Natural Resources Access Regulator v Bao Lin Pty Ltd

[2022] NSWLEC 42

Land and Environment Court

New South Wales

Medium Neutral Citation:

Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42

Hearing dates:

28 – 30 June 2021

Date of orders:

13 April 2022

Decision date:

13 April 2022

Jurisdiction:

Class 5

Before:

Robson J

Decision:

See orders at [253]

Catchwords:

ENVIRONMENTAL OFFENCES – Sentence – Carrying out controlled activities on waterfront land without approval – Harm to waterfront land – Determination of objective seriousness – Extent of environmental harm – Moderate range of objective seriousness – Determination of subjective seriousness – Pleas of guilty – Restoration and prevention order – Determination of appropriate penalties

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 1, ss 3A, 21A

Criminal Procedure Act 1986 (NSW), ss 257B, 257G

Fines Act 1996 (NSW), s 122(2)

Marine Estate Management (Management Rules) Regulation 1999 (NSW), cll 6.1, 6.3

Protection of the Environment Administration Act 1991 (NSW), s 6(2)

Water Management Act 2000 (NSW), ss 3, 91E, 345, 353B, 353G, 364A

Water Management (General) Regulation 2018 (NSW), cl 3, Schs 2, 4

Cases Cited:

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

Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9

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

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

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

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

El Jamal v The Queen [2021] NSWCCA 105

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

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

Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312

Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84

Harrison v Perdikaris [2015] NSWLEC 99

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

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

R v Kilic (2016) 259 CLR 256; [2016] HCA 48

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Silva v Ku-ring-gai Council [2009] NSWLEC 1060

Water NSW v Barlow [2019] NSWLEC 30

Category:

Sentence

Parties:

Natural Resources Access Regulator (Prosecutor)
Bao Lin Pty Ltd (ACN 162 411 681) (Defendant)

Representation:

Counsel:
R White (Prosecutor)
B Walker AO SC with P English (Defendant)

Solicitors:
Crown Solicitor’s Office (Prosecutor)
Speed and Stracey Lawyers Pty Limited (Defendant)

File Number(s):

2020/00008673; 2020/00008676; 2020/00008682; 2020/00008683

Publication restriction:

Nil

Judgment

1. The defendant, Bao Lin Pty Ltd (‘Bao Lin’), has pleaded guilty to two offences against s 91E(1) of the Water Management Act 2000 (NSW) (‘WM Act’) (of carrying out controlled activities without controlled activity approvals); and two offences against s 345(2) of the WM Act (of harming waterfront land). The offences concern the unauthorised clearing of vegetation, construction of dams, and associated activities on waterfront land on privately owned property near Tea Gardens on the mid-north coast of New South Wales. A sentence hearing was held over three days and now the Court’s task is to determine and impose appropriate sentences on Bao Lin for the four offences it has committed.

2. The maximum penalty for each offence is $1,100,000. I have determined that Bao Lin should be convicted for each of the four offences and fined $64,600 for the first offence against s 91E(1) of the WM Act; $57,000 for the second offence against s 91E of the WM Act; $64,600 for the first offence against s 345(2) of the WM Act; $64,600 for the second offence against s 345(2) of the WM Act. I have determined that it is appropriate to make two types of additional orders, being first, an order under s 353B of the WM Act, that Bao Lin take steps to prevent, control, abate or mitigate the harm caused to the environment by the commission of the offences; and second, an order under s 353G(1)(a) of the WM Act, that Bao Lin place an advertisement in specified newspapers publicising the sentences of the Court for the commission of the offences.

3. I have also determined that Bao Lin should be ordered to pay the prosecutor’s (Natural Resources Access Regulator (‘NRAR’)) costs of the proceedings for the four offences for which it has been convicted, under s 257B of the Criminal Procedure Act 1986 (NSW) (‘CP Act’), in an amount to be determined under s 257G of the CP Act.

Introduction

4. On 23 October 2020, Bao Lin entered pleas of guilty to the following four offences:

1. That between about 10 January 2016 and 29 June 2016, on a property comprising Lot 102 in DP 1252117, located at 182 Myall Way, Tea Gardens, it carried out a controlled activity in or on waterfront land without holding a controlled activity approval for that activity, contrary to s 91E(1) of the WM Act. The controlled activity involved the removal of vegetation by way of clearing along three unnamed watercourses known as “Creek 1”, “Creek 2”, and “Creek 3” (‘offence one’).

2. That between about 16 December 2015 and 12 February 2019, on a property comprising Lot 102 in DP 1252117, located at 182 Myall Way, Tea Gardens, it carried out a controlled activity in or on waterfront land without holding a controlled activity approval for that activity, contrary to s 91E(1) of the WM Act. The controlled activity involved the removal of vegetation by way of clearing and the deposition of rock and blue metal material near an unnamed watercourse known as “Creek 4” (‘offence two’).

3. That between about 10 January 2016 and 3 November 2017, on a property comprising Lot 102 in DP 1252117, located at 182 Myall Way, Tea Gardens, it harmed waterfront land by constructing a dam in the bed, and for the purposes of that construction, removed vegetation from the bed and banks of an unnamed watercourse known as “Creek 1” (Dam 3) (‘offence three’).

4. That between about 10 January 2016 and 10 January 2020, on a property comprising Lot 102 in DP 1252117, located at 182 Myall Way, Tea Gardens, it harmed waterfront land at Station Creek by constructing a dam in the bed, and for the purposes of that construction, removed vegetation from the bed and banks of Station Creek, a watercourse known as “Creek 5” (Dam 2) (‘offence four’).

Background

5. An understanding of the background facts provides context to consider a number of issues that arise in this sentence hearing. The factual narrative in this section is mostly undisputed and is contained in an agreed statement of facts primarily in relation to liability filed 27 November 2020 (‘SOAF’). Further factual matters are contained in my consideration of the expert evidence and the parties’ submissions later in this judgment.

6. As will be seen, despite the SOAF, there are a number of matters which relate principally to causation and the extent of environmental harm (detailed in a document filed 27 November 2020, styled “Areas in Dispute Requiring Resolution by way of Disputed Facts Hearing”) that were not agreed, one of which relates to the appropriateness of orders pursuant to s 353B of the WM Act sought by the prosecutor for restoration of environmental harm caused by the commission of the offences and prevention of any harm to the environment.

7. Bao Lin was registered as an Australian company on 15 February 2013. At that time, Phillip Dong Fang Lee and Xiao Bei Shi, husband and wife respectively, were the directors of Bao Lin. On 18 December 2018, Mr Lee ceased to be a director and Ms Shi is now the sole director of Bao Lin.

8. The offences concern the unauthorised construction of dams, the clearing of vegetation, and associated activities on natural watercourses on property owned and occupied by Bao Lin known as 182 Myall Way, Tea Gardens (‘premises’). Bao Lin acquired the premises in 2015 and at all material times, Bao Lin has used the premises for the raising of cattle.

9. On the premises there are five watercourses which, although there is a dispute regarding the Strahler stream order designation, are identified in the evidence as Creeks 1 – 5. Creek 1 is an unnamed tributary of Station Creek; Creek 2, a further unnamed tributary of Station Creek and a first order stream; Creek 3, another unnamed tributary of Station Creek; Creek 4 is part of Station Creek; and Creek 5 is also part of Station Creek. Creeks 1 – 5 fall within the definition of “river” in the Dictionary to the WM Act. Each offence took place within 40 metres of the banks of rivers (known as Creeks 1 – 5) and accordingly took place on “waterfront land” as defined in the WM Act.

10. Geographically, Creek 4 lies to the south of the premises and comprises part of Station Creek. As Station Creek meanders north, it meets the embankment of Dam 2, further north of which is Creek 5. To the slight southeast of the Dam 2 embankment was the Dam 3 embankment. The confluence of Creeks 2 and 3 into Creek 1 is to the east of the location where the Dam 3 embankment was previously located. An understanding of the location of the creeks and dams on the premises is gleaned from a marked aerial photograph annexed to this judgment and marked “A”.

11. Offence one relates to the period between about 10 January 2016 and 29 June 2016, during which Bao Lin cleared vegetation on waterfront land within and adjacent to the riparian corridor of each of Creeks 1 – 3, which adversely affected the capacity of the waterfront land to hold or carry water, contrary to s 91E of the WM Act. Aerial imagery depicts vegetation on the waterfront land of Creeks 1 – 3 on 10 January 2016 and further aerial imagery shows that the vegetation had been cleared by 29 June 2016.

12. Offence two relates to the period between about 16 December 2015 and 12 February 2019, during which Bao Lin cleared vegetation on waterfront land within and adjacent to the riparian corridor of Creek 4 and deposited rock and blue metal material near Creek 4, contrary to s 91E of the WM Act. Satellite imagery depicts vegetation on the waterfront land of Creek 4 on 4 October 2015 and further satellite imagery shows that the vegetation had been cleared and rock and blue metal material deposited on the waterfront land at Creek 4 by 12 February 2019. There is a dispute regarding the existence of a dirt track near Creek 4 prior to Bao Lin’s act of clearing vegetation and depositing the rock and blue metal material.

13. Offence three under s 345(2) of the WM Act relates to the period between about 10 January 2016 and 3 November 2017, when at some time between 10 January 2016 and 29 June 2016, Bao Lin constructed Dam 3 in the bed of Creek 1 using course rock material, and removed vegetation, which adversely affected the capacity of the waterfront land to hold or carry water. Aerial imagery (on 10 January 2016) depicts the location where Dam 3 was to be constructed and later (on 29 June 2016) shows the location of Dam 3. Dam 3 has since been removed.

14. Offence four under s 345(2) of the WM Act relates to the period between about 10 January 2016 and 10 January 2020, when at some time between 10 January 2016 and 29 June 2016, Bao Lin cleared vegetation on waterfront land and constructed Dam 2 in the bed of Creek 5 using large boulders, clay and silt, which adversely affected the capacity of the waterfront land to hold or carry water. Aerial imagery on 10 January 2016 depicts the location where Dam 2 was to be constructed and the vegetation on the waterfront land of Creek 5, and aerial imagery on 29 June 2016 shows Dam 2 in location and the vegetation clearing on the waterfront land within and adjacent to the riparian corridor of Creek 5.

15. Bao Lin did not hold any controlled activity approvals for the controlled activities (including vegetation removal, soil disturbance and deposition of material) that took place at Creeks 1 – 5 during the relevant periods. Further, except for an approval for the construction and use of a spillway, Bao Lin did not hold any water supply work approvals for the works undertaken at, or the use of, Dam 2 or Dam 3 during the relevant periods. There is dispute as to the nature and extent of the construction works attributable to Bao Lin at the locations of Dam 2 and Dam 3 and the composition of materials forming the Dam 2 embankment.

16. Between 2016 and 2019 there were three main regulators who investigated activities undertaken at the premises, being the NSW Department of Primary Industries (‘DPI’) – Water; DPI – Fisheries and Water NSW. The prosecutor, the NRAR, became involved in the investigation in 2018. For concision, unless otherwise stated, the term ‘regulator’ is used collectively in this narrative.

17. On 14 November 2016, Jack Lin, Mr Lee’s nephew, reported to the regulator (officers of DPI – Fisheries and DPI – Water) that Bao Lin had undertaken potentially unlawful works on waterfront land at the premises. Various inspections of the premises by investigators from DPI – Fisheries, DPI – Water, Water NSW and the prosecutor followed.

