Environment Protection Authority v Wollondilly Abattoirs Pty Ltd

[2019] NSWLEC 72

Land and Environment Court

New South Wales

Medium Neutral Citation:	Environment Protection Authority v Wollondilly Abattoirs Pty Ltd [2019] NSWLEC 72
Hearing dates:	11-14 March 2019, 25 March 2019 (written submissions)
Date of orders:	05 June 2019
Decision date:	05 June 2019
Jurisdiction:	Class 5
Before:	Pain J
Decision:	See par [79] of judgment
Catchwords:	ENVIRONMENTAL OFFENCES – sentencing – provision of false or misleading information to regulator on five occasions – fraudulent behaviour of employees giving rise to offences unknown to company directors – order made under s 10A of Crimes (Sentencing Procedure) Act 1999 ENVIRONMENTAL OFFENCES – sentencing – provision of false or misleading information – response to s 193 notice issued by Prosecutor – fraudulent behaviour of employees giving rise to offence unknown to company directors – order made under s 10A of Crimes (Sentencing Procedure) Act 1999
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 ss 3A, 10, 10A, 21A, 22 Criminal Procedure Act 1986 ss 257B, 257G Fines Act 1996 s 6 Protection of the Environment Operations Act 1997 ss 3, 64, 66, 169C, 193, 211, 241
Cases Cited:	Bega Valley Shire Council v Williams [2018] NSWLEC 124 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive of the Office of Environment and Heritage v Turnbull [2017] NSWLEC 141 Chief Executive, Office of Environment and Heritage v Merriman [2018] NSWLEC 96 Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 Environment Protection Authority v Burrangong Meat Processors Pty Ltd [2003] NSWLEC 102 Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott (2016) 221 LGERA 24; [2016] NSWLEC 167 Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 Environment Protection Authority v Wambo Coal Pty Ltd [2016] NSWLEC 125 Environment Protection Authority v Whitehaven Coal Mining Pty Ltd [2019] NSWLEC 27 Filipowski v Vopak Terminals Sydney Pty Ltd [2006] NSWLEC 104 Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 Gordon Plath of the Department of Environment and Climate Change v Fish; Gordon Plath v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52 Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Paris [2001] NSWCCA 83 R v Peel [1971] 1 NSWLR 247 Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:	Principal judgment
Parties:	Environment Protection Authority (Prosecutor) Wollondilly Abattoirs Pty Limited (Defendant)
Representation:	COUNSEL: J Single (Prosecutor) C Carroll (Defendant)   SOLICITORS: Environment Protection Authority Legal Services (Prosecutor) M J Law (Defendant)
File Number(s):	18/145824-145828, 18/145882

Judgment

1. Wollondilly Abattoirs Pty Ltd (Wollondilly Abattoirs) has pleaded guilty to five charges concerning the supply of false reports required by conditions of an environment protection licence (EPL) to the Environment Protection Authority (EPA), an offence under s 66(2) of the Protection of the Environment Operations Act 1997 (POEO Act). The company has also pleaded guilty to a further charge under s 211(2) concerning the knowing supply of false information in response to a s 193 notice issued by the EPA under the POEO Act requiring the provision of information. A plea of guilty signifies the acceptance by a defendant of the elements of an offence.

2. When sentencing, any matter adverse to a defendant must be proved by a prosecutor beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 281. Any contested matter relied on by a defendant must be established on the balance of probabilities: R v Olbrich at 281.

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

Protection of the Environment Operations Act 1997

4. Relevant sections of the POEO Act provide:

Chapter 1 Preliminary

…

3 Objects of Act

The objects of this Act are as follows:

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

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

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

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

(i)   pollution prevention and cleaner production,

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

(iia)   the elimination of harmful wastes,

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

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

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

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

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

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

…

Chapter 3 Environment protection licences

…

Part 3.5 Particular licence conditions

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66 Conditions requiring monitoring, certification or provision of information, and related offences

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(2)   False or misleading information

A holder of a licence who supplies information, or on whose behalf information is supplied, to the appropriate regulatory authority under the conditions of the licence is guilty of an offence if the information is false or misleading in a material respect.

Maximum penalty:

(a)   in the case of a corporation—$1,000,000, or

(b)   in the case of an individual—$250,000.

…

Chapter 5 Environment protection offences

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Part 5.9 General offences

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169C Evidence as to state of mind of corporation

(1)   Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.

(2)   In this section, the state of mind of a person includes:

(a)   the knowledge, intention, opinion, belief or purpose of the person, and

(b)   the person’s reasons for the intention, opinion, belief or purpose.

…

Chapter 7 Investigation

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Part 7.3 Powers to require information or records

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193 Requirement to provide information and records (authorised officers)

(1)   An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the officer requires by the notice in connection with any matter within the responsibilities and functions of the regulatory authority that appointed the officer.

(2)   In the case of authorised officers appointed by the EPA, this section is not limited to matters in respect of which the EPA is the appropriate regulatory authority.

…

Part 7.7 General

211 Offences

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(2)   A person who furnishes any information or does any other thing in purported compliance with a requirement made under this Chapter, knowing that it is false or misleading in a material respect is guilty of an offence.

…

Maximum penalty (subject to sections 204 and 208):

(a)    in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or

(b)    in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

Crimes (Sentencing Procedure) Act 1999

5. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) provides:

Part 1 Preliminary

…

3A Purposes of sentencing

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

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

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

(c)   to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

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

(f)   to denounce the conduct of the offender,

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

…

6. Under s 21A(1) of the CSP Act, aggravating factors in subs (2) and mitigating factors in subs (3) and any other objective or subjective factors that affect the relative seriousness of the offence are to be taken into account. No aggravating factors under s 21A(2) were identified by the EPA. Mitigating factors in subs (3) are considered below.

The offences

7. Wollondilly Abattoirs is charged with the following offences:

(a) an offence under section 66(2) of the Protection of the Environment Operations Act 1997 (POEO Act) as the holder of a licence who supplied information to the EPA under the conditions of the licence, being information that was false or misleading in a material respect. On or about 11 May 2017, Wollondilly Abattoirs provided the EPA with a quarterly report which was required to be submitted by 10 January 2017 (the January 2017 quarterly report) pursuant to condition R4.1 of its. Licence and that report contained false or misleading information (2018/145824);

(b) an offence under section 66(2) of the POEO Act as the holder of a licence who supplied information to the EPA under the conditions of the licence, being information that was false or misleading in a material respect. On or about 11 May 2017, Wollondilly Abattoirs provided the EPA with a quarterly report which was required to be submitted by 20 April 2017 (the April 2017 quarterly report) pursuant to condition R4.1 of its licence and that report contained false or misleading information (2018/145826);

(c) an offence under section 66(2) of the POEO Act in that it was the holder of a licence who supplied information to the EPA under the conditions of the licence, being information that was false or misleading in a material respect. On or about 20 July 2017, Wollondilly Abattoirs provided the EPA with a quarterly report which was required to be submitted by 20 July 2017 (the July 2017 quarterly report) pursuant to condition R4.1 of its licence and that report contained false or misleading information (2018/145825);

(d) an offence under section 66(2) of the POEO Act in that it was the holder of a licence who supplied information to the EPA under the conditions of the licence, being information that was false or misleading in a material respect. On or about 24 October 2017, Wollondilly Abattoirs provided the EPA with a quarterly report which was required to be submitted by 20 October 2017 (the October 2017 quarterly report) pursuant to condition R4.1 of its licence and that report contained false or misleading information (2018/145828);

(e) an offence under section 66(2) of the POEO Act in that it was the holder of a licence who supplied information to the EPA under the conditions of the licence, being information that was false or misleading in a material respect. On or about 30 November 2017, Wollondilly Abattoirs provided the EPA with its Annual Return for the reporting period 1 October 2016 to 30 September 2017 (the Annual Return) which was required to be submitted by 29 November 2017 pursuant to condition R1.1 of its licence and the Annual Return contained false or misleading information (2018/145827); and

(f) an offence under section 211(2) of the POEO Act of furnishing information to the EPA in purported compliance with a notice to provide information and records issued under s 193 of the POEO Act, knowing that it was false or misleading in a material respect (2018/145882).

Statement of agreed facts

8. The parties agreed the following statement of agreed facts (SOAF) filed on 10 December 2018 (exhibit A). The tabbed documents to the SOAF are not included:

…

2   Wollondilly Abattoirs Ply Limited ACN 067 281 645 (Wollondilly Abattoirs) holds environment protection licence number 422 (the EPL), issued under the POEO Act.

3   Wollondilly Abattoirs was required by the EPL to take an effluent quality sample from a particular effluent pond on its licensed premises once each quarter, have the samples analysed for particular pollutants in accordance with the Approved Methods for the Sampling and Analysis of Water Pollutants in New South Wales publication and provide the results of analysis to the EPA in a quarterly report and its annual return.

4   Wollondilly Abattoirs was required by the EPL to take three annual surface soil samples and three annual subsurface soil samples from the main effluent irrigation area on its Premises, have the samples analysed for particular pollutants in accordance with the EPL and provide the results of analysis to the EPA in a quarterly report and its annual return.

5   In 2017, Wollondilly Abattoirs provided to the EPA four quarterly reports, each of which attached a false certificate of analysis containing false results of analysis for the samples, purported to have been created by “ALS Environmental”, which is a trading name of Australian Laboratory Services Pty Ltd (ALS) The certificates were false in that they had not been created by or on behalf of ALS.

6   On 30 November 2017, Wollondilly Abattoirs submitted to the EPA an Annual Return that contained false monitoring data for the effluent samples, surface soil samples and subsurface soil samples; falsely stated that the number of effluent samples required to be tested for pH and Conductivity was 0; failed to report under “Details of Non-Compliance with Licence” any breaches of condition M2 of its environment protection licence; and contained an inaccuracy in relation to dates of non-compliances with the provision of quarterly reports.

