Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Commins

[2023] NSWLEC 43

Land and Environment Court

New South Wales

Medium Neutral Citation:

Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Commins [2023] NSWLEC 43

Hearing dates:

6 February 2023

Date of orders:

18 April 2023

Decision date:

18 April 2023

Jurisdiction:

Class 5

Before:

Pepper J

Decision:

See orders at [157].

Catchwords:

ENVIRONMENTAL OFFENCE: sentence – taking water contrary to a water approval – principles to be applied – offence inadvertently committed – harm occasioned by commission of the offence – whether offence could have been prosecuted in the Local Court – whether parity principle applies – fine – moiety – publication order – whether defendant ought to be named in notice – costs.

Legislation Cited:

Criminal Procedure Act 1986, ss 247E, 247F, 257B, 257G

Crimes (Sentencing Procedure) Act 1999, ss 3A, 21, 21A, 22

Fines Act 1996, ss 6, 122

Water Management Act 2000, ss 3, 5, 49A, 60A, 60C, 91G, 91I, 324, 336E, 353G, 364A

Cases Cited:

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357

Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234

Burwood Council v Jally Development Pty Ltd [2007] NSWLEC 543

Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304

Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114

Chief Executive, Office of Environmental and Heritage v Clarence Valley Council [2018] NSWLEC 205

Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109

Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483

Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278

Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211

Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178

Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66

Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29

Environment Protection Authority v Minto Recycling Pty Limited [2019] NSWLEC 193

Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65

Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80

Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220

Environment Protection Authority v Rands [2019] NSWLEC 23

Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222

Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100

Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299

Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189

Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Beltrame [2023] NSWLEC 18

Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Harris [2020] NSWLEC 113

Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Maules Creek Coal Pty Ltd [2021] NSWLEC 135

Grant Barnes, Chief Regulatory Office, Natural Resources Access Regulator v O’Haire [2020] NSWLEC 158

Grant Barnes, Natural Resources Access Regulator v Hogan and Hogan (unreported, Griffith Local Court, 4 February 2022)

Grant Barnes, Natural Resources Access Regulator v Schwager (unreported, Naarrabri Local Court, 26 November 2021)

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Harris v Harrison [2014] NSWCCA 84

Harrison v Perdikaris [2015] NSWLEC 99

Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348

Lowe v The Queen (1984) 154 CLR 604

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Natural Resources Access Regulator v Thompson [2022] NSWLEC 48

Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66

Palmer v R [2005] NSWCCA 349

Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253

Postiglione v The Queen (1996) 189 CLR 295; [1997] HCA 26

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

R v Dodd (1991) 57 A Crim R 349

R v MAJW [2007] NSWCCA 145

R v Nichols (1991) 57 A Crim R 391

R v Oliver (1980) 7 A Crim R 174 at 177

R v Visconti [1982] 2 NSWLR 104

Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561

WaterNSW v Peter James Harris and Jane Maree Harris [2023] NSWLEC 33

Category:

Sentence

Parties:

Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator (Prosecutor)
Timothy Mitchell Commins (Defendant)

Representation:

Counsel:
P English (Prosecutor)
K Averre (Defendant)

Solicitors:
Crown Solicitors’ Office (Prosecutor)
Hunt & Hunt (Defendant)

File Number(s):

2021/167717

Publication restriction:

Nil

JUDGMENT

Commins Pleads Guilty to One Water Offence

1. The defendant, Timothy Commins, has pleaded guilty to one offence against s 91G(2) of the Water Management Act 2000 (“WMA”) for taking water from a water supply work in contravention of the terms and conditions of a water supply work approval between 1 July 2017 and 30 June 2019. The offence was committed at a property located at 1758 Litchfield Rd, Witton NSW 2705 (“Brigalow Farm”).

2. Commins is a Director of Commins Enterprises Pty Ltd (“Commins Enterprises”), which operates a farming business involving, amongst other things, the irrigation of cotton, barley, canola and pigeon pea. This involves the extraction of groundwater from the Lower Murrumbidgee Deep Groundwater Source by means of a bore on Brigalow Farm. The extracted water is then used to irrigate the relevant crops.

The Legislative Regime Creating the Offence

3. Section 91G of the WMA creates an offence of contravening the terms and conditions of an approval:

91G   Contravention of terms and conditions of approval

(1)   A person (other than the holder) who uses water, constructs or uses a water management work or carries out a controlled activity or an aquifer interference activity, pursuant to an approval is guilty of an offence if the person contravenes any term or condition of the approval.

Tier 2 penalty.

(2)   If any term or condition of an approval is contravened by any person, each holder of the approval is guilty of an offence.

Tier 2 penalty…

Commins Operates Brigalow Farm

4. Many of the basal facts forming the basis of this sentencing judgment were agreed to by the parties in an agreed statement of facts (“ASOF”).

5. Brigalow Farm is located within the Leeton Shire Council Local Government Area, and comprises Lots 64, 102 and 104 of DP 751696.

6. Image 1 below shows ArcMap satellite imagery which identifies the Lots comprising the Brigalow Farm:

7. The Lower Murrumbidgee Deep Groundwater Source (“Groundwater Source”) is located within the Murrumbidgee River catchment between the towns of Narrandera, Booligal, Balranald and Jerilderie. The Groundwater Source extends from the bottom of the Shepparton Formation down to the bedrock, with a typical thickness of 100 m to 300 m.

Application of Parts 2 and 3 of Chapter 3 of the WMA

8. From 27 September 2006 Pt 2 of the WMA applied to the Groundwater Source.

9. From 1 October 2006 the land at Lots 64, 102 and 104 was an area to which the Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources 2003 applied. Accordingly, at all relevant times Pts 2 and 3 of Ch 3 of the WMA were applicable to the Brigalow Farm and the Groundwater Source.

Water Access Licences 11810 and 16040

10. Between 1 July 2017 and 30 June 2019, Commins, Leeann Commins, and Marion Commins, were the holders of Water Access Licence (“WAL”) 11810 (“WAL 11810”). WAL 11810 had a share component of 1,293 units and was operational at the time of the commission of the offence. WAL 11810 specified Combined Approval 40CA403694 (“Approval 40CA403694”) as the nominated water supply work approval.

11. Between 1 July 2017 and 30 June 2019, Commins, Annette Commins, Roger Commins, and Leeann Commins, were the holders of WAL 16040. WAL16040 had a share component of 1,000 units and was operational at the time of the offence. WAL 16040 specified Approval 40CA403694 and Water Supply Work Approval 40WA417430 as the nominated water supply work approvals.

12. Between 6 September 2018 and 30 June 2019, Bidgeebrook Pty Ltd (“Bidgeebrook”) was the holder of Approval 40WA417430, which authorised the use of one water supply work, namely, a bore referred to as the “Nardoo Bore” on Lot 74 DP 751696, or Nardoo Farm. Nardoo Farm was located around 7 km east of Brigalow Farm and was owned by Bidgeebrook, whose directors and shareholders were Commins and Annette Commins. The Nardoo Bore was used to irrigate crops of cotton, wheat, maize and barley on the Nardoo Farm. There was no suggestion that any condition of Approval 40WA417430 had been breached.

13. Each of the WALs granted their holders an annual entitlement to the share component of the respective WAL in ML. In addition to their annual entitlement, each of the WALs permitted the carryover of any unused entitlements from the previous water year up to a maximum of 2 ML per share. This meant that WAL 11810 could carry over a maximum of 2,586 ML to a new water year, and WAL 16040 could carry over a maximum of 2,000 ML of water into a new water year.

14. At the end of the 2016-2017, 2017-2018, 2018-2019 water years, the WALs had the following amounts of water available to carry over to the next water year:

1. WAL 11810:

1. 2016-2017 water year: 2,586 ML;

2. 2017-2018 water year: 2,586 ML;

3. 2018-2019 water year: 1,293 ML;

2. WAL 16040:

1. 2016-2017 water year: 2,000 ML;

2. 2017-2018 water year: 2,000 ML; and

3. 2018-2019 water year: 1,157.9 ML.

15. Notwithstanding the amount of water available in each WAL balance, an annual use limitation also operated to restrict the total amount of water available to be extracted annually from each WAL. This did not include any additional amount of traded water assigned (by way of credit) into the WAL balance.

16. The following annual use limitations applied to the WALs:

1. for WAL 11810, an annual use limit of 2,586 ML; and

2. for WAL 16040, an annual use limit of 2,000 ML.

Bore Extraction Limit Condition on Approval 40CA403694

17. Between 1 July 2017 and 30 June 2019, Commins, Roger Commins, Leeann Commins and Kerry Forbes, were the holders of Approval 40CA403694. Approval 40CA403694 authorised the use of one water supply work, being a 508 mm diameter bore located on Lot 64 (“the Bore”). Water extracted through the Bore pursuant to Approval 40CA403694 was authorised for use for the purpose of irrigation on Lots 64, 102 and 104.