18. An inspection by officers of the regulator undertaken on 21 April 2017 revealed two dams on the premises being Dam 3 at Creek 1 and Dam 2 at Creek 5 as well as a pre-existing dam (referred to as Dam 1) on the premises not the subject of these proceedings.

19. A further inspection of the premises took place on 19 May 2017 with Mr Lee, then a director of Bao Lin, and Mr Lin; and, on 9 June 2017, a record of interview was undertaken with Mr Chen, then manager of the premises, and Mr Lee. During the interview, an officer of the regulator gave Mr Lee a draft direction pursuant to s 329(2) of the WM Act, to remove three dams (noting that the present charges being offence four and offence three, only relate to Dam 2 and Dam 3 respectively).

20. During the interview, Mr Chen explained that a flood event at the premises in May 2016 had caused Dam 3 to be partially washed away and that dead trees were “flooded up against the small dam”, causing water to build up. Without the knowledge of, or instruction from, Bao Lin, Mr Chen instructed workers to extract material from Dam 3 and to place it next to, and on top of, the dam wall; and in June 2016, following a further rain event, he placed rock materials on the Dam 3 wall to reduce erosion and sedimentation runoff. In late May 2016 (following the flood events), Mr Chen arranged for workers to increase the height of the wall at Dam 2 by half a metre using basalt rocks, and to “generally tidy up”. Mr Chen stated that he was not aware at that time that a stop work order was in place in relation to all works on Station Creek and its tributaries.

21. On 2 August 2017, officers of the regulator carried out a further inspection at the premises and observed that Dam 2 and Dam 3 remained at the premises.

22. On 27 September 2017, the regulator (at that instance Water NSW) issued a direction pursuant to s 329(2) of the WM Act (‘direction’) which recorded that three water management works (dams) had been constructed and were being used on the premises without a water supply work approval, and directed Bao Lin to: first, completely remove the dams; second, not to place material which had constituted the dams in, on, or under waterfront land; third, to implement and maintain erosion and sediment control measures to prevent sediment and dirty water entering the waterway; and fourth, to exercise due diligence when undertaking those works to ensure that no more than minimum harm is done to any water source or waterfront land during, or as a result of, the directed works.

23. In October and November 2017, Bao Lin engaged contractors to carry out the works to remove Dam 3 in compliance with the direction.

24. On 7 November 2017, the regulator issued Bao Lin with a direction pursuant to s 333(2) of the WM Act (which was amended on 30 November 2017 after an inspection at the premises on 22 November 2017) (‘amended direction’) which recorded that: Bao Lin and others (including Mr Lee and Ms Shi) had carried out a controlled activity (being the clearing of vegetation and soil excavation works) on three unnamed watercourses; that soil and sediment, exposed by the controlled activity, “flow” from the three unnamed watercourses into Station Creek; and this was having an adverse effect on the “water source”, and was causing harm to waterfront land on the three unnamed watercourses and Station Creek.

25. The amended direction required Bao Lin to undertake specified works including installation and maintenance of erosion and sediment control coir logs above the flow line of the three unnamed watercourses and installation of silt fencing; planting and maintenance of local native grasses; installation of livestock proof fencing from the high bank of all three watercourses; and the provision of specified restoration and rehabilitation documentation.

26. On 13 February 2018, officers of the regulator conducted a further inspection of the premises to determine whether works had been undertaken in accordance with the amended direction and recorded that jute matting and planting had been placed in the area of Dam 3, and that fences had been installed at Creeks 1 – 3.

27. At a further inspection on 31 May 2018, officers of the regulator observed that works had been carried out at the site of Dam 2 in response to the amended direction, including the addition of jute matting, plantings, and mulch in the area of Dam 2. The wall of Dam 2 had also been lowered (in partial compliance with the amended direction).

28. On 8 June 2018, Mr Lin emailed an officer of the regulator requesting confirmation from the regulator that Bao Lin had complied with the 27 September 2017 direction.

29. On 12 June 2018, the regulator (in reply to Mr Lin) informed Mr Lin by email that the regulator still considered Dam 2 and Dam 3 to be unauthorised and that approvals needed to be obtained for Dam 2 and Dam 3, otherwise the regulator would issue a direction under s 329 of the WM Act for their demolition, removal or modification.

30. On 11 February 2019, the regulator issued a notice pursuant to s 338A(2) of the WM Act (‘notice’) to Bao Lin requiring information and records in relation to Dam 2 and Dam 3 and controlled activities undertaken at the premises. A further inspection was undertaken at the premises on 14 February 2019, when officers of the regulator observed: vegetation along the beds and banks of Creeks 1 – 3; dead woody debris in sections of the Creek 3 bed; vegetation and examples of regrowth along sections of waterfront land of Creek 4; rock, gravel and crushed rock material deposited at Creek 4; a relatively large body of water clear of vegetation extending upstream of the wall of Dam 2 along Creek 5; the banks of Creek 5 lined with a narrow belt of living trees; no pipes or culverts within the wall of Dam 2; and that the wall of Dam 2 was located on waterfront land within 40m of the bed of Station Creek.

31. By letter dated 14 March 2019, Bao Lin responded to the notice stating that the works at Dam 2 and Dam 3, and Creeks 1 – 4 had been undertaken in response to a storm and flooding event and suggested that the works were carried out under a direction given by an officer of the regulator in 2016 and based on information provided by DPI’s website. Bao Lin also stated that the works had been carried out by Mr Chen, in response to rainfall events without Mr Lee’s authorisation.

32. On 11 July 2019, officers of the regulator conducted an interview with Mr Lin. Mr Lin stated that: Bao Lin owned the premises; he was an employee of Tea Garden Farms Pty Ltd (‘Tea Garden Farms’); Bao Lin was not an operational company; the operations on the premises were run by employees of Tea Garden Farms; Mr Lee was also a company director of Tea Garden Farms; and, employees of Tea Garden Farms from time to time worked at the premises.

5. On 12 July 2019, officers of the regulator conducted an interview pursuant to s 338B of the WM Act with Mr Lee. Mr Lee stated that: the works were undertaken following a “huge flood in 2016” which “happened abruptly” and “destroyed the farm”; the works were carried out for “emergency purposes”; and the dams were widened using machinery similar to a “digger or backhoe”. Mr Lee confirmed that since 2016 he had known that approval was required to undertake works within 40m of waterfront land; however, he denied that he had any knowledge of Dam 2 and Dam 3 at the time of their construction, stating that he was “unwell” from January 2016 to June 2016 and did not know of the works until later.

The legislative framework for the offences committed by Bao Lin

34. The defendant pleaded guilty to two offences against s 91E(1) and two offences against s 345(2) of the WM Act.

35. Section 91E(1) of the WM Act provides:

(1)   A person—

(a)   who carries out a controlled activity in, on or under waterfront land, and

(b)   who does not hold a controlled activity approval for that activity,

is guilty of an offence.

…

36. A “controlled activity” is defined in the Dictionary to the WM Act to include:

…

(b)   the removal of material … or vegetation from land, whether by way of excavation or otherwise, or

(c)   the deposition of material (whether or not extractive material) on land, whether by way of landfill operations or otherwise, or

…

37. “Waterfront land” is defined in the Dictionary to the WM Act to include:

(a)   the bed of any river, together with any land lying between the bed of the river and a line drawn parallel to, and the prescribed distance inland of, the highest bank of the river, or

…

where the prescribed distance is 40 metres or (if the regulations prescribe a lesser distance, either generally or in relation to a particular location or class of locations) that lesser distance. ...

38. The offences created by s 91E are strict liability offences which do not require proof of a mental element. In pleading guilty to the offences, Bao Lin has admitted the following elements, which constitute the offences:

1. It carried out a controlled activity

2. on waterfront land, and

3. it did not hold a controlled activity approval for that activity.

39. Section 345 of the WM Act provides:

…

(2)   A person who harms an aquifer or waterfront land is guilty of an offence.

Tier 2 penalty.

…

(4)   In this section, harm, in relation to an aquifer or waterfront land, means any act or omission that adversely affects, the capacity of the aquifer or waterfront land to hold or carry water.

40. The offences created by s 345(2) of the WM Act are also strict liability offences which do not require proof of a mental element. In pleading guilty to the offences, Bao Lin has admitted the following elements, which constitute the offences:

1. it harmed

2. waterfront land.

Evidence

41. The prosecutor called expert evidence from Dr Paul Frazier – hydrologist; Dr John Hunter – botanist and landscape ecologist; Ms Wendy Hawes – terrestrial ecologist; Dr Ivor Growns – aquatic ecologist; Mr Michael Sharpin – geologist and engineer; and Mr Ry Stone – geologist and civil and geotechnical engineer; and read the affidavit of Alexander John Bowlay, a senior investigator with NRAR. Each of Dr Frazier, Dr Hunter, Ms Hawes, Dr Growns and Mr Sharpin gave oral evidence.

42. Bao Lin called expert evidence from Dr Daniel Martens – civil, environmental and geotechnical engineer; and Dr David Robertson – ecologist. Bao Lin also read the affidavits of Hugh Robert Scott and Caitlin Marie Ryan, solicitors for Bao Lin.

Sentencing principles

43. In my consideration of sentencing principles to follow, I am conscious that although the sentencing hearing in relation to all offences proceeded concurrently, Bao Lin is to be sentenced for four separate offences. For concision, in discussing the principles and the approach of the Court to sentencing for environmental offences, I do not separate the offences, however, I remain conscious that there are four separate courses of conduct arising under two different sections of the WM Act.

44. Bao Lin is to be sentenced in accordance with Div 1 of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’). In fixing the appropriate penalty for the offences, s 3A of the Sentencing Act sets out the purposes of sentencing relevant to the offences and the offender. Section 3A relevantly states that:

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,

…

(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.

45. It is accepted that the purposes of punishment, denunciation and retribution are important in sentencing for environmental offences because there is the need for the Court, through the sentence it imposes, to denounce the conduct, to hold the offender accountable for its actions, and to ensure the offender is adequately punished. The sentence should accord with the general moral sense of the community in relation to the offence in the circumstances of the case: Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205 (‘Clarence Valley’) at [91]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [168].

46. Section 21A of the Sentencing Act identifies matters the Court must take into account when determining the appropriate sentence for an offender, including relevant factors in aggravation under s 21A(2) and relevant factors in mitigation under s 21A(3). Factors relevant to the facts of this case 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—

…

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

…

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),

…

…

47. For offences pursuant to the WM Act, the Court is also required to consider the matters set out in s 364A(1) of the WM Act which relevantly provides:

(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)—

…

(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,

…

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

…

…

48. Pursuant to s 364A(2) of the WM Act, the Court may also take into account any other matters it considers relevant.

49. Despite the pleas of guilty to each offence, the prosecutor still carries the onus of proving beyond reasonable doubt any aggravating factors for the purpose of sentencing; and for mitigating factors, the onus lies upon the offender on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].

50. The sentences that are to be imposed must be proportionate to both the objective seriousness or gravity of the offences committed by Bao Lin and the personal or subjective circumstances of Bao Lin as the offender. An instinctive synthesis method is to be applied, requiring the Court to identify the facts relevant to the sentences and to weigh their significance to arrive at the appropriate sentences.

Objective seriousness of the offences

51. The objective circumstances of relevance to the offences are: the nature of the offences; the maximum penalty; the environmental harm; the foreseeability of the risk of environmental harm; the practical measures to prevent environmental harm; the control over the causes giving rise to the offences; and the offender’s intentions in committing the offences.

The nature of the offences

52. The four offences arise under two sections of the WM Act. The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision (contravention of which constitutes the offence), the purpose of the statutory provision (understood according to consideration of the statute’s objects), and the provision’s place in the statutory scheme.

