Greater Taree City Council v Haritomeni Nominees Pty Limited

[2004] NSWLEC 775

Land and Environment Court

of New South Wales

CITATION:

Greater Taree City Council v Haritomeni Nominees Pty Limited [2004] NSWLEC 775

PARTIES:

PROSECUTOR:
Greater Taree City Council

DEFENDANT:
Haritomeni Nominees Pty Ltd

FILE NUMBER(S):

50100 of 2003

CORAM:

Bignold J

KEY ISSUES:

Prosecution :- Water pollution – Discharge of effluent – Guilty plea - Mitigating factors

LEGISLATION CITED:

Protection of the Environment Operations Act 1997, ss 91, 120, 241
Crimes (Sentencing Procedure) Act, s 10

CASES CITED:

DATES OF HEARING:

17/05/2004

EX TEMPORE
JUDGMENT DATE :

05/17/2004

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr T G Howard, Barrister

SOLICITORS
Stacks

DEFENDANT:
Mr C J Leggat, Barrister

SOLICITORS
Hunt and Hunt

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

17 May 2004

50100 of 2003 GREATER TAREE CITY COUNCIL v HARITOMENI NOMINEES PTY LIMITED

JUDGMENT

1. The Defendant has pleaded guilty to a charge that on or about 13 January 2003 at Manning Point, situated in the Local Government area of Greater Taree City, it did commit an offence against the Protection of the Environment Operations Act 1997, s 120 in that it did pollute waters. According to the particulars endorsed upon the summons the relevant waters nominated are an un-named watercourse located at Manning Point which runs through the Weeroona Caravan Park, that being the place and name of the Defendant’s premises, that watercourse being a tributary of Charlies Creek and the Manning River. Particulars are stated in the alternative to include, as an alternative, Charlies Creek, and in the further alternative to be the Manning River.

2. It is not in dispute that the un-named creek connects to Charlies Creek which in turn discharges into the Manning River, all three watercourses being located in reasonably close proximity to the subject premises which are located at Manning Point near the mouth of the Manning River and the Pacific Ocean.

3. The particulars endorsed upon the summons of the pollutant material are variously described, but include human sewerage together with grey waste water comprising grease-trap waste, laundry washings and bathroom washings.

4. The evidence is principally contained in the statement of agreed facts that became Exhibit 1. The Defendant acquired the existing caravan park premises in the middle of 1996 and operated the business until selling it in January 2004. The Defendant is a family company whose directors and shareholders are the parents of Mrs Fotaras and parents-in-law of her husband, Mr Fotaras, who managed the business comprising the caravan park for the Defendant throughout the ownership of the Defendant. The caravan park was acquired as an existing business in 1996, and soon after acquiring it the Defendant obtained approval under the Local Government Act to operate the caravan park and camping ground with a total of 170 sites and 62 camp sites. The approved facilities included 16 communal toilets, 14 communal showers, as well as hand-basin and laundry facilities.

5. At the time of the offence, the area at Manning Point was not connected to a reticulated sewerage system, and the existing development at Manning Point was serviced by alternative sewerage disposal systems principally comprising septic tanks. This was the method of servicing the caravan park owned by the Defendant, and the installations included an absorption trench. At the time the offence was committed, namely 13 January 2003 (the peak school holiday season), the Defendant’s caravan park was close to full occupancy with about 260 persons occupying the premises. The statement of agreed facts in pars 16 and following detailed the circumstances in which the Council’s employees attended the premises and the whereabouts of the adjacent unnamed creek, presumably in response to some complaint.

6. Mr Martin, the Council’s Senior Environmental Health Officer, attended the premises and undertook his investigations starting at a point where the creek passes under Manning Point Road, some 800 metres downstream of the caravan park. At that point he noted that the creek was discoloured and there was a sewerage effluent odour, although when first experienced it was not very strong. He took a sample of the water in the creek at this location. A laboratory analysis of this and other samples taken over a period of time immediately following the incident indicated a faecal coliform count of 140,000 coliform forming units per 100 millilitres of water.