7 As part of its investigation, the EPA issued Wollondilly Abattoirs with a notice under s 193 of the POEO Act, requiring it to provide information and records in relation to the suspected failure to monitor pollutants as required by the EPL and the suspected provision of false information in the quarterly reports. Wollondilly Abattoirs provided the EPA with a response to that notice which included false information, falsified invoices and falsified bank records.

Wollondilly Abattoirs and the Premises

8   Wollondilly Abattoirs Ply Limited ACN 067 281 645 (Wollondilly Abattoirs) holds environment protection licence number 422 (the EPL) for livestock processing activities carried out at 48 Koorana Rd Picton NSW (the Premises). A copy of the EPL as in force from 4 December 2015 to 15 March 2017 is at Tab 1 of the attached bundle. A copy of the EPL as in force from 16 March 2017 to 29 November 2017 is at Tab 2.

9   The EPA is the appropriate regulatory authority (ARA) for the activities carried out at the Premises.

10   Wollondilly Abattoirs has been registered since 1994 and the abattoir has been operating at the Premises for about 50 years. The EPL was in force when the POEO Act repealed the Pollution Control Act 1970 with effect from 1 July 1999. Prior to 1 July 1999, Wollondilly Abattoirs held a pollution control approval under the Pollution Control Act 1970.

11   The Premises occupies an area of approximately 18 hectares and is surrounded by rural land with some residential lots located to the north and north-west. The Premises is on sloping land that drains towards Myrtle Creek to the south. The south east corner of the Premises, that is adjacent to Myrtle Creek, is located less than 500 metres from the Nepean River.

12   A map showing the location of the various ponds, watercourses and effluent irrigation areas on the Premises is at Tab 3.

13   Located at Tab 4 are:

(a)   A Google Maps image showing the location of the Premises in relation to Myrtle Creek and the Nepean River; and

(b)   A zoomed in Google Maps image of the Premises.

14   The main activities undertaken at the Premises are the-slaughter and processing of animals including sheep, cattle and pigs. These activities result in wastewater that is typically contaminated with blood, hair, fat, meat, manure, paunch materials and detergents which is not otherwise sold or recycled by Wollondilly Abattoirs (effluent). Effluent routinely has a high biochemical oxygen demand. It is also very saline and has high levels of nutrients, suspended solids and bacterial contamination.

15   Effluent at the Premises enters and is treated by an effluent management system, composed of an anaerobic pond, aerobic pond and holding ponds, prior to being irrigated onto specified effluent irrigation areas of the Premises.

16   An ephemeral watercourse is located approximately 10 metres east of the final pump out pond at a lower elevation. The watercourse drains to Myrtle Creek, a tributary of the Nepean River in the Hawkesbury-Nepean catchment. A system of ponds, levees and contours at the Premises is designed to catch any overflow from the ponds and to divert any excess irrigation water back to the pond system.

Employees and directors

17   Wollondilly Abattoirs employee [the then general manager] was the general manager of the abattoir and was employed there for a total of about 36 years (excluding a period between 2008 and 2014). [They were] the general manager from July 2014 until [their] employment was terminated in July 2018. [Their] responsibilities include the general running of the abattoir, day to day operations, overseeing and running the whole plant, authorising payments from the company's bank accounts and overseeing all staff on the premises including the office staff, “virtually everything”. [They] reported to the board of directors, primarily director Frederick Ziems, who is the chairman of the board.

18   At the time of the offences, [the then general manager] was aware that Wollondilly Abattoirs held an environment protection licence, but was not aware of all of its conditions, despite being the employee responsible for ensuring compliance with it.

19   [The then office manager] has worked as the office manager at the abattoir since April 2013. [They have] reported directly to [the then general manager] since [the then general manager] returned to work at Wollondilly Abattoirs in mid-2014. No staff reported to [the then office manager]. When [the then office manager] first started [their] responsibilities included payroll, reporting and accounts, but [their] responsibilities had broadened since 2014. [The then office manager] does most of the company's paperwork. At the time of the offences, [the then office manager] had seen a copy of the EPL, but had not fully read it.

Monitoring requirements of the EPL

20   Condition MZ of the EPL requires Wollondilly Abattoirs to “monitor (by sampling and obtaining results by analysis) the concentration of each pollutant specified” at the Irrigation pump pipeline immediately below junction with recycled water supply line” (point 2). This is a point in the system prior to the effluent being irrigated onto the effluent irrigation areas. Wollondilly Abattoirs are required to take a representative sample from this point each quarter and have it tested for biochemical oxygen demand, conductivity, faecal coliforms, nitrogen (ammonia), nitrogen (total), pH, phosphorus (total), reactive phosphorus and total suspended solids.

21   Condition M2 of the EPL also requires Wollondilly Abattoirs to take annual surface and subsurface soil samples as set out below, from the main effluent irrigation area labelled as “Irrigation Area” attached to Licence Information Form dated 26 August 1999 (at Tab 5) and test soil quality:

(a)   a composite soil sample (containing 20 subsamples) collected from surface soils (0-15 cm depth) from the Slope area in the effluent-utilisation area;

(b)   a composite soil sample (containing 20 subsamples) collected from subsoils (45-75 cm depth) from the Slope area in the effluent utilisation area;

(c)   a composite soil sample (containing 20 subsamples) collected from surface soils (0-15 cm depth) from the Ridge area in the effluent utilisation area;

(d)   a composite soil sample (containing 20 subsamples) collected from subsoils (45-75 cm depth) from the Ridge area in the effluent utilisation area;

(e)   a composite soil sample (containing 20 subsamples) collected from surface soils (0-15 cm depth) from the Flat area in the effluent utilisation area; and

(f)   a composite soil sample (containing 20 subsamples) collected from subsoils (45-75 cm depth) from each of the Flat area in the effluent utilisation area.

22   Condition M2 of the EPL also requires Wollondilly Abattoirs:

(a)   to have the surface soil samples tested for twelve specified pollutants; and

(b)   to have the subsurface soil sample tested for five specified pollutants.

23   Condition M3.1 of the EPL requires monitoring for pollutants under the EPL to be done in accordance with the publication Approved Methods for the Sampling and Analysis of Water Pollutants in New South Wales. That publication provides that analyses should be undertaken by a laboratory accredited to perform those analyses by an independent accreditation body acceptable to the EPA, such as the National Association of Testing Authorities (NATA), or equivalent.

24   A photograph taken on 4 April 2018 showing the pump out pond and the pump that pumps effluent to the effluent irrigation areas is at Tab 6. The pump out pond is the final pond in the effluent management system. The pump out pond is a storage pond and does not treat the effluent but retains it prior to it being pumped to the irrigation areas. This is the pond from which Wollondilly Abattoirs is required by the EPL to take its quarterly effluent samples.

Reporting requirements of the EPL

25   From 4 December 2015 to 16 March 2017, condition R4.1 of the EPL provided:

R4.1 Quarterly report

The licensee must provide the EPA with a quarterly report containing the following information:

... 2. Details of all monitoring-results as prescribed by Condition M2.2,

... The report referred to in this condition must be received by the EPA by 10 January, 10 April, 10 July and 10 October each year, commencing 10 July 2013." [sic]

26   On 16 March 2017, the EPA varied condition R4.1 to change the due dates for quarterly reports to “20 January, 20 April, 20 July and 20 October”.

27   Wollondilly Abattoirs' quarterly reports were therefore due to the EPA on 10 January 2017, 20 April 2017, 20 July 2017 and 20 October 2017.

28   Condition R1 of the EPL provides:

R1 Annual return documents

R1.1 The licensee must complete and supply to the EPA an Annual Return in the approved form comprising:

a)   a Statement of Compliance; and

b)   a Monitoring and Complaints Summary.

At the-end of each reporting period, the EPA will provide to the licensee a copy of the form that must be completed and returned to the EPA.

R1.2 An Annual Return must be prepared in respect of each reporting period

…

... R1.5 The Annual Return for the reporting period must be supplied to the EPA by registered post not later than 60 days after the end of each reporting period ...

29   The “reporting period” is defined in the EPL and is from 1 October 2016 to 30 September 2017.

30   Wollondilly Abattoirs' Annual Return was therefore due to the EPA on 29 November 2017.

Supply to the EPA of false information in Quarterly Reports (s 66(2) offences in Proceedings 2018/145824, 2018/145825, 2018/145826 & 2018/145828 (Wollondilly Abattoirs)

31   On 10 January 2017, the January 2017 quarterly report was due.

32   On 20 April 2017, the April 2017 quarterly report was due.

33   On 11 May 2017, EPA officers Mr Chris Kelly and Ms Amelia Sellars attended the premises to carry out a site inspection. [The then office manager] handed to Ms Sellars two quarterly reports (the January 2017 quarterly report and the April 2017 quarterly report) attaching reports bearing an “ALS Environmental” logo.

34   ALS is a laboratory accredited by the National Association of Testing Authorities (NATA).

35   The January 2017 quarterly report was submitted four months after the EPL required it to be submitted. A copy of the January 2017 quarterly report is at Tab 7. The attachment to the January 2017 quarterly report bearing an “ALS Environmental” logo was not prepared by ALS. It was falsified by Wollondilly Abattoirs. The data in the attachment to the report is not the results of analysis of samples taken on 11 January 2017.

36   The April 2017 quarterly report was submitted 21 days after the EPL required it to be submitted. A copy of the April 2017 quarterly report is at Tab 8. The attachment to the April 2017 quarterly report bearing an “ALS Environmental” logo was not prepared by ALS. It was falsified by Wollondilly Abattoirs. The data in the attachment to the report is not the results of analysis of samples taken on 24 March 2017.

37   On 20 July 2017, the July 2017 quarterly report was due. On 20 July 2017, [the then office manager] emailed July 2017 quarterly report to the EPA, copying in [the then general manager]. A copy of that email and the attached July 2017 quarterly report is at Tab 9. The attachment to the July 2017 quarterly report bearing an “ALS Environmental” logo was not prepared by ALS. The data in the attachment to the report is not the results of analysis of samples taken on 11 July 2017.