53. The relevant objects of the WM Act are stated in s 3 as follows:

… 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

…

(f)    to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna,

…

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

54. The principles of ecologically sustainable development (‘ESD’) are defined in the Dictionary to the WM Act as being the principles of ESD described in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW). These include the precautionary principle; inter-generational equity; conservation of biological diversity and ecological integrity; and improved valuation, pricing, and incentive mechanisms (including the “polluter pays” principle).

55. The regulatory mechanisms to achieve these objects involve the control of activities on waterfront land (including the bed and banks of rivers) that are likely to adversely affect water sources, their associated ecosystems, ecological processes, biological diversity, and their water quality.

56. Relevant to the offences before the Court, the controlling of activities is achieved by prohibiting the carrying out of controlled activities on waterfront land but allowing for that prohibition to be relaxed by granting various kinds of approvals, including a controlled activity approval; and by prohibiting conduct that would harm waterfront land.

57. The application for and grant of a controlled activity approval requires assessment of the likely environmental impacts of the controlled activity and imposition of conditions relating to the protection of the environment. As stated by Preston CJ of LEC in Harrison v Perdikaris [2015] NSWLEC 99 (‘Harrison v Perdikaris’) at [45], the statutory provisions requiring prior environmental impact assessment and approval of controlled activities are “linchpins of the WM Act” and an offence against such provisions thwarts the attainment of the objects of the WM Act, including the principles of ESD.

58. There is a need to uphold the regulatory system under the WM Act. The system depends on persons, first, taking steps to ascertain when approval is required to carry out activities, including controlled activities on waterfront land; second, making an application in the appropriate form and manner (including an environmental impact assessment of the activity) and obtaining any approval so required before carrying out the activity; and third, complying with the terms and conditions of any approval granted in carrying out the activity: Harrison v Perdikaris at [46].

59. In relation to each of offence one and offence two, I find that the activities of Bao Lin, in carrying out the controlled activities on waterfront land at the premises without first applying for and obtaining a controlled activity approval (or any other approval) authorising the activities, sought to avoid the regulatory scheme and its beneficial protection of water sources and waterfront land; offended against the legislative objective expressed in the statutory offence; and, also significantly undermined the attainment of the objects of the WM Act.

60. Similarly, I find that the conduct involved in each of offence three and offence four (of constructing the dams, together with the associated clearing of vegetation, which clearly harmed waterfront land) was, in each case, conduct which also undermined the objects of the WM Act. In the above circumstances, the commission of each of the offences is objectively serious.

Maximum penalties

61. The maximum penalty for each of the offences is $1,100,000. The maximum penalty reflects the public expression by Parliament of the seriousness of the offence (Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698); and I consider that Bao Lin’s offending in each offence, should be considered in this light. The maximum penalty also provides a “sentencing yardstick” for the case before the Court: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]; Clarence Valley at [40]. The sentencing court is “to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category, properly so called”: R v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [19].

Extent of harm

62. 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 offences is relevant to the objective seriousness of the offences: s 364A(1)(c) of the WM Act and s 21A(2)(g) of the Sentencing Act. The word “likely” means “a real and not remote chance, rather than more probable than not (in the sense of being more than a 50% chance)”: Harrison v Perdikaris at [68].

63. The extent of the harm caused or likely to be caused by the commission of the offences is not agreed between the parties and the Court received extensive evidence in relation to environmental harm and, consequently, the appropriateness of restoration and prevention orders proposed by each party under s 353B of the WM Act (‘prosecutor’s proposed remediation works’). As noted at [6] above, Bao Lin identifies the following eight (sometimes overlapping) matters, some of which relate to discrete offences, as “areas in dispute” which are reflective of this primary dispute:

1. The Strahler stream order designation for Creeks 1, 3, 4 and 5;

2. The nature and extent of construction works attributable to Bao Lin at the locations of Dam 2 and Dam 3 (in relation to offence three and offence four);

3. The existence of a dirt/gravel track near Creek 4, prior to Bao Lin’s act of clearing vegetation and depositing rock and blue metal material at that location (in relation to offence two);

4. The cross-sectional composition of the materials forming the Dam 2 embankment (in relation to offence four);

5. The extent of the harm caused or likely to be caused to the environment by the commission of the offences (in relation to all offences);

6. Whether or not the land on which the offences were committed was within the boundaries of the Port Stephens – Great Lakes Marine Park (‘Marine Park’) and the North Arm Cove Sanctuary Zone (‘Sanctuary Zone’), or adjacent to those boundaries; and

7. Whether the Google earth aerial images dated 10 January 2016 show that there was no dam on Creek 5 and no dam on Creek 1; and

8. The practical measures and necessary steps that should be taken by Bao Lin to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offences or, to make good any resulting environmental damage, or to prevent the recurrence of the offences.

64. The consideration of the primary dispute which encompasses the above matters necessitates close consideration of the expert evidence marshalled.

Prosecutor’s evidence

65. Dr Frazier, a hydrologist, having considered aerial photography and satellite imagery, identifies that the clearing of vegetation occurred between 10 January 2016 and 29 June 2016 (primarily in relation to offence one) and involved the removal of 1.36ha of riparian vegetation along 619m of Creek 1; 0.84ha of riparian vegetation along 660m of Creek 2; and 1.27ha of riparian vegetation along 722m of Creek 3.

66. Dr Frazier also identifies the removal of 2.01ha of vegetation within the inundation area of Dam 2 by clearing and/or inundation; 1.59ha of vegetation within the inundation area of Dam 3 by clearing and/or inundation; and 1.12ha of riparian vegetation along Creek 5 either by clearing and/or inundation.

67. Dr Frazier also identifies the removal of a further 0.29ha of riparian vegetation along Creek 4 and the deposition of blue metal material between October 2015 and October 2016 with further vegetation clearing occurring between April and September 2018 and continuing up to February 2019.

68. In respect of Dam 2, Dr Frazier opines that a total area of 11,193m² of in-channel and riparian vegetation was cleared; a dam wall was created to impound water in Dam 2; and that the maximum volume of Dam 2 when full would be between 38,000m³ – 46,000m³.

69. Dr Frazier opines that the construction (and operation) of Dam 2 has changed the natural flow regime of the creek system and impacted, and continues to impact, on downstream and upstream exchange within the system including tidal exchange.

70. In respect of Dam 2, Dr Frazier opines that the works capture and impound water upstream of the dam wall, with the effect that the former channel features and habitats have been inundated; and that the natural processes of erosion and deposition have been altered, as inundation creates a still water or pond environment where a flowing environment was previously present.

71. Dr Frazier opines that the works (through the capture of water upstream) have reduced the flow downstream of the Dam 2 wall, and reduced the capacity of the waterfront land to hold and carry water; and that those reduced flows will reduce the ability of natural geomorphic processes to continue to form the creek and estuarine environments. Further, during construction of Dam 2 and the removal of vegetation, bare soil would have been exposed and the surface roughness of the waterfront land would have decreased the capacity of the waterfront land to hold water until the dam was operational and the area was inundated.

72. In respect of Dam 3, Dr Frazier opines that where the dam wall has been removed (having been decommissioned by 7 April 2018), there is evidence of rehabilitation works within the channel bed and banks, including revegetation, and that it is likely that the current system has a similar capacity to carry and hold water as it did prior to the works. He notes that the area of impoundment was 15,904m² with a potential impoundment volume in the range of 21,500m³ – 26,200m³. He opines that the same impacts described above at [69]-[71] in relation to Dam 2 also apply to Dam 3; and notes that it is difficult to assess the impacts of the removal of Dam 3.

65. In cross-examination, Dr Frazier accepted that in estimating the area of land that was cleared and vegetation removed, he relied upon photographic interpretation and that his inference, that wherever land had been inundated, the same area of land had previously contained vegetation, could not be conclusive (although he did not accept it was subject to considerable doubt). Despite this, Dr Frazier maintained his view that the aerial images he had considered before the inundation indicated that there was vegetation in those areas, and he had mapped those specific areas. Although he accepted that he could only map crown cover at the time (being the top layer of vegetation), he opined that such cover was consistent across the entire area.

66. In relation to his determination of the volume of water impounded by Dam 3, Dr Frazier determined the volume of impoundment using the area and average depth of the trapped water, and the depth of impoundment was created from a digital elevation model. He accepted that the basin has a non-level bottom; that he treated the absence of visual/photographic evidence of water ponding before the construction of Dam 2 to infer an absence of anything functioning as a dam or weir; and that the inference that the absence of water ponding supports an absence of a dam, is the subject of doubt.

67. In relation to the Strahler stream order designation (a matter of dispute between the experts), Dr Frazier accepted that a watercourse with no other watercourse flowing into it, would be a first order watercourse and that he had not considered that the spillway of Dam 1 may have prevented flow into Creek 5, such that the classification of Creek 5 (as a third order watercourse) may in fact be different, although he was not sure whether the modification of flow from Dam 1 would change the classification.

68. In relation to the boundaries of the Marine Park and the Sanctuary Zone, Dr Frazier undertook a “graphic overlay”, taking Map 25 of the Marine Estate Management (Management Rules) Regulation 1999 (NSW) (‘MEM Regulation’) and laying it over the topographic map of the watercourses. He did not accept that the graphic exercise he undertook was not capable of describing the extent and location of “the tidal waters and tidal lands to the mean high water mark” as provided for in cl 6.3 of the MEM Regulation. He accepted that this exercise would only describe the extent and location of the tidal waters and tidal lands if one assumed that Map 25 was accurate to be a map of the mean high water mark; and that he did not calibrate the accuracy of Map 25.

69. Dr Growns, an aquatic ecologist, while noting that he could not determine exactly what animal and plant species (referred to collectively as biota) would have existed in each of the creeks before the controlled activities, opines that the biota of each of Creeks 1, 2, 3 and 5 would have been similar because of the similarity of catchment areas, slope, and substratum and that the biota would have been mainly invertebrates with few freshwater fish species. Dr Growns opines that Creek 4 would have been different because it forms part of an estuary and was likely to be more saline and tidal; would have contained invertebrates; and a greater number of fish and plant species compared to the other four creeks.

70. In relation to harm, with respect to Creeks 1, 2 and 3, as a result of Bao Lin’s conduct, Dr Growns, accepting Dr Frazier’s remote sensing evidence in relation to tree removal, opines that (the controlled activity of) removing trees would have caused ecological harm by increasing light penetration to the stream beds (and thereby increasing water temperatures and causing biota physiological stress); created physical changes to the stream beds; and increased sedimentation. Assuming heavy equipment was used to remove the trees, Dr Growns opines that this would have created physical changes including damage to natural habitats of biota, as the removal of tree roots would have disrupted the physical form of streambeds and instream habitats; and the driving of machinery on stream beds (assumed to be wet or moist and malleable) would have compacted and damaged the creek bed). He also opines that the removal of trees would have increased the deposition of sediment within the stream bed and this increased sedimentation would have caused ecological harm by the decrease in oxygen exchange between open water and underlying sediments with a direct physical effect of clogging the gills of fish and invertebrates and other body parts of biota. Dr Growns also notes that the removal of trees would have facilitated the increased presence of cows and thereby caused damage to the physical form of the stream bed and waterfront land by hoof prints (known as pugging).

71. In relation to harm with respect to Creek 4, Dr Growns opines that in the conduct of the controlled activity alongside Creek 4, being the removal of vegetation and the deposition of rock and blue metal material, sediment would have been delivered to Creek 4 due to the slope and proximity of a nearby road and direct access of the road to the creek, with the likely effect of clogging the gills and other body parts of biota (thereby causing ecological harm).