7. As Mr Martin followed the creek upstream in the direction of the Defendant’s caravan park he sensed an intensification of a sewerage smell and noted that the waters in the creek had a milky appearance and appeared to have a thicker consistency. At a point some 30 m from the absorption trench located on the Defendant’s premises, Mr Martin observed two PVC pipes protruding into the creek below waterline and he observed a turbulence apparently caused by liquids entering the creek at this point. He took a water sample at that point which was subsequently analysed with a faecal coliform count of 14 million units per 100 millilitres.

8. He continued to walk upstream as the creek loops around the Defendant’s premises, noting, as he did, the water had changed its appearance looking less milky—more green to grey. Further upstream but still within the area of the caravan park the creek had more an appearance of an open stormwater drain with a concrete bed. He observed other PVC pipes extending into this section of the creek. He again took a sample at this point, which was subsequently analysed to show a faecal coliform count of 3 million units per 100 millilitres.

9. Continuing to walk upstream, Mr Martin observed no water in the upper reaches of the creek. Thereafter he followed the creek to where it connects with Charlies Creek which in turn discharges into the Manning River. He took a water sample at this location; subsequent analysis recorded a faecal coliform count of 400 units per 100 millilitres.

10. He then drove to a riverside pool in the Manning River about two kilometres downstream and took a sample of the waters at that location which were subsequently analysed to show a faecal coliform count of 16 units per 100 millilitres.

11. On the following day, 14 January, Mr Martin returned to the Defendant’s caravan park and conducted a further inspection, this time in the company of Miss Calabria, another officer or servant of the Council. On this occasion, the Council Officers met with Mr Fotaras. Photographs were taken of this inspection. The Council Officers in the company of Mr Fotaras then commenced to inspect certain features of the septic tank system. Opening the lid of the septic tank they observed it was full to capacity, as was the collection wheel, another feature of the system.

12. The parties then moved towards the sewage disposal area. The ground was observed to be dry with no detectable odour. They then walked from the absorption trench area the 30 metres to the creek where the two PVC pipes protruded. They observed the creek to be full of milky-coloured liquid with a sewage odour, as Mr Martin had experienced the previous day. When asked what the PVC pipes were discharging into the creek Mr Fotaras said that they were stormwater pipes. When asked when they were installed Mr Fotaras is said to have said “Two years ago”. The Statement Of Agreed Facts notes that Mr Fotaras does not accept that that is what he said, and in his affidavit sworn on 7 May 2004 upon which he was not cross-examined on this particular aspect, Mr Fotaras indicates that he undertook the task of laying larger stormwater pipes in lieu of the existing stormwater pipes over a period of seven months between February and September 1998. When advised by one of the Council Officers that the PVC pipes appeared to pass directly through the septic tank effluent disposal area, and asked whether he had permission to do this work, Mr Fotaras said no. When asked did he recall damaging or locating the tunnel trenching or the blue metal aggregate when penetrating the area, Mr Fotaras said no. When asked had he connected anything from the trenches to the stormwater pipes Mr Fotaras said no.

13. Mr Martin observed that the pipes appeared to be discharging contents into the creek and noted that it had not been raining for some considerable time. When asked was there anything else connected to the stormwater, Mr Fotaras said “Yes, the caravans are connected to these pipes”. When asked did he mean the caravan sullage lines were connected to the stormwater line Mr Fotaras said yes, and that he did not think that that was a problem.

14. In a subsequent interview on 11 March Mr Fotaras admitted to laying the two stormwater pipes which ran through the effluent disposal area, and said he had done so five or six years earlier. At the time of laying the pipes he had attempted to avoid the trench, however by inadvertence had laid the pipes cutting across the absorption trench. He stated that he was not aware that he had dug across the trench at the time of laying the pipes and he denied knowledge of septic waste running through those pipes. He also admitted that other PVC pipes emanating from the caravan park and discharging into the creek in other locations also carried sullage from the barbecue areas located within the park.

15. When Mr Martin returned to the Council’s offices later that day, that is 14 January, he contacted representatives of Safe Food, a State Government agency responsible for food safety in New South Wales. He also contacted the Environment Protection Authority, the local Shellfish Quality Assurance Committee in the mid-North Coast Public Health Unit; he did so because there are oyster leases in the Manning River in close proximity to the mouth of the creek, that is Charlies Creek, and because in his assessment there was a sewage pollution in the creek with very high levels of faecal coliform. He had received presumptive results of the samples he had taken on 13 January, that is the day before.