18. Approval 40CA403694 was subject to a number of conditions, including condition NS10562 (“condition 19”), which imposed a Bore Extraction Limit (“BEL”) on Approval 40CA403694. It stated as follows:

Notwithstanding any volume held in an associated access license water account, the total volume of water extracted annually from the works approved by this approval and 40WA404961 must not exceed 2,630 ML.

19. Commins and the other holders of Approval 40CA403694 were informed of the imposition of condition 19 in correspondence from the NSW Office of Water. On 6 August 2009 a letter was sent from the NSW Office of Water to George Commins at Brigalow Farm, stating that Approval 40CA403694 would expire on 30 September 2009, unless renewed.

20. On 26 August 2009 a letter of intent from the NSW Office of Water was sent to the Commins Partnership, addressed to “Tim Commins”. The letter advised that Dealing D1003056 had been approved subject to a BEL of 2,630 ML imposed on two approvals, namely, Approval 40CA403694 and Approval 40WA404961. The letter enclosed a copy of the proposed condition and gave the recipients 21 days within which to make a submission concerning the change.

21. On 26 August 2009 George Commins signed an application to extend Approval 40CA403694 for 10 years.

22. On 8 September 2009 a letter from the NSW Office of Water was sent to George Commins advising that his application to extend Approval 40CA403694 had been granted. The letter attached a copy of Approval 40CA403694 conditions, including condition 19. No response to the letter was received within 21 days.

23. On 13 November 2009 the NSW Office of Water issued a notice pursuant to s 102 of the WMA formalising the change to condition 19 of Approval 40CA403694. In the notice, this condition was incorrectly referred to as “condition 18”.

The Offending Conduct

24. Between 1 July 2017 and 30 June 2019, Commins extracted a total of 6,611.1 ML of groundwater from the Groundwater Source using the Bore. The water was used for the irrigation of cotton, barley, canola and pigeon pea.

25. However, condition 19 of Approval 40CA403694 required that the total volume of water extracted annually from the works approved by Approval 40CA403694 could not exceed 2,630 ML, notwithstanding the volume held in any associated access licence water account.

Operation Drawdown Investigations

26. In June 2020 the Natural Resources Access Regulator (“NRAR”) Monitoring and Audit team conducted a desktop review audit known as “Operation Drawdown” to detect any non-compliances with BEL conditions for several bores located within the Griffith region. The audit involved examining water supply work approvals that had a BEL condition attached to them and checking the annual volume usages recorded in the WaterNSW Water Accounting System database (“WAS”). This database can be accessed by water users online through the WaterNSW Internet WAS (“iWAS”).

27. On 22 November 2020, Jennifer Davis, Senior Investigator at NRAR, downloaded the water account statements for WAL 11810 and WAL 16040 from WAS for the water years 2017-2018 and 2018-2019. These water account statements showed that:

1. for the 2017-2018 water year, the water taken from the Bore was 2,747.6 ML, which was 117.6 ML more than the BEL of 2,630 ML; and

2. for the 2018-2019 water year, the water taken from the Bore was 3,863.5 ML, which was 1,233.5 ML more than the BEL of 2,630 ML.

28. On 19 October 2020 Davis examined Supervisory Control and Data Acquisition (“SCADA”) meter data for Approval 40CA403694 and the Extraction Site Identification Number 15905. SCADA is used by WaterNSW to record water usage onsite through the capture of water meter data. Davis calculated the total volume of water extracted at the Bore by taking the last meter reading as at 30 June of the relevant water year and subtracting the carryover volume recorded as at 1 July of the previous water year. Davis’s calculations from the SCADA data were almost identical to the data downloaded from the water account statements outlined above, and showed that:

1. for the 2017-2018 water year, the meter readings increased by 2,747.87 ML, which was 117.87 ML more than the BEL of 2,630 ML; and

2. for the 2018-2019 water year, the water taken from the Bore was 3,863.78 ML, which was 1,233.78 ML more than the BEL of 2,630 ML.

29. Around late 2020, Commins was first notified of the two over-extractions which occurred in the 2017-2018 and 2018-2019 water years.

Commins Participates in a Voluntary Interview with the NRAR

30. On 24 November 2020 Davis conducted a voluntary interview with Commins during which he made the following admissions:

1. when asked who controlled the operation of the Bore, Commins stated “I control the water – I say, well, we’ve got X amount of water that can be pumped, that’s my responsibility, so this all falls on me”;

2. when asked if he was aware that there was a BEL on Approval 40CA403694, Commins replied that he was not aware of the condition;

3. when shown the letters advising of the BEL condition on Approval 40CA403694, Commins admitted “it was obviously sent out to us, and I haven’t read it, or taken it in” and “I’ve made a mistake and I haven’t looked at – didn’t – not realising there was an extraction limit put there”;

4. when asked who made the decision to pump water in the 2017-2018 and 2018-2019 water years, Commins said, “I’m the one that’s responsible for the water dealing” and explained that the pump was operated manually in accordance with his instructions;

5. Commins told the investigators that his iWAS account indicated that he had transferred enough water into his account and that “we always had the water in the account”;

6. Commins explained that he relied upon the information provided by the iWAS system which he believed permitted the taking of the water; and

7. Commins said “I’m really sorry. It’s not going to happen again.”

31. During the interview Commins raised with the NRAR investigators that the BEL did not appear on his water statements. Investigators confirmed that the BEL was attached to Approval 40CA403694 and not to the water statements. They advised Commins that the statements record water usages by reference to use limits in accordance with the terms of access licences, carry-over credits, and annual use limitations. Commins was further advised that while water statements track the water that is traded in and out of an account, this did not refer to the terms of a BEL.

Evidence Relied Upon by the Parties

32. In addition to the ASOF, the NRAR relied upon the following documents:

1. an email from Martin Brooks to Commins’s lawyer outlining WaterNSW’s response to Commins’s offer to pay for the cost of a systems upgrade so that irrigators can see their BEL in the iWAS system;

2. a Department of Primary Industries NSW printout indicating the price of cotton for the 2016-2020 water years;

3. a NSW Government printout of the volume traded in ML and Weighted Average Price of groundwater at Lower Murrumbidgee for 2017-2019;

4. a NSW Government printout of the volume traded in ML and Weighted Average Price of surface water at Lower Murrumbidgee for 2017-2019;

5. a WAS of WAL 11810 from 1 July 2018 to 30 June 2019; and

6. a WAS of WAL 16040 from 1 July 2018 to 30 June 2019.

33. Commins tendered a letter from his lawyers to Kate Collingridge of WaterNSW, dated 1 December 2022. The letter offered to financially contribute to an update of the iWAS system for WaterNSW.

34. Commins also relied upon affidavits from the following persons:

1. himself, affirmed 9 and 16 December 2022;

2. Durrell Hammond, a director of a fertiliser manufacturing company who has known Commins for 40 years, affirmed 16 December 2022; and

3. Larry Walsh, a farmer in the community and shareholder of Southern Cotton, affirmed 19 December 2022.

35. In his affidavits, Commins deposed to the following:

52   Prior to the commencement of the NRAR investigation, my understanding of the operation of the Brigalow bore was:

a.   a water entitlement under a water access licence was a theoretical, ongoing share of water in the aquifer that the licence holder is entitled to pump each year. I understood that the water entitlements were referred to as unit shares and that 2 ML of water was available for every unit share as reflected in the WAL conditions and iWAS statements.

b.   I understood that for any bores which had an allocated entitlement (including the Brigalow and Nardoo Bore) the licence holder was able to carry over and utilise up to 200% of the water entitlement in the following water year and have up to 300% of the water entitlement in the account.

c.   I knew that every water year, we are given a water allocation (being a percentage of our water entitlement) which is the water we are permitted to actually pump that year based on the recharge levels. I understood that this amount was subject to change every year, our bore allocation was generally 100% of our entitlements. That is with the exception of the 2020/2021 water year when we were allocated 65% of our entitlement.

d.   As at the date of installation of the Nardoo Bore, I understood that the Nardoo and Brigalow bore were connected in that I was able to extract Nardoo water from the Brigalow site.

e.   I knew that WAL 11810 had a share component of 1,293 units (or 2,586 ML) and WAL 16040 had a share component of 1,000 units (or 2,000 ML). Therefore, I believed that by connecting the two WAL’s, I theoretically would be able to pump up to 4,586 ML (without considering carry-over entitlements) from the Brigalow Bore.

f.   I understood that an extraction limit could be attached to a specific bore which would cap how much water could be taken from that particular bore hole. I was aware that the Nardoo bore had an extraction limit of 1,000 ML. I was not; however, aware of an extraction limit being attached to the Brigalow Bore as at the date of my offence.

…

54   As mentioned above, prior to the commencement of NRAR’s investigation in or around November 2020, I was not aware that an extraction limit had been inserted into the approval relating to the Brigalow Bore. In the course of NRAR’s investigation and since reviewing business documents in preparation for these proceedings, I have found correspondence from NSW Water demonstrating that an extraction limit of 2,630 ML was proposed for the Brigalow Bore in or around August 2009 and was applied in September 2009. Exhibited at pages 85-88 of TMC01 are copies of this correspondence. As mentioned previously, prior to the commencement of NRAR’s investigation, my understanding in relation to the Brigalow Bore was that, I was entitled to use 200% of the entitlements attached to WAL 11810 and additionally extract within the share entitlements attached to WAL 16040. This is reflected in my previous use of the Brigalow Bore, which has never exceeded my combined annual use limit.