72. In relation to Dam 3, Dr Growns, accepting Dr Frazier’s remote sensing evidence in relation to dam construction, opines that the installation of Dam 3 caused inundation of the channels of Creeks 1, 2 and 3 immediately upstream of the dam wall; this would have changed the habitat of biota living there from a flowing water habitat (which he assumed to have been the case) to a still water habitat; and this would have caused the loss of flowing water species because biota that live in flowing water habitats generally cannot survive in still water habitats as they lack the necessary biological requirements, thereby causing environmental harm. As noted below, Dr Robertson agrees, that Dam 3 would have had some impact on biota whilst the dam was in place, although notes that several taxa can be found in both still and flowing water aquatic systems.

73. In relation to Dam 2, Dr Growns opines, on the basis of Dr Frazier’s remote sensing evidence in relation to dam construction, his own site inspection, and his consideration of Dr Frazier’s photography, that the installation of Dam 2 caused inundation of the channel of Creek 5 immediately upstream of the dam wall and would have changed the habitats of biota living there from a flowing water habitat to a still water habitat (as conceded by Dr Robertson) which, because flowing water biota generally cannot survive in still water habitats, would have resulted in a loss of flowing water species in comparison to the period prior to the installation of Dam 2, thereby causing environmental harm.

74. In response to Dr Martens’ evidence (noted below) regarding potential pollution risks, aquatic fauna risks, and increased tidal influence associated with the prosecutor’s proposed remediation works (involving the removal of Dam 2 and the reconstruction of a channel of “even grade” between the tidal zone and the land below Dam 2), Dr Growns accepts that there would be some water pollution risks because releasing water from Dam 2 would likely cause water quality issues for the downstream environment in terms of sediment and decaying organic matter, and the removal of Dam 2 would require an experienced environmental contractor and oversight from a suitably qualified environmental consultant. Dr Growns also agrees with Dr Martens’ concern regarding aquatic fauna risks if Dam 2 is dewatered such that the colonisation of Dam 2 since the works by a range of freshwater habitat and fringing habitat species, may be lost. However, Dr Growns maintains that biota currently inhabiting the land do not constitute the biota that would have been naturally present in Creek 5 prior to the construction of Dam 2.

75. Dr Growns also agrees with Dr Martens’ concerns that the removal of the current bedrock outcropping of Dam 2 and regrading the channel will increase the upstream tidal/saline influence, disrupt vegetation and soil processes, and that it would be impossible to establish a freshwater riparian corridor ecosystem on the basis that it would result in a lower gradient. Despite these matters, Dr Growns does not accept Dr Martens’ alternative remediation which includes retaining the dam wall and not regrading the downstream channel, because Dr Growns considers that the presence of the dam wall is causing environmental harm and retaining it will continue that harm.

76. In cross-examination, Dr Growns accepted that an understanding of biota that might have been affected would involve an understanding of the extent of flows in the creeks both temporally and spatially. He also accepted that he had not conducted rainfall run-off modelling to determine the actual flows in the watercourse(s) before the works the subject of the proceedings had been undertaken.

77. Dr Growns agreed that in considering the harm caused by the controlled activities in Creeks 1 – 3, he assumed the remote sensing evidence in relation to the removal of trees provided by Dr Frazier was correct, and assumed that heavy machinery or heavy equipment was used to undertake the removal of trees. He maintained his view that, in relation to Creek 4, during the removal of vegetation, it was highly likely that sediment would have been delivered to Creek 4 because of the proximity of the road to the creek channel, although he could not opine as to the degree of sedimentation having not taken any measurements.

78. In relation to the extent of tidal reach, he assumed that the only creek that would have been tidal was Creek 4, and he did not assume that Creeks 1 – 3 or Creek 5 had tidal flow before the works in question; and he did not consider that Creek 5 had changed from a saltwater to a freshwater environment. He accepted that he did no modelling to reconstruct the situation in relation to tidal reach before Dam 2 was built.

79. Dr Growns conceded that he had made an assumption regarding whether the works had or had not materially increased the scope for cattle damage by way of pugging, and that it was beyond his capacity to observe the physical configuration (in terms of density and robustness) of trees at Creeks 1 – 3 because the trees had been removed by the time of his site inspection. He also agreed that the erection of cattle-proof fencing along the banks of the watercourses would be an effective way of reducing or even eliminating the problem of cattle pugging.

80. Dr Hunter, a botanist and landscape ecologist, gives evidence as to the type and extent of vegetation including native vegetation and threatened ecological communities that were likely cleared as a result of the conduct involved in each offence. Utilising observations made during a site visit, satellite, and aerial imagery, he mapped vegetation types and focused on determining whether remaining vegetation adjoining the cleared areas constituted native vegetation; and whether the structure and community formed by the flora species constituted threatened ecological communities listed under the Biodiversity Conservation Act 2016 (NSW) (‘BC Act’). He opines that the remnant vegetation at the site of the offences comprised of riparian vegetation including Coastal Saltmarsh, Swamp Sclerophyll Forest, and Swamp Oak Floodplain Forest. He created two maps of threatened remnant vegetation within the premises – a map showing the distribution of threatened ecological communities and a map showing what areas of the threatened ecological communities were impacted. He estimated that prior to the clearing activities the subject of the charges, 13.5ha of Swamp Sclerophyll Forest existed and that, as a result of the clearing activities between April 2016 and February 2019, 6.6ha had been removed.

81. In cross-examination, Dr Hunter accepted that he had visited the premises after the clearing had taken place and, by considering the nearest remaining intact vegetation and drawing upon his experience, he engaged in “extrapolation” to determine the nature of the vegetation that had likely been cleared. He accepted that he had considered the “[t]hreatened species for which vegetation cleared on [the premises] would have provided habitat” in a draft report prepared by Ms Hawes based upon the vegetation Dr Hunter recorded as likely to be in situ prior to the clearing. He accepted that the “precautionary approach involves being over-inclusive for safety[’s] sake” and that an area’s provision of habitat for fauna is based on two inferences, first, whether certain flora is likely to be at a location; and second, whether a fauna species utilises the flora. He accepted that he is not a fauna expert; and deferred to Ms Hawes’ compilation of species from the BioNet Atlas (by reference to a 10km radius from the area cleared) and to her opinion in relation to there being terrestrial threatened species for which the vegetation removed was likely to have provided habitat.

82. Regarding flora species, and the time and equipment constraints of his survey, Dr Hunter stated that although flora species are fairly described as “sedentary”, they can be “ephemeral or seasonal” and may only be found at different points in the year as many species could be in the seed bank, such that he could not rule out whether species were at the site of the works or not prior to the clearing.

83. Ms Hawes, a terrestrial ecologist, gives evidence as to the actual and likely harm caused to the environment by the clearing of vegetation and also identifies a remediation strategy having regard to the extent of vegetation cleared from waterfront land alongside Creeks 1 – 5, and responds to Dr Martens’ assessment of the risks associated with the prosecutor’s proposed remediation works. She relies upon the vegetation mapping provided by Dr Hunter and the extent of the respective clearings of vegetation determined by Dr Frazier.

84. Accepting Dr Hunter’s area calculations, in particular regarding the removal of Swamp Sclerophyll Forest, Ms Hawes opines that this removal has materially reduced the size of the local occurrence of Swamp Sclerophyll Forest (an endangered ecological community) by 44%, which she considers is a significant loss for a vegetation community that has less than 30% of its original pre-European distribution remaining in NSW; and that the clearing would have compromised the resilience, genetic diversity, and potentially the regenerative capacity of this endangered community. These impacts result from a reduced soil seed bank; exacerbated habitat fragmentation; changed water flows; degradation from increased potential for weed invasion; changed abiotic factors; and potential chemical drift from adjoining land use, which will all have a negative impact on the continued survival of Swamp Sclerophyll Forest.

85. Having consulted various threatened species databases to identify known locations of terrestrial threatened species and ecological communities within, or within close proximity to, the areas cleared, Ms Hawes opines that the clearing of approximately 8.97ha of relatively intact native vegetation in moderate to good condition has impacted on threatened terrestrial flora and fauna species populations. She opines that clearing vegetation from waterfront land: first, is likely to reduce the ability of certain flora species to persist within smaller areas of native vegetation on waterfront land that now remain on the premises; second, has removed an area of habitat and resources the land would otherwise provide including food, shelter, nesting/breeding and/or roosting sites for various vulnerable and endangered fauna species; and third, has reduced landscape connectivity on the premises and in the locality required for various mobile species (including medium to large birds, mammals and reptiles) for movement, because the vegetation cleared formed part of a series of vegetated waterfront corridors that connected larger landscape remnants to the west and south of the premises with remnant vegetation to the north and east.

86. Ms Hawes notes that the clearing of native vegetation is recognised as a major factor contributing to the loss of biological diversity and is a “key threatening process” declared under the BC Act, the Fisheries Management Act 1994 (NSW), and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) because it is one of a series of actions which are considered to pose serious threats to flora, fauna, and their habitats. She also opines that actions which alter natural flow regimes of rivers and streams also constitute key threatening processes, including the construction and operation of instream structures (such as dams) that modify natural flows. In these circumstances, the installation of Dam 2 and Dam 3 materially altered the natural flow regimes of Creeks 1 – 5, and the flow regimes have in turn impacted upon downstream ecosystems (including those within the Sanctuary Zone).

87. Ms Hawes notes that the Sanctuary Zone is defined by “Map 25” in the MEM Regulation. She further notes that the purpose of the Marine Park includes the conservation of biological diversity and the maintenance of ecosystem integrity and ecosystem function, with the secondary purpose being to provide for the management and use of resources in the Marine Park in a manner that is consistent the with principles of ESD. Based upon the assumption that Dam 2 and part of Creek 5 fall within the Sanctuary Zone (which is a matter in issue in these proceedings), she opines that the clearing and inundation of waterfront vegetation along Creek 5 as a result of the construction of Dam 2 is not consistent with the stated purpose of the Marine Park and/or the Sanctuary Zone.

88. Ms Hawes opines that an appropriate remediation strategy would involve the reinstatement of the natural flow regimes along Creeks 1 – 5 and the revegetation of waterfront land impacted by the clearing and/or inundation. This will involve the total removal of instream obstructions (primarily Dam 2); the use of appropriate dewatering methods, soil erosion and sediment control measures; the reshaping of streambanks; and replanting with endemic native species consistent with the original vegetation communities removed. She notes that the removal of Dam 2 will require major excavation works, and the removal of structures will require detailed dewatering and other management strategies.

89. In relation to Dr Martens’ assessment of the risks associated with the prosecutor’s proposed remediation works and his alternative remediation proposal, Ms Hawes does not accept that the installation of Dam 2 has “significantly increased the extent of waterfront land” as she maintains that waterfront land is not defined as land associated with a man-made dam. She accepts Dr Martens’ view that prior to the works relating to Dam 2, the watercourse would have likely consisted of an intermittently flowing, relatively narrow, channel. However, she opines that this was the natural configuration of the watercourse prior to the installation of Dam 2; that the flora and fauna associated with that natural watercourse would have been adapted to the narrow channel and intermittent flows; and that the flora and fauna would not be adapted to a “large deep expanse of still water upstream of the dam wall and the much reduced and more intermittent flows in the downstream environment”. She opines that the potential to increase the riparian corridor upstream, as proffered to be an environmental benefit by Dr Martens, has to be considered in the context of the significantly reduced and altered riparian corridor downstream.