16. Later that afternoon, that is 14 January, Safe Food issued a closure notice to the oyster farmers in that part of the Manning River close to the mouth of Charlies Creek. The zone was not re-opened until 30 January 2003. The result of the closure notice was that each oyster farmer was prohibited from shipping any product for sale until it had submitted a first batch of oysters for micro-biological testing and received acceptable results.

17. Later that day Miss Calabria returned to the caravan park premises and carried out some fluorescent dye testing at the septic tank system. The following day Mr Martin and Miss Calabria returned to the caravan park and again met with Mr Fotaras. They noted that the sewage effluent disposal area had been dug up by Mr Fotaras since the previous inspection, and next to the area that had been dug up there was ponded water on the surface with the fluorescent dye visible. Mr Martin asked why Mr Fotaras had dug up the area, to which he replied—“I wanted to see whether the stormwater lines penetrated the trench”.

18. Mr Martin observed:

Obviously they do because the dye has discharged from the trench on to the ground where you carried out the work.”

19. Mr Fotaras said he had dug the area up to determine where in fact he had laid the stormwater pipes.

20. Miss Calabria then inspected the creek in the location of the absorption trenches and observed the fluorescent dye was in the creek. Further water samples were taken. The laboratory results of these further samples showed the faecal coliform count to be 1,100,000 units in the position adjacent to the absorption trench. The readings for Charlies Creek and the Manning River showed levels that were satisfactory.

21. On 15 January Mr Martin ordered Mr Fotaras to seal the end of the absorption trench. On that day Mr Fotaras cut the pipe from the collection well that ran the absorption trench and capped the pipe as directed.

22. On 16 January the council served a clean-up notice pursuant to s 91 of the Protection of the Environment Operations Act requiring the Defendant, Mr Fotaras, to take clean-up action to ensure the discharge of septic waste is prevented from entering what was described as the “fail disposal area”, to disconnect the pump and remove the discharge pipe from the tank to the disposal area, and to take action to ensure the prevention of the discharge of septic waste into the watercourse; the removal of the stormwater lines that penetrated the disposal area, and the end of the trench to be securely sealed; to redirect all effluent to a septic holding well to be removed by a council-approved effluent removal contractor.

23. Mr Fotaras on behalf of the Defendant complied with all of the requirements of the council’s clean-up notice.

24. On 15, 16 and 17 January Mr Fotaras pumped out the contaminated water from the creek onto vacant land within the caravan park area, thereby reducing the amount of contaminated water flowing downstream to Charlies Creek. This action enabled the contaminated water to be dispersed by natural transpiration and evaporation.

25. Mr Martin continued to take water samples for approximately two weeks after the initial incident. Over the period the faecal coliform levels dropped at all sample points. The upper end of the creek remained completely dry and the remainder of the creek running through or adjacent to the caravan park became almost dry and the sewage odour was no longer apparent in the creek.

26. In the week following 16 January a waste disposal contractor pumped out and trucked away a daily average of 19,000 litres of effluent from the caravan park. The cost of that collection and removal process is stated in Mr Fotaras’s affidavit at some $33,500 up to 30 June 2003.

27. In or about September 2003 the Defendant connected the caravan park to the main sewerage system then available at a cost of some $220,000, paid by the Defendant.

28. Expert evidence was adduced in the proceedings, in the form of two statements or affidavits. The Prosecutor adduced the evidence of Professor Ashbolt, a water quality micro-biologist, and the Defendant adduced evidence of William Rooney, an aquatic ecologist. It will be seen from the Statement Of Agreed Facts that I have summarised earlier, that the Court is not able to say with any confidence the amount of polluted waters that entered the un-named creek, is not able to quantify the proportion of those polluted waters that were retrieved and pumped back onto the land and is not able to say what, if any, proportion of the discharged effluent entered Charlies Creek and in turn the Manning River.