38   On 20 October 2017, the October 2017 quarterly report was due.

39   On 24 October 2017, [the then office manager] emailed the October 2017 quarterly report to the EPA, copying in [the then general manager]. The October 2017 quarterly report was submitted four days after the date the EPL required it to be submitted. A copy of that email and the attached October 2017 quarterly report is at Tab 10.

40   The attachment to the October 2017 quarterly report bearing an “ALS Environmental” logo was not prepared by ALS. The data in the attachment to the report is not the results of analysis of effluent or soil samples taken on 13 October 2017.

Falsification of quarterly reports

41   On 28 October 2014, the EPA received by email from [the then office manager] a quarterly report which attached a Certificate of Analysis from ALS bearing work order number ES1440708 (the Genuine 2014 ALS Report). A copy of that email and attachment is at Tab 11. [The then office manager] had received a copy of the Genuine 2014 ALS report from ALS.

42   On 3 November 2016, the EPA received by email from [the then office manager] a quarterly report which attached a document purporting to be a “Certificate of Analysis” from ALS, bearing work order number ES1440708. A copy of that email and attachment is at Tab 12. The attachment was not a genuine “Certificate of Analysis” from ALS. Rather, it was a version of the Genuine 2014 ALS Report that had been doctored. (This document is not the subject of a charge in these proceedings.)

43   The usual procedure was that [the then general manager] would take the effluent sample and leave it on a desk or filing cabinet in the office. [The then office manager] would then call Toll Transport Pty Limited (Toll) to get them to courier it to ALS. ALS would then analyse the sample and email an invoice marked to [the then general manager’s] attention. [The then general manager] would then provide the invoice to [the then office manager] for payment. Once ALS received payment, they would email a report containing the results to [the then general manager], who would provide the results to [the then office manager] to include in the company's quarterly reports and the Annual Return.

44   [The then general manager] was ALS's contact person at Wollondilly Abattoirs.

45   The ALS laboratory at Smithfield was the only laboratory to carry out analysis of samples taken by Wollondilly Abattoirs on its premises over the period of the offences. In October 2014, ALS had charged Wollondilly Abattoirs $2561.90 to carry out analysis of two effluent samples and five soil samples. ALS charged Wollondilly Abattoirs $225.50 on 10 January 2018 to carry out testing of an effluent sample for the parameters required to be monitored under the EPL.

46   Toll was the only company Wollondilly Abattoirs had used to courier samples from the Premises to the ALS laboratory at Smithfield for testing. Toll did not transport any samples from the Premises to ALS between 1 August 2016 and 26 October 2017 and ALS did not carry out any work for Wollondilly Abattoirs over that period. Toll charged between $100 and $110 for transporting a sample from the Premises to the ALS labs.

47   Requests for payment from ALS to Wollondilly Abattoirs were sent to [the then general manager].

48   Although director Frederick Ziems' name is on the quarterly reports, he did not see a copy of the reports before they were submitted.

49   None of the Wollondilly Abattoirs directors review the quarterly reports prior to their submission to the EPA.

50   At the time of the offences, Frederick Ziems, as chairman of the board of directors of Wollondilly Abattoirs did not take any steps to ensure that the information provided to the EPA was true and accurate apart from making general enquiries of [the then general manager] and [the then office manager].

Submission of false and misleading information to the EPA in Annual Return (s 66(2) offence in Proceedings 2018/145827 & 2018/145869)

51   On 30 November 2017, Wollondilly Abattoirs provided the EPA with its Annual Return, pursuant to condition R1.1 of the EPL. The Annual Return was submitted one day late. A copy of the Annual Return is at Tab 13.

52   Section B2 of the Annual Return contains tables in which Wollondilly Abattoirs was required to provide certain information about the effluent samples that were required to be taken once each quarter and surface and subsurface soil samples that were required to be taken once in the reporting period at the premises.

53   The following information in Section B2 of the Annual Return, relating to effluent quality at “Monitoring Point 2”, is false:

(a)   Number of samples collected and analysed;

(b)   Lowest sample value;

(c)   Mean of sample;

(d)   Highest sample value; and

(e)   Number of samples required for conductivity and pH (the table should state that the number of samples required to be tested for pH and Conductivity is 4, however it incorrectly states that 0 samples were required to be tested for pH and conductivity).

54   The following information in Section 82 of the Annual Return, relating to surface soil quality at “Monitoring Point 3”, is false:

(a)   Number of samples collected and analysed;

(b)   Lowest sample value;

(c)   Mean of sample; and

(d)   Highest sample value.

55   The following information in Section 82 of the Annual Return, relating to subsurface soil quality at “Monitoring Point 4”, is false:

(a)   Number of samples collected and analysed;

(b)   Lowest sample value;

(c)   Mean of sample; and

(d)   Highest sample value.

56   In the table in the Annual Return for Monitoring Point 3 (surface soil quality) and the table for Monitoring Point 4 (sub-surface soil quality), some of the values are identical to values in the false October 2017 quarterly report.

57   [The then office manager] entered the false data in the Section 82 of the Annual Return based on figures in the fraudulent ALS reports. [The then office manager] knew that the Annual Return contained false information at the time [they] prepared it.

58   In Section C2 of the Annual Return which is titled “Details of Non-Compliance with Licence”, Wollondilly Abattoirs have reported a non-compliance for late submission of three quarterly reports (which is a breach of condition R4.1), however they should also have reported the failure to monitor under condition M2. Further, Wollondilly Abattoirs have reported under Section C2 that the non-compliances occurred in January, April and July 2017, however the non-compliances occurred in January, April and October 2017.

59   [The then general manager] authorised [the then office manager] to log in to his account to complete the Annual Return online. [The then office manager] entered the information in the Annual Return. In [their] record of interview with the EPA, [the then office manager] said that [they] then printed it out and asked [the then general manager] to have a look at it. They looked over it before it was submitted to the EPA.

60   Two of the employees of Wollondilly Abattoirs delivered the Annual Return to two of the directors, Daniel Ziems and Matthew Ziems, to sign in a carpark at the bottom of Mount Ousley. It was given to these particular directors to sign because they were available to sign it at short notice.

61   Daniel Ziems and Matthew Ziems signed the Annual Return to declare and certify that the information in it was not false or misleading in a material respect.

62   In his interview with the EPA, Daniel Ziems admitted he did not read the Annual Return before signing it and said it was “a bit of a rushed thing that I – the boys came down and – well I had to sign it when they come home from work otherwise – we were on the time limit or something like that” and “They just said that we had to sign it and then we just signed it.”

63   In his interview with the EPA, Matthew Ziems said “... we just signed because we were pretty busy at the time and we just left the shop to go and do it ... it had to be done in a rush because ... it was due”. When asked if he had reviewed the Annual Return before signing it, Matthew Ziems said “... Not really no ... I just thought it was part and parcel of what we had to do”. He said “I didn't really read it, or understand it, I was busy ... I thought I'd just sign it so that they could get it off to you because I was under the belief that everything was okay and had to get that done so they didn’t get into trouble...”.

64   At the time of the offence, Frederick Ziems, as chairman of the board of directors of Wollondilly Abattoirs, did not take any steps to ensure that the information in the Annual Return was true and accurate and left these matters to [the then general manager] and [the then office manager].

Provision of false information in response to s 193 notice – section 211(2) offence (Proceedings 2018/145882)

65 On 26 October 2017, the EPA issued Wollondilly Abattoirs with a notice to provide information and/or records pursuant to s 193 of the POEO Act (the s 193 notice), in relation to the suspected failure to monitor pollutants as required by the EPL and the suspected provision of false information in the quarterly reports. The notice was sent by email to [the then general manager], [the then office manager], Mr Ray Crowe (one of the directors of the company) and a general email address for Wollondilly Abattoirs. The notice required, inter alia, information and records regarding effluent and soil sampling for the period 11 July 2016 to 26 October 2017. The s 193 notice constituted a requirement under Chapter 7 of the Act. A copy of the s 193 notice is at Tab 14.

66 On 10 November 2017, the EPA received Wollondilly Abattoirs' initial response to the s 193 notice, which was signed by [the then general manager]. A copy of the notice response is at Tab 15. The response contained false information about details of sampling and analysis of effluent and soil samples that had not been done. The answers to the following questions in the notice response are false:

(a)   in relation to the period 11 July 2016 to 10 October 2016: answers numbered 1-13, 16 and 17;

(b)   in relation to the period 11 October 2016 to 10 January 2017: answers numbered 1-13, 16, 17 and 19;

(c)   in relation to the period 11 January 2017 to 20 April 2017; answers numbered 1-13, 16 and 19;

(d)   in relation to the period 21 April 2017 to 20 July 2017: answers numbered 1- 13 and 16;

(e)   in relation to the period 21 July 2017 to October 2017: answers numbered 1- 13 and 16; and

(f)   all answers relating to surface and subsurface soil quality sampling.

67 Wollondilly Abattoirs' notice response did not include any “records in respect of any samples required to be collected for the purposes of the licence for the period 11 July 2016 to [26 October 2017]”, which were required to be produced by the s 193 notice.

68 On 14 November 2017, the EPA sent an email to [the then general manager], [the then office manager], Mr Crowe and a general email address for Wollondilly Abattoirs, requesting outstanding information and records that had not been provided in the notice response and providing a reminder that it is an offence under s 211 of the POEO Act to fail to comply with the notice without lawful excuse or to furnish information in response to the notice, knowing that the information is false or misleading in a material respect. A copy of that email is at Tab 16.

