a wall down the bottom and have pushed the grease waste to the sides. We’ve also put in an access track next to the creek so it’s easier when we clean it out.”

124. Mr Geerdink also claimed that the track had been constructed because “…Council have been making sure people put fire breaks in around their properties.” This was untrue.

125. Photographs and video footage were taken of the areas referred to above on 26 September 2007. [not included]

The Prosecutor’s Further Inspection of Other Areas of the Property

126. On 26 September 2007 Officers Owler and Playford also inspected other areas of the Property.

127. They proceeded to a ploughed paddock which was located to the north east of the Homestead Area.

128. This area is shown on the Map as “Paddock 1”.

129. Mr Geerdink informed Officer Playford that Paddock 1 was an area where:

“… we plan to land apply waste, its pretty large this area.”

130. Mr Geerdink was also heard to say :

“…We are going to clear all this vegetation because it is just weeds.”

131. Paddock 1 was partially ploughed and the un-ploughed sections had grass and small shrubs growing upon it. Paddock 1 was approximately 30 acres in area. The topography sloped to a dam at the north end of paddock. This has been marked on the Map as Creek 3 Dam 1.

132. Further downstream of Creek 3 Dam 1 was a second dam which has been marked Creek 3 Dam 2.

133. Officers Owler and Playford also observed another ploughed paddock to the south of Paddock 1, which is marked on the Map as Paddock 2.

134. Paddock 2 was about 8 to 10 acres in area and sloped to the east with a fence on the eastern side.

135. On the western side of Paddock 2 there was a stand of natural bushland.

136. Mr Geerdink then showed Officers Playford and Owler another area of the Property.

137. This was to the south of the Homestead Area.

138. To access this area Officers Playford and Owler and Mr Geerdink descended along a rough access track with the eastern boundary fence on the east side of their vehicle. They crossed a number of small creeks and arrived at a flat valley and grassy meadow with high rocky outcrops on either side.

139. There were no waste-related activities occurring on this part of the Property. However Mr Geerdink declared that:

“We will be using this area to land apply waste.”

140. Officers Owler and Playford then proceeded back to the Homestead Area with Mr Geerdink.

141. The “Dam and Drop Off Point” and the “Grease Trap Waste Piles” were in a similar condition to that observed on 17 August 2007.

142. Officers Owler and Playford also made observations of Creek 1 and Dam 1 on 26 September 2007.

143. Dam 1 had changed colour to a very dark, almost black, colour. A strong odour was rising from Dam 1. The odour was similar to a landfill leachate odour. Bubbles were coming to the surface of the liquid in Dam 1 which were gas bubbles being generated from the liquid. Officer Owler formed the opinion that Dam 1 was now in an anoxic state.

144. Samples were taken. Samples were also taken later that day from a dam on an adjoining property so that background measurements could be obtained. The water in this dam looked clearer than the dams on the Property. Analysis demonstrated that unlike the dams on the Property it was not contaminated. There was also a significant amount of observable activity in and around this dam, and the surface of the dam was disturbed frequently by insects. It also contained aquatic vegetation which had been absent from dams on the Property.

145. No insects, reptiles or amphibians were observed to be present in or on Dam 1. Normally insects, reptiles and amphibians would be present in a dam of the size and location of Dam 1.

146. At 26 September 2007 there were no soil injecting machines or waste spreaders on the Property.

The Prosecutor Issues A Second Clean Up Notice

147. On 15 October 2007 the Prosecutor issued a second clean up notice. It required the Corporation to engage an expert to prepare a rehabilitation and monitoring plan, for the clean up Creek 2 under the supervision of an expert approved by the Prosecutor.

148. The Corporation failed to comply with the Notice as did Mr Wattke and Mr Geerdink. The Corporation did appoint Mr Smith as the expert in response to the Notice. Mr Smith was not approved by the Prosecutor. The Corporation then appointed another person as expert. That person’s report was never finalised.

Council Conducts a Further Inspection of The Property

149. On 22 November 2007 Mr Burr carried out a further inspection of the Property. This followed the Corporation’s endeavour to have Council withdraw its Emergency Order on 27 September 2007 and Council’s refusal to do so.

150. He attended the Property with Ms Springett and the inspection took place in the presence of Mr Geerdink. He observed that further works had taken place despite Council’s Emergency Order of 10 September 2007 and that the activities of the Corporation on the Property were significantly greater than that previously observed.

151. Mr Burr took a number of photographs.

The Prosecutor and Council Carry Out a Joint Inspection of the Property

152. On 5 December 2007 Officers Owler and Lake attended the Property with Mr Burr and Ms Springett. It was apparent that the dumping of waste had continued on the Property unabated.

153. Officers Owler and Lake took photographs of what they observed as did Mr Burr. Officer Owler also took video footage. The photographs are attached. The video footage is also attached.

154. At the “Dam and Drop Off Point” location was a newly constructed dam and stockpiles of waste to the side of the dam. Waste stockpiles had been deposited there.

155. Areas on either side of the access road had been recently cleared.

156. A new area had been cleared at the location on the Map marked as ‘Paddock 3”. The cleared area extended from the newly constructed dam to approximately half the distance to the Homestead Area running adjacent to the road on both sides. “Paddock 3” was wider on the left hand side of the road and the newly cleared areas did not appear to have any waste ploughed into them. A new caravan was located at the north end of the clearing and tanks had been dug into the ground next to the caravan. This location is marked on the Map as “New accommodation”.

157. The dam located near the Homestead Area and the commencement of Creek 2 had been breached and there was liquid seeping out of the dam wall. It had a reddish brown colour and was oily in appearance. The liquid was moving from the breach in the wall a short way down Creek 2.

158. Flies were again observed to be present in and around Creek 2 and pools of liquid sludge were still present in sections of the creek line. The large pool of dried sludge observed on previous inspections was still present. Some pools had a shiny hydrocarbon sheen appearance on the surface and other pools had what appeared to be drops of thick oil within the pools of liquid.

159. Dam 2 had again changed colour. It was full of liquid and was now a light brown colour. The height of liquid in Dam 2 had increased. Some trees were now inundated by the dam waters. The dam level needed to rise but a further metre or so and the contaminated waters would have continued downstream over the spillway.

160. Paddock 2 had been completely ploughed. Both liquid and solid waste had been deposited upon it. Waste on Paddock 2 included a metal “Dangerous Goods/ Flammable Liquid” truck placard that had been ploughed into the soil (located about 20 metres from the road and partially covered.

161. There were also plastics, cloths, metal cans, green waste, and other waste that would be classified as solid waste ploughed into Paddock 2 together with many shells.

162. Paddock 2 emitted a strong pungent odour. Dark liquid was pooled in patches all over the north end of the paddock. There was large area half way down the paddock which contained a flow of liquid waste that had dried on top of the ground. This material was a pinkish colour.

163. Two man made pits were being used for landfilling activities. One pit contained household items such as milk cartons and food scraps together with 20 litre oil cans.

164. Once more there was no soil injecting machines or waste spreaders on the Property.

165. Samples were taken from the paddocks and Creek 2. The results are referred to later in this Outline.

Officers Owler and Lake Observe Further Disposal of Waste

166. On 6 December 2007 Officers Owler and Lake returned to the Property having again observed one of the Corporation’s Tankers travelling towards the Property.

167. They observed this Tanker driven by Glen Cook (“Mr Cook”), an employee of the Corporation, discharge a dark coloured liquid onto Paddock 2 through a hose attached to the back end of the Tanker. The dark coloured liquid waste ran freely out of the hose and down the paddock.