90. While Ms Hawes does not accept Dr Martens’ alternative proposal for remediation, she accepts that if Dam 2 is retained, there is a significantly reduced risk of pollution from dewatering, there would be no generation of waste materials, and no maintenance/monitoring requirements. She opines that, given the ongoing environmental harm to the aquatic and riparian habitat as a result of the construction of Dam 2, she does not consider the technical challenges associated with the dam’s removal justify retaining the instream structure as suggested by Dr Martens.

65. In cross-examination, Ms Hawes accepted that she had assumed that Dam 2 (and part of Creek 5) falls within the Sanctuary Zone and that she had asserted that tidal influence was present prior to the construction of Dam 2 on that assumption, despite not having observed the extent of tidal flow in the vicinity. Ms Hawes also accepted that she had taken a precautionary approach and that although certain species had not been found on the premises, that did not mean that they were not present; and she accepted that her precautionary approach is one that is “over-inclusive for safety’s sake”.

66. Ms Hawes indicated that in preparing her evidence she used two databases – the BioNet Atlas and the Protected Matters Search Tool; and agreed that the data in the BioNet Atlas allows the correlation of vegetation and fauna by respective habitats, and that she undertook this by considering species within a 10km radius from the site of the cleared vegetation. She accepted that she did not have data of fauna observations (or surveys) specific to the cleared areas, and she engaged in a process of extrapolation applying the precautionary approach to prepare her table styled “[t]hreatened species for which vegetation cleared on [the premises] would have provided habitat”.

67. Ms Hawes confirmed that she relied upon the opinions and evidence of Dr Frazier and Dr Hunter, noting that she understood Dr Hunter had considered threatened ecological communities (or endangered ecological communities); that Dr Hunter did not regard the Swamp Oak Floodplain Forest as a vegetation community impacted by the clearing; and that Dr Robertson had concluded that the only recorded threatened species was the Eastern Cave Bat (although she did not agree with Dr Robertson’s method of threatened species assessment). She accepted that by adopting Dr Frazier’s figures of vegetation clearing there was a “danger of over-estimating … the amount of vegetation adversely impacted by the clearing” but stated, “there are always differences between mappers”.

68. Mr Stone, a geologist and civil and geotechnical engineer, gives evidence, based upon his analysis of photographs and surface geology maps, that the materials forming Dam 2 (or more particularly, the embankment of Dam 2) include fine-grained sandstone boulders located near the surface of the dam, fine-grained cobbles forming a spillway, and several large fine-grained sandstone boulders on the surface of the dam. He opines that this material, and the sandy clay material forming the dam wall, are not natural to the location and concludes that all these rock and soil materials forming Dam 2 can be physically removed with a medium to heavy duty excavator, on the basis that the photographs he interpreted did not indicate the presence of bedrock in the dam wall. He noted that identification of sub-surface material is not possible without a site inspection and further sub-surface investigation.

69. Mr Sharpin, a geologist and engineer, prepared a report considering orders that may be made pursuant to s 353B of the WM Act and prepared a remediation strategy primarily relating to the removal of Dam 2. He considered and relied upon the expert evidence of Dr Frazier (in relation to the depth and volume of Dam 2) and he determined the catchment area of Dam 2 using a mapping application known as IndustryView.

70. Mr Sharpin developed a remediation strategy for Dam 2 which involves first, dewatering the Dam 2 prior to removing the dam embankment; second, the management of sediments retained within the Dam 2 to minimise impacts on downstream aquatic habitats; third, the removal of the dam wall and material deposited downstream of the dam embankment; fourth, the restoration of Station Creek to a profile similar to the condition that existed prior to the construction of Dam 2; fifth, the stabilisation of disturbed areas including a maintenance period; and sixth, the landscaping of the riparian areas (including an appropriate maintenance period).

71. In relation to Dr Martens’ concerns regarding the prosecutor’s proposed remediation works involving the removal of Dam 2, Mr Sharpin accepts that there are water pollution risks involved in the removal of Dam 2, however considers that these risks are lower than opined by Dr Martens because the volume of sediment accumulated in Dam 2 is likely to be relatively low; there are techniques available for dewatering dams; and water monitoring would be undertaken.

72. In relation to waste management risks raised by Dr Martens (that there would be a considerable amount of waste material that would need to be removed in order to begin the process of reinstating the former riparian corridor), Mr Sharpin agrees that there is likely to be sediment and/or organic matter, including tree debris, in the base of Dam 2. However, noting the continuing presence of Dam 1 immediately upstream of Dam 2, Mr Sharpin considers: first, that the retention of Dam 2 would reduce sediment levels compared to if there was no upstream dam present; second, it is unclear whether dead trees and submerged vegetation will require removal, as they can provide valuable habitat for native fish; and third, as the accumulated sediment would be relatively low, disturbance associated with the removal of sediment may be greater than the impacts of leaving the sediment in situ.

73. In relation to Dr Martens’ concern regarding earthworks risks, Mr Sharpin agrees that these would need to be carefully managed to minimise downstream impacts and, although earthmoving equipment would be required to remove the dam embankment (after dewatering) and the deposited material downstream from the embankment, he opines that there are established techniques available for minimising potential impacts of working in and near streams.

74. Responding to Dr Martens’ evidence that he observed considerable bedrock in the base of the channel below Dam 2, such that a proposal to reconstruct the channel of “even grade” would require significant rock excavation, Mr Sharpin opines that the appropriate decommissioning strategy is to rehabilitate the length of Station Creek currently affected by Dam 2 to a condition similar to that which existed prior to the construction of Dam 2 and that, in that circumstance, excavation of bedrock to achieve this objective is not necessary or appropriate.

75. In cross-examination, Mr Sharpin accepted that his opinion in relation to the appropriate remediation of Dam 2 relied upon the opinions of other experts and depended upon first, that the dam interrupted tidal reach; second, that its removal would restore tidal reach upstream of it; and third, that the watercourse upstream of Dam 2 included portions of the Sanctuary Zone.

76. Mr Sharpin also accepted that the location and position of bedrock in the embankment of Dam 2 was important; that he was unable to determine the extent to which bedrock exists in the location of Dam 2, and whether it should remain or be removed in any remediation. He also accepted that he had no modelling based upon data as to the amount of sediment that has been trapped by Dam 2; that his opinion of trapped sediment was an estimate based upon his experience without site-specific knowledge; and although sediment sampling could have been carried out in relation to Dam 2, it was not undertaken.

77. Mr Sharpin further accepted that, even before the preparation of his expert evidence for this sentence hearing, he had intended to issue a direction to the landholder requiring the removal of Dam 2.

Bao Lin’s evidence

112. Dr Martens, a civil, environmental and geotechnical engineer, responds to the expert evidence of each of Dr Frazier, Mr Stone, Dr Growns, Mr Sharpin and Ms Hawes, and provided his opinion regarding the extent of harm caused by the offences. Having reviewed historical catchment disturbances since 1987, he concludes that the changes to historical catchment areas and land usages meant that Creeks 1 – 5 were no longer in their natural state at the date of the offences and that, with the approval of Water NSW, the creeks were further modified after the commencement of the charge periods. The changes included the construction of (what has been referred to as) Dam 1 between 1984 and 1993; the construction of the spillway of Dam 1 between 2000 and 2003; the construction works to Dam 2 and Dam 3 in 2016; the removal of Dam 3 in November 2017; the creation of the approved Dam 1 fishway in July 2018; and increases in the agricultural use at the premises.

113. In relation to channel morphology, Dr Martens opines that the clearing of Creeks 1 – 3, the subject of offence one, has not impacted channel form or shape and suggests that the riparian vegetation prior to the clearing was likely to have been highly modified and impacted by cattle access and consequent soil erosion with similar cattle-related impacts within the Creek 5 riparian zone.

114. In relation to the extent of tidal penetration, Dr Martens opines that it was not likely that tidal water flowed upstream of the Dam 2 embankment prior to the construction works the subject of offence four because the natural residual soil and weathered bedrock of the Dam 2 embankment exists higher than the predicted highest astronomical tide and mean high water spring tide for the premises; and this embankment acted as a downstream flow obstruction at that location. As considered below, as a result of his geotechnical and seismic studies, he opines that, contrary to the position of the prosecutor’s experts, there was no historical tidal exchange between Station Creek and the section of Creek 5 beyond the Dam 2 embankment.

115. In his affidavit affirmed 27 June 2021, Dr Martens deposes that for the purposes of his second report dated 17 May 2021, that he calculates the mean high water spring tide of around 0.66mAHD for Port Stephens by reference to the NSW Office of Environment and Heritage’s analyses within its “Ocean and River Entrance Tidal Levels Annual Summary 2016-2017” (‘OEH Summary’) of tidal observations for Eden Boat Harbour, which he opines can be used to estimate the mean high water spring tide and mean high water mark for Port Stephens despite local variance in tidal ranges because tidal signatures along the NSW coastline are relatively uniform. Specifically, he estimates the tides by first, calculating the difference between the highest astronomical tide for both Eden and Port Stephens, with Port Stephens being 0.16m higher than Eden; second, by adding that difference to the mean high water spring tide figure for Eden; third, applying that same approach to calculate the highest astronomical tide for Port Stephens; and fourth, adjusting both figures using the mAHD adjusted figures provided in the OEH Summary.

116. Dr Martens further deposes that subsequent to the completion of his report, he located a report by Manly Hydraulics Laboratory titled “NSW Extreme Ocean Water Levels” dated December 2018 prepared for the NSW Office of Environment and Heritage, which recorded Port Stephen’s mean high water spring tide and mean high water mark as approximately 0.6mAHD and 0.48mAHD respectively. Accordingly, Dr Martens provided updated annexures to his report marking the estimated mean high water mark, which appears downstream of Dam 2 and the former Dam 3.

117. Dr Martens maintains that Creek 5 comprised an ephemeral or intermittently flowing channel rather than a perennially flowing system and as such the presence of Dam 2 has not resulted in significant hydrological changes downstream of Dam 2 (into Creek 4).

118. Dr Martens, using catchment hydrology and water simulation software (MUSIC model), opines that the construction works to Dam 2 and Dam 3, in the context of the historical changes outlined at [112] above, had little impact on annual catchment run-offs, with the effect that the current annual discharge volumes are similar to pre-2016 conditions; and, as such, the hydrology of the downstream receiving waters were not detrimentally impacted by the construction of Dam 2 and Dam 3, nor by the retention of Dam 2.

119. In relation to water quality, Dr Martens opines that the removal of Dam 3 in 2017 provided no benefit to water quality; that Dam 2 is currently holding a large quantity of fine sediment that would otherwise have reached the estuary and negatively impacted water quality and estuarine fauna; and that Dam 2 and Dam 3 had beneficially reduced the transport of catchment derived pollutants to the estuary compared to the increased sediment and nutrient loads caused by the historic changes outlined at [112] above.

120. Dr Martens, using hydraulic modelling software (TUFLOW model), further opines that, while flow velocity was increased in Creeks 1 – 3 for some period of time after the initial vegetation removal in 2016, the increases were not significant; did not manifest in increased erosion or channel impacts; and, due to the occurrence of revegetation, are unlikely to have had any permanent effect.

121. Dr Martens, having analysed the subject watercourses with reference to mapped hydrolines; the Strahler stream order classification method; his observations during a site inspection and his interpretation of detailed aerial photography, concludes that Creek 1 is a second order watercourse, Creek 2 is a first order watercourse, Creek 3 is a second order watercourse, Creek 4 is a third order watercourse, and Creek 5 is a first order watercourse. He states that he found errors in the mapping informing the hydroline database, and that his methodology of classifying stream orders is a “better approach… than simply relying on mapped Hydrolines”, as provided under Sch 2 of the WM Regulation.