36. Since being made aware of his offending, Commins deposed that he has implemented a number of strategies to prevent further contraventions of the WMA. These included:

1. adapting administration procedures to ensure that when correspondence is received from WaterNSW regarding the bores, Commins is notified and the correspondence is reviewed before filing;

2. making contact with WaterNSW to clarify any correspondence received from WaterNSW that is not understood;

3. making relevant enquiries with WaterNSW when amending conditions for approvals and seeking all necessary legal advice to ensure that the terms of the approvals are correctly understood; and

4. providing training to staff so that they are aware of any extraction limits on the bores, including the Bore.

Sentencing Principles

The Purposes of Sentencing

37. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”):

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.

Statutory Matters to be Taken into Account in Sentencing

38. Section 21A(2) and (3) of the CSPA set out aggravating and mitigating factors that the Court must consider in determining an appropriate sentence. Relevant to the facts of these pleading are:

21A   Aggravating, mitigating and other factors in sentencing

…

(2)   Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows–…

(o)   the offence was committed for financial gain…

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

(3)   Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows–

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

…

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

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

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

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

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

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

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

…

(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),

…

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

39. For offences created under the WMA, the Court is also required to consider the matters set out in s 364A of that Act:

364A   Matters to be considered in imposing penalty

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

(a)   the impact of the offence on other persons’ rights under this Act,

(b)   the market value of any water that has been lost, misused or unlawfully taken as a consequence of the commission of the offence,

(c)   the extent of the harm caused or likely to be caused to the environment (including, in particular, any water source or waterfront land) by the commission of the offence,

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

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

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

(g) whether the offence was committed during a severe water shortage or an extreme event (that is, in contravention of an order in force under section 49A or 324),

(h)   the person’s intentions in committing the offence,

…

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

40. The appropriate sentence for Commins is to be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of the charge (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357).

41. Importantly, the sentence to be imposed on Commins for the commission of the offence must be proportionate to both its objective seriousness or gravity and his subjective circumstances (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).

Objective Circumstances of the Offence

42. The objective gravity of the offence fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime committed, considered in light of its objective circumstances (Veen v The Queen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).

43. The objective seriousness is to be determined by reference to the nature of the offences and not by reference to matters that are personal to a particular offender (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).

Nature of the Offence

44. The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are illustrative of the objective seriousness of an environmental offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49] and Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).

45. The relevant objects contained in s 3 of the WMA assist in identifying the purpose of the offences with which Commins has been charged:

3   Objects

The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular:

(a)   to apply the principles of ecologically sustainable development, and

(b)   to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and

…

(e)   to provide for the orderly, efficient and equitable sharing of water from water sources,

…

(h)   to encourage best practice in the management and use of water.

46. Section 5 of the WMA also sets out the water management principles, which relevantly include:

5   Water management principles

(1)   The principles set out in this section are the water management principles of this Act.

1. …

(4)   In relation to water use—

(a)   water use should avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land should be rehabilitated, and

(b)   water use should be consistent with the maintenance of productivity of land in the long term and should maximise the social and economic benefits to the community, and

(c)   the impacts of water use on other water users should be avoided or minimised…

(8)   In relation to aquifer interference activities—

(a)   the carrying out of aquifer interference activities must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and

(b)   the impacts of the carrying out of aquifer interference activities on other water users must be avoided or minimised…

47. In respect of the objects of the WMA, in Harrison v Perdikaris [2015] NSWLEC 99 the Court observed that (at [46]-[47]):

46 There is a need for the upholding of the regulatory system under the WMA. The system depends on persons, first, taking steps to ascertain when approval is required to carry out activities, including controlled activities on waterfront land, secondly, making application in the appropriate form and manner (including environmental impact assessment of the activity) and obtaining any approval so required before carrying out the activity and, thirdly, complying with the terms and conditions of any approval granted in carrying out the activity.

47   Offences which undermine the integrity of the regulatory system are objectively serious. Use of the criminal law ensures the credibility of the regulatory system.

48. In Grant Barnes, Chief Regulatory Office, Natural Resources Access Regulator v O’Haire [2020] NSWLEC 158 (at [104]), the Court stated:

104   The water management system depends on persons obtaining a licence to access water and adhering to the conditions of that licence. The licence is the price payable for the taking of a valuable and increasingly scarce resource. Accessing water that contravenes the conditions of an access licence and that continually causes the licence to be in debit by using water that exceeds the allocation of the access licence directly subverts the objectives of the statutory water management regime.

49. Although these remarks were made in relation to an offence under s 60C(2) of the WMA, they are equally apposite in respect of adherence to the conditions of approvals. By taking a greater volume of water than Commins was legally entitled to under the BEL for Approval 40CA403694, he undermined the objectives of the regulatory scheme in the WMA and frustrated the attainment of the objects of the WMA.

50. The NRAR submitted that the over-extraction likely caused land degradation by way of aquifer compaction contrary to the water management principles.

51. By contrast, Commins contended that the only issue concerned the extraction cap because he had obtained all relevant applications and approvals in relation to the water that he used. Accordingly, the regulatory regime had not been undermined to any significant degree.

52. I do not wholly agree. I find that the charge subverted the regulatory scheme which relies on water users adhering to the conditions of their approvals. The commission of the offence undermined the equitable sharing and taking of water and the protection of water sources promoted by the statutory regime. The importance of adhering to the conditions of a water supply work approval and of ensuring the orderly management of a valuable and increasingly scarce resource cannot be understated. Having said this, I acknowledge Commins’s submission that the water was paid for and that he had pumped and used 10,847.2 ML less than he was otherwise entitled to between the commencement of the 2016 water year to date. I accept that his behaviour therefore cannot be characterised as a “rapacious profit merchant simply doing everything to make a dollar” (T33:35-39).

Maximum Penalty

53. The maximum penalty provided for an offence is an indicator of Parliament’s view as to the seriousness of that offence and provides a sentencing yardstick to measure the relevant features of the offence for which Commins is to be sentenced (Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; and Rawson at [57]). Commins’s offending must be examined in this light (Perdikaris at [49]).

54. The offence is a Tier 2 offence under the WMA. From 8 June 2017 to 26 June 2018, the maximum penalty for a Tier 2 offence under that Act was 2,250 penalty units, or $247,500.

55. However, from 27 June 2018 to 30 June 2020, the maximum penalty for a Tier 2 offence under the WMA increased to 4,550 penalty units, or $500,500.

56. Commins’s offending straddles different maximum penalties. As such, the lower maximum penalty shall apply (s 19(1) of the CSPA; R v MAJW [2007] NSWCCA 145 at [48]).

Commins’s State of Mind During the Commission of the Offence

57. An offence under s 91G(2) of the WMA is an offence of strict liability, and therefore, intention is not an element of the offence. But the state of mind of Commins during the commission of the offence is nevertheless relevant to the question of penalty, subject to the application of the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 (at 389, and see generally the discussion in Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [143]-[168]).

58. The NRAR and Commins submitted that the state of mind to be attributed to him is of inadvertence. I agree based on the following:

1. his understanding that WAL 11810 had a share component of 1,293 units (2,586 ML) and that WAL 16040 had a share component of 1,000 units (2,000 ML). Commins therefore believed that by connecting the two WALs, he could pump up to 4,586 ML without considering carry-over entitlements from the Bore;

2. his lack of awareness that an extraction limit of 2,640 ML had been imposed on Approval 40CA403694 relating to the Bore and his belief that he was entitled to use 200% of the entitlements attached to WAL 11810 and extract within the share entitlements attached to WAL 16040;

3. his failure to review any correspondence from WaterNSW in detail between 2009 and 2020 surrounding his water usage. Commins was responsible for the management of both surface and groundwater across all of his irrigated properties regulated by a number of different approvals and access licences. Changes to Approval 40CA403694 were received by Commins Enterprises and he relied on his administrative staff to review the correspondence and to alert him to any important issues;

4. since mid to late 2019, he had ongoing issues with the Bore’s Telemetry Metering System; and

5. the iWAS did not display any information relating to the approval or extraction limits. Any “available water” listed in iWAS referred to the water available to be traded and not to the water that could be pumped. Commins only periodically checked his iWAS account to ensure that sufficient water was available to be pumped and he was unaware of any imposed extraction limit (at [59]-[60]).

The Environmental Harm Occasioned or Likely to be Occasioned by the Commission of the Offence

59. The extent of the harm caused or likely to be caused to the environment by the commission of the offence is relevant to the objective seriousness of the offence (s 364A(1)(c) of the WMA). The Court must additionally consider whether any injury, emotional harm, loss or damage caused by the offences was substantial (s 21A(2)(g) of the CSPA).