29. In his Affidavit, Exhibit A, Mr Fotaras explains his management of the caravan park with his wife on behalf of the Defendant company from July 1996 to January 2004. He explains that when the business was acquired he was told by the former owner that the properties in Manning Point were not connected to the Council sewer and that all of the properties, including the caravan park, had their own septic tank systems. The former owner explained how the sewerage system worked, including the existence of the absorption trench. The system was supplemented by the pump-out of the contents of the two septic tanks (removing solids) that occurred twice a year.

30. Mr Fotaras in pars 15 and following of his Affidavit records the circumstances in which he installed substitute stormwater piping to that which existed in the premises when it was acquired. This was done in 1998, following observations of the premises being flooded in 1996 and 1997, when he observed the stormwater pipes were not draining the stormwater away effectively after heavy rain. Having investigated the matter and seen that the existing stormwater pipes were 90 mm in diameter, he decided to install larger piping, PVC piping, with a diameter of 150 mm. This work was commenced in February 1998 and was completed in September 1998. In undertaking the work he noted that connected to the PVC stormwater pipes were the sullage lines and grease trap systems installed in relation to each of the caravan sites. He undertook the work without having any previous plumbing experience.

31. In his Affidavit, he says that during the undertaking of that work, the Council employee, Mr Very, in carrying out one of his annual inspections of the caravan park premises observed the work in progress but made no comment. Mr Very was called in response to that particular statement in Mr Fotaras’s Affidavit. Although he recalls being at the premises for the purpose of his annual inspections during the relevant period in 1998, he did not recollect seeing what is attributed to him in Mr Fotaras’ Affidavit. Mr Fotaras was required for cross-examination but was not cross-examined on the matter and I am satisfied that I should accept Mr Fotaras’ account of the matter in preference to Mr Very’s lack of recollection of the site.

32. In pars 32 and following, Mr Fotaras deposes to first becoming aware of any problem with the sewerage system on 14 January 2003, when Mr Martin from the Council spoke to him. Thereafter he deposes to what he did in compliance with the Council’s requirements. There is no need for me to detail that particular material because in the Statement Of Agreed Facts it is compendiously stated that the Defendant, through Mr Fotaras, fully co-operated with the Council in its investigations of the matter and fully complied with the council’s clean-up notice issued under the Protection of the Environment Operations Act, s 91.

33. Coming back to the facts of the case, I have already referred to the fact that the evidence does not allow me to say with any confidence the extent, in terms of volume, of effluent discharged from the stormwater pipes installed on the caravan park, or more particularly the amount of sewage discharged, other than the notion of seepage from the absorption trench situate only 30 m laterally from the creek, or the possibility (unexplained) of sewage effluent entering the creek via the pipeline either on the outside of it or inside of it (unexplained). The Court is not in a position to know precisely how the sewage effluent entered the unnamed creek. Nonetheless, it is clear on the evidence that the effluent did enter the unnamed creek. However, it is not clear, for the reasons I have earlier given, as to how far it progressed downstream into the waters of Charlies Creek, and the waters of the Manning River, and in particular as to what percentage of the contaminated effluent was retrieved and pumped back onto the land. No quantities are mentioned in the Statement of Facts and the evidence is simply silent on this matter.

34. Competing submissions diverge considerably in their respective analysis and interpretation of the evidence. The Prosecutor submitted that I would find the offence to be a serious one falling within the middle of the range for a tier 2 offence, which is punishable in the case of an offence committed by a corporation by the maximum penalty of $250,000, for what Parliament obviously regards as a serious environmental offence. The competing submission of the Defendant is that, properly analysed, the evidence admits of the conclusion by the Court that the offence in terms of gravity based upon the objective facts which have been proven, together with the established element of culpability should be regarded at the low end of the spectrum of gravity for an offence of this kind.