122. Dr Martens responded to the prosecutor’s proposed remediation works. While he “generally agrees” with the principles in relation to works recommended for Creeks 1, 2 and 3 (except for the recommended riparian corridor widths which were based upon the prosecutor’s Strahler stream order classification) in relation to the suggested removal of Dam 2, he states that the works at Dam 2 have “significantly increased the extent of waterfront land” and that Dam 2 in its present condition provides an increased aquatic habitat area. He raises concerns in relation to the prosecutor’s proposed remediation works because of what he considers to be water pollution risks; aquatic fauna risks; waste management risks; earthworks risks; and concerns regarding riparian corridors, as well as increased tidal influence and ongoing maintenance.

123. Dr Martens opines that retaining Dam 2 and establishing a core vegetated riparian corridor around the present dam perimeter is likely to achieve a more beneficial and certain environmental outcome because first, it would avoid the risks including disturbances, waste, and pollution associated with dewatering; second, it would avoid land disturbance and soil loss caused by earthworks within the riparian corridor and the risk of tidal penetration; third, it would protect the riparian flora and fauna established near Dam 2; fourth, it would increase the area and quality of the riparian land; and finally, it would have better long-term maintenance prospects compared to removing Dam 2. He notes that his alternative remediation proposal should be accompanied by measures to reform the spillway and connect the channel in a continuous manner; remove fill placed downstream of Dam 2 and form a channel connecting existing bedrock control downslope and within the spillway channel; revegetate 20m from Dam 2, the spillway, and both banks of the channel; stabilise exposed soil; and install stock-proof fencing.

124. In cross-examination, Dr Martens accepted that it was reasonable for Dr Frazier to opine that bare soil was exposed along the creek beds and riparian corridors during the clearing of vegetation at Creeks 1 – 3. He also accepted that it was possible that the clearing works were carried out by the operation of heavy machinery and that the exposure of bare soil and the removal of vegetation was likely to increase the possibility of erosion.

125. Dr Martens noted that when he first inspected the premises four years after the offending conduct, rehabilitation works had taken place in relation to Creeks 1, 2 and 3 and that although he did not observe “material” erosion, he accepted that there was likely disturbance to soils within the riparian corridor.

126. Dr Martens accepted that, as a result of the increased erosion potential, suspended fine sediments would have washed downstream during rainfall events if they coincided with the soil being there; that those fine sediments would have increased the turbidity further downstream of Creek 4; and that this potential for the erosion of soils and sediments downstream would have continued until the area around the creeks was stabilised.

127. Dr Martens also accepted that the impacts associated with vegetation removal, including exposure of bare soil, and the increased potential for erosion, also arose from the creation of Dam 2 and Dam 3. He considered that the calculations prepared by Dr Frazier regarding the extent of vegetation removal along the waterfront land for Creeks 1, 2 and 3 were reasonable estimates of the actual loss of vegetation. He also accepted Dr Frazier’s calculation of inundation and clearing as a result of the construction of Dam 3. He further accepted that the effect of each of Dam 2 and Dam 3 was to prevent upstream water moving downstream (up until the dam was full to its spillway). He accepted that if less water was moving downstream due to the dams, subject to the tides, this may have resulted in a “marginal”, or immeasurable, increase in salinity downstream.

128. Dr Robertson, an ecologist, having undertaken an ecological assessment which included vegetation mapping, aquatic surveys, and an analysis of aerial photography, concludes that the total loss of vegetation relating to all offences is approximately 6.28ha, comprising approximately 4.46ha of riparian vegetation which was cleared on waterfront land in respect of Creeks 1 – 3 and near Creek 4, and approximately 1.82ha in relation to Creek 5 (by clearing and inundation from Dam 2). He opines that the native vegetation cleared/inundated included approximately 5.95ha of Swamp Sclerophyll Forest, which is a listed endangered ecological community under the BC Act, which Dr Robertson acknowledges along with the construction of Dams 2 and 3, “would have impacted waterfront land at the time of works as the holding/carrying capacity of the waterfront land would have been altered”.

129. In relation to Creeks 1, 2 and 3, Dr Robertson opines that the clearing works impacted ecosystems and ecological processes at the time of the works, but that such harm is being progressively ameliorated/mitigated by the re-establishment of vegetation on waterfront land at the premises and subject to the amelioration/mitigation measures continuing, the waterfront land has not been materially harmed.

130. In relation to Creek 4, the subject of offence two, Dr Robertson opines that apart from the clearing of vegetation within waterfront land and the creation of a gravel track which prevents regrowth and natural regeneration, and, subject to revegetation mitigation measures, the ecosystems along Creek 4 have not been adversely affected or the waterfront land harmed in the longer term primarily because the clearing the subject of offence two does not affect the flows in Creek 4 because the vegetation is on a floodplain.

131. In relation to aquatic ecology, Dr Robertson opines that the carrying capacity of water in Creeks 1 – 3 would have progressively re-established following the removal of Dam 3; and that the macroinvertebrate composition in his sampled creek sites at Creeks 1 – 3 is consistent with disturbed waterways passing through agricultural areas along the Hunter River.

132. Dr Robertson opines that the terrestrial habitat that had been available to threatened species before the clearing works was limited to highly mobile threatened fauna such as birds and bats for foraging, however the lack of hollows or nests suggests that the available breeding habitat for threatened species was limited.

Control over the causes giving rise to the offences

196. Bao Lin undertook the controlled activities involving the removal of vegetation along four watercourses, without a controlled activity approval, and constructed a dam in each of the beds of Creek 1 and Creek 5, including the removal of vegetation in the beds and on the banks of those watercourses. In each circumstance, Bao Lin had control over the causes that gave rise to the offences and by the commission of the offences caused harm to the environment.

Intention in the commission of the offences

197. The criminality involved in the commission of an offence is to be measured not only by the seriousness of what occurred but by reference to the reasons for its occurrence: Water NSW v Barlow [2019] NSWLEC 30 at [79].

198. Bao Lin points to the fact that in the interview (undertaken with Mr Chen and Mr Lee) with officers of the regulator on 9 June 2017, Mr Chen stated (through Mr Lin acting as translator) that in or around mid-May 2016, a flood event occurred at the premises which caused what was said to be a pre-existing Dam 3 structure to be partially washed away, with dead trees flooded up against the dam wall and that Mr Chen instructed workers to extract material from around Dam 3 and place it next to and on top of the dam wall. Further, Mr Chen stated that after a further rain event in June 2016, rock materials were placed on the Dam 3 embankment to reduce soil erosion and sedimentation run-off. Similarly, in late May or early June 2016, Mr Chen arranged for workers to increase the height of the wall of Dam 2 by half a metre using basalt rocks, and to “generally tidy up”, following the flood events that had occurred at around that time.

199. In relation to the works at Creek 4 (in relation to offence two), Bao Lin, in its response to a notice from the regulator in March 2019, asserted that it had done works in relation to an integrated weed management program and that these works included the removal of non-native juvenile pine trees around a pre-existing dirt track. Further, Bao Lin submits that Mr Chen, at the time he authorised the activities, was not aware of the stop work order that was in place for the premises in relation to all works on Station Creek and its tributaries and tributaries to the Karuah River and, while Mr Lee was aware that approvals were required to carry out the works, he was unaware at the time that works were being carried out to Dam 2 and Dam 3.

200. In relation to its intentions in the commission of the offences, Bao Lin submits that offences one, three and four were performed by lower level Tea Garden Farms employees unaware of the legal requirements, in the absence of the knowledge of Bao Lin’s director, Mr Lee; and that the works the subject of offence two, were authorised by Mr Lee on the mistaken understanding that Bao Lin could improve and continue the pre-existing dirt/gravel track and fencing in the area around Creek 4 without controlled activity approval because he believed there was a pre-existing approval. I accept that submission.

201. Although each of the offences is a strict liability offence, subject to the principles in De Simoni at 389, the state of mind of an offender in committing a strict liability offence can increase the objective seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed.

202. Bao Lin submits that the self-reporting to the regulator of the offending conduct on 14 November 2016 by Mr Lee’s nephew (Mr Lin), is consistent with the proposition that the offences were not committed wilfully, negligently or in reckless disregard of the law. I accept that submission.

203. There is no evidence before the Court that Bao Lin committed the offences for any reason, such as financial gain, that would increase the objective seriousness of the offences.

Conclusion on objective seriousness

204. Although specific characterisation of objective seriousness is not a necessary component of the sentencing task because it “…is rarely definitive of that part of the sentencing exercise that requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender”, it is still a useful descriptor in the instinctive synthesis exercise: R v DP [2019] NSWCCA 55 at [42]; Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [279].

205. Having regard to the nature of each of the offences and the extent to which the commission of the offences offended the statutory objects; the high maximum penalty for the offences; the harm caused by the commission of the offences; the foreseeability of risk of harm; the existence of practical measures to prevent harm; the control over the causes that gave rise to the offences; and the intention and state of mind of Bao Lin in the commission of the offences, I consider that each of the offences is in the moderate range of seriousness for offences of these kinds with offence two being slightly less objectively serious.

Subjective circumstances

206. Within the limits set by the objective seriousness of each of the offences, the Court may take into account the favourable factors personal to the offender. In this part, I have again considered the offences together unless otherwise stated.

Lack of prior convictions

207. It is a mitigating factor that Bao Lin does not have any prior convictions for environmental offences.

Pleas of guilty

208. Bao Lin has pleaded guilty to each of the offences. As a matter of general principle, the utilitarian value flowing from a plea of guilty is not a fixed element, and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. This involves no more than an acknowledgment of the fact that any utilitarian gains arising from the avoidance of a trial may be lost by way of a protracted sentencing hearing, involving the adducing of evidence and the consumption of public resources for a purpose, ultimately determined adversely to an offender.

209. The pleas of guilty followed detailed discussions between the parties both in relation to the actual charges and the remediation strategies. I am aware that Bao Lin was originally charged with 13 offences and that the subsequent pleas of guilty may have avoided a more lengthy hearing on liability.

210. In the present circumstances, in relation to each offence, I consider that despite the fact that Bao Lin challenged a number of matters relevant to sentence, its conduct was not such as to materially reduce the utilitarian value of the plea in each matter and I consider that the pleas of guilty still have utilitarian value although slightly less than the maximum. I consider a 20% reduction in each matter is appropriate.

Remorse for the offences

211. Section 21A(3)(i) of the Sentencing Act provides that the remorse shown by the offender is a mitigating factor 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)”: s 21A(3)(i) of the Sentencing Act.

212. The prosecutor submits that the Court did not hear directly from Bao Lin, as to its remorse and contrition, in that Bao Lin has not apologised discretely to the Court or the community for undertaking the works in circumstances where it relied upon an affidavit of its solicitor (Mr Scott) which collated certain background documents and recorded the work that had been undertaken by Bao Lin after the commission of the offences. While accepting that undertaking those works is some acknowledgment of the loss and damage caused, and goes some way to making reparation, Bao Lin has chosen not to accept responsibility for its actions more specifically in relation to the construction of Dam 2.