60. In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299, Preston J stated that harm includes both actual harm and potential harm (at [145]-[149]). His Honour identified the following principles in establishing harm, namely, that:

1. harm is not limited to measurable harm such as actual harm to human health, and can include a broader notion of quality of life;

2. harm can include harm to the environment and its ecology resulting from that caused to a particular animal or plant;

3. harm can be direct or indirect, individual or cumulative; and

4. the culpability of the defendant depends in part on the seriousness of the environmental harm.

61. The meaning of the words “likely to be caused to the environment” was considered by Lloyd J in Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 (at [44]):

44   In considering the harm likely to be caused to the environment, it is to be noted that the word “likely” in this context has been held to mean “a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance” (Mathews v Goulburn Wool Processors, NSWSC, Smart J, 6 November 1986, unreported); “only a real chance or possibility, and not more probably than not” (State Pollution Control Commission v Blayney Abattoirs Pty Ltd (1991) 72 LGERA 221 at 224); and “does not mean ‘probable’. It means ‘a real possibility’” (New South Wales Sugar Milling Co-operative Ltd v State Pollution Control Commission (1991) 73 LGRA 86 at 100, affirmed by the Court of Criminal Appeal on other grounds, (1992) 75 LGRA 320).

62. The NRAR submitted that environmental harm was caused by the offence undermining the regulatory scheme in the WMA (Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 at [23]). Conditions imposing bore extraction limits are a local scale management mechanism imposed on individual groundwater works by the NSW Government and allow the Government to manage both environmental harm and inequitable access to other water users. The conditions are usually imposed on the basis of groundwater management knowledge and modelling. A breach of condition 19 therefore harmed the statutory scheme by creating the very risk of environmental harm which the condition was designed to mitigate.

63. Further, because of the difficulty in assessing the actual environmental impacts in relation to an underground confined aquifer, the NRAR submitted that the over-extraction caused likely harm to the environment in three ways:

1. first, the over-extraction was likely to have removed not more than 327 ML of water from the Groundwater Source which would otherwise have been discharged to distant aquifers and the terrestrial environment. There was a real possibility that the functioning of ecosystems reliant on those groundwater aquifers and terrestrial environments were negatively impacted by the over-extraction. I accept this submission having regard to the ASOF, but I note that the average impact of the over-extraction on the distant aquifers and distant groundwater discharge locations was agreed to be “small”;

1. second, there was significant additional drawdown of the Groundwater Source lowering of groundwater pressure or groundwater level of the Source. Any drawdown of 2 m or more is considered to be a “significant” drawdown by reference to the NSW Aquifer Interference Policy 2012. The additional drawdown included:

1. between 2 m to 5 m of water at one groundwater work with production rights around 1 km from the Bore for a duration of between 7 to 14 days in the 2017-2018 water year; and

2. between 2 m to 6 m of water at eight groundwater works with production rights at a distance of up to 8 km from the Bore for a duration of between 70 and 140 days in the 2018-2019 water year.

3. third, that Commins’s offending had increased the risk of compaction of the Groundwater Source, particularly in circumstances where the water level of the Groundwater Source within several kilometres of the Bore was the lowest on record. The over-extraction contributed to this low level. Again, having regard to the ASOF I accept this submission and note that aquifer compaction can permanently reduce the ability of an aquifer to hold and carry water in the future and reduce the capacity of aquitards to transmit water to underlying aquifers. This decreases the rate at which recharge can travel through aquitards with the result that the groundwater levels of aquifers recover from low levels more slowly and fall to low levels more quickly.

64. The NRAR further submitted that the over-extraction had the potential to harm the environment by impacting other aquifers. This was because it was estimated to have affected the Lower Murrumbidgee Shallow Groundwater Source by causing a very small decline in groundwater pressure or water level during the relevant period. The over-extraction from the Groundwater Source potentially impacted the aquifer above it by causing a small decline in groundwater pressure and water level, and potentially affected the underlying hard rock aquifers below it by decreasing the groundwater pressure or water level of those aquifers. Finally, the NRAR contended that the Court should have regard to the potential for small changes to groundwater levels, movement, and availability as a result of the over-extraction, because incremental cumulative contributions to the gradual deterioration of the environment should be treated seriously, even when they individually cause no discernible direct harm to human health (Waste Recycling and Processing Corporation at [147]).

65. Given that there was evidence of an actual decline in groundwater pressure or water level during the offending period, and having regard to the facts agreed to by the parties, the submissions may be accepted.

66. Overall, I find that there was a risk of environmental harm caused by the commission of the conduct due to the reasons outlined by the NRAR above. In doing so, I do not accept Commins’s submission that the quantity of the extraction was not significant or substantial when viewed in the context of the use of the Bore over two water years. The over-extraction was 1,351.1 ML, or 25.69% of the extraction cap. Broken down into individual water years, in the 2017-2018 water year, Commins extracted 4.47% more water than the BEL Condition permitted, and in the 2018-2019 water year, Commins extracted 46.9% more water than was allowed. These were not insubstantial amounts.

67. I also reject Commins’s submission that the period of over-extraction was relatively short, viz, a period of 77 days over the entire over-extraction period. Again, the duration was not immaterial having regard to the fact that each cumulative day of over-extraction contributed to environmental harm by way of impacting ecosystems and terrestrial environments reliant on distant aquifers, causing additional drawdown to nearby groundwater works, and increasing the risk of impaction of the Groundwater Source.

The Impact of the Offence on Other Persons’ Rights (s 364(1)(a) of the WMA)

68. The NRAR argued that the additional drawdown impacted nearby groundwater bores that had production rights. It submitted that by removing 1,024 ML of water from the Groundwater Source that would have otherwise been available for use in the future, there was a real possibility that the over-extraction negatively impacted other water users. This was particularly so given the over-extraction occurred during a period where the water level of the Groundwater Source within several kilometres of the Bore was the lowest on record. I take this impact into consideration.

69. Finally, the NRAR submitted that it was likely that the additional drawdown caused by the over-extraction increased the cost to other water users by having to pump the water from greater depths at their nearby groundwater bores. This submission was made on the basis that as groundwater level declines, the pumping infrastructure must be used at a higher rate or for a longer duration to access the deeper groundwater. I agree and note that the cost of extracting groundwater using a diesel pump can range between $0.96 to $2.27 per ML per meter that the water is lifted upwards. However, I have also taken into account Commins’s submission that there was no evidence as to how much water other users actually extracted from relevant bores during the period of the over-extraction. Therefore, the impact of the commission of the offence on other persons’ rights was likely, not actual.

The Market Value of Any Water that Has Been Lost, Misused or Unlawfully Taken as a Consequence of the Commission of the Offences (s 364a(1)(b) of the WMA)

70. The NRAR submitted that the market value of the 1,351.1 ML of water that was over-extracted was $253,460.70. This figure was calculated from the price of water in NSW during the periods of the over-extraction. The over-extraction was also sufficient to grow about 207 ha of cotton, or 1039 ha of barley.

Practical Measures Which Could Have Been Taken to Prevent or Mitigate the Environmental Harm (s 364a(1)(c) of the WMA)

71. There were a number of practical measures that could have been taken by Commins to prevent the commission of the offence, and accordingly, the harm that it caused. This included:

1. being aware of the conditions imposed on Approval 40CA403694 in the operation of the Bore so as to not exceed the BEL condition;

2. monitoring the amount of water extracted from the Bore by reading the user interface on the meter connected to the Bore, instead of solely relying on the iWAS statements which do not display one’s extraction limits; and

3. measures identified at [36] of this judgment.

72. As the NRAR submitted, these measures were plainly feasible given Commins’s management of a sophisticated farming business on Brigalow Farm, which planned and tracked the water that was used to grow the crops. He prepared a water budget, monitored the extraction of water from groundwater bores and checked the iWAS several times a month.

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences (s 364a(1)(e) of the WMA)

73. The NRAR submitted that the likely and potential harm caused by the over-extraction was reasonably foreseeable to Commins. In Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211 (at [81]) and echoed in M A Roche Group Pty Ltd (at [27]), Craig J observed that:

… the holder of an environment protection licence is clearly on notice of the possibility of harm to the environment occasioned by any of the activities which it carries out on the site to which that licence relates.

74. These observations apply with equal force in the context of approvals granted under the WMA. In circumstances where Approval 40CA403694 was amended to include the BEL condition as a result of the NSW Government’s groundwater modelling over the last decade, it was reasonably foreseeable that failure to comply with the BEL condition would contribute to environmental harm.

75. Commins submitted that he was cognisant of the environmental context within which he was operating at Brigalow Farm. That is, he was cognisant of the importance of water sustainability. As the NRAR observed, given this awareness, it was more than reasonably foreseeable that non-compliance with the conditions of Approval 40CA403694 could harm the environment.

76. I therefore find that it was reasonably foreseeable that failing to monitor any conditions on Commins’s approvals would harm the environment and other water users.