35. In particular, the defence submission relies upon the following facts. Firstly, that the Defendant, in acquiring the caravan park premises in 1996 acquired them as a going concern and whatever problem was inherent in the disposal of kitchen and/ or bathroom sullage already existed but not in the sense that led the Defendant and Mr Fotaras on its behalf, in particular, to regard that matter as untoward. Reliance is next placed upon the fact established in the evidence that the Defendant through Mr Fotaras, the manager, was unaware of any problem inherent in the existing waste water disposal system at the caravan park. Thirdly, reliance is placed upon the fact that the council, the Prosecutor in the present case, had licensed the premises under the Local Government Act to be operated, as it had been operated, by the Defendant, Mr Fotaras, on its behalf, as a large caravan park. Fourthly, it was submitted there was no evidence of any complaints or unusual smells either at the time of the admitted offence in January 2003, or indeed at any time since 1998 when the Defendant, through Mr Fotaras, had re-installed the stormwater piping underground system which would have put the Defendant on notice of any inadequacy in the system for disposal of kitchen and bathroom sullage.

36. Next, the Defendant relied upon the fact that there was no satisfactory explanation in the case as to how the sewage effluent in the present case had found its way into the unnamed creek, other than in the manner that I have earlier indicated, namely natural seepage or somehow or other following the line of the PVC stormwater pipe as it traversed and penetrated the absorption pit area.

37. It was submitted on behalf of the Defendant that what apparently occurred on 13 January was neither a sudden nor unexpected, nor unrepeated, nor an unrepeatable event. Moreover, in terms of environmental impact, it was submitted that whatever the effect, it would appear to have been no different from what may have been the situation since 1998 when the stormwater piping system was replaced by Mr Fotaras.

38. Finally, it was submitted that the evidence of the extent of environmental harm actually likely to have been caused to the environment was, upon close scrutiny and analysis, speculative or theoretical or weak.

39. In its submissions on environmental harm, the Prosecutor has invited the Court to infer that many thousands of litres of effluent were discharged and that the sampling of the discharge point near the absorption trench indicated the very high count of faecal coliforms. The submission is, however, in my opinion significantly undermined by the lack of evidence of the impact, if any, of the entering into Charlies Creek and Manning River of that effluent, if it occurred, for the reasons that I have earlier given.

40. The Prosecutor drew attention to the risk to human health that was created by the incident, especially in the light of the existence close to the point where Charlies Creek discharges into the Manning River, of oyster farming. However the evidence in this case does not satisfy me to the requisite criminal standard that this risk was created.

41. Accordingly, I accept the defence submission that a proper evaluation of the evidence in the present case inevitably leads the Court to conclude that the offence committed and admitted to be committed by the Defendant in the present case through the agency of Mr Fotaras, the manager of the caravan park, should in all the circumstances be regarded at the lower end of the spectrum of gravity, both in terms of the objective nature of the offence and its dimensions and the subjective criminal culpability or blameworthiness on the part of the Defendant in the creation of the circumstances which gave rise to the offence.

42. The Prosecuting Counsel has sought to neutralise or undermine the submissions relying upon the circumstances that I have earlier outlined concerning the Defendant’s continuing the existing system in its operation of the caravan park since acquisition in 1996, together with the fact that the Council’s licensing and annual inspections of the caravan park had not revealed any problem hitherto. It is to be noted that the caravan park is rated a four-star facility in the tourist industry, and I am satisfied that under the management of Mr Fotaras and his wife, the business was operated in an efficient manner.

43. The Defendant has also, in this respect, relied upon the fact that the whole of the Manning Point area, as I’ve indicated, until recent times has been serviced by septic tank sewerage systems. A report by Council’s servants investigating the septic tank installations on multiple properties in close proximity to the Defendant’s caravan park had concluded that it was likely that existing absorption trenches would be impacting upon groundwater, although the extent of such impact was unknown. Although this material does not implicate others necessarily in what was observed by the Council’s inspection of the subject premises for the period of time commencing on 13 January 2003, it does at least indicate the nature of the inherent problems with the prevalent septic tank system which prevailed in this built-up area at Manning Point.

44. There is no doubt that the evidence establishes that in undertaking the stormwater pipe re-installation in 1998 Mr Fotaras unintentionally and inadvertently penetrated with the pipes the septic tank absorption trench area, and that this circumstance has at least something to do with the escape of sewage effluent into the un-named creek, as observed by Mr Martin on 13 January 2003.