213. The prosecutor further submits that the interviews conducted with officers of the regulator were not voluntary, and the prosecutor pointed to various aspects of the interviews where Mr Lin, and thereafter Mr Lee, originally sought to attribute the loss of the vegetation as being “washed away” by a storm or a flood. The prosecutor submits this was an implausible explanation in the circumstances of the evidence before the Court (particularly in relation to the loss of vegetation and clearing at Creeks 1, 2 and 3); and that in interviews in 2019, representatives of Bao Lin were still not accepting responsibility for the actions of Bao Lin.

214. In addition, the prosecutor submits that further reasons why the Court would not accept that Bao Lin has accepted responsibility for its actions are that the more recent work carried out between September 2018 and February 2019 was at a time when the directing mind of Bao Lin, first, was well aware of the directions that had been made by the regulator, including to remove both dams, on 27 September 2017 and 30 November 2017; second, had met with officers of the regulator on various occasions in 2017 and 2018; third, the regulator had inspected the premises on 21 April 2017 (when Bao Lin was informed that a draft direction would be issued), 19 May 2017, and further investigations in 2018; and, fourth, where Bao Lin admits that since 2016 Mr Lee was aware that the works required approval.

215. Bao Lin submits that it accepts responsibility for the offences as demonstrated by its pleas of guilty, the self-reporting of the offending conduct, and significant compliance with directions issued by the regulator to rectify the harm including: the removal of Dam 3 and lowering the Dam 2 embankment before the hard surface/bedrock was reached (which broke an excavator); revegetating much of the area and installing stock-proof fencing; acknowledging and apologising for the offending conduct and stating that it intends to employ persons to work on the premises who have knowledge of environmental protection laws; engaging experts before any charges were laid and providing such expert reports to investigators and the prosecutor; and having a company representative in attendance at the sentence hearing. Bao Lin submits that these are matters that relate to “actions” and are beyond “smooth apologies”: Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 (‘Waste Recycling’) at [203].

216. Bao Lin further submits that its post-offending conduct is what is most important and that Bao Lin has assisted in relation to the SOAF; has been careful in the presentation of its expert evidence (and whose experts have reached a great deal of common ground with the prosecutor’s experts); and, in those circumstances, the Court would be aware, now having received both expert and legal advice, that the entry of the pleas demonstrates acceptance of criminal responsibility for the conduct, and that these actions speak more loudly than previous statements concerning “storms” and the like. In any event, there is no evidence of the absence of a storm, or that Bao Lin was not “clearing up” after certain weather events. Furthermore, the Court has evidence of significant expenditure in relation to the rehabilitation of Creeks 1 – 3 (in the sum of approximately $200,000) and the removal of Dam 3 (in the sum of approximately $100,000). Bao Lin submits that this expenditure is concrete demonstration of a willingness to make good the offences; and, in the above circumstances, the Court would find that Bao Lin has demonstrated appropriate remorse.

217. Although I have some concern in relation to both the earlier utterances and the attribution of responsibility in relation to the conduct the subject of each of the offences, having considered those parts of the various interviews to which I was directed, I am of the view generally in accordance with the submissions made on behalf of Bao Lin that the more recent conduct of Bao Lin including, the entry of the pleas of guilty in relation to each offence, the partial compliance with directions issued by the regulator and the partial remediation already undertaken, lead me to find that Bao Lin has shown some remorse for the offences and to a material extent has accepted some responsibility however, still has not fully acknowledged the harm caused to the environment by its conduct. Despite this, not insignificant remedial works have been undertaken and Bao Lin has indicated a willingness to undertake further remedial work which has been the subject of earlier directions in relation to the offences, apart from offence four, where it has proffered a lesser form of remedial work, and this comprises an acceptance of a need for remediation for the offending works undertaken although the extent thereof has not yet been determined.

Assistance to authorities

218. Despite my concern in relation to acceptance of responsibility and comments made earlier during interviews, I have considered matters raised in the affidavit of Mr Scott and find that Bao Lin has cooperated in relation to a number of matters with the prosecutor and has provided assistance to both the prosecutor and other investigating authorities which has culminated in the preparation of the SOAF. Although there were not insignificant matters in dispute in the sentencing hearing, I consider that the conduct of Bao Lin amounts to assistance to authorities, and I take this into account as a mitigating factor.

Deterrence

General deterrence

219. General deterrence is particularly important in sentencing for environmental offences. The sentence imposed by the Court should be such as to ensure that the penalty is not to be regarded by Bao Lin or others as an acceptable cost of doing business. As Preston J stated in Clarence Valley:

“[98]   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.

[99]   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.”

220. Accordingly, the sentence must also create a clear disincentive to other would-be offenders who will not be deterred from committing environmental offences by nominal fines: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234. This is important in relation to both the offences against s 91E(1) and s 345(2) of the WM Act. Embedded in the determination of the appropriate sentence for each offence must be an element of general deterrence to ensure that conduct on and around waterways and waterfront land does not harm the environment.

Specific deterrence

221. Given that Bao Lin has no record of previous convictions, this reduces somewhat the need for specific deterrence, however, as the conduct (involving four discrete but not unrelated offences) was associated with farming activities in which Bao Lin continues to participate, I find that some form of specific deterrence is warranted.

Evenhandedness

222. In determining the appropriate penalty, the Court should be consistent with any pattern of sentencing for like offences. The Court’s attention was directed to Harrison v Perdikaris, where the defendant entered pleas of guilty to two offences in contravention of s 91E(1) of the WM Act in circumstances, where the offender instructed contractors to increase the capacity of two dams across a creek on a rural property without approvals. Considering the subjective and objective circumstances of that case, the Court convicted the offender to pay fines in the sum of $59,500 for the first offence and $34,000 for the second offence. It is noted that the maximum penalty for contraventions of s 91E(1) in the circumstances of that case was $247,500. The Court is also aware of Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113 (and Budvalt Pty Ltd), wherein the Court imposed a fine of $252,000 for an offence contrary to s 91B(1) of the WM Act (relating to the construction of a water supply work – a channel without an approval authorising the construction) and made an order pursuant to s 353G(1)(a) of the WM Act for the publication of orders.

223. While I have considered Harrison v Perdikaris, nevertheless, each case turns upon its particular facts and caution must be exercised in considering other cases. The Court has not been referred to any authorities where the Court has considered offences under s 345(2) of the WM Act.

Restoration and prevention order

224. The prosecutor submits that the prosecutor’s proposed remediation works summarised in the evidence of Mr Sharpin (at [103]-[104] above) and Ms Hawes (at [96] above), is an appropriate remediation strategy which relates primarily to Dam 2.

225. Bao Lin’s proposed restoration and prevention orders are detailed in Annexure “A” to its written submissions and are based upon, but not precisely reflective of, the evidence and strategy suggested by Dr Martens.

226. Bao Lin’s proposed orders provide, in summary, as follows: in relation to Creek 4, Bao Lin is to remove deposited rock and blue metal material on waterfront land at the location of Creek 4 no later than three months after this judgment; provide to the prosecutor for its approval a vegetation management plan for the cleared area around Creek 4; restore the cleared area where it has dissected the wetland, revegetate it with endemic species and install stock-proof fencing no later than four weeks after this judgment; and implement the vegetation management plan no later than three months after receiving the prosecutor’s approval for the vegetation management plan.

227. In relation to Dam 2/Creek 5, Bao Lin, first, is to provide no later than four weeks after this judgment; the prosecutor for its approval a hydrological engineering plan addressing: reformation of the spillway from Dam 2 to replicate a natural channel and reduce flow velocities; removal and/or reinstatement of fill and boulders downstream of the Dam 2 embankment to ensure the structural integrity of the embankment and dam walls, so that the spillway can connect with the natural bedrock of the estuary; stabilisation of riparian soils using sediment and erosion control measures. Second, Bao Lin is to provide no later than four weeks after this judgment; to the prosecutor for its approval a vegetation management plan for the area around Dam 2, to establish a revegetated riparian zone around Dam 2 and the reformed spillway, with stock-proof fencing installed around all areas to be revegetated prior to revegetation. Third, Bao Lin is to implement the hydrological engineering plan and vegetation management plan no later than three months after receiving the prosecutor’s approval for those plans.

224. In light of my findings noted above, and my consideration of the further matters in the affidavits of Mr Scott and Ms Ryan, and noting that Bao Lin has undertaken certain remediation measures already, including works in relation to Creeks 1 – 3 and the removal of Dam 3, I am of the view that Bao Lin’s proposed restoration and prevention orders (expanded by the inclusion of further works proposed by Dr Martens), subject to an appropriate timetable and the prosecutor’s approval, are an appropriate response and are to be included in orders comprising the sentences to be imposed. My reasons may be shortly stated.

225. First, while consideration of restoration and prevention orders in a criminal sentencing matter cannot be equated with a merit consideration that would be involved in consideration of an application for an approval for works, and while the works involved with the creation of Dam 2 were unlawful, the Court has received extensive evidence in relation to the environmental consequences of the order now proposed.

226. In particular Dr Martens has raised concerns in relation to the removal of Dam 2 primarily in relation to pollution risks, aquatic fauna risks, waste management risks, earthworks risks, and some concern regarding tidal influence.

227. The experts called on behalf of the prosecutor, while maintaining that restoration and prevention orders which involve the removal of Dam 2 are appropriate, accept that there is risk involved. Dr Growns, despite maintaining that Dam 2 is causing environmental harm, agrees that the removal of the bedrock outcropping of Dam 2 may increase the upstream tidal/saline influence, disrupt vegetation and soil processes and present difficulties in establishing a freshwater riparian corridor ecosystem because of a resulting lower gradient.

228. Ms Hawes, while not accepting Dr Martens’ assessment that Dam 2 has increased the extent of waterfront land, and accepting that the watercourse was likely to have been an intermittently flowing narrow channel (which she considered to have been the natural configuration of the watercourse prior to the installation of Dam 2), accepts that there is potential to increase the riparian corridor upstream (said to be an environmental benefit by Dr Martens) and that if Dam 2 was retained, there would be a reduced risk of pollution from dewatering, no generation of waste materials, and reduced maintenance/monitoring requirements. Further, I do not accept the evidence that the removal of Dam 2 will return Creek 5 to its “natural state” as opined by Ms Hawes, as this evidence was influenced by her assumption that there was previously tidal exchange between Station Creek and Creek 5 (above Dam 2), and her assumption that, it was only after the installation of Dam 2, that the water upstream became entirely freshwater.

229. Mr Sharpin, whose remediation strategy involved dewatering Dam 2 prior to removing the dam embankment and providing for the management of sediments retained within Dam 2 to minimise impacts on downstream aquatic habitats, accepted that there were water pollution risks involved with the removal of Dam 2 (which Mr Sharpin believed could be managed); waste management risks (being that there would be an amount of waste material that would need to be removed to reinstate the former riparian corridor); earthworks risks which would need to be carefully managed; and that earthmoving equipment would be required to remove the dam embankment (after dewatering) and the material deposited downstream from the embankment. He accepted that if there was considerable bedrock in the base of the channel below Dam 2, this would require significant rock excavation, and he was unable to determine the extent of bedrock in the location of Dam 2. Mr Sharpin also accepted that his opinion depended upon an understanding that the dam interrupted tidal reach, that the removal of Dam 2 would restore tidal reach upstream, and that the watercourse upstream of Dam 2 included portions of the Sanctuary Zone. Mr Sharpin also accepted that he had done no modelling to determine the amount of sediment.

230. In the circumstances, Dr Martens’ evidence (noted at [122]-[123] above), weighed with my findings regarding environmental harm resulting from offence four, dissuades me from making orders for restoration and prevention that provide for the removal of Dam 2, although it is a view I have reached not without some concern.