77. This is particularly so in the context of Commins’s experience as a third-generation farmer who would have possessed a general level of awareness that environmental harm would result from an over-extraction of groundwater over the course of several water years. I find this notwithstanding the fact that Commins did not have any scientific knowledge of the effects of additional drawdown of groundwater or aquifer compaction.

Control Over the Causes of the Commission of the Offences (s 364A(1)(f) of the WMA)

78. The NRAR submitted that Commins had complete control over the causes of the offence. I agree. In his affidavit Commins deposed to the fact that he had control over the administration of his company’s farming enterprise and was responsible for managing both surface water and groundwater across his properties, including Brigalow Farm. Commins controlled the amount of water to be pumped from groundwater bores at Brigalow Farm, including the Bore. Furthermore, the groundwater bores were operated in accordance with his instructions.

Whether the Commission of the Offences Occurred During a Severe Water Shortage or Extreme Heat Event (s 364a(1)(g) of the WMA)

79. The groundwater monitoring data indicated that the water level of the Groundwater Source within several kilometres of the Bore was the lowest on record during the offending period.

80. However, there was no evidence before the Court that an order was in place under either ss 49A or 324 of the WMA for the purposes of s 364A(1)(g). I therefore cannot take this factor into account.

Commins’s Intentions and Reasons for Committing the Offences (s 364a(1)(h) of the WMA; s 21a(2)(o) of the CSPA)

81. The criminality involved in the commission of the offences by a defendant is measured not only by the seriousness of what actually occurred but also by reference to the reasons for its occurrence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley at [237]).

82. The carrying out of an offence to make a profit, or to save or defer the incurring of an expense, increases the seriousness of that offence (s 21(2)(o) of the CSPA). Put another way, it is an aggravating factor if an offence was committed for financial gain.

83. Commins submitted that he had no intention of circumventing the conditions for financial advantage, either in terms of attempting to covertly take the water or not to pay for the water that was taken. In his affidavit, he stated that:

66   I do not believe I have received a financial or commercial benefit as a result of the over-extractions. If I did, it would have been minimal. At all times, I ensured that I had purchased the water, sought approval for the transfer (where necessary) and paid all relevant government fees and charges prior to pumping the water.

84. However, during Commins’s cross-examination it was revealed that:

1. in the 2017-2018 water year, the price of water in the Groundwater Source that was traded on the open market at the relevant time was $47 per ML. The value of the 117.6 ML of over-extraction that occurred in the 2017-2018 water year was $5,527.20. During this time, Commins Enterprises and the Brigalow Farm were sowing a winter crop, including barley which was budgeted on 4 ML of water per hectare. This meant that 29.4 ha of barley could have been grown with the over-extracted water in that year, which was being sold at $246.50 a tonne. This was calculated to amount to $7,247 in gross revenue (T12:10-36);

2. in the 2018-2019 water year, there was an over-extraction of 1233.5 ML over 70 days. No winter crop was grown; instead, the summer crop that was grown was 95% cotton and 5% pigeon pea (T14:32-34). With a budget of 10 ML per ha for cotton, this meant that 122.35 ha of cotton could have been grown with the water, which equated to 1,223.35 bales of cotton. Trading at an average of $600 per bale for that period, the gross revenue was calculated to be $734,100 (T15:4-16:23);

3. in total, the gross revenue in relation to value of crops derived from the over-extraction of water over the two years would have added up to approximately $741,000 (T16:25-27; 23:7-9);

4. for an irrigator, surface water is preferable because it does not involve the pumping cost of bringing it from the ground and is better quality due to lower salinity levels. However, it is more expensive. It is also common practice when watering crops to “shandy”, or blend, groundwater with surface water (T17:3-30);

5. the value of surface water increased at a greater rate than the cost of groundwater during the 2017-2018 and 2018-2019 water years (T18:8-19:40). The weighted average price of groundwater and surface water over the two water years is set out in the table below. At various points in the 2018-2019 year Commins could have sold groundwater for $245 per ML:

Weighted Average Price of Water at Lower Murrumbidgee Deep Groundwater Source
2017-2018 water year	2018-2019 water year
Groundwater	$41	$157
Surface water	$136	$395

6. and his WAS statements for the 2018-2019 water year indicated that (T21:12-22:15):

1. 0 ML of available water was left for WAL 11810 at the end of the water year; and

2. 157.9 ML of available water was left for WAL 16040 at the end of the water year.

Therefore, during the 2018-2019 water year, Commins could have either traded 157.9 ML of groundwater at $245 per ML and bought more surface water, or reduced his crop area, which would have been less profitable (T22:24-44).

85. During re-examination Commins stated that:

1. the cost of growing cotton was around $4,500 to $5,000 per ha. Thus if the gross revenue was $6,000, he would make around $1,500 per ha after the associated costs of growing cotton, water, labour, fuel, machinery, ginning and transport were subtracted. This would result in a net profit of $150 per ML of water (T23:11-21); and

2. in relation to the leftover 157.9 ML of water in the WAL 16040 WAS, which included the water he had over-extracted from the Bore, he would have reduced his crop area if he had known that he was in breach of his BEL condition (T23:46-50).

86. The NRAR also calculated that with an over-extraction of 1,351.1 ML, Commins would have made either $310,000 in profit based on a price of $1,500 per ha, or $202,650 in profit based on the price of $150 per ML (T25:38-47).

87. The NRAR was careful to submit that the financial gain from the offending did not constitute an aggravating factor. Rather, it emphasised the high value of water over-extracted and that Commins’s offending conduct was therefore “profitable” for the purposes of determining the value of an appropriate monetary penalty.

88. I accept that Commins carried out the offence in the course of his commercial activities, that is, to irrigate his crops during the 2017-2018 and 2018-2019 water years. I also accept that the amount of over-extracted water would have proved a profitable venture no matter which calculation one applies.

89. However, there is a difference between using the over-extracted water during the course of ordinary commercial activities, and intentionally over-extracting water for financial gain by way of planting more crops than he was able to with his water entitlement. There is no evidence of the latter.

90. In the absence of evidence demonstrating that Commins over-extracted water with the intention of irrigating more crops for profit or trading the water on the market, I am not satisfied beyond reasonable doubt that the commission of the offence was motivated by financial gain. This is particularly the case given that he inadvertently committed the offence.

91. I do, however, take into account the value of the over-extracted water.

Conclusion on the Objective Seriousness of the Offence

92. The NRAR submitted that it is open for the Court to find that the offence falls within the low end of the mid-range of objective seriousness, but not at the bottom or low end of offending as submitted by Commins. In support of its contention, it relied in particular on the volume of water taken, the fact that the over-extraction amounted to 25.69% of the annual bore extraction limit condition, the duration of the offending (77 days) and the risk of environmental harm.

93. In reply, Commins submitted that in circumstances where his state of mind was inadvertent, where the water was paid for, where there was no evidence of actual environmental harm, and where there was an over-extraction of only 1,351.1 ML, the offending was at the lower end of the range of objective seriousness.

94. Having regard to all of the objective circumstances of the commission of the offence, I consider that the offence is in the high end of the low range of objective seriousness for offences of this kind.

Subjective Circumstances of Commins

95. A proportionate sentence requires the Court to take into account any mitigating factors that are personal to Commins (s 21A(3) of the CSPA). Relevant subjective circumstances include:

1. whether Commins entered his guilty plea at the earliest available opportunity (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]);

2. whether Commins has demonstrated remorse for the commission of the offence (s 21A(3)(i) of the CSPA and see the remarks by Preston J in Waste Recycling and Processing Corporation at [203]-[215]);

3. whether Commins provided assistance to the regulatory authorities in the investigation and prosecution of the offence (ss 21A(3)(m) and 23 of the CSPA);

4. whether Commins is of good character (s 21A(3)(f) of the CSPA);

5. whether Commins has a prior criminal record (s 21A(3)(e) of the CSPA); and

6. Commins’ likelihood of reoffending and his prospects of rehabilitation (s 21A(3)(g) and (h) of the CSPA).

Early Plea of Guilty (ss 21A(3)(k) and 22 of the CSPA)

96. A guilty plea entered at the earliest available opportunity entitles a defendant to the full 25% discount for the utilitarian value of that early plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton at [152]).

97. The NRAR outlined the timeline of the proceedings:

1. on 10 June 2021 the proceedings were commenced. The matter was listed for first directions on 23 July 2021;

2. on 17 September 2021 Commins entered pleas of not guilty to the two summonses in respect of two charges under s 91G(2) of the WMA, with a separate charge for each water year. Orders were made for the service of notices pursuant to ss 247E and 247F of the Criminal Procedure Act 1986 (“CPA”); and

3. on 18 March 2022 the NRAR was granted leave to file an amended summons which rolled the two charges into a single charge, and Commins changed his plea to guilty.