168. A conversation occurred between Officer Owler and Mr Cook during which Officer Owler informed Mr Cook that the Prosecutor had issued a Notice prohibiting the dumping of waste within 40 metres of the creek line (Creek 2) and that Council had issued a Notice prohibiting the dumping of waste on any other part of the Property.

169. Mr Cook then informed Officer Owler that::

“I was told the farm was open again and was sent here.”

170. Mr Cook also claimed that the waste which he had dumped was “Recycled water.”

171. The waste was dark and sludge like. It had a very pungent odour which caused Officer Owler to gag.

172. Officer Owler took samples of the waste. The results of analysis are dealt with later in this Outline.

173. Officer Owler also took photographs on 6 December 2007.

Mr Geerdink Meets With Officers of the Prosecutor

174. On 20 December 2007 a meeting was conducted in the offices of the Prosecutor at 59 Goulburn Street, Sydney concerning the activities which had occurred and which were continuing at the Property and rehabilitation of the worst affected creek line (Creek 2).

175. Mr Geerdink was present as were Steve Beaman, (“Officer Beaman”), Chris McElwain (“Officer McElwain”), Officer Owler and Officer Lake.

176. During the meeting a draft prevention notice was provided to Mr Geerdink. Mr Geerdink said, inter alia:

(a) “We’ve stopped taking trucks up to Ilford for the last two weeks. The guy on site is packing away for Christmas.”

(b) “We’re going to take food waste up there but with a proper management plan. If we wanted to hide stuff we would not have bought the farm and equipment”;

(c) “I started work with Hook – It in 2004/05 as a sales rep and moved up in the business in the last twelve months, and that’s when they looked at buying the farm”;

(d) “We should have spent 6 months researching where stuff should have been taken, including taking soil samples and working out application rates but in the interim we’ve stopped everything going to the farm.”

Further Surveillance and Further Inspections of the Property

177. On 14 January 2008 Officers Owler and Lake remained at the access gate to the Property between 1.45pm and 5pm. No activity was observed.

178. On 15 January 2008 Officers Owler, Lake and Playford together with Rebecca Small (“Officer Small”) conducted a further inspection of the Property.

179. At the corner of Paddock 1 and Paddock 2 there was a strong odour of grease trap waste. A section of the fence had been damaged and hay bales had been placed at the fence line. Liquid slurry that appeared to be grease trap waste had flowed under the fence line and onto the neighbouring property. There was pooling of liquid and also some areas where the waste material had dried and cracked.

180. Felled trees were placed in piles across where the slurry had flowed. Tracks in this area that appeared to have been made by a small bulldozer. Some of the vegetation had a burnt and dead appearance where the slurry had flowed and at the edge of where the slurry had flowed. Some of the vegetation was completely smothered in the slurry. Vegetation adjacent to this area and not affected by the grease trap slurry appeared to be healthy.

181. Samples were taken as were further photographs.

The Prosecutor Issues a Prevention Notice

182. On 21 January 2008 the Prosecutor issued a prevention notice pursuant to s. 96 of the POEO Act requiring the Corporation to cease transporting, disposing of and applying waste at the Property or causing its transport, disposal and application.

Geerdink Ceased Employment

183. In February 2008 Mr Geerdink ceased employment with the Corporation.

Further Inspections of the Property

184. Further inspections of the Property were carried out in March and June 2008. Photographs and samples were taken.

185. At the inspection of the Property conducted on 12 June 2008 , Officers Playford and Owler observed that waste had flowed from the lower end of Paddock 1 along the boundary fence line and into Creek 3 Dam 1. Waste had also flowed towards Creek 3 Dam 2.

The Collection of Records

186. On 10 April 2008 Officers Lake, Owler and Playford attended the Emu Plains Premises with the Corporation’s administrator and made copies of documents and the Corporation’s computer drives.

187. …

The Types of Waste Dumped at the Property

188. The types of waste deposited at the Property over the relevant period included material comprising:

Food Waste
Untreated Grease Trap Waste
Treated Grease Trap Waste
Group A Waste
Sewage
Landfill Leachate
Material contaminated with Tributyltin
Drillers mud
Stormwater runoff

The Sources of Waste Dumped at the Property

189. The Prosecutor has established that waste dumped at the Property came from the following sources:

(a) leachate/stormwater contaminated leachate from WSN’s landfill at Eastern Creek;

(b) liquid waste from the Corporation’s Emu Plains Premises;

(c) food waste (for example, from generators such as Goodman Fielders Meadow Lea premises, Sergeant Pies, Pepes Ducks); and

(d) untreated or treated grease trap wastes.

190. As a consequence of obtaining copies of certain of the Corporation’s business records, copies of computer hard drives, and information obtained by s. 191 Notice (including Notices issued to customers of the Corporation) a spreadsheet of information was prepared by the Prosecutor.

191. The information in the spreadsheet was based on invoices and transport dockets. A total of 4.8 megalitres of waste was recorded as being deposited at the Property.

192. The Corporation’s practice was that its Tanker drivers would often pick up a load of waste from a generator (for example, food waste) and then travel to the Property via the Corporation’s Emu Plains premises, where liquid waste from these premises would be mixed with the initial load of waste before dumping the mixture at the Property.

Negligence

193. During the period between July and 16 August 2007, some of the tanker loads were deposited into or near Creek 2.

194. About 10 tanker loads of liquid waste, at least some of which contained leachate and other material (up to 250,000 litres) were dumped into Creek 1 before the Prosecutor discovered what had occurred.

195. There were inadequate systems in place at the Property to ensure that waste could be deposited lawfully at the Property and no steps were taken to obtain either an Environment Protection Licence or Development Consent.

196. The Corporation only ceased dumping into Creek 1 and Creek 2 when told by the Prosecutor that they were polluting waters. However, both Mr Wattke and Mr Geerdink continued to deny that Creek 1 and Creek 2 were “waters”, claiming that where the material was dumped was only a gully and that the EPA “makes up” what is and what is not a creek.

197. …

The Role of Mr Wattke

257. As has already been noted Mr Wattke was one of two Directors of the Corporation. He became a Director on 17 August 2005. He also became Secretary of the Corporation on 17 August 2005. Mr Van de Putte was also a director a secretary of the Corporation at the time of the events. Mr Wattke held 49 % of the issued capital of the Corporation. Mr Van de Putte held the remaining 51%.

258. Reference has already been made to the fact that during the period covered by the charges Mr Wattke was in effect the Managing Director of the Corporation as a consequence of Mr Van de Putte’s serious illness. He was also the Chief Executive Officer. He had overall responsibility for the operations of the Corporation and a direct financial interest in it.

259. The Corporation went into liquidation on 2 May 2008.

260. Mr Wattke was interviewed by the Prosecutor on 17 August 2007 at the Property and again on 30 June 2008.

261. …

262. According to Mr Wattke the Property was purchased primarily for “subsoil injection operations”. It was to take mainly food wastes and recycled water from the Emu Plains Premises. He claimed that as far as he was aware Mr Geerdink had discussed the matter with Council and Council had informed Mr Geerdink that what was proposed was permissible without consent. When on 17 August 2007 his attention was drawn to what had occurred in and around Creek 2 on the Property he claimed that he “…[could not] see anything wrong with it”. Indeed he later claimed that Creek 1 and Creek 2 were not “waters” and that the Prosecutor “makes up” what is and what is not a creek.