231. I therefore consider it appropriate to make restoration and prevention orders in accordance with s 353B of the WM Act which largely reflect those proposed by Bao Lin supplemented with works that reflect Dr Martens’ alternative remediation strategy for retaining Dam 2.

Publication order

236. The publication of information relating to environmental offences and their repercussions is relevant to sentencing as it enhances public perception and the deterrent effect of the sentence imposed. This is particularly applicable to corporate offenders: Waste Recycling at [242]; Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9 at [58]-[59].

237. The prosecutor seeks an order pursuant to s 353G(1)(a) of the WM Act that Bao Lin publishes in the Great Lakes Advocate and the Newcastle Herald a notice in the form detailed in the prosecutor’s submissions. Bao Lin opposes an order and submits that the publication of the Court’s orders and reasons would provide sufficient information and education to the public.

238. I consider it appropriate that a publication order, which I consider has a significant educative and deterrent function, be made, and that the publication be in the form of Annexure “B” to this judgment which generally reflects the wording suggested by the prosecutor, and the Court’s findings and the sentences imposed.

Costs

239. The prosecutor seeks an order for payment of its professional costs under s 257B of the CP Act and submits that payment of the prosecutor’s costs is a common aspect of sentencing for Class 5 proceedings such that it is embedded in the general pattern of sentencing for all offences.

240. Bao Lin opposes the ‘usual’ order and submits that the present hearing has been unusual, in that the prosecutor’s costs will be significant because of the extensive “areas in dispute”. In anticipation of Bao Lin enjoying success in relation to a number of the disputed issues, Bao Lin submits that this is an exceptional case where the prosecutor should not be awarded all of its costs. Bao Lin submits that the usual costs order should be modified by the Court finding that only one half of the prosecutor’s costs should be awarded.

241. The prosecutor submits there is nothing in relation to the prosecutor’s conduct that could be considered to amount to disentitling conduct where there would have been a sentencing hearing regardless of Bao Lin’s guilty pleas, and where the hearing was set down for four days and was, despite the extensive evidence, completed well within that time.

242. In the circumstances, although Bao Lin pleaded guilty and raised a number of matters in dispute on which it has enjoyed some success, I do not consider that the facts of this sentence hearing make this case exceptional. It is not uncommon for there to be strongly contested matters in a sentence hearing, in particular in relation to matters regarding environmental harm, nor is it uncommon for extensive expert evidence to be marshalled. In the circumstances, I find that the prosecutor is entitled to its costs to be awarded pursuant to s 257B and determined in accordance with s 257G of the CP Act.

Moiety of fines

243. The prosecutor seeks orders under s 122(2) of the Fines Act 1996 (NSW) (‘Fines Act’) that half of each fine payable by Bao Lin be paid to the prosecutor, as delegate of the NRAR.

244. The appropriateness of such orders was canvassed by Preston J in Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 (‘Brummell’) at [102]-[113]. For the reasons expressed by his Honour in Brummell at [102]-[113], with which I respectively agree, I consider that the power in s 122(2) of the Fines Act is able to be exercised by this Court in proceedings in which a fine or other penalty is imposed for a statutory offence, and I consider it appropriate to exercise the power in s 122(2) of the Fines Act to direct that one half of the fine imposed in each of the four offences be paid to the prosecutor.

Totality

245. Where offences arise out of the same incident, the totality principle requires consideration. As Preston J stated in Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [142]:

“The effect of the totality principle is to require the Court, which has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is just and appropriate and reflects the total criminality before the Court. In the case of fines, adjustment may be made by reducing the amount of the fine for each offence. Care needs to be taken, however, to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender’s conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence.”

246. Bao Lin submits that as all offences relate to a “single hydrological system” at the premises, the totality principle has application.

247. I consider that the boundaries of offences against s 91E and s 345(2) of the WM Act were not drawn so as to be coterminous and, although all four offences with which Bao Lin is charged are strict liability offences, the external or physical elements of each set of two offences are different. In the context of the two offences against s 345(2), the external or physical element of the offences is the result, that is, harm to the waterfront land. In contrast, the external or physical element of the two offences against s 91E is the conduct of the offender, namely, its failure to have a controlled activity approval. The result of the conduct (for example, harm) is not an element of those offences (although noting that the results of the conduct, such as the extent of harm or the likely harm to be caused by the failure to have a controlled activity approval, is a consideration under s 364A).

248. Notwithstanding this, I consider that the boundaries of the four offences while not entirely coterminous, have some overlapping characteristics which are relevant to sentencing, such as the likelihood of harm being caused to the environment and the circumstances require consideration of the totality principle.

249. Although there is little overlap of “elements” of the offences, the objective seriousness of the two different sets of offences have some overlapping characteristics as noted above.

The appropriate sentences for the offences

250. Taking into account the objective circumstances of the offences and the subjective circumstances of Bao Lin as the offender as I have considered above, and the purposes of sentencing in s 3A of the Sentencing Act including punishment, retribution and denunciation, I consider that there is a need for the Court, through the sentences it imposes, to ensure that Bao Lin is adequately punished for each offence, to hold Bao Lin accountable for its actions, and to denounce the conduct of Bao Lin in proportion to the seriousness of the offences.

251. Synthesising all of the relevant objective and subjective circumstances of each offence and of Bao Lin as the offender, considering the relevant purposes of sentencing, and taking into account the further orders to be imposed, and before considering the principle of totality, I consider that the appropriate monetary penalties to be imposed are:

1. In relation to offence one, a fine of $85,000 for the offence forming the basis of this charge. This figure should be discounted by 20% for the utilitarian value of the plea of guilty, which results in a fine of $68,000;

2. In relation to offence two, a fine of $75,000 for the offence forming the basis of this charge. This figure should be discounted by 20% for the utilitarian value of the plea of guilty, which results in a fine of $60,000;

3. In relation to offence three, a fine of $85,000 for the offence forming the basis of this charge. This figure should be discounted by 20% for the utilitarian value of the plea of guilty, which results in a fine of $68,000; and

4. In relation to offence four, a fine of $85,000 for the offence forming the basis of this charge. This figure should be discounted by 20% for the utilitarian value of the plea of guilty, which results in a fine of $68,000.

252. I consider the aggregate of the amount of fines of $264,000 slightly exceeds what is just and appropriate in the circumstances, and the total criminality involved for the offences, and the appropriate adjustment is to reduce each penalty by 5% such that the aggregate amount of the fines is $250,800.

Orders

253. The orders of the Court are:

In proceedings 2020/00008673:

1. Bao Lin Pty Ltd is convicted of the offence against s 91E of the Water Management Act 2000 (NSW) charged in proceedings number 2020/00008673.

2. Bao Lin Pty Ltd is fined $64,600 for the offence against s 91E of the Water Management Act 2000 (NSW) charged in proceedings 2020/00008673.

In proceedings 2020/00008676:

1. Bao Lin Pty Ltd is convicted of the offence against s 91E of the Water Management Act 2000 (NSW) charged in proceedings number 2020/00008676.

2. Bao Lin Pty Ltd is fined $57,000 for the offence against s 91E of the Water Management Act 2000 (NSW) charged in proceedings 2020/00008676.

In proceedings 2020/00008682:

1. Bao Lin Pty Ltd is convicted of the offence against s 345(2) of the Water Management Act 2000 (NSW) charged in proceedings number 2020/00008682.

2. Bao Lin Pty Ltd is fined $64,600 for the offence against s 345(2) of the Water Management Act 2000 (NSW) charged in proceedings 2020/00008682.

In proceedings 2020/00008683:

1. Bao Lin Pty Ltd is convicted of the offence against s 345(2) of the Water Management Act 2000 (NSW) charged in proceedings 2020/00008683.

2. Bao Lin Pty Ltd is fined $64,600 for the offence against s 345(2) of the Water Management Act 2000 (NSW) charged in proceedings 2020/00008683.

In proceedings 2020/00008673; 2020/00008676; 2020/00008682; 2020/00008683:

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), the Registrar is directed to pay 50% of the fine in each offence to the Natural Resources Access Regulator.

4. Pursuant to s 353B of the WM Act, Bao Lin Pty Ltd is to undertake the following steps to prevent, control, abate or mitigate the harm to the environment caused by the offences:

1. In relation to Creek 4:

1. By no later than 13 July 2022, Bao Lin Pty Ltd is to ensure that the deposited rock and blue metal material on waterfront land at the location of Creek 4 is removed.

2. By no later than 11 May 2022, Bao Lin Pty Ltd is to provide to the Natural Resources Access Regulator for its approval a vegetation management plan for the cleared area around Creek 4. The aim of the vegetation management plan is to restore the cleared area around Creek 4 where the roadway has dissected the wetland. This area is to be revegetated with endemic species, with stock proof fencing installed around all revegetated areas prior to the commencement of revegetation.

3. By no later than three months after having received the Natural Resources Access Regulator’s approval referred to in Order (4)(a)(ii) above, Bao Lin Pty Ltd is to implement the VMP.

2. In relation to Dam 2/Creek 5:

1. By no later than 11 May 2022, Bao Lin Pty Ltd is to provide the Natural Resources Access Regulator for its approval a hydrological engineering plan addressing the following works to Dam 2:

1. Reformation of the spillway from Dam 2 to the estuary to replicate a natural channel and reduce flow velocities so that long-term stability is ensured, and habitat values are increased. Connect the channel in a continuous manner to the downstream channel. Works should include appropriate sediment and erosion control measures and any bed and bank stabilisation requirements.

2. Removal and/or reinstatement of fill and boulders downstream of the Dam 2 embankment as necessary to ensure both the structural integrity of the embankment and dam walls, and so that the spillway can connect with the natural bedrock of the estuary.

3. Stabilisation of all exposed riparian soils using sediment and erosion control measures.

2. By no later than 11 May 2022, Bao Lin Pty Ltd is to provide the prosecutor for its approval a vegetation management plan for the area around Dam 2, the reformed spillway, and the channel between the embankment and the downstream tidal water. The aim of the vegetation management plan is to establish a revegetated riparian zone 20m in width from the Dam 2 top water level, the top of both banks of the reformed spillway, and the top of both banks of the channel between the embankment and the downstream tidal water, with stock-proof fencing installed around all revegetated areas prior to the commencement of revegetation.

3. By no later than three months after having received the Natural Resources Access Regulator’s approval referred to in Orders (4)(b)(i) and (4)(b)(ii) above, Bao Lin Pty Ltd is to implement the hydrological engineering plan and vegetation management plan.

5. Pursuant to ss 247B and 247G of the Criminal Procedure Act 1986 (NSW), Bao Lin Pty Ltd is to pay the prosecutor’s legal costs of proceedings 2020/00008673; 2020/00008676; 2020/00008682; and 2020/00008683 as agreed or assessed.

6. Pursuant to s 353G(1)(a) of the Water Management Act 2000 (NSW), Bao Lin Pty Ltd must, within 28 days of this order, at its own expense, publicise the commission of the offences and orders made against it, by causing a notice to be published in the terms of Annexure “B”:

1. In the digital versions of the Great Lakes Advocate and the Newcastle Herald; and

2. The print versions of the Great Lakes Advocate and the Newcastle Herald, within the first five pages and at a minimum size of 10cm x 18cm.

7. Within 7 days of the date of the publication of the notice referred to in Order (6) above, Bao Lin Pty Ltd must provide to the Natural Resources Access Regulator a complete copy and a screenshot of the entire page of the publications in which the notice appears.

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Annexure A (474091, pdf)

Annexure B (95341, pdf)

Decision last updated: 14 April 2022