98. The Court has held that there is no unreasonable delay in the entry of a defendant’s guilty plea if the defendant enters the guilty plea after the service of the s 247E notice under the CPA (Environment Protection Authority v Minto Recycling Pty Limited [2019] NSWLEC 193 (at [166]-[167]). In this matter, Commins’s later and delayed change of plea means that he is not entitled to the full 25% discount. Rather, I find that a discount of 20% to be appropriate. Commins did not cavil with this finding.

Assistance to the NRAR (ss 21a(3)(m) and 23 of the CSPA)

99. Commins provided assistance to the NRAR during the investigation and prosecution of the offence by:

1. fully cooperating with investigators and giving full and frank evidence during his interview;

2. accepting, at least in part, responsibility for the commission of the offence; and

1. participating in the preparation of a comprehensive agreed statement of facts for the purposes of the hearing thereby obviating the necessity of calling any expert evidence.

100. I take this assistance into account.

Prior Convictions and Good Character (ss 21A(3)(e)-(f) of the CSPA)

101. Commins has no prior convictions.

102. Hammond’s and Walsh’s affidavits deposed to Commins’s good character, including his contribution to various community and business initiatives and his contribution of time and equipment to the farming sector.

103. I find Commins to be a person of good character.

Likelihood of Commins Reoffending and Prospects of Rehabilitation (ss 21A(3)(g)-(h) of the CSPA)

104. In Hammond’s affidavit, he stated that he was confident that Commins had now received the necessary legal advice to ensure that he properly understood the rules and requirements associated with his approval and licence to extract groundwater and that he was unlikely to reoffend.

105. Walsh expressed a similar view in his affidavit.

106. There being no evidence to the contrary, I am confident that Commins is unlikely to reoffend in light of these proceedings, and moreover, that his prospects of rehabilitation are good.

Contrition and Remorse (s 21A(3)(i) of the CSPA)

107. The contrition or remorse of an offender must be taken into account as a mitigating factor in determining the appropriate sentence for an offence (s 21A(3)(i) of the CSPA).

108. In Waste Recycling and Processing Corporation, Preston J stated that contrition and remorse is more readily demonstrated by an offender "taking actions" rather than offering "smooth apologies" through legal representatives (at [203]). His Honour identified four acts that would demonstrate genuine contrition and remorse (at [204]-[214], applied in Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220 at [223]; Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [85]-[89] and Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 at [101]). These are:

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

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

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

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

109. In his affidavit, Commins deposed to the fact that he now understands his errors and is “very remorseful” for his oversight (at [64]).

110. A number of remedial actions taken by Commins have, in his view, demonstrated his remorse and contrition, including:

1. the measures identified at [36] of this judgment; and

2. volunteering to make a financial contribution towards an upgrade of WaterNSW’s iWAS online water reporting system to incorporate a section that displays the current extraction limit and the amount of remaining water available for extraction.

111. I find that Commins has demonstrated genuine remorse and contrition.

Parity Principle

112. Sentencing disparity imposed on co-offenders breaches the norm of equal justice, as was stated by Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 (at [28], footnotes omitted):

28   “Equal justice” embodies the norm expressed in the term “equality before the law”. It is an aspect of the rule of law. It was characterised by Kelsen as “the principle of legality, of lawfulness, which is immanent in every legal order”. It has been called “the starting point of all other liberties”. It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:

“Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.”

(Emphasis in original)

Consistency in the punishment of offences against the criminal law is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice”. It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner. As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.

113. In Lowe v The Queen (1984) 154 CLR 604, the Court said (at [8]):

8   There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done…

114. In Postiglione v The Queen (1996) 189 CLR 295; [1997] HCA 26, Dawson and Gaudron JJ stated (at 301 and 303):

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.

…

…as between co-offenders, different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison. And, of course, it is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender’s criminal history or custodial situation which has no counterpart in the case of his or her co-accused. If so, it may justify the imposition of a different sentence or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody…

115. Commins submitted that the parity principle should be applied to him because George Commins, his brother, was issued two Penalty Infringement Notices (“PINs”) in the amount of $750 each in relation to the same offending conduct.

116. Commins recognised that there was a difference between his conduct and that of his brother because he was the person responsible for the water use which gave rise to the offending, but submitted that the Court should not impose a sentence in “tens and tens and tens and tens of thousands of dollars” in circumstances where PINs were issued to the other licence holder (T35:4-8).

117. However, for the parity principle to apply, Commins and his brother must be co-offenders. The term “co-offender” has not been defined with any precision (Green at [29]). It is not limited to persons charged with the same offences arising out of the same criminal conduct or enterprise. Its application is governed by substance over form. Nevertheless, the Court observed that (at [30]):

30   In Lowe v The Queen and in Postiglione v The Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged

118. In Burwood Council v Jally Development Pty Ltd [2007] NSWLEC 543, Biscoe J said (at [4]):

4 Part 3 of the Fines Act 1996 (ss 19 to 56) provides an alternative to a prosecution by way of summary criminal proceedings. It creates a procedure for the issuing of penalty notices pursuant to which a range of summary offences may be dealt with by way of imposition of a civil penalty which, unless disputed by the recipient of the notice, may then be enforced as a debt to the State. Unless a person who receives a penalty notice elects to have the matter dealt with by a court in summary proceedings, the matter remains in the civil enforcement stream. There are a range of enforcement measures if there is default in payment, including measures which tend to be associated with criminal conduct, such as the imposition of a community services order or imprisonment. In my opinion, the legislative purpose, as the defendant submitted, is to create a system for dealing with such matters, which is an alternative to prosecution by way of summary proceedings.

119. The PINs are neither criminal convictions, nor sentences; they are civil penalties. Accordingly, there are several difficulties with the application of the parity principle in relation to George Commins’s sentence. First, they are not co-offenders. Second, it was Commins who was responsible for the water use which gave rise to the commission of the offence, not his brother.

The Offence Could Have Been Prosecuted in the Local Court

120. Commins submitted that the Court should give considerable weight to the fact that the proceeding was brought in this Court instead of the Local Court. This had the consequence of exposing Commins to a significantly higher maximum penalty than would have otherwise been imposed in the Local Court for an offence against the WMA and to higher costs.

121. The Court was referred to Palmer v R [2005] NSWCCA 349, where Hall J stated (at [15(d)]):

15(d)   … the significance of the loss of the chance of the matter being dealt with in the Local Court varies from case to case. In some cases it would contribute to mitigation of sentence. It is a matter to be taken into account, but is not a universal factor for the reduction of sentence: R v Doan (2000) 50 NSWLR 115.

122. In Harris v Harrison [2014] NSWCCA 84, Simpson JA stated (at [96]-[99]):

96   Given the known circumstances of the offence, and the assessment of the offence as one of low objective gravity, her Honour's attention should have been drawn to the fact that the offence could have been prosecuted in the Local Court, and to the maximum penalty there available.

97   Notwithstanding the respondent's desire to have some parameters established by a superior court, this was an offence that should have been treated as one suitable to be prosecuted in the Local Court, with its limitation on penalty. It is a pity that neither counsel thought to inform her Honour of these circumstances.

98   I am satisfied that the total sentence imposed ought not to have exceeded the jurisdictional limit of the Local Court, $22,000. While I consider that the respondent's reasons for bringing the prosecution in the Land and Environment Court, to establish some principles and benchmarks with respect to offences against s 91K, were legitimate, I also consider that the jurisdictional limit of the Local Court ought to have been regarded as a highly significant sentencing factor.

99   In the circumstances of this case, I would not prevent the appellant from advancing this circumstance as relevant to the issues before this Court.

123. Commins argued that the correct test is whether the jurisdictional limit in the Local Court was appropriate (T33:1-2), not whether the availability of disposal of the matter in the Local Court was a factor in mitigation. Commins submitted that the evidence relating to environmental harm could have been dealt with in the Local Court. In addition, the NRAR was neither seeking orders that could not be made by the Local Court, nor was it seeking a claim for compensation pursuant to Ch 7, Pt 4, Div 1 of the WMA because Commins had paid for the water the subject of the charge. Commins furnished the Court with two cases where the NRAR elected to pursue proceedings in the Local Court in circumstances where an offender contravened s 91G(2) of the WMA.

124. In response, the NRAR submitted that the volume, duration, market value of the water illegally taken, and the $22,000 jurisdictional limit of the Local Court, made it appropriate for these proceedings to be commenced in this Court. The complexity of the evidence on environmental harm, including detailed hydrogeological modelling, supported its submission. In relation to the profit derived from the offending conduct, the NRAR further submitted that the value of the water taken in breach of the BEL condition distinguished this matter from the Local Court cases that were relied upon by Commins.

125. The cases referred to by Commins offer little assistance absent further details on the circumstances of those cases or the reasons why the NRAR determined to prosecute them in the Local Court, none of which were apparent on the face of the decisions.

126. While I place weight on the fact that these matters could have been prosecuted in the Local Court, that weight is limited having regard to the substantial volume of water that was extracted and its market value. None of the matters raised by Commins established that it was inappropriate for the prosecution to have been brought in this Court, a specialist court (Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Beltrame [2023] NSWLEC 18 at [144]).