45. Coming then to the factors to be taken into account, as required by the Protection of the Environment Operations Act, s 241 the first matter is the extent of harm caused or likely to be caused to the environment by the commission of the offence. I have already indicated my findings on this matter. I am satisfied that harm was caused to the environment by the discharge into the unnamed creek of the effluent material, though I am unable to quantify precisely how much was discharged, and of the discharge how much was attributable to septic tank content discharge as opposed to grey water discharge from kitchen sinks and showers, etcetera. Nonetheless, the very high faecal coliform recorded at the discharge of the PVC pipes into the creek in proximity to the absorption trench indicates harm was actually caused on that occasion. However, the wider environmental harm pressed for by the Prosecutor both in terms of actual and likely harm (and I am here referring to the waters of the Manning River) has not been established, for the reasons that I have given.

46. In relation to the second item, that is the practical measures that may have been taken to prevent, control, abate and mitigate the harm, it is obvious that preventable or mitigating action could have been taken if the septic system had not failed. However, the evidence of failure appears to be confined to the inadvertent penetration of the absorption trench area by the PVC stormwater pipes installed in 1998, and the evidence in this case has not led me, with any confidence, to be able to conclude to what extent that circumstance caused the contents of the septic system to be discharged. This is particularly the case given the prevalence of septic tank systems in the built-up area at Manning Point located, as it is, as a peninsula to both the Manning River and the Pacific Ocean.

47. The foreseeability of the harm is the third item mentioned in the section. It is of course clear that the discharge into the creek system of stormwater containing kitchen and bathroom basins and showers would be foreseeable, because that is the way in which they were designed to operate. The Prosecutor is right to submit that the mere fact that that arrangement was part of the system inherited when the Defendant purchased the property does not excuse its continuance. Nor does it excuse a person from the obligations cast upon them by environmental law such as the Protection of Environment Operations Act, s 120. Though foreseeable, and though the harm likely to be caused by such direct discharges were foreseeable, that foreseeability and the consequences of that foreseeability need to be mitigated by the existence of that system apparently unchecked and uncomplained of by the regulating authority for many years heretofore.

48. The extent of control is the next matter referred to in the section and it is apparent that the Defendant, through Mr Fotaras’s management, was obviously in control of the operation of the premises, and it is axiomatic that they could have been operated differently. However, having regard to those considerations, the history of the matter and the facts that I have mentioned, I am satisfied that the degree of culpability in the present case is mitigated by the facts that I have recited. Accordingly, I am of the opinion that the defence submission should be accepted in preference to the prosecution submission, that rightly analysed, the objective facts proved in the present case together with the proven elements of subjective culpability, lead to the conclusion that the offence should be regarded at the low end of the spectrum of culpability.

49. The Defendant relies upon a number of mitigating factors which obviously are to be reflected in the penalty to be imposed. The mitigating factors culminate in a submission that this is an appropriate case to discharge the Defendant pursuant to the Crimes Sentencing Procedure Act 1999, s 10. I should mention the mitigating circumstances first, before coming to consider specifically the application under s 10. These matters are not contested by the Prosecutor and can be mentioned in summary fashion.

50. Firstly, there was the early plea of guilty. Secondly, there was an unqualified apology and contrition on the part of the Defendant and Mr Fotaras for what the Prosecutor accepts was an inadvertent offence committed by the Defendant through Mr Fotaras. Thirdly there is the lack of prior convictions. Fourthly, there is the excellent standing in the tourist industry of the way in which the caravan park has been operated by the Defendant through Mr Fotaras and Mrs Fotaras. Next, there is the agreement that the Defendant pay the Prosecutor’s legal costs in these proceedings, agreed in the sum of $30,000. Additionally there is the unqualified co-operation by the Defendant through Mr and Mrs Fotaras with the Council’s investigation of the incident, with their ready compliance with all of the requirements of the clean-up notice which were quite demanding (but justifiable no doubt in the circumstances) leading to expenses in the order of $33,000 in collection and removal of sullage expenses up to 30 June, and the fact that in September 2003 the Defendant’s premises became fully serviced by a reticulated sewerage system at a cost of some $220,000. These are significant mitigating factors, and if there is to be a penalty imposed, obviously substantially reduce the penalty to be imposed.