263. …

264. …

265. …

266. …

The Role of Mr Geerdink

267. Mr Geerdink has been involved in the day to day management of the company throughout the relevant time. He was initially a sales representative and then became the General Manager of the Corporation.

268. The Property was purchased for the purpose of receiving waste from the Emu Plains Premises and liquid food waste direct from the Corporation’s clients. The intention had been to use the waste to grow lucerne. However, according to Mr Geerdink, Mr Wattke substantially over estimated the usable acreage.

269. Mr Geerdink claimed that both he and Mr Wattke directed the truck drivers to the Property to dispose of liquid waste although he claimed that it was Mr Wattke who first directed Mr Geerdink to start the dumping of waste at the Property approximately two weeks after the Property was purchased by the Corporation.

270. Mr Geerdink was very involved with the day to day running of the company including looking after the accounts department, the sales department and “everybody else in the business”. He responded to all of the Prosecutor’s notices and after the Prosecutor discovered what was occurring on the Property it was more often than not Mr Geerdink who liaised with the Prosecutor and with Council.

271. It was also Mr Geerdink who had initiated discussions with Council concerning (generally) what activities could be undertaken without development consent.

272. Mr Geerdink was also the “point of contact” for many parts of the business. He liaised with the Corporation’s environmental advisor, Mr Smith, in relation to the activities of the Corporation. . He also passed on information in relation to the Property to Mr Wattke. He could not make any decisions without the involvement of Mr Wattke as Mr Wattke had “the final say on everything”. He assisted the Corporation’s operations manager Mr King, with various functions, including staffing, replacing and repairing equipment. Mr King reported to both Mr Geerdink and Mr Wattke.

273. Mr Geerdink received advice from Mr Smith in March 2007, about four months before the offences were committed, that no waste should be dumped at the Property within 40 metres of a permanent or intermittent water body. . Relevant parts of the waste guidelines about sensitive environments were attached to this advice.

274. Mr Geerdink was aware that equipment was required to carry out the subsoil injection operations at the Property and was involved in the purchase of that equipment. However the dumping operations at the Property commenced prior to any equipment arriving at the Property and ultimately the two most important pieces of equipment, the soil injector and the muck spreader never arrived because the Corporation defaulted under its financing arrangements.

13 A large number of documents were attached to the SOAF. Those specifically referred to were:

Environmental harm

14 The affidavit of Mr Thompson, an environmental officer employed by the Department of Environment and Climate Change (DECC) who provides services to the NSW Environment Protection Authority (EPA), dated 11 March 2009 states that in regard to the classification of liquid waste, there are particular thresholds for each applicable contaminant for determining whether a waste is either a Non Controlled Aqueous Liquid Waste (NCALW) or a Group A waste. Group A waste has significant levels of contaminants/pollutants which present potential for significant harm to human health and the environment. The threshold levels, particularly of nickel, molybdenum and lead, that applied to the period of the offence, are specified in Table A1 of the EPA Environmental Guidelines: Assessment, Classification and Management of Liquid and Non-Liquid Wastes (1999). Each of these chemicals was assessed as exceeding the maximum specified contaminant concentration as detailed in Table 1 (Waste classification of samples RO2 and RO6 taken on 22 August 2007) at par 82 of the SOAF. Environmental harm is detailed in the SOAF par 197-256 as follows:

Environmental Harm

197. The Prosecutor reads the Affidavit of Julian Thompson.

198. Water samples were taken from each of the dams on the Property and were compared to samples from dams on adjoining properties. Very low levels of aquatic macro-invertebrates were found in the waters on the Property which would have a significant impact on aquatic vertebrates such as amphibians.

Creek 1 and Dam 1 – Analysis of Samples Taken 16 & 17 August 2007- Chemical Testing

200. On 16 August 2007 and 17 August 2007, liquid samples from Creek 1 and Dam 1 were collected and were compared to samples taken from a reference point.

201. The results of chemical testing showed that as a result of the negligent disposal of waste by the Corporation there were serious environmental effects on aquatic life in Creek 1 and Dam 1.

202. The liquid samples from Creek 1 and Dam 1 had biological oxygen demand (“BOD”) levels of 170-370 mg/L which were similar to the BOD levels found in raw sewage. This demonstrates that Creek 1 and Dam 1 contained high levels of putrescible organic material.

203. The liquid samples from Creek 1 had elevated levels of ammonia, Kjedldahl nitrogen (“TKN”), chemical oxygen demand (“COD”), conductivity, calcium, magnesium, nickel, phosphorus, potassium and sodium.

204. The ammonia in Creek 1 (and Dam 1) had the potential to cause serious harm to aquatic life in those waters. Ammonia is the chemical of most concern in these proceedings.

205. Ammonia is a known toxicant to aquatic life. It consists of two chemical forms that are in equilibrium in water: the un-ionised ammonia, NH₃, and the ionised ammonium, NH₄⁺. Of the two forms of ammonia, the un-ionised NH₃ is the principal toxic form because it is able to cross epithelial membranes of aquatic organisms more readily than NH₄⁺. The toxicity of ammonia is dependent on pH. Ammonia is acutely toxic to freshwater organisms at concentrations ranging from 0.5 to 23 mg/L for invertebrate species. The ammonia levels in all toxic samples in Creek 1 (and Dam 2) exceeded these levels. Acute toxicity to invertebrates may result in: loss of equilibrium, hyperexcitability; increased breathing rate and death. Chronic effects include a reduction in breathing process, reduction in growth rate and morphological development.

206. The ANZECC Guidelines recommended guideline for ammonia for freshwaters at typical pH range of 6.5 – 7.5, range from 2.5 to 1.6 mg/L NH₃-N. The ANZECC guidelines were clearly exceeded in the samples taken from Creek 1 (and Dam 1). The ammonia present in Creek 1 (and Dam 1) had the potential to seriously affect aquatic life in the waters.

207. The elevated levels of conductivity in Creek 1 (and Dam 1) also had the potential to have an adverse impact on invertebrates in those waters.

208. The appropriate ANZECC Guidelines for conductivity of the waters on the Property cannot be determined in the absence of baseline information. However the ANZECC/ARMCANZ (1992) Australian and New Zealand Guidelines for Fresh and Marine Water Quality recommend that freshwater conductivity should not be allowed to increase above 1500 S/cm. High conductivity directly affects the osmotic regulation of aquatic organisms. It disrupts the salt balance across cell membranes, resulting in water from inside the cell moving out from the cell which produces a net increase in the concentration of the chemicals inside the cell. Consequently it has adverse implications on the physiological processes of the organism. Invertebrates, particularly those in the early stages in the life cycle, are among the most sensitive species to elevated conductivity, with adverse effects apparent for some species to as low as 1500 mg/L dissolved salts (~3000 S/cm).

209. The elevated level of conductivity in Creek 1 (and Dam 1) (1900-2900 µS/cm) suggests that conductivity may have also contributed towards an adverse effect on invertebrates in these water bodies.

210. The liquid samples from Creek 1 also contained diethytholuamide (“DEET”) which is an insect repellent that is a common contaminant in landfill leachate. The liquid samples from Creek 1 had many characteristics in common with leachate samples that were collected from WSN’s Eastern Creek Waste and Recycling Centre including the presence of diethytholuamide.