69   On 14 December 2017, [the then general manager] participated in a voluntary interview under caution with the EPA about the suspected failure of Wollondilly Abattoirs to take samples and the provision of the false ALS reports. EPA officers put to [them] the allegation that the ALS reports submitted with the October 2016, January 2017, April 2017, July 2017 and October 2017 quarterly reports were falsified. [The then general manager] denied the false ALS reports were false, denied any wrongdoing by Wollondilly Abattoirs and repeatedly insisted [they] had taken the required samples and that they had been submitted to ALS for analysis. [They] suggested there must have been typos by ALS or confusion with forms sent to ALS. [The then general manager] stated that [they] had taken all the effluent samples and Wollondilly Abattoirs had paid ALS for the analysis, so the abattoir would have received a tax invoice from ALS for carrying out the analysis and a bank statement showing that the company had paid ALS. [They] also indicated that Wollondilly Abattoirs would have records to prove it had paid Toll to courier the samples to ALS. The EPA reminded [the then general manager] that the EPA had not received any records relating to the sampling from Wollondilly Abattoirs in response to the notice and that if there were any further relevant records that had not been provided they should be provided to the EPA. [The then general manager] said Wollondilly Abattoirs would produce to the EPA records, including bank records, to prove that it had paid ALS and Toll for the work.

70   The interview between EPA officers and [the then general manager] included the following exchanges ([“they”] or [“their”] being references to [the then office manager):

A441: Hundred percent I know I did those samples, I'll bet on my children's life, mate, I'm telling you, that's how confident I am, I know I did them.

A504: ... So whether this is, it's the old form and they don't change the dates or what I don't know, definitely, like I said, I know 100% I got those samples. A hundred percent.

Q 505. You're confident that you got a tax invoice

A Yeah, we'd have a tax invoice from them.

Q 506. - - - - in relation to the

A Yeah.

Q 507. - - - samples that that you collected in October 2016- - -

A Yeah, even the bank records, bank statement to show you where we paid them, where it's come out of our bank, a hundred percent.

…

Q 547. Did you pay for the sampling?

A Yep, a hundred percent.

…

Q 549. And you have invoices to - - -

A I have invoices to - - -

Q 550. - - - to demonstrate that?

A Yep ...

Q 551. So would you have Toll records to accompany - - -

A Yeah, we'd have Toll, we should have the Toll records in the drawer and we'd have where we paid ALS to do the sample.

…

A573 ... I was a hundred percent confident that everything was above board honestly, so I know I done the sampling and I know the samples were sent, so whether that's like I said a typo or a, not a typo, but [they’ve] picked on the wrong one when [they’ve] done the - because [they] [keep] all of them on [their] computer, [they’ve] got all these on [their] computer, on [their] email. We don't disregard them, they're all on [their] email. So we'd have to go back and check why they're the same. We definitely don't doctor anything up, put it that way.

A575 So simple to go get a sample, you know what I mean, it takes half an hour max to go do the whole soils and everything samples, that's it. And---

Q 576. How much does it usually cost?

A It's a few hundred dollars, 400 or something like that, yeah.

Q 577. Just for the water or is it water and soil?

A No, I think it's about maybe 600 and something with the soil, 500 something with the Soil, yeah. So we know we do it but that's - that's not the issue, I know we do do [sic] it, guaranteed, I guarantee it.

…

Q 582. So when you say you know the samples have been taken - - -

A Yep.

Q 583. - - - how do you know?

A Because I - - -

Q 584. What's that based on?

A - - - I get an email from them saying they want payment before they release the results.

Q 585. …for the samples provided for the quarterly report due on 1O October 2016 - - -

A Mm-hmm.

Q 586. - - - you were provided an invoice by ALS for the analysis of those samples - - -

A Yep.

Q 587. - - - and you have that record.

A We'd have that on record.

Q 588. Do you have the corresponding courier dockets from Toll?

A [They would] have that too, [they] [keep] all the Toll documents too, yes.

…

Q 639. Yep, okay so you're adamant that Wollondilly Abattoirs - - -

A Has done nothing wrong, hundred percent, as I said to you before - - -

Q 640. - - - have not modified the documentation?

A No, not at all.

…

Q 644. Have you sighted tax invoices in relation to samples that you collected - - -

A Only the ones off ALS that I forwarded on to [the then office manager].

…

Q 646. For this, you know, in relation to GD-2 [October 2016 quarterly report], the samples which you claim you collected in October 2016 - - -

A Mm-hmm.

Q 647. - - - did you see a tax invoice associated with it?

A I would have a tax invoice, yes.

Q 648, You do have a tax - - -

A I could find the tax - I'd be able to find the tax invoice for it. As I've said you can see where it's come out of our bank account on those days at that time, it'd be in there, a hundred percent.

…

Q 660. We also have information from ALS that indicates that they have not been commissioned to undertake any samples for Wollondilly Abattoirs since July 2016.

A Well, that's wrong. That's a hundred percent wrong.

Q 661. So their records show that they have not undertaken any analysis for Wollondilly Abattoirs since July 2016 - - -

A Well, that's a hundred percent wrong.

Q 662. On what basis are you making that statement?

A Well, I know we give them- every quarter we send them their-their stuff, every quarter, every quarter we do that.

Q 663. But ALS have told us that they have not done any work or have not been commissioned - - -

A Since July 2016.

Q 664. - - - since July 2016 which is prior to - - -

A As I said, I'll give you the proof - - -

Q 665. - - - the report provided in - - -

A Yeah righto, I'll get the proof.

Q 674. - - - because, yes, according to ALS they have not undertaken the sampling that has been provided in the quarterly report which was submitted to the EPA for 10 October 2016:

A Well, that's wrong, as I said, I can show it on the bank account and I'll show you on their receipts where we paid it.

…

Q 689. How would you, how do you know that the samples have been received by ALS?

A Only when I get their invoice, that's the only time that we know that they've got the samples and would send them back and we'd send you the report. We don't send you - we don't send you something that we're make it up, you know what I mean, we send back the report that they send us. You get the same reports that we get, exactly the same report. So I'll find - I'll chase that up. July 2016. No, hundred percent. Like I said, I know I done all them - them samples right through. I said I might've been late on a couple, yes, but I definitely did them. A hundred percent.

71 On 11 January 2018, the EPA received by Express Post from Wollondilly Abattoirs a further response to the s 193 notice, consisting of four purported invoices from ALS to Wollondilly Abattoirs over the relevant period and three purported National Australia Bank direct credit reports for Wollondilly Abattoirs' bank account. No cover letter was provided with the documents. The contact name on the back of the Express Post envelope was [a shorthand for the then office manager’s name]. A copy of the documents received by the EPA on 11 January 2018 is at Tab 17.

72   The four purported invoices from ALS to Wollondilly Abattoirs provided to the EPA on 11 January 2018 were false as they were never prepared by or issued by ALS. The invoice numbers at the top of the false invoices are:

(a)   ES1440708 (this was the same “work order” number that appeared on the false ALS report attached to the October 2016 quarterly report);

(b)   ES15198156 (this was the same “'work order” number that appeared on the false ALS report attached to the July 2017 quarterly report);

(c)   ES1428437 (ES1482473 was the “work order” number that appeared on the false ALS report attached to the January 2017 quarterly report); and

(d)   ES1508179 (this was the same “work order” number that appeared on the false ALS report attached to the April 2017 quarterly report).

73   The three NAB direct credit reports for Wollondilly Abattoirs bank account that were provided to the EPA on 11 January 2018 were falsified and were not genuine documents. The three NAB direct credit reports provided to the EPA were based on genuine direct credit reports, but had been doctored to show payments from Wollondilly Abattoirs to “ALS Environmental” on 24 January 2017, 19 April 2017 and 11 July 2017, being payments which were never made.

74   At the time of the offences, Frederick Ziems, as chairman of the board of directors of Wollondilly Abattoirs, did not take any steps to ensure that information provided by Wollondilly Abattoirs to the EPA was true and accurate.

Prior history

75   The EPA has issued Wollondilly Abattoirs with 11 penalty notices and five official cautions or warnings since 2002. Regulatory action taken by the EPA against Wollondilly Abattoirs includes the following:

Date	Regulatory action by EPA	Details
9 May 2002	Penalty notice	Water pollution in breach of s 120 POEO Act (organic waste stored in area that drains to waters). Penalty notice sent under cover of a letter to Frederick Ziems.
9 May 2002	Penalty notice	Failure to maintain control equipment (transfer pipe) in breach of s 167 POEO Act. Cover letter with penalty notice was addressed to Frederick Ziems.
11 February 2004	Penalty notice	Licence contravention in breach of s 64 POEO Act – failure to comply with Condition M2 (exceed pollutant concentration limits in effluent). Cover letter with penalty notice was addressed to [the then general manager].
25 September 2008	Penalty notice	Water pollution in breach of s 120 POEO Act (runoff of wastewater from irrigation area to watercourse).
10 July 2009	Penalty notice	Licence contravention in breach of s 64 POEO Act – failure to comply with Condition R1.5 (failing to submit annual return).
21 April 2011	Penalty notice	Licence contravention in breach of s 64 POEO Act – failure to maintain plant and equipment in breach of Condition O2.1 (solids separator treating wastewater).
30 March 2012	Penalty notice	Licence contravention in breach of s 64 POEO Act - failure to comply with Condition R1.5 (failing to submit Annual Return).
22 August 2012	Penalty notice	Licence contravention in breach of s 64 POEO Act – failure to comply with Condition M2.2 (only three out of four required effluent samples taken).
8 October 2012	Penalty notice	Licence contravention in breach of s 64 POEO Act – failure to maintain plant and equipment in breach of Condition O2.1 (irrigator).
8 October 2012	Penalty notice	Licence contravention in breach of s 64 POEO Act – failure to comply with Condition O3.6 (blood and paunch materials in wastewater treatment and disposal system).
7 May 2013	Official warning	Licence contravention in breach of s 64 POEO Act – failure to comply with Condition M2.2 (failure to carry out water and soil sampling) in 2012-13.
4 June 2014	Penalty notice	Licence contravention in breach of s 64 POEO Act – failure to comply with Condition L2.1 (exceedance of daily effluent limits to be irrigated) in 2012-13. Penalty notice marked to the attention of Frederick Ziems.
4 June 2014	Penalty notice	Section 153A POEO Act – failure to prepare a pollution incident response management plan in compliance with Part 5.7 of the POEO Act. Penalty notice marked to the attention of Frederick Ziems.
8 August 2014	Clean up notice	Clean up notice issued to Wollondilly Abattoirs requiring removal of asbestos waste used to construct embankment walls of a large drying bed and leachate collection dams on the Premises. Clean up notice was emailed to [the then general manager], [the then office manager], Mr Crowe and the general email address for Wollondilly Abattoirs. The clean up notice was marked to the attention of Frederick Ziems. Documentation to comply with the notice of clean-up action in full was not provided to the EPA as required.
17 April 2015	Letter	EPA wrote letter to Wollondilly Abattoirs, marked attention to [the then general manager] and Frederick Ziems, in relation to risk based licensing. Letter noted that in the two past quarters, Wollondilly Abattoirs had failed to comply with condition M2.2 in relation to monitoring of effluent quality and reminded it that “monitoring is to be undertaken in accordance with licence requirements at all times ...”.
22 April 2016	Clean up notice	Clean up notice issued in relation to sludge from the pump out pond being stockpiled on the premises adjacent to an unnamed drainage line that drains to Myrtle Creek. The clean up notice was emailed to [the then general manager], [the then office manager], Mr Crowe and a general email address for Wollondilly Abattoirs. Wollondilly Abattoirs failed to fully comply with the notice of clean-up action and it supplied information to the EPA under the notice of clean-up action that was false or misleading in a material respect.
15 July 2016	Show cause letter	The EPA wrote letter to Wollondilly Abattoirs inviting it to show cause in relation to why EPA should not take regulatory action for alleged breaches its EPL in relation to failure to monitor effluent pH and conductivity in two quarterly periods and late submission of two quarterly reports. The letter was emailed to [the then general manager] and [the then office manager].
10 August 2016	Official caution	Sections 64 and 66(2) POEO Act – failure to comply with Condition M2.2 (effluent monitoring) and Condition R4.1 (late/incomplete quarterly reports); supplying and certifying information to the EPA in an annual return that is false or misleading in a material respect (certifying that all conditions under the EPL had been complied with). Official caution was marked to Frederick Ziems' attention.
14 March 2017	Official Caution	Licence contravention in breach of s 64 POEO Act – failure to comply with Condition O3.9 (stockpiling sludge from effluent ponds on the Premises). Official caution marked to the attention of Frederick Ziems, [the then general manager] and [the then office manager].
7 April 2017	Official Caution	Section 66(2) and (4) POEO Act – supplying and certifying information to the EPA under the conditions of the EPL that is false or misleading in a material respect (failing to report non-compliances with the EPL in relation to the Annual Return for the reporting period 1 October 2015 to 30 September 2016). Official caution was marked to the attention of directors Mr Smith and Mr Hitchings (who had signed the Annual Return for 2015-16), [the then general manager] and [the then office manager].

76   To the prosecutor's knowledge, Wollondilly Abattoirs has no prior convictions.

The directors of Wollondilly Abattoirs

77   At the time of the offences, Wollondilly Abattoirs had seven directors, including Frederick Ziems (who has been associated with the abattoir for around 50 years) and his sons Daniel Ziems and Matthew Ziems. Frederick Ziems was and is the chairman of the board of directors of Wollondilly Abattoirs.

78   The board of directors aims to hold meetings on an approximately monthly basis, though in practice the timing of the meetings is irregular. Both [the then general manager] and [the then office manager] usually attend the meetings of the board of directors. EPA officers have attended meetings of the board of directors on occasion.

79   When interviewed by the EPA in February 2018, Frederick Ziems had never fully read a copy of the EPL, but had looked at parts of it in about 2012 or 2013. He “took it for granted” that [the then general manager] and [the then office manager] understood what had to be done in relation to the EPL. He had never read any of the quarterly reports provided by Wollondilly Abattoirs to the EPA, despite signing and certifying annual returns on occasion.

80   At the time of the offences, Daniel Ziems was generally aware of some of the requirements of the EPL.

81   When interviewed by the EPA in February 2018, Matthew Ziems said he was aware that Wollondilly Abattoirs held a licence but had not ever read or seen it.

Harm resulting from the offences

82   Wollondilly Abattoirs did not provide the EPA with any genuine results of analysis of effluent samples taken on the premises between 6 July 2016 and 21 December 2017. As a result, the EPA does not know the levels of pollutants in the effluent applied to land at the Premises over that period.

83   There is potential for environmental harm resulting from the application of effluent to land where the nature of the effluent is not appropriately monitored or reported.

84   There are constraints on the Premises for effluent management.

85   Given the constraints for effluent management at the Premises, in 2013 the EPA imposed a pollution reduction program (PRP) under Condition U1.1 of the EPL, requiring Wollondilly Abattoirs to move towards connecting the abattoir to Sydney Water's sewage treatment system. The dates for compliance with this PRP have been extended numerous times.

86   Accurate and timely data on the levels of pollutants in the effluent generated at the Premises is required so as to enable connection to Sydney Water's sewage treatment system.

Statement of further agreed facts

9. A statement of further agreed facts filed in Court on 12 March 2019 (supplementary SOAF, exhibit B) provided as follows:

Generally

1   At all times material to the prosecution, [the then general manager] and [the then office manager] were the only individuals to whom Wollondilly Abattoirs had delegated responsibility collectively for:

(a)   the collection of water and soil samples and the provision of quarterly reports and annual returns to the EPA; and

(b) providing a response to notices (including notices under s 193 POEO Act) issued by the EPA.

Quarterly reports

2   [The then office manager] created at least two of the false ALS reports (being the reports that are contained within the January 2017 quarterly report and the April 2017 quarterly report) that are the subject of the charges, at [the then general manager’s] direction, by creating a Microsoft Word document and scanning in the ALS Environmental logo from a genuine ALS report.

3   [The then general manager] directed [the then office manager] to prepare the first false ALS reports because [the then general manager] had not done the required effluent sampling and analysis.

…

5   It is more likely than not that [the then office manager] and/or [the then general manager] created the false ALS reports contained within the July 2017 quarterly report and the October 2017 quarterly report.

Annual Return

6   [The then general manager] authorised [the then office manager] to log in to his account to complete the Annual Return online. [The then office manager] entered the information in the Annual Return, then printed it out and asked [the then general manager] to have a look at it. [The then general manager] looked at it and said it was “all good”.

S 193 Notice

7 On 10 November 2017, the EPA received Wollondilly Abattoirs' initial response to the s 193 notice, which was signed by [the then general manager]. Both [the then office manager] and [the then general manager] prepared the s 193 response together.

8 On 11 January 2018, the EPA received by Express Post from Wollondilly Abattoirs a further response to the s 193 notice, consisting of four purported invoices from ALS to Wollondilly Abattoirs over the relevant period and three purported National Australia Bank direct credit reports for Wollondilly Abattoirs' bank account. The invoices and the direct credit reports were falsified.

9   It is more likely than not that [the then office manager] and/or [the then general manager] created the false invoices and the false credit reports.

All offences

10   On 14 December 2017, [the then general manager] participated in a voluntary interview under caution with the EPA about the suspected failure of Wollondilly Abattoirs to take samples and the provision of the false ALS reports.

Defendant’s affidavit evidence

10. Mr Frederick Ziems chairman and director of Wollondilly Abattoirs swore an affidavit dated 1 March 2019 (exhibit 1). He has held these positions since 2013 and between 1999 and 2009. Mr Ziems is 76 years old and a butcher. He founded the company in 1965 and has been involved since then. The meat industry has changed over the years, many smaller retail butchers that were serviced by the company have closed and the industry has changed to a wholesale model. The company continues to provide services to independent butchers and wholesalers as a boutique abattoir. Mr Ziems does not draw any income from the business and devotes his time to ensure that a critical part of the meat trade continues to exist.

11. Mr Ziems had no knowledge of the then general manager’s and office manager’s misconduct on behalf of the company until these matters were investigated by the EPA. Given the then general manager’s long term of employment at Wollondilly Abattoirs (exceeding 30 years), Mr Ziems left him to conduct his duties and responsibilities without significant supervision.

12. Since the commencement of these proceedings, Mr Ziems has implemented certain measures relating to the then general manager’s conduct and the EPA’s investigation. The then general manager’s employment at the company was terminated. The company has now engaged Mr Griffin as its new general manager. In 2018 Mr Ziems had not read and familiarised himself with the company’s EPL and stated that he should have done so. Since the commencement of these proceedings he has read and sought to understand the most recent version of the EPL.

13. Mr Ziems did not and does not have any input in relation to the company’s quarterly reports and annual returns to the EPA. Mr Ziems accepted the word of the then general manager that he was properly attending to the company’s compliance with its EPL in accordance with the then general manager’s obligations in his employment agreement. For a period of time there were insufficient procedures in place for the company to monitor and supervise the then general manager’s and the then office manager’s obligations in relation to ensuring that the matters contained in the quarterly reports and annual returns were true and correct. Mr Ziems accepted that the falsification of documents in response to the s 193 notice was completely unacceptable and that Wollondilly Abattoirs should have had procedures in place to safeguard against this conduct. The operation of Wollondilly Abattoirs’ affairs has changed significantly under Mr Griffin its new general manager. Mr Griffin has appointed various officers and agents of the company to ensure compliance with the EPL and the EPA’s requirements more broadly. Mr Griffin has now implemented a regime for regular monthly board meetings. Those meetings frequently table correspondence received or matters involving the EPA and matters relating generally to the company’s compliance with its EPL.