51. I come at once to the application based upon those mitigating factors, together with the analysis of the offence previously adopted, that in the circumstances the Defendant should be given the benefit of the Court’s discretion under s10 for unconditional discharge. The relevant circumstances for deciding whether to exercise the discretion conferred by s 10 are set out in subsection (3).

Refer to the person’s character, antecedents, health, age, mental condition.

52. In this particular case the Defendant, of course, is a family company without previous conviction operating the family asset, as it were, through the daughter and son-in-law of the shareholders and directors of the family company. That consideration operates in favour of the Defendant in the present case.

53. The next matter is the trivial nature of the offence. This is par (b). An offence of polluting waters under the Protection of the Environment Operations Act is not an offence which can be regarded otherwise than serious. However, because of the breadth of the definition of “pollution” and “waters”, no doubt an offence under s 120 involves a very wide spectrum of activity, the gravity of which may well range from the trivial to the most serious. In the present case the fact that some of the discharge involved the contents of a septic tank system, with very high readings of faecal coliform, leads me to conclude that properly analysed the offence cannot be regarded as trivial in nature.

54. The third item referred to in the subsection is the extenuating circumstances in which the offence was committed. I have dealt with this matter at some length earlier. The extenuating factors advanced by the Defendant are principally two-fold. Firstly, that the pollution incident occurred principally because of the existing insulations. I say principally because that was the way in which the stormwater system operated, collecting sullage from kitchen and bathroom showers and the like, but of course that analysis leaves out of the count the fact that Mr Fotaras unwittingly and inadvertently, but nonetheless producing this effect, penetrated the absorption trench, which penetration is a probable cause of the discharge of the septic tank contents into the creek the subject of this charge.

55. The second matter was the unintentional nature or inadvertence of Mr Fotaras’ act. That I fully accept. However, I do not regard that inadvertence or error as being entirely extenuating. Mr Fotaras, managing a large caravan park with his wife in an obviously responsible manner, no doubt did his best, but there must be substance in what the prosecution has submitted, inasmuch as there is an oblique criticism of Mr Fotaras for not engaging the services of someone better qualified than he to undertake that work. As I say, as the manager of the enterprise he no doubt did his best, but in the circumstances, and in light of the known facts, his best involved an unfortunate result which it appears is primarily the reason for the discharge in the present case of the septic tank contents into the creek. In the circumstances, I do not consider the circumstances in which the offence was committed have been shown to be extenuating to the extent of excusing or explaining or otherwise exculpating the Defendant or Mr Fotaras of responsibility.

56. The other matters which the Court considers appropriate obviously involve the mitigating factors which, as I say, are significant in the present case. However, in my opinion, and in the exercise of the discretion conferred, I am not satisfied that this is a case where the Defendant has justified the exercise of discretion in his favour for his unconditional discharge. Accordingly, I am of the view that it is appropriate in the present case to record a conviction and to impose a sentence which is commensurate with the level of gravity of the offence that I have earlier ascribed, that is an offence which in the circumstances is at the lower end of the spectrum both in terms of objective factors and subjective culpability.

57. The mitigating factors that I have mentioned combine in my opinion to justify a significant reduction of any penalty. I am particularly minded of the fact of the agreement to pay the Prosecutor’s costs in the sum of $30,000 which for a prosecution of this type is not a small amount of costs. I am also aware of the fact that the Defendant has sold the business and presumably is not operating a similar establishment. Certainly Mr Fotaras is no longer employed in such an enterprise. In my view a penalty at the lower end of the spectrum is justified. But for the mitigating circumstances I would impose a fine in the order of $30,000. However the mitigating factors in my view should reduce that penalty to $20,000. I think a 40 per cent discount on the $30,000 is appropriate. That leads to a fine of $18,000. For all the foregoing reasons I make the following orders:

1. The Defendant is convicted of the offence as charged.

2. A penalty of $18,000 is imposed in respect of that conviction.

3. The Defendant is to pay the Prosecutor’s costs in the agreed sum of $30,000.

4. The exhibits, except for Exhibit 1 which is the Statement of Agreed Facts, should be returned.