211. The liquid samples taken from Creek 1 (and Dam 1) also had reduced dissolved oxygen (“DO”).

213. Low DO concentrations in water can result in adverse effects on many aquatic organisms which depend upon oxygen for their efficient functioning. There is little data on the oxygen concentration tolerance range of Australian freshwater invertebrate species, however the literature suggests that DO below 5 mg/L is stressful to many species and should be prevented where possible. The reduced DO in Creek 1 (and Dam 1) would have likely caused a serious impact on the invertebrates in the source water body.

214. For DO, the default water quality guideline in the ANZECC Guidelines in freshwaters is 80% saturation, which translates to approximately 6 to 7.5 mg/L DO depending on temperature. The low DO in Creek 1 (and Dam 1) meant that it most likely contributed to an adverse impact on organisms in those water bodies.

215. Liquid samples taken from Creek 1 (and Dam 1) were also found to contain elevated levels of organic compounds.

216. Organics such as hydrocarbons, phenol and various oxygen-containing organics that represent different stages in the progressing decomposition/oxidation, are likely to have had a short-term but totally adverse effect on aquatic organisms.

217. The liquid samples from Dam 1 contained significant levels of faecal coliforms which demonstrate faecal contamination.

Creek 1 and Dam 1 – Analysis of Samples Taken 16 & 17 August 2007- Toxicity Testing

219. The liquid samples taken from Creek 1 and Dam 1 on 16 August 2007 and 17 August 2007, were also subjected to toxicity testing.

a. The liquid samples from Creek 1 and Dam 1 were toxic to the marine bacterium Vibrio fischeri and the water flea Ceriodaphnia dubia.

b. The toxicity of the water in Creek 1 and Dam 1 resulted from low dissolved oxygen, high ammonia levels and the presence of low concentrations of organics in the waters. The elevated conductivity of the waters may have also contributed to the toxicity of the waters.

c. The dissolved oxygen in Creek 1 and Dam 1 was low, measured at 28% saturation or lower, indicating that the water was of poor quality.

d. The ammonia levels in Creek 1 and Dam 1 were high, measured at 44-99 mg/L.

e. The organic levels in Creek 1 and Dam 1 were below the known toxic amounts for those chemicals. However, the decomposition of the organic compounds is likely to have indirectly contributed to the toxicity of the waters.

f. The conductivity levels in Creek 1 and Dam 1

were high, measured at 1,900 to 2,900 µS/cm. The conductivity of typical freshwater is below 250 µS/cm.

Further Testing of Creek 1 Dam 1

221. On 26 September 2007, zooplankton and phytoplankton samples from Dam 1 were collected and were compared to samples taken from a dam outside the Property.

a. There was no zooplankton present in Dam 1.

b. There was more blue-green algae at Dam 1 when compared to that within the dam outside the Property.

c. There were less diverse assemblages of plankton communities within Dam 1 when compared to those within the dam outside the Property.

d. Dam 1

was in a less healthy condition than the dam outside the Property.

Creek 2 and Dam 2– Analysis of Samples Taken 16 & 17 August and 26 September 2007- Chemical Testing

223. On 16 August 2007, 17 August 2007, and 26 September 2007 solid and liquid samples were taken from Creek 2 and Dam 2 and were later analysed and compared to samples taken from reference points.

a. The soil samples taken in the vicinity of Creek 2

had elevated concentrations of arsenic, sulphur, calcium, copper, strontium, tin and zinc.

b. The soil samples taken in the vicinity of Creek 2

had elevated levels of up to 290 mg/kg of molybdenum.

c. The solid samples taken in the vicinity of Creek 2

had elevated levels of sulphur, calcium, strontium and copper.

d. In general, the concentrations of metals in the samples collected in September 2007 were higher than in the corresponding samples collected in August 2007, which may indicate that elements in the overlying aqueous liquids may have been incorporated into the solids as the liquids evaporated

e. There were qualitative and quantitative differences in the concentrations of elements and in the material collected from the creek, suggesting that a variety of materials may have been deposited there.

f. The solid samples taken in the vicinity of Creek 2 contained a range of free fatty acids and fatty acid esters, demonstrating that vegetable oil was present.

g. The solid samples taken in the vicinity of Creek 2

contained a range of organic compounds, including methyl phenol, various hydrocarbons and aldehydes.

h. The solid samples taken in the vicinity of Creek 2

also contained phenols, including tricholorophenol and tetrachlorophenol. Chlorophenols are highly toxic to both terrestrial and aquatic organisms and are commonly used in insecticides, fungicides and bactericides in products such as wood preservatives and disinfectants.

i. The liquid samples taken from Creek 2

had elevated levels of molybdenum.

j. The liquid samples taken from Creek 2

had high levels of BOD (2,300 to 7,000 mg/L), COD (4,000 to 19,000 mg/L) and ammonia (44 to 93 mg/L).

k. The liquid samples taken from Creek 2

contained fatty acids and fatty acid esters.

l. One liquid sample taken from Creek 2

contained DEET.

m. One liquid sample from Creek 2

contained terpin. Terpin is a compound which, like diethyltoluamide, is often found in landfill leachates and was also found in samples of leachate from the Eastern Creek Waste and Recycling Centre.

n. The major waste material in Creek 2

was a sludge material that contained vegetable oil and animal fat. The vegetable oil component contained canola oil as evidenced by the amounts of brassicasterol in the samples. The presence of animal fat was also demonstrated by elevated levels of cholesterol in the samples.

225. All samples taken in Creek 2, apart from the sample from Dam 2, contained high levels of BOD (2300 to 7000 mg/L), COD (4000 to 19000 mg/L) and ammonia (44 to 93 mg/L). These results are consistent with the liquids being derived from waste containing a large amount of organic material such as effluent from food processing, manure waste or landfill leachate.

a. create slicks on surface water and form emulsions and sludge that can be lethal to wildlife;

b. cause harmful physical effects, such as coating animals and plants with oil and suffocating them by oxygen depletion;

c. be toxic or form toxic products;

d. destroy future and existing food supplies, breeding animals and habitat;

e. produce rancid odours;

f. form products that linger in the environment for many years; and

g. catch fire when ignition sources are present.

227. Spills of vegetable oils and animal fats can have devastating effects on the environment. Ecosystems may take years to recover or may never recover from spills. Because of their insolubility and lower density, oils form a layer on the surface of water such that oxygen exchange between the gas and liquid phases decreases. As a result the water becomes depleted in dissolved oxygen, and aquatic life is potentially smothered. Furthermore, this effect is magnified as a result of the high BOD values when microbial degradation of the oil takes place.

228. Although vegetable oils and animal fats can biodegrade rapidly, in some situations polymerisation can occur and relatively hard intractable material can be produced that forms a persistent, impermeable cap over sediments, reducing the rate of oxygen diffusion into the sediments. One difference between vegetable oils and animal fats and petroleum oils is that most have lower volatility than petroleum oil. As a result, less of the material is removed from a spill by evaporation, however, the combustion and explosive potential of these oils is reduced.

229. The sludge in Creek 2 was rich in vegetable oil and animal fat. This sludge and the free oil that separated from it are likely to have smothered the creek bed and suffocated biota that was not able to move. In addition, the sludge and free oil was likely to have smothered the roots of nearby vegetation, having deleterious effects.