Capacity to Pay a Fine

127. There was no evidence before the Court to suggest that Commins was not capable of paying any fine that the Court was likely to impose (s 6 of the Fines Act 1996).

Retribution, Denunciation and Deterrence

128. The Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offence and make Commins accountable for his actions.

129. Furthermore, the Court required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569 per Brennan J). One of the purposes of the Court in imposing a sentence is to prevent crime by deterring the offender, and other persons, from committing similar offences. This purpose is enshrined in s 3A(b) of the CSPA (Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [188] and [192] and Environment Protection Authority v Rands [2019] NSWLEC 23 at [161]).

General Deterrence

130. The penalty imposed by the Court must serve as a general deterrent (Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177]). General deterrence is vital “to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences” (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188]. See also Axer at 359).

131. In the case of environmental offences, general deterrence is a principal consideration. In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 at 289, Preston J discussed general deterrence in the context of environmental offences as follows (at [65]-[68]):

65   The sentence of the Court is an important denunciation of the conduct of the defendant.

66   The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598.

67   This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354; and Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93].

68   The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court’s sentence, the offender is given his just desserts.

132. Similarly the Court said in Chief Executive, Office of Environmental and Heritage v Clarence Valley Council [2018] NSWLEC 205 (at [98]-[99]):

90   There is also a need for general deterrence. The sentence of the Court needs to operate as a powerful factor in preventing the commission of similar offences by other persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. Courts have repeatedly stated, when sentencing for environmental offences, that the sentence of the Court needs to be of such magnitude as to change the economic calculus of persons in determining whether to comply with or to contravene environmental laws. It should not be cheaper to offend than to prevent the commission of the offence. Environmental crime will remain profitable until the financial cost to offenders outweighs the likely gains by offending.

91   Where a fine or other monetary penalty is determined to be appropriate, the amount needs to be such as will make it worthwhile to incur the cost of complying with the law and undertaking the necessary precautions. The amount of the monetary penalty must be substantial enough so as not to appear as a mere licence fee for illegal activity: Axer Pty Ltd v The Environment Protection Authority (1993) 113 LGERA 357 at 359-360. The sentence of the Court changes the economic calculus of persons who might be tempted not to comply with environmental laws or not to undertake the necessary precautions. Compliance with the law becomes cheaper than offending. Environmental crimes become economically irrational.

133. Commins submitted that there should not be any great weight afforded to this element of sentencing because the financial penalty imposed would sufficiently reflect general deterrence. He also submitted that the decision of Clarence Valley Council should be applied with caution because of his payment for the water which was used. This was not comparable to an offender who finds it cheaper to offend than to avoid the commission of a crime.

134. But, as stated above, general deterrence is not directed at Commins; its purpose is to deter other water approval holders from extracting water over their approved limit.

133. I therefore take this factor into consideration.

Specific Deterrence

136. The NRAR submitted that specific deterrence is particularly relevant where an offender continues to operate in the same area in which an incident has occurred (Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 at [48]). In Roche [2013] NSWLEC 191 Pain J noted (at [45]):

45   Specific deterrence is appropriate for corporate defendants to catalyse rehabilitation so that the company takes the required steps to prevent repetition (See BJ Preston, "Principled Sentencing for Environmental Offences", a paper presented to the 4th International IUCN Academy of Environmental Law Colloquium, 16 - 20 October 2006 at p 5.)

137. Commins submitted that only limited weight ought to be given to specific deterrence because of the circumstances of the offending, including his state of mind during the commission of the offence, his prior good character, and the measures taken by him to rectify the harm and to prevent reoffending.

138. In my view, there is a need for specific deterrence. Commins continues to operate Brigalow Farm, along with other irrigation properties. The penalty imposed must serve to reinforce to Commins his responsibility of ensuring that his extraction of water is compliant with the conditions of any approval.

Consistency in Sentencing

139. The task of a sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107C). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case (Axer at 365). The sentence imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).

140. The NRAR and Commins provided the Court with a schedule of comparable cases, which the Court has had regard to in determining an appropriate sentence. Most relevantly, they include:

1. Barlow, where the defendant pleaded guilty to an offence under s 336C(1) of the WMA for taking water during an embargo. He was found to have acted recklessly by not checking that the embargo was lifted (at [68]). He also pleaded guilty to two offences under s 91I(2) for taking water when metering equipment was not operating properly, namely, taking 381.62 ML and 512.52 ML of water, respectively over two periods in 2015. The embargo charge was found to be of medium objective seriousness, while the metering charges were found to be of low objective seriousness (at [83]). The defendant was entitled to a discount of 12.5% for the utilitarian value of his early pleas, and was found to have cooperated with the prosecutor, was remorseful, and had no prior convictions (at [85]-[103]). He was convicted and fined $86,625 for the embargo charge and $48,726 and $54,140, respectively, for the metering charges (at [117]);

2. Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Harris [2020] NSWLEC 113, where the defendant company pleaded guilty to an offence under s 91B(1) for constructing or using a supply work without a water supply work approval in relation to the unauthorised construction and use of a channel for irrigating cotton. Moore J was not satisfied beyond reasonable doubt that the offence was committed for the purpose of seeking financial gain (at [49]). Although there was no evidence of substantial harm despite the size of the channel (at [55]), his Honour held there was harm to the integrity of the regulatory system (at [56]). He concluded that the offences were above the middle of the low range of objective seriousness (at [126]). Moore J found that specific deterrence was required (at [138]). A 10% discount was afforded for the utilitarian value of the defendant’s guilty plea (at [173]), resulting in a fine of $252,000, with a moiety paid to the prosecutor (at [195]). A publication order was also made;

3. O’Haire, where the offender pleaded guilty to eight offences of taking water from the Murray River other than in accordance with a WAL contrary to s 60(2) of the WMA. The amount taken was 1,378 ML from 12 April 2016 to 9 March 2019 (at [112]). The most serious offence involved the taking of 598.99 ML of water other than in accordance with a water allocation. Charges 1 to 7 attracted penalties of $25,000 each before the application of the totality principle and a 15% discount for O’Haire’s early guilty plea, reducing the penalties to $15,000 per offence (at [211]-[213]). A fine of $35,000 was imposed in respect of charge 8 for the taking of 273.45 ML of water, which was reduced to $20,000 after applying the totality principle and taking into account the utilitarian value of his guilty pleas (at [211]-[212]). The Court found that the defendant demonstrated no insight or contrition (at [134]-[135]) and had committed the offences “knowingly with a contumacious disregard” for the conditions of his WAL (at [190]). The offences were found to be in the moderate range of objective seriousness (at [151]). The defendant was convicted and fined a total amount of $131,250 with a 50% moiety paid to the prosecutor. A publication order was also made (at [218]);

4. Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Maules Creek Coal Pty Ltd [2021] NSWLEC 135, which concerned a company that pleaded guilty to an offence under s 60A(2) of the WMA for taking water without an access licence while operating an open cut mine in circumstances where 1,000 ML of clean surface water was captured in water storages without an access licence between 1 July 2016 and 30 June 2019. It was accepted that there was undefined actual harm to surface water flows, and a likelihood of harm being caused to vegetation and to its aquatic ecology as a result of the commission of the offence (at [239]). The Court accepted that general deterrence was an important consideration (at [255]) and found the offending to be at the low end of the medium range (at [239]). The defendant was convicted and fined $187,500, with a 50% moiety paid to the prosecutor after evidence of its good character (at [250]), remorse (at [247]), and cooperation with the prosecutor (at [242]). A 25% discount for the utilitarian value of its early guilty plea was taken into account (at [241]). A publication order was also made, and the defendant was ordered to pay 60% of the prosecutor’s costs as agreed or assessed; and

5. Natural Resources Access Regulator v Thompson [2022] NSWLEC 48, where the defendant offended against ss 60A(4) and 91I(2) of the WMA for taking water otherwise than as authorised by the licence and for taking water while metering equipment was not operating properly or not in operation. The commission of a s 91G(2) offence was also taken into consideration (at [3]). The amount of water pumped during the commission of the offences was 734 ML (at [55]). The offences fell within the low range of objective seriousness (at [136]). The Court was not satisfied that the offences were committed recklessly (at [110]), but found that the offending conduct caused actual harm to the regulatory regime (at [118]). The defendant was of good character, had no prior convictions and was remorseful (at [143]-[151]). The defendant was fined $57,500 for the offences after a 25% discount for the utilitarian value of his early guilty plea was taken into account (at [140]).