10. Mr Smith legal counsel and director of Wollondilly Abattoirs swore an affidavit dated 4 March 2019 (exhibit 2). The company has been operating as an abattoir since the mid-1960s. It originally commenced its operations as a co-operative of local butchers. Mr Smith’s father joined the abattoirs in the late 1960s. The company was one of over 100 abattoirs in the Sydney basin. The company is now one of only two abattoirs in the Sydney basin. It remains one of only about six non-export abattoirs in NSW. It directly employs approximately 30-40 workers from the local area. The main wholesalers who work directly from the abattoir’s premises on site employ 15-20 people. Fifteen to twenty regular and non-site contractors are directly engaged by the abattoirs. In addition to supplying wholesalers and local butchers, the company provides a “private kill” service which allows local farmers to bring their stock to the abattoirs to be slaughtered and the meat to be prepared as required. The company has and continues to be a critical part of the supply chain to the smaller sector of the meat industry. This is despite its minimal profits and occasional losses over recent years. Further Wollondilly Abattoirs is engaged with third parties in academic and medical research. For example, Victor Chang research takes pig blood. A university takes heart valves and other animal parts for their research or training programs. The company does not charge for these additional services.

11. Upon his appointment to the board in February 2018, it appeared to Mr Smith that the management and implementation of the EPL had not been correctly and properly handled. Since around May 2018 in his role as a board member, Mr Smith has endeavoured to put matters in place to ensure full compliance with the EPL by the company. The company has engaged Arcadis Design and Consultancy (Arcadis) to inter alia provide advice in relation to the company achieving full EPL compliance; to be the point of contact with the EPA and make representations to the EPA on the company’s behalf; and assume responsibility for sampling of water, and quarterly and annual testing and reporting. Since Arcadis was engaged in May 2018, it has inter alia provided advice in relation to the company’s internal processes for dealing with the quarterly and annual reports; co-ordinated testing and the preparation and submission to the EPA of quarterly reports; provided general and scientific advice and analysis about the operation and management of the effluent treatment; proposed to train company staff in the management of the effluent treatment system; and provided advice on the operation of the “Effluent Irrigation Management Plan” (EIMP).

12. Upon the termination of the then general manager’s employment, Mr Smith interviewed Mr Griffin for the position of general manager. He ensured that Mr Griffin had the skills to manage the company and deal with EPA-related matters. Since the commencement of Mr Griffin’s employment at the company, Mr Griffin has implemented many new measures to help the company comply with its obligations under its EPL. These include an improved and more diligent system to ensure the proper recording and collection of water and soil samples for the quarterly reports and annual returns; the completion of a chain of custody document for samples; and general improvements to and the modernisation of the company’s organisational processes and documented procedures. Mr Smith believes that Mr Griffin is performing well in his role.

13. Mr Smith supervises Mr Griffin in relation to EPL compliance and reports to the board. Mr Smith has almost daily contact with Mr Griffin. He annexed Wollondilly Abattoir’s “EPA Reporting and Supervising Policy” to his affidavit which Mr Smith wrote for the purposes of supervising Mr Griffin. Mr Smith receives reports from Mr Griffin relating to the implementation of the program of works for the maintenance of the effluent ponds.

14. Mr Smith has endeavoured to ensure that matters relevant to the EPA and the EPL are addressed and suitably dealt with in the company’s board meetings. Further he has performed on-site assessment of maintenance works required to be done on effluent ponds.

15. Mr Smith swore a second affidavit on 10 March 2019 (exhibit 3). He stated that the land owned by Wollondilly Abattoirs is encumbered by mortgages. The land comprising 48 Koorana Road is used as security for a loan of $440,000 which was taken out by the company in 2017. This loan is recorded in the company’s 2018 financial documents contained in exhibit MS-1 to Mr Smith’s affidavit. The balance sheet of Wollondilly Abattoirs as at 10 March 2019 is in exhibit MS-2. A document titled “Wollondilly Abattoirs’ Available Net Assets” was provided to the Court. The company’s total net liabilities as at 10 March 2019 were $886,018.

16. Mr Griffin accountant and general manager of Wollondilly Abattoirs swore an affidavit dated 4 March 2019 (exhibit 4). He has been general manager of the company since August 2018. As part of his duties Mr Griffin maintains compliance by the company with its obligations under its EPL and ensures the implementation of its EIMP which he has updated. Copies of the EPL and EIMP were exhibited to Mr Griffin’s affidavit (exhibit AG1). The purpose of the EIMP is to assist in controlling and minimising the company’s exposure to events that may result in environmental harm to lands and waterways adjacent to the site associated with effluent management.

17. Upon commencing his role as general manager of Wollondilly Abattoirs, Mr Griffin considered the board’s procedures at its meetings to be quite informal. Further there was little consideration and discussion of the company’s compliance with the EPL. Mr Griffin has since implemented the following changes in relation to board processes. First, a monthly board meeting date has been set. Secondly, board communications now take place via group email. Thirdly, any EPA correspondence is tabled and then discussed at board meetings and directed to the responsible board member for dissemination where applicable.

18. Mr Griffin attempted to implement significant changes to the company’s approach to EPA compliance and management of the effluent treatment system. Prior to Mr Griffin’s arrival at the company, the various roles and responsibilities of staff members for effluent pond management and EPA and EPL compliance were not well defined or observed. There is now a more formal delegation of duties and responsibilities. The company has also used Arcadis since in or around May 2018 to provide external advice and assistance when required in relation to interpreting and advising upon the EPL. This includes advice concerning effluent testing and any anomalies contained in the testing reports received from Australian Laboratory Services Pty Ltd (ALS). Mr Smith created a diagram illustrating the various roles of the company’s officers and Arcadis which was circulated to staff and board members. A copy of that diagram is contained in exhibit AG1 to Mr Griffin’s affidavit. Mr Griffin currently works under the supervision of and reports to Mr Smith.

19. Mr Griffin described changes that have recently been or will soon be implemented in relation to the company’s testing of water effluent each quarter. First, additional testing points in the storage ponds have been installed so as to allow inter-pond effluent transfers to be tested at the entry and exit point for each pond in the waste water system. These testing points will assist the company to more regularly and efficiently monitor the effluent levels. Secondly, a remote weather station has been installed which will provide notice of the likelihood of a wet weather event. Such an event can lead to overflow in the ponds and hence being on notice of such an event allows for remedial action to be taken quickly.

20. Mr Griffin has instituted a system by which an invitation appears in the electronic calendars of Mr Griffin, Mr Smith, Mr Trappmann (responsible for inter alia irrigation management monitoring and maintenance) and Ms Wardman (a bookkeeper employed by the company) reminding everyone to collect the water and soil samples at the appropriate time at the end of the quarter. This is possible because each employee now has their own email address. Prior to Mr Griffin’s engagement, only four emails were in use.

21. When a sample is collected a “chain of custody” document is completed recording the movement of the sample from collection by Mr Trappmann until it is sent to and received by ALS for testing. A copy of the chain of custody document for the last quarter dated 18 January 2019 is contained in exhibit AG1. The samples are now personally delivered to ALS by Mr Griffin or another staff member.

22. Mr Griffin described the annual return and three quarterly reports that have been provided to the EPA following the then general manager’s suspension. All were submitted by their due date. During the preparation of the annual return a number of anomalies in record keeping that had occurred throughout the reporting period were identified. These anomalies were reported to the EPA in the annual return.

23. Since Mr Griffin’s commencement as general manager, any notices from the EPA have been sent to the company by email to Arcadis or Mr Griffin and/or Mr Smith. Mr Griffin is rarely the sole recipient of documents and notices sent by email from the EPA. In cases where Mr Griffin is the sole recipient he forwards the email to Mr Smith or the board’s group email.

24. On or about 30 November 2018 Wollondilly Abattoirs submitted its annual return to the EPA. The annual return recorded disclosures by the company of non-compliance with its EPL. These included the accumulation of crust on the top of one of the sludge ponds and volume reading anomalies discovered as per daily volume records, both of which were addressed.

25. Mr Griffin and Mr Smith have been involved in the preparation of an application to vary the EPL to remove the condition requiring the company to connect to the sewer. As part of the application process a variety of works have been conducted including the de-crusting of an anaerobic pond and the remediation of water storage dams.

26. Ms Tran principal of accountancy firm Teresa Tran & Associates employed by Wollondilly Abattoirs swore an affidavit on 8 March 2019 (exhibit 5). A copy of the company’s financial statements as at 30 June 2018 was annexed to her affidavit. Ms Tran stated that the reference to “retained earnings” of $2,002,689 in the balance sheet does not represent any monies actually held by the company. This is because large amounts were allocated to the “out-of-balance” figure in the “historical balance” account on which “retained earnings” is based. This occurred because numerous errors were made in bookkeeping by the company’s previous accountants and internal bookkeepers.

Objective circumstances

31. The s 66(2) offences are strict liability and no mental element forms part of the offences. The elements of the s 211(2) offence include furnishing information knowing that the information was false or misleading which connotes a mens rea element. The s 211(2) offence therefore theoretically gives rise to greater culpability than the s 66(2) offences.

32. The objective seriousness of an offence is determined by considering the following factors: the nature of the offence; the maximum penalty for the offence; the environmental harm caused by the offence; the defendant’s state of mind; the defendant’s reasons for committing the offence; the foreseeability of the risk of harm to the environment; the practical measures available to the defendant to avoid harm to the environment; and the defendant’s control over the causes of the harm: Chief Executive of the Office of Environment and Heritage v Turnbull [2017] NSWLEC 141 at [16].

33. While the elements of the s 66(2) offences and the s 211(2) offence differ, they have the same maximum penalty and the other factors referred to in the preceding paragraph can be considered together for both types of offences as they arise broadly from the same set of circumstances.

Nature of offences

34. A fundamental consideration for environmental offences is the extent to which the defendant’s conduct offends against the legislative objectives expressed in the offence: R v Peel [1971] 1 NSWLR 247 at 262; Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [89]; Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 at [52]; Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [15]; Chief Executive, Office of Environment and Heritage v Merriman [2018] NSWLEC 96 at [25]; and Bega Valley Shire Council v Williams [2018] NSWLEC 124 at [75].