Creek 2 and Dam 2– Analysis of Samples Taken 16 & 17 August and 26 September 2007- Toxicity Testing

231. On 16 August 2007 and 17 August 2007, liquid samples from Creek 2 and Dam 2 were collected. They were subsequently analysed and compared to samples taken from a reference point.

a. The liquid samples from Creek 2 were toxic to the marine bacterium Vibrio fischeri and the water flea Ceriodaphnia dubia. In general the liquids were more toxic to Vibrio fischeri which indicated that the toxicity was related to organic contaminants rather than metal contaminants.

b. The liquid samples from Dam 2 were not toxic to the marine bacterium Vibrio fischeri and the water flea Ceriodaphnia dubia.

c. The toxicity of the water in Creek 2 resulted from low dissolved oxygen, high ammonia levels and the presence of low concentrations of organics in the waters. The slightly elevated conductivity of the waters may have also contributed to the toxicity of the waters.

d. The dissolved oxygen in Creek 2 was low, measured at 28% saturation or lower, indicating that the water was of poor quality.

e. The ammonia levels in Creek 2 were high, measured at 44-99 mg/L.

f. The organic levels in Creek 2 were below the known toxic amounts for those chemicals. However, the decomposition of the organic compounds is likely to have indirectly contributed to the toxicity of the waters.

g. The conductivity levels in Creek 2 were high, measured at 1,900 to 2,900 µS/cm. The conductivity of a typical freshwater is below 250 µS/cm.

Further Testing of Dam 2 – Phytoplankton Samples

233. On 26 September 2007, phytoplankton samples from Dam 2 were collected and were later analysed and compared to samples taken from a dam outside the Property.

a. There were more blue-green algae at Dam 2 when compared to that contained in the dam outside the Property.

b. There were less diverse assemblages of plankton communities present within Dam 2 when compared to the dam outside the Property.

c. Dam 2 was in a less healthy condition than the dam outside the Property.

Chemical Testing Around Creek 2 –The Homestead Area

235. On 28 August 2007, solid samples were taken from stockpiles of waste located above Creek 2, near the “Homestead Area”.

Chemical Testing at Grease Trap Waste Stockpiles/Dam and Drop Off Point

237. On 5 March 2008 solid samples were taken from the location described as “Grease trap waste stockpiles”/”Dam and drop off point” and later analysed and compared to samples taken from reference points.

Chemical Testing at Feeder Creek to Creek 2 Below The Grease Trap Waste Stockpiles/Dam and Drop Off Point

239. On 4 June 2008 solid samples were taken from the feeder creek to Creek 2 and were later analysed and compared to samples taken from reference points.

240. The results of chemical testing showed that the solid samples contained vegetable oils and animal fats. The vegetable oil in the samples was consistent with canola oil.

241. On 4 June 2008, liquid samples from Creek 2 were also collected to determine if oil like substances were in the waters.

242. The results of chemical testing showed that oil substances were less than 10mg/L in the waters.

Testing of Waste Dumped on other parts of the Property Between 1 July 2007 and 31 January 2008 Inclusive

Chemical Testing at

Paddock 1

and

Paddock 2

245. On 17 August 2007 solid samples were taken from a Paddock. A comparison of the concentrations of elements in the soil with the reference soil shows increases in the concentrations of the macro elements calcium, sodium, phosphorus and sulphur as well as increases in the concentrations of heavy metals such as copper and zinc. These types of changes are observed in soils that have been amended with sewage sludge. The presence of coprostanol at levels of over 100 mg/kg in one sample of soil from the paddock is indicative of the presence of faecal material.

74 I will accept that the plea of guilty can be given some weight as an expression of remorse for both Defendants.

Whether likely to reoffend - s 21A(3)(g) CSP Act

75 These are first offences for both Defendants. Given their respective personal circumstances since the offences and their general good character it is unlikely that either Defendant will reoffend.

Character – s 21A(3)(f) CSP Act

76 Mr Wattke provided character references from his wife, Monica Postawski, dated 1 October 2009, from Paul Punter, a former employee of the company, dated 7 October 2009, from Graeme Hudswell, business manager of a former client of the company, dated 15 October 2009 and from John van de Putte, a co-owner of the company (undated) referring to his good character, generous and loving disposition to family and friends, and competent workplace management skills. All, with the exception of Mr Hudswell, were made in the knowledge of the offences with which Mr Wattke has been charged and attest to his good character.

77 Mr Geerdink also provided character references from his current employer, Joe Viglione, dated 12 February 2010, and former employees and co-workers, Mark Williams (undated) and Mehulkumar Patel, dated 11 February 2010, referring to his professional and conscientious work practices and honesty. All were made in the knowledge of the offences with which Mr Geerdink has been charged and attest to his good character.

78 I accept that both Defendants are of good character. As noted in Plath v Rawson at [148], it is often the case that environmental offenders have no prior convictions and are otherwise of good character suggesting this subjective factor has less weight in sentencing.

Extra curial punishment

79 Extra curial punishment refers to any serious loss or detriment an offender has suffered or will suffer as a result of committing an offence, quite apart from any punishment imposed by a sentencing judge, R v Einfeld [2009] NSWSC 119 at [154]. What weight is to be given to any extra curial punishment is a factor for the Court to consider on the particular facts and circumstances of the matter before it, Director of Public Prosecutions v D’Arcy [2009] NSWLC 1 at [26].

Bankruptcy

80 Mr Wattke’s counsel submitted that Mr Wattke had been subject to extra curial punishment because the company went into liquidation, and as a result he was made bankrupt and has not worked since. Mr Wattke had been in the waste disposal business since 1994 when the company was set up.

Psychological impairment

81 It was submitted that Mr Wattke has suffered severe psychological trauma since the offences. Reports from Mr Wattke’s general medical practitioner and a clinical psychologist were tendered as evidence. Since these reports were prepared and since the sentence hearing I requested a further probation and parole report concerning Mr Wattke. The recent probation and parole report dated April 2010 states that Mr Wattke’s doctor considers his physical and mental health to have improved and stabilised over the past four months. This matter is therefore less relevant to my sentencing consideration than it might have been.

82 Mr Geerdink made no specific submissions on extra curial punishment. I also take into account that he was referred to a psychologist in July 2009 and attended psychotherapy for depression and anxiety, with continued counselling recommended.

83 Mr Wattke’s counsel referred to Courtney v Regina [2007] NSWCCA 195; (2007) 172 A Crim R 371 regarding the proper approach to sentencing a person with mental illness. In Courtney Basten JA stated at [14] :

Recent caselaw concerning the proper approach to sentencing a person with mental illness is extensive. In this Court, the principles were adverted to in

(1999) 46 NSWLR 346, in particular by Wood CJ at CL at [252]–[254], where his Honour distinguished drug addiction from mental abnormality. More recently, the principles were referred to by Spigelman CJ in

[2002] NSWCCA 255 at [23]–[26]. Most recently, the principles have been reconsidered and restated by the Victorian Court of Appeal in

[2007] VSCA 102 at [32] (Maxwell P, Buchanan and Vincent JJA), following and elaborating upon the statements in

[1996] 1 VR 398, in the following terms:

Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

Grove J at [51], [53] and Howie J at [82]-[83] also commented on the sensitivity of sentencing a person with mental illness.

84 These statements in Courtney were made in obiter as the defendant before the court was found to be severely mentally impaired at the time of the commission of the offence, and was unfit to be tried under the provisions of the Mental Health (Criminal Procedure) Act 1990. It appears to be settled principle that the psychological state of the offender which has arisen after the offence can be taken into account as a matter relevant to sentencing. No case, apart from Pal was found where this circumstance was before this Court in a sentencing matter. In other cases referred to in Courtney, such as R v Israil [2002] NSWCCA 255 and R v Jiminez [1999] NSWCCA 7 the defendant was mentally ill or impaired at the time of the commission of the offence, as well as at the date of a sentence being imposed.