141. I have also considered two further authorities. First, WaterNSW v Peter James Harris and Jane Maree Harris [2023] NSWLEC 33, where Peter and Jane Harris were found guilty of an offence contrary to s 91G(2) of the WMA for taking water in breach of a condition of a Water Supply Works and Water Use or Approval which prohibited the taking of water when the flow was equal to or less than 4,894 ML per day (at [416]). The relevant pumps extracted 1,896.17 ML of water, or approximately 1.9 billion litres, during the charge period when extraction was forbidden. Robson J found that the available evidence did not establish to the requisite criminal standard that the offence was committed recklessly or negligently (at [54]), that while the objects of the statutory scheme were undermined, no actual environmental harm occurred (at [71]), that there was reasonable foreseeability of likely environmental harm due to the commission of the offence (at [79]), and that there was no intention of committing the offence for financial gain (at [84]). The offence was held to be in the low range of objective seriousness (at [88]). His Honour was satisfied that the defendants were likely to reoffend given the lack of evidence of an implementation of systems for ensuring compliance (at [105]). He did not find that there was sufficient assistance to the prosecutor to warrant mitigation (at [118]). General and specific deterrence were warranted (at [121]). His Honour convicted and fined Peter Harris and Jane Harris $40,000 and $20,000, respectively, and ordered payment of the prosecutor costs in the amount of $448,260.50 (plus additional costs incurred since 1 June 2022) (at [113]). He declined to dispose of the proceedings under s 10 of the CSPA in respect of Jane Harris (at [153]).

142. Second, the case of Beltrame, where Robert Beltrame pleaded guilty to an offence under s 91G(1) of the WMA for extracting 97.50 ML of water over the extraction limit between 27 January and 21 February 2020. Beltrame was found to have committed the offence inadvertently due to his illiteracy and his total reliance on his wife, Kate Beltrame, to review documents (at [45]). Pritchard J found that the over-extraction posed an increased risk of harm to the environment and that it undermined the regulatory scheme of the WMA and the principles of water management (at [76]). Her Honour also noted that while the quantity of over-extraction, 97.50 ML or 8.82% of his extraction limit, mitigated the seriousness of the potential harm to the environment, the total extraction from the Deep Groundwater Source was larger than its average annual recharge and that groundwater levels fell to their second lowest level on record (at [76]). The offence was found to be in the low to medium range of objective seriousness (at [87]). Beltrame was convicted and fined $35,000, which was reduced to $26,250 after a 25% discount was applied for the utilitarian value of his guilty plea (at [145]). A publication order was also made (at [154]).

143. Beltrame is the most analogous decision to the present case. Having said this, the market value of the water extracted by Commins was substantially higher than that extracted by Beltrame.

144. The NRAR also brought to the Court’s attention two Local Court cases. I have considered them with caution given the significantly higher jurisdictional limit of this Court:

1. first, Grant Barnes, Natural Resources Access Regulator v Hogan and Hogan (unreported, Griffith Local Court, 4 February 2022), where Scott and Anita Hogan each pleaded guilty to two offences under s 91G(2) as holders of a relevant approval relating to breaches of a bore extraction limit. In 2018/2019 they over-extracted from Lower Murrumbidgee Deep Groundwater Source 511.06 ML, and in 2019/2020, they over-extracted 10.25 ML. The Court held that the offending was reckless because the defendants did not have any effective measures in place to prevent the over-extraction, despite Scott Hogan’s evidence that he had forgotten about the bore extraction limit. The defendants had no prior convictions and entered pleas of guilty at the earliest possible stage. Scott Hogan, who was responsible for the day-to-day activities on the farm, was convicted and fined $10,000 for the first charge and $3,000 for the second charge, while Anita Hogan was convicted and fined $3,000 for the first charge and $1,000 for the second charge. The Court accepted that the defendants were from hard working families and that they were members of an environment reference committee. A moiety of 40% was ordered to be paid to the prosecutor and a publication order made; and

2. second, Grant Barnes, Natural Resources Access Regulator v Schwager (unreported, Naarrabri Local Court, 26 November 2021), where a landholder was convicted of three offences for exceeding the extraction limit attached to their works approval over a three year period (2017 to 2020). The offender pleaded guilty and was ordered to pay a total fine of $10,000, comprising of fines of $3,000, $5,000 and $2,000, respectively. A publication order was made with the offender not identified and costs were awarded to the prosecutor in the sum of $9,476.

145. I have taken into account all these cases in determining the appropriate penalty to be imposed on Commins, having regard to their similarities and differences with the facts of the present proceedings.

146. Commins also annexed a number of cases where PINs had been issued for offences contrary to ss 91G and 60C of the WMA, together with a table of cases where the NRAR have dealt with the offender by way of enforceable undertakings on the public register pursuant to s 336E of the WMA. Commins particularly noted an undertaking dated 26 April 2022, in relation to an offender who over-extracted 2,280 ML of water in the same area as Commins at a similar time. However, I placed very little weight on these cases because of their limited information concerning the circumstances of offending. For example, the NRAR Public Register only summarises the financial components of the undertakings without any further details.

Appropriate Sentence

147. Synthesising the relevant objective and subjective circumstances of the commission of the offences discussed above, and taking into account the purposes of sentencing and the penalties imposed in the relevant comparable cases, I find that the imposition of a monetary penalty of $70,000 is appropriate.

148. This penalty must be discounted by 20% for the utilitarian value of Commins’ early plea of guilty, resulting in the imposition of a monetary penalty of $56,000.

Moiety and Costs

149. The NRAR sought an order for moiety pursuant to s 122 of the Fines Act 1996 for half of the fine ordered against Commins to be paid to the prosecutor. In my opinion, such an order is appropriate in the circumstances of the proceedings (Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 at [102]-[113]).

150. The Court is also empowered to make a discretionary order for costs pursuant to s 257B of the CPA. Costs were agreed at $70,000 and I make an order pursuant to s 257G of that Act that Commins pay the prosecutor’s professional costs fixed in this sum.

Publication Order

151. Pursuant to s 353G(1)(a) of the WMA, the NRAR also seeks an order publicising Commins’ commission of the offences under s 91G(2) of the WMA. Commins did not dispute the appropriateness of making a publication order but submitted that he ought not be named in the notice.

152. In Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 Duggan J helpfully set out the principles to be derived from the authorities to be applied in determining whether or not to make a publication order, which I respectfully adopt and apply without repetition (at [84] and [86]):

153. Commins relied upon the decisions in Hogan, Schwager and Harris v Harrison where no publication of the defendants’ names was ordered.

154. Commins submitted that there were unique circumstances in this case which meant that it was unnecessary to name him, namely, that the offence was committed inadvertently and was not a deliberate attempt to circumvent the regulatory system nor to avoid paying for the water that was used, that there were no priors and he was otherwise a responsible custodian of the land (T36:40-50).

155. However, having regard to the principles espoused by Duggan J, I am of the view that Commins should be named in the publication. While I accept that a level of specific deterrence has been achieved by reason of Commins’s criminal prosecution, publication orders naming offenders have a real tendency to improve the effectiveness of sentences in the context of environmental crimes by acting as a general deterrent to others in the community. In this case, his identification will serve as a reminder to other irrigators that they must be aware of, and adhere to, the conditions of their approvals.

156. I therefore find it appropriate to make a publication order in the form annexed at ‘A’ to this judgment.

Orders

157. In conformity with the reasons given above, the Court makes the following orders:

1. Timothy Commins is convicted of the offence against s 91G(2) of the Water Management Act as charged;

2. Timothy Commins is fined the sum of $56,000;

3. pursuant to s 122 of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor;

4. pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 Timothy Commins is to pay the prosecutor’s professional costs as agreed fixed in the sum of $70,000;

5. pursuant to s 353G(1)(a) of the Water Management Act 2000, Timothy Commins must, within 28 days of this order, at his own expense, cause a notice to be published in the terms of annexure ‘A’ to this order in the digital and print versions of the following publications on the first available page at the minimum size specified below:

1. The Land (10 cm x 18.6 cm); and

2. The Irrigator (10 cm x 18.6 cm);

6. within seven days of the date of publication of the notices in accordance with the preceding order, Timothy Commins must provide to the prosecutor a copy of the entire page of the publication in the print version of each publication and a screenshot of the entire page of the publication in the digital version of each publication in which the notice appears; and

7. the exhibits are to be returned.

Annexure ‘A’

Timothy Commins, the holder of a water management work approval (“approval”) relating to a property near Griffith NSW, was convicted and fined before the Land and Environment Court of NSW on 18 April 2023 for committing an offence against the Water Management Act 2000 (“the WM Act”) relating to taking a volume of groundwater that exceeded the annual bore extraction limit imposed as a condition of the approval granted under that Act.

Following an investigation by the Natural Resources Access Regulator (“NRAR”), Timothy Commins was prosecuted in the Court, where he pleaded guilty. Timothy Commins was convicted of one offence under s 91G(2) of the WM Act, as a holder of the approval when the annual bore extraction limit condition of the approval was contravened.

Timothy Commins was fined a total of $56,000 and ordered to pay the NRAR’s costs in the sum of $70,000.

All water users must be mindful of, and comply with, the terms and conditions of both water access licences and water management work approvals. The NRAR undertakes auditing and investigations to ensure that activities affecting water sources and involving the extraction of water are authorised and in line with the principles of the WM Act and the welfare of the environment.

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Decision last updated: 18 April 2023