35. In relation to the s 66(2) offences, I accept the EPA’s submissions that EPLs are the primary means of regulation under the POEO Act. A strong regulatory framework is the key mechanism by which objectives in s 3(a), (d), (e) and (f) of the POEO Act are achieved. The EPA relies on information provided by licence holders in quarterly reports and annual returns to effectively regulate licensees and prevent harm to the environment. Annual returns also provide an additional means whereby breaches of a licence can be disclosed. The EPA does not have the resources to independently monitor every licence issued under the POEO Act. It relies on information provided under compulsion by law by each licence holder and on the accuracy of that information. The supply of false or misleading information undermines regulatory objectives: Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott (2016) 221 LGERA 24; [2016] NSWLEC 167 at [61].

36. In relation to the s 211(2) offence, enforcement of the regulatory framework established under the POEO Act relies on the ability of the EPA to conduct investigations using compulsive powers to acquire information such as s 193. Efficient and effective investigations rely on full disclosure of accurate information within the terms of any notice issued.

37. All these offences undermine the regulatory framework of the POEO Act.

Defendant’s state of mind in committing the offences

38. The offences under s 66(2) of the POEO Act are offences of strict liability. Wollondilly Abattoirs’ state of mind is relevant in assessing the seriousness of the offences. A company acts through human agents such as its directors and their state of mind can be attributed to the company.

39. The EPA submitted that although there was no evidence that the board of directors of Wollondilly Abattoirs directed the then general manager and the then office manager to take the actions that they did, they were reckless with regard to whether or not the information supplied to the EPA was false or misleading. The then office manager was at all relevant times an employee of the company and knowingly and deliberately falsified the ALS reports. Applying s 169C of the POEO Act concerning evidence of the state of mind of a corporation, it is open to the Court to find that the offences were deliberately committed by Wollondilly Abattoirs. The company engaged in the conduct without regard to its legal obligations over a substantial period. When further information was sought by way of the s 193 notice the company attempted to cover up its actions by providing further false information. The board of directors of the company showed a disregard for their legal obligations by not properly informing themselves of the requirements attaching to the EPL in the first place.

40. Wollondilly Abattoirs submitted that its directors were unaware of the misconduct of the then general manager and the then office manager until these matters were investigated by the EPA. Section 169C does not apply in the manner contended for by the EPA because a corporate body cannot both know something and be unaware of it at the same time.

41. Under s 169C the state of mind of a potentially wide number of people can be attributed to a company. I agree with Wollondilly Abattoirs that the company’s state of mind should be gauged by reference to its directors as its officers in this case, as s 169C enables. I accept the directors’ submissions that they were unaware of the provision of false information in relation to all the offences at the time that occurred. That lack of knowledge arose in their capacity as directors. The completely opposite state of mind of an employee carrying out fraudulent activity is arguably not knowledge gained while acting in their capacity as an employee, being outside any reasonable scope of employment.

42. Considering whether the directors were reckless or criminally negligent as the EPA submitted, in Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 Pepper J considered the meaning of the term “reckless” at [98]:

The term recklessness describes the state of mind of an offender who, while performing or failing to perform an act, is aware of the risk that a particular consequence is likely, in the sense of probable or possible, to result from that act or omission (Pemble v R (1971) 124 CLR 107, La Fontaine v R (1976) 136 CLR 62 and R v Crabbe (1985) 156 CLR 464). Recently in Blackwell v R [2011] NSWCCA 93, the Court of Criminal Appeal described the mental element of “reckless” as (at [76]):

[76] The effect of this line of authority is that where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence.

43. In Gordon Plath of the Department of Environment and Climate Change v Fish; Gordon Plath v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144 I stated at [81] that to amount to criminal negligence:

… the degree of carelessness must be such as to show such a disregard for the objects of the statute as to amount to a crime against the state (R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8; see also Andrews v DPP [1937] AC 576 per Lord Atkin at 583; applied in Cittadini v The Queen [2009] NSWCCA 302 at [38]-[40]). For there to be negligence, there must have been an indifference to an obvious risk (R v Taktak (1988) 14 NSWLR 226 at 247, applied in Cittadini).

44. According to his affidavit and pars 77-79 of the SOAF, Mr Ziems chairman of the board has been involved with the company since its foundation in 1965. Until 2018 he had not read the EPL held by the company. He did not have input into the quarterly reports or annual returns sent to the EPA, despite signing and certifying the annual return on occasion. As admitted by Mr Ziems above at [13], the company lacked adequate systems for supervision of staff in relation to compliance with the EPL as the board essentially trusted that the employees would do the right thing. The SOAF and supplementary SOAF set out above the extent to which the then general manager and the then office manager had responsibility for arranging samples and testing by ALS and subsequent report preparation. This delegation of responsibility included the preparation of the annual return the response to the s 193 notice. These failures on the part of the board need to be considered in light of the highly unusual circumstances of the offences and the longstanding history and nature of the company’s business where board members and staff were often longstanding and people were well known to each other.

45. I agree with Wollondilly Abattoirs’ submissions that the behaviour of the fraudulent employees was well outside what could reasonably be anticipated by them, particularly in a small office of a longstanding local business operating in the area in which they all lived. The EPA’s submission that Wollondilly Abattoirs was reckless or negligent can only arise if the knowledge of the employees is attributed to it. I have not done so. Consequently, the directors’ behaviour cannot be reckless as that term is understood in criminal law as there is no suggestion that any risk of illegality due to fraud was known to the board. Nor is the poor oversight by the board such as not appreciating the requirement for the EPL anywhere near the high hurdle required for a finding of negligence in the criminal sense of gross negligence in ignoring an obvious risk of unlawfulness. No greater culpability of the company arises from the state of mind of the directors in relation to the s 66(2) offences.

44. The consideration of state of mind in relation to the s 211(2) offence does not strictly arise in light of my finding that the company’s knowledge is that of its directors rather than its employees and the directors were unaware of the offences being committed. An element of the s 211(2) offence includes knowledge that information provided pursuant to a s 193 notice was false or misleading. I simply note that is an element of the offence to which the company has pleaded guilty.

Maximum penalty

47. The maximum penalty for an offence is relevant to determining objective gravity in that it reflects Parliament’s expression of the seriousness of the offence: Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

48. The maximum penalty for an offence under s 66(2) of the POEO Act is $1,000,000 in the case of a corporation per s 66(2)(a). The maximum penalty for an offence under s 211(2) is also $1,000,000 in the case of a corporation. Significant maximum penalties are evidence that the legislature considers the offences to which Wollondilly Abattoirs pleaded guilty to be objectively serious.

Sentencing considerations under s 241 POEO Act

49. Section 241 of the POEO Act refers to matters I must consider in sentencing where relevant.

Extent of the harm caused or likely to be caused to the environment by the commission of the offence (s 241(1)(a))

50. The SOAF contains agreed matters concerning environmental harm. There is no evidence of actual environmental harm over the charge period because Wollondilly Abattoirs did not provide the EPA with any genuine results of analysis of effluent samples taken on the premises throughout this period. There was potential for environmental harm resulting from the application of effluent to land where the effluent was not appropriately monitored or reported. The likelihood of environmental harm arising is unknown or more accurately the EPA has not established beyond reasonable doubt what is the likelihood of harm occurring, a difficult matter to prove on that standard in any event.

51. The EPA submitted that the lack of accurate and timely data presents a barrier to the connection of Wollondilly Abattoirs’ premises to Sydney Water’s treatment system as an ongoing pollution reduction strategy. I consider the primary harm caused was undermining of the efficacy of the environmental protection legal framework.

Practical measures that may be taken to prevent, control, abate or mitigate that harm (s 241(1)(b))

52. Practical measures could have been taken by the board of the company to put in place a series of checks and balances to try to ensure no false information could be included in the reporting documents. Such measures would have addressed the harm to the regulatory framework in the POEO Act.

Extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence (s 241(1)(c))

53. The EPA’s submission that Wollondilly Abattoirs could have reasonably foreseen that if false reporting information was provided to the EPA there was a real possibility that harm could be caused to the environment as any potential pollutants would go unchecked, does not take into account the unpredictability of such behaviour by employees occurring. The circumstances of the offences are unusual to say the least. This is not a relevant factor in sentencing in this case.

Extent to which the person who committed the offence had control over the causes that gave rise to the offence (s 241(1)(d))

54. The EPA submitted that the offences arose out of conduct of Wollondilly Abattoirs that was fully in its control and not driven by external factors. While literally true, I agree with Wollondilly Abattoirs’ submission that it was not reasonably foreseeable that the company’s employees would engage in the kind of fraudulent behaviour over a lengthy period of 12 months which gave rise to the offences.

Whether, in committing the offence, the person was complying with orders from an employer or supervising employee (s 241(1)(e))

55. This does not apply to Wollondilly Abattoirs.

Conclusion on objective seriousness

56. In light of the above matters, Wollondilly Abattoirs’ conduct falls at the low end of the low range of objective seriousness in relation to the s 66(2) offences and the s 211(2) offence.

Application of ss 10 and 10A of the CSP Act

57. Wollondilly Abattoirs submitted that the Court should consider making an order under s 10A of the CSP Act or alternatively s 10 in relation to all the offences which state:

Part 2 Penalties that may be imposed

…

Division 3 Non-custodial alternatives

…

10 Dismissal of charges and conditional discharge of offender

(1)   Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

(a)   an order directing that the relevant charge be dismissed,

...

(3)   In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a)   the person’s character, antecedents, age, health and mental condition,

(b)   the trivial nature of the offence,

(c)   the extenuating circumstances in which the offence was committed,

(d)   any other matter that the court thinks proper to consider.

...