85 In Pal, the defendant was described as a landfill consultant and was the principal of an earth-moving business and also director of a haulage company. She pleaded guilty to two charges under s 115(1) of the POEO Act that in 2004 she negligently disposed of waste in a manner that harmed or was likely to harm the environment at two different properties. The defendant was engaged to undertake fill operations on two sites, and had full control of those sites. Due to the seriousness of the charges, and before passing sentence, Sheahan J considered at [58]-[69] medical/psychological evidence that the EPA investigations and subsequent prosecution had had significant long-term impacts on Ms Pal’s mental and emotional health. Sheahan J also noted that there were some factual inaccuracies in Ms Pal’s description of the investigations and EPA prosecution which were relied upon in the defendant’s forensic psychological reports, and he opined at [97] that the written and oral evidence of the defendant’s treating psychologist “does not help the court on the defendant’s state of mind at the relevant time.” The mental health aspects of the defence submissions were not accepted as mitigating factors in the eventual sentence involving a substantial community service orders of 135 hours and a fine of $13,500 for one offence and 315 hours and a fine of $31,500 for another offence.

86 Courtney refers to impaired mental functioning which can encompass a wide range of mental states. There is little guidance in the authorities regarding evidence of depression of an offender resulting from events arising from the commission of an offence and how it is to be taken into account in sentencing. It is likely such evidence is frequently placed before courts as I surmise this is likely to be a common reaction to being found guilty of a criminal offence. As stated by James J at [156] in R v Einfeld it is common for offenders who are the subject of criminal proceedings to become depressed and even severely depressed. In the current case Mr Wattke’s depression resulted from the impact of the EPA investigations and prosecution.

87 It was submitted that each Defendant has experienced varying degrees of psychological distress, including depression and anxiety. I do not believe that the objective seriousness of the offences is significantly reduced by the fact that each Defendant has suffered from depression and continues to do so to some extent.

Evenhandedness

88 The principle of evenhandedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the Court: Axer at 365. The Prosecutor submitted that there are no comparable cases.

(summarised above at par 85 concerning two offences under s 115(1) has some similarity. The sentence for an offence under s 5 of the Environmental Offences & Penalties Act 1989 (now repealed) in Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997) should also be considered (summarised below at par 104).

Means of the Defendant to pay/Bankruptcy of the Defendant

90 Under s 6 of the Fines Act 1996, in the exercise of its discretion to fix the amount of any fine, the Court is required to consider such information regarding the means of the accused as is reasonably and practicably available for the Court's consideration and such other matters as, in the opinion of the Court, are relevant to the fixing of that amount.

91 At the hearing both Defendants were granted leave to file any financial information they considered relevant to the exercise of the Court’s discretion under s 6 of the Fines Act. I have been told from the bar table that Mr Geerdink is employed. His employer provided a written character reference after the hearing. Mr Geerdink filed a statutory declaration on 31 March 2010 itemising his monthly outgoing expenses totalling $7007 and two salary advice slips for February and March 2010. I do not know anything else about his financial situation, having not been provided with tax returns, bank statements or investment summaries. I understand from the probation and parole report (detailed at par 101 below) that he is married with children (also confirmed in Mr Geerdink’s 31 March 2010 statutory declaration). I have limited information on which to assess Mr Geerdink’s means to pay.

Bankruptcy of Defendant

92 I understand that Mr Wattke is not presently employed as indicated in the probation and parole report and have been informed by his counsel that he is bankrupt following the winding up of the company. Mr Wattke has otherwise provided no financial information or material for me to consider in relation to the application of s 6 of the Fines Act.

93 A penalty imposed by the Court for an offence under the POEO Act is not a debt provable in bankruptcy, Bankruptcy Act 1966 (Cth) s 82(3). This means that a defendant will continue to be liable to pay if the bankruptcy is discharged (Environment Protection Authority v Ableway Waste Management Pty Ltd and Anor [2005] NSWLEC 469 at [35]).

94 In Environment Protection Authority v Hogan [2008] NSWLEC 125, the financial position of the defendant, an undischarged bankrupt with an ongoing earning capacity, was given some but not significant weight. In Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94, also involving an impecunious offender, Lloyd J took into account the seriousness of the offence and the need for general deterrence in awarding costs for over $1 million in mitigation of the environmental harm despite the defendant being bankrupt. I considered these cases in determining in Environment Protection Authority v Buchanan (No 2) to impose a substantial fine.

95 The appropriate method for considering a defendant’s means to pay was set out by Finlay J in Rahme v R (1989) 43 A Crim R 81 at 87:

…once a determination has been made that a fine should be imposed the correct procedure in assessing the appropriate amount of the fine is to determine it by reference to the gravity of the offence for which it is imposed. If the court is satisfied that the offender would be unable to pay the amount determined it may reduce it to take account of the offender's means and impecuniosity.

96 I will take into account that the Defendants both have limited ability to pay a substantial fine, on the basis identified in Rahme. In terms of imposing a penalty Mr Wattke has very limited means to pay a substantial penalty accepting his counsel’s advice that he is bankrupt. Mr Geerdink appears to have some capacity to pay a fine and has not provided adequate information to enable an assessment of all relevant aspects of his financial situation such as would be found in income tax returns or bank statements.

Prosecutor’s costs

97 There is no specific agreement that the Defendants pay the Prosecutor’s legal costs. These would generally be awarded to the Prosecutor as provided for under s 257G of the Criminal Procedure Act 1986. I note the Prosecutor’s counsel estimated that the costs of the proceedings were approximately $125,000. That amount of legal costs is significant and can be taken into account in setting a penalty as it is likely to affect the ability of the Defendants to pay a penalty, Environment Protection Authority v Barnes [2006] NSWCCA 246. The Prosecutor additionally seeks $15,000 from each Defendant for investigation costs and is able to do so under s 248 of the POEO Act.

Totality principle

98 The Defendants are each charged with two offences. Given that the offences arise from the same course of conduct it is appropriate that the totality principle is applied. That principle requires a judge to determine the appropriate sentence for each offence and when reviewing the aggregate sentence, consider whether it is just and appropriate. In this way the overall criminality of all the offences is reflected proportionately in the sentences imposed, Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62, Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, and Pearce v The Queen [1988] HCA 57; (1988) 194 CLR 610. I will determine an appropriate sentence for each offence in light of the totality principle.

Pre-sentence reports

99 Each of the Defendants has been referred to probation and parole services for pre-sentence assessment. A pre-sentence report for Mr Wattke prepared by probation and parole officer Ivan Duncalfe dated 2 December 2009 was before the Court. The report states that Mr Wattke has had no prior contact with the Community Offender Services. Mr Wattke is estranged from his de facto wife and children, has remained unemployed since bankruptcy proceedings in June 2008, and is reliant on a Centrelink benefit as his only income. The report also identifies Mr Wattke’s physical and psychological health and relevant treatment history. The report states that Mr Wattke is assessed as unsuitable for a community service order as he has both medical and psychological issues making him unsuitable to be placed with an agency. Mr Wattke was also assessed as unsuitable for a periodic detention order based on the same information.

100 A supplementary pre-sentence report for Mr Wattke was prepared by probation and parole officer Mr Duncalfe dated 10 April 2010. The supplementary report states that Mr Wattke’s doctor considers his physical and mental health have improved and stabilised. Mr Wattke is now assessed as suitable for a community service order. He is also assessed as suitable for a periodic detention order as per the requirements of the CSP Act, and an undertaking to comply with the obligations under a periodic detention order has been signed by him.

101 A pre-sentence report for Mr Geerdink was prepared by probation and parole officer Michael O’Donnell, dated 18 September 2009. The report states that Mr Geerdink has had no prior contact with the Community Offender Services. It states that Mr Geerdink has a supportive relationship with his wife and two children, and that he has had continuous employment since leaving school at age 16. The report identifies some pre-existing health issues and recent psychological counselling. Mr Geerdink was assessed as unsuitable for a community service order under s 86(1) of the CSP Act because an assessment from the Defendant’s general medical practitioner had not been provided. At the hearing Mr Geerdink provided the Court with a copy of his general practitioner’s assessment (exhibit 1B) which was sent to Mr O’Donnell on that day. Mr O’Donnell then gave oral evidence by telephone link-up. In light of the assessment of the general practitioner Mr O’Donnell amended his conclusion in the pre-sentence report and stated that Mr Geerdink was suitable for a community service order. Mr Geerdink was also assessed as suitable for periodic detention and has signed an undertaking as required in s 66(1)(f) of the CSP Act.

Sentencing– s 115(1) offences

102 In this Court the s 115(1) offences are punishable by a fine and/or imprisonment for up to two years. The offences are serious and towards the medium to upper end of the possible spectrum of sentencing given the objective circumstances. It is not the worst case because the environmental harm was largely confined to a single, albeit large, property. Nor is the offence the more serious charge of wilful. The Prosecutor submits that imprisonment should be considered for each Defendant given the objective circumstances of the offence. The three stage process which should apply to the consideration of whether a term of imprisonment should be applied is identified in Plath v Rawson at [176]-[179] in turn citing Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 (per Johnson J, McClellan CJ at CL and Adams J concurring) at [69] and following. The process is set out in Douar at [70]-[72].

70 The first question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment. Section 5 prohibits a Court from imposing a sentence of imprisonment unless the Court is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. At this stage in the process, the only consideration is whether a sentence of imprisonment should be imposed, and not the manner in which that sentence of imprisonment is to be served: Zamagias at paragraph 25.

71 The second step is reached where the Court has determined that no penalty is appropriate other than a sentence of imprisonment. The Court is next to determine what the term of that sentence should be. This has been regarded as the first step of a two-step approach: Foster at paragraph 30; Zamagias at paragraph 26. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. The sentence cannot be increased because it is to be served by way of periodic detention: Wegener at paragraph 22; Zamagias at paragraph 26.

72 The third stage is reached once the length of the sentence of imprisonment has been determined. The Court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. …

103 Considering the first stage of whether imprisonment is the appropriate punishment, s 5(1) of the CSP Act requires that a court not sentence an offender to imprisonment unless it is satisfied that no penalty other than imprisonment is appropriate, having considered all possible alternatives. At [181] of Plath v Rawson, Preston J identifies circumstances where a custodial sentence has been considered as an appropriate punishment, namely to reflect an offender’s conduct which involves a considerable degree of wilfulness and deception, where an offender’s conduct aims to achieve a profit or save an expense, where the offender’s conduct poses a high level of risk to or actually caused considerable environmental harm, where the offender’s conduct is over an extended period of time and where individual and general deterrence makes a custodial sentence appropriate.

104 All these factors were present in relation to the offender in Environment Protection Authority v Gardner [1997] NSWLEC 212 (14 August 1997), a more serious charge of wilful disposal of waste for activities that took place over many months. At trial the defendant was found guilty of the Tier 1 offence of wilfully disposing of waste in a manner which was likely to harm the environment under s 5(1) of the EOP Act. Section 5(1) is identical to s 115(1) of the POEO Act. The defendant operated a caravan park and was discovered to have constructed a concealed system of by-pass plumbing in order to discharge effluent from the caravan park directly into the Karuah River, rather than incur costs for pump-out and road-tanker disposal as required by the Port Stephens Council. The illegal pumping and discharge into the river had occurred for a period of 118 weeks, and caused viral contamination to sediments near the outlet pipe, and posed a grave health risk to the community.

105 In the judgment on sentence in Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997) Lloyd J restated that he found beyond reasonable doubt that the defendant knew his activities were illegal and would harm or were likely to harm the environment. Evidence was adduced as to prior good character, and the defendant acknowledged his responsibility in the commission of the offence. There were multiple aggravating features in that the offence was not an isolated or single act of pollution, the offence was committed for financial gain, the defendant went to great lengths to conceal illegal activity, the harm affected the community as a whole and the defendant was aware of causing environmental harm by his actions but showed little remorse. Lloyd J considered a possible sentence of community service or periodic detention, but recognised that such orders suggest a strong degree of leniency and are outwardly less severe in denunciation of a crime as compared with a full time custodial sentence. Lloyd J sentenced the defendant to 12 months imprisonment with a non-parole period of 9 months, to pay a penalty of $250,000 (the maximum fine at that time), and to pay the prosecutor’s costs of $170,000.

106 Gardner is markedly more serious than the offences before me given the finding that the defendant acted wilfully for a lengthy period, concealed the illegal activity and the sewage discharged illegally posed grave health risks to the community. The finding of guilty followed a contested trial. The Tier 1 offences for both Defendants in these proceedings while serious are not as serious as in Gardner. The element of the offence is negligent disposal of waste not the more serious wilful. Further, both Defendants have pleaded guilty, avoiding the need for a contested hearing which I anticipate would have been lengthy and which can be considered as a recognition of their understanding of the nature of their offences.

107 I have given careful consideration to whether a penalty of imprisonment is warranted, mindful of the requirement in s 5 of the CSP Act that a court must not sentence an offender to imprisonment unless satisfied that no penalty other than imprisonment is appropriate having considered all possible alternatives. The period of the offences occurred over several months and resulted in the negligent disposal of a very large amount of waste. Much of that waste had significant adverse environmental impacts on the property but was confined to that property. The activity was undertaken as part of the waste disposal activities of the company. The initial intention to purchase the property to dispose of food waste was a worthwhile one. The Defendants, particularly Mr Wattke as the only active director of the company at the time of the offences, stood to gain financially from the activities giving rise to the offence. Directions from regulatory authorities to stop the activities giving rise to the offences were ignored.

108 Taking into account the need to adequately punish the Defendants for the offence (s 3A(a) CSP Act), for general deterrence in cases of this kind (s 3A(b) CSP Act), to make the Defendants’ accountable for their action (s 3A(e) CSP Act), and to recognise the level of environmental harm to the community (s 3A(g) CSP Act), I have given serious consideration to a period of imprisonment. In light of the Defendants’ lack of prior convictions, personal circumstances including that they are married with children, and in view of their guilty pleas whereby they admitted their offences I will consider alternatives to a custodial sentence. These are a good behaviour bond under s 9 of the CSP Act, a community service order under s 8 of the CSP Act and/or a fine. The offence is too serious for the imposition of a good behaviour bond under s 9. I consider a community service order close to the maximum of 460 hours should be imposed together with a fine.

109 I have resolved that a community service order together with a fine is an appropriate penalty for each Defendant. The making of community service orders is provided for in s 8 of the CSP Act. The requirements for imposing community service orders are identified in s 86 of the CSP Act. An order cannot be made unless the offender is found suitable after assessment by a probation and parole officer, s 86(4). Both Defendants have been assessed as suitable to perform community service by the probation and parole service as required by s 86(4).

110 There are statutory obligations and conditions associated with a community service order for each Defendant following conviction set out in the Crimes (Administration of Sentences) Act 1999. There are also serious penalties for breaches of a community service order which the Defendants must be aware of and which I will explain when judgment is delivered.

Parity between Defendants

111 While not literally co-offenders both Defendants are charged with the same offences arising from the same circumstances. Inconsistency in sentencing could give rise to a justifiable sense of grievance so that parity of punishment as between the Defendants is important, see Lowe v The Queen (1984) 154 CLR 606 Mason J at 610.

112 While Mr Wattke is entitled to a lesser reduction in penalty for the early plea of guilty compared to Mr Geerdink, I consider that he has suffered extra curial punishment not suffered by Mr Geerdink given the substantial impact of the company being wound up since the offence. Mr Wattke is currently unemployed unlike Mr Geerdink. In the circumstances of these offences both Defendants present overall with comparable objective and subjective features. The Defendants should be treated on an equal basis so that there is parity of sentencing between them.

113 Each Defendant is required to undertake 460 hours of community service. A fine of $50,000 should also be imposed on each Defendant.

Sentence for water pollution offences s 120(1) POEO Act

114 The water pollution offences are punishable by way of fine up to a maximum of $250,000 for each Defendant. Both Defendants should be sentenced on the same basis. I have determined above that the level of seriousness of these offences is in the low to medium range. The same mitigating factors considered for the s 115(1) offences must also be considered in relation to the s 120 offences. I will apply the totality principle to determine a lower penalty than I would otherwise have applied. Each Defendant is liable to a penalty of $10,000.

115 An application for time to pay a fine can be made to the Registrar of the Court as provided by s 10 of the Fines Act.

Orders

116 In Matter 50070 of 2008 the Court orders that:

Protection of the Environment Operations Act

117 In Matter 50071 of 2008 the Court orders that:

Protection of the Environment Operations Act

118 In Matter 50077 of 2008 the Court orders that:

Protection of the Environment Operations Act

119 In Matter 50078 of 2008 the Court orders that:

Protection of the Environment Operations Act

Citations

Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24

Most Recent Citation

Cases Citing This Decision

27

Layden v Independent Liquor and Gaming Authority [2020] NSWCATAD 274

Environment Protection Authority v Jackson; Environment Protection Authority v LeMessurier [2024] NSWLEC 137

Environmental Protection Authority v Bald Hill Quarry Pty Ltd [2024] NSWLEC 114

Cases Cited

47

Statutory Material Cited

9

Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34

Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242

Environment Protection Authority v Delta Electricity [2009] NSWLEC 11

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CITATION:	Environment Protection Authority v Wattke, Environment Protection Authority v Geerdink [2010] NSWLEC 24
PARTIES:	PROSECUTOR Environment Protection Authority FIRST DEFENDANT Martin Wattke SECOND DEFENDANT Rene Geerdink
FILE NUMBER(S):	50070 of 2008; 50071 of 2008; 50077 of 2008; 50078 of 2008
CORAM:	Pain J
KEY ISSUES:	PROSECUTION :- guilty plea - sentence - unlicensed waste operations – negligent disposal of waste on rural property in course of company business of waste disposal – one defendant director of company - one defendant manager with control of daily operations - serious environmental harm from disposal of toxic waste on rural property - harm confined to property - harm foreseeable - aggravating factors – whether extracurial punishment – appropriate sentence substantial community service order and fine - consideration of defendants’ means to pay – mitigating factors - late plea of guilty - defendants of good character - no prior convictions - substantial costs of prosecutor taken into account PROSECUTION:- guilty plea - sentence – pollute waters - localised environmental harm - low to medium objective gravity - appropriate penalty - consideration of means to pay - mitigating factors - late plea of guilty - defendants of good character - no prior convictions - substantial costs of prosecutor taken into account
LEGISLATION CITED:	Bankruptcy Act 1966 (Cth) s 82(3) Crimes (Sentencing Procedure) Act 1999 s 3A, 5(1), 8, 9, 21A, 22, 66, 68, 69, 80, 86 Crimes (Sentencing Procedure) Regulation 2005 cl 15 Criminal Procedure Act 1986 s 257B Environmental Offences & Penalties Act 1989 s 5(1) Environmental Planning and Assessment Act 1979 Fines Act 1996 s 6 Mental Health (Criminal Procedure) Act 1990 Protection of the Environment Operations Act 1997 s 3, 155(1), 115, 119, 120(1), 123, 169, 214(2), 241(1), 248
CASES CITED:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Courtney v Regina [2007] NSWCCA 195; (2007) 172 A Crim R 371 Director of Public Prosecutions v D’Arcy [2009] NSWLC 1 Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 Environment Protection Authority v Ableway Waste Management Pty Ltd and Anor [2005] NSWLEC 469 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31; (2009) 165 LGERA 383 Environment Protection Authority v Delta Electricity [2009] NSWLEC 11 Environment Protection Authority v Douglass [No 2] [2002] NSWLEC 94 Environment Protection Authority v Gardner [1997] NSWLEC 212 (14 August 1997) Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997) Environment Protection Authority v Ghossayn [2009] NSWLEC 181 Environment Protection Authority v Hogan [2008] NSWLEC 125 Environment Protection Authority v N (1992) 76 LGRA 114; (1992) 26 NSWLR 352 Environment Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831 Environment Protection Authority v Pal [2009] NSWLEC 35 Environment Protection Authority v Ross [2009] NSWLEC 36; (2009) 165 LGERA 42 Environment Protection Authority v Waste Recycling Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Environment Protection Authority v Werris Creek Coal Pty Ltd; Environment Protection Authority v Holley [2009] NSWLEC 124 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77 Hoare v R [1989] HCA 33; (1989) 167 CLR 348 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62 P v KPB [2009] NSWLC 6 at [48] Pearce v The Queen [1988] HCA 57; (1988) 194 CLR 610 Plath v Rawson [2009] NSWLEC 187; (2009) 170 LGERA 253 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Borkowski [2009] NSWCCA 102 R v Burnett (1996) 85 A Crim R 76 R v Carroll [2008] NSWCCA 218; (2008) 188 A Crim R 253 R v Einfeld [2009] NSWSC 119 R v Hallocoglu (1992) 29 NSWLR 67 R v Israil [2002] NSWCCA 255 R v Jiminez [1999] NSWCCA 7 R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 R v Slattery (1996) 90 A Crim R 519 at 524 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Zamagias [2002] NSWCCA 17 Rahme v R (1989) 43 A Crim R 81 Veen v The Queen [No. 2] [1988] HCA 14; (1988) 164 CLR 465
TEXTS CITED:	EPA Environmental Guidelines: Assessment, Classification and Management of Liquid and Non-Liquid Wastes (1999). Ivan Potas, Sentencing Manual, Law, Principles and Practice in New South Wales (2001), Judicial Commission of New South Wales, Lawbook Co
DATES OF HEARING:	10 December 2009 11 December 2009 10 March 2010 (mention re pre-sentencing reports)
DATE OF JUDGMENT:	25 June 2010
LEGAL REPRESENTATIVES:	PROSECUTOR Mr J Giles SOLICITOR Department of Environment, Climate Change and Water FIRST DEFENDANT Mr G Brady SOLICITOR Brenda Duchen SECOND DEFENDANT In person