10A Conviction with no other penalty

(1)   A court that convicts an offender may dispose of the proceedings without imposing any other penalty.

(2)   Any such action is taken, for the purposes of the Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender.

58. The three matters in s 10(3)(a), (b) and (c) must be considered. It is not necessary to satisfy all of these matters before a court exercises its discretion to make an order: R v Paris [2001] NSWCCA 83 at [42] (Simpson J, Wood CJ at CL and Ipp AJA agreeing) cited by me in Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52 at [53].

59. Considering the s 66(2) offences and s 10(3)(a), Mr Ziems and Mr Smith identify in their affidavits at [10] and [14] above that the company has been operating and servicing butchers and wholesalers in the Sydney basin for almost 60 years and has managed many changes in the meat industry. Wollondilly Abattoirs employs a large workforce and has demonstrated a commitment to the meat industry community in the area. Further Wollondilly Abattoirs regularly donates some of its product to academic and medical research. The SOAF at par 75 includes a list of 11 penalty infringement notices (PINs) the company has received. PINs can be taken into account when considering the character of an offender under s 10(3)(a) (Filipowski v Vopak Terminals Sydney Pty Ltd [2006] NSWLEC 104 at [114]-[116]) and the weight that should be given to them is discussed below.

60. The s 66(2) offences are not trivial (s 10(3)(b)). As already noted above at [31] theoretically the s 211(2) offence gives rise to greater culpability given that an element includes the provision of information in response to a s 193 notice knowing it to be false. The s 211(2) offence is not trivial.

61. Considering s 10(3)(c), I have accepted that the mind of the company resides in its directors who were not aware of the provision of the false quarterly reports or annual return to the EPA or the false response to the s 193 notice. Does this amount to an extenuating circumstance? Given the absence of knowledge at board level of the EPL obligations and absence of oversight of senior staff I do not think so. Although the four false quarterly reports the subject of four charges stated “Report Submitted by: Fred Ziems” director and chairman of Wollondilly Abattoirs (see tabs 7-10 of the attachments to the SOAF referred to at [8] above), Mr Ziems did not see a copy of the reports before they were submitted (par 48 of the SOAF). The false annual return the subject of one charge had to be signed by two directors (pars 60-61 of the SOAF). The circumstances whereby this was signed in a carpark with apparently no attention to the contents does not suggest any rigour in employee oversight by the board. It is unknown whether the response to the s 193 notice was viewed by a director.

62. Had there been a system for the reasonable oversight of the then general manager and then office manager the s 10 application would have had more strength but there is no evidence that there was any. The absence of such oversight is highlighted by the substantial steps taken since these offences by Mr Smith and Mr Griffin as set out in their respective affidavits summarised above at [16], [20]-[22], [24]-[25], [26].

63. It is not appropriate to exercise my discretion to apply s 10 to Wollondilly Abattoirs. As to whether I will apply s 10A, I will consider the subjective circumstances of Wollondilly Abattoirs before determining that matter.

Subjective circumstances

64. Section 21A(3) of the CSP Act identifies a number of mitigating circumstances that can be considered where relevant.

Harm caused by offence was not substantial (s 21A(3)(a))

65. There is no evidence of actual environmental harm and I have found above that the EPA has not proved beyond reasonable doubt there was a risk of environmental harm. The harm caused by the offences was to the effectiveness of the regulatory system.

No prior convictions (s 21A(3)(e))

66. Wollondilly Abattoirs has no prior criminal convictions. According to par 75 of the SOAF it has received 11 PINs as mentioned above. None of these can be considered as prior convictions for the purposes of the CSP Act: Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 at [25]; Environment Protection Authority v Whitehaven Coal Mining Pty Ltd [2019] NSWLEC 27 at [227].

Good character (s 21A(3)(f))

67. The EPA submitted that as a result of the history of prior regulatory action taken against the company as detailed above in the SOAF at par 75, it cannot be said that it is of good character. PINs can be taken into account when considering whether an offender is of good character: Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106 at [51]. PINs that concern matters unrelated to an offence before the Court should be given minimal weight: Environment Protection Authority v Wambo Coal Pty Ltd [2016] NSWLEC 125 at [110], citing Environment Protection Authority v Burrangong Meat Processors Pty Ltd [2003] NSWLEC 102. According to the table in the SOAF, between 2004 and 2014 Wollondilly Abattoirs received inter alia eight PINs for contravening conditions of its EPL in breach of s 64 of the POEO Act. Three of these PINs concerned failures to submit annual returns and carry out adequate effluent sampling. I note that between 2016 and 2017 Wollondilly Abattoirs received two official cautions from the EPA concerning breaches of ss 64 and 66(2) of the POEO Act (supplying annual returns that were false or misleading in a material respect). Given that official warnings have no statutory basis unlike PINs, limited weight should be given to them.

68. I accept the company is of good corporate character and that it has played an important role in the local community (see above at [14]). It has not received any PINs for infractions such as those before the Court. The unusual circumstances of these offences are entirely different from those resulting in PINs relating to breaches of s 64 identified in the table in the SOAF.

Unlikely to reoffend (s 21A(3)(g))

69. Mr Ziems, Mr Smith and Mr Griffin in their affidavits above at [13], [16], [20]-[22] described Mr Griffin’s role in maintaining the company’s compliance with its obligations under its EPL. The operation of Wollondilly Abattoirs’ affairs has changed significantly under Mr Griffin who has appointed various officers and agents of the company to ensure compliance with the EPL and the EPA broadly. There is now a more formal delegation of duties and responsibilities. Further Mr Griffin has implemented a regime for regular monthly board meetings which frequently table correspondence received or matters involving the EPA and matters pertaining generally to the company’s compliance with its EPL.

70. Mr Smith stated in his affidavit above at [15] that Wollondilly Abattoirs has engaged Arcadis to inter alia provide advice in relation to the company achieving full EPL compliance; to be the point of contact with the EPA; and assume responsibility for sampling of water and quarterly and annual testing and reporting.

71. Mr Smith and Mr Griffin stated in their affidavits above at [17] and [22] respectively that Mr Smith has and will continue to supervise Mr Griffin in the performance of his duties including those relating to the company’s compliance with its EPL.

72. Mr Griffin states in his affidavit above at [26] and [28] that since the commission of the offences Wollondilly Abattoirs has disclosed to the EPA non-compliance with its EPL and that such non-compliance has been addressed by the company.

73. I accept that Wollondilly Abattoirs has, by its substantial actions taken since the commission of the offences, demonstrated that it is unlikely to reoffend and has implemented its own internal measures for rehabilitation. The implementation of a new and comprehensive system of management for compliance with its EPL is particularly relevant.

Remorse (s 21A(3)(i))

74. Mr Ziems has accepted responsibility on behalf of the company in his affidavit at [13] above. The company’s speed and efficiency in taking remedial action to address the cause of the offences supports the conclusion that Wollondilly Abattoirs is contrite.

Early plea of guilty (ss 21A(3)(k), 22)

75. Wollondilly Abattoirs entered a plea of guilty at the first reasonable opportunity.

Assistance by offender to law enforcement authorities (s 21A(3)(m))

76. Wollondilly Abattoirs has, on becoming aware of the offences, assisted and cooperated with the EPA in the continuing investigation and prosecution of the offences. I accept Wollondilly Abattoirs’ submission that Frederick Ziems, Matthew Ziems and Daniel Ziems all voluntarily took part in interviews with officers of the EPA.

Conclusion on application of s 10A of CSP Act

77. On consideration of these various subjective matters I consider an order under s 10A of the CSP Act is appropriate. Had I imposed a fine it would have been minimal given the unusual circumstances of these offences and would have had little deterrence value.

EPA’s costs

78. The parties have agreed that Wollondilly Abattoirs is to pay $40,000 for the EPA’s costs as provided for in ss 257B and 257G of the Criminal Procedure Act 1986. That is a substantial sum given the financial state of the company according to Mr Smith’s second affidavit and Ms Tran’s affidavit, summarised above at [19] and [30] respectively.

Orders

79. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 the Court orders:

1. In summons no 18/145824 Wollondilly Abattoirs Pty Ltd is convicted of the offence against s 66(2) of the Protection of the Environment Operations Act 1997 (POEO Act) in that, it was the holder of a licence who supplied information to the appropriate regulatory authority under the conditions of the licence, being information that was false or misleading in a material respect.

2. In summons no 18/145825 Wollondilly Abattoirs Pty Ltd is convicted of the offence against s 66(2) of the POEO Act in that, it was the holder of a licence who supplied information to the appropriate regulatory authority under the conditions of the licence, being information that was false or misleading in a material respect.

3. In summons no 18/145826 Wollondilly Abattoirs Pty Ltd is convicted of the offence against s 66(2) of the POEO Act in that, it was the holder of a licence who supplied information to the appropriate regulatory authority under the conditions of the licence, being information that was false or misleading in a material respect.

4. In summons no 18/145827 Wollondilly Abattoirs Pty Ltd is convicted of the offence against s 66(2) of the POEO Act in that, it was the holder of a licence who supplied information to the appropriate regulatory authority under the conditions of the licence, being information that was false or misleading in a material respect.

5. In summons no 18/145828 Wollondilly Abattoirs Pty Ltd is convicted of the offence against s 66(2) of the POEO Act in that, it was the holder of a licence who supplied information to the appropriate regulatory authority under the conditions of the licence, being information that was false or misleading in a material respect.

6. In summons no 18/145882 Wollondilly Abattoirs Pty Ltd is convicted of the offence against s 211(2) of the POEO Act, in that it furnished information in purported compliance with a requirement made under Ch 7 of the POEO Act, knowing that it was false or misleading in a material respect.

7. Wollondilly Abattoirs Pty Ltd is to pay $40,000 for the Environment Protection Authority’s costs in accordance with ss 257B and 257G of the Criminal Procedure Act 1986.

8. The exhibits are returned.

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Decision last updated: 07 